Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 / IN HEnORY OF 'f-^ JUDGE DOUQLASS BOARDMAN FIRST DEAN OF THE BCKO'OL • By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornelt University Library KF 755.J37 1881 V.1 A treatise on wills / 3 1924 018 798 664 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/cu31924018798664 TREATISE ON WILLS. BY THOMAS JAKMAN, Esq. THE FIFTH AMERICAN FBOM THE FOURTH ENGLISH EDITION. By MELVILLE M. BIGELOW, Ph.D. OF THE BOSTON BAK. IN TWO VOLUMES. Vol. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1881. Copyright, 1881, By Little, Brown, and Company. University Pkess: John Wilson and Son, Cambkidge. NOTE TO THE FIFTH AMERICAN EDITION. In the present volume, authorities are brought down to October, 1880 ; in the second volume, now in the press and soon to follow this one in publication, they will be brought down to the present time. The notes of the pre- vious American editions have for the most part been re- written and made one with the new matter. The Editor takes this occasion to make suitable acknowledgment to Mr. William E. Spear, of the Boston Bar, for valuable aid on both volumes, especially in the collection and arrange- ment of the statutes of the different states, and in making the indexes and tables of cases. It should be mentioned that reference to passages in this work is always made to the top paging, when not otherwise stated. Boston, January 1, 1881. PREFACE TO THE FIRST EDITION. Sixteen years have now elapsed since the writer diffidently pre- sented to the profession his first publication on Testamentary Law, in the form of an edition of Powell on Devises, with a supplemen- tary treatise on the Construction of Devises. The reception given to this work was such as abundantly to compensate for the severe labor which it exacted, and under which the health of its Editor more than once sank. This was followed, after the interval of a few years, by the Tenth Volume of the Precedents in Conveyancing, being the portion of that work which was devoted to the same sub- ject. The materials afforded by these publications have been freely used LQ the present work ; but considering the very large accessions since made to the adjudications on testamentary law, and that it has not escaped the activity of modern legislation, it will be obvious that many of the various subjects embraced by so extensive a range of disquisition, now present themselves under a different aspect, requiriag, not only very large additions to the matter which com- posed the former works, but the rejection of no inconsiderable por- tion of that matter ; and the writer is not ashamed to avow, that another, though certainly a less extensive, head of alteration arises from the changes which experience has wrought in some of the opinions of his earlier days. The result is, that probably more than one-half of the present treatise is entirely original ; and the writer therefore feels that he has to subject his performance (as partially new) to the criticism of his professional brethren, whose kind con- sideration he again bespeaks, convinced that those who are the most competent to detect error, will be the most generous and indulgent in the appreciation of the difficulties which beset the inquirer iato VI PREFACE. the principles of one of the most intricate branches of the law. To those difficulties have been added the daily iaterruptions of profes- sional avocation, which have long delayed, and have sometimes threatened wholly to prevent, the present publication. The recent Act has created some additional embarrassment to a writer on WUls, by introducing new principles of construction, partial in their appli- cation ; for, by drawing a line between wills of an earlier and those of a later date, the legislature has diminished the importance, with- out permitting the rejection or the neglect of the old law. On these subjects, conciseness and compression have been specially aimed at, and some additional labor has been willingly incurred,, in order to avoid incumberiiig the present work unnecessarily with matter which every passing day tends to render less practically useful. THOMAS JAEMAN. New Square, Lincoln's Inn, December, 1843. TABLE OF CONTENTS. Page Table of Cases xiii CHAPTER I. By what Local Law Wills are Regulated 1 CHAPTER II. Form and Characteristics of the Instrument 17 CHAPTER III. Personal Disabilities of Testators 32 CHAPTER rV. What mat be Devised or Bequeathed 46 CHAPTER V. Who may be Devisees or Legatees 65 CHAPTER VI. execution and attestation of wills. Sect. 1. Of Wills made before 1838. — As to Freeholds of Inheritance 77 2. As to Personal Estate and Copy- holds ........ 97 3. Of Wills made since the year 1837 105 4. Defective Execution supplied by reference, express or implied 114 VIU TABLE OF CONTENTS. CHAPTER VII. REVOCATION OF WILLS. Page Sect. 1. By Marriage and Birth of Ciiildren, or Marriage alone . . . 122 2. By Burning, Cancelling, Tearing, or Obliterating 129 3. By Alteration of Estate 147 4. By void Conveyances 165 5. By a subsequent Revoking, inconsistent Will, Codicil or Writing 168 CHAPTER VIII. Republication 193 CHAPTER IX. KESTKAINTS ON THE TESTAMENTARY POWER. Sect. 1. Gifts to Superstitious and Charitable Uses 205 2. Rule against Perpetuities 250 3. For what Period Income may be accumulated 302 CHAPTER X. From what Period a Will speaks 318 CHAPTER XL Doctrine of Lapse ■ , . . . 338 f CHAPTER XII. GIFTS WHEN VOID FOR UNCERTAINTY. Sect. 1. General Doctrine . , 353 2. Uncertainty as to Subject of Disposition 357 3. Objects of Gift 37O 4. Effect of Mistake in Locality or Occupancy of Lands and of Misnomer generally as to Subjects or Objects 376 5. What Words sufficient to create a Trust 383 CHAPTER Xin. Paiiol Evidence, how far Admissible 409 TABLE OF CONTENTS. IX CHAPTEK XIV. Page Election 443 CHAPTER XV. Effect of Repugnancy or Contradiction in Wills, and as to REJECTING Words 472 CHAPTER XVI. as to supplying, transposing, and changing words. Sect. 1. As to supplying Words 486 2. As to the Transposition of Words and Clauses' 500 3. As to changing Words 503 CHAPTER XVn. estates arising by implication. Sect. 1. Effect of Recitals 525 2. Implication from Devises and Bequests, to take effect on Death of a Person simply 532 3. Implication from Devises and Bequests, to take effect on Death combined with some Contingency, and under other varieties of Context 546 4. As to implying Trust from Devise of Legal Estate .... 550 5. Implication from Powers of Selection and Distribution . . . 551 6. of Estates Tail 554 7. of Gifts to Children 563 CHAPTER XVin. RESULTING TRUST TO THE HEIR. Sect. 1. Resulting Trust to the Heir, in Real Estate not beneficially disposed of 565 2. Effect where particular Estates are void in their Creation . . 574 CHAPTER XIX. DOCTRINE OP CONSTRUCTIVE CONVERSION. Sect. 1. Money considered as Land, and vice versd. Distinction be- tween absolute and qualified Converting Trusts .... 584 2. Electidn to take Property in its actual State 598 X TABLE OF CONTENTS. Page Sect. 3. Kule, where Legatee's Enjoyment is apparently postponed until Conversion, and, generally, as to relative Rights of Legatee for Life, and ulterior Legatee, under residuary Clauses > 604 4. Destination of undisposed-of Interests in Property directed to be converted. Doctrine of Conversion as between Claimants under Will and real and personal Representatives of Testator 619 ,5. Effect of Failuie, by Lapse, or otherwise, of pecuniary Gifts out of Proceeds of Land 632 CHAPTEK XX. OPERATION OF A GENERAL DEVISE OF REAL ESTATE. Sect. 1. In regard to void,: lapsed, and partial specific Devises . . . 645 2. Reversions 654 3. Copyholds 664 4. Leaseholds 668 5. Powers of Appointment 676 CHAPTER XXI. DEVISES BY MORTGAGEES AND TRUSTEES. Sect. 1. In regard to the beneficial Interest in Mortgages. As to the Extinction of the Charge by Union of Character of Mortga- gor and Mortgagee 689 2. Operation of General Devite on the Legal Estate of Mortgagee or Trustee 694 3. Whether Devisee of Trustee can exercise the powers given to the Trustee 709 CHAPTER XXII. WHAT GENERAL WORDS CARRY REAL ESTATE. Sect. 1. Words "Estate" and "Property," and other such terms, where restrained by association with more limited expres- sions, to Articles ejusdem generis 716 2. Where not restrained by such association 721 3. Whether restrained by collocation with Executorship , . . 729 4. by the nature of the Limitations .... 732 5. General untechnioal Words held to Pass Lands 738 6. Words descriptive of Personalty only held, by force of Context, to include Real Estate 743 TABLE OF CONTENTS. XI CHAPTER XXIII. WHAT WORDS WILL COMPKISE THE GENERAL PERSONAL ESTATE. Page Extent of words " Goods," "Chattels," "EfEects," "Things." Re- strictive efiect of association with more limited terms. Residuary bequest. General residue held to pass byword "Money," and other informal words 751 CHAPTER XXTV. Force and Extent of Particular Words of Desceiption . . 778 CHAPTER XXV. DEVISES AND BEQUESTS WHETHER VESTED OR CONTINGENT. Sect. 1. General Rule in regard to Vesting 799 2. Devises construed to be vested, notwithstanding expressions of a contrary aspect 805 3. Devises contingent by express terms, notwithstanding absurd consequences 821 4. Question, whether Contingency applies to one or all of several Limitations 831 5. Vesting of Legacies charged on Land 834 6. Personal Legacies 837 7. Residuary Bequests 851 CHAPTER XXVI. Executory Devises and Bequests 864 TABLE OF CASES. Aaron ». Aaron Abadam v. Abadam Abbot V. Massie ». Peters Abbott V. Bradstreet V. Fraser V. Middleton Abell V. Douglass Page 116, 118 188 442 101 320 250 424, 489, 521 2 Abercrombie v. Abercrombie 412 Abington v. Boston 12 V. N. Bridgewater 12 Abney v. Miller > 318 Abraham v. Alman 392 y. Joseph 78, 79, 80, 141 Abram v. Ward 563 Abrams v. Winship 569 Acherley v. Vernon 193 Acheson v. Fair 720 Ackerman v. Burrows 843 V. Gorton 807 V. Vreeland 285 Ackers v, Pliipps 550, 653 Ackroyd u. Smithson 565 622, 642 Adair v. Adair 36 Adams, In re 18 104, 364 V. Adams 458, 527, 528 V. Austen 683 ' V. Chaplin 82, 255 V. Gierke 476 V. Field 80,81 V. Gillespie 339, 574 V. Jones 382, 755 V. Roberts 842 V. Winne 148, 417 Adamson, In re 143 Addie v. Brown 308, 313 Addington v. Cann 227, 234 Addis V. Clement 671 Addison v. Bowie 443 V. Busk 563 Addy V. Grix 81,82 Adge V. Smith 209 Adie V. Comwell 472 Adnam v. Cole 210, 211, 213, 359 Adshead v. Willetts 515 Adsit V. Adsit 458 Page Affleck V. James 529, 589 Agnew V. Pope 177, 182 Aiger v. Pool 837 Aikin v. Weckerly 38,89 Ains worth, In re 106 Aislabie v. Rice 832 Albee v. Carpenter 879 Albemarle v. Rogers 568, 798 Alchin's Trusts, In re 376, 379 Alcock V. Sloper 615, 617, 618 Aldrich V. Gaskill 785, 780, 787 Alexander, In re 11 V. Alexander 177, 265, 388, 806, 817 V. Brame - 22, 221, 222 V. Mills 108 Alford V. Earle . 199 AUanson v. Clitheroe 326 Allardice v. Onslow 15 Allen, In re 89, 110 V. Allen 64, 71 V. Anderson 9, 449 V. Bewsey 185 li. Callow 343 V. Everett 80 V. Harrison 327 V. Lyons , 423, 431 V. Maddock 19, 20, 92, 116, 118, 120 V. Manning 98, 103 V. McPherson 28, 36 V. Parham 255 V. Pray 458 V. Public Admr. 35, 36 u. Richards 793 V. Scott 781 AUeyne v. Alleyne 642, 744 AUhusen v. Whittell 606, 607 Allison V. Allison 18, 21, 80, 81, 82, 90, 130, 171 AUiston V. Chappie 663 Allnut, In re 119 AUoway v. AUoway 552 All Soul's College v. Codrington 318 AUum ti. Fryer 476 Allyn V. Mather 298 Almosnino, In re 92 Alt V. Gregory 177 Ambler v. Norton 458 XIV TABLE OP CASES. Ambre v. Weishaar 89 Ambrose v. Hodgson 888 American Bible Soc. v. Marshall B5 V. Pratt 418 American Tract Soc. v. Atwater 208 Ames, In re 36, 88 Amesbury v. Brovpn 650 Amhurst v. Donelly 803 Amiss, In re 82 Amory v. Fellows 90 V. Meredith 676, 683 V. Lord 266 Amphlett v. Parke 584, 636, 637, 639, 640, 642, 643 Amson v. Harris 516 Anderson v. Anderson 74, 645 V. Jackson 866 V. Miller 41 -K. Parsons 342 V. Read 610 V. Welch 81 Anding v. Davis 18, 160 Andress v. Weller 34, 35, 38, 412, 414 Andrew I). Andrew 161,338,364,554, 676, 806, 816, 817, 818 881 V. New York Bible Soc' 65,' 219 V. Trinity Hall 450 Andrew's Will 798 Andrews v. Brunefield 676, 722 V. Dobson 439 V. Emmot 679 V. Partington 404 V. Turner 143, 204 Angerstein v. Martin 606, 607 Annable v. Patch 864 Anshutz V. Miller 318, 324, 864 Anstee v. Nelms 421, 431 Anstruther v. Chalmer 2 Apperson v. Cottrell 31 Applegate v. Smith 826 Appling V. Eades 133 Apreece v. Apreece 897 Archer, In re 107 V. Deneale 717 V. Jegon 851 V. Legg 747 Ardersoife v. Bennett 446 Arkell v. Fletcher 671 Arraitage v. Coates 296 V. Wilkinson 850 Armstrong v. Armstrong 78, 80, 115, 193 285, 839, 401 V. Berreman 551 ». Buckland 761 V. Eldridge 648, 544 V. Huddlestone 35 Arnald v. Arnald 162 Amdt V. Arndt 78 Arnold, In re 163, 531 W.Arnold 1,8,754,759,872 V. Brown 866 V. Chapman 227, 347, 849, 565 V. Congreve 272, 295 V. Dixon 163 Arnold v. Ennis 611, 615 V. Kempstead 458, 466 Arnold's Estate, In re 493 Arrington v. McLemore 31 Arrowsmith's Trust 179, 345, 700, 702 Arthur, In re 107 V. Arthur 414 V. Thackinson 863 Asay V. Hoover 103 Ash, In re 91 V. Ash 17, 127 Ashburner v. Macguire 147, 152 V. Wilson 370, 375, 434 Ashby V. Palmer 586, 894, 599 Asher w. Whitlock 61 Ashley v. Ashley 280, 283, 801 V. Waugh 198, 198 Ashling V. Knowles 480 Ashmore, In re 81, 82, 110, 810, 844 Ashton V. Adamson 798 V. Jones 220 V. Langdale 211, 222, 223, 226 V. McDougal 40 V. Wood 212, 713 Ashwell V. Lomi 36 Ashworth v. Outram 40 Aspinall v. Andus 481, 828 V. Bourne 222 V. Duckworth 269, 842 i;. Petvin 639 Assay v. Hoover 78 Astell, In re 91 Aston V. Wood 384, 566 Astor, In re 18, 98 Astley V. Essex 840 Atchison v. Lindsey 2 Atherton v. Langford 685 Atkins V. Atkins 486 V. Hiccocks 835, 840, 851 Atkinson v. Jones 765 V. Paiee 548 0. Turner 843 Atkyns v. Atkyns 654 Atlee V. Hook 40 Attenborough v. Attenborongh 291 Att.-Gen. v. Acland 233 V. Andrew 240, 244 V. Aspinal 211 V. Baines 116 V. Baxter 207, 214 V. Beatson 3 V. Boultbee 244 V. Bouwens 8 V. Bovill 210 V. Bowles 233 V. Bowyer 240, 693, 707 1). Brackenbury 684 V. Bristol 578 V. Brunning 598 1. Buller 695, 696 V. Burdett 219 V. Bury 818 V. Caldwell" 221 V. Campbell 8 V. Carlisle 211 TABLE OF CASES. XV Att.-Gen. v. Chester 232, 251 ■.. Clarke 210 I . Cock 207, 210 V. Cockerel! 3 I . Comber 208, 210, 214 V. Coopers' Co. S73 !'. Davies 227, 231, see V. Dimoiui 3 V. Doyley 218, 553, 709 V. Drapers' Co. 573 I' Dnimmond 233, 423, 425 0. Duteli Reformed Church 250 u. Eastlake 208 1. Exeter 210 u. Federal St. Meeting House 208 V. Fishmongers' Co. 205 V. Fletcher V. Forbes V. Giles t. Gill V. Gladstone V. Glegg V. Glynn V. Goddard V. Goulding D. Graves V. Grote V. Guise V. Haberdashers' Co 244, 250, 454 9 223, 242 256 210, 250 214 244 229 233, 244, 366, 767 221 425 244 211, 317, 572 221 209 598 598 244 207, 210 233. 366 V. Harley V. Heelis V. Henniker V. Hertford V. Herrick V. Hickman V. Hinxman V. Hodgson 228, 230, 231, 233, 250 V. Holford 597 V. Hope 3 V. Hull 230 V. Hurst 221 V. Ironmongers' Co. 244, 246, 573 !• Jackson I. Johnson V. Johnstone V. Jones V. Jordan V. Kell V. Kent V. Lanes V. Lepine V. Lloyd I'. Lomas V. London 1'. Lonsdale V. Mangles V. Matthews v. Jletcalfe V. Mill V. Jliller V. Milner 3 572 763 21, 23, 24 229 210 15 207, 210 250 136, 183, 185 598 207, 211, 244, 246 209. 211 586, 597, 598 244 598 240 255 345 Att.-Gen. u. Moor V. Mountmorris I'. Munby V. Myrick r. Najiier V. Nash !'. Northumberland t. Oglander V. Oxford 232 V Parnther V. Parsons V. Pearson V. Pickard V. Pottinger V, Poulden V. Power V. Pratt B. Price V. Ramsay V. Ranee V. Rowe V. Rye I'. Shrewsbury V. Sibthorpe V. Sidney Sussex Coll V. Sinicox V. Skinners' Co. V. Smith r. Southgate V. Sparks V. Staff V. Stepney V. Stewart V. Sturge V. Sutton V. Syderfen V. Tancred V. Tonna V. Trinity Church V. Tyndall t'. Vigor 50, 57, 59, 152, 655, 698, V. Vint I/. Vivian V. Wallace V. Wansay V. Ward V. Wax Chandlers' Co V. Webster V. Weymouth V. Whitchurch V. Whiteley i^. Whorwood V. Wilkinson V. Williams V. Wilson f. Wiltshere r. Winchelsea i\ Windsor Atwood t'. Cornwall Attree v. Attree r. Ha we Attridge, In re Attwater v. Attwater 541, 233 237 232 221, 691 3 209 214 244, 250 , 245, 240 38 2:^8, 232 207 598 14, 15 304, 312 240 3 214 697 244 14 219, 378 211 378, 379 211 597 573 597 236 572 3 211, 233 242 207, 250 554 244 240, 250 672 219 236, 250 150, 151, 661, 677, 707, 708 244 205 866 573 96, 185 573 209. 293 226, 227 2-i3 2JS 240, 24y 210, 67SI 227, 2:50 250, 573 7(U 221, 2:;ii 56-5 144 719, 728 226 87 794, 816 XVI TABLE OF CASES. Attwell V. Attwell 588 Attwood V. Alford 397 Auburn Sem. ii. Kellogg 472 Audley's Case 19 Auldjo V. Wallace 747 Aulick V. Wallace 486 Aurand v. Wilt 99 Austen v. Graham 38 Austin V. Cambridgeport Parish 6ii3 V. Willes 31 Auther v. Auther 424 Avelyn v. Ward 332, 803 Avern v. Lloyd 282, 283 Avery v. Chappell 414, 417 u. Pixley 78, 135, 141 Avison V. Simpson 759 Awbrey v. Middleton 722 Ayer v. Ayer 798 Aylett V. Aylett 62 Ay res v. Methodist Church 219 V. Waite 708 Ayrey v. Hill 34, 35, 58 Axford, In re 35 B, Babb V. Harrison Back V. Kett Bacon, In re V. Gassett V. Proctor Baddeley v. Baddeley V. Gingell Badger v. Lloyd Badham v. Mee Badrick v. Stevens Bagley v. Blackman V. Francis Bagshaw v. Spencer Bagster v. Fackerell Bagwell V. Dry V. Elliot Bailey, In re V. Bailey V. Boult V. Lloyd !'. Stiles Baily, In re V. Duncan Bain v. Lescher 21 322 92 162 276, 306 40 378, 423, 795 255, 262, 661 400 147 80 6 820 631 339 81, 193 43 2, 6, 20, 31, 78 188 681 31 176 458 343 Bainbridge v. Ashburton V. Bainbridge V. Cream Baines v. Dixon Baird v. Baird Baker v. Batt u. Butt V. Clarke Institution V. Dening V. Dodson V. Parmer V. Hacking V. Mason V. Morley V. Newton 697 770 805 798 472, 476 207 80,82 98 766 60 759 388 356 Baker v. Sutton 208, 211, 228, 240 Baker's Will 35 Baldwin v. Baldwin 181, 228, 230, 242, 378 V. Parker 35, 38 V. Rogers 273, 829 Balfour v. Scott 2, 9 Ball, In re 523 Ballard v. Ballard 338 V. Carter 156, 707 Baltimore v. Williams 21 Bamfield v. Popham 531, 554 Bamforth v. Bamforth 390 Bancroft v. Ives 123, 129, 417 Bangham, In re 18 Bangs V. Smith 676 Bankes v. Holme 256, 258, 262 Banks v. Banks 146 V. Braithwaite 188 V. Denshaw 668 V. Goodfellow 38 V. Holme 800 V. Thornton 143, 326, 329, 761 Bannatyne v. Bannatyne 37 Bannerman v. Clarke 699 Baptist Association v. Hart 213, 219 Barber, Ex parte 699, 702 V. Barber 342, 747 V. Wood 441 Barclay i: CoUett 740 V. Maskelyne 178, 185, 770 Barden, In re 28 Bardswell v. Bardswell 390 Barford v. Barford 78 ». Street 392 Barker v. Barker 879 V. Comins 38 V. Lea 857, 858 V. McPerran 31 V. Rayner ' 147 V. Suretees 506 Barksdale v. Gilliat 187, 424 V. White 473 Barkworth v. Young 354 Barlow v. Grant 397 V. Orde 6 V. Salter 281 Bamaby v. Tassell 750, 756 Barnacle v. Nightingale 492 Barnard v. Bailey 879 Barnardiston v. Carter 820 Barneby v. Tassell 27 Barnes v. Allen 837, 861 V. Barnes 86 V. Brashear 2 V. Crowe 189, 195 V. Grant 388, 399 V. Irwin 41 u. Rowley 397 V. Vincent 12, 80 Barnet v. Barnet 536, 850 Barnett, In re 207, 250 V. Blake 43 V. Tugwell 340 Barnitz v. Casey 866 TABLE OF CASES. XVU Barnum v. Barnum Barr v. Graybill Barrack v. McCullock Barraclough b. Greenhough Barrett o. White 762, Barrington v. Hereford «. Liddell 309, Barrow v. Methold V. Wadkin Barrs v. Fewkes 404, Barry v. Butlin V. Crundall Bartholomew, In re V. Henley Bartlett v. King 219, 371 V. Nye Barton v. Bigelow B. Cook V. Croxall B. liobins Barwick b. MuUings Basan v. Brandon Baskin b. Baskin Bassett's Estate, In re Bassil V. Lister Bastin v. Watts Bate V. Amherst Bateford u. Kebbell Bateman b. Hotchkin 0. Mariner B. Pennington Bateman's Trust, In re Bates V. Dewson B. Webb Batt V. Arms Batteley v. Windel Battersbee, In re Battison v. Bromley Battle B. Speight Batton B. Watson Battyl V. Lyles Baud B. Fardell Baugh 0. Read Baxter, In re V. Abbott V. Bowyer V. Brown B. Dyer Bayley, In re V. Bailey I). Bishop Baylis v. Att.-Gen. f. Sayer Bayne v. Crowther Baynes v. Prevost Beachcroft v. Broome Beal V. Wyman V. Symonds Beales v. Crisford Beall V. Cunningham V. Deale B. Mann Bean b. Halley Beane b. Yerby Bear v. Bear VOL. I. 65, 288 290 1 31,78 1 40 29 771 772, 773 349 310 311 312 417 68 565 569 570 36,37,38 1 179 839, 854 24 472, 473, '481 207, 214, 219 800 397 151, 152 35 105 152 80 358 776 314 317 806 434 837 843, 844 276, 306, 317 81 18 43 504 803 359 565 93 72 51 193 327 130 133 612 431 850, 860 38 504 223 225 152 79 17 398 841 244 441 87 397, 400 841 509 372 68 770 115 505 36, 81 1 554 So, 81 1 787 Beard b. Beard 165 u. Rowan 69, 864, 865 V. Westcott 252, 284, 288, 302 Beardsley v. American Miss. Soc. 431 Bearpark b. Hutchinson 62 Bear's Case 75 Beasley b. Macdonald 715 Beaty b. Beaty 102 Beatty v. Lalor 769 Beaubien v. Cicotte 36,38 Beauclerk v. Mead 179 Beaufoy, In re 619 Beaumont v. Fell 441 B. Keim 146 V. Oliveira 209, 237, 238, 242 Beaumont's Trust, In re 222 Beavan, In re 140, 142 Bebb B. Penoyre 719 Beck B. Burn 842 Beckett v. Harden 97, 177 B. Howe 108 Beckford v. Parnecott 195 Bective v. Hodgson 314, 653 Bedell b. Constable 34 Bedford, In re 142 V. Bedford 623 Beech v. St. Vincent S08, 309 Beekman b. Bonsor 207, 250 Beevor b. Partridge 398 Belaney B. Belaney 748 Belden v. Carter 168 Belk V. Slack 828 Bell V. Armstrong 31, 443, 471 V. Fothergill 141, 146 B. Hewitt 160 B. Phyn 520, 521 Bellis, In re 697, 703 Belt V. Mitchelson 798 Bempde b. Johnstone 2,14 Bender b. Dietrick 532 Bending v. Bending 461, 465 Benet College v. London 66 Bengough v. Eldridge 96, 252, 504 Benn v. Dixon 612, 827 Bennett, In re 829 i^. Aburrow 679 B. Bachelor 756, 759 B. Bittle 780, 781 V. Blair 223 B. Davis 410 V. Hayter 245, 248, 376 B. Jackson 98 V. Lowe 280, 647 B. Marshall 4.S3 B. Sharp 31, 81, 87 V. Slierrod 130, 134 V. Tankerville 160 Bennett's Trusts, In re 273 Benoist b. Murrin 38 Benson v. Benson 99, 143 ■;. Whittam 404 B. Wright 320 Bentinck v. Portland 273 Bentley v. Meech 513 Benyon v. Maddison 837, 843 XVIU TABLE OP CASES. Berkeley v. Swinburne 405 850 Bizzey V. Flight 91, 92, 450 Bernal v. Bernal 5,6 Black V. Ellis 35, 418 Bernard v. MinshuU 391, 396, 397, 552, V. Hill 431 684 ,687 763 V. Jobling 145 V. Mountague 840 Blackburn v. Edgley 554, 780 Bernasconi v. Atkinson 381 437 Blacket v. Lamb 296, 44!) Bernett v. Taylor 31 Blackman, In re 380, 437 Berry v. Uslier 625 Blackwell, In re 371 Bessant v. Noble 747 V. Bull 409 536, 545 Best V. Conn 302 Blagge V. Miles 130 676, 727 (J. Standeven 676 Blagrove v. Hancock 265, 806 Bethel v. Moore 170 Blague V. Gold 377, 785 Betliell V. Moore 130 132 Blaiklock v. Grindle 123, 447 Bethlehem i\ Persev. Co. 208 Blaine v. Chambers 782 Betlmn v. Dinmure 31 Blair, In re 79 Bethune v. Kennedy 614, 616 618 619 Blake, In re 545 Bertie v. Falkland 410 V. Bunbury 446, 451, 458 Bettisworth's Case 779 u. Hawkins 423 Belts V. Jackson 133, 134 V. Knight 81,87 Betty V. Moore 879 V. Luxton 64 Beverley v. Att'.-Gen. 219 573 V. Shaw 758 Beverley's Case 35 Blakemore, In re 850 Bibb V. Thomas d. Mole 130 Blakeney v. Blakeney 399, 553 Bibbens i;. Potter 364. Blakey v. Blakey 35 Bibby v. Thompson 399 Blamire v. Geldart 476, 841 Bibin v. Valker 528 Blanchard v. Blanchard 87, 132 Bickford v. Clialker 846 851 Bland v. Lamb 319 758, 762 Bickleyu. Bickley 76 V. Wilkins 347, 349 Biddle v. Perkins 292 V. WiUiams 857, 860 Biddle's Appeal 385 Blaney v. Blaney 327 339 351,646 Biddies v. Biddies 405 Blanford !;. Fackerell 233, 240 Biddulph V. Biddulpli 586 599 Blann v. Bell 616, 617, 798 Bide V. Harrison 770 Blease v. Burgh 293, 818 Biederman v. Seymour 75 Blennerhasset-r. Day 80 Bigelow V. Gillott 1.35 Blethen v. Dwinal 708 Bigge V. Bigge 142 Blewitt, In re 140 Biggs V. Andrevvs 589 V. Blewitt 38, 171 Eilhng V. Billing 872 Bligh V. Brent 225 Billinghurst v. Vickers 36 Blinkliorn v. Feast 572 Billingsley o. Harris 339 Bliss V. American Bible Soc. 207 V. Tongue 338 V. Lee 31 V. Wills 844 V. Smith 499 Bingham's Appeal 677 Blocher v. Hostetter 86 Birch V. Dawson 753 Blommart v. Player 454 Birch V. Wade 386 Bloomer v. Bloomer 2, 123 Birchard v. Scott 208 Blundell v. Chapman 516 Bird V. Bird 34 V. Dunn 318 V. Harris 567 569 V. Gladstone 423 436 437, 442 u, Hunsdon 545 Blundell's Trusts, In re 205, 208 V. Maybury 843 Blunt V. Clitherow 6G6 Birds B. Askey 840 V. Gee 458 Birdsall v. Applegate 716, 719 Board of Education v. Ladd 318 V. Hewlett 338 835 Boardman i: Boardnian 38 Birkett, In re 359 370 I'. Woodman 38 Birkhead u. Bowdoin 141 Bodenham v. Pritchard 783 Birks i'. Birks 176 425 Bogardus i'. Clark 27,31 Birmingham v. Kirv^an 443, 458, 459, Bogert V. Hertell 665 584, 585 4ti0 Bohanon v. Walcot 132, 137 Birt, In re 107 BoUlry v. Paris 88 Birtwliistle v. Vardill 2 BoUinif V. Boiling 227, 887 Bishop V. Bishop 327 338 Bolton v. Bolton 808 V. Curtis 51 V. De Peyster 676 V. Sharpe 33 Bonard's Will 38 V. Wall 40 Bond, In re 388 Bishop's Fund v. Eagle Bank 208 V. Seawell 79, 84, 85 TABLE OP CASES. XIX Bonelli, In re 6 Bonner v. Bonner 96, 186 u. Matthews 34 Bonser v. Bradshaw 28 V. Kinnear 388 391, 395 Booclier i'. Samford 782, 794 Boofter v. Hogers 99 Booker «. Allen 200 V. Booker 866 Boon V. Cornforth 481 537, 751 Boosey v. Gardener 833, 834 Booth u. AUington 766 0. Booth 837 840, 851 ■ V. Carter 232 V. Coulton 616 Bootle, In re 28 V. Blundell 81 Bor V. Bor 446, 469 Boraston's Case 805 843, 849 Boreham v. Bignall 325 Borlase v. Borlase 37, 130 Borrell v. Haigh 665 Borton v. Borton 864 I'. Dunbar 771 Bosley v. Bosley 148, 176 Boson V. Statham 233 Bostick V. Lawton 505 Botliamley v. Sherson 320, 332 Botsford V. Burr 417 Boudinot v. Bradford 130 136, 168 Boughey v. Moreton 137 Boughtou V. Boughton 448 u. James 302 306, 840 V. Knight 38 Boulcott V. Bouloott 146, 177 Boulton V. Beard 861 V. Pitcher 843 Bourne !'. Bourne 163 K. Buckton 309 311, 313 Bovey v. Smith 1 Bowaman v. Reece 1 Bowden v. Bowden 617 V. Mount 615 V. Laing 400 Bowditch V. Andrew 266, 504 Bowen 0. Barlow 692 u. Bovv^n 444 u. Johnson 148 Bowers v. Porter 503, 798 Bowes, Ex parte 698 t/. Bowes 193, 198 Bowker o. Bowker 835, 837 Bowman v. Millbanke 357, 358 Bowra v. Rhodes 632 Box V. Barrett 446, 450, 527 Boyce v. Boyce 366 V. Banning 292 Boyd V. Boyd 24, 26, 36 0. Cook 31, 130, 170 b. Eby 38 V. Latham 176 V. McLean 417 Boyer v. Frick 98 Boyes v. Bedale 2 V. Cook 677 Boylan v. Meeker 35 Boys V. Boys 614 V. Mo'rgan 767 V. Williams 425 Boyse v. Rossborough 35, 36 Brackenbury v. Gibbons 265, 819 Brackett v. Norton 6 Braddock, In re 84, 85 Bradford v. Belfield 711, 713, 728, 735 c. Foley 814, 825, 831 Bradish v. Gee 599 V. Gibbs 41, 677, 679 Bradley v. Barlow 820, 860 V. Bradley 410, 418 V. Cartwright 553 V. Gibbs 176 V. Holdsworth 225 V. Lowry 2, 12 V. Westcott 679 Bradshaw v. Bradshaw 378, 437 V. Ellis 632, 786 V. Tasker 208 . Herron V. Sturt Burthe v. Dennis Burton v. CoUingwood V. Conigland V. Gowell V. Hillyar V. Horton V. Mount V. Newbery 19, Burtonshaw v. Gilbert Burtt, In re Burwell v. Corbin Bush V. Cowen V. Sheldon Butcher v. Kemp V. Leach Bute V. Harman o. Stuart Butler V. Baker V. Benson V. Butler V. Gray V. Greenwood Butricke a. Broadhurst Butterfleld v. Hamant V. Raskins Button V. Araer. Tract Buzby's Appeal Byam v. Munton Byas V. Byas Byne v. Blackburn V. Currey Bynum v. Bynum Byrd, In re Bym V. Godfrey Byrom v. Brandreth C. Cadburyi-. Smith 222 Cadell V. Palmer 252, 255, 269, 280, 290 866 179 68 150 86, 87, 143 265 370 866 280, 668 133 220 431, 645, 652 565 130, 132, 133, 168 65 616, 692, 594 186 208, 251 73 265 518, 552 38 188, 189 176 385 309, 312, 313 427 18 863 172 618 644 615, 616 117, 190, 460, 651 130, 135, 137 714 31,81 684 31 460 837, 848 860 386 61 108 252, 255, 318, 324 552, 681, 873 178 443 486 506 See. 378, 417, 431 320 627 666 405 188 18 82, 84, 89, 110 415 770 xxu TABLE OF CASES. Cadge, In re 144, 759 Carrington v. Payiie 31, 180, 181, 183 Cailman i;. Cadman 163, 748 Carroll v. Carroll 51 ,99, 326, 327 Cadogaii v, Kennett 880 , V. Norwood 50 Oadywold, In re 125 Carte v. Carte 199, 321, 322, 339 Cafe V. Bent 616, 618 Carter v. Balfour 378 Cagney v. O'Brien 417 .;. Bentall 255 Cain V. Teare 851 V. Church 581 Caldecott v. Caldecott 611 613, 61C V. Green 228, 250 Caldwell v. Kinkead 885, 837 V. Haswell 644, 651 V. Willis 266 486, 504 V. Taggart 767 Calhoun v. Furgeson 378, 776 V. Thomas 51, 147 Calloway v. Doe 2 Cartledge, In re 836 Calm, In re 431 Cartwright v. Cartwright 87,38 Calthorpe v. Gough 823 V. Shepheard 179 Calverlye's Case 41 Gary v. Abbott 205, 207, 244 Calvert v. Armitage 23, 237 V. Gary 386 V. Davis 35 Carver, In re 80 V. Johnston 365 V. Bowles 296, 449 Camac's Trust, In re 399 V. Burgess 859 Cambridge v. Rous 286,645,646,759, Gasborne v, Scarfe 689, 695 762, 828 Case V. Drosier 259, 275 Camden v, Benson 400 Casement v. Fulton • 110 Camfleld v. Gilbert 725, 731 738, 745 Casey's Case 12 Camoys v. Blundell 383, 442 Gasmore, In re 106 Campbell v. Bouskell 371, 481 Gassell v. Gooke 546 u. Brownrigg 874 Gassels v. Vernon 31 V. Cowdrey 612 Casson v. Dade 88 V. French 183 Gasterton v. Sutherland 653 V. Garven 31 Castle V. Castle 400 V. Harding 281 u. Eate 582, 839 u. Lucy 28 V. Fox 327, 880 V. Prescott 758 Castleton v. Turner 419 V. Radnor 29, 240 Gastner's Appeal 503 V. Rous 284, 285 Gaswall, Ex parte 677 V. Sandys 64 Catclimay v. Nicholas 879 V. Sheldon 2 Gate V. Cranor 769 Canfield v. Bostwick 46, 818, 326, 409 Gathrow v. Eade 51 Cant's Estate 163 Gatlett V. Gatlett 80 Cantley, In re 700 Catlin V. Brown 255, 269, 270, 272 Capel V. Girdler 52 Gaton V. Caton 18 V. Robarts 431 V. Ridout 39 Caplin, In re 552, 688 Gator V. Gator . 186 Car V. Ellison 58 Gattley v. Vincent 831 Card V. Grinman 168 Cattrall, In re ' 120 Garden v. Tuck 779 Caulfield v. Maguire 611 Carder v. Fayette Co. 444 Cavan v. Pulteney 444, 446, 454 Careless v. Careless 435 Gave i>. Cave 424 Carey, In re 122 V. Holford 50, 150 V. Askew 101 , 108, 447 Cavendish v. Cavendish 751 V. Dennis 21 Gavett's Appeal 78 Carleton v. Griffin 115 Gawood V. Thompson 23, 571 Carlton v. Carlton 112 Cawthorn, In re 18 V. Griffin 84 V. Haynes 36 I). Thompson 799 Cesar v. Chew 412, 417, 418 Came v. Long 212, 293 Chace v. Ghace 418 Carnegie v. Morrison 6 Ghadwick v. Greenall 860 Carpenter, In re 706 Ghatfee v. Baptist Miss. Soe. 82,86 V. Heard 340 , 505, 506 Chaffers v. Abell 837, 841 Carr v. Collins 631, 632 Chalmers v. Storil 462, 464 465 466, 761 V. Ellison 599, 665 Ghaloner v. Butcher 599 V. EJrroU 256, 866 Chamberlain v. Chamberlain 2, 207 V. Living 400 V. Stearns 209 V. Lowe 5 V. Turner 835 377, 788 V. M'Camm 36,37 Chamberlayne v. Brookett 231 248, 250 Carrick v. Errington 565, 574 Chambers v. Atkins 899 TABLE OP CASES. XXUl Chambers v. Brailsford 483 565 576, 583 Choppin V. Dillon 139 t). Chambers 612 Choyce i: Ottey 761 (,. Hutchinson 687 Christian, In re 82 V. McIJaniel 19,20 Christie v. Gosling 275 V. Minchiii 409 V. Ovington 709 V. Queen's Proctor 87 Christmas v. Whingates 141, 144 V. Wilson 865 Christopher v. Christopher 124 V. Yatraan 38 Christ's Hospital v. Grainger 2a2 Chamney, In re 84 Chrystie v. Pliyfe 500, 511 Ohampney v. Davy 766 Church V. Bull 454 Chance v. Chance 848 V. Crocker 122 Chandler «. Barrett 38 u. Hubbart 6 u. Ferris 37,38 V. Kemble 296, 449 V. Howell 222, 226 V. Mundy 661, 662 Chandless v. Price 473 Church Building Soc. v. Coles 242 Cliandos v. Talbot 834, 837 Church's Will, In re 40 Chapin V. School District 208 Churchill V. Churchill 449 Chaplin v. Leroux 75 V. Dibben 39 679, 724 Chaplin's Trusts, In re 269 Churchman v. Ireland 322, 448 Chapman, In re 146, 189, 191, 411 Cilley V. Cilley 80 V. Blisset 263 Circuitt V. Perry 527, 651 V. Brown 298, 359, 366, 367, Clancy, In re 230 369, 370 Clapp V. Fullerton 38 V. Chapman 756 V. Stoughton 65, 837 V. Gibson 664 Clarendon v. Barham 693 V. Gilbert 481 ClaringbuU, In re 120 V. Hart 665 669, 670 Clark V. Clark 77, 79, 828, 880 V. Prickett 720 V. Dounorant 86 a. Reynolds 772 V. Eborn 170 Chappel V. Avery 802 V. Fisher 27, 38 Chard v. Tuck 779 V. Hyman 716, 7-21 Charlton v. Hindmarsh 83, 89 110, 111 ... Piatt 288 V. Miller 161 0. Phillips 269, 342 Charman v. Charman 753 V. Smith 134 Charter v. Charter 381, 382, 437 V. State 38 Chase v. Cockerman 473 V. Taylor 212, 246 247, 248 0. Kittredge 80, 82, 36, 87, 89 V. Wright 31 V. Lincoln 31 Clark's Will 141 V. Plummer 385 Clarke, In re 78 Chatfield v. Berchtoldt 8 I: Abbott 691 Chatteris «. Young 188 V. Burgh 154 Chaunter v. Chaunter 31 V. Burgoine 162 Chaworth v. Hooper 887 w. Butler 178, 823 Cheeney v. Arnold 31 V. Clemmans 341 Cheese v. Lovejoy 142 V. Clemmens 4i)9 Cheney's Case 410 V. Colls 521, 523 Cherry v. Mott 237, 246, 248 V. Dunnavant 31 Chestnut v. Strong 613, 837 V. Franklin 631 CHiester o. Chester 242, 654, 655, 791 u. Guise 4ol V. Urwiek 417 V. Hilton 569, 671 Chevaux v. Aislabie 842 V. Lubbock 827 Chew's Appeal 807 V. Scripps 131, 132 141, 142 Chichester v. Biekerstaff 600 V. Smith 75, 865 Child V. Ellsworth 29 V. The Panopticon 710 V. Elsworth 499 Clarke's Estate, In re 115,212, 320, 327 Children's Aid Soc. v. Loveridge 35 ' Clarkson v. Clarkson 133, 135 Childs V. Russell 835 Clavering v. Ellison 480 Chinn v. Respass 532 Clay V. Hart 458,-584 Chipchase v. Simpson 616 Clayton v. Greyson 421 Chisholm v. Ben 80 V. Lowe 478 Chitty V. Parker 565, 632 V. Nugent 421 Cholmley's Case 207 17. Somers 854 Cholmondeley, In re 598 Clements v. Cassye 730 V. Cholmondeley 386, 391 V. Kyles 326 Cholmondley v. Clinton 75 V. Paske 492 XXIV TABLE. OP CASES. Clementston v. Gandy 420, 452, 454 Collard v. Sampson 81 Clencli V. Cudmore 34 Collett y. Collett 613 Clendening v. Clymer 147 Colleton V. Garth 469 Cleoburey v. Beckett 172, 1»2 Col ley, In re 850 V. Cleoburey 176 Collier y. Collier 46 Clere's Case 676, 677 y. Langebear 92 Clergy Soc, In re 245, 248, 376, 379, 441 y. Kivaz 6,7 Cleveland o. Lyne 38 y. Squire 753, 772 Cliffie V. Gibbons 717 Collier's Will 676, 799, 806 807, 835 Clifford 0. Arundell 769 Collin V. CoUin 46 V. Clifiord 693 Collingwood u. Pace 67,70 11. Francis 264 V. Row 57 V. Koe 503 Collins V. Collins 616 617, 775 Clifton V. Haig 879 V. EUiott 31 V. Murray 37 t. Janey 443 V. Robeson 35 V. Nichols 31,82 Clingan v, Mitcheltree ' 148 V. Wakeman 347, 565, 624, 626, Cloberry c. Lampen 837 632, 635, 638, 639, Clogstoun V. Walcott 145, 681 640, 647 Clough V. Clough 122, 123, 155, 324 CoUinson v. Girling 419 Cloves B. Awdry 688 V. Pater 221 Clowes V. Clovfes 762 Collis V. Robins 667, 626 Cluft V. Cluff 222 CoUison's Case 219 Clulow's Trusts, In re 311, 312 CoUyer v. Burnett 250 Coales, In re 3 Colpoys y. Colpoys 425, 430 Coalter v. Bryan 74 Colshead, In re 177, 747 Coard v. Holderness 737 Colson, In re 397, 576 Coates V. Hart 524 Colt y. Hubbard 806, 854 V. Hughes 31 123, 127 Colton V. Ross 27 V. Needham . 581 Colvin V. Fraser 27 V. Woodworth 708 y. Frazer 134, 137 Coates's Appeal 391 Combe v. Hughes 312, 874 Cobbold V. Baas 102 Combe's Case 38 Cock V. Cooke 25, 545 Comber, In re 681 Cockayne, In re 133 Combs y. Jolly 80,81 V. Harrison 881 Comfort y. Mather 838 409, 431 Cockcraft v. Eawles 36 Commissioners of Charitable Dona- Cockran v. Cockran 820, 613 tions y. Devereux 3 Cockrell v. Coekrell 12, 15 Commissioners of Inland Revenue v. Cocks V. Manners 210 211, 212 Gordon's Executors 15 Cockshott !). Cockshott 536 Commissioners of Donations v De CofSn V. Coffin 36, 80, 87 Clifford 252 Cofield V. Pollard 200 337, 677 Commonwealth v. Kiel 339 Cogan V. Stephens 620 V. Martin 69 Cogbill V. Cogbill 144 V. Nashe 838, 341 Cogdell V. Cogdell 193, 443 689, 694 V. Rich 38 Coggeshall v. Pelton 209 Company of Pewterers v Christ's Cogswell ". Armstrong 651 Hospital 257 Coit V. Patchen 35 Comport V. Austen 266 849, 850 Coke V. Bullock 476 Compton V. Bloxham 29 Colberg, In re 133 V. Oxendon 693 Colburn v. Hadley 339 Comstock V, Hadlyme 38 ,74, 412, 414, Cole, In re 188 417 V. Fitzgerald 753, 758 Conduitt y. Soane 582 V. Rawlinson 500 Cong. Soc. V. Hatch 878 V. Scott 327, 334 Coningham v. Mellish 665, 670 V. Sewell 256, 258 262 263, 292 Conklin y. Conklin 255 V. APade 181 484, 709 Connolly v. Pardon 431 Colegrave v. Manby 321 Conolly V. Farrell 401 Coleman, In re 88, 89, 564 Conover v. Chapman 2 V. Robertson 36,88 Constable y. Bull 864 Cpleman & Jarrom, In re 342 Constantine v. Constantine 472, 473 Coles V. Treoothick 80 Converse v. Converse 88 Colgate V. Colgate 461 Converse v. Wales 417 CoUagan v. Burns 134 Cook V. Cook 632 TABLE OF CASES. XXV Cook V. Farrand 363, 365 Courtoy v. Vincent 187 V. Gerrard 537, 647 654, 798 Cousins V. Schroder 842 V. Holmes 473 Coutts V. Ackworth 447 V. Hutchinson 565 Covenhoven v. Shaler 472 V. Jaggard 748 V. Shuler 472 486, 500, 880 V. Oakley 751 Coventry v. Lauderdale 523 V. Parsons 80,81 CoTcrdale v. Lewis 97 V. Stationer's Co. 846 347, 565 Coward, In re 40 Cooke, In re 141, 142 V. Marshal 175 V. Bowler 282 Cowden v. Dobyns 31 V. Cholraondely 37, 798 Cowdin V. Perry 806 V. Crawford 20, 710, 713 714, 715 Cowley V. Hartstonge 588, 594 V. Cunliffe 683 Cowling V. Cowling 770 V. Dealey 163 Cowman v. Harrison 401 V. Lambert' 79 Cowper V. Mantel! 200, 398 V. Mirehouse 507, 513 V. Scott 446, 887 Cookes, In re 592, 594 Cowx V. Foster 681 V. Hellier 446 Coxw. Bennett 164, 327, 329, 785 Cookson V. Cookson 588, 601 0. Chamberlain 685 V. Hancock 175, 177 V. Cox 610 V. Reay 588, 601 V. Davie 231, 232 Coombes v. Gibson 666 V. Marks 879 Coombs, In re 107 Cox's Note 642 V. Queen's Proctor 40 Cox's Will, In re 84,89 Cooper, In re 147 Coxe V. Bassett 96 V. Bockett 84, 87, 89, 110 143, 144 Cozzens's Will 80 V. Cooper 445, 447, 449 584, 863 Crabb v. Crabb 454 V. Day 186, 189 Crabtree v. Bramble 595, 599 V. Maodonald 39 Cradock v. Owen 64, 69, 571, 625 V. Pitcher 663 Grafton v. Frith 210, 229 V. Thornton 401 Craig V. Beatty 397, 565 V. Williams ' S6i V. Craig 302, 312 Cooper's Estate, In re 18 V. Leslie 69, 584 Cooper's Trusts, In re 845, 347 V. Seobie 704 Cope, In re 83 V. Wheeler 617, 618 V. Wilmot 359 Craighead v. Given 339 Coppin V, Coppin 839 Craigie v. Lewin 12,15 V. Dillon 105 Cramer v. Crumbaugh 36 V. Fernyhough 195, 321 Cramp V. Playfoot 227, 370 Corbet's Case 877 Crane v. Crane 467 Corbett, In re 872 Cranley v. Dixon 546 Corbyn v. French 232, 245, 246, 618 Cranswick v. Pearson 543 Cormaek v. Copous 851 Cranvel v. Sanders 169 Corneby v. Gibbons 18 Craven, In re 516 Corneck v. Wadman 829 V. Brady 574, 581 Cornelison r. Browning 2 Cravens v. Faulconer 80 Cornelius's Will 78,80 Crawhall, In re 758 Cornick v. Pearce 590 Crawley v. Crawley 312, 313, 610, 611, Cornwell v. Isham 71 612 Cory Society v. Beatty 208 Creagh v. Blood 37 Coryell v. Dunton 677 Creasy v. Alverson 377 Coryton v. Helyar 481 Cregreen v. Willoughby 87 Cosnahan, In re 5 Cremorne v. Antrobus 753 Costabadie v. Costabadie 401 Cresson's Appeal 209, 327, 489 Cotter V. Layer 122, 161 Cresswell v. Cheslyn 171,203 Cotton V. Cotton 616 618, 834 V. Cresswell 74, 232 V. Heath 280 V. Lawson 443, 486 V. Smitliwick 356 Crichton v. Grierson 208 V. Ulmer 38 V. Symes 735, 756 Cottrell V. Cottrell 176 Crickett v. Dolby 837 Couglilin V. Ponlson 38 Crisp V. Walpole 100 Coultliurst V. Carter 823, 851 Crispell v. Dubois 36 County Commrs. v, Rogers 208, 210 Crissman v. Crissman 476 Court V. Buckland 627 Crittenden v. Brainard 708 Courtier v, Oram 296, 870 Crocker v. Crocker 418 XXVI TABLE OP CASES. 401, 402 87 86 345, 679 2, 99 7, 118, 143 285 708 473 688 516, 767 548 236 193 117, 189, 190, 200 20 27, 31 318, 417 68 551 474 444 186, 542 614, 617 655 706 31 Crockett v. Crockett Croft V. Croft V. Pawlett V. Slee Crofton V. Ilsley Croker v. Hertford Crompe v. Barrow Cromwell a. Banks Crone v. Odell Cronin v. Roche Crooke v. De Vandes Cropton V. Davies Crosble v. Liverpool V. McDouall V. Maodoual Crosby v. Mason Crosland v. Murdock Crosley a. Clare Crosse v. De Valle Crossling v. Crossling Crossman v. Bevan Crostwaight v. Hutchinson Crowder v. Clowes Crowe V. Crisford V. Noble Crowe's Mortgage, In re Crowell V. Kirk Crowley v. Crowley Crbwninshield v. Crowninshield 38 Crozier v. Crozler 480, 553, 581 Cruger v. Heyward 654 Cruse 0. Barley 347, 565, 623, 632, 637, 640, 642, 647, 837 o. Howell 343 Crutclier v. Crutcher 77 Cruwys v. Colman 651 Cryps V. Grysil 699 Cudney v. Cudney 35 Cud worth 0. Hall 879 Cuff V. Hall 692 Cull V. Showell 445 CuUey V. Doe 50 V. Doe d. Taylerson 50 Culpepper v. Aston 565 Culsha V. Cheese 341, 651 Cuming, In re 706 Cumraings «. Shaw 390 Cunliffe v. Brancker 874 Cunningham, In re 82, 83, 145 V. Butler 788 V. Moody 685 u. Murray 762 Cunynghame's Settlement, In re 296 Curling v. May 689 Curnick v. Tucker 390 Curre v. Bowyer 160 Current v. Current 632 Currie v. Bowyer 65 V. Pye 221, 236 Curteis v. Kenrick 677 V. Wormald 632 Curtis V. Graham 388 V. Hutton 227, 236, 240 V. Lukin 283 u. Rippon • 392 Cushing V. Aylwln Cust V. Goring V. Middleton Custance v. Bradshaw Cuthbert v. Lampriere Cutter V, Butler Cutto V. Gilbert Cutts V. Haskins D. 99, 327 11 798 598 476 41 146, 171, 173 15 Da Costa v. De Pas 244 Dacre, v. Patrickson 671 D'Aglie V, Fryer . 614 Daintry v. Daintry 557, 560 Dalby v. Champernon 654 Dale V. Bartley 651 V. White 799 Daley, In re 12, 15 Dallow, In re 91, 107 D'Almaine v. Moseley 721, 728, 736 Daly V. Daly 177 Damer v. Janssen 414 Dan V. Brown 31, 130, 133, 411 Dancer v. Crabb 135 Danforth v. Talbot 807 Daniel v. Gossett 831 V. Nockolds 170 V. Warren 615 Daniel's Trusts, In re 493 Darby In re 92 V. Darby 831 u. Mayer 27, 31 Darkin v. Darkin 40 Darley v. Darley 150, 179 V. Langworthy 160, 179 V. Martin 532 Darlington v. Pulteney 18 Darlow v. Edwards 326 Darrington v. Borland 27 Dashiell v. Attorney-General 219, 665 V. Dashiell 879 Dashwood v. Peyton 446, 627, 535 Da Silva, In re ' 17 Daubeny v. Coghlan 3t<3 Davell V. New River Company 68 Davenhill ». Davenhill 845 Davenport u. Coltman 425, 541, 665, 632 671, 717, 731, 741 V. Hambury 516 V, Mortimer 229 Davers v. Dewes 551, 763 David, In re 680 V. Rees 576 Davidson, In re 599, 600 V. Dallas 860 V. Foley 679 V. Procter 842 V. Rook 519 V. Toby 566 Davidson College v. Chambers 65 Davies, In re 108, 684, 687 V. Ashford gOO V. Beavershani 58 TABLE OP CASES. XXVll Davies v. Davies 31, 82, 678 V. Kislier 845, 860 V. Goodhew 893 V. Hopkins 545, 747 u. Richards 829 V. Tliorns 679 Davis, In re 80, 108, 110 V. Barrett 693 V. Bennet 476, 480 V. Boggs 481, 504 V. Calvert 35, 36, 38 V. Davis 31,36 133, 547 V, ELmes 339 V. Estey 2 V. Gibbs 669 0. Kemp 341 V. Nevfton 747, 831 V. Norton 808 V. Parker 863 V. Rogers 35, 101 V. Sigourney 31, 134 V. Williams 77 Davy V. Smith 87 Dawes v. Boylston 2 V. Head 2 Dawkins v. Tatham 187 Dawson v. Bourne 872 V. Clarke 565, 571 u. Dawson 27 V. Hearn 397 V. Killet 835, 837 V. Small 211, 369 V. Smith 134 Day, Ex parte 18 V. Barnard 523 u. Croft 186 V. Daveron 684, 731 740, 743 V. Daveson 717 V. Day 31, 35, 37, 398, 518, 543, 841 V. Trig 378, 673, 785 Dayrell v. Glasscock 31 Deakins v. Hollis 486 Dean v. Dean 31, 80 V. Gibson 761 V. Negleg 35 De Bathe v. Fingal 115 De Beauvoir, In re 164 V. De Beauvoir 587 De Bonneval v. De Bonneval 14 De Bruler o. Ferguson 210 De Chatelain c. De Pontigny 30 De Costa v. De Pas 208 De d'Gord v. Needs 417 Deerhurst v. St. Albans 277 Deering v. Adams 532, 533 o. Tucker 716 Deford o. Deford 288, 646 Deg V. Deg 451 D'Huart v. Harkness 30 Deighton, In re 851 Delhi 0. King 876 Delacherois v. Delacherois 59, 326 Delafield v. Hand 6 V. Parish 87, 38 DeLancey, In re 598 De la Saussaye, In re 173, 190 Dela.y v. Vinal 471 De Lisle v. Hodges 767 Delmare v. Rebello 883 417, 438 Demarest v. Winkoop 708 Dempsey v. Lawsou 175 182, 183 Deneh v. Dench 143 Denison v. Hyde 6 Den V. Ayers 27 V. Bolick 417 V. Cooper d. Wills 705 V. Drew 719, 798 V. English 505 V. Flora 422 V. Johnson 38 V. Kemeys d. Wilklns 785 V. Manners 798 V. JWilton 31, 80, 81, 82 V. M'Mutrie 356 V. Mugway 505 V. Page 280 V. Payne 721 V. Roake 678 V. Satterthwaite 806 V. Taylor 866 V. Trout 533, 747, 760 Denn v. Bagshaw d. Eadcliffe 821 Denne v. Wood 72 Dennis v. Weeks 35 Denny v. Barton 24, 173 Denson v. Beazley 38 Dent V. AUcroft 228, 231 Denton v. Franklin 35, 81 o. Manners 227, 228, 242 Denyer v. Druce 244, 250 Denyssen v. Mostert 18 De Peyster v. Clendining 327, 613, 880 De Rosaz, In re 442 Desesbats v. Berguire 2 Despard v. Churchill 2 De Themines v. De Bonneval 208, 250 De TrafEord v. Tempest 765 Deupree v. Deupree 86, 129 Deveaux v. Barnwell 443 Dew V. Clark 38 Dewar v. Brooke 810 0. Maitland 449 Dewell, In re 110 Dewey v. Dewey 31, 81, 87 V. Van Deusen 707 De Windt v. De Windt 498 Dewitt V. Baley 38 V. Yates 422 D'Eyneourt v. Gregory 576, 653 Dexter y. Arnold 708 u. Gardner 251 Dicken v. Clarke 823 Dickens, In re 92, 93 Dickenson v. Blissett 34 Dickenson v. Dickenson 77, 135 Dickey v. Malechi 31 Dickie v. Carter 82 Dickinson v. Barber 38 V. Purvis 338 XXVlll TABLE OP CASES. Dickinson v. Swanton 136 Doeti. Challis 287, 288, 876 Diuks V. Lambert 551, 693 V. Chapman 733, 735 Dickson In re 86 V. Chichester 452 V. Robinson 458, 464 V. Clarke 647 Diez's Will 18 V. Collins 427, 780 Digby V. Legard 565, 642 V. Considine 800, 807 Dilkes, In re 85 V. Cooke 507, 522, 827 Dilworth's Case 225 V. Cooper 50 Dillaye v. Greenough 565 V. Copestake 213,227 Dillon V. Dillon 64 V. Cranstoun 378, 673, 785 V. Grace 39 V. Cross 19,26 ' V. Harris 91 521, 747 V. Cundall 806 !'. Parker 445,471 V. Dacre 800 Dimes v. Grand Junction Canal Co. 707 V. Danvers 58, 381 V. Scott 606, 607 608, 610 V. Davies 86, 474 Dimond v. Bostook 342 V. Davis 82 Dingle v. Dingle 105 V. Davy 193, 506 Dingwell v. Askew 155 V. Deakin 31 Dinmore, In, re 106 V. Dring 725, 735, 745 Di Sora v. PluUippa 6 V. Earles 725, 745, 750 Ditclibourn v. Fearn 38 w. Edlin 344, 645 Dixon V. Butler 281 V. Evans 115, 118, 183, 728 V, Dawson 625 631, 671 V. Ewart 806 V. Dixon 401 V. Byre 296, 868, 869, 870 V. Gayfere 599 V. Flemming 371 V. Ramsay 2,31 V. Fonnereau 262, 865, 876 V. Sampson 452 V. Ford 831 Dixon's Appeal 135 V. Fossick 649, 655 Doane v. Lake 129 V. Freeman 805 Dobson, In re 18 V. Fyldes 485 ti. Banks 762 V. Gallini 504 V. Bowness 718 728, 729 V. Galloway 787, 792 Dqckum v. Robinson 98, 103 V. Cell 744 Dodd V. Wake 264 V. Gilbert 735 Dodge V. Dodge 458 V. Gillard 424, 730, 792 V. Pond 595 V. Girard 46 V. Williams 210, 220, 250, 595 V. Greathed 787 Dodger v, Williams 251 V. Greening 418, 794 Dbdgson, In re 839 V. Gunnis 280 Dodson V. Green 377 V. Hardy 415 V. Hay 585, 852 V. Harris 81 131, 227 Doe V. Aldridge 212 V. Harvey 473 1). AUcock 500 V. Haslewood 542 V. Allen 415, 425, 433, 438 V. Hawthorn 207 V. Ashley 789 V. Hazlewood 731 V. Barford 123 V. Heneage 866 V. Bartle 58, 657 V. Hersey 70 V. Beauclerk 866 V. Hickman 58 V. Bell 778 V. Hicks 177 V. Bennett 699, 700 V. Hiscocks 418, 422, 486 437, 4-11 V. Beynon 423 V. Hole 200 V. Biggs 472, 473 V. Holtom 419, 783 V. Bird 666 V. Hopkinson 819 V. Bower 674, 794, 796 V. Howell 210. 877 V. Bowling 539, 744 V. Hubbard 781, 788 . Meakin 779 V. White 725 745, 750 V. Meyrick 792 V. Wilkinson 527 824, 832 i>. Micklem 490 V. Willetts 779 V. Mills 72 V. Williams 668 V. Moore 810, 818, 819 V. Wolley 31 V. Morgan 431, 717, 728, 729, 741, V. Woodall 747 865 u. Wright 496 V. Needs 430, 433, 441 V. Wrighte 227 V. Nevill 476 V. Wroot 67 V. Nickless 788 Doglioni v. Crispin 5,6 V. Nowell 293, 811 Doker v. Goff 102 V. Oxenden 418 427, 428, 429 V. Voff 102 V. Palmer 143 Dolan V. Macdermot 209, 217 V. Parkin 792 Dole V. Johnson 716 V. Parratt 692 Don V. Sullivan 244 V. Pattison 78 Donaldson, In re 98 V. Pearce 496 V. Winter 27,31 V. Perkes 133 Doncaster v. Doncaster 604 V. Perratt 258, 263, 280 Donisthorpe v. Porter 693, 694 V. Phillips 798 Donn V. Penny 351 V. Pigott 796 Donner's Appeal 346, 835 V. Pitcher 211, 227 Donohoe v. Lea 160, 163 V. Pott 147 Donohue v. McNichol 266 V. Pratt 731 Donohugli's Appeal 208 V. Rawding 472, 522, 827 Donovan v. Van de Mark 385 V. Roach 875 Doo V. Brabrant 823 V. Roake 678 Doody V. Higgins 516 V. Roberts 378, 423, 744, 795 Doolan v. Smith 527 V. Roe 431 Dorksey v. Dorksey 565 V. Rout 718 719, 720, 739 Dormer y. Thurland 80, 81, 89 V. Royle 544 Dormoy, In re 6 V, Scarborough 260, 864 Dornick n. Reichenback 38 V. Scott 688 647, 649, 803 Dorsey ;;. Clarke 417 V. Scudamore 490,812 u. Horsey 2 V. Selby 506, 876, 877 t'. Hammond 377, 786 V. Sheffield 201, 203, 342, 646, 647 V. Sheppard 98 V. Shippliard 831 r. Warfield 73 V. Sloggetf 478, 779 Doswell V. Earie 879 V. Sotheron 781 Doucet V. Geogliegan 12, 15 V. Sparkes 654 Douglierty v. Snyder 6 u. Staple 122 Doughty V. Bull 502 V. Stenlake 481 V. Saltwell 747 u. St. Helen's 225 V. Stillwell 544 V, Stopford 744 Douglas V. Blackford 378 V. Strickland 138, 415 u. Congreve 606 607, 613, 770 V. Summerset 544, 545 V. Cooper 27 , 30, 123 XXX TABLE OF CASES. Douglas V. Douglas Douglass V. Douglass V. Fellows Doutty V. Laver Dove V. Terr Dow V. Dow V. Doyle I'. Jewell Dowling V. Dowling Down V. Down V. VVorrall Downer, In re I', Ohurch Downey v. Murphey Downie's Will, In re Downing v. Marshall Downs V. Collins Dowse, In re Dowset V. Sweet Dowson V. Bell u. Gaskoin Drake v. Att.-Gen. V. Drake V. Martin Drakeford v. Drakeford V. Wilkes Drakeley, In re Draper r. Hitch Draut V. Vause Drayton's Appeal Drew V. Drew V. Killick V. Wakefield Drewett t'. Pollard Drinkwater v. Falconer Driver v. Frank 341, 563, 14 334 376, 417, 433 831 503 504 ,342 87S) 564 787 216 130 571 36,37 89 207, 338, 339 317 78 380, 434 459, 466 771 3 382 329 269 415 653 543, Druce v. Denison 57 595 376, 377 539 208 309 193, 200 325, 825 Drummond v. Drummond Drury v. Natick Drusadow v, Wilde Drybutter v. Hodges Dunne, In re Dublin Case u. Cliadbourne Dubois V. Dubois !). Ray Duckle V. Baines Duckmanton v. Duckmanton Dudley v. Grayson Dudleys v. Dudleys Dufaur v. Croft Dnfiie V. Corridon Duffieid V. Currie V. Duffleld V. Elwes u. Robeson Dufour V. Pereira Dugan V. Hollins Duggins, In re Duhamel v- Ardovin Du Hournielin v. Sheldon Duninier v. Pitcher Duncan v. Beard u. Duncan Duncuff V. Albrecht 422, 451, 452, 467 2 9 208, 209 798 24 414 210 2, 5, 31 27,31 504 52 362 68 31,81 36 89 186 177, 652, 819 653 35, 36, 38 18 162 82 2, 364, 775 69, 123, 200 454 31 417, 458 226 Dundas, In re 93 u. Dundas 449 V. Wolfe d. Murray 849 Dundee v. Morris 359 Dungammon v. Smith 274, 278 Dunliam r. Averill 170, 431 Dunlap r. Dunlap 78, 95, 193, 285, 338 Dunn, In re 18 V. Bank of Mobile 866 Bownas V. Dunn V. Sargent Dunnage v. White Duplessis V. Att.-Gen. Durance, In re Durant v. Ashmore Durfee v. Durfee Durham, In re V. Morice Durling v. Loveland Durnell v. Corfield Durour v. Motteux 230, 231 85, 86, 106, 204 879 565, 738 67 171 133, 134 31, 134 92 213 36,37 36 210, 632, 688, 639, 640, 642, 643, 644 Dutch Reformed Church v. Brandon 302 Dutton, In re 145, 212, 293 Dyer, In re 77, 142 V. Dyer 539 V. Smith 6 E. Bales V. Cardigan V. Conn c^. Drake V. England Earl, In re V. Rowe Earl's Trust, In re Earle v. Barker V. Wood Earlom v. Saunders Early v. Benbow East V. Cook Eastern Counties Railway V. Tuffnell Eastman v. Baker E.TStwood V. Lbckwood Easum v. Appleford Eaton V. Barker I/. Hewitt V. Straw V. Watts Eavestaffw. Austin Eby V. Eby Eccard v. Brooke Eccles >\ Birkett V. Clieyne Eccleston v. Petty ''. Speke Eckersley v. I'latt Eckert r. Eckert I.'. Flowery Eddel, In re Eddowes, In re 543 259 766 386 5 798 193 521 207, 418 587 96, 188 469, 470, 500 Co. 699 506 490 766 827, 872 805, 821 807 388 576 860 514 845 355 88 89 87, 133, 134 35 35 653, 819 552 TABLE OF CASES. XXXI Eddy's Case 35 Ely V. James Edelen v. Hardey 87,89 Ely's Case Eden v. Wilson 602 Kmanuel u. Constable Ellens V. Williams 422 Emblyn c. Freeman Edgington, In re 851 Emerson i). Bovidle Edgworth i. Edgworth 808 Emery u. Neighbor Edmonds, In re 102 V. Wasou Edmondson, In re 850 Ernes V. Hancock Edmunds v. VVaugh 529, 837 Emuss V. Smith Edwards, In re 92 England v. Downs u. Astley 77, 135 Englefried v. Woelpart u. Barnes 665, 717 English, In re c. Champion 58,64 V. Orde V. Finuliam 36 Ennis v. Smith t). Hall 223,227 228, 230, 236 Enohin v. Wylie V. Hammond 810, 811 Entwistle v. Davis V. Morgan 458, 471 V, Markland V. Pike 233 Etches K. Etches V. Richards 431 Etheridge v. Corprew u. Smith 21 Eure V. Pittman V. Symonds 806 Eustace, In re V. Tuck 236, 311 312, 313, 623 Eustis V. Parker V. Warwick 592, 599 Euston V. Seymour V. West 57 Evans, In re Edwards's Appeal 123, 129 V. Angell Eelbeck v. Cranberry ■ 81 V. Arnold Eells V. Lynch 818 V. Crosbie Egerton v. Jones 800 V. Dallon V. Massey 650, 651 V. Iglehart Eggleston v. Speke 170 V. Evans Eiohelberger v. Barnetz 879 V. Field Eilbeek v. Wood 167 V. Hellier Ela V. Edwards 80, 82, 86, 87, 89 V. Hudson Elborne v. Goode 313 V. Jones 717, Elbourne v. Goode 314 V. Kingsberry Elcock, In re 837 V. Pilkington Eldridge v. Eldridge 835, 851, 852 V. Smith Eliot V. Carter 782 V. Walker V. Eliot 86 Evans's Appeal Ellice, In re 146 Everall v. Browne Ellicombe v. Gompertz 485 Everett v. Carr Elliot 0. Davenport 339 V. Everett Elliott V. Elliot 681, 688 Evers v. Challis V. Fisher 686, 603 Ewens v. Franklm Elliott's Will 35, 38 Ewer V. Heydon Ellis, In re 88 Ewin, In re V. Bartrum 183, 376 V. Ewin V. Eden 615 Eynon, In re V. Ellis 840 Eyre v. Eyre V. Maxwell 304, 305 312,313,850 V. Marsden 309, V. Merrimack Bridge 422, 503, 879 V. Storer u. Lewis 468, 461 V. Page 75 F. V. Selby 213, 216, 217, 565, 566, 761 V. Smith 78, 81, 82, 89 Fahrney v. Holsinger Ellison V. Miller 327 Fairburn, In re Elmendorffi). Carmichael 31 Fairfax v. Hunter V. Taylor 708 Fairfield v. Morgan Elms V. Elms 133 Falkland v. Lytton Elsei). Else 487 Falkner v. Butler Elton V. Elton 843 V. Somerset & Elwee V. Ferguson 38 Co. Elwes V. Canston 766 V. Wynford Elwin V. Elwin 605, 840 Fallon V. Chidester Ely V. Ely 144 Farmer v. Brock 88 72 565, 632 127 41 755 837 57, 329, 331, 789 785 606 25 228 2,6 2, 5, 761 223, 225 608, 809 805, 829 31 31 173 71,90 98 597 418, 782, 794 38 717, 744 141 613, 879, 880 173, 178, 180, 679 765 812, 314 472 , 740, 743, 762, 764 684, 585 839 18 282 106, 130, 134 761 208, 318 332, 336, 426 288 80,84 778 3 717 82 121 , 312, 313, 566, 623 1,2 46, 476 78 68 508 654 766 652, 553 129 87 xxxu TABLE OF CASES. Farmer v. Francis 293, 806, 858 Fane, Ex parte 39 V. Fane 476 Farncombe's Trusts, In re 291 Farr v. Thompson 35 Farrar v. Ayres 418 Farrer, In re 204, 328 i). St. Catherine's College 117, 182, 191, 210, 381, 411, 529 V. Winterton 163 Farwell v. Jacobs 227, 387 Fary, In re 180, 142 Fatheree v. Lawrence 86 Faulds V. Jackson 108, 110 Faulkener v. Daniels 255 V. Hollmsworth 605, 840 Faversham v. Ryder 228 Fawcett v. Jones 193, 414 Fay V. Cheney 707 V. Haven 2 V. Sylvester 800 Fearn's Will, In re 879 Fearns v. Young 611, 612 Fearon u. Fearou 449 Fell V. Biddolph 342 Fellow V. Jermyn 163 Fellows V. Miner 2, 207, 209 Fells V. Read 880 Feltham v. Feltham 837 Feltham's Trusts, In re 382, 418 Fenny v. Ewestace d. Collings 499 Fenton v. Farrington 186 V. Hawkins 396 Fenwick, In re 30, 129 V. Green well 552 Ferguson «. Hedges 338 Fergusson v. Brighton Bail. Co. 779 Fernandes' Ex.'s Case 3 Ferrand v. Wilson 276 Ferraris v. Hertford 3, 7, 20, 94 Ferrierti. Jay 677,681 Ferson v. Dodge 799, 803, 834, 864, 866 Festing v. Allen 265, 818, 820, 849, 874 u. Taylor 188 Festor v. Simpson 20 Fetherly v. Waggoner 31 Fettiplace «. Gorges 39, 40, 41 Field, In re 36, 78, 111, 699 V. Hitchcock 879 V. Pickett 625, 753 V. Wilson 708 Fillingham v. Bromley 798 Finch V. Finch 133, 134, 451 V. Hollingsworth 553 V. Lane 811, 812 V. Squire 222 Fincbam v. Edwards 35 Finden v. Stephens 408 Findon v. Findon 873 Fink V. Fink 210 Finlason v, Tatlock 516 Finley )). Hunter 775 Finney, In re 698 Fischer v. Popham 110 Fish V. Klein 70 Fisher, In re 171 V. Banta 585 V. Brierley 189, 220, 232, 233, 242 V. Hepburn 759 V. Hill 338 )). Kimball 38, 41 Fisk V. Attorney-General 211, 247, 248, 359, 367, 369, 370 V. Keene 252, 255, 554, 866 Fitch V. Weber 313, 565, 624 Fitzgerald, In re 238 V. Field 97, 187, 753 V. Jervoise- 607 Fitzhenry v. Bonner 550, 831 Fitzherbert v. Fitzherbert 31 Fitzpatrick w. Fitzpatrick 377, 417 Fitzroy v. Howard 672 In re 129 Fitzsimons v. Fitzsimons 457 Flamank, Ex parte 163 Flannery's Will 2, 78 Fleeger v. Pool 5, 31 Fleming v. Boiling 653 V. Brook 756 Flemming v. Burrows 756, 758 V. Flemming 433 Fletcher v. Ashburner 585, 620 V. Chapman 622 V. Smiton 725 Flinn v. Owen 87 Flint w. Hughes 358, 364 V. Warren 376, 383, 565, 624 Flippin V. Banner 443 Flood's Case 66, 219 Florance v. Florance 98 Florey v. Florey 35 Floyer v. Bankes 275 Fluke V. Fluke 51 Foley V. Burnell 880 V. Parry 387 Fonda v. Penfield 288, 290 Fonnereau v. Fonnereau 844 V. Poyntz 409, 425, 430 Foot V. Stanton 34, 36, 87 Footner v. Cooper 729 Forbes v. Ball 386, 551 V. Forbes 12, 14, 45 V. MofEatt 693 V. Stevens 598 Ford a. Battey 380, 397 V. De Pontes 168 V. Ford 132, 657 V. Fowler 370, 386, 392 V. Porter 397 V. Rawlins 839, 841, 844 V. Ruxton 188 Ford's Case 71 Fordyce v. Bridges 219, 552, 709 Forman's Will 38 Forsbrook w. Forsbrook 298, 302 Forse and Herabling's Case 122 Forset's Case 67 Fortune v. Buck 31, 73 Fosdick V. Cornell 255, 864 ». Fosdick 302 TABLE OF CASES. xxxill Foss V. Crisp 68, 69, 70 Frith, In re 82 Foster, In re 872 V. Spra'gue 6 V. Banbury 72 Froggatt V. Wardell 179 V. Blagden 236 Froutbeck v. Boughey 39 V. Cook 324 Fry V. Coppee 296 V. Cooke 462, 466 V. Fry 177, 179 u. Craige 61 Frye v. Corporation 231 V. Foster 163 Fryer v. Buttar 612 V. Holland 834 V. Morris 147 V. Ley 188 Fullarton v. Watts 155 V. Romney 280 Fuller, Ex parte 6,31 V. Walter 379 V. Fuller 338, 574 Foudrin v. Gowdey 70, 236 V. Hooper 96, 117, 188 Fouke V. Kemp 409 V. Winthrop 835, 843 Fouvergne v. New Orleans 31 V. Yeates 454, 456 Fowler v. Depau 285 FuUerton v. Martin 736, 737, 874 V, Fowler 211, 359 Fulton V. Andrew 36 V. Garlike 386, 396, 565 V. Fulton 458 V. Hunter 399 V. Moore 443 V. Willpughby 369 Funk V. Eggleston 676 Fowler's Trusts, In re 451 Furness b. Fox 835, 837 Fowlis V. Davidson 38 Furguson v. Zepp 725 Fownes-Luttrell v. Clarke 174 Fursaker v. Robinson 664 Fox V. Collins 382 Fychte v. Fychte 444, 445, 470 V. Fox 390, 810, 844, 845, 860 V. Lownds 220 V. Marston 125, 128 G. i;. Southack 68 Fox's Will 65 Gable v. Daub 327, 337 Foy V. Foy 231 Gage V. Gage 18,25 Framlingham v. Brand 507 Gains v. Gains 131 Frances's Estate 357, 798 Gainsford v. Dunn 680 Francis «. Collier 180 Gaither v. Gaither 36, 416 V. Grover 134, 135 Gale V. Drake 423, 769 V. Minton 668 V. Gale 147, 163, 200, 684 V. Ocean Ins. Co. 6 Gallego V. Attorney-General 213, 219 Frank v. Frank 443, 447 Galley v. Barrington 492 V. Standish 666 Galliers v. Moss 689, 699 Frankfield ;;. Armfield 209 Gallini v. Noble 94, 772 Franks, In re 40 Galliver v. Ashby 255 V. Bollans 604 Gaily, In re 8 V. Brooker 325 Gambler v. Garabier 2 V. Price 809 Gann v. Gregory 27, 28, 30, 74, 143 Fransen's Will 122 Gardiner v. Barber 400 Frazer, In re 171 Gardiner v. Fell 448 Frazier v. Frazier 339, 341 V. Gardiner 35 Frederick v. Hall 628 V. Slater 840 Frederick's Appeal 21 V. Stevens 649 Freeland v. Pearson 563 Gardner, In re 87, 133 Freeman v. Chandos 657 V. Astor 693 V. Freeman 173, 175, 664 V. Harden 880 V. M'Gaw 693 V. Hooper 821, 879 V. Paul 693 V. Lamback 38 Freemantle v. Banks 162 , V. London, Chatham & Freke v. Barrington 446 Dover Railway 226 y. Carbery 4,304 V. Sheldon 657 French v. Caddell 800 Garland v. Beverley 381 V. Davies 458, 460, 465, 466, 467 V. Mead 60 t)._ Hatch 879, 880 V. Rowan 2 Frenehe's' Case 170 Garner v. Garner 381 Frere v. Peacncke 38 Garnett v. Garnett 38 Freslifield /•. Reed 110 Garrand's Estate 418 Frewen v. Frewen 163 Garret v. Rex 798 Frier v. Peacock 244 Garrison v. Garrison 327, 357 Frierson v. Beale 99 Garth v. Meyrick 380 XXXIV TABLE OF CASESi Garvey v. Hibbert Gascoigne v. Barker Gaseoyne w. Chandler Gaskell v. Harman V. Holmes Gaskin v. Rogers Gaskins v. Gaskins Gass V. Ross V. Wilhite Gatenby v. Morgan Gates V. Jacob V. Jones Gauntlett v. Carter Gause v. Gause 505 668 31 776, 839 851 74, 238 103 431 214 868 708 207 29, 428 2 Gawler v. Standerwioke 27, 29, 834, 835 Gaylor's Appeal 87 Gaynor, In re 5 Gaze V. Gaze 81, 82, 110, 111 Geale, In re 34, 35 Geaves v. Price 176 Geddis's Appeal 193 Gee w. Liddell 281 Geer v. Winds 417 Gelirke v. State ' 38 Geiger v. Brown 486, 879 General Lying-in Hospital v. Knight 378 Genery t\ Fitzgerald 653 Gennings v. Lake 783 Gentry, In re 170 George v. Bussing 41, 443 V. Green 51 V. Jew 39 Georges v. Georges 31 German v. German 879 Gerrard v. Butler 296 Gerrish v. Nason 87, 82 Gest V. Flock 443 Geyer v. Wentzel 357 Gibbens v. Cross 128 V. Shepard 890 Gibbes v. Holmes 694 Gibbon v. Gibbon ' 327, 448 Gibbons v. Caunt 124, 127, 128 Gibbs V. Lawrence 755, 762 V. Ougier 624 V. Rumsey 347, 385, 565, 571, 632, 635, 642, 643, 647 V. Tait 645 V. Tate 364 GiWett V. Hobson 231 Gibson, In re 331, 332, 343 V. Bott 608, 611, 613, 615 V. Carrell 819, 326 V. Cooke 585 V. Crehore 693 0. Gibson 35, 38, 99, 461, 465 V. Hale 764 V. Harmer 859 V. Lane 31 V. M'Call 65, 214 ,A McNeely 298 V. Montfort 52, 58, 193, 500, 653 Gibsgn's Trusts 177 Gibson's Trusts, In re 180 Giddings v. Giddings 471 Gifford V. Choate 503, 551 V. Dyer 183 V. Rockett 418 V. Thorn 835, 839 Gilbert v. Bennett 400 V. Chapin 385 V. Knox 80, 81, 87 Gilbertson v. Richards 276, 282 Giles I'. Boston Fatherless Society 293 V. Giles 132, 380 V. Melsom 747 V. Warren 130, 142 Gill, In re 20, 92 V. Barrett 851 V. Bradshaw 371 V. Grand Tower Mining Co. 358 Gill's Will 90 Gillam v. Taylor 212, 214 Gillespie, In re 35 V. Miller 879 Gillett V. Gane 381 Gillham v. Mustin 21 Gilliam v. Brown 414 V. Chancellor 417 Gilliat V. Gilliat 793 Gillies V. Louglands 586 Gillon V. Bomne 104, 171 Gilman v. Gilman 2, 472 Gilmer v. Gilmer 326 Gilreath v. Gilreath 35 Ginder v. Farnum 79 Girard v. Philadelphia 51 Girdlestone v. Creed 220 V. Doe 518 Gist V. Robinet 50 Gittings w. McDermott 339,616 Gittins V. Steele 233 Given v. Hilton 632 Gladstone v. Tempest 25 Glaney v. Glancy 106 Glanvillw. Glanvill 653,849,850 Glass V. Hulbert 415 Glendening t>. Glendening 774 Glengall v. Barnard 611 Gloucester v. Wood 29,186, 384, 396, 565 Glover, In re 78 V. Hayden 422 V. Hearst 775 V. Spendlove 654, 655, 662, 663 Glubb V. Attorney-General 2^)2 Glynn v. Morris 223 u. Oglander 26 Goble V. Grant 88 Goblet V. Beechey 181, 421 Goddard v. May 340 Godfrey v. Godfrey 388, 401 V. Humphrey 497, 716, 720, 722, 725, 732 Going V. Emery 208,. 210, 219 Gold V. Judson 46, 318, 3g6 Goldring v. Inwood 552 Golds V. Greenfield 339 Goldsborough v. Martin 251, 288, 297 Gombault v. Public Admr. 35 Gompertz v. Gompertz 874 TABLE OF, CASES. XXXV Gooch V. Assoc, for Aged Females 209 Gouldie v. Murray 33 V. Gooch 755 Gove V. Gawen 87 Goodall V. Marshall 2 Gover v. Davis 756, 701 Goodell V. Hibbard 255 Gower v. Gower 751 Goodenough v. Goodenough 879 u. Towers 498 V. Tremamonbo 617 Gowers v. Moor 410 Goodfellow V. Goodfellow 464, 542 Grabill v. Barr 20, 103 Goodhue v. Clark 423 Graham v. Graham 88, 89, 179 Goodkre v. Lloyd 565 V. O'Fallan 31 Goodlad v. Burnett 320, 329 V. Paternoster 228 Goodman v. Drury 836 Granby v. Amherst 12 V. Edwards 671 Grange v. Tiving 39 Goodright v. Cornish 864 Grant v. Bridger 151 u. Forrester 50 V. Dalliber 13 V. Glazier 136, 174 V. Dyer 613, 518 V. Goodridge 557 V. Grant 45, 438 V. Harwood 173, 548 V. Hapgood 532 V. Hoskins 646, 648 V. Lyman 678 V. Jones 801 V. Mussett 615 V. Opie 646 V. Wimbolt 543 V. Parker 806 Grant's Case 806 V. Pears 795 Grantley v. Garthwaite 135 V. Searle 878 Grattan v. Appleton 2 V. Wright 338 Gratton, In re 523 Goodtitle v. Knott 649 Gratwick, In re 680, 688 V. Meredith 193 Gravenor v. Hallum 211 347, 349, 617 V. Miles 655 660, 663 V. Watkins 473 V. Otway 128 , 147, 150 Graves v. Bainbridge 829 V. Pugh 826 Gray v. Bailey 147 V. Southern 427, 428 u. Golding 831 V. Southern d. Badford 786 V. Minnethrope 472 17. Welford 71,72 V. Patton 2 V. Whitby 806 Graydon v. Graydon 595 V. Wood 48 Grayson v. Atkinson 80, 725, 735 V. WoodhuU 747 V. Deakin 461 Goodwin v. Clark 255 Greated v. Created 609, 652 Goodyar, In re 761 Greatorex v. Carey 467 Goold V. Teague 57, 706 V. Gary 458 Gordon, In re 599, 600 Gregg V. Bethea 837 K. Adolphus 803 Green v. Britten 178, 615 V. Atkinson 624 V. Grain 81 V. Gordon 29, 499 V. Davidson 803 V. HofEman 182, 529 V. Dikeman 99, 327 V. Hope 829 V. Dunn 651 Gordon v. Reay 117 , 118, 190 V. Ekins 653 V. Stevens 458 V. Gascoyne 312 Gore, In re 80 V. Green 446 V. Gore 864 a. Harvey 509 B. Knight 40,41 0. Hayman 500 V. Stevens 338 V. Howard 417 Gorfett, Ex parte 699 V. Jackson 642, 643, 644 Gorham v Springfield 9 V. Johnson 586 Goring v. Howard 286 V. Marsden 300 Gorst V. Lowndes 304 V. Pertivee 764 Gosden v. Dotterill 187, 772 V. Pigot 837 Gosling V. Gosling 275, 293, 302, 852 ] V. Proude 19 Goss V. Nugent 409 V. Smith 62,55 V. Tracey 72 V. Stephens 586 Gotch V. Foster 849 V. Tribe 117, 190 Gott V. Cook 584 Greene v. Dennis 213,'3:^8 V. Nairne 312 V. Greene 12 Gough V. Bult 359, 397 V. Potter 811 V. Davies 40,43 V. Ward 563 Goulboum V. Brooks 346 V. Windham 12 Gould V. Mansfield 18 Greenhlll v. GreenhiU 62,68 XXXVl TABLE OF CASES. Greenough v. Greenough 81, 78 V. Martin 182, 191 Greenway v. Greenway 515, 590, 596 Greenwich Hospital, In re 729 Greenwood v. Greenwood 493 V. Penny 446 V. Koberts 268, 269, 270, 272 V. Sutcliffe 485 V. Wakeford 695 Greet v. Greet 293, 849 Gregory's Settlement, In re 418 Greig v. Martin 37 Greisley v. Chesterfield 606 Gresley v Mousley 51 Greswold v. Marsham 693 Gretton v. Haward 446 Greves, In re 92 Greville v. GreTille 363 v. Tylee 76, 140, 144 Grey v. Pearson 512, 513, 521, 524, 832 Griesbach jt Fremantle 599, 603 Grieves v. Case 210, 212, 228, 233 Grleveson v. Kirsopp 651, 595 Griffin v. Ferard 26 V. Griffin 80, 104, 172 V. Pringle 476 Griffith V. Blunt 264, 850 V. DifEenderffer 35 V. Griffith 82 V. Pownall 267 Griffiths V. Evan 888 V. Gale 365 V. Griffiths 85 V. Penson 792 V. Pownall 269 V. Pruen 628 V. Rickett 632 V. Robins 34 V. Vere 306 Grigby V. Cox 41 Griggs V. Dodge 879 Grimain ». Draper 38 Grimes v. Harmon 250 Grimson v. Downing 499 Grimke v. Grimke 41 Grimmett v. Grimmett 229 Grimshaw, In re 845 Grimshawe v. Pickup 613 Grimwood v. Cozens 146 Griseom v. Evens 423, 431 Grissell v. Swinhoe 444 Grosvenor v. Durston 771 V. HampsteSid Junction Rail. Co. 779 Grout V. Hapgood 533 Grove, In re 846 Grove's Estate 857 GroverB. Raper 532 Groves v. Wright 881 Growcock v. Smith 666 Gryle v. Gryle 82 Guallagher v. Guallagher 415 Gude V. Mumford 188 V. Worthington 365 Guernsey ». Guernsey 866 Guest V. Willasey 120, 189, 193 Guidot V. Guidot 586 Guier v. O'Daniel 15 Guillamore v. O'Grady 86, 414 GuUan, In re 141 V. Grove 30, 141 Gulliver ». Poyutz 735, 780 Gully V. Cregoe 390, 391 V. Davis 676 Gunn V. Brantley 708 Gurley v. Gurley 467, 469 Gurney v. Goggs 872 V. Gurney 74 Guthrie v. Price 35,78,80 Guy V. Sharp 423 Gwillim V. Gwillim 87, 110 V. Holland 693 Gwinn v. Radford 31 Gyett V. Williams 729, 738 Gynes v. Hemsley 380 H. Haberfield v. Browning 102 Habergham v. Vincent 19, 20, 90, 94, 95, 666 Haddock v. Trotman 36 V. Whilmarth 50 Haddon v. Fladgate 40 Hadow V. Hadow 400 Hagar v. Neatby 359 Hains, In re 137 Haines v. Haines 130 Hairston v. Hairston 136 Hakewill, In re 91 Hale V. Hale 273 V. Pew 802 V. Tokelove 142, 146, 191 Hales V. Freeman 188 Haley v. Bannister 186, 304, 305, 306 Halfliead v. Shepherd 553 Halford v. Stains 309, 313 Halifax v. Wilson 841 HaU, In re 121, 135, 881 V. Ashby 31 V. Bragg 21 V. Chaffee 255, 800 V. Dench 152 V. Dewes 713 V. Fisher 789 I). Gittings 81 V. Hall 31. 38, 81, 90, 458 V. Hall d. Goodright 483 V. Hill 417, 458, 461, 466 V. Leonard 431 V. Lietch 628 V. May 713 V. Priest 866, 879 V. Robertson 523 V. Severne 187 V. Sims 31 V. Sprigg 417 V. Warren 37, 88 V. Waterhouse 40 TABLE OF CASES. XXXVU Halley v. Webster Halliday v. Hudson Halliwell, In re Hallowell v. Saco Hallyburton, In re Ham's Trusts, In re 565, 566, 568, 569 145 12 11,30 344 Hambledon v. Hambledon 372 Hamblett v. Hamblett 31, 443, 471 Hamilton v. Buckmaster 729, 786, 738 V. Dallas 12 V. Hoosdon 721, 726, 736 V. Peace 25 V. Porter 613 Hamilton's Estate 169 Hamley v. Gilbert 400 Hammond, In re 106, 107 V. Neame 402, 404 V. Kidgely 377, 786 Hampshire v. Peirce 434, 441 Hampton v. Cowles 786, 793 V. Holman 280, 293 Hanbury v. Cockrell 867 V. Tyrell 481 Hance v. Truewliitt 322, 448 Hancock v. Titus • 807 Hand v. Hoffman 409, 431 V. Marcy 339 Hands v. Hands 364 V. James 86, .89 Handy v. State 31 Hanel v. Hanel 36 Hannam, In re 142 V. Sima 423 Hannan v. Osborn 879 Hannis v. Packer 95 Hansel! u. HubbeU 554 Hanson v. Graham 843, 846, 851 V. Lake 699 Hanswick v. Wise 78 Hapgood V. Houghton 443, 451 Happy's Will 31 Harbin v. Masterman 312 Harcourt v. Seymour 601 Hardacre v. Nash 717, 744 Hardcastle «. Hardcastle 843 Harden v. Hayes 31, 38 Hardham v. Roberts 664 Harding v. Glyn 886, 551, 553 V. Harding 37, 598 u. Metropolitan Railway 163 . Bryson V. Bullock u. Judd V. Pugh Huntington v. Huntington Hurd V. Coleman Hurdle v. Outlaw Hurlstone v. Asliton Hurrill, In re Hurst V. Winchelsea Huskisson v. Bridge V. Lefevre Huss's Appeal Hussey v. Grills Hutcheon v. Mannington Hutcheson v. Hammond Hutchins v. Osborne d. State Bank Hutchinson v. Barrow Hutton, In re V. Simpson Huxtep V. Brooman Hyatt V. Pugsley Hyde v. Baldwin V. Hyde V. Price Hyer v. Sliobe Hyley v. Hyley Hylton V. flylton Hyman v. Gaskins 2,80 615 398 846, 863 2 369 840, 866 736 103 708 721, 728, 755 684 102 76 390 593 36 58, 101 607, 839 565, 634, 635, 636, 637, 688 685 31 318, 327, 335 120 338, 534, 574, 803 718, 739, 741 412, 441 443 33, 95, 135, 146 422 60, 51, 327 656 134, 173 6 Ibbetson, In re V. Ibbetson Iddings V. Iddings Ide V. Ide Idley V. Bowen Igleliart v. Kirwan Ilchester, Ex parte 140, 142, 596 274 417 864, 866, 879 130, 171 472, 476 125, 168, 169, 170, 192 371 81, 82, 108 189 Illingworth v. Cooke llott V. Genge Ince, In re Inchiquin v. French 95, 424 Inchley v. Robinson 778 Incorporated Soo. v. Price 244 Incorporated Soc. «. Richards 66, 212, 509, 655 Ingelby v. Dobson 232 Ingell V. Nooney 716 Ingersoll's Appeal 255 Ingilby v. Ancotto 46, 48 Ingils V. Sailors' Snug Harbor 251 Ingle V. Richards 55, 585 Ingle's Trust, In re 383, 440 Inglefield v. Coghlan 174 Inglesant v. Inglesant 110 Ingoldby v. Ingoldby Ingraham v. Hart Ingram ;>. Fraley V. Porter V. Suckling Innes v. Jackson Ion V. Ashton Ireland's Mill, In re Irvine v, Sullivan Irving V. M'Lean Irwin's Appeal Isaac V. Defriez Isaacs, In re Isaacson v. Van Goor Israeli v. Rodon Ives V. Allen V. Allyn V. Dodgson i>. Ives Ivison V. Gassiot Izard V. Hurst V. Middleton Izod V. Izod Izon V. Butler 119 6 385 18 860 154 222 242 388, 399, 571 2 2 214 39 545 124, 125, 128 31 2 529 177 754 200 18 552 J. Jacob, In re Jacobs V. Jacobs Jack V. Fetherston Jackman v. Ringland Jacks V. Henderson Jackson v. Beach V. Belts 31, V. Blanshan V. Boneham V. Bull V. Chew V. Christman V. Churchill V. Coleman V. Craig V. Culpepper V. Delancy V. Denniston V. Dover V. Durland V. Farrand V. Feller V. Forbes II. Goes V. Hamilton , V. Hammond V. Hart u. Hasbrouck V. HoUoway V. Housel V. Hurlock V. Jackson V. Kelly V. Kniffien V. Le Grange 143, 852 516 256 417 18, 125 68,69 130, 131, 133, 137, 411 31, 505, 506 431 864, 866, 879 866 31, 86, 89, 864 458 879 356, 530 21 689, 694, 695, 699, 716, 864, 879 70 851, 861 73 834 417 3,475 431 358 65, 214 431 31 130, 136, 144 720, 721, 722, 726 49, 199, 349 18, 24, 81, 82, 837 645 35, 133, 134, 411 31 xlii TABLE OF CASES. Jackson v, Lunn 68 V. Luquere 31 V. Majoribanks 293, 806, 811 V. Malin 144 V. Merrill 842, 716 ». Moore 103 V. Moyer 793 V. Noble 551, 665, 828, 868, 870 V. Parker 152 V. Phillips 207, 208, 209, 200, 285, 573 V. Potter 193 V. Keeves 506 ». Roberts 341, 342 V. Robins 864, 879 V. Russell 31 V. Sill 410, 417, 418, 431, 793 V. Staats 342, 864 V. Stanley 431 V. Thompson 31, 864 V. Van Deusen 31 V. Van Dusen 38, 78, 82 V. Varick 50 V. Vickory 31 V. Winne 887 V. Woods 73 Jacques v. Chambers 363 James, In re 141, 142, 143 V. Allen 211, 215, 216, 565 w. Cohen 137 V. Dean 62, 322 ». Gammon 618 V. Irving 764 V. James 838 V. Johnson 693 V. Marvin 137 V. Morey 693 0. Parnell 31 V. Richardson 319 V. Shrimpton 133 V. Williams 31 V. Wynford 267, 806, 858 Janey v. Latane 219, 378 Janney v. Sprigg 505 Jansen v. Jansen 189, 193 Jarman v. Vye 504 Jarman's Estate, In re 211, 216 Jarvis v. Butrick 422 Jauncey v. Att.-Gen. 96, 117, 188, 338 V. Thome 31, 81 JeafCreson, In re 766 Jebbw. Tugwell 615 Jee V. Audley 281, 288, 294 Jeffery, In re 552 Jeffreys v, Conner 615 Jeffries v. Alexander 22, 221„237 V. Michell 434 Jenkins v. Freyer 76 V. Hughes 821 Jenkins's Will 79 Jenkyns v. Gaisford 79 Jenner v. Fflnch 182, 183 Jennings v. Jennings 446 V. Looks 834 Jennison v. Hapgood 2, 12 Jepson V. Key 328 Jermy v. Preston 163 Jermyn v. Hervey 80 Jerningham v. Herbert 11, 365 Jerram, In re 102 Jesse I'. Parker 82 Jesson V. Wright 473, 482 Jessopp V. Watson 565, 623, 631 Jillard v. Edgar 72 Jocelyn v. Nott 251 Jodrell V. Jodrell 40 Joel V. Mills 552 Johnson, In re 86 Johnson v. Arnold 586 587, 593, 798 V. Baker 837 V. Ball 31,94 V. Brailsford 130, 131, 135, 141 V. Castle 879 u. Clarkson 19, 20, 115 V. Durant 31 V. Foulds 853 V. Johnson 82, 338, 340, 354, 417, 613, 616 u. Lyford 133 V. Routh 610 V. Simcock 513 V. Stanton 677 V. Swann 227, 229 V. Telford 449 V. Valentine 866 V. Webster 693 V. Woods 236 Johnson's Trusts, In re 302 Will, In re 184 Johnston v. Glasscock 08 V. Hunly 61 V. Swann 208, 209 V. Wells 125 Johnstone, In re 9 c. Baber 568, 606 V. Harrowby 187 V. Moore 607 V. Rowlands 389, 391 Johnstone's Settlement, In re 147 Joiner v. Joiner 181 Jones, In re 84,110 V. Arterburn 31 u. Bradley 234, 415, 566 V. Collier 466 V. Curry 678 V. Davies 163 V. Doe 472 V. Goodrich 35, 36 V. Greatwood 405 V. Gregory 28 V. Hancock 359 V. Hartley 153, 193 0. Jones 454 V, Larrabee 73 V. Mackilwain 322, 852 V. Maggs 310, 812 V. Massey 799 V. Mitchell 347, 565 634, 635, 647 V. Morgan 21, 532, 800 V. Moseley 134, 189 TABLE OP OASES. xliii Jones V. Murphy 138 134 ,173 Kempsey v. McGuinis 88 V. Newman 431 Kempton, App. 458, 467, 551 V. Nicholay 24 Kendall v. Granger 212, 216 V. Powell 458 V. Kendall 198, 755, 759, 771 V. Price 481 519 ,856 In re 747, 759 V. Randall 543 Kene v. Allen 780 V. Robinson 337, 377 724 ,748 Kenebel v. Scrafton 125, 128 V. Shewmaker 327 Kennedy v. Keily 755, 784 i;. Skinner 655 V. Kingston 552 i;. Sothoron 879 I'. Medrow 458 V. Soutliall 337 841 ,677 V. Mills 458 V. Stiles 798 Kennell v. Abbott 634, 639, 640, 642 II. Torin 518 ,551 Kenney v. Van Home 6 V. Tuck 88 Kensey v. Langham 798 V. Tucker 679 Kent V. Barker 130 V. Westcorab 287 V. Mahaffey 132. 134 V. Williams 209 Kenyon v. Sutton 153, 155 Jones's Appeal 477 Kenzie v. Roleson 473 Jongsma v. Jongsma 724 Ker V. Wauchope 532 Jordan, In re 28 Kericke v. Bransbey 566 V. Fortescue 529 Kerlin v. Bull 837 V. Holkham 804 Kermode u. Macdonald 97, 174 Jorden v. Jorden 92 Kerr v. Chislin 472, 480 Jortin, In re 573 V. Moon 2,6 Josh !,'. Josh 784 Kerr's Trusts, In re 341 Joslin V. Hammond 870 Kerry v. Derrick 798 Josselyn v. Josselyn 848 Kessinger v. Kessinger 35 Jowett V. Board 200 Kettle V. Townsend 663 Joys, In re 173 Key V. Gamble 864 Jubber v. Jubber 858, 399 523 V. Key 524, 808 Jurld V. Judd 853 Kibler v. Whiteman 835, 837 Judson V. Lake 31 Kidney v. Coussmaker 451, 458, 471, 624 Juler !>. Juler 571 Kilburn v. Bennett 12 JuU V. Jacobs 574, 577. 769 ,816 Kilcher, In re Killam v. Allen 82 302 K. Kilpatriok v, Johnson 302,- 312 V. Kilpatriok 2,5 Kilvert'a Trusts, In re 379 Kachline v. Clark 38 Kilvington v. Gray 359, 608 Kalbfleisch v. Kalbfleisch 505 Bamball v. Crocker 302 Kampf V. Jones 296 V. Ellison 64 Kane v. Astor 176, 472 V. Morell 409 V. Bloodgood 708 V. Story 339 Kavanagh v. Morland 839 •Kimberley v. Tew 827 Kay V. Laxton 798 Kimpton, In re 107 Kean v. Roe 866 King V. Cleaveland 518 Kearns v. Kearns 31 ... Cullen 489. Rsn Keates v. Burton Keating v. Brooks 874 87 V. Denison 566, 569, 570, 571,' 572, fif(7 Keen v. Keen 133 V. Foxwell 12 Keene v. Dickson 801 V. George V. Hardwick 761 Keigwin v. Keigwin 81, 110, 111, 143 266 Keily v. Monck 844 V. Isaacson 839, 853 Keith V. Perry 503 V. King 58, 799, 800 Kell V. Charmer 18, 421 V. Mitchell 570 Kelland v. Fulford 163 V. Parker 207 Kellett V. Kellett 566, 568, 630 874 V. Portington 207 Kelley v. Kelley 356, 417 V. Ringstead 640, 541 Kellogg V. Blair 732 V. Shrives 724 Kellum, In re 86 ' V. Tootel 186 u. Powlet 753 V. Turner 60 Kelly V. Kelly 98 V. Withers 861 Kelso V. Dickey 505, 879 V. WoodhuU 632 Kemble v. Church 35 V. Wycombe Rail Co. 780 Kemp V. McPherson 51 King's College Hospital v. \ Vheildon 424 xUt TABLE OP OASES. King's Head Inn Case 668 Lambert v. Thwaites 553 King's Mortgage, In re 699 Lambe v. Eames 393 402, 405 King's Proctor v. Daines 26 Lampett's Case 879 King (The) v. Boys 67 Lamphier v. Despard 762 Kinleside v. Harrison 81, 34, 35 Lancashire v. Lancashire 365 Kinnard v. "Williams 458 Lancaster Canal, In re 225 Kinne v. Kinne 38 V. M'Bryde 2 Kinsella v. CaiTrey 564 Landon v. Nettleship 31 Kinsey v. Rliem 409 Lane v. Goudge 843, 849 Kinter v. Jeuka 385 V. Stanhope 671 Kirk, In re 793 V. Wilkins 201, 527 V. Eddowes 417 Lanesborough v. Fox 255 V. State 77 Lang V. Pugh 489 Kirby, In re 18 Langdale v. Whitfield 772, 775 Kirkbank v. Hudson 227, 229, 230 u. Briggs 198, 335 Kirkbride, In re 521, 524 Langdon v. Astor 20, 161, 162 193, 200 Kirkcudbright v. Kirkcudbright 137 V. Little 158 Kirke v. Kirke 136, 170 Langford v. Auger 697 Kirkman v. Miles 586, 600 V. Gowland 247, 248 Kirkpatrick, In re 135 V. Little 129, 165 V. Kilpatrick 487 V. Pitt 51 Kirkwood v. Gordon 34,38 Langham v. Nenny 679 Kittredge v. Folsom 31 V. Saudford 438, 475 Kline v. Baker 6 Langham's Trust, In re 222, 223 Knabb's Estate 162 Langley v. Baldwin 554 Knapp V. Knapp 134 «. Sneyd 76 V. Williams 222 V. Tliomas 26 356, 484 Knapping v. Tomlinson 269, 270, 272 Langslow v. Langslow 450, 527 Knight, In re 25 Langston v. Langston 412 492, 529 V. Boughton 391, 395 V. Pole 492 V. Cameron 840 Langworthy v. Chadwick 879, 880 V. Gould 342 Lanning v. Cole 326 V. Knight 386, 392, 395, 417, Lansdowne, In re 93 845, 848, 849 Lansing v. Wiswall 782 V. Robinson 699 Lantsbery v. Collier 292 Knollys v. Alcock 152, 160 Lantz V. Trusles 800 V. Shepherd 57 , 163, 692, 704 Larkin, In re 480 Knotsford v. Gardiner 669 Larkins v. Larkins 135, 341 Knott V. Cottee 386 Lamer v. Larner 770, 773 Knowles v. Sadler 186 Larrabee v. Van Alstine 458 Knox V. Hotham 397 Lasher v. Lasher 458, 472 V. Jones 2 Lassence v. Tierney 870, 873 V. Waldoborough 12 La Terriere v. Bulmer 606 607, 608 V. Wells 853, 859. Lathrop v. American Board 38 I^orn V. Cutler 722 u. Borden 38 Krumbaar v. Burt 821 Lattimer v. Eglin 6 Kuhu V. Wester 326 Laughton i'. Atkins 6, 31 , 136, 170 Kurtz V. Hibner 377 Lavender v. Adams Law V. Thompson V. Thorp 77 840 513 L. Lawes v. Bennet Lawless v. Shaw 57 406 Lacey v. Hill 61, 469 Lawrence v. Bayard 46 Lachlan v. Reynolds 281 518, 653 V. Beverly 585 Lacon v. Merlins 52 V. Dodwell 410 Lacroix, In re 8 V. Kitteridge > 2 Ladd V. Harvey 879 V. Lnwrence 458, 465 Tjade v. Halford 275 o. Lindsay 1B2 Laing v. Barbour 717, 722 V. Wallis 167 V. Cowan 684 Lawrie v. Bankes 398 Lainson v. Lainson 574, 576 Laws V. Bennett 704 Lake V. Currie 425, 685 687, 688 Lawson v. Morrison 136, 168 Lamar v. Jones 708 Lawyer v. Smith 134 Lambell v. Lambell 133, 135, 141 Laxton v. Eedle 582, 849 Lambert, In re 142 Lea V. Grundy 744 TABLE OP CASES. xlv Lea V. Libb 85 Lewis V. Boetefeur 238 Leach v. Bates 86 V. King 443 V. Leach 400 V. Lane 58 V. Jay 51, 652 V. Lewis 27, 31, 35, 80, 81, 87, Leacroft v. Maynard 186, 239 130, 133, 134,409,411, Leadbeater v. Cross 808 446 Leadenham v. Nicholson 684 V. Llewellyn 678 Leake v. Robinsbn 265, 266, 267, 269, V. Maris 31 270, 274, 285, 287, V. Mathews 698 288, 822, 762, 819, V. Pead 34 840 844, 857 V. Puxley 747 V. Gilchrist 2 V. Rogers 759 Leathers v. Greenacre 18,80 V. Scofield 18 Leavens v. Butler 472 V. Smith 866 Le Breton v. Fletcher 31 V. Waters 801 Leche v. Kilmorey 397 Lewis's Estate 472 Lechmere v. Carlisle 593, 601 Lichfield v. Baker 612, 617 V. Lavie 393 V. Eyres 785 c'. Lechmere 601 Liddard v. Liddard 363, 388 Ledyard u. Garland 31 Lide V. Lide 35 Lee, In re 87 Liggat V. Hart 326 V. Bank of England 31 Lightfoot V. Burstall 765 V. Busk 563, 564 Liley «. Hey 212 V. Colston 36 Lilford V. Keek 335 V. Delane 174 Lill V. Lill 541 V. Dill 36 Lillard v. Reynolds 356 V. Libb 89 Lillie I'. Lillie 133 V. Pain 343, 376, 382, 417, 422 Limbrey v. Gurr 233, 367 V. Woodward 782 Limerick, In re 93 Lee's Case 878 Lincoln v. Battelle 6 Leeds v. Freeport 15 V. Hapgood 12 V. Munday 689, 698 Lincoln's Case 151 V. Wakefield 854 Lindsay, In re 542 Leeming v. Sherratt 841 ,846 , 861, 863 V. Lindsay 18, 551 Leese, In re 176 V. M'Cormack 31 Leet V. Randall 831, 851 Lindsell v. Thacker 689, 698 Lefevre v. Freeland 684, 687 Lines v. Darden 385 I.-. Lefevre 454 Lingan v. Carroll 338 Lefroy v. Flood 393, 395 Lingdren i: Lingdren 424 Legge V. Askill 771 Lingen v. Sowray 586, 599 Le Gros v. Cockerell 707 Linley v. Taylor, 223, 461 Leigli V. Leigh 342 343, 405 Linstead v. Green 500 Leighton v. Bailie 753, 775 Linton v. Laycock 807 Leiper v. Irvine 52, 598 Lister i'. Bradley 835 837, 840, 849 Leniage v. Goodban 173, 176 V. Pickford 782, 794 Le Marchant v. Le Marchant 390, 391 V. Smith 415 Lemayne v. Stanley 78,80 Listen V. Jenkins 486 Lempriere v. Valpy 679 Little V. Little 38 Lendopp v. Eborall 664 Littlejolins v. Household 828 Lenox v. Lenox 823 Littleton's Case 694 Leonard v. People 665 Lively v. Harwell 133 V. White 782 Livesey v. Livesey 839, 845 Lepine v. Ferrard 255 Livingston v. Greene 80G, 807 Leslie v. Devonshire 373, 565 u. Livingston 148 V. Marshall 866 V. Newkirk 51,53 Lester v. Garland 45, 304 Livock, In re 143 Letlibridge v. Kirkman 748 Llewellyn, In re 611, 615 V. Lethbridge 779 Lloyd V. Bran ton 186 V. Thurlow 188 u. Davies 325 Lethieuillier v. Tracy 555 832, 833 .. Lloyd 211, 736, 764, 845, 846, Lett V. Randall 274, 468 863 Levet V. Needham 566 568, 581 V. Loaring 880 Lewes ;;. Lewes 397 V. Roberts 87 Lewis, In re 82 133, 141, 181 V. Spillett 566 V. AUenby 228 Locke V. James 97 136, 144, 170 xlvi TABLE OP CASES. liocke V. Lamb 8i0 Lucas V. Brandeth 590, 596 LockViart v. Hardy 397 V. Carline 839 Loder v. Hatfield 835, 837 V. James 18 Loffus V. Man 28 V. Jones 221 Logan V. Bell 123 V. Lucas 221 I). Fairlie 3 V. Parsons 88 V. Ludson 879 Luokcraft v. Pridham 242 V. Watt 31 Ludlow, In re 751 Login V. Coorg 6 V. Stevenson 763 Lomas v. Wright 577 LufEman, In re 86 Lomax v. Holmedon 582 Lugg ». Lugg 124 V. Ripley 234, 571 Lumley v. May 727 Lomber v. Stoughton 781 V. Robbing 747 London v. Garway 565 Lunn V. Osborne 481 London tTniversity v. Yarrow 211, 228, Lushington v. Boldero 177 230 V. Onslow 121, 142, 143 Long V. Aldred 122, 193 Luther v. Kidby 151 V. Dennis 614 Luxford V. Cheeke 803, 804 V. Goodfellow 35 Lyddon v. Ellison 298, 872 V. Wilkinson 340 Lyles V. Lyles 21,26 V. Zook 78 Lynch a. Hill 255, 486, 487 Longdon v. Simson 305, 306, 747 V. Paraguay 2 Longford v. Eyre 87 Lyne's Trust, In re 826 Longhead u. Phelps 285 Lynes v. Townsend 327 Longley v. Longley 565, 733, 738 Lynn v. Risberg 442 Longmore v. Broom 518 V. Kerridge 772 V. Elcam 400 Lyon V. Smith 87 Longstaff u. Renneson 230 Lyon's Trusts, In re 381 Longworth v. Bellamey 320 Lyons v. Bengal 245 Lonsdale v. Berchtoldt 397 V. East India Co. 207 242, 250 Lord I'. Godfrey 614, 616 Lysaght v. Edwards 55, 337, 702, 706 V. Lord 82 112 458, 874 Lytle i). Beveridge 856 V. Wightwick 592 Lytton V. Lytton 533, 800 Lorieux v. Keller 417 Loring v. Blake 266, 293 V, CooUdge 341 M. V. Park 7 Lorings v. Marsh 417 Maas V. Sheffield 39,41 Lorrillard v. Coster 252, 866 Maberly v. Strode 520, 621 Losoombe v. Wintringham 210 244, 248 MoAdam v. Logan 49 Louch V. Peters 188 McAllister v. McAllister 208 Lovat V. Leeds 177, 188 McBride v. Elmer 878 Love V. Gaze 417, 571 v. McBride 136 Love V. Johnston 193 McBride v. Smyth 472 V. L'Estrange 843, 849 McCabe, In re 142 191, 192 Lovell V. Knight 679 V. Swap 694 Loveren v. Lamprey 46, 51 326, 327 McCall V. McCall 448 Lovering v. Minot 612, McCall's Appeal 799 V. Worthington 266 297, 302 McCartee v. Orphans' Asylum 65 Lovett V. GUIender 472 McCarty v. Hoffman 78 Lowe, In re 176 MeChesney v. Bruce 716 V. Carter 431 McClanahan v. Kennedy 787 V. Huntingtower 442 Macclesfield v. Davis 880 i;. Jolliffe 81, 71, 72 McClure v. Evans 417 V. Pennington 680 McClure's Appeal 585 V. Thomas 770, 772, 773 McConnell v. Wilcox 2 V. Williamson 34, 38 McCord !.-. Ochiltree 210 Lowes V. Lowes 461, 466 M'Corniick v. Grogan 23^ ,388.415.417 Lowfield V. Stoneham 409 McCoy V. Hugus 418 Lowndes v. Norton 164 McCray v. Lipp 417 V. Stone 373 McCreery v. Allender 69 Lowther v. Cavendish 672 McCuUoch v., McCulloch 390, 874 V. 'Condon 836 McCuUum V. McKenzie 129 V. Lowther 880 McDermot v. United Ins. Co. 371 Loy V. Kennedy 31 McDermott v. Wallace 543 TABLE OF CASES. xlvii Macdonald v. Bryce 312, 313 314, 828 Maitland v. Adair 339, 743 V. Irvine 614 V. Mackinnon 783, 792 V. Macdonald 14, 240 Major V. lies 146 V. Walker 714, 715 V. Knight 30 McDonald v. Mass. Hospital 208, 210 V. Williams 146 McDonougli V. LougUlin 80 Majoribanks v, Hovenden 24 V. Murdock 2tf2 Makeham v. Hooper 236, 242 McDowall V. Peyton 27 Malcolm v. Malcolm 298 624, 829 McEU'resh v. Guard 89 V. O'Callaghan 811 McElwaine's Will, In re 78 Maiden v. Maine 514 Macey v. Shurmcr 386 Malim v. Keighley 886, 391 McGavock v. Pugsley 827 Malin v. Malin 53, 144 McGee v. Porter 105 Mallabar y. Mallabar 417 639 640, 642 McGirr v. Aaron 207, 208 Mallahar v. Mallahar 566 McGuire v. Evans 477 Mallett t). Sackford 879 V. Kerr 106 Maloue v. Harper 103 Machell v. Temple 90 V. Hobbs 31, 130 u. Weeding 555 V. O'Connor 386, 395 Macliin i>. Grindon 100 Maltass v. Maltass 12, 16 McKeehan ». Wilson 486 Manbridge v. Plummer 75 Mackell v. Winter 837, 857 Manchester & Southport Rail Mackenzie v. Bradbury 531 way. In re 163, 699 V. Handasyde 31,34 Manderson v. Lukens 866 V. King 620 Manfield v. Dugard 582, 806 V. Mackenzie 51 Manice v. Manice 302 Mackett v. Mackett 391, 402 Manigault v. Deas 533 Mackie v. Alston 856 Manly v. Lakin 18,24 V. Mackie 607 Mann, In re 106 Mackinnon v. Peach 351 V. Burlingham 228 M'Kinnon v. Thompson 51, 53 V. Fuller 182 186, 529 Mackintosh v. Townsend 240 V. Mann 410, 414, 417, 418, 431, Macknet v. Macknet 340, 574 769 Maclareu v. Stainton 798 Manning v. Manning 163 McLahlan v. Taitt 841, 861 V. Purceli 29 McLean o. Barnard 71 Manning's Case 879 V. McLean 104 Mannox v. Greener 798 M'Leroth v. Bacon 418 Manuel v. Manuel 2 McMahon v. Ryan 85 Mapp V. EUcock 566, 571 McMasters v. Blair 38 Mappin v. Mappin 851, 861 Macnab v. Whitbread .385 Maraver, In re 4,5 Macnamara v. Whitworth 725, 747 Marchant v. Twisden 717 McNaughton w. McNaughton 51 , 147, 482 Margitson v. Hall 516 McNeeley v. McNeeley 867 Markham v. Ivatt 762 McNinch v. Charles 37 Marks u. Bryant 98 Macpherson v. Macpherson 606 V. Solomon 473 V. Stewart 304, 314 i;. Solomons 761 M'Queen v. M'Queen 443 Marlborough v. Godolphin 280, 288, 600, McRainy v. Clark 147 551 M'Rea v. Mattoon 6 Marlow v. Smith 694 McRee v. Means 866 Marnelt v. Walton 24 MoTaggart v. Thompson 38 Marret ». Sly 730 Mc Vicar, In re 129 Marriott v. Turner 565, 653 Madden v. Ikin 853 Marris v. Burton 188 Maddison v. Chapman 457, 458, 518, Marsden, In re 24 809, 828, 839, Marsh v. Attorney-General 221, 248 845 V. Marsh 79 137 146, 171 Maddox, In re 82, 83 V. Means 211 247, 248 Maddy v. Hale 615 V. Tyrrell 35,38 Magdalene College v. Att. Gen. 251 0. Wheeler 584, 837 Maguire, In re 212 248, 376 Marshall, In re 698 Mahon v. Morgan 445, 471 u. Bentley 753, 841 V. Savage 210 212, 215 v. Bremmer 617 Main v. Ryder 35,78 V. Conrad 68 Mainwaring v. Baxter 252 V. Crowther 606 Mair v. Quilter 840 V. HoUoway 276, 306 xlviii TABLE OP CASES. Marshall v. Hopkins 500, 731, 783 Marshall's Appeal 422 Case 363 Marson v. London, Chatham & Dover Rail. Co. 779 Marston d. Carter 879 V. Fox 53, 125 V. Gowan 664 V. Norton 41, 42 V. Roe 126, 126, 128 Martelli v. HoUoway 275 Martin, In re 18, 40, 80, 82, 85 V. Bowker 708 V. Douch 392 V. Drinkwater 186 o. Glover 754, 759 V. Hamlin 79 V. Hatton 233 V. Hobson 770 V. Johnston 35 V. Lachasse 841 0. Lavertoh 694, 698 V. Lee 2, 6 V. Long 879 V. Margham 244 V. Martin 568, 798, 874 V. Mitchell 35 V. Moulin 691 V. Smith , 689 V. Swannell 551 V. Wellstead 229 Martineau v. Briggs 179 V. Rogers 850 Martins v. Gardiner 135 Marwood v. Darrell 372 V. Turner 99, 324 Maskell ». Farrington 196 Maskelyne v. Maskelyne 392 Mason, In re 355, 770, 772 v. Bateson 371 V. Dun man 98, 99, 103 V. Lineberg 387 V. Robinson 357, 501 Mason v. Tuckerman 798 Massey v. Hudson 281, 808 V. Sherman ' 386 Massey's Appeal 646 Master v. De Croismar 69 V. Stone 98 Masterman v. Maberley 25 Masters v. Masters 95, 421, 441 V. Scales 827 Mather v. Scott 230 V. Thomas 699 Mathes v. Smart 769 Mathew v. Mathew 793 Mathews v. Daniel 879 V. Kel>le 308, 309, 313, 314 V. Warner 102 Matson v. Magrath 124, 125, 128 V. Swift 598, 632 Mattliew V. Osborne 59 Matthews v. Venables 167 Maud V. Maud 396 Maude v. Maude 615 Maugham v. Mason V. Vincent Maundy v. Maundy Maxee v. Shute Maxwell, In re V. Maxwell May V. Bradlee V. Roper V. Wood Maybank v. Brooks Maybery v. Brooking Mayer v. Gowland V. Townsend Maynard v. Woodard V. Wright Mayo V. Jones Mazyck v. Vanderhorst Mead, In re Meador v. Sorsby Mealing v. Pace Means v. Means V. Moore Mebane v. Womack Medley v. Wood Medlicott v. Bowes Medlycptt v. Assheton Meeds v. Wood Meek v. Devenish V. Perry Meeker v. Meeker Meese v. Keefe Megginson v. Moore Mehrtens v. Andrews 625 523 798 24 37 11, 332, 449 38 664 834, 839 340, 440 . , 793 160 872 208 519 38 255, 879 83 51 18 18 130 339, 341 27 841 139 729, 805 599, 603 86 35 2,31 386 607, 608, 611, 613 275, 314 211 414, 483 28 879 134, 135 . 20, 92 173, 767 389, 390 747 699 291 170 266, 274 274 Meller v. Stanley Mellish V. Asjlum V. Mellish Melnish v. Milton Melson v. Cooper Mence v. Mence Mercer, In re Meredith, In re V. Heneage Meredith v. Meredith V. Vick Meredith's Trusts, In re Meredyth v. Maunsell Merlin i'. Blagrave Merrick's Trusts, In re Merril v. Johnson Merrill v. Emery 879 Merritt, In re 173, 3,^7 0. Farmers' Fire Ins. Co. ' 704 Merry v. Hill 853 Merryman v. Merryman 603 Meserve v. Meserve 827 Messeeva v. Carr 3U9 Messenger v. Clark 40 Metham v. Devon 94 Methodist Church v. Remington 260 V. Warren 252 Methuen v. Methuen 182 Meure v. Meure 687 Meyer v. Eisler 806 V. Fogg 74 TABLE OP CASES. xlix Meyer v. Simonsen 611 MinshuU V. Minshnll 356 MiftU V. Brain 460, 462, 466 Minter v. Wraith 285, 286 Miohell V. Michell 753, 758 Minton v. Kirwood 747 Michell's Trusts, In re 208 Minuse v. Coxe 51 Mick V. Mick 68 Missionary Soc. v. Chapman 207, 504 Mickle V. Matlack 80, 81, 89 V. Reynold 439 Mieklestone v. Brown 233 Missionary Society's Appeal 439 Midland Counties Railway, In re 327, Mitchell V. Colls 523 335, 788 V. Long 866 Midland Counties Eailway Co. V. V. M'Isaac ■ 765 Oswin 163 , 722, 729 V. Mitchell 105, 431 Midland Counties Railway Co. V. V. Smith 24 Westcomb 699 V. Thomas 35,38 Middlebrook v. Bromley 448 V. Walker 417 Middleton v. Cater 342 Mitchell's Estate, In re 226 I). Clitherow 227 Mitcheson, In re 136 V. Losh 310, 311 Mitford B. Reynolds 208, 209, 250, 359, V. Spicer 69,236 367, 369 Milbank v. Lambert 210, 221 Moase v. White 676 Mildmay v. Quicke 163 Mocatta v. Murgatroyd 693 Miles V. Boyden 193 Moffatt V. Burnie 543 V. Dyer 605, 507, 513 V. Strong 864 , 866, 879 V. Harrison 237, 238 Moflfett V. Bates 450, 458 17. Miles 827, 329 Mogg V. Hodges 230, 242 Miles's Will . 80 V. Mogg 76 259 , 875, 877 Mill's Appeal 38 Moggridge v. Thackwell 244, 245, 250, Millard v. Bailey 363, 417 391 Milledge v. Lamar 18 Mohun V. Mohun 358, 500 Miller v Brown 42, 193 Molineaux v. Molineaux 90 V. Chittenden 865, 866 Molyneux v. Rowe 721 V. Flournoy 472, 473, 476 Monck V. Monck 200 V. Huddlestone 766 Monday, In re 30 V. James 3 Monk V. Mawdsley 741 V. Macomb 255 Monkhouse v. Holme 835, 851 V. McNeill 89 V. Monkhouse 606, 514 V. Miller 31,35 Monroe v, Douglass 9 V. Phillips 122 Montagu v. Nucella 516 V. Rowan 208, 212 1). Sandwich 775 V. Springer 417 Montague v. Jeffries 165 V. Teachout 208 Montefiore v. Montefiore 104 V. Thurgood 457 Montgomerie v. Woodiey 852 V. Travers 409, 418, 423 424, 441 Montgomery v. Perkins 89 795 Monypenny v. Bristow 193, 198 Millican v. Millican 21 Monypenny v. Bering 263, 285, 286, Mills, In re 144 298 301, 561 V. Brown 614, 619 Moody V. King 879 V. Farmer 244 V. Walters 831 V. Fogal 2 Mooers v. White 68 115, 201 V. Mills 608, 612, 614 615, 618 Mooltrie v. Hunt 80 Milne v. Parker 614 Mooney v. Olsen 85,36 Milner v. Milner 529 Moore v. Blauvelt 35 Milnes v. Sla'.er 51 V. Budd 6,15 Milroy v. Milroy 293 806, 845 0. Darrell t Milsom V. Awdry 747 V. Dimond 874 Milsome v. Long 745 «. Greene 31 Milsone v. Long 29 V. Gwynn 6 Miner v. Atherton 162 V. Hawkins 48 Mining v. Batdorff 807 i;. Howe 864, 865, 866 Minkler v. Minkler 1.33 V. King 83, 89 108, 110 Minnis v. Aylett 672 V. Lyons 799, 807 Minor, In re 829 V.Moore 80, 8fi, 89, 137, 210, 219 V. Thomas 38 250, 673, 756, 770 Minot V. Boston Asylum 378, 417, V. Parker 265, 864 418 t). Raisbeck 163 V. Lappan 820, 503 V. Smith 854 VOL. I., d TABLE OF CASES. Moore v. Tanner V. Weaver V. Wilkins Moore's Trust, In re Mordecai v. Boglan Morgan, In re Ex parte V. Edwards V. Gaines u. Gardiner V. Gronon V. Holford 31 842 12 186 417 25, 176 697, 698 458 2 835 291 52 V. Morgan 255, 311, 312, 313, 314, 607,612,616,618,840,848 V. Surman V. Swansea V. Tliomas Moriarty v, Martin Morice v. Durham Morley, In re u. Bird V. Croxon Morrall v. S,utton Morrell v. Dictey V. Fisher Morres ?>. Hodges Morrice v. Aylmer Morris v. Burroughs V. Henderson V. Howse V. Lloyd V. Maule V. Stokes Morrison v. Campbell V. Hoppe V. Morrison V. Semple Morritt v. Douglass Morrow v. Williams Morse, In re V. Faulkner V. Mason V. Morse Morse v. Ormonde V. Thompson Mortimer v. Hartley V. Ireland V. Moffatt V. West Morton v. Barrett V. Funk V. Ingram V. Onion V. Perry Morwan v. Thompson Mory V. Michael Moseley's Trusts, In re Moser v. Piatt Moss V. Cooper V, Barter Mosser v. Mosser Mostyn v, Champneys V, Mostyn ■Moultrie v. Hunt Mounsey v. Blamire 650, 655 709 320 449 212, 215, 391, 565 698 341 228, 230 483, 506 24, 27, 31 785, 793 615 382, 793 446 722 51 497 ,736 371 35 2 736 177 722 110 879 850 60 318, 320 838 129 255, 262 800 41 485 511 711 879 880 97 298 473, 503 865 74 122 422, 769 122, 123 677 273 794, 795 234 685 21 658, 660 388 2 417 Mountain v. Bennett V. Young Mousley v. Carr Mower v. Orr Mowlem, In re Mowry v. Selbu Moye V. Kittrell Muckleston v. Brown Mudway v. Croft Muir V. Leake Mules V. Jennings j Mullen V. Bowman V. McKelvy MuUins V. Smith Mullock V. Souder Mundy, In re V. Mundy Munro v. Holmes V. Merchant Murkin v. Phillipson Murphy v. Murphy Murray v. Addenbrook V. 'Johnston V. Jones V. Murphy o. Oliver V. Tancred Murry v. Murry Murton v. Markby Musgrave v. Down Muskett V. Eaton Musser v. Curry Muston, In re Mutlow V. Bigg Mutter's Estate Myers v. Perigal V. Vanderbelt Mytton V. Boodle N. 35 747 619 854, 355, 590 652 86 21 565 38 31 597 571 31, 99, 337 762 327 24,29 130, 134, 136 505 68 810, 836 74,86 293 177 512 84 193 840 101, 104 589, 747 24 817, 819 198 86 599, 603 476 222, 223 18 507 Nailing v. Nailing 34 Nalle V. Fenwick 27,31 Napier v. Napier 678 Napper v. Sanders 831 Nash V. Hunt 38 V. Morley 208, 209. 212, 215 V. Nash 821 V. Read 71 V. Smith 566 Nason v. First Bangor Church 378 Nat V. Coons 2 Neate v. Pickard 135 Neathway v. Ham 878 Neave's Estate 75 Needles v. Martin 208, 209, 252 Neeld v. Neeld 381 Neely v. Grantham 595 Neif' s Appeal 193 Negus V. Coulter 222 1;. Negus 129 Neighbor v. Thurlow 563, 564 Neil V. Neil 87, 88 Nelson v. Bridport 2.6 TABLE OF OASES. Nelson v. Callow 292 V. Hopkins 425, 67S, 676 V. McGiftert 31, 87, 171, 173, 176 V. Moore 341 Nethersole v. Indigent Blind School 242 Nettleton v. Stephenson 304, 312 Nevill V. Boddain 177, 874 V. Nevill 397 Neville v. Fortescue 618 Nevinson v. Stables 7 New V. Bonaker 246, 250 Newberry, In re 632 Newbold v. Boone 472 V. Pritchett 338 Newburgh v. Newburgh 412, 413, 492, 629 31 Newburyport Bank v. Stone Newby v. Skinner 584 New England Jewebry Co. i . Merriam 694 Newell V. Homer 134 V. Weeks 27 Newell's Case 41 Newhouse v. Godwin 31, 35, 36, 38 Newland v. Attorney-General 211 V. Majoribanks 735 V. Shephard 548 Newlin v. Freeman 41 Newman, In re 88 V. Lade 179 V. Newman 266, 753, 767, 774, 819, 854 V. Nightingale 516, 756 Newson v. Starke 208, 210 Newton v. Barnardine 557 V. Clarke 88,89 V. Griffith 487, 879 V. Lucas 794 V. Newton 185, 191 Niblock !!. Garratt 325,523 Nicholas v. Chamberlain 782 0. Nicholas 761 NichoU V. Nicholl 298 301, 866 NichoUs V. NichoUs 26 V. Tolley 514 Nichols V. Binns 35, 37, 38 V. Lewis 427 Nicholson v. Patrickson 343 Nickerson v. Bowly 458, 467, 551 V. Buck 86,89 Niekisson v. Cockill 237, 594 NicoUs V. Sheffield 256 257, 866 Niell V. Morley 38 Nightingale v. Burrell 152 654, 864, 866 V. Goulbourn 211 Nightingall v. Smith 795 Nitzell V. Paschall 782 Noble V. Willock 45, 687 Nock V. Nock 88 Noel V. Henley 608 635 636, 637 0. Hoy 717 730, 731 V. Jones 397 V. Noel 636 Norcott V. Gordon 468 Norfolk V. Giffi)rd 837 Norfolk's Case 295 Norman, In re 523 V. Kynaston 177, 872, 873 1). Morrell 421 Norris v. Beyea 473 V. Beyer 339 V. Chambres 44 V. Clark 458 V. Frazer 417 V. Johnston 866 V. Thomson 208 North, In re 147 u. Compton 666, 568 V. Valk 684 North Adams Univ. Soc. » Fitch 207 Northcutt V. Northcutt 78 Norton v. Bazett 88 Nottley V. Palmer 469 Nowlan v. Nelligan 387 Nowlin V. Scott 98 Noyes, In re 87 V. Barber 31 Noys V. Mordaunt 469 Nugee V. Chapman 759 Nunn's Trusts, In re 382, 411 Nunnery v. Carter 867 Nutt «. Nutt 414 0. Oakeley i>. Kitchener 835 Oakes v. Chalfont 287 V, Oakes 793 V. Strachy 405, 619 Gates V. Cooke 532 Oberle w. Lerch 632 O'Bierne, In re 386 O'Brien v. Galagher 84,89 V. Gallagher 80 II. Heeney 605 V. People 38 Ockleston v. Heap 713 Oddie V. Brown 359, 849 Odell V. Odell 207, 251 292, 302 O'DriscoU v. Koger 458, 837 O'Dwyer v. Geare 28 OfEut V. Offut 99, 103 Ogden's Appeal 357 Ogle V. Cook 31, 620 Ognell's Case 41 O'Hara v. Chaine 461, 462 Oke V. Heath 345 646, 767 Okeden v. Clifden 441 Old V. Old 71 Oldham v. Hughes 590 V. Litchfield 416, 417 V. Pickering 62 Olding, In re 84, 89, 110 Old South Soc. V. Crocker 208 Oliphant v. Hendrie 240 Olivier v. Towns 2 Olney v. Bates 354, 851 V. Hull 799, 803 O'Mahoney v. Burdett 870 Onimanney v. Butcher 208 212, 773 O'NeaU v. Farr 35, 115, 137, 193 lii TABLE OF CASES. O'Neil V. Lucas 813 Palmer v. Holford 254, 283 , 306, 314 ». Smith 98 V. Newell 337, 417, 684 Ongley v. Chambers 428, 783 V. Simmonds 390 V. Peale 374, 375 V. Voorliis 458 Onions v. Tyrer 89 ,135 , 146, 169 V. Whitmore 3 Onslow V. South 837 Panaud v. Jones 71 V. Wallis 672, Pare v. Clegg 211 Oppenheim v. Henry 29,848 Parfitt V. Hember 298, 300 Ord, In re 335 Park, Ex parte 179 V. Ord 747 Parker, In re 853 Orrell v. Orrell 448 V. Bogardus 327 Osborn v. Bank of U. S. 880 V. Bolton 388 V. Cook 80, 81, 82, 86 V. Briscoe 197 Osborne, In re 4,6 V. Brooke 39 0. Varney 4J7 V. Brown 31,80 Osgood V. Breed 31, 41, 42 V. Carter 454 V. Lovering 503 V. Downing 462 O'Shea v. Howley 53,606 V. Hodgson 835 Osmond v. Fitzroy 88 V. Lamb 148 Oswald, In re 173, 414 V. Marchant 626, 669, 674, 753, Otis V. MoLellan 266, 293 759 V. Smith 782 V. May 208 O'Toole V. Brown 328 729, 733 V. Kickson 357, 530 Ould V. Washington Hospital 208, 251 V. Parker 31, 108, 476, 505, 554, Ouseley v. Anstrutlier 529 866 Outlaw V. Hurdle 102 V. Plumraer 798 Overall v. Overall 81 , 130, 136 V. Sowerby 458, 461, 841, 842, Overbury v. Overbury 124 863 Overend v. Gurney 186 V. Tootal 492 528, 660 Overing v. Russell . 68 Parker's Appeal . 798 Overton v. Tracey 415 Parkin v. Bainbridge 77 Owen V. Boyle 6 V. Hodgkinson 850 V. Smyth 492 V. Knight 515, 806 Owens V. Bean 377 Parkison v. Parkison 99 V. Missionary Soc. 207 , 213, 219 Parmitter v. Parmitter 410 Owing's Case 415 Parnall v. Parnall 290 Owston, In re 34,35 Parr, In re 142, 851 Oxenforth v. Cawkwell 668 11. Parr 842 Oxley V. Lane 472 V. Swindels Parramore v. Taylor Parrish v. Vaughan 554 80,89 605 P. Parry v. Warrington Parsons v. Baker 608 386 Packard v. Hill 6 V. Freeman 155, 159 Packer v. Scott 273 u. Lanoe 17, 18, 124, 410 Packman, In re 694 698, 703 V. Lyman 2 V. Gregory 841 V. Parsons 98, 380, 823 Padbury v. Clark 457, 471 V. Winslow 75, 803 Padfield v. Padfield 160 Pascall, In re 91,92 Page V. Donovan 106 Paske V. OUatt 86 v. Hughes 443 Pasmore v. Huggins 482, 504 V. Leaping well 227, 347, 565, 632, Passmore v. Passmore 24 634, 766 Patch V. Graves 177 V. May 828 V. Patch 725 V. Page 339, 347 V. Shore 26, 160 337, 677 V. Young 765 Paton V. Sheppard 753, 758 Paglar v. Tongue 30 Patrick v. Yeatherd 775 Pain V. Ridout 654 Patridge v. Patridge 152 Paine w. Hall 233, 415 Patten, In re 14 V. Parsons 200 V. Poulton 138 Paine's Case 878 V. Tallman 31 Paisley's Appeal 385 Patterson v. Devlin 879 Palmer, In re 747 V. Ellis 255, 798 V. Crauford 397 V. Hickey 134, 143 V. Flower ^ 899 V. Huddart 729, 733 TABLE OP CASES. liii Patterson v. Leith 409, 431 V. Patterson 38 V. Kansom 83 Pattison v. Pattison 326, 331, 552, 553 Patton V. Allison 36 V. Randall 632 Paul V. Compton 388 V. Paul 786 Pawlet V. Clark 251 Payliss's Trust, In re 504 Paylor «. Pegg 499, 883 Payne, Ex parte 395 In re 851 V. Samms 878 V. Trappes 189, 191, 411 Peach, In re ' 120 I'. Phillips 152 Peacock v. Monk 19, 41 Pearce v. Edmeades 543, 544 v. Gardner 592 V. Graham 355 V. Loman 835 Peard v. Kekewich 255, 816 Pearman v, Pearman 859 Pearn, In re 106 Pears v. Weightman 694 Pearsall v. Simpson 490, 808, 823 Pearse, In re 85 ii. Pearse 3 Pearson v., Dolman 849, 860 !;. Lane 586, 605 V. Pearson 110, 458, 466, 467 V. Rutter 832 V. Wiglitman 31 Peat V. Powell 548 Pechell, In re 133 v. Hilderley 8 V. Jenkinson 99 Peck V. Cary 81, 87, 89 V. Hasley 358, 303 Pedder, In re 586, 599 Pedley v. Dodds 788 Pedratti's Will 359 Peebles, Appeal of 27 Peek, In re 843 Peillon V. Bi-ooking 2 Peisch V. Dickson 431 Pelham v. Anderson 210, 231 Pells V. Brown 874 Pembroke, In re 91 V. Pemberton 133, 137, 138 Penfold V. Bouch 565 Penley v. Penley 516 Penn Life Ins. Co. v. Stokes 443 Pennant v. Kingscote 87 Penniman i>. Barremore 442 V. French 755, 769 Pennock's Estate 385 Penny v. Turner 518, 552 People V. Conklin 68, 69, 70 V. Lambert 6 Pepper v. Dixon 461 Perceval v. Perceval 650, 819 Perin i>. Carey .209, 251 Perkins v. George 327 Perkins v. Little V. Micklethwaite V. Perkins V. Walker Perrin v. MoMicken Perring v. Trail Perrott v. Perrott Perry v. Phelips V. Rhodes V. Whitehead Perry's Ex'rs v. The Queen Petchell, In re ^ Peter v. Beverley Peters v. Dipple Petre v. Petre Pett V. Hake Pettes V. Bingham Pettinger v. Ambler Petty V. Willson Petway v. Powell Pewtner, In re Peyton v. Lambert Pfleger, In re Phelps, In re V. Pond V. Robbins Phene, In re Pheysey v. Vicary Philadelphia v, Davis V. Elliott V. Girard 458 200, 324 38 152 2 242 135 51, 645 837 664 355 173 584 827 766, 767 102, 104 37 337, 677, 686 770 76 92,93 301 615 120 312 645 551, 553 782 326 219 209, 297, 312 Philanthropic Soc. ». Kemp 237 Philipps V. Allen 177 V. Chamberlaine 359 V. Barker 423, 433 V. Beal 738, 740, 745, 881 V. Chamberlaine 414, 504, 531 V. Eastwood 771 u. PhiUips 58, 59, 339, 566, 624, 625 0. Serjent 619 V. Sinclair 708 V. Turner 152 Phillips Academy v. King 65 Philp's Will, In re 518 Philpot, In re 110 Philpott u. St. George's Hospital 231,251 Phipps V. Ackers 806, 811, 812, 818 u. Anglesea 175 V. Hale 85 V. Mulgrave 834 V. Pitcher 72 V. Williams 811 Phoebe v. Boggess . 98, 103 Piatt V. McCuUough 78 Picken v. Matthews 264 Pickering v. Langdon 176, 472, 473, 476, 486 n. Pickering 379, 610, 616 V. Stamford 340, 467 V. Vowles 695 Pickersgill v. Grey 263 V. Rodger 355, 446 Pickford v. Brown 266, 850 Pickup V. Atkinson 617, 618 Uv TABLE OP CASES. Picquet v. Swan 31,41 Postell V. Postell 255 704, 879 Pidgely v. Pidgely 681, 688 Postlethwait^s Appeal 423 Piercy, In re 87,90 Potter V. Chapin 219 Pierpont v. Patrick 176 V. Potter 193 Pierson v. Garnet 228, 386 V. Titcomb 2 Pieschel v. Paris 245 V. Webb 31 Pigot V. Penrice 730 Pottinger v. Wightman 15 Pigott V. Bagley 458 Potts V. House 34, 35, 38 V. Waller 192 Poulson w. Wellmgton. 527 V. Wilder 117, 747 Povall, Ex parte 2 Pike V. Stephenson 799 800 807, 879 Powdrell v. Jones 469 V. White 58 Powell, In re 684, 771 Pilcher V. Hole 183, 423 V. Attorney-General 210 V. Randall 399 u. Biddle 438 Pile V. Salter 805 V. Brown 879 Pilkington v. Boughey 227 387, 565 V. Cleaver 31, 162 Pinbury v. Elkin 46, 861 V. Davis 375 Pinckard's Trust, In re 385 V. Evans 608 Pinney v. Hunt 28 V. Jessop 225 Pinson v. Ivey 431 V. Mouehett 173, 414 Pistol V. Riccardson 669, 671 V. Manson Manuf. Co. 417 Pitcairne v. Erase 380 V. Merrett 571 Pitman v. Stephens 718 V. Merritt 64,69 V. Stevens 717 739, 744 V. Morgan 694 Pitt V. Jackson 300, 301 V. Powell 136, 141, 146, 192 Pitts V. Snowden 466 Powell's Trust, In re 291 V. Routh 3,598 Power V. Hayne 399 Playne v. Scriven 83,89 V. Power 150 Plenty v. West 175 476, 798 Powerscourt v. Powerscourt 211, 244 Plowden v. Hyde 156 157, 448 V. Capron 292 Plumpstead's Appeal 24 Powys V. Mansfield 193, 200, 417, 664 Pocock V. Att.-Gen. 217 Pratt V. Beaupree 565 V. Lincoln 735 V. Church 401 Podmore v. Gunning 386, 417 V. Felton 458 V. Whatton 133 V. Harvey 231 Pogson V. Thomas 733 794, 795 V. Mathew 324, 380, 523 Polden V. Bastard 783 V. Pratt 182 Pole V. Somers 452, 454 V. Rice 472, 475 V. Ralston 69 V. Sladden 565 Pollen V. Huband 151 Pray w. Waterson 99, 327 PoUey V. Seymour 596 Prendergast i;. Prendergast 612 Pollock V. Glassell 20,78 Presant o. Goodwin 3117 Pomfret v. Perring 337 Prescott V. Barker 674 Pond V. Bergh 46, 327 1). Prescott 338, 340, 341, 851, Pool V. Bott 850 646 V. BufEum 79 Press V. Parker 791 Poole ». Coates 157, 321 Preston v. Melville 2,615 Poor v! Miall 227 V. Merger 262 Pope ». Pope 386 Prestwidge c Groombridge 375 V. Whitcombe 553, 754 Prevost «. Clarke 387 Poplin V. Hawke 31 Price V. Dewhurst 2,4 Popple !'. Cunison 105 V. Gibson 693 Port ti. Herbert 835 V. Hall 812 Porter^ In re 18 V. Hathaway 221, 233 V. Baddeley 615 V. Hunt 506 V, Fox 266, 269, 272 V. Lockley , 518 V. Haydock 2 V. Maxwell 175, 209 213, 338 V. Porter 68 V. Page 436 V. Tournay 751, 881 V. Parker 42 123, 337 i». Turner 26 V. Powell 135, 141 Porter's Appeal 99 V. Warren 357 Trust 889, 516 Prichard v. Prichard 771, 773 Portland v. ProdgerB 40 Pride v. Atwicke 357 Portman v. Willis 751 V. Bubb 89 Post V. Hover 285, 585 V. Fooks 813 869, 823 TABLE OF CASES. Iv Pridgen v. Pridgen 82 Pridie v. Field 188 Priester v. Priester 716 Prince v. Hazleton 98 Pring, Ex parte 565 Pringle v. M'Plierson 193 Pritchard v. Arbouin 227, 228, 231 V. Hicks 481 Probate, Judge of, v. Hardy 880 Proby V. Landor 417 Proctor V. Bath 274, 283, 288 V. Ferebee 684 Provis V. Reed 31 Prowse V. Abingdon 834 Pruden v. Pruden 51, 476 Pryce v. Newbolt 381 Pryor v. Coggin 130, 131 V. Pryor 82 Prytarch v. Havard 699 Public Administrator v. Watts 104, 105 Puddepliatt, In re 106 Puller V. Puller 409 PuUin V. Pullin 668, 793 Pulsford V. Hunter 835, 844 Pulteney v. Darlington 451, 452, 601 Purchase v. Shalliss 877, 428 Purefoy v. Rogers 546, 864 Purser v. Darby 699, 706 Pusey V. Pusey 879 Pusie V. Desbouvrie 471 Putnam v. Emerson 716 Pye, Ex parte 162 (J. Linwood 487 Pym V. Lockyer 417 Q. Quarles v. Garnett 458 Quayle v- Davidson 395, 406 Queen's College v. Sutton 379 Quennell v. Turner 793 Quick V. Quick 188 Quicke v. Leach 826, 833 Quidhampton v. Going 98 Quincey v. Quincey 146, 411 Quincy v. Rogers 176, 177 Qainn t>. Butler 170 V. Hardenbrook 318, 327 K. Eabbeth v. Squire 798 Rackham v. Siddall 697 Radburn v, Jervis 96, 118, 188 Radford v. Radford 487 V. Willis 325, 521 Radley v. Lees 487 Raffenell, In re 12 Ragland v. Huntington 89 Ragsdale v. Booker 18 Eaikes v. Ward 401 Raine, In re 18,74 Raines v. Barker 326 Raines v. Corbin 448 Rainier v, Rainier 136 Ralph V. Carrick 534, 535 536, 545 V. Watson 627 Ralston v. Telfair 671 Rambler v. Tryon 36,38 Ramsay v. Calcot 98 Ramsdell v. Ramsdell 866, 879 Ramsden v. Hassard 553 RamsdiU v. Wentworth 417 Ramsey v. Ramsey 80 Ranclifi v. Parkyns, 86 89, 447 457, 458 Randall v. Beatty 139 V. Bookey 566, 566, 567, 570 V. Daniell 418 V, Hodges 31 V. Russell 879, 881 Randfield v. Randfleld 74, 818 480, 482 Randolph v. Wendel 866 Ranelagh v. Ranelagh 563 Raney v. Heath ' '810 Rankin v. Rankin 36,98 Rash V. Parnel 81 Rashleigh v. Master 586 RatclifE V. RatclifE 31 Rathbone v. Dyckman 532 533, 879 Ravens v. Taylor 177 Ravenscroft, In re 170 Ravrlings v. Jennings 751, 753, 758 Rawlins, In re 81 V. Burgis 152, 156, 158 V. Goldfrap 879 V. Richards 173 Ray V. Enslin 505 V. Hill 78,87 V. Walton 81, 168, 172 Rayfleld v. Gaines 473 Rayman v. Gold 544 Raynham v. Canton 6 Rea V. Twilley 646 Read, In re 5 V. Backhouse 183 V. Crop 455, 462 V. Gooding 266, 829, 861 V. Hodgens 759, 762, 770 V. Hodges 207 V. Snell 515 V. Stedman 69, 566, 571 Reading v. Blackwell 584 V. Royston 75 Reay, In re 39 V, Croucher 104 Redding, In re 78 V. Allen 472 Redfern, In re 496 Reding v. Stone 865 Reece v. Pressey 36 V. Steele 482 Reed v. Braithwaite 624 V. Buckley 837 V. Dickerman 458, 471 V. Reed 798 V. Watson 80 V. Woodward 18 Reed's Will 34 Ivi TABLE OF CASES. Reek's Appeal 856 Riddell v. Jenner 61 Keennant v. Hood 856 0. Johnson 36 Kees V. Kees 79 Rider v. Kidder 417 Reese v. Court of Probate 169 V. Wager 147, 152, 161 0. Hawthorn 98, 103 Ridge V. Newton 793 Reeve, In re 142 Ridgeway v. Munkittrick 484, 650, 656 V. Att.-Geu. 244, 250 u. Underwood 51 Reeves v. Baker 885, 392, 665, 761 Ridgway v. Ridgway 859 V. Long 864 V. Woodhouse 869 V. Reeves 31, 409, 417 Ridout V. Dowling 476 RefEell v. Reffell 410 V. Pain 477, 484 Reg. V. London 241 Rigg V. Wilton 31 Regan, In re 108 Riggs V. Myers 431 Reid, In re 8 Right V. Banks 59,60 V. Borland 170 V. Compton 497 V. Reid, 449, 552, 581, 681, 758, 873 V. Day 506 Reilly v. Chouquette 676 V. Price 80,87 Renvoize v. Cooper 699 V. Sidebotham 496 Renwick v. Smith 422 Rigley's Trust, In re 210, 211, 218, 228, Re wait V. Ulrich 422 242, 367 ReX V. Bettesworth 41 Riley v. Garnett 819 V. Bridger 44 V. Riley 78 V. Holland 68 Ring V. Hard wick 296, 872 V. Netherseal 31 Ringrose v. Bramham 319 V. Willes 44 Rinington v. Cannon 649 Reynard v. Spence 461, 471 Ripley, In re 87, 133 Reynolds, In re 191, 192 V. Waterworth 62, 99, 704 V. Godlee 632 Rippen v. Priest 699 V. Kortwright 2,762 Rippin, In re 140 V. Reynolds 35, 87, 88 Ripple V. Ripple 6 0. Sliirley 81, 193 Rippon, In re 8 V. Thriipp 27 Risley v. Baltinglass 151 V. Torin 448, 457, 466 Ritch V. Sanders 777 V. Wlielan 431 Rittson V. Stordy 68 V. Wright 64,69 River's Case 880 Rhett V. Mason 385 Rivers v. Fripp 806, 807 Rhodes v. Vinson 81, 130 V. Rivers 18 V. Whitehead 819 Rivett's Case 219 Rice V. Dwight 37 Roach V. Haynes 180 V. Jones 2 V. Trood 449 V. Satterwhite 255 Roadley v. Dixon 460, 462 Rich V. Cockell 89, 41, 447 Roake v. Denn 688 V. Whitfield 689, 604 Robards v. Jones 872 Richards v. Attorney-General 163, 586 Roberts v. Brinker 837 V. Davies 410, 652 V. Cooke 762 V. Dutch 2, 5, 418 V. Johnston 505 <,-. Mitchell 632 V. Kuffin 755 V. Queen's Proctor 173, 175, 176 V. PliiUips 84,86 V. Richards 693 V. Roberts 18, 268 V. Swansea Improvement V. Round 138 Co. 779 V. Smith 464; 465 Richardson v. Barry 169, 170 V. Walker 623 V. Hall 753 I'. Welch 80 V. Power 531 Roberts's Will, In re 2,12 V. Richardson 74, 193 Robertson ;;. Barbour 2,31 V. Spraag 514 V. Collier 175 V. Watson 421, 422 V. Powell 176, 177 V. Wheatland 799 V. Smith 25 Richmond ». Aiken 708 V. Stevens 443 Rickards v. Mumford 133, 137 Robeson v. Kea 102 V. Rickards 359 Robey v. Hannon 25 V. Robson 211 Robins v. Dolphin 2, 15 Ricketts v. Loftus 110 Robinson, In re 18, 26, 104 V. Turquand 428 V. Adams 38 Kickit's Trust 382 V. Allen 31 TABLE OP CASES. Ivii Eobinson v. Bishop 417 Rose V. Bartlett 668, 673 V. Crandall 31 V. Cunynghame 56, 94, 96 V. Dusgate 392 V. Hill 733 0. Fife 708 V. Quick 26 V. GelJart 237 V. Rose 753 V. Hardcastle 284, 290, 300 Eosewell v. Bennett 417 V. King 89 Ross V. Bartlett 703 V. Knight 650 V. Drake 585, 800 V. London Hospital 237, 624, V. Ewer 31,81 626, 63B V. McQuiston 38 V. Robinson 250 592, 599, 610 V. Ross 318 664, 747 V. Sciily 18,27 V. Veal 428, 779 V. Smith 81 RoBsborough-v. Boyse 85 V. Taylor 565, 566, 620 Rosser v. Franklin 78, 80, 81 V. Ticlcell 401 Rossetter v. Simmons 722 V. Waddelow 384 Rosslyn's Trust, In re 304, 306 V. Webb 733 Rotch V. Emerson 208, 209 V. Wheelwright 863 Rothmahler v. Myers 357, 414 417, 441 V. Wood 868, 869 Rouse's Estate 846, 849 Rochelle v. Rochelle 102, 103, 104 Routledge v. Dorril 280, 282 291, 302 Roddy V. Fitzgerald 552 Rountree v. Talbot 476, 482 Roe V. Aistrop 747 Rowbotham v. Dunnett 234 V. Avis 663, 473, 660 Rowe V. Rowe 39, 615 V. Bell 792 Rowland v. Gorsucli 318 V. Bird 672 V. Tawney 266, 850 V. Clayton 747 Rowley v. Eyton 196 V. Fludd 646 V. Merlin 144 fc. Foster 484 Roy V. Rowzie 208 V. Gilbert 684, 724, 726, 743 Royall V. Eppes 879 V. Heyhoe 102 Rucker v. Lambdin 90 V. Jeffirey 57 ,;. Scholefield 874 V. Jones 48 Ruddon ». McDonald 89 u. Reade 697 Ruding, In re 425 677, 686 V. Summersett 879 Rudland v. Crozier 398 V. Vernon 788 787, 792, 798 Rudstone v. Anderson 321 V. Walker 730, 748, 750,780 Rudy V. Ulrich 85, 169 V. Wegg 59 Rumbold v. Rumbold 668 V. Tend 720, 723 Runkle v. Gates 132 Rodgers v. Rodgers 177 Ruoff's Appeal 77 Rofe V. Sowerby 837 Rupp V. Eberly 866 Rogers, Appellants 18 Ruscombe ». Hare 154 Ex parte 564 Rush V. Megee 38 V. Diamond 36 V. Parnell 31 V. Goodenough 411 Eusing 0. Rusing 551 V. Greenough 191 Russell, In re 706 V. Jones 445 V. Buchanan 819, 850 V. Pittis 189, 193 V. Clowes 764 V. Rogers 31, 566, 570, 571, 799, V. Dickson 27, 186 807 V. Falls 87,88 V. Ross 806, 879 V. Jackson 211 234 415, 565 V. Smith 162, 780, 781 V. Kellett 210 214 247, 248 V. Thomas 210, 754, 771 Rutherford v. Green 584 Rolirer v. Stehman 18, 89, 103 V. Maule 100 RoUfe V. Budder 41 V. Morris 85 RoUwagen v. Rollwagen 35 V. Rutherford 80 Romilly v. James 558, 559 Rutledge v. Rutledge 471 Roney v, Stiltz 327 Rutter V. McLean 451, 452 Rooke V. Rooke 647, 655, 680 Ryall V. Hannam 382 V. Worrall 96 Ryerss v. Wheeler 410 417 , 418, 431 Roome v. Phillips 806, 807, 810 Rymes v. Clarkson ' 77 Roosevelt v. Fulton 532 Roper V. Constable 170 S. V. Radcliffe 170 V. Ratcliffe 565 Sabine v. Goate 24 Rose, In re 142 Sacket's Case 12 Iviii TABLE OF CASES. Sadler v. Rickards 188 V. Turner 735 Sale V. Moore 392 Salisbury v. Petty 516, 518, 872 Salmon v. Green 841 V. Hayes 31 V. Salmon 873 V. Stuyvesant 414 Saloway v. Strawbridge 713 Salt V. Chattaway 565, 643 Salter v. Cavanagh 566 V. Fary 179 V. Metropolitan E. R. Co. 779 Saltmarsh v. Barrett 565, 569, 572 Saltonstall v. Saltonstall 208 V. Sanders 208 ... Saunders 208 Salusbury v. Denton 218, 228, 230, 363, 388, 552 Sampson v. Bradley 31 V. Hutton 467 V. Sampson 665, 669 Sanders, In re 829 V. Asliford 841 ti. Earle 755 V. Kiddell 188 V. Miller 846 Sanders' Appeal 446 Sanderson, In re 365, 398, 653, 844 V. Dobson 718, 729 V. White 207, 219, 251 Sandford v. Irby 779 ». Eaikes 29, 427 V. Sandford 177 Sansbury v. Read 844 Sarle v. Court of Probate 645 Saumarez v. Saumarez 647, 660. 736, 737, 743 Saunders, In re 623 V. Lowe 642 V. Rotherham 406 V. Vautier 846, 849 Saunderson v. Stearns 880 Savage, In re 146 V. Burnham 458, 685 V. Hall 693 V. Tyers 549, 560, 874 Savory, In re > 78 Sawrey v, Rumney 182 Sawyer v. Sawyer 193 Sayer v. Sayer 425, 442, 680 Sayer's Trusts, In re 294 Sayward v. Sayward 506, 506 Scales V. Baker 40 Scammell v. Wilkinson 48 Scanlan v. Wright 69 Scarborough, In re 755 V. Doe d. Saville 256 Scarisbrick v. Shelmersdale 276, 306 Scarth, In re 337 Scawin v. Watson 874 Schaffer v. Kettell 342 Schauber v. Jackson 632 Scliettler v. Smith 285 Schneider v. Norris 18 Schofleld V. Cahuao 177, 179 V. Redfern 607 School Directors v. James 16 Schroder i;. Schroder 156, 444, 447, 448 Schuebly v. Ragan 443 Schultz V. Damburan 2 V. Pulver 2 V. Schultz 134 Schumaker v. Schmidt 18 Scoby V. Sweatt i 165 Scot V. Scot 135 Scott V. Alberry 684, 721, 722, 743 V. Calvit 31 V. EorristaU 236 V. Guernsey 46 V. Josselyn 365 «. Key 395, 400, 401, 402 V. Logan 806 V. Price 837, 879 V. Rhodes 101, 102 Scrape v. Rhodes 557, 560 Scribner v. Crane 31 Seriven v. Sandora 684 Scrivener v. Smith 744 Scrope's Case 371 Scruby v. Fordhara 31, 130 Seade v. Pattison 63 Seagram, In re 86 Seale v. Scale 369 Seaman v. Woods 52, 58, 156, 273, 454, 665 Seaman's Soc. v. Hopper 38 Searles v. Harvey 88 Sears v. Boston 12 V. Dillingham 31, 90 V. Putnam 266, 297, 338 V. Russell 266, 297 Seaward v. Will cock 302 Seccombe v. Edwards 521 Sechaest v. Edwards 35, 80 Sedgwick v. Minot 75 Seeley v. Jago 603 Seguine v. Seguine 35, 80, 81, 87 Seivert v. Wise 504 Selby V. Whittaker 831, 850 Seldon v. Coalter 80 Selwood V. Mildmay 409, 424 Semmes v. Semmes 130, 135 Sennet v. Herbert 261 Seton V. Slade 704 Seymor v. Nosworthy 173 Seymour v. Van Wyck 81 Sewell, In re 614 V. Crewe-Read 232 V. Denny 313, 668 Shadbolt v. Thornton 222 V. Waugh 104 Shaftsbury v. Marlborough 186 V. Russell 880 V. Shaftsbury 147 Shaftsbury's Case 34 Shalloross v. Wright 624 Shaller v. Brand 81 Shand v. Kidd 518 Shanley v. Baker 207, 646, 747 Sharman, In re 74 TABLE OF CASES. lix Shapleigh v. Pilsbury 210 Sibthorpe, In re 93 Sharp V. St. Sauveur 42, 67, 68 V. Moxton 839 u. Sharp 105 Sicloff V. Redman 423, 476 Sharpe v. Crispin 14,15 Sidebotham v. Watson 484 V. Sharpe 697 Sidney v. Shelley 565, 579, 580 Shattuck V. Maynard 12 V. Sidney 332 V. Stedman 799, 837 V, Vaughan 837 Shaw, Ex parte 697 V. Wilmer S76, 653 In re 130 Siegwald v. Siegwald 482 V. Bull 729 Silberschildt v. Sehiott 699, 700, 707 v. Cunliffe 653, 747 Sillick V. Booth 850 V. Lawless 392, 408 Simmonds, In re 89, 110 V. MeMahon 171, 342 V. Cook 806, 817 V. Nevillt! 81, 108 V. Rudall 143 V. PickthaU 232 Simmons v. Pitt 312 V. Rhodes 304, 308, 314 V. Rudall 539, 764 V. Shaw 458 V. Simmons 171 Shea V. Boschetti 143 Simms v. Garrot 319 Sheath v. York 126 Simon v. Barber 245, 376 Sheddon v. Goodrich 94, 95, 97, 448 Simpson, In re 133, 141 Slieets's Estate 472 V, Ashworth 588 Sheetz's Appeal 473 V. Cook 255 Sheffield v. Coventry 833 V. Davis 144 V. Mulgrave 672 V. Earls 616, 618 a. Kennett 861 V. Hornby 634, 540 V. Orrery 762, 803, 804 V. Hornsby 537 Sheldon v. Sheldon 91,93 V. Lester 615 Shelford v. Aukland 679 V. Peach 850 Shelley ;;. Shelley 387 V. Simpson 77,79 Shelmer's Case 769, 770 Sims V. Doughty 473 Shelton v. Shelton 422, 653 Sinclair v. Hone 17 Sliepard v. Wright 505 Sing V. Leslie 18 Shepheard v. Beetham 221, 238 Singleton v. Bremar 18,21 Shepherd v. Nottidge 388 V. Singleton 31 Sheppard v. Lessingham 487 V. Tomlinson 9] , 93, 425, 628, Sherer v. Bishop 187 744 Slierrard v. Harborough 666, 568, 798 Sinnett v. Herbert 228, 242 Slierrat v. Bentley 472, 473, 477 Sisson V. Giles 599, 603 Sherratt v. Mountford 424 V. Seabury 532 Sherwood v. American Bible Soc. 207, 208 Sisters of Charity v. Kelly 80 Shingler v. Pemberton 25 Sitwell V. Bernard 607, 608, 839 Shipperdson v. Tower 475 Skair, In re 91 Shirley, In re 129 Skeggs, In re 586 V. Ferrers 598 Skerratt v. Oakley 530 Shires v. Glasscock 87 Skerrett v. Burd 147 Shoots V. Poe 320 Skey V. Barnes 829, 860 Shore v. Wilson 417, 421, 423 Skinner v. Ogle ' 193, 204, 354 Shorer v. Shorer 586 Skinner's Trusts, In re 397 Short V. Smitli 135, 136, 142, 169, 341 Skip with V. Cabell 136, 185 Shotwell V. Dedham 458 Skirving v. Williams 615, 617 V. Mott 208 Skrymacher v. Northcote 203, 313, 652 Shove V. Pinke 167 Slade V. Pattison 63 Shovelton v. Shovelton 390 Slark V. Dakyns 291 Showers v. Showers 77, 108 Slatter v. Noton 822, 467 Shreiner's Appeal 472 Sledds V. Carey 443 Shrewsbury v. Hornbury 207 Slee V. Manhattan Co. 708 a. Hornby 210 Slingsby v. Grainger 761, 793 Shrimpton v. Shrimpton 842 Sloan V. Maxwell 31, 34, 38 Shropshire v. Reno 38 Slocomb V. Slocomb 2,17 Slmldam v. Smith 823 Small h. Small 31, 85, 81, 82 Shum V. Hobbs 831, 837, 852 V. Wing 839, 840 Shumway v. Holbrook 31 Smart v. Clark 504 Shuttleworth v. Greaves 342, 454 V. King 76 Sibley v. Cooke 340 V. Prujean 19, 20, 212 V. Perry 250, 424, 747 Smartt, In re 92 Ix. TABLE OF CASES. Sraee v. Smee 88 Smelie v. Reynolds 41 Smell w. Dee 837 Smilej' V. Gambill 1-30, 131, 132 Smith, In re 18, 40, 116, 120, 148, 163, 187, 531, 546, 698, 702, 808, 861, 863 V. Adams 469 V. Anderson 187 V. AttersoU 81, 94 V. Bell 423, 472, 476, 800, 879 V. Bonsall 31 V, Bryan 50 V. Caraelford 300 V. Claxton 631, 632 V. Codron 81 V. Coffin 724, 725, 735, 740 V. Conder 417 V. Coney 380 V. Crabtree 481 V. Cunningham 191 V. Daniel 552, 880 V. Dearmer 193, 198 V. Dolby 37, 78 V. East 136 V. Edrington 327 V. Elder ' 6 V. Evans 78 V. Fenner 133, 134 V. Eitzgerald 531 V. Fleming 371 V. Guild 443 V. Hunter 866 V. Hutchinson 827 V. Jersey 423 V. Jones 31, 53, 81, 327 V. King 572 V. Knishern 458 w.Lomas 203,312,647 V. Lyne 454 V. Maitland 527 V. McChesney 171 V. Martin 779 V. Oakes 513 V. Oliver i31, 233, 340 V. Palmer 841 V. Pugh 612 V. Pybus 482 V. Ridgway 782, 794 V. Saunders 650 V. Smith 81, 87, 108, 266, 273, 878, 886, 401, 431, 443, 722 V. Spencer 806, 879 V. Starr 598 e. Steele 81 V. Strong 162 V. Tebbitt 38, 207 V. Triggs 59, 60, 76 V. Union Bank of Georgetown 2 V. Wait 130 V. Wells 417 V. Wilson 421 V. Zaner 68 Smith's Appeal 367 Smither v. Willoek 810, 872 Smock V. Smock 130, 134 Smyth V. Smyth 719, 728, 745 Snelgrove v. Snelgrove 458 Snook V. Watts 37 Snow V. Snow 854 Snowe V. Cutler 865 Snowhill V. Siiowhill 565, 584 Snyder v. Bull 74 Soames v. Martin 400 Soar D. Dolman 140,142 Society for Propagation of Gospel V. Attorney-General 250, 292 Sohier v. Inches 351 r. St. Paul's Church 210 Somerset v. Cookson 879 Somerville v. Lethbridge 252, 302 V. SomerviUe 2, 4, 9, 12 Sondes' Will, In re 285, 296, 873 Sonley v. Clockmakers' Company 66 Sopwith V. Maughan 471 Soresby v. Rollins 228 Sotheron, In re 92 SouUe V. Gerrard 506, 611 South V. AUeine 798 V. Williams 339 Southall V. Jones 18 Southampton v. Hertford 276, 276, 306 Southerland v. Cox 866 Southern v. Wallaston 256, 266, 860 South Newmarket Sem. v. Peaslee 378, 379, 480, 439 Southouse V. Bate 565, 571 Soward v. Soward 18, 83 Sowell V. Garrett 606 Sowerby's Trust, In re 339 Spalding v. Huntington 409 V. Spalding 486, 489, 4rO Sparhawk !-■. Sparhawk 71, 112 Sparke v. Purnell 600 Sparks v. Restal 616, 063 Sparling v. Parker 223, 607 Speakman v. Speakman 264, 615 Spence v. Handford 474 Spencer v. Ward 505 V. Wilson 627, 844 Sperling In re 82, 83 V. Toll 586 Spink V. Lewis 665 Spirt !). Bence 4y6 Spong V. Spong 645 Spooner, In re 684 Spraage r. Stone 124 Sprague !-. Luther 80 Spread v. Morgan 471 Sprig V. Sprig 646 Spriggs V. Spriggs 134 Spring V. Biles 59 V. Parkman 31 Springett v. Jennings 234, 662, 684 Stackhouse v. Horton 88 Stackpole v. Arnold 431 V. Stackpole 300 Stagg V. Jackson 684 Staines v. Stewart 133 TABLE OP CASES. 1x1 Stair V. McGill 608 St. Amour v. Rivard 298 Standen v. Macnab 677, 680 V. Standen 379, 677, 680, 683 Stanhope's Trusts, In re 269 Stanhouse v. Gaskell 554 Stanley v. Bernes 7, 9 a. Kean 31 u. Lennard 554 V. Stanley 413, 425, 794, 811, 866 Stapleton v. Cheales 837 V. Chule 843 V. Palmer 608 V. Stapleton 579 Staring v, Bowen . 31 Stark V. Cannady 417 V. Hunton 468 Starkey v. Brooks 666, 566, 567 Starr w. Ellis 693 Starrett v. Douglass 35 State V. Adams 613 V. Hallet 9, 12 V. Jackson 6 V. Joyce 504 V. M' Glynn 2 V. Norcom 879 V. Pace 31 V, Pike 38 V. Walter 213 V. Wiltbank 213 Stead V. Mellor 884, 397 V. Newdigate 586, 599 Steadman v. Powell 41 Stearns v. Burnham' 31 Steb'oins v. Lathrop 31 Stedraan w. Priest 342 Steed V. Galley 37 u. Preece . 163 Steel V. Cook 654, 663 Steele, In re 191 V. Fisher 458 V. Levisay 385 1!. Midland EaU. Co. 779, 781, 782 V. Price 31, 130 Steer, In re 9 Steere v. Steers 417 Stehman v. Stehman 866 Steignes v. Steignes 731, 755 Stent V. McLeod 2 Stephen v. Swann 68 Stephens v. Frencli 31 V. Gadsden 296 V. Gaylord 2 V. Powys 377 u. Stephens 468, 652, 865 V. Taprell 140, 142 Stephenson v. Dowson 770 u. Heathcote 424 V. Jandle 584 Stevens, In re 698, 702, 703 V. Austen 714 V. Bagwell 30, 41 V. Ely . 565 V. Hale 541, 545 V. Pyle 643 Stevens v. Vanclevo 34, 35, 38, 78 Stevenson v. Huddleson 21 V. Masson 14 Stewart, In re 163 V. Lispenard 37, 88 V. Stewart 101 St. Helens v. Exeter 193 Stickle 's Appeal 472, 473 Still V. Hoste 436 Stillman v. Weedon 337 Stirling v. Lydiard 618 St. Lewis Hospital v. Wegman 77, 78, 79 V. WUUams 77, 78, 79, 379 Stock V. Pox 796 Stockdale v. Bushby 381 Stocker v. Harbin 97 Stocks V. Barre 771 Stockwell V. Ritherden 147 Stoever v. Whitman 50 Stokeley v. Gordon 431 Stokes V. Cheek 397 V. Holden 43 V. Salomons 717, 736, 737, 738 Stoleworthy v. Bancroft 663 Stone V. Evans 339, 373 V. Greening 676, 789 V. Massey 835 V. Parker 758, 798 Stonehouse v. Evelyn 81, 89, 565 Stooke V. Stooke , 761, 774 Storer v. Freeman 431 Storrs V. Benbow 267 Stover V. Kendall 134, 135, 136 Stowe V. Davenport 187 St. Paul V. Heath 310 Stracey, In re 18 Strafford v. Berridge 753, 754 Strahan v. Sutton 460 Straker v. Wilson 607 Strathmore v, Bowes »■ 193 Stratton v. Hillas 769, 769 Strauss v. Schmidt 18 Straw V. East Maine Con. 378 Streaker, In re 99, 143 Streatfield v. Cooper 736 Stretch v. Watkins 848, 852 Strevens v. Bayley 329 Strieker v. Groves 77, 80, 103 Strickland j>. Aldridge 233, 415 V. Strickland 75 Stringer v. Gardiner 380, 411, 424, 429 Stringer's Estate, In re 364 Strode v. Falkland 52, 371, 410 V. Russell 417, 654, 689 Strong V. Converse 694 V. Ingram 90 ti. Perkins 31 V. Teatt 657, 658 Strother v. Dutton 829, 841 V. Lucas 6 Stroud V. Gwyer 607 Struthers v. Struthers 164, 329 Strutt V. Finch 668 Stuart V. Bruere 839 Ixii TABLE OP CASES. Stuart V. Bute 751, 758, 762 V. Cockerell 273, 829 Stubbs V. Houston 148 ..■. Sargon 94, 95, 274, 384, 391, 396, 429, 519, 650, 565 Stuckey v. Stuekey 751 Stukeley v. Butler 787 Stulz V. Schaefle 86 Stump V. Gaby 51 Sturdivant v. Birchett 88, 89 Sturge V. Dirasdale 237 Sturgess v. Pearson 827 Sturgis V. Corp 41 Sturtevant v. Jaques 565 Suarez v. New York 2 Sugden v. St. Leonards 104, 133, 145, 146 Sullivan v. Sullivan 73, 127 Summers, In re 110 Sumner v. Partridge 879 Sunderland, In re 20, 91 Surman v. Surman 645 Surtees v, Hopkinson 747 Sutcliffe V. Cole 644 Sutherland v. Cooke 612, 616, 618 Sutton Colefield's Case 573 Sutton V. Chenault 99 V. Cole 65, 378 I). Craddock 880 V. Sadler 36 V. Sharp 735, 758 V. Sutton 135, 136 Swabey v. Swabey 698 Swails V. Wood 722 Swain v. Bushart 21 V. Eascoe 879 Swaine v. Burton 75 Swan V. Holnaes 457 Swasey v. American Bible Soc 208 Swazey v. Blackman 31 Sweet V. Beal 582 V. Chase 472, 473 Sweetapple v. Bindon 585 Sweeting v. Prideaux 495, 747 V. Sweeting 227, 598 Sweetland v. Sweetlaad 80, 106 Swete V. Pidsley 92 Swett V. Boardman 82 Swift i;. Edson 51, 156, 707 V. Nash 96 V. Roberts 46 V. Swift 670, 671, 747 V. Wiley 80, 82, 84, 89 Swinfen v. Swinfen 755 Swinford, In re 108 Swinton v. Bailey 135 Sviroope's Appeal 162 Sword V. Adams 339 Sydnor v. Sydnors 228, 387 Sykes, In re 143 i). Sykes 172, 259, 341, 468, 024 Sylvester v. Jarman 699 Symes v. Green 36 Symmes v. Arnold 18, 21 Symondg v. Marine Soc. 226 T. Taaffe v. Ferrall 656, 663 Taber v. Packwood 879 Tagart v. Squire 133, 189 Taggart v. Murray 470 V. Thompson 147 Tait V. Lathbury 586, 589 Talbot V. Jevers 812, 653 V. Eabnor 450, 458 V. Seeman 6 «. Talbot 125 Tally i;. Butterworth 98 Tanner v. Elworthy 678 V. Morse 717, 727 V. Wire 719 Tappenden v. Walsh 31, 41 Tapscott V. Neweombe 806, 858 Tardiff v. Robinson 615 Tarrant v. Ware 80 Tarver v. Tarver 31 Tate B. Tate 77 .Tatham v. Drummond 230 V. Vernon 846 V. Wright 81, 37 Tatnall v. Hankey 11, 30 Tator V. Tator 255 Tawney v. Long 35 Tayloe v. Moslier 807 Taylor, In re 85, 98, 163, 593, 596, 598 V. Bacon 399, 844 V. Bank of Illinois 6 V. Benham 68 V. Clark 606, 607, 610, 611 V. Creagh 504 V. Creswell 38 ^. Dodd 717 V. Frobisher 850, 859 t). George 388 V. Graham 799 V. Haygarth 68, 565, 625 V. Johnson 504 V. Kelly 27 V. Lambert 836 V. Langford 870 V. Lucas 338 !),. Miles 747 V. Meads 31, 39 V. Mitchell 337 V. Richardson 441, 504 V. Taylor 81, 91, 163, 464, 624, 669, 866 V. Webb 357, 530, 739 V. Wilburn 36 Taylor's Appeal y8 Taylor's Will 38 Teague's Settlement, In re 2H6 Teape, In re (jgl Tebbott V. Voules 160, 161 Tebbs V. Duval ' 322 Tee v. Ferris 234,415,417 Tefft w. Tillinghast 763 Tegg, In re 121 Telfair v. Howe 878 Tempest v. Tempest 74 238 TABLE OP CASES. Ixiii Temple v, Chandos 158 V. Mead 18 V. Walker . 31 Templeman v. Warrington 829 Tench v. Cheese 314 Tennant v. Tennant 448 Tennell v. Sprigg 505 Tennent v. Tennent 425, 654, 663, 664 Tenny v. Agar 558, 559 Terrel v. Page 722, 724 Terrell v. Cooke 829 Terrible, In re 120 Terry v. Wiggins 717 Tewart v. Lawson 276, 308 Thackeray v. Hampson 505 Tharp, In re 31, 40 Thatcher, In re 285, 288, 850 Thayer v. Boston 418 V. Wellington 20, 351, 646 Thelluson v. Rendlesham 410 V. Woodford 211, 322,445, 446 Theobalds v. DufEoy 879 Thetford School Case 573 Thistle V. Vaughan 698 Thistlethwayte, In re 521, 523 Thomas, In re 87 V. Evans 172 V. Flint 374 V. Howell 183, 214, 227 V. Jones 49, 337, 677, 687 V. Kemish 693 V. Lane 780 V. Phelps 731, 732, 741 V. Tanner 2 V. Thomas 291, 437, 438, 532 V. Wall 102 17. Wilberforce 860 Thomason v. Anderson 554 V. Moses 375 Thompson, In re 143 V. Burra 61, 461, 464, 466 V. Casby 209 V. Farr 35 V. Grant 698, 707 V. Hempenstall 189 V, Johnson 25, 27 V. Kyner 35, 38 V. Lawley 669, 671, 672, 692 V. MaGaw 458 V. Nelson 459 • V. Quimby 20, 38 V. Schenck 798 V. Swoope 65 V. Teulou 513 V. Thompson 31, 210, 219, 223, 324, 359 V. Tonson 377 V. Watts 469 V. Whitelock 484, 504, 529, 762 V. Wilson 81 Thompson's Trust, In re 43, 373 Thomson, In re 411, 811 V. Att'y Gen. 3 V, Hempenstall 437 Thomson e. Hull 87 V. Ludington 803 V. Scott 51 V. Shakespear 212, 216 Thornber v. Wilson 210, 212 Thorndike v. Boston 12 V. Lovering 302 V. Reynolds 319, 827 Thorne, In re 18 . Yerby 125, 130 V. Home 646 Yoe V. McCord 35,80 v. Howe 36 York V. Walker 193 V. Kemp 509 V. Waller 196 V. Lambert 610 Youde V. Jones 155 V Littler 160 Young, In re 872 V. Methodist Epis. Ch. 65, 339, V. Davies 341 565, 584 f. Grove 227 V. Minshall 584 V. Hassard 177 V. Netherwood 127 V. Martin 388 V. Rogers 86 V. Robinson 645 V. Rose 67, 163 Younge v. Coombe 747 ii. Shelton 748 V. Sheppard 374 V. Wakeford 78 Younghusband v. Gieborne 397 V. Weston 766 Youngs V, Youngs 327 V. Wilkin 227 Youse V. Forman 134, 136 V. Wright 40, 46, 81, 82, 144, Yunt's Appeal 163 515 565, 623, 631, 808, 867 V. Wyvell 524 z. Wright's Appeal 162, 163, 356 Trust, In re 754 Zacharias v. Collis 98 Wrightman v. Calvert 605 Zimmerman v. Anders 214, 219 Wriglitson v. Macaulay 593 V. Zimmerman 20,35 Wurt V. Page 686 Zrisweiss v. Jones 207 THE LAW WITH RESPECT TO WILLS. CHAPTER I. BY WHAT LOCAL LAW WILLS ARE REGULATED. To ascertain by what local law a will is regulated is an inquiry which necessarily precedes all others relating to the instrument, „ , . . and which seems, therefore, properly to form the commenc- law wills are ing subject of the present treatise. After showing to what '■'=S"iaM- wills the English law applies, we shaU. proceed to discuss the nature of such law. A will of fixed or immovable property is generally governed by the kx loci rei sitce ; and hence the place where such a wiU hap- -p .^ , , pens to be made and the language in which it is written are by lex loci rei wholly unimportant, as affecting both its construction and ^'^' the ceremonial of its execution ; the locality of the devised property is alone to be considered. Thus, a will made in Holland (a) and written in Dutch must, in order to operate on lands in England, contain expres- sions which, being translated into our language, would comprise and destine the lands in question, and must be executed and attested in precisely the same manner as if the wiU were made in Eng- land (6).^ And, of course, lands in England * belonging to a *2 British subject domiciled abroad, who dies intestate, descend according to the English law (c) . (or.) In Holland the Code Napoleon prevails, subject to modifications which have been ingrafted thereon by Dutch legislatioij. See Gambler e. Gambler, 7 Sim. 263. (6) Bovey v. Smith, 1 Vern. 85; see also Bowaman v. Reece, Pre. Ch. 677; Drummond V. Drummond, 3 B. P. C. Toml. 601 ; Brodie v. Barry, 2 V. & B. 131. (c) See Doe d. Birtwhistle v. VardlU, 5 B. & Cr. 438. [As to land in Italy, see Earl Nelson V. Earl Bridport, 8 Beav. 547.] 1 The American common law is in accord authorities to this effect are very numerous, with the text ; the law of the state or country The following contain useful illustrations: in which the land lies governs the will. The Eyre v. Storer, 37 N. H. 114 ; Knox v. Jones, vol.. I. I 1 BY WHAT LOCAL LAW In regard to personal, or rather movable property, the lex domicilii 47 N. Y. 389 ; Abell v. Douglass, 4 Denio, 305 ; Calloway v. Doe, 1 Blackf. 372, and notes; Story, Confl. Laws, § 474 and notes j 4 Burge, Comm. Col. & for. Law, pt. 2, c. 15, pp. 217, 218; 4 Kent, 513; 2 ib. 429; Robert- son V. Barbour, 6 T. B. Men. 527; Crofton V. Ilsley, 4 Greenl. 138 ; Potter v. Titcomb, 22 Me. 303, 304 ; Bailey v. Bailey, 8 Ohio, 239 ; Kerr v. Moon, 9 Wheat. 565 ;" Darby v. Majer, 10 Wheat. 465 ; Morrison v. Campbell, 2 Kand. 209 ; U. S. v. Crosby, 7 Cranch, 115 ; Varner v. Bevil, 17 Ala. . 286 ; Cornelison V. Browningj^ 10 B. Mon. 425. A different rule has been adopted by statute in some of the states, as in Massachusetts, where by Gen. Stat. ch. 92, § 8, it is provided that a will made out of the state, which might be proved and allowed according- to the laws of the state or country in which it was made, may be proved, allowed, and recorded in Massachusetts, and shall thereupon have the same effect as if it had been executed accord- ing to the laws of Massachusetts. See Bay- ley V. Bailey, 5 Cush. 245 ; Slocomb ». Slocomb, 13 Allen, 38. In the latter case the law finds a good illustration. It was de- cided under the foregoing statute that a nun- cupative will made in another state, which would not have been valid had ■ it been exe- cuted in Massachusetts, but might be proved and allowed in the state in which it was made, might be proved, allowed, and recorded in Massachusetts, having the same effect as any valid will, duly proved in that state. Li many other states provision has been made by statute for allowing and recording foreign wills or wills made in sister states, according to the laws of the place where made. Thus, the record of a will, with the proof of it and the letters issued thereon, constitutes the probate of it in New Jersey, and entitles a New J,ersev will to be filed for "probate in Michigan. Wilt V. Cutler, 38 Mich. 189. See Irwin's Appeal, 33 Conn. 128; Manuel v. Manuel,13 Ohio St. 458; State v. M'Glynn, 20 Cal. 233. And statutes also often provide that no effect shall be given to such wills unless made and^exe- cuted according to their own laws. Such is the law of Maine, Alabama, North Carolina, and some other states. See Potter v. Titcomb, 22 Me. 300; Varner v. Bevil, 17 Ala. 286; Ward V. Hearne, 3 Jones, 326. In Michigan, wills made by persons domiciled within that state, but abroad at the time of execution, are required to be executed with no other for- malities than those required at common law. High, App. 2 Douglass, 515. A will made in another state, and not executed in con- formity with the laws of South Carolina, can- not be admitted to probate in South Carolina. Gause v. Cause, 4 McCord, 382. A will made in another state, if admitted to probate in Ohio, will pass lauds in Ohio, though not executed according to the laws in Ohio. Bai- ley V. Bailey, 8 Ohio, 239 ; Meese v. Keefe, 10 Ohio, 362. The same principle was held in Dublin v. Chadbourn, 16 Mass. 433. This, however, is on the ground of the conclusive- ness of the probate on all questions relating to the due execution of wills. In Vermont, a will made in another state cannot be read in evidence on trial of the title derived under it to lands in that state, unless a copy of such will is filed and recorded in the probate court in that state. Ives v. Allyn, 12 Vt. 589. See also Ex parte Povall, 3 Leigh, 816; Lancaster v. M'Bryde, 5 Ired. 421. Wills made in Virginia, and there proved and re- corded, before the separation of Kentucky, will pass lands in the latter state. Gray v. Patton, 2 B. Mon. 12 ; Morgan v. Gaines, 3 A. K. Marsh. 613. In Virginia, it has been held that a will of lands in that state may be proved there, although it has been declared void in another state, where the testator re- sided. Rice V. Jones, 4 Call, 89; Morrison V. Campbell, 2 Rand. 217. A will executed in Pennsylvania, according to the laws of California, by a person domiciled in Califor- nia, may be proved in Pennsylvania, and let- ters testamentary there granted. Flannery's Will, 24 Penn. St. 502. If, by the law of the country in which the land lies, a posthumous child, not provided for bj' the testator, is en- titled to part of the estate, his rights will pre- vail, notwithstanding t)he law of the country in which the testator resided. Eyre V. Storer, 37 N. H. 114. It is not to be understood from the text that the foreign law will, in any case, be invoked as to the construction of ambig- • itous language; though, as to the interpre- tation of language wliich is not ambiguous, but which has a peculiar meaning m the foreign state or country where the land lies, the foreign law will govern. On the other hand, when the land lies within the stale or country of the testator, the fact that the will was written and executed elsewhere will af- ford no ground for doing more than translat- ing it (if in a foreign language) into equivalent English. Technical terms must be rendered in their equivalent, as such, unless they appear to have been used in tlieir ordinary or popular sense ; — then in their popular equivalent ; and any real ambiguitj' found In the original must, it is apprehended, be treated like ambiguity in any ordinary case. See Wallace v. Att.- Gen., 35 Beav. 21; Martin v. Lee, 14 Moore, P. C. 142 ; Duhamel v. Ardovin, 2 Ves. Sr. 162. If at last the will, expounded accord- ingljr, conform to the law where the land lies, it will be valid ; otherwise not. And the in- validity will go to the whole or to but part of the will, according to the facts proved. See Story, Confl. Laws, § 479 h ; Trotter v. Trotter, 3 Wils. & S. 407; S. C. 5 Bligh (N. S.), 502, 505. If the will of a party is made in the place of his actual domicile, "but he is, in fact, a native of another country ; or if it is made in his native country, but in fact his actual domicile at the time is in another country; still it is to be interpreted by ref- erence to the law of the place of his actual domicile. Story, Confl. l^aws, § 479/; Har- rison V. Nixon, 9 Peters, 483. Of course, no executor or administrator has any authoritv, as such, out of the state in which he has quali- fied. Campbell v. Sheldon, 13 Pick. 8. "WILLS AEB REGULATED. *2 prevails (d) ,^ [that is to say, the law of the country in which Movables by the testator or intestate was domiciled at the time of his '«" domicilii. death (e). By a modern statute, indeed (/) some material exceptions (affecting chiefly the mode of execution by British subjects dying after 6th August, 1861, of wills of personal estate) are made to the gen- eral rule ; but in most respects the rule still holds good, and will, therefore, be most conveniently dealt with before adverting in detail to the statutorj' exception.] If, then, a British Or foreign subject dies domiciled in England, his personal property in England, in case he was intestate, will Domiciled be distributed according to the English law of succession {g) ; Englishman. and if he left a will, his testamentary capacity [(both as regards personal status {h) and the bequeathable quality of the property willed (i) ) ] and the construction of the instrument {k) , (whether this be {d) This position respects only the devolution of the property, and not the court of admin- istration, wJiich, by our law is regulated by the lex loci rei sitae. [Enohin v. Wylie, 10 H. L. Ca. pp. 19, "24, per Lords Cranworth and Chelmsford, following Preston v. Melville, 8 CI. & F. 1, diss. Lord Westbury. (e) Bremer ». Freeman, 10 Moo. P. C. C. 306 ; i.e. the law as it stood at the' death ; subse- quent changes between death and the grant of probate or administration being disregarded. Lynch v. Paraguay, L. R. 2 P. & D. 268. (/) 24 & 25 Vict. c. 114. (jr) Thorne ii. "Watkins, 2 Ves. 35 ; Bempde v. Johnstone, 3 Ves. 198 ; Balfour v. Scott, 6 B. P. C. Toml. 550 ; Bruce v. Bruce, id. 566, 2 B. & P. 229, n. Uh) Price v. Dewhurst, 8 Sim. 299, 4 Mv. & Cr. 76 ; Robins v. Dolphin, 1 Sw. & Tr. 37, 7 H. L. Ca. 390. (i) Kilpatrick v. Kilpatrick, 6 B. P. C. Toml. 584, cit.] (jfc) Anstruther v. Chalmer, 2 Sim. 1; [Reynolds v. Kortwright, 18 Beav. 417; Boyes V. Bedale, 1 H. & M. 798; Peillon v. Brooking, 25 Beav. 218.] 1 Moultrie v. Hunt, 23 N. Y. 394 ; Parsons home and domicile. Dawes v. Boylston, 9 ». Lvman, 20 N. Y. 103 ; Knox «. Jones, 47 Mass. 355 ; Stephens v. Gavlord, 11 Mass. N. Y. 389 ; Chamberlain D. Chamberlain, 43 264; Olivier ». Townes, "14 Martin, 99; N. Y. 424; Lawrence v. Kitteridge, 21 Conn. Schultz ». Pulver, 3 Paige, 182 ; Holmes v. 577; Fellows v. Miner, 119 Mass. 541; Perin Remsen, 4 .Johns. Ch. 460; Harvey v. Rich- ». McMicken, 15 La. Ann. 154; High, Appel- ards, 1 Mason, 381; Jennison v. Hapgood, lant, 2 Dougl. (Mich.) 515; Mills v. Fogal, 4 10 Pick. 100; Davis v. Estey, 8 Pick. (2d Edw. (N. Y.) 559; Hunts. Mootrie, 3 Bradf. ed.) 476, note (1); Porter v. Havdock, 6 (N.Y.)322;BloomerB. Bloomer, 2 Bradf. 339; Vermont, 374; Fay v. Haven, 3 flet. 109; Schultz «. Dambmann, 3 Bradf. 379 ; Despard Goodall v. Marshall, 11 N. H. 88; Camp- D. Churchill, 53 N. Y. 192; Nat ». Coons, 10 bell v. Sheldon, 13 Pick. 8 ; Dawes v. Head, Mo. 543; Gilman v. Oilman, 52 Me. 165; 3 Pick. 128; Potter ». Titcomb, 22 Me. 300; Story, Confl. Laws, § 465; Crofton v. Ilsley, Dixon v. Ramsay, 3 Cranch, 319; U. S. v. 4 Greenl. 138; Potter v. Titcomb, 22 Me. Crosby, 7 Cranch, 116; Stent u. McLeod, 2 304; 4 Kent, 513^ 514; Irving v. M'Lean, McCord, Ch. 354, 359; Richards v. Dutch, 8 4Blackf. 53; McConnell ». Wilcox, 1 Scam- Mass. 506; Hunter v. Bryson, 5 Gill & J. mon, 373; Conover v. Chapman, Bailey, 2 483; Kern). Moon, 9'Whe"at. 565; Grattan ». 436; Smith v. Union Bank of Georgetown, Appleton, 3 Story, C. C. 755, 765; Garland 5 Peters, 519; Barnes v. Brashear, 2 B. Mon- v. Rowan, 2 Smedes & M. 617; Bradley v. roe, 382; Meese v. Keefe, 10 Ohio, 362; In Lowry, 1 Speers, Eq.3, 13; Suarez v. Ma3'or re Roberts's Will, 8 Paige, 519; Bempde of New York, 2 Sandf. 174, 177; Thomas ». Johnstone, 3 Vesey (Sumner's ed.), 198, ii. Tanner, 6 T. B. Monroe, 52, 58; Dorsey note (a) and cases cited; Desesbats ». Ber- v. Dorsey, 5 J. J. Marsh. 280; AtchisoB «. quier, 1 Binn. 336 : Harrison v. Nixon, 9 Lindsey, 6 B. Monroe, 86. 89 ; Leake v. Gil- Peters, 483, 504, 505; Somerville v. Somer- christ, 2 Dev. 73; Ennis v. Smith, 14 How. ville, 5 Vesey (Sumner's ed.), 750, and note 400. A clause, however, granting both real (a); Turner i. Fenner, 19 Ala. 355. As to and personal property upon the same trust, personal property, the rights of legatees, as is generally severable, the validity of one not well as the rights of the next of kin, in a depending upon the validity of the other; and case of intestacy, depend upon the laws of though the real estate be situated in another the country where the deceased, from whom country, the trust, so far as it relates to the bequest or succession is claimed, had his personalty within the countiy of the forum, *3 BY WHAT LOCAL LAW made in the testator's native or in his adopted country, or elsewhere, and wherever he may have died) must be tried by the law of England.-' And it is scarcely necessary to observe, that stock in the public funds is undistinguishable in this respect from other personal prop- *3 erty (Z) . And the movable property * of such a person, which (I) Domicile m affecting legacy duty. — In re Ewin, 1 Cr. & J. 151. In this case the ques- tion was, as to the liabihty of property to legacy duty, the discussion of which sometimes indirectly involves points as to domicile, alienage, &c. [Where the domicile of the testator is foreign, it is now settled beyond question that under no circumstances whatever is legacy duty payable; Re Bruce, 2 Cr. & J. 436, 2 Tyr.475; Hay v. Fairlie, 1 Euss. 117; Logan v. Kairlie, 1 My. & Cr. 59, reversing the decision 2 S. & St. 284 ; Arnold v. Arnold, 2 My. & Cr. 256 ; Commissioners of Charitable Donations «. Devereux, 13 Sim. l4 ; Thomson v. Adv.- Gen., 12 CI. & Fin. 1, 13 Sim. 153, 9 Jur. 217 ; Ee Coales, 7 M. & Wels. 390. The cases of Att.-Gen. ». Cockerell, 1 Pri. 165, and Att.-Gen. v. Beatson, 7 Pri. 560, are now clearly overruled. 'Where the testator is domiciled in this country' three cases arise: 1. If neither his personal representatives nor his effects ever come within the jurisdiction of the courts of this country, no question as to liability to duty can ever be raised. 2. Where a personal representative is constituted in this country for the purpose of recovering the testator's effects situated here, duty is payable not on that part alone which rendered representation necessai-v, but on the whole of the testator's effects. Att.-Gen. ». Napier, 6 Exch. 217 ; Ee Ewiii, 1 Cr. & J. 151; Ee Coales, 7 M. & Wels. 390. 3. fhe third case is where the property is found in this country in the hands of the foreign representative, but no repre- sentative has been constituted in this country. This was the case in Jackson v. Forbes, 2 Cr. & J. 382, 2Tvr. 354; S. C. in D. P. Att.-Gen. «. Forbes, 2 CI. & Fin. 48, nom. Att.-Gen. v. Jackson, 8 fili. 15, 3 Tyr. 982; the duty was held not payable, but the decision seems to have been rested by Lord Brougham on"the fact that the property was appropriated in India as well as on the fact of the absence of a representative in this country. Lord Cottenham (Logan V. Fairlie, 1 My. & Cr. 59) referred it solely to the former ground; but in Att.-Gen. V. Napier, it was said appropriation had nothing to do with the question, and that Att.-Gen. «. Jackson went upon a mistaken notion of the testator's domicile, which was supposed in D. P. to have been in India, whereas in fact it was in England; at the same time, if Att.- ■ Gen. V. Jackson really proceeded on the question of appropriation, it is equally difficult to reconcile it with the doctrine of Att.-Gen. v. Napier. The only way of reconciling the cases taken upon their respective facts is by referring the decision inAtt.-Gcn.w. Jackson to the absence of an English representative, though here again we are met by the dictum of Lord Cottenham, in Arnold v. Arnold, 2 My. & Cr. 273, to the effect that it was impossible that the liability of the legatee to duty could depend on an act of the executor in proving or not proving the will in this countrj' ; yet if Lord Cottenham be correct, it is difficult to see how the law could be enforced. ■ The amount of duty, the fact whether any duty is pay- able, the person from ' whom it is to be recovered, in short, everything necessarv to found a specific claim on the part of the Crown, depends on whether the will is valid or invalid, or whether revoked or altered by subsequent codicils ; these are matters to be determined by the English law (the testator's domicile being English), and thej' remain undetermined if the will has not been proved in this country. Estates pur autre vie are realty ; the question whether they are liable to duty is therefore independent of the question of domicile. Chatfield «. Berchtoldt, L. E. 7 Ch. 192. Succession duty, like legacy duty, is payable only where the deceased was domiciled in this country (Wallace v. Att.-Gen., L. K. 1 Ch. 1); but the property once received by the executor and invested here upon the trusts of the will, anj' subsequent devolution (as on the death of a tenant for life) confers a succession which atti-acts the duty. Att.-Gen. v. Campbell, L. E. 5 H. L. 524. The question of probate duty does not depend on domicile, but (except in tlie case of Personal estate appointed under a general power, which is expressly made subject to pro- ate duty by 23 & 24 Vict. c. 15, s. 4) is pavable on so much only of the testator's property as, but for the will, the ordinary would iiave been entitled to administer. Att.-Gen. v. Dimond, 1 Cr. & J. 356, 1 Tyr. 243; Atti-Gen. v. Hope, 1 Cr. M. & E. 630, 4 Tyr. 878, 2 CI. & hn. 84, 8 Bli. 44; Drake v. Att.-Gen., 10 CI. & Fin. 257, affirming Piatt v. Routh, 3 Beav. 257, 6 M. & Wels. 756 ; and overruling Att.-Gen. v. Staff, 2 Cr. & M. 124, 4 Tyr. 14; and Palmer v. Whitmore, 5 Sim. 178. Compare Att.-Gen. «. Bouwens, 4 M. & Wels. 171, as to foreign securities transferable in this country by delivery, which were held liable to duty aa ordinary chattels. And see Pearse v. Pearse, 9 Sim. 430; Vandiestu. Fynmore, 6 Sim. 570; Fernandes' Executors' case, L. E. 5 Ch. 314; Att.-Gen. v. Pratt, L. E. 9 Ex. 140. As to certain Indian securities, see 23 & 24 Vict. c. 5.] will be enforced. Knox v. Jones, 47 N. Y. Comm. Col. & For. Law, part 2, c. 12, pp. 3g9 590, 591 ; Ferraris v. Hertford. 3 Curteis, 468 ; 1 Story, Confl. Laws, §§ 479/, 479",ff ,• Har- Westlake, International Law (2d ed.), §§ 106, rison D. Nixon, 9 Peters, 483, 504, 505; 4 Burge, 107. i ■WILLS AEB EEGULATBD. *4 is out of England at the time of his death, will also, it seems, gener- allj- speaking, follow the domicile ; but this, of course, depends on the laws of the state in which the property is situate, which maj- not (though the codes of many civilized states do (m) ) accord with our own in this particular. Sometimes, however, a difficulty occurs in the application of the principle, from the fact that the foreign state, though it recognizes * the general doctrine, yet imposes restric- *4 tions on the testamentary power unknown to the law of the adopted country, and from which it may not permit its citizens to escape, in regard to property within its jurisdiction, by a mere change of domicile. For instance, the French law does not, like our own, per- mit a man to bequeath his entire property away from his wife and chil- dren (m) . Now, if a Frenchman dies domiciled in England, is it quite clear that his movable property in France would be subject to British law, so as to pass by such a will ? In such cases the Code Napoleon seems to draw a distinction between the acquisition of a foreign domi- cile by mere residence, and some other more decided acts of self-expa- triation, such as that of becoming the naturaUzed subject of another state (o). It follows, from the same rule, that if any person, whether a British subject or a foreigner, dies whilst domiciled abroad, the law Domiciled of the place which at his death constituted his home will foreigner, regulate the distribution of his movable (p) property in England, in case of intestacy, i.e. should he happen to have left no instrument which, according to the law of his adopted country, would amount to a testamentary disposition of such property (q) ; and if he left a will, the same law will determine its validity [both as regards personal com- petence in the testator (r) and the Ipequeathable nature of the prop- Cm) See Price v. Dewhurst, i My. & Cr. 83. in) Vide post, p. 6, note (y). (o) Liv. 1, tit. 1, chap. 2, sect. 17. Ip) Leaseholds are governed by the lex loci. — Tlie word movable is here used advisedly instead of personal, as the distinction between real and personal estate is peculiar to our own policy, and is not known to any foreign system of jurisprudence that is founded on the civil law, m which the only recognized distinction was between movable and immovable property. Leaseholds for years, therefore, which obviouslj' belong to the latter denomination, though they are with us transmissible as personal estate, are governed, by the lex loci, and do not follow the person ; so that, if an Englishman domiciled abroad dies possessed of such prop- erty, it will devolve according to the English law. [See Freke v. Lord Carbery, L. R. 16 Eq. 461. It is shown in Bacon's Abr. tit. Leases, how it happened that leaseholds were held to pass to the executor. A lease for years was only a contract between lessor and lessee; and lessee, if evicted, could only recover damages in a personal action against lessor, not the possession. The benefit of such a contract of course passed to the executor; and though lessees were afterwards held entitled to recover the possession itself, no change was made in the rule of succession. Since then the rule mobilia sequuntur personam is inapplicable to leaseholds, it follows (subject to 24 & 25 Vict. c. 114, s. 2, presently stated, and which speaks of " personal " es- tate) that to dispose of leaseholds a will must be executed according to 1 Vict. c. 26, and that the will of a domiciled foreigner not so executed, though it may be proved here, and will enable the executor to sell leaseholds (Hood ». Lord Barrington, L. R. 6 Eq. 218), will never- theless not operate on the beneficial interest. The title of the executor is from the probate : the beneficial interest will devolve as undisposed of.] ^ m i » (o) Somerville ». Lord Somerville, 5 Ves. 750 ; and see Hogg v. Lashley, 6 B. P. C. Toml. 577. [()•) Re Osborne, 1 Deane, 4, 1 Jur. N. S. 1220; Re Maraver, 1 Hagg. 498. 5 *5 BY "WHAT LOCAL LAW *5 erty willed (s)], and will also regulate *the construction (t) of such will, of which, therefore, an Enghsh court will not grant probate unless it appear to be an effectual testamentary instrument according to the law of the domicile.* And, by parity of reasoning, the English court will grant probate bf an instrument ascertained to be testamentary according to the law of the foreign domicile, though invalid and incapable of operation as an English will. Thus («), probate was granted of the will of a married lady, who at the time of her death was domiciled in Spain (of which country she was, it seems, also a native) , on its being shown that by the Spanish law a feme covert ma}-, under certain limitations, dispose of her property by will as a feme sole. And it is the constant practice of the court here to grant [ancillarj'] Ancillary probate of wiUs of [testators domiciled in foreign countries] probate. which have been previously proved there, without inquiring [or permitting inquiry] into the grounds of the [foreign] proceeding, though the bulk of the property of the deceased testator should happen to be in England (a;).^ Where probate has been granted of an instrument eventually ascer- Effect where tained not to be testamentarj' according to the law of the granted in domicile, this proceeding (though it vests the whole personalty errur. which is within the jurisdiction of the court in the executor, as to whose leffal title the grant of probate is conclusive ') does not regulate or affect the ultimate destination of the property, which, therefore, the ex- ecutor will be bound to distribute according to the law of the domicile (y) . Where the construction of the will is to be regulated by foreign law, (.9) Kilpatrick i>. Kilpatrick, 6 B. P. C. 68+, cit. ; Doglioni t'. Crispin, L. E. 1 H L. 301.1 (t) Bernal v. Bernal, 3 Mr. & Cr. 559 n. [Barlow v. Orde, L. R. 3 P. C. 164 (lex loa admitting illegitimate with legitimate children).] (m) Re Maraver, 1 Hagg. 498. As to the law of Spain respecting testamentary disposi- tions, vide Moore v. Budd, 4 Hagg. 346. (K) Re Read, 1 Hagg. 474; [Hare v. Nasmyth, 2 Add. 25; Re Gaynor, 4 No. Cas. 696; Enohin v. Wylie, 10 ~H. L. Ca. 1; Re Earl, L. R. 1 P. & D. 450 ; Miller r. James, L. R. 3 P. & D. 4 ; Re Cosnahan, L. R. 1 P. & D. 183.] (y) Thornton v. Curling, 8 Sim. 310. In this case, an Englishman went to reside in France, where he was domiciled at his death, and left a will providing for an illegitimate child and its mother, to the exclusion of hi- wife and legitimate child, which the French law does not permit. Donations bv a Frenchman (whether testamentary or by act inter vivos) must not exceed a moiety if fie leave at his decease one legitimate child, a third if he leave two, and a fourth if he leave three or more; the descendants of a deceased child being considered as one. Moreover, a Frenchman cannot dispose of the whole of his property, if he leaves only ascendants. 1 Hj'man v. Gaskins, 5 Ired. 267; In re 2 A person claiming under a will executed Osborne, 33 Eng. Law & Eq. 625. If after and proved in one State cannot sue for or making a will, valid by the laws of the place claim a legacy in another State, unless the where the testator was'domiciled, he changes will be proved' in the latter State, or unless his domicile to a place by the laws of which the action be authorized W some statute of the will thus made is not valid, and there the latter State. Carr v. Lowe, 7 Heisk. 84; dies, the will is void. If, however, before Kerr v. M^on, 9 Wheat. 565; Richards v. his death, he should return and resume his Dutch, 8 Mass. 506. See, further, Fleeger former domicile, where his first will or testa- v. Pool, 1 M'Lean, 189. ment was made, its original validitj' will re- s The same is ti'ue of real estate, where vive also. Story, Confl. Laws, § 473; 2 the probate court has exclusive jurisdiction Greenl. Ev. § 608'; 4 Burge, Comm. Coll. & over wills of both real and personal estate. For. Law, 550, 581. Bailey v. Bailey, 8 Ohio, 239; Dublin t). 6 WILLS ABE BEGX7LATED. *6 the opinion of an advocate versed in such law is obtained, Foreign law for the information and guidance of the English court on ^°y a^cer- whlch devolves the task of construing it (z) ; [or the '*'°^''' English * court may remit a case for the opinion of a court in *6 any other part of the British dominions (a) , or of a court in any foreign country with which there is a convention for that purpose (&).] But if the point in dispute depend upon principles of construction com- mon to both countries, the court will adjudicate upon the question, according to its own view of the case, without having recourse to the assistance of a foreign jurist (c).^ As a will, in regard to movable property, is construed according to the law of the domicile, there is, it will be observed, nothing on the face of it which gives the peruser the slightest clue as to the nature of the laws by which its construction is regulated ; it may have been made in England, be written in the English language, the testator may have [(«) Harrison v. Harrison, L. R. 8 Ch. 346 : i. e. of an advocate practising in the particular foreign country — study elsewhere of its laws is insufficient. Bristow v. Sequeville, L. K. 5 Ex. 2T5 ; Re Bonelli, l"P. D. 69. , (a) 22 & 23 Vict. c. 63: acted on in Login v. Princess of Coorg, 30 Beav. 632. (6) 24 Vict. c. 11.] (c) Bernal v. Berrjal, 3 Mj'. & C. 559. [Collier v. Rivaz, 2 Curt. 855; Earl Nelson v. Earl Bridport, 8 Beav. 527, 547; Yates v. Thompson, 3 CI. & Fin. 586; Martin v. Lee, 9 W. K. 522. But the court here is bound by a previous judgment in re of the foreign court. Doglioni V. Crispin, L. R. 1 H. L. 301.] Chadbourn, 16 Mass. 433 ; Ex parte Fuller, 2 Storj-, C. C. 327, 328, 329; Laughton v. Atkins, 1 Pick. 548. 549 ; Tompkins v. Tomp- kins, 1 Story, C. C. 554. 1 Concerning proof of the foreign law, the following are the conclusions of the courts: 1 . Evidence as to the unwritten law is to be proved as matter of fact by persons skilled in that law, ('. e. by experts. Klj' v. James, 123 Mass. 36; Kline )'. Baker, 99 Mass. 253; Hol- man v. King, 7 Met. 384; Dyer v. Smith, 12 Conn. 384; Moore i'. Gwynn, 5 Ired. 187; In- graham V. Hart. 11 Ohio, 255 ; Ennis v. Smith, 14 How. 400, 426; Story, Confl. Laws, § 642; Church u. Hubbart, 2 Cranch, 238; Brush v. Wilkins, 4 Johns. Ch. 520; Francis v. Ocean Ins. Co., 6 Cowen, 429; Delafield v. Hand, 3 Johns. 310 ; Smith v. Elder, 3 Johns. 105. See Haven v. Foster, 9 Pick. 130; Talbot v. See- man, 1 Cranch, 12, 38; Strother v. Lucas, 6 Peters, 763; Hill v. Packard, 5 Wend. 375; Brackett v. Norton, 4 Conn. 517 ; Denison v. Hvde, 6 Conn. 508; Ripple «. Ripple, IRawle, 386; Raynham v. Canton, 3 Pick. 293, 296; Carnegie v. Morrison, 2 Met. 404, 405 ; Kenny V. Van Home, 1 Johns. 385, 394; Woodbridge V. Austin, 2 Tyler, 364, 367; Lincoln v. Bat- telle, 6 Wend. 482 ; Bagley r. Francis, 14 Mass. 453; M'Rae v. Mattoon, 13 Pick. 53, 59; Wil- son V. Smith, 5 Yerger, 398, 399; Frith ». Sprague, 14 Mass. 455; Hempstead v. Reed, 6 Conn. 480; Dyer v. Smith, 12 Conn. 384; 1 Greenl. Ev. §§ 486-489; Packard v. Hill, 2 Wend. 411. The unwritten law of a foreign country, or of another State, may also be proved" bv books ui Reports and oases decided. Raynham v, Canton, 3 Pick. 293, 296 ; M'Rae V. Mattoon, supra; Dougherty ». Snyder, 15 Serg. & Rawle, 87 ; Lattimer v. Eglin, 4 De- saus. 26, 32; Brush ti. Scribner, 11 Conn. 407. So b}' public history. Dougherty v. Snyder, supra. Sometimes certificates of persons of high authority have been allowed as evidence, without other proof. In re Dormoy, 3 Hagg. Eccles. 767, 769; Story, Confl. Laws, § 642. 2. The same appears to be true when the ques- tion is of the peculiar construction of a statute. Kline v. Baker, supra ; Ely i). James, 123 Mass, 36. 3. The statute or written law must be proved bv the law itself. Francis v. Ocean Ins. Co., 6 Cowen, 429; Delafield v. Hand, 3 Johns. 310; Lincoln v. Battelle, 6 Wend. 482; Ennis «. Smith, 14 How. 400, 426 ; Nelson v. Bridport, 8 Beav. 527. 4. The qualifications of the experts, or other questions of compe- tency, are of course questions of law. lb. 5. When the evidence admitted consists entirely of a written or printed document, statute, or judicial opinion, and no peculiar local con- struction is alleged to govern it, the question of its construction and effect must be deter- mined by the court. Kline ». Baker ; United States 1). McRae, L. R. 3 Ch. 86; Di Sora v. Phillipps, 10 H. L. Cas. 624; Biemer v. Free- man, 10 Moore, P. C. 306; People v. Lambert, 5 Mich. 349; Owen ». Boyle, 15 Maine, 147; State V. Jackson, 2 Dev. 563. 6. As to the laws of the sister states, Congress has provided a mode for their authentication; but they may be admitted without such authentication, if otherwise proved to the satisfaction of the court. Taylor v. Bank of Illinois, 7 T. B. Mon. 576. *7 BY WHAT LOCAL LAW described himself as an Englishman {d) , and it may have been proved in an English court ; and yet, after all, it may turn out, from the extrinsic fact of the maker being domiciled abroad at his death, that the wiU is ■wholl}' withdrawn from the influence of English jurisprudence. [As in other respects, so with regard to its execution, a will of mov- Execution of ^^^^s must, as a general rule, be tried by the law of the tes- wiii of mov- tator's domicile at his death. So that an English court will ^ ^^" not grant probate of the will of a testator domiciled in Eng- land, unless it be executed according to the law of England (e) ; nor of a testator domiciled abroad, unless it be executed according to the law of the foreign domicile (/) . In Bremer v. Freeman (^) , *7 the testatrix was an English subject resident at Paris, *and exe- cuted a will conformably to, English law ; but probate of it was refused on the ground that she was domiciled in France, and that the will was not valid according to French law.^. To obviate such questions with regard to testators dying after 6th Lord King- August, 1861, it is enacted by 24 & 25 Vict. c. 114, that down's Act. (g ]^) every will and other testamentary instrument made out of the United Kingdom by a British subject (whatever maj- be the domicile of such person at the time of making the same, or at the time of his death) shall as regards personal estate be held to be well exe- cuted for the purpose of being admitted to probate, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when the same was made, or by the laws then in force in that part of her Majesty's dominions where he had his domicile of origin : and (s. 2) that every will and other testamentary instrument made within the United Kingdom by any British subject (whatever may be the domicile of such person at the time of making the same, or at the time of his death) , shall as regards personal estate be held to be well executed, and shall be admitted to probate if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same was made. By s. 3 no will or other testamentary instrument shall be held to be revoked [or to have become invalid, nor shall the construction thereof be altered, (rf) This of course is not conclusive (as to which see Nevinson v. Stables, 4 Rnss. 210), though the fact of a testator being described as resident abroad would produce suspicion and inquiry as to the foreign domicile. [(e) Countess Ferraris i). M. of Hertford, 3 Curt. 468, 7 Jur. 262, 2 No. Cas. 230; Croker V. M. of Hertford, 4 Moo. P. C. C. 339, 8 .Jur. 863, 8 No. Cas. 150. ( f) Stanley v. Bernes, 3 Hagg. 373 ; Moore w. Darell, 4 Hagg. 346. (fl) 10 Moo. P. C. C. 306. The case was a curious one ; for the law of France does not permit a foreigner to acquire a domicile there, so as to affect the mode of malting a will, without license from the government; in other words, without such license the foreigner may make a will according to the law of his original domicile. In France, therefore, the English will would have been held good (see Sug. R. P. S., p. 404; Collier v. Eivaz, 2 Curt. 855; secus as to intestate succession, 1 Ch. D. 270), and it had in fact been pi-onounced valid on that ground by the Prerogative Court (1 Deane, 192). 1 But see Hamilton ». Dallas, L. R. 1 Ch. D. 257; Wharton, Confl. Laws (2d ed.) § 77a. Contra, Dupuv v. Wurtz, 53 N. Y. 556. 8 "WILLS ABE KEGITLATED. *8 by reason of any subsequent change of domicile of the person making the same {h) ; nor (s. 4) is the act to invalidate any will or other tes- tamentary instrument as regards personal estate which would have been valid if the act had not been passed, except as such will or instrti- ment maj^be revoked or altered by any subsequent will or testamentary instrument made valid by the act. Thus, for the purpose of British probate, a choice is given among several forms of execution, all in addition (s. 4) to that — itseffecton which alone was formerlj' sufficient ; and, in terms, the act is operatfon of directed only to modes of execution ; but it has been held wiHs. that a testamentary instrument, depending on the act for the validity of its execution, must also depend for its legal effect on the local *law on which its execution is rested. Thus, in Pechell *8 V. Hilderley (k) , a British subject with an English domicile died in 1867, leaving a will and codicil, neither of which was executed according to the law of England, but the codicil (though not the will) was well executed according to the law of Italy, where it was made. By that law, as proved in the case, it could not stand alone without the will, and did not set up the will, although indorsed upon and referring to it. It was argued that the codicil being well executed according to the act, its legal effect must be determined by the lex domicilii, and that according to that law the codicil republished and made good the will (Z). But Lord Penzance held otherwise. Whether such would be the effect of appljing the English law in the manner pro- posed, he said it was not necessary to discuss, for he was of opinion that in determining the question whether any paper was testamentary, regard could be had to the law of one country only at a time, and that the mixing up of the legal precepts of two different countries could only result in conclusions conformable to neither. The court therefore pro- nounced against both documents. The act affects British subjects only (w) , and can only be enforced where the property in question is locally situate within Brit- _j,f[(,cts ish jurisdiction. Foreign courts are not bound to recognize British sub- the act in determining whether a given instrument is a vahd •'^° ^ "° 3 • will of personal property within their own jurisdiction : and thus the personal property, British and foreign, of a British subject may be dis- tributable according to two distinct laws (n) . Therefore] , Suggestions the necessity of conforming in the testamentary act to the as to wills of law of the ultimate domicile is still an important doctrine to domiciled the numerous British residents in foreign countries ; and abroad. (*) Re Rippon, 32 L. J. Prob. 141, 3 Sv,: & Tr. 177; Re Reid, L. R. 1 P. & D. 75. This section also excludes the further question whether resumption of the former domicile restored the will. Story, Confl. c. xi. s. 473; Williams, Exec. p. 352, n. (h), 6th ed. (k) L. E. 1 P. & D. 673. (0 Vide post, Ch. VI., Sect. 4. ^. „^ (m) Including subjects bv naturalization, Re Gallv, 1 P. D. 438; EeLacroix, 2 P Div. 94. (re) See Sug. R. P. S. 405-6 : being the very [result which the rule mobilia se^uurdur per- sonam was established to prevent. 1 H. L. Ca. 15.] *9 BY WHAT LOCAL LAW it appears that the circumstance of the contents of the will indicating that the testator contemplated returning to England (but which inten- tion he never executed (o),) [or even an express declaration that he intends to retain his domicile of origin (jo),] is insufficient to exclude the law of his domicile ascertained by the facts of the case {q) .^ If an Englishman, domiciled abroad, has real estate (including *9 *in this definition property held by him for terms of years) in his native country, and also personal property there or else- where, he ought to make two wills, one devising his English lands, duly framed and executed for that purpose according to the forms of the English lavF, and the other bequeathing, if permitted, his personal (or rather his movable) estate conformably to the foreign law. Wills made under such circumstances require more than ordinary care, in order to avoid some perplexing questions arising out of the conflict in the laws governing the real and personal property respectivelj'' (r) . Such questions may arise, and indeed have most frequently arisen, As to Scot- ^1 regard to the property of Englishmen domiciled in Scot- land, land, or of Scotchmen domiciled in England ; the law of suc- cession and testamentary disposition being, in some respects, different in these two sections of the United Kingdom (s) . Thus, in Balfour v. Scott (/), where a person domiciled in England died intestate, leaving real estate in Scotland, the heir was one of the next of kin, and claimed a share of the personal estate. To this claim it was objected, that, by the law of Scotland, the heir cannot share in the personal propertj' with the other next of kin, except on condition of collating the real estate ; that is, bringing it into a mass with the personal estate, to form one common subject of division («) . It was determined, however, that he was entitled to take his share without complying with that obligation, the case being regulated as to the movable property by the English law. In Drummond v. Drummond (a:) a person domiciled in England had real estate in Scotland, upon which he granted a heritable bond to secure a debt contracted in England. He died intestate ; and the (o) Stanley ». Bernes, 3 Hagg. 375. [(p) Ee Steer, 3 H. & N. 594?) (o) As to the animus revertendi, see also Bruce v. Bruce, 2 B. & P. 229, n. (r) See Brodie v. Barry, 2 T. & B. 130. Is) In Scotland there [was formerly] no direct power of disposing of real estate by will, but if there was a conveyance previously executed according to the proper feudal forms, the party might by will declare the use and trust to which it should inure. Per Sir W. Grant, in Brodie v. Barry, 2 V. & B. 132. [But by 31 & 32 Vict. c. 101, s. 20, land in Scot- land may now be disposed of directly bv will.] Where a domiciled Scotchman dies intestate, leaving infant children, and possessed of property in Scotland and England, the Court of Session, it seems, appoints a factor to tlie children, to whom the English court grants administration. (Re Johnston, 4 Hagg. 182.) (() Stated in Somerville v. Lord Somerville, 5 Ves. 750, and cited 2 V. & B. 131; [and see Allen v. Anderson, 5 Hare, 163.] (u) Ersk. Inst. Law of Scotland, 701, 5th ed. (a;) Cit. 2 V. & B. 132. 1 If a party die initinere from one domi- icile. State v. Hallett, 8 Ala. 150; Story, cile to another, his property will be distrib- Confl. Laws, § 481 n, hi note. See Monroe v. uted according to the law of the former dom- Douglas, 5 Madd. 379. 10 WILLS ARE REGULATED. *11 question was, by which of the estates this debt was to be borne ? It was clear that, by the English law, the personal estate was the primary fund for the payment * of debts. It was equally clear that by the *10 law of Scotland, the real estate was the primary fund for the pay- ment of the heritable bond. It was said for the heir, that the personal estate must be distributed according to the law of England, and must bear all the burdens to which it is by that law subject. On the other hand, it was contended that the real estate must go according to the law of Scotland, and bear all the burdens to which it is by that law subject. It was determined that the law of Scotland should prevail, and that the real estate must bear the burden (x) . , Speaking of these two cases. Sir W'm. Grant has observed (y) — " In the first case, the disability of the heir did not follow him to England ; and the personal estate was distributed as if both the domi- cile and the real estate had been in England. In the second, the disa- bility to claim exoneration out of the personalty did follow him into England ; and the personal estate was distributed as if both the domi- cile and the real estate had been in Scotland." ^ [But by the law of Scotland, as of England, real estate is only a subsidiary fund for the payment of movable debts ; and if the Scotch heir of a domiciled Englishman has paid them, the law of the domicile allows him to recover against the personal estate (2;). Conversely, English rules of marshalling in favor of legatees will not be applied so as to throw on Scotch real estate debts of a domiciled Englishman, to which it could not be made liable by the lex loci («) . In all these cases the claim of the Scotch heir to exoneration or his liability to be charged was enforced by English courts in distributing the personal estate only where the laws of both countries agreed in con- ceding the claim or imposing the charge. Even before Lord Kingsdown's Act a will of personalty made under a power formed an exception to the general rule, moUlia ^jh ^^^^^^ g^ seauuntur personam ; for if executed in the particular power is not form * required by the power, it was, as it will still be, *11 fex domicilii. good without reference to the testator's foreign domi- cile, because the appointee takes, not under the instrument exercising, but under the instrument creating the power (5) ; and the latter instrument is [(k) But an express direction by a testator domiciled in England for payment of all his debts out of a specified fund will include the heritable bond, Maxwell v. Maxwell, L. E. 4 H. L. 606. Locke King's Acts (post, Ch. XL VI.) do not extend to Scotland. A herita- ble bond will not pass by an English will; Jemingham v. Herbert, 4 Euss. 388; but where there is an English security, and the debt is further secured by a Scotch heritable bond, the debt will pass bv an English will ; Buccleugh v. Hoare, 4 Mad. 467 ; Oust v. Goring, 18 Beav. 383. See" further, as to the nature of heritable bonds, Bell's Commentaries on the Laws of Scotland, 206 ; Ersk. Inst. 194.] (y) 2 V. & B. 132. , [(z) Earl of Winchelseao. Garetty, 2 Keen, 293. (a) Harrison «. Harrison, L. R. 8 Ch. 342. „„,„„.„„ t (6) Tafnall v. Hankey, 2 Moo. P. C. C. 342 ; Ee Alexander, 1 Sw. & Tr. 454, n., 29 L. J. Prob. 93; Ee Hallyburton, L. E. 1 P. & D. 90. 1 See Story, Confl. Laws, §§ 485-489. 11 *12 BY WHAT LOCAL LAW to be construed according to the law of the place where it is executed, 'if it deals with movables, and according to the lex loci rei sitce if with immovables (c) . However, in D'Huart v. Harkness, (rf) , where, by an English instrument, power was given to appoint a money fund ' ' by will duly executed," it was held that tMs did not mean any one particular form of will recognized by the law of this country, but any will entitled to probate here, and that the will of the donee, having been admitted to probate, was, therefore, a good exercise of the power. Thus it came back to trying the validity of the will by the law of the testatrix's domicile (e) . She was domiciled abroad, and her will conformed to the law of her domicile. If she had b^en domiciled here, the will would not have been a valid appointment (/) . But if a power requires a will to be executed in a particular form, a will executed in that form may be a valid appointment, though not executed according to the law of the domicile (g). Another exception to the general rule exists where by treaty between nor where this country and the country of domicile it is agreed that the treafy to^the English law shall prevail. Thus subjects of the Ottoman contrary. Empire Cannot dispose of their property by will, but by treatj' English subjects domiciled there are allowed to do so, and their wills must be executed according to the English law (h) . A statement of some of the more important rules for ascertaining the Domicile how domicile of a testator or intestate, and a reference to some ascertained, of ^\^g, gases of most frequent occurrence, may here be Domicile of made (i) . The law attributes to everj"^ one as soon as origin #12 he is * bom the domicile of his father if he be legiti- mate, and the domicile of the mother if illegitimate. — of choice. This is the domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domiciles of choice. For, as soon as an individual is sui juris, it is com- petent to him to elect and assume another domicile, the continuance of . which depends upon his will and act. When another domicile RpPutTPTicft Or domicile of is put on, the domicile of origin is for that purpose relin- ongin. qmshed, and remains in abeyance during the continuance of (c) story, Confl. c. viii. ; 3 Burge, pt. 2, c. 20. (d) 34 Beav. 324 (case before Lord ICingsdown's Act). (c) It is presumed that the will was proved in the ordinarj' way, and not merely on an allegation that it was in execution of a power (Barnes v. Vincent, 5 Moo. P. C. 201). The latter proceeding would have decided nothing, and would have given the Court of Construc- tion no ground on which to build its argument. Vide post, Ch. II. (/■) Re Daly's Settlement, 25 Beav. 456. (g) Per Eomillv, M. E., 34 Beav. 328. (h) Maltass v. Maltass, 3 Curt. 234, I'Rob. 67, 7 Jur. 135, 8 J'ur. 860, 2 No. Cas. 33, 3 No. Cas. 257. (»■) See Lord Westbury's judgment, Udny v. Udny, L. E. 1 H. L.^Sc. 441. By stat. 24 & 25 Vict. c. 121, rules are made for determining the question of 'domicile as between this country and any other witli which the sovereign may have entered into a convention for that purpose. As to the operation of this act see Sugd. E. P. S j. 405. Domicile is distinct from allegiance or nationality, per Lord Westbury, L. R. 1 H. L. So. 459; Brunei v. Brunei, L. E. 12 Eq. 298. 12 "WILLS AKE EEGULATED, *12 [the domicile of choice, but it revives and exists whenever there is no other domicile (as when the domicile of choice is in fact abandoned (k) with the intention of never returning), and it does not require to be regained or reconstituted animo et facto in the manner which is neces- sary for the acquisition of a domicile of choice {l) . Domicile of choice is constituted by residence freely chosen and intended to continue for a non-limited period ; and length of residence is a most important ingre- dient from which to infer the animus manendi {m).'\ Where an Englishman or Scotchman divides his time about equally between the two countries, the actual domicile is sometimes Divided difficult to be ascertained, from the absence of preponder- residence. ating evidence in favor of either.^ Such was the case of Lord Somer- ville (ra) , a Scotchman by birth and extraction, originally domiciled in Scotland, who [was elected a representative peer for Scotland] took a house in London, and lived there half the year, the remainder of which he spent in Scotland, where he still had an establishment : he died at his house in London. Sir R. P. Arden, M. R., after an elaborate argu- ment, held that the original domicile remained unchanged, and, conse- quently, the succession to the personal property of the deceased noble- man (who had died intestate) was to be governed by the law of Scotland. The argument in favor of the EngHsh domicile was urged (J!;) The intention without the act of abandonment is insufficient, Re Eaffenell, 3 Sw. & Tr. 49, 32 L. J. Prob. 203. (Z) King 1-. Foxwell, 3 Ch. D. 518. {m) Cockrell V. Cockrell, 25 L. J. Ch. 732; Doucet v. Geoghegan, 9 Ch. D. 441.J (re) 5 Ves. 750, [and see Forbes si. Forbes, Kay, 353. The duties of an English peer aa such do not prevent his acquiring a foreign domicile, Hamilton, t). Dallas, 1 Ch. D. 257. For the purposes of succession a man cannot have more than one domicile. lb. 1 The question of a person's domicile or domicile. Somerville i). Somerville, 5 Ves. place of abode is a question of fact. It is 750. See Harvard College v. Gore, 5 Pick, in hiost cases easily determined by a few 372, 373. Two things must concur to consti- decisive facts; but cases may be 'readily tute a domicile ; first, residence ; and, second- conceived where the circumstances tending ly, the intention to make it the home of the to fix the domicile are so nearly balanced party. Harvard College v. Gore, supra. See that a slight matter will turn" the scale. Jeniiison t). Hapgood, 10 Pick. 77 ; Hallowell There are certain well-settled maxims on e. Saco, 5 Greenl. 143; Casey's case, 1 Ash- this subject. These are, that every person mead, 126; Greene v. Windham, 13 Me. 225, has a domicile somewhere ; and no person 228 ; Gorham v. Springfield, 21 ib. 58 ; State can have more than one domicile for one ji. Hallett, 8 Ala. 159. Actual residence is not and the same purpose at the same time, necessary to retain a domicile once acquired. It follows from these maxims that a man It is retained bj' the mere intention not to retains his domicile of origin till he changes change it. Ib. Sackett's case, 1 Mass. 58; it by acquiring another; and so each sue- Abington d. Boston, 4 Mass. 312 ; Granby ». cessive domicile continues until changed by Amherst, 7 Mass. 1 ; Lincoln v. Hapgood, 11 acquiring another. And it is equally obvi- Mass. 350; Sears «. City 6f Boston, 1 Met. ous that the acquisition of a new domicile 250; Bradley v. Lowry, supra; Thorndike v. does, at the same instant, -terminate the old City of Boston, supra; Know v. Waldo- one. Opinion of the Judges at the Supreme borough, 3 Greenl. 455 ; Waterborough v. Court of Massachusetts, in Supplement to 5 Newfield, 8 ib. 203, 205 ; Shattuck «. May- Met. 588, 589. See Abington v. North Bridge- nard, 3 N. H. 123 ; Cadwalader k. Howell, 3 water, 23 Pick. 170; Thorndike 1). City of Harrison, 138. In regard to the subject of Boston, 1 Met. 242 ; Kilburn u. Bennett, 3 Met. domicile, see Story, Confl. Laws, ch. 3,^39, 199; Moore v. Wilkins, 10 N. H. 455, 456; et seq. ; 2 Williams, Executors (6th Am. ed.), Greene v. Greene, 11 Pick. 411, 416; Waike 1516 et seq., and notes; Somerville t'.Somer. V. Bank of Circleville, 15 Ohio, 288, 289; ville, 5 Ves. (Sumner's ed.) 760, and notes; Bradley v. Lowiy, 1 Speers, Eq. 3, 15; In Greene v. Greene, 11 Pick. 410; Craigie » re Roberts's Will, 8 Paige, 519. The mere Lewin, 4 Curteis, 435. place of birth or death does not constitute the 13 *14 BY WHAT LOCAL LAW on behalf of the relations of the half-blood, whom the law of Scot- *13 land excluded. Had the deceased nobleman had no * original domicile in either of the two countries which in his later life he alternately made his home, the difficulty of applying the principle adopted by the M. K. as the ground of his decision would have been greatly increased ; in such a case the question would be, whether this state of things did not let in the original (z. e., in the case supposed, the foreign) domicile. [In cases of residence equally divided between two places, it has been said that the wife's constant residence in one of them is strong evidence of animus in favor of domicile in that place (o) .] '' The question of domicile," said Lord Loughborough, in the case of Bempde v. Johnstone (p) , ^^ prima facte, is much more a question of fact than of law.' The actual place where a person is, is prima facie, to a great many purposes, his domicile. You encounter that, if you show it is either constrained,^ or from the necessity of his aifairs, or transi- tory, that he is a sojourner, and you take from it aU character of per- manency. If, on the contrarj', you show that the place of his residence is the seat of his fortune, or the place of his birth, upon which I lay the least stress ; but, if the place of his education, where he acquired all his early habits, friends and connections, and all the links that attach him to society are found there ; if you add to that, that he had no other fixed residence upon an establishment of his own, you answer the question." ' [If the residence is " constrained" by external necessity, as by the duties of military or naval service (q) ; or of a temporary necessity, political (r) or judicial (s) office ; by imprisonment (i) , or — inpuWio by flight from civil commotion or revolution (m) ; it ' ' *14l wiU not confer * a domicile. So, neither an ambassa- dor (a;) , nor a consul (y) , loses his original domicile by residence in the foreign country where he is accredited. But if a consul engage in Uo) Forbes v. Forbes, Kav, 364. But see per Wickens, V. C, Douglas v. Douglas, L. E. 12 Eq. 647.1 (») 3 Ves. 201 [Udny v. Udny, sup.; Sterenson v. Masson, L. R. 17 Eq. 78. (o) Fhillim. Domicile, p. 79. Fersons entering the military service of a foreign state acquire the domicile of that state. lb. Where, as in the United Kingdom, iifferent laws prevail in different parts, a domicile in one, as Jersey or Scotland, is not altered by enter- ing the military or naval service of the kingdom. Be Patten, 6 Jur. N. S. 151; Brown v. Smith, 15 Beav. 444. But service under the East India Company gave an Indian domicile, Bruce v. Bruce, 2 B. & P. 229 ; Forbes v. Forbes, Kay, 356. However, with a few immaterial differences, the stat. 1 Vict. c. 26, was made law in India by an act of council, No. 25, a. r>. 1838, and applies to all wills made on or after 1st February, 1839. And by the Indian Suc- cession Act {Act X.), 1865, succession to immovable property in India is regulated by the law of India ; that to movables by the law of the domicile. See Macdonald v. Macdonald, L. E. 14 Eq. 60. {r) Att.-Gen. V. Pottinger, 6 H. & N. 733, 747, Governor of the Cape and of Madras. («) Att.-Gen. v. Eowe, 1 H. & C. 31, Chief Justice of Ceylon. (O Fhillim. Domicile, p. 87. («) De Bonneval v. De Bonneval, 1 Curt. 856. (x) Story, Confl. s. 48; Phillim. Dom. p. 79. ly) Sharpe v. Crispin, L. E. 1 P. & D. 611. 1 Opinion of the Judges of the Supreme ^ See Grant v. Dalliber, 11 Conn. 234, 238. Judicial Court of Massachusetts in Supple- 8 gee the note of Mr. Chancellor Kent on ment to 5 Met. 588. this subject, 2 Kent, 430. 14 WILLS ARE EBGtTLATBD. *15 trade there, his character of consul is, for some purposes at least, merged in that of merchant («). And if, being already domiciled in a foreign countrj', a man be appointed by his own sovereign am- bassador (a) or consul (5) in that country, his original domicile is not thereby restored quoad succession to personal property. On the other hand, a life employment abroad in the pubhc service alters the domicile (c). One who settles as a trader in a foreign country will thereby com- monly acquire a domicile in that country (rf) ; nor is the —as trader. contrary to be inferred merely because, being a British subject, he has the benefit of treaties which, without making special provision for testa- mentary questions (e) , secure to him certain immunities and privileges, and because he invariably acts and regards himself as an Englishman (/) . Nor wiU his being an officer in the British service on half- officer on pay, and ( in order to retain his paj' ) requiring and obtain- talf-pay. ing leave of absence (gr), nor being an officer on unlimiited furlough, subject to a positive obligation to return to duty when ordered (A), prevent his acquiring a domicile other than British ; though such an obUgation would be strong to rebut any presumption that a domicile was contemplated in a foreign country where the obligation cquld ncc be enforced, for an intention contrary to duty is not to be presumed (i). Residence in any place for health's sake is of dubious import ; and further manifestation of intention is requisite before such J^^'^^Ym residence can be assumed to be permanent (^).J sake. * It has been made a question, whether infant children, *15 who, after the death of the father, remain under the care of Domicile of their mother, follow the domicile which she may from time to children, time acquire, or retain that which their father had at his death, until they are capable of gaining one by acts of their own. The weight of authority in such cases seems to be in favor of the mother's domicile ; and, therefore, where an Englishman, domiciled in Guernsey, died there, and the widow came to and took up her residence in England, bringing her children with her ; it was held that the succession to the (z) Phillim. Domicile, pp. 124, 125. By the rules of their service British Consuls are forbidden to take part in mercantile affairs. Sharpe v. Crispin, L. R. 1 P. & D. 617. (o) Heath », Sampson, 14 Beav. 441; Att.-Gen. v. Kent, 1 H. & C. 12. (4) Sharpe v. Crispin, L. R. 1 P. & D. 611. (c) Commissioners of Inland Revenue v. Gordon's Executors, 12 Cas. Court Sess. 657. The cases decided on service with the East India Company, sup. n. (}), are to the Mke (d) Cockrell v. Cockrell, 2 Jur. N. S. 727; 25 L. J. Ch. 730; Allardice v. Onslow, 12 W. R. 397; Doucet v. Geoghegan, 9 Ch. D. 441. (e) Maltass v. Maltass, 3 Curt. 231, 1 Rob. 67, 7 Jur. 135, 8 Jur. 860, 2 No. Cas. 33, 3 TSo, Cas. 257. (/) Moore v. Budd, 4 Hagg. 346. Ig) Cockrell v. Cockrell, 25 L. J. Cii. 730. See also Commissioners of Inland Revenue ». Gordon's Executors, 12 Cas. Court Sess. 657. (A) Att.-Gen. v. Pottinger, 6 H. & N. 733, 747; Forbes v. Forbes, Kay, 359. Secus, it the furlough be for a limited period; Craigie v. Lewin, 3 Curt. 435, 7 Jur. 519, 2 No. Cas. 185. (j) Hodgson V. De Beauchesne, 12 Moo. P. C. C. 285. to See Hoskins v. Matthews. 8 D. M. & G. 13; and per Wood, V. C, Kay, 367.] 15 *15 BY WHAT LOCAL LAW WILLS ABE BBGULATED. personal property of two of her children, who died there at an early age, was to be governed by the law of England, there being no gi'ound to impute the removal to fraudulent intention (l) .^ (I) Pottinger v. Wightman, 3 Mer. 67 ; but see Story, s. 46. [The general rule is well known that infants and married women cannot change their domicile hy their own acts. See Kay, 353, Robins v. Dolphin, 1 Sw. & Tr. 37, in D. P. 29 L. J. Prob. 11; Ee Daly's Settlement, 25 Beav. 456 ; Yelverton ». Yelverton, 29 L. J. Matr. 34. So in the caSe of one lunatic from infancy, Sharpe v. Crispin, L. R. 1 P. & D. 611. But the scope of this treatise does not admit of a full exposition of the law of domicile; this will be found in books specially devoted to the subject; and see Hayes & Jarman, Cone. Forms of Wills, p. B43, 8th ed. by Dunning.] 1 See 2 Macpherson, Infants (Lond. ed. Pick. 20; Leeds v. Freeport, 1 Fairf. 356; 1842), 678, 579; Story, Confl. Laws, § 46. 2 Kent, 227, note. See Upton v. North- Whether a minor can gain a new domicile bridge, 15 Mass. 239; Ciitts v. Haskins, 9 with the consent of his father, who does not Mass. 543 ; Buckland v. Charlemont, 3 Pick, change his own, see 2 Macpherson, supra; 173; Guier v. O'Daniel, 1 Binn. 349, note; Story, Confl. Laws, note. The domicile of a Story, Confl. Laws, 46, note. But the domi- minor or of a person non compos mentis, under cile of a guardian was held not necessary to guardianship may be changed by the direc- , be the domicile of his minor ward, in School tion or with the assent of the guardian, ex- Directors v. James, 2 Watts & S. 568. See 2 press or implied. Holyoke v. Haskins, 5 Kent, 227, in note. 16 FORM AND CHAEACTEEISTICS OP THE INSTRUMENT. *1T CHAPTER II. FORM AND CHARACTERISTICS OF THE INSTRUMENT. A WILL is an instrument by which a person makes a disposition (a) of his property, to take effect after his decease, and which Ambulatory is in its own jiaiure ambulatory and revocable during his life.-' wills. It is this ambulatory quality which forms the characteristic of wills ; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is, in such case, produced by the express terms, and does not result from the nature of the instrument. Thus, if a man, by deed, limit lands to the use of himself for life, with remainder to the use of A. in fee, the effect upon the usufructuary enjoyment is pre- cisely the same as if he should, hy his wUl, make an immediate devise of such lands to A. in fee ; and yet the case fully illustrates the dis- tinction in question. ; for, in the former instance, A., immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the settlor, while, in the latter, he would take no interest whatever until the de- cease of the testator should have called the instrument into operation. [A will may be made so as to take effect only on a contingency, and if the contingency does not happen, the will ought not to Contingent be admitted to probate (6).^ The contingency will gener- ■>^'^'^- ally attach to every part of the will, e.g. to a clause revoking former wills (c) . But a codicil in other respects contingent will be admitted to probate if it expressly confirms the will, for this operates as a re- execution of the will {d) . A reference to some impending dan- ger is common to most of these cases, *and the question is *17 whether the possible occurrence of the event is the reason for the particular disposition which the testator makes of his property, as where [(a) Where one by will said, " I propose to give the residue by codicil, or otherwise to let it devolve as if I had died intestate," and he left no codicil, he was held not to have dis- posed of the residue, A^ v. Ash, 10 Jur. N. S. 142. (b) Parsons i'. Lanoe, 1 Ves. 190, 1 Wils. 243; Sinclair v. Hone, 6 Ves. 607. (c) Re Hugo, 2 P. D. 73. (d) Ee Da Silva, 30 L. J. Prob. 171. 1 Brown v. Betts, 9 Cow. 208. The term tinct writing revoking awill, when duly exe- includes every kind of testamentary act cuted, is itself a will. Bayley v. Bailey, emanating from a sound mind and mj(nifested supra. by writing (Bayley v. Bailey, 5 Cush. 245) 2 Warner v. M'Donald, 2 Har. & .1. 346; or by nuncupation. Slocomb v. Slocomb, 13 Todd's Will. 2 Watts & S. 145; Dougherty v. Allen, 38. It follows that a separate and dis- Dougherty, i Met. (Ky .) 25 ; Vol. 2, p. 2, n. VOL. I. 2 17 *18 FOEM AND CHAEACTEEISTICS he says, ' ' Should anything happen to me on mj' passage to "W. , I leave," &e. (e) ; or only the reason for making a will, as where he says, " In case of accident, being about to travel by railway, I bequeath," &e. (/). A will may also be made contingent on the assent of another person (g) . A will intended to take effect as an exercise of a power, is not neces- sarily conditional on the existence of the power, if the testator has an interest independent of the power (/;), or a power not expressly referred to (i) , sufficient to support the disposition : for, if an intention appears to dispose of the property, it matters not that the testator mistook the origin or nature ol' his dispositive power. ' Where the will is, in terms, clearlj' contingent, and the contingency has failed, the will cannot, either as to real estate {k), or, since 1 Vict. c. 26, as to personal estate (Z), be set up but by some act amounting to a re-execution of it (m) . Without some such act it is a nullity, and a previous will stands unrevoked (n). When on the death of the tes- tator the event is still in suspense, general probate will be granted at once (o). Of course, the question still remains open what effect the will is to have. Two or more persons may make a joint will, which, if property exe- cuted by each, is, so far as his own property is concerned, as much his will, and is as well entitled to probate upon the death of each, as if he had made a separate will (p) . But a *18 joint will made by two persons, to take effect after the * death of both, will not be admitted to probate during the hfe of either (q) .^ (e) Roberts v. Roberts, I Sw. & Tr. 337, 3t L. J. Prob. 46; Re Porter, L. E. 2 P. & D. 22; Ke Robinson, ib. 171; Lindsav v. Lindsay, ib. 459; Re Hucio, 2 P. D. 73. ( /■) Re Thome, 4 Sw. & Tr. 36, 34 L. J. Prob. 131 ; Re Dobson, L. R. 1 P. & D. 88 ; Re Martin, ib. 380. (g) Re Smith. L. R. 1 P. & D. 717. - {h) Southall V. Jones. 1 Sw. & Tr. 298, 28 L. J. Prob. 112, 30 Beav. 187; Sing v. Leslie, 2 H. & M. 68. (i) Re Wilmnt, 29 Beav. 644; Bruce v. Bruce, L. E. 11 Eq. 371. (i) Larsons V. Lanoe, 1 Ves. 190, 1 Wils. 243. ll) Roberts v. Roberts, supra; Re Winh, 2 Sw. & Tr. 147. Secus, before 1 Vict.c. 26. Bur- ton ». CoUingwood, 4 Hagg. 176; Sti. Simpson, supra. 22 OF THE INSTRUMENT. *21 hand and seal of the testator, stamped and concluded like a deed, the testator recited this power in his will, and then proceeded thus : — "Now know j'e, that, by this mj' deed-poll, I do direct and appoint that my trustees (naming them) shall imraediatelj- after," &c., convey to certain uses, &c. It was held by Lord Loughborough, assisted by Wilson and BuUer, JJ., that the second instrument was testamentary. Buller, J., said, that the cases had established that an instrument in any form, whether a deed-poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall oper- ate as a will. In one of the cases there were express words of imme- diate grant, and a consideration to support it as a grant ; but as, upon the whole, the intention was that it should have a future operation after his death, it was considered as a will.'^ The consequence in this case of holding the instrument to be a codicil to the will was, that it operated on the copyholds, but not on Remark upon the freeholds, for want of an adequate attestation ; the court Habergham being decidedly of opinion that a testator could not, bj* a ' will attested by three witnesses, reserve to himself a power to dispose of freehold estates by an unattested codicil. The question, whether an instrument in the form of a deed operated as a will, was much discussed in Att.-Gen. v. Jones (h) , Att.-Gen. v. where A., by indenture dated March 25, 1813, assigned, Jones. * ^VhctliGr for a nominal pecuniary consideration, certain lease- property pro- hold property to * C. and D. ; also certain stock in *21 tJg^""-'^!^'^ the funds, with the dividends which should be due was liable to thereon at his decease, the arrears of any pension that might '"^sa^y duty. be due to him at his death, and his household furniture, &c., and all other his personal estate then belonging to him, or which should belong to him at his decease, upon trust for himself for life, and after his decease, for B. (an illegitimate daughter). The instrument reserved to A. a power of revocation by deed or will. By will, dated April 16, 1813, A. confirmed the deed except as to certain particulars, which he specified, and ai^pointed the same persons as were trustees in the deed . executors. A. did not transfer the stock, or part with the possession of the assigned propertj^, or even communicate to the trustees the exist- ence of the deed, which he retained in his own custody. The question was, whether the propertj' assigned by it was liable to the legacy dutjr ; and three of the Barons of the Exchequer decided in the affirmative, (A) 3 Price, 368. 1 Allison V. Allison, 4 Hawks, 141; Hall v. Bragg, 28 Ga. 330; Symmea v. Wheeler v. Durant, 3 Rich. Eq. 452; Fred- Arnold, 10 Ga. 506; Watkins ii. Dean, 10 erick's Appeal, 52 Penn. St. 338; Carev ». ^erg. 321. See Walls «. Ward, 2 Swan, 648; Dennis, 13 Md. 1; Singleton v. BremaV. 4 Swails v. Bushart, 2 Head, 561; Jackson «. M'Covd, 12; Bahb «, Harrison, 9 Rich. Eq. Culpepper, 3 Ga. 569; Jones w. Morgan. 13 Ga. ]ll;lIillicani-.Millican. 24 Texas, 426; Ste- 515; Move );. Kittrell, 29 Ga. 677 ; Baltimore ven^oin). Huddleson, 13iB.Mon.299;Gillham v. Williams, 6 Md. 235 ; Edwards ». Smith, ». Muptin, 42 Ala. 365; Mosseri). Mosser, 32 35 Miss. 197; Hocker v. Hocker, 4 Gratt. Ala. 551; Walker v. Jones, 23 Ala. 448; 277; Lyles v. Lyles, 2 Nott & M'G. 531. 23 *22 I"OEM AND CHAEACTEEISTICS adverting, in tlie course of very long judgments, to the circumstance that the consideration was nominal ; that the trust for the grantor was not to receive the dividends merely, but implied a power in him to dispose of the property as he should think proper (i) ; that he kept the deed in his own possession ; never transferred the stock to the trustees, nor invested them with the control of the property, or even informed them of it ; that, though the legal estate was in the trustees (for this with singu- lar inconsistency was admitted) , the actual ownership remained with the grantor ; that the deed professed to grant the propertj' of which the maker should be possessed at the time of his decease, which, otherwise than as a will, it could not do ; that it contained a power of revocation by the most informal instruments ; and, lastly (on which great stress was laid), that the will, hj referring to and confirming the deed, " threw a testamentary character over the whole." Wood, B., in sup- port of his contrary opinion, relied not only on the form of the instru- ment, which was perfect as a deed, but on its efiect ; which, he said, was to vest the legal estate in the leasehold property in the trustees instanter ; and was there, he asked, a case where the estate passed by a will in the lifetime of the testator ? He argued, that the confirmation of it in the subsequent will made no difference. " Suppose," he said, " there had been no power of revocation, would it not have been valid as a deed ? and suppose, in that case, the party had made a will, *22 * disposing of the property differently, that will would not avail against a deed ; but the deed, notwithstanding the alteration of the wiU, if he had not reserved the power, would prevail against the wiU. That shows it as a deed. If, on the other hand, he had made a will, and then another, the second would have been a revocation of the first." The principle of this decision has been generally condemned : indeed, Remarks the reasoning of some of the learned barons seems very in- G«n" «^" " conclusive and unsatisfactory. The reliance placed on the Jones. power of revocation was especially unfortunate ; for the in- sertion of such a clause, so far from indicating an intention to make a will, imparts quite a contrary color to the transaction, as a wiU wants not an express power to render it revocable. The fact, too, of the assignment being extended to all the property of which the grantor should happen to be possessed at his decease, shows onlj- that he attempted to include what he could not, and not that he meant to resort to a different species of disposition. Nor do the arguments founded on the retention of the custody of the deed (A) and the possession of the property appear to be more convincing ; for, though these circumstances are often very important when the claims of creditors and purchasers are under consideration, yet it has never been ruled, that in order to render (i) It was merely for the use and benefit of A. for life. (A) [See Alexander v. Brame, 7 D. M. & G. 530 ; S. C. nom. Jeffries v. Alexander, 8 H. L. Ca. 594.1 24 0¥ THE INSTEUMBNT. *23 a settlement binding on the settlor's own representatives the deed must be disclosed, and the possession of the property relinquished by him ; on the contrary, dispositions of property by a deed taking effect inter vii-ns, have often been supported under such circumstances. Still more difficult is it to accede to the position, that the reference to the settle- ment in the subsequent wUl " threw a testamentary character over the whole." Testators frequently refer to, for the purpose of confirming, some antecedent disposition of property by deed ; and it has never been surmised that such confirmation rendered the instrument referred to testamentary. If testamentarj' for one purpose, it must be so for every purpose ; and hence we are forced to conclude that if B., the cestui que trust, had died in her putative father's lifetime, the property in question would have gone, not to her representatives (which if she had died intestate and unmarried would have let in the title of the crown) , but to those of the settlor, who would necessarily have been entitled, under the doctrine of lapse, if the instrument were to be construed as a will ! * A similar question arose in Tompson v. Browne (l) , which *23 was as follows : By an indenture of settlement dated August 19, 1823, made between A. of the first part, B. of Browne, the second part, C. and D. (natural daughters of A. and B.) Settlement / ^ ' ^ " ' reserving life of the third part, and E. and F. of the fourth part, after recit- interest to ing that A. was desirous of making some provision for their power 'o7iev- chUdren C. and D., and had therefore lately transferred ocation, into the joint names of E. and F., the sum of 6,090?. new 4 property was per cent. Bank Annuities ; it was then witnessed, that E. ™t I'ab'ie to and F. and the survivor, &c., should stand possessed of the said stock, upon trust, to permit A. or his assigns to receive the divi- dends during his life ; and after his decease, upon trust, to appropriate so much of the stock as would produce 80/. per annum, and pay the dividends thereof, to B. for her life ; and as to the residue of the stock, and also, after the decease of B., as to the appropriated fund, upon trust, to transfer the same to C. and D., in equal shares, at the age of twentj'-flve or marriage. The settlement contained a power to A. to revoke the trusts and appoint any others in lieu thereof. A. and B. being both dead, the cestuis que trust claimed a transfer of the fund ; and the question raised by the trustees was, whether the instrument was not testamentarj', and the fund accordingly subject to legacy duty? The affirmative was attempted to be maintained on the authoritj' of Att.-Gen. «;. Jones ; but Sir C. C. Pepj's, M. R., decided that the legacy diit}' did not attach. "The decision inAtt.-Gen. v. Jones," he said, " seems to have proceeded upon the ground that, under the circum- stances of that case, nothing passed from the maker of the instrument, so as to entitle any other person to interfere with his property in his lifetime. If there be anything in that decision to support the notion, that {I) 3 My. & K. 32. 25 *24 FOEM AND CHAEACTEEISTICS where a person hy deed settles 'property to his own use during his life, and after his decease, for the benefit of other persons, a power of revocation reserved in such a deed alters the character of the instrument, and renders it testamentary, and consequently subject to legacy duty, I can only say that if this were law, a great number of transactions, of which the validity has never been doubted, would be liable to be impeached." Although the remarks of the M. R. are expressed with gi'eat caution, thej' leave no doubt of his opinion of Att. -Gen. v. Jones [and when that case was cited to Lord St. Leonards in D. P. (rn), he said, " That case is quite wrong.'' *24 * In Majoribanks tJ. Hovenden (ra), an instrument commencing . , ^ with a recital, and having an attestation clause, like a deed- Instrument , , . sealed, poll, and sealed, stamped, and registered, was held by the rerisferea*"'^ Same learned Lord not to be invested with a testamentary not testa- character by the mere nature of the power (a power to ap- "len aiy. poijjt by will, misrecited as a power to appoint by deed or will) under which it purported to be made. The fact of registration as a deed appears to have been deemed almost conclusive against its testa- mentary character.] The Probate Court (before which, of course, questions of this kind are most frequently agitated) act fullj' up to the principle bate Court as which regards as testamentary' anj' instrument that is de- to nistru- signed not to take effect until the maker's decease, though nients testa- = ' ° mentary in assuming the form of a disposition inter vivos ; and more substance: especially' if it be incapable of operation in the intended form (o) ; and accordinglj', in repeated instances, probate has been granted of such irregular documents, as the assignment of a bond by — bills indorsement^ '{p)i receipts for stock and bills indorsed {q), notes, &c. a letter ^ (;•), marriage articles (s), and promissory notes, and notes payable by executors, in' order to avoid the legacy duty' (i), [and cheques on a banker (m) , even though the testator made a subse- [(m) Brown v. Att.-Gen., 1 Macq. Sc. Ap. 85. (re) 1 Dru. 11.1 (o) But now that all wills require attestation by two witnesses, the validity of an instru- ment as an actual disposition of property would, if not so attested, depend on the mainte- nance of its non-testamentary character; [jlitchcll v. Smith, 33 L. J. Ch. 596.] I.p) Musgravei). Down, t. T. 178+; eit. 2 Hagg. 247. (n) Sabine «. Goatc and Church, 1782; cit. 2 Hagg. 247. ()■) Drvbutter v. Hodges, E. T. 1793; cit. 2 Hagg. 247; [and see Passmore v. Passmore, 1 Phillim." 218; Ee Mundv, 7 .lur. N. S. 52, 30 L. J.Prob. 85.] (s) Maruell i'. Walton,' T. T. 1796; cit. 2 Hagg. 247. (() Maxee v. Slmte, H. T. 1799; cit. 2 Hagg. 247; [and see 4 Tes. 605; Jones i;. Nicolav, 2 Rob. 288, 14 .Tur. 675 ; Ee Marsden, 1 Sw. & Tr. 542. (u) "Bartholomew ». Henley, 3 Phillim. 317. 1 Where the payee of a note made on it son ». Jackson, 6 Dana, 257. See Plump- the following indorsement, — " H I am not stead's Appeal, 4 Serg. &E. 545. living at the time this note is paid, I order 2 Boyd v. Boyd, 6 Gill & .1. 25; Denny v. thecontentstobepaidto A.H.."— and, hav- Barton, 2 Phillhn. 575; Manly i'. Lakin, 1 ing signed it, afterwards died before the note Hagg. 130 ; Morrell v. Dickey, 1 Johns. Ch. ■yfas paid, it was held that the indorsement 153. was testamentary, and entitled to probate as s go drafts on bankers. Bartholomew v a win. Hunt u. Hunt, 4 N. H. 434; Jack- Henlev, 3 Phillim. 317; Jones u. Nicolav, 8 Eng. Law & Eq. 591. 26 OF THE INSTRUMENT. *25 quent will containing a clause revoking any former will or codicil (v) ] . On the same principle, Sir J. NichoU admitted to probate, as testa- mentary, the drafts of three bonds, prepared in the lifetime of the deceased, and intended to be executed by him, to the trustees of the marriage settlement of his three daughters, in substitution for legacies which he had, by a revoked will, bequeathed for the benefit of the daughters, and the execution of which bonds was prevented by his death (x) . [So papers in these words, " I wish A. to have my bank book for her own use"(v); "I hereby make a free gift to A. of . ^ ^«'' ' •^ ° Instruments the * sum deposited," &c.{z); "I have given all to *2o in the form A. and her sons: they are to pay" certain weekly pLTg^fe "'^ sums to "X. and Y., and to divide the residue among iieidtusta- themselves " (a) ; have been held testamentary, chiefly upon ™'^" ^'^'' collateral evidence, which is always admissible (6), that they were executed with that intent. So, as at common law, instruments in the form of deeds inie}- partes, and purporting to convey propertj' to trustees, but providing Lj,.|,^jgg that the trusts should not take effect until after the death deeds inter of the donor, have been held testamentary in the Probate P"''*^- Court (f).] But if the instrument is not testamentary either in form or in sub- stance (none of the gifts in it being expressed in testamen- paper con- tarj' language, or being in terms postponed to the death of *aniing the maker) and if no collateral evidence is adduced to show present gift that it was intended as a will,'' probate will not be granted JJo['\e°ta-^ of it as a testamentary document.^ Thus, where a minor mentar.y; aged nineteen (at a period when minors of such an age were capable of making wills of personal estate), wrote a paper in these words : "I, A. B., of &c., in the presence of the two under-mentioned wit- nesses, C. D. of &c., and E. F. of &c., do give all my goods and chat- tels to M. D. of , spinster." This paper was dated, and witnessed (m) Gladstone v. Tempest, 2 Curt. 630. B\it the Court of Chancery declared the checks to be in effect revoked. Walsh v. Gladstone, 1 Phil. 294.] [X) Jlasterman v. Maberley, 2 Hagg. 235. [(i/) Cock »). Cooke, L. R. 1 P. & D. 241. (z) Robertson i). Smith, L. R. 2 P. & D. 43. (a) Re Coles, L. R. 2 P. .& D. 362. (6) J!o English, 3 Sw. & Tr. 588, 34 L. J. Prob. 5. (c) Re Morgan, L. R. f P. & D. 214. And see cases, p. 18,. nn. ()/) (s).] See also Re Knig'it, 2 Hagg. 054; Shingler v. Pemberton, 4 Hagg. 356 ; both of which cases were before Tompson v. Browne, stated above. ^ Warcham u. Sellers, 9 Gill & J. 98; ^ A paper, though containing some tech- Ga,»:i:e v. Ga;^c, 12 N. II. 371; "Witherspoon v. nical expressions, which might embrace the Witiior.ipooii, 2 M'Cord, 520. Where it was idea of a testamentary disposition of prop- ' doubtfal Vi'Iictlicr an instrument oifered in erty. is not considered in the nature of a will, evidence was a deed or a will, the facts of its if t.he acts to be done by the person named in execution and doli^xry, and the declarations it are to be executed as speedily as possible, of the maker at the time, together with the and in the lifetime of the maker. Hamiltoa instrument, were held to be proper for the v. Peace, 2 Desaus. 92 ; Thompson v. John- consideration of the jury, in Herringtun v. son, 19 Ala. 59 ; Kobey v. Uaunon, 6 Gill, Bradford, Walker, 520; Gage v. Gage, supra. 463. 27 *26 FOKM AND CHAEACTEKISTICS by the two persons referred to in the body of it. The court was of opinion that, as the paper bore upon the face of it no evidence of its being intended to be testamentary, but it rather appeared, both from its contents and the evidence dehors (though the latter was rather con- flicting) , to have been intended as a present gift, probate ought not to be granted {d). So probate was refused of a letter addressed by the deceased to a — so as to friend, directing the sale of stock in the public funds, and ^n'foinfo"^ the distribution of the proceeds, on the ground that it re- letters, ferred to an immediate and not to a posthumous sale («).■' And in another case, a paper addressed by a testator to his executors was held not to be testamentarj-, the same not being dispositive in terms, nor shown by extrinsic evidence to have been so intended (/). In this case Sir Herbert Jenner observed that there was this distinction in the consideration of papers which are in their terms disposi- *26 tive, and those which are of an equivocal * character, that the first will be entitled to probate, unless, as in MchoUs v. Nicholls (^), they proved not to have been written animo testandi ; whilst, in the latter, the animm must be proved by the party claiming under it.^ [But, as already observed, an instrument is not testamentary merely Instrument because actual enjoyment under it is postponed until after not made tes- the donor's death. If it has present effect in fixing the postponing terms of that future enjoyment, and therefore does not re- enjoyment, quire the death of the alleged testator for its consummation, it is not a will. Therefore where there was an agreement for a lease, which contained a provision for the distribution of the rent after the lessor's death among his grandchildren, of whom the lessee was one, it was held that this provision being part of the consideration for which the lessee was to pay his rent was irrevocable ; it was therefore not tes- tamentary (h) . The court was asked to grant probate only ^lirtofanin- of a part of the document, namely, that which contained the strument, provision in question : and as to this. Sir J. P. Wilde said he had met with no case where it had been done, although he by no means said it could not be done. And in fact in the case (there cited) —of a power of Doe d. Cross V. Cross (t), where ah instrument in the of attorney, form of a ppwer of attorney was given by a person abroad, whereby he appointed his mother to receive the rent of his lands for her own use, until he might return to England ; or in the event of his death, he " thereby assigned and delivered to her the sole claim to his (d) King's Proctor v. Daines, 3 Hagg. 218; [and see Langler »• Thomas, 26 L. J. Cli. 609.] (c) Glvnn i'.' Oglander, 2 Hagg. 428. ( f) Griffin v. Ferard, 1 Curt. 97. (g) 2 'Phillim. 'l80. ((h) Re Robinson, L. R. 1 P. & D. 384. And see Patch v. Shore, 2 Dr. & Sm. 589. («■) 8 Q. B. 7H.] 1 A letter disposing of personal property, Porter v. Turner, 3 Serg. & R. 108 ; Rose v. in case of the writer's death, was held a good Quick, 30 Penn. St. 225. will in Boyd v. Boyd, 6 Gill & J. 25. See 2 gee Wareham k. Sellers, 9 Gill & J. 98; Lyiea v. Lyles, 2 Nott & M'C. 531. 28 OF THE INSTRUMENT. *27 lands," but her occupancy was to cease on his return : this instrument was properly executed as a will, and was held to be a good will of the lands in question. The court was clear that there was no objection to one part 'of an instrument operating in prasenti as a deed, and another in futuro as a will.] -^ The granting of probate is conclusive as to the testamentary character of the instrument in reference to personalty, {j) ^ [Every- thing included in the probate copy {k) , but no word far conc'lu-°^ * besides (I), must be taken by the Court of Construe- *27 tion to be part of the will, and the original will cannot be sive as to personalty, (./) See Douglas v. Cooper, 3 My. & K. 378. The executors are considered as represent- ing the legatees, in regard to the litigation respecting the validity of the will ; and unless a case of fraud and collusion can be made out against them, the legatees are bound by the adju- dication in the suit to which the executors are parties; Colvin v. Fraser, 2 Hagg. 292; Med- ley I!. Wood, 1 Hagg. 6i5; Newell v. Weeks, 2 Phillim. 22i ; and that, too, though the same pereons are executors under two conflicting testamentary mstruments. Hayle v. Hasted, 1 Curt. 236. The court, however, sometimes directs the parties interested to be brought before It. Reynolds v. Thrupp, 1 Curt. 570. [(i) Gann v. Gregory, 3 D. M. & G. 777. (I) Barneby ». Tassell, L. R., 11 Eq. 368. As to omission from "the probate of scurrilous imputations on character, see Re Honywood, L. R. 2 P. & D. 251. 1 In Thompson v. Johnson, 19 Ala. 59, the court made the suggestion that it may be collected from a variety of cases that one and the same instrument cannot be both a will and a deed. The suggestion is liable to mislead, and appears to be true only in the sense in which it was applicable to the case before the court ; to wit, that if the true in- tention of the person who executed the instru- ment be to make a testamentary disposition (a disposition to take effect upon his death), then, notwithstanding the fact that in its external aspects the instrument resembles a deed, it must be treated as a will alone. It cannot be considered "both a will and a deed." But, if upon a true construction of the instrument (in the light of surrounding circumstances, when the language requires the aid of external evidence), it appears to have been the intention of the signer that a distinct part of its provisions should oper- ate as a will, and another part take effect in his lifetime, there can be no reasonable ob- jection to carrying out the intention and admitting to probate that part of the instru- ment intended to operate as a will. This view is sanctioned by the text, and by Rob- inson V. Schly, 6 6a. 515. See Taylor v. Kelly, 31 Ala. 59 ; Dawson v. Dawson, 2 Strob. Eq. 34. It is apprehended there is no authority opposed to this position. 2 See Colton v. Ross, 2 Paige, 396; Van Rensselaer v. Morris, 1 Paige, 13; Nalle «. Fenwick, 4 Rand, 585; Morrell v. Dickey, 1 Johns. Ch. 153; Darrington v. Borland, 3 Porter, 11; Kussell v. Dickson, 1 Con. & Law. 284; 2 Greenl. Ev. § 672 ; 1 Williams, Ex. (6th Am. ed.) 549 et seq.; Appeal of Peebles, 15 Serg. & R. 42 ; Tompkins v. Tompkins, 1 Storv, C. C. 547; Bogardus V. Clark, 4 Paige, 623. In most of the states, the granting of probate in the courts, bv well settled authority, is as conclusive upon the testamentary character of the instru- ment in reference to real as to personal estate. Independent of statute modifications, the pow- ers of the Court of the Surrogate, Judge of Probate, Orphans' Court, Ordinary, or of whatever officer, coming in the place of the English Ecclesiastical Court (and such a court exists in everv state), are the same with those of the finglish Ordinary, in re- spect to the wills and estates of testators and intestates, and their decrees are to be re- ceived as conclusive evidence under the same limitations. See Crosland v. Murdock, 4 M'Cord, 217; Bogardus v. Clark, 1 Edwards Ch. 266-270; S. C. 4 Paige, 623; Harrison v. Rowan, 3 Wash. C. C. 580, 582; Den v. Avres.'l Green, 153; Darbv v. Mayer, 10 Wheat. 465, 469; Donaldson v. Winter, 1 Miller (La.), 137, 144; Lewis v. Lewis, 5 Miller (La.), 387, 393; Dubois v. Dubois, 6 Cowen, 494. Probate of a will determines all questions of fraud, imposition, and undue in- fluence in procuring such wills, as well as the general question relative to the capacity of the testator. Clark v. Fisher, 1 Paige, 176. See M'Dowall v. Peyton,_2 Desaus. 313. But by reason of its jurisdiction as a court of con- struction, equity may, under particular cir- cumstances, so construe an instrument of which probate has been obtained as to ren- der it ineffectual. Gawler v. Standerwick, 2 Cox, 16. In this case, a paper, it appeared, had been proved in the Spiritual Court as a codicil of the testator, which was signed by the executors and others, and purported to be an acknowledgment of what they understood to be the will of the testator, when he was unable to speak, in favor of certain legatees ; and a bill having been filed in equity, a question was raised whether they were enti- tled to their legacies under this paper proved as a codicil. Sir Lloj'd Kenyon, Master of the Rolls, said that as it had been proved in the Spiritual Court, he was bound to receive it as a testamentary paper, but, having ao 29 *28 POEM AND CHAKACTERISTICS appealed to for the purpose of showing that such copy is erroneous. Thus where probate was granted, with cross lines drawn over the be- quests of certain legacies, Lord Cran worth held that it was to be taken as conclusively settled by the probate, that the will was at its execution in the state in which it was then found ; i.e. that the testator had exe- cuted the instrument with the cross lines drawn over it {m). That being so, the onlj- question for him to determine was, what did the instrument mean? and he thought the meaning was, that the testator's original intention to give the legacies had ceased, and that he had placed the lines there to show this. Tlie result was that the legacies were struck out («). Neither was it competent for the Court of Chancerj-, on the ground that legacies given by a codicil were fraudulentlj- obtained, to declare the legatee a trustee for the person who would otherwise have taken. The objection on the ground of fraud should be taken in the Probate Court, which, on being satisfied of the fraud, would direct pro- bate to issue, omitting that part containing the bequest complained of (o). And practically this division of jurisdiction is continued as be- tween the Chancery and Probate divisions of the High Court of Jus- tice (jo), the judges of the former Division declining (in their discretion) to exercise the jurisdiction of the latter in matters of probate {q). The Court of Probate Act, 1857 (r), gives to probate, after citation —as to re- of the heir and other persons interested, and proof in sol- alty, emn form, the same effect with regard to realt}- as it had before with regard to personalty (s) . But the granting of probate *28 in common form has no effect as regards] real estate, either * free- hold or copyhold {i) : [except (under the Act of 1857) to fur- (tb) The general presumption is that alterations in a will were made after its execution ; see post, Chap. VII. s. 2, aajin. ; but that was for the consideration of the Court of Probate. (n) Gann v. Gregory, 3 D. M. & G. 777. (o) Allen V. Macpherson. 1 H. L. Ca. 191, 11 .Tur. 785, affirming 1 Phil. 133, and reversing 5Beav. 469; Hindson v. Weatherill, 5 D. M. & G. 301. So the Court of Chancery had no jurisdiction to set aside a will of lands for fraud. The remedy was by ejectment. ' Jones v. Gregory, 2 D. J. & S. 83. (;;) Meluish ))". Milton," 3 Ch. D. 27, 35. ((y) tinney v. Hunt, (i Ch. D. 98. (r) 20 & 21 Vict. c. 77, ss. 61, 62. (s) To bring a will within the purview of this enactment, it must be one which both as to realty and personalty is to be tested by the same considerations. For if there were any dif- ference between them it would be absurd to enact that probate of one should be concfusive evidence of the validity of the other. Consequently it must be a will executed since and ac- cording to the Stat. 1 X^ict. c. 26. Campbell v. Lucy, L. R. 2 P. & D. 209.] (() Hume V. Rundell, 6 Madd. 331. (See also Bonser v. Bradshaw. 5 .fur. N. S. 86; Loffus «. Maw, 3 GifE. 592. A will disposing of real estate only is not entitled to probate. Re Bootle, L. R. 3 P. & D. 177. Sacm, if it appoints executors, thougli they afterwards renounce. Re Jordan, L. R. 1 P. & D. 555. If a will appointing executors bo made in exe- cution of a power, the appointment of executors taking effect under the power docs not enti- tle the will to probate ; for here the executors take notliing jure representationis. Tugmau V. Hopkins, 4 M. & Gr. 383; O'Dwyeri). Geare, 29 L. J. Prob. 47; Re Barden, L. R. 1 P. & D. 325. done, the Court of Equity was to construe it. paper, though testamentary, operated noth- Now the effect of this codicil was only that ing. See 1 Williams, Ex. (6th Am ed.), 549- the parties mii/f7-stoo(Ht to be the will of the 570, where the jurisdiction of Probate and testator tliat the asserted legatees should Equily Courts is considered. Of course, the have legacies, and the heir promised to per- probate of a will settles no question of the form this; but the court could not convert title of property, Holman v. Perry, 4 Met. the promise of the heir into the will of the 492. testator; and it was therefore decided that the 30 OF THE INSTKUMENT. , *29 nish prima facie evidence of the validity and contents of tlie will (m) . And, even with respect to personal estate, the granting pro- —as toper- bate of any paper has no other effect than to establish gen- so^alty. erally its claim to be received as testamentary ; and it remains for the Court of Construction to determine the meaning and effect of the in- strument thus stamped with a testamentary character (a;).] The adju- dication of this court ma_y, and often does, render the paper wholly nugatory. It may be found not to contain any intelligible disposition of the deceased's property (y) ; or to be in substance the same as [or in substitution for] another paper of which probate has been granted {z) ; or that its provisions are invalid according to the law of a foreign country which constituted the domicile of the maker at the time of his decease (a) ; in all which cases the instrument so proved operates merely as an appointment of an executor, who distributes the property as under an intestacy. [And to determine the constntctipn, the original will, both of real and personal property, may be looked at. It was said, indeed, original will by Sir W. Grant {b) , that his decision on the construction '"^.T ^^ ^^- of the will before hihi could not depend on the grammatical court of skill of the writer, in the position of the characters expres- Construction. sive of a parenthesis : that it was from the words and from the con- text, not from the punctuation, that the sense must be collected. And there are, probably, few imaginable cases in which punctuation could exercise a very important influence upon the construction («) . But it seems a little unreasonable to refuse all effect to " grammatical skill," when employed in fixing a position for parenthetical characters, when that same skill is the * foundation of all testamentary, con- *29 struction. Certainly, in recent times," no hesitation has been felt by the courts, in following what is stated to have been Lord Eldon'a practice, viz. in examining original wills " with a view to see whether anything there appearing, — as, for instance, the mode in which it was written, how ' dashed and stopped,' — could guide them in the true construction to be put upon it " (d) . It is true that LoM Cranworth expressed an opinion that it was not competent for the Court of Con- struction on every occasion to look at the original will. But that was (m) Barraclough v. Greenhough. L. R. 2 Q. B. 612. (x) Re IMundy, 30 L. J. Prob. 85.] («) See Gaivler v. Standerwicli, 2 Cox, 16 ; [Mayor, &c. of Gloucester v. Wood, 3 Hare, 131,' 1 H. L. Ca. 272.] (z) See Hemming J). Clutterbuck, 1 Bli. N. S. 479; \&. C. nom. Hemming v. Gurrey, 1 D. & CI. 35; Walsh 1-. Gladstone, 1 Phil. 290, 13 Sim. 261; Campbell v. Radnor, 1. B. C. C. 271.] (ri) Thornton «. Curling, 8 Sim. 310. [(b) Sandford v. Raike«, 1 Mcr. 651. (c) See per Sir E. Sugden, Heron «. Stokes, 2 Dr. & War. 98; and per Lord Westbury, Gordon v. Gordon, L. R. 5 H. L. 276. (d) Per K. Bruce, L. J., in Manning «. Purcell, 24 L. J. Ch. 523, n. ; also reported 7 D. M. & G. 55. See also Compton «. Bloxham, 2 Coll. 201; Child v. Elsworth, 2 D. M. & G. 681; Oppenheim f. Henry, 9 Hare, 802, n.; Gauntlett ». Carter, 17 Beav. 590; Milsome v. Long, 3 Jur. N. S. 1073. 31 *30 FORM AND CHAEACTEEISTICS in a case where the object proposed was, by looking at an original will of personal property, virtual]}' to procure a reversal of the decision come to by the Probate Court with respect to the form of the probate copj' in question (e).] "Where a paper professed to be an appointment under a power, the As to probate Ecclesiastical Court applied to it the ordinary principles of taiy appoint- testamentary law, without attempting, in that proceeding, to nients. pronounce on its sufficiency as a due execution of the power under which it purported to be made (/). [This practice was indeed temporarily departed from, but was ultimately restored by the decision in Barnes v. Vincent (5-), in which it was held that probate ought to be granted of every paper professing to be executed under a power, if in other respects its testamentary character was established ; and further, that, if the power was alleged, the probate should be granted without production of the power, and without reference to the question whether the power existed or not (Ji). This, it was said, restored the ancient and laudable practice of the Ecclesiastical Courts.] The granting of probate precluded the Court of Chancery from questioning the testa- mentary character of the paper. * It remained for that court to deter- mine whether the formalities prescribed by the power had been complied with (i) , [and whether in other respects besides the testamen- *30 tarj' character of the paper the power * had been duly exer- cised Qc) . But if no special formalities were prescribed, the granting of probate was final on that head {I). Judges of the Probate Court have pronounced the practice described above to be inconvenient, since it required them to grant probate of an instrument which, but for the existence and due execution of the alleged power (into which they were forbidden to inquire) , did not amount even to the appointment of an executor (m). It is proba- ble, therefore, that under the Judicature Act, 1873, which gives equal jurisdiction to all the judges of the High Court, and directs that all questions "■ properly brought forward by the parties in any cause or matter " shall be completely disposed of in that cause or matter {n) , the judges of the Probate Division wiU, in a proceeding for probate, themselves determine whether the power has been well executed when- (e) Gann v. GresoiT, 3 D. M. & G. 780, already referred to-l (/) Draper v. Hitch, 1 Hags- 674. See also Stevens v. Bagwell, 15 Ves. 139. Uq) 5 Moo. P. C. C. 201, 10 Jur. 233, 4 No. Cas. Supp. xxxi.; Tatnall v. Hankey, 2 Moo. P. C. C. 342: De Chatelain «. De Pontignv, 1 S. W. & Tr. 411, 29 L. J. Prob. 147; Paglar v. Tongue, L. R. 1 P. & D. 158 ; Re Fenwick, ib. 319. {/() The case of Re Monday, 1 Curt. 590, seems therefore overruled.] (j) Douglas V. Cooper, 3 My. & K. 378. \Ck) Paglar v. Tongue, L. R. 1 P. & D. 168, where the question left was, whether the will,, dated 1844, of a married woman who died 1865, was a due exercise of testamentary powers given to her in the mean time. [I) Ward V. Ward, 11 Beav. 377. In Gullan v. Grove, 26 Beav. 64, the questions whether the third and fourth sheets of a will constituted a "will," or whether they were "in the nature of or pui-porting to be a will " were held to be identical. See also D''Huart v. Hark- ness, 34 Beav. 324, ante, p. 8. (m) Re Hallyburton, L. R. 1 P. & D. 90 ; Paglar v. Tongue, ib. 158. («) Sect. 24,''subs. 7. , 32 OF THE INSTKUMENT. *31 ever the necessary parties are before them (o) . But where any of the parties entitled to be heard on those quesllions are not before the court {e.g. persons who, under the instrument creating the power, claim in default of appointment), the former practice must be followed]. The question whether any particular fund forms part of the separate estate of a testatrix, a feme covert, is differently situated. Probate of [There can be but two parties to this question, namely, the ried women." husband and the executor (p). Both claim through th^ feme covert, and both are necessarily before the Court of Probate ; and since the Judicature Act, 1873, if not before {q), that court ought to decide the question, whether there is separate estate or not, in all cases where the question is ready and properly presented for decision : and probate wUl be granted, not confined to the property decided to be separate, but including all over which the testatrix had a disposing power, and which she has disposed of ; * thus lea\ang the question as it regards other items of property " to be decided at a future period " (»")•] ^ If no executor *is appointed, the court commonly grants a gen- *31 eral administration to the husband, and not a limited adminis- tration to the legatees under the appointment {ra) , the effect of which would be that if the deceased left other property, a further administra- tion, i.e. a general administration to the husband, would be requisite. The facility with which loose papers were proved in the Ecclesiastical Courts was sometimes complained of by the judges of other courts, on whom has fallen the duty of expounding the jargon thus pronounced to be testamentary (s) . It has been, doubtless, induced by the consid- eration that a leaning on this side is less injurious than the opposite excess ; the effect of rejection often being to debar parties from the further litigation of their rights under the contested instrument (<) . The exclusion, however, bj'' the statute 1 Vict., of all testa- Effect of mentary papers which are not attested by two witnesses, ;„ checMng has materially checked the evil which has been the subject informal and of complaint ; for it rarely happens that these informal and ^mlntary^'" irregular papers are attested. The occurrence will also papers. (o) See per Jessel, M. R., Re Tharp, 3 P. D. 76. \p) The executor represents the legatees, ante p. 26, n. (/). Iq) See cases cited Ke Tharp, 3 P. D. 79, in all of which the decision affirmed that the property in question was separate property; but in Ledyard ». Garland, 1 Curt. 286, it appears that this was not thought to be the proper forum. ()■) Re Tharp, 3 P. D. 79.] (ra) Salmon e. Hayes, 4 Hagg. 386. (s) See Matthews ». Warner, 4 Ves. 208, 210. (<) As to the admissibility in evidence of paper writings, not proved as testamentary, vide Doug. 707, 1 Cox, 1, 15 Ves. 153, 2 East, 552; Smith v. AttersoUj 1 Russ. 266. [This case shows that there is a distinction where a paper declaring trusts is signed by the legatees in trust, and not by the testator only. Johnsons. Ball, 5 De G. & S. 89; Consett v. Bell, 1 Y. &C. C. C. 577.] 1 SeeHolman v. Perry, 4 Met. 492. have exclusive jurisdiction of such questions. 2 The will of a feme covert under a power Picquet v. Swan, 4 Mason, 4+3 ; See Tappen- reserved to her in a settlement must be den v. Walsh, 1 Phillim. 353; Temple v. proved in our Courts of Probate before it can Walker. 3 Phillim. 394; West v. West, 3 be acted upon elsewhere, exactly as the wills Kand. 374; Osgood v. Breed, 12 Mass. 525. of persons suijura. The Courts of Probate VOL. I. 3 33 *S1 FORM AND CHAEACTEKISTICS be [genefally] prevented of the question whether the execution of a testamentary appointment conforms to the requisitions of the power, for which will be substituted the more simple inquiry, whether or not the donee has complied with the requisitions of the statute; so that, instead of the partial entertainment of the question, as heretofore, by the Probate Court, the whole matter relating to the suflBcienc3- of the execution (so far at least as the personal estate is concerned) will [even independently of the Judicature Act, 1873] be brought within the jurisdiction of that court (a) .^ [(m) a power to appoint by "writing" with certain stated solemnities, tlioagh exerria- -able .according to'tlie general law by wiU executed in eonftynnity with the requirements of the ^power^ is not within the terms of the statute 1 Vict. c. 26, s- 10, which speaks of a power to be executed "by will," West v. Kay, Kay, 385, following the doubt expressed in Collardu. Sampson, 4 D. M. & G. 224, and overruling Buckell ». JBlenkhorn,. 5 Uare, 131. See, also . Taylor e. Meads, 4 D. J. & S. 597.] 1 [The following note was prepared by the editor of the last American edition, the late Hon. J. C. Perkins, and there printed as a sep- arate chapter. In order to preserve the Eng- lish text intact, and at the same time to retain the valuable work of the' late editor, the chapter is now printed as a note.] In Eng- ' land, wills of pereonalty must be proved in the Ecclesiastical Court. It appeal's to have , been a subject of much controversy, whether the probate of wills was originally a matter of exclusive ecclesiastical jurisdiction. Bac. Abi'. Ex. (c). But whatever may havfe been the case in earlier times, Jt is certain that, at this day, the Ecclesiastical Court is the only court in which, except by special prescrip- tion, the validity of wills of personal-ty, or of any testamentary paper whatever relating to personalty, can be established or disputed, fonbl. Treat- Eq. Ft. 2. c. 1, § 1, n. a. ; Bnc. Abr. Ex. (e) 1 ; Gascoyne v. Chandler, 2 Cas. Temp. Lee, 241. Equity indeed considers an executor as trustee for the legatees in respect to their legacies, and as trustee for the next of kin .of the undisposed surplus ; 2 Storv. Eq. Jur. § 1208; Hays v. Jackson, 6 -Mass."i53; Hill v. Hill, 2 itayw. 298; and as all trusts are the peouliat objects of equi- ■ table cognizance, courts of equity will compel the executor to perform these nis ■ testamen- tary trusts with propriety. Hence, although, in those courts, as well as in courts of law, the seal of the Ecclesiastical Court is conclu- csive evidence of, the factum of a will of per- sonal property, an equitable jurisdiction has arisen of comtruing the will, in order to en- force a proper performance of the trusts of the executor. The courts of equity are ac- . cordingly sometimes courts of construction, in contradistinction to the spiritual courts, which, although they also are courts of con- struction, are the only courts of probate. 1 Williams, Ex. (6th Am. ed.) 294, 295. The consequence of this exclusive ecclesi- astical jurisdifition is, that an executor can- not assert or rely on his right in any other court, without showing that he has previously established it in the spn-itual court ; Hensloe's case, 9 Co. 88, a. ; Fonbl. Treat Eq. b. 4, Pt. 2, c. 1, § 2; Chaunter v. Chaunter, 11 Viner, Abr. 205; the usual proof of which is, the production' of a copy of the will by which he IS appointed, certified under the seal of the ordinary. This is usually called the probate, or the letters testamentary. In other' words, nothing but the probate (or letters of admin- istration with the will annexed, when no executor is therein appointed, or the ap- pointment of execiitor fails) or other proof, ' tantamount thereto, of the' admission of the will in the spiritual coui't, is legal evidence of the will in anv question respecting per- sonalty. Kex »."Neth6rseal, 4 T. R. 260 ; 1 Williams, Ex. (6th Am. ed.) 293. An executor in England may perform al- most all the acts incident to his office, except only some of those which relate to suits, before he proves the will in the spiritual courts. Godolph. Pt. 2, c. 20, § Ij Wank- ford V. Wankford, 1 Salk. ,301; Bagwell v. Eiliott, 2 Rand. 194, per Green, J. ; 1 Wil- liams, Ex. (6th Am. ed.) 303.^10; Strong - V. Perkins, 3 N. H. 517; 1 Arnould, Ins. 233. Where one named as executor in a will paid a debt in full before probate of the will, under an erroneous belief that the estate was solvent^ and afterwards took out letters testamenta,ry, it was held that he was entitled to recover back the difference be- tween the sum thus paid and the sum allowed by the Judge of Probate on the report of Commissioners of .Insolvencj-. Bliss «■ Lee, 17 Pick. 83. In Strong v. Perkins, 3 N. H. 517, it was held that an executor derives his authority from the testator, and may commence an action as such before probate of the will. But in Kittradge v. I'olsom. 8 N. H. 111. it seems to have been doubted, whether, under Stat. N. H. July 2, 1822, rcouiring bonds to be given by tfie executor before he inter- , meddled with the estate, an individual named as executor could do any act as such uiitil after probate of the will. In Massachusetts, Maine, Vermont, and New Hampshire, it ia expressly pro-vided by statute, .that " no will shall te effectual to pass either real or personal estate, vmless it shall have been duly proved and allowed in the Probate Court.'?' Gen.. Stat. Mass. c. 92, 34 or THE INSTKUMENT. •^31 § 38; Eev. Stat. Mo. 1871, c. 74, § 15; Gen. Stat. Vt. ]8ii-2, c. 49, § 20; Gen. Laws, N. H. c. 194, § 1. A will may be proved in the Probate Court at any time, even after the lapse of twenty years, for the purpose of establishing a title to' real estate. Shumway V. Holbvook, 1 Pick. 114. In Massachusetts and Maine, this is merely affirmative of the law as it stood in those States before this legislative provision, on the construction of former statutes. Shumwaj' v. Holbrook, 1 Pick. 114; Dublin v. Chadbourn, 16 Mass. 433 ; Ex parte Fuller, 2 Story, C. C. 327, 332 ; Spring V. Parkman, 3 Fairf. 127 ; Hutchins v. State Bank, 12 Met. 421. Such is also the hiw in Ohio, Swazevi). Blackman, 8 Ohio, 5; Bailey v. Bailey, ih. 245 ; Hall v. Ashby, 9 Ohio, 95; Wilson v. Tappan, 6 Ohio, 172: in Rhode Island, Moore v. Greene, 2 Curt. C. C. 202; Tompkins v. Tompkins, 1 Story, C. C. 355; Wilkinson v. Leland, 2 Pet. 655; and probably in some other states. See Budd V. Brooke, 3 Gill, 198; Eatcliff v. Ratcliff, 12 Smedes & M. 134. In Connecticut, the Probate Court is the only tribunal competent to decide the question of the due execution of a will. Fortune*). Buck, 23 Conn. 1. A will cannot be used as evidence in any court of common law in New Hampshire, until it has been duly proved and allowed in a probate court. Strong v. Perkins, 3 N. H. 617, 518; Kitti-edge v. Folsom, 8 N. H. 111. A will made in a sister state must be re- corded, in Ohio, before any title under it can vest in the devisee, Wilson «. Tappan,' 6 Ohio, 172; Bailey o. Bailey, 8 Ohio, 239. In Yirginia, it is held not necessary that a will should be proved in a court of probate, in order to give it validity as a will of land, in Bagwell V. Elliott, 2 Rand. 190. So in Ar- kansas, Campbell v. Garven, 6 Pike (Ark.), 458. But if proved in that court, it seems that it will be binding as to the authenticity of the will, with respect to both the real and the per- sonal estate. 2 Rand. 196, 200, per Green, J. A will made in execution of a power, by a married woman or other person, must be proved in the Court of Probate, before it can be acted on elsewhere, exactly as any other will. Picquet v- Swan, 4 Mason, 443 ; Hol- man v. Perry, i Met. 492, 498; Osgood v. Breed, 12 Ma.ss. 525; Newburvport Bank v. Stone, 13 Pick. 423 ; Ross v. Ew'er, 3 Atk. 160. Probate is, however, operative merely as the authenticated evidence, and not at all as the foundation, of the title to the property disposed of by the will. The title passes to the devisee, or legatee at the death of the testator, and the probate of the will relates back to that time. Fuller, Ex parte, 2 Story, C. C. 327; Spring v. Parkman, 3 Fairf. 127; Strong V. Perkins, 3 N. H. 517, 518; Hall V. Ashby, 9 Ohio, 96 ; Fleeger 'v. Poole, 2 M'Lean, 189, The will before probate is, in no just juridical sense, a nullity. The probate ascertains nothing but the original validity of the will as such, and that the instrument, in fact, is what it purports on its face to be. Ex parte Fuller, 2 Story, C. C. 332. Rights are not lost by failure to make probate. Arrington v. McLemore, 33 Ark. 759; Janes V. Williaois, 31 Ai-k. 175. In England, the Ecclesiastical Courts have no jurisdiction whatsoever over wills, except- ing such as relate to personal estate; and consequently the probate thereof by the sen- tence or decree of those courts is wholly in- operative, and void, except as to personal estate; it is not, as to the realty, even evi- dence of the execution of the will. The validity of wills of real estate is solel_v cog- nizable by courts of common law, in the ordinary iorms of suits ; and the verdict of the jury in such suits, and the judgment thereon, are, by the very theory of the law, conclusive only as between thp parties to the suit and their privies. But the sentence or decree of , the proper Ecclesiastical Court is, in reference to the personalty, final and con- clusive as to the validity or invalidity of the will. The same question cannot be re-exam- ined or litigated in any other tribunal. The reason of this is, that it being the sentence or decree of a court of competent^ jurisdiction, directly upon the very subject-matter in con- troversy, to which all persons who have any interest are, or may make themselves, par- ties, for the purpose of contesting the valid- ity of the will, it necessarily follows that it is conclusive between all parties. Tompkins V. Tompkins, 1 Storv, C. C. 552, 553; 1 Wil- liams, Ex. (6th Am" ed.) 288-292; 1 Greenl. Ev. § 550 ;, 2 Greenl. § 672; Muir v. Leake & Watts Orphan House, 3 Barb. Ch. 477; Thompson v. Thompson, 9 BaiT, 88; Fou- vergne v. New Orleans,18 How. 470. But if the Court of Probate had not jurisdiction, or if the testator should turn out to be alive, of course the probate of the will would be void. 2 Greenl. Ey. § 339 ; Moore v. Tanner, 5 B. Mon. 42. But in many of the United States, courts have been established by statute, under the title of Courts of Probate, Orphans' Courts, Courts of Surrogate, Ordinary, Register's Court, or other names, with general power to take the probate of wills, no distinction being expressly mentioned between wills of per- sonal, and wills of real, estate; and where such power is conferred in general terms, it is understood to give to those courts complete jurisdiction o%'er the probate of wills,- as well of real as of personal estate, and hence their decrees have been held to be conclusive upon the cruestion of the validity of such wills, in relation both to real and personal estate, and not re-examinable in any other court. Potter r. Webb, 2 Greenl. 257; Small V. Small, 4 Greenl. 220, 225; Ex parte Ful- ler, 2 Storv, C. C. 327. 328, 329; Patten v. Tallman, 27 Me. 17 ; Osgood v. Breed, 12 Mass. 533, 534; Dublin i). Chadbourn, 16 Mass. 433, 441; Laughton v. Atkins, 1 Pick. 548, 549; Brown v. Wood, 17 Mass. 68, 72; Par- ker V. Parker, 11 Cush. 519; Tompkins v. Tompkins, 1 Storv, C. C. 554; Poplin v. Hawke, 8 N. H. 124; Strong v. Perkins, 3 N. H. 517, 518; Judson v. Lake, 3 Day, 318; Bush V. Sheldon. 1 Day,170 ; Fortune v. Buck, 23 Conn. 1 ; Lewis v. Lewis, 5 La. 388, 393, 394; Donaldson v. Winter, 1 La. 137, 144. In Dublin v. Chadbourn, 16 Mass. 433, 442, it was held that, in no case can the due execu- tion of a will, the sanity of the testator, the attestation of the witnesses, or any question 35 *31 POEM AND CHAEACTEEISTICS of the kind, be tried in the courts of common law. The probate of the will, so long as it remains unreversed, is conclusive upon such questions. See Poplin v. Hawke, 8 N. B. 124. So the probate of the will of a maiTied woman, unappealed from and iinreversed, is final and conclusive upon the heirs-at-law of the testator, and they cannot, in' a court of common law, deny the legal capacity of the testatrix to make such will. - Parker v, Pai'ker, 11 Cash. 519. See also Judaoh «. Lake, 3 Day, 318; Robinson v. Allen, 11 Graft. 785; Poplin v. Hawke, 8 N. H. 124; Cassels v. Vernon, 5 Mas. 332; Picquet v. Swan, 4 Mas. 443, 461, 462.- This is true even in regard to a will .made and admitted to probate in another state or country, which has also been allowed and recorded in Massa'- chusetts according to the mode prescribed by the statute of that state. Parker v. Parker, 11 Gush. 519 ; Dublin B. Chadbourn, 16 Mass. 433. So it is held in Ohio, that a ivill made in another state, according to the Inw of the latter state, if admitted to probate in Ohio, will pass lands in Ohio, though not executed ac- cording to the laws of Ohio. Bailev v. Bailev, 8 Ohio, 239. See Meese ». Keefe, l6 Ohio, 382. In some of the states the probate of wills of real estate is not held conclusive until after the lapse of a certain number of years; as in Virginia, after seven years, Parker ». Brown, ff Gratt. 554 ; see Bagwell o. Elliott, 2 Rand. 190, 200 : In Alabama, after five yeai*s, Dar- rington v. Borland, 3 Port. 37, -38; Hardy V. Hardy, 26 Ala. 524; Tarver u. Tarver, 9 Pet. 180: In Mississippi, after five years, Scott «. Calvit, 3 How. (Miss.) 157, 168: In Ohio (unless' reversed in manner prescribed by statute in that state), after two years, Bailey ». Bailey, 8 Ohio, 246; Swazej' ». Blackman, ib. 18, 19. See Hathaway's will, 4 Ohio (N. S.), 383. In Pennsylvania, awill of lands may be given in evidence on due proof of its execution, notwithst-anding a ver- dict and judgment against the willj upon a feigned issue out of the Register's Court. Smith V. Bonsall, 5 Rawle, 80. In this latter state, and in North Carolina, the probate of a will of lands is prima facie evidence of the due execution of the wiil, but not conclusive, ib. ; Coates i). Hughes, 3 Binn. 498, 507 ; Loy V. Kennedy, 1 Watts & S. 396; Logan v. Watt, 8 Serg. &R.22; Barker v. McFerran, 26 Penn. St. 211; Stanley v. Kean, 1 Tavl. 93; Rev. Stat. N. C. (lS-37) p.621: Havven V. Spring, 10 Ired. 180. So in Maryland, Townshend v. Duncan, 2 Bland, 45 ; Randall V. Hodges, 3 Bland. 47 ; Stat. Md. 1831, c. 315, § 1. See Smith ■». Steele, 1 Harr. & McH. 419 : Darbey v. Mayer, 10 Wheat. 470. So in Florida, Thompson's Dig. 193. See as to Kentuckv. Robertson v. Barbour, 6 B. Mon. 527;. Welles's will, 5 Lift. 273; Singleton «. Singleton, 8 B. Mon. 340. In Delaware, the record of the probate of a will is sufficient evidence, both as to real and personal estate. Del. Rev. Code, 1874, c. 89, p. 539. But in New York, Mr. Chancellor Wal- worth remarked, in Bogardus ». Clark, 4 Paige, 623, 626, 627: "The law appears to be well settled, that the sentence of the Sur- rogate, or of a higher coiu-t, having power to 36 review his decision, In relation to the compe- tency of the testator to make a will of per- sonal property, is not conclusive upon the parties to the litigation in a subsequent suit as to the validity of a devise of real estate contained in the same will." See Jackson v. Le Grange, 19 Johns. 386; Jackson d. Thomp- son, 6 Cowen, 178 ; Rogers v. Rogers, 3 Wei d. 614, 515; Dubois v. Dubois, 6 Cowen, 494. So in New Jersey, Sloan v. Maxwell, 2 Green, Ch. 566 ; Harrison v. Rowan, 3 Wash. C. C. 580. So in South Carolina, Crosland v. Murdock, 4 M'Cord, 217; Taylor v. Taylor, 1 Rich. 5.33,534. In Maine, Massachusetts, Vermont, and New Hampshire, it is expressly provided by statute, that *' the probate of a will devising real estate shall be conclusive as to the due execution of the will, in like manner as it is of a will of personal estate." Rev. Stat. Me. c. 74, § 15; Gen. Stat. Mass. c. 92, § 38; Rev. Stat. Vt. c. 49, § 20; Gen. Laws, N. H. c. 194, J 1. • A party who has received a legacy under a will . cannot be permitted to contest the validity of such will, without repaying the amount of the legacy, or bringing the money into court. And the rule applies even if the party was a minor when the legacy was re- ceived. Hamblett v. Hamblett, 6 N. H. 333;- Bell ». Armstrong, 1 Addams, 365 ; Braham V. Burchell, 3 Addams, 243. The general rule of law, both in England and the United States, is, that letters testa- mentary granted abroad, give no authority to sue or to be sued in another jurisdiction, though they may be suificient ground for new probate authority. Lee v. Bank of England, 8 Ves. 44; Dixon v. Eamsav, 3 Crauch; 319; Morrell v. Dickey, 1 .lo'hns. Ch. 153; Thompson v. Wilson, 2 N. H. 291; Stearns V. Burnham, 5 Greenl. 261; Ives v. Allen, 12 Vt. 589 ; Story, Confl. Laws, § 617. This rule does not apply, except where the party sues in right of thV deceased. If he sues in his own right, though the right be derived under a foreign will, no new administration need be ' taken out, if it does not affect real estate passed by the will. Trecothick «?, Aus- tin, 4 Mason, "16; Story, Confl. Laws, § 517 ; EobinsOTi ». Crandall, 9 Wend. 425. But see Steams V. Burnham, 5 Greenl. 261; Thomp- son V. Wilson, 2 N. H. 291. A derivative right to personal property may be proved under a foreign will, without probate in the State where it is sought to be established. Trecothick «. Austin, 4 Mas.- 16 ; Hutching V. State Bank, 12 Met. 421 An executor, who has proved the will in the probate court of another state, may legally convert bank shares, belonging to the estate, into money, in Massachusetts, without the aid of the Pro- bate Court of the latter state, if he can do so without, legal process. Hntchins v. State Bank, 12 Met. 421. A will may be proved in two ways ; either in Common i?orm, or by Form -of Law; the latter mode is also called the Solemn Form, and, sometimes, proving per testes. Swinb. Pt. 6. § 14, pi. 1 ; GodoTph. Pt. 1, c. 20, § 4; IWilliams, Ex. (8th Am. ed.) 325. A will is proved in coin'iion /arm, when OF THE INSTBUMENT. *31 the executor presents it before the judge, and in the absence of, and without citing, the par- ties interested, produces witnesses to prove the same. Upon the testimony of these wit- nesses tliat the will exhibited is the true, whole, and last will and testament of the de- ceased, and sometimes upon less proof, and even upon the oath of the executor alone, the judge grants probate thereof. 1 Williams, Ex. (Gth Am. ed.) 325; Swinb. Pt. 6, § 14, pi. 2; Godolph. Pt. 1, c. 20, § 4; 2 Black. Comm. 508 ; 1 Greenl. Ev. § 518. This mode of proof, though not in very common use (1 Greenl. Ev. § 518), is still adopted and practised in some of the United States. In New Hampshire, if the probate of a will is not con- tested, the judge may allow and approve the same in common fonn, upon the testimony of one of the subscribing witnesses thereto, though the others may be living, and within the process of the court. Gen. Laws, N. H. c. 194, § 6. In Mississippi and Virginia; by Code of Virginia, 1873, provision is made for proof of wills and testaments upon no- tice to all parties, and it is made the duty of courts to appoint guardians ad litem in case of infants and persons of unsound mind be- ing interested. Personal, notice is required to be given to an infant resident of the state above the age of fourteen years. After no- tice, the court must proceed to a hearing, and any person interested has a right to an issue to a jury. The court has power to require the production of all testamentari' papers of the same testator, so as to decide finally what is the true, last will of the testator. Any sentence or tinal order made in such case is a bar to any farther proceeding in equity, sav- ing to infants one year after they come of age, and to persons residing out of the com- monwealth, or not having been actually sum- moned, two years af tersuch sentence or order. The court in which the will is to be proved is authorized to proceed, immediatel3% on the will being exhibited for proof, to receive pro- bate thereof and grant letters testamentary; Miss. Rev. Code, 187], c. 9, p. 213; Rev. Code Va. 1873, c. 118, pp. 915, 91B; and in Mississippi, this first probate of the will is regarded as a mere incipient step, necessary to enable the court to carry the will into exe- cution; but it is not conclusive upon heirs and distributees, and may be opened and set aside, if necessary, and applied for within due time. Co.wden v. l)obyns, 5 Snvedes & M. 82. The law of North Carolina is very similar on this point. Etheridge v. CorpreV, 3 .Jones,' 14. In case of probate in common form, if actual notice of the will and probate is relied upon as barring the right to probate in solemn forni, it must be alleged and proved. Ethe- ridge V. Corprew, supra.- At common law, when a will had been proved only in commmi form without notice to those interested, the probate might be re- examined within thirty vears after probate. Noves V. Barber, 4 N. ii. 406; 1 Williams, Ex' (6th Am. ed.) 335. In Tennessee, it has been decided that where a paper purporting to be a will, has been proved in common form^ by the ex parte exainination of witnesses, the probate may be set aside after the lapse of eighteen years, and an issue devisavlt vel nonhe directed to try its validity ; Gibson v. Lane, 9 Yerg. 475. See Hodges i. Bauchman, 8 Yerg. 186; and in South Carolina, Johnson, J., remarked in Brown v. Gibson, 1 Nott & M'C. 326, "The probate of a will in common form may be revoked either on a suit by citation, or on appeal, and that at any time within thirty years." The period within which probaie may he contested, has been prescribed by statute in some of the states. Thus, in the states of Alabama and Missouri, any person interested may contest the validity of a will within five years, and infants, married wo- men, and persons absent f i om the state or npn compotes^ have five years after the removal of the disability for the same purpose. Alabama Code, 1876, c.2, p. 594; Missouri, R. S. 1880, c. 71, p. 683. In Arkansas, a period of three years is allowed. Digest, 1871, c. 135, p. 1015. In Mississippi, two years are allowed for contesting the probate of a will, and in cases of disability, two vears after it is re- moved. Kev. Code, 187"l, c. 9, p. 213. In Delaware, provision is made by statute for review of probate of a will by any person who shall not have appeared, or had iiotice, within seven years, and, in case of disability, within three years after its removal. Rev. Code Del. 1874, c. 89. p. 339. In Virginia, again, five years are allowed for contesting a will. Rev. Code, 1873, c. 118, p. 915; Nalle v. Fenwick, 4 Rand. 418. If not contested within that time, it stands, though informal. Parker v. Brown, 6 Gratt. 554. In New Hampshire, any party interested may have the probate of any will, proved without no- tice, re-examined, and the will proved in sol- emn form, at any time within one year of such probate, if there has been no appeal, and, in such case, persons under disability have one year for the same purpose after the removal of the disability. Gen. Laws, N. H. 1878. c. 194, §§ 7, 8, 9. In most of the above States, provisions are made for using the evidence taken on the first probate, or the proceedings on a former trial, in case the sub- scribing witnesses are deceased, or cannot be produced, at the subsequent trial or hearing. Where the validity of a will has been once fully contested in manner pointed out by statute for contestation, review, or re-exam- ination, that is conclusive on all persons. Scott V. Calvit, 3 How. (Miss.) 157, 158; Nale V. Fenwick, 4 Rand. 588; Hodges v. Bauchman, 8 Yerg. 186; Malone v. Hobbs, 1 Robinson, 346. In New Hampshire (Noyes v. Barber, 4 N. H. 406), where the heirs" at law were un- der the age of thirteen years, when a will was proved, and the executor named in the will was made residuary legatee and testamentary guardian of the heirs, a probate of the will before any other guardian of the heirs was appointed, was not allowed to have the effect of a probate in solemn form. In New Hamp- shire, no decree allowing or disallowing any will can be made in solemn form, until guar- dians have been appointed for all minors and others interested therein who are incapaci- tated to take care of their estates, and agents 37 *31 FOEM AND CHABACTERISTICS appointed by the Judge of Probate for all persons interested who reside out of the State or are unknown. Gen. Laws, N. H. 1878, c. 194, § 11. As to the probate of wills in solemn form or ptr testes, Richardson, C. J., in Noyes v. Barber, 4 N. H. 409, said: " We understand a probate in solemn form to be a probate made by the judge, after all the persons, whose interests are to be affected by the will, have been duly notitied, and had an opportu-- nitv to be heard ou the subject." Lovelass on Wills, 211-213; Godolph. Pt. 1. c. 20, § 4, p. 60 ; 1 Greenl. Ev. § 518; 2 Black. Comra. 508. This is the mode of proof now very generally required in the United States; 2 (Jreenl. Ev. § 692; 1 Greenl. Ev. § 518, and generally after the will is proved in this form and ad- mitted to record, the probate is forever bind- ing. 1 Williams, Ex. (6th Am. ed.) 334, 335; 2 Greenl. Ev. § 692. Any person interested in a will has a right to apply for probate of it, and the Judge of Probate, or other person having authority for the probate of a will, on such application may, summon the executor, or other person hav- ing the custody of the will, to exhibit it for, probate. Steboins v. Lathrop, 4 Pick. 42; 1 Williams, Ex. (6th Am. ed.) 311. This right is given by statute in Indiana. ' Stat. Ind. 1877, c. 3," p. 576. This authority in the Judge of Probate is incident to his general jurisdiction of the probate of wills, and the power of granting administrations. Stebbins V. Lathrop, 4 Pick. 42; 3 Bac. Abr. 34, Ex- ecutors, &c. (e) 1; 1 Williams, Ex. (6th Am. ed.) 311, Swinb. Pt. 6, § 12, pi. 1; Godolph. Pt. 1, c. 20, § 2. This power is conferred by statute in Mississippi. Miss. Rev. Code, 1871, c. 9, p. 211. It is said that the Judge of Pro- bate may ex officio, or at the instance of any one, cite the executor to prove the will, be- cause the applicant may be ignorant of the contents of the will, and may expect a legacy, and has a right to be informed. Stebbins v. Lathrop, 4 Pick. 42; Godolph.- Pt. 1, c. 20, § 2 ; 3 Bac. Abr. 40, Executors, &c. (e) 8. Be- sides, the legatees or devisees may be absent or unknown, in which case it is proper for the Judge of Probate to proceed ex officio, and to prevent the concealment, suppression, or loss of the will. Stebbins v. Lathrop, 4 Pick. 42; 1 Williams, Ex. (6th Am. ed.) 311. See per Lord Hardwicke in Tucker v. Phipps, 3 Atk. 360. In Massachusetts, whoever has a right to offer a will in evidence, or to make title un- der it, may insist on having it proved. A creditor of a devisee has this right for the purpose of obtaining satisfaction of his debt. Stebbins v. Lathrop, 4 Pick. 33. In some of the states the executor is required by statute to present the will to the Probate Court hav- ing jurisdiction of the same within a certain period (in New Hampshire, Vermont, and Connecticut, this period is thirty days) of time after the death of the testator; in de- fault of which, he is liable to a penalty. But the statute penalty is merely cumulative, and does not take" away the rights of_ any party claiming under the will, nor the juris- diction of the Judge of Probate. Stebbins V. Lathrop, 4 Pick. 33, 42. See State v. Pace, 9 Rich. (S. C.)355. If the executor has not the custody of the will, but some other person has it, such per- son may be compelled to exhibit it. Swinb. Pt. 6, c. 12, pi 2; Godolph. Pt. 1, e. 20, § 2; Bethun v. Dinmure, 1 Oas. temp. Lee, 158; Ex parte Law, 2 Ad. & E. 45; Georges v. Georges, 18 Ves. 294. By statute in Massachu- setts and in other states, persons having the custody of wills are requii'ed, within a certain period after notice of the death of the testator, to deliver the same into the Probate Court which has jurisdiction of the case, or to the executors named in the will, under a penalty If they neglect so to do. Gen. Stat. Mass. c. 92, § 16. So in Vemiont, New Hampshire, and Maine. Gen. Stat. Vt. (1862) c. 49, p. 378; Gen. Laws. N. H. c. 194, § 2; Rev. Stat. Me. (1871) c. 64, p. 505. The time within which, after the testator's death, the will is to be proved, is said, in England, to be somewhat imcertain, and left to the di^- cretion of the judge, according to the dis- tance of the place, uie weight of the will, the quality of the executors, the absence of the witnesses, the importunity of the creditors and legatees, and other circumstanpes inci- dent thereto. 1 Williams, Ex. (6th Am. ed.) 319; Godolph. Pt. 1, c. 20, § 3. In Massa- chusetts, a will may be proved in the Probate Court at any time, even after twenty years; in order to establish the title to real estate. Shumway i: Holbrook, 1 Pick. 117. lli Georgia, wills are required to be registered within three months from the death of the testator, on failure of which they shall be ' deemed and construed to be void, and of no effect. Laws of Georgia, Code by Hotch- kiss (1845), pp. 456, 457, c. 17, § 13. What constitutes sufficient evidence of the execution' of a will is said to be a matter of law for the court. Vernon v. Kirk, 30 Penn. St. 218. Ihe attesting witnesses to a will are re- garded in the law as placed around the testator, in order that no fraud may be practised upon him in the execution of the will, and to judge of his capacity and whenever a will is to be proved in the more ample or solemn form, any person interested has a right to insist on the -testimony of all the attesting witnesses, if living and within reach of the process of the court. Chase v. Lincoln, 3 Mass. 236; Burwell v. Corbin, 1 Rand. 131, 141; Sears V. Dillingham, 12 Mass. 358; Apperson v.. Cottrell, 3 Porter, 51; Brown v. Wood, 17 Mass. 72, 73; 2 Greenl. Ev. § 692: Bailev v. Stiles, 1 Green, Ch. 231, 232; Nalle i-. Fen- wick, 4 Rand. 685; Rush v. Parnell, 2 Har- rington, 448; Jones v. Arterburn, 11 Humph. 97 ; Patten v. Tallman, 27 Me. 29. This is required bv statute in Illinois. Rev. Stat. (1880) c. 148, p. 1108. In Kentucky, a will, though of land, is admitted to pro- bate' on proof by one witness, as on a trial at common law, provided he is able to speak to all the requisite solemnities. Over- all 1). Overall, Litt. Sel. Ca. 503; Hall v. Sims, 2 J. J. Marsh. 511. So in Georgia. Walker v. Hunter, 17 Ga. 364. In Doe v. Lewis, 7 Carr. & P. 574, the attestation to a will of lands purported that the will had been 38 Of the instetjment. *3r si^ed by the testator in the presence of three witnesses, who, in his presence, and in the presence of each other, signed the attesta- tion. To prove the execution of the will, one of the three witnesses was called, and he stated, that he and one of the other witnesses saw the testator sign the will, but that the third witness was not then present, though the signature to the attestation was in his handwriting. It was held that this was not sufficient proof of the will, without either calling the third witness, or accounting for his absence. In a case where one of the subscribing wit^ uesses was called, and proved the signature of himself, and the two other subscribing witnesses, and stated that he could not re- member particularly whether the other wit- nesses subscribed m the presence of the testator, but presumed they all did so, as he would not have subscribed his name as a witness, unless the requisites of the statute had been complied with; but it appeared that the other witnesses were living and within the jurisdiction of the court. It was held that, although such evidence would have been suf- ficient, if the other witnesses had been dead, to authorize the jury to believe that all the formalities had been complied with, yet, in this case, it was not sufficient. Jaclcson v, Vickory, 1 Wend. 406; Fetherly v. Wag- goner, 11 Wend. 59&; Smith v, Jones, 6 Sand. 32. See Welch ». Welch, 9Rich. (S.C.) 133. But if any of those witnesses, from death, or absence from the country, or other cause, cannot be produced at the trial, any of them have become infamous, insane, or interested, since the time of their attesta- tion, the will may be proved by the other subscribing witnesses, and by proof of the handwriting of those who are thus absent or rendered incompetent to testify. Smith v. Jones, 6 Rand. 32; Sears v. Dillingham, 12 Mass. 358, 361, 363; 1 Phill. Ev. (Cowen & Hill's ed.) 601; Bernett v. Taylor, 9 Ves. 381; Chase v. Lincoln, 3 Mass. 236; Wilde, J., in Hawes v, Humphrey, 9 Pick. 357; Miller j). Miller, 2 Bing. N'. C. 76 ; Carring- ton V. Payne, 5 Ves. 411; Jones v. Arter- burn, 11 Humph. 97; Jauncey i). Thome,- 2 Barb. Ch. 40 ; Patten v. Tallman, 27 Me. 29 ; Dean ». Dean, 1 Williams (Vt.), 746 ; Verdier v. Verdier, 8 Rich. (S. C.) 135; Greenough v. Greenough, 11 Penn. St. 489; Barker 1). McFerran, 26 Penn. St. 211; Vernon V. Kirk, 30 Penn. St. 218. The competency of an attesting witness to a will is not to be determined upon the state of facts existing at the time when the will is presented for probate, but upon those existing at the time of attestation. Patten v. Tallman, 27 Me. 17. In New Hampshire it is enacted, that if the attesting witnesses shall, after the execution of any will, become incompetent from any cause, the same may be proved and allowed upon other satisfactory evidence. Gen. Laws, N. H. 1878, c. 194. § 12. A similar provision exists in Massachusetts, Gen. Stat. Mass. c. 92. § 6. The recent Act of 1 Vict. c. 26, § 14,. provides 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 incom- petent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. Where all the witnesses to a will are dead, out of the jurisdiction of the court, or cannot be found, or have become incompetent to tes- tify since their attestation, the handwriting of all of them should be proved. Hopkins V. Albertson, 2 Bay, 484; Jackson u. Luquere, 5 Cowen, 221 ; Crbwell v. Kirk, 3 Dev. 355 ; Sampson v. Bradley, 1 M'Cord, 74. It ap- pears that in such case the handwriting of the testator should be proved also. Hopkins V. De Graffenreid, 2 Bay, 187; Jackson u. Luquere, 5 Cowen, 221; Chase, C. J., in Col- lins V. Elliott, 1 Harr. & J. 2; 2 Stark. Ev. (5th Am. ed.) 923; Jackson v. Le Grange, 19 Johns. 288, 289. In Anderson v. Welch, 1 Ca. temp. Lee, 577, in the Ecclesi- astical Court, it was held, that, under certain circumstances, the validity of a will may be established by proving the handwriting of the attesting witnesses, though no evidence can be given of the handwriting of the de- ceased. 1 Williams, Ex. (6th Am. ed.) 352. Where the witnesses have set their marks to a will, there must be proof that such marks' are the marks of the witnesses. Collins y. Nichols, 1 Harr. & J. 399 ; Jackson v. Van Deusen, 5 Johns 144. See Davies v. Davies, 9 Q. B. 648. "The degree of diligence in the search tor the subscribing witnesses is the same," says Mr. Greenleaf (1 Greenl. Ev.§ 574) "which, is required in the search for a lost paper, ■ the principle being the same in both cases. IGreenl. Ev. § 558. It mustbe astrict, dili- gent, and honest inquiry and search, satisfac- tory to the court, imder the circumstances of' the case. It should be made at the residence of the witness, if known, and at all other places where he may be expected to be found ; and inquiry "should be made of his relatives, and others, who may be supposed to be able to afford information. And the answers given to such inqiuiries may be given in evidence, they not being hearsay, but parts of the res gesUs. If there is more than one attesting witness, the absence of them all must be satisfactorily accounted for, in order to let in the secondary evidence." Miller v. Miller, 2 Bing. N. C. 76; James v. Parnell, 1 Turn. & R. 417. Where there is a failure of recollection on the part of an attesting witness, less strict- ness of proof is sometimes required; as where one of the attesting witnesses to a will had no recollection of having subscribed it, but testified that the signature of his name thereto was genuine,' the testimony of another attest- ing witness that the first did subscribe his name in the testator's presence was held sufficient evidence of the fact. , Dewey ». Dewev, 1 Met. 349. Dewey, J., said: " The question is not whether this witness now recollects the circumstanoe of the attes- tation, and can state it as a matter within his memory. If this were requisite, the validity of a will would depend, not upon the fact whether it was duly executed, but whether the testator had been fortunate in securing. 39 *31 FOKM AND CHAEACTEBISTICS witnesses of retentive memory. The real question is, whetlier tlie witness did m fact properly attest it." See Dudleys v. Dudleys, 3 Leigli, 443 ; Clarke v. Dunnavant, 10 Leigh, 13; Nelson v. McGiffeit, 3 Barb. Ch. 158; Da vies v. Davies, 19 Q. B. 648; Welty v. Welty, 8 Md. 15; Newhousei). Godwin, 17 Barb. 236; Choeney v. Arnold, 18 Barb. 434. In Clarke v. Dunnavant, 10 Leigh, 13, Tucker, President, said: "That on a ques- tion of probate, the defect of memory .of the witnesses will not be permitted to defeat the will, but that the court may, from circum- stances, presume that the requisitions of the statute have been observed ; and that they ought to presume from the fact of attestation, unless the inferences from that fact are re- butted by satisfactory evidence." See also Daj'rell i. Glasscock, Skinn. 413; Smith v. Jones, 6 Rand. 32; Bovd v. Cook, 3 Leigh, 32; Gwinn v. Eadford,"2 Litt. 137'; Dudleys ii. Dudlevs,^3 Leigh, 443; Jackson v. Le- Grange, 19 Johns. 386; Welty v. Welty. 8 Md. 15; Lewis B.Lewis, 1 Kern. (N. Y.) 220; Vernon v. Kirk, 30 Penn. St. 218. If the memory of the witness be partially or wholly gone, the law presumes, after proof of attestation, that ^verytliing else neces- sary to give the instrument validity existed. The rule is different if the witness is able to recollect that things essential were posi- tively wanting. Then the presumption is changed. Barr v. Graybill, 13 Penn. St. 396. If the subscribing witness should deny the execution of the will, he may be contra- dicted, as to that fact, bj' another subscrib- ing witness ; and even if they all swear that the will was not duly executed, the party in- terested to sustain the will would be allowed to go into circumstantial evidence to prove the due execution. 1 Phill. Ev. (Cowen & Hill's ed.) 502; Austin v. Willes, Bull. N. P. 264; Jackson v. Christnian, 4 Wend. 277, 283; Pearson v. Wightman, 1 Const. Ct. Kep. 336; Rush ». Purnell, 2 • Harrington, 448; Rigg v. Wilton, 13111. 15; Jauncev v. Thome, 2 Barb. Ch. 40. The subscribing witnesses to a will differed in the account they gave of the execution, one not recollect- ing whether the deceased signed or not, the other deposing that she did not see the de^ ceased sign. They agreed that the signa^ ture was not acknowledged in their presence. A witness present at the time deposed that the deceased signed her name in the presence. of the subscribing witnesses; and on this evidence the will was held to be duly exe- cuted. Bennett ». Sharp^ 33 Eng. L. & Eq. 618. But the evidence m favor of the will must be clear and full to substantiate it.. Handy v. State, 7 Harr. & J.. 42; Pearson v. Wightman, 1 Const. Ct. 336; MacKen- zie V. Handasyde, 2 Hagg. 211; 2 Stark. Ev. (5th Am. ed.) 922; Vernon v. Kirk, 30 Penn. St. 218. If one of the subscribing witnesses, impeach the validity of the will on the ground of fraud, andaccuse other witnesses, who are dead, of being accomplices in the fraud, it has been held that evidence, may be given of their general good character. 1 Phill. Ev. 40 (Cowen & Hill's ed.) 308, 502; 2 Stark. Ev. (5th Am. ed.) 922. See Provis v. Reed, 5 Bing. 435; Doe v. Harris, 7 Carr. & P. 330. By placing his name to the instrument,, the witness, in effect, certifies to his knowledge of the mental capacity of the testator, and that the will was executed by him freely and understandingly, with a fuU'knowIedge'of its contents. ^^Iworth, Chancellor, in Scrib- ner v. Crane, 2 Paige, 147. But in Marv- land, where an attesting witness to a will (who died before the trial) declared, on the same day the will was executed, that he had witnessed the will, that he did not believe the testator, at the time he executed the will, to be a sane person, and that he had signed the will as a witness merely to gratify the testator, it was held that these declarations were admissible in evidence, on the ground that the attestation of a witness imparts all that is requisite to make the will good and valid, so fai' as his signature can go; and not only convenience and necessity, but justice would seem to require that his declarations, almost, simultaneous with the act, should be admitted to rebut the presumptions of law. Townshend v. Townshend, 9 Gil), 506 ; Har- den V. Hays, 9 Barr, 151. See Weatherhead v. Sewell, 9 Humph. 272. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made his will, though such testi- mony will be far indeed from conclusive, Hudson's case, Skinn. 79; and Lord Mans- field even held that a witness impeaching hia own acts, instead of finding credit, deserved the pillory, Walton v. Shell v, 1 T. E. 300; Lowe V. Jolliffe, 1 Sir Wm. Bl. 366; yet Lord Eldon has not gone so far in exclusion of such evidence, admitting, however, that it is to be received with the most scrupu- lous jealousy. Bootle v. Blundell,. 19 Ves. 504; Howard •». Braithwaite, 1 Ves. & Bea. 208. Sir John Nicholl .has perhaps laid down the most distinct rule, namely, that such testimony is not to be positively re- jected ; but, at the same time, no fact stated by a witness open to such just suspicion can be relied oh, where he is not corroborated by other evidence. Kinleside v. Harrison, 2 Phill. 499. It has lately been decided that a will may be pronounced for, though both the attesting witnesses depose to the incapacity of the testator. Le Breton v. Fletcher, 2 Hagg. 568; 1 Williams, Ex. (6th Am. ed.) 348; Jauncey v. Thome, 2 Barb. Ch. 40; HalU. Hall, 18 Ga. 40. ' So in Landon ». Nettlefhip, 2 Addams, 245, a will was pro- nounced for against the testimony of two out of three of the subscribing witnesses, on the question of capacity. When the subscribing witnesses to a will are dead, and no proof of their handwriting can be obtained, as must frequently happi'U in the case of old wills, it has been consid- ered suflicient to prove the signature of the testator alone. 1 Phill. Ev. (Cowen & Hill's- ed. ) 503. This was held in a case where the will was over thirty vears old. Duncan v. Beard, 2 Nott &. M'C."400. It is said by Mr. Gieenleaf (1 Greenl. Ev. OF THE INSTRUMENT. *31 §§ 21, 570 (see Doe v. Wolley, 8 Barn. & 0. 22; Jackson v. Christmau, "i Wend. 277, 282; Hall v. Gittinss, 2 Harr. & J. 112) that, '• where deeds and wills are over thirtj' years old, and are unblemished by any alterations, they are said to prove "them- selves ; the bare production thereof is sufii- cieut, the subscribing witnesses being pre- sumed to be dead. This presumption, so far as this rule of e\'idence is concerned, is not affected by proof that the witnesses are living. But it must appear tliat the instrument comes from such custody as to afford a reasonable presumption in favor of its genuineness, and that it is otherwise free from just grounds of suspicion." Proof of possession or other acts of ownership under the will, has, liow- ever, been held necessaiy, in some cases, in connection with the antiquity of the will. Jackson v. Luquere, 5 Cowen, 221, 225; 1 Phill. Ev.. (Coweii & Hill's ed.) 503, 504; Fetherley v. Waggoner, 11 Wend. 599; Jackson v. Christman, 1 4 Wend. 277, 282, 283; Shalleri). Brand, 6 Binn. 435; Jackson V. Thompson, 6 Cowen, 178; Hewlett D. Cook, 7 Wend. 374; Staring v. Bowen, 6 Barb. Sup. Ct. 109. There is a difference be-, tween the English and the American cases as to the period from which the thirty years are to run, whether from the date of the will or from the death of the testator, the English cases holding the former and the Amevieaa the latter. See Doe v. Wolley, 8 Barn. & C- 22; Doe v. Deakin, 3 Carr. & P. 432; Jackson v. Blanshan, 3 Johns. 232; Jack- son V. Luquere, 5 Cowen, 221, 224 ; Nel- son, J., in Hewlett v. Cook, 7 Wend. 374. In those states where the probate of a will is conclusive in an action at law to try the title to the land devised, the will, however old, would probably not be received in evidence, at common law, unless it had been admitted to probate. But, under the statute of 1852 in North Carolina, a will dated in 1741, found in the office of the Secretary of State, and having three subscribing witnesses, and other- wise in proper form to pass land, is admis- sible in evidence, though there is no other evidence of its probate. Stephens v. French, 3 Jones, 359. It is ordinarily held sufficient in courts of common law (in those states in which the probate of a will is not regarded as conclu- sive in respect to lands), to call only one of the subscribing witnesses, if he can speak to all the circumstances of the attestation ; but he must be able, alone, to prove all the facts necessary to a full and perfect execution of the will," in order to dispense with the other witnesses, if they are alive and within the jurisdiction of the court. 1 Phill. Ev. (Cowen & Hill's ed.) 496; Jackson v. Le Grange, 19 Johns. 336; Dait v. Brown, 4 Cowen, 483; Jackson v. Vickory, 1 Wend. 406; Jackson V. Betts, 6 Cowen, 377; Tumipseed ». Haw- kins, 1 M'Cord, 272; 2 Greenl. Ev. § 694; Howell 17. House, 2 Const. 80; Lindsay v. McCormack, 2 A. K. Marsh. 229; Elmendorff V. Carmichael, 3 Litt. 479; Denn v. Milton, 7 Halst. 70. In Pennsylvania, to entitle a will to be read to a jury, both witnesses must tes- tify as to all that the law requires. Mullen 41 V. M'Kelvy, 5 Watts, 399 ; Hock v. Hock, 6 Serg. & K. 47; Lewis v. Maris, 1 Dall. 278; Weigel V. Weigel, 5 Watts, 486. If the ad- verse party would impeach the will, he may examine the others. 1 Phill. Ev. (Cowen & Hill's ed.) 496. But on a bill in chancery to establish a will, the rule is, that all the witnesses ought to be examined by the plaintiff. '■ It is the invai'iable practice in chancery," said Lord Camden, in the case of Hindson v Kersey, 4 Burn, Eccl. Law, 93 (see Burwell v. Corbia, 1 liand. 131, 141; Ogle v. Cook, 1 Ves. 177; Bailev v. Stiles, 1 Green, Ch. 220; Townsend v. Ives, 1 Wils. 218; S. P. Fitz- herbert v. Fitzherbert, 4 Bro. C. C. 231; Powel V. Cleaver, 2 Bro. C. C. 504) "never to establish a will, unless all the witnesses are examined, because the heir has a right to proof of sanity from every one of those whom the statute has placed about his ancestor." And, on the trial of an issue directed by the Court of Chancery to examine the validity of a will, all the attesting witnesses ought to be examined ; for the issue , is a part of the proceedings of the court. When the court sends an issue to be tried, it reserves to itself the review of all that passes ; and there would be an inconsistency in requiring that all the three witnesses should be examined in the Court of Chancery yet dispensing with their examination on tne trial of an issue at law. Bootle V. Blundell, 1 Coop. Ch. 136; 1 Phill. Ev. (Cowen & Hill's ed.) 496, 497. '; There is, however," said Lord Brougham, in Tatham v. Wright, 2 Russ. & M. 1, "a broad line of distinction between cases where the moving party seeks to set the will aside, and cases where the moving party is a de- visee seeking to establish it ; the rule which makes it imperative to call all the witnesses to a will must be considered as applicable to the latter only." And although the general rule is, that upon every issue directed out of chancery and trial at law to ascertain the validity of a will, all the witnesses to the will should be examined, if practicable, un- less the heir should waive the proof, yet this rule is not absolutely inflexible, but it will yield to peculiar circumstances. 2 Story, Eq. Jur. § 1447; Tatham v. Wright, 2 Russ. & M. 1; Bootle v. Blundell, 19 Ves. 499, 502, 505, 609. If a Tvill duly executed, and not revoked, is lost, destroyed, or mislaid, either in the lifetime of the testator, without his knowl- edge, or after his death, it ma}' be admitted to probate upon satisfactory proof being given of its having been so lost, destroyed, or mis- laid, and also of its contents. Trevelyan v. Trevelvan, 1 Phillim. 149; Davis v. Davis. 2 Addanis, 224; Graham v. O'Fallan, 3 Mo. 507 ; Jackson v. Betts, 9 Cowen, 208 ; Dickey v. Malechi, 6 Mo. 177; Bailey v. Stiles, 1 Green, Ch. 220 ; Reeves v. Reeves, 2 Const. 334; Clark v. Wright, 3 Pick. 67 ; 1 Edw. Ch. 148; Dan v. Brown, 4 Cowen, 483; 2 Dana, 106; Jackson v. Russell, 4 Wend. 543; Kearns v. Kearns, 4 Harrington, 83; Buchanan V. Matlock, 8 Humph. 390. Where the testator handed his will to a person to keep for him, and four years after- *31 POEM AND CHAEACTEEISTICS OF TBEE INSTEUMENT. wards died, when the will was found gnawed to pieces by rats, and in part illegible; on proof of the substance of the will, by the joining of tbe pieces, and the memory of wit- nesses, the probate . was granted. " 1 Wil- liams, Ex. (6th Am. ed.) 380. If a will be wholly or partiallv cancelled, or destroyed, by the testator whilst of un- sound mind, probate will be granted of it, as it existed in its integral state, that being ascertainable. Scruby v. Fordham, 1 Ad-' dams, 74 ; Apperson v, Cottrell, 3 Port. 51 ; Rhodes v. Vinson, 9 Gill, 169. But to entitle a party to give parol evidence of the contents of a will, afieged to be destroj^ed, where there is not conclusive evidence of its absolute destruction, the party must show that he has- made diligent search and inquiry after the will^ in those places where it would most probably be found, if in existence. Jackson V. Hjisbrouck, 12 Johns. 192 ; Dan v. Brown, 4 Coweh, 483; Fetherley ». Waggoner, 11 Wend.' 599; Jackson v. Belts, 9 Cowen, 208; Eure V. Pittman, 3 Hawkes, 364. The evi- dence must be most clear and satisfactory of the whole contents of the will so lost, de- stroyed, or mislaid, or it cannot he admitted to probate. Uavis v. Sigourney, 8 Met. 487 ; Durlee v. Durfee, ib. 49(), note ; Huble i>. Clark, 1 Hagg. Eccl. 115; Rhodes v. Vinson; 9 Gill, 169. Sometimes a copy of the origi-' nal will in the hands of the scrivener is the only evidence, and sometimes a will is set up solely from the recollection of those who read it before it was destroyed. 2 Caiues, 363; Jackson v. Russell, 4 Wend. 543 ; Harr. Eq.' 243: Smith «. Steele, 1 Harr. & M'H.419; 2 Harr. & J. 112; Happy's will, 4 Bibb, 553. In Steele v. Price, 5 B. TVIon. 58, it was held that where awill is proved to have been duly published, but is lost or destroyed, and only a part of the contents is proved, it may be established as far as proved. It would seem that, independent of statute, a single witness is sufficient to prove a lost or destroyed will. Lewis V. Lewis, 6 Serg. & R. 497. "One wit- ness to a will lost or destroyed has been held enough to establish the due execution thereof, if he could, declare that he saw the other wit- ness subscribe it in the testator's presence. Graham v. O'Fallan, 3 Mo. 507. But in Bailej' v. Stiles, 1 Green, Ch. 231, it is as- sumed, that the subscribing witnesses to a lost will must be produced as in other cases, with -the same exceptions in case of death, absence from, the state, &c., and this is un- doubtedly the true rule. In Johnson v. Durant, 2 Rich. 184, it was held, on the trial of a suggestion to set up a lost or destroyed will, that a subscribing witness to the Will, who was named one of the execu- tors, but who had renounced the executor- ship, was competent to prove the contents of the will. Where a prior will has been re- voked by a subsequent one, and both are imprbpet"ly destroyed, the first instrument canpot be set up "as the testator's will by proof of its contents, although the contents of the second cannot be ascertained. Day v. Day, 2 Green, Ch. 549. 42 INFANCY. *32 * CHAPTER III. *32 PEESONAL DISABILITIES OP TESTATORS (a). The general testamentary power over freehold lands of inheritance was originally- conferred bj^ the statute of 32 Hen. 8, o. 1, into the pre- cise import of which it is now unnecessary to inquire, as it was quickly followed by the explanatory' act of 34 & 35 Hen. 8, c. 6 (b) , which, after reciting the former statute, enacted, "That all and pei-sons hav- singular person and persons having a sole estate or interest jngsoiees- in fee simple, or seised in fee simple in coparcenary, or in enabled to common in fee simple, of and in any manors, lands; tene- devise. ments, rents, or other hereditaments, in possession, reversion, or re- mainder, [or of rents or services incident to anj^ reversion or remainder, and having no manors, lands, tenements, or hereditaments, holden of the king, his heirs or successors, or of any other person or persons bj' knight's service .(c),j shall have full and free liberty, power, and author- ity to give, dispose, will, or devise to any person or persons (except bodies politic and corporate) , by his last will and testament in writing, as much as in him of right is. or shall be, all his said manors, lands, tenements, rents, hereditaments, or any of them, or anj^ rents, com- mons, or other profits or commodities out of or to be perceived of the same, or out of any parcel thereof, at his own free will and pleasure." [The statute then proceeds to empower persons holding by knight's ser- vice to devise two parts of their lands.] Sect. 14 provides that wills or testaments made of any manors, &c., by any woman coverte, or person within the age of twentj'- Exception as 1 . T , 1 ■ J, to feme.s co- one years, ^ idiot, or bj- any person of non-sane memory, ^ertes, in- sliall not be taken to be good or effectual in law. This f?"ts, luna- clause did not create any disability- that was unknown, or, idiots. f(n) Tlie subject of this chapter, especially with reference to the decisions in the Ecclesi- astical Courts, is very fullv treated of in Williams on Executors, Pt. I.- Bk. II. c. 3.] (A) Ir. Pari. 10. Car. 1,'sess. 2, c. 2. [(c) The statute 12 Car. 2, c. 24; by changing tenure by knight's service into free and common socage tenure, in effect abolished this exception.] 1 There is great lack of uniformity as to Delaware. Rev. Code, 1874, ch. 84, p. 508. the age of capacitj' for making wills under Florida. Bush's Digest, 1872, ch. 4, p. 75. the laws of the several states. In some Indiana. Stat. 1876, Vol. 2, ch. 3, p. 570. of, the states the testator, whether male or Iowa. Rev. Code, 1880, Vol. 1, ch. 2, female, must be of the age of twenty-one p. 607. years, to make a will either of personalty or Kansas. Comp. Laws, 1879, ch. 117. p. 1001. of realty: — Keiituckj'. Gen. Stat. 1873, ch. 113, p. 831. 43 *33 PEESONAL DISABILITIES OP TESTATOES. indeed, comprise all that were known to the common law ; but *33 seems to have been * dictated bj- an apprehension that the general terms of the prior act of the thirtj'-second year of the same reign might possibly have had the effect of removing pre-existing disabilities, according to the construction given to the nearly contemporary Statute of Jointures (d) . That the disqualifications in question were not the As to wills of creation of the statute, is evident from the fact that they all infants. extended equally to the bequeathing of personal estate, ex- cept that infants of a certain age, namely, males of fourteen and females of twelve, were, at the period now under consideration, competent to dispose by will of personalty (e) ; and such a will was valid, although the testator or testatrix afterwards lived to attain majority without confirming it (/). On the other hand, infants of every age were (as they still are) incompetent to alien any portion of their property, real or personal, by deed. In some places a custom exists, or rather did exist (for it is to be remembered we are now speaking of the old law) , enabling infants to devise even real estate ; but it was essential to the validity of such a- custom, that it prescribed some definite and reasona- ble age ; for a custom authorizing the making of a will by persons too young to be capable of exercising a discretion would be no less absurd than one which should empower lunatics or idiots to devise their property (ff) . .{d) 27 Hen. S.c. 10. (6) Bishop u. Shavpe, 2 Vern. 469; Whitmore v. Weld, 2 Ch. Rep. 383 ; Hyde v. Hyde, Pre. Ch. 316 ; [Co. Lit. 896, n. (6).] (/) Hinckley v. Simmons, i Yes. 160. {(/) 2 Anders. 12. Fourteen, it seems, would be considered a proper age. Maine. -K. S. 1871, ch. 74, 564. Oregon. Gen. Laws, 1843-1872, ch. 64, Massachusetts. Gen. Stat. 1860, ch. 92, p. 788. p. 476. Rhode Island. Gen. Stat. 1872, ch. 171, Michigan. Comp. Laws, 1871, Vol. 2, ch. pp. 373, 374. 154 pp. 1371, 1372. Virginia. Code, 1873, ch. 118, p. 910. Minnesota. Stat. 1878, ch.'47. pp. 567, 568. West Virginia. R. S. 1878, ch. 201, p. 1168. . Mississippi. Rev. Code, 1871, ch. 54, The laws of some of the other States make p; 525. ' a distinction in respect of age between males Nebraska. Gen. Stat. 1873, ch. 17, pp. 299, . and females. 300. Colorado. Gen. Laws, 1877, ch. 103, p. 929. New Hampshire. Gen. Laws; 1878, ch. Illinois; R. S. 1880, ch.'148, p. 1108. 193. p. 454. ,, Maryland. Rev. Code, 1878, art. 49, p. 419. New Jersey. Revision, 1709-1877, p. 1244. In New York, males of eighteen and fe- North Carolina. Battle's Revisal, 1873. males of sixteen years may dispose of per- p. 847. sonaltv, R. S. 1875, Vol. 3, "ch. 6, p. 60. Ohio. R. S. 1880, Vol. 2, ch. 1, p. 1424. In Colorado, Gen. Stat. 1877, ch. 103, Pennsylvania. Bright. Purd. Digest, p. 929, persons, over seventeen years of age 1700-187^, Vol. 2, p. 1474. mav dispose of personal estate. South Carolina. R. S. 1873, ch. 86, p. 442. In Wisconsin, a dis'inction is made in Texas. R. S. 1879, Title 99, p. 712, or if favor of an infant married woman of the age lawfully married. of eighteen years, R. S. 1878, ch. 103, p. 650. Vermont. Gen. Stat. 1862, ch. 49, p. 377. Every person over the age of eighteen In other States a distinction is made con- years may dispose of both real and personal cerning wills of personalty and of realty, the estate, in California, Codes & Slat. 1876, age of twenty-one being generally, but not Vol. 1., ch. 1, p. 719. So in universally, ' required for the execution of Connecticut. Gen. Stat. 1875, ch. 2, wills of realty, while personalty may be dis- p. 368. posed of by younger persons, generally of Dakota. Rev. Code, 1877, Title 5, ch. 1, the age of eighteen years. p. 343. Alabama. Code," 1876, ch. 2, pp. 585, 586; Nevada. Comp. Laws, 1873, Vol. 1 ch. 37. Arkansas. Digest, 1874, ch. 135, p. 1012. p. 199. ' ' Missouri. E. S. 1879, Vol. 1, ch. 71, p. 679. Utah. Comp. Laws, 1876, ch. 2, p. 271. 44 INFANCY. *34 The disability of infancy was expressly taken away, in regard to the paternal appointment of testamentary guardians, by the stat- ^g to testa- ute of 12 Car. 2, c. 24, s. 8, which enabled any father, within mentary op- the age of twenty-one, or of full age, who should leave any guardLns by child under twenty-one, and not married, hy deed or will, mfants. executed in the presence of two witnesses, to dispose of the custody of such child or children during such time as he or they should continue under twenty-one, or any less time, to any person or persons other than Popish recusants {li) ; and it gave to such person the custody of the infant's estate, both real and personal, and the same actions as guar- dians in .socage. The guardianship draws after it the custody of the land which the infancy of tlie father would have prevented him from devising di- rectly (i) ; and it is observable, that though the authority' of guar- dians, appointed under the statute of Charles, does not * extend *34 to infant children who are married at the father's death, yet as to children who are then unmarried, the guardianship is not determined by subsequent marriage {J). The statute has been held not to interfere with the lord's right [by special custom] to the guardianship of his infant copyhold tenant {k). The will of an idiot is of course void {I). Mental imbecility arising from advanced age, or produced permanently or temporarily wills of bj'' excessive drinking, or any other cause, may destroy tes- ■diu's- tamentarj' power (m)} (A) This exception seems to be now inoperative : see Simpson on Infants,, p. 201, and stats, cited. (i) Bedeil v Constable, Vaiigh. 178. (j) Earl ot Shaftsbury's Case, cit. 3 Atk. 625, [2 P. W. 102; but see contra as to daugli- ters, 1 Ves. 91, per Lord Hardwicie.] (k) Clench v. Cudmore, 3 Lev. 395. (/) Dyer, 143 b. (m) See Swinb. P. II. ss. 5, 6. [And as to the difference in proof of lucid intervals in case of imbecility from drinking and ordinary imbecility, see Ayrev v. Hill, 2 Add. 206. In Foot V. Stanton, 1 Deane, 19, the will of a person subject to epileptic fits was admitted to probate, although there was no evidence that the testatrix knew its contents, the memory of the attesting witnesses failed, and a third person declared she was unfit to make a will. 1 Extreme old age does not of itself dis- v. Williamson, 1 Green, Ch. 82, a will was qualify a person from making a will, since it sustained, although the testator was eighty is not the soundness of the bod.v but of the years of age, very deaf, and his eyesight was mind that is requisite in testaments. Ex- (iefective when he made his will. In Reed'' s treme age may raise some doubt of capacity. Will, 2 B. Mon. 79, the testator was eighty but only so far as to excite the vigilance of years of age, and was afflii'ted with the palsy the court. Kinleside ». Harrison, 2 Phillim. so that he could neither write nor feed him- 461; Griffiths v. Robins, 3 Madd. 192; Potts self, and his will was held valid. See also V. House, 6 Ga. 324; Kirkwood «. Gordon, Watson v. Watson, 2 B. Mon. 74; White- 7 Rich. 474. Yet if a man in his old age nack v. Stryker, 1 Green, Ch. 8; Andress become a very child again in his understand- v. Weller, 2 Green, Ch. 605; Stevens v. Van- ing, or is become so forgetful that he knows cleve, 4 Wash. C. C. 262; Bird v. Bird, 2 not his own name, he is then deemed no more Hagg. 142; Mackenzie v. Handasyde, 2 tit to make his testament than a natural fool, Hagg. 211 ; Nailing v. Nailing, 2 Sneed, 630. or a child, or a lunatic person. Swinb. Pt 2, " He that is overcome by drink," says Swin- § 5, pi. 1; Godolph. Pt. 1, c. 8, § 4; Birds. burne, Pt. 2, § 6, "during the time of his Bird. 2 Hagg. 142; Lewis t>. Pead, 1 Ves. drunkenness is compared to a madman, and Jr. 19; Shelf. Lunacy, 276. See Van Alst therefore, if he make his testament at that (I. Hunter, 5 Johns". Ch. 148; Sloan v. time, it is void in law, Duffield i'. Robeson, Maxwell, 2 Green, Ch. 581; B(mner v. 2 Harrington, 375, 383; which is to be under- Matthews, cited Shelf. Lunacy, 327. In Lowe stood, when he is so excessively drunk that 45 *34 PERSONAL DISABILITIES OP TESTATORS. Of persons deaf and blind. A person who has been from his nativity blind, deaf, and dumb, is intellectually incapable of making a wiU, as he wants those senses through which ideas are received into the mind (w). Blindness .or deafness alone, however, produces no such in- capacity. [It seems, however, that a person born deaf and dumb, but not blind, though prima facie incapable (o), may be shown to have capacity, and to understand what is written down {p) ; ^ and this of (71) See Co. Lit. 42 b. (ol Swinb. P. II. s. 10. (/>) Diclienson «. Blissett, 1 Dick. 268; In re Harper, 6 M. & Gr. 731, 7 Scott, N. K. 431. Aa to the evidence required, see Ke Owaton, 31 L. J. Prob. 177 ; Ee Geale, 33 L. J. Prob. 125. he is utterly deprived, of the use of reason .and understanding, otherwise, albeit his un- derstanding is obscured, and his memory- troubled, vet he may make his testament, being in tliat case." On one occasion, where it appeared that the testator was a person not properly insane or deranged, but habitually addicted to the use of spirituous liquors, under the actual excitement of which he talked and acted in most respects like a mad- man, it was held that, as the testator was not under the excitement of liquor at the time of making his will, he was not to be consid- ered as insane. The will was aecoi'dingly established; and the court pointed out the dilfereuce between such a case and one of "actual insanity. Insanity, it was said, might often be latent, whereas there can scarcely be such a thing as latent ebriety; and conse- quently in a case like tlie one under consid- eration, all that was to be shown was the absence of the excitement at the time of the ;act done ; at least, the absence of excitement in any such degree as would vitiate the act done. Ayrey v. Hill, 2 Addams, 206; Shelf. I.unacv, 276. See also Wheeler v. Alderson, 3 "Hagg. 602, 608; Starrett v. Douglass, 2 Yeates, 43 ; Black v. Ellis, 3 Hill (S. C), 68; Shelf. Lunacy, 304. In An- dress v. Weller, 2 Green, Uh. 6Q4, 608, it was held that, if the testator's habits of intoxica- tion were, not such as to render him habit- ually incompetent for the transaction of business, it was necessary for the party set- ting up the incapacity of the testator on the ground of casual intoxication, to show its existence at the time of executing his will. See Harper's Will, 4 Bibb, 244. Hence, where no fixed and settled delusion is shown, and consequently no decided insanity, and ah extravagant "act of a party can be ac- counted for by the excitement of liquor, while at all other times his mind was sound; in order to avoid a will made by him, it must be proved that he was so excited by liquor, or so conducted himself during the particular act. as to be at that moment legallv disquali- ijed from giving effect to it. >(\''heeler «. Alderson, 3 Hagg. 606; Shelf. Lunacy, 276. In a suit to set aside a will on the ground that the testator was intoxicated at the time of executing it, his declarations, Bubsenuenlly made, "' that he never made the will ; that if he signed it, thi'y got him druuk and made him do it ; that he had no 46 recollection of it ; " have been held inadmis- sible. Gibson v. Gibson, 24 Mo. 227. 1 In a case of mere blindness, with no allegation of fraud, midue influence, or the like, the court will grant probate of the will upon satisfactory evidence that the testator knew and approved of the contents of the instrument. In re Axford, 1 Swab. & T. 540. The evidence naturally expected in such a case is that of the reading over the contents to the testator, perhaps in the pres- ence of those who witness the will. Fineham V. Edwards, 3 Curteis, 63 ; Weir v. Fitzger- ald, 2 Bradf. 42. But other evidence show- ing that he was acquainted with the contents may be received. lb.; Barton v. Robins, 3 Phillim. 455, n.; Harrison v. Rowan, 3 Wash. C. C. 580, 583; Clifton v. Murrav, 7 Ga. 564; Wampler.u. Wampler, 9 Md. 540 (where the will was read to the testator, but not before the attesting witnesses); Long- champ V. Goodfellow, 2 Bos. & P. N. E. 415 (to (he same effect); Martin w. Mitchell, 28 Ga. 382 (the same); Davis v. Rogers, 1 Houst. 44. See further, Lewis ». Lewis, 6 Serg. & E. 489. The case of one who can- not read appears to stand upon similar foot- ing. It should be shown that he was aware of the contents of the will ; but it is not nec- essary that the will should be read over to him if the fact of the testator's knowledge can be otherwise clearly shown. Guthrie v. Price, 23 Ark. 396 i, Day v. Day, 2 Green, Ch. 551 (where the inabilitj' to read was due to the physical weakness of the testator). Deafness, though absolute, cannot, of course, create incapacity to make a will. See Gom- bault V. Public Admr., 4 Bradf. 226. Nor is the case different, though the person be both deaf and dumb from birth. Brower i). Fisher, 4 Johns. Ch. 441; Potts v. House, Ga. 324, 356. Though it was formerly considered that such a person was to be pres"umed. in-ima facie, to be an idiot. Potts r. House supra. That perhaps woidd not now be the case. The modern authorities go no further than to require very great scrutiny, in suth cases, into the testator's knowledge and approval of the contents of the will. In re (ieale, 3 Swab. & T. 431; In re Owston, 2 Swab. & T. 461. The difference in legal effpct is little less than one of words; for the party's tes- tamentary capacity must be proved. " So far as any question of absolute incapacitv is con- cerned, no intelligent court would" at the INSANITY, WEAKNESS OF MIND. *35 course applies more strongly to a person deaf and dumb from acci- dent (gi).] Indeed, it has even been held that a will need not be read over to a blind testator previously to its execution, [provided there be proof aliunde of a clear knowledge of the contents of the instrament (r) ; but] it is almost superfluous to observe, that, in proportion as the infirmities of a testator expose him to deception, it becomes imper- atively the duty, and should be anxiouslj' the care, of all persons assisting in the testamentarj"^ transaction, to be prepared with the clearest proof that no imposition has been practised. This remark especiallj- applies to wills executed by the inmates of lunatic asylums («),* or any other persons habitu- *35 allj- or occasionally afflicted with insanity. A mad or lunatic person cannot, during the insanity of his mind, mal':e a testament of land or goods ; but if, during a lucid interval, he make a testament, it will be good {t). Lord Hard wi eke has _ observed that fraud and imposition upon weakness may be a sufficient ground to set aside a will of real, much more a wiU of per- sonal estate {sed qucere as to this distinction?) although such weakness is not a sufficient ground for a commission of lunacy («). And in Mountain v. Bennett (a;). Lord C. B. Ej're laid it down, that u„j„g j^au. although a man may have a mind of sufficient soundness and ence over a . discretion to manage his affairs in general, j'et if such a do- ^"^'^ '^ '"'" minion or influence be obtained over him as to prevent his exercising that discretion in the making his will, he cannot be considered as hav- ing such a disposing mind as will give it effect. In this case the will was attempted to be invalidated on the ground that it was obtained by the undue influence of the testator's wife, whom he had married from an inferior station ; but the will was finally supported, amidst much con- flicting testimonj' as to the state of the testator's mind, principally on the evidence of the attesting witnesses, who were persons of high char- acter and respectability, and were unanimous as to the testator's sanity and freedom from control.^ (?) Swinb. P. IL s. 10.] (»■) Longchamp d. Goodfellow «. Fish, 2 B. & P. N. R. 415 ; [Edwards v. Fincham, 3 Curt. 63, r Jur. 25; and see Mitchell ». Tliomas, 6 Moo. P. C. C. 137, 12 Jur. 967.] (s) Lord Eidon once mentioned his having been concerned in a cause, in which a gentle- man who had been some time insane, and was confined at Richmond, had made a will. It was, his Lordship observed, of large contents, proportioning the different divisions with the most prudent care, with a due regard to what he had previously done for the objects of his bounty, and in every respect pirrsuant to what he declared before his maladv he intended to have done; and it was held that he was of sound mind at the time. See 1 Dow, 179; [Mar- tin «. Johnston, 1 Fost. & Finl. 122; Nichols r. Binns, 1 Sw. & Tr 239.] (() Swinb. P. II. s. 3, pi. 1. 4; Beverley's case, 4 Rep. 123 b; Kemble v. Church, 3 Hagg. 273. (m) Vide 2 Ves. 408. {x) 1 Cox, 355. present dav affirm such incapacity even of a was the necessary consequence of the peculiar person dea'f, dumb, and blind. See Reynolds formulary system of that law: they could V. Reynolds, ] Speer, 256, 257. It may, be not do the physical acts required. G4ius, ii. added that the disability, under the Roman 102-104 ; Inst. ii. 12, 3. law, of persons deaf or dumb to execute wills, 1 The question whether a Will is the free like the disability of such persons to contract and voluntary act of the testator, or the re- (explained, 2 Kent, Com. 451, n., 12th ed.), suit of fraud or of influences operating upon ■ 47 *35 PEESONAL DISABILITIES OP TESTATORS. [In cases of weakness of mind arising from the near approach of him in consequence of which his will was made sabordinate to that of another, depends upon the question, whether he had sufficient intelligence to detect the fraud or strength of will to resist the influences brought to bear upon hira. Griffith v, Diffenderffer, 50 Md. 4f)6, 480. The state of mind and of body of the testator, at the time of executing the will, accordingly becomes material upon a ques- tion of fraud or of undue influence. What would, tor example, be improper influence in a person of feeble health, might not be such in tlie case of one in robust health ; and it is thought that, in some cases, the declarations of the testator may be satisfactory evidence tliereof, as where they are made soon after the execution of the will. lb. But there is much conflict of authority as to the admissibility of such evidence. lb. ; Waterman v. Whitney, 1 Kern. 188; Bovlan v. Meelcer, i Dutch. 2f4. If a testator, after executing a will, should say that the will was forced from him, or that it was executed by him under pressure of undue influence, such evidence, of course, would be hearsay, and inadmissible. Mooney «. Olsen, 22 Kans. 69, 76 ; Cudney v. Cudnev, 68 N. Y. 148; Jaclcson u. Kniiien, 2 Johns. 31; Stevens o. Vancleve, 4 Wash. C. C. 265; Haves ». West, 37 Ind. 21. But while the declarations of the testator are not admis- sible tor such a purpose, they are admissible for the purpose of showing the state of his mind. Mooney r. Olsen, supra; Watermnn V. Whitney, 11 N. Y. 157. The difference appears to be the difference between declara- tions concerning some external fact, such as fraud or undue mfluence, which itself is com- monly mere matter of inference from other facts, and the effect of those declarations (or rather statements, facts, acts, and conduct of the testator), in showing the party's mental condition at the time he executeS the will, lb. See further, as to the admissibility of the testator's declarations on the question of undue influence, Allen v. Public Admr., 1 Bradf. 378; Dennis v. Weekes, 51 Ga. 24. When it has been proved that a will has been executed with due solemnities, the burden of proving that it was executed under undue influence rests upon the party who make's the objection. Boyse ». Rossborough, 6 H. L. Gas. 2, 49 ; Tyler v. Gardiner, 35 N. Y. 559; Davis 1). Davis,' 123 Mass. 590; Baldwin u. Parker, 99 Mass. 79. He. must, at least, show facts from which the court will be justified in treating the circumstances attending the exe- cution of the will as suspicious. Further, in order to set aside the will of a person of sound mind, it is not sufficient that the cii'- cumstances are consistent with the hypothesis that it was obtained by undue influence. It must be shown that "they are inconsistent with a contrary hypothesis. lb. p. 51. A distinction is made in some authorities between control and undue influence. Control is con- sidered more easily capable of description approaching deflnition, because it imports sometliing of the nature of duress or fear. On the question of undue influence, such defi- 48 niteness cannot be predicated. lb. The books, however, afford the general guide. For example, it has been observed that im- portunity must be such as to take away the testator's free agency. Kinleside v. Harrison, 2 Phillim. 551; Davis ». Calvert, 6 Gill & J. 302; Wampler 0. Wampler, 9 Md. 540; Small «. Small, 4 Greenl. 223; Eckert v. Flowry, 43 Penn. St. 46; McMahon v. Kyan, 20 Penn. St. 329; Blakevi!. Blakev, 33 Ala. 611'; Hall I). Hall, 38 Ala'. 131; Turner c. Cheesman, 15 N. J. Eq. 243. In other words, the influence necessary to vitiate the will must amount to force ^and coercion in its effect upon free agency. Williams v. Goude, 1 Hagg. 577; Morris v. Stokes, 21 Ga. 562; Eollwagen o. Eollwagen, 63 N. Y. 504; Armstrong v. Huddlestone, 1 Moore, P. C. 478 ; Children's Aid Soc. ». Loveridge, 70 N. Y. 387, 394; Gardiner v. Gardiner, 34 N. Y. 155, 162; Seguine v. Seguine, 3 Keyes, 663, 669 ; Brick ». Brick, 66 N. Y. 144 ; "Coit o. Patchen, 77 N. Y. 394. In other cases, it is said that undue influence, in the legal sense, must be influence which can justly be described, by a person looking at the matter judicially, to have caused the execution of a paper pre- tending to express the testator's mind, which really did not express his mind, but ex- pressed something else, something which he did not really mean. Bovse v. Rossborough, 6 H. L. Cas. 2, 34. In "this case, the I-ord Chancellor observed that, in a popular sense, we often speak of a person exercising undue influence over another when the influence is not of a nature to invalidate a will. And his meaning was thus illustrated : A young man is sometimes led into dissipation by following the example of a- person of maturer years, to whom he looks up, and who leads him to consider habits of dissipation, perhaps, as creditable. The companion is then said to exercise undue influence. But if, in these circumstances, the young man, influenced by his regard for the person who had thus led him astray, were to make a will and leave him everything he possessed, the will cer- tainly could not be impeached for undue in- fluence. Nor would the case be altered merely because the companion had urged or even importuned the testator so lo dis- pose of his property ; provided only the young man was really carrying into effect his own intention, formed without either coercion or fraud. If, however, the will be really the will of anotlier, as where the testator has as- sented from mere habit of yielding to the person, and that habit has been produced by prostration of mind and body, the supposed will is invalid. Newhou.se r. Godwin, 17 Barb. 236. The difficulty of fixing upon the point at which influence exerted over the mind of a testator becomes legally undue, is freatly enhanced when the question arises etween husband and wife. It is both diffi- cult to inquire and impolitic to permit in- quiry into all that may have passed in this intimate relation. But the difficulty is one of fact ; and the general criterion is probably "WEAKNESS OF MIND. •^35 death, strong proof is required that the contents of the will were case for a person by honest intercession and persuasion, or by fair and flattering speech, to procure a will in favor of himself or of an- other person. Calvert i-. Davis, 5 Gill & J. 301. See HaiTison's Will, 1 B. Mon. 351; Sechrest v. Edwards, 4 Met. (Ky.) 163; El- liott's Will, 2 J. J. Marsh, 340; Gilreath «. Gilreath, 4 Jones, Eq. 142 ; Yoe v. McCord, 74 111. 33; Tyler v. Gardiner, 35 N. Y. 559. It maybe added that undue influence is more readily inferred of a husband over his wife than the reverse. Marsh v. TjTrell, 2 Hagg. 84, and that neither kindness of action, Eddy's case, 32 N. J. Eq. 701; In re Gil- lespie, 26 N. J. Eq. 523; Tawney v. Long, 76 Penn. St. 106, nor bad treatment can alone show undue influence, Tawnev v. Long, supra. See Tingley v. Cowgill, 48 Mo. 291. It will be correctly inferred, from what has been stated, that to invalidate a. will for undue influence (and the same is true of fraud) it must be shown that this was ex- ercised with respect to the will itself, or so contemporaneously, or so connected with it, as by almost necessary presumption to affect it. Other acts not retating to the bounty in question, even though contemporaneous, are only evidence to raise suspicion against any act done under the superintendence or by the interference of those committing it. Jones V. Godrich, 5 Moore, P. 0. 16, 40; Rutherford v. Morris, 77 111. 397; Eckert w. Eckert, 40 Penn. St. 46; McMahon v. Rvan, 20 Penn. St. 329. Thus threats, violence, or undue influence long past, cannot be shewn to impeach a will. ' Wainwright's Appeal, 89 Penn. St. 222: McMahon v. Rvan, 21 Penn. St. 329; Eckert ». Elowry, 43 Penn. St. 417; Thompson v. Kyner, 65 Penn. St. 368. Secus of contemporaneous throats, though only of estrangement and non-inter- course. M'oore v. Blauvelt, 15 N. J. Eq. 367.. But this rule as to past acts should not bft' cai-ried too far. Where a jury, for instance,, see that, at and near the time when the wiill sought to be impeached was executed, the^ alleged testator was, in other importajit transactions, so under the influence of the- person benefited by the will that as to him^ lie was not a frpe agent, but was acting-; under control, the cn-cumstances may he', such as fairlj' to wan'ant the conclusion, even in the absence of evidence bearing' directly upon the execution of the will,, that, iu regard to that also, the same undue iviftuenoewas ex- ercised. Boysec Rossbor,ougli, 6HI L, Cas.2, 51 ; Rossborough v. Boyse, 3 Ii-ish (Jh. 489, 510. It is upon the general principlfe that fraud or undue influence must be practised; towards the will, that it is held that frauds orundue influence in procuring one Itegacy willl not perse invalidate other legacies;, but if the fraud or undue influence affect the whole' will, the whole will be void, though the- wrongful conduct was the conduct of but one- of several beneficiaries. Florey v. Florey,. 24 Ala. 241. And if the portion affected by- undue influence be inseparable from the i-est of the will, it seems that the whole is invalid. See Baker's Will, 2 Kedf. 179. Nor will a the same as in other cases. It has been laid down in the House of Lords, that the influ- ence in such a oase must amount to coercion or fraud. Boyse i: Rossborough, supra. It was observed, for example, in this case, that if a wife, by falsehood, raise prejudice in the mind other hu.sband against those who would be the natural objects of his bounty, and, by contrivance, keep him from intercourse with his relatives, to the end that these impres- sions which she knows he has thus formed to their disadvantage may not be removed, such acts ma}' avoid the will. But a will cannot be set aside on account of any persuasions or representations of the testator's -wife, even while the testator is at the point of death, to induce him to make a more liberal provision than he is disposed to make, though it should appear that such persuasions had prevailed npon him to comply with her wishes; pro- vided it appear that the testator was of sound mind, and was not imposed upon by false representations, and that the provision made for the wife is not greatly disproportionate to that of others near of kin, nor unreasonable. Lide V. Lide, 2 Brev. 403. Indeed, it has been declared that when a wife has, -by her virtues, so gained the affection of her hus- band that " her good pleasure is a law to him," the result cannot be undue; and though the husband, while thus situated, should by will give his whole property to his wife, there would be no legal ground for im- peaching the disposition. Small v. Small, -4 Greenl. 223. Nor, according to the authtn-- ities, would it be proper to set aside a will of the husband in favor of his wife, on the ground of influence, importunity, or un- due advantage taken by the wife, though it should appear that she possessed a powerful influence over his mind and conduct in the general concerns of life; unless there should be evidence that such influence was exerted in a special degree to procure a will pecul- iarlj' acceptable- to her, and to the pre.iudice and disappointment of others naturally ex- pecting the testator's favor. lb. ; Miller v. Miller, 3 Serg. & R. 267 ; Meeker v. Meeker, 75 111. 260; Rankin v. Rankin, 61 Mo. 295; O'Neall V. Farr, 1 Rich. (S. C.) 80; Thomp- son V. FaiT, 1 Speer,' 93; Zimmerman v. Zimmerman, 23 Penn. St. 375; Hughes v. Mui-tha, 32 N. J. Eq. 701. But such latitude of influence should, it seems, be allowed only in favor of a wife, or perhaps of a child ; it cer- tainly should not be extended to a woman not the wife, with whom the testator has been con- sorting in shame. Kessinger v. Kessinger, 37 Ind 341; Denton D. Franklin, 9 B. Mon. 28. But mere unlawful cohabitation with the mother of an illegitimate child is not alone evidence of undue influence in a contest w^ith the child as legatee of his father. Wain- wright's Appeal, 89 Penn. St. 222; Rudv v. Ulrich, 69 Penn. St. 177. Though with otlier facts it maj' be such evidence. lb.; Dean v. Negleg, 41 Penn. St. 317; Main v. Ryder, 84 Penn. St. 217. See Farr v. Thomp- son, Cheves, 37 ; S. C. 1 Rich. 80, supra. And, in general, it is not unlawful in any VOL. I. 4 49 •36 PERSONAL DISABILITIES OP TESTATORS. In case of known to the testator (y),* and that it was his spontaneous m?n(i,"rtronff ^'^^ (^)* -^ suspicion is justly entertained of a will con- pvoof required ferring large benefits on the person by whom or by whose agent it was prepared («)» or of a will in favor of a medical attendant in whose house the testator resided (5) ; but it seems that this suspicion goes no further than to necessitate somewhat stricter proof as to the testator's capacity, though not as to his knowledge of the contents of the will (c) . *36 Such knowledge is of course * requisite (rf) ; but it will be presumed if there is no evidence to the \k proved, contrary (e), and if capacity is duly proved (/). Where undue influence is supposed to have been exercised in obtain- as to knowl- edge of con- tents of will. Suspicion when will prepared bj^ legatee, or in favor uf medi- cal attendant. In such cases capacity must [(y) Mitchell V. Thomas, 6 Moo. P. C. C. 137, 12 Jur. 967; Dumell i). Corfield, 1 Rob. 51, 8 Jur. 915. But see Eeece v. Pressey, 2 Jur. N. S. 380. (z) Tribe v. Tribe, 1 Kob. 775, 13 Jur. 793; and see Dufaur V. Croft, 3 Moo. P. C. C. 136; Harwood v. Baker, ib. 282; Re Field, 3 Curt. 752. (a) Paske v. Ollatt, 2 Phillim. 323; Durling ji. Loveland, 2 Curt. 225; BakJr ». Batt, 2 Moo. P. C. C. 317. (6) Jones v. Godrich, 5 Moo. P. C. C. 16 ; and see Major v. Knight, 4 No. Cas. 661 ; Cock- croft V. Kawles, ib. 237. (c) Barry ». Butlin, 2 Moo. P. C. C. 480, 1 Curt. 614, 637. If a will rational on the face of it is shown to have been duly executed, it is presumed in the absence of any evidence to the contrary that it was made ty a person of competent understanding. But if "there are cir- cumstances not merely opposed" to, (Foot v. Stanton, 1 Deane, 19, ) but sufficient to counter- balance that presumption, the decree of the court must be against its yaliditj', unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it. Sutton v. Sadler, 3 C. B. (N. S.) 87; Symes v. Green, 1 Sw. & Tr. 401, 5 Jur. N. S. 742, 26 L. J. Prob. 83. (d) Hastilow v. Stobie, L. E. 1 P. & D. 64. (e) Fulton v. Andrew, L. E. 7 H. L. 448. {./ ) Browning v. Budd, 6 Moo. P. C. C. 435. As to the nature of yr(md necessary to invalidate a will, see 5 Moo. P. C. C. 40. As to the nature of undue injmence necessary" for that purpose, see Stulz v. Schajfle, 16 Jur. 909. And on both points, B"o3'se v. Eossboro^ugh, 6H.L. Ca. 1, 3Jur. N. S. 373. prohibition in the will from questioning it prevent an interested party from impeaching It for fraud or undue mfliience. Lee v. Col- ston, 6 T. B. Mon. 246. If, in a question of the mental strength of the testator, it be shown that the disposition of the property runs along the line of his established friend- ships and previously expressed intentions, this tends strongly against the alleged exer- cise of undue inAuence; while, if the con- trary be shown, there will be some ground for "a diiferent inference. Mooney v. Olsen, supra, referring to Howell D. Barden, 3 Dev. 442 ; Hester ». Hester, 4 Dev. 228 ; Rambler V. Tryon, 7 Serg. & R. 90; Beaubien v. Ci- ootte, 12 Mich. 469; Cawthorn v. Haynes, 24 Mo. 236 ; Davis v. Calvert, 5 Gill & J. 269 ; Allen V. Public Admr., 1 Bradf. 378. It is error, under the law of Indiana, to ask the jury " if the testator was of sound mind when lie "executed the will, if he was then under duress, and if the will was duly executed, or was obtained by fraud," in the face of a re- quest to ask them whether the testator had mind and memory sufficient to understand the ordinary affairs of life, and to act with discretion tlierein. whether he knew his chil- dren and grandchildren, and wliether he had a general knowledge uf his estate. Todd r. Fenton, 66 Ind. 25. As to instructions to the jury concerning undue influence, see In re Anies, 51 Iowa, 596, 604; Mowry v. Selbu, 2 Bradf. 133, 147 ; Hanel v. Haiiel. 1 Duv. 203; Coleman v. Robertson, 17 Ala. 84; Rogers v. Diamond, 13 Ark. 474 ; Tavlor ». Wilburn, 20 Mo. 306 ; Brown v. Mol'liston, 3 Whart. 129 ; Thornton v. Thornton, 39 Vt. 122. 1 But it is not necessary, in ordinary ca.ses, to prove that the will was read to the testa- tor. HuRs's Appeal, 43 Penn. St. 73. Or- dinarily, the execution of the will constitutes sufficient evidence (unless there is counter- evidence) of the testator's knowledge of the contents. Beall ». Mann, 5 Ga. 456; Gaither V. Gaither, 20 Ga. 709; Vernon v. Kirk, 30 Penn. St. 208. But special circumstances may exist requiiing express evidence of the testator's knowledge, even, it seems, before any evidence is adduced of his want of knowledge. Such are the cases referred to in the text where a relation of confidence is shown to have existed between the tes- tator and legatee or devisee. The same is true when the draftsman of the will claims a cousiderable gift luider the iustruniuut. H ughes i>. Meredith, 24 Ua. 325. 50 TINDUE INFLUENCE. *36 ing a will, it seems that the whole will is not necessarily Part of a will void, but it will be left to a jury in the case of real estate {g), ^Jthe resf and to the Judge of the Court of Probate in the case of per- valid. sonalty (/i), to determine what gifts were obtained by undue inilueuce, and such gifts only will be declared void.] * (7) Trimleston v. D' Alton, 1 D. & CI. 85; Hippesley v. Homer, T. & R. 48, n.; Lord Giiillamore v. O'Grady, 2 J. & Lat. 2i0; Haddoclc e. Trotman, 1 Fost. & Finl. 31. See post, Cliap. XIII. (A) See Allen v. Macphersou, 1 H. L. Ca. 191, 11 Jur. 785.] 1 Where a confidential relation exi.sts, sucli as that of client and attorney, or patient an, I physician, between a testator and a large b.'.nefi;;iary under the will, far less will be deemed undue influence than in other cases. Indeed, when the relation is once shown to liave existed, it appears to devolve upon the beneficiary to show a clear intention or that no pressure was brought to bear by him or by his procurement upon the testator. Barrv o. Butlin, 1 Uurteis, 637; Walker e. Smith, 29 Beav. 394 ; Kiddell «. Johnson, 26 (Jratt. 152; Wilson v. Moran, 3 Bradf. 172; Meek ». Perry, 36 Miss. 190 ; Crispell ». Du- bois, 4 Barb. 393; Breed u. Pratt, 18 Pick. 115; Paske v. Ollat, 2 Phillim. 323; Greville o. Tvlee, 7 Moore, P. C. 320 ; Ashwell v. Lo- mi, Law Rep. 2 P. & D. 477; Harvey ». Sul- lens, 46 Mo. 147; Bovd 11. Boyd, 66 Penn. St. 283; Wright «. Howe, 7 Jones, 412; Dow- ney 0. Murphey, 1 Dev. & B. 82, 90. Testamentary provisions in favor of a party occupying the superior position of conridence, have, however, been thought to stand upon somewhat more favor- able ground than gifts inter vivos in favor of such a person. Hindson v. Weatherill, 5 DeG. M. & G. 301. But see Walker v. Smith, 29 Beav. 394. Perhaps it is better in all cases of confidence merely to say that proof of intention is very strictly required than that a presumption of wrong -doing arises. The mere existence of a confidential relation between the testator and devisee or legatee certainly never operates to bar the right of the beneficiary to receive the bounty : at most it only affords ground for suspicion, requir- ing tliie party to show that the testator was of sound mind, that lie clearly understood the contents of the will, and that he was at the time under no restraint. Barry v. Butliii, 1 Curteis, 637; Eiddell v. Johnson, 28 Graft. 152. But see Downey v. Murphey, supra, in which the learned court (1 Dev. & B. 90) ap- pear to have lost sight of the true rule upon the point of knowledge of the contents of the instrument. (It is never necessary to show that the will was read over to the testator, if it can be shown in other ways that the testator was fully aware of its contents and ap- proved thereof. Infra.) A confidential rela- tion, within this rule, exists wherever a continuous trust is reposed in the skill or integrity of another, or the property or pecu- niarj' interest in whole or in part, or the bodily care of one person is entrusted to another. Bigelow, Fraud, 190. Closely re- lated to questions arising upon confidential relations stands the effect of large bomities bestowed in the will upon the draftsman. Indeed, it often happens that the superior person in the relation of confidence is also the draftsman of the will ; as in Barri- v. Butlin, 1 Curteis, 637; in Eiddell v. Johnson, 26 Graft. 152; in Paske v. Ollat, 2 Phillim. 323; in Newhouse v. Godwin, 17 Barb. 236; in Durling u. Loveland, 2 Curteis, 225, and in other cases supra. But the only result of such a fact, it is clear, is to require greater scrutiny into the circumstances attending the particular bequest. When no further relation of confidence exists than is implied in employing a draftsman (the relation between a testator and his draftsman is not per se a confidential relation in the proper legal sense, it is apprehended), the suspi- cion of undue influence is probablj' weaker than in like cases of confidence ; but the suspicion still eScists. Cramer v. Crum- baugh, 3 Md. 491 ; Baker v. Batt, 2 Moore, P. C. 317; .4.dair v. Adair, 30 Ga. 102; Duf- field V. Robeson, 2 Harr. (Del.) 375, 384; Tomkins «. Tomkins, 1 Bailey, 92; Pat- ton V. Allison, 7 Humph. 320. It will be slight or strong according to the amount of the bountv and the subject of it. Butlin v. Barry, 1 Curteis, 637 ; Darnell ». Corfield, 1 Robt. Eccl. 51, 63; Lee v. Dill, 11 Abb. Pr. 214. Or it may be overcome entirely b_v the language of the will. lb. ; Coffin v. CofKn, 23 N. y. 9. See further, Billinghurst v. Vickers, 1 Phillim. 187; Hitchings v. Wood, 2 Moore, P. C. 355, 436; Watterson v. Wat- terson, 1 Head, 1; Harvev v. Sullens, 46 Mo. 147; Beall f. Mann, 5"Ga. 456; Tj'leru. Gardiner, 35 N. Y. 559 ; Carr v. McCamm, 1 Dev. & B. 276. That the draftsman is not incapacitated as such to take under the will is perfectly clear. Barry v. Butlin, Coffin v. Coffin, and other cases supra. And this though the will was written while the tes- tator was in extremis. Downev ». Murphey, 1 Dev. & B. 82. But see the criticism upon this case, supra. The rule of increased strict- ness of scrutiny in cases where the person by whom, or bv whose procurement and direc- tion, a will is drawn, receives a large benefit under it, and, in cases of doubtful capacity, appears to be satisfied by proof to the full and entire satisfaction of the court or jury that the testator was not imposed upon, that he knew what he was doing, and understood the dis- positions he was making when he made his will. Duffield v. Robeson, 2 Harrington, 384, 385; Barry v. Butlin, 1 Curteis, 637; Durnell v. Corfield, 1 Robt. Eccl. 51. The law presumes, in general, that the will was read over by or to the testator. But if evi- 51 •37 PEESONAL DISABILITIES OF TESTATOES. It appears, that though an inquisition finding a man a lunatic is primd Inquisition facie evidence of lunacy during the whole period covered by pnmafndt guch inquisition, yet it does not preclude proof that the GVjclencG of x • */ *. * testamentary execution of a wiU, Or any other act, occurred during a lucid incapacity. jnteiTal (l) . The principle is very ably stated by Sir W. W3-nn in his judgment Lucid inter- in Cartwright V. Cartwright (k): "• If you can establish ™'^- that the party -afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved, is sufficient, and the gen- eral habitual insanity will not affect it ; but the effect of it is this — it inverts the order of proof and of presumption ; for, until proof of habitual insanity is made, the presumption is, that the partj', like all human creatures, was rational ; but where an habitual insanity in the mind of the person who does the act is established, then the partj' who would take advantage of the fact of an interval of reason, must prove it." In what un- [I* h^s been laid down that the test of a person soundness of *37 being of * unsound mind in a legal sense is the ex- sists. istence of a delusion (T) , or a belief in facts which an (0 Hall V. Warren, 9 Yes. 605; Ee Watts, 1 Curt. 594; [and see Creagh v. Blood, 2 J. & Lat. 50a; Snook v. Watts, 11 Beav. 105; Cooke v. Cliolniondely, 2 Mac. & G. 22; Bannatyne V. Bannatvne, 16 Jur. 804.] (it) 1 P'hillim. 100; [and see 2 Phillim. 465, 2 Add. 209; Steed v. Calley, 1 Keen, 620; Tat- ham V. Wright, 2 K. & Jly. 1 ; Borlase v. Borlase, 4 No. Cas. 106. , (/) But see Nichols D. Bi'nns, 1 Sw. & Tr. 239. dence be given that the testator was blind, or from any cause incapable of reading, or if a reasonable ground is laid for believing that it was not read to him, or that fraud or impo- sition of any kind was practised upon him, it is incumbent on those who would support the will, to meet such proof by counter evi- dence, and to satisfy the jury either that the will was read or that the contents were known to the testator. Day ». Day, 2 Green, Oh. 549. In this. case, it was held that if it appears affirmatively that the testator did not read tlie will himself, and that it was not read to him, it must then be satisfactorily shown that he was in some way made acquainted with the contents of the instrument, and approved them. Thus, if it appear that the will in question was truly copied from a previous will with the contents of which the testator was acquainted, the instrument will be ad- mitted to probate although it was neither read by him nor in his hearing. lb. So, if it can be shown that the will is substantially in accordance with the instructions of the testa- tor, it may be considered as sufficient evi- dence that he was acquainted with its con- tents. But if, in drawing up a will from instructions, they arc materially departed from, the testator must be made acquainted with the deviations and alterations; if the will is not read over to him, or its contents and variations otherwise made known to him, it camiot be sustained. Chandler v. Ferris, 1 Harrington, 454, 464. See Tomkins v. Tomkins, 1 Bailey, 92; Gerrish v. Nason, 22 Me. 438 ; Harding v. Harding, 18 Penn. St. 340; Clifton u. Murray, 7 Ga. 564; Vernon v. Kirk, 30 Penn. St. 218. In ordinary cases, where the testator Is in health, and of testable capacity, it is not necessary to give evidence in the first instance of a knowledge of the contents of the will. Pettes v. Bingham, 10 N. H. 514 ; Downey v. Murphey, 1 Dev. & B. 82 ; Carr v. M'Camm, ib. 276 ; Smith v Dolby, 4 Harrington, 350. The burfen imposed on'a party propounding a will is discharged by proof of capacity and the fact of execution ; from this proof, the knowledge of, and assent to, the contents of the will are presumed. Barrv v. Bptlin, 1 Curteis, 637 ; McNinch v. Charles, 2 Rich. 229; Day v. Day, 2 Green, Ch. 549; Stewart i;. Lispenard, 26 Wend. 287, 288; Hoshauer v. Hoshauer, 26 Penn. St. 404; In re Maxwell, 4 Halst. Oh. 251; Vernon v. Kirk, 30 Penn. St. 218. See Rice ». Dwight Manuf. Co. 2 Gush. 80. But where the capacity of the testator is shown to be doubt- ful, otlier proof of knowledge is required. McNinch v. Charles. 2 Rich. 229; Tomkins V. Tomkins, 1 Bailev, 92, 96 ; Day v. Dav, 2 Green, Ch. 549; Gerrish v. Nason, 22 M'e. 438. Still, proof of instructions for making the will, or reading it over, is not indispen- sable ; other evidence of knowledge or assent may be given. Barry v. Butlin, 1 Curteis, 637; Diji-ling v. Loveland, 2 Curteis, 225; McNinch v. Charles, 2 Rich. (S. C.) 229; Day V. Dav, 2 Green, Ch. 549. 52 UNSOUNDNESS OF MIND. *38 ordinary person would not credit, or a belief which one cannot under- stand how any person in his senses should hold ; and that mere eccen- tricity of habits or perversion of feeling and conduct, forming what is termed moral insanity, do not constitute legal incapacity (m). General iusanity must be distinguished from partial insanity or monomania. In case of the former, a lucid interval, a real absence, at the time of mak- ing the will, of the disease itself, and not of its apparent delusions only, must be shown (n) . In case of the latter, opinions have differed. In Waring v. Waring (o), it was laid down by Lord Brougham, that it was incorrect to speak of partial insanity ; that a mind unsound on one subject could not be called sound on any ; and that unless a lucid inter- val (as explained above) could be shown, testamentarj' incapacity was the necessarj' consequence, although the subject on which the unsound- ness was manifested might be quite unconnected with the testamentary disposition in question. It is not perfect sanity, however, a disposing but only a mind that comprehends the testamentary act that '"'""^ suffices. is required ; and in Banks v. Goodfellow (p) , Lord Brougham's doc- trine, which it was observed was unnecessary to the decision of tl^e cases in which it was stated, was rejected ; and it was decided that monomania, which had not, and was not capable of having, any in- fluence on the provisions of a will, did not destroy the capacity to make one ; that the inquiry whether the monomania has or not had any such effect might be difficult, but was not impracticable ; and that if, in the result, the court was convinced that it had, the conclusion must be against the will. The case of Greenwood is, on this point, ambiguous. It is thus stated by Lord Erskine] (q): "He was bred to the bar, and acted as chairman at the quarter sessions ; but becoming diseased, and receiving in a fever a draught from the hands of his brother, the delirium taking its ground then, connected , itself with that idea : and he considered his brother as having given him a potion with a view to destroy * him. He recovered in all other *38 respects, but that morbid image liever departed ; and that idea appeared connected with the will, bj' which he disinherited his brother ; nevertheless, it was considered so necessarj' to have some precise rule, that though a verdict was obtained in the Common Pleas against the will, the judge strongly advised the jurj', on a second trial, to find the other wa3' ; and they did aceordinglj- find in favor of the will. [Further proceedings took place afterwards, and concluded in a compromise." But] in Dew v. Clarke (qa), where the Prerogative Court was called up- on to decide as to the testamentary capacity of a gentleman named Stott, (m) Frere ». Peacocke, 1 Rob. 442, 11 Jur. 247; see S. C. in a previous stage, 3 Curt. 664, 7 .lur. 998, where a plea of liereditar\- insanity was disallowed. See also Grimani v. Draper, 12 Jur. 92j; Mudwav i>. Croft, 3 Curt. 67i; 7 Jur. 979; Ditchbourn v. Fearn, 6 Jur. 201; G.4die o. Murray, ib."608; Austen v. Graham, 8 Moo. P.O. C. 493. (n) Waring o. Waring, 6 Moo. P. C. C. 341, 12 Jur. 947; Smith v. Tebbitts, L. R. 1 P. & D. 398. (o) 6 Moo. P. C. C. 341, 12 Jur. 947. (/)) L. R.. 5 Q. B. 549.] (?) In White «. Wilson, 13 Ves. 89. (2 n) 3 Add. 79, [5 Buss. 163 j and see Fowlis v. Davidson, 8 No. Cas. 461. 53 »38 PERSONAL DISABILITIES OF TESTATORS. an eminent electrician, who had an onlj- child, against whom he had conceived a strong and groundless aversion, exhibited in a series of absurd acts of harshness and severity, and which he followed up bj- making a will in favor of some collateral relations, to the almost total exclusion of such only child ; Sir J. NichoU and the Court of Delegates, successively pronounced against the validity of the will, after the deliv- er^' of very able and elaborate judgments, which should be perused by all inquirers into this interesting subject. [And a like decision was made in the somewhat similar case of Boughton v. Kuight (r)].^ ()•) L. R.3P. &D. 64.] 1 The term "testamentary capacity" has had an unfortunate use, and has come to be arabisuous. Without overlooking the fact tliat it may often be difficult, if not impossi- ble, to distinguish between loss or "want of intellect and perversion of the same as in- dicated by delusions or by madness, it is still apprehended that the term "testamentary, capacity" is applicable properly only to issues of decay or of want of mind; the "true question in such cases being whether the sup- posed testator had sut!icient mental ability at the time to exercise will. In fact, however, the term is often applied to issues of insanity in the sense of perverted (diseased) intellect; ■where the real question is, not vhether.the decedent had capacity to will, but whether he did (normally ) will. Now it may be remarked that it appears improper in any case to aslc a jury whether the decedent possessed testa- mentary capacity in the abstract at the time of the supposed will, even upon an i-sue of mental imbecility; for there is no ideal standard by which a man's testamentary capacity can be judged. But see Delafield »>. Parish, 25 N. Y. 9. A man of weak mind may have mental ability sufficient to enable him to dispose of his property in a simple way, and not have mental ability sufficient to dispose of it in a complicated way. He may not, for example, have power to grasp tile arithmetic of a complicated disposition. The true question ui>on an issue of decay or of want of mind, it is conceived, notwith- standing the language of Delafield v. Parish, is tvhether the supposed testator had mental capacity sufficient for the particular alleged will. But the term "capacity" becomes wholly improper upon an issue of insanity, when that word is used in its common sense of perversion (and not want or weakness) of intellect, i. e. lunacy. Ability to will in the particular manner in question may be quite consistent with such insanity. A lunatic is not necessarily a man of weak mind, much less an imbecile. A person merely affected with delusions, and not a maniac, wills when he takes the steps necessary for disposing of his property, though his will may have acted abnormally; heexpresses/»swill. An imbe- cile, however, in taking such steps, if he has taken them propTly, does not, generally speaking, will. The will is that of another:' the case is almost always one of fraud or of undue influence ; the very fact of orderly dis- 54 positions, if at all complicated clearly telling that way. Now the will of a lunatic may or may not have been aiiected by his insanity ; but where the insanity is deemed total, or where it runs along the line of the dispositions attempted, it must he impossibleto say that his action was not influenced by his insanity. In this impossibility to find the actual fact, the law is compelled to look to probabilities and to substitute presumption for fact. The decedent, being found to have had a perverted intellect in respect of some or all of the dis- positions of his alleged will, is presumed not to have exercised true will. The question, therefore, to be asked is, not whether the decedent had capacity to make the will in question, much less whether he possessed testamentary capacity in the abstract, but whether the supposed testator was of sound and disposing mind in respect of the subject- matter of the will when he executed it. Until recently it was supposed, in England, that insanity, even in one particular, was sufiicient to prevent the execution of a will ; upon the extremely narrow hypothesis that, as the mind is a "unit, what "affects a part affects the whole. Waring v. AVaring, 6 Moore, P. C. 341; Smith ». Tebbitt, L. K, 1 P. & D. 398. But the fallacy of this posi- tion has recently been shown by the Queen's Bench, and it is now held that insanity not running in the direction of the will does not invalidate the testament. Banks v. (Jood- fellow, L. R. 5 Q. B. 549 ; Smee v. Smec, L. R. 5 P. D. 84. See Boughton v. Knight, L. R. 3 P. & D. 64. And this appears to be the law in the United States. Siackhouse v. Horton, 15 N. J. Eq. 202; Lathrop r. Bor- den, 5 Hun, 560; Lathrop v. American Board, 67 Barb. 590; Evans v. Arnold, 52 Ga. 1G9; Gardner v. Lamback, 47 Ga. 133; Lucas II. Parsons, 24 Ga. 640; Benoist v. Murrin, 58 Mo. 307 ; Denson v. Beazley. 34 Texas, 191 ; Cotton v. Ulmer, 45 Ala. 378. Or, to .state the law in the language of late authority (though the language is somewhat objectionable), if delusions existing in the mind of the testator cannot reasonably be conceived to have had any thing to do 'with his power of considering "the claims of his relatives upon him, and tlie manner in which he should dispose of his property, the pres- ence of such delusions will not incapacitate him from making a will. Smec ». Smee, supra. But it is well settled that if insanity, UNSOUNDNESS OF MIND. »38 Lord Thurlow is said to have intimated an opinion, that where lunacy is once established by clear evidence, the party ought to be restored not caused by violent disease or accident (Hix V. Whittemore, 4 Met. 545, and cases infra), be once shown to liave existed before tile execution of tlie will, it will be presumed, prima facie, to liave existed when the will was made; and the will in such a case cannot be admitted to probate unless this presump- tion is clearly removed. Boughton v. Knight, supra; Nichols w. Binns, 1 Swab. & T. 239: Rush V. Megee, 36 Ind. 69 ; Chandler v. Bar- rett, 21 La. An. 58. Thus, when general insanity antedating the will is established, it must be proved, if the will is to stand, either that such insanity had ceased to exist when the will was executed, o^ that the will was executed during a lucid interval. Chandler V. Barrett, supra; Cartwright v. Cartwright, 1 Phillim. 100; Clark v. Fisher, 1 Paige, 171, 174; Jackson v. Van Dusen, 5 Johns. 144, 159; Boyd v. Ebv, 8 Watts, 66; Harden v. Hays, 9 Barr, 151 ; Halley v. Webster, 21 Me. 461; Whiteuach v. Stryker, 1 Green, Ch. 8; Goble v. Grant, 2 Green, Ch. 629. But the courts look with great scrutiny into evidence of lucid ii.tervals; and the facts should be clear to make out such a case. White 1). Driver, 1 Phillim. 88; Brogden ». Brown, 2 Addams, 445; A\Tey v. Hill, ib. 210. The rule, no doubt, is similar as to cases of partial insanity, whether shown to exist before or at the time of the execution of the will. Inasmuch as the burden of showing that the testator was a person of sound and disposing mind and memory is upon him who propounds the will (Delafield v. Parish, 25 N. Y. 9; Crowninshield ». Crowninshield, 2 Gray, 524; Baker v. Butt, 2 Moore, P. C. 317; Barry ». Butlin, ib. 480), it appears to follow that any satisfactory evidence of in- sanity will be considered prima facie as fatal "to the supposed will. It is then for the party who wishes to maintain the instrument to prove that the partial insanity did not exist in respect of the dispositions made in the will. Indeed, the burden of proof is deemed by high authorities to rest through- out upon the party who propounds the will. The court must be satisfied that the testator was of sound mind and disposing memory; and if, upon the whole evidence, there be any doubt upon this point, the will cannot be con- sidered to have been proved. Crowninshield II. Crowninshield, supra; Delafield «. Parish, supra; Robinson v. Adams. 62 Me. 369. See Baker v. Butt, supra; Perkins v. Per- kins, 39 N. H. 163 ; Boardman v. Woodman, 47 N. H. 120, 132; Mayo v. Jones, 78 N. C. 402; Beaubien ». Cicotte, 8 Mich. 9; Taff ». Hosmer, 14 Mich. 309 ; Aikin «. Weckerly, 19 Mich. 482; Kempsev v. McGinnis, 21 Mich. 123; Turner v. Cook, 36 Ind. 129; Thompson v. Kyner, 65 Penn. St. 368 ; Wil- liamson V. Robinson, 42 Vt. 658. But see Higgins V. Carlton, 28 Md. 415, in which the distinction commonly taken between the proof of deeds and" of wills is criticised, and the cun-ent of authority supposed to 55 favor the rule that the burden of proof rests upon the person who avers insanity. There is, bv nearly all the authorities (contra Robinson v. Adams, 62 Me. 369; Wil- liamson V. Robinson, supra), a presumption of sanity; and in the absence of evidence the case may be decided, according to the better opinion, upon this presumption. So, no doubt, the presumption must be considered in considering the evidence. But when evi- dence of insanity is once introduced and counter evidence brought forward, the case cannot, by the better authorities, be decided upon the "mere existence of the presumption of sanity. See cases last cited. (Comp. an analogous case of the burden of proof con- cerning the doctrine of presumption of con- sideration in the law of bills and notes. Bigelow's Bills & Notes, 90.) There is then, between cases like Higgins v. Carlton, supra, which make much of the presumption of sanity, and cases like Robinson v. Adams, supra, in which the, existence of the presump- tion is wholly denied, a large and, it is con- ceived, a better class of authorities which treat the burden of proof as resting in all cases upon the proponent of the will; which bui'den is probably sustained by a presump- tion of sanity in the (unusual) case of an absence of evidence, but not sustained by that presumption in a case left doubtful upon evidence adduced. Where there is doubt, there is not proof ; and the will should be proved. Baker «. Butt, supra ; Baxter o. Abbott, 7 Gray, 71, 83 ; Baldwin v. Parker, 99 Mass. 79, 84; Crowninshield v. Crownin- shield, supra; Delafield v. Parish, supra. It may be added that almost the only case, under the practice in Massachusetts, of an entire absence of evidence concerning sanity, would be where the attesting witnesses were all dead or had removed to parts unknown : when their testimony can be had, they are uniformly asked concerning the testator's mental condition. Crowninshield v. Crown- inshield, supra. But still, in (he absence of evidence of unsoundness, the will must stand. Baxter v. Abbott, 7 Gray, 71, 83. (The bur- den of proof as to undue influence, however, after proof of soundness of mind, is upon him who alleges it. Baldwin v. Parker, 99 Mass. 79; Tyler v. Gardiner, 35 N. Y. 559.) With regard to what facts may be shown upon an issue of insanitj', it may be stated by way merely of illustration, that delusion with re- spect to a devisee may be shown. Mill's Appeal, 44 Conn. 484; Cleveland v. Lyne, 5 Bush, 383. So of delusion with respect to the testator's daughter. Clapp ». Fullerton, 34 N. Y. 190. And all facts concerning the personal history of the testator mentally and physically, Ross v. McQuiston, 45 Iowa, 145; or of his parents, and perhaps remoter ances- tors, are admissible. Baxter v. Abbott, T Gray, 71; Coughlin v, Poulson, 2 .McArth. 308." Whether (he insanity of an uncle or aunt alone would be admissible is doubtfuL •38 PERSONAL DISABILITIES OF TESTATORS. to as perfect a state of mind as he had before ; but Lord Eldon has expressed his dissent from this notion; suggesting the case of the In Baxter v. Abbott, supra, the insanity of the testator's parents and of an uncle was admitted. The question would seem to be determinable only on the evidence of experts in mental disease. Prejudice, however strong or unjust, is no evidence of insanityy if not founded on delusion. Trumbull v. Gibbons, 2 Zabr. 117. So, too, neither pe- culiar beliefs as to a future state (Bonard's Will, 16 Abb. Pr. N. S. 128), nor peculiar beliefs in other matters, without delusion, lire evidence of insanity. Denson v. Beazley,' Ai Texas, 191; Thompson v. Quimby, '2 Bradf. 449. Nor is the existence of foolish and absurd ideas evidence of insanity if the testator was still in the possession of his fac- ulties. Thompson v. Thompson, 21 Barb^ 107. Nor is suicide alone evidence thereof. IClwee V. Ferguson, 43 Md. 479 ; Brooks ». Bar- rett, 7 Pick. 94; Duffield J). Robeson, 2 Har- rington, 375; Burrows ». Burrows, 1. Hagg. 109. The same may be said of the existence of insanitv some years afttr the execution of the will.' Taylor ». Creswell, 45 Md. 422. Moral insanity not impairing the intellect is not fatal to a will, unless accompanied by delusions, Frere ». Peacocke, 1 Robt. Eccl. 442; Boardman v. Woodman, 47 N. H. 120; Forman's Will, 54 Barb. 274; delusion being deemed a true test of insanity ; Boardman v. Woodman, supra; Seamen's Soc. v. Hopper, 33 N. Y. 619. Indeed the finding of insanity upon a commission de lunatico mquirtjido is thought not conclusive against a will. Tay- lor's WilV, Edm. Sel. Cas. 375. See Searles V. Harvey, 6 Hun, 658. So guardianship as of an insane person is but pnnid facie evidence ofinsanity. Crowninshield v. Crowninsliield, 2 Gray, 524; Little v. Little, 13 Gray, 264; Garnett ». Gamett, 114 Mass. 379. And it appears to be the result of authority that evi- dence of insanity considerably prior to the will may be rebuttecl by evidence tuat the misfor- tune was caused "by violent sickness; the presumption of continued insanity being deemed not to prevail in such cases. Hix v. Whittemore, 4 Met. 545; McMasters v. Blair, 29 Penn. St. 298; Halley v. Webster, 21. Me. 461. And the same" is perhaps true where the insanity was caused by an ac- cident, lb.; Swinb. Wills, Pt. 2, § 3; 1 Collins. Lunacy, 55; Shelf. Lunacy, 275; Cartwright v. Cartwright, 1 Phillim. 100; Little v. Little, 13 Gray, 264, 266; Townshend v. Townshend. 7 G'ill, 10. But, of course, the nature of the disease or acci^ dent must be taken into account in determin- ing whether the presumption of continued insanity must prevail. And the question whether the presumption must stand cannot, it should seem, in all cases be decided by the court as matter of law, since it must often depend upon facts the bearing of which can be understood onlv by medical men. In such cases it should be left to the jury to find whether the presumption ought to stand. See Hix ». Whittemore, supra. The foro- 56 going observations consider insanity in the ordinary sense of perverted intellect, mani- fested in common cases by delusion, in dis- tinction from want or decay of intellect. The distinction upon which the separation of lunatics from imoeciles in the a.=yluins for such unfortunate persons is made, must be accepted as sound; and the like distinction should, it is conceived, be kept in mind in declaring the law as to non compotes mtnlisy so far as possible. But it may happen that there is an issue both of weakness and of lunacy, or that the two questions are so blended as to be inseparable Irom each other ; a situation which must, of course, complicate the inquiry. It is apprehended, however, that the distinction stated should still be kept in mind. The jury should be asked at least two questions : whether the decedent was, at the time of executing the will, affected with delusions upon the subject of the dispositions in question, and, if not, whether he had ca- pacity at the time to call to mind the prop- erty to be disposed of, the persons to be benefited or disappointed, and to grasp the dispositions professed to be made. And then there may be another question, in case this second should be answered in the affirmative ; to wit, if, supposing the testator possessed such capacity, the will was still Ins will, or that of another; that is, if undue influence was exercised or fraud practised upon liiin. Upon the mental condition of the testator at the time of executing the will, in the sense {it seems), either of idiocy, decay, or lunacy, it is generally agreed that the at- testing witnesses to the will may state their opinions, though they may not be experts in mental pathology. The reasons for this may not be very satisfactorv. The effect may be to permit the testator Iiimself to express an ■opinion upon his own sanity; for he, of course, has the selection of the attesting wit- nesses. Still the law permits such to express their opinions. Hastings v. Rider, 99 Mass. 622; Barker v. Comins, 110 Mass. 477, 487; Nash V. Hunt, 116 Mass. 237, 251; May ». Bradlee, 127 Mass. 414, 421; Robinson v. Adams, 62 Me. 369;Dewitt v. Barley, 9 N. Y. 371. The attesting witnesses may further state their opinions without stating the facts upon which they base them. Rob- inson V. Adams, supra. It is settled law in Massachusetts that (besides the witnesses to a will) the physician who has been the usual or occasional medical adviser of the deceased, or who attended him in a sickness during which he executed the will, and witnesses who, by special skill and experience, are qualified as experts in the knowledge and treatment of mental diseases, are alone com- petent to give opinions in evidence as to the mental condition of a testator when he executed the wUI. The testimony of other witnesses cannot extend beyond a statement of such facts and declarations manifesting mental condition, as Ihey have kuuwledga at. UNSOUNDNESS OF MIND. *38 strongest mind reduced by the delirium of a fever, or some other cause, to a very inferior degree of capacity ; and he observed that the conclu- sion was not just, that, as that person was not what he had been, he should not be allowed to make a will of personal [qu., or real?] estate (s).-' (s) Ex parte Holyland, 11 Ves. 10. See further as to lunatics and their acts, Lord Ely's case in D. P. in Ireland, 1784; 1 Ridg. P. C. 16; and tlie six appendices; Lord Thurlow's celebrated judgment in Attorney-General v. Parnther, 3 B. C. C. 441; particularly the case of Mr. Greenwood, cited p. 444; 1 Fonbl Eg. 46; see also Niell j). Morley, 9 Ves. 478; Hall ti. Warren, ib. 603; [Chambers v. Yatnian, 2 Curt. 415; and see 2De G. & S. 620.] Hastines o. Eider, 99 Mass. 622, 625 ; Barker V. Comins, HO Mass. 477, 487; Nash v. Hunt, 116 Mass. 237, 251; May «. Bradlee, 127 Mass. 414, 421. In the last case, it was deemed proper, under a suitable explanation by tlie judge, to ask a general witness (guar- dian ot the testator) whether he had ever obser%'ed any fact which led him to inter that there was in the testator an\' derangement of intellect. So in Maine, general witnesses are limited to stating facts. W3'man v. Gould, 47 Me. 159. See Eobinson v. Adams, 62 Me. 369, 410. So in Texas, Gehrke v. State, 13 Texas, 568. In New York, also, general witnesses are permitted in actions at law to state facts oiilv. Dewitt v. Barley, 9 N. Y. 371. See S. "C. 17 N. Y. 340; Vin Pelt V. Van Pelt, 30 Barb. 134, 141 ; Clapp v. Fullerton, 34 N. Y. 190, 195; O'Brien v. People, 36 N. Y. 276, 282. In most of the states, however, general witnesses are al- lowed to give their opinions upon facts stated by them to the court (not otherwise), on the ground of the difficulty of ^separating fact from opinion in respect of evidence concern- ing mental condition. The authorities are collected and examined in State » Pike, 49 N. H. 399, in the dissenting opinion of Mr. Justice Doe, and in Hardy v. Merrill, 56 N. H. 227, adopting the dissenting opinion mentioned, and overruling Boardman v. Boardman, 47 N. H. 120, and State v. Pike, supra. Opinions of medical experts as to sanity, based on hypothetical facts not shown to exist in the particular case, are held inad- missible. In re Ames, 51 Iowa, 596 ; Hurst I). C. R. I. & P. R. Co., 49 Iowa, 76. See Harrison v. Rowan, 3 Wash. C. C. 587; Duffield V. Robeson, 2 Harr. 385; Gibson v. Gibson, 9 Yerg. 329; Potts v. House, 6 Ga. 324; Commonwealth v. Rich, 14 Gray, 335. It seems that, when medical witnesses give their opinions upon facts observed by them- selves, they should, with their opinions, state the facts upon which such opinions are founded. Hathorn v. King, 8 Mass. 371 ; Dickinson v. Barber, 9 Mass. 227; Hastings V. Rider, 99 Mass. 622: Clark v. State, 12 Ohio, 483; Gibson v. Gibson, supra. See Baxter v. Abbott, 7 Gray, 71, 80. Medical books should not be admitted. Ware v. Ware, 8 Greenl. 42. It is not necessary to the statement of an opinion by a physician that he should be an expert in mental dis- eases; it is enough that he is a physician and has attended the decedent as such, even though he was not the decedent's regular 57 medical adviser. Baxter v. Abbott, 7 Gray, 1 There seems to be no distinction in the degree of mental capacity requisite for the execution of a will of real estate, and that requisite for the execution of a will of personal estate. Sloan v. Maxwell, 2 Green, Ch. 563, 566; Winchester's case, 6 Co. 23. Still in those states where the probate of a will in the Probate Court is not conclusive of the title to real estate, it is clear law that though the probate of a will of both real and personal estate is conclusive evidence of the sanity of the testator to make such will of personrtlty, yet it is by no means conclusive evidence of "his capacity to dispose of his real estate. This, however, is upon the principle that the capacity of a party to do one act is not conclusive as to his capacity to do an- other, if his capacity as to the other be triable by a different jurisdiction. Shelf. Lunncv, 66, 67; Wood v. Teage, 6 Barn. & C. 335. In Winchester's case, supra, it is said that it is not sufficient that the testator be of mem- ory, when he makes his will, to answer fa- miliar and usual questions, but he ought to have a disposing memory, so that he is able to matte a disposition of his lands with under- standing and reason; and that is such a memory as the law calls sane and perfect memory. See Combe's case, Moore, 759; 4 Burn's Ecc. L. 49; Harrison v. Rowan, 3 Wash. C. C. 586. It was observed by Sir John Nicholl, in Marsh v. Tyrrell, 2 Klagg. 122, that it is a great but not an uncommon error to suppose, that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of mak- ing a will for any purpose whatever, whereas the rule of law, and it is the rule of common sense, is far otherwise; the competency of mind must bo judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case. See also Blew- itt V. Blewitt. 4 Hagg. 419; Boyd v. Etjy, 8 Watts, 70 : Shropshire v. Reno, 5 J. J. Marsh. 91; McTaggart r. Thompson, 14 Penn. St. 149; Brown v. Torrey, 24 Barb. 583; Hall v. Hall, 18 Ga. 40. A man in whom this fac- ulty of memory is wholly extinguished cannot be said to possess an unclerstanding to any de- gree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by age or disease; he may not be" able at all times to recollect the names, the persons,or the families of those with whom »38 PERSONAL DISABILITIES OF TESTATORS. The disability of coverture ^ diflfers materially from that of infancy, Disability idiocv, or lunacy. It does not arise from natural infirmity, whenra'ai^s- ^^^ ^^ ^^^ creature of civil policy, and may be dispensed ing) with at the pleasure of the contracting or disposing parties he had been intimately acquainted (see Brooks 1). Barrett, 7 Pick. 98); he may at times ask idle question^, and repeat those which had before been asked and answered; and yet his understanding be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of mem- ory an& vigor of intellect to make and digest ali the parts of a contract, and yet be compe- tent to direct the distribution of his property by win. Comstock v. Hadlyme, 8 Conn. 264 ; Rambler ». Tryon, 7 Serg. & R. 95; Kiune e. Kinne, 9 Conn. 105; Converse©. Converse, 21 Vt. 168; Kirkwood v. Gordon, 7 Rich. (S. O:) 474. But in Maryland, by the testa- mentary system of that State, he, who is not competent" to make a valid deed or contract, is incompetent to make a valid will or testa- ment. Davis V. Calvert, 5 Gill & Johns. 269, 2M, 300. See also Coleman v. Robertson, 17 Ala. 84; Minor v. Thomas, 12 B. Men. 106. The question is not so much what was the di'gree of memory possessed by the testator, as. Had he a disposing memory V Was he capable of recollecting the property he was about to bequeath, the manner of distribut- ing it, and the objects of his bounty ? In a word, were his mind and memory suificiently sound to enable him to know and understand the business in which he was engaged, at the time when he executed his will? Stevens u. Vancleve, 4 Wash. C. C. 262, Washington, .T. ; Harrison v. Kowan, 3 Wash. C. C. 385. See Converse v. Converse, 21 Vt. 168; Home V. Home, 9 Ired. 99; Lowe v, Williamson, 1 Green, Ch. 82, 85 ; Sloan v. Maxwell, 2 Green, Ch. 563; Andress v. Weller, ib. 604; Verplanck, Senator, in Stewart v. Lispenard, 26 Wend. 255, 306, 311, 312 ; Comstock v. Hadlyme, 8 Conn. 265 ; Kinne v. Kinne, 9 Conn. 105 ; Brown v. Torrey, 24 Barb. 583 ; Hall V. Hall, 18 Ga. 40; McMasters v. Blair, 2D Penn. St. 298. Something more is re- quired than a mere passive, memory • There must be an active power to collect and retain the elements of the business to be performed for a sufficient time to perceive their obvious relation to each other. Converse v. Con- verse, 21 Vt. 168. It is not then essential to the legal capacity of a testator to make a will, that he should* be capable of managing business generally; it is enough, it, in the making of his will, and at the time of mak- ing it, he understands what he is doing. Kin- ne I). Kinne, 9 Conn. 102. See Hathorn v. King, 8 Mass. 371 ; Comstock i'. Hadlvme, 8 Conn. 254 ; Boyd v. Eby, 8 Watts, 66"; Doi<- nick V. Reichenback. 10 Serg. &. R. 84 ; Go- ble V. Grant, 2 Green, Ch. 630; Chandler v, Ferris, 1 Harrington, 454, 484 ; Kachline v. Clark, 4 Whart. 320; Den v. Johnson, 2 South. 454 ; Shelf. Lunacy, 283. In a case wlv re the will was executed at the time of the testator's being in a feeble and almost unconscious state, only five hours before 58 death, occasioned by a recent accession of disease affecting the brain and producing tor- por, the will was set aside. Harwood v. Ba- ker, 3 Moore, P. C. 282. Mere weakness of understanding is no objection to a man's dis- posing of his property by will ; for courts cannot measure the degree of people's under- standings and capacities, nor examine into the wisdom or prudence of men in disposing of their estates. Duffield v. Robeson, 2 Har- rington, 379; Elliott's will, 2 J. J. Marsh. 340 ; Dornick v. Reichenback, 10 Serg. & K. 84; Osmond v. Fitzroy, 3 P. Wins. 129; Newhouse v. Godwin, 17 Barb. 236. See Clark II. Fisher, 1 Paige, 171 ; Patterson v. Patterson, 6 Serg. & R. 56 ; Tomkins ». Tom- kins, 1 Bailey, 92 ; Stewart v. Lispenard, 26 Wend. 313. "If a man," says Swinburne, Pt. 2, § 4, pi. 3, " be of a mean understanding (neither of the wise sort or the foolish) but indifferent, as it were betwixt a wise man and the fool, yea, though he rather in- cline to the foolish sort, so that for his dull capacity he might worthily be termed gros- sum caput, a dull pate, or a dunce, such a one is not prohibited from making his testa- ment " Shep. Touch. 403 ; Shelf. Luna- cy, 275, 276. For a case where a will was established, though made by a person of very inferior capacitv, see Stewart v. Lispenard, 26 Wend. 255. But see Delafield v. Parish, 25 N. Y. 9, 27. 1 States iu which married women may dispose of general propertv by will : — Alabama. Code, 1876," ch". 1, p. 647. Arkansas. Digest, 1874, ch. 135, p 1012. California. Codes and Stats. 1876, Vol. 1, Title 6, ch. 1, p. 720. Colorado. Gen. Laws, 1877, ch. 64, p. 614. Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 343. Delaware. Rev. Code, 1874, ch. 84, p. 508; Act for Protection of Women, see ch. 76, p. 479. Florida. Bush's Digest, 1872, ch. 118, p. 580. Georgia. Code, 1873, ch. 2, p. 415. Illinois. R. S. 1880, ch 148, p. 1108. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 570. Iowa. Rev. Code, 188U, Vol. 1, Title 15, ch. 2, p. 588. Kansas. Comp. Laws, 1879, ch. 117, p. 1004. Kentucky. Gen. Stat. 1873, ch. 113, p. 832. Maine. R. S. 1871, ch. 61, p. 491. Maryland. Rev. Code, 1878, Art. 49. p. 421. Massachusetts. Gen. Stat. 1860, ch. 108. p. 538. Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1371. Minnesota. Stat. 1878, ch. 47, p. 567. Mississippi. Rev. Code, 1871, ch. 23, p. 378. Mjssouri. R. S. 1879, Vol 1, ch. 7. p. 680. Nebraska. Gen. Stat. 1873, ch. 17, p. 299. COVERTURE. *39 through whom the property is derived, so far, at least, as the Jus disponendi is concerned ; while the contrarj' has been decided * with respect to infanc}', which alone of the other enumerated *39 disabilities could admit of anj' question being raised on the sub- ject (t) : as, of course, any attempt to give a power of disposition to an idiot or lunatic would be abortive. [No contract can enable a married woman to pass the legal interest in her lands at common law by an ordinary will ; since being _(.an„pt ^e excepted out of the statute 34 & 35 Hen. 8, c. 5 (which ex- dispensed ception is preserved by the 1 Vict. c. 26, s. 8), she was, as ^tateTat" we have seen, left subject to her pre-existing disabilities, common law; Every will of a married woman passing a legal estate must —but may operate as an appointment of an use ; but a mere contract *' '" "*^^ ' before marriage, as to specified lands, will be sufficient to give the wife an equitable power (m) to devise, and the legal estate must _oras t,, be obtained by convej'ance from the heir. In the case of equitable personal estate, the will of a married woman will be valid ' T„ 1 . n . 1 /. • — or as to if made in pursuance of an agreement before marriage, or personaltr of an affi'eement made after marriage for consideration (x) , "-^ contract o ° ^ -" or with Ims- or if the husband assents to the particular will and survives band's as- her (y). A married woman can also, in equitj', dispose b}' ^'"^'' will of the fee-simple of real estate (z) , and of the absolute interest in personal estate (a) , which belong to her for her sepa- or property rate use (S), whether vested, or contingent on her sur- separate" use- (t) Hearle v. Greenbanlc, 3 Atk. 897, 2 Ves. 298. [Contra of a power simply collateral, Grange v. Tiving, Bridg. by Ban. 107, 2 Sug. Pow. App. 7th ed.] [(M) Wright)). Lord Cadogan, 2 Ed. 239; and see Churchill v. Dibben, 9 Sim. 447, n.; Dillon V. Grace, 2 Sch. & Lef. 463. As to copyholds, see George v. Jew, Amb. 627. (X) 1 Hop. Hush. & Wife, 170. (y) Willock V. Noble, L. E. 7 11. L. 580, 590, 697; Ex parte Fane, 16 Sim. 406; Ee Eeav, 4Sw.&Tr.215, 31L. J. Prob. 154; Ee Isaacs, 31 L. J. Prob. 158. The assent mar be retracted at anv time before probate, unless it has been given or confirmed after the wife's death, MaaH V. Sheffield, 1 Eob. 364, 10 Jur. 417. (z) Taylor v. Meads, 4 D. J. & S. 597; Pride v. Bubb. L. E. 7 Ch. 64. And the will de- feats the husband's equitable right to curtesy. Cooper v. Macdonald, 7 Ch. D. 288. In Trout- beck V. Boughev, L. E. 2 Eq. 534, the separate use was attached onlv to the annual rents. (a) Eich" B. 'Cockell, 9 Ves. 369: Parker v. Brooke, ib. 583; Fet'tiplace v. Gorges, 1 Ves. .Tr. 46, 3 B C. C. 8; Caton ». Ridout, 1 Mac. & G. 599, 2 H. & Tw. 33; Eowe v. Eowe, 2 De 6. & S. 294. ib) A declaration in the husband's will is sufficient to show that the property is the wife's separate estate, and does not merely operate as an assent, which, as we have' seen, would be Nevada. Comp. Laws, 1873, Vol. 1, Ehode Island. Gen. Stat. 1872, Title 20, ch. 37, p. 200. ch. 152, p. 331. New Hampshire. Gen. Laws, 1878, ch. South Carolina. E. S. 1873, ch. 100, 183, p. 435. p. 482. New Jersey. Eevision, 1709-1877, Vol. 1, Tennessee. Stat. 1871, Vol. 2, Title 3, p. 6-38. ■ ch. 1, p. 1001. New York. N. Y. 1875, Vol. 3, ch. 8, Texas. E. S. 1879, Title 99, p. 712. p. 160. Utah. Comp. Laws, 1876, ch. 2, p. 271. North Carolina. Battle's Eevisal, 1873, Vermont. Gen. Stat. 1862, ch. 71, p. 471. ch. 69, p. 592. Virginia. Code, 1873, ch. 118, p. 910. Ohio. E. S. 1880, Vol. 2, ch. 1, p. 1424. West Virginia. E. S. 1878, ch. 122, Oregon. Gen. Laws, 1843-1872, ch. 64, p. 774. p. 788. Wisconsin. E. S. 1878, ch. 103, p. 649. Pennsylvania. Brightl. Purd. Digest, 1700-1872, Vol. 2, p. 1477. 59 *40 PERSONAL DISABILITIES OP TESTATORS. viving her husband (c) ; since, in respect of such property, *4.0 * she is a feme sole ; and it is immaterial that the legal estate is not vested in trustees, since the husband, and all persons on whom the legal estate may devolve, will be deemed trustees for the per- — and its ^^"^^ ^° whom the wife has given the equitable interest (rf ) . produce and And this Separate trust of the principal attaches on all the tkins?" "' produce or accumulations of such principal (e) . Savings Savings out of an allowance made by a husband for the separate out of maintenance of his wife are in equity treated as her separate estate (/) ; of which, therefore, she may dispose by will. Pin-money, gyj- gayings out of pin-money are said to belong to the hus- band (g) ; on the principle that pin-money is an allowance made for a particular purpose, and, if not applied for that purpose, reverts to the donor.] A woman, whose husband has been banished for life by act of parlia- ment {h) , may dispose by will of her real and personal es- cxile niav* *^*^ ' ^^i'' ^® ^^ ^^ civilly defunct, she is restored to the nialie a will, rights and privileges of discoverture. [This doctrine was —or wife of l^eld to be applicable to the case of a felon-convict trans- a feion-cou- ported for life, so as to enable his wife to dispose by will ™)fte™for °^ personalty acquired by her after the conviction (i) , al- iife. though the felon had received a conditional free pardon (k)'] ; insufficient if the liusband died first, Ee Smith, 1 Sw. & Tr. 125, 27 L. J. Prob. 39. A dec- laration of trust by the husband in favor of his wife for her separate use may be either ex- press (Baddeley v. Baddeley. 9 Ch. U. 113) or implied by his acts, as, where with his assent slie carries on a separate business, and the profits and stock in trade are treated as her separate property, Haddon v. Fladgate, 1 Sw. & Tr. 125, 27 L. J. Prob. 39 ; Ashworth v. Outrani, 5 <,'h. D. 923; and sec Married Women's Property Act, 1870. Although a married woman may have no power to make a will, it .seems that she may by "writing " under 1 Vict. c. 26, s. 20, revoke one alreadv made. Hawksley i). Barrow, L. R. 1 P. & D. 147, 152. (r) Bishop v. Wall, 3 Ch. D. 394. (d) See Hall v, Waterhouse, 5 GifE. 64, as to realty; and cases in n. (a) as to personalty. ' (e) Fettiplace «. Gorges, supra; Gore )). Knight, Pre. Ch. 255, 2 Vern. 535; Ashlon v. McDougal, 5 Beav. 56; Uarkin v. Darkin, 17 Beav. 578; Humphery i'. Richards, 25 L. J. Ch. 442; Scales v. Baker, 28 Beav. 91. But the wife's dealings with the produce may show an intention to put an end to the separate trust, W]"ight -y. Wright, 2 J. & H. 647. (/) Brooke v. Brooke, 25 Beav. 342; Re Tharp, 3 P. D. 76 (separate allowance to wife of lunatic). Secus at law. Messenger v. Clark, 6 Exch. 388. (fy) Jodrell v. Jodrell, 9 Beav. 45; Howard v. Digby, 2 CI. & Fin. 634; and per Wood. V.-C., Barrack v. M'Culloch, 3 K. & J. 114. See, however, Sugdeu's Law of Propertv, p. 163, coTs^m] (k) Countess of Portland v. Prodgers, 2 Vern. 104. [The report speaks only of a bequest of legacies. (>) Re Martin, 2 Roberts. 405, 15 Jur. 686 ; Re Coward, 4 Sw. & Tr. 46, 34 L. J., Prob. 120. In the latter case sentence of death had been recorded, so that the felon was attainted, and being thus dead in the eye of the law, was incapable of claimingjuce mariti (per Wood, V.-C, Gough V. Davies, 2 K. & J. 627). However, the court did not take this ground, but relied expressly on Ex parte Franks, 1 M. & Sc. 11, 7 Bing. 762, where the felon was trans- ported for a term of years. See also Atlee v. Hook, 23 L. J. Ch. 776 (where a legacy be- queathed, after the conviction, to the wife of a felon transported for life, Ijut so far as appears not attainted, was ordered to be paid to her); and per Romilly, M. R., Re Harrington's Trust, 29 Beav. 24. Attainder for felony is now abolished and the status of a felon-convict regulated by 33 & 34 Vict. c. 23, as to which see post. (fc) Under 5 Geo. 4, c. 84, s. 26, a convict was entitled to retain against the crown and to recover in the courts of the United Kingdom personalty acquired bv nim after receiving such a pardon. Gough v. Davies, 2 K. & J. 623. But see and consider Re Church's Will, 16 Jur. B17; Coombs 7'. Queen's Proctor, 2 Roberts. 547, 16 Jur. 820(transport»tioo fortermofyeai-s), and see now the act referred to in the last preceding uute.] 60 COVERTURE. *41 and when a felon was transported for a definite term of years, his marital rights (and therefore it * should seem his wife's con- *41 jugal disabilities) were suspended for that period (/).^ (I) Ex parte Franks, 1 M. & Sc. 11, 7 Bing. 762 [where it was held that the wife could be made baiilirupt. But where the wife of a felon transported for years had died intestate in tlie husband's lifetime, it was held that the crown and not lier next of kin was entitled to her personal property acquired after the conviction. Coombs v. Queen's Proctor, 2 Roberts. 5i7, 16Jur. 820.] 1 [The following note prepared as text by the editor of the last American edition, will show the common-law doctrine of testament- ary disability by coverture; much of which, however', is now obsolete in many states :] The English Statute of Wills, 32 Hen.So. 1, author- ized every person having lands, &c,, to devise them; and it seems to have been the better opinion on the construction of that statute that a married woman could not make a valid will of lands. Calverlve's case, Dver354b; Mar- ston «. Norton, 6 S. H. 211. But as " divers doubts, questions, and ambiguities" had arisen, or were apprehended on that and other points, the statute of.34& 35 Hen. 8, c. 5, was made to remote them; and this last statute (§ 14) expressly prohibits such devises by married women. Osgood v. Breed, 12 Mass. 525. A married woman cannot, at common law, make a will of personal, any more than of real estate, except under a settlement, or maiTiage contract, or by her husband's license, 2 Black. Comm. 4U8; 4 Kent, 506; Steadman v. Powell, 1 Addams, 68; Hood v. Archer, 1 M'Cord, 225; New- lin V. Freeman, 1 Ired. 514; 1 Williams, Ex. {6th Am. ed.) 53; for all her personal chattels are absolutely his; and he may dis- pose of her chattels real, or shall have them to himself, if he survives her. It would therefore be extremely inconsistent to give her a power of defeating that provision of the law, bv bequeathing those chattels to others. 1 Williams, Ex. (6th Am. ed.) 53; Ognell's Case, 4 Co. 51 b ; 2 Black. Comm. 498. Since the husband has no beneficial interest in the personal estate which the wife takes in the character of executrix, and as the law permits her to take upon herseh' that office, it enables her, in exception to the general rule that a married woman cannot dispose of property, to make a will in this instance, without the consent of her husband; restricted, however, to those articles to which she is entitled as executrix. Scammell v. Wilkinson, 2 East, .552; 1 Williams, Ex. (6th Am. ed.) 54 ; Cutter V. Butler, 5 Fost. 363. The effect of such an instrument is merely to pass, by a pure right of representation, to the testator or prior owner, such of his personal assets as remain outstanding, and no beneficial interest which the wife may have in any part of them; and with respect to the assets which may have been received by the feme executrix, during the marriage, and not disposed of, they imme- diately become the husband's pi'operty, and are not affected by the will. Hodsden v. Lloyd, 2 Bro. C. C. 534, 543; Scammell v. Wilkinson, 2 East, 556, 567; 1 Williams, Ex. (Btli Am. ed.) 54. As the husband may waive the interest which the law bestows on him, he may empower the wife to make a will to dis- pose of her personal estate. Osgood v. Breed, 12 Mass. 525, 632 ; Estate of Wagnei', 2 Ashm. 448; Newlin r. Freeman, 1 Ired. 514; Fisher V. Kimball, 17 Vt. 323; 2 Black. Comm. 498; Emery v. Neighbor, 2 Halst. 142; Cutter v. Butler, 5 Fost. 354, 355. In Osgood v. Breed, 12 Mass. 532, Jackson, J., spealiingof the will of personal property by a mari'ied woman with the consent of her husband, said : " Upon a bequest by her of money or other chattels, his assent alone will make it valid, because he alone is interested to question her authority. The gift, if it is effectual, is his gift; and the property passes from him." Thus a husband may assent to his wife's will, and such assent entitles the wife's executor to claim such articles of her personal estate as would have been her husband's as ad- ministrator. 1 Williams, Ex. (6th Am. ed.) 54; 1 Rop. Husb. and Wife (2d ed.), 170; George v. Bussing, 15 B. Mon. 558. But m order thus to establish the will, a general assent that the wife may make a will is not sufficient; it should be shown that he has consented to the particular will that .'^he has made. Rex v. Bettesworth, 2 Strange, 8.)l; 1 Williams, Ex. (6th Am. ed.) 54; 2 Black. Comm. 498; Cutter v. Butler, 5 Fost. (N. H.) 357; George v. Bussing, 15 B. Mon. 558; and it has been held that his consent should be given when it is proved, Henlev v. Phillips, 2 Atk. 49; Swinb. Pt. 2, § 9, pi 10, and that he may therefore revoke his consent at any time during his wife's life, or after her deatii before protate. Swinb. Pt. 2, § 9, pi. 10; 1 Rop. Husb. and Wife, 170; 4 Burn's Ecc. L. 52; George v. Bussing, 15 B. Mon. 558. In Estate of Wagner, 2 Ashm. 448, it was held, that the husband may revoke his assent to a will made by his wife of her personal es- tate; but it must be done before probate of the will. But the better opinion appears now to be, that if the husband acts upon the will or agrees to it, after the death of the wife, he is not at liberty to retract his assent and op- pose the probate. Cutter u. Butler, 5 Fost. 357; 1 Rop. Wills. 23; Maas v. Sheffield, 10 Jur. 417. The assent of the husband may be implied from circumstances. Cutter v. But- ler, 5 Fost. 357, 358. If the will is in the handwriting of the husband, this is evidence of his assent. Grimke v. Grimke, 1 Desaiis. 366. See Smelie v. Reynolds, 2 Uesaus. 66; 1 Rop. 169 ; Lov. Wills, 266. And when the will is made in pursuance of an express agree- ment or consent, it is said that a little proof will be sufficient to make out the continuance of the consent after her death. 1 Williams, 61 *41 PERSONAL DISABILITIES OF TESTATORS. A will made during any personal disabilitj', of course, is not [since Subsequent the act 1 Vict. c. 26] rendered valid by the fact of the tes- of 'wm^OTis^ tator having outlived such disability, unless its removal were Daily void, followed by some act of confirmation or adoption amounting Ex. (6th Am. ed.) 55. See Smelie v. Rey- nolds, 2 Desaus. 66. This assent on the part of the husband is no more than a waiver of his rights as his wife's administrator. 1 Rop. Husb. and Wife, 170. It 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 the coverture. Stevens v. Bag- well, 15 Ves. 156. A married woman maj', without the assent of her husband, dispose by will of her separate personal estate, settled upon her, or held in trust for her, or the sav- ings of her real estate given to her separate use, whether the instrument under which she takes it determines as to the power of dispo- sition or not. Rich v. Cockell, 9 Ves. 375, 376 ; and this she may do without the inter- vention of trustees, for the power is incident to such an ownership. 2 Kent (5th ed.), 170, 171; Kettiplace v. Gorges, 1 Ves. Jr. (Sumner's efl.) 46, 48, 49, and notes; S. C. 3 Bro. C. C. 8, and ndtes; Rich ». Cockell, 9 Ves. 375; Tappenden v. Walsh, 1 Phillim. 352; Grigby v. Cox, 1 Ves. Sen. 518; Braham ». Burchell, 3 .\ddams, 243; Peacock (?. Monk, 2 Ves. Sen. 190 ; Picquet v. Swan, 4 Mason, 455; West v. West, 3 Rand. 373; Barnes v. Irwin, 2 Dallas, 199. The princiiile upon which the above doctrine is foundea is this: that when once the wife is permitted to take personal property to her separate use, as SL feme sole, she must so take it with all its privileges and incidents, 6ne of which is the .JUS disponendi. 1 Williams Ex. (6th Am. ed.) 61. And this rule prevails without regard to the circumstance whether the property be in possession or reversion. Sturgis V. Corp. 13 Ves. 190; Headen v. Rasher, 1 M'Glell. & Y. 89. And when she has such a power over the principal, it extends also to Its produce and accretions, e.g. the savings of her pin-money. Gore v. Knight, 2 Vern. 535; Herbert v. Herbert, Prec. Ch. 44; Picquet v. Swan, 4 Mas. 454, 455. Nor does it make any difference whether the property be given to trustees for the wife's 540, it was decided that a mere agreement entered into before marriage by a female with her intended husband, that she should have power to dispose of her real estate during coverture, will enable her to do so; and it is not necessarv in such case that the legal es- tate should lie vested in trustees. This doc- trine has received the approbation of the Supreme Court of Pennsylvania. West v. West, 10 Serg. and R. 447. Whether a mar- ried woman can make a de\'ise of real estate which has not been conveyed to a trustee, but of which she and her husband are seised in her right, was made a question and discussed, but left undecided in Holman v. Perry, 4 Met. 492, 497. Equity will carry into effect the will of a married woman disposing of her real estate in favor of her husband (see Hol- man V. Perry, 4 Met. 492, 495; Picquet v. Swan, 4 Mas' 443. But see Morse v. Thomp- son, 4 Cush. 562), or "other persons than her heirs at law, provided the will be in pur- suance of a power reserved to her in and by the ante-nuptial agreement with her hus- band. Bradish v. (Jibbs, 3 Johns. Ch. 523; 2 Kent, 172. But in the absence of any agreement between them, that the wife should hold her personal property to her separate use, a testamentary disposition by her of such estate in favor of her husband has been held void, though made with his assent. Hood i'. Archer, 1 M'Cord, 225, 477 ; Newell's case, 2 M'Cord, 453. A power to make a testamen- tary disposition of her estate may be conferred upon a married woman by a settlement either before marriage or subsequently thereto. 4 Kent, 505. It may emanate either from her husband or from a third person. A post-nuptial settlement, made by a stranger upon the wife, is good, unless expressly dis- sented from by the husband, ticquet v. Swan, 4 Mas. 443. This subject has been discussed in a recent case, Holman v. Perrv, 4 Met. 492, in Massachusetts. The impoV- tant facts were these : A woman, before mar- riage, conveyed to a trustee, with the assent of her intended husband, all the property, real and personal, which she then had, or might acquire after marriage, to be held by such trustee for her sole and separate use, and re- eeparate use, or, without the intervention of / served to herself in the mstrument of con- trustees, to the wife herself, for her own sep- arate use and benefit. , See Braham v. Burch- ell, 3 Addams, 263. For in the latter case a court of equity would decree the husband to stand as a trustee to the separate use of the wife. Tappenden v. Walsh, 1 Phillim. 352; Eollfet). Budder, Bunb. 187; 1 Williams, Ex. (6th Am. ed.) 62. A married woman may make a testamentary disposition of her real estate under a power by wav of execution of such power. 2 Kent, 17"l, 172: 4 Kent 50, 506; Bradish v. Gibbs, 3 Johns. Ch. 523; Anderson ». Miller, 6 J. J. Marsh. 573. lu Bradish v. Gibbs, 3 Johns. Ch. 523, 62 veyance, full power to dispose of all such property by will or otherwise; after maiTiage she purchased and took a deed of real es- tate, which slie, jointly with her husband, conveyed to the same trustee, for her sole and separate use ; she afterwards executed her last will, therebv disposing of all the real estate, which had been reserved by her, and also of all such real estate as she might die seised and pos.'iessed of, which she might thereafter purchase. There was a. devise in the will, of a part of the estate reserved by her, in favor of her husband. After the exe- cution of the will, she purchased real estate DEVISES BY ALIENS. *42 in law to [re-execution (m) . Before the act] the delivery by a widow of an instrument executed during coverture into the custody of another, as the will of the depositor, was held to be a suffl-cient republication of a will of personal estate (n) . [At common law, a] devise of lands by an alien was at least void- able (o) ; the crown being entitled, after office found, to Devises by seize them in the hands of the devisee, as it might have aliens, done in those of the alien during his life. Until office, the lands of an alien remained in him with all the incidental qualities belonging to such estates ; on which ground it has been held, that an alien tenant in tail in possession might suffer a common recovery (p) ; and he might, of course, execute its substitute, an enrolled conveyance, and thereby bar the issue in tail and remainders : and, by parity of reasoning, the will of an alien vested his defeasible title in the devisee {q) ; though, if he died intestate, the land escheated to the crown, or other lord, pro de- feciu tenentis, without any inquest of office, because an alien could have no heirs (r). [But by the Naturalization Act, 1870 (s), " real and per- sonal property of every description maj' be taken, acquired, held, and disposed of by an alien in the same manner as bj* a natural-born British subject ; and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural- born British subject. Provided that . . . this section shall not af- fect (t) any estate or interest in real or personal property to which any person has or may become entitled either mediately or immedi- ately in possession * or expectancy in pursuance of any disposi- *42 tion made before the act, or in pursuance of any devolution by law on the death of any person dying before the act."] Persons attainted of high treason [were formerly] incompetent to devise their lands, since, by several old statutes (m), the Devises by- real estates of a traitor were, by the attainder, ipso facto f™^|"J? ^'^^ vested in the crown. —realty. (m) 1 En. Ca. Ab. 171, pi. .3; [Price v. Parker, 16 Sim. 198; Trimmell v. Fell, 16 Beav. 537; Willoclc v. Noble, L, R. 7 H. L. 580.] (m) iVIiller v. Bi-own, 2 Hagg. 209. (o) See Shep. Touch. 404. (p) 4 Leon. 84. (?) See Shep. Touch. 404. (r) Co. Litt. 2 b. [(«) 33 Vict. c. 14, s. 2 : not confined to alien friends, as 7 & 8 Vict. c. 66, a. 3. (t) J. e., shall not validate or invalidate, Sharp v. St. Sauveur, L. K. 7 Ch. 343.] («) See 4 Jarm. Conv. 2d ed. 186. of which she was the legal owner at her de- pass under the will was raised, but not de- cease. The court held that as to the real cided. There is a distinction between the estate which was convej-ed to the trustee, power of a mariied woman to dispose of her under the ante-nuptial a^creement, and as to separate real estate, and her power to dis- the real estate which the testatrix afterwards pose of her separate personal estate, by will, jointly with her husband conveyed to the As to the personal estate, she has the .;us djs- trustee, for her sole and separate use, she had ponendi as a necessary incident to a separate the power to dispose thereof by will; and estate; but a married woman cannot devise that the will ought to be allowed and ap- her real estate except under a power. See proved, so far as would be necessary to give Holman ». Perry. 4 Mel. 496, per Dewey, .1. ; effect to her disposal of the same. The ques- Osgood v. Breed, 12 Mass. 525 ; Marston v. tion whether the real estate which she pur- Norton, 5 N H. 205. chased after the execution of her will would 63 *43 PERSONAL DISABILITIES OP TESTATORS. The lands of all persons attainted for petit treason and felony, for- merly escheated to the king or other feudal lord (x) , bj- reason of the corruption of blood consequent on attainder, which of course prevented the descent to the heir ; and the devises of such persons were absolutely void, or rather, by the better opinion, were voidable, as in the case of an alien (y) ; and such [until 1870 was] still the case as to persons not entitled to the benefit of the statute 54 Geo. 3, c. 145, which provided, that no attainder for felony, except in cases of high treason, or of the crimes of petit treason (afterwards abolished bj- statute (z) ) , or mur- der, or of abetting, procuring, or counseEing the same, " shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person or persons, other than the right or title of the offender or offenders, during his, her, or their natural lives only ; and that it shall be lawful to every person or persons to whom the right or interest of any lands, tenements, or hereditaments, after the death of auj' such offender or offenders, should or might have appertained, if no such attainder had been, to enter into the same." There was some ground to contend, that the concluding words of this provision enabled persons convicted of, or rather attainted for, any other than the excepted offences, to alien their real estate bj^ will, [and this ground was strengthened by the statutes (a), which in all cases where a title had accrued to the crown by escheat for want of heirs,- or by reason of any forfeiture, empowered the sovereign (notwithstanding the stat- ute (b) which had restrained the alienation of the roj^al demesnes in general to leases for thirty-one years) to make grants to any person for the purpose of restoring the land to the family of the former owner, or carrying into effect anj- grant, conveyance, or devise of it which he might have intended to make. *43 * But the point is now of the less importance, since, by stat. 33 & 34 Vict. c. 23, attainder (which, and not the conviction, caused the disability) is thenceforth abolished, and express jyovisions (presently noticed) are made regarding the real estate both of traitors and felons.] Treason and felony incapacitated persons from making a will of Wills of personal estate, which [if vested (either in possession or re- traitors and maiuder),] became forfeited to the crown on conviction (c) ; ^ °"^ ' an(^ this incapacity extended to a felo de se, who was, how- — personalt}'. gyer, capable of devising his real estate, as there was in such [Ix) Subject to the right of the crown to hold the lands vested in the person attainted at the period of the attainder for a year and a day. 1 Steph. Com. 417.] (V) Shep. Touch. 404. (2) 9 Geo. 4, c. 31, s. 2. [■(ffl) 39 & 40 Geo. 3, c. 88, s. 12; 47 Geo. 3, sess. 2, c. 24; 69 Geo. 3, c. 94; 6 Geo. 49, c. 17. (b) 1 Ann. st. 1, c. 7, s. 6J (c) 2 Bl. Comm. 499; Re Thompson's Trusts, 22 Beav. 506; Re Bateman's Trust, L. R. 15 En. 355. Contra as to goods which he has as executor of another, of which he may make a will. Re Bailey, 2 Sw. & Tr. 156, 31 L. .T. Prob. 178. Contra, also, as to contingent inter- ests, where the felony was not capital, Stokes v. Holden, 1 Keen, 145 ; Barnett i'. Blake, 2 Dr. & Sm. 117, 128; and' as to personalty acquired by him after a conditional free pardon, Gough 17. Davies, 2 K. & J. 623. 64 TRAITORS AND FELONS. *44 case no attainder (d). In every case of felony in which sentence of death was not recorded, [that is to say, in which there was no attain- der,] the prisoner's competency to devise or otherwise dispose of his real estate was not affected (e) . [But the law as to both real and personal property is now regulated by Stat. 33 & 34 Vict. c. 23, which enacts (s. 1) that after Attainder the passing of it, " no confession, verdict, inquest, convic- and forfeiture tion, or judgment of or for any treason, or felony, or felo de felony abol- se, shall cause any attainder or corruption of blood, or any '*''^''' forfeiture or escheat ; provided that nothing in this act shall affect the law of forfeiture consequent on outlawry." The statute, then, after defining (s. 6) "convict" to mean any person against whom sentence of death, or of penal servitude, shall have been pronounced or recorded upon any charge of treason or felony ; and after providing (s. 7) that when any convict shall die, or become bankrupt, or shall have suffered his punishment, original or commuted, or have been pardoned, he shall thenceforth, as to. the provisions thereinafter contained, cease to be subject to the act, enacts (s. 8) that no action or suit for the recovery of any property shall be brought by any convict during the time that he is subject to the act, and that every convict shall be incapable dur- ing that time of alienating or charging any property^ or of making any contract, save as thereinafter provided. Sect. 9 provides for the ap- pointment of an administrator, in whom, upon his appointment, (s. 10) all the real and personal property (including *choses *44 in action) to which the convict was at the time of his convic- tion, or shall afterwards, while subject to the act, become or be enti- tled, vests all the convict's estate and interest. And the adminis- trator has fuU power (s. 12) to let, sell, and mortgage the property, and thereout (ss. 13 to 17) to pay costs, debts, damages, &c., and to make allowances for the support of the convict and his family. Subject thereto, the administrator is (s. 18) to hold the property in trust, and may accumulate the mcorsnz, for the benefit of the convict and his heirs, or legal personal representatives, or such other persons as may be lawfully en- titled thereto, according to the nature thereof ; and the same is to revest in the convict on his ceasing to be subject to the act, or in his heirs or representatives, or such other persons. The convict is to be entitled as against the administrator to all property acquired by him while at large under license, and, during the same time, his disabilities under s. 8 are suspended (s. 30). Subject, therefore, to the temporarj' estate of the administrator, and to the charges imposed bj- the act, the real and personal prop- ^ffget of the erty of a traitor or felon remains his own, and he may dis- abolition. pose of it by his will ; for the prohibition against alienation during the (d) Norris v. Chambres, 29 Beav. 258. (e) Kex V. Willes, 3 B. & Aid. 510, 3 Inst. 55; Rex v. Bridger, 1 M. & Wei. 147; Ee Har- rop's estate, 3 Drew. 726. VOL I. 5 65 *45 PERSONAL DISABILITIES OF TESTATORS. time that he is subject to the act can have no application to his will, whensoever executed ; a will being no alienation until the testatoi-'s death.] The statute of 1 Vict. c. 26, has left all personal disabilities affecting Effect of the testamentary power as they stood under the pre-existing 1 Vict. c. 26 law ( f), with the exception of infancy, which formerly (we upon the dis- , ^ \ ,■■, ^- -4. i. c t • t abilities of have seen) did not mcapacitate persons or a certain age from testators. bequeathing personal estate ; whereas that statute (s. 7) has . provided, in general terms, that no will made by anj- person under the age of twenty-one years shall be valid ; thus destroying at a blow the long-existing distinction between wills of real and wills of personal estate in regard to the age of testamentary competencj'. The statute has even carried this principle so far as to abolish, in regard to infant testators, the paternal power of appointing guardians, conferred by the act of 12 Car. 2, c. 24 ; so that a person under age is now not compe- tent by will to appoint a guardian to his children. In short, the disa- bility of infancj' affects the testamentary power, under the new law, no less universally than it does the power of disposition hy deed ; and, *45 with respect to the appointment of guardians just referred * to, is even more extensive {g) , for the power of nominating guar- dians by deed given to an infant fathet by the statute of Charles seems to be stiU in force ; and this will go far towards preventing any prac- tical inconvenience which might otherwise have resulted from the abolition of the power of infant fathers to appoint guardians hy will. It may not be quite superfluous to remark, in conclusion of this „ , , branch of the subject, that in computing the age of a person computing for testamentary or other purposes, the day of his birth is in- ^^' eluded : thus, if he were born on the 1 6th of January, 1800, he would have attained his majority on the 15th of January, 1821 (h) ; and as the law does not recognize fractions of a day (i) , the age would be attained at the first instant of the latter daj'. [( /) See as to coverture Noble v. Willock, L. E. 7 H. L. 580. But as to revocation bj' " writing," see Hawksley «. Barrow, L. K. 1 P. & D. 152.] (f/) Infants, too, of the age of fifteen, are, in certain cases, competent to convey gavelkind lands by feoffment. (J.) Herbert v. Torball, 1 Sid. 162, Raj-m. 84, [8 Vin. Dev. G. pi. 20: Anon. 1 Salk. 44; Howard's case, 2 ib. 625. But a person attains "his 25th year " when he becomes 24 years old. Grant v. Grant, 4 Y. & C. 256. (s) See Lester v. Garland, 15 Ves. 257.] 66 WHAT MAY BE DEVISED OR BEQUEATHED. *46 CHAPTER IV. WHAT MAT BE DEVISED OE BEQUEATHED. The power of testamentary disposition extends to all interests in real and personal estate, which, at the decease of the testator, would, if not so disposed of, devolve to his general real, or dispose o™^^ personal representatives (a), whether the testator be the whatever legal or the beneficial owner only, or unite in himself both voire upon these characters.! Tried by this rule, it is obvious that a •"^ general •' ' represent- devise or bequest by a joint tenant of real or personal estate atives., is void, in the event of the testator dying in the lifetime of joint estates his co-proprietor, whose title bj' survivorship takes prece- not devis- dence of the claim of the devisee or legatee, as it would of that of the heir or administrator, of the pre-deceased joint tenant, in case he had died intestate (b) . If, on the other hand, the testator sur- vives his companion in the tenancy, the efficacy of the devise or bequest formerly depended on the nature of the propertj' ; in the case of a free- hold interest, the devise was void as not authorized by the statute 34 Hen. 8, c. 5, the testator not having a sole estate when he njade his will ; and, by paritj' of reasoning, any divided part or share which, after the execution of the will, he might have acquired on [a severance of the jointure, or] a partition of the property, would not pass there- by (c) . But this reasoning, it is obvious, did not apply to leasehold property or other personal estate ; a future interest in which, devolving by survivorship or acquired b}' partition, would, like all other after- acquired personalty, pass by a general or residuary bequest ; and such, ivi (a) Or, if he become entitled by descent, on the heir or customary heir of his ancestor, let. c. 26, s. 3. And see Ingilby ». Amcotts, 21 Beav. 585.] (4) Co. Litt. 185 a. (c) Swift d. Neale v. Roberts, 1 W. Bl. 476, 3 Burr. 1488. 1 Canfield v. Bostwiclt, 21 Conn. 550 ; Gold 391; Wright ». Wright, ib. 411 : Lawrence i-. V. Judson, ib. 616 ; Brimmer v. Sohier, 1 Bayard, 7 Paige, 76 ; Variclc v. Edwards, 1 Cush. 118; Waitt v. Belding, 24 Piclc. 129, Hoif. Ch. 383, 395-405; Pond v. Bergh, 10 136 ; Loveren v. Lamprey, 2 Post. 431; CoHin Paige, 141. But in the case of a possibility, it V. Collin, 1 Barb. Ch. 630; Van Vechten v. the person to take be not ascertained, there Van Veghten, 8 Paige, 104; Fahmey v. Hoi- can be no valid devise thereof, 4 Kent, Com. singer, 65 Penn. St. 388 ; Scott v. Guernsey, 262. Vested estates are. of course, devjsable, 60 Barb. 163 ; S. C. 48 N. Y. 106. All con- though liable to be defeated by the non-per- tingent estates of inheritance, including formance of conditions subsequent, or the springing and executory uses and possibili- happeniiig of subsequent events. Pinburv v- ties, coupled with an interest, if the person to Elkin, 1 P. Wins. 563, 666; Winsloww. Good- take be ascertained, are devisable, 4 Kent, win, 7 Met. 363; Doe d. Ingram ». Girard, 1 Com. 261; Whitfield v. Fausset, 1 Ves. Sen. Houst. 276; 1 Eedf. Wills, 390 (4th ed.). 67 *48 WHAT MAY BE DEVISED OK BEQUEATHED. it will be remembered, is now the rule with respect to real estate de- vised by wills made since the year 1837. In regard to such a wiU, therefore, it is unnecessary to inquire whether the devising joint tenant had become solely seised by survivorship at the period of its exe- *47 * cution ; it is enough that he had acquired a devisable interest in the estate at the time of his decease {d ) ^ Where the several co-prbprietbr's ' are tenants in common, or copar- ceners, each has [a sole estate, and therefore] an absolute power of testamentary disposition over his or her undivided share. ■ An executory interest in real or personal estate was (and of course Execuwry still is) disposable by will, if the nature of the contingency when devis- *"^ which it is dependent be such that the interest does not able. cease with the life of the testator ; in other words^ if it be descendible or transmissible. This doctrine, in regard to real estate, was recognized in Goodtitle v. Wood (e), and was iinally established in Roe d. Perry v. Jones (/), where an estate was devised by will (on failure of certain limitations to the younger sons of A.) to the only son of A. in fee, in case he should have but one son who should live to attain twenty-one. A. had an only son B., who, in the lifetime of his father, after; he had attained his majority, made a will, devising all his estate in possession or reversion ; and the question was, whether this will operated to pass the executory use which B. had during his *48 father's lifetime. * The court of K. B. held that it did; Lord Kenyon, C. J., drawing a distinction between such an interest and a mere possibility, like that which an heir has from his ancestor. (d) The doctrine respecting joint tenancies comes under consideration in practice most frequently in regard to trust estates -which, where vested in a plurality of persons, are com- monly limited to them as joint tenants, on account of the obvious convenience attending the devolution of the estate to the survivors or survivor for the time being, instead of the title to the respective shares being deducible through the representatives of the several deceased trustees. The testacy or intestacy of any trustee, who at his decease leaves a co-trustee (be- tween whom and himself there existed a joint tenancy), it is unnecessary to inquire into; but in case he were the sole trustee at his death, his will, if he left any, should be examined, in prder to'ascertain whetlier it contains an express device of, or a devise capable of operating on freehold Interests vested in the testator as trustee ; and if the will (being made before the year ]8.38) were subject to the old law, it would be also proper to sefe that the sm*viving trus- tee had become solely entitled by sur\'ivorship before the making of the will. Where the deceased trustee was a female under covertui-e, or was uninterruptedly subject to any other per- sonal disability affecting the testamentary capacity, of course the necessity of an inquiry' into the existence of a will is superseded. It is" then only requisite to ascertain who is the common- law heir (as to freehold interests), cir the customary heir (as to copyholds) of the deceased trustee ; though it is to be observed that, if the trustee in question were a man'ied woman, and the subject of the trust were a freehold of inheritance, the legal title would not be complete without the junction of her surviving husband, in case she had had issue by him capable of inheriting the property; the husbaftd having, under such circumstances, an'estate for life as tenant by the curtesy. This is a point which is sometimes overlooked. Dower also attaches on a mere legal ownership, but as it is uot an Actual estate, being only a legal right, the enforcement of which Would be restrained in Equity, the concurrence of the widow of a deceased trustee is never required. (e) Willes, 211; S. C. cited 3 T. E. 94. (/) 1 H. Bl. 30; S. C: in B. R. 3 T. R. 88; [and see Moore ». Hawkins, 2 Eden, 342, Fearne, C. R. 366 ; Ingilby v. Amcotts, 21 Beav. 685, which also explains the sense in which " descendible " is to be here understood.] 1 4 Kent, 513. 68 ■WHAT MAY BE DEVISED OE BEQUEATHED. *49 BuUer, J., observed, that if it was such an interest as was descendible^ it was also devisable, as they must both be governed by the same principle. The converse of the proposition of the learned judge is equally true, namely, that an interest which is not transmissible cannot be devised. An instance of this species of interest occurred in Doe v. Tomkinson {g) , where a testator devised his real estate to A. and B. and the survivor of them, and to be disposed of by the survivor as she might, by will, devise. A. survived B., having in the lifetime of B. made a will, de- vising her contingent interest -, but which interest was held not to pass by the devise, on the ground that the person who was to take was not- in any degree ascertainable before the contingency happened. The reasoning of the court merely assigns a ground for the decision which is common to executorj' interests of every description ; for it is the uncer- taintj', who wiU become entitled, which renders the interest contingent. The true ground, it is submitted, is, that the contingency, depending on sur^'ivorship, necessarily takes effect in the lifetime of the testator, and, therefore, the interest cannot be the subject of a devise-, which is inoperative until death (h) . If the reason assigned by the court of K. B. in Doejj. Tomkinson were the correct reason, it.would follow that, in the case of a limitation to several persons, and the heirs of the one first d3'i'ng, such interest would, under the old law, not be devisable,' since it differs from the limitation which occurred in that case, only in regard to the nature of the * contingency, the person to *49 take being, in the one case no less than in the other, wholly unascertainable before the contingency happens ; and yet the conclusion that such an interest may be disposed of by will, seems indisputable. The point is not now of much practical importance, as it cannot arise under a wiU made since the year 1837, the statute of 1 Viet. c. 26 having expressly provided (no doubt with a special view, to meet- the particular case now under consideration) that the testamentary power conferred by it "shall extend 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 have become vested." (0) 2 M. & Sel. 165. f(A ) It is presumed that the meaning of this passage in the text is, that the interest at the date of the will being contingent, but the interest that the will would actually operate upon being vested, there is in fact a new interest acquired after the date of the will, which cannot- pass by it; in other words, the will is re-yoked oy. the alteration of estate consequent upon the happening of the contingency. To this view the case of Jackson v. Hurlock, 2 Ed. 263, seems directly opposed. In that case a testator devised lands, then conveved them to uses which were to arise on his intended marriage, and under which he would tate a remainder in fee; then made a codicil republishing nis will^ and afterwards married and died without issue of that marriage ; and it was held, thai the lands, in which, under the settlement, his interest at the date of the codicil was contingent, but became vested on his marriage, passed by the ■will and codicil. In Sug. Pow. p-- 269, 8th ed., the decision in Doe v. Tomkinson is referred to the ground that the interest of the survivor was a power, and not an estate, and could not be exercised until the donee actually answered the description tinder which the power was given to him, that is, became the survivor. And see McAdam v. Logan, 3 B. C. C. 310, and Mr. Eden's note; Feame, C. E. 370. But see per Lord Westbury, Thomas v. Jones, 1 D. J. & S. 78, 79.] 69 *50 , WHAT MAr BE DEVISED OE BEQUEATHED. A right of action was not, under the old law, devisable. Thus, a As to rights reversion in fee expectant on an estate tail which had been of action. discontinued by the act of the tenant in tail, could not be devised (i). And the same doctrine was applicable to rights of entry. This point Eights of was much discussed in Goodright v. Forrester (k), where A. entry. being tenant for Ufe, with reversion to B. in fee, A. levied a fine come ceo, &c., after which, and when his estate had been thus re- duced to a mere right of entry, B. made a will devising the property in question, the validity of which devise was the point in dispute. The case was eventually decided on another ground, after an energetic pro- test from Sir J. Mansfield, C. J., against the doctrine which affirmed the invalidity of the devise ; but which seems nevertheless to be sound law. Such, it is evident, was the opinion of Ej-re, C. J., in Cave v. Holford (/), of Lord Eldon,in Att.-Gen. v. Vigor (m), and of the Court of K. B., in Doe d. Souter v. Hull (?j) [and Culley v. Doe d. Tayler- son (o)} ; and Lord Eldon, moreover, intimated an opinion, that a will made during disseisin was invalid, though the testator happened to die seised, on the ground that the testator was not seised at the date of the will ; but that if he then had the land, and was disseised afterwards, the devise was good, as a disseisee after re-entry is bj- relation seised ab initio; which certainly appears to be more consistent with princi- ple than the contrary position advanced in the early case of Bunter v. Coke (p).i *50 * [When it is said that rights of entry were not devisable, this extends only to rights of entry, properly so called, created by actual disseisin, and not to a right to recover possession of the land from a mere adverse > possessor, or a person holding over after the determination of his lawful title, for in such cases the freehold was in the testator, and of course might have been devised by him (?).] ^ All such questions, however, are precluded as to wills made since the year 1837 by the statute 1 Vict., which has expressly extended the tes- ({) Baker v. Hacking, Cro. Car. 387, 40.5 ; see also Doe d. Cooper v. Finch, 1 Kev. & M. 130, [i B. & Ad. 283.] (k) 8 East, 564, 1 Taunt. 578. (0 3 Ves. 669. (m) 8 Ves. 282. (re) 2 D. & Ry. 38. [(o) 1] Ad. & Ell. 1020.] In) Salk. 237. [(2) Doe V. Hull, 2D. & Ey. 38; Culley*. Doe, 11 Ad. & Ell. 1021.] 1 See Humes v. McFarlane, 4 Serg. & E. roll v. Norwood, 4 Har. & M'H 287. The 435; Mass. Gen. Stats, c. 92, § 3. In New settled test of a devisable interest in some York, in Varick v. Jackson, 2 Wend. 166, parts of the United States is, whether the it was held that a right of entry is devisable, mterest in the land is descendible. 4 Kent, though at the time of the devise, and of the 512, 513. The reasoning of the court in testator's death, the land was held adversely. Whittemore v. Bean, 6 N. H. 47, very much Such a right would pass by descent, and there favors the power of devising a right ot entry, are no reasons of policy to create a distinction Aright of entry will pass bv deed in New in this respect between descent and devise. Hampshire, ib. ; Hadduck d." Whilmarth, 6 Jackson D. Vavick, 7 Cowen, 238. A right of N. H. 181. It is now provided by-statute there entry is devisable in Virginia. Watts v. Cole, that no devise or bequest of any property shall 2 Leigh, 664. See Turpin v. Turpin, 1 Wash. be defeated by any disseisin or wrongftil dis- Va. 75; Hyeru. Shobe, 2 Munf. 200; Stoever possession thereof by any other person. V. Whitman, 6 Binn. 416 ; Waring «. Jackson, 2 See Smith v. Bryaii, 11 Ired. 418. 1 Pet. 571 ; Gist v. Eobinet, 3 Bibb, 2; Car- 70 WHAT MAY BE DEVISED OE BEQUEATHED. *51 tamentarj'' power to "all rights of entry for conditions broken and other rights of entry" (r). [And as to rights of action, the questpn cannot recur since the statute 3 & 4 WiU. 4, c. 27, s. 36, abolishing real actions, on which alone it is conceived the question could have arisen. Where a conveyance has been executed under circumstances which would give the grantor a right in equity to have it set aside and recon- vej'anee decreed, such right is clearly devisable (s) . Conversely, possession without title confers a devisable interest which may be defended and recovered by the devisee against all possession but the true owner (<). de facto. Personal property limited by settlement merely to the executors or administrators of the settlor may be disposed of by his will, since he himself takes absolutely under such a limitation (m) . In Bishop v. Curtis {v) it was argued that under the third section of the 1 Viet. c. 26, a bequest of a chose in action would pass cimge j^ to the legatee the right to sue in his own name ; but the action. court of B. R. decided that the act did not make anything bequeathable as personal estate, which might not have been bequeathed previously to the passing of that act.] A wiU disposing of any interest in real estate of which the testator was seised, operated, under the old law, in the nature of a ^ftg,..ag. conveyance, and, consequently, extended only to heredita- quired free- ments belonging to the testator when he made the devise, fol-meriy'not' This rule was early established, in relation as well to de- devisable, vises by custom, as to devises under the statutes of Hen. 8, which shows that * it did not (as commonly supposed) arise from the *51 mode of penning those statutes, but resulted from principles com- mon to both species of devises. As equity follows the law, the doctrine extended no less to equitable than to legal interests. If, therefore, a testator before the year 1838 devised all the real estate of which he should be seised at the time of his decease, and after the making of his will he purchased lands in fee-simple, such after-acquired property, whether it was conveyed to the testator himself, or to a trustee for him, did not pass by the will, but descended, as to the legal inheritance in the former case, and as to the equitable inheritance in the latter, to the testator's heir-at-law (x). Where a testator had an equitable interest in the devised lands when (r) The devise must be by apt words: " real estate of which I may die seised" has been held not to nass land of which, though entitled thereto, the testator was not seised. Leach ». Jay, 9 Ch. D. 42. («) Uppington v. Bullen, 2 D. & War. 184, 1 Con. & L. 291 ; Stump v. Gaby, 2 D., M. & G. 623 ; Greslev v. Mousley, 4 De G. & J. 78. (() Ashef V. Whitlock, L. R. 1 Q. B. 1. (m) Morris v. Howse, 4 Hare, 599 ; Mackenzie v. Mackenzie, 3 Mac. & G. 659. (») 21 L. J., Q. B. 391. Ix) Bunter v. Coke, 1 Salk. 237, Holt, 248, nom. Buckingham v. Cook, 3 Bro. P. C. Toml. 19; Langford v. Pitt, 2 P. W. 629; [Harwood v. Goodright, Cowp. 90.] 71 »51 "WHAT MAY BE DEVISED OE BEQUEATSED. Operation of he made his will, and afterwards acquired the legal owner equltabieTn- ^"^'P' ^^ equitable interest passed by the wiU, and the sub- terests. sequently acquired legal estate descended to the heir, who, of course, became a trustee for the deviseej Ifj on the other hand, the testator were seised only of the legal estate, at the time of the execu- tion of his will, and afterwards acquired the equitable interest (being the converse case), as where, being a mortg^ee in fee at the date of the wUl, he subsequently purchased the equity of redemption, the devisee was a trustee of the legal estate, which he derived through the wiU, for the heir-at-law to whom the equitable inheritance descended (3?).' Cases of the former description frequently occurred, where a man con- tracted to purchase a freehold estate, then dfevised it, and, subsequent^ to the execution of his will, took a convej^ance of the property, and then died without republishing his will (z). The testator being equitable' (y) Strode v. Lady Falkland, 3 Ch. Rep. 187. [In Tardley; v. Holland, L. E. 20 Eq. 428,; a mortgagee in fee devised " all hereditameiits whereof he was seised' as mortgagee " (without any specific description of the mortgaged estate), and afterwards purchased the equity of redemption : this was ademption, and the devise failed both at law and in equity.] (z) Greenhilli). Gieenhill, Pre. Ch. 320, [2 Vem. 679, Gilb.Eq. E. 77;] Green v. Smith, 1 Atk. 572; Gibson v. Lord Montfort, 1 Ves. 494; Capel v. Girdler, 9 Ves. 509 ; Holmes v. Barker, 2 Madd. 462. [Same law as to copyholds, Seaman v. Woods, 24 Beav. 372. A valid contract will not be premmed to have been entered into before the date of the will for the purchase of lands conveyed to the testator immediately after that datfe,' Cathro*r v. Eade, 4 De G. & S. 527. 1 See Perry v. Phelips, ITea. Jun. 254, 255 ; Milnes v. Slater, 8 Ves. Jr. 295; Broome v. Monck, 10 Yes. Jr. 597, 605 ; 4 Kent, 510, 511 ; Johnston v. Hunly, 1 Tavlor, 305; George V. Green, 13 N. H. 521; Brewster v. McCall, 15 Conn. 274; Carter ». Thomas, 4 Greenl. 341; Minuse v. Coxe, 6 Johns. Ch. 441; M'Kinnon v. Thompson, 3 Johns. Ch. 307, 310; Livingston v. Newkirk, 3 Johns. Ch. 312; Thomson v. Scott, 1 M'Cord, Ch. 32; Kemp V. M'Pherson, 7 Harr. & J. 320; Carroll v. Carroll, 16 How. 275; Hays v. Jackson, 6 Mass. 149; Wait v. Belding, 24 Pick., 129; Bullard v. Garter, 5 Pick. 114. This rule was strictly held in Pennsylvania, in the case of Girard v. City of Philadelphia, 4 Eawle, 323, although the testator declared in a codicil that it was his wish a«d intention, that all the real estate he should thereafter purchase, should pass by the said will. Such seems to have been the law of Alabama, Meador v. Sorsby, 2 Ala. 712'; 'and of North Carolina, Foster v. Craige, 2 Ired, 633 ; Bat- tle V. Speight, 9 Ired. 288. The rule of law upon this subject has been changed by statute in many of the states. Where a testator at the time of mating his will, before the Revised Statutes of Massachusetts, changing the rule in reference to after-acquired land, took ef- fect, held land in mortgage, and deviled all his real estate, and afterwards foreclosed the mortgage, it was decided that such land did not pass by the will. Brigham v. Winches- ter, 1 Met. 390. See Swift i). Edson; 5 Conn. 531. So where the mortgagee perfects his estate by taking an absolute deed of the premises on which he holds the mortgage. Bullard v. Carter, 5 Pick. 112; 117, 118. These cases proceed on the ground, that to give effect to a devise of real estate, the tes- tator must be the owner thereof at the time of making the devise, as well as at the time of his decease; and that it must be the same interest at these different periods of time. But since the change made'in the law by the Revised Statutes of Massachusetts, respect-' ing the operation of devises on real estate ac- quired after the execution of the will, and in all those states where a will may be made to operate on after-acquired real estate, a devise of the estator's land may be made to operate as well on lands acquired by foreclosure of a mortgage, or release of an equity, as bv any other means. See further as to the general rule that after-acquired property will puss by the testator's will : Carter v. Thomas, 4 Greenl. 341; Brewster «. M'Call, 15 Conn. 274 ; Foster i). Craige, 2 Dev. & B. Eq. 209 ; Whittemore v. Bean, 6 N. H. 47 ; Turpin v. Turpin, 1 Wash. (Va.) 75; Hver ». Shobe, 2 Munf. 200. As to personal estate, it is well settled that it will pass under general expres- sions in the will showing the testator's in- tent to bequeath it, although acquired after making the will. Loveren v. Lamprey,' 2 Foster, 434, 442; per Shaw, Ch. J., in Wait V. Belding, 24 Pick. 136; Butler v. Baker, 2 Coke, 68 ; Wyndham V. Chetwynd, 1 Burr. 429; McNaugfiton v. McNnughton, 41 Barb. 50; S. C. 34 N. Y. 201; Pruden v. Pruden, 14 Ohio N. S. 251. And see Fluke v. Fluke, 1 C. E. Green, 478; Ridgewav v. Under- wood, 67 111. 419. The statutes of the states as to after-acquired estate will be cited later. 72 "WHAT MAY BE DEVISED OR BEQUEATHED. *52 owner under the contract (a) , Ms interest pas&ed bj' the will to the devisee, whose equitable right the'heir was bound to clothe with the legal title. In these and many other cases, great * incon- *52 venience occurred from the incompetency of a testator to dis- pose by will of his after-acquired real estate ; and questions jj^j^^.^ ^^ ^^_ often arose as to the actual state of the rights and obliga- completed tions of the parties under the contract, on which the valid- ™°'™'^'- ity of the devise depended (6), and also as to the effect of certain modes of conveyance, in producing ; a revocation of the devise of the equitable interest. The removal of this incapacitj', therefore, is not the least of the advantages conferred by the statute 1 Vict. c. 26, which has expressly extended the testamentary power to such real and per- sonal estate as the testator may be entitled to at the time of his death, notwithstanding he may become entitled to the same subsequently to the execution of his will. But it ma}', of course, be necessary, even under the new law, to go into the inquiry, whether . the circumstances attending a contract for purchase or sale by a deceased person, are such as to render the contract obligatory ; for upon this fact would depend the question (which has lost none of its importance), whether, as between the representatives of the deceased testator or intestate, it is to be regarded as real or personal estate ; and this may and often does depend on extrinsic circumstances, ascertainable by parol testimony. In Lacon v. Mertins (c). Lord Hardwicke decreed a parol contract to be carried into execution as' between the real and personal representa- tives of the deceased vendor, the purchaser submitting to perform it, and acts of part performance, sufficient, to take it out of the Statute of Frauds, being proved. In Buckmaster v. Harrop {d), a bill by the pur- chaser's heir-at-law for a similar purpose was dismissed by Sir Wm. Grant, M. R., on the ground that a binding contract had not been proved. Where the contract is binding on the purchaser at the time of his death, his heir or devisee. is entitled to the benefit of it; in CQnj^act other words, is entitled to consider the contract as having binding on converted the personal estate, quoad the purchase-money, h"s death, into real estate ; although from subsequent events, arising subsequently .. /., -,, , rendered in- out of the situation of the deceased purchaser s estate, the capable of contract should, as against the vendor, be rescinded.^ Thus, <=o»ipietion. in Whittaker v. Whittaljer (e), where W., having contracted for the purchase of an estate, afterwards by his will devised certain real (rt) It was sufficient if the vendor alone was bound by the contract, Morgan v. Holford, 1 Sm. & Gif. 101, semb.] (6) Duclvle V. Baines, 8 Sim. 525. (c) 3 Atk. 1. (d) 7 Ves. 341. (e) 4 B. C. C. 30. 1 But where the owner of real estate died in tlie land as the will or the law would have after malting a contract for the sale of it, the given him in the proceeds after payment of recission of the contract after his death was the debts of the deceased. Leiper v. Irvine, held to be a reconversion of the estate into 26 Penn. St. 54. land, each legatee acquiring the same interest 73 *53 WHAT MAY BE DEVISED OB BEQUEATHED. estates to trustees to certain uses, and then reciting the contract, he gave to the trustees all the residue of his property*, upon trust (inter alia) to dispose of a sufficient part thereof, and therewith to pay *53 * the remainder of the purchase-monej', and complete the con- tract, and thereupon take a convej-ance to the uses of the there- Effect of un- "^before devised estates. Before the contract was com- compieted pleted the testator died, and the executors not being able con ract. ^ collect sufficient assets to carry the contract into execu- tion within the necessary time, the vendor instituted a suit against them , and the contract was eventually cancelled under a decree of the court. The devisee then filed a bill to have the amount of the pur- chase-money laid out in the purchase of land to be settled to the same uses, and Sir E. P. Arden, M. E. , decreed accordingly, being of opin- ion that the acts of the executors could not affect the rights of the par- ties ; and relying, also, on the general principle, that devisees to whom a contracted-for estate is given, are, if the contract i&Wsfrum, any cause, entitled to have the money laid out for their benefit, and that the case of an heir-at-law was less favored. This doctrine, however, we shall presently see, was overruled by Lord Eldon in the case next stated. The true principle is, that where the contract is such as could have If not bind- been enforced against the purchaser at the time of his de- ing on de- cease, the estate, which is the subject-matter of the con- risor, devisee ' „ ... , , - , cannot insist tract, or, failing that, the purchase-monej', belongs to his bei'ng'TOm- ^^^^ *''' ^evisee ; ^ but if, from a defect of title or any other pleted. cause, the contract was not obligator}' on the purchaser at his death, his heir or devisee is not entitled to say he wiU take the estate with its defects, or have the purchase-money laid out in the pur- chase of another.^ Such is the doctrine of Broome v. Monck (/), where a bill was filed by the devisee of a purchaser of a contracted-for estate against the vendor and the personal representative of his own devisor, pra3-ing a specific performance of the contract, or that the purchase-money might be laid out in the purchase of another estate, and it appeared that a good title could not be made ; Lord Eldon, after great deliberation, dismissed the bill. The contract expressed, in the usual manner, that (/) 10 Ves. 597. See also 1 Ves. 218; [O'Shea ». Howley, IJ. & Lat. 398.] 1 An equitable interest in land, founded benefit of the heir or devisee. Livingston v. on articles of agreement for a purchase, will Newkirk, 3 .lohns. Ch. 312. But in order to pass to the heir or devisee. Malin v. Malin, entitle the devisee, the agreement to purchase 1 Wend. 625; Marston ». Fox, 8 Add. & E. must be made before the execution of the 14, perTindal, C. J. It is well established, will. M'Kinnon v Thompson, 3 Johns. Ch. that an estate contracted for will pass under 307. See 2 Story, Eq. Jur. § 790 et seq. general words of devise in a will, even 2 x ^f\i\ made in Ohio in 1811, bv one in though the agreement to purchase is not to possession of real estate under a verbal con- be carried into execution until a future day, tract, and for which he afterwards obtained which does not occur until after the time a deed, was held good to pass the legal as when the will bears date. Marston v. Fox, well as the equitable title ia Smith v. Jones, nbi supra, per Tindal, C. J. And the execu- 4 Ohio, 116. tor must pay the purchase-money for the 74 "WHAT MAY BE DEVISED OK BEQUEATHED. *55 the remainder of the purchase-mone}' should be paid upon a good title being made, and the codicil directed that the contract should be carried into execution ; but the decision was founded on the general principle, and not on the particular terms of the contract. In adverting to Whit- taker V. Whittaker, which was urged as an authority j,~ , for the plaintiff, Lord Eldon observed, * that it was *S4 completed very difficult to maintain the doctrine in it, which contract. went beyond what was necessary for the decision. The case was no more than this : The vendor had a good title. The estate at the death of W. in equity belonged to the devisees of his real estate. The ven- dor objected he was not to be held to the contract for ever, and the embarrassment of W.'s affairs gave him a right to be off. But as to the devisees of the land and the legatees of the monej', their interests were completelj' fixed at the death of the testator, and the only question was, whether the embarrassment of his affairs giving that right to the ven- dor, should vary the rights as between them ; and it was quite clear, that if the real representative had been an heir instead of a devisee, the question would have been just the same. The cases g^ j,j.^_ establish, that whatever is the state of liability of the party bility of the himself at his death, must be the state of liability to be ^fhi^ de™thl* considered upon questions between those representing him governs the after his death {g) ; and if at his death he could not be com- tween"those pelled to take, clearly the heir could not say to the execu- claiming tor, " I will have the estate and j-ou shall pay for it." " I have not found an}"^ case that has induced me to suppose that if this were between the heir and the personal representative, it would be pos- sible for the heir to say, though the title was doubtful, yet being the real representative, he. is entitled to take it as it is, though the ancestor never meant so to take it, or intimated any purpose of retiring from that situation in which he had a right either to insist upon a good title, or to refuse the estate ; and though there is no proof that the ancestor would have paid for the estate with a bad title, j'et the heir shall insist that the personal estate shall pay for it out of the assets. None of the cases give any color for that; Green v. Smith (A), indeed, seems to state a doctrine quite inconsistent.'' He therefore held that, as no title could be made, the devisees were not entitled to take this estate, 'or to have another estate bought for them. It will be observed, that Lord Eldon adverted to the circumstance of the purchasing de\'isor not having himself shown an in- tention to take the estate with a bad title. It is conceived ^*^ ^^V^_ he alluded to such evidence of intention as would have tention by amounted to an acceptance of the title. Nothing accept title short of * this, it is presumed, could have any effect ; *55 necessary. . Un) See ace. Curre ». Bowyer, 5 Beav. 6, u.; Hudson v. Cook, L. R. 13 Eq. 417; Ingles. Richards, 28 Beav. 365: Haynes ». Haynes, 1 Dr. & Sm. 451, 452; Lysaght v. Edwards, 2 Ch. D. 516.] (A) 1 Atk. 572. 75 *56 WHAT \MAy BE DEVISED OE BEQUEATHED. for, to admit parol evidence of intention as such: would be liable to the objection attaching to the reception of extrinsic evidence in aid of, or in oppositioa to, a .written will (j)ij It is true that, under the doctrine in question, the devise is, incidentall3- affected by this, evi- dence, since, as already observed, the inquiry whether the contract was obligatory on the testator at his decease, lets in any evidence which, would be admissible, in a suit between the vendor and vendee, of cir- cumstances discharging the vendee, as a difference in the, estate from that contracted for, not capable of being the subject of compensation, or the like. Of course the vendor could not take advantage of, the waiver by the heir or devisee of objections toithe title which his ancestor^ or devisor might have advanced^ he {i. e. the heir or devisee) haying ia that event no interest in the estate. In Whittaker I). Whittaker, and Broome v.. Monok, the contract seems Question, to have been binding on the vendor, and therefore, those cfeasedmir^^' ^^^^^ ^° ^^^ decide what would be the effect, where the de- chaser was ceased purchaser was bound at his decease, but the vendoi: the vendor "^^^ 'lot, a case which clearly maj' and often dofis arise ; as was not., where a written contract has been entered into, which is duly signed by one party and not by the other, and the signing party dies before there has been any act of part performance, which would, render the contract obligatory on the other. It is clear, that in such a case, the surviving (k) party may choose or not to enforce the perform- ance of the contract against the representatives of the deceased ; should he decline, of course the contract is at an end, and the property remains unconverted aS' between the real and personal representatives of th& deceased party. If, on the other hand, the surviving party choose to compel performance, the question arises between the respective repre- sentatives of the deceased, whether such conversion has taken place. For instance, suppose the deceased party to be the vendor ; if the sur- viving party, i.e. the purchaser, should (as he may) call upon the heir or devisee of the deceased vendor, to convey to him the property in pursuance of his ancestor's or testator's contract — upon the doctrine^ in question would depend the destination of the purchase-money, which,' if the contract is to be considered as effecting an absolute con- *56 version of the property, * would belong to the personal repre- sentatives (I) ; if not, to the heir or devisee of the deceased- vendor. The writer is not aware of any direct authority on the point ; Cases where but, perhaps it would be considered as governed by the cases opdon to"''' (which seem to be analogous in principle) , in which, there purchase. being in a lease of a freehold estate a clause entitling the lessee pending the term to purchase the demised property, and the Ui) See Rose v. Cunyngharae, 11 Ves. 550.] (k) The fact of survivorship is introduced merely for the convenience of distinction; it would, of course, be immaterial whether the .party represented as the survivor were living or not. [(0 See post, Chap. VII. s. 3 ad Jin.} 76 -WHAT MAY BE DEVISED OB BEQUEATHED. *57 lessor having died before the option of the lessee has been declared, the latter has subsequently elected to purchase the property. Under such circumstances, it was held by Lord Eldou, in Townley v. Bedwell (m), on the authority of a previous decision of Lord Kenyon (m) (but with- out, it should seem, approving the principle) , that the rents, until an election to purchase should be made, belonged to the heir or devisee ; but that when it was made, the purchase-money went to the personal representative of the vendor. [There is at least equal reason for holding that conversion has taken place in cases where, at the testator's death, the contract, though unilateral, is unconditional and complete without a further act by one of the parties. But, whether contract or option, the vendor's will may show an intention inconsistent with the notion of conversion. In KnoUj-s I'. Shepherd (o) (a case of contract), a specific devise to the testator's "dear wife" of the estate " which he had lately contracted to sell,'' was held not to show such an intention, but to give the wife only _ the legal estate, the purchase-money passing by the residuary bequest. But in. the case of an optioii, a will made or repubhshed after the date of the contract, and specifically devising the property in strict settle- ment, has been held to take the case out of the rule in Townley v. Bed- well-; and, upon the option being exercised after the testator's death, to carrj' the purchase-money to the devisees ( p) . By the common law, copyholds could hot be devised except * by virtue of a special custom of the manor *57 copyholds. of which they were held, nor were they afifected by the Statutes of Wills passed in the reign of Hen. 8 [q) . When a copyholder wished to devise his copj'hold, it was originally necessary that he should make a surrender to the use of his last will ; the estate then passed by the surrender and not by the will, which was Only a direction of the uses of the surrender (/•) ; the testator till his death, and afterwards his heirs, continued to have the legal copyhold interest till the devisee was admitted (s) ; and accordingly upon a surrender without admittance by way of mortgage, the mortgagor having the whole legal estate, and not a mere equity of redemption (which we shall hereafter see was devisable without surrender) , must have made a second surrender to the use of his will in order to enable him to devise (<) . (m) 14 Ves. 591. [See also Collingwood c. Row, 26 L. J. Ch. 649, 3 Jar. N. S. 785.] (») Lawes v. Bennet, 1 Cox, 167. [Compare Wright d. Rose, 2 S. & St. 323, which is -very similar to cases of option to purchase, and in that view opposed to Townley v. Bedwell. (o) 13. kW. 499, cit., affirmed in D. P. Sug. Law of Prop. 223. As to whether a gen- eral devise includes an estate which the testator has contracted to sell, see post, Chap. XXI. s. 2. (p) Dranf!). Vause, 1 Y. & C. C. C. 580; Emuss v. Smith, 2 De G. & S. 722. Neither a specific devise executed before (Weeding v. Weeding, 1 J. & H. 42), nor a general devise executed after the contract (Goold v. Teague, 5 Jur. N. S. 116), is sufficient for the purpose. The rule applies only as between the real and personal representatives of the vendor, and will not be extended. See Edwards v. West, 7 Ch. D. 858. iq) 1 Watk. Cop. 122, 2.Rol. Rep. 383. (?•) Att.-Gen. o. Vigor, 8 Ves. 286. («) 1 Watk. Gopp. 122; and see Roei;. Jeffereys, 2 Wils. 13. It) Doe d. Sheweu v. Wroot, 5 East, 132. 77 *68 -WHAT MAY BE DEVISED OR BEQUEATHED. The surrender, and not the will, being the operative part, so to speak, Will of a of the devise, one joint tenant could, by surrendering to the copyholder in ^gg ^f ]j|g ^[u g^jjfj ^jjg^ devising to a stranger, sever the joint tenancy ' i i a severance, jointure (m) , and, in most manors, also bar his widow of Stat 55 Geo ^eebench. By the statute 55 Geo. 3, c. 192, all devises 3, dispensing thereafter to be made of copyhold lands, though not surren- der to'usfeof dered to 'the use of the testator's will, were rendered as valid the will. as if a surrender had been, made. This statute merely sup- plied the omission of a surrender ; and it was immaterial that a sur- render had, in fact, been made" to the use of the will, but that the will could not operate upon it, not being properly executed according to the Only dis- terms of the surrender since the statute supplied a second sur- Emnal Tur^ render {x)'. But this statute supplied formal surrenders only, renders. and therefore did not dispense with a particular mode of sur- render required by the custom to give validity to a devise by a married woman (y) , such surrender being considered as a protection to her. It seems the better opinion, that a custom in a manor that the copy- Custom not hold tenant shall not devise through the medium of a to use'of a"" *^^ * surrender to the use of his will, is bad (z) : at all will bad. events, such a custom will not be presumed from the fact that no entry is to be found on the court rolls of any such sur- render (a) . An equitable interest in copyholds under a trust or right of redemption, Equitable *"" * contract for purchase, being incapable of surrender, was interests in devisable withbut anj' such formality, and it was immaterial devLable^ in the last case that a surrender had been made to the use without sur- of the purchaser, so long as he had not been admitted (b) ; and the right of the equitable owner to devise his interest could not be controlled by the custom of the manor (c) . Customary freeholds, though not held at the will of the lord, yet Customary if alienable by surrender and admittance, were devisable in freeholds. ^]^q same manner as copyholds (cf).] (u) Co. Litt. 59 b.; Porter v. Porter, Cro Jac. 100; 2 Cox, 156; 2 Ves. 609. In Edwards V. Champion (1 De G. & S. 75)j it was held by K. Bruce, V.-C, that a surrender by one joint tenant to the use of the will of a stranger whose will did not come into operation until after the death of the surrenderor produced a severance; but on appeal (.3 D., M. & G. 202) this was doubted by Lord Cranworth, Parke, B., and Cresswell, J., seeing that the right by survivorship had actually accrued. (x) Doe d. Hickman v. Hickman, 4 B. & Ad. 56. (y) Doe V. Bartle, 5 B. & Aid. 492, 1 D. & Ev. 81. (z) Warden v. Wardell, 3B. C. C. 117; Pike v. White, ib. 28T; but see 1 Evans' Stat. p. 450. (a) Doe d. Edmunds v. Llewellin, 2 C. M. & E. 503, 5 Tyr. 899; Doe d. Dand v. Thomp- son, 7 Q. B. 897. (6) Davies o. Beversham, 2 Freem. 157, 3 Ch. Eep. 76; Car v. Ellison, 3 Atk. 73: King V. King, 3 P. W. 3B8; Gibson v. Lord Montfort, 1 Ves. 489; Greenhill «. Greenhill, 2 Verji. 679 ; Phillips v. Phillips, 1 My. & K. 664; Seaman v. Woods, 24 Beav. 372, where the pur- chaser took under a power of sale in a vyill. (c) Lewis V. Lane, 2 My. & K. 449. (d) Doe V. Huntington, 4 East, 288; Doe d. Cook v. Danvers, 7 East, 299; Doe d. Dand v. Thompson, 7 Q. B. 897. These cases appear to overrule Lord Hardwicke's apparent opinion to the contrary in Hussey v. Grills, Amb. 299.] 78 WHAT MAY BE DEVISED OR BEQUEATHED. *59 Copyholds, equallj with freeholds, were subject to the rule, which, under the old law, restricted a devise to lands of which the As to devises testator was seised when he made his will (e) . A devise of "^ "^f^"^ 1-111^1 acquired copyholds, therefore, however comprehensive in its terms, copyholds. did not pass an after-acquired copyhold estate (/), except so far as such estate might have been brought within its operation by a subse- quent surrender to the use of the will (which could not be the case where the testator's interest was only equitable) , the surrender being construed to« have the effect of extending a general devise of copyholds to lands acquired in the interval between the will and the surrender (g) ; and it was decided that a surrender to such uses as the testator " shall" by will appoint applied to a will antecedently executed, it being con- sidered that the surrenderor referred to that wilj which should be in existence at his death (A). And here it may be observed, that as every copyhold is parcel of the manor to which it belongs, a devise of the manor was held After-ac- to comprise such copj'holds, though acquired by the quired copy- lord after *the making of his will(t). [Freeholds *59 part ofT* "^ held of the manor coming to the lord by act or oper- manor. ation of law, as bj' escheat or descent, also passed by a previously executed devise of the manor ; but not if he acquired them by purchase, for when so acquired they do not become parcel of the manor (_;) .] It is clear, too, upon a principle somewhat analogous, that if a person having a remainder or reversion in fee, expectant on an estate for life, devised that remainder or reversion, and then by anj- means acquired, and by such acquisition extinguished, the estate for life, the devise car- ried the estate thus acquired, the merger of which merelj' had the effect of accelerating the ulterior estate (k) . ' Under the old law, too, a devisee or surrenderee of copj'holds before admittance, was wholly incapable of devising them (l) . The r, • u j same doctrine was at one period considered to apply to an visee or sur- heir, whose incompetency to devise was supposed to have g^pyhd^sbe- been established by Smith v. Triggs (m) ; but which ease, fore admit- rightly understood, seems not to have warranted any such """^^ ^°' doctrine. It was frequently cited, however, as an authority on this point («) , but as such it has been completely overruled by Devise by an Right d. Taylor v. Banks (o), the facts of which were as iJ°?.'^^i"'to follow: On the 13th of February, 1781, John Taylor was be good. (e) Harris v. Cutler, cit. 1 T. R. 438, n. ; Spring v. Biles, ib. 435, n. [(/) Phillips V. Phillips, 1 Mv. & K. 664.] («) Hevlin v. Hevlin, Cowp. 1.30; Att.-Gen. v. Vigor, 8 Ves. 287. (h) Spring v. Biles, 1 T. E. 435, n., overruling Warde v. Warde, Amb. 299, which is contra. (i) Roe d. Hale ». Wegg, 6 T. R. 708. [( / ) Delacherois v. Delacherois, 11 H. L. Ca. 62. (k) Buckingham v. Cook, Holt, 253.] (J) Wainwright v. Elwell, 1 Mad. 627; [Phillips v. Phillips, 1 Mv. & K. 664; Matthew v. Osborne, 17 .Jur. 696.] (m) 1 Str. 487. (H) See Sir T. Plumer.'s judgment in Wainwright v. Elwell, 1 Mad. 632 ; and Sir L. Shad- well's judgment in Kingi). Turner, 2 Sim. 548, [reversed, 1 My. & K. 456-] (0) 3 B. & Ad. 864. 79 *60 WHAT. MAT BE DEVISED OE BEQUEATHED. admitted tothe copyholds in question, whicJi he afterwards, surrendered to the use of his will, and then by. his will devised part to his son Samuel (who was his heir-at-law) in fee, and part to his daughter Mary, in fee. Mar}' Taj'lor, on the death of the testator, entered, but was never admitted ; she died, leaving her brother Samuel her cus- tomary heir; Samuel Ta3'lor, who, as heir of his father, was entitled to the whole (for the devise to him by the former did not break the descent, [and Mary never having, been admitted, he took her share also, as heir to his father, and not as heir to her (jb),]) entered,, but was never admitted. By his will he devised the copyholds in question — the validity of which devise was the point at issue. The court *60 * held that the devise was good, relying much on the doctrine iu Coke's Copyholder, s. 4i , that the heir is tenant immediately after the death of his ancestor, and may, before admittance, surrender into the hands of the lord; and also on Brown's case (9), Brown r. Dyer (r), Morse v. Faulkner («), Doe n. Tofield (<)^ Wilsop w. Wed-, dell (11) , which severally support the same doctrine, and were considered by Lord Tenterdea and the rest of the. court to outweigh the recent dicta to the contrary, which were all, founded on a mistalsen yie\y of Smith V. Triggs. The point was again agitated, and received a similar determination in [King v. Turner (a:)] and Doe d. Perry v. Wilson {y). The actl Vict. c. 26, s. 3, has precluded any question of this nature J, . , in regard to wills which are subject to. its operation, by exr unadmitted pressly affirming the testamentary power of an unadmitted suSendeKie ^"^^ '■ indeed it goes much further, by extending the devis- .nndfir Wills ing power to an unadmitted devisee or surrenderee. [It '^ ■ repeals the 55 Geo. 3, c. 192, which only supplied a sur- render, and makes the will itself, without any surrender, confer a right to admittance («), notwithstanding that the testator has not surrendered to the use of his will, or notwithstanding that the copj'holds, in conse- quence of the want of a custom to devise or surrender to the use of a will or otherwise, or in consequence of there being a custom that a will or 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 the will previously to the passing of the act. Thus all questions arising under the former act respecting the validity of a devise, in con- sequence of the power to, devise being still left dependent on the power to surrender to the use of the will (though the surrender itself was not [{/)) Smith' ». TriRgs, ] Str. 487, and observations of Lord Tenterden in Eight v. Banks, p. 670. It is material to notice this point, as otherwise the case would be an authority, that the heir of an unadmitted devisee could devise, though the devisee herself could not.] (?) 4 Rep. 22 b. (r) 11 Mod. 7-3. (s) 1 Anst. 13. (t) 11 Eiist, 251. (M) Telv. 144. [(a;) 1 Mv. & K. 456,] (j/) 5 Ad. & Ell. 321/; [and see Doe d. Winder v. Lawes, 7 Ad. & Ell. 195. (z) This view was adopted by the court in Garland v. Mead, L. R. 6 Q. B 441. Admit- tance is still necessary to vest the estate. 80 WHAT MAY BE DEVISED OB BEQUEATHED. *61 required) are now set at rest. But in Lacey v. Hill (a), it Laceyo.HUl. was held that the new act does not merely dispense with the Ji^^j!J^,ui^^3 surrender and the custom, but gives the devise the same bars free- effect as if there actually had been both ; and that conse- '^^'^''• quently a * general devise of the testator's "real estate," with- *61 out more, bars his widow of her freebeneh. Reading the act, Sir G. Jessel, M. R., said, " That means that a testator is to liave the same power of devising copyhold estate, as if he had done all the things there mentioned ; as if there had been a surrender, or as if there had. been a custom, and so forth. It breaks in upon the customary law of copyholds for the purpose of giving an unlimited power of devise. I am of opiniisn that the same effect is to be given to a devise of copyholds under the new law, as under the law as it stood before the Wills Act, and consequently the widow is not entitled to freebeneh." It is to be presumed that in this ease the custom gave freebeneh of lands of which the copyholder was seised at his death, and not, as is the eustorh in some manors (J) , of those of which he was seised at any time during the coverture ; since, in the latter case, notwithstanding a custom to surrender to the use of the will, neither a devise nor an actual sur- render by the husband would under the previous law have barred the freebeneh.] Copyholders also participate in the benefit of the enactments which extend the devising power to after-acquired real estate, and o£her inter- ests not before devisable, and are, on the other hand, bound by those which (as we shall see) regulate the ceremonial of execution. Copy- holds are also, in common with freeholds, subject to the several clauses by which the legislature has propounded certain new canons or rules of construction, which in general appear to be of a nature to admit of application to copyhold estates (e). Bequests of chattel interests in land are governed by principles wholly different from those which regulate devises of freehold estates: ^ . , they do not, like the latter, pass directly to the legatee, as chattel inter- the alienee of the testator, but, forming part of his personal ®*'* '° '*'"^' estate, they devolve to the executor or other general personal repre- sentative, who is bound, in subordination to the paramount claims of creditors, to give effect to any bequest in the wUl, specific or residuary, comprising the property in question ; and, liierefore, even under the old law, it was quite unnecessary, as regarded the testator's competency of disposition, to go into the inquiry, whether he was, at the time of (a) L. R. 19 Eq. 346. The contrary must have been assumed in Thompson v. Hurra, L. R. 16 Eq. 592. It was needless there to argue that the widow must elect between her freebeneh and the benefits given her by the will if the freebeneh was defeated by the devise. It need scarcely be observed that a. devise by one joint tenant will not work a severance, since the power of devising under the act is givenonly where the property if not devised would go to the customarv heir. (6) Riddell v. Jenner, 10 Bing. 29 (Manor of Cheltenham). (c) The form of admittance of a devisee of copyholds is now somewhat simplified by stat, '4 & 5 Vict.' c. 35, ss. 88, 89, 90.] . ^ . ; . .; VOL. I. 6 31 ^62 -WHAT MAY BE DEVISED OE BEQUEATHED. making the will, possessed of a term of years which formed part of his property at his decease, (d) ; such an inquiry being no less irrele- *62 vaut * in the case of a hequest of leaseholds held by a chattel lease, than in that of a horse or a watch, or any other personal chattel; Freeholds pur autre vie * require a distinct consideration in connection Freeholds with the testamentary power. This species of estate stands pur autre vie. distinguished from all other interests, freehold or chattel^ ,by this peculiar quality, that it is capable of being rendered transmissi- ble to either real or personal representatives, according to the terms of the instrument creating the estate, or rather the instrument vesting it in the deceased owner, or in the person, under whom he derived his title by act of law : for it seems now to be admitted that the devolution of the estate is regulated by the words of limitation contained in the last conveyance, without regard to the mode of its original creation. Estates pur autre vie are devisable by the express terms of the Statute of Frauds, 29 Car. 2, c. 3 (s. 12), the act of Henry 8 being (accord-- ing to the prevalent and probably the better opinion) confined to estates of inheritance in fee-simple (^ . ■ Though the Statute of Frauds required three witnesses to the devise Devolution of ^^ ^" estate pur autre vie, yet where the property devolved estates (mr otherwise than to the heirs of the owner («. e. where it was limited either to his executors or administrators, or to the last taker indefinitely, without any express mention of either class of representatives), it was distributable as part of his personal estate, Whether he died testate or intestate ; and by a necessary consequence of this principle, an executor taking it as such was bound to give effect to any bequest or direction in the will affecting such propertj', though the will might not have been attested in the manner required by the statute iri question (/). By the 1 Vict. c. 26, s. 3, [the previous enactments respecting estates pur autre vie were repealed, and] the tes-" tamentary power is expressly extended to such estates, whether there ^hall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a cor-: poreal or an incoi'poreal hereditament ; [and by sect. 6 it is enacted, that if no disposition shall be made of any esttite pur autre vie of a free- hold nature, it shall be assets in the hands of the heir, and that in case (d) See Wind K.'jekyl, 1 P. W. 575; see also James ». Dean, 11 Ves. 388. (e) Anon., Cart. 211. , (/) Eipley D. Waterworth, 7 Ves. 425; [in connection with wliich case, see Bearpark v. Hutchinson, 7 Bing. 178, 4 M. & Pay. 848, as to rents ^mt- autre vie. 1 See Ripley v. Waterworth, 7 Ves. (Sum- any estate pur autre vie shall be devisaWe ner's ed;) 425, 453, Hovenden'.s note (4); by will executed aa in other cases ; St. 1876, Watkins «!. Lee, 6 Ves. (Sumner's ed.) 63.3, Vol. 2, ch. 3, p. 571. In New Jersey, express 644, Hovenden's note (3); Oldham v. Pick- provision is mad,e by statute for' deviling eving,.Carth. 376i'Avlett v. Aylett, 1 Wash, estates pur autre vie. Revision, 1709-ia77, 300 i 1 Hoff. Ch. R. 204, 225. In Indiana, Vol. 2, p. 1243. 82 "WHAT MAY BE DEVISED OE BEQUEATHED. '^fil there shall he no special occupant of a.ny estate pvr autre vie, whether freeliold or * customary freehold, tenant-right, custom- *63 ary, or copyhold, or of any other tenure, and whether a corpo- real or incorporeal hereditament, it shall go to the executor or adminis- trator 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 the 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. So that where a bastard having the trust of an estate pur autre vie limited to hini and his heirs, dies without heir, there- being thus nb special oeeu- pant, the property goes, in case of intestacy to the administrator in trust for the crown (g) : or if there be a will appointing an executor but not disposing of the lease, the executor will hold for his own bene- fit, unless the will be such as before the act 1 WiU. 4, c. 40, s. 2, con- stituted him a trustee (/*)•] A question often agitated, but never entirely settled, in regard to the devising power over estates of this description, was whether Devise by where they were limited to the tenant pur autre vie, and the ?««! tenant heirs of his body, they could be devised without some act on estates pur his part to bar the entail. It was admitted on all hands that ''"'''^ "'*■ if the propertj' were undisposed of, it would devolve to the heir special per formam doni ; it was equally clear that an alienation hy deed, [if made by the quasi tenant in tail in possession (»'),] was an effectual bar to the entail ; but the doubt was, whether the estate was devisable by will alone, without any such previous alienation.- The authorities on the point are few and contradictory. In Doe v. Luxton(i), Lord Kenyon inclined to think that the devise was good ; but his Lordship's dictum stands opposed to that of Lord Redesdale, in Campbell v. Sandys (/) ; and to [the opinion of the court of B. R. in Ireland, in Hopkins v. Ramage (m), who thought that a quasi tenant in tail could not * hf will exclude the title of the issue or remainder- *64 men, j and such was evidently the impression of Sir T. Plumer in Blake v. Luxton (w) [and of Sir E. Sugden in Allen v. Allen (o).j The statute 1 Vict, does not in terms dispose of this debatable point, but has, it should seem, done so in effect, by the language of the general enabling clause, sect. 3, which extends the devising power to "all real (ff) Reynolds v. Wright, 25 Beav. 100. 2 D., F. & J. 590. (h) Powell V. Merritt, 1 Sm. & Gif. 381.; Cradock ». Owen, 2 ib. 241. (i) ii made by tenant in tail in remainder, it must b^ with the concurrence of the owner of the previous estate in possession (Slade v. Patfison, 5 L. .J. (N. S.) Ch. 51; 'Allen v. Allen, 2 D. & War. SOT, 332 ; Edwards V. Champion, 3 D., M. & G. 202), and could never, there- fore, be made by will.] (ft) 6 T. R. 293. (I) 1 Schef. & Lef. 294. [(m) Batty, 365. The decision of Lord Manners in Dillon v. Dillon, 1 Ba. & Be. 77, does not touch the question, for the quasi tenant in tail died without issue, and therefore, at her death, there was nothing for the will to operate upon, and the learned Judge expressly rested his decision on this fact. In Hopkins v. Ramage, the circumstances were precisely similar, but the opinion of the court was expressed in general terms.] («) Coop. 185. [(0) 2 D. & War. 307, 326.] 83 ^64 WHAT MAT BE DEVISEB OB BEQUEATHEp. estate and all personal estate which he (the testator) shall he 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." 1 The terms of this enactment evidently restrict it to cases in which property, in the absence of disposition, would devolve to the general real or personal representatives of the testator, as distinguished from the case now under consideration, in which the devolution would be to the heir special^ 1 Ajs to language which will pass after-acquired estate, see Kimball v. Ellison, 128 Mass. 41. 84 WHO MAY BE DEVISEES OK LEGATEES. »65 * CHAPTER V. *65 "WHO MAT BE DEVISEES OR LEGATEES Qo). The statute of 34 Hen. 8, c. 5, expressly excepted out of its enabling clause devises to bodies politic and corporate ; and, accord- _ ingly, it was held, that a devise to a corporation, whether can take by aggregate or sole, either for its own benefit or as trustee, cannot hold was void ; and the lands so devised descended to the heir, without either beneficially or charged with the trust, as the ease "',^°"'- might be.'' The statute 1 Vict. c. 26, contains no such prohibition, the legislature having contented itseK with regulating and defining the powers and capabities of testators, without in any manner interfering [(n) See also Chap. III. on the personal disabilities of testators. 1 The New York Revised Statutes have turned the simple exception in the English statute, and in the former statute of New York, into an express prohibition by declar- ing that no devise to a corporation shall be valid unless the corporation be expressly authorized to take by devise. 4 Kent, 507 ; Wright V. Meth. Epis. Church, 1 Hoff. Ch. 225 ; Andrew v. New York Bible Society, 4 Sandf. 156. The same construction prevailed as to the pre-existing statutes. Jackson v. Hammond, 2 Gaines's Cas. in Error, 3-37; M'Cartee v. Orphans' Asylum, 9 Cow. 437. Indeed, where a legacy was given to a cor- poration, in New Vork, in trust, for an au- thorized pious use, and also for a use foreign and extrinsic to those which the corporation could execute by law, the trust, being entire and indivisible, was held void. Andrew v. New York Bible Soc.„ 4 Sandf. 156. Corpo- rations are not excepted out of the Statute of Wilis in Massachusetts, or prohibited from taking land by devise. Tlie same is also the case in many other states. The common- law right of taking personal propertiy by be- quest, has, it seems, always been enjoyed by corporations equally with individuals. Phil- lips'. Academy ». King, 12 Mass. 546; In re Jlowe, 1 Paige, 314; M'Cartee v. Orphans' Asylum, 9 Cowen, 437; Bnrr v. Smith, 7 Vt. 241; Burbank V. Whitney, 24 Pick. 151; Gibson v. M'Call, 1 Richardson, 174. •The word "person" in the provision of the Statute of Wills of New York (2 B. S. 57, § 3) does not include a state or a nation ; and a devise of lands to the United States is there- fore void. Fox's Will, 52 N. Y. 530. Where an act of afsembly, incorporating the trustees of a college, provided that their property should not exceed a certain amount, in a suit brought for a legacy so large that the whole being added to the ftind then held, the limited amount would be exceeded, the court held that only so much as would raise the amount to the sum limited in the charter could be recovered, and that the overplus of the per- sonalty vested, at the testator's death, in the next of kin. Davidson College v. Chambers^- 3 Jones, Eq. 253. When the terms of the charter of a corporation, created by the legis- lation of another state, are sufficiently broad to confer upoti it a capacity to take and hold real estate by devise, although not expressly, authorize^ so to take, a provision of the Statute of Wills of that state that "no devise of real estate to a corporation shall be valid, unless such corporation is expressly author- ized by its charter, or by statute, to take by devise," is operative only to the extent of dis- abling the corporation to, take by devise real estate situate in that state, and does not affect its power to take by devise real estate in Ohio. American Bible Society v. Marshall, 15 Ohio St. 5-37. See White v. Howard, 46 N. Y. 144; Fox's Will, 52 N. Y. 530; Vansant u. Roberts, 3 Md. 119. A bequest ia good to a domestic or to a foreign corporation in Massa- chusetts. Burbank «. Whitnev, 24 Pii'k. 151. See Sutton v. Cole, 3 Pick." 232; Clapp V. Stoughton, 10 Pick. 463; Washburn A Sewall, 9 Met. 280; Bartlett v. Nye, 4 Met. 378. Eleemosynary corporations' of other states may take" land in Pennsylvania by de- vise, although prevented _by the Statutes of Wills of the states where they are incorporated from so taking lands in those states. Thomp- son V. Swoope, 24 Penn. St. 474. As to gifts tu unincorporated societies, see Chap. IX. ' : 85 *G6 WHO MAT BE DEVISEES OK LEGATEES. with, or attempting to define, the capacities of persons to take under testamentary dispositions, which it has left to be ascertained and deter- mined by the application of the general principles of law. [Now, according to those principles, corporations have capacity to take lands, though, without a sufficient license in that behalf, they cannot retain thepi(4). Their incapacity to toie land by .devise was a consequence of the exception in the statute of Henry ; and since the act 1 Vict. c. 26, has repealed that statute without reviving the prohibitioq, they are now as Capable of taking by devise as natural persons.' But, as in cases of acquisition by other means, a proper license is needed to enable them to liold.] The disability of corporations to hold real property was created by various statutes (c) before 34 Hen. 8, which appear to have been founded on the principle, that, by allowing lands to become vested in objects endued with pe;-petuity of duration, the lords were deprived of escheats, and other feudal profits. Hence, the necessity of obtaining the king's license,' he being the ultimate lord of every fee in the king- dom ; but this license only remitted his own rights, and did not *66 * prevent the right of forfeiture accruing to intermediate lords. Doubts having arisen, however, at the Eevolution, how far such license was valid (rf)., as being an exercise of the dispensing power formerly claimed by the crown (but which, it is pretty evident, it was iiot, but merely a waiver of its own right of forfeiture), the statute 7 & 8 Will. 3, c. 37, was passed, which provides that the crown for the future, at its own discretion, may grant licenses to alien or take in mortmain, of whomsoever the tenements shall be holden. At this day, therefore, the license from the crown protects against forfeiture to any intermediate lord. But where [before 1 Vict. c. 26] real estate was devised upon trust Devises to *" ^ corporation not empowered to take lands [by devise, corporations although] the devise was, of course, void at law [under the in trust. statute of Henry, j'et] the estate descended to the heir chiirged with the trust (supposing that it was not illegal, under stat. i9 Geo. 2, c. 36, as being in favor of charitj'), in the same manner as where a devise to a trustee fails by the death of the devisee in trust in the testator's lifetime (e). [And since the stat. 1 Vict. c. 26, the trust would equally be upheld ; the only difference being that the corporation trustee is now capable (unless incapacitated by the stat. 9 Geo. 2) of taking by devise, though not, without licensej of holding.] (5) Co. Litt. 2 b. See the stat. de Religiosis and otlier acts cited in the margin there.] (c) Magna Charta, c. 36 ; 9 Hen. 3, c. 36; 7 Edw. 1, c. 1; [13 Edw. 1, c. 32, &c. 33:1 34 Edw. 1, St. 3; 18 Edw. 3, st. 3, c. 3; 15 Rich. 2, c. 5; 23 Hen. 8, c. 10. (tf) 2 Hawlc. P. C. 391, [Co. Litt. 99 a, n. (1), by Butler.] (e) Sonley w. Cloclimakers' Company, 1 B. C. C. 81; [Incorporated Society ti. Richards, 1 D. & War. 258 (where the lands being in Ireland, the charitable trust was valid). The statute 43 Eliz. c. 4, did not, as sometimes supposed, render devises to charitable corporations valid at law. In Flood's case (Hob. 136, 1 Eq. Ca. Ab. 96, pi. 6), it was expressly "agreed that the devise was void in law," though the charitable use was upheld in equity. Benet iCoUege 17. Bishop of London,- 2 W. Bl. 1182, holding such a devise good at law, " rests on no solid foundation; " see per Lord St. Leonards, 1 D. & War. 305.] 86 "WHO MAY BE DEVISEES OB LEGATEES. *67 It should be observed, however, that devises to some corporations are authorized by act of parliament. For instance, the stat. 43 Geo. 3, c. 107, enables persons to devise lands to- the Governors of Queen Anne's Bounty, and the stat. 43 Geo. 3, c. 108, authorizes, under certain limitations, the devise to any persons or bodies politic or corporate of land not exceeding Ave acres, for the erection, repaii;, purchase, or pro- viding of churches or chapels, where the Liturgy of the United Clmrch of England and Ireland shall be used, or of the mansion-house for the residence of the minister, or of any out-buildings, offices, churchj'ard, or glebe for the same respectivelj*. And similar enactments have been made in favor of many other charity * corporations (/). *67 And although generally devises for charitable uses are forbidden by the act of 9 Geo. 2, c. 36, yet the 4th section of that statute, which excepts out of its operation gifts to the Colleges in the two English Universities, and the Colleges of Eton, Winchester, and Westminster, [leaves devises to those corporations to be dealt with by the general law as settled b}' the stat. 1 Vict. The incapacitj' of alienage has been removed, as we have already seen, bj' the Naturalization Act, 1870 (jr). But the act not Devises to being retrospective, and giving no protection to rights ac- aliens. quired by an alien before it was passed (A) , it is still necessary to con- sider the old law. J Alienage could not, strictly speaking, be ranked among the incapacities to take real estate by devise, as the property remained in the alien till office found, when it devolved to the crown (i). On this principle, where lands were devised to an alien and another concurrently as joint tenants, the en-tirety did not vest in the latter (as would have been the effect if the devise to the alien had been absolutely void) , but in both jointly ; and if the crown did not during the joint lives seize the alien's undivided moiety (as it might do after office found if) ), then, on the decease of the alien, leaving his co-devisee surviving, such moietj' devolved to the latter by virtue of the jus accre- srendi, which is incidental to every joint tenancy, subject, of course, to the crown's right of seizure, after office : which would, by relation, have overreached the title of the surviving joint tenant to the alien's moiety (k). If, however, the alien survived his co-devisee, he did not, in the opinion of some persons, thereb}' become entitled to the entiret}', he being disabled from acquiring a title by operation of law, even for the benefit of the crown, on the principle that the law, by its own act, never gave an estate to one whom it did not permit to retain it {1} ; but though the principle is unquestionable, perhaps this application of it (f) Vide Cliurcli BuildlnR Act, 9 Geo. i, c. 42, and otiifir statutes stated post, Cliap. IX, ana in Shelford on Charitable Uses. Ui/) 33 Vict. c. U, 8. 2, stated ante, p. 41. (A') Sharp V. St. Sauveur, L. R., 7 Ch. 351.] (s) Duplessis v. Att.-Gen., 1 B. P. C, Toinl. 415. 0') King V. Boys, Dy. 283 b. (e> Forset's case, cit. 1 Leon. 47, 4 I^on. 82. (/) See Collingwood v. Pace, 1 Vent. 417; [Bridg. by Ban. 414. ■ ■ ■■ ■ 'S? *68 WHO MAY BE DBVTSEES OE LEGATEES. may fee fairly excepted to, aig the survivor seems to have been in by the original gift.* [Where a trast in lands for' life or any greater estate was created A trust of i"^ favor of an alien by will or otherwise, it wa^ freehoM or *QS * doubted whether as " the Chancery could not com- lanlade- pcl One to execute a trust for an alien" (m), the ciaied in crowH could get the benefit of it. The doubt, however, had 1H.V01* Or nn arienwentto. HO better foundation with regard to a trust estate than with the crown ; yggard to a legal estate ; for an alien could never sue in a real or mixed action (n), and could never, therefore, recover the pos- session of land which he had purchased. Yet, as the estate was cer^ tainly in him, it was never doubted that the crown, on office found, might seize this legal estate (o) . And where a trust declared in favor of an outlaw or person attainted was forfeited ; although he could not sue for it, yet the crown, claiming through him, could. Accordingly the question was finally decided in favor of the crown ( p) . The crown took, not for any reason arising out of the doctrine of tenures (y), but (m) Per Rolle, J., Rex. v. Holland, Sty. 20. But see per Hatherlev, C., L. E. 7 Ch. 354. ■ (») Co. Litt. 129 b. (0) Ante, p. 67. (/>) Barrow ». Wadkin, 24 BeaV. 1; Sharp v. S£. Sauveur, L. K., 7 Ch. 343: overruling Eittson I). Stordy, 3 Sm. & Gi£. 230. (?) Escheat or forfeiture. Forfeiture there was not : and the crown cannot take the trust of realty bv escheat. Burgess «. Wheate, 1 Ed. 177; 1 W. Bl. 123; Davall v. New Rivet Company, '3 De G. & S. 394; Beale v. Symonds, 16 Beav. 406. In Co. Litt. 191 a, n. vi, 11, Mr. Butler suggests that a better ground in favor of the claim of the crown might, perhaps, have been found by resorting to its acknowledged prerogative of being entitled to the btmti vacantia, or every species of property of which no owner is discoverable: but the suggestion was never acted upon. As to Lord Loughborough's often-cited dictum, that "the crowii comes under no head of equity," Walker ». Dernie, 2 Ves. Jr., 179, see per Romilly, M. K., in Barrow v. Wadlcin. The dictum appears to be warranted when used with reference to a fipuat for conversion in a case where there is a total failure of the objects of the trust. " Thuff; in Walker v. Denne, the crown was held not entitled to enforce iigainst the next of kin a ti'u^t for laying out money in land where there was a total failure of ctstuu que. irustent, and the only result would be to enable the crown to claim by escheat: and in Taylor 1). Hayaarth, 14 Sim. 8, where real and personal estate was devised to trustees on trust for sale, and the sur- plus proceeds were left undisposed of, artd all legacies and annuities had been satisfied out of the personalty, Sir L. Shadwell. V.-C., held, on a failure of heirs and next of kin, that the trustee was entitled for his own benetlt, and that the crown was not entitled to a decree fnr sale merel3' that it might take the produce as bona micantia. But it does not follow "because the crown could not enforce the execution of a trust to sell in favor of a non-exiating person, that therefore the crown could have no benefit of a trust for an existing person, the beneficfal interest in which had thi-ough that person become vested' in the crown; " per M. R. 24 BeaV. 17. In Henchman 11. Att.-Gen., 3 My. & K. 483, the claim of the Grown to a sum of money provided by the will to be paid by the devisee of lands to a charity, and assumed to be an exception from the devise (see post, Ch. XL), was negatived, and the money held to sink for the benefit of the devisee. The diffietence between this case and that of the ijlien is, that in the latter there is a person who can take though he cannot hold ; in the former the object can- not take. 1 Art alien may take lands by grant. Orr Munro v. Merchant, 28 N. Y. 9 ; O vering' v. e. Hodgson, 4 Wheat. 553; Jackson ». Beach, Russell, 32 Barb. -263; People v. Conklin, 1 Johns. Cas. 399; Jackson v. Lunn, 3 Johns. 2 Hill, 67; Ifoss v. Crisp, 20 Pick. 121; Wil- Gas. 109;, Dudley v. Grayson, 6 T. B. Monr. bur «.. Tobev, 16 Pick. 179; Crosse ». De 260;Marshatt».Conrad, 5 Call, 364; Trustees yalle, t Wa]l. 1,13; Taylor r. Benhara, 5 1). Gray, 1 Litt. 149. And he may take by de- How. 233; Stephen c. Swanrt, 9 Leigh, 40i; vise as well as by grant, ib. : Fox v. Southack, Smith v. Zaner, 4 Ala. 99. But an alien can- 12 Mass. 143; liooers v. White, 6 Johns. Ch. not at common law hold against the state. 360; Fairfax v. Hunter, 7 Crunch, 603; Vaux He therefore takes under a devise a defeasi- 1). Nesbit, 1 M'Cord, Ch. 3.52; Marshall i'. ble estate, good against all except the state. Conrad, 6 Call, 364; Mick v.. Mick, 10 Wend. Wilbur 0. Tobey, sup1-a; Frtss ». Crisp, su- 379 i Wadsworth v. WadsWorth, 2 Kern. 376 ; pra ; Wadsworth ». Wadsworth, supra. See "WHO MAY BE DEVISEES OE LEGATEES. *69 by its prerogative an grounds of public policy (r), a title _ which extended, a fortiori^ to the trust of chattel trust of chat- interests in land (s), except such as an * alien might *6& '®'' ''^'' himself hold (<). But} the proceeds of real estate, — butnotthe which was impressed with a trust for conversion, could be S S'tate^ given to an aUen, [and the crown had no claim,] this not directed to being a trust conferring on the alien an interest in land, but merely a right to have the land converted into money ; and the policy of the law in regard to mortmain (which had been much pressed im argument as analogous in principle) depending upon considerations entirely different (w). " It was argued," said Lord Cottenham, " that the legatees might elect to take the estate in land ; but they have not done so ; and what the Attorney-General claims is money and not land. The incapacity to hold land is founded upon reasons not applicable to money. The testatrix has given to her legatees no option to take the land ; and if she had, or if the law had given the option, it would be no reason why the legatee should forfeit money which he can enjoy, be- cause, instead thereof, he might have elected to take land which he cannot enjoy." The disabilities of alienage might be removed partially by a grant of letters of denization from the crown, or wholly by an act -^^^^^Xviar- of parliament investing the alien with the rights and privi- tionand leges of a British subject. [Such acts, in favor of the par- ^^'^atio"" ticular individual, were superseded bj" the act 7 & 8 Vict. c. 66 (now repealed) which (sect. 6) empowered the Secretary of State to grant certificates of natui'alization, having the same effect as the ordinary acts of naturalization; and enacted (sect. 5), that every alien friend might, by grants lease, assignment, beqttest, representation, or otherwise ^ take and hold any lands or tenements for the purpose of residence, occupation, or trade, for any term not exceeding twenty-one years, as it he were a natural-born subject.] '• (r) Co. Litt. 2 b. fir) See Middlefon ». Spieer, 1 B. C. C. 201; Tavfor ». Havgarth, 14 Sim. 8; Cradock v. Owen, 2 Sm. & Giff. 211; Powell v. Merrltt, 1 Sm. & Giff." 381: Reynolds v. Wright, 25 Beav. 100, 2 D., F. & J. 590; Read v. Stedman, 26 Beav. 495. These cases relate to a total failure of next of kin; and if they differ in principle from the point noticed in the text> go rather beyond what is needed to establish that point. (<) Co. Litt. 2 b, and infra.J (a) Dn Hourmelin «. Sheldon, 1 Beav. 79, [4 My. & Cr. 525; and see Master v. De Crois- mar, 11 Beav. 184.] 1 Kent, Com. 54, 70. In Kentucky, an alien An alien may also take and hold a Icg- who has resided in the state two years may acy of personal estate for hia own benefit, take land by purchase or descent. Trustees Craig v. Leslie, 3 Wheat. 563 ; Common- V. Gray, 1 Litt. 149. See Beard v. Rowan, wealth v. Martin, 5 Munf. IIT; Polk v. Ralsr 1 McLean, 135. And until the land is seised ton, 2 Humph. 537. by the state, the alien has complete dominion i Where an alien having acquired lands oi-er it, and may convey it to a purchaser, or By purchase is afterwards naturaKzed before maintain an action to recover it. M'Creery office found, his title, it seems, becomes V. Allender, 4 Har. & M. 409; Bradstreet thereby confirmed, so that he may hold even V. Supervisors, &c;, 33 Wend. 546; Scanlan against the state in New York. People v. V. WriMit, 13 Pick. 523; People ». Conklin, Conklin, 2 Hill, 67; Jackson ». Beach, 1 2 Hill, 67; Foss v. Crisp, 20 Pick. 121. Johns. Caa 399. It is otherwise where the 89 "TO WHO MAY BE DEVISEES OR LEGATEES". An act of naturalization was alwaj's so framed as not to render valid —were not antecedent convej'ances of the alien, the terms of the enact- retrospective, ment being, that he shaU he and is henceforth naturalized, — biitdeni- ^^- i^) ' [.^"^^ the act 7 & 8 Vict, is in equivalent terms, zation was. Eut] letters of denization expressly authorize the denizen to hold lands theretofore granted (y) , and he may even hold such *70 * as devolve to him by act of law, except, of course, that [for- merly he could] not claim by descent from or through his father, if an alien (z) . Another disqualification, which the policy of the law, in its whole- As to devises some anxiety to remove temptations to perjurj', has created, to attef^ng^ arises from the fact of the devisee or legatee being made an witnesses. attesting witness of the will.* It is obvious that nothing could be more dangerous than to allow a will to be supported by the testimony of persons who are beneficially interested in its contents. When, therefore, the Statute of Frauds required to the validity of a devise of land, that it should be attested bj' credible witnesses, persons having a beneficial interest under the will were held not to sustain this character ; and, accordingly, a will of freehold estate attested by such persons was invalid ; and that, too, riot only as to the part which created Period of the interest of the attesting witness, but in regard to the credibility, •^(rhole. In applying this principle it was long a question, whether the witness could be rendered competent by destroying his interest by means of a release or payment before his examination ; in other words, whether the credibility of the witnesses was to exist at the period of the attesting act, or of tlie judicial inquiry into its suflBciency. Against the latter hypothesis Lord Camden, in Doe d. Hindson v. Hersey (a), madeian able and energetic protest. "A will," he said, "is often executed suddenljMU a last sickness, and sometimes in the article of death, and a great question to be asked in such cases is,- whether the testator were in his senses when he made the will, and, consequently, the time of the execution is the critical moment which required guard and protection: What is the emplojTnent of the witnesses ? — it is to attest, and to judge of the testator's sanity when they attest ; and if he is not capable, the}' ought to refuse to attest. In some eases the witnesses are passive ; here they are active, and, in truth, the principal parties to the transaction ; the testator is intrusted to then* care." [The majority of the court were, however, against Lord'Camden's opinion.] (a;) Fish v. Klein, 2 Mer. 431. (y) Foudrin v. Gowdey, 3 My. & K. 383. Iz) Sir M. Hale in Collingwood v. Pace, 1 Vent. 417. Otherwise if the father was a deni- zen at the son's birth. (a) 4 Burn's Eccl. Law, 27. claim is by descent. People v. Conklin, 2 death, is not entitled to her land as tenant bv Hill, 67; Vaiix ». Nesbit, 1 M'Cofd, Ch. the curtesy. Foss e. Crisp, 20 Pick. 121. " 370. An alii'n husband who malses the pre- i AdeVise or legacy to a witness is abso- liminary declaration of his intention to he- Iiitely void, so that a conveyance by tlie de- come a citizen before the death of his wife, visee to a third person is inoperative. Jack* and completes his naturalization after hri- son v. Denniston, 4 Johns. 311. 30 .•WHO MAY BE DEVISEES OR LEGATEES. »71 The doctrine contended for bj' tWs distinguished judge; seeiris event* nally to have prevailed (6), and is evidently more reasonable * than the alternative rule, which would have led to this absurd *71 and mischievous consequence, that a will might have been in- validated : by the subsequent conduct of a witness affecting his credi- bility of character, and occurring, it might be, after the death of the testator, when there was no possibility of repairing this disaster to the will. It was soon found that the holding a will of freeholds to be invalid on account of the existence of an interest, however remote or minute, in any one of the attesting witnesses, was productive of much inconven- ience ; and it being apparent that to render the witness competent, by depriving him of the benefit which affected Ms disinterestedness, was far better than to sacrifice the entire will, the statute 25 Geo. Stat. 25 Geo. 2, c. 6 (c),' was passed, which, after reciting the 29 Car. 2, jjeneficiai de- c. 3, s. 5, provided, that if any person should attest the exe- vises and cution of any will or codicil, to -whom any beneficial devise, awest'tag wit- legacy, estate, interest, gift, or appointment of or affecting "«sses void ; (b) Brograve v. Winder, 2 Ves. Jr. 636.' [It must be observed that this case only de- cided that a witness disinterested at the time of the execution of the will and the death of the testator was a good witness, notwithstanding that he was interested at the time of his exami- nation, and that Lord Camden's opinion is directly opposed to the cases of Low« r. JollifEe <1 W. Bl. i)65) and Goodtitie 0. Welford (Ddugl. 139), where a legatee after release was held a competent witness. ' (c) Ir. Pari. 25 Geo. 2, c 11.] 1 Witnesses to a will are incapable of taking any beneficial interest under the will, unless there Tje the statutory number of wit- nesses besides the one so taking an interest, in Arkansas. Digest, 1874, eh. 135, p. 1018. See ib. p. 1019. ■ California. Codes & Stat. Vol. 1. ch. 1, p. 721. Colorado. Gen. Laws, 1877, ch. 103, p. 930. Connecticut. Gen. Stat. 1875, ch. 11, p. 369. Dakotah. Rev. Code, 1877, Title 5, ch. 1, p. 347. Illinois. R. S. 1880, ch. 148, p. 1110. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 678. I(i«'a. Rev. Code, 1880, Vol. 1, Title 16, ch. 2, p. 608. Kansas. Comp. Laws, 1878, ch. 117, p. 1002. Kentucky. Gen. Stat. 1873, ch. 113, p. 835. Massachusetts. Gen. Stat. 1860, ch. 92, p. 477. Slichipan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1372. Minnesota. Stat. 1878, ch. 47, p. 568. Mississippi. Rev. Code, 1871, ch. 9, p 214. Missouri. E. S. 1879, Vol. 1, ch. 71, p. 685. , Nebraska. Gen. Stat. 1873, ch. 17, p. 301. Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, p. 200. 9.1 New Hampshire. Gen. Laws, 1878, ch. 193, p. 455. , New York. R. S. 1875, Vol. 3, ch. 6, p. 64. Ohio. R. S. 1880, Vol. 2, ch. 1, p. 1426. Oregon. Gen. Laws, 1843-1872, ch. 64, p. 789. Texas. R. S. 1879, Title 99, p. 713. . Utah. Comp. Laws, 1876, ch. 2, p. 271. Virginia. Code, 1872, ch. 118, p. 912. West Virginia. R. S. 1878, ch. 201, p. 1172. Wisconsin. R. S. 1878, ch. 103, p. 650. The statute of New York provides that if the witness who has a beneficial interest under the will would be entitled to a share of the estate had the will not been made, so much of such share shall be saved to him! and he shall recover that share of the devi- eees'or legatees. Rev. Stats. (N; Y.) 1875, Vol. 3, ch. 6, p. 64. And like prorisions exist in the states of Arkansas. Digest, 1874, ch. 135, p. 1018. California. Code & Stat. 1876, Vol. 1, ch. 1, p. 721. Colorado. Gen. Laws, 1877, ch. 103, p. 930. Dakotah. Rev. Code, 1877, Title 5, ch. 1, p. 347. Illinois. R. S. 1880, ch. 148, p. 1110. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 578: Iowa. Rev. Code, 1880, Vol. 1, Title 16, ch. 2, p. 608. • Kansas. Comp. Laws, 1879, ch. 117. p. 1002. ■ , . ■ ^ *n WHO MAY BE DEVISEES OE LEGATEES, any real or personal estate, other than aisd' except efaargeS on lands, tenements, or hereditaments, for payment of any debt or debtav should be therfeby given, or made, such devise, &c., should, so far only as con- cerned such person attesting the execution of such will or codicil, or any person claiming under him, be utterly null and Toid ; and such per- — and wit- ®*"^ should be admitted as a witness to the execution of such nessescom- will or codicil within the intent of the said act, notwith- petent. standing such devise, &c. ; but it was enacted (secfc 2)^ that in case by any' will or codicH any lands, tenements, or heredita- ments were or should be charged with any debt or debts, and any Creditors creditor, whose debt was so charged, had attested, or should whose debts attest, the execution of such will or codicil, every such '^6dwi?' ' creditor, notwithstanding such charge, should be admitted nesses. as a witness to the execution of such will or codicil^ withiri the intent of the said aet. Sects. 3, 4, and 5, relate only to willg made Kentucky. Gen. Stat. 1873, ch. 113, p. 835. Michigan. Comp. Laws, 1371, Vol. 2, eh. 154, p. 1372. Minnesota. Stat. 187S, ch. 47, p. 568. Mississippi. Bev. Code, 187i, ch. 9, p. 214. Missouri. E. S. 1879, Vol. 1, ch. 71, p. 685. Nebraska. Gen. Stat. 1S73, ch. 17, p. 301. , Ohio. K. S. 1880, Vol. 2, «h. 1, p. 1426. . Oregon. Gen. Laws, 1843-1872, ch. 64, p. 790. Texas. R. S. 1879, Titl*99, p. 713. Virginia. Code, 1873, ch. 118, p. 912. . West YiiEinia, E. S. 1878> ch. 201, p. 1172. Wisconsin. R. S. 1878, oh. 103, p, 650. See also the following: Georgia Code, 1873, ch. 2, p- 417; Maine, Rev. Stat. 1871. ch. 74, p. 563; New Jersey, Revi.iion, 1709-1877, Vol. 2, p. 1244; North Carolina, Battle's Revisal. ch. 119,' p. 848; Pennsvlva- bia. Bright. Pard. Digest, 1700-1872. Vol. 2, p. 1475 ; Rhode Island, Gen. Stat. 1872, ch. 171, p. 376; South Carolina, R. S. 1873, ch. 86, p. 443; Tennessee, Stat. 1871, Vol. 2, ch. 1, p. 997 ; Vermont, Gen. Stat. 1862, Title 16, ch. 49, p. 378. If a legatee die before the testator he is considered a legal witness to a will in Arkansas. Digest, 1874, ch. 135, p. 1019. . Missouri. R. S. 1879, Tol. 1, ch. 71, p. 685. New Jersey., Revision, 1709-1877, Vol. 2, p. 1245. Oregon. Gen. LaWs, 1843-1877, ch. 64, p. 720. Rhode Island. Gen. Stat. 1872, oh. 171, p. 375. States in which a. legatee is competent if he release or have been paid or refuse to ac- igest,'l874, ch. 136, p. 1019 , E. S. 18T9, To!. 1, ch. 71^ Revision, 1709-1877, Vol. 2, cept such legacy.: Arkansas. Di{ 92 Missouri. p. 685. New Jersey, p. 1244. Oregon. Gen. Laws, 1843-1877, cht 64, p. 790. A witness of the execution of a will is not rendered incompetent by the facts that lie re- ceived a deed of land from the testator at the time of the execution of the will, and tliat bis ritother was the principal devisee. Nash V. Reed, 46 Me. 168. An heii-at-law, who is disinherited by a will, is also a competent subscribing witness thereto. Sparhawk ». Sparhawk, 10 Allen, 155. A witness to a will of land, who was at the time of his attestation a presumptive heir to the devisor, is not interested in the devise within the meaning of section 11 of the North Carolina act of 1774. Old v. Old, 4 Dev. 600. In Tennessee, the sons of a devisor are competent witnesses to the will, if none of the lands of the devisor be devised to them. Allen V. Allen, 2 Overt. 172. By the Mexican law an ntoMe appointed executor in the will, but not named therein as heir or legatee, ar\d deriving no advantage under it, and being allowed nothing by law for his serviqesj is competent to authenticate the will in his judicial capacity. Panaud v. Jones, 1 Cal. 488. The judge of probate is a good witiftss to a will. McLean «. Barnard, 1 Root, 462; Ford's case. 2 Root, 232. In Illinois, a county judge is competent. Rev. Stat. 1880, ch. 148, p. 1109. ' The inhabitalits of an incorporated town to whom property is devised for the support of a school are competent witnesses to attest a will. Comwell v. labam, 1 Day, 36. So of towns and corporations under the New Hamp< shire statutes of 1789. Eustis «. Parker, 1 N. H. 273 ; S. P. Warren v. Baxter, 48 Me^ 183; Haveh ». Hilliard, 23 Pick. 10; Loriiig V. Park, 7 Gray, 42. \ . WHO MAY BE PEVISBES OR liEGATEBS. *73 OM ©r before the 24th of June, 1752, and the remaining sections are not very important. On the statute it was decided: 1st. That it extended exclusively to persons beneficially interested, and not to a devisee or Pointade- ^xecutor ia trust (d). 2dly. That it applied only where cidedonthe tiie witness took a direct interest under tiie will, and not where his uitercst * arose consequentially. Thus in Hatfield v. *72 Thorp («) , where one of the three attesting witnesses to a will was the husband of a devisee in fee of a freehold estate, and would jure uxoris have claimed an interest in the devised lands, it was held thai the devise was not within the statute (/) , and, consequently, that the attestation was insufiScient. 3dly. That the act did not apply to \yills of j[copy holds (^) or of] personal estate (A), for as such wills did not require an attestation at aE, there was no ground for invalidating the gift to the witness ; but that in regard to wills of freehold lands, the fact that the witness was not wanted to make up the statutory num> ber (there being three others) did not render valid a gift to such super-, numerary witness (4) . [Where a testator by will devised property to his widow, and by codicil, to which she was a witness, confirmed his will, it , . was held that the gift to her by the wiU remained unaffected : a codicil con- but she was of course held not to be entitled to property ^^'"^ 'f\ purchased after the date of the will, and which would have ujider the passed to her by force of the republication, if she had not '^' ' been a witness to the codidl (i).] ' , By the act 1 Viet, c, 26, tiie legislature has adopted the principle, and extended the operation, of the enactments in the statute stat. 1 Vict 25 Geo. 2, c. 6 (which it repeals, except as to the colonies "■• ^^• in America). ■ Sect. 14 provides. That if any person, who shall attest tiie execution (d) Anon., 1 Mod. 107; Lowe v. Jolliffe, 1 W. Bl. 36S; Holt e. Tyrrell, 1 Bam. K. B. 12: Battison «. Bromley, 12 East, 250; Phipps ». Pitcher, 6 Taunt. 220, 1 Mad. 144; see also Gpss e. Tracey, 1 P. W. 290; Goodtitle «. Welford, Doug. 139. ■ . bowsing, 2 Str. 1253); and it might have seemed not unreasonable to suppose that the act Geo. 2 was intended to include such a case. But there is no trace of such an argument in tha case, and the form of the certificate was probably determined without reference to it, and simplvby the form of the question proposed, which it precisely follows. (o)" Jillard 1). Edgar, 3 DeG. & S. 502.] (h). Emanuel e. ConsUble, 3 Euss. 436; Brett ». Brett, 1 Hagg. 58, n. ; Foster «i. Banbury,. 3 Sim. 40. ii) Doe V. MiUs, 1 Mood. & Rob. 288. [(A) Denne B. Wood, 4 L. J. (0. S.)57, V. C. Leach.] •73' WHO MAY BE DEVISEES OK LEGATEES'. Will; not to of a will, shall at the time of the execution thereof, or at any' account of in- time afterwards, be incompetent to be admitted a competency #73 » witness to prove the execution thereof* such will of attesting '^ -i • i- t witnesses. shall not on that account be invalid. Sect. 15, That if any person shall attest the execution of any will' G'ft t t- ^^ whom, or to whose wife or husband, any beneficial devise,- testing wit- legacy, estate, interest, gift, or appointment, of or affectipg orlmsban'dof ^''y ^^^^ '^^' Personal estate (other than and except charges witness to be and directions for the pajTnent of any debt or debts) , shall J ' be thereby given or made, such devise, legacy, estate, inter- est, gift, or appointment, shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such per- son, or any person claiming under, such person, or wife or husband, be utterly null and void ; and such person so attesting shall be admit- ted as a witness to prove the execution of such wiU, or to prove the validiti/ or invalidity thereof, notwithstanding such devise, legacy, estate, inter-^ est, gift, or appointment, mentioned in such will.^ Sect. 16, That in case by anj- will any real or personal estate shall- Creditor at- ' be chained with any debt or debts, and any creditor, or liie admitted" a* wife or husband of any creditor, whose debt is so charged, witness. shall attest the execution of such will, such creditor, not- withstanding such charge, shall be admitted a witness to prove the exe- cution of such will, or to prove the validity or invalidity thereof.' Executor to Sect. 17, That no person shall, on account of his being an be admitted executor of a will, be incompetent to be admitted a witnesa a wi nesb.- ^ prove the execution of such will, or a witness to prove the validity or invalidity thereof.' 1 Sullivan ». Sullivan, 106 Mass. 474; Jackson V. Woods, ,1 Joiins.^Cjvs. 163; Jaclc- son ». DurJand, 2Johns. Cas. 314; Wihslow V. Kimball, 25 Me. 493. See Fortune ». Buck, 23 Conn. 1. 2 States in which creditors are competent Vritnesses to a will :, — Arkansas. Digest,' 1874, ch. 1^5, p. 1018. California. Codes and Stat. 1876, Vol. 1, ch. 1, p. 721. Colorado. Gen. Laws, 1877, ch. 103, p. 930. . Dakotah. Rev. Code, 1877, Title 5, ch. 1, p. 347. Delaware. Rev. Code. 1874, ch. 84. p. 509. Illinois. R. S. 1880, ch. 148, p. 1112. Kcntuckv. Gen. Stat. 1873, ch. 113, p. 835. Massachusetts. Gen. Stat. 1860, ch. 92, p. 477. ' Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1372. ' Minnesota. Stat. 1878, ch. 47, p. 568. Mississippi. Rev. Code, 1871, ch. 9, p. 214. Missouri^ R. S. 1879, Vol. 1, ch. 71, I*. -685. --■-•■ Nebraska. Gen. Stat. 1873, ch. 17, p. 301. Nevada. Comp. Laws, 1873, Vol. \ ch. 37, p. 200. 94 New Hampshire. Gen. Laws, 1878, ch. 193, p. 455. New Jersey. Revision, 1709-1877, Vol. 2, p. 1244. New York. R. S. 1875, Vol. 3, ch. 6, p, 58. , . , Oregon. Gen. Laws, 1843-1877, ch. 64,. p. 790. Rhode Island. Gen. Stat. 1872, ch.' 171, p. 375. South Carolina. R. S. 1873, ch. 86, p. 443. Virginia. Code, 1873, ch. 118, p. 913. ' ■West Virginia. R. S. 1878, ch. 201, p. 1172. Wisconsin. R. S. 1878, ch. 103, p. 650. s The law varies somewhat in the differ-' ent states as to the competency of execu- tors. An executor who has declined or renounced the trust is no doubt universally competent, supposing of course he has no other interest under the will. Jones v. Lar- rabee, 47 Me. 474. Burritt v. Silliman, 3 Kern. 93. See Dorsey v. Warfield. 7 Md.' 65. But it has been decided in North Caro- lina that a renunciation by the executor will not render his wife a competent, witness to"" prove the will. Huie v. MeConnell, 2 Jones, 455. Seii farthfer as'to the lavt of that istAte, "WHO MAY BE DEVISEES OK LEGATEES. *74 These enactments, it will be observed, [preclude, as to wills coming within their provisions, all questions arising under the old law Remarks as to the effect of a gift to the husband or wife of an attesting "pon new- witness, and thej'J extend the disqualification of the witness intlerested to take beneficially to wills of every description ; the act hav- witnesses. ing, bj' assimilating the execution of wills of real and personal estate, de- stroyed all ground for distinguishing between them in regard to this point. [Upon the construction of the 15th section it has been decided that a legatee under a will does not lose his legacy by attesting point, ^^f.^^. a codicil which confirms the will (I) : , and further, that a ed on i Vict. G 26 s 15 residuary legatee, by so doing, does not lose his share of ' ' ' the * residue, although the codicil in fact increases that share by *74 revoking some particular legacies (w). Each witness attests only the instrument to which he puts his name. Again, where a will attested by a legatee is republished by a codicil attested by other witnesses, the gift to the legatee is made good (n). But where by will a legacy was bequeathed in a contingency which failed, and by a codicil attested by the legatee, the legacy was made absolute, the legatee was held dis- qualified to take the absolute legacy (o). And, following the rule regarding wills of real estate under the pre-existing law, a witness is held to be disqualified to take as legatee although he is a supernu- merary (p). But the court of probate receives evidence quo ammo the supernumerary signed ; and if it appear that he did not sign as a wit- ness, his signature will be omitted from the probate (q).'] In allowing an attesting witness to be appointed executor, whether he be or be not in terms made an executor in trust (r), re- Executor gard is evidently had to the statute of 1 Will. 4, c. 40, now not en- ■which, it will be remembered, precludes executors from claim- disposed-of ing, by virtue of their office, the beneficial interest in the personalty. [(l) Gurney v. Gurnej', 3 Drew. 208 ; Tempest ». Tempest, 2 K. & J. 642, 7 D. M. & G. 470; in conformity, witli the rule respecting real estate before the act, see p. 72. (m) Gurnev » "Gurney, supra. (») Anderson v. Anderson, L. E. 13 Eq. 381. (o) Gaskin" v. Rogers, L. K. 2 Eq. 284. (p) Wigan V. Rowland, llHare, 157; Randfield v. Randfield, 32 L. J. Ch. 668. (y) Re Sharman, L. R. 1 P. & D. 6611 Its presence in the probate would appear to be conclusive of its character in the case of personalty. In a case where the superfluous name was struck thr lugh in the original, probate issued in fac-simile, leaving it for the court of con- struction to determine the effect, Re Raine, 34 L. J , Prob. 125 : as to which see Gann v. Gregory', 3 D. M. & G. 777, stated above p. 27. But since the Judicature Act, 1873, it should seem the Probate Division ought itself to determine tiie question. As to real estate the probate will be equally conclusive if the proper parties have \)een cited under the Court of Probate Act, 1857; see also Randfield v. Randfield, 30 L. J. Ch. 179 n. (r) A , gift to the witness as trustee of course is not invalidated. Cresswell ». Cressii^ell, L. R. 6 Eq. 69.] Tucker v. Tucker, 5 Ired. 161; Morton v. p. 913). Meyer ». Fogg, 7 Fla. 292 ; Murphy Ingram, 11 Ired. 368 ; and see Laws of 1873, v. Murphv, 24 Mo. 526; Richardson v. Rich- cited infra. By the law of several -of the ardson, 35 Vt. 238; Gen. Stat. Ky. 1873, states an executor is competent notwithstand- ch. 113, p. 835; Battle's Revisal, N. C. 1873, ing acceptance of the trust if he take no in- ch. 119, p. 843; R. S. S. Car. 1873, c. 86, terest under the testament. Wyman ». p. 443 ; 2 R. S W. Va. 1878, ch. 201, p. 1172. Symmes, 10 Allen, 153 (Gen. Stat. ch. 131, But acceptance of the trust is, or has been, §5 13-15); Comstnck v. Hadlvme, 8 Conn. a disqualification to the executor in some 254(Gen. Stat. 1875. ch. n, p.'369); Coalter states. Vansant r. Boileau, 1 Binn. 444; t>. Bryan, 1 Gratt. 18 (Code, 1873, c. 118, Snyder ». Bull, 17 Penn. St. 5^. 95 *75 WHO MAY BE DEVISEES OB li^EgATEBS. ,undisposed-of personal estate of their testator, to which, by the, pre- existing law, an executor was entitled, where the will did not afford any presumption of a contrary intention, a point which was often diffi- cult of solution.^ The great change, however, effected by the statute 1 Vict, in regard to the witnesses, is in expressly dispensing with all personal qualiflcar tions ; bat, on this subject (a discussion of which would be out of plac^ ■ here), the reader is referred to some remarks in a future chapter which treats of the execution of wills. In conclusion, it is proper to notice another disability to take by Devise to devise, which formerly arose out of the doctrine, that fTct'u^ef" *^^ where * a title by descent and a title by devise con- theoldiaw. curred in tiie same individual, the former predomi- nated, and the heir was in by descent and mot by purchase ; " and it was held, that neither the itapositioa of a pecuniary charge («), nor even the engrafting on the devise to the heir an executoiy devise (*), had the effect of inteiTupting the descent. If, however, the quality of tiie estate which the heir took by the devise differed from that which would have descended upon him, he of course acquired the property as idevisee. On this principle a devise for life to the testator's heir, with remainder over, conferred on him an estate by purchase (u). So, if a testator devised freehold lands to his two daughters (being Devises to ^'^ co-heiresses at law) to hold to them and their beu'S, they testator's both took by purchase, because under the devise they were '^"'' joint-tenants and not co-parceners, as tJiey would have been by descent (x) ; and the rule was the same if the devise were to tiiem as tenants in common ; a tenancy in common (though making some- what nearer approach to) being different from an estate in co-parce- nary (y) . Of course a devise to one of several co-heirs or co-heiresses made the devisee a purchaser («) ; [and so it seems would a contingent remainder devised to the person who at a stated time should be the testator's heir-at-law (a).] . (*) Haymsworth ». Prettv, Cro. El. 833, 919, Moo. 644; Clarke v. Smith, 1 Sallc. 241. •. it) Chaplin ». Leroax, S'M. & Sel. 14; Doe ». Timins, 1 B. & Aid. 530; Manbridgeu. Pluimmer, 2 My. & K. 93. [So in case of copyholds, Smith v. Triggs, 1 Str. 487. <«) That in" cases o{ marshalling, the heir, under an express devise to hun, had the rights of a devisee, see Biederman «. Seymour, iS Beav. 368 ; a fortiori, since the stat. 3 & 4 Will. A, c. 106, s. S; see Strickland i;. Strickland, 10 Sim. 374.] , . (a;) Cm. EI. 431. {And see Swaine V. Burton, 16 Ves. 36B.1 (y) Bear's case, 1 Leon. 112, 315. (z) Co. Litt. 1«3 b; [Reading v. Hoyston, 1 Salk. 242.1 (a) 1 Sanders Uses, 133 n., 4th ed., citing Cholmondeley v. Clinton, 2 J. & W. 1. 1 The English deeiBioM respecting the Binn. 567; Jfeaves's estate, 9 Sere. & E. circumstances Which will make an executor 186, 189, 190; 2 Williams, Ex. (6th Am. ed'.) trustee for the nexit of kin are for the most 1050 et seq. part inapplioablc in America, where the sur- . 2 EHis ». Page, 7 CusIl 161 ; Parsons «. plus undisposed of by the testator is univer- Winslow, 6 Mass. 178; Whitney v. Whitney, (ally distributable among the next of kin. 14 Mass. 90. See Hubbard i. Eawson, 4 See 1 SJiory, En. Jur.^ 1208; 3 Phill. Ev. Gray, 242; Sedgwick *. Minot, 6 Allen, 171; :. Welch, 2 T. B. Mon. 83, it was held that to prove a will devising lands, evidence by one subscribing witness that he signed the festa- trix,'s name and subscribed his own as witness at her request, and in the presence of her and' another subscribing witness, and evidence by the other subscribmg witness, that he heard her acknowledge it, and subscribed it as a witness at her request, and in her presence, is sufficient. Rash v. Parnel, 2 Harrington, 448. See Smith v. Jones, 6 Kand. 33; Dud- leys V. Dudleys, 3 Leigh, 436 ;. Burwell v. Corbin, 1 Rand. 13i, 468; Beane «. Yerby, 12 Gratt. 239 ; Green v. Crain, 12 Grjitt. 252. A will subscribed by three attesting witnesses, at the testator's request, and in his presence, he declaring it to be his will, is well attested, within the Gen. Stat, of Mass. c. 92, § 6, al- though neither of the witnesses saw him sign it or heard him acknowledge his signature there- to, and only one of themsawthe testator's name thereon, bewey v. Dewey, 1 Met. 349. The case of Hogan v. Grosvenov, 10 Met. 54, was in substance the same as that of Dewey v. Dewey, and a verdict in favor of the will was sustained. See Blake ». Knight, 3 Curteis, 547. The statutes under which the above cases were decided do not provide in express terms for the making of such acknowledg- ment. , But the statutes of New York and of other states expressly provide for the acknowl- edgment by the testator of bis signature in the presence of the witnesses. See Lewis «. Lewis, 13 Barb. 17; Jauncey v. Thome, 2 Barb. Ch. 40. So, also, Stat. 1, Vict. c. 26, § 9. provides that the signature of the testator shall be made or achiwuiledffed by the testator in the presence of the witnesses. In In re Kawlins, 2 Curtei?, 328, the deceased signed her will not in the presence of witnesses, and subsequently produced her will before two witnesses, and said to them, " Sign your names to this paper." This was held not to be a sufficient acknowlecQ^ment of her signa- ture under the above section of 1 Vict. c. 26. See In re Warden, 2 Curteis, 334. Under the same section of 1 Vict. c. 26, probate was refused of a paper produced by the deceased to three witnesses, who subscribed their names thereto, two of the witnesses not seeing the signature to the paper, nor knowing that it was signed, the third witness deposing that she saw the signature of the deceased. In re Harrison, 2 Curteis, 863. But see Bennett v. Sharp, 33 Eng. L. & Eq. 618. In another case, which was much considered, it appeared that the deceased requested two persons, pres- ent at 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; and the deceased did not state what was the nature of the paper in question. On the death of the deceased it was found to be his intended will. The will was refused probate, because the Stat. 1, Vict. c. 26, § 9, had not been complied with. Ilott V. Genge, 3 Curteis, 160 ; Jackson V. Jackson, cited ib. See Gaze v. Gaze, 3 Curteis, 451; Shaw v. Neville, 33 Eng. L. & Eq. 615; Lewis v. Lewis, 1 Kern. 220. Still, under this statute it has been held that it is not necessary that the part)- should say, in express terms, "That, is my signature ; " it is sufficient if it clearly appears that the signature was existent on the will when it was produced to the witnesses, and was seen by the witnesses when they subscribed the w"ill. Blake v. Knight, 3 Curteis, 547 : Keig- win V. Keigwin, ib. 607; In re Ashmore, ib. 756., In. New Jersey, however, by construc- tion of the statute "(1714) in that state for devising real estate, which required that the testator should si^n his name in the presence of -the witnesses, it has been held that no' mere acknowledgment by the testator, in the presence of the witnesses, of his signingthe mW, is sufficient. Mickle v. Matlack, 2 Har- rison, 86, Horublower, C. J., dissenting; Den V. Milton, 7 Halst. 70; Combs v. Jolly, 2 Green, Ch. 625. A will is not regardeti as properly executed in New Y^ork, where neither of the attesting witnesses saw the deceased subscribe his name thereto, and neither heard him acknowledge tlie signature to be his, or heard him say what the paper was. Lewis -tf. Lewis, 13 Barb. 17. See further Shaw !>. Nev- ille 33 Eng. L. & Eq. 615; Hall c. Hall, 17 Pick. 373, 379, 380; Dewev «- Dewey, 1 Met. 349; Smith c. Jones, 6 Rand. 33; Dudleys v. Dudleys, 3 Leigh, 436; Small v. Small, 4 Greenl. 220; Eelbeck ». Granberrv, 2 Havw. 232; Burwell v. Corbin, 1 Rand". 131, 408; Rosser v. Franklin, 6 Gratt. 1; Denton e. Franklin, 9 B. Mon. 28; Jauncey v. Thorue, 2 Barb. Ch. 40. 106 OF WILLS BEFOBE 1838. *82 for, if the testator signed three times, there were three executions, and none of them good. The next question was, what constituted a sufficient acknowledgment before the witnesses.^ In Grjle v. Grj-le (h), Lord Hard- What wicke doubted whether it was enough for the testator to say ^"''""tecl to before the witness, " This is my will," without a resealing edgment. (for the instrument in that case had the unnecessary appendage of a seal) , or unless the testator had declared it to be his handwriting ; but the doubt appears to have vanished in Ellis v. Smith (i) , where the question is stated in general terms to be, whether a testator's declara- tion before three witnesses, that it is his will, was equivalent to signing ; and the conclusion, therefore, of the judges who decided that case in favor of the validity of the will, amounted to an affirmation of the sutH- cienc3' of such a declaration. Later adjudications placed the point beyond all doubt by going much, farther ; these cases having decided that where a testator, witnesses who had previously signed his will, merelj' requested the need not be witness to subscribe the memorandum of attestation, though the nature of they neither saw his signature, nor were made acquainted instrument, with the nature of the instrument they attested, the will, neverthelessy was duly executed according to the statute (^).^ "When we find," said Tindal, C. J., in British Museum v. White, " the testator * knew this instrument to be his will : that he produced it to the *82 three persons, and asked them to sign the same ; that he in- tended them to sign it as witnesses ; that they subscribed their names in his presence, and returned the same identical instrument to him ; we think the testator did acknowledge in fact, though not in words, to the three witnesses, that the will was his." The next statutory requisition is, that the will be " attested and subscribed" by three witnesses.' A mark has been decided to (h) 2 Atk. 176. (i) 1 Ves. Jr. 11. (A) British Museum v. White, 3 M. & Pay. 689, 6 Bing. 310 : Wright v. Wright, 5 M. & Pav. 316, 7 Bing. 457; Johnson v. Johnson, 1 Cr. & M. UO, [3 Tvrw. 73; Hudson v. Parlier, 1 Kob. 14, 8 Jur. 780 ; Gaze v. Gaze, 3 Curt. 451, 7 Jur. 803 : but'see Ilott i). Genge and other cases noticed post, with reference to the late Act, under which a stricter aclcnowledgment is required.] 1 Tlie acknowledgment may, in New York, Missouri Statute of Wills requires that the precede the signing by the testator. Jackson subscribing witnesses to a will should attest, ». .Tackson, 39 N. Y. 153. not only the act of signing, but the sanity 2 Chase f. Kittredge, 11 Allen, 49; Elav. of the testator at the time. Withington v. Edwards, 16 Gray, 91 ; Harmon v. Clark, 13 Withington, 7 Mo. 589. So in Illinois it is Gray, 114; Osbo'rn v. Cook, 11 Gush. 532; required by statute, in order to the proof of d Brown t). McAlister, 34 Ind. 375; Dickie v. will, that the witnesses should state that they Carter, 42 111. 376; Allison v. Allison, 46 111. believed the testator to be of a sound mind 61. and memory. R. S. 1880, ch. 148, p. 1108. 3 Attesting means more than barely sub- Heyward v'. Hazard, 1 Bay, 335. The wit- scribing the name to the paper. It implies nesses, in view of the law, are placed around knowledge of a publication, and of the facts the testator, in order that no fraud mav be necessary to a legal publication. Swift v. practised upon him in the execution of the Wilev, 1 B.Mon. 117; Griffith v. Griffith, 5 will, and to judge of his capacity. 2 Greenl. B. Mon. 511. See Gerrish v. Nason, 22 Me. Ev. § 691. 438; Sweet o. Boardinan, 1 Mass. 258. The 107 *82 EXECUTION AND ATTESTATION What a suffi- cient signa- ture by the witnesses ; — a mark; — initials; be a Bufflcient subscription (l),^ but it is never advisable, where it can be avoided (and, now that the art of writing is so common, seldom necessary) , to employ marksmen as wit- nesses. [The initials of the witnesses also amount to a suf- ficient subscription, if placed for their signatures, as attesting the execution (m) ; but not if they are placed in the margin opposite to, and apparently for the purpose only of identifying alterations («) . A witness need n6t sign his own name, if the name actuall3' subscribed be intended to represent his name (o) : or if he write a description — wrong (without any name) intended to identifj- him as witness ( p) . name; By^ if ^ wrong name be signed with the intention of making it appear that the will was attested by the person to whom that name —sealing- belongs, instead of the actual witness, the subscription is — euidine insufficient (9). Putting their seals to the will is not suffl- the hand. cient (r) . If the witness cannot write, his hand maj- be guided by another person (s) ,^ or another person maj' write the wit- ness's name while the witness holds the top of the pen (t) ; in fact, (/) Harrison v. Harrison, 8 Ves. 185 ; Addy u. Grix, ib. 504 ; [Re Amiss, 2 Eob. 116, 7 No. Cas. 274; Ee Ashmore, 3 Curt. 756. (m) Re Christian, 2 Rob. 110, 7 No. Cas. 265. (n) Re Martin, 6 No. Cas. 694, 1 Rob. 712; Re Cunningham, 1 Searle & S. 132, 29 L. J., Ch. 71. See the former case mentioned again p. 85. (0) Ee Olliver, 2 Spinks, 57. (p) Re Sperling, 33 L. J. Prob. 25. Whatever is written, it must be with the intention that it shall represent the writer's name or otherwise identify him. Ee Eynon, L. R. 3 P. & D. 93; Re Maddock, ib. 169. (?) Prvor v. Pryor, 29 L. J. Prob. 114. (r) Re'Byrd, 3 Curt. 117, 1 No. Cas. 490. (s) Harrison V. Elvin, 3 Q. B. 117, 2 (i. & Dav. 769; Ee Frith, 1 Sw. & Tr. 8, 27 L. J. Prob. 6, 4 Jur. N. S. 288. (0 Ee Lewis, 31 L. J. Prob. 153. But prima facie not so if the witness can write. Re Kilcher, 6 No. Cas. 15. 1 Davies v. Davies, 9 Q. B. 648; White V. British Museum, 6 Bing. 310; Wright v. Wright, 7 Bing. 457; Warren v. Postle- thwaite, 9 Jur. 721 ; In re Maddock, L. E. 3 P. &D. 169; Osborn v. Cook, llCush. 532; Small V. Small, '4 Greenl. 220; Lord ». Lord, 58 N. H. 7; Jackson v. Van Dusen, 5 Johns. 144; ChafEee v. Baptist Miss. Con., 10 Paige, 85 (although the New York statute requires that each witness shall subscribe his name); Adams .». Chaplin, 1 Hill, Ch. 266; Pridgen V. Pridgen, 13 Ired. 259; Den v. Milton, 7 Halst 70. It must,, however, be proved to be the mark of the witness. Collins ». Nicdols, 1 Hiirr. & J. 399. Probate was granted of a codicil which had been produced by the testa- trix, all in her own handwriting, and with her signature thereto made, to two witnesses present at the same time, who at her request made their marks thereto, although the testa- trix wrote the names of the witnesses opposite their respective marks, and, by mistake, gave a wrong surname to one of them. In re Ash- more, 3 Curteis, 756. See 2 Greenl. Ev. I 677 ; Baker v. Dening. 8 Q. B. 94 ; Harrison V. Elvin, 3 Q. B. 117; Doe ». Davis, 11 Jur. 182; 1 Greenl. Ev. (4th ed.) § 272; Wigani). Eowland, 21 Eng. L. & Eq. 132. In Vir- ginia it is held that one witness may sign the name of another witness, the latter being present and requesting it. iTesse v. Parker, 6 Gratt. 57. So in Kentucky. Upchurch v. Upchurch, 16 B. Mon. 102. The contrary was decided in Horton v. Johnson, 18 Ga. 3!)6, unless the witness, unable to write, makes his mark. The validity of the attestation depends upon the signing of the name by the authority of the witness, and in his presence, and not (according to the rule laid down in several of the states) upon the fact of his making a mark or doing any other manual act in connection with the signature. Lord v. Lord, 58 N. H.7; Jesse 1;. Parker, 6 Gratt. 67; Upchurch c. Up- church, 16 B. Mon. 102. But the rule is otlier- wise in some of the courts, ib. The act must, of course, be rmlmo testnvdi. Ib.; In re Mad- dock, L. R. 3 P. & D. 169; In re Duggiug, 39, L. J. P. & M. 24. 2 Lord V. Lord, 58 N. H. 7. But acknowl- edgment of a previous signature is not a sufficient attestation; though it would be suJHcient in most states as to the execution by the testator, lb.; Chase 0. Kittredge, 11 Allen, 49. ^ 108 OF WILLS BEFORE 1838. *83 there seems to be no distinction in these respects between the Difference words " sign" and " subscribe ; " any act, therefore, which, between sig- as before noticed, would be a good signature by a testator, wkneL'^and would be a good signature by a witness, — with, however, ^y testator. these exceptions, that the subscription of the witness is required to be made in the presence of the testator, and must not, as in the case of a testator, be a signature made by some other person for the wit- ness, or by *the witness himself at some other time, and merely *83 acknowledged b}^ him in the presence of the testator (m) . Where the will has been once attested by a witness, it is not sufficient for him, on a re-execution, to go over his name with a dry jj^^ ^ . pen ; he must do some act apparent on the face of the paper act apparent (x) ; otherwise it is no more than an acknowledgment.^ And ""^ ""^ p^'^^r, where a witness to a former execution, on attesting a will for the second time, did not again write her name, but after her name written on the first execution, wrote the name of her residence, "Bristol," Sir H. J. Fust considered that to be no proof of the attestation, and decided that the will was not properly re-executed (y) . So where a witness to a former execution, on attesting a re-execution of a will, wrote the day of the month against his former signature, and crossed one of the let- ters in it, not intending that the mark made by crossing the letter should stand for his signature ; but supposing that the addition of the date was equivalent to a repetition of the signature, it was held by Sir C. Cresswell that the wiU was not duly re-executed (z). In these cases the attestation was insufficient, because there was no proof that the word " Bristol" in the one case, and the mark across the letter in the other, were intended to represent the witness's signature. _ qj j They were nothing more than acknowledgments of the scriptive of former signatures. The signature must be such as is de- ^ witness. scriptive of the witness, whether by a mark, or by initials, or by his full name (a) , or by a description without name (6) ; a view which necessarilj' denies efficacy as a signature to the writing of the date. The signature of the witnesses may be placed in any part p(,g;ti„„ „( of the will ; ^ for instance, the will ending on the first side witness's sig- of a sheet of letter paper, the witnesses may sign on the °* ""^^^ (a) Moore v. King, 3 Curt. 2«, 2 No. Cas. 45, 7 Jur. 205; Re Cope, 2 Eob. 335; Be White, 2 No. Cas. 461, 7 Jur. 1045; Re Mead, 1 No. Cas. 456. {X) Playne v. Scriven, 1 Kob. 772, 7 No. Cas. 122, 13 Jur. 712; Ee Cunningham, 1 Searle & S. 132, 29 L. J. Prob. 71; Re Maddocli, L. R. 3 P. & D. 169. (m) Re Trevanion, 2 Eob. 311. (z) Charlton u. Hindmarsh, 1 Sw. & Tr. 433, 8 H. L. Ca. 160. (a) Per Lord Chelmsford, 8 H. L. Ca. 171. (b) Re Sperling, 33 L. J. Prob. 25. 1 An indorsement upon the back of a will, at the end of the will ; and any unnecessary four years after the execution of the latter, or unreasonable blank between the testator's in wfiieh the testator ratifies the contents, is signature and the attestation will be fatal, not a re-execution ; and hence no attestation Soward ». Soward, 1 Duv. 126. The addi- to the indorsement will amount to an attesta- tion of a certificate of acknowledgment such tion of the will. Patterson v. Ransom, 55 as is made to deeds, though superfluous, is Ind. 402. good so far as the signature of the officer is i Attestation must, in Kentuckj', be made concerned as one of the witnesses to the exe- 109 *84 BSECUTION AND ATTESTATION fourth side (c) ; and the will ending on the middle of the third side, and two of the witnesses signing at the end, and another signing in a vacant space on the second side opposite the other two, was held a sufficient attestation by three witnesses under the Statute of Frauds {J). *84 But it niust of course be proved that any part * of the will which follows the signatures of the witnesses was written before they signed (e).J A wiU may be composed of several clauses written at distinct inter- Applicabiiity vals, and One memorandum of attestation subscribed to of attesiatioa the last part may apply to the whole, including as well what tiuct parts o£ was long before written as what had been recently added, a will; though the antecedent part bears a different date from, — to several and is complete in itself independently of the latter (/). testamentary And the same general doctrine applies to a will whose con- papers ; ^ tents are distributed through several sheets of paper, which, would be adequately attested by a single memorandum, provided all the detached parts were present when the act of attestation took place ; and which fact it seems would be presumed unless the contrary were distinctly proved {g), as would also that of the attestation being intended —to will and to apply to the whole. The presumption would be somewhat codicil. less strong, of course, when each of the several papers has a distinct independent character, as where one-is a will and the other a codicil, or where they consist of two separate codicils : [and would Sifi) Re Chamney, 1 Rob. 757, 7 No. Cas. 70: Re Braddock, 1 P. P. 433. (d) Roberts i). Phillips, 4 Ell. & Bl. 460, 24 L. J. Q. B. 171. (e) Re Jones, 1 tfo. Cas. 396.] (/) Carlton v. Griffin, 1 Burr. 549. (g) Bond v. f eawell, 3 Burr. 1775. cation of the will, if the other formalities re- wa« an attesting clause subscribed by two quired of him as a witness were performed. witnesses, and the signature of the testator; Murray «. Murphy, 39 Miss. 214. Under the on the second page was written the name of present statute in England, 1 Vict. c. 26, § 9, a fourth person, w. B. ; there was nothiug jt is held not to be suiBcient attestalimi for on the face of the will to indicate in what the witnesses to sign before the signature of capacity *' W. B." signed the will. On tlie the testator is affixed. Cooper ». Bockett, 3 trial, which involved the question of the va- Curteis, 648 ; In re Olding, 2 Curteis, 865 ; In re lidity of the will, parol evidence of its execu- Byrd, 3 ib. 117; In re Cox's will, 1 Jones, 321. tion was given, and (he jury found that " W. But in Swift v. Wiley, 1 B. Mon. 117, it was B. signed at the same time as the others, as held that the order of time in which the testa- an attesting witness, and that the olhei-s tor and witnesses subscribed their names is signed at the same time with him," and Ihat not material. So in Connecticut, where wit- "all three attesled the will as attesting wit- nesses called to witness the execution of a nesses." It was held that the same was duly will subscribed their names as witnesses attested so as to pass real estate, under the thereto, and the testator afterwards in their Statute of Frauds; that it was not necessary presence duly executed the same, all of which that anything should appear on the face of was done at one time, and for the purpose of the will to designate W. B. as a witness: fierfecting it as a will, the will was held to be and that it was not necessary that the sigua- egally executed. O'Brien v. Galaghet, 25 ture of W. B. should be under the signa"iure Conn. 229. In reference to the meaningand of the testator. Lord Campbell, C. J., after force of the word " subscribed " in the Eng- an elaborate discussion of the subject, le- Ksh statute, and the position upon the will in marked: " The mere requisition that the will which the subscribing witness's nanje should shall be siAscnbed by the witnesses, we appear, the case of Roberts t). Phillips, 4 Ellis think, is complied with by the witne.sses, & B. 450, is important. In that case it ap- who saw it executed by the testator, imme- peared that a testator, before 1838, made his diately signing their names on any part of it, will devising lands. The will was written on at his request, with the intention of attesting three sides of a sheet of paper; on the last it." 4 Ellis & B. 459. 110 OP WILLS BEFORE 1838. •SS fail altogether where the memorandum does not follow the whole. Thus where will and codicil were on different sheets found pinned together, an attestation clause written on the back of the will was not held to be applicable to the codicil without proof that it was so intended, and that the sheets were pinned together at the time of sub- scription (h). So where there is an evident intention that each paper or sheet shall be separately attested ; as, where a testator signed five sheets, and the witnesses subscribed the first four, and the fifth sheet contained an attestation clause only, and there was no evidence to show that the witnesses attested the last signature, the will was held not to have been properly executed («} ; and where two instruments purporting to be a will and codicil were written on different pages of the same sheet of paper, and both were signed by the testatrix, but the first alone was attested, the codicil was rejected (A).] It was held under the devising clause of the Statute of Frauds, that if a testator made a will attested by two witnesses, and afterwards made a codicil also attested by two witnesses, neither the will nor the codicil was adequate to the devise of freehold * lands ; for *85 though the attesting witnesses to the respective testamentary papers together made up the requisite number, j^et, as the memorandum of attestation subscribed to the codicil was evidently not intended to apply to the will, it could not be so construed (I). If, however, evidence were adduced of such actual intention, the attestation to the codicil Would apply to both (m). [And in every case the court must be satisfied that the names were written animo attestandi ; and their position may for this pur- Animus at- pose be material : where, for instance, on one page the will testandi. was written, signed by the testator, and subscribed by one witness, and on the next page a memorandum or inventory of property was written, to which three names were subscribed, it was held that these names could not be deemed to have been so placed animo attestandi' (n) : though it would not necessarily follow that a person did not sign as a witness because he also intended his signature to serve another pur- pose, e.g. his acceptance of the executorship (o). ' Where an executed will was altered, and the witnesses put their ini- tials in the margin opposite the alterations, it was held that the will was not properly re-executed (q). But this decision seems question- able, for the initials were intended to represent the signatures, and it Uh) Ee Braddock, 1 P. D. 433. (j) Ewens v. Franklin, 1 Deane 7, 1 Jur. N. S. 1220; Re Dilkes, L. R. 3 P. & D. 164; Phipps i\ Hale, ib. 166. (/!;) Re Taylor, 2 Rob. 411; and see per Lord Campbell, 24 L. J. Q. B. 175; Ee Pearse, L. R. 1 P. & D. 382.] (/) Lea V. Libb, Carth. 35, 3 Salk. 395. (m) Bond v. Seawell, 3 Burr. 1775. [But now the witnesses must be present at the same time. (n) Re Wilson, L. R. 1 P. & D. 269. See also Dunn v. Dunn, ib. 277. (o) Griffiths V. Griffiths, L. K. 2 P. & D. 300. (?) Ee Martin, 6 No. Gas. 694. Ill *86 EXECUTION AND ATTESTATION was proved (extrinsic evidence being admissible on this question (r)) that they were written with the intent to attest the will.] What consti- No particular form of words was essential to constitute dent atteS- ^^ attestation (s).^ It was not requisite that the memo- tion. randum subscribed by the witnesses should mention their having subscribed in the presence of the testator, though such fact, of course, must be clearly and distinctly proved by oral testimony, when -^ the validity of the wiU is called in question, whether the Due execu- ^ . . tion when memorandum of attestation records it or not (t). Where the presumed. death [or absence] of the witnesses prevents the obtaining actual proof, a compliance with the statutory requisition in all its parts would, it seems, even in the absence of express Even against *86 statement, generally be * presumed (u) ^ : [and since Se w?tmiss*es. ^^^ passing of the act 1 Vict, probate has been granted of a wiU where both the witnesses deposed that the require- ments of the act had not been compUed with, the court being satisfied by the circumstances that the evidence was mistaken (x) ; and in another case, where the witnesses so deposed, but not positively, their evidence was allowed to be rebutted by that of another person present at the execution, assisted by the attestation clause, whence it appeared (r) lb. ; Dunn ». Dunn, L. E. 1 P. & D. 277. («) Under the act 1 Vict. c. 26, s 9] it is expressly dispensed with. («) Hands v. James, Com/n, 531; Croft v. Pawlett, 2 Str. 1109; S. C, 8 Vin. Ab. 128, pi. 1; Brice v. Smith, Willes, 1; Rancliff v. Parkvns, 6 Dow, 202; [Doe v. Davies, 9 Q. B. 648; Hitch V. Wells, 10 Beav. 8i.] («) Hands v. James; Croft i). Pawlett, supra; [Re Seagram, 3 No. Cas. 436; Ee Mustow, 4 No. Cas. 289; Ee Johnson, 2 Curt. 341; Re Luffman, 6 No. Cas. 183; Ee Dickson, 6 ib. 278: Trott v. Trott, 29 L. J. Prob. 156, 6 Jur. N. S. 760. (k) Leach v. Bates, 6 No. Cas. 699. A fortiori, where the adverse evidence of one wit- ness is opposed by the affidavit of the other, deceased, witness ; Wright v. Sogers, L. E., I P. & D. 678. 1 2 Greenl. Ev. § 677; Jackson v. Christ- is not sufficient to rebut the presumption of man, 4 Wend. 277; Burgoyne v. Showier, 1 due publication arising from the attestation Eobertson, Eccl. 5. A will without any clause. Brown v. Clark, 77 N. Y. 369; words of attestation was held good in Brvan Brinckerhoof v. Eemsen, 8 Paige, 499; S. C. V. White, 5 Eng. L. & Eq. 579. In "Os- 26 Wend. 332; In re Kellum, 52 N. Y. 517. bom V. Cook, 11 Cush. 532, a will was held So, too, on the death of the witnesses, the proof to be well executed, although there was no of the fact of execution begets a presump- attestation clause except the single word tion that all the details of the fact 'were such "witness" preceding the signatures of the as the law requires, unless the contrary ap- witnesses. See Murphy v. Murphy, 24 Mo. pears on the face of the will. Deupree ». 626; Roberta v. Phillips, 30 Eng. L. & Eq. Deupree, 45 Ga. 415, 442; Eliot v. Eliot, 10 147. Allen, 367; Ela v. Edwards, supra; Barnes 2 Ela 1). Edwards, 16 Gray, 91; Nickerson v. Barnes, 66 Me. 286; Chaffee ». Baptist V. Buck, 12 Cush. 344; Chase v. Kittredge, Miss. Con., 10 Paige, 85; Clark v. Dounorant, II Allen, 49; Blocker v. Hostetter, 2 Grant's 10 Leigh, 22; Fatheree v, Lawrence, 33 Miss. Cas. 288. The assent of a testator and a re- 622. There are, however, cases in which quest to attest will be inferred from a read- wills have been executed under powers pre- ing of the will and subsequent subscription in scribing certain forms, in which it has been the presence of the testator and other wit- held the evidence must show that the fonns nesses. Moore u: Moore, 2 Bradf. 261. It is have been complied with; and then, even laid down in this country that when the at- though the witnesses be dead, or cannot re- testation clause contains an assertion of all memoer, the presumption of compliance does that the law requires, it is immaterial that the not arise unless the will itself or the attesta- witnesses cannot swea^' affirmatively to (he tion clause so states. Deupree v. Deupree, facta stated therein. Mere lack of memory 45 Ga. 416, 442 ; 1 Redf . Wills, 238, 239. 112 OF WILLS BEFOEE 1838. *87 that the requirements of the statute had been complied with {y). But where there was nothing but a formal attestation clause on one side, and the adverse testimony of both witnesses on the other, probate was refused («). And in no case will the presumption of compliance with the statutory requirements be made unless the will appears on the face of it to have been dulj- executed. If the will is lost, due execu- tion must be proved (a) and the testator's written declarations of the fact are insufficient, though accompanied by a document referred to by him as a copy of his will, and representing the will as duly executed (S). The presumption of due execution is clearly rebutted where it is sworn by competent persons that the names of the seeming witnesses are ficti- tious, and are in the testator's own handwriting (c).' The will, it will be observed, was [and still is] required to be sub- scribed by the witnesses in the presence of the testator. "Presence" The design of the legislature, in making this requisition, evi- "o^ whaf' dently was, that the testator might have ocular evidence of amounts to it. the identity of the instrument subscribed by the witnesses ; and this design has been kept in view by the courts in fixing the signifi- cation * of the word " presence." To constitute " presence," in *87 the first place, it was (and, of course, still is) essential that the testator should be mentally capable of recognizing the act which is being performed before him ; for, if this power be wanting, his mere corporal presence would not suffice. Thus, if a testator, after having signed and published his will, and before the witnesses subscribe their names, falls into a state of insensibility (whether permanent or tempo- rary) the attestation is insufficient (d). And the testator ought not merely to possess the mental power of recognizing, but be actually conscious of, the transaction in (y) Baj'li3 s. Saver, 3 No. Cas. 22; see also Gove v. Gawen, 3 Curt. 151; Blake v. Knight, ib. 547 ; Pennant v. Kingscote, ib. 642 ; Re Hare, ib. 54 ; Cooper v. Bockett, ib. 648, 2 No. Caa. 391, 10 Jiir. 931; Bvenchley «. Still, 2 Rob. 162; Chambers v. Queen's Proctor, 2 Curt. 433 ; Keating V. Brooks, 4 No. Cas. 253; Re Noves, ib. 284; Burgovne v. Showier, 1 Rob. 5; Thomson V. Hull, 16 Jur. 1144, 2 Rob. 426;"Re Attridge, 6 No." Cas. 597; Bennett v. Sharp, 1 Jur. N. S. 456; Foot v. Stanton, 1 Deane, 191, 2 .Jur. N. S. 380; Fanner v. Brock, 1 Deane, 187, 2 Jur. N. S. 670; Re Holgate, 1 Sw. & Tr. 231, 5 .Jur. N. S. 251, 29 L. ,J. Prob. 161; Llovd 0. Roberts, 12 Moo. P. C. C. 158; Re Thomas, 1 Sw. & Tr. 255, 28 L. J. Prob. 33; Gwillim V. Gwillim, 3 Sw. & Tr. 200, 20 L. J. Prob. 31; Cregreen ». Willoughby. 6 ,Iur. N. S. 590; Re Huckvale. L. R. 1 P. & D. 375 ; Smith v. Smith, ib. 143 {where witness saw testatrix writing, but did not see her signature). (0) Croft V. Croft, 4 Sw. & Tr. 10, 34 L." J. Prob. 44. (") As in Re Gardner, 27 L J. Prob. 55; Eckersley v. Piatt, L. R, 1 P. & D. 281. The contents of the will, and its existence at the testator's death, must also be proved, post, Chap. VII. s. 2. (i) Re Ripley, 1 Sw. & Tr. 68. (c) Re Lee, 4 Jur. N. S. 790.] (d) Right V. Price, Dougl. 241. 1 It is not necessary that the witnesses v. Kingman, 22 N. Y. 372; Flinn v. Owen, should subscribe the will in each other's 58 III. Ill; Webb v. Fleming. 30 Ga. 808. presence. Ela ». Edwards, 16 Gray, 91; Nor is it necessary that the testator's signa- Dewey v. Dewey, 1 Met. 349; Chase v. Kit- ture should be shown to the witnesses at the tredge. 11 Allen, 49, 52; Gavlor's Appeal, time of the acknowledgment of execution. 43 Corin. 82; Blanchard v. Blanchard, 32 Vt. Willis v. Moot, supra; Uewey v. Dewey, su- 62; Willis v. Moot, 36 N. Y. 486; Haysrait pra; Ela v. Edwards, supra. VOL. I. 8 113 *87 EXECtTTION AND ATTESTATION Mental con- which the witnesses are engaged ;> for if a will were at- SCI0USn6SS 6S" senti^i. tested in a secret and clandestinte manner, without the knowl- ^edge of the testator, the fact of his being in the room in which it was done would not avail (e).^ Nor, on the other hand, would the circum- stance of the testator not being in the same room invalidate the attesta- tion, if it took place within his view. Thus, in Shires v. Glasscock (_/) , where, the testator being in extreme illness, the witnesses after he had signed his will withdrew into a gallery, between which and the testator's chamber there was a lobby with glass doors, and the glass broken in some places ; in this gallery the witnesses subscribed the will. It was proved that the testator might have seen from his bed, through the lobbj- and the broken glass window, the table in the gallery where the witnesses subscribed ; and this was adjudged to be sufficient ; for (it was observed) the statute required attesting in his presence to prevent obtruding another will in place of the true one ; it was, there- Sufficient if fore, enough if the testator micfht see ; ' it was not necessary ^^iTh"''"^ that he should actually see the signing ; because if that were seen. the case, if a man did but turn his back, or look off, it would vitiate a will ; here the signing was within view of the testator ; he might have seen it, and that was enough. So, in Davy v. Smith (g) , where the testator lay in bed in one room, and the witnesses went through a small passage into another room, and there subscribed their names on a table in the middle of the room and (e) See Longford v. Eyre, 1 P. W. 740. (/) 2 Sallt. 688, cit. Garth. 81. (g) 3 Salk. 395. 1 It follows that the witnesses must sign at he must be in a position to admit of his the request, actual or implied, of tlie testator. seeing them sign. Reynolds v. Reynolds, 1 But it is no objection to the signature of wit- Speers (S. C.) 253. It is sufficient primd nesses under the laws of New York that the facie evidence that the attesting witnes.^es to witnesses are requested to sign the will by a will subscribed it in the presence of the tes- the draftsman, tne testator being present, tator, if he were so situated that he might and approving the act. Gilbert ». Knox, 52 have seen them subscribe it. Dewev ». N. Y. 125; Pecli v. Gary, 27 N. Y. 9. No Dewey, 1 Met. 349 ; Winchilsea »). Wauchope, precise form of words, addressed to each of 3 Russell, 443 ; Tod v. Winchelsea, 2 Carr. the wifnesses at the very time of the attestar & P. 488; Nell v. Neil, 1 Leigh, 6. An at- tion. is required. Any communication im- testation made in the same room with testator porting such request, addressed to one of the is prima fade in his presence. Neil v. Neil, witnesses in the presence of the other, which 1 Leigh, 6; Howard's Will, 5 T. B. Mon. 199. by a just interpretation of all the circum- An attestation not made in the same room is stances is intended for both, is sufficient, primd facie not an attestation in his presence. Coffin V. Coffin, 23 N. Y. 9. Further, as to Neil v. Neil, 1 Leigh, 6 ; Edelen ». Hardev, 7 what is meant by the request of the testator Harr. & J. 61 ; 1 Greenl. Ev. § 272. The New to witness and subscribe the will, see Bundy York Revised Statutes have dropped the di- V. McICnight, 48 Ind. 502. rection in the English statute that the wit- 2 In the case of one blind the witnesses nesses are to subscribe in the presmce of the must sign where the testator, if able to see, testator, and the doctrine of constructive pres- could see them. In re Piercy, 1 Robt. Eccl. ence is therefore rejected. 4 Kent, 515 ; Lvon 278. It seems that tlie witnesses in such case ». Smith, 11 Barb. 124. But in New York sliould be within the cognizance of testator's each of the attesting witnesses must sign his remaining senses. Ray v. Hill, 3 Strobh. 297. name at the end of the will at the request of See Neil v. Neil, 1 Leigh, 6, 23; Reynolds v. the testator. Lewis v. Lewis, 13 Barb. 17. Reynolds, 1 Speer, 253. This request may be implied as well as ex- 's See Russell ». Falls, 3 Harr. & M. pressed. Brown v. DeSelding, 4 Sandf. 10; 457; Edelen i). Hardey, 7 Harr. & J. 61; Nelson v. McGifTert, 3 Barb. Ch. 158; Doe 4 Kent, 515. 516. The testator need not f. Roe, 2 Barb. 200 ; Seguiiie ». Seguine, ib. actually see the witnesses sign the will, but 385. 114 OP "WILLS BEFORE 1838. *88 opposite to the door, and both that door, and the door of the room where the testator lay, were open, so that he might have seen them subscribe their names if he would ; this was held to be sufficient, though there was no proof that the testator did see them subscribe.^ And if the witnesses subscribe * their names in the same room *88 where the testator hes, though the curtain of the bed be drawn close, it is a good subscribing, because it is in his power to see them, and what is done shall be construed to be in his presence (ff) .^ It is not even necessary that the testator should be in the same house with the witnesses ; for, in Casson v. Dade (h), where a. feme Testator and coverte, having power to malte a writing in the nature of a witnesses *ill, ordered such an instrument to be prepared, and went same house. to her attorney's office to execute it ; but, being asthmatical, and the office verj- hot, she retired to her carriage to execute the will, the wit- nesses attending her; after having seen the execution, they returned into the office to subscribe it, and the carriage was put back to the win- dow of the office, through which it was sworn by a person in the car- I'iage the testatrix might have seen what passed ; Lord Thurlow was of opinion that the will was well executed. Upon the same principle it is clear, that the mere contiguity of the places occupied by the testator and the witnesses respec- j, ,._ tively will not suffice, if the testator's view of the witnesses' guity not proceedings is necessarily obstructed. Thus, in Eccleston tiie testator's V. Pettj' {{) , where the witnesses proved that the testatrix view be inter- signed the will in her bed-chamber, and they subscribed it in ^'^^ ' the hall, and it was not possible from her chamber to see what was done at the table in the hall, there being a passage and eight or ten turning stairs between those places, the will was held not to be duly attested.' And it was not enough, that in another part of the same room the testator might have perceived the witnesses, if in his actual Testator position he could not.* And, therefore, in Doe d. Wright mustbecapa- DlS of S66inff V. Manifold (k) , where the testator was in bed in a room in his actual from one part of which he might, by inclining his head into position. [(y) Newton v. Clarke, 2 Curt. 320.] (ft) 1 B. C. C. 99, Dick. 586. (j) Carth. 79, Comb. 156, 1 Show. 89, Ca. t. Holt, 222 ; [and see Re Colman, 3 Curt. 118 ; Ee Ellis, 2 Curt. 395: Re Newman, 1 Curt. 914.] (k) 1 M. & Sel. 294; [Norton v. Bazett, 1 Deane, 259, 3 Jur. N. S. 1084. 1 See Sturdivant v. Birchett, 10 Gratt. 67 ; their names ; and more especially if by thus Nock V. Nock, 10 Gratt. 108. raising himself the testator/ would endanger 2 In Russell «. Falls, 3 Harr. & M. his life. .Tones v. Tuck, 3 Jones, 202. It is 463, 464, which was very fully considered, it not sufficient that the testator was able was held necessary that the testator, being ill, merely to, see the witnesses, if he was not should have been able to see the attestation able to see their proceedings in the attesta- without leaving his bed. See Doe v. JIani- tion. Graham ti. Graham, 10 Ired. 219. See fold, 1 M. & S. 294. It is not sufficient that further note 1, next page. the testator would, bv raising himself upon s Reynolds v. Reynolds, 1 Specr, 253; In his elbow, have the "physical ability to see re Ellis, 2 Cnrteis, 395 ; In re Colman, 3 the subscribing witnesses to his will, if he Curteis, 118 ; Boldi-y v. Parris, 2 Cush. 433. could not, in fact, see them from the position ■* Neil v. Neil, 1 Leigh, 6 ; Russell v. Falls, in which he was lying when they subscribed 3 Harr. & M. 463. See Howard's Will, 115 BXECTJTION AND ATTESTATION the passage, have seen the witnesses attest the will, but not in the situ- ation in which he was, the attestation was decided not to be good. Lord Ellenborough said : "In favor of attestation it is presumed, that if the testator might see, he did see ; but I am afraid, that if we get beyond the rule which requires that the witnesses should be actu- ally within reach of the organs of sight, we shall be giving effect *89 to an attestation out of the devisor's * presence, as to which the rule is, that where the devisor cannot by possibility see the act doing, that is out of his presence." ^ [If the testator be unable to move without assistance, and have his 5 T. B. Monr. ]99; Newton ». Clarke, 2 Cur- teis, 320 ; Edelen v. Hardey, 7 Harr. & J. 61 j In re Coleman, 3 Curteis, 118; Moore «. Moore, 8 Gratt. 307; Robinson v. King, 6 Ga. '539; Hill ». Barge, 12 Ala. C87. 1 Under the statutes of Michigan, the condition and position of the testator when his will is attested, in reference to the act of signing by the witnesses, and their locality when signing must be such that he has knowledge of what is going forward, and is observant of the specific act in progress, and (unless he is blind) the signing of the wit- , nesses must occur where the testator, as he is then situated, may see them sign if he choose. Aikin v. Weckerly, 19 Mich. 482. And this is a widely prevailing rule. Chase v. Kit- tredge, 11 Allen, 49 ; Turner f. Cook, 36 Iiid. 129; McElfresh v. Guard, 32 Ind. 408; Am- bre V. Wei.shaar, 74 III. 109 ; In re DowTiie's Will, 42 Wis. 66; note 2, p. 88. In Ken- tucky, a literal adherence to the words of the statute requiring that the witnesses "shall subscribe the will with their names in the presence of the testator" is not required, and a substantial conformity with the spirit of the statute is sufficient. Montgomerj' v. Perkins, 2 Met. (Ky.) 448. In Wisconsin, the signature of attesting witnesses made be- yond the range of the testator's yision is bad, though a witness, after signing, calls the tes- tator's attention to the act. and the act is ap- proved. Inre Downie's Will,42Wis. 66. And this appears to be the general rule. But while an acknowledgment of his signature is suffi- cient as to the testator, it is held under the statutes of Massachusetts, requiring witnesses to attest in the presence of the testator, that the law is not complied with by an acknowl- edgment on the part of a witness that a sig- nature made in the testator's absence is that of the witness. Chase v. Kittredge, 11 Allen, 49. And the learned judge who delivered the opinion in this case, Mr. Justice Gray, shows that this is the English doctrine. Hoil v. Clark, 3 Mod. 219, 220; Lee v. Libb, 1 Show. 69; Dormer v. Thurland, 2 P. Wnis. 510; Stonehouse ». Evelvn, 3 P. Wms. 264 ; Bac. Abr. Wills, D. 2; 2 Bl. Com. 377; Eccleston V. Speke, Garth. 81; S. C. Comb. 158; On- ions «. Tyrer, IP. Wms. 344; Ellis v. Smith, 1 Ves. Jr. 10; S. C. 1 Dick. 225; Hands v. James, Comyns, 5^)2; Kancliffe v. Parkyns, 6 Dow, 202, Lord Eldon. The following" deci- sions under the English act of 1837 (1 Vict. c. 26, § 9) were cited as being to the same effect : Re Allen, 2 Curt. Eccl. 331 ; Ke Sim- monds, 1 No. Cas. 409; S. C. 3 Curt. Eccl. 79; Moore v. King, ib. 243; S. C. 2 No. Cas. 45; riayne v. Scriven, 1 Rub. Eccl. 775; S. C. 7 No. Cas. 122; Re Trevanion, 2 Rob. Eccl. 311. Other English cases were cited to the effect that in England the testa- tor must have signed the will before the wit- nesses signed. Re Olding, 2 Curt. Eccl. 865; Ke Byrd,3 Curt. Eccl. li7; Cooper ?). Bnck- ett, it). 659; Charlton v. Hindmar^h, 1 Swab. & T. 433: S. C 8 H. L. Cas. 160; and other cases. This is also true in Massachuselts. Chase v. Kittredge, 11 Allen. 49, 63. The Massachusetts rule, as above declared, pre- vails also in New York. Jackson r. Christ- man, 4 Wend. 282; Peck r. Car;-, 27 N. Y. 31, 32. And, it seems, in Georgia. Duffie ». Corridon, 40 Ga. 122 {witness signing the day before the testator signed not good). . And in New Jersev. Mickle v. Mallack.' 2 Harr. 86, 96, 116. 'And in North Carolina. Ragland v. Huntington, 1 Ired. 561; Graham V. Graham, 10 Ired'. 219; In re Cox"s Will, 1 Jones, 321. And in Kentucky; Swift v. Wiley, 1 B. Mon. 117; Upchurch v. Up- church, 16 B. Mon. 102. And in Connecti- cut. O'Brien v. Galagher, 25 Conn. •<:29. Contra. Sturdivant v. Birchett, 10 Gratt. 67; Parramorc v. Taylor, 11 Gratt. 220; 13 Am. Law. Reg. 741. But an acknowledgment merely would be good under a statute requir- ing merely that the attesting witness " sign his name as a witness, at the end of the will, at the request of the testator," omitting any requirement of signing in the presence of the testator. Chasei-. Kittredge, 11 Allen, 49,61; Kuddon v. McDonald, 1 Bradf. 352; Vaughan V. Burford, 3 Bradf. 78; Hoysradt i'. Knig- nian, 22 N. Y. 372 ; Vaughan v. Vaughan, 13 Am. Law Reg. 735. In Pennsylvania, the witnesses need not subscribe the will at all. Hights. Wilson, 1 DalV. 94; Rohrer «. Steh- man, 1 Watts, 463. Of coui-se when in tknt state they do sign it is inmiaterial whether they sign, in point of time, before the testa- tor or afterwards. Miller i;. McNeill, 35 Penn. St. 217. When the witnesses are dead or out of the state, proof of their handwriting is sufficient evidence of a compliance with the statute. Ela v. Edwards, 16 Gray, 91; Nickerson v. Buck, 12 Cush. 344; Chase v. Kittredge, supra. 116 OF WILLS BEFORE 1838. *90 face turned from the witnesses, so that it is out of his power where a tes- te see them, if he so wished, the attestation will be insuffl- tator is un- dent (l) ; and where the testator is blind, it has been de- without™ ^^ cided that the position of the witnesses must be such, that assistance; the testator, if he had had his ej-esight, might have been able j^bihid! '^^ to see them sign (m).] Where the evidence fails to show in what part of the room the sub- scription took place, it would be presumed that the most convenient was- the actual spot, and the ordinary position of a table, likely to have been used, would be taken into consideration (n). It is scarcely necessary to add, as a concluding remark on this sub- ject, that the nature of the occasion of the witnesses' absence, whether for the ease or at the solicitation of the testator or otherwise, is whoUy immaterial (o). The statute of Car. 2, it will be observed, required the witnesses to be ' ' credible : " which was held to mean such persons as Credibility were not disqualified by mental imbecility, interest, or crime, of witnesses. from giving testimony in a court of justice.^ The disqualification arising from interest has been noticed in a former chapter (p). With respect to crime, it will be sufficient to refer the reader to the numerous and valuable treatises on evidence, which are in the hands of the pro- fession. A testator may so construct his disposition as to render it necessary to have recourse to some document (as to anj- other extrinsic Reference matter), in order to elucidate or explain his intention. [The to extrinsic document is then said to be incorporated in the will.] As allowable.^ where a person by his will devises all the lands which were incorporation conveyed to him by a certain indenture (specifying the "'' document. deed), or devises lands to the uses declared by a particular indenture of settlement, it is clear that the indentures so referred to may be con- sulted for this purpose, without violating the principle of the enactment, .which requires an attestation by witnesses, the testator's intention to adopt the contents of such instrument being manifested by a will duly attested (g) ; and it would, it is conceived, be immaterial whether the paper so referred to was in * the testator's handwriting, or *90 (I) Tribe v. Tribe, 1 Rob. 775, 13 Jur. 793, 7 Ko. Cas. 132. (m) Re Piercy, 1 Rob. 278, 4 No. Cas. 250.] (m) Winchilsea v. Wauchope, 3 Russ. 444. (0) Broderick v. Broderick, 1 P. W. 239; Machell o. Temple, 2 Show. 288. ip) Vide ante, p. 70. (q) See Habergham v. Vincent, 2 Ves. Jr. 204; also Molineux v. Molineux, Cro. Jac. 144. 1 Under statutes of Massachusetts, 1783, lor, 1 Rich. 531 ; Workman v. Domlnick, 3 ch. 25, "credible" witnesses means compe- Strobh. 589. So in Mississippi. Rucker ». tenl at the time of attestation. Hawes v. Lambdin, 12 Smed. & M. 230. See Allison Humphrey, 9 Pick. 350: Haven v. Hilliard, v. Allison, 4 Hawks, 141. And in Georgia, 23 Pick. 10 : Amorv v. Fellowes, 5 Mass. 219; Hall v. Hall, 18 Ga. 40. This is probably Sears v. Dillingham, 12 Mass. 358. In New the universal rule. The General Statutes of Hampshire also. Eustis v. Parker. 1 N. H. Massachusetts now require that there shall be 273. So in Kentuckv. Gill's Will. 2 Dana, three or more competent witnesses. Ch. 92, 447. So in South Carolina. Taylor v. Tay- § C. 117 *91 EXECUTION AND ATTESTATION Inc rn r f ^^ ^^^^ of anj' Other person, and whether it professed to be of unattested testamentary or not, as it founds its claim to be received as document. ^^^ ^^ ^^^ ^jj^ ^^^ ^^^ j^g ^^^ independent eflfleacj', but on the fact of its adoption hy the attested will. But whatever be the precise nature of the document referred to, it must be clearly identified as the instrument to which the will points. In Dillon v. Harris (r), a paper was rejected on account of a defect of identification. The tes- tator had by his will referred to a certain paper,: as being in the hand- writing of the devisee, and which he stated himself to have placed in the custodj- of his executors. And it was held, that a paper found in. the testator's custody, and which had not been delivered by him to the executors, was not suflScientlj- identified, though in the devisee's hand- writing, as he might have written several papers ; and though it was in the testator's custody at his decease, there was no evidence of its having been in his custody when he made his will. [Questions similar to that raised in the last case have since the act 1 Vict. c. 26, frequently come before the probate court. Three things are necessary : first, that the will should refer to some document as then in existence (s) ; secondly', pi'oof that the document propounded for probate was, in fact, written before the will was mad^ ; and, thirdly,; proof of the identity of such document with that referred to in the will. As to the first point, a clause which "ratifies and confirms a deed, dated, &c., and made between," &c., answers this requirement and incorporates the deed (<) . But there should be no ambiguity. A refer- ence to a document as " made or to be made " gives strong ground for concluding that the document had not already been made (u) . So a reference to persons or things "hereinafter named "(a:), or to "the annexed schedule " (y), is not so clear a reference to any document as then existing as to incorporate writings that follow the signature *91 of the testator and of the * witnesses, although it be proved that, in fact, such writings were in existence before the will was exe- cuted ; much less if the evidence on this last point is hesitating (z). But although the document was written after the execution of the will, it may be incorporated if the testator afterwards executes a codicU, for (!•) 4 BJigh, N. S. 329. Us) Van Straubenzee ». Monck, 3 Sw. & Tr. 6, 32 L. J. Prob. 21; Re Sunderland, L. R. 1 P. & D. 198; Re Pascal!, lb. 606. (t) Sheldon it. Sheldon, 1 Rob. 81, 3 No. Cas. 254, 8 Jiir. 877; Bizzev v. Flisfht, 3 Ch. D. 269. But sie Re Hubbard, L. R. 1 P. & D 63. and qu. ; but as the "deed referred to was valid per se, its rejection from the probate peems to have been immaterial. (u) Re Skair, 5 No. Cas. 57 ; Re Astell, ib. 489. n. See also Re Hakewill, 1 Deane, 14, 2,Tur. N. S. 168; and Re Countess of Pembroke, 1 Sw. & Tr. 250, 1 Deane, 182, 2 Jur. N. S. 526, is perhaps referable to this ground. (x) ReWatkjns, L. R. 1 P. & D. 19; Re Brewis, 33 L. J. Prob. 124; Re Dallow, L. R. 1 P. & D. 180, (y) Singleton v. Tomlinson, 3 App. Ca. 413.414, per Lord Cairns. Moreover the schedule was not annexed but indorsed (being on tlie fourth side of a sheet of paper on which the will was written), a discrepancy pointed out by Lord Blackburn, ib. 425. But aa to this see Re Ash, 1 Deane, 14, 2 Jur.N. S. 526. (z) Ante, note (j). 118 OF WILLS BEFOBB 1838. *92 the codicil republishes the will, and makes the will speak from the date of the codicil (a). The will must be so worded that, so speaking, it shall refer to the document as then existing (b). With regard to the evidence necessary to prove that the document propounded for probate was in existence at the date of the will, and that it is the same as that which is referred to therein ; if the reference is distinct, e. g. to date, heading, and other particulars, and if the docu- ment propounded agrees in these particulars with the description con- tained in the will, its previous existence and identity will, in the absence of circumstances or evidence tending to a contrary conclusion, be as- sumed (c). Where the reference is less distinct, yet if it be in terms sufHciently definite to render it capable of identification, extrinsic evidence is admissible, together with such internal evidence as may be found in the document itself, to supplj' the necessary proof. Thus, in Allen v. Maddock (d), an unexecuted will was held to have been incorporated in a duly executed codicil by the heading : " This is a codicil to my last will and testament," no other document having been found to answer to the reference. And where a document headed " Instructions for the will of J. Wood," disposed of the residue " in such manner «s I shall direct by my will to be indorsed hereon," and the testator afterwards made a will, which, though not indorsed on the " instructions," was expressed to be made in "pursuance of the instruc- tions for his will," no other instructions being found ; it was held that the " instructions" in question were incorporated in the will(e). The evidence in the latter case was certainly slight. * It is a *92 circumstance frequently relied on that the document proposed for probate was shown to some person before execution of the wiU, as the paper therein referred to (ea). Although an incorporated document is entitled to probate — i. e. to be set out at length therein — there is no necessity for iso _ . , , . . 1 J 1 . ■ .ii . >, . „ , Probate of provmg it in order to bring it withm the cognizance of the incorporated court of construction ; for if it is not proved, the court wUl documents, look at the original document. Thus, in Bizzeyt;. Flight (/), —not neces- where A. made a voluntary settlement which, as to certain jurl^'dicti?n^ bank shares and mortgages, was incomplete, so that the to the court of shares still belonged to A. at her death, and she by wiU (a) Re Hunt, 2 Eob. 622; Ke Truro, L. R. 1 P. & D. 20i. (6) L. R. 1 P. & D. 204. (c) Swete v. Pidsley, 6 No. Cas. 190. (d) 11 Moore, P. C. C. 427. See also fie Countess of Durham, 3 Curt. 57, 1 No. Cas. 365, 6 Jur. 176; Re Pewtner, i No. Cas. 479; Re Darby, ib. 427, 10 Jur. 164; Jorden v. Jorden, 2 No. Cas. 388 ; Re Dickens, 3 Curt. 60, 1 No. Cas. 398 ; Re Ahnosnino, 1 Sw. & Tr. 508, 29 L. J. Prob. 46 ; Re Willesford, 3 Curt. 77, 1 No. Cas. 404 ; Re Bacon, 3 No. Cas. 644 ; Re Mei- cer, L. R. 2 P. & D. 01 ; Re Grevea, 1 Sw. & Tr. 250, 28 L. J. Prob. 18 (where the evidence of identity failed); but see Re Edwards, 6 No. Cas. 306; Collier v. Langebear, 1 No. Cas. 369; Ee Hotheron, 2 Curt. 831, 1 No. Cas. 73, would not now be followed. (c) Wood V. Goodlake, 4 Monthlv Law Mag. 155, 1 No. Cas. 144. Compare Re Pascall, L. K. 1 P. & U. 606; Ke Gill, L. R."2 P. & D. 6. (en) Re Smartt, 4 No. Cas. 38: Re Bacon, 3 No. Cas. 644. (/■) 3 Ch. D. 269. The trusts that were invalid under the settlement being incorporated ia and made part of the will, assumed the testamentary character in all respects, and became subject to ademption, &c. 119 *93 EXECUTION AND ATTESTATION " confirmed the settlement, dated," &c. : the settlement was not proved. Sir C. Hall, V.-C, said: "If a will confirms an instrument which is sufficiently identified, and probate passes leaving in the clause contain- ing the confirmation, the instrument must, I consider, be had regard to as if it were set out in the probate." He held that the effect was as if the testatrix had declared ' ' that the shares specified in the settle- ment should be held on the following trusts," and had then set out the trusts. So in Quihampton v. (jroing(g), where a testator referred to certain entries he had made in his ledger, as explaining his will, Sir G. Jessel, M. R., held that the ledger was incorporated with the will, and, though not admitted to probate, could be looked at by a court of con- struction, and that the entries therein were for the purposes of distribu- tion of the estate conclusive — i. e. the M. R. treated them as part of the will, and not merely as evidence. These cases remove the doubt regarding the competence of the court of construction expressed by Dr. Lushington in Sheldon v. Sheldon (A).] *93 * Cases in which there is reference to an existing paper, it is obvious, stand upon quite a different footing from those in which Testator can- a testator (as often occurred under the old law) attempts to will empower create, by a will dulj- attested, a power to dispose by a fu- himseif to ture unattested codicil. To allow such a codicil to become unattested "" supplementary to the contents of the will itself, would, it is codicil. obvious, tend to introduce all the evils against which the Statute of Frauds was directed, and, indeed, give to the will an opera- tion in the testator's lifetime, contrary to the fundamental law of the instrument. Accordingly, where a testator by a will, attested bj' three witnesses, devised his real estate to trustees, upon trust (subject to certain limitations thereby created) to convej' the same to such persons and for such estates as he by deed or will, attested by two witnesses, should appoint ; and the testator, professing to exercise this assumed power, executed an instrument attested by two witnesses, which he styled a deed-poll, and thereby carried on the series of limitations commenced in his will : it was decided, after much consideration, that this instrument operated as a codicil to the will, and, consequently, was (g) W. N. 1876, p. 209. See also Singleton v. Tomlinson, 3 App. Ca. 404, where probate had been refused: but this was not relied on. (A) 1 Rob. 81, 3 No. Cas. 254, 8 Jur. 877. But as the regular practice ot the Court of Pro- bate is to require every paper entitled to probate to be proved, and the original (Re Pewtner, 4 No. Cas. 479), or, if" it cannot be procured, an authenticated copy (Re Dickens, 3 Curt. 60, 1 No. Cas. 398 j Re Howden, 43 L. J. Prob. 26), to be deposited, it is inexpedient to declare trusts of personalty by reference to another instrument. And although where the paper is in the hands of strangers who refuse even to produce it (Re Battersbee, 2 Rob. 439; Re Sib- thorpe, L. R 1 I". V. 106) the rule is wholly dispensed with; and where the paper is of excessive length probate has been granted omitting the whole (Re Marquis of Lansdowne, 3 Sw. & Tr. 194, 32 L. J. Prob. 124; Re Dundas, 32 L. J. Prob. 165), or the immaterial parts (Re Countess of Limerick, 2 Rob. 313), — showing that the question is one of convenience; yet it apijears by the foregoing cases that special application is generally necessary to procure a relaxation of the rule. The question of including documents in the probate often arises where a testator has made distinct wills, one of property here, another of properly abroad. Generally the former only need be proved here (Re Astor, 1 P. D. 150). But if one confirms the other so as to incoi-- porate it, Doth will be included, Re Harris, L. R. 2 P. & D. 83 ; Re Howden, 43 L.J. Prob. 26.] 120 OF WILLS BEFORE 1838. *94 incapable of affecting the freehold lands, for want of an attestation by- three witnesses («') . On the same principle, it was decided, when personal property was disposable by a will not sufficient in point of execution to operate on freehold estates, that a testator could not so convert his real estate into personalty by a will duly attested, as to render it disposable by an un- attested codicil, as personal estate {k) . [In Stubbs V. Sargon (/) it was contended, that on the same princi- ple a devise of realty to " the persons who shall be in co- „, ..^ „ partnership with me at the time of my decease, or to gon. bevi- whom * I shall have disposed of my business," was *94 ce?t'a°ined*bY void, as leaving it for the testator by some further future event act, not authorized by the Statute of Frauds, to select the devisee. But Lord Langdale, and on appeal Lord Cottenham, held the devise good. Lord Cottenham said that Habergham v. Vincent (m) was different, because there was in that case no disposition of the prop- erty', but onlj' a power for the testator himself to dispose of it by instrument not attested according to the Statute of Frauds ; but that here the disposition was complete. That the devisee, indeed, was to be ascertained by a description contained in the will, but that such was the ease with many unquestionable devises where the devisees were to be ascertained by future natural events — e. g. devises to a second or third son, or by the act of a third person — e. g. where a father having two sons devises to such one of them as should not become entitled to an estate from a third person. In the latter case, the act of the third per- son determined who should take the father's estate. But the act was not testamentary ; if it was, one man would be making another man's will. And if not testamentary when done by a third person, it could not be so when done by the testator himself ; otherwise a testator could not devise to such person as, at his death, should be his wife or ser- vant. And Lord Langdale said, if the description was such as to distinguish the -devisee from everj- other person, it was sufficient with- out entering into the question whether the description was • acquired by the devisee after the date of the will, or by the testator's own act in the ordinaiy course of his affairs, or in the management of his property. The question is, therefore, Is the supplementary act testa- ^j^^ ^^^ ^^^^ mentary ? If it is, the devise is void ; if it is not, then, not be testa- although it is the sole act of the testator, the devise is good.] '"^"''"'y- (0 Habergham e. Vincent, 2 Ves. Jr. 204, 4 B. C. C. 363; Rose v. Cunvnghame, 12 Ves. 29 ; Wilkinson v. Adam, 1 V. & B. 422 ; Whytall v. Kav, 2 Mv. & K. 765 ; [Countess FeiTaris ». Marquis of Hertford, 3 Curt. 468, 7 Jur. 262, 2 No. Cas. 230 ; Briggs ». Penny, 3 DeG. & S. 546 ; Jolinson v. Ball, 5 DeG. & S. 85. These cases are to be distinguished from Smith _«. AttersoU, 1 Russ. 266, where the paper was signed bv the trustees, and operated as an admis- sion of the trusts. In Metham v. Duke of Devon, 1 P. W. 530, a testator directed his exec- utors to pav a sum of monev as he should by deed appoint; and subsequently, by a deed refei-ring to the will, he inade an appointment, which the court held to be valid, on the ground that the deed was a part of the will, and in the nature of a codicil. The report does not state whether the deed was admitted to probate, as of course it ought to have been.] (k) See Sheddon v. Goodrich, 8 Ves. 481 ; Hooper v. Goodwin, 18 Ves. 156; Gallini v. No- ble, 3 Mer. 691. [(0 2 Keen, 255, 3 My. & C. 507. (m) 2 Ves. Jr. 204.] , 121 '*95 EXECUTION AND ATTESTATION In one instance > only, and that founded upon special grounds, not interfering with the principle in question, the freehold estate of a testa- General tor was, under the Statute of Frauds, indirectly liable to be leguMes ex- effected by an unattested codicil.^ This occurred where a tends to lega- testator had by a will', duly attested, charged his real estate unatfest^ed ^ ^ith legacies ; which charge, it was held, extended not codicil. merely to the legacies bequeathed by that wUl, but also to such as were subsequently bequeathed by an unattested codicil (n) . *95 * This doctrine was considered to be warranted by the rule applicable in the case of a general charge of debts ; for, since a testator may, after charging his real estate with debts, increase the burthen on the land to an indefinite extent, by contracting fresh debts, without any further direct act of oneration, it was thought that a charge , of legacies ought, upon the same principle, to include legacies given by an unattested codicil ; in short, that as a charge of debts extends to all debts which may happen to be owing at the testator's decease, so a charge of legacies' extends to all legacies which shaU- then appear to be bequeathed. If, however, a testator, instead of creating a general charge of tegaeies I ■ 't f th (l^^vi'ig i* *° the ordinary rule to determine what are such), riile which subjected his freehold estate expressly to such legacies as eeneraf * he should thereafter bequeath by an unattested codicil, and charge to direct to be paid out of his real estate, this was considered as q^ueathed by amounting, in eflfect, to the reservation of a power by will an unattested to charge, the estate ^3J an unattested codicil; and, conse- quently, the legacies bequeathed by such codicil did not affect the land. It will be perceived that such a case differs from that of a charge of legacies generally, in this respect, that, unless the codicil bequeathing a legacy expressed that the land should be charged (m) Hyde v. Hvde, 3 Ch. Rep. 83, 1 Eq. Ca. Ab. 409; Masters ». Masters, 1 P. W. 421; S. C. 2 Sq,. Ca. Ab. 192, pi. 7; Lord Inchiquiu v. French, Amb. 33; [Hannis v. Packer, ib. 556:] Brudenell v. Houghton, 2 Atk. 268; Habergham ». Vincent, 2 Ves. Jr. 204; S. C. 4 B. C. C. 353; Buckeridge v. Ingram, 2 Ves. Jr. 652; Sheddon ». Goodrich, 8 Ves. 481 ; Wil- kinson,);. Adam, 1 V. &,B. 445. [It is remarkable that this singular exception, which later judges have professed not to understand, formed one of the instances by which Lord Cotten- ham supported his reasoning in Stubbs v. Sargon.] 1 It is clear, that where a testator creates a those obligations. Ib; 457. But see Ram on As- genera! charge of legacies upon his lands, in sets, c. 6, § 6, pp. 110, 111 : Hooper i>. Goodwin, and of the personal estate, by a will properly 18 Ves. 187. It follows that he may by the like executed and attested under the Statute of imperfect instrument alter or revoke all or Frauds, and afterwards by a codicil, not duly anv of the legacies contained in the will, and executed and attested to affect real estate, substitute others. Ib. The rules on this sub- bequeaths additional legacies, if the personal ject ai-e too well established to be disturbed, assets be insufficient to pay the whole, then though it may well be doubted whether thej' the legacies by the codicil will be charges are perfectly consistent with the Statute of upon the real estate, equally with those given Frauds; for, in effect, the testator disposes by the will. See 1 Rop. Legacies by White, of his land by an unattested codicil, when he 456, c. 12, §2. Consistency of principle is at liberty to burden it with legacies so giv- would require that the testator might, by an en. See 2 Madd. Ch. 602, and cases cited; unattested codicil, dispose of a part or the Dunlap «. Dunlap, 4 Desaus. 305, 322. But whole ofhis personal estate, exempt from debts these distinctions have lost their importance and legacies; although such a power, like the in England, and in all states where wills of former, would enable him by circuity to make personal and of real estate are placed on tha the real estate the primary fund to answer same footing. 122 OF WILLS BEFORE 1838. *96 therewith, it could not be charged ; and, therefore, it was not chargie- able on the land as legacy merely, but by the special onerating terms of an unattested testamentary instrument (o). K the testator had contented himself with charging his real estate with such legacies as he should bequeath by an unattested codicil, this would have been effect- ual. Thus, in Swift v. Nash (p), where a testator by his • will directed the produce of real estate, which he had devised charge of in trust for sale, to be applied in payment of the legacies jSeathed'^ which he might bequeath by anj' codicil or codicils to his by codicil, will, it was held that an annuity given by an unattested ™ codicil was a charge on the fund. Of course, where a testator by his will charges his lands with the payment of the legacies "Uerein- '■^ hereinafter " bequeathed, the charge does not extend to after: "iiow legacies bequeathed by a codicil (^r). :, construed. * It is to be observed also that a general charge, eitlier *96 of debts or legacies, onerates the land only as an auxiliary fund, the personalty being still primarily liable ; which cir- -y^rhetiier the cumstance has been so often mentioned as an ingredient doctrine ap- in cases of this nature, as to suggest a doubt whether the reaTertatels rule under consideration would not be repelled by the ab- primarily sence of it (r), though, certainly, the analogy to a charge ' '^''''^ ' of debts suggests no such limitation of the doctrine ; for if a person bj- his will charges his real estate with his debts, the charge will extend to all the debts which he owes at his decease, whether the personalty be exempted therefrom or not. At all events, it is clear that a testa- tor, after having charged his real estate with legacies, without exempt- ing the personal estate from its primary liability, may, by an unattested codicil, bequeath any portion of his personalty exempt from such liability, which, of course, would have the same effect in augmenting the burthen upon the land as an increase in the amount of the leg- acies («). In accordance with the suggested limitation of the doctrine to legacies payable out of the general personal estate, it seems to have ^^^ chareod been decided that, though such legacies once charged, by a specifically will daly attested, might be revoked or modified bj' an un- siveiy apon attested codicil (t), yet, that a sum, whether annual or in 'ogabie"bv''^" gross, Which was charged specifically and exclusively upon unattested land, was susceptible of no alteration in regard to the sub- ject or object of the devise by means of an unattested codicil ; and the circumstance that a certain portion of personalty was combined with the real estate in the charge would not vary the principle. And, therefore, (o) Rose V. Cunvnghame, 12 Ves. 29. (p) 2 Kee. 20. (?) Bonner 1). Bonner, 13 Ve"!. -379! [Strongw. Ingram, 6 Sim. 197; Radhurn ». Jervis, 3 Beav. 450; Earlv K. Benbow, 2 Coll. 355;] see al?o Bengongh ». Edridge, 1 Sim. 173; [Kooke T. Worrall. 11 Sim. 216; Fullerw. Hooper, 2 Ves. 212; Janncey i'. Att.-Gen., 3 Giff. 308. (r-) See however per Lord Cairns, L. R. Cli. 587.] (.5) Cbxe v. Basaett, 3 Ves. 155. (() Brudenell v. Boughton, 2 Atk. 268; Att.-Gen. v. Ward, 3 Ves. 327. 123 •97 EXECUTION AND ATTESTATION where a testator devised an annuity out of a certain estate, stock and uteiisils, it was held not to be aflfected by an unattested codicil expressly revoking it (m). And even where a testator by a will, dul^' attested, gave all his real and personal estate to trustees, upon trust, out of the rents of the real and the produce of the personal estate, to pay his debts and funeral and testamentary expenses and legacies, and, *97 in the next place, *to pny two life annuities ; and the testator, by a codicil, attested by one witness only, revoked one of the annuities, it was held that such annuity continued a charge upon the real estate (x) . It seems difficult to saj' that the annuities were not payable in the first instance out of the personal estate (y) ; and in this point of view the case stands alone (z). But, even where the charge on the land was confessedl}- auxiliary, yet it seems that if a testator, instead of expressly revoking the lega- cies bequeathed by his will, attempted b3'^ an unattested will to make an entirely new disposition of his freehold and personal estate, as this was operative on the personalty onlj-, the legacies continued to be a charge on the real estate ; because the effect of what the testator had done, was merely' to withdraw one of the funds on which the legacies were charged, and not the legacies themselves (a). And it would be immaterial in such a case that the will contained an express clause of revocation of all former wills (A). [Where a portion of a mixed fund, consisting of personal estate and Nor a mixed of the proceeds of realtj' directed to be sold, was given by fund. attested will, and the gift was revoked by an unattested codicil, it was held that the legatee was entitled to such proportion of the legacy as the realty bore to the personalt}' (c).] (u) Beckett i). Harden, 4 M. & Sel. 1. [See also Locke v. James, 11 M. & "W. 901, where a testator devised land charged with 600i. a year, "which he gave to " A , and gave the residue of his estate, after paving annuities, &c., to B. ; he then erased the " 6 " and interlined "3," and by ill-attef-ted codicil recognized the alteration. A. distrained, and was held entitled to recover the full sum. In form, perhaps, this was rather an attempt to free the land, than a partial revocation of the annuity ; but Parke, B., said that whether the amount had been re- duced or not in equity^ it made no difference at law ] (a;) Mortimer ». West, 2 Sim. 274. («/) See Fitzgerald i). Field, 1 Euss. 428. (z) See Sheddon v. Goodrich, 8 Ves. 500. See also per Lord Cairns in Kermode v. Mac- donald, L. R. 3 Ch. 584 (where by attested codicil personalty only was expressed to be with- drawn); and Coverdale v. Lewis, 30 Beav. 409, where the land was held auxiliary only. {«) Buckeridge v. Ingram, 2 Ves. Jr. 652. (b) Sheddou v. Goodiich, 8 ves. 499. [(c) Stocker v. Harbin, 3 Beav. 479] 124 OP WILLS BEFORE 1838. •97 Section II. As to Personal Estate and Copyholds, Nuncupative wills ^ were not forbidden by the Statute of Frauds, but were placed under such restrictions as practically abol- gtat. 29 Car. ished them : it being provided (sect. 19) that no nuncupative 2, c. 3, s. 19, couccvmii*' will should be good, where the estate bequeathed exceeded nuncupative the value of thirty pounds, that was not proved bj' the ^'"'• oaths of three witnesses present at the making thereof; nor unless it 1 States in which nuncupative wills may be made : — Alabama. Code, 1876, Title 4, ch. 2, p. 589. Arkansas. Digest, 1874, ch. 135, p. 1014. California. Codes & Stat. 1876, Vol. 1, Title 6, ch. 1, p. 722. Colorado. Gen. Laws, 1877, ch. 103, p. 929. Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 343. Delaware. Rev. Code. 1874. ch. 84, p. 509. Florida. Bush's Digest, 1872, ch. 4, p. 76. Georgia. Code, 1873, Title 6, ch. 2, p. 427. Illinois. R. S. 1880. ch. 148, p. 1111. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 576. Iowa. Rev. Code, 1880, Vol. 1, Title 16, ch. 2, p. 607. Kansas. Comp. Laws, 1879, ch. 117, p. 1009. Kentucky. Gen. Stat, 1873, ch. 113, p. 834. Maine. 'R. S. 1871, ch. 74, p. 565. Maryland. Rev. Code, 1878, art. 49, p. 421. Massachusetts. Gen. Stat. 1860, ch. 92, p. 477. Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1372. Minnesota. Stat. 1878, ch. 47, p. 568. Mississippi. Rev. Code, 1871, ch. 54, p. 527. Missouri. R. S. 1879, Vol. 1, ch. 71, p. 08 k Nebraska. Gen. Stat. 1873, ch. 17, p. 300. Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, p. 200. New Hampshire. Gen. Laws, 1878, ch. 193, p. 455. New Jersey. Revision, 1709-1877, Vol. 2, p. 1245. New York. R. S. 1875, Vol. 3, Title 1, ch. 6, p. 61. North Carolina. Battle's Revisal, 1873, ch. 119, p. 849. Ohio. R. S. 1880, Vol. 2, Title 2, ch. 1, p. 1440. Oregon. Gen. Laws, 1843-1872, ch. 64, p. 783. Peiinsvlvania. Bright. Purd. Digest, 1700-1872, Vol. 2, p. 1475. Rhode Island. Gen. Stat. 1872, Title 24, ch 171, p. 374. South Carolina. R. S. 1873, Title 3, ch. 83, p. 447. Tennessee. Stat. 1871, Vol. 2, Title 3, ch. 1, p. 099. Texas. R. S. 1879, Title 99, p. 712. Utah. Comp. Laws, 1876, Title 14. ch. 1, p. 265. Vermont. Gen. Stat. 1862, ch. 49, p. 377. Virginia. Code, 1873, Title 33, ch. 118, p. 910. West Virginia. R. S. 1878, ch. 201, p. 1169. Wisconsin. R. S. 1878, ch. 103, p. 651. States in whicli only soldiers in actual service, or mariners at sea, can make nuncu- pative wills : — Kentucky. Gen. Stat. 1873, ch. 113, p. 834. Massachusetts. Gen. Stat. 1860, ch. 92, p. 477. Mmnesota. Stat. 1878, ch. 47, p. 568. New York. R. S. 1875, Title 1. ch. 6, p. 61. Oregon. Gen. Laws, 1843-1872, ch. 64, p. 789. Rhode Island. Gen. Stat. 1872, Title 24, ch. 171, p. 374. Virginia. Code, 1873, Title 33, ch. 118, p. 910. West Virginia. E. S. 1878, ch. 201, p. 1169. In California, nuncupative wills can be made only by soldiers in service or sailors at sea, or by a decedent who has been injured and is in immediate expectation of death from injuries received the same dav. Cal. Codes & Stats. 1876, Vol. 1, Title 6, ch. 1, p. 722. Also in Dakota, R. C. 1874, Title 5, ch. 1, p. 343. Slates in which nuncupative wills are invalid if exceeding the sums named : — Texas. S30. R. S. 1879, Title 99, p. 912. .South Carolina. $50. R. S. 1873, Title 3, ch. 86, p. 447. New Jersev. Vol. 2, p. 1245. Indiana. $100. p. 576. Maine. $100. 565. Mississippi. $100. Rev. Code, 1871, ch. 54, p. 527. New Hampshire. $100. Gen. Stat. 1878, ch. 193, p. 456. Nebraska. $150. Gen. Stat. 1873, ch. 17, p. 300. Wisconsin. $150. E. S. 1878, ch. 103, p. 651. Delaware. $200. Rev. Code, 1874, ch. 84, p. 509. Revision, 1709-1877, Stat. 1876, Vol. 2, ch. 3, R. S. 1871, ch. 74, !>. 125 '98 EXECUTION AND ATTESTATION were proved that the testator, a.t the time of pronouncing the same, did bid the persons present, or some of them, bear witness that *98 such was his will, or to that effect ; nor unless such * nuncupa- tive will were made in the last sickness of the deceased, and in ■ the house of his or her habitation or dwelling, or where he or she had been resident for ten days or more next before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or. her dwelling. It was also enacted that after six months passed after the speaking of the pretended testamentary words, no testimony should be received, to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.^ It was nevertheless provided that any , Missouri. $200. R. S. 1879, Vol. 1, ch. 71, p. 684. North Carolina. $200. Battle's Eevisal, 1873, ch. 119, p. 849. Vermont. $200. Gen. Stat. 1862, ch. 49, p. 377. Tennessee. $250. Stat. 1871, Vol. 2, Title 3, ch. 1, p. 999. Iowa. S300. Rev. Code, 1880, Vol. 1, Title 16, th. 2, p. 607. Indiana. S300. Stat. 1876, Vol. 2, ch. 3, p. 576. Maryland. $300. Rev. Code, 1878, art. 49, p. 421. Michigan. $300. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1372. Alabama. $500. Code, 1876, Title 4, ch. 2, p. 589. Arkansas. $500. Digest, 1874, ch. 136, p. 1014. California. $1,000. Codes & Stat. 1876, Vol. 1, Title 6, ch. 1, p. 722. Dakota. $1,000. Rev. Code, 1874, Title 5, ch. 1, p. 343. Nevada. $1,000. Comp. Laws, 1873, Vol. 1, ch. 37, p. 200. States in which three witnesses are required for nuncupative wills : — . Florida. Bush's Digest, 1872, ch. 4, p. 76. Georgia. Code, 1873, Title 6, ch. 2, p. 427. Maine. R. S. 18T1, ch. 74, p. 565. Marj'land. Kev Code, 1878, art. 49, p. 421. Nebraska. Gen. Stat. 1873, ch. 17, p. 300. New Hampshire. Gen. Laws, 1878, ch. 193, p. 4SB. New Jersey. Revision, 1709-1877, Vol. 2, p. 1245. South Carolina. R. S. 1873, Title 3, ch. 86, p. 447. Texas. R. S. 1879, Title 99, p. 712. Wisconsin. R. S. 1878, ch. 103, p. 651. States in which two witnesses are required for nuncupative wills : — Arkansas. Digest, 1874, ch. 135, p. 689. California. Codes & Stat. 1876, Vol. 1, title 6, ch. 1, p. 722. Colorado. Gen. Laws, 1877, ch. 103, p. 929. Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 343. 126 Delaware. Rev. Code. 1874, ch. 84. p. 609. Illiuois. E. S. 1880, ch. 148, p. lUl. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 57a Iowa. Rev. Code, 1880, Vol. 1, Title 16, ch. 2. p. 607. Kansas. Comp. Laws, 1879, ch. 117, p. 1009. Kentucky. Gen. Stat. 1873, ch. 113, p. 834. Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1372. Mississippi. Rev. Code, 1871, ch. 54, p. 527. Missouri. R. S. 1879, Vol. 1, ch. 71, p. 684. Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, p. 200. North Carolina. Battle's Revisal, 1873, ch. 119, p. 849. Ohio. R. S. 1880, Vol. 2, Title 2, ch. 1, p. 1440. PeunsvJvania. Bright. Purd. Digest, 1700-1872, Vol. 2, p. 1475. Tennessee. Stat. 1871, Vol. 2, Title 3, ch. 1, p. 999. Utah. Comp. Laws, 1876, Title, 14 ch. 1, p. 265. In Vermont, Gen. Stat. 1862, ch. 49, p. 377, a memorandum must be made in writing by some jwrson present. ^ Great strictness of proof is required in case of a nuncupative will, to show that all the requisites of the law have been complied with. Parsons v. Parsons, 2 Greenl. 298; Welling V. Owings, 9 Gill. 467 ; Bronson v. Burnett, 1 Chand. (Wis.) 136; Rankin v. Rankin, 9 Ircd. 156; Woods v. Ridley, 27 Miss. 119. Thus it has been held that it must be made when the testator is in such extremity of his last sickness that there is no time or opportunity to make a written will. Yarnall's Will, 4 Eawle, 46 ; Prince v. Hazle- ton. 20 Johns. 502; Boyer v. Frick, 4 Watts & S. 357; Werkheiser r. Werkheiser, 6 Watts & S. 184; Reese u. HaAvthorn, 10 Gratt. 548; Hans ». Palmer, 21 Penn. St. 206. A nun- cupative will made by a consumptive person, nine davs before her death, was held not to b^ valid, in Yarnall's Will, 4 Rawle, 46. So where it was made the day before OP ■WILLS BEFOKE 1838. soldier, being in actual military service, or any mariner or seaman, being at sea (which was held to apply to seamen on board merchants' vessels), might dispose of his movables, wages, and personal estate, as before the act.^ Such wills have been subjected to peculiar regula- tions by various statutes (d). The enactment which prohibited, or rather, as we have seen, regu- lated nuncupative wills, was considered not to apply to a What a good will which was reduced into writing during the lifetime and a^wm'it'Mr- by the direction of the testator ; such a will, therefore, was sonaity. sufficient for the disposition of personal estate, though it had not been signed, and was never actually seen by the testator (e)." In two in- (d) 26 Geo. 3, c. 63; 32 Geo. 3, c. 34, s. 1; 11 Geo. 4. c. 20, ss. 48,49, 50j and2 & 3 Will. 4, c. 40, ss. 14 & 15 [which are not affected bv 1 Vict. c. 26, see ss. ll and 12.] (e) See Allen v. Manning, 2 Add. 490; Ke" Taylor, 1 Hagg. 641. death, O'Neill v. Smith, 33 Md. 569. If nuncupative wills can be admitted at all in the case of chronic disorders, which make silent and slow but sure and fatal approaches, it is only in the very last stage and ex- tremity of them. Prince V. Hazleton, 20 Johns. 502. Still, the words "last sick- ness " have not in all cases been held to mean in the very last extremity of life. The rule was somewhat relaxed in John- ston V. Glasscock, 2 Ala. 218. It must strictly appear that the testator specially called upon the witnesses to bear witness to the act. Bennett v. Jackson, 2 Phillim. 190; Winn V. Bob, 3 Leigh, 140; Haus v. Palmer, 21 Penn. St. 296; Taylor's Appeal, 47 Penn. St. 31. But see Baker v. Dodson, 4 Humph. 342. Where words are drawn from the testator by the person interested to establish them, they will not constitute a good nuncupative will. Brown v. Brown, 2 Murph. 350. But see Parsons v. Parsons, 2 Greenl. 298. A nuncupative will cannot be established upon proof, by one witness at one time, how the testator desired his prop- erty to be disposed of, and upon proof by another witness at a different time, that the testator made the same declaration to him. The requisite number of witnesses must be present at the same time; and the ruynlio texfium must also be at that time. Yarnall's Will, 4 Rawle, 64 ; Weeden v. Bartlett, 6 Munf. 123; Tally v. Butterworth, 10 Yerg. 501. Where a nuncupative will was not made at the "habitation" of the deceased, nor where he had resided for " ten " davs next preceding, but was authenticated as the law required, it was held in Virginia that it ought to be deemed good, notwithstanding the deceased was very unwell when he left home, if afterwards he became more dangerously ill, and died at the place where the will was made. Marks v. Bryant. 4 Hen. & M. 91. The Virginia statute differs slipthtly in the wording from that of Car. 2. 'I'he Virginia act excepts the case " where the deceased is itikeii sick from home and dies," &c. The ijtatute of Car. 2 excepts the case where he is "■mrm-ised or taken sick," &o. In the act of Virginia (1 Kev. Code, c. 104), respecting nuncupative wills, the word "habitation" means dwelling-house. Nowlin «. Scott, 10 Gratt. 64. See further, as to the proof of nuncupative wills, Dorsey v. Shepnard, 12 Gill & J. 192; Kellv v. Kelly, 9 B. Mon. 553 ; Burch o. Stovafl, 27 Miss'. 725. 1 In reference to wills of seamen and those in actual military service, see' Florance v. Florance, 2 Lee, '87; Zacharias v. Collis, 3 Phillim. 176 ; Ramsay «. Calcot, 2 Lee, 322 ; Euston 1). Seymour, 2 Curteis, 339; In re Hayes, ib. 338 ; In re Donaldson, ib. 386 ; Master v. Stone, 2 Lee, 339; Warren «. Harding, 2 R. I. 133. A nuncupative will mav be made by the captain of a coaster, while on a voyage, and at anchor in the mouth of a bay, and where the tide ebbs and flows. Hubbard v. Hubbard, 4 Seld. 196. A mariner at sea, being of sound mind and memory, and under no restraint, during his last sicliness and within an hour of his death, was inquired of as to what disposition he wished to make of his property. He replied by declaring, in the presence of four wit- nesses, that he wanted his wife to have all his personal property, and this was allowed as a good nuncupative will. Hubbard v. Hubbard, 12 Barb. 148. And in such case it is not necessary that he should name an executor. Hubba'rd v. Hubbard, 4 Seld. 196.. 2 See Mason v. Dunman, 1 Munf. 456; Phoebe t). Boggess, 1 Gratt. 129. In order to the validity of a nuncupative will, the statute of New Hampshire requires that three witnesses present must be requested to bear witness to tlie will of the testator. The words must be spoken by the testa- tor, with the intention thereby' to make a flnal disposition of his properly. And therefore verbal directions and iustnictions for drawing up a written will, although spoken in the presence of the proper number of witnesses required to bear witness thereto, and reduced to writing, and offered for pro- bate according to the statute, do not, in that state, constitute a nuncupative will. Dockum V. Robinson, 6 Post. 372. So in Virginia, it must appear that the deceased, at the time he spoke the alleged testamentary words, had 127 *99 EXECUTION AND ATTESTATION stances, however, the legislature imposed additional formalities of exe- cution, namely, in regard to estates pur autre vie, as to the devise of which (though transmissible as personalty, unless where the heir takes as special occupant) the Statute of Frauds required three witnesses, and stocli in the public funds, which, it was provided bj' certain acts of Paiiiament, should pass outy by wills attested by two witnesses. But these exceptions to the general rule were, in a great measure, ren- dered nugatory, by the doctrine established by Ripley t». Waterworth (/), that an executor, taking freeholds pur autre vie as special occupant or even in the absence of spf^cial oecupancj'^, under the statute of 14 Geo. 2, was bound to deal with them as part of the general personal estate of the deceased lessee, though bequeathed by a will not attested bj' three witnesses. The same principle would, it is conceived, *99 apply to estates pur autre vie and stock * specifically bequeathed, which an executor would unquestionably' not be allowed to hold in opposition to a specific legatee claiming under an unattested will. Such a question, of course, cannot arise under a will which is subject to the present law, as the statute 1 Vict, has abolished all distinctions in regard to the mode of execution between the various species of property.^ Although the law, until altered bj' that statute, did not require a will Pvincipies of personal estate to be authenticated by an attestation, or adopted by exeii by tlie signature of the testator, yet, in deciding on courts in ad- the validity of a will whose antiquity of date {g) brings it thf vaUdfty" within that law, the Probate Courts do not confine them- of wills. selves to the mere proof of the handwriting of the testa- (/) 7 Ves. 425 [and see 18 Ves. 273, I Euss. 589. H M. & Wels. 323. But where the heir would have taken as special occupant, three witnesses were still required. Marwuod v. Turner, 3 P. W. 166. {(/) In Pechell v. Jenkinson, 2 Curt. 273, an undated and unattested codicil was found to a will dated in 1830. The testatrix died in January, 1839. There was no evidence to show when the codicil was made, and it was held that, in such a case where the deceased was as likely to do what she had done before as after 1 Vict. c. 26, the presumption should rather be that it was done before, and was therefore valid. In Re Streaker, 4 Sw. & Tr. 192. 28 L. J. Prob. 50, the like presumption was made regarding unattested alterations. I5ut cf. Benson V. Benson, L. E. 2 P, & D. 172] the present intention to make his will, and ' It was held in Mullen v. McKelvy. 5 spoke the words with such intention. Winn Watts, 399, that the legality of the execution «. Bob. 3 Leigh, 140. See also Gibson v. of a will must be judged by the law as it wa.f Gibson, Walker, 364; Eeese v. Hawthorn, when it was executed, and'not as it was at the 10 Gratt. 548. But it has been held, ifi some death of the testator. See Croften v. Illsley, 4 coui'ts, that a paper not completed as a writ- Greenl. 134. The contrarj' is held in Georgia, ten will maybe established as a nuncupa- Sutton u. Chenault, 18 Ga". 1. See Hargroves tive will, wliere its completion is prevented v. Redd, 43 Ga. 142. A law passed after the by the act of God. Mason v. Dunman, 1 making of a will, and before the death of Munf. 456; Offut ». Offut, 3 B. Mon. 162; the testator, was regarded as not affecting Boofter v. Rogers, 9 Gill, 44; Frierson v. the nperalioa of the will in Brewster ». Mc- Beale, 7 Ga. 4.38; Parkison v. Parkison, Call, 15 Conn. 274. See Carroll v. Carroll, 12 Smed. & M. 673; Aurand v. Will, 9 16 How. 275,281. But this rule has many Barr, 54. See, however. In re Hebden, 20 lintitations, and is by no means generallv N. J. Eq. 473; Porter's Appeal, 10 Barr, adopted. See Van Kleeck v. Dutch Churcli, 254. As to what amounts to the anlmiis 20 Wend. 49!); Hoffman ». Hoffman, 26 Ala. Uilandi in the case of a nuncupative will, 535; Gr^en v. Dikeman, 18 Barb. 535; Har- see Broach ». Sing, 57 Miss. 115. A written groves v. Redd, supra; Gushing c. Aylwiu, will cannot be partly revoked by a nuncupa- 12 Met. 169; Pray ti. Waterson, ib. 2B2. tive codicil. Brook v. Chappell, 35 Wis. 405. 128 OF "WILLS BEFORE 1838, *100 tor (A) : the history of the instrument is carefully and diligently scru- tinized, and with more or less jealousy in proportion as its contents appear to be conformable to, or irreconcilable with, the moral obliga- tions of the testator, and any previously avowed scheme of testamen- tary disposition. In tracing such history, the custody in which the instrument is found is, of course, most important. If the will is dis- covered carefully preserved among the papers of the testator, or has been by him deposited in the hands of a confidential and disinterested friend, there is a strong presumption in its favor ; while, on the other hand, should it come out of the custody of a person who is interested in its contents, suspicion is excited, and still more, if (as has some- times happened) the alleged depositary remains in concealment, con- tenting himself with transmitting the document anonymously to some part}' interested in maintaining its validity ; under such circumstances, indeed, the Ecclesiastical Courts have invariably rejected the alleged testamentary paper {i) . Nothing, it is obvious, could be more dan- gerous than to assume and recognize the validitj' of a document, thus stamped with every mark of suspicion, on the mere strength of evi- dence as to the genuineness of the signature of the deceased, see- ing with how much skill and success handwriting is frequently imitated ; and this danger though * diminished, is not excluded *100 where the entire will (not the signature only) purports to be in the handwriting of the deceased (k). Where, however, the evi- dence of handwriting is in favor of the genuineness of the signature, and there is corroborative evidence, derived from circumstances, show- ing the probability of such a document having been executed, its valid- ity will be recognized (l) , Copyholds were held not to be within the clause of the Statute of Frauds which required wills to be attested by three wit- Copyholds nesses ; and this seems to have been the result of the nar- JJJ'g gl^^^^^g row construction which that section of the statute received of Frauds. from the courts of judicature, rather than of anj' restrictive terms in the enactment itself, the language of which, in the opinion of some judges of later times, was sufficiently comprehensive to have warranted its application to copyholds (tn) . It seems to have been thought, how- ever, that as copyholds passed bj- the surrender and will taken together, and not by the will alone (the. will merelj' declaring the uses of the surrender, and the eflect being the same as if the devisee's name had been inserted in the surrender) , a will of copyholds was not a devise or bequest of lands or tenements, within the 5th and 6th sections of the statute (n). The consequence was, that anj^ instrument which was (h) Machin v. Grindon, 2 Lee, 406; Crisp v. Walpole, 2 Hagg. 531; and other cases cited 4 Hagg. 224. (i) Rutherford V. Maule, 4 Hagg. 213; Vussell v. Marriott, 1 Cnrt. 9. Ik) Rutherford ». Maule, 4 Hagg. 213. (/) [Wood ». Goodlake, 1 No. Cas. 144.] (m) See 2 P. W. 258, 1 Ves. 227, 7 East, 322. (») See 7 East, 322. VOL. I. 9 129 *101 EXECtTTION AND ATTESTATION adequate to the testamentary disposition of personal estate was held to be sufficient for the devise of copyholds. Accordingly not only did an unattested writing, signed by the testa- What const!- ^"^i Operate as an effectual devise of copyholds, but testa- tutes a will mentary papers, neither authenticated by the signature, nor ancf copy-" ^ even in the handwriting of the testator, were adjudged to be holds. sufficient, if reduced into writing during the life of the tes- tator, by his direction. And though the ground upon which copyholds were held, originally, not to be within the statute, — namely, that the estate passed by the combined operation of the surrender and will, — did not apply to equitable interests, which cannot be the subject of a surrender, yet, the well-known maxim, equitas sequitur legem, required that they should be governed by the same rule (o) . [Equitable inter- ests in customary freeholds passing by surrender (or deed having the effect of a surrender) , and admittance, seem to have stood on *101 the same * footing : though on this point the authorities are not quite distinct (jo).] Cases, however, sometimes occurred under the old law, and may As to incom- possibly arise under the present, in which something more piete papers, tij^n a mere compUance with legal requirements was made necessary to the efficacy of the will by the testator himself; he having chosen to prescribe to himself a special mode of execution ; for in such case, if the testator afterwards neglects to complj' with the prescribed- formaUties, the inference to be drawn from these circumstances is, that he had not fully and definitively resolved on adopting the paper as his will.' Thus, if there is found among the papers of a testator a will, written in his own handwriting, and concluding with the usual words " In witness," &c., but to which the testator's signature is not attached, it is clear that such paper, bearing as it does such evident marks of incompleteness, is not entitled to be treated as the final will of the deceased {q) ; though adequate as a will in writing to satisfy the requi- sitions of the old law. On this ground, too, the prerogative court in several instances refused to grant probate of a paper, which the de- ceased had signed, and to which he had added a memorandum of attes- tation : he having died without ever making use of such memorandum, though he had abundant opportunitj' of doing so. Thus, in Beaty v. Beaty (r), where the deceased, who died on the 21st of March, 1822, (o) Tuffnell v. Page, 2 Atk. 37, 2 P. W. 261, n.; Carey v. Askew, 1 Cox, 244; [Wildes «. Davies, 1 Sm. & Giff. 475. (p) See Wilson »). Dent, 3 Sim. .'585, ^»'o,- contra, Hussey v. Grills, Amb. 299, which case is doubted, 2 Scriv. Cop. p. 569 ; Willan r. Lancaster. 3 Russ. 108, seems to have gone on the question, whether the requisites of the power were complied with.] (q) Abbott V. Peters, 4 HagR. 380. (r) 1 .\dd. 154; fee also Walker v. Walker, 1 Mer. 503; [Scott v. Rhodes, 1 Phillim. 12; Harris v. Bedford, 2 Phillim. 177 ; Stewart v. Stewart, 2 Moo. P. C. C. 193.] 1 See MuiTv ». Murrv, 6 Watts, 353; Ex tions from the instructions, it is invalid if parte Henry, 24 Ala. 638. Instructions for a such variations were not made known to the will may properly be amplified in the will testator before execution. Davis v. Rogers, Itself; but, if- the will contams essential varia- 1 Houst. 44. 130 OF WILLS BEFORE 1838. *102 left a testamentary paper, dated the 6th of June, 1820, signed by him, containing an attestation clause in the following words : '•Signed, sealed, and delivered in the presence of," but jectedon' which clause was not subscribed by any witnesses.^ A per- accouutof an •J J i- uncompleted son who had attested a former will of the deceased, proved fovm of at> a con\ersation with him, in which the deceased said, that he ''=^"'"'"- had destroyed the will formerly attested by him, and had made another (meaning, it should seem, the paper in question) ; Sir J. NichoU said : " As the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is, that the writer meant to execute it in tlie presence of witnesses, and that it was incomplete, in his appre- hension of it, till that operation was performed, the presumption of law is against a testamentary paper with an * attestation *102 clause not subscribed by witnesses." ^ The learned judge pro- ceeded to observe, that "the presumption against an instrument so circumstanced was a slight one,^ where the instrument, lilie that before the court, was perfect in all other respects (s) . Slight as it was, how- ever, it must be rebutted by some extrinsic evidence of the testator intending the instrument to operate in its subsisting state, before it could be admitted to probate." * In reference to tlie deceased's con- versation with the attesting witness of the former will, the learned judge observed, that the mere vague declarations of testators that they have made their wills, are not always to be implicitly relied on ; and can never, standing singly, supplj' proof of due execution, or, consequently, of what is to be taken in lieu of it. In common parlance, a man may well say, that he has made a will, when he has written a testamentary paper, though unfinished (<). (s) See also Doker «. Goff, 2 Add. 42. {t) Tiieso cases appear to have overruled some early decisions, in which imperfect papers were admitted to probate as wills; unless. those decisions can be referred to the principle next adverted to in the text, which seems doubtful, as but little allusion is made in them to the point now so much regarded, — whether the non-completion of the instrument was the conse- quence of the voluntary neglect of the deceased, or of inevitable accident. See Cobbold v. Baas, 4 Ves. 200, n. ; Haberfield v. Browning, ib. In Roe d. Oilman v. Heyhoe, 2 W. Bl. 1114, an instrument which was signed only was held to be a valid will for devising copv- holds (having been proved in the Ecclesiastical Court), though in the testimonium clause it was referred to as being under the hand and seal of the testator. From the evidence, how- ever, it appeared that the testator had subsequently treated it as his will. [See further on this subject, 1 Wms. Exors. pt. i., bk. ii., c. ii., s. 2.j ' Pett ». Hake, 3 Curtois, 612. A holo- ris v. Bedford, 2 Phillim. 177; Matthews v. graph will, with the name of a testator in the Warner, 4 Ves. 180; 5 Ves. 23; Thomas v. tommencement, but not subscribed, with a Wall, 3 Phillim. 23; Robeson v. Kea, 4 Dev. blank left for the date, and containing an at- 301; Waller ». Waller, 1 Gratt. 454: Rochelle testation clause, but without witnesses, was v. Rochelle. 10 Leigh, 125; Watts v. Public held not to be well executed in Waller e. Admr., 4 Wend. 1G8. Waller, 1 Gratt. 454. See Tilghman v. SteUr 3 Harris w. Bedford, Thomas i'. Wall, su- art, 4 Harr. & J. 156; Watts ii.-public Admr., pra; Buckle ». Buckle, 3 Phillim. 323 ; In re 4 Wend. 108. An in^trament with the requi- Jerram, 1 Hagg. 550 ; Doker v. Voff, 2 Add. site number of witnesses, one of whom is Eccl. 42. ducided to bo incompetent, may, nevertheless, < Harris v. Bedford, Beaty s. Beaty, supra ; be proved as a holograph wiU'in North Garo- In re Hurrill, 1 Hagg. 252; In re Wenlock, 1 lina. Brown v. Beaver, 3 Jones, 516. See Hagg, 551; In re Edmonds, 1 Hagg, 698; Outlaw V. Hurdle, 1 Jones, 150. Bragge r. Dyer, 3 Hagg. 207. 2 See Scott o, Rhodes, 1 Phillim. 19 ; Har- 131 *103 EXECTJTIOK AND ATTESTATION Where, however, the testator's design of perfecting the paper is frus- _^. . . trated by sudden death, or insanity, or any other involuntary where the preventing cause, no inference of the absence of matured testator is testamentary intention arises from the imperfect state of from per- the document, which, therefore, notwithstanding its defect, conducing^ will be accepted as the will of the deceased, provided it fully act of authen- dlscloses his testamentary scheme.^ As where an attorney ica ion. j^^^ taken down from the deceased's own mouth a statement of his intentions respecting his property, which was read over to, and approved by him, and a fair copy directed to be made, and brought to him the next morning, to be executed as a will ; but the testator died in the course of the night. Sir J. NichoU held the direction to the attorney to make a fair copy, and to bring it the next morning for exe- cution, to be conclusive of the testator having fullj' made up his mind on the subject of his will ; and accordingly' pronounced in favor of the testamentary paper (?«) ? Whatanade- In order to warrant the reception of the unfinished venthig™" *103 paper, it *is not necessary' that there should have cause. been a physical impossibility of the testator's com- pleting it before his dissolution ; it is enough that the obstacle was such as to account for its being left incomplete, without having recourse to the supposition of an immaturity or change of testamentarj^ intention.' Thus, where a person went to the office of his attornej-, on the 10th of December, and gave instructions for his will, promising to call and execute the will when prepared, which he never did, though he lived to the 15th ; but, as it appeared that the deceased did not afterwards leave, his house, the state of his health being such as to render his doing so inconvenient, though not impossible ; and as an anxietj', expressed to the attorney, to conceal it from his (the deceased's) wife, supplied a reason for his not sending for the will to be executed at home, the court pronounced in favor of the written instructions taken down by the attor- ney, on the oral dictation of the deceased (x) . (a) Huntington e. Huntington, 2 Phillim. 213; see also Carey v. Askew, 1 Cox, 241. \x) Allen ». Manning, 2 Add. 490. 1 Gaskins ». Gaskins, 3 Ired. 158. See be a physical cause. The existence of such Rohrer ». Stehman, 1 Watts, 442. mental cause as delirium incapacitates the tes- '2 A paper not completed as a written will tator from completing the will. Jackson c. may, as has elsewhere been stated (ante,p. 98, Moore, 14 La. Ann. 213. See furtlier, Asay note 2), sometimes be established as a nuncu- ti. Hoover, 5 Barr, 21 ; Grabill «. Barr, ib. pative will. Offut v. Oftut, 3 B. Mou. 162; 441; Dunlopj). Dunlop. 10 Watts, 153; Stick- Phoebe i). Bo'ggess,lGratt. 129: Masons. Dun- er V. Groves, 5 Whart. 38G, as to signatures man, 1 Munf . 456. Still it must appear to con- made on behalf of the testator. Though tain the final determination of the testator as some short time has elapsed between tlie to the disposition of the estate, and his whole period when it was in his power to have exc- will respecting it. Rochelle v. Rochelle, 10 cuted formally such writing and that when Leigh, 125 ; Malone v. Harper, 2 Stew. & P. he was so incapacitated, vet if such delav 454; Doekum «. Robinson, 6 Foster, 372; ijroceeded merely from convenience, and mil Winn 1). Bob, 3 Leigh, 140; Reese ». Haw- from any hesitancy as to the disposition he thorn, 10 Graft. 548. wished to make, or any desire to make > Gaskins v. Gaskins, 3 Ired. 158. The changes therein, the paper-writing is a good cause which excuses a testator from signing will. Showers v. Showers, 27 Penn. St. his name, when he knows how to sign, must 485. 132 OF WILLS BEFOiRB 1838. *104 But this doctrine in favor of imperfect papers obtains only, where the defect is in regard to some formal or authenticating act, Contents of and not where it applies to the contents of the instrument : ^^^ ^^^^ „ .„ . . , , must be tor, II in its actual state the paper contains only a partial complete. disclosure of the testamentary scheme of the deceased, it necessarily fails of effect, even though its ^completion was prevented by circum- stances bej'ond his control.* And, therefore, where a person while dictating his will to an amanuensis, is stopped by sudden decease, or the rapid declension of his mental or physical powers, such paper can- not be admitted to probate, as containing his entire will, without the most unequivocal testimonj^ that the deceased considered it as finished ; and the fact that the paper professes to dispose of the deceased's whole estate is not conclusive as to its completeness, because testators not unfrequently begin with such a universal disposition, and then proceed to bequeath specific portions of their propertj?, by way of exception thereout. And the inference that the alleged wlU discloses part only of the intended disposition, would be strengthened by the circumstance of its not embracing persons, who, from their intimate relationship to the deceased, and from the contents of a prior revoked will, it was rather to be expected would have been primary objects of his consider- ation (y). * In short, the presumption is always against a paper which *104 bears self-evident marks of being unfinished ; ^ and it be- hoves those who assert its testamentarj' character distinctly against un-" to show either that the deceased intended the paper in its finished actual condition to operate as his will, or that he was pre- P^f"""*' vented by involuntary accident from completing it (z) .' And probate will not be granted of such defective papers, without the consent or citation of the next of kin (a) . It ought to be observed, however, that we are not to rank among inchoate or unfinished testamentary papers, one which is informal shown to have been intended to perform the oflSce of a fe'lfded as a present wiU (if the expression may be allowed), though present will. executed for a temporary purpose, as appears by the testator having designated it a " memorandum of an intended will," or " head of in- (y) Montefiore v. Montefiore, 2 Add. 354; see also Griffin v. Griffin, 4 Ves. 197, n. This case afforded two sufficient grounds for the rejection of the paper : first, that it was not the whole will; and, secondly, that its completion was not prevented by inevitable circumstances. [But loss of part of a will once complete does not necessarily exclude the remainder from probate, Sugden v. Lord St. Leonards, 1 P. D. 154.] (z) Reay v. Cowcher, 1 Hagg. 75, 2 Hagg. 249; Wood v. Medley, 1 Hagg. 661; Re Rob- inson, ib. 643; Bragge v. Dyer, 3 Hagg. 207; Gillow v. Bourne, 4 Hagg. 192. As to the contrary presumption in favor of a regularly executed and apparently complete will, vide Shadbolt V. Waugh. 3 Hagg. 570; Blewitt v. Blewitt, 4 Hagg. 410. («) He Adams, 3 Hagg. 258. 1 See Rochelle v. Rochelle, 10 Leigh, 125 ; Admr. v. Watts, 1 Paige, 347, where Mr. Chan- Murry v. Murry, 6 Watts, 353. cellor Walworth reviews many of the cases 2 Pett w. Hake, 3 Curteis, 612; McLean!), on unfinished and incomplete testamentary McLean, 6 Humph. 452. papers. S. C. 4 Wend. 168. 3 McLean v. Mcl^ean, supra. See Public 133 *105 EXECUTION AND ATTESTATION structions," or " a sketch of an intended will which I intend to make when I get home," &c. And it has frequently occarred that a testator has ultimately adopted as his final will a paper so originally designed as instructions for, or in contemplation of, a more formal testament (J) . In all such cases, however, the Ecclesiastical Court required very distinct evidence of a testator eventually adhering to and adopting, as his deliberate will, the preliminary document, in case he afterwards lived long enough to have executed a more complete instrument (c). But cases of this kind depend so much upon their particular circum- stances, that little is to be learnt from general positions ; and the in- quirer into the subject is recommended to consult the cases referred to below, a fuU statement of which the limits of the present work do not allow.* *105 * Section III. Execution and Attestation of Wills made since the Tear 1837. The statute 1 Vict. c. 26 (s. 9), provides, "That no will shall be Execution of valid unless it shall be in writing, and executed in manner since the year hereinafter mentioned ; (that is to say) it shall be signed at 183T. 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 {d) and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." [The provision in this enactment requiring the signature of the tes- Provision re- tator to be at the ' ' foot or end " of the will (which was evi- quiring the dentlv intended only to do away with the rule before noticed, sie;nature to '' „ , ... be at the foot that the name of the testator written m the commencement, or end; thus: "I, A. B., do make, &c.," was a sufficient signa- ture) , seems at first to have answered the purpose intended ; sub- sequently, however, the Ecclesiastical Courts came to the conclusion that the words "foot or end" were to be construed strictly, and that (b) Barwick v. Mullings, 2 Hagg. 225 ; Hattatt ». Hattatt, 4 Hagg. 211 ; Torre v. Castle, 1 Curt. 303; [1 Wms. Exors. 62 et seq., 6th ed.] (c) Dingle v. Dingle, 4 Hagg. 388; Coppin ». Dillon, ib. 361. [A subsequent complete will of course supersedes "Instructions for a Will." But sometimes the subsequent will refers to and incorporates the instructions ; see Wood v. Goodlake, 1 No. Cas. 144.] (d) The word " attest " is omitted from the corresponding Act of the Indian Council, see 6 iVIoo. P. C. C. 137. 1 See Popple u. Cunison, 1 Add. 377; " Under the Statute of Missouri, the per- Sharp V. Sharp, 2 Leigh, 249; Mitchell v. son signing the name of the testator, at his Mitchell, 2 Hagg. 74; Public Admr.i;. Watts, request, must himself witness it, and state 1 Paige, 347; S. C. 4 Wend. 168; Hocker v. that fact, or the will is void. McGee v. Por- Hocker, 4 Gratt. 277. ter, 14 Mo. 611; ante, p. 79, note 1. 134 OP WILLS SINCE 1837. *106 if the signature did not immediately follow under the dispositive part of the will, and in such a manner that nothing could be written be- tween the signature and the last words, the will was not properlj^ exe- cuted (e) .^ To obviate the inconveniences arising from these decisions, it was enacted by stat. 15 & 16 Vict. c. 24 : — " 1. That where by an act of 1 Vict. (c. 26), it is enacted that no will shall be valid unless it shall be signed at the foot or end _i.epeaied thereof by the testator or by some other person in his pres- % 15 & 16 ence and by his direction, every will shall so far only as "^'■"' ' regards the position of the signature of the testator, or of the person signing 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 (g) the end of the will, that it shall be apparent *106 on the face of the will that the testator intended to give effect, by such his signature, to the writing signed as his will (h), and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately («') after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause (k) , or of the clause of attestation {I ) , either with or without a blank space intervening, or shall follow, or be after, or under, or be- side, the names (m) or one of the names of the subscribing witnesses, [(e) See the decisions on this point collected and observed iipon, Sugd. R. P. Statutes. (/) Ke Woodley, 33 L. J. Prob. 154. ((/) Re Williams, L. R. 1 P. & D. 4, and cases there cited; Re Ainsworth, L. R. 2 P. & D. 151. (7i) Re Hammond, 3 Sw. & Tr. 90, 32 L. J. Prob. 200. In Trott v. Trott, 29 L. J. Prob. 156, 6 Jur. N. S. 760, the testator's name, occurring as the last words of a holograph ■will, was held a sufficient signature. In Sweetland v. Sweetland, 4 Sw. & Tr. 9, 34 L. J. Prob. 42, the lirst five sheets were signed and attested, but not the sixth and last, and the whole was rejected. Parol evidence is admissible to show quo ammo the testator signed his name. Dunn v. Dunn, L. R. 1 P. & D. 277. (0 Page V. Donovan, 3 Jur. N. S. 220, where the signature was at the end of a notarial certificate, immediately following the will, and detailing the circumstances under which it was made, and it was held good. (k) Re Mann, 28 L. J. Prob. 19; Re Dinmore. 2 Rob. 641. (0 Re Walker, 2 Sw. & Tr. 354, 31 L. J. Prob. 62; Re Huckvale, L. R. 1 P. &D. 375; Re Casmore, ib. 653; Re Pearn, 1 Prob. D. 70. (m) Re Jones, 34 L. J. Prob. 41 ; Re Puddephatt, L. R. 2 P. & D. 97; Re Horsford, L. R. 3 P. & D. 211. ^ If a will be signed several times, the .California. Codes and Stat. 1876, Vol. 1, last signature, at least if at the end, is the Title 6, ch. 1, p. 720. efficient one, and erasure of this constitutes a Dakota. Rev. Code, 1877, Title 5, ch. 1, revocation. Evans's Appeal, 58 Penn. St. p. 344. 238. A signature of testatrix followed by ap- Kansas. Comp. Laws, 1879, ch. 117, p. 1001. pointment of executors and signature of wit- Minnesota. Stat. 1878, ch. 47, p. 568. nesses, and followed again by further pro- New York. R. S. 1875, Vol. 3, ch. 6, p. 63. visions, and signature of testatrix is not a Ohio. R. S. Vol. 2, ch. 1, p. 1425. signature at the end of the will. McGuire Pennsvlvania. Bright. Purd. Digest, 1700- V. KeiT, 2 Bradf. 244; Glancv V. Glancv, 1872. Vol. 2, p. 1474. 17 Ohio St. 134; Hays v. Harden, 6 Penii. In New Hampshire wills must be sealed, St. 409. ' Gen. Stat. 1878, ch. 193, p. 445; also in Wills must be signed at the end in Nevada, Comp. Laws, 1873, Vol. 1, ch. 37, Arkansas. Digest, 1874, ch. 135, p. 1012. p. 200. 135 *107 EXECUTION AND ATTESTATION 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 wiU shall be written above the signature (n) , or by the circumstance that there shall appear to be sufficient space (o) 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 con- tain the signature, and the enumeration of the above circumstances shall not restrict the generality of the above enactment ; but no signa- ture under the said act or this act shall be operative to give effect to any disposition or direction which is underneath, or which fol' *107 lows it (p) : * nor shall it give effect to auy disposition or direction inserted after the signature shall be made (g) . "2. The provisions of this act shall extend and be applied to every will already made, where administration or probate has not already been granted or ordered by a court of competent jurisdiction, in conse- quence of the defective execution of such will, or where the property, not being within the jurisdiction of the Ecclesiastical Courts, 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 jurisdiction, in consequence of the defective execution of such will." The wording of this statute may perhaps seem needlessly particular to the reader who has not consulted the decisions which led to its en- actment ; but it is unnecessary to treat of those decisions here, since the 2d section of the statute renders it almost impossible that the va- lidity of any will should hereafter come to be determined by them. The points in which these enactments coincide with the Statute- of Alterations Frauds have already been noticed, and the decisions thereon bv tife"?efent ^^''^ ^^en placed before the reader. enactments. It remains to notice in what respects the law has been placed upon a new footing : , — ] (n) Re Hovsford, L. E. 3 P. & D. 211; Ee Williams, L. R. 1 P. & D. 4, If, however, at the tin^e of execution the paper is so folded that no -writing is visible, it must be proved that the will was written before the testator signed. Re Hammond, 3 Sw. & Tr. 90, 32 L. J. Prob. 200, (o) Re Williams, L. R. 1 P. & D. 4 ; Hunt v. Hunt, ib. 209 ; Ee Archer, L. R. 2 P. & D. 252. (p) Re Dallow, L. E. 1 P. & D. 189 ; Re Woods, ib. 556 (in which the appointment of executors followed the signature). But in a few cases the court has been satisfied by the mode of writing or by the context that a pjirt which physically followed the signature be- longed properly to that which preceded it. As where a sentence, which want of space pre- vented being completed at the bottom of a page, was continued, with an asterisk of reference, on a previous page, or at the back, Re Kimpton, 33 L. J. Prob. 153 ; Re Birt, L. R. 2 P. & V. 214. So where the will was written on the first and third sides, which it filled, and the signature was written crossways on the second (Re Coombs, L. E. 1 P. & D. 302). And where, a lithogi'aphed form occupying the first page, the will was written on and filled tlia second and third, but was signed in the form, this was held good. Re 'Wotton, L. R. 3 P. Ik D. 159. In all these cases it was proved that the part iu question was written before exe- cution. This proof failed in Re White, 30 L. J. Prob. 55, and the part was rejected. (g) Ee Arthur, L. E. 2 P. & D. 273. 136 OP WILLS SINCE 1837. *108 1. Wills of real and personal estate are subject to the same rule [as to the ceremonial of execution] , and such rule differs from Two witness- that which previously obtained in regard to either species of ^^ required. property ; two witnesses, instead of three, as formerly, are required to a will of freehold land, and two witnesses are also necessary to a will of personal estate or copyholds, which formerly required no attestation. 2. [The signature of the testator must be somewhere near the end of the instrument,^ and so as not to be immediately over, or preceding any of the dispositive parts of the instru- Position of ment, but it * need not immediately follow or be *108 testator's under any of the dispositive parts ; whereas formerly the signature might be in any part of the instrument. 3. The signature of the testator is to be "made" or "acknowl- edged" (the " signature" and not, as formerly, the " wiU," being the subject of acknowledgment) ] ^ in the simulta- neous presence of the witnesses (r) , whereas formerly the signature might be " made" before one, and [the will] acknowledged before the rest, or acknowledged before all the witnesses separately, [without any of them having seen the signature.] 4. A form of attestation is expressly dispensed with. 5. The witnesses are not required, as heretofore, to be "credible," and some modification has taken place in regard to the disqualification arising from interest. [As to the 1st point : no question arises. As to the 2d point: Lord St. Leonards' Act has left little room for question. The decisions will be found noted to the various clauses of the act in a previous page. As to the 3d point: the following decisions have been made with regard to acknowledgment : — Aclcnowledg- (a) The signature to be acknowledged maj^ be made by U^™'.°by^" the testator, or hj another for him («) . testator. (b) A testator, whether speechless or not, may acknowledge his sig- nature by gestures (t) . (c) There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature (m), not even though the testator should expressly declare that the paper to be attested by them is his will («). (r) Moore ». King, 3 Curt. 243, 2 No. Gas. 45j 7 Jut. 205. As to what is the " presence " of tlie witnesses, see Smith v. Smith, L. E. 1 P. & D. 143; and the cases supra on the " pres- ence " of tlie testator. (s) Re Regan, 1 Curt. 908. (() Re Davies, 2 Rob. 337; and see Parlcer v. Parker, Milw. Ir. Eccl. Rep. 545. (m) Re Harrison, 2 Curt. 863; Ilott v. Genge, 3 Curt. IBO, 4 Moo. P. C. C. 265, 8 Jur. 323; Ee Swinford, L. R. 1 P. & D. 631; and see Faulds v. Jackson, 6 No. Cas. Supp. ]. {») Hudson V. Parker, 1 Rob. 14, 8 Jur. 786; Shaw v. Neville, 1 Jur. N. S. 408; Beckett V. Howe, L. R. 2 P. & D. 1, is contra : sed . Reed, 9 M. & Wels. 404; Bur- dett V. Spilsbury, 10 CI. & Fin. 340; Hudson «. Parker, 1 Rob. 14, 8 Jur. 788. 138 OF WILLS SINCE 1837. *111 tion (^). The "subscription," "attestation," and "form of attesta- tion," thus refer to matters essentially different.] Still, it will be the duty of persons who superintend the execution of wills, not to be content with a bare subscription of the witnesses' names, but to make them subscribe a memorandum of attestation, recording the observance of all the circumstances which the statute makes necessary to constitute a valid execution (i.e. that the signa- ture was made, or acknowledged, by the testator in the presence of the witnesses, both being present at the same time, and that they sub- scribed their names in his presence) ; for, though such statement in the memorandum of attestation is not conclusive, and does not preclude inquirj' into the fact, it would afford a much stronger presumption that the statutory requisition had been complied with, than where it is want- ing ; [and in the absence of such a memorandum, the witnesses are always called upon by the Court of Probate to make an affidavit that the statute was in fact complied with.] It will not be As to testa- advisable for a testator, [except where absolutely 'neces- ^y tiie'fiailif sar}-,] to avail himself of the privilege, which the new act oi auother. expresslj^ confers (as the Statute of Frauds, according to the con- struction which it received from the judicature, also did), of ac- knowledging the signature before the witnesses,^ instead of signing it in their presence, or of the permission to sign by the hand of another. The latter expedient, indeed, ought to be restricted in practice (though the legislature has not so limited it) to cases of extreme physical weakness, rendering it impossible or difficult for the testator to write his name ; in such cases, even the exertion of making a mark might be oppressive. Where a testator is unable to write from As to signing ignorance, perhaps a mark is to be preferred to a signature ^^' "[^aii^'.' bj' the hand of another, as being the more usual mode of ensis. execution by illiterate persons ; ^ for in regard to this and all other particulars, the prudent course is to make the execution of the will conform as much as possible to the testatpr's ordinary mode of exe- cuting instruments. Where the will is signed by a third person on behalf of the testator, the signature, of course, should [though, as we have before seen, it need not necessarily] be in the name, of the tes- tator, rather than that of the amanuensis, who should merely be designated in the memorandum of attestation ; where it * would *111 Idc proper (though not necessary) that the peculiar mode of execution should be stated. As to the 6th point: it will be observed, that in the clause above (i) See per Sir C. Cresswell, Cliarlton v. Hindmarsh, 1 Sw. & Tr. 439, 5 Jur. N. S. 581, 28 L. J. Prob. 132.] 1 See Gaze v. Gaze, 3 Curteis, 451; Keig- a will with a mark, and it was duly attested, win V. Keigwin, ib. 607. probate was granted, in In re Field, 3 Cur- 2 "Where the testator, having by paralysis teis, 752. lost the use of his speech and limbs, signed 139 *112 EXECUTION AND ATTESTATION Attesting stated, which regulates the attestation of wills, the legis- miuTrel^to"' l^tii'^ ^^^ dropped the requisition of credibilitj', as an be eiedibie. ingredient in the qualification of the witnesses ; and has, moreover (s. 14), expressly provided, 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 shaE not on that account be invahd.^ It seems to have been generally considered, that this provision not Persons in- Only qualifies persons who have been rendered infamous by competent to gonviction for crime to be attesting witnesses (as it clearly quaiiiied. does), but, that it even gives validity to the attesting act of an idiot or lunatic. This, however, seems very questiona- ble. The signature, it will be observed, is required to be made or acknowledged by the testator in the presence of the witnesses ; which would seem to imply that they should be mentally conscious of the transaction, accorHing to the construction which was given (as we have seen (Z)) to the same word occurring in the devise clause of the Statute of Frauds, which required that tlie attesting witnesses should subscribe in the testator's " presence ; " such requisition being held not to be satisfied in a case, in which the testator fell into a state of insensibilitj', before the witnesses had subscribed their names to the memorandum of attestation ; and the 14th section of the recent statute seems to be per- Doubt fectly consistent with such a construction ; for that clause wiiether (joes not in terms dispense with all personal qualifications extends to in the witnesses to perform the act ; it only removes the legal lunatics, or disqualification, arising out of incompetency to give evi- orlier persons ^ jo x ./ o mentally in- dence of the fact in a judicial proceeding, which evidently capable. ^^^ coexist with intellectual capacity, as in the case of a person whose credibility of character has been destroyed by conviction for crime, a species of disqualification which was peculiarly incon- venient, as the testator might have been unaware of its existence, so that there was a special reason for its removal, which does not apply to palpable infirmity. Surel}-, if the legislature intended to enact so novel (not to say absurd) a doctrine, as that the functions of an attesting witness might be performed by any one who could scratch a *112 * paper without the least glimmering of intellectual conscious- ness, this would have been done in terms more clear and ex- (0 Ante, p. 87; [and see the judgment of Dr. LusMngton in Hudson v. Parker, 1 Rob. 14, 8 Jur. 786.] 1 " Credible witness " means one compe- "credible." Lord ». Lord, supra. Interest, tent, not disqualified at the time of attestation, at common law, to be disqualifying, must be to be sworn and to testify in a court of present, certain, and vested, lb. And the justice. Lord v. Lord, 58 N. H. 7; Carl- statute of New Hampshire (and the same is ton ». .Carlton, 40 N. H. 14; Hawes v. Hum- generally true), which declares that interest phrev, 9 Pick. 350; Sparhawk v. Sparhawk, shall not disqualify a witness, is notapplica^ lU Allen, 155; ante p. 90. Hence a witness ble to the attestation of wills. lb. incompetent by reason of interest is not 140 OF WILLS SINCE 1837. *113 plicit, than b}- providing that persons incompetent to be admitted as witnesses to prove the execution of a will, should be sufficient attesta- tors — expressions which seem rather to suppose a personal ability on the part of the witnesses to perform the act, but a legal disability to prove it. Perhaps the point is not very likely to occur in practice ; for no testator would think of choosing an idiot (m) or lunatic as an attest- ing witness to his will, unless he were content to have his own „ sanity called in question. And here it may be observed, to selection of that the enlarged license now given, in regard to the qualifi- ^''°^^s^^- cation of witnesses to wills, will not induce any prudent person to abate one jot of scrupulous anxiety, that the dutj' of attesting a ivill be con- fided to persons, whose character, intelligence, and station in society, afford the strongest presumption in favor of the fairness and proper management of the transaction ; and preclude all apprehension in pur- chasers and others, as to the facility with which the instrument could be supported in a court of justice, against any attempt to impeach it ; and now that the requisite number of witnesses is reduced to two, it is the more easj-, as well as important, that the selection should be governed by a regard to such considerations. A devise or bequest to an attest- ing witness still, as under the old law, does not affect the validity of the entire will, but merely invalidates the gift to the witness, whose com- petency the legislature has established by destroying his interest ; and hence the remarks on this enactment have more proper!}' found a place in a preceding chapter, which treats of the disqualifications of devi- sees {n). [Bj^ the 21st section it is enacted, "That no obliteration, interlinea- tion, or other alteration, made in any will after the execu- Alterations tion thereof, shall be valid or have any effect, except so far to be signed as the words or effect of the will before such alteration shall ^" a es e . not * be apparent, unless such alteration shall be executed in like *113 manner as hereinbefore 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 subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum refemng to such alteration, and written at the end or some other part of the will" (o).] (m) Supposing such persons to be, technically speaking, competent attesting witnesseR, the effect of employing two such witnesses would be to render it necessary to have recourse to the testimony of other persons, for the purpose of proving the circumstances of the execution, which could not, in such case, be done (as it usually is) out of the mouths of the witnesses themselves ; and it is to be observed that, although, in the case of a deceased witness, jircof of handwriting is sufficient, the presumption being, that the will was duly attested, especially if the facts essential thereto were recorded in a memorandum of attestation, which was sub- scribed by the deceased ; yet it does not follow that any such presumption would arise in the case of a'lunatic witness, whose subscription (though his handwriting inight be proved), could not be considered as affording any security that attention had been paid to the requisitions of the statute. " («) Ante, p. 70. [(o) See Re Wingrove, 15 Jur. 91 ; Be Hinds, 16 Jur. 1161 ; Re Treeby, L. R. 3 P. & D. 242.] 141 *114 DEFECTIVE EXECTTTION The recent enactments, it will be perceived, preclude in reference to How far doc- *^^ ^'•'^^ *° wMch they applj', many of the questions which trines of this arose Under the Statute of Frauds. The cases respecting tead'to wiUa *h® local position of the testator's signature, and as to the made since admissibility of an acknowledgment, as a substitute for signing before the witnesses, the necessity of publication, and the qualifications of attesting witnesses, are obviously no longer applicable. The statute has also, by assimilating wills of real and per- sonal estate in regard to the ceremonial of execution, gotten rid of the numerous questions which arose out of attempts bj' testators to create, bj' an attested will, a power to dispose of or charge their real estate by an unattested codicil ; and hence, that part of the present chapter which treats of these several subjects ranges itself under the mass of legal learning, which recent legislation has rendered, or rather will eventually render, obsolete. The prevention of all questions as to due execution must still mainly depend on the prudence and attention of the practitioner, who will, of course, take care to preclude all doubt as to whether the testator did see the attesting witnesses subscribe, or whether he might have seen them (for this, it will be remembered, is the true point of inquiry), by placing the witnesses and the testator in immediate juxtaposition in the same room during the whole business of the attestation ; nor will he for a moment be content to rely on the doctrine to be noticed hereafter, which connects an attested codicil with a prior unattested will or codi- cil, as a ground for dispensing with a regular clause of attestation to each separate testamentary paper. Having regard to the necessity [that the signature should now not be above or precede the dispositive part of the will,] it seems *114 advisable, when a testator is in extremis, that the first or * only signature should be at the end ; for it has sometimes happened that a testator who has begun to sign the several sheets has expired or become insensible before he had reached the last. Section IV. Defective Execution supplied h/ Reference, express or implied. It remains to be considered in what eases a codicil A\i\y attested communicates the efflcacj' of its attestation to an unattested will Whether at- ov previous codicil,* so as to render effectual any devise testation of or bequest which may be contained in such prior unattested » See Ch. VIII. 142 SUPPLIED BY EBPEEENCB. *115 instrument.^ It has been repeatedly decided, [in cases not plies to pre- affeeted by stat. 1 Vict. c. 26,] where the several attested """^ *'"■ and unattested instruments were written on the same paper, act^'^vuft.'''^ that the latter were rendered valid. c. 26. Thus, in De Bathe v. Lord Fingal (p), where a testator made a will for the purpose (among others) of appointing guardians to his children. This will was attested by one witness only, cil refers to The testator afterwards executed a codicil to the will, writ- are'vvritten'* ten on the same sheet of paper, and attested by three wit- on same nesses, and which was declared to be a codicil to his will P"?'^''' thereunto annexed.^ The attestation was held to apply to the will, so as to constitute It a good testamentary appointment of guardians within the statute of 12 Car. 2, e. 24, which required that the appoint- ment should have been signed in the presence of two witnesses. So, in Doe d. Williams v. Evans (q) , where A. made a will profess- ing to devise freehold propertj-, but which was neither signed nor attested, though an attestation clause was drawn out ; a fortnight afterwards a codicil was written below this clause on the same sheet of paper, in the following terms: "I, A., make a codicil to the fore- going will, and thereby ordain that mj' wife B. be entitled to 200/. of my property in case she marry." (There was no date.) It was signed by the testator and attested by three witnesses, who simplj- wrote their names under the word " Witness." The Court of Exchequer held, that the execution and attestation applied to the whole of what was on the paper ; and, consequentlj', that the will was dul}^ attested for the devise of freeholds. The court relied much on Carleton v. Griffin (r), and on the circumstance of the codicil referring to * the will : *115 Bayley, B., observing, that if the codicil had not referred to the will, he should have thought that it did not set up that instru- ment. In the preceding cases the attested codicil referred to the unattested (p) 16 Ves. 167. (q) 1 Cr. & Mees. 42, [3 Tyr. 56. (r) 1 Burr. 549.] 1 It appears to be an open question in thereby altered i " and he declared the codicil England v.'hether a codicil can be resorted to "to be part and parcel of his last will and ill the interpretation of the will, in order to testament, witliin written." A will executed sliow a contrary intention to that which the under undue influence may be republished will cloarlv indicates. In re Clarke's Estate, and confirmed by a codicil executed after- Law Rep."l4 Ch. D. 422 (Court of App). It wards, when the testator is free from such is apprehended that the general impression in influence. O'Neall v, Farr, 1 Rich. 80. tills country is that the codicil may be so used. The effect of a codicil, ratifying, confirming, on the ground that both instruments are to be and republishing a will, is to give the same deemed but one will. force to the will, as if it had been written, 2 A codicil with three competent witnesses executed, and published, at the date of the may be a republication of a will, so as to give codicil. Brimmer n. Sohier, 1 Ciish. 118; effect to a devise otherwise void, on account Armstrong v. Armstrong, 14 B. JVIon. 333; of the devisee being a witness to the original Beall v. Cunningham, 3 B. Mon. 390. See will. Mooers v. White, 6 Johns. Ch. '374, Van Cortlandt v. Kip, 1 Hill, 590; Johnsoti 375. In this case the codicil was indorsed ».- Clarkson, 3 Rich. Eq. 305. Hence the and written on the back of the original will, attestation of a codicil is an attestation of and by the codicil the testator "approved, the will annexed or suffici'^ntly referred tq. ratified and confirmed the former last will Brown v, Clark, 77 N. Y. 369. and testament, except so far as the same was U3 *116 DEFECTIVE EXECTJTION Where both document, but this was not essential -where both were writ- paper but ten on the same sheet of paper. Thus, in Guest v. Willa- without ex- ggy fg\ where a testator, on the baclc of his will which was press refer- J \ / ' ' ence. duty attested, wrote three codicils of different dates, of which the last alone was attested by three witnesses, and which did not in terms refer to the preceding codicils, but merety partial^ revoked an appointment of executors made by the second codicil, it was held, that the third codicil operated as a republication, not only of such second codicil, but also of the first, between the contents of which and of itself there was no connection. As in all the preceding cases the attested and unattested instruments Remarks were Contained in the same paper, possibly'W, might have been upon the pre- considered that the memorandum of attestation, appended ce ing cases. ^ ^^ posterior document, was intended to apply to both ; but the line of argument adopted hy the court in Doe v. Evans (where it will be remembered the codicil in terms referred to the will) does not admit of the case being referred to this principle, but rather leads to the conclusion, that the result would have been the same if the unat- tested will and the attested codicil had been detached,-' the only effect of their being united in the same paper being to render unnecessarj- &x\y express reference to the unattested document for the purpose of identi- fj'ing it. And the observations which fell from the Court of K. B. in TJtterton v. Robins (<) indicate a strong inclination in that court to a similar opinion. [And the point is not now open to question. Thus in Aaron v. Aaron (m), a testator made a will and two codicils, each on a separate paper. He described the first codicil as a codicil to his will dated &o., and directed it to be annexed to his said will, but it was unattested : by the second the testator recited that he had made and duty executed his will dated &c., and a codicil annexed thereto and dated &c. ; he described it as a second codicil to his said will, and directed it to be annexed thereto and to be taken as a second part thereof : this codicil was duty attested, and it was held by Sir K. Bruce, V.-C, *116 that the first codicil was * set up by the second. It could make no difference, he observed, whether the codicil was written on the same paper as the will or not ; a codicil was referred to, and there was no dispute what the instrument was.] These authorities show that no reliance is to be placed on the early case of Att.-Gen. v. Baines {x), where a testator made a will in his own handwriting, but without wit- nesses, and afterwards made a codicil, wherein he recited and took notice of the will, which codicil was subscribed by four witnesses, and it was treated as clear by the L. C. that the will was inoperative to de- vise freehold lands. Is) 12 J. B. Moo. 2, [3 Bing. 614.] (() 1 Ad. & Ell. 423, 2 Nev. & M. 821. [(«) 3 De G. & S. 475. See also Allen v. Haddock, 11 Moo. P. C. C. 427, stated post, p, 119.] (x) Pre. Ch. 270, 3 Ch. Rep. 10. 1 Harvy «. Chouteau, 14 Mo. 587; In re Smith, 2 Curteis, 796. 144 SUPPLIED BY REFERENCE. *117 It should seem, however, that where the attested codicil Where an at- Is detached from and does not refer to the unattested will or J-eje^.s to^fhe ' previous codicil, it wiU not have the effect of curing the de- will but not to fective execution of such prior testamentary document. teScodicil. Thus, in Utterton v. Robins (y), where a testator, by several unwit- nessed memoranda, subsequent to his will (which was duly attested), left a freehold house, which, among other estates, he had acquired since the date of the will, to his daughter, and afterwards made the fol- lowing codicil, which was duly attested : " I make this a further codicil to my will, which bears date 12th Sep. 1823 ; I give and devise all real estates, purchased by me since the execution of my said will, to the trustees therein named, their heirs, &c., to the uses and upon the trusts therein expressed concerning the residue of my real estates ; " it was certified on a Case from Chancery, that the house passed to the trustees and not to the daughter. In this case the language of the second codicil seemed to repel the supposition, that the testator intended the estates purchased since the execution of the will to pass by the prior codicil ; unless, ^vh^ther the indeed, when he speaks of his " will," he is to be under- "will" in- stood (2) as referring to all the prior testamentary docu- cii added ° ments, including the unattested codicil, according to the thereto. principle laid down by Sir L. Shadwell in Gordon v. Lord Eeay (a), where a testator, bj' a second codicil (which was dulj- attested) , after * reciting his will (which was also duly attested) by date, *117 expressly confirmed all his pi'ovisions and bequests in it in favor of a certain individual : and the V.-C. was of opinion that this confir- mation had the effect of entitling her to the benefit of a charge created on his freehold estates, by a prior unattested codicil, on the ground that the second codicil amounted to a republication (b) of the first. " The first codicil," he said, " is part of the will, and if the second codicil is a republication of the will, it is a republication of everj'thing that is part of the will. The second codicil does refer to the will ; it ratifies and confirms the will and everything that is part of it." [But this decision has been questioned. " It may well be," said Sir G. Jessel, in Burton v. Newbery (c), " that where you describe a wiU generally without date, and say, ' I confirm my will,' you might inter- (y) 1 Ad. & Ell. 423, 2 Nev. & M. 821. [(z) Not that he was in fact so understood; the court showed not obscurely that it thought there was no sufficient reference to the will. Besides, the testator had not purchased any real estate since the execution of his "will " in the wider sense.] (a) 5 Sim. 274; see also Crosbie »;. Macdonal, 4 Ves. 610; [Farrer v. St. Catherine's College, L. R. 16 Eq. 19; Green v. Tribe, 9 Ch. D. 231; all referred to post, Chap. VII. ad iin., where the comprehensiveness of the word '*will " is considered with reference to the sub- ject of revocation and revival. In Green v. Tribe, Fry, J., points out the distinction between cases where the narrower sense would operate to revoke a clear gift contained in a previous valid codicil, and where it only fails to set up a previous invalid codicil..] (b) As to republication, see po.xt, Chap. VIII. [(c) See Piggott v. Wilder, 26 Beav. 90. where the reference was to the will of another per- son. See also Fuller v. Hooper, 2 Ves. 242; Jauncey v. Att.-Gen., 3 Gif. 308, where the question was whether " legacies herein mentioned " included legacies given by codicil. VOL. I. 10 145 *118 DEFECTIVE EXBCDTIOIT pret the word ' will ' as including the whole of the testamentary dis- position (d ) ; but it appears to me that that was not the case iu Gordon V. Lord Reaji . . . The onl}' reference was to a will bearing date a certain daj-, that is, as I understand it, to a described instrument, which excludes instruments of subsequent date." On this principle in Bur- ton V. Newbery, where a testator made his will, and then made a codicil, which was attested by A. and B., who took benefits under the codicil, and afterwards made another codicil "to his last will dated," &c., which was duly attested, but did not refer to the prior codicil (all these instruments being on separate papers) , it was held bj- the M. R. that the second codicil did not republish the first, and, consequently, that the gifts to A. find B- under the first codicil failed. But this strictness of interpretation may be excluded by the context. Thus in Aaron v. Aaron (e) , where the second codicil referred specifically to the will and first codicil each by its date, and then confirmed the will onlj', it was argued that this indicated a clear intention to confirm the will exclu- sively, and the V.-C. admitted that the argument was apposite ; but referring to the other terms of the codicils, he said the intention *118 of the second codicil, as collected from the whole of *it, was to confirm the first codicil. It was indeed obvious that the testator intended to leave two codicils. 2. Since 1 Since the stat. 1 Vict. c. 26, there is this further reason Vict. c. 28. against applying Gordon v. Lord Reay as an authority for dulv attested holding an unattested paper to be included under a reference is not now in- to the " will;" namely, that such a paper is not now, as it tevm "codi- formerly was, admissible to probate, and cannot properlj' be cils" wiiere regarded as part of the wUl or as a codicil to it. If there- tlierearedulj' o r attested codi- fore a testator makes several codicils, some of which are, its^stricr"^*^ but others are not, duly attested, a subsequent codicil con- meaning, firming " his will and codicils" confirms only the duly at- tested codicils. This point was determined in Croker v. Marquis of Hertford (/). _ , Dr. Lushington delivered the judgment of the privy council, Cvoker». and said, that " the strict and primary sense of the word Hertford. . codicil ' was a testamentary instrument which would, per se, become valid immediately on the death of the testator ; that the words of the codicil in the case before him, when so interpreted, were sensible with reference to extrinsic circumstances ; for there were codicils duly executed so as to come within the strict and primary sense ; therefore, according to the rule of construction stated by Mr. Wigram (ff) , how- (d) 1 Cli. D. 234, 240; Gordon v. Lord Reay was treated as an authority (together with Doe V. Evans) by K. Bruce, V.-C, in Aaron v. Aaron. See also Radburii v. Jervis, 3 Beav. 460. (e) 3 De G. & S. 475, stated above, p. 315. (/) 4 Moo P. C. C. 339, 8 Jur. 803, 3 No. Cas. 150, affirming S. C. (nom. Countess Fer- raris «. Marquis of Hertford), 3 Curt. 468, 7 Jur. 261, 2 No. Cas. 230. (j/) Wigram on Wills, p. 17. 146 SUPPLIED BY BEFEKBNCE. *119 ever capable the words might be of another and popular intei-pretation, or however strong the intention of the testator, the strict and primary sense must be adhered to." On the same principle, Sir H. Nor in the J. Fust held (A), that codicils not dulj' attested, though term "will." written on the same paper as the will, were not ratified by a codicil of subsequent date which referred only to the will. But, as was implied in the reasons given for those decisions, the case is different where there is no instrument which satisfies the strict meaning of the words of reference. Another rule of construction stated by the same j^ diflferent learned writer (i) then prevails. For where there is nothing ■■"•« prevails in the context of a will to make it apparent that a testator is no duly at- has used words in any other than their strict and primary tested codicil; sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, the court may look into the extrinsic circum- stances to see whether the meaning of the words be sensible in any popular or secondary sense, of which with reference to these cir- cumstances they are capable. Accordingly, in * Ingoldby v. *119 Ingoldby {k) , where there was a paper purporting to be a codi- cil, and subsequently the testator duly executed a codicil not referring to the paper, except by being called " another codicil to my will," Sir H. J. Fust held that the first paper, purporting to be a codicil, was thereby rendered valid, and he distinguished the case from Croker v. Marquis of Hertford, on the ground that there were not, as in that case, any duly executed codicils to which the last codicil could be held to refer. In Allen v. Maddock (Z) the subject was fuUy discussed by Lord Kingsdown. In that case a will was made and signed in or duly at- the presence of one witness only. Afterwards the testatrix ^^^^^^ ^i"- made a codicil which commenced: "This is a codicil to my last will and testament," and was duly executed. No other will having been found, it was held in P. C, upon parol evidence of the circumstances, that the two papers, as together containing the will and codicil, were entitled to probate. From Lord Kingsdown's judgment, it To supply is clear that the question whether an imperfectly executed execu'tfon the paper is made effectual by a later perfectly executed one defective , •, ,1 i- 1 ii ii !• • • instrument depends on the question whether the earlier paper is mcor- must be in- porated in the later : in other words, whether the reference corporated. be such as with the assistance (if necessary) of parol evidence of the circumstances will be sufficient to identify it. Difficulties will of course sometimes arise upon the evidence (m) ; for instance, a reference by a testator to his last will, or to a first or second codicil, is a reference in its own nature to one instrument to the exclusion of aU others, and the (A) Haynes «. Hill, 7 No. Cas. 2B6, 1 Rob. 795, 13 Jur. 1088. (i) Wisram on Wills, Prop. 3. (k) i No. Cas. 493. (0 H Moo. P. C. C. 427, affirming 3 Jur. N. S. 965. (m) See Ke AUnutt, 33 L. J. Prob. 86. 147 *]20 DEFECTIVE EXECUTION description identifies the instrument ; but a general reference to codicils, of which there may be several, is different, and probablj' not easy to render effectual by extrinsic evidence. But where the parol evidence sufficiently proves that, in the existing circumstances, there is no doubt as to the instrument, it is no objection to the admission of the evidence that b3' possibility circumstances might have existed in which the instru- ment referred to could not have been identified. In short, any unat- tested paper which would have been incorporated in an attested will or codicil executed according to the Statute of Frauds, is now in the same manner incorporated if the will or codicil is executed according *120 to the requirements of the act 1 Vict. c. 26, but with this * impor- tant distinction, that since that act an unattested codicil is not part of the will for any purpose, and consequently is not incorporated or confirmed by a codicil of subsequent date referring only to the will (re). The principle being thus the same under both statutes, it follows that, subject to the distinction just noted, the circumstance of the well- executed instrument being written on the same paper as the imperfectly executed one must still be regarded as materially helping to identify the latter as the document referred to by the former (o). And a distinction maj' fairly be drawn between a case where the later and well-executed instrument contains a reference, more or less particular, to another document, and a case where the later and well-executed instrument contains no express reference to any other ; in the latter case the mere circumstance of its being on the same paper with others maj' possibly furnish ground for implying a reference to all the others, so as to incor- porate and set up all. Such appears to have been the case in Guest v. Willasey (jo), where the third codicil was thus : " I now appoint A. to be my executor in the room of B. above mentioned, with full power to act, (fee. Witness my hand." So, in Ee Cattrall (9), where, under- neath his will, a testator wrote and signed some unattested additions ; and under these he afterwards wrote some further additions, which were duly signed and attested ; it was held by Sir W. P. Wilde that the presumption was that this signature and attestation were intended to apply, and that they gave effect, to all that went before. But this presumption is rebutted by an express reference of narrower scope. Thus a reference to the " will " does not set up an unattested writing, though all three are on the same paper, the unattested writing, as we have seen, not being a part of the will (r). (n) See ]1 Moo. P. C. C. 455, 461; and as to incorporation, supra, p. 89. (0) Re Terrible, 1 Sw. & Tr. 140. In re Smitli, 2 Curt. 795, 1 No. Cas. 1, and Ee Claring- bn1l, 3 No. Cas. 1, tliis circumstance existed ; but even without it they are covered by Allen V. Maddocls and Ingoldby >;. Injcoldby, supra. {p) 2 Bing. 42!), 3 Bing. 614, ante, p. 115. Iq) 33 L. J. Prob. 106. \r) Re Willmott, 1 Sw. & Tr. 36 ; Re Peaoh, ib. 38. See also Havnea «. Hill, 1 Rob. 796, iq) 33 L. J. Prob. 106, \r) Re Willmott, 1 Sw 7 No. Cas. 256, 13 Jur. 1058; Re Phelps, 6 No. Cas. 695; Re Hutton, 6 No. Cas! 698, 148 SUPPLIED BY EEFEEENCE. *121 An unexecuted alteration in a will is not rendered valid bj' a codicil ratifying and eonflrming the will, unless in such. ,, , , ^ <=• o 7 Unexecuted * codicil the alteration be specially referred to (<) , or *121 alterations unless it be proved affirmatively by extrinsic evidence ^||J.^]J ^"j;^ that the alteration was made before the codicil (it) ; and by subse- even then, if it appear to be deliberative only, it will not be '^"^" included in the probate (a;).] (t) Lushington v. Onslow, 6 No. Cas. 183, 12 Jur. 465. As to presuming when alteva- tions were made, see Cli. VII. s. 2, ad^n. (m) See per Sir H. J. Fust, ib.; Re Tegg, 4 No. Cas. 531; Re Wyatt, 2 Sw. & Tr. 494, 31 L. J. Prob. 197. (x) Ke Hall, L. E. 2 P. &. D. 256.] 149 *122 BEVOCATION OF WILLS * CHAPTER VII. BEVOCATION OP WILLS. *122 Section I. ^ Marriage arid Birth of Children, or Marriage alone. Under the law which existed prior to the act of 1 Vict. c. 26, the Effect of mar- marriage of a woman absolute^ revoked her will, and that, unfec'old^ too, though her testamentary capacity was subsequently re- •aw; stored by the event of her surviving her husband (a).'' [But — in case of a will made by a woman before marriage, and operating as a woman ; ^^^ appointment under a power, was not necessarily revoked (a) Forse and Hembling's case, 4 Rep. 61, And. 181 ; Cotter v. Layer, 2 P. W. 624; Doe V. Staple, 2 T. K. 695 ; see also Hodsden v. Lloyd, 2 B. C. C. 533 ; [Long v. Aldred, 3 Add. 48. 1 Will of feme, sole revoked by marriage : Alabama. Code, 1876, Title 4, ch. 2. p. 586. Arkansas. Digest, 1874, cb. 135, p. 1013. California. Codes & Stat. 1876, Vol. 1, Title 6, ch. 1, p. 723. Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 346. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 572. See Vail v. Lindsay, 67 Ind. 528. Missouri. R. S."l879, Vol. 1, ch. 71, p.'680. New York. R. S. 1875, Vol. 3, ch. 6, p. 64. See Brown v. Clark, 77 N. Y. 369. Oregon. Gen. Laws, 1843-1877, ch. 64, p. 788. Pennsylvania. Bright. Purd. Digest, 1700-1872, Vol. 2, p. 1477. See Fransen's Will, 26 Penn. St. 202. Contra in Illinois. In re TiiUer, 79 111. 99. And in Massachusetts, Church v. Crocker, 3 Mass. 17, 21. See Wheeler v. Wheeler, 1 R. I. 364. The rule that by marriage the will of a woman was revoked is sometimes said to have been founded upon the husband's marital rights in her property. If he was excluded from such rights, the will was not revoked. Morton v. Onion, 45 Vt. 145. See also In re Carev, 49 Vt. 236. Indeed, by the law of Rhode Island, the marriage of a feme sole testatrix operates as oulv a presumptive revocation of her will. Miller v. Phillips, 9 R. 1. 141. See WTieeler v. Wheeler, 1 R. I. 364. And this presumption may be rebutted by oral declarations of the testatrix after mar- riage, lb. It is perhaps a preferable way of putting the ground of revocation at com- mon law to sa}' that a will must be ambula- tory during the lifetime of the testator; and as by marriage the testatrix disables herself from making any other will, the will already made would cease to be ambulatory if still valid. Hodsden v. Lloyd, 2 Brown, "Ch. 534; Brown v. Clark, supra. Nor is the rule deemed to be changed in New Y^ork by reason of the fact that marriage is no longer a bar to the making of a will by a woman. Brown V. Clark. Revocation by marriage under the statute is absolute and not a presumptive intention. lb. It is also important to ob- serve that the fact that a married woman who had, previously to her marriage, executed a valid will survives her husband does not at common law restore validity to the will. lb. On the otlier hand the will 'of a/emc covet-t, made during marriage under a settlement, is not revoked by her surviving her husband. Morwan v. Thompson, 3 Hagg. 239; Clough V. Clough, 3 Mylne & K. 296. And of course the survivorship of either husband or wife cannot affect the will of a married woman executed under the enabling acts. 150 BY MARRIAGE AND ISSUE. *123 by her marriage (6) ; nor was a will so operating and made during the coverture necessarily revoked by the death of the husband (c).] The marriage of a man, however, had no such revoking effect upon his previous testamentary disposition, in regard to either real —in case of a or personal estate,^ on the ground, probablj', that the law ™^"- had made for the wife a provision independently of the act of the hus- band by means of dower ; nor did the birth of a child alone revoke a will made after marriage, since a married testator must be supposed to contemplate such event ; and the circumstance that the testator left his wife enceinte without knowing it, was held not to impart to the posthumous birth any revoking effect (d).^ Marriage and the birth of a child conjointly, however, revoked a man's will, whether of real or personal estate,' these qicI rule as to * circumstances producing such a total change in the *123 revocation by testator's situation as to lead to a presumption that birth of cMl- he could not intend a disposition of pi'operty previouslj^ dren. made to continue unchanged.* This rule (which was borrowed from the civil law (e)) was applied by the ecclesiastical courts to wills of per- (6) Logan v. Bell, 1 C. B. 872 ; and compare Douglas v. Cooper, 3 Mv. & K. 378. (c) Morwan v. Thompson, 3 Hagg. 239; Clough v. Clough, 3 My. & K. 296; Du Hourmelin ». Sheldon, 19 Beav. 389. But of course if the power be given to the wife '' in case she dies in the lifetmie of her husband," and in case of her surviving, the property is given to her absolutely, a will made during coverture is inoperative if the wife survives, as the power never arose. Price v. Parker, 16 Sim. 198; Trimniell v. Fell, 16 Beav. 537; Willock V. Noble, L. R. 7 H. L. 580 ; and will not even raise a case of election, Blaiklock v. Grindle, L. R. T Eq. 215.1 (d) Doe v. Barford, 4 M. & Sel. 10. (e) The civil law evinced a marked anxiety to guard children from the consequences of negligent omission, or capricious exclusion from the testamentarj' dispositions of their par- ents. To exclude a son, it was not sufficient thai he was not named in his father's will, but it was necessary expressly to disinherit him. " Qui fllium in potestate habet, curare debet, ut 1 Will of man revoked by marriage: — West Virginia. R. S. 1878, ch. 201, California. Codes & Stat. 1876,- Vol. 1, p. 1169. Title 6, ch. 1, p. 723. 2 wjn revoked by marriage of testator Georgia. Code, 1873, Title 6, ch. 2, p. 427. and birth of child : — Kentucky. Gen. Stat. 1873, ch. 113, Alabama. Code, 1876, Title 4, ch. 2, p. 834. p. 588. - Pennsylvania. Bright. Purd. Digest, Arkansas. Digest, 1874, ch. 135, p. 1013. 1700-1872, Vol. 2, p. 1477. California. Codes & Stat. 1876, Vol. 1, Virginia. Code, 1873, ch. 118, p. 910. Title 6, ch. 1, p. 723. West Virginia. R. S. 1878, ch. 201, Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 1169. p. 346. Will revoked by the marriage of the "tes- New York. R. S. 1875, Vol. 3, ch. 6, p. 63. tator":— Oregon. Gen. Laws, 1843-1872, ch. 64, California. Codes & Stat. 1876, Vol. 1, p. 788. Title 6, ch. 1, p. 723. Pennsylvania. Bright. Purd. Digest, Dakota. Rev. Code, 1877, Title 5, ch. 1, 1700-1872, Vol. 2, p. 1466. p. 346. * The rule stated in the text applies as Georgia. Code, 1873, Title 6, ch..2, p. 427. well to a case where the testator had children Illinois. R. S. 1880, ch. 39, p. 422. by a former wife, who are provided for in Nevada. Comp. Laws, 1873, ch. 37, tfie will, as where he was without children at p. 201. the time it was executed. Havens v. Van Will of man or woman revoked by his or Den Burgh, 1 Denio, 27. her man-iage : ^ * Brush v. Wilkins, 4 Johns. Ch. 606; Kentucky. Gen. Stat. 1873, ch. 113, Warner?!. Beach, 4 Grav, 162; Bancroft ». p. 834. Ives, 3 Gwv; 367 ; Coates v. Hughes, 3 Binn. North Carolina. Battle's Revisal, 1873, 498; Walker d. Hall, 34 Penn. St. 483; Ed- ch. 119, p. 854. wards's Appeal, 47 Penn. St. 144; Havens t). Pennsylvania. Bright. Purd. Digest, Van Den Buigh, 1 Denio, 27 ; Bloomer v. 1700-1872, Vol. 2, p. 1477. Bloomer, 2 Bradf. Sur. 339 ; 4 Kent, Com. Virginia. Code, 1873, ch. 119, p. 910. 527. ■ 151 ' *124 KBVOCATION OP WILLS sonalty, at an early period (/), and was more recentl3' and reluctantly extended to devises of freeliold estates, its application to which had been supposed to be precluded by the Statute of Frauds (ff) ; but Chris- topher V. Christopher (A), which occurred in 1771, and another decision which speedily followed (i), closed all controversy on the point. The case' of Christopher v. Christopher also decided that the revocation was not confined to the case of an unmarried testator ; but equally applied, where a married man made a will, then survived his wife, married again, and had issue b^- his second wife. It was also immaterial that the birth of the child was posthumous, and that the probability' of such birth was never disclosed to the testator ; as the doctrine does not sup- Rules of the PO^^ that, in everj' particular instance, an intention to re- civii law in voke actually exists ; but it annexes to the will a tacit iafclaims to Condition that the party does not intend it to come a provision. *124 into * operation, if there should be a total change in the situation of his family (k).^ It has never been decided, whether to produce revocation the children „ . must spring from the subsequent marriage, or it is sufficient whether chil- that a testator has future children of an existing marriage, spring'from Survives his wife, and then marries again, but has no chil- suhsequent dren by the second wife. In Gibbons v. Caunt (/), Sir R. P. " ■ Arden, M. R., inclined to the conclusion that the order of the events made no difference, and that the will was equally revoked in either case. eum hseredem instituat, vel exhseredem eum nominatim faciat. Alioquin, si eum silentio prseterierit, inutiliter testabitur; adeo quidcm ut et si vivo patre Alius mortuus sit, nemo hieres ex eo testamento existeie possit ; quia scilicet ab initio non constiterit testamentum." .lust. Inst. lib. 2, cap. 13, s. 5. And the rule was extended to the children of a son who was dead, or ceased to be imder his father's power; and was further extended by Justinian to aH the children of a testator, female as well as male, and all the other descendants by the male line. Lib. 2, c. 13, s. 5. And even the arroj^ation of an independent person, or the adoption of a child under the power of its natural parent (in respect of which the civil law makes special provisions), was a revocation of an antecedent will. *' Si quis enim post factum testamen- tum adoptaverit sibi filium per imperatorem. eum, qui est sui juris aut per prajtorem, secun- dum nostram constitutionem, eum, qui in potestate parentis fuevit, testamentum ejusrumpitur, quasi agnatione sui hseredis." Lib. 2, c. 17, s. 1. The civil law, too, left it open to children to complain, not only that they were omitted in a will, but that they were unjustlv disinher- ited; and the suggestion in such a case was, that the testator was (iisordered in liis senses, though, to support his allegation, it was only necessary to prove that the will was inconsis- tent with the duty of a parent. See Just Inst. lib. 2, c. 18, De inofficioso testamento. Hap- pily these laws, so hostile to the spirit and genius of our free constitution, have never found a reception in this country, whose sound policy it has been to leave unfettered the power of disposing of property. (/) Overburv d. Overburv, 2 Show. 242 ; Lugg v. Lugg, 2 Salk. 592, [1 Ld. Raym. 441, 12 Mod. 236;] BVown v. Thompson, 1 Eq. Ab. 413, pi. 15; Evre v. Eyre, 1 P. W. 304 n., and Cas. cit. 2 Ed. 266, 1 Phillim. 478. (o) See Parsons «. Lanoe, 1 Ves. 192, [I'Wils. 243, Amb. 557;] Gibbons ii. Caunt, 4 Ves. 848. (70 Dick. 445, cit. 4 Burr. 2182. (j) Spraage v. Stone, Amb. 721. (h) Doe ». Lancashire, 5 T. R. 49; [Israeli v. Rodon, 2 Moo. P. C. C. 51; Matson ». Magrath, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350.] (0 4 Ves. 848. 1 Revocation of a will cannot be implied the birth of another child contemplated in by law from the death of the testator's wife the will. Warner v. Beach, 4 Gray, 162. and of one of his children, leaving issue, and 152 BY MAEEIAGE AND ISSUE. *125 [Marriage and the birth of issue do not produce revocation * of a will made before 1838, where there is a provision made for the Effect of pi-o- wife and childi-en by the will itself (m), or, it is conceived, '■''^'"'" fo; by settlement executed previously to the will. But it fol- children,' o^r"' lows, from the doctrine before alluded to, viz., that this '^''^''• kind of revocation is the result of a tacit condition annexed to the will, taken in connection with the circumstances as they exist at the date of its execution, that a provision for wife and children, under a settle- ment executed after the will, cannot prevent revocation, as it might have done if the question had been one merely of intention (n). Neither will a provision for the wife alone suffice, though made before the will (o) ; and it is not clear that a provision for children alone, though made before the will, would be sufficient for that purpose ; for since the revocation by marriage and the birth of children results froru a tacit condition annexed to the will, that it shall be so revoked unless both wife and children are provided for, and is not dependent on the testator's intention, no circumstance demonstrative of a contrary inten- tion on his part," such as a provision for children (though the birth of children necessarily supposes marriage), can aflfect the question. And Kenebel v. Scrafton (before referred to) in terms confines the exception to the case where both wife and children are provided for.] According to the opinions of Lord Mansfield (p), Effect where Lord * EUenborough (9), [and Tindal, C. J. (r),J the *125 pi'liali^"''' revocation does not take place where the will dis- only. poses of less than the whole estate.' Supposing this to be clear (though it has never been positively decided), it would remain to be considered, whether a will which aetuallj^, though not professedly, dis- poses of the testator's entire estate, as where there are particular gifts sufficient to absorb the whole, but no residuary disposition, falls within Um) Kenebel v. Scrafton, 2 East, 530. This decision was overlooked by Sir C. Cresswell in Re Cadywold, 1 Sw. & Tr. 34, 27 L. J. Prob. 36, which cannot therefore be taken as an authority. (n) Israeli v. Rodon, 2 Moo. P. C. C. 51; overruling Talbot ». Talbot, 1 Hagg. 705; John- ston V, Wells, 2 Hagg. 561, and apparently Ex parte Earl of Ilchester, 7 Ves. 348; see also Matson n. Magrath, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350. (o) Marston v. Roe d. Fox, 8 Ad. & Ell. 14, 2 Nev. & P. 604, which seems to overrule Brown ». Thompson, 1 Eq. Ab. 413, pi. 15.] (p) Bradv v. Cubit, Doug. 31. (j) Kenebel w. Scrafton, 2 East, 541. [(?•) Marston ». Roe d. Fox, 8 Ad. & Ell. 67.] 1 Brush ». Wilkins, 4 Johns. Ch. 510; sonal as well as real estate, and is annexed Yerby v. Yerby, 3 Call, 334 ; Fox v. Mars- to it at the time of making the will, which ton, 1 Curteis, 494 ; 4 Kent, 523 ; Havens v. speaks from that period, and not from the Van Den Burgh, 1 Denio, 27. But in Israeli testator's death. The same was held as to ». Rodon, 2 Moore, P. C. 51, it was held that real estate in Marston ». Fox, 8 Ad. & E. 14. marriage and birth of a child do not afford But see Fox v. Marston, 1 Curteis, 494. presumptive evidence of intention to revoke. See to the same effect Jacks v. Henderson, but are in themselves an absolute revocation 1 Desaus. 643, 567. of a will made previous to marriage, and not ^ gee Brush v. Wilkins, 4 Johns. Ch. 510; in contemplation of it; the rule being that Yerby v. Yerby, 3 Coll. 334; 4 Kent, 623; there is a tacit condition annexed to the will, Havens B. Van Den Burgh. 1 Denio, 27; 2 at the time of making it, that it should not Greenl. Ev. § 684. But Israeli i). Rodon, have effect, provided the deceased marry supra, is contra. and have a child subsequently born. Such 3 Havens v. Van Den Burgh, 1 Denio, tacit condition is applicable to a will of per- 27 ; Yerby v. Yerby, 3 Call, 337, per Roane, J. 153 .*126 EEVOOATION OF WILLS the principle. [Considering, liowever, that the inquiry is not what the testator intended, but of the fact whether the wife and cliildren be pro- vided for, it can scarcely be doubted that this question would, if it arose, be answered in the affirmative.] In Marston v. Roe («), it was contended that the descent of an after-acquired real estate upon the child, in whose favor the wiU was contended to be revoked, prevented the revocation; but Tindal, C. J., who delivered the judgment of the Court of Exchequer Chamber, expressed a decided opinion against allowing the question of revocation, depending upon a tacit condition annexed to the wiU, to be influenced by circumstances posterior to its execution ; though, as the court considered that what had here de- scended to the child was a mere legal estate, the case did not raise the point. It seems, also, that marriage and the birth of a child or children Will not re- revoke a will which is subject to the old doctrine', only where ,voked in. ^he eflfect of throwing open the property to the disposition of pre-existing the law^ would be to let in suchiafter-born child or children ; child. ^Qj,^ jf j^ -would operate for the exclusive benefit of a pre- existing child, the ground for subverting the will fails. Thus in Sheath v.. York (<), where a testator having a son and two daughters, directed his real and personal estate to be sold for payment of his debts and for the benefit of those children. The testator was at that time a widower ; he married again, and had issue, one child. The question arose on a bill filed by the creditors for a sale, whether the will was revoked as to the real estate. Sir W. Grant held that it was not.^ " In all the cases," he s£tid, " the will has been that of a person who, having no children at the time of making it, has afterwards married, and had an heir born to him. The effect has been to let in such after-born heir to take an estate disposed of by a will made before his birth. The condi- *126 tion implied in these cases was, that the testator, when *he made his will in favor of a stranger, or more remote relation, intended that it should not operate if he should have an heir of his own body. In this ease, there is no room for the operation of such a condi- tion, as this testator had children at the date of the will, of whom one was his heir apparent, and was alive at the period of the second mar- riage, of the birth of the 'children by that marriage, and of the testator's death. Upon no rational principle, therefore, can this testator be. sup- posed to have intended to revoke his will on account of the birth oi other children, those children not deriving any benefit whatever from the revocation, which would have operated only to let in the eldest son to the whole of that estate, which he had by the will divided between the eldest son and the other children of the first marriage." ^ (s) 8 Ad. & Ell. 14. (0 1 Ves. & B. 390. 1 But see Havens v. Van Den Burgh, April, 1794, marriage or birth of issue 1 Denio, 27. amounts to a revocation of a will previously 2 Uuder the Pennsylvania Act of 19th made only so far as regards the widow, or 154 BY MARRIAGE AKD ISSUE. *127 The reasoning of the M. R. extends only to cases in which the heir is among the pre-existing children ; and, it is probable, that Ee^^rka the revocation would take effect, notwithstanding the exist- upon Sheath ence of such children, where the consequence of the intes- "' ^°*' tacy would be to cast the estate on one of the subsequently born children (being an eldest or only son), or upon the children of both marriages (all being daughters). Such is the rule in regard to personal estate (this, or at least the children's share of it, being distributable among all the children pari passu), a testamentary disposition of which has been decided to be revoked by a subsequent marriage and birth of children, notwithstanding the prior existence of children (m).^ These observations assume, that the effect of the will being revoked by the application of the doctrine in question, will be to . produce intes- tacy ; but this is not necessarily the case ; for the consequence of the revocation might have been (x) to revive a prior uncancelled will, which contained a provision for the wife and children, protecting it from the revocation which the marriage and the birth of children produced on the subsequent will. At one period it appears to have been supposed that, if the child or children, whose birth had revoked or contributed to revoke -q^^i^ ^f the will, died in the lifetime of the testator, this event child in tes- would restore its efficacy,^ the reasoning being founded on a ymg immate- fancied, but evidently mistaken analogy to the case of a "al. will whose operation has been restored by the destruction of a * subsequent revoking or inconsistent will (y). The latter doc- *127 trine, however, is obviously a consequence of the ambulatory state of the instrument during the testator's lifetime, and stands upon grounds which do not apply to the class of revocations under consider- ation ; and therefore it has been, in later times, most properly adjudged that a will, once revoked by marriage and the birth of a child, contin- ues revoked, notwithstanding the decease of such child before the will takes effect (z).' [It seems, therefore, that the rule of law is this, that a will executed before the statute 1 Vict. e. 26, is revoked bj' subsequent Ruiejobe marriage and the birth of issue, unless provision is made for deduced from them by the will, or by previous settlement ; or unless rev- ^ '^''^^^' (u) HoUoway v. Clarke; 1 Phillim. 339 ; [Walker v. Walker, 2 Curt. 854;] see also Gib- bons V. Caunt, 4 Ves. 849 ; Wright v. Netherwood, 2 Salk. by Evans, 593, n. [(a) Not since 1 Vict. c. 26, s. 22.] (j) Wright V. Netherwood, 2 Salk. by Evans, 593, n.; 2 Phillim. 266 n. (z) Helyar v. Helvar, cit. 1 Phillim. 413 ; Sullivan v. Sullivan, cit. 1 Phillim. 343; Emer- son V. Boville, 1 Phillim. 342. child or children, after bom, although the i See Havens v. Van Den Burgh, 1 Denio, subsequent issue is the testator's only child. 27. As to provisions not interfering with'the in- 2 it is provided by statute, in Virginia and terest of the widow and children, such as the Kentucky, that a child born after the will, if appointment of executors, a power to sell for the testator had no children before, is a revo- the payment of debts, &c., the will still re- cation, unless such child dies unmarried or mains in force. Coates v. Hughes, 3 Binn. an infant. A Kent, 526. 498. And that is the law generally. 3 Ash v. Ash, 9 Ohio St. 383. 155 *128 BBVOCATION OF WILLS Parol evi- ocation would produce no benefit to those obiects.1 It was denceofin- „ , ,. ^. , ,, ,, -, -^ tention inad- for a long time a question whether the presumed revocation missible. could be rebutted by parol evidence [of circumstances or declarations showing merely a contrarj' intention on the part of the testator.] In Brady v. Cubit (a), Lord Mansfield considered the evi- dence to be admissible ; but his notion was warmly opposed in Good- title V. Otway (6) by Eyre, C. J., who observed that, in cases of revocation by operation of law, the presumptio juris is so violent, that it does not admit of circumstances to be set up in evidence to repel it. Lord Kenj'on and BuUer, J., in Doe v. Lancashire (e), also strongly expressed their objection to, and disregard of, the parol evidence, which had been adduced to show that the testator intended to make another will excluding the child, whose birth, with the previous marriage, pro- duced the revocation. Sir R. P. Arden, M. R., in Gibbons v. Caunt(rf), said, that he believed they went the length of admitting the evidence, but he did not like it. In Kenebel v. Scrafton (e) , parol evidence of an intention not to revoke was offered; but Lord Loughborough, on sending the case to the Court of K. B., observed, " that the parol evi- dence did not weigh at all, being only conversations, and not amounting to a republication, a court of law would pay no regard to it : " but the conclusion at which the court arrived on another point rendered it unnecessary to enter into the question of the admissibility of the evi- dence. This question has now been set at rest by Marston v. *128 Roe (/), in which the judges, * after an elaborate argument, unanimously decided against the admissibility of the evidence, as being productive of the evils, the prevention of which was the great object of the enactments respecting wills in the Statute of Frauds.' This view of the subject, of course, excluded the applicability of the cases in the ecclesiastical courts, where the evidence was long ad- Wills made mitted in regard to wills of personal estate {g) . No ques- absduteiy *^°'^ ^^ *^^^ nature can occur, under any will made since the revoked by year 1837, as the act 1 Vict. c. 26, sect. 18, has provided, under^ Vict. " That every will made by a man or woman shall be revoked o. 26. by his or her marriage (except a will made in exercise of a power of appointment, when the real or "personal estate thereby ap- pointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled (a) Dougl. 31. (i) 2 H. Bl. 522. (c) 6 T. E. 61. (d) I Ves. 848. (e) 5 Ves. 663, 2 East, 530. (/) 8 Ad. & Ell. 14. [This case seems to have been overlooked bv Sir E. Sueden in Hall V. Hill, 1 D. & War. 114, 115.] " ^ (g) See Gibbens v. Cross, 2 Ad. 455 ; Fox v. Marston, 1 Curt. 494. [The practice of those courts-is now altered in conformity with Marston v. Roe; Israeli v. Rodon, 2 Moo. P. CO. 51: Matson v. Magratb, 1 Rob. 680, 6 No. Cas. 709, 13 Jur. 350. 1 See Brush ». Wilkins, 4 Johns. Ch. 506. 166, BY MAEEIAGB AND ISSUE. *129 as his or her next of kin under the Statute of JDistributions " (h)) ; and (s. 19) that " no will shall be revoked by any presumption of an inten- tion on the ground of an alteration in circumstances." ^ These clauses suggest only two remarks : — 1st, That, unless in the expressly excepted eases, marriage alone will produce absolute and complete revocation, as to both real and personal estate ; and that no declaration, however upon the explicit and earnest, of the testator's wish that the will ^"*<='™«"'- should continue in force after marriage, still less any inference of in- tention drawn from the contents of the will, and, least of all, evidence collected aliunde, will prevent the revocation. 2d, That merely the birth of a child, whether provided for by the will or not, will not revoke it ; the legislature, while it invested with a revoking efficacy one of the several circumstances formerly requisite to produce revocation, having wholly disregarded the other. The new rule, though it maj- sometimes produce inconvenience, has at least the merit of simplicity, and will relieve this branch of testa- mentary law from the many perplexing distinctions which gi-ew out of the pre-existing doctrine. * [Wills made before 1838 are still goyerned by the old law, *129 so far as respects revocation by marriage, and the birth of „.,. , issue. 'By sect. 34 of the act 1 Vict. c. 26, it is enacted, before i Vict, that ' ' the act shall not extend to any will made before the revoke'd since 1st January, 1838 ; " and although (as we shall hereafter that act. see ({)), all acts of revocation, which are apparent on the face of the will, must, as to wills made before that date, be executed in conformitj' with the requirements of the new law ; yet this section leaves all other modes of revoking such wills — namely, those which do not appear on the face of the will — to the operation of the old law ; and, consequently, mar- riage alone, without the birth of children, will not, at the present day, revoke a will made before 1838 (^).] ^ (h) I. e., next of kin, as such. Where the limitation in default of appointment was to the donee's children , who happened to be also his next of kin under the statute, the exception was nevertheless held to apply, Re Fitzroy, 1 Sw. & Tr. 133 ; Re Fenwick, L. R. 1 P. & D. 319. A fortiori where the limitation in default is to some only of the statutory next of kin, Re M'Vfcar, L. R. 1 P. & D. 671. [(i) Brooke v. Kent, 3 Moo. P. C. C. 334, and other cases post, p. 143. (k) Langford v. Little, 2 Jo. & Lat. 633; Re Shirley, 2 Curt. 657, overruling a contrary dictum in Hobbs ». Knight, 1 Curt. 768. 1 The long-continued insanity of the tes- wards's Appeal, 47 Penn. St. 144. And the tator after the execution of the will, if he same is true in Indiana. Morse v. Morse, 42 were sane when he executed it, affords no Ind. 365; Hughes v. Hughes, 37 Ind. 183. presumption of revocation, even though the So at common law in Iowa as to children propertv devised has in the mean time greatly born after the marriage and will, and before enhanced in value. Warner ». Beach, 4 Grav, the testator's death. Negus v. Negus, 1C2. 46 Iowa, 487 ; Fallon v. Chidester. ib. 588 ; 2 Marriage or the birth of a child after the McCullum v. McKenzie, 26 Iowa, 510. And making a will works a revocation by statute it is immaterial whether the testator had or in Georgia, unless" a provision is made in the had not children when he executed the will, willin contemplation of such event. Deupree Negus «. Negus, supra. The presumption of V. Deupree, 45 Ga. 415. So also in Pennsvl- revocation in Pennsylvania on the birth of a vania, though the child be posthumous, fid- child is not overcome by a provision in the 157 429 KEVOCATION OF WILLS Section II. By Burning, Cancelling., Tearing, or Obliterating.. By the 6th section of the Statute of Frauds [it is enacted, " that EeTocationof ^° devise in writing of any lands, tenements or heredita- wiii of lands ments, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writ- ing declaring the same, or] by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and \>y his directions and consent ; [but all devises and bequests of lands and tenements shall remain and continue in force (0 29 Car. 2, c. 3, s. 6 ; Irish Pari. 7 Will. 3, c. 12, s. 6. by burning, tearing, can- celling, or obliterating, under the old law. will expressing confidence in the testator's wife, "believing that should a child be born to us, she will do the utmost to rear it to the honor of its parents." "Walker v. Hall, 34 Penn. St. 483. Statutes in favor of children of a testator (including posthumous issue) who have not been provided for by his will : — Alabama. Code, 1876, Title 4, ch. 2, p. 586. Arkansas. Digest, 1874, ch. 135, p. 1013. California. Codes and Stat. 1876, Vol. 1, Title, 6, ch. 1, p. 724. Colorado. Gen. Laws, 1876, ch. 103, p. 931. Connecticut. Gen. Stat. 1875, ch. 11, p. 370. Dakota. Rev. Code, 1877, Title 5, ch. 1, p. 347. Delaware. Eev. Code, 1874, ch. 84, pp. 510, 511. Georgia. Code, 1873, Title 6, ch. 2, p. 425. Illinois. E. S. 1880, ch. 39, p. 422. Indiana. Stat. 1876, Vol. 2, ch. 3. p. 572. Iowa. Kev. Code, 1880, Vol. 1, Title 16, ch. 2, p. 608. Kansas. Comp. Laws, 1879, ch. 117, p. 1004. Kentucky. Gen. Stat. 1873, ch. 113, pp. 836, 837. Maine. E. S. 1871, ch. 74, p. 564. Massachusetts. Gen. Stat. 1880, ch. 92, pp. 478, 479. Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1375. Minnesota. Stat. 1878, ch. 47, p. 570. Mississippi. Kev. Code, 1871, ch. 54, pp. 525, 526. Missouri. E. S. 1880, Vol. 1, ch. 71, p. 681. Nebraska. Gen. Stat. 1873, ch. 1 7, p. 304. Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, p. 201. New Hampshire. Gen. Laws, 1878, ch. 193, p. 455. New Jersey. Revision, 1709-1877, Vol . 2, See Wilson v. Fritts, 32 N. J. Eq. 1875, Vol. 3, ch. 6, Battle's Revisal, 1873, E.S. p. 1246. 59. New York, p. 64. North Carolina, ch. 45, p. 413. Ohio. R. S. 1880, Vol. 2, ch. 1, p. 14.32. Oregon. Gen. Laws, 1843-1872, ch. 64, pp. 788, 790. Fennsvlvania. Bright. Purd. Digest, 1700-1872, Vol. 2, p. 1477. Rhode Island. Gen. Stat. 1872, ch. 171, p. 374. South Carolina. E. S. 1873, Title 3, ch. 86, p. 444. Tennessee. Stat. 1871, Vol. 2, Title 3, ch. 1, p. 1011. Texas. R. S. 1879, Title 99, p. 713. Utah. Comp. Laws, 1876, ch. 2, p. 272. Vermont. Gen. Stat. 1862, ch. 49, p. 380. Virginia. Code, 1873, ch. 118, p. 912. West Virginia. R. S. 1878, ch. 201, p. 1171. Wisconsin. R. S. 1878, ch. 103, p. 650. It has been held under the Massachusetts statute, which declares that any child, &c., of a testator, for whom he has omitted to provide in his will, shall take a share of his estate, as if he had died intestate, " unless it shall appear that . such omission was inten- tional, and not by any mistake or accident," that it is not necessary that it should appear by the wijl itself that such omission was in- tentional : the fact may be shown by parol evi- dence. Wilson V. Fosket, 6 Met. 400; Ban- croft V. Ives, 3 Gray, 367, 369, 370. But under Stat. Mass. 1783, c. 24, the rule as to the admission of parol evidence in such case was otherwise. Dewey, J., 6 Met. 404. The will is to be allowed and approved, not- withstanding such unintentional omission. The party injured by the omission has no interest or right to defeat the probate. Doane V. Lake, 32 Me. 268. The above cited pro- 158 BY BXJKNING, CANCKLLING, ETC. »130 until the same be burnt, cancelled, torn, or obliterated by the testator or his directions in manner aforesaid, or unless the same be altered by some other will," &c., executed as therein mentioned. But the] burn- ing, cancellation,^ tearing, or obliteration was not required to be at- tested by witnesses. [As the revocation of a will of per- „ .■ , sonalty was subject only to the restriction (m) of not being wills of per- altered or changed by any words, or by will by word of ^""^'y- mouth only, except the same were committed to writing, any of the acts mentioned in the 6th section were- of course sufficient to revoke such a will. J * The enactment has not been construed so strictly as to exclude *130 all evidence tending to show quo ammo the act was done, which is a conclusion to be drawn by a court or jury from „nimm&i- all the circumstances.^ The mere physical, act of destruc- mitted. [(m) See sect. 22 of Eng. & Ir. Statute. vision of the Statutes of Massachusetts was held in Bla^ge v. Miles, 1 Story, C. C. 426, to apply pnly to cases where the estate is the testator's own property, and not to cases where the testator has only a power of ap- piitntment over the estate to dispose of the inheritance. An illegitimate child, uninten- tionally omitted to be provided for in the will of its mother, is not entitled under the above provision in the statutes of Massachu- setts to the share of the mother's estate, which it would have taken, under the laws of that state, if the mother had died intestate. Kent V. Barker, 2 Gray, 535. By the New York Revised Statutes, if the will disposes of the whole estate, and the testator afterwards marries, and has issue born in his lifetime, or after his death, and the wife or issue be living at his deaths the will is deemed to be revoked; unless the issue be provided for bv the will, or by a settlement, or unless the will shows an intention not to make any provi- sion. No other evidence to rebut the pre- sumption of such a revocation is to be re- ceived. Brush ». Wilkins, i Johns. Ch. 506. This provision is supplemented by another prescribing the exact extent of the proof necessary to rebut the presumption of a revo- cation, thus relieving the courts from all diffi- culty on that embarrassing point. 4 Kent, 527. Provisions for this case, similar to those of New York, exist in other states. After the Virginia Act of 1792, and before the .ict of 1794, concerning wills, a man hav- ing children, made a will, and devised his whole estate amongst them; after which he married a second wife, by whom he had chil- dren, and dying without "altering his will, the second marriage and birth of children were held no revocation of the will. Yerby v. Yerby, 3 Call, 334. Respecting this case of Yerby ». Yerby, Bronson, J., in Havens ». Van "Den Burgh, 1 Denio, 29, said, that it turned upon its own peculiar circumstances. "The testator had declared that his first children, who were devisees in the will, should not be injured by the second mar- riage ; and in. his last illness he refused to alter the will, though he expressed the in- tention of making some alterations when he got well. Having thus referred to and re- fused to alter the will, after the change of circumstances from which a change of inten- tion might otherwise have been inferred, the court thought it impossible to presume a rev- ocation." In this case of Havens v. Van Den Burgh, it was accordingly held that the rule that the marriage and birth of a chilA are an implied revocation of a will previously made, disposing of the testator's whole es- tate, where there is no provision in or out of the will for such new relations, applies as well to a case where the testator had chil- dren by a former wife, who are provided for in the will, as where he was without children at the time it was executed. 1 As to this term, see Warner v. Warner, 37 Vt. 356; Evans's Appeal, 58 Penn. St, 2.38. The cancellation or cutting off a por- tion of the devises in a will, leaving the tes- tator's signature at the conclusion, or in the bod}', when no other signing had been in- tended, with the declaration that the inten- tion was to annul only what was so cancelled, leaves the residue a valid will. Brown's Will, 1 B. Mon. 57. The word "obsolete," written by a testator on the margin of his will, but not signed by him, or by any per- son for him, in the mode prescribed by the 6th section of the Penn. Act of Stli April, 1833, does not operate as a revocation of the will under the 13th section of that act. Lewis v. Lewis, 2 Watts & S. 455. See In re Farv, 9 Eog. L. & Eq. 600. But in Witter v. ifott, 2 Conn. 67, the declaration subscribed bj' the testator on the back of his will, " This will is invalid," was held an express revocation of it, although not attested by any subscribing witness. See Semmes v. "Semmes, 7 Harr. & J. 388; Johnson v. Brailsford, 2 Nott & McC. 272. 2 Revocation is a question of intention; 159 »130 KEVOCATION OP WILLS tion is itself equivocal, and may be deprived of aU revoking efficacy ,by explanatory evidence, indicating the animus revoeandi to be wanting.' Tlius, if a testator inadvertently' throws ink upon his will, instead of sand (m), or obliterates [or attempts to destroy] it during a fit of in- sanitj' (n) ," [or tears it up under the mistaken impression that it is invalid («),] it will remain in full force, notwithstanding such accidental or involuntary [or mistaken] act. So, the destruction of the instru- ment by a third person in the lifetime, but without the permission or knowledge of the testator, would not affect its validitj' ; * a fortiori, if the destruction took place after his decease {p). In the converse case, however, where there is an intention on the part of the testator to destroy the will, but the act is not completed, the authorities present more matter for consideration.* The early case of Bibb d. Mole v. Thomas (q) has generally- been con- Revocation sidered to establish that a very slight act of tearing is suffl- tearln's.'^' cient to effect a revocation, if done with such intention ; the (m) Per Lord Mansfield, Burtonshaw v. Gilbert, Cowp. 52.1 (») Scrubv V, Fordhain, 1 Ad. 74. [Borlase v. Borlase, 4 No. Cas. 139 ; Re Shaw, 1 Curt. 905; Re Downer, 18 Jur. 66 ; Brunt v. Brunt, L. R. 3 P. & D. 37. (o) Giles V. Warren, L. R 2 P. & D. 401.] (p) Haines v. Haines, 2 Vern. 441. (q) 2 W. Bl. 1043. and evidence is admissible to show the inten- tion of the testator in cancelling a will. Smiley v Gambill, 2 Head, 164; Marr v. Marr, ib. 303; Burns v. Burns, 4 Serg. & R. 295; Smock v. Smock, 11 N. J. Eq. 156; Boudinot v. Bradford, 2 Yeates, 170; S. C. 2 Dallas, 266 ; Upfill v. Marshall, 3 Curteis, 636; Means v. Moore, 3 McCord, 282. .The mere act of cancelling is nothing, unless it be done animo revoeandi. Jackson v. Hollo- way, 7 Johns. 394. See Overall y. Overall, Litt. Sel. Cas. 604; 4 Kent, 531, 532. Can- cellation of a will, by drawing lines across it, is an equivocal act, and may be explained by circumstances. Bethell v. Moore, 2 Dev. & B. 311; Smock v. Smock, supra. If, how- ever, the will be found cancelled, the law in- fers an intentional revocation; for it is prima facie evidence of it, and the inference stands good until it is rebutted. 4 Kent, 532; Jack- son V. Halloway, 7 Johns. -^94; Bethell*. Moore, 2 Dev. & B. 311. The slightest de- gree of cancellation, &c., with intent to re- voke, will operate as a revocation, Dan v. Brown, 4 Uowen, 483; 4 Kent, 582; Johnson V. Brailsford, 2 Nott & McC. 272 ; Jackson !). Betts, 6 Cowen, 377. K a man having two wills in his hand, intending to destroy the one last-made, by mistake destroys that first exe- cuted, the law does not require, in order to revive and establish the will intended to be destroyed, such proof as is necessary to give validity to an onginal will. Burns v. Burns, 4 Serg. & R. 295. 1 Dan ». Brown, 4 Cowen, 490. 2 It requires the same capacity to revoke a will, as to make one; so where a compe- tent testator makes a will, and the paper is afterwards destroyed by his consent given when he had become non compvs, the devises are not destroyed; but thewill may be setup and established. Allison v. Allison, 7 Dana, 94; Idleyi-. Bowen, 11 Wend. 227; Rhodes V. Vinson, 9 Gill, 169; Smith v. Wait, 4 Barb. 28. So, it is held, of the destruction of a will by the testator upon his death-bed, under threats and complaints, or undue in- iiuence affecting his freedom of action. Bat- ton V. Watson, 13 Ga. 63. 8 Bennett v. Sherrod,3 Ired. 303. But the failure of a testator who is informed of the loss or destruction of his will, to publish an- other, has been held to furnish a presump- tion of intention to revoke the will. Steele V. Price, 5 B. Mon. 58. However, this pre- sumption may be rebutted by other evidence, as, e. fj. by the declarations of the testator himself. Ib. < A blind testator directed his will to be destroyed, and supposed that it was so de- stroyed, when, in fact, no act had been done towards the destruction of it; and this was held to be no revocatitm or destruction un- der the statute in Virginia. Bovd v. Cook, 3 Leigh, 32; Malone v. Hobbs, 1 Robinson, 346. See Hise v. Fincher, 10 Ired. 139. But in a case where a testator was ill in bed, and called for his will, and one of tlie executora and legatees deceived hini by handing him an old letter instead, it was held that if, from the i-estof the testimonv, the jurv believed that the testator destroye"d that letter, think- ing that it was his will, such circumstances would amount in law to a revocation of the will. Pryor v. Coggin, 17 Ga. 444. See note 2, p. 131. 160 BY BTJKNING, CANCELLING, ETC. *131 facts were as follows: The testator (who had frequently declared himself dissatisfied with his will), being one day in bed near the fire, ordered W., a person who attended him, to fetch his will, which she did, and delivered it to him, it being then whole, only some- what creased ; he opened and looked at it, then gave it a rip with his hands, so as almost to tear a bit off, then rumpled it together, and threw it on the fire ; but it fell off. However it must soon have been burnt, had not W. taken it up, and put it into her pocket. The tes- tator did not see her do so, but seemed to have some suspicion of it, as be asked her what she was at, to which she made little or no answer ; the testator several times afterwards said that was not, and should not be his will, and bid her destroy it ; she said at first, " So I will when j'ou have made another ; " but, afterwards, upon his repeated inquiries, she falsely told him that she had destroyed it. She asked him to whom the estate would go when the will was burnt? he answered, to his * sister and her children. The testator afterwards told a *131 person that he had destro3'ed his will, and should make no other until he had seen his brother J. M. , and desired the person would tell his brother so, and that he wanted to see him ; he afterwards wrote to his brother, saying, ' ' I have destroyed my will which I made ; for, upon serious consideration, I was not eas}' in my inind about that wiU ; " and desired him to come down, saying, " If I die intestate, it will cause uneasiness." The testator, however, died witiiout making another will. The jurj' thought this a sufficient revocation, and the court of C. P. was of the same opinion, on a motion for a new trial ; De Grey, C. J., ob- serving, that this case fell within two of the specific acts described by the Statute of Frauds ; it was both a burning and a tearing ; and that throwing it on the fire, with an intent to burn, though it was onlj' very slightly singed and fell oflf, was sufficient within the statute.* It is not, however, to be inferred from this case, that the mere inten- tion, or even attempt, of a testator to burn, cancel, tear, or Mere attempt obliterate his will, is sufficient to produce revocation, within to destroy the meaning of the Statute of Frauds ; for, the legislature necessarily having pointed out certain modes by which a will may be revocatory. revoked, it is not in the power of the judicature, under any circum- stances, to dispense with part of its requisitions, and accept the mere intention or. endeavor to perform the prescribed act, as a substitute or equivalent for the act itself, though the intention or endeavor ma3- have been frustrated by the improper behavior of a third person.^ 1 See White v. Casten, 1 Jones, 197 ; John- partially or even totally revoke the will. The son V. Brailsford, 2 Nott & McC. 272. It presumption to be drawn must depend upon seems that there is no necessary presumption the facts apparent or shown in evidence, against a will by reason of the mere fact that ^ Mundv v. Mundy, 15 N. J. Eq. 290; the first few line's are missing from cutting and Gains ». Gfains, 2 A. K. Marsh. 190; Jacls- tearing. In re Woodward, L. R. 2 P. & D. son v. Betts, 9 Cowen, 208; Hise v. Fincher, 206. But the nature of the words and the cir- 10 Ii-ed. 139 ; Clarke B. Scripps, 22 Eng L. cumstances attending their removal or oblit- & Eq. 627. See. however, Pryor v. Coggin, eration might clearly indicate an intention to 17 Ga. 444; Smiley v. Gambill, 2 Head, 164; VOL. 1. 11 161 *132 BEVOCATION OP WILLS Thus, in Doe d. Reed v. Harris (r), where it appeared by the evi- dence of the testator's servant, that the testator had thrown the will on the fire, from which it was immediately snatched bj' a relative who lived with him, when the fire had merely singed the cover. The testa- tor afterwards insisted upon her giving up the will to be burnt, which she promised to do ; and, in order to satisfy the testator, threw some- thing into the fire, which was not the will (as she represented it to be), of which the testator appears to have had some suspicion ; for, upon the witness expressing her doubt whether the will had been destroj'ed, the testator said, " I do not care, I will go to L., if I am alive and well, and make another will." The Court of Q. B. held, that the will *132 was not revoked, on the ground that there had been no * actual burning of the instrument. " It is impossible," said Lord Den- man, " to s&Y that singeing a cover is burning a will within the mean- ing of the statute." Patteson, J., said, " To hold that it was so, would be saying, that a strong intention to burn, was a burning. There must be, at all events, a partial burning of the instrument itself; I do not saj- that a quantity of words must be burnt ; but there must be a burn- ing of the paper on which the will is." It was held, however, that the slight burning which occurred in this case, with the attendant circumstances and conduct of the testator, though not sufficient to satisfy the Statute of Frauds, yet had the effect of revoking the will in regard to property to which that statute did not extend, as copyholds (s). But (to return to cases within the statute) it is clear, that if a testa- Effect where ^^ ^® arrested in his design of destroj-ing the will, bj' the atestatoTsus- remonstrance or interference of a third person, 'or by his .stroylnVaot ^^''^ voluntary change of purpose, and thus leaves unfin- ^before its ished the work of destruction which he had commenced, the comp e ion. ^.^ .^ unrevoked ; ^ and the degree in which the attempt had been accomplished, would not, it should seem, be very closely scru- tinized, if the testator himself had put his own construction upon his somewhat equivocal act, by subsequently treating the will as undestroyed. (r) 6 Ad. & Ell. 209, [2 Nev. & P. 615.] (s) Doe d. Reed v. Harris, 8 Ad. & Ell. 1. Blanchard v. Blanchard, 32 Vt. 62, as to 62. Indeed, it is broadly laid down that if a deception practised upon the testator as to revocation, as by burning, was interfered with revocation. See also Eunkle v Gates, H by fraud, without the testator's knowledge, Ind. 95. It is laid down in this countrv that the will does not become valid afterwards on if the maker of a will, with the intention of the discovery of the fraud without acts amount- revoking the instrument by destroying it, ing to a now publication. Kent v. Mahaffey, hum another paper, mistakenly supposing 10 Ohio St. 204; Bohanan v. Walcot, 1 How. tliat to be his will, and believe he has de- (Miss.) 336; Burns ti. Burns, 4 Serg. & R. stroyed it, and continue in that belief with- B67. ,0n the other hand a will fraudulently out any subseijuent recognition of it or knowl- destroyed may be set up again. Voorhees v. edge o"f its existence, this is held to amount to Voorhees, 39 N. Y. 463. The doctrine was a revocation. Smiley ». Gambill. 2 Head, 164; here applied to a case of undue influence. Ford ». Ford, 7 Humph. 104. Revocation, if i See Winsor r. Pratt, 2 Brod. & B. 652; prevented by the fraud of a donee will, also, Bethell n. Moore, 2 Dev. & B. 311; Giles v. It seems, be" considered as effected as to the Giles, Cam. & N. 174; Clarke v. Scripps, 22 wrong-doer. Blanchard v. Blanchard, 32 Vt. Eng. L. & Eq. 627. 162 BY BUENUSTG, CANCELLING, ETC. *133 Thus, in Doe v. Perhes (t), where a testator, upon a sudden provoca- tion by one of the devisees, tore his will asunder ; and, after being appeased, fitted the pieces together, and expressed his satisfaction that it was no worse, and that no material injury had been done ; it was held that the will remained unrevoked. Here (to use the language of a distinguished judge), (u) the intention of revoking was itself revoked, before the act was complete. [And in Elms v. Elms (x), the testator had torn his will nearly through, but the evidence seemed to show that he intended to do more, and was stopped by the remonstrance of a per- son present, and it was held that the will was not revoked.] In one instance, the Prerogative Court decided in favor of a will, without any distinct proof of its existence after the death of presumption the testator, or of its destruction in his lifetime ; there being as to destruc- strong reason, under all the circumstances, for supposing """""^"""s- that the testator had unintentionally destroyed it ; or, at all events, * that its destruction, whenever effected, was without his *133 concurrence (y). The general rule in that court seems to be, that if a will is traced into the testator's possession, and [at his death] either cannot be found (z), or is found torn (a), the presumption is (in the absence of circumstances tending to a contrary conclusion (6)), that he destroyed or tore it animo revocandi ; ^ but that If the wiU is traced (0 3 B. & AM. 489: [and compare Re Colberg, 1 No. Cas. 90, 2 Curt. 832.1 00 Vide 6 Ad. & Ell. 215. i(x) 1 Sw. & Tr. 155, 4 Jur. N. S. 341, 27 L. J. Prob. 96. And see Re Cockayne, 1 Dea. 177, 2 Jur. N. S. 454.] (y) Davis ». Davis, 2 Ad. 223; [and see Patten v. Poulton, 1 Sw. & Tr. 55, 27 L.J. Prob. 41, 4 Jur. N. S. 341.] (z) Lillie i.'. Lillie, 3 Hagg. 184; Wargent v Hollings, 4 Hagg. 245; Tagart «. Squire, 1 Curt. 285; [Welch v. Phillips, 1 .Moo. P. C. C. 299; Brown v. Brown, 8 Ell. & Bl. 876; Re Shaw, 1 Sw. & Tr. 62 ; Finch v. Finch, L. R. 1 P. & D. 371.] (a) Hare v. Nasmyth, 3 Hagg. 192, n. ; Lambell o. Lambell, ib. 568; [Williams ». Jones, 7 No. Cas. 106; Re Lewis, 1 Sw. & Tr. 31, 27 L. J. Prob. 31. (b) As to the evidence required to rebut the presumption, see Saunders v. Saunders, 6 No. Cas. 518; Battj'l v. Lyles, 4 Jur. N. S. 718; Re Gardner, 1 Sw. & Tr. 109, 27 L. J.'Prob. 55; Re Kipley, 1 Sw. & Tr. 68, 4 Jur. N. S 342; Re Simpson, 5 Jur. N. S. 1366; Re Pechell, ib. 406; Eckersley v. Piatt, L. R. 1 P. & D. 281. If declarations made by the testator after the date of the will are adduced to rebut the presumption, the like declarations are admissible in reply. Keen v'. Keen, L. R. 3 P. & D. 105. As evidence of the animus "with which an act was done, less weight is of course due to subsequent (Pemberton v. Pemberton, 13 Ves. 310; Re Wes- ton, L. R. 1 P. & D. 633) than to contemporaneous (Johnson v. Lyford, L. R. 1 P. & D. 546) declarations of the testator. To prove the act, such subsequent declarations are whollv inad- missible. Staines v. Stewart, 2 Sw. & Tr. 320, 31 L. J. Prob. 10. The will being lost or de- stroyed, and the animus revocandi disproved, probate will be granted of its contents as proved by secondary evidence, e.r/. draft, copy, or parol testimonv: see same cases, and Clarkson V. Clarkson, 2 Sw. & Tr. 497, 31 L. J. Prob. 143; Podmore's. Whatton, 3 Sw. & Tr. 449 ; 33 L. J. Prob. 143; Burls' v. Burls, L. R. 1 P. & D. 472; James v. Shrimpton, 1 P. D. 431; Sugden v. Lord St. Leonards, 1 P. D. 154. In the last case the contents were proved by a single interested witness. The same case establishes the admissibility, as evidence of contents, of the testator's declarations whensoever made, overruling Quick v. Quick, 3 Sw. & Tr. 442, 33 L. J. Prob. 146 ; and further, that probate may be granted of so much of the will as the evidence ascertains, though the other part is not ascertained.] 1 Betts I). Jackson, 6 Wend. 173; Lively 23; Weeks v. McBeth, 14 Ala. 474. Soe D.Harwell, 29 Ga. 509: Holland ti. Ferris, 2 Jackson v. Betts, 9 Cowen, 208; Dan v. Bradf. 334; Brown v. Brown, 10 Yerg. 84; Brown, 4 Cowen, 483; Jackson v. Kniffien, 2 Minkler v. Minkler. 14 Vt. 125; Jones v. Johns. 31; Lewis w. Lewis, 2 Watts &S. 455; Murphv, 8 Watts & S. 275 ; Appling v. Eades, Burns i). Bums, 4 Serg. & R. 295 ; Uurant v. IGratt. 286; RickardsM.Muniford, 2Phillim. Ashmore, 2 Rich. 184; Smiths. Fenner, 163 •134 EEVOCATION OF WILLS out of the deceased's custody, it is incumbent on the party asserting the revocation to prove that the will came again into such custody, or was destroyed by his directions (c)} [If, after executing his will, the testa- tor becomes insane, and it appears that the will was in his custody as well after as before the time when he became so, it cannot be assumed that he tore or destroyed it whUe he was sane ; the fact must be proved affirm atively (d). Where a pencil instead of a pen is used, the cancellation is not neces- Obliteration sarUy ineffectual (e) , but is always prima facie considered by a pencil, deliberative (/) ,^ and it must be shown that it was intended to be final.] „_ , A revocation by obliteration may be either partial tial obliteia- *134 Or total.' If * the testator draws a pen over part of ''°"^' the will only, a revocation is effected pro tanto, and (c) Colvin 1). Fraser, 2 Hagg. 327 ; [and see Wynn v. Heveningham, 1 Coll. 638, 639. (d) Harris v. Berral, 1 Sw. & Tr. 153; Sprigge v. Sprigge, L. li. 1 P. & D. 608. (e) Mence v. Mence, 18 Ves. 348. (J') Fiands v. Grover, 5 Hare, 39, and the cases there cited; Re Hall, L. E. 2 P. & D. 256] 1 Gall. 170; Hildreth v. Schillinger. 10 N. J. Eq. 196; Smock v. Smock, H N. J. Eq. 15S; Durant v. Ashmore, 2 Ricliardson, 191; Jones v. Murphy, 8 Watts & S. 275. Declarations of the testator as to doubtful acts of revocation are, as we have elsewhere said, admissible in evidence. In re .Tohnson's Will, supra ; Lawyer v. Smith, 8 Mich. 411 ; Colla- gan V. Burns, 57 Me. 449; Patterson v. [iokey, 32 Ga. 156. But not to rirove a mere oral revocation. Hargroves v. Redd, 43 Ga. 142. See Smith ». Fenner, 1 Gall. 170. Mere words of revocation, however strong, are without effect. Wittman v. Goodhand, 26 Md. 95; Mundy v. Mundy, 15 N. J. Eq. 290; Lewis V. Lcwi.sj 2 Watts & S. 455; I-Iyltoni!. Hvlton, 1 Graft. 161; Jones t). Moseley, 40 M'iss. 261; Jackson v. Kniilen, 2 Johns. 31; Kent 1). Mahaffey, 10 Ohio St. 204. Nor will the existence oE'an act let in evidence of in- tention to revoke when the act is not capable by a reasonable interpretation of pointing to arevocation. Thus it is not competent to show that certain erasures were made animo resocnndi if the erasures are such as not ma- teriallv to affect the meaning of the will. Clark w. Smith, 34 Barb. 140. On the other hand, where there is an unmistakable revoca- tion, parol evidence is no more admissible to remove it than it would be to affect any of the terms of the will as originally drawn ; since revocation is itself a testamentary act in its nature, tliough the statute does not require it to be executed and attested. It is only a;)i-e- sumpHve revocation that can be overturned by evidence. 1 Evidence may be given that a lost or de- stroyed will was lost or destroyed without the knowledge or consent of (he testator. Schultz V. Schultz, 35 N. Y. 653; In re Johnson's Will, 40 Conn. 587; Newell v. Homer, 120 Mass. 277; Davis v. Sigourney, 8 Met. 487; Duvfee v. Durfee, ib. 490, note ; Collagan v. 164 Burns, 57 Me. 449; Tynan v. Paschal, 27 Texas, 286. But one who seeks to set up an alleged lost will has the burden of proving its contents by evidence strong, positive, and free from doubt. Newell ». Homer,- 120 Mass. 277; Davis v. Sigourney, 8 Met. 487; Uurfee V. Durfee, ib. 490, note;"lnre Johnson's Will, 40 Conn. 587. And it must appear that the will was in existence, uncancelled and unre- voked, at the time of the death of tlie testator, in order to control the presumption of i-evoca- tion which always arises when a will once known to exist is" not found at the death of the testator. Newell 17. Homer, supra; Brown ti. Brown 8 El. & B. 876, 886; Eckersley V. Piatt, L. R. 1 P. & D. 281 ; Finch v. Finch, ib. 371. If the will remained in the custody of the testator, or after its execution lie had ready access to it, the fact that it could not be found after his death would raise a presump- tion that he had destroyed it awimo revocanai. Schultz II. Schultz, supra, Davies, C. J.; Betts V. Jackson, 6 Wend. 173; Knapp ». Knapp, 10 N. Y. 276; Dawson v. Smith, 3 Houst. 92. But this presumption, as the rule implies, does not exist when it appears that, upon the execution of the will, it was deposited by the testator with a custodian, and that the testator did not thereafter have it in his pos- session or have access to it. Schultz v. Schultz, supra. Afortioriif the will be found in possession of one interested. Bennett v. Sherrod, 3 Ired. 306. Evidence is also admis- sible to show that the act of tearing off one's signature to a will was done without an inten- tion to revoke ; that is, by mistake. Youse ». Forman, 5 Bush, 337. So of an apparent but not decisive act of cancellation. Wolf ». Bollinger, 62 III. 368. 2 See Stover v. Kendall, 1 Coldw. 557. ' To write below the attestation of a will, "This will is hereby cancelled and annulled in full this 15th day of March, 1859," is a BY BURNING, CANCELLING, ETC. *135 the unobliterated portions remain in force {g) ; ^ as where (to put a common case) a testator, after having devised property to several per- sons, strikes out the name of one of the devisees, by which act he gives to the will the same operation as if that devisee had died in the testa- tor's lifetime. If the estate or interest of the co-devisees was joint, the entire property would vest in the survivor or survivors (A) ; if they were tenants in common, the share of the deceased devisee would lapse, and a partial intestacy be produced («') ; unless the subject of gift were a pecuniary legacy, or anj- other article of personal estate, which would fall to the residuary legatee, if there was one ; or unless the will was made since the year 1837, in which case the revocation of a specific devise would cast the real estate, which was the subject of such devise, into the hands of the residuary devisee. [If certain words, forming part of a devise, are obliterated, it is to be seen what is the effect of those which remain : if they are sensible per se, and do not give any person (apart, of course, from their indirect operation of increasing the residue) a larger estate than he would have taken by the will, or a new estate, the obliteration works a valid partial revocation. This appears to be the effect of Swinton v. Bailey {k) , where a testator who died in 1836 devised certain lands to his " mother, Elizabeth Eley to hold to his said mother, Elizabeth Mey, her heirs and assigns forever." After execution he drew his pen through the words in italics, and above them wrote " Eley." The question was whether the fee-simple was cut down to a life-estate. It was argued that for this purpose something more than revocation was needed, for the life-estate was a new estate, and that the case was in substance one not of obliteration but of altera- tion, which failed for want of due execution. But it was held that the obliteration, operating simply by way of revocation, had cut down the fee-simple to a life-estate ; for the life-estate was clearly less than the estate in fee, and was included in it. " In the eye of the law," said Lord Cairns, " a gift to A., his heirs and assigns, is what it says, a gift to all those persons. No doubt the law says that the estate given to the heirs shall vest in A. ; but it is a gift to the heirs * nevertheless." At this day the case is chiefly interesting on *135 account of this dissection of the limitation in fee.] In order to constitute a revocatory obliteration, it is not essential (ff) Sutton V, Sutton, Cowp. 81,2. [(A) Lankins v. Larkins, 3 Bos. & P. 16; Short v. Smith, 4 East, 419 j Humphreys v. Tavlor, 7 Bac. Ab. Gwil. 363. '(i) Per Alvahley, C. J., and Chambre, J., 3 B & P. 21, 22. (it) 1 Ex. D. 110, affirmed in D. P. 48 L. J. Ex 57, reversing the decision of the Exch. Division, where it was held that obliteration, to be effectual under sect. 6, must be of a com- plete "clause " or sentence. But this is inconsistent with Larkins v. Larkins.] good revocation by cancelling, and the will Appeal, 55 Penn. St. 424; Stover ji. Kendall, cannot be revived by evidence of subsequent 1 Coldw. 557; Brown's Will, 1 B. Mon. 56; declarations of the decedent. Warner ». Matterof Kirkpatrick,22 N. J. Eq. 463; Inre Warner, 37 Vt. 356. Hall, L.R. 2 P. & D. 256 ; In re Horstord, L. R. 1 See BigelowD. Gillott, 123 Mass. 102; 3 P. & D. 211; In re Treeby, ib. 242; Neate Evans's Appeal, 58 Penn. St. 238; Dixon's v. Pickard, 2No. Gas. 406. 165 *135 BEVOCATION OP "WILLS that every word shall be obliterated ; the revocation is complete if enough of the material part be expunged, to show an intention that the devise shall not stand ; as where the testator draws his pen across the Effect of par- devisee's name (/). But where the name occurred several tial obiitera- times in the course of the will, and the testator drew his pen across the name in some instances, and left it standing in others, it was held, that the bequests were not revoked ; the V.-C. observing, that as the description, and in some places the name, of the legatee remained uncancelled, the court would not be warranted in holding that the bequests to her were revoked (m). But the oblitera- tion, in the envelope of a wiU, of the words referring to it as the will of the testator, accompanied by expressions written by him, showing that he considered that it was revoked by another will, which, for want of being duly attested, had no such operation, is, of course, not such an obliteration as to have the eflfect of revoking the will (n).^ And here it may be observed, that, where the act of cancellation or Effect where destruction is connected with the making of another will, so "as cancellation fairly to raise the inference, that the testator meant the revo- with a new cation of the old to depend upon the efficacy of the new dis- disposition. position, such will be the legal effect of the transaction ; and therefore, if the will intended to be substituted is inoperative from defect of attestation, or any other cause, the revocation fails also, and the origi- nal will remains in force.'' As where a testator, having some time before executed a will, duly attested, to each sheet of which he had affixed a seal, instructed his solicitor to prepare another, and signed the draft prepared from those instructions, and then proceeded to tear off the seals of the old will ; when, after all the seals but one had been thus removed, he was informed, that the new will would not be- opera- tive upon his lands in its then state, which induced him to desist ; and before the new will was complete, the testator died : it was held, that the original will remained unrevoked (o) .' ' (I) See Mence v. Mence, 18 Tes. 350. (m) Martins v. Gardiner, 8 Sim. 73. (n) Grantly v. Garthwaite, 2 Euss 90. (o) Hyde v. Hyde, [1 Eq. Ab. 409,] 3 Ch. Eep. 155; see also Onions v. Tyrer, 1 P. W. 343, Pre. Ch. 459; [Burtonshaw ». Gilbert, Cowp. 49;] Sutton D.Sutton, Cowp."812; Winsor V. Pratt, 5 J. B.IHoo. 484, 2 Br. & B. 650; [Perrott v. Perrott, 14 East, 440; Scot v. Scot, 1 Sw. & Tr. 258; Clarkson v. Clarkson, 3 Sw. & Tr. 497, 31 L. J. Prob. 143; Dancer v. Crabb, L. R. 3 P. & D. 98. 1 That the tearing off a seal may work a are final and absolute. Hawkes v. Hawkes, revocation, though the seal was unnecessary, 1 Hagg. 321 ; Edwards v. Astley, 1 Hagg. see AveTv V. Pixlej', 4 Mass. 460; White's 490 ; Dickenson v. Dickenson, 2'Phill. 173; Will, 25 N. J. Eq. 501. See also Lambcll v. Francis v. Grover, 5 Hare, 39. But a will de- Larabell, 3 Hagg. 568 1 Price v. Powell, 3 liberately cancelled, without accident or mis- Hurl. &N. 341; Johnsons. Brailsford, 2 Nott. take, is revoked; though the testator after- & McC. 272. wards intends to make a new one, but omits so 2 A familiar example of deliberative alter- to do. Semnies v. Semmes, 7 Harr. & J. 388. ation may be seen in changes made in pencil 8 it is also declared in this country, ot a in the written instrument. As has elsewhere completely executed will, that when a testa- been stated, the general presumption and tor does an act in the nature of cancellation probability are, that where alterations in pen- or mutilation, with a view to having his will cii only are made, and nothing further ap- immediately changed or altered, the act of pears, they are deliberative, when in ink thej' cancellation and reconstruction being intended 166 BY BUKNING, CANCELLING, ETC. *1C6 * [In like manner, where the later of two inconsistent wills is *136 destroyed on the supposition that the earlier will is thereby re- vived ; if this supposition be (as by the existing law we shall presently see it is) erroneous, the later will remains unrevoked. In this case, as in the former, the act of destruction is referable, not to any abstract intention to revoke, but to an intention to validate another paper ; and as the condition upon which alone the revocation was intended to oper- ate is in neither case fulfilled, in neither does the animus revocandi exist (p)]. And the same principle applies to partial alterations ; ^ so that, where a testator strikes out the name of a devisee, and at the same Partial oblit- time interlines that Of another, or substitutes a larger or eration con- smaller interest or share for that which he had previously new disposi-^ given, if the interlineation is inoperative for want of an at- ''""■ testation, the obliteration will also fail of effect {q).^ [But the mere intention to make at some indefinite future time a new wiU, is not enough to prevent revocation (r)].^ Where the later of two inconsistent wills was [lost («) or] cancelled {t), or otherwise revoked by the testator in his lifetime, the Effect where effect of such revocation clearly was, according to the a testator 1 T 1 , , , ■ Ml . . . , . . having made old law, to restore the prior will to its original position ; two incon- and such restored will, if not revoked by any subsequent Jevokes^he' act of the testator, came into operation at his decease ; * later. {p) Powell «. Powell, L. E. 1 P. & D. 209, overruling Dickinson «. Swatman, 4 Sw. & Tr. 205, 30 L. J. Prob. 84.] (ff) Short V. Smith, 4 East, 419 (this case however did not raise the precise point) ; Kirke 1). Kirke, 4 Russ. 435; [Locke v. James, 11 M. & Wels. 901; and see corresponding cases under 1 Vict. c. 26, post, p. 142. ()•) Williams v. Tyley, Johns. 530, better reported 6 Jur. N. S. 35 ; Re Mitcheson, 32 L. J. Prob. 202. (s) Rainier v. Rainier, 1 Jur. 754. (t) Goodright v. Glazier, 4 Burr. 2512.] as part of the same transaction, and the recon- tablish a mere letter as a testamentary act, struction or republication is not perfected, the a request of the writer to destroy the letter act of cancellation or mutilation is to be leads to the conclusion that his purpose was deemed incomplete, because of the failure of that that paper at least should not be his will, the other essential acts. Youse v. Forman, 5 Mc Bride ». iNIcBride, 26 Gratt. 476. And this Bush, 3.37; Stover v. Kendall, 1 Cold. 557. is equally true, though'the letter refer to the So where the testator makes an alteration by formal draft of a will which accords with the erasure and interlineation, or otherwise, with- letter, if such draft were never executed. lb. out authenticating the same hy a new attesta- On the other hand, a revocation made upon tion in the presence of witnesses, it will be advice, e.g. upon legal advice, cannot be presumed that the alteration was intended to treated as dependent upon the soundness of be dependent upon taking effect as a substi- that advice. Skipwith v. Cabell. 19 Gratt. tute; and when the alteration fails to take 758; Attorney-General ». Lloyd, 3 Atk. 551. effect the will stands as originally drawn, so i See Overall v. Overall, Litt. Sel. Cas. far as it is legible after the attempted altera- 504. tion. Wolf ». Bollinger, 62 111. 368; Short 2 gee Hairston v. Hairston, 30 Miss. 276. V. Smith, 4 East, 419 ; Jackson v. Holloway, Where, after one execution of a will of real 7 Johns. 394; Laughton v. Atkins, 1 Pick. and personal estate, the scrivener, by diiec- 535. When a will, however, is once properly tion of the testator, and in the presence of only executed, a mere direction by the testator to one of the subscribing witnesses, interlined destroy it, and a belief on his part that it has another legacy, it was held that the alteration in fact been destroyed, will not operate as a didnotmakethe will void. Wheeler u. Bent, revocation. McBride v. McBride, 26 Gratt. 7 Pick. 61. See Jackson v. Holloway, 7 476; Mundy v. Muiidy, 15 N. J. Eq. 290. Johns. 394. The direction must be followed by a substan- s Youse «. Forman, 5 Bush, 337. tive act of deivtruction. On the other hand, ■* Boudinot v. Bradford, 2 Dallas, 268; when an attempt is made, for example, to es- Lawson v. Morrison, 2 Dallas, 289. See 167 *137 KEVOCATION OF WILLS and the distinction sometimes suggested, between cancelled wills which did, and those which did not, contain express clauses of revocation, in regard to their revoking effect upon an earlier uncancelled will (m) , was wholly without foundation.^ The clause of revocation, like every other clause, was ambulatory and silent until the death of the testator called the will into operation (v). In the Ecclesiastical Court, how- ever, 8ir J. NichoU laid it down, that the legal presumption was neither adverse to nor in favor of the revival of a former uncancelled, upon the cancellation of a later revocatorj-, will. The question was, he said, open to decision either way, according to facts and circumstances (x). Sometimes a testator for greater security executes his will in *137 * duplicate, retaining one part and committing the other to the custody of another person (usually an executor or trustee) ; and Effect of de- questions have not uufrequently arisen as to the effect of his pairtof^upfi- subsequently destrojing one of such papers, leaving the du- cate will. plicate entire. In these cases the presumption generally is, that the testator means by the destruction of one part to revoke the wUl, but the strength of the presumption depends much upon circum- stances. Thus, where {y) he cancels that part which is in his own possession (the duplicate being in the custody of another) , it is very strongly to be presumed, that he does not intend the duplicate to stand, he having destroyed all that was within his reach (z). So, if the tes- tator have himself possession of both, the presumption of revocation holds, though weaker (a),^ and even if, having both in his possession, he alters one, and then destroys that which he had altered, there is also the presumption, but weaker still.* These several gradations of presumption were stated b}- Lord Ers- kine in Pemberton v. Pemberton (b), the circumstances of which were as follows : Two parts of a will were found in the possession of a testator at his death, the one cancelled, having various alterations in it, and the other not altered or cancelled; and the finding of the jury ia three successive trials at law on these facts, and the evidence generall}', was that the will was not revoked ; and in that conclusion the L. C. finally concurred. Perhaps, in such a case, the presumption can hardly be said to lean («), See Roper on Revocation. 94. («) Harwood v. Goodright, Cowp. 92. (x) Usticke v. Bawden, 2 Ad. 116 ; [and see Moore v. Moore, 1 Phillim. 412 ; James v. Cohen, 3 Curt. 770, 8 Jur. 249.] ((/) See Sir Edward Seymour's case, cit. Com. 453, 1 P. W. 346, [2 Vern. 742 j and see Colvin V. Fraser, ,2 Hagg;. 266; Rickards v. Mumford, 2 Phillim. 23.] (s) Burtonshaw v. Gilbert, Cowp. 49; Boughey v. Moreton, 3 Hagg. 191, n., [2 Ca. tem. Lee, 532. 2 Greenl. Ev. § 682. ' 168 BY BUKKING, CANCELLING, ETC. *138 in favor of the revocation at all ; for the testator having made altera- tions in one part, and then cancelled the part so altered only, the con- clusion would rather seem to be, that he merel}^ intended, by the destruction of that part, to get rid of the alterations, and to restore the will to its original state. And it is observable, that in Roberts v. Round (c), where one of two duplicate wills was found partly mutilated, and the other carefully preserved in the testator's own possession, it was held, that the will remained unrevoked. The evidence in Pemberton v. Pemberton, as to the intent with which the act of cancellation was done, consisted partly of subsequent declarations of the testator, and these tended rather to * favor *138 the revocation than otherwise ; but both Lord Eldon and Lord Erskine adverted to the very little weight due to expressions thrown out by testators in conversation with persons respecting their wills. [As the destruction of one part of a duplicate will is generally a revocation of the will, so an obliteration made in one part Effect of al- will be considered of the same effect as if made in both ; on^dupiu for the two parts form together (if such be the intention, cate. which is a question for the jury to decide) but one will, and an oblit- eration in one part is equivalent to an obliteration in both, (rf).] The principle on which the destruction of one part of a duphcate will is held to be a revocation, has been extended to a case in which ,_ . ■ 1 j_, l/ffect where the testator, having expressed the same purpose m both a same ex- will and codicil, obliterated it in the codicil alone. Thus in pi's^ssions ' occur m will Utterson v. Utterson (e), a testator, after disposing of the and codicil, residue of his real and personal property among his children, obliterates""^ introduced into the will an interlineation, excepting his son them in one J., to whom he gave one shilling. B}' a codicil (being the °°^' , fifth), after expressing his disapprobation of the conduct of this son, he declared it to be his determination that he (the son) should have no more of his property than one shilling. It appeared that the testator subsequently became reconciled to his son, and cancelled the codicil by drawing his pen across it, but did not strike out the interlineation in his will. This raised the question, whether the cancelling of the codicil destroj-ed the effect of the interlined clause in the will, with reference to some copyhold property ; for, as to the freeholds, it was admitted that the interlineation was inoperative, for want of an attestation : and in regard to the personalty, the Ecclesiastical Court had held the can- cellation of the codicil to have cancelled the excluding claus6 in the will ; and of this opinion was Sir "W". Grant, with respect to the copj'holds. " Even independently of the parol evidence of reconciliation," he said, "it seems to me, that the act of obliteration speaks as clearly as words could have done a change of intention as to the exclusion, and (c) 3 Hagfc- 548. [(d) Doe d. Strickland «. Strickland, 8 C. B. 724. The second copy or part of the will was made two years after the first; but was found by the jury to have been intended as a duplicate. See also Hubbard ». Alexander, 3 Ch. D. 738.] (e) 3 V. & B. 122. 169 *139 BEVOCATION OP WILLS not merely as to the mode of effecting it. It is the same as if he had said, ' This codicil no longer speaks my sentiments ; I am no longer dissatisfied with my son, and no longer mean to make any distinction between him and my other children ' " (/).* *139 * Sometimes there is found, among the papers of a testator, a Effect of tes- ''•^'^'^i^ without the will of which it professes to be part ; in tator destroy- such cases the question arises, whether or not the destruction leavine'codi- ^^ ^^^ ^"^ (which it is to be presumed, in the absence of ci! unde- proof to the contrarj', was the act of the testator) operates ^'"^^ ■ impliedlj', to revoke the codicil also. This question, of course, depends mainlj' upon the contents of the several testamentary docu- ments. If the dispositions in the codicU are so compKcated with, and dependent upon, those of the will as to be incapable of a separate and independent existence, the destruction of the will necessarity revokes the codicil (g) ; and before 1 Vict. c. 2Q, the general presumption in the Ecclesiastical Courts was rather in favor of the intention to involve a codicil in the revocation of the will of which it was a part, where a contrary intention could not be collected either from the contents of the codicil itself or from extrinsic evidence (h). But if the codicil was capable, from ihe nature of its contents, of subsisting independently of the will, its validity was not affected by the destruction of such wQl. Thus, where (i) a testator having made a will, the contents of which were unknown, the same not being found at his death, subsequently, made a codicil in favor of an illegitimate child, born since the date of the will, and its mother, which he entitled " A codicil to my last will, and to be taken as part thereof ; " Sir H. Jenner decided, that the codicil was unrevoked, there being nothing to show an intention to revoke it ; and the dispositions it contained (which were in favor of those for whom the testator was under a moral obligation to provide, and who were not in existence when the will was executed), being of such a nature as to be capable of taking effect independently of the will. The act I Vict. c. 26, has considerably modified the law relating to. Revocation the species of revocation which forms the subject of the {"earing"!"^' Pi'^sept section. It [enacts (sect. 20) " that no will or codi- (f) Here it occurs to remark, that testatoi*s should be dissuaded from making or altering their wills (as they are often disposed to do), under the influence of any temporary excitement occasioned by theill-conduct of a legatee ; and, still more, from recording their resentment in their wills, which may have the effect of wounding the feelings of, and casting a stigma on, the offending party long after the transaction which gave occasion to the irritation has been effaced from recollection, or is remembered only to be regretted. [The Probate Court will not readilv omit from the probate anv such record of displeasure, Re Honywood, L. R. 2 P. & D. 251.] ' (g) Usticke v. Bawden, 2 Add. 116. (A) Medlvcott «. Assheton, 2 Add. 229; Coppin v. Dillon, 4 Hagg. 369. (8) Tagart v. Squire, 1 Curt. 289. 1 There is, however, no implied revocation of unfriendliness, has afterwards become rec- of a will by the fact that the testator, after onciled to him. Jones v. Moseley, 40 Miss, making a will disinheriting his son by reason 261. 170 BY BURNING, CANCELLING, ETC. *140 cil, or any part thereof, shall be revoked otherwise otherwise de- than as * aforesaid (/. e. by marriage), or by another *140 ^dm^thtpns- will or codicil executed in manner hereinbefose re- emUw. quired, or by some writing declaring an intention to revoke the same, and executed as a will," or] " by the burning, tearing, or otherwise destroy- ing the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same " ■^ and (sect. 21) "that no obliteration, interlineation, or other alteration. Obliterations, made in any will after the execution thereof, shall be valid f^°be"signed' or have any effect, except so far as the words or effect of and attested. the will before such alteration shall not be apparent,^ unless such alter- ation shall be executed in like manner as hereinbefore 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 subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot, or end of, or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will." [And by sect. 22 it is enacted, " That no will or codicil, or any part thereof, which shall be in any manner revoked, shall be re- jjgyiyai ^f vived otherwise than by the re-execution thereof, or by a revoked codicil executed in manner hereinbefore required, and show- ing an intention to revive the same ; and 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 shall be shown."] The change, therefore, is that a revocation by cancellation or obliter- ation is not (as before) placed upon the same footing as a rev- Points of dlf- ocation by burning or tearing. Obliteration, [or other alter- ^Irthe ™ew ation which does not wholly efface the will, is no longer law. effectual unless executed in manner prescribed for the execution of a will]. 1 Under this clause of the statute, it has obliterated, and the word 'foVf^ inserted with- been held that a cancellation of a will is not a out any new attestation, and the word fifty revocation thereof, under the words " other- could not be made nut from the paper. Soari. wise destroying" the same. Stephens v. Dolman, and see Brooke d. Kent, ubi supra ; Taprell, 2 Curteis, 458. In this case there is a Greville ». Tylee, 7 Moore. P. C. 320. But full discussion, by Sir H. Jenner, of the see Townley i. Watson, 3 Curteis, 761, where meaning of the language in the above clause the construction nf the 21st sect, of 1 Vict. of the Act of 1 Vict. c. 26. c. 26, is discussed by Sir H. J. Fust. 2 In re Eippin, 2 Curteis, 332 ; In re Ibbet- 8 Interlineations are valid when opposite son, ib. 337; In re Brooke, ib. 343; In re them are the initials of the testator and of the Beavan, ib. 369. If a word erased or obliterated attesting witnesses. In re Blewitt, L. R. 5 P. T>. is not apparent in the will, it may yet be proved 116. Thus where two years after the testator aliuTidewhid it -was. Soar«. Dolman, SCurteis, had executed his will, he made an interlinea- 121; In re Pippin, 2 Curteis, 332 ; Brooke v. tion in it, and in the margin of it, and op- Kent, cited ib. and reported 3 Moore, P. C. 334. posite the interlineation, he and the sub- And the word so proved to have been erased scribing witnesses placed their initials, the may be inserted in the probate. Ib. This was interlineation was allowed to form part of held in a case where the word^?;^, being the the probate. In re Hinds, 24 Eng. L. & Eq. amount of one of the legacies bequeathed, was 608. 171 *141 REVOCATION OF WILLS But it may, of course, still be a question, (1) whether the destruction Points of of a will by a testator in his lifetime [by burning, tearing, similarity, or Otherwise] is partial or complete ; and (2) whether it takes place under circumstances, in regard to the volition of the testa- tor or otherwise, which invest it with a revoking effect ; and (3) whether or not it was so connected with an intended new disposition as to be dependent for its operation upon the efficacy thereof {j). All such questions the recent statute leaves untouched. *141 [* Thus, with regard to the words, " tearing" and " burning," the decisions under the Statute of Frauds assist the construction „ ' . of the act 1 Vict. Under the latter act it has been decided that the word "tearing" includes " cutting " (A) ; for it Wlien partial would be absurd to say that a will torn into two pieces was fccts total revoked, but that if cut into twenty pieces it was not re- revocation ; yoked. The cutting, to be effectual, need not be a cutting up of the whole will ; cutting out that part of the will which may be said to be the principal part (I), or that part which gives effect to the whole, as the signature of the testator (w),^ or, it is presumed, of the wit- nesses (»i), will cause a revocation of the whole will. And where the will is written on several sheets, each signed and witnessed, tearing off the last signature will revoke the whole will, although the prior signatures are left (o). It has also been decided by the Court of Exchequer {p) that tearing off, animo revocandi, the seal of a will (though no seal is necessary to the due execution of a will) constituted a revocation.' They said the instrument purported by the attestation clause to be exe- cuted under seal, and was published and attested as a sealed instru- ment, and when the seal was torn off it ceased to be the instrument which the testator purposed to execute and publish. And this author- ity was followed by Sir W. P. Wood, V.-C, in a case (q) where a tes- tator made his will on five sheets of paper, signed the first four, and signed and sealed the fifth, with an attestation clause describing the mode of execution : he afterwards tore off the signature from each of the first four sheets and struck through with his pen the signature on (J) See fowell ». I'oweu, ante, p. las. Wc) Hobbs V. Knight, 1 Curt. 768; Ee Cooke, 5 No. Cas. 390; and see Clarke ». Scripps, 16 Jar. 783, 2 Rob. 56-3. (1) Williams v. Jones, 7 No. Cas. 106. (m) Hobbs v. Knight. 1 Curt. 768 ; Ee Gullan, 1 Sw. & Tr. 23, 27 L. J. Prob. 15 ; Ee Lewis, ib. 31, 1 Sw. & Tr. 31; fee Simpson, 5 Jnr. N. S. 1366; Bell v. Fothergill, L. E. 2 P. & D. 148. (n) Evans ». Dallow, 31 L. J. Prob. 128. See also Birkhead v. Bowdoin, 2 No. Cas. 66 ; Hobbs D. Knight, 1 Curt. 780, 781; Abraham «. Joseph, 5 Jur. N. S. 179. So in a case of total obliteration, Ee James, 7 Jur. N. S. 52. (0) Ee Gullan, 1 Sw, & Tr. 23, 27 L. J. Prob. 15, 4 Jur. N. S. 196; Gullan v. Grove, 26 Beav. 64. Compare Christmas v. Whinyates, 32 L. J. Prob. 73 (where the court was satisfied that the tearing was intended to work a partial revocation only). (p) Price V. Powell, 3 H. & N. 341. (j) Williams v. Tyley, Johns. 530. 1 See Clark's Will, 1 Tuck. 445. 2 Nott & McC. 272; Lambell v. LambeU, 2 jivery ». Pixlev, 4 Ma-ss. 460; White's 3 Hagg. 668. Will, 25 li. J. Eq. 501; Johnsons. Brailsford, 172 BY BURNING, CANCELLING, ETC. *142 the last, and, the animus revocandi being proved in evidence, it was held that the will was revoked by the tearing. But cutting out a particular clause or the name of a legatee is a revoea- ^" "^ " tion pro tanto only (r). "Where a will is found torn, evidence is, of course, admissible to show * that it was done by mistake (r) *142 or is merely the effect of wear (s) ; for mere tearing or destruction without intention to revoke is no revocation under the express terms of the act (t). The intention without the act is equall}' ineffectual (y). The words " otherwise destroying" are new.' They are to be taken to mean a destruction ejusdem generis with the modes be- Meaning of fore mentioned, that is, destruction in the proper sense of ^"vj!,^ ^^^^' the word of the substance or contents of the will, or, at stroying." least, complete effacement of the writing, as, by pasting over it a blank paper (x) ; and not a "destroying" in a secondary sense (y), as by cancelling or incomplete obliteration. These, unless thej^ prevent the words, as originally written, from being apparent, that is, apparent by looking at the will itself, are plainly excluded by the statute (z). Glasses have been used (a) for discovering what the words obliterated originally were : but parol evidence is inadmissible (b), ex- paroi evi- cept in those cases where the obliteration was made for the dence admis- ^ . -. jy sible m cases purpose merely of altermg the amount of the gift and not of of condition- revoking it; in which case, there being no intention to re- »' '"evocation. voke except for the purpose of substituting a gift of a different amount, if the latter cannot take place hj reason of the substituted words not being properly attested, the former gift will now (as under the Statute of Fraud^ remain good, and evidence must be admitted to show what the original words were (c). The same rule, it is presumed, applies to an erasure of the name of the legatee (d) ; as it appears to do to an erasure of the name of an executor (e). (r) Ke Cooke, supra; Ee Lambert, 1 No. Cas. 131; Re Woodward, L. E. 2 P. & D. 206, where seven or eight lines at the beginning had been cut off. {r) Giles v. Warren, L. R. 2 P. & D. 401. (s) Bigge V. Bigge, 9 Jttr. 192, 3 No. Cas. 601, and see 1 Eq. Ca. Ab. 402, pi. 3, marg. («) Ee Tozer, 2 No. Cas. 11, 7 Jur. 134; Re Hannam, 14 Jur. 558; darker. Scripps, 16 Jur. T83, 2 Rob. 563. (m) Cheese v. Loveioy, 2 P. D. 251; ante, p. 131. (X) Re Horsford, L. E. 3 P. & D. 211. (2^) Stephens v. Taprell, 2 Curt. 458; Hobbs v. Knight, 1 Curt. 779. (z) Re Dyer, 5 Jur. 1010; Re Fary, 15 Jur. 1114; Stephens v. Taprell, 2 Cnrt. 458; Re Beavan, ib. 369; Re Rose, 4 No. Cas. 101; Re Brewster, 29 L. J. Prob. 69, 6 Jur. N. S. 56. (a) Ee Ibbetson, 2 Curt. 3-37 ; Lushington ». Onslow, 6 No. Cas. 187, 12 Jur. 465. As to this see Re Horsford, L. E. 3 P. & D. 211. (6) Townlev v. Watson, 3 Curt. 761, 8 Jur. Ill, 3 No. Cas. 17. (c) Soar V Dolman, 3 Curt. 121, 6 Jur. 512; Brooke v. Kent. 3 Moo. P. C. C. 334, 1 No. Cas. 99 ; Ee Ibbetson, 2 Curt. 337 ; Re Eeeve, 13 Jur. 370. If there is no evidence what the words were, probate is decreed in blank, Ee James, 1 Sw. & Tr. 238. (d) See Short v. Smith, 4 East, 419. (e) Ee Parr, 1 Sw. & Tr. 56, 29 L. J. Prob. 70, fi .Tur. N. S. 56; Re Harris, 1 Sw. & Tr. 536, 29 L. J. Prob. 79. See also p6v Sir W. Grant. 7 Ves. 379: and Hale ». Tokelove. 2 Rob. 318, 14 Jur. 817, noticed post; Re M'Cabe, L. E. 3 P. & D. 94; Ee Bedford, 5 No. Cas. 188, is contra. Set/ qu. 1 Where a will twenty-five years old has being partly torn and worn away, the question been found in a barrel of waste papers after whether it was destroyed by the testatrix is the death of the testatrix, the instrument for the jury; and evidence may be given of 173 *143 EEVOCATIOSr OF WILLS Striking a pen through the gift to a legatee, though not now a suffi- cient revocation of a legacy, and not to be noticed in the probate, ggjj^j y may nevertheless not be altogether without use ; for proved by *143 * where the testator has paid a sum in his lifetime Iteration. ^^ y^^ legatee, it seems that the fact of the gift being struck out in the original will would be received as evidence that the payment was intended to be in satisfaction of the legacy (/) ; and the Court of Probate has sometimes granted a fac-simile probate of the will containing interlineations, or parts of the will struck through ; and the Court of Construction has then considered the alterations as made be- fore execution, and therefore effectual. "Where this is really so, the duty of the Court of Probate, at all events since the Judicature Act, 1873, would seem to be to grant probate of the will as altered, in the same way as if the alterations had been referred to in the attestation clause (g). With respect to a will executed before 1838, the question whether it _. . . is revoked or altered by any act apparent on the face of it as to acts done on or after that date, as by erasure, obliteration or acte*not*ap^^ interlineation, must be determined bj' reference to the pro- parent on the visions of the act 1 Vict. c. 26 (A) ; but, as has been before noticed, the question whether it is revoked bj' any act not apparent on the face of it, and done on or after that date, must be deter- mined with reference to the law as it stood before the act (i). Where obliterations and interlineations appear on the face of a will, _ .. and there is no evidence (k) to show when they were made, Presumption ^ ' j i when alter- the presumption IS that they were made after the execution ationismade. ^f ^he will® ; ^ and if there be a codicil to the wiU, which (/) Twining v. Powell. 2 Coll. 262. (a) Gann v. Gregory, 3 D. M. & 6. 777; Shea ». Boschetti, 18 Jur. 614, 23 L. J. Ch. 652. (A) Re Uvock, 1 durt. 906; Hobbs v. Knight, ib. 768; Brooke v. Kent, 3 Moo. P. C. C. 334, 1 No. Gas. 93 ; Croker v. Mavouis of Hertford, 3 Curt. 468, 7 Jur. 262, 4 Moo. P. C. 0. 335 ; and see Andrews v. Turner, 3 Q. B. 177. (i) Supra, p. 129, and cases in last note. (k) As to the nature of the evidence necessary, see Keigwin ». Keigwin, 3 Curt. 607. 7 Jur. 840; Ke Jacob, 1 No. Gas. 401; Re Hindmarch, L. R. 1 P. & D. 307; Re Treeby, L. R. 3 P. & D. 242. Generally declarations of the testator are admissible for this purpose, whether made before or at the time of the execution of his will, Doe d. Shallcross v. Palmer, 16 Q. B. 747; Re Hardy, 30 L. J. Prob. 142; Re Sykes, L. R. 3 P. & D. 26; Dench v. Dench, 2 P. D. 60. But not those made afterwards. Doe d. Shallcross v. Palmer, supra; nor is it enough that the alterations bear earlier date than the will, Ee Adamson, L. R. 3 P. & D. 253. il) Cooper V. Bockett, 4 Moo. P. C. C. 419, 10 Jur. 931; Simmonds e. Rudall, 1 Sim. N. S. 115; Burgovne v. Showier, 1 Rob. B, 8 Jur. 814, 3 No. Cas. 20; Re Thompson, 3 No. Cas. 441; Gann i. Gregory, 3 D. M. & G. 777; Doe d. Shallcross v. Palmer, 16 Q. B. 747; Re James, 1 Sw. & Tr. 238"; Re White, 30 L. J. Prob. 55, 6 Jur. N. S. 808; Williams v. Ash- ton, 1 J. & H. 115. Where a will is dated before the late act it seems that unattested altera- tions in it will also be deemed to have been made before that act. Ee Streaker, 4 Sw. & Tr. 192, 28 L. J. Prob. 50. And see Banks ». Thornton, 11 Hare, 180. But such presumption was not made where the obliteration would have worked a total revocation. Benson v. Ben- son, L. E. 2 P. & D. 172. the declarations of the testatrix made after alteration, in the absence of evidence, was the execution of the will. Lawyer v. Smith, laid down in Wikoff's Appeal, 15 Penn. 8 Mich. 411. See Patterson D.Iiickey, 32 Ga. St. 281, but apparently without examination 156. of the authorities. The rule laid down in 1 A contrary rule concerning the pre- the text, that it must bo presumed that the sumption as to the time of an obliteration or alteration, obliteration, or interlineation was 174 BY BURNING, CANCELLING, ETC. *144 codicil takes no notice of them, the presumptibn is, that they * were made after the date of the codicil (m). And the same *14:4 presumptions hold regarding mutilation («). But where a will has been drawn with blanks left, e. g. for the names of the legatees and the amount of the legacies, which blanks are afterwards filled up, but there is no evidence to show when, the presumption is that the blanks were filled in before execution. And although there may have been no blanks, but the names of the legatees are found interlined, yet if the interlineation only supplies a blank in the sense, and appears to have been written with the same ink and at the same time as the rest of the will, the court will conclude that it was written before execution (o). In Birch v. Birch (/»), where some blanks were filled in with black ink and others with red, it was presumed that the additions in black ink were made before execution, but that those in red ink were made after execution, the envelope in which the will was found appearing to have been sealed, opened, and resealed. (m) Liishington v. Onslow, 6 No. Cas. 183, 12 Jur. 465 ; Rowley v. Merlin, 6 Jar. N. S. 1165 ; and compare Re Mills, 11 Jur. 1070. (re) Christmas e. Whinyates, 32 L. J. Prob. 73. (o) Re Cacl!?e, L. R. 1 P. & D. 543. (p) 6 No. Caa. 581. subsequent to the execution of the will (for which Greville i). Tylee, 7 Moore, P. C. 320, is a further authority) may rest upon either of two grounds, or indeed unon both of them. According to the current of authority (in oppo- sition to a few decisions, see ante, p. 38. note) proof of a will stands upon a different footing from the proof of a deed ; and a substantive burden rests upon the proponent of the former to prove it. If, then, there be any indication of change of purpose on the part of the testator, as by alterations apparently unattested, it devolves upon the proponent relying upon" such alterations to show that the will was changed at or before its execution. The will of course is not rendered invalid (except in so far as it may have been made illegible and no satisfactory evidence of the original language is adduced) by the subsequent alteration. Wheeler «. Bent, 7 Pick. 61. Cooper V. Bockett, 4 Moore, P. C. 419, 452. The other ground for the presumption of subsequent alteration arises from a considera- tion of the ambulatory nature of wills. Un- like a deed, a will lies dormant and is sub- ject to change at any time during the life of the testator; and as it is common for testa^ tors to change their wills after execution, it is deemed a fair presumption that unattested alterations or interlineations were made after tlie completion of the instrument. Greville ». Tylee, 7 Moore, P. C. 320. This presump- tion, however, which at best has a slender basis, would of course give way to evidence that the will had not been in the testator's possession since its execution. But the first one would still prevail. And as to that ground, it may be remarked that it is held by some of the authorities that in the case of a promissory note containing an apparently material alteration, the burden is upon the plaintiff offering the paper to show that it was altered before execution and delivery. Ely ». Ely, 6 Gray, 439; Wilde e. Armsby, 6 "Cush. 314. See also Simpson v. Davis, 119 Mass. 269 ; Willett ». Shepard, 34 Mich. 106 : Atwood i). Cornwall, 25 Mich. 142. But the authorities are not agreed upon this sub- ject. Bigelow's Bills and Notes, 581. As to alterations of a will by the testator, made after its execution, see further Jaclison v. Holloway, 7 Johns. 394; Locke v James, 11 Mees. & W. 901; Wright v. Wright, 5 Ind. 38). It has been said that an alteration in a will made by a person claiming under it, whether material or immaterial, renders it void. Jackson v. Malin, 15 Johns. 297, 298, per Piatt, J. An immaterial alteration, how- ever, made in a will by a stranger, will not destroy it, Malin «. Malin, 1 Wend. 625; and it is clear that a material alteration made by a stranger, without the privity of a party interested, will not have that effect. Where an alteration has been improperly made in a will, by a person not duly autho- rized to make such alteration or addition, a court of probate will order the interpolated part to be struck out, and the residue of the instrument will be probated. Wood V. Wood, 1 Phillim. 357. In states where holograph wills are valid without attesta- tion, any alterations m'de by the testator in such a will, by striking out or adding, will be valid. Cogbill v.. Cogbill, 2 Hen. & M. 467. 175 *145 REVOCATION OP WILLS The stat. 1 Vict. c. 26 appears not to have done away with the pre- __ , sumption made by the old law that the destruction of a will 1 Vict. c. 26, was an implied revocation of a eodicU thereto (q). Lord dMtroved''* Penzance has indeed held otherwise, on the ground that but not the sect. 20, enacting that " no will or corfjiciY shall be revoked codici . otherwise than " by certain specified methods, plainly ex- cludes the method in question (r). But, in Sngden v. Lord St. Leon- ards («), a demurrer depending for its validity on this view of the statute, was formally (though without argument) overruled by Sir J. Hannen. It is far from clear that the act forbids a codicil being, to the same ex- tent as before, treated as part of, or accessory to, the will ; or that the express mention of " codicil " does more than require, where it is the substantive subject of revocation, that it be revoked by one of *145 the specified methods (<). * Perhaps, however, the point is not of much importance. The presumption already stated was never a strong one, even under the old law, and the question whether the codicil was revoked or not always depended, and (supposing the pre- sumption to continue) will still depend, mainly upon the contents pf the codicil (m), and the effect of the evidence adduced to rebut the pre- sumption («). Upon the 21st section it has been decided in a case where a testator Alteration not Mside some alterations in his will, and he and the attesting duly attested witnesses traced over their former signatures with a dry pen, names witii and the witnesses put their initials in the margin opposite to dry pen. ^jje several alterations, that the alterations were not duly executed (w). The initials did no more than identify the alterations, they were not written with the intention of attesting the testator's sig- nature ; for it was erroneously supposed that this had been effectually done by tracing the former signatures with a dry pen. The 22nd section abolishes] the rule which gave to the revocation of Kule as to ^ posterior will the effect of reviving a prior testamentary revival of a instrument, which such posterior will, if it had remained in revocation ^ force, would have revoked : and it is immaterial in such case 4No. ( , See per Sir H. FustjCloKstoun v. Waleott, 5 No. Cas. 623, 12 Jur. 422, Re Halliwell, t 111.. Cas: 400, 9 Jur. 1042: followed by Sir C. Cresswell, Grimwoodu. Cozens, 2 Sw. & Tr. 364, 6 Jur. N. S. 497; Re Dutton, 3 Sw. & Tr. 66, 32 L. J. Prob. 137. In CloRstoun «. Wal- cott, the judge is made to observe, as if it were a new requirement, that the statute expressly requires "an intention to destroy." But the animus revocandi vfas previously required by necessary intendment of law: {'' destroy " is here an obvious oversight for " revoke.") (r) tilack V. Jobling, L. R. 1 P. & D. 686; Re Savage, L. R. 2 P. & D. 78; Ee Turner, ib. 403. («) 1 P. D. 154, 206. (() Whether under the old law the presumption existed with respect to codicils dealing with freehold land appears never to have been decided. Tlie Statute of Frauds, sect. 6, does not, for this purpose, differ materially from 1 Vict. c. 26, s. 20. (m) So imperative did Lord Penzance consider the act to be, that even where the codicil was unintelligible without the will (the contents of which were unknown), he held himself bound to admit the codicil to probate and leave the question of its operation to the Court of Construction, Re Turner, L. R. 2 P. & D. 403. But since the Judicature Act, 1873, the whole matter must, it would seem, be disposed of in the Probate Division. (») In Ciogstoun v. Wolcott and Re Halliwell, the codicils were held not to be revoked. See also Re Ellice, 33 L. J. Prob. 27. (m!) Ee Cunningham, 1 Searle & S. 132, 29 L. J. Prob. TL 176 BY BUBNING, CANCELLING-, ETC. *146 whether the posterior will owed its revoking efficacy to an of a later express clause of revocation contained in it, or to mere in- '^''°'"*'><"l- consistency of disposition (x). [In either case, sect. 22 permits the prior wiU. to be revived by one of two means only : the testator must re-execute the will, or he must make and duly execute a codicil showing an intention to revive the will. Even if he destroys the pg^oj g,,;. second will for the express purpose of setting up the first, dence inad- he fails in his object ; for parol evidence of his intention is show inten- not admissible in order to give effect to that object (y), tion to revive. though it is admissible to prove that the destruction was eifected under a mistake, and consequently to prevent the revocation of the destroyed will (z).i * "Where a will was found with the signature cut off, but *146 gummed on again, it was held that it was not duly re-exe- cuted (a). Nor does a codicil show an intention within the ^!JxegJi^on . meaning of the section to revive the earlier of two wiUs, by being physically annexed to it. The intention must appear ~ ^ '^'' ° ' by the contents of the codicil (li). And the intention so appearing to revive one will cannot be corrected b}- parol evidence that the draughts- man made a mistake, and that the testator intended to refer to and revive another (c). By sect. 34, it is provided that the act " shall not extend to any will made before 1838." Now if the first of two inconsistent . — where pnor wills be made before 1838, and the second be destroyed after will made that date, does sect. 22 extend to the case so as to prevent ^ ""^'^ ' revival of the first will? Though revived, it would not be repub- (x) Brown v. Brown, 8 Ell. & Bl. 876 ; Hale v. Tokelove, 2 Rob. 318, 14 Jur. 8X7; Boul- cott y. Boulcottj_2 Drew. 25. [(j) Major ». 'Williams, 3 Curt. 432, S. C. nom. Major v. lies, 7 Jur. 219. (2) Powell V. Powell, L. R. 1 P. & D. 209. And the contents of the destroyed (or lost) will mav be proved bv parol. Brown v. Brown, 8 Ell. & Bl. 876 ; Woodti. Wood, L. R. 1 P. & p. 303. The remarks contra in Wharram v. Wharram, 3 Sw. & Tr. 301, 33 L. J. Prob. 75, are unfounded, Sugden v. Lord St. Leonards, 1 P. D. 239. But such evidence must show clearly that the contents of the second will were such as to revoke the first. It is not enough to prove that the lost will contained the words " this is the last will and testament'." Cutto v. Gilbert, 9 Moo. P. C. C. 131, cited again with others to the same effect, post, s. 5. (a) Bell V. Fothergill, L. R. 2 P. & D. 148. On the question whether such an intentiofl is shown by the contents, see the close of this chapter. (J) Marsh v. Marsh, 1 Sw. & Tr. 528, 6 .Jur. N. S. 380. 30 L. J. Prob. 77. (c) Walpole V. Cholmondely, 7 T. R. 138; Re Chapman, 8 Jur. 908, 1 Rob. 1. But see Quincejr v. Quincey, 11 Jur. Ill, 5 No. Cas. 154. These cases properly come under the head of admission of parol evidence, in aid of the construction of a will; see accordingly Ch. XIII. post, where they are treated of. 1 A will which the testator has once can- position that he has executed a subsequent celled or destroyed cannot be set up again by valid will, which proves invalid, that the act reason of the defective execution of a subse-* of revocation is held incomplete." 'Under quent will. Banks v. Banks, 65 Mo. 432. And the statutes of Missouri, and probably by the tnis is perhaps true, though the second instru- common law, the expression by the testator ment be a copy of the first. Compare Onions of an intention to revive a former well-exe- V. Tyrer, 2 "Vern. 741 ; Hyde v. Hyde, 1 Eq. cuted will, upon the destruction of a later Cas. Abr. 409. But see 1 Redfield, Wills, one, operates to revive the first. Beaumont 308, where it is said : " It is only where the v. Keim, 50 Mo. 28. testator revokes a former will upon the sup- VOL. I. 12 177 *147 EEVOOATION OF wnj-s lished (d). It would therefore take effect wholly under the old law, and derive no virtue from the new. However, in Diekinson v. Swat- man (e), the argument for revival was considered untenable. The concluding words of sect. 22, " unless a contrary intention shall „ , . 6e sAoiora," deserve notice. Elsewhere in the, act, the phrase Parol 6vi- dencewhen "unless a contrary intention shall appear hy the vnll" fre- determine* '° quently occurs. But here the means of proof are not pointed extent of re- out. An intention, therefore, to revive the whole of a wUl, revocation™ wMch has been first partly and then completely revoked, has been by may be shown by anj' means allowed by general principles^ ^^' These principles would exclude parol evidence to explain a written document, i.e. a codicil (if that were the means of revival chosen) ; but would admit it in order to show quo animo the bare act of re-execution was done (/).] Destruction *147 * It is observable that both the Statute of Frauds presence of aud the act 1 Vict, require that the destruction should tiie testator, jjg made in the presence and by the direction Of the testa- tor : and therefoire [a testator cannot revoke his will by authorizing any person to destroy it after his death (^r) : and if in such case the will should be destroyed, its contents might be proved aliunde (A).] Section III. By Alteration of Estate. Under the old law it was essential to the validity of a devise of free- 1. Under tiie bold lands that the testator should be seised thereof at the old law. making of the will, and that he should continue so seised without interruption until his decease.^ If, therefore, a testator, sub- id) E. P, C. Fourth Report, p. 33. (e) 4 Sw. & Tr. 205. (/) See Upiillt). Marshall, T.Iur. 819. On the question whether a "contrary intention " is shown b}' the contents of a codicil, see the close of this chapter.] Kg) Stockwell «. Rithcrden, 6 No. Gas. 414, 12 Jur. 779. (h) Re North, 6 Jur. 664.] 1 In regard to the revocation of specific a cup or the wool into cloth, or make the bequests of personal property by ademp- piece of cloth into a garment, the legacy tion, the general rule is, that in order to shall be adeemed. Ashburner v. Macguire, complete the title of a specific legatee to 2 Bro. C. C. 89 ; Walton v. Walton, 7 Johns, his legacy, the thing bequeathed must, at Ch. 262; White v. Winchester, 6 Pick. 48; the death of the testator, remain in spe- Hayes v. Hayes, 1 Keen, 97 ; Humphreys «. cie as described in the will ; otherwise the Humphreys, 2 Cox, 184. It must, however, legacy is considered as revoked by ademp- ^be observed, that tne rule of ademption does tion. For instance, if the legacy be of a spe- not apply to demcmstratim legacies ; i.e. to cilied chattel in possession, as of a gold chain legacies of so much money witli reference to or a bale of wool, or a piece of cloth, the leg- a particular fund for payment, as, for in- acy is adeemed, not only by the testator's stance, legacies given out. of a particular selling or otherwise disposing of the subject stock or debt or term. Although the par- in his lifetime, but also if he should change ticular fund be not in existence at the testa- its form so as to alter the specification of it; tor's death, the legatees will be entitled to as if he should convert the gold chain into satisfaction out of the general estate. Wsi- 178 BY ALTERATION OF ESTATE. *147 sequently to his will, by deed aliened lands, whiGh he had disposed of by such will, and, afterwards, acquired a new freehold estate in the same lands, such newly acquired estate did not pass by the B„a<,„uis;. devise, which was necessarily void.^ The devise of a free- tion of new- hold lease, which was renewed by the testator subsequently ^^^*^- to the will, was evidently in this situation (i). [But the alteration of a contingent remainder or of a contingent executory interest Not by Into a vested remainder by the happening of events on contilffeut'to which such remainder was originally limited to vest was not vested. such an alteration as worked a revocation, the will acting on the origi- nal interest in its new form (i).J A revocation by alienation may be either partial or total." A simple case of partial revocation occurs where a testator, having partial devised lands in fee, demises the same lands to a lessee for alienations. lives or for j-ears, either at a rent or not, in which case the lease revokes or subverts the devise pro tanto, by withdrawing the demised (j) Marwooa c. Turner, 3 P. W. 163. [(4) Jackson v. Hurlock, 2 Ed. 263 ; stated on this point, ante, p. 48, n.] ton V. Walton, 7 Johns. Ch. 262. If a debt specitically bequeathed be received b}' the testator, the legacy is adeemed; because the subject is extinguished, and nothing remains to which the words of the will can apply. Badrick i>. Stevens, 3 Bro. C. C. 358, 1 Rop. Leg. 17; Rider v. Wager, 2 P. Wms. 328, 331; Barker v. Rayner, 5 Madd. 208; Tip- ton V. Tipton, 1 Coldw. 2o2; Walton v. Wal- ton, supra. So a partial receipt by the tes- tator of the debt specifically bequeathed will operate as an ademption pro tanto. Ash- burner I'. Macgiiire, supra ; Frver v. Morris, 9 Ves. 360 ; Hoke v. Herman", 21 Penn. St. 301. So where stojk is specifically be- queathed, and it does not exist or exists only in part at the testator's death, the legacy will be either totally or partially adeemed, as the case may be. Ashburner v. Macguire, supra; White v. Winchester, su- pra. Where a testator bequeathed a certain amount of stock in a particular bank, he being the owner, at the time of making his will, of the exact amount of stock be- queathed, it was held to be a specific leg- acy, and a sale of it before his death was decided to be an ademption. White v. Winchester, supra. TJie mere change, how- ever, by a testator, of the form of an invest- ment appointed by his will by virtue of a power does not operate as an ademption of the legacy. The fund does not cease to be the fund subject to the power bv being in- vested in a different securitv. In re John- stone's settlement, L. R. U Ch. D. 162, doubting Gale i\ Gale, 21 Beav. 3+9. See also post, p. 155; Walton v. Walton, 7 Johns. Ch. 265; Brown v. M'Guire, 1 Beat. 358. Of course there is no ademption where the change has been made without the au- thority of the testator. Shaftsbury v. Shafts- bury, 2 Vern. 747. Ademption of a general legacy by reason of advancements is pre- sumed only where the sum given is equal to or greater than the legacy, and is not contin- gent, and is ejusdem (/eneris with the legacy, and nothing appears to show that it is to be treated as additional. Clendening v. Clymer, 17 Ind. 155. The doctrine of ademption by advancements, it should be observed, has no applicatipn to specific legacies or to devises of land, Weston v. Johnson, 48 Ind. 1; or to residuary legacies, Clendening. v. Clvmer, 17 Ind. 155. See Gray v. Bailey, 42 Ind. 349. 1 The English common-law doctrine con- cerning revocation by alteration of estate went to an extreme which Lord Mansfield, while considering himself bound bj' it, once declared to be absurd and even shocking. Doe V. Pott, 2 Doug. 709. See Goodtitle r. Otwav, 7 T. R. 395 ; Woolery v. Woolerv, 48 Ind. 5'23, 525. Under the Stat, of 1 Vict. c. 26, all that appears to be requisite is that the testator kt the time' of his death shall be seised of substantially the same estate as that of which he was seised at the time he made the will. Woolery v. Woolery, supra. And this is the general law in this country. 2 A will is not revoked in tola by a subse-, quent deed unless the deed conveys all the estate devised. Wells- v. Wells, 35 Miss. 638; Brown v. Thorndike, 15 Pick. 388; Hawes «. Humphrey, 9 Pick. 350; Brush w. Brush, 11 Ohio, 287; Carter v. Thomas,' 4Greenl. 341; Skerrett v. Burd, 1 Whart. 246; M'Rainv v. Clark, 2 Tayl. 278; Mc- Taggart ». 'fhompson, 14 Penn. St. 149. But if all the estate devised be sold, the gift by will is revoked, whether it was general or specific, and whether of real or of personal es- tate. McNaughton v. McNaughton, 34 N". Y. 201. The same is true in case the testator sell so great a part of the estate devised that it is impossible to give effect to the particular disposition of the will. In re Cooper, 4Barr, 179 *148 KEVOCATION OP WILLS interest from its operation (J), but the devise is no further disturbed ; and, consequently, the devisee would, even under the old law, stQl take the inheritance, subject to the term, and, as incidental thereto, the *148 rent, if any, reserved by the * lease (m). So, if a testator, after devising lands in fee, conveys them by deed to the use of him- self for life, with remainder to the use of his wife for life, as a jointure, without disposing of or in any manner assuming to convey the inheri- tance, the convej'ance would revoke the devise joro tanto, and the rever- sion in fee, expectant on the decease of the testator's wife, would pass under it to the devisee. In both the preceding examples, it will be perceived that the conveyance is not only partial in its object, but in its operation ; it does not for a moment disturb the testator's seisin of [or his estate in] the inheritance, and, therefore, can have no revoking effect beyond the estate which it substantially alienates and vests in another person.' Consistently with this' principle, it is clear that («) where a testator by his will charges his lands with an annuity, and afterwards demises them for a term of jears at rack rent, the devise is revoked so far as to deprive the devisee of his legal power of distress while the tenancy lasts (o), but no further ; and the annuitant would be entitled in equity, during the suspension of his power of distress, to have the rent, or an adequate portion of it, applied in satisfaction of the annuity. Where, however, the conveyance subsequent to the devise, though Eevocation made for a partial purpose, embraces the entire fee-simple, aucesln&e- *"" ^^^ whole estate of freehold which is the subject of the simple. devise, the rule, under the old law (with some considerable exceptions presently noticed), is, that the conveyance, though limited in its purpose, and though it instantly revests the estate in the testator, produces a total revocation.'' Thus, if a testator on his marriage, in order to secure a jointure rent-charge to his intended wife, conveys lands (which he had by a will made before 1838 devised in fee) to the use of trustees for a term of years, for securing the jointure, and then (?) Hodgkinaon v. Wood, Cro. Car. 23; Parker «. Lamb, 2 Tern. 495, 3 B. P. C. Toml. 12. [(m) A fortiori, since 1 Vict. c. 26, Barr.« v. Lea, 33 L. J. Cli. 437, where on a mining lease it was unsuccessfully argued that certain sums payable half yearly were not rent but purchase-money for the minerals, though payable bv instalments; as to which, see further Brook V. BadleV, L. R. 4 Eq. 106 ; and compare Re Mary Smith, L. R. 10 Ch. 79.] (ra) Parker v. Lamb, 3 B. P. C. Toml 12. (o) This shows the advantage of limiting a term to trustees for securing the annuity, which would entitle them, as the immediate reversioners, to the rent. 88. A conveyance by deed of trust of prop- 2 Ves. (Sumn. ed.) 417, and note (b); Liv- ertv devised will not revoke the will by the ingston v. Livingston, 3 Johns. Ch. 155. law of Virginia. Hughes v. Hughes, 2 lilunf. 2 4 Kent, 228; Adams v. Winne, 7 Paige, 209. So in Pennsvlvania, Clingan 1). Mitch- 97: Bosley v. Boslev, 14 How. 390; Bowen eltree, 31 Penn. St. 25. So in Alabama, ». Johnson, 6 Ind. 110. If the testator con- Stubbs V. Houston, 33 Ala. 555. So, it veys the estate devised, though he takes it seems in Indiana, Woolery v. Woolery, back again by the same instrument, or other- 48 Ind. 523, 526. ' 'wise, it is a revocation in law and in equity; 1 See Brydges v. Dacheas of Chandos, even though he did not intend to revoke his will. Walton v. Walton, 7 Johns. Ch. 258. 180 BY ALTERATION OF ESTATE. *150 goes on to limit the fee-simple to the use of himself in fee, the latter limitation will revoke the devise in toto (p). * This doctrine, however, does not apply to copy- *149 . holds. Thus, where A., who was seised in fee of veyancesof freehold and copyhold estates, devised them by his will "=°Py''°l'i^- (made before 1838), and subsequently conveyed the freeholds to the use of himself for life, with remainder to the intent that B., his intended wife, should receive an annuity of 300Z. for her life, by way of jointure, and subject thereto to trustees for ninety-nine years, upon trusts for securing the jointure, and subject thereto to the use of A., his heirs and assigns forever. At the same time the testator surren- dered his copyhold lands to the same uses ; and it was held that the devise (though clearly revoked, as to the freeholds, bj' the conveyance of them) was not, as to the copj'holds, affected bj' the surrender be3-ond the particular estates ; on the ground that, according to the doctrine of Thrustout v. Cunningham (q), the fee-simple of the testator was not disturbed or interrupted by the surrender of the ultimate inheritance to the use of himself (r). Where the convej-ance of a freehold estate, has no limited or definite object, or is made for a mistaken or unnecessary purpose, conveyances and though its whole efiect is instantly to revest the prop- for amis- erty in the testator himself, who is in of his old estate, yet necessary the momentary interruption of the testator's seisin, thus pii'pose. occasioned, produces a complete and total revocation of the previous devise. Thus if a testator, seised in fee of Blackacre, having by a will made before the year 1838, devised such land by name, or all his lands generall}^, to B. in fee, afterwards by lease and release, or any other assurance, conveys Blackacre to the use of himself for life, remainder to the use of his own right heirs, the conveyance, though it makes no actual change in the testator's estate, will revoke the devise in toto (s). But where the momentary interruption of the testator's seisin is occasioned, not by any act of the testator himself, but by the Tortious tortious act of a stranger, the devise, even under the old "'"^tion- law, was not affected. As where a testator was disseised subsequently to the making of his wiU, and afterwards re-entered, the entry restored the original seisin, and bj' relation the disseisee was considered to have been seised ab initio, so that his devise remain unrevoked (t.) * But if the disseisee were out of possession at the time of making *150 his will," or at his death, the devise would be inoperative (u). (p) Goodtitle v. Otway, 2 H. Bl. 516, 1 B. & P. 576, 7 T. R. 399, 2 Ves. Jr. 606, n.; Cave «. Holford, 3 Ves. 650. 7 B. P. C. Toml. 593; see also Vawser v. Jeffrey, 16 Ves. 519, 2 Sw. 268; [Briggs v. Watt, 2 Jar. N. S. lOil; Walker v. Armstrong, 21 Be"av. 284, 8 D. M. & G. 531: Power v. Power, 9 Ir. Ch. Rep. 178.] (j) 2 W. Bl. 1046, Fea. C. R. 68. (r) Vawser «. .leffery, 3 B. & Aid. 462, 3 Russ. 479. (s) Burgoigne v. Fox, 1 Atk. 575. See also Darlev v. Darley. 3 Wils. 6, Amb. 653, S. C. nom. Darlev v. I.angworthy, 3 B. P. C. Toml. 359 ; flarmood v. Oglander, 8 Ves. 106 ; [Spar- row V. Hardcastle, 3 Atk. 798.] (t) Bunter v. Coke, 1 Salk. 237; Att.-Gen. v. Vigor, 8 Ves. 282. [(u) Vin. Ab. Dev. R. (6), pi. 1.] 181 *151 BBVOCATrON OF WILLS So, where a man made his will, devising lands, and then exchanged Exchanges, those lands for others, and died ; if the exchange were vacated subsequently to the testator's death in consequence of a defect in the title, or in the aliening capacity of the other party, this did not revive the devise (a;). As equity follows the law, the same general principles which governed Revocation ^^ revocation of devises of legal estates were held to apply of devises to devises of equitable interests. The devise of such an interests by ' interest, therefore, was liable to be revoked bj' a convej-- conveyance., I ^nce similar to that which would have revoked a devise at law. Thus in Earl of Lincoln's case (y), where a testator devised landSj then mortgaged them in fee, and afterwards, in contemplation of marriage, conveyed the devised lands to the use of himself and his heirs, until the intended marriage, and after such marriage to other uses, though the marriage did not take* eflSect, yet the devise was held to be revoked. So, in Lock v. Foote (z), where A. devised estates, of which he had only the equitable fee, and afterwards agreed to sell part of the estates, and to remove an objection to the title advanced by the purchaser (but which was not well founded) ; he suffered a recovery of the whole ; it was held that, though the recovery was an equitable one, and the particular purpose for which it was suffered was mentioned in the recovery deed, and though the uses thereby declared of the prop- erty not intended to be sold were precisely the same as those which subsisted before the recovery, which was expressed to be in restoration and confirmation of those limitations, the devise was revoked. The rule that a conveyance in fee of freehold lands,- executed for a partial purpose, revokes ^ a will made before the year 1838 admits of Partition no two exceptions. The first is in the case of a partition, revocation, between tenants in common, or coparceners, which, by what- ever kind of assurance effected, does not, even at law,- revoke a prior devise, provided the conveyance be confined to the object of the parti- tion, merely assuring to the testator in the lands allotted to him in severalty an estate precisely correspondent to that which he pre- Mannerof viously had in his undivided share (o).^ [The partition may ji-jgj * manner in which the partition is made might, how- cause revoca- ^ ^ ' tion. ever, have revoked the devise ; as if a testator hav- (a;) Att.-Gen. v. Vigor, 8 Ves. 256. (y) Sho-w. P. C. 154, 1 Eq. Ab. 411^ pi. 11 ; [in the latter report, the mortgage' is stated to have been previous to the ivflli but this makes no difference in the principle established by ■the case.] See also Pollen v. Huband, 1 Eq. Ab. 412, 7 B. P. C. Toml. 433. (z) 5 Sim. 618. (a) Luther ». Kidby, 3 P. W. 169, n., 8 Vin. Ab. 148, pi. 30; Eisley v. Baltinelass, T. Kaym. 240 ; Webb », Temple, 1 Freem. 542; [Barton ». Croxall, Taml. 164. In Grant v. Bridger, L. Hj 3 Eq. 347, it was attempted to bring within these authorities a case where commoners, after devise, joined with the owners of the soil in conveying the land to trustees, and took back shares of the land in severalty, but, of course, unsuccessfully. 1 See Brydges v. Duchess of Chandos, and then made partition. The estate was 2 Ves. 417 ; Barton v. Croxall, Taml. 164. then conveyed as to one part to a trustee to A testator devised his moiety of an estate, the use of the testator in fee ; and a mortgage 182 BY ALTERATION OF ESTATE. *152 ing an undivided share of lands in A. and B. devise all lands in A., and upon partition lands in B. only are allotted to him ; in such case nothing passed bj^ the devise (6).] The other and more considerable exception is, where a testator, subsequently to his will, makes a mortgage of the devised lands, which, it is said, revokes the will in equity, pro tanto only(e).> To designate a mortgage a revocation pro tanto, however, was inac- curate, and tended to create an erroneous impression of its Mortgaffe actual effect on the rights of the persons claiming through inaccurately the testator ; for the phrase might seem to import, that the ocation i^ro transaction was viewed in the light of an intentional with- *™*''- drawal by the testator of his bounty to the extent of the mortgage, in which case, the devisee would have taken the property cum onere, as against not only the mortgagee creditor, but also as against the tes- tator's own representatives, in the same manner as if the testator had created the charge by his will ; but this was not the case, for unless a contrary intention appeared, the devisee, it is well known, was entitled to have the estate disencumbered out of the personal estate of the tes- tator not speciiically bequeathed (d). It was a perversion of language, therefore, to call a mortgage a revocation pro tanto ; in short, the term is very inaptly applied to any cases in which the devise is defeated by the testator's subsequent disposition by deed of the devised property, which are all examples of, ademption, rather than of revocation. In applying the doctrine, that a mortgage effects a partial revocation only, it is immaterial whether the testator had the Jegal estate, or was equitable owner only (e) ; whether the mortgage conveyance was made by fine, or any other mode of assurance (/) ; whether the mort- gagee were the devisee himself {g), or a stranger ; * and whether *152 tiie estate of the mortgagee were to vest in possession immedi- ately on its 'execution, or not until the death of the mortgagor Qi). (b) Knollys v. Aloock, 5 Ves. 648, 7 Ves. 558. Conlpare Phillips v. Turner, 17 Beav. 194.] (c) Hall 0. Bench, [1 Vem. 329, 342; Butin] 2 Ch. Rep. 54 [the ground of the decision is stated to be that the will was republished;] Perkins v. Walker, 1 Vem. 97. (d) Warner v. Hawes, 3 B. P. C. Toml. 21. {^8ecus since 17 & 18 Vict. o. 113. (e) Jackson®. Parker, Amb. 687.] . if) Rider v. Wager, 2 P. W. 334; Jackson ». Parker, Amb. 687. (o) Peach v. Phillips, Dick. 538 ; Baxteri;. Dyer, 5 Ves. 666, overruling Harkness ». Bay- ley, Pre. Ch. 514. (A) Cro. Car. 23. tenn, created by the co-tenant on his moiety 266; Partridge ». Partridge, Gas. temp. Talb. was assigned to attend the inheritance, and 226; Brown D.M'Guire,l Beat. 358. See also this was held not to be a revocation of the Basan v. Brandon, 8 Sim. 171. Where the will. Bartoni). Croxall, Taml. 164. Parti- change was made without the knowledge of tion is considered a special case. Each party the testator, see Ashbumer v. Macguire, can compel the other to make it. See Att.- 2 Bro. C. C. 108. Gen. V. Vigor, 8 Ves. 281; Ward v. Moore, i 4 Kent, 530. Where a testator pawns or 4 Madd. 368; Rawlins v. Burgis, 2 Ves. & B. pledges an article specifically bequeathed, a 382. The act of partition therefore furnishes ' right of redemption is left m him, and passes no evidence of an intention to revoke. No to the legatee at his death ; so as to enable other change inthe estate, by statute or opera- him to call on the executor to redeem, and tion of law, will work a revocation or ademp- deliver it to him. Ashburner v. Macguire, tion. Walton v. Walton, 7 Johns. Ch. 265, 2 Bro. C. C. 89. 183 *153 EBVOCATION OP WILLS Upon the same principle, a convej-ance in trust to sell for the pay- Conveyance '^^^^ of debts, was held, under the old law, not absolutely upon trust to revoke a previous devise of the property so conveyed (i),* "1' sa e. even though it were accompanied by a declaration that the surplus proceeds of the sale should be held in trust for the grantor, his executors and administrators [provided, however, that such convej-- ance had for its object the payment of debts only ; the insertion of a further trust, as the payment of an annuitj- to the wife of the grantor, would have worked a revocation (k).] Bankruptcy also left a testator's will unrevoked, as to any surplus remaining after satisfaction of the claims of creditors (/) . A mortgage for less than the testator's whole estate, of course, does not, even at law, produce revocation ultra the estate to which it extends. Morto-ages Thus, where a testator, after devising freehold lands by a by demise, ^^m made before 1838, for an estate in fee, demises them by way of mortgage for one thousand years, the inheritance, subject to the mortgage term, passes by the devise, along with the equity of redemp- tion in the term'. But if the partition or mortgage conveyance contain ulterior limita- Deed of tions by which the testator's ownership is varied or modified, partition or it works an absolute and entire revocation. As in the often- witii ulterior cited case of Tickner v. Tickner (m), where by a deed of par- hmitations. tition between two, coheirs of gavelkind lands (one of whom had previously made a will devising his share), the lands allotted to the testator were limited to suck uses as he should by deed or will appoint, and in default of appointment to him in fee ; it was held that by this new limitation of the use, the previous devise of the property was revoked. So, in the case of Kenyon v. Sutton (ra), where a testator executed a Effect of ul- conveyance in trust for the payment of his debts, and it was tenoi' iimita- (jgdared that, after payment of his debts, the trustees should tions m mort- ^ *' gage deeds, convey (not to him Simply in fee), but to such uses as he should by deed or will appoint, and in default, to him in fee, the devise was held to be wholly revoked. Again, in Harmood v. Oglander (o), where A. being owner in *153 * fee of fee farm rents subject to certain marriage articles, whereb}' he had agreed to settle them in strict settlement with reversion to himself in fee, made his will, by which he devised the rents: and subsequently, on borrowing 5,500^. from B. by lease and release, for securing the repayment and barring all estates-tail, &c., conveyed the fee farm rents in question to C, his heirs and assigns, to (i) Vernon v. Jones, 2 Freem. 117, [Pre. Cli. 32, 2 Vern. 241 ;] Earl Temple v. Duchess of Chandos, 3 Ves. 685. [(*) Hodges v. Green, 4 Rnss. 28.] (I) Charman v. Cliarman, 14 Ves. 580. (m) Cit. 1 Wils. 309, and 3 Atk. 742-745, 750. (») Cit. 2 Ves. Jr. 601. (0) 6 Ves. 199, 8 Ves. 106. [See Briggs v. Watt, 2 Jur. N. S. 1041 ; Power v. Power, 9 Ir. Ch. Kep. 178.] 1 Jones ti. Hartley, 2 Whai't. 103. 184 BY ALTERATION OF ESTATE. *154 the intent that a common recoverj' might be suffered ; and it was de- clared that such recovery should inure to the use of B. (the mortgagee) for 1,000 years, subject to redemption, remainder to the testator for -life, with remainder to F. his wife for life, with remainder to himself in fee. The recovery (which, it will be observed, was unnecessary) was never suffered ; but Sir R. P. Arden, M. R., and afterwards Lord Eldon, on appeal, expressed a decided opinion that the devise was revoked, the testator ha-vdng subjected the property to ulterior limitations beyond the purpose of a mere mortgage ; " and considering," his Lordship ob- served, in reference to the authorities, " how very little, in addition to that mere purpose, will revoke." It is clear that if in this case the limitations had been simply to the mortgagee for the term, and subject thereto, to the use of the mortgagor himself in fee, the will would have been revoked, precisely as if without anj^ mortgage the fee had been so limited. So in Hodges v. Green (p), where a testator seised in fee, conveyed certain real estates to trustees, upon trust by sale or mortgage to raise certain mortgage and other debts, and the trustees were to stand pos- sessed of the surplus, in trust for the grantor, his executors and admin- istrators, as personal estate ; and it was provided, that, until a sale, the trustees should apply the rents in payment, first, of the interest on a mortgage debt, and, secondly, of an annuity to the grantor's wife for her separate use ; Sir J. Leach, M. R., held that the will was revoked, not (as had been contended) on account of the direction that the residue of the moneys arising from the sale should be personal estate, which did not varj- the oi^eration of the deed, but on account of the annuity, which might continue after the testator's death. What words introduced into the proviso for redemption amount to an indication of intention to change the equitable ownership, whatexpres- 80 as to revoke a previous devise bj' the mortgagor, is not sions newly clear. The cases abundantly demonstrate that such an in- equity of tention will not be inferred from equivocal expressions, redemption. affording conjecture merelj'. The deed jnust distinctly and ex- plicitly show that the * estate is to be reconveyed to uses dif- *154: ferent from those which previouslj^ subsisted, — a doctrine which seems to agree with the rule establishing, that the interests of a hus- band and wife joining in a mortgage of lands held jure uxoris, are not liable to be varied by the inaccurate terms in which the recouve3-ance is directed to be made (g). Thus in Brain v. Brain (r) , where A. subsequentlj' to his will, by a conveyance by way of security, in consideration of 800/. advanced by B., conveyed lands to trustees in fee, upon trust to permit him (A.) to (j>) 4 Russ 28. (q) Innes v. Jackson, 16 Ves. 356. 1 Bli. 104; [Ruscombe v. Hare, 6 Dow, 1, 2 Bli. N. S. 192; Clarke v. Burgh, 2 Coll. 221; Hipkin v. Wilson, 3 De G. & S. 738.] (r) 6 Madd. 221. 185 *155 ' EEVOOATION OP WILLS enjoy until default of pajinent ; and upon payment of principal and interest, upon trust to reconvey unto and to the use of A., the testator, Ms heirs and assigns, or unto and to the use of such other person or persons, and for such estate and estates, and to and for such lawful trusts, intents and purposes, as A., his heirs or assigns, by any deed or deeds, instrument or instruments, in writing under his or their hand or respective hands, should direct, limit, or appoint, clear of all inter- mediate incumbrances, and, in default of payment, the trustees were empowered to sell; Sir J. Leach, V. C, held, that this was a revoca- tion pro tanto ovA.y. "The true question," his Honor observed, "is, whether, by the addition of the words which follow the direction to re- convey to the devisor and his heirs, he does, in fact, acquire any new estate or power, or whether these subsequent words do not leave him with the same estate, and the same powers, as he would hate had if they had not been used. It is plain, that he who has a right to call upon trustees to convey to himself and his heirs, has a rightj by any^ instrument under his hand, to direct the same trustees to convey to the use of any other person, or for any estates and' interests^ at his pleasure. The authority to make such direction by any deed or Instrument under his handj is the necessarj' consequence of this conversion of his legal estate into an equitable interest ; and the subsequent words are the mere ' expressio eorum quae tacite insunt.' I am of opinion, therefore, that the conveyance in question, being bj' waj' of securitj' for money, is a revocation' pro tanto only." The V. C. remarked, that in Tiekner v. Tickner, a new power to appoint to uses was acquired, and that the facts in Kenyon v. Sutton were not accurately known («). *155 * Though an absolute conveyance by a person having the equitable ownership only, does, we have seen, under the old law Mere con- revoke a prior devise, by analogy to the rule which makes a veyance of similar conveyance of the legal estate a revocation at law, I6^^^ GSt9.t6 111 I • • no revocation yet when the testator merey' clothes ms equitable title with in equity. ^^^ l^ggX estate, by taking a conveyance of the latter to him- self, or merelj' changes the trustee, as this^ produces no alteration in the beneficial ownership, which is the subject of the devise, it leaves such debase unaffected.^ Thus where (<) W.j by his will and codicil, devised certain lands which he had contracted to purchase, and afterwards caused the pur- chased estate to be convej'ed to trustees in fee, in trust for himself and [(«) And see Youde v. Jones, 11 Sim. 162.] (<) FuUarton v. Watts, cit. Doug; 718. See also Parsons )). Freeman, 3 Atk. 741, 1 Wils. 308; Dingwelli). Askew, ICox, 427; Cloughi). Clough, 3 My. & K. 296. 1 See ante, p. 147, note. So where there other children who were made residuary lega- has been a fourfold increase of the testator's tees, no revocation is effected tlieieby. War- propertv during his insanity for forty years, ner v. Beach, 4 Gray, 162. See Verdier o. from a period soon after the making of his Verdier, 8 Rich. 135. Mere advance or dimi- ■Will until his death, so as greatly to change nution in value of property disposed of bv the proportion between the specific legacies will has no revoking effect. Scoby v. Sweatt, given to some children and the shares of 28 Tex. 713. 186 BY ALTEEATION OF ESTATE. *156 Lis heirs, it was adjudged that this was no revocation ; for before the completion of the piirciiase, the vendor was but a trustee for the pur- chaser, and the completion of the purchase was but taking the estate home ; [and so if he had actually taken a conveyance to himself (m). J If, however, the eonvej'ance does more than vest the legal estate in the testator, and newly modifies his ownership, revocation Conira, if will, of course, be produced, as it would if the equitable in- fhetqStaMe terest separately had been so modified.^ This question ownership. often arose, and, of course, under a will made before 1838, may still arise, where a testator contracted to purchase lands, and in the interval between the contract and the conveyance devised them. In such case, it is clear, that if the conveyance be made to the testator, to the usual limitations for preventing dower, viz. to such uses as he shall appoint, and in default, to the use of himself for life, remainder to a trustee for himself during life, with remainder to him (the purchaser), in fee, the devise will be revoked (y). And the same effect is produced where the eonvej'ance is simply to such uses as the devisor shall appoint, and in default of appointment to him in fee (z). So it has been decided, that where (a) a testator purchased an estate under a parol contract, which was rendered binding by part performance, then devised it, and afterwards took a convey- Effect of con- auce (according to the old method of excluding dower) to on''a*purehas- the use of himself and a trustee jointly in fee, the er's devise devise was * revoked ; the conveyance in such case *156 tract. going bej'ond the mere purpose of clothing the equi- table title with the legal ownership, and making an alteration in the quality of the estate. If the contract points out the nature of the limitations which are to be inserted in such conveyance, and the conveyance is made -^^ reroca- in conformity thereto, it is clear that such eonvej'ance (oper- tionif con- ating as it then does onlj- to turn the equitable into legal corrformity'" estates) will not revoke the devise ; but it should seem, that with con- the merely providing that the estate shall be conveyed to the purchaser in fee, or to such other uses as he shall direct, would not prevent the revoking operation of a conveyance to the ordinary uses for preventing dower ; for as words to this effect, when inserted fin a pro^'iso for redemption in a mortgage, are (we have seen) merely equivalent to a direction to convej- to the mortgagor the fee, [(a) Seaman v. Woods, 24 Beav. 372.] (y) Rawlins v. Biirgis,,2 V. & B. 382; [Plowden v. Hyde, 2 Sim. N. S. 171, 2D. M. &G. 68i ; Schroder v. Schroder, Kay, 578.] (s) TicknerK. Tiokner, oit. 1 Wils. 311, 8 Atk. 742; Parsons ». Freeman, 3Atk. 741. (o) Ward ti. Moore, 4 Mad. 368. 1 See Ballard v. Carter, 5 Pick. 112, 117, a release of the equity of redemption, it is 118; Brigham v. Winchester, 1 Met. .390; a revocation of the devise. Ballard v. Car- Swift V. Edson, 5 Conrt.-531. If a testator, ter, supra, after devising a mortgage, forecloses or takes 187 *157 BEVOOATION OP WILLS it seems difficult, consistentlj'^, to ascribe to tliem greater potency in a contract. And it is clear (b), that no such effect would be pro- duced by a stipulation that the vendor shall convey to the purchaser, his heirs, appointees, or assigns ; for even supposing that the intro- duction of the word "appointees" implies that the conveyance should contain a power of appointment (in which case a revocation would not have resulted from the mere insertion in the conveyance of such a power), j'et the limitation to the testator for life, with remainder to the dower trustee for the life of, and in trust for, the testator, amounts to a new modification of the equitable ownership, and is, for that reason, a revocation of the devise. [The doctrine, that merely clothing the equitable estate with the Plowden ». legal title is no revocation, is well illustrated by Plowden v. c\fr th Hyde (c), where an estate, whicb had been conveyed to the equitable es- testator to the usual uses to bar dower, was by him ap- legai^noVe-"^ pointed and conveyed to a mortgagee in fee^ subject to a vocation. proviso that on paj'ment of the mortgage money the mort- gagee would reconvej' the estate to the testator, "his heirs, appoin- tees, or assigns, or to such other person or persons, to such uses, and in such manner as he or they should direct." Subsequentljf to the mortgage, the testator made his will, devising the mortgaged propertj^ ; and then, having paid off the mortgage debt, the estate was reconvej-ed to him, to uses to bar dower in the same manner as on the purchase. Sir R. Kindersley, V. C, thought that, after the mortgage, the *157 testator had in equity a clear * fee-simple estate, and the legal estate not having been reconveyed to him in fee-simple his will was consequently revoked. But this decision was reversed by Sir J. K. Bruce and Lord Cranworth, L.JJ., on the ground before noticed, that an equity of redemption (unless the contrary is distinctly' pro- vided) attaches on the estate of the mortgagor, with all the same rights, restrictions and qualifications to which his legal estate had previously been subject. When, therefore, the mortgagor paid off the mortgage, and took a reconveyance of the property to the same uses to which it had stood limited before the mortgage, he was, in fact, only doing that which is described as clothing the equitable with the legal estate. It follows from this decision, that if the reconveyance had been simply to the testator and his heirs, his will would have been revoked. ^ In the case just stated Lord Cranworth suggested that a will was re- Immaterial voked by subsequent conveyance only when the seisin was Inisohanged changed ; and added, that if an estate were limited to such or not. uses as A. should appoint, and in default to A. in fee, and A., after making his will and devising the estate, had made an appoint- ment, so as to take an estate with the ordinary uses to bar dower, he (5) Bullin !•. Fletcher, 1 Kee. 369, 2 Mv. & Cr. 432. [(c) 2 Sim. N. S. m, 2 D. M. & G. 6^4. 188 BY ALTBEATION OF ESTATE. *158 knew of no authority deciding that this would be a revocation of the will(rf). But in Langford v. Little (p), which was not cited, Sir E. Sugden had decided that in such a case a will was revoked. He said, " A change of estate is sufficient to operate a revocation, and it is not necessar}- that the seisin should be changed. The doctrine rather is, that although nothing but the seisin is changed or transferred, and there is no disposition of the ownership, or but a partial one, yet the will is revoked, and the use, although the old one, cannot pass by the prior will." In Poole V. Coates (/) , a testatrix, being entitled to an undivided moiety of lands held on a lease for lives containing a cove- nant for perpetual renewal, made her will devising the moi- Coates, as to etj', and subsequently joined with the two other persons [g^gghoi^j ;„ entitled to the other moiety in procuring a renewed lease to opposed to' be granted to herself and them as joint-tenants : Sir E. """"^ ''^^^^■ Sugden, C, decided that her will was not revoked in equity. He said, the * effect of a lease with a covenant for perpetual renewal *158 is, in equity, to give the tenant a perpetual interest ; that, there- fore, if in the case before him there had been a mere simple renewal, though it would have been a revocation at law, it would have had no such effect in equity ; but it was argued, that the case went a step further, the renewal being made to the testatrix and two other persons, and, therefore, there was such a change in the estate which the testatrix had as amounted in equity to a revocation ; but the mere change of the legal estate, unaccompanied by any alteration of the equitable ownership, would not effect a revocation. A lease of the entire estate to a trustee for the testatrix would have been no revocation, for she would have had the same equitable estate after the renewal as she had before ; so a renewal partly to herself, and partly to a trustee for her, could not he considered as a revocation, for the very same reason. The mere cir- cumstance that the very same equitable estate which formerly subsisted, had been since partially clothed with the legal estate, could not produce such a modification as to work a revocation. The learned judge said that he did not intend to impeach the authority of Rawlins v. Burgis, Ward V. Moore, and similar cases. But did Ward v. Moore differ in substance ? The owner of the equitable estate became a joint-tenant of the legal estate, thereby merely partially clothing himself with the legal title : yet it was held a revocation ; and in truth this is all that is done in every case of a conveyance to uses to bar dower. In. equity the owner of the equitable estate still remains absolute owner ; he has only clothed himself with a legal power of appointment, a life-estate, and a remainder in fee.] (rf) See 2 D. M. & fi. 695. (e) 2 J. & Lat. 613; and see Walker v. Armstrong, 21 Beav. 284, 8 D. M. & G. 531. (/) 2 Dr. & War. 493, 1 Con. & L. 531. It may be collected that Sir E. Su(jden never approved the decision in Rawlins )'. Burgis. Apart from authority, his own opinion, which he followed on a slight distinction in Poole ». Coates, may be thought the more reasonable.] 189 *159 EEVOCATION OP WILLS Tlie same general doctrines are, of course, applicable to equitable As to convey- interests created by marriage articles; hence the question, ances in exe- whether a conveyance, made in pursuance of such articles, cution 01 T . , . , , marriage revokes a devise, made in the mterval between the articles articles. ^^^ ^jjg conveyance, disposing of the equitable interest de- rived under the articles, depends entirely, under the old law, upon the fact, whether the conveyance merely carries into effect the articles which created the equitable interest in question, or newly modifies the ownership {g). But it is to be observed, that where, by the articles, the intended *159 settlor covenants to convey the lands to certain uses, and *subject thereto to the use of himself in fee, this does not sever the equitable from the legal ownership, in regard to such ultimate fee, so as to sup-' port a devise made intermediately between the articles and the convey- ance, since such severance could only be produced through the medium of an obligation attaching on the covenantor to convey the reversion in fee to himself ; and there seems to be no title in any third person to call for siich a conveyance, for a man cannot have a legal estate in trust for himself. Upon the principle of this reasoning. Lord Eldon, in Harmood ». Oglander (A), [dissented from] the case of Williains v. Owens («), where the contrary doctrine was advanced by Sir R. P. Arden, who appears to have confounded the case of a covenant to convej', with that of an actual conveyance, bj' means of which, of course, the grantor may effect a severance of the legal and equitable ownership, by vesting the legal inheritance in the trustee for himself. , The learned judge entertained the notion, that the articles imposed on the covenantor an obligation to convey the fee, which fully accounts for (and, had it been correct, would have justified) the conclusion at which he arrived. The Effect of cove- argument upon which Lord Eldon impugned the case of nant to con- Williams V. Owens, would seem to involve the conclusion,- of "cove-*"'* that an agreement by a testator to convey an estate in fee to nantor. himself, would, for every purpose, be nuU and void ; but the principle has not been followed to this full extent, for in Vawser v. Jeffery (k) , both Sir W. Grant and Lord Eldon were of opinion, that, if a surrender of copyholds to certain limitations (which have been already stated) would have revoked the will at law, the covenant to make such surrender revoked it in equity. And though the assumption upon which this position was based, namely, that the surrender, if made pursuant to. the covenant, would have been a revocation at law, was in the subsequent stages of the case decided to be unfounded, yet this circumstance does not necessarily affect the doctrine in question. There is some difference, however, in the line of reasoning pursued b^' these great contemporary judges : Sir W. Grant, adopting the notion of his (.17) Parsons v^ Freeman, 3 Atk. 761; Brydges.9. Duke of Chandos, 2 Ves. Jr. 417, 7 B. P. C. Toml. 505. (A) 8 Ves.. 127. (i) 2 Ves. Jr. 595 (i) 16 Ves. 619, 2 Sw. 268. 190 BY AT^TERATION OF ESTATE. *160 predecessor (Sir E. P. Arden), held, that the covenantor was bound to convey the fee-simple -to himself, according to his covenant ; while Lord Eldon puts the doctrine rather upon the ground of intention : " It is con- tended," he said, " that if the widow had applied to this court, to have the covenant *executed, the court need not have directed any *160 such acts as would raise this question. My present opinion is, that I must consider the testator to have died with the intention which he expresses in this c»venant, unless it can be shown that he intended otherwise to execute his purpose of providing a jointure." Lord Eldon's observations show, that he considered the case as allied in principle to those (discussed in the next section) in which an ineffectual attempt to convey the devised lands has been held to revoke : though this view of it entirely differs from that, of the Court of ,K. B.,in Wright v. Littler {T}, who thought that a, void deed of covenant was not a revocation, as it was not binding on the testator, and expressed no intention to make a present disposition ; and Lord Mansfield expressly lays it down, that covenants have never been allowed to be a revocation, unless where the cove- nantee has a right to specific performance, — a principle which it seems very difHcult to refute. In that case, however, the instrument in ques- tion was not a deed of covenant, but an unsealed paper, by wliich the testator " covenanted and agreed" that the lands in question should go and be given to certain persons, and the question was, whether it was testamentary : the court decided in the negative, and that the paper was not a revocation of a previous will. Of course, a covenant to exe- cute a conveyance, which, if made, would not revoke the will at law, will be inoperative to revoke it in equity (m). Another obvious case of revocation in equity occurs where the testa- tor devises lands, and then, subsequently' to the will, con- ^Mect of con- tracts for the sale of them ; ^ such a contract, if once obliga- tract for sale tory on the testator, will revoke the devise {n) ,^ though it * ^"^ ^^'^^' should happen to be rescinded after the testator's decease (o), and also, by the better opinion, even though such transaction should have taken place in his lifetime (jo), supposing, of course, the will to be subject to the old law. Notwithstanding the contract for sale, the legal estate passes under the devise,' and the devisee is bound to convey it to the purchaser, in pursuance of the contract. If the devise, which might thus, in event, become operative upon the legal inheritance, would have (I) 3 Burr. 1244, 1 W. Bl. 345; [Patch v. Shore, 2 Dr. & Sm. 589.] (m) Vaw.ser D. Jeffierv, 3 Russ. 479. (n) Mayer v. Gowland, Dick. 563. (o) Tebbot ». Voules," 6 Sim. 40. 0>) See Knollys «. Alcock, 7 Ves. 588, 566; Bennett v. Earl of Tankerville, 19 Ves. 170; [Curre v. Bowyer, 5 Beav. 6.] 1 If, however, a testator execute a will in note. So, too, revocation of a trust created favor of A. in execution of a binding con- by will, where the means for executing the tract, the will is irrevocable ; and if he fail to trust are by the testator put into the trustee's so execute the will, equity will grant relief hands, cannot be effected. Padfield v. Pad- to the other party in respect of tlie benefit field, 72 III. 322. obtained by the party refusing to perform ^ Ponolioe «. Lea, 1 Swan, 119. his contract. Andine; v. Davis, 38 Miss. 574; s gee Hull v. Bray, Coxe, 212. Sell V. Hewitt, 24 Ind 280. See ante, p. 18, 191 *161 REVOCATION OP WILLS the effect of tying up the property in a manner incompatible with the convenient execution of the contract, as bj' creating limitations *161 in favor of* minors or unborn persons, the testator should im- mediately after the sale execute a codicil, devising the property to trustees, for the purpose of carrying the contract into effect. [But if the contract is rescinded or abandoned, either before or after the testator's decease, there is no purchaser to convey to ; and, the will being revoked, the devisee is a trustee for the heir (9) . So, where a testator devised an estate and then contracted to sell it, but no con- vej'ance was executed, and afterwards the testator repurchased the estate, it was held that the will, once revoked in equity, was not set up again (r).] Ante-nuptial articles for a settlement have, of course, the same re- Marriage voking event in equity, upon a previous devise of the prop- articles, erty agreed to be settled, as a contract to sell (s).* And here it may be observed, that, where a testator who has devised Effect of ^^® ^^^^ estate among his children, in undivided shares, after- settling wards, upon the marriage of one of such children, conveys vis^'d lands" ^^ Covenants to convey to uses, for the benefit of that child, on one of an aliquot share, equal to that which he had devised to the child (no doubt intending to substitute it for the share so devised), such settlement or covenant does not revoke the devise of that share in toto, there being nothing to identify or connect the de- vised with the settled share ; but it revokes the devise of all the shares pro tanto, letting in the advanced child to participate equallj- with the others in the remaining shares, not affected by the settlement. Thus, in Eider v. Wager (<) , where a testator by his will gave one moiety of his real and personal estate to his elder daughter, and the other moiety to the younger daughter, and afterwards, upon the marriage of the elder with A., covenanted to settle one moiety of all his real estate to the use of himself for life, with remainder to A. and his intended wife for their lives, remainder to the younger children 'of the man-iage in tail, re- mainder to A. in fee ; it was held, that this covenant revoked the will in equity as to one moiety of the testator's real estate, and that the other moiety passed under the devise in the will to the two daughters, and this was thought to be rendered still more clear by the republishing effect of a codicil which had been executed bj' the testator after the articles." Uq) See Tebbott v. Voules, supra. \r) Andrew v. Andrew, 8 D. M. & G. 336. See obsen-ations on this case Sng. E. P. S. 361.1 (s) See Cotter v. Layer, 2 P. W. 624 ; Vawser v. Jefferv, 16 Ves. 519 -, 2 Sw. 268. (0 2r "■ ■ cation ?] • p. 361.1 (s) Sei (0 2 P. W. 334 : [but must not this case be considered as depending solely on the republi- 1 On the other hand, the tact that a wife nuptial provision by will in her favor made has abandoned her husband, and been di- in positive and unequivocal terms. Charlton vnrced therefor at his suit, docs not, it is v. Miller, 27 Ohio St. 208. held, amount to a revocation of an ante- ^ gee Langdon v. Astor, 3 Duer, 477 i S. C. 192 BY ALTERATION OF ESTATE. *162 * The revocation of devises by an alteration of estate is placed *162 on an entirely new footing by the stat. 1 Vict. c. 26, which gtat. ivict. provides (sect. 23), that no conveyance or other act made or <=• 26. done subsequently to the execution of a will of or relating ^^leremkei to any real or personal estate therein comprised, except an as to testa- act by which such wiU shall be revoked as aforesaid, shall bie Lterest*" prevent the operation of the will with respect to such estate ,*' decease, by C011V6V- or interest in such real or personal estate, as the testator anceorlike shall have power to dispose of by will at the time of his death. ^°'" In regard to wills, the date of which or of any codicil thereto brings them within this section, a subsequent conveyance of the Remarks un- devised property will not produce revocation, except so far as on the enact- it substantially alienates the estate, and withdraws it from "^°'" the operation of the devise by vesting the property in another. If a testator, after devising an estate, sells and conveys it to a third person, of course the devise is stiU (as formerly) rendered inoperative, and the devisee can have no claim to the proceeds of the sale, even though the will should have directed the conversion of the property, and the pro- ceeds can be traced into an investment (m). Where the Will is re- testator contracts to sell the devised estate, and dies with- ™^fj!!'7.„ ' contract to out having executed a convej^ance to the purchaser, the sell, devise remains in force as to the legal estate and no further, this being all the interest which the testator has power to dispose of at his decease, and the conversion, as between the real and personal representatives, being completely effected, [and the estate of the vendor being in con- templation of equity, " disposed of"] by the contract (supposing it to be a binding one), the devisee takes only the legal estate, (m) See Arnald v. Aruald, 1 B. C. C. 401. 16 IT. T. 9. That a deed to a child may be 19 Ga. 216; Miner v. Athertoii, 35 Penn. St. treated as an advancement, see Wagner's 528. The same presumption does not arise Appeal, 38 Penn. St. 122; Hatch v. Straight, in the case of a stranger. Powell v. Cleaver, 3 Conn. 31. In regard to personal estate, the 2 Bro. C. C. 388. Nor where the bequest is rule is that where a father gives a legacy to a of a share in the residue. Smith v. Strong, child, it must be understood as a portion, al- 4 Bro. C. C. 369 ; Freemantle't). Banks, 5 Vea. though not so described in the will, because 79. Nor where the advancement is not of the it is a provision by a parent for his child ; and same character with the bequest or legacy, if the father afterwards advances a portion Swoope's Appeal, 27 Penn. St. 58; Dugan V. for that child, as upon marriage, it will be a Hollins, 4 Md. Ch. 139. If, after advance- complete ademption of the legacy, not only ments, a will be made, the intention of the tes- in cases where the advancements are larger tator as to such advancements is matter of than, or equal to, the testamentary portions, fact determinable from the will itself, and but also in cases where the sums advanced from extrinsic matters or tesfeimonj'" to show are less than the sums bequeathed ; for it will whether monej' or goods were intended as. not be intended, unless ■ proved, that the advancements. Watson ?'. Watson, 6 Watts, father designed two portions to one child. 254; Wright's Appeal, 89 Penn. St. 67; Hartops.Whitmore,! P. Wms.681; Clarketi. Bacon v. Gossett, 13 Allen, 334. And, in Burgoine, 1 Dick. 353 ; Pye, Ex parte, 18 Ves. the absence of direct evidence accompany- 158; Lawrence v. Lindsay, 68 N. Y. 108. ing a gift, the question of advancement must The above rule of presumptive ademption, be determined upon a consideration of the however, is subject to many qualifications; surrounding facts. Wright's Appeal, supra; and the presumption may be destroyed or con- Knabb's Estate, 30 Leg. Int. 361. A debt firmed by the introduction of parol evidence of due by a son-in-law cannot be converted by a different intention by the testator. Langdon proof of a testator's subsequent parol decla- «. Astor, 16 N. Y.9; Kogers v. French, rations into an advancement to his daughter. voLi. 13 193 *163 KEVOCATION OP WILLS and the purchase-money constitutes part of the testator's personal estate (x).^ — or by other [And this rule applies equally to eases of conversion by TheXl"" 'i operation of law ; as, by act of parliament {y) , or by an untary or Order for Sale pronounced by a court of competent jurisdic- compulsory, ^j^^ ^^.^^ ^j, j^y compulsory sale under the Lands Clauses *163 and similar acts (a), *or by sale under a power given by the testator to a mortgagee (6). But, of course, an unauthorized sale (as if the real estate of an insane person, not so found, is sold by persons assuming to act for him) will not work conversion, although the sale is conflrmed by the court after the owner's death (c). And — unless the ^^^ Converting effect of a sale under an act of parliament or proceeds are under an order of court is neutralized if the statute (d) or to 1)6 r6in~ vested to order (e) directs a reinvestment in land to be settled to the same uses. game uses ; in which case, it should seem, the will would operate on the substituted land. So, if land were sol4 under the common power of sale in a settlement containing a similar direction for reinvestment ; though some doubt may seem to be thrown on this by Gale V. Gale (/) , where an estate stood settled in trust for 1" trae. j^^ ^^^^ j^jg ^jjgg successively for life, with remainder as A. Ux) Farrar v. Earl of Winterton, 6 Beav. 1; Moore v. Raisbeck, 12 Sim. 123. These decisions confirmed the author's previous opinion, see 1st ed. p. 148, where he cites Knollys v. Shepherd (ante, p. 56) to show that, even under the old law, a devise of land which the testator had previously contracted to sell passed the legal estate only. But the devisee is eutitled to the rent until completion. Watts v. Watts, L. R. 17 Eq. 217. (y) Frewen v. Frewen, L. R. 10 Ch. 610; Richards v. Att.-Gen., 6 Moo. P. C. C. 381; Cadraan V. Cadman. L. R. 13 Eq. 470. (z) Steed v. Preece, L. R. 18 Eq. 192, questioninj? Jermy v. Preston, 13 Sim. 356 (as to ■which see n. (e), infra), and Cooke v. Dealey, 22 Beav. 196. See also Arnold v. Dixon, L R. 19 Eq. 113. (a) Ex parte Hawkins, 13 Sim. 569 ; Re Manchester and Southport Railway, 19 Beav. 365; Ex parte Inamank,! Sim. N. S. 260. Notice to treat and agreeing on the price are together equivalent to a contract for sale, and work a conversion, Ex parte Hawkins, Ex parte Fla- mank, supra ; Harding v. Metropolitan Railway, L. R. 7 Ch. 154 ; Watts v. Watts, L. R. 17 Eq. 217. But notice to treat, without more, has no such effect, Haynes ». Haynes, 1 Dr. &Sm.426; nor a notice followed by vendor's unaccepted statement of price. Re Arnold, 32 Beav. 591 ; nor an agreement as to price per acre without defining the lund. Ex parte Walker, 1 Drew. 508. Where an option to purchase at a specified price was given to A., and after the testator's death tlie land was bought by a railway company for double that price, A. was held entitled to the difference. Cant's estate, 4 De"G. & .Jo. 503. See also Ex parte Hardy, 30 Beav. 206.] (6) Wright V. Rose, 2 S. & St. 323 ; Bourne v. Bourne, 2 Hare, 35". In both these cases no sale was made until after the testator's death, and therefore it was held there was no conversion — qii.oad the surplus. Compare Jones v. Davies, i Ch. D. 216. (c) See per Wood, V.-C, Taylor v. Taylor, 10 Hare, 478, 479. (rl) As where the land of persons under disabilitv is sold under the Partition Act, 1868, Foster v. Foster, 1 Ch. D. 588; Kelland v. Fuirord,"6 Ch D. 491; Mildmay ». QuickC, ib. 553 ; or under the Lands Clauses and cognate acts, Midland Railway v. Oswin, 1 Coll. 80; Re Taylor, 9 Hare, 696; Re Homer, 5 De G. & S. 483; Re Stewart, 1 Sm & Gif. 32; Re Harrop, 3 Orew, 726. The Lunacy Regiilation Act, 1853, directs (ss. 124, 135) that money arising bv sale under that act of land belonging to lunatic tenant in fee sliall devolve as realty. Re Mary Smith, L. R. 10 Ch. 79. (f) Fellow ». Jermvn, W. N. 1877, p. 95. The land sold was in strict settlement, and the reinvestment (of surplus after answering charges) was necessary to prevent the money vest- ing absolutely in the first tenant in tail. Jermy v. Preston, 13 Sim. 356, 366, appears to have proceeded on a similar ground. And as to the propriety of reinvestment where the estate is settled, see4 D. M. & G. 766, per K. Bruce, L. J. (/) 21 Beav. 349. Wright's Appeal, 89 Penn. St. 67; Yunt's donor has parted with his title to thing ad- Appeal. 13 Penn. St. .575. It may be added vanced. Manning p. Manning, 13 Rich. 410. that advancement always implie'a that the i See Donohoe v. Lea, 1 Swan, 119. 194 BY ALTEEATION OP ESTATE. *164 should bj' deed or will appoint, and in default of appointment over : the trustees had power to sell, and the proceeds were to be reinvested in land to be settled to the same uses. By his will A. appointed the estate to the children of B., and devised all other his real estate not thereinbefore speciflcallj' disposed of to his wife. Afterwards the trus- tees sold the estate, and then A. died ; and it was held by Sir J. Rom- ilh', M. R., that the appointed property was adeemed hy the subsequent sale, that the appointment had no effect either on the purchase- money (which had not yet *been reinvested) nor on the new *164 estate to be purchased with it, but that the right to these passed b}' the residuary devise (g). He said it must be treated as a new estate and a new power in relation to it. Having regard to the direc- tion that the new estate should be settled to the old uses (which, of course, included the power of appointment) , it would be difficult to dis- tinguish this case in principle from one where A. had the estate and not a power onlJ^ But the decision is questioned by Lord St. Leonards, who says it was the old power that remained over the new estate (A) . It is now scarcely possible for an}' residuum of interest remaining in the testator at his death to escape from the previous devise. Devise to A. In Lowndes v. Norton (i) , when a testator devised an es- °^^l l^om tate to trustees during the life of his daughter, without waste, foi- impeachment of waste, for her separate use, and soon convevance afterwards conveyed the same estate to a different trustee '" ^- '<"■ ''^® not so cx— for the life of the same daughter (but not making her or empt. the trustee unimpeachable for waste), with several successive remain- ders for life, each without impeachment of waste, with reversion to himself in fee ; it was argued that the right to the timber remained in the testator at the time of his -death, and, notwithstanding the deed, passed by the devise to the daughter, who was consequently iinimpeach- able for waste : but it was held by K. Bruce and Turner, Ij.JJ., that this was an argument not warranted in fact (presumablj' because the right in question was in fact disposed of by the deed to the tenants for life in remainder) , and that the estates given by the deAdse had baen completelj' abolished by the deed.. How a specific bequest of leaseholds is affected, under tjiis section, b}- the subsequent acquisition of the fee was considered in Bequest of Cox V. Bennett (i) , where a testator having bequeathed '^™j''?Y " his houses at T., held on lease from B.," to X., and the purchase of residue of his real and personal estate to Y., afterwards pur- ''"' ^''^• (a) As to this see post, Ch. XX. s. 5. (h) R. P. S. 375, n., and Pow. 308, 8tli ed. In Ee De Beauvoir, 2 D. F. & J. 5, 29 L. J. Ch. 667, where the sale was under the L. C. Act, and A. had tlie estate in reversion, the point did not arise; for by his will the settled estate and "all other his real estate" were included in the same devise. (0 33 L. J. Ch. 583. (k) L. I{. 6 Eq. 422. See also Struthers v. Struthers, 5 W. R. 809. Both, these cases appear to require tlie further support of s. 3, whicli enables a testator to disjwse of all real e»tate to -H-hich he may lie entitled at the time of his death, and of s. 24, wliich enacts that every will shall be construed with referen ;e to the real and personal estate comprised in it to 195 *165 EBVOCATI0N OP WILLS *165 . chased and * took a convej-ance to himself of the reversion in fee. It was held bj' Sir G. Giffard, V.-C, that the entire interest in the houses passed by the specific gift to X. He said, " the clause in the statute (». e. sect. 23) says that the will is to pass such estate or interest in' such real or personal estate as the testator shall have power to dispose of at his death ; and there is nothing- in the will to confine its operation to the interest which the testator had at the date of the will:" the reference to the lease was merely a method of describing the property. The section now under consideration does not apply to wills made Sect/ 23 does before 1st January, 1838. Such wills are revocable by alter- wms^mlcie"' ^^on of. estate,, although the alteration should be eflfected on before 1838. or after that day {I) .] Section IV. ^ void Conveyances. An instrument purporting to be a conveyance, but incapable of taking Attempt to eff'ect as such, may, nevertheless, operate to revoke a pre- vokes^le- '^ious devise, on the principle, as it should seem, that the vise, where, attempted act of conveyance is inconsistent with the testa- mentary disposition, and, therefore, though ineflfectual to vest the prop- erty in the alienee, it produces a revocation of the devise. The rule obtains, wherever the failure of the conveyance arises either from the incapacitj' of the grantee, or from the want of some ceremony which is essential to the efficacy of the instrument.* Thus, in Beard v. Beard (m). Lord Hardwicke decided, that a deed of gift by the testator to his wife of personal estate, which he had previously bequeathed by his will, re- voked tlie bequest ; though the deed was inoperative under the rule of the common law, which incapacitates a woman from taking propertj^ so disposed of, as the donee of her husband. So it has been often ruled, from a very early period, that a feoffment without liverj' of seisin, and a bargain 'and sale without inrolment, revoke a previous devise of the lands thus ineffectually attempted to be ahened (n) . And take effect as if it had been executed immediatelv before the testator's death: for s. 23 says only that no subsequent act shall ^»'Ct!e7j( the will operating, implying that but for the subse- quent act the will would have operated on the interest in question; which it would not have done without the aid of ss. 3, 24. (I) Langford v. Little, 2 Jo. & Lat. 613.1 ('») 3 Atk. 72. (m) See Montague^e. Jefferies, Moor, 429, pi. 599. See also 3 Atk. 73, 1 W. Bl. 349, 2 Sw. 274. 1 A conveyance inoperative for want of 1;ion of the testator to revoke his will. Wal- completion, or incapacity in the grantee, may ton v. Walton, 7 Johns. Oh. 269. amount to a revocation, if it shows the inten- 196 BY VOID CONVKYANCBS. *167 the rule has been considered as applying to a * common recovery, *166 rendered void by the misnomer of the tenant to the preecipe (o), and to an instrument purporting to be an appointment under a power, which at the time was not in the testator (p). It is true, that in the last case, the court was of opinion, that the instrument, if void as an appointment, might take effect as a grant of the reversion ; but Lord Kenyon, C. J., unreservedly stated, that, " even supposing' it was an inadequate conveyance for the purpose for which it was intended, still if it demonstrate an intention to revoke the will, it amounts, in point of law, to a revocation." And, in Vawser v. Jeffery (y) , Lord Eldon treated it as clear, that an attempt by a testator to convey a copyhold estate bj^ deed, would revoke a previous devise of that estate. It has been held, however, that a conveyance to charitable uses, which was void under the statute 9 Geo. 2, c. 36, on ac- „ ,.„ count of the grantor djing within twelve months after its tions of the execution, did not affect a prior devise, on the ground, it is """ presumed (for the reasons are not stated), that the event of the grantor surviving the year, was an impUed condition annexed to the deed, and this failing, the intended conveyance was to be considered as a nullity, the effect being the same as if the grantor had expressly made his con- veyance dependent on such a contingency (r). So it has been decided, that a deed executed by one who is under a personal incapacity to make the attempted disposition, has no revoking effect on a prior devise ; for as the principle proceeds upon intention, ability to perform the act seems to be a necessary ingredient, for withcjut such ability there can be no disposing mind. Thus, where a feme coverfe, who had a power to appoint real estate by will only, and had also the fee-simpledn default of appointment, made a will in pursuance of the power, and subse-> quently executed a deed purporting to convey the lands, it was held that the deed was inoperative to revoke the testamentary appoint- ment (s). But if a feme coverte^ who has a power of appointing by deed or will, makes a will in exercise thereof, and afterwards, by deed, in execution of her alternative power, directs her trustees to convey to her, which they accordingly do, of course the testamentary appoint- ment is revoked {t) . * It seems clear, that a conveyance which is void at law on *167 account of fraud or covin, is not a revocation : but a differ- _ , , ent rule obtains, in regard to deeds which are valid at law, veyance void though impeachable in equity. The existence of this dis- ?"^*^™""oke* tinction, indeed, was long vexata qnisstio, but all controversy a will,— on the point seems to be closed by the case of Simpson v. where. (o) Doe ». Bishop of Llandaff, 2 B. & P. N. E. 491. [The point, however, was not actuallv decided in this case.] (p) "Shove V. Pinke, 5 T. E. 124, 310. (?) 2 Sw. 274. (r) Matthews ». Venables, 9 .1. B. Moo. 286, 2 Bing. 136. (a) Eilbeck v. Wood, 1 Kiiss. 564. (t) Lawrence v. Wallis, 2 B. C. C. 319. 197 *168 EBVOCATION OP WILLS Walker (u) ; in which it was decided by Sir L. Shadwell, V.-C, in con- formity to the decision of Lord Hardwicke in JHiek v. Mors (x), and that of Lord Alvanlej' in Hawes v. Wjatt (y) , and a dictum of Lord Eldon(z), and in opposition to a determination of Lord Thnrlow(a), that a deed obtained under circumstances which rendered it void in equity, but which was valid at law, did revoke a previous devise. A question of this nature, however, cannot arise in regard to wills Eule as to made since 1837, for as, under the recent enactment, even wills since an actual conveyance does not produce revocation, except so far as it may, by alienating the testator's interest, leave the devise nothing to operate upon, it is obvious, that a void or at- tempted conveyance cannot, under any circumstances, have, as such, a revoking effect (6) . Section V. jB^ a suhsegiient Revoking or Inconsistent Will, Codicil or Writing. In considering this head of Revocation, as applicable to wills made Before 1838. before the year 1838, freehold and personal estate must be . distinguished. The Statute of Frauds (c) enacts, " that no lands, how to dfevise in writing of lands, tenements, or hereditaments, nor be revoked, ^ny clause thereof, shall be revocable, otherwise than by some other will or codicil in writing or other writing declaring the same, (or by burning, &c.) ; but all devises and bequests of lands and tene- ments shall remain and continue in force (until the same be burnt, &c.) ; or unless the same be altered bj' some other will or codicil in *168 writing, or other writing of the devisor, signed in the * presence of three or four witnes.ses declaring the same."'' The same Bequests of statute (sect. 22) provides, " that no will in writing con- personalty, . ^ -, , \ how to be cerning any goods or chattels or personal estate shall be re- revoked, pealed, nor shall any clause, devise or bequest therein be (u) 5 Sim. 1. (x) Amb. 215. iy) 2 Cox, 263, 3 B. C. C. 156. See also 7 Ves. 374. h) 8 Ves. 283. (n) Hawes v. Wvatt, supra. [(b) Ford V. De Pontfes, 30 Beav. 572. ace. And distinguish between a void conveyance inoperative as such to produce revocation, and a writine; dulv executed and " declaring an intention to revoke," which takes effect under 1 Vict. c. 26, s."20. See post. d. 170. (c) 29 Car. 2, c. 3, s. 6, Ir. Pari. 7 Will. 3, c. 12, s. 6.] 1 This, in substance, is the language of Boudinot v. Bradford, 2 Dall. 268; S. C. the statute law of almost every part of the 2 Yeates, 170; I.awson u. Morrison, 2 Dall. United States, 4 Kent, 620, 521, note (o); 289; Bums v. Burns, 4 Serg. & R. 297. The Beldenv. Garter 4Day,-66; Witter ii. Mott, statutes of the several states generallv con- 2 Conn. 67; Card d. Grininan, 5 Conn. 164; tain specific rules for the revocation of "wills, Brown «. rhorndike 15 Pick. 388; Ray ». both real and personal estate, conforming Walion, 2 A. K. Marsh. 73 ; Ex parte II- in most cases (of revocation by a subsequent Chester, 7 Ves. (Sumn. ed.) 348, note (o); instrument) to the require.pents for the exe- 198 BY SUBSEQUENT WILL OE CODICIL. *169 altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least." Unless these enactments had placed the revocation of wills under positive restrictions, they might have been revoked in the same manner as before, there being no necessary implication that what is required to constitute a valid execution of an instrument is essential to its revoca- tion ; on which principle it was held before the Statute of Frauds, that a will required to be in writing by the statute of 34 Hen. 8, c. 5, might be revoked by parol (if). Though the Statute of Frauds required that a will which revoked a devise of freehold lands should be attested by the same num- Difference ber of witnesses as a will devising such lands, yet, in some v^s,w and"' particulars, the prescribed ceremonial differed in the respec- revoking tive instances. Thus, a devising will was required to be statute of subscribed by the witnesses in the testator's presence, which Frauds. a revoking will was not, and a revoking will was required to be signed by the testator in the presence of the witnesses, while a devising will needed not to be signed in their presence ; each, therefore, had a cir- cumstance not common to both. This difference, however Eevocatiou (which probably occurred without design) , has been attended ^"itirnew dis- with little practical effect ; for it seldom happens that .a tes- position, tamentary instrument is executed for the mere purpose of revoking a previous will, and if it contain a new disposition, any revoking clause therein wiE be a nullity, whether the substituted devise takes effect or not, though for widely different reasons in the respective cases. If the devise with which the clause in question is associated be effective, it reduces the latter to silence by rendering it unnecessary, the new devise itself producing the revocation ; so that the efficacy of the will as a re- voking instrument cannot, in such a case, become a subject of considera- tion. If, on the other hand, the new devise be ineffectual ^, J\ r6V0C3~ on account of the attestation being insufficient for a devising, tion, wiiere though sufficient for a revoking will, the revoking tended 't""be clause becomes inoperative *on the principle before *169 substituted noticed, that the revocation is conditional and de- pendent on the efficacy of the attempted new disposition, and that failing, the revocation also fails ; the purpose to revoke being consid- (d) Cranvel v. Sanders, Cro. Jao. 497. See also Ex parte Earl of Dchester, 7 Ves. 348; Eicliai-dson v. Barrj', 3 Hagg. 249. cution of wills. An instrument purportinf; of an event which does not transpire has no to be a will, but not properly witnessed, will effect to revoke a prior validly executed will, not operate as a revocation of a prior properly Hamilton's Estate, 74 Penu. St. 69 ; Kudy v. executed will, though it contam a clause o"f Ulrich, 69 Penn. St. 177. The fair effect of revocation and profess to dispose of the prop- a revoking clause in the later instrument is ertj'diiferently from the will. Eeese ». Court that the clause was intended to operate only of Probate, 9 K. I. 434. So an instrument iu case the writing took effect as a will. lb. which is. to take effect only on the happening 199 *170 EBVOCATION OB" WILLS 'ered to be, not a distinct independent intention, but subservient to the purpose of making a new disposition of the property ; the testator mean- ing to do the one so far only as he succeeds in effecting the same (e) .' But it seems, that, if the second devise fails, not froni the infirmity of the instrument, but from the incapacity of the devisee, the prior devise is revoked (/).^ With respect to the revocation of wills of personal estate, it is to be Revocation of observed that questions concerning ^ it most commonly occur ■wills of per- in the ecclesiastical courts, which, of course, no less than soualty. ^j^g temporal courts, are bound by the 22d section of the Statute of Frauds, excluding parol revocations. Accordingly, it was ruled by Sir J. Nicholl, that evidence could not be received of the testa- tor's intention oraUy announced, to ' adopt the prior of two willsj both of which were found at his decease uncancelled,, though it appeared that most of the bequests in the posterior will had lapsed (ff) . But the enactment in question is not considered to preclude the reception of evidence of acts of a testator in his lifetime concerning his testa- mentary papers ; still less does it exclude inquiiy into the state in which such papers were found at his decease. And it is to be observed, also, that the requisition of the statute is satisfied by the intention to revoke being reduced into writing in the lifetime, and by the direction, of the testator, though not authenticated by his signature. And on this principle it was decided, that, where a person, at the testatrix's request, addressed a letter to another person having the custody of her will, requesting him to destroy it, this was a sufllcient revocation, though the wiU. was not destro3'ed in compliance with the request (A).' Revocation Eevocation often depends on the completeness of depending on *i70 the posterior * of two testamentary instruments. In of revoking such cases the ecclesiastical courts try the validity of ^'"" the propounded paper by the principles which have been adverted to in a former chapter, to which it will be suflScient to fe) Eggleston ». Speke, 3 Mod. 258, Carth. 79, 1 Show. 89 ; Onions v. Tyrer, 2 Vern. 741, Pre. Ch. 459, 1 P. WT 343; [Short v. Smith, 4 Ea.st, 419.1 See also Ex parte Earl of Ilches- ter, 7 Ves. 348; Kirke v. Kirke, 4 Russ. 435 ; [Locke v. James, 11 M. & W. 901. Compare] Richardson v. Bany, 3 Hagg. 249. if) Frenche's Case, 8 Vm. Ab. Dev. 0. pi. 4; Roper v. Constable, 2 Eq. Cas. AT). 359, pi. §; S. C. nom. Roper v. Radcliffe, 5 B. P. C. Toml. 360, 10 Mod. 233; [Tapper v. Tapper, 1 K. & J. 665; Quinn v. Butler, L. R. 6 Eq. 225. See also Re Gentry, L. R. 3 P. & D. 80, where an express revoking clause was held absolute, though accompanied by a desire that an instrument, referred to as a will but which in fact-was a valid deed, should stand as the will — which it could not do.] (o) Daniel v. Nockolds, 3 Ha^. 777. (h) Walcott V. Ouchterlony, 1 Curt. 580. [And see Re Eavenscroft, 18 L. J. Ch. 501; Mere- dyth V. Maunsell, Milw. Ir. Eccl. Rep. 132.] 1 Laughton v. Atkins, 1 Pick. 535, 543; or legacy, and grounds such revocation on Reid V. Borland, 14 Mass. 208. See Bethell the assumption of a fact which proves not to V. Moore, 2 Dev. & B. 311; Clark v. Eborn, exist, th- revocation is regarded as contingent 2 Murph. 235. upon the existence of such fact and does not 2 Price V. Maxwell, 28 Penn. St. 23, 39; take effect. Dunham aAverill, 45 Conn. 61. Jones. 1). Murphy, 8 Watts. & S. 300. See ante, p. Where a testator by a codicil revokes a devise « See Boyd v. Cook, 3 Leigh, 32. 200 BY aiJBSEQUENT WILL OR CODICIL. *171 refer (i) , with the additional observation, that the presumption is always strongly adverse to an unfinished instrument materially altering and controlling a will deliberately framed, regularly executed, recently approved, and supported by previous and uniform dispositive acts ; and this presumption is stronger in proportion to the less perfect state of, and the small progress made in, such instrument. To establish such a paper, there must be the fullest proof of capacitj', volition, final intention, and involuntary interruption (k).^ In regard to wiUs made since the year 1837, however, it can never be a question, whether an informal or apparently unfinished Q„estion how- testamentary paper has a revoking operation, for the statute affected by 1 Vict. c. 26, s. 20, has placed a revoking will [or writ- '■«'=«''t act. ing (/)] upon precisely the same footing, in regard to the ceremonial of execution, as a disposing will ; and when that ceremonial has been observed, it can never be said that the will is informal or unfinished. A will t>T codicil may operate as a revocation of a prior testamentary ■ instrument by the effect either of an express clause of revocation, or of an inconsistent disposition of the previously devised property.^ {Express revocation may, it seems, be produced in two different modes, having different effects. Thus, if there be a bequest Distinction by will to several persons as tenants in common, and by codicil catbro/a^"" the testator revoke the bequest to one of them, his share will gift and of so not accrue to the others (m) . This is the ordinary mode. But ^"cont°ains if the testator revoke so much of his will as contains the gift *« S*- to one of such persons, here, if the words that remain are sensible per se, and amount without further alteration to a gift of the whole sutojept to the others, these wUl take the whole, the will being reM as if the revoked words had never been in it. Harris * v. Davis (w) *171 affords an example of the latter mode. In that case there was first a gift to A. and B. in common ; then, in a subsequent part of (0 Ante, p. 101. (4) Blewitt v. Blewitt, 4 Hagg. 410; Gillow v. Bourne, ib. 192. [(/) Tlie writing must " declare an intention to revoke," but need not be testamentary. And unless testamentary it will not be admitted to probate. Re Eraser, L. E. 2 P. & D. 40. See also Re Hicks, L. R. 1 P. & D. 683; Re Durance, L. R. 2 P. & D. 406. Such a writing may be executed by a married woman. Hawksley v. Barrow, L. R. 1 P. & D. 147. l(m) Cresswell v. Cheslyn, 2 Kd. 123; Humble v. Shore, 7 Hare, 247. Compare Shaw v. McMahon, 4 D. & War. 431, as to which see post, Ch. X., Ch. XXHI., Ch. XXXII., s. 3. (n) 1 Coll. 416. 1 See Idley v. Bowen, 11 Wend. 227 ; a former inconsistent will is a'revocation of a Allison ». Allison, 7 Dana, 94. subsequent will. Havard v. Davis, 2 Binn. 2 A will may be revoked by implication 406. Where a testator executed a second by the puljlication of a later testament incon- will, supposing at the time that his first will si.)'; and in an early case, before the Statute of Frauds, a distinction is talcen be- tween the effect of a testator saying ' ' I wiU revoke my will made at P.," which refers to a future act, and when he says, " My will made at P. shall not stand," which is a present resolution, the latter being, it was considered, an actual revocation, and the former not (q).^ Of course a mere intimation by a testator of his intention to make by Mereinten- ^ future act a new disposition, does not effect an actual tion to revoke present revocation. Thus where A. (r) made a will, dis- Mt tnopera- posing of Ms real and personal property, and afterwards, tive. the residuary legatee of the personalty being dead, and A. having acquired other real property, he made another will whereby he devised the newly acquired property, and then wrote as follows : " As to the rest of my real and personal estate I intend to dispose of the same by a codicil to this my will hereafter to be made : " it was contended that this clause, though inoperative as a disposition, indi- cated an intention to revoke the prior will ; but Lord EUenborough and Lawrence, J., held that it was not a revocation. They considered the cases before the statute to be applicable, and that the testator merely intended to dispose of the subsequently acquired real estate, and the property which had lapsed by the death of the residuary legatee : and that, even if this had imported an intent to revoke by making a differ- ent disposition in future, it would not, according to the authorities, have amounted to a revocation, unless the court could ascertain what the difference was. Expres^s^ *172 * [And even an express clause of absolute and revocation re- present revocation of all former wills may be reduced constructs. *° **^*^^ ^'^ partial silence, either by showing that the clause (o) Sykes v. Svlws, L. R. 4 Eq. 200.] (p) Cleobury v. Beckett, 14 Beav. 588.1 (q) Burton v. Gowell, Cro. El. 306. (r) Tliomas v. Evans, 2 East, 488. See also Griffin v. Griffin, 4 Ves. 197, n. 1 Ray V. Walton, 2 A. K. Marsh. 71. another will is made, I desire that the foresro- 2 In Brown v. Thornrtilie, IB Pick. 388, a ing be considered as revoked and of noeftect." testator wrote on his will, "It is my intention This was considered as a present revocation of at some future time to alter the tenor of the a will of personal estate. This was before the ^bove will, or rather to make another will; Revised Statutes of Massacliusetts. See Wit- therefore be it known, if I should die before ter v. Mott, 2 Conn. 67. 202 BY SUBSEQUENT WILL OR CODICIL. *173 was inserted by mistake (s), or that it is unreasonable to give un- restrained effect to the words ; as in cases where, hy one testa- mentary paper, a person exercises a power of appointment, and then by subsequent instrument either exercises another and distinct power (t), or deals with his own propertj-, and not with the subject of the former power («) : in these cases it has been held that the former appoint- ment is not revoked.] It was decided at an early period, that, in order to revoke a will, it is not sufficient that the existence of a subsequent wiU Ecvocation should have been found bj' a jury ; it must be found to be eiTcv o£"d'is^ different from the former (x), and even the latter finding position. wiE not avail, if it be added that the nature of such difference is unknown to the jurors (y).^ [And an instrument stating itself to be the testator's last will does not necessarily operate to revoke a prior will, either as regards real (z) or personal estate (a)-] The most simple and obvious case of revocation by inconsistency of disposition is that of a testator having devised lands to a person in fee, and then by a, subsequent will or codicil devising the same lands to another in fee ; in such case the latter devise would operate as a com- plete revocation of the former (b).^ And here the learned reader can- not fail to perceive in the difference of construction which has obtained, where two devises in fee of the same land are found in one and the same will, and where they are found in several distinct wUls, the greater anxiety * evinced to reconcile the several parts of *173 the same testamentary paper, than to reconcile several distinct [(s) Powell V. Mouchett, 6 Madd. 216; Ee Oswald, L.E. 3 P. & D. 162 ; and cases cited ante, p. 78, n. (.;'). («) Ee Mereditli, 29 L. J. Prob. 155. The parol evidence read at the bar in this case of course formed no ingredient in its decision. See also Ee Merritt, 1 Sw. & Tr. 112, 4- Jur. N. S. 1192; Ee Joys, 30 L. J. Prob. 169. It is otherwise if the testator by the second instrument again refers "to the same power, though he fails thereby to dispose of the whole subject. Ee Eustace, L. E. 3 P. & D. 18-?. (u) Hughes V. Turner, 4 Hagg. Eccl. 52; Denny v. Barton, 2 Phillim. 575.] (x) Seymor v. Nosworthy, Hard. 374; Show. 'P. C. 146. [If the subsequent will is lost or destroyed, parol evidence is admissible to prove its contents. Brown v. Brown, 8 Ell. & Bl. 876.] (y) Goodright v. Harwood, 3 Wils. 497, 2 W. Bl. 987, Cowp. 87, 7 B. P. C. Toml. 489. [So in the case of a revocable appointment by deed where the contents of a subsequent ap- pointment are unknown. Kawlins v. Eikards,>28 Beav. 370. (z) Freeman v. Freeman, 5 D. M. & 6 704. (a) Cutto V. Gilbert, 9 Moo. P. C. C. E. 131; Richards v. Queen's Proctor, 18 Jur. 540, Lemage v. Goodban, L. E. 1 B. & D. 57; Ee De la Saussaye, L. E. 3 P. & D. 42; Ee Petchell, ib. 153.] (b) 3 Mod. 206, [Litt. s. 168; Ee Hough's Estate, 15 Jur. 943, 20 L. J. Ch. 422; Evans ». Evans, 17 Sim. 107. 1 Evidence that a subsequent will had See Nelson v. McGiffert, 3 Barb. Ch. 158. been made by thetestator and had been stolen But see Jones v. Murphy, 8 Watts. & S. 275, from him, without any proof of its contents, where it was held that in case of spoliation nr together with proof of his declarations, after fraud, in reference to the suppression or de- the will was stolen, that he would die intes- struction of a second will, it was not necessary tate, and leave his property to be distributed to show its contents, or in what respect it re- according to the statute, was held not to be volted the first, as must be done in ordinaiy sufficient evidence of the revocation of a for- cases, mer will, in Hylton v. Hylton, 1 Gratt. 161. ^ Brant v. Willson, 8 Cowen, 56. 203 *174 EEVOCATrOK OF 'WTLLS papers of different dates, though constituting, in the whole, one will. In the former case, the devisees (as hereafter shown) take concurrently in order to avoid making one part of the will contradict and subvert another ; and in the latter case no hesitation seems to have been felt in holding the second devise to be revocatory of the first. And the distinction seems to be reasonable; for though it may be very uidikely that a testator should wholly change the object of the devise in the short interval between his passing from one part of the wiU to the other, there is no such improbabiEty that, in the longer lapse of time between the execution of two testamentary papers of different dates, such a change of purpose should have occurred. [So if the residue of personal estate be given by will to A., and by Gift of resi- codioil to B., the former gift is revoked (c) . And this was revo&b" ^^ ^^^^ in Earl of Hardwicke v. Douglas (d), though the similar ^ift gift by codicil was of personal estate "not hereinbefore or in codicil. ijy my ^jj]^ jjj. g^jjy ^^^^^ codlcil dlsposcd of." The words wkke li. " " were construed to mean " not hereinbefore or by my will Douglas. disposed of by way of particular legacies," thus leaving something for tJie gift to operate upon: literally construed they left nothing. Again, in Kermode v. Macdonald (e) , where a testator by her wiU bequeathed specific and pecuniaTy legacies, and gave the resi- due of her personal estate to A.,' and then by codicil gave " all her personal estate" to B. ; it was held, that "all her personal estate" meant the whole of the personal estate which by her will the testatrix h-.d divided into two portions, the legacies and the residue, and that tlie will was therefore wholly revoked. But where a testator bequeathed portions of "his money in the Gift of pap- funds" to several legatees, and " the surplus of his money ticuiar resi- ^ ^he funds " to be distributed by his executors among the voked by legatees, and then by codicil, after bequeathing some specific the'^eneral"^ chattels, gave " the surplus remaining after the aforesaid residue. legacies are paid " to the children of A. ; Sir J. K. Bruce, V.-C, held that the gift of surplus, monej' in the funds was not revoked by the residuary gift contained in the codicil, which was so expressed as to embrace other property (/) . *174 * Under the old law] where a testator at different periods of his life made various testamentary papers, some of which he ''"- •^'wifia destroyed, and others he left undestroyed, each piu'porting are subsist- to contain Ws last will, this character belonged exclusively ing at death. ^^ ^^^.^ ^^^ ^^ ^1^^ uncancelled papers as was executed next before his decease (g) ; and in order to ascertain the time of the execu- r(o) Fownes-Luttrell v. Clarke, W. N. 1876, pp. 168, 249. Id) 7 CI. & Fin. 795, West, P. C. 555, per Lords Brougham and Lymdhurst, reversing Douglas D. Leake, 5 L. J. N. S. Ch. 26; coram Lord Cottenham, who inD. P. retained his ooinion. Compare Lee «. Delane, 4 Do G. & S. 1. (e) L. R. I Eq. 467) 3 Ch. 684: (/) Inglefield « Coghlan, 2 Coll. 247J (o) See Goodright v. Glazier, 4 Burr. 2512 ; Harwood v. Goodright, Cowp. 92. [This rule is of course inapplicable to the present state of the law. See 1 Vict. c. 26, s. 22.] 204 Br SUBSEQXJENT WILL OB CODICIL. *175 tion of tibe-respective papers, recourse may be had' to evidence, derived eitlier from their own contents, or from extrinsic sources. Sometimes the water-mark, showing the date of the manufacture of the paper on which a will is written affords decisive proof of its posteriority to another will, the period of whose execution can be ascertained by other means (h). If, from the absence of date and of every other kind of evidence, it is impossible to ascertain the relative chronological position of As to contra- two conflicting wills, both are necessarih- held to be void, '^|<='°0' wi.'is -, , , , 01 uncertain and the heir as to the realty, and the next of kin as to the date: personalty, are let in ; but this unsatisfactory expedient is never re- sorted to, until all attempts to educe from the several papers a scheme of disposition consistent with both have been tried in vain (i). _+ j^ And even where the times 6f the actual execution of the onciled if respective papers are known, so that, if they are inconsist- P"^^''''^' ent, there can be no difficulty in determining which is to be preferred, the courts will, if possible, adopt such a construction as will give efiect to both, sacrificing the earlier so far only as it is clearly irreconcilable with the latter paper (k) ; supposing, of course, that such latter. paper contains no express clause of revocation,^ [or other clear indication of a contrary intention (^).] As where a testator made a will devising his lands to trustees, for two hundred years, to pay his debts, and afterwards, by another will, devised the same lands to other trustees for three hundred 3"ears, to discharge some particular specialty debts mentioned in a deed executed after the first will, and all incumbrances aflFecting the property ; Lord Talbot held, that the first term of two hundred years was not revoked, as the two terms were not inconsistent, the testator's intention in cre- ating the term of three hundred years being merely for the pur- pose of * giving priority in payment to the specialty debts, and *175 the charges affecting the estate {m) . The inclination to such a construction as would preserve, either wholly or in part, the contents of the prior document, how- —provided ever, exists only, either when the subsequent document is that the sub'^ inadequate to the disposition of the entire property, so that menTb a""^" the consequence of rejecting the prior document would be to ?<"!'"'• "^ ^^ . r^ incomplete produce partial intestacy (n) ; or else where the posterior will. (h) The writer, however, understands that paper, made near the close of a year, sometimes (like literary publications) bears the date of the year following. (i) See Phipps v. Earl of Anglesea, 7 B. P. C. Toml. 443. [(i) Richards v. Queen's Proctor, 18 Jur. 540. (/) Plenty v. West, 6 C. B. 201, 16 Beav. 173 ; Dempsey v. Lawson, 2 P. D. 98.] (m) Weld V. Acton, 2 Eq. Ca. Ab. 777, pi. 26. [The word "deed," occurring four times in this report, seems a mistake for "will," though the report might be made consistent bv reading "demise," for "devise;" and see Coward v. Marshal, Cro. El. 721. {«) See Freeman v. Freeman, Kay, 479, 5 D. M. & G. 704. In Plenty v. West, 1 Enb. 264, 4 No. Cas. 103, 9 Jur. 458, Sir fi. J. Fust would not, even in such oases, recognize the existence of the inclination as regards personalty; but see Cookson v. Hancock, 1 Kee. 817, 1 Richards ». Queen's Proctor, 28 Eng. L. & Eq. 610; Prices. Maxwell, 28 Penn. St. 23, 38. 205 *176 EBVOCATION OP WILLS paper is styled a codicil (o) : for the office of a codicil being to vary or add to and not whoUj'' supplant a previous Tvill, such a designation of the instrument seems to demand that some part, at least, of the will, whose existence it supposes and recognizes, should, if possible, be sus- tained. [If the subsequent instrument does not profess to be a codicil and is adequate to the disposition of the entire property, there is no such a priori improbability that it was intended wholly to supplant the prior instrument. The case then rests on the true construction of the contents of the two instruments, and the complete disposition contained in the second must, unless controlled by the context, wholly revoke the first. Thus, in Henfrey v. Henfrey (/>), where a testator by will gave his household effects and other benefits to his wife, and all the residue of his estate and effects to A., and appointed him executor, and then by subsequent wiU left all he possessed " containing furniture, books, &c." to his wife, but did not appoint an executor, the first will, includ- ing the appointment of the executor, was held to be wholly revoked. " Containing " was read " inclusive of."] *176 * Numerous are the questions which have arisen in regard to the extent to which a codicil affects the disposition of a will or antecedent codicil, and which are commonly occasioned by the person framing the codicil not having an accurate knowledge or recollection of the contents of the prior testamentary paper.' In dealing with such cases it is an established rule not to disturb the Codicil not to dispositions of the will further than is absolutelv necessary disturb will „ ^,, ... «,,.,, J- -1 2 -n more than for the purpose of giving effect to the codicil,'' as will appear absolutely from the following adjudications, which have been selected necessary. ^ •' ' 2 Mj-. & Cr. 606; Lemage v. Goodban, L. E. 1 P. & D. 57; Birks v. Birks, i Sw. & Tr. 23, 34 L. J. Prob. 90. (0) Re Howard, L. E. 1 P. & D. 636; Eobertson ». Powell, 2 H. & C. 762.] [(p) 2 Curt. 468, Moo. P. C. C. 29, 6 Jur. 355. And see Cottrelli). Cottrell, L. E. 2 P. & D. 397. By the civil law the appointment of an executor was a complete disposition of the per- sonal estate ; and in some early cases in the Ecclesiastical Courts the mere appointment of a d ifferont executor in a subsequent paper, purporting to be a distinct will, was held to be a revocation of a prior will and appointment. Whitehead v. Jennings and Burt v. Burt, cit. 1 Phillim. 412. But such new appointment was afterwards decided not to be conclusive. Eich- ards V. Queen's Proctor, 18 Jur. 540 ; Birks i'. Birks, 4 Sw. & Tr. 23, 34 L. J. Prob. 90. And it seems doubtful whether even the appointment by subsequent will of a "sole" executor amounts per se to a revocation of the first. See, for revocation, Ee Lowe, 3 Sw. & Tr. 478, 33 L. J. Prob. 155; Ee Baily, L. E. 1 P. &D. 628. Contra, Geaves v. Price, 2 Sw. & Tr. 71, 32 L. J. Prob. 113i Ee Leese, 2 Sw. & Tr. 442, 31 L. J. Prob. 169 ; Re Morgan, L. E. 1 P. & D. 323.] 1 See PickerintT v. Lan^don, 22 Me. 430; intent to make a different disposition of the Homer «. Rhelton,' 2 Met. 202. whole estate. 2 Greenl. Ev. § 681 ; Harwood 2 A codicil is no revocation of a will, ex- v. Goodright, Cowp. 87 ; Cleoburey v. Beck- cept in the precise degree in which it is incon- ett, and Cleoburey i). Turner, 14 Beav. 683 ; sistent with it, unless there be words of Willaims v. Evans, 1 C. & M. 12. An inten- revocation. Brant ». Willson, 8 Cow. 56; tion expressed by a testator, in a codicil to his Bradley ». Gibbs, 2 Jones. Eq. 13; Bovd v. will, to make an alteration in the will in one Latharh, Busb. 365. See Pierpnnt v. Patrick, particular, negatives by implication anvinten- 53 N. Y. 691; Pickering v. Langdon, 22 Me. tion to alter it in any other respect. Qmncy 430; Homer v. Sheltnn, 2 Met. 202; Bos- V. Rogers, 9Cush. 291; Vaughan v. Bunch, lev V. Boslev, 1+ How. 390; Kane v. Astnr, 53 Miss. 513. Thus, a testator, by his last Will 6 ■ Sandf. 467; Nelson D. McGiftert. 3 Barb. and testament, gave to A., B., and C. a legacy Oh. 168. And this though it professes an of $2,000 each, and also to each an equal share 206 BY SXTBSEQUBNT WILL OK CODICIL. *177 from a large mass of cases (g), that might be cited in illustration of the principle. 1 Thus, where a testator by his will devises lands to A. in fee, and by a codicil devises the sapae lands in fee to the first son of B. who shall attain the age of twentj'-one years and shall assume the testator's name, the first devise will be revoked only quoad the interest comprised in the executory devise in the codicil ; so that, until B. has a son who attains his majority and assumes the testator's name, the property will pass to A. under the devise in the will {r) . So, where a testator devises lands to A. subject to a charge in favor of B., and then by a codicil revokes the devise to A. of the Charge not land, which he gives to another, without noticing the charge, Jevocation^of the land remains subject to the charge in the hands of the devise of land substituted devisee («), '^''^''sed. * So, where a testator by his will devised his estates to C. B. *177 for life without impeachment of waste, and bj- a codicil directed his trustees to let, until tenant for life married, the lessees Kxampies of to be impeachable of waste, and the rents to be accumulated "ion'by codi- and laid out in lands to be settled to the same uses ; it was cii. (g) Cases as to the combined effect of a will and several codicils are frequently not only very long, but are too special to be of much use as general authorities. Doe d. Hearle o. Hicks, 8 Bing. 475. [1 CI. & Fin. 20;] [Hicks v. Doe, 1 You. & J. 470; Alexander v. Alex- ander, 2 Jur. N. S. %M, 6 D. M. & G. 5tl3 ; Agnew v. Pope, 1 De G. & J. 49 ; Patch v. Graves, 3 Drew. 348.] The question whether a codicil was wholly or partially revocatorv, was much discussed in Cookson v. Hancock, 1 Kee. 817, 2 My. & C.'606. [See also Schoflefd i'. Cahuac, 4 De G. & S. 533; Lord Lovat v. Duchess of Leeds. 2 Dr. & Sm. 62. A question often arises whether the whole or only a part of a series of limitations is revoked bv a codicil, as to which see Philipps v Allen, 7 Sim. 446 ; Murray v. Johnston, 3 D. & War. 143; Fry ». Fry, 9 Jur. 894; Twining?). Powell, 2 Coll. 262; Sandforrt u. Sandford, 1 De G. & S. 67; Ives'i). Ives, 4 Y. & C. 34; Daly v. Daly, 2 J. & Lat. 753; Morrison ». Morrison, 2 Y. & C. C. C. 652; Boulcott V. Boulcott, 2 Drew. 25, 35: Wells v. Wells. 17 Jur. 1020; Alt v. Gregory, 8 D. M. & G. 221; Robertson v. I'owell, 2 H. & C. 762. Where the residue was given to exec- utors by will, and a codicil directed that A. should also be executor, and that the will should take effect as if bis name had been inserted therein as executor, A. was held not entitled to a share of residue. Hillersdon v. Grove, 21 Beav. 518; and see Gibson's Trusts, 2 J. & H. 656, stated post.] ()•) Duffield V. Duffield, 3 Bli. N. S. 261, [1 D. & CI. 268, 395, Sug Law of Prop. 216 ; and see Doe d. Evers v. Ward, 16 Jur. 709, 21 L. J. Q. B. 145; Re Colshead, 2 De G. & .1. 690; Norman v. Kynaston, 29 Beav. 96, 3 D. F. & G. 29, with which compare Nevill v. Boddam, 28 Beav. 554, where there was an express clause of revocation.] (s) Beckett v. Harden, 4 M. & Sel. 1 ; [Young v. Hassard, 1 Dr. & War. 638 ; Fry v. Fry, 9 Jur. 894; and compare Kavens v. Taylor, 4 Beav. 425; Hinchcliffe v. Hinctcliffe, 2 Dr. & Sm. 96.] with others namedin theresidueof hisestate; ticulars." It was held that this codicil did and by a codicil, which recited that his inten- not revoke the residuary gift in the will to A., tionin respecttothelegacies to A., B.,andC., B., andC Quincy v. Rogers, supra, was not carried into effect by his will, he i Rodgers v. Rotlgers, 6 Heisk. 489 ; Brown provided as follows: "I therefore, in this «. Cannon, 3 Head, 357. A bequest to C. L., particular, declare my will to be, that the in case he outlived L. L., to whom the use of sum of S6,000 shall be taken \>y" A., B.. and it, durmg her life, had previously been given, C, " or those of them who shall survive me, of ■• such part of the personal estate as may they to share alike; but if all these persons then remain,'' which was made in a codicil, shall die in my lifetime, then the said sum was construed as conveying all the personal shall sink into the residue of my estate. I estate that remained after the decease of L.L., declare this provision for said legatees to be without regard to the disposition which had in lieu of, and as a substitute for, that made been made of it in the original will, and as in their behalf bv the aforewritten will, and not limited to such personal property as re- this writing shall be taken as a codicil tln-ie- mauled otheiwjse undisposed of by the origi- to, hereby ratifying said will In all other par- nal will, In Holley ». Larrabee, 2^ Vt 274. 207 *178 REVOCATION OF "WILLS contended that this was inconsistent with, and therefore revoked, the devise for life without impeachment of waste ; but Sir W. Grant, M. R., held, that there was no inconsistency, and nothing to take the timber from the tenant for life (t). Again, where a testator by his will bequeathed as follows : " As to _ . my leasehold house in S., and my household goods and fur- pression in niture there and at S., and as to all my plate, linen, chinar, fintd to^its" ^S'l'^i pictures, live and dead stock, and all the rest and meaning in residue of my goods, chattels, and personal estate," he gave ^ ^' ■ the same to A. By a codicil he revoked the bequest of the residue of his personal estate to A., and gave the same to B. It was held, that the revocation was confined to the "residue," and did not extend to either the leasehold house and furniture, or the other enume- rated articles, namely, the plate, &c. (ii) . [And where by his will a testator devised tithes, and then devised all his real estates of what nature or kind soever, and by codicil devised in a different manner all his real estates of what nature or kind soever. Sir L. Shadwell, V. C, held that the second gift in the will did not, but that the gift in the cod- icil did, include the tithes ; the Court of Q. B., however,, differed from him on the last point, holding that the words " real estates" in the cod- icil were to be interpreted in the same manner as in the will (x). Again, in Doe d. Murch v. Marchant (y), where by wUl an estate was Gift in codi- devised to A. in fee, and by codicil "instead of" that de- of'""g?ft in** vise ;the estate was given to A. for life, with alternative will. contingent remainders to her children and her collateral re- lations, which failed ; A. was held entitled to the fee : " instead of the devise in the will" being read "instead of so much of it only as was incompatible with the codicil," and the codicil not disposing of the ulti- mate fee. And where a trust fund, which by will was given to the children of A. living at a stated period, with a power of advance- *178 ment in the trustees, was by codicil, * " in lieu of such disposi- tion," given to the children of A. living at a different period, and in other respects the will was confirmed ; it was held that the power of advancement was not revoked (y«). But though the expression "instead of" need not mean total substitution, it naturally implies some substitution ; as was held — still in favor of non-revocation — in Barclay v. Maskelyne (z) , where the will gave legacies to the six chil- dren of A., naming them, and the codicil revoked the legacies " to the children of A., and in lieu thereof" gave a sum amongst " the children of A., to wit" (naming five of them) ; and it was held that the legacy («) Lushington v- Boldero, G. Coop. 216. [See also Green v. Biitteii, 1 D. J. & S. 649.] («) Clarke o. Butler, 1 Mer. 304; [see also Barclay v. Maskelyne, 5 .Tur. N. S. 12; Hiuch- cliile V. Hinchcliffe, 2 Dr. & Sm. 96. (x) Evans v. Evans, 17 Snn. 86 ; Williams v. Evans, 1 Ell. & Bl. 727. (j/) 8 M. & Gr 813, 7 Scott, N. E. 644. See the case mere fully stated Ch. VTII., on the question of republication. («a) Hill V. Walker, 4 K. & J. 168 j see also Butler v. Greenwood, 22 Beav. 303. (i) B Jur. N. S. 12. 208 BY SUBSEQUENT "WILL ' OK CODICIL. *179 to the sixth was not revoked, because nothing was substituted for her. Again, in Re Arrowsmith's Trust (a), where by will a testator be- queathed a specifle fund to his nephews and nieces, and gpecifio gift after the death of his wife gave them all his remaining prop- in will not re- erty ; he then by codicil bequeathed certain legacies (one of general gift them to be paid at his wife's death), and gave " all his real m codicil and personal estate" to his wife for her life : it was held that the spe- cific gift to the nephews and nieces was not disturbed, and that the codicil was meant only to remove the doubt which might arise on the will whether the wife was to take the residue for life. Where a testator directed his trustees, to whom he had given all his property, to carry on his business for ten years, and then to q^^^ ^j^^^g seU and hold the proceeds upon trust, as to one moiety for held change his daughter and her children, and as to the other moiety merely and for the children of his son, and bj' a codicil revoked that no revocation part of his will which empowered his trustees to sell, and in- stead thereof authorized his daughter to take possession of his property and to dispose thereof at her discretion ; it was held, that this was not an absolute gift to the daughter, but only constituted her a trustee in place of the trustee named in the will (b). Where a person is appointed to more than one of-the offices of guar- dian, executor, and trustee, a revocation by codicil of his appointment to one of the offices, is not a revocation of the ag°t°o^'°"f appointment to any other office (c) ; unless the con- fice does not text shows, as *by directing "trastees" to pay *179 oUier offices. debts and legacies, that the several offices (of trustee and executor) are to be filled by the same persons (d) ; nor is a legacy to a trustee, as a mark of respect, revoked by the appointment of another trustee in his place (e).] It may be observed, that where a testator, in order to avoid repeti- tion, has by his will declared his intention respecting a prop- Estates A. erty (say Whiteacre), then being devised by him, to be viLecftoft?' similar to what he had before expressed concerning another same uses .- property (say Blackacre) antecedently given, and he after- [o^A^^does *' wards by a codicil, or by obHteration, or otherwise, revokes not affect B. the devise of Blackacre, such revocation does not affect the devise of Whiteacre. Thus, in Darley v. Langworthy(/), where a testator by (a) 2 D. F. & J. 474. (b) Newman v. Lade, 1 Y. & C. C. C. 680; and see Barrv v. Crundall, 7 Sim. 430; Froggatt V. Wardell, 3 De G. & S. 685; and compare Schofield v. Cahuac, 4 De G. & S. 533. (c) Ex parte Park, 14 Sim. 89; Frv v. Fry, 9 Jur. 894; Graham v. Graham, 16 Beav. 550; Cartwright v. Shepheard, 17 Beav. 301; Worley v. VVorley, 18 Beav. 58; and see Hare v. Hare, 6'Beav. 629. ), a legdcy of 3,000?. was given by will, and by codicil a legacy of 4,000?. " in addition to the legacy revocation of 2,000?. given by my will ; the mention of the legacj"^ of fromambigu- 3,000Z. as being only of 2,000?. was held not to reduce it to ous expres- the latter amount. Again, in Bunny v. Bunny {q), a testa- trix by her will gave to the seven children of J. B. a legacy *182 of 200?. * each, and other interests ; by a first codicil she revoked the legacies of 200?; each to the children of J. B. and all other benefits given them by her will, and in lieu thereof gave only the legacy of 200?. each to A., B., C, D., and E., five of the children of Jj B. By a second codicil she revoked all the legacies she had left in her will to J. B.'s children ; and bj' a third codicil she revoked the legacy of 200?. by a previous codicil to her said will given to A. The question was, whether the legacies given by the first codicil to the plaintiffs B., C, D. and E. were revoked by the second codicil ; which depended on what the testatrix meant by the word "will" in the second codicil. The word might mean all the previous unrevoked testamentarj' pa- pers (r) : but if that was what the testatrix meant, it was not easy to account for the subsequent revocation (by the third codicil) of a sup- posed existing gift to A. in the first codicil. It was true that if she meant the will only without the codicil, then she was doing what was unnecessary, as the legacies in the will had already been revoked by. the first codicil ; nevertheless it was held, that the former interpretation best answered the apparent meaning of the testatrix, and that the lega- cies to B., C, D. and E. were not revoked. And this construction was aided by the third codicil, which revoked the legacy given to A. by a previous codicil, showing that the testatrix considered that A., and consequently the plaintiffs also, had at that time legacies left by the previous testamentary papers. And in Cleobury v. Beckett (s), where legacies were given in a codicil to a class of persons " except A., who is not intended to take any benefit under my will or this codicil ; " it was held by Sir J. Eomillj', M. R., that these words did not operate as a revocation of an express gift by the will to A. He observed that such words, were extremely ambiguous, and did not seem to him to im- port a distinct and present revocation of the devise in the will.] * (p) 7 Sim. 29 ; and Mann v. Fuller, Kay, 624. in) 3 Beav. 109; and see Farrer v. St. Catharine's College, L. R. 16 Eq. 19; Pratt v. Pratt, 14 Sim. 129; Sawrey v. Rumnev, B De G. & S. 698; Stokes v. Heron, 12 CI. & Fin. 161. (r) See above p. 117, and below p. 189. (s) 14 Beav. S83; see also Agnew v. Pope, 1 De G. & J. 49.] 1 Parol evidence of an intention to revoke, 5 P. D. 106; Thorne v. Rooke, 2 Curt. 799; "or to add to, or to substitute something else Methuen v. Methuen, 2 Phillim. 416; Green- for, a will is admissible if it bo doubttulupon oiigh v. Martin, 2 Add. 239, 243. See Demp- the face of the will what was the mtention of sey v. Lawson, Law Rep. 2 P. D. 98, where the testator. Jenner v. Flinch, Law Rep. the point had been left undecided. It was 212 BY SUBSEQUENT "WILL OR CODICIL. *183 But an intentioa to revoke, though expressed in loose and untechnical language, or in terms capable per se of a hmited interpreta- intention to tion, must nevertheless prevail, if it can be clearlj' collected revoke may from the whole wUl(<). [On this principle, it is not neces- byln£oi™li sary that the gift to be revoked should be accurately referred expressions. ; to(i«), or that the legatee by the will should be actually named in the codicil (a;).] *And here, it maybe observed, that where a testator by a *183 codicil revokes a devise or bequest in his will, or in a previous codicil, expressly grounding such revocation on the assump- Relocations tion of a fact, which turns out to be false, the revocation does founded on not take effect ; being, it is considered, conditional, and de- ™'^'*''^- pendent on a contingency which fails. Thus, in Campbell v. French (y), where a testator, having by will bequeathed to the two grandchildren of his late sister 500^. each, by a codicil declared that he revoked the legacies bequeathed by his will to such grandchildren, " they being all dead," and the fact appearing to be that they were Kving, Lord Loughborough held, that the legacies were not revoked.'' So, in Doe d. Evans v. Evans (z), where a testatrix by her will dated July, 1819, devised lands to A. for life, with remainder to his irst and other sons in taU, with remainder to his daughters in tail ; and by a codicil, dated in 1829, after reciting the above devise, and that A. had died without leaving issue, she devised the lands to B. The fact was that A. died in 1827, leaving a posthumous child, whose birth was not known to the testatrix when she made her codicil, but she afterwards became acquainted with it. The court considered that this was a con- ditional revocation; and the fact being contrarj^ to what the testa- tiix supposed, the devise in the will remained in force. Had the testator in the preceding cases, instead of making the death of the devisee or legatee under the circumstances described Distinction the ground or reason of the revocation, founded such revo- ^gt'ts^'fl cation on his advice or belief only of the fact, it is conceived and where that the result would have been different. A distinction of ^eiief^Jf"ihr this nature seems to be warranted by Att.-Gen. v. Lloyd (a), fact, is tlie where a testator, by a will made before the passing of the revocation. (t) Read «. Backhouse, 2 R. & My. 546. [(m) Pilcher v. Hole, 7 Sim. 208 ; Carrington v. Payne, 5 Ves. 423. (x) Ellis V. Bartrum, 25 Beav. 107.1 {y) 3 Ves. 321. (2) 2 Per. & D. 378, [10 Ad. & Ell. 228.] (a) 3 Atk. 5.52, 1 Ves. 32; [and see the ohsei-vations of Lord Eldon, 1 Mer. 148, 149. In Thomas v. Howell, L. R. 18 'E,a^. 198, 209, a testator by will bequeathed certain charity lega- cies, and by codicil, "presuming and believing tliat the rental of his estate would produce decided in Jenner ». Ffinch, supra, that be shown dehors the will, — it must appear under the Wills Act of IVict. ch. 26, § 20, no on the face of the will, and it must also ap- express words of revocation were necessary, pear what the will of the testator would have — that revocation by implication was suffi- been but for the mistake. Gifford v. Dyer, cient. See Dempsey «. Lawson, supra. 2 R. I. 99. I But the mistake in such a case cannot 213 *185 EEVOCATION OF WILLS statute of 9 Geo. 2, c. 36 (6), devised lands and bequeathed per- sonalty to be laid out in lands for charitable uses. By a codicil *184 posterior *to the act [he recited that he was in doubt whether the devise would be good or not, and that he was desirous of con- firming it, nevertheless if the estate was not well devised, then he gave it to B. Afterwards he made a second codicil] by which, after reciting that being advised the devise of his lands would be void, and it being his intention that the charity should be continued, and being advised his personal estate could be given, he did by such codicil give liis per- sonal estate to the charitable uses before mentioned ; and he did thereby give his real estate to B. Though the testator's notion as to the inva- lidity of the devise in the wiU was erroneous (c) , it was held that the devise to B. took effect.'' [Lord Hardwicke said the testator had put it on the advice he had received, which was a fact within his own knowl- edge, and he had grounded it on that advice and not on the reality of the law. If he had intended a new devise only if the will was void he would have left it on the first codicil.] So, where a testatrix by her will bequeathed 300^ among such of the children as should be living of E., and by a codicil proceeded as fol- lows : " I give to mj- brother's son C. the 300/. designed for E.'s chil- dren, as I know not whether any of them are alive, and if the}- are well provided for," Sir K. P. Arden, M. R., held C. to be entitled, though the children of E. were living. He observed, that " it was argued, and with some ground, that if it rested upon her not knowing whether they were living, there would be some reason to contend that it fell within the case (so often cited from Cicero de Oratore) of ' pater credens fllium suum esse mortuum alterum instituit haeredem ; filio domi redeunte hujus institutionis vis est nulla : ' but the testatrix goes further, that she doubted if they were Hving whether they might not be well provided for, and she totally deprives them of that provision. The court will not inquire whether they are well provided for or not (. Earl of Eijremonl, 7 Bear. 223 ; Cator v. Cator, 14 Beav. 463; Warwick v. Ilawkins, 5 De G. & S. 48i; Duffield v. Currie, 29 Beav. 284; but the context may prevent an additional legacy from being paid precisely in the same manner as the original. Overend V. Gurney, 7 Sim. 128; King v. Tootel, 25 Beav. 23. (i) Cooper)). Day, 3 Mer. 154; Russell v. Dickson, 2 D. & War. 133; Martin v. Drink- water, 2 Beav. 215 ; Bristow v. Bristow, 5 Beav. 289; Earl of Shaftesburv v. Duke of Marl- borough, 7 Sim. 237; Fenton v. Farington, 2 Jur. N. S. 1120; Knowles V. Sadler, W. N. 1879, p. 20. But express terms, annexed to a legacy given by codicil " instead of " one ' given by will, excluded the substitutional construction in Ha!ley v. Bannister, 23 Beav. 336. As to whether legacies are cumulative or the one instead of the other, see Wilson v. O'Leary, L. R. 7 Ch. 448, and the cases there cited. (k) Re More's Trust, )0 Hare, 171; Mann v. Fuller, Kay, 624.] (0 1 Ves. Jr. 279, [3 B. C. C. 233;] see also Brudenell v. Boughton, 2 Atk. 268; [Bon- ner ». Bonner, 13 Ves. 379 ; Williams v. Hughes, 24 Beav. 474. 215 *187 EEVOCATION OF WILLS hospitals, and gave 1,500?. to the Foundling, 500?. to the Infirmarj' of N., and a sum to be distributed among the poor of S. It was unsuc- cessfully contended for the charities, that the legacies given by the .codi- cil were not, like those of the will, charged on the land, and were therefore valid. Lord Thurlow seems to have thought, that the neces- sity which this would have occasioned of holding, that the legacy to the new trustee must also come out of the personalty, formed a conclusive argument against the construction. [But it seems that even without this ground the decision must have been the same (m).] So, in Fitzgerald v. Field (n), where a testator gave his personal and freehold estates to trustees, upon trust, with the money ai-ising from his personal estate, and in aid thereof, by sale or mortgage of part of the freeholds, to pay certain annuities and legacies. By a codicil he revoked this bequest and devise, and gave the real and personal estate to other trustees upon the trusts in his will and codicil mentionedi He then bequeathed an. annuity to A. for life, with the payment of which he charged the residue of his said lands, and with a power of distress. Lord GifTord, M. R.', held, that, whatever might be the construction if the codicil stood alone, it was evident, looking at the will and codicil to- gether, the intention of the testator was, that all his personal estate should be applied in the first instance to the payment of annuities and legacies. [But this does not apply where the residue is by the will given to the legatees in proportion to the legacies "herein," or "by the will" bequeathed to them, and by codicil additional legacies are given to some of the legatees ; the proportion in which the residue is to be divided here remains unaltered (o).] Whether a legacy bequeathed by a codicil is to participate in an ex- ™.. . emption from duty created by the will in favor of the legacies legacy given in general given by the will {p), or of some particular exempt'ftom *^^'^ * legacy for which the legacy m the codicil is substi- duty like tuted, has often been a point of dispute. Even in wi . ^jjg latter case, it seems the intention to exempt the substi- [(m) Johnstone v. Earl of Harrowby, 1 D. F. & J. 183; Ee Smith, 2 J. & H. 594.] (n) 1 Kuss. 428. [(o) Hall V. Severne, 9 Sim. 515; siie Sherer v. Bishop, 4 B. C. C. 55.] (jo) What expressions exempt legacy or annuity from duty. The following expressions have been held to exempt the legatees from payment of duty. A direction to executors to make payment of all the legacies without any deduction (Barksdale v. Gilliat, 1 Sw. 562); or to pay the annuities and legacies clear of property tax and all expenses whatsoever atte7idmf/ the same (Courtoy v. Vincent, T. & R. 433); [or free from any charge or liability in respect thereof although in the same will there was a bequest free from any duiy^ Warbrick w. Varley, 30 Beav. 241 ;] or a gift of real and personal estate to executors in trust, to pay to .j. D. for life an annuity of 46/. clear of all deductions whatsoever ; though it was contended that the words excludingdeduction referred to the payment of the land tax, being applicable to the annuity only as a charge on real estate. Dawkins v. Tatham, 2 Sim. 492. Again, where the direction was that annuities should be paid to the legatees without any deduction or abatement out of the same on any account or pretence whatsoever ; and the argu- ment for the exemption was considered to be strengthened by the fact that there were no other deductions to which the annuitants were liable. Smith v. Anderson, 4 Russ. 352. So, where the legacies were to be f aid free from alt expense. Gosden v. Dotterill, 1 My. & K. 56. Again, where the annuity was to be paid out of land clear of' all taxes and deductions whatso- ever. Stowe V. Davenport, 5 B. & Ad. 359, [2 Nev. & M. 835.] So, where an annuity or 21G BY SUBSEQUENT WILL OB CODICIL. *188 tuted legacy must be distinctly indicated, there being no neces- sary inference that the legacy * bequeathed by the codicil is *188 to stand pari passu in all respects with the legacy for which it is substituted. Thus, where the legacies bequeathed by a will were to be paid free from legacy duty, and the testator by a codicil bequeathed to the husband of one of the legatees who had died an equal legacy, " instead of" the legacy given by the will to the deceased wife ; it was held by Lord Eldon, affirming a decree of Sir J. Leach, V. C, that the legacy given by the codicil was an independent, distinct, substantive bequest ; and, therefore, was not within the exemption (q). So, where a testator by his will gave to A. and B. an annuity of 300Z. , equally to be divided between them, during their joint lives, free from all taxes and stamp duties, and after the death of one of them, to the clear yearly-sum of 5001. was charged on a certain farm, and was to be paid half-yearly clear of all taxes and outgoings, Jjouch u. Peters, 1 My. & IC. 489. So, where a testator devised to J. M. for his lite one annuity or clear yearly sum of lOOi. charged upon his estates at C, which estates he then devised in trust to raise the annuity, ami the costs^ charges^ and expenses attending the raisinij and paying the same ; and then in trust for A. for life, with remainder over. Gude v. Mumford, 2 'Y'. & C. 448. The preceding cases have overruled Hales V. Freeman, 4 J. B. Moo. 21, 1 Br. & B. 391, where, however, the question whether the legacy was liable to duty was never raised. And it should seem (notwithstanding the cases of Burrows v. Cottrell, 3 Sim. 375 — where, indeed, the question was not raised), [San- ders V. Kiddell, 7 Sim. 536, and Harris «. Burton, H Sim. 161), that a gift of a clear sum or annuity, involves an exemption from dtity, Harper v. Morley, 2 Jur. 65*3; Ford v. Ruxton, 1 UoU. 403; Bailey v. Boult, 14 Beav. 595; Haynes v. Havnes, 3 D. M. & G. 590; Re Cole's Will, L. R. 8 Eq. 271 ; and see Hodgworth !). Crawley, 2 Atk. 376. A distinction has, indeed, been taken between tliis simple case and the case of a direction to trustees to set apaft a sum of money sufficient to produce a clear vearl}' sum, where the trust of the corpus is for persons in succession, Sanders u. Kiddell; Marris v. Burton ; Bailey v. Boult; and it was actually decided in Pridie v. Field, 19 Beav. 499, that in such a case the word "clear " did not mean free of duty. See also Banks v. Braithwaite, 32 L. J. Ch. 35. But this dis- tinction does not seem to be tenable on principle, Wilks v. Groom, 2 Jur. N. S. 798 ; Harper ». Morley, ubi supra.] But where a testatrix gave her real and personal estate upon trust to pay off the debts of her late husband, it was held that the legacy Avdy was to be borne by the legatee- creditors, though it was contended that the testatrix's object would not be completely, effected without paying the duty out of the general estate ; but the C. J. observed that the entire debt had been paid, and the legacy dutv was a burthen imposed on the legatee after he had received the legacy. Foster v. Ley, 2 Scott, 4-38, [2 Bing. N. C. 269. A direction in a will that the legacy duty on the legacies " herein " given shall be paid out of his estate does not extend to legacies given by codicil, even though the codicil is directed to be taken as part of the will, Early ». Benbow, 2"Coll. 355 ; and see (as to " herein ") Radburn V. Jervis, 3 Beav. 450; Fuller ». Hooper, 2 Ves. 242; Jauncey v. Att.-Geu., 3 Giff. 308; semis where legacies generally are given duty free, Byne v. Currey, 2 Cr. &; Mees. 603, 4 Tyr. 479 ; see also Williams ». Hughes, 24 Beav. 474. A direction to pay " legacies " free of duty will not generally include the proceeds of realty directed to be sold, White K.Lake, L. R. 6 Eq. 188; but probably would include legacies pavable out of such proceeds, see Hodges v. Grant, L. K. 4 Eq. 140. " Legacy," " fegatee," may however be explained by the context to refer to realty, post, Ch. XXII. s. 6. As to exemption f mm property-tax. Propertj'-tax is a charge on the person, and therefore a gift of an annuity to be paid loithout any deduction (Abadam v. Abadam, 33 Beav. 475), or free from legacy duty and other deductions (Lethbridge v. THurlow, 15 Beav. 339; Sadler v. Kickards, 4 K. & J. 302), does not exempt from the tax unless the testator has elsewhere shown that he considers income tax to be a "deduction," Turner v. MuUineux, 1 J. & H. 334. But a gift of an annuity without any deduction on account of any taxes, &c. (Fesdng v. Taylor, 3 B. & S. 235), or a direction to trustees to pay all taxes affecting the hereditaments given to the devisee (Lord Lovat v. Duchess of Leeds, 2 Dr. & Sm. 62), exempts the annui- tant or devisee from income tax as between himself and the testator's estate : and the ^exemp- tion does not contravene the income-tax acts, ib. Wall v. Wall, 15 Sim. 613, appears to be overruled.] (q) Chatteris v. Young, 2 Russ. 183; see also S. C. 6 Mad. 30, where the bequests are inaccurately stated. 217 *189 KEVOCATIOS' OF WILLS survivor during her life, and after the death of the survivor, over to C. for life. By a codicil the testator revoked the annuity of 300/., and gave A. and B. a clear annuity of 100/. each, with benefit of survivor- ship. It was held, that the gift by the codicil was independent of the giit in the will, and, therefore the annuities were not exempt from the duty (r). It is clear, however, that if a testator by his will gives a legacy free from duty, and by a codicil, after reciting his intention of increasing the legacy, revokes it, bequeathing in lieu thereof a larger sum to the same legatees upon the same trusts, &c.i the latter is also exempt (s). Sometimes a codicil has the effect of impliedly- I'evoking the posterior ^ ,. J of two wills, by expressly referring to and recosnizing the Implied revo- ., , . , , , . r .„ „ , cation by the prior one as the actual and subsisting will of the testator, effect of a Thus, if a testator makes a will in the year 1830, and at a coaiciL reviv- ' "^ ' ins; an earlier subsequent period (saj' in 1840) makes another will inconsist- ent with the former, but without destroj-ing such former will, and he afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will so referred to, in *189 * opposition to the posterior will (ty ; and parol evidence that the testator actually intended to refer to the will of 1840 would be inadmissible (u). An inaccurac}' in regard to the date of the will re- ferred to would not prevent the application of this doctrine, unless the mistake were such as to render it doubtful which of the two wills the testator had in view(j»). And it seems to have been considered, in the Ecclesiastical Court at least, that the fact of the codicil being written on the same piece of paper as the prior will (though it does not in terms refer to such will), sufiicientl^- indicates an intention to treat that as the subsisting will especially if (as happened in the case referred to) the posterior will was out of the testator's custodj-, so that he had no op- portunity of cancelling it (x). [But in a ease (y) where the reference was to "mj' last will dated," &c. (giving the date of the first will), it was held that the will which was really the last was meant, and that tlie date was a mistake.] In applying the doctrine that a reference in a codicil to the prior of two wills as the actual will of the testator sets it up against a ()•) Burrows v. Cottrell. 3 Sim. 375. (») Conner v. Day, 3 Mer. 154. [See also Fisher v. Brierley, 30 Bear. 267.] (0 Lord Walpole v. Earl of Orford, 3 Ves. 4T)2; S. C. nom. Lord Walpole v. Lord Chol- mnndeler, 7 T. K. 138; [Payne v. Trappes, 11 Jur. 854, 1 Rob. 583; Re Chapman, 8 Jur. 902, 1 Rob. 1.] (?() Crosbie v. Macdonal, 4 Ves. 610; [Payne v. Trappes, supra.] M Jansen v. .Tansen, cit. 1 Ad. 39. (x) Rogers v. Pittis, 1 -Ad. .30; see also Lord C. B. Evre's judgment in Barnes v. Crowe, 1 Ves. .Ir. 488 ; Guest i). WiUasey, 12 .T. B. Mno. 2, [2 B'ing. 429. (i/) Re Ince, 3 P. D. Ill; and see Thompson ii. Hempenstall, 1 Rob. 783, 13 Jur. 814, where the internal evidence was sufficient to correct the mistake as to date.] 1 See Brown v. Clarlt, 77 N. Y. 369. 218 BY SITBSEQUENT -WILL OE CODICIL. *190 posterior will, it is necessary to bear in mind, that every Eepublica- codicil is a constituent part of the will to which it belongs'; by"co°didi," for in a general and comprehensive sense a will consists of without re- the aggregate contents of all the papers through which it is tmnediate"'" dispersed ; and, therefore, where a testator in a codicil '^°f"^' ^°^^ ' not revoke refers to and confirms a revoked will, it is not necessarily to latter. be inferred that he means to set up the will (using the word in its special and more restricted sense) in contradistinction to, and in exclu- sion of, any intermediate codicil or codicils which he may have en- grafted on it. He is rather to be considered as confirming the will with everj' codicil which may belong to it ; and, accordingly in a case (z) where a person made his will, and afterwards executed several codicils thereto, containing partial alterations of, and additions to the will ; and by a further codicil, referring to the will by dccte, he changed one of the trustees and executors, and in all other respects * expressly *190 confirmed the will, this confirmation of the will was held not to revive the parts of it which were altered or revoked by the preceding codicils : Sir R. P. Arden, M. R., observing, that if a man ratifies and confirms his last will, he ratifies and confirms it with every codicil that has been added to it. [But the doctrine of Burton v. Newbery (a) is, that where by codicil a " will " is refeiTed to by date, it is a reference to that in- Dogg jt strument alone exclusive of any intermediate codicil. And revive the Crosbie v. Macdoual is treated as a case where the inter- viously mediate codicil was not revoked, rather than as one where revoked? it was actively confirmed (5). According to this, the direct actioD of the latest codicil is upon the instrument called a will, and on that onlj'. The codicil is left untouched, and operates by its own inherent force, if it has any ; and the ultimate result is, that the will is confirmed as modified by the codicil (c). If that is the correct view of the case, it will not govern one where the intermediate codicil has pi'eviously been revoked with the will to which it belonged, and where, therefore, it has no force except such, if any, as may be supplied by the subsequent codicil : and Burton v. Newbery deciding that a mere reference by date to an unrevoked will does not set up an invalid codicil to that will, goes far to decide also that in the case supposed the intermediate codicil would not be reinstated. However, Sir R. P. Arden's language, which has been adopted bj- later judges (d), implies a more intimate connec- {z) Crosbie v Macdoual, 4 Ves. 610; see also Gordon v. Lord Reav, 5 Sim. 274, stated ante, p. 116; fWade v. Nazer, 12 Jar. 188, 6 No. Cas. 46, 1 Rob. 627; Re De la Saussaye, L. R. 3 P. & D. 42 ; Green «. Tribe, 9 Oh. D. 231.] [(a) 1 Ch. D. 234, ante, p. 117. (4) The M. R. is even reported to have said that Crosbie v. Macdoual ''^ goes to this, that a mere reference to an instrument with a date is not a reference to the subsequent instrument," p. 240. (c) Where the first of two inconsistent wills is set up, the modus- operandi would be similar, though the ultimate result (viz. the unavoidable revocation of the second will) is dif- ferent. ■ (d) Sir J. Hannen, in Re De la Saussave, L. R. 3 P. & D. 42, and Sir E. Fry, Green v. Tribe, 8 Ch. D. 238. 219 *191 EEVOCATION OE "WILLS tion between will and codicil, and a more active operation upon the latter by an instrument referring to and confirming the will, though described by its date, than Sir G. Jessel would appear to admit or ap- prove. Where, however, a testator referring to his will by date revokes it, the case is different, because there the principle applies that a clear disposition is not to be revoked except by clear words (e).] In one case in the Ecclesiastical Court it was held, that the mere fact of the testator ratifying his will and certain specified codicils, did not of itself amount to an implied revocation of other codicils not so *191 specified (/). But, in another case, the court * arrived at a different conclusion, on a comparison of the contents of all the instruments, and looking at the conduct of the testatrix in relation to them (g"). Such questions may occur even in regard to wUls made since the Doctrine as year 1837 ; for though the 22d section of the recent stat- wiiis under ^^^ (^)' Prevents the revival of a revoked will, except by re- the new law. execution, or by " a codicil showing an intention to revive the same," and, therefore, no such effect would follow from the mere Eecognition revocation of a posterior revoking will ; yet it still holds, in a codicil according to the doctrine of Lord Orford's case, that a rec- wiii may ognition in a codicil of the earlier of two inconsistent and revive it; undestroj'ed wills, by date or otherwise, as the will on which the codicil is founded, shows an intention to revive such earlier wiU(i). but such will, [It has been decided, however, that if the earlier and re- revlved^ '" ''^ voked wiU has been destroyed by the testator or by his must be' in authority, it cannot be thus revived, though its contents existence. jnjgijt be satisfactorily proved from other sources : on the ground that the will being non-existent as well in fact as in law, this would be to make a new will without the formalities required by sect. 9 of the statute (k). And the reference to the earlier will being insuffi- cient to effect its revival, is insufficient also, of itself, to effect the revo- cation of the later will (/) ; on the principle alluded to at. the commence- ment of this section that an instrument inoperative to effect its direct (e) Per Fr.v, J., 9 Ch. D. 237, citing Farrer v. St. Catharine's College, L. E. 16 Eq. 19.] (/) Smith n. Cunningham, 1 Ad. 448. (0) Greenough v. Martin, 2 Ad. 239. [And see Re Reynolds, L. E. 3 P. & D. 35. (A) Ante, pp. 140, 145. (!) Payne v. Trappes, 11 Jur. 854, 1 Rob. 583: Re Chapman, 8 Jur. 902, 1 Rob. 1; Re M.'Cabe, 31 L. J. Prob. 190; Re Reynolds, L. R. 3 P. & D. 35; Sir J. Wilde has extiressed a contrary opinion ; see his judgment. Re Steele, L. R. 1 P. & D. 575 ; sed qu. the statute is there not quite accui'ately represented. ' (!c) Hale ». Tokclove, 2 Rob. 318, 14 Jur. 817; Newton v. Newton, 12 Ir. Ch. Rep. 118; Rogers v. Goodenough, 2 Sw. & Tr. 342, 31 L. J. Prob. 49. " Ilimit this, in my judgment, to cases where the will has been destroyed by the testator or by some person in liis presence and by his authoritv. I say nothing as to what would be the effect if the instrument had been destroyed witliout his knowledge; that question may arise another day." Per Creswell, J., in Rogers v. Goodenough. (1) Rogers v. Goodenough, 2 S. W. & Tr. 342, 31 L. J. Prob. 49. But see Hale v. Toke- love, 2 Rob. 318, 14 Jur. 817; Newton v. Newton, Law Titnes, Oct. 26, 1861, reversed on app. 12 Ir. Ch. Rep. 118 ; ill both of which cases the codicil, besides reference to the earlier (destroyed) will, contained an express oonfirmatioii thereof, and great stress was laid on this circumstance by the court. Sed qu. 220 BY SUBSEQUENT WILL OR CODICIL. *192 purpose (\'iz. revivor) does not give effect to an intention (viz. revoca- tion) of which nothing is known but by that purpose (m). The latter part of sect. 22 provides, that "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 *192 shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. Now if partial revocation of a will — as, of a devise of Blackacre to' A. in fee — has been caused bj' a codicil devising Blackacre to B. in fee ; and if this codicil has itself been afterwards included in the final revocation of the will, and the "will" is then revived; the devise of Blackacre remains revoked unless a contrar}^ intention is shown. The will is restored as modified by the codicil, but by a short statutory method, without having recourse to the codicil, concerning which the statute is silent ; and it may still be a question what becomes of the codicil. In Neate v. Pickard (ii) a will and codicil were revoked by marriage, and afterwards by another codicil the testator confirmed his "last will" without referring to the date ; and it was held that both were revived. At the date of the second codicil there were several alterations (unexe- cuted it would seem) on the face of the will, and it was further held that the will was revived in its altered condition.] (m) Ex p. Earl of Hchester, 7 Ves. 377-8; Powell v. Powell, L. E. 1 P. & D. 209. (n) 2 No. Cas. 406. See also Re M'Cabe, 31 L. J. Prob. 190; Ke Keytiolds, L. R. 3 P. & D. 35, In neither of which, however, was sect. 22 mentioned.] 221 *193 BEPTJBtlCATION OF WILLS. *193 . * CHAPTER VIII. KBPTJBLICATION. Republication is of two kinds, express and constraetive. Express T, . ,. republication occurs where a testator repeats tliose ceremo- Kepnblica- '■ . ^ tion, what. nies which are essential to constitute a vahd execution, with Express re- the avowed design of republishing the will.^ Under the pu ication. g^ji(;„te of Frauds, to republish a devise of freehold estate required an attestation by three witnesses ; while, on the other hand, a will might have been republished with respect to copyholds and perr sonalty without any attestation. It is not often necessarj^, however, to inquire as to the republication of wills of personal estate (a), inasmuch as a residuary bequest, even under the old law, embraced all that spe- cies of property of which the testator died possessed ; so that republi- cation (which merely causes the will to speak and operate from the period of its being republished) had no effect in enlarging the operation of such a bequest. Constructive republication takes place where a testator, for some Constructive Other purpose, makes a codicil to his will ; in which case republication the effect of the codicil, if not neutralized by internal evi- . y CO 101 . fience of a contrary intention, is to republish the will.^ By this means, under the old law, lands of inheritance acquired since the (a) As to the republication of wills of personalty, vide Long v. Aldred, 3 Ad. 48; Miller ■0. Brown, 2 Hagg. 209. 1 Love V. Johnston, 12 Ired. 355. Tn Penn- execution could not annul the prior execu- svlvania a will may be republished by parol. tions of the instruments, or alter or vary the Jones V. Hartley, 2 Whart. 103; Geddis's effect of the instruments, any further than Appeal, 9 Watts, 28-t. Such republication as a republication, and, therefore, would not must there be proved by two witnesses ; and make the will or codicils speak as from the the ideiititj' of the will spoken of by the date of the republication so as to revive a testator with that produced must be satisfac- lep;acy which had been revoked, adeemed, or torily shown. But it is not necessary that satisfied. Powys v. Mansfield, 3 Mylne & C. the will should be present at the time of re- 359; Urinkwater ». Falconer, 2 Ves. Sv. 623; publication, nor that the subscribing wit- Crosbie c MclJouall, 4 Ves. 611; Brooker ». nesses should prove the republication; nor Allen, 2 Euss. & M. 270; Langdon ». Astor, need the declarations be made at the same 16 N. Y. 9. time to the witnesses. And where evidence ^ Hence, by virtue of a codicil, lands ac- of such republication, by two or more compe- quired after the execution of the will and be- tent witnesses, is offered, it is error to refuse fore the execution of the codicil pass by ihe to allow it to go to the jury. Geddis's Ap- will. Brown v. Clark, 77 N. Y. 3G9:"Vftn peal, 9 Watts, 284. Generally, however, an Cortlandt v. Kip, 1 Hill, ,690; S. C. 7 Hill, attested will cannot be republished by parol. 346; Brownel v. De Wolf, 3 Mason, 486; Ijove V. Johnston 12 Ired. 355. A re-execu- Langdon v. Astor, 16 N. Y. 9 ; Powys ». tion of a will and codicils has no other ef- Mansfield, 3 Mylne & C. 359. See Musser v. feet than a republication. Although the Curry, 3 Wash. C. C. 481 ; Witter i>. Mott, will and codicils are declared to be the last 2 Conn. 67; Jackson v. Potter, 9 Johns. 312; will and testament of the testator, the re- Love v. Johnston, 12 Ired. 355; Murray v. 222 BEPUBLICATION OP WILLS, *193 execution of the -will were often brought within the operation of any general or residuary devise contained in such will, and that, too, though the codicil expressed no intention to republish, and though it was not annexed to, or declared to be a part of, and did- not in terms confirm the will, and whether the codicil related to real estate or personalty only ; the result being precisely the same as if the general or residuary devise had been incorporated into the codicil itself (6) .^ And the (i) Acherlevt'. "Vernon, Com. 381, 2 Eq. Ab. 769, pi. 1, 3 B. P. C. Toml. 85; Potter v. Potter, 1 Ves. 437 ; Pisrgott v. Waller, 7 Ves. 98; GoocUitle v. Meredith, 2 M. & Sel. 5; Guest t!. Willascv, 12 J. B. Moo. 2, [2 Bing. 429, 3 Bing. 614; Skinner v. Ogle, 4 No. Gas. 74; 9 Jur. 432; Re Earl's Trust, 4 K. & J. 673;] see also Doe o. Dary, Cowp. lo8; Gibson v. Montfort, 1 Ves. 485. Oliver, 6 Ired. Eq. 55; Sawyer v. Sawver, 7 Jones, 134; Battles. Speiglit, 10 Ired." 459; Jones V. Hartley, 2 Whart. 103; Wallace v. Blair, 1 Grant, Cas. 75; Eevnokls i' Shirelev, 7 Ohio, Pt. 2, 39; Pringle v. M'Pherson,'2 Brev. 279; Pringle v. Jl'Pherson, 2 Desaiis. 524; Cogdell v. Cogdell, 3 Desaus. 346; Dun- lap V. Dunlap, 4 Desaus. 305. But where a codicil, iu its dispositive part, is applicable solely and expressly to the property previ- ously devised by the will, it has not the effect of republishing the wifl, so as to caiTy after- purchased property, notwithstanding a more general intent indicated in its recital. Mony- penny v, Bristow, 2 Russ. & M. 117. See Haven v. Foster, 14 Pick. 541. To give a codicil the effect to republish a will so as to pass estates acquired between the date of the will and the date of the codicil, the woi'ds of the will must be of such a character as, it used at the date of the republication, would include the estate in controvei'sj-. If the language of the original will be such as, if nsed at the date of the republication, would riot include the after-purcliased estate in its terms or description ; or if the act of repub- lication be accompanied with other provisions indicating that it was the intent of the testa- tor to limit the operation of the will, as repub- lished, to the same estate, which was given, and would legally pass by the original will : then, notwithstanding such republication, the devise will not include the after-pui'chased estate; because although there exists the power to devise, yet the intent is wanting;' and as both do not concur, the after-pur- chased estate does not pass. Haven r. Foster, 14 Pick. 541. Since the provisions of Stat. 1 Vict. c. 26, § 24, and similar provisions in some of the states, making the devise operate on all the real estate of the testator at his death, the republication of a will made since those acts went into operation, by which it is merely made to speak from a subsequent date, IS divested of much of its importance in that particular. See York v. Walker, 12 Mees. & W. 591 ; Ashley v. Waugh, 4 Jur. 572. In other respects the efficacy of a codi- cil as a republication of the will remains untouched. Thus, a will executed under undue influence may be republished and confirmed by a codicil executed afterwards, when the testator is free from such influence. O'Neall v. FaiT, 1 Rich. 80. See 1 Williams, Ex. (6th Am. ed.) 225. So if a married woman make a will, being, at that time, in- testable in law; still, if surviving, she repub- lishes that will, subsequently to the death of her husband, it is a good will. Braham v. Burchell, 3 Addams, 243. Where, from an alteration in the circumstances of the testa- tor, or other cause, a will is revoked by im- plication, yet if the testator refer to it in an instrument itself duly attested, the will is republished. Brady i. Cubitt, 1 Doug. 31. 1 A codicil duty executed will operate as a republication of the will to which it refers, whether the codicil be or be not annexed to the will, or be or be not expressly confirmatorj' of it ; for every codicil is, in construction of law, part of a man's will, whether the will be described in such codicil or not. Brown V. Clark, 77 N. Y. 369 ; Utterton v. Robins, 1 Adol. & E. 423 ; Miles v. Bovden, 3 Pick. 216; Brownell v. De Wolf, 3" Mason, 486; Haven v. Foster, 14 Pick. 543. See Richard- son V. Richardson, Dud. Eq. 184; Van Coit- landt V. Kip, 1 Hill, 590 ; Dunlap v. Dunlap, 4 Desaus. 305, 321; Arm.strong' i'. Armstrong, 14 B. Mon. 333. A codicil referring inaccu- rately to a will may republish it. See Jan- sen V. Jausen, cited by Sir John Nicholl, in Rogers v. Pittis, 1 Addams, 38 ; St. Helens «. Exeter, 3 Phillim. 461, in note toFawcett v, Jones. A codicil will refer to the last in date of several wills, if no express date is named. Crosbie v. Macdoual, 4 ves. 615. In Bag- well V. Elliott, 2 Rand. 190, a will was re- acknowledged by the testator, and regularly attested before witnesses some time after its original execution, and the court decided that the time of publication was not necessa- rily fixed by the date of the will, and proof was admissible that it was published on a day subsequent to the date thereof; although it had been previously admitted to probate, without any particular notice that it was published on a different day from its date. If, however, it appears on the face of the codicil that it was not the intention of the testator to republish, the ordinary presump- tion arising from the existence of the codicil will be rebutted. Strathmore ». Bowes, 7 T. R. 482 ; S. C. nom. Bowes v. Bowes, 2 Bos.&P. 500; Hughes J). Turner, 3 Mylne & K. 666 ; Smith ». Dearmer, 3 Younge & J. 278; Neff's Appeal, 48 Penn. St. 501; Ken- dall V. Kendall, 5 Munf. 272. 223 *195 EEPUBLICATION OF WILLS. *194 same principle applied to a devise of * estates within a certain locality ; thus, if a testator devised all his lands in the county of Kent, and after the execution of his will purchased other lands in that county, and then made a codicil attested bj- three witnesses, the inter- mediately acquired lands (not being otherwise disposed of iby such cod- icil) passed under the will (c) . ■ The circumstance of the testator having by the codicil expressly de- Immateiiai A'ised part of his estates purchased since the execution of that codicil ^[jg y^u to the uses therein declared concerning his residu- devises part ' ° of lands ac- ary real estate, does not exclude the rest of such after-pur- exeration of phased estates from the operation of the same residuary will. devise, brought down, by the republishing effect of the cod- icil, to the date of such codicil {ciy. Indeed, when we admit that the effect of the republication is to make the will speak from the date of the codicil, it follows that an express devise in the codicil of particular lands, acquired since the execution of the wiU, to the residuary devisee, could no more exclude the other newly acquired lands from the residu- ary devise, so republished, than a devise of particular lands in the will itself could prevent other lands, then belonging to the testator, from passing under such residuary clause. On the same principle, an express devise for life of the interme- diately acquired estate, to the person who is residuary devisee in fee in the will, would not prevent the reversion in fee in the same lands from passing under such devise to the same devisee, by force of the republication (e). [In Doe d. Murch v. Marchant (/), where a testa- trix devised and bequeathed aU her real and personal estate, in an event which happened, to B. J. absolutely, and afterwards made a codicil, " to be annexed to" her will, by which she noticed that the event had happened, and that she had become entitled to other real and personal estate ' ' which was not comprehended in my said will, but which also with my other estates and property I now intend to dispose of for the benefit of B. J. (save only the bequests hereinafter made) for her lifcj with such limitations and in such manner as hereinafter expressed, instead q/'the devise and bequest contained in my said will, with a view the better to secure the same to her : "' the testatrix then' be- *195 queathed some legacies, and devised all her real * and the residue of her personal estate in trust for B. J. for life, with remainder to the children of B. J. living at the death of B. J., or fail- ing them, to the brothers of B. J. then living ; but did not dispose of the ultimate fee, B. J. died leaving neither child nor brother sur- viving her ; and all the estates limited bj' the codicil being thus ex- (0) Beokford v. Parnecott, Cro. El. 493; Barnes v. Crowe, 1 Ves. Jr. 486, 4 B. CCS; [Yarnold v. Wallis, 4 Y. & C. 160; Doe d. York v. Walker, 12 M. & Wels. 591, and see 1 Wms. Saunders, 278, n.] (d) Conpin «. Fernvhough, 2 B. C. C. 291; Hulme v. Hevgate, 1 Mer. 285. (el Williams v. Gnodtitle, 10 B. & C. 895, 6 Man. & Ry."757. [(/) 8 M. & Gr. 813 i 7 Scott, N. R. 644.] 224 EEPTTBLICATION OF WILLS. *196 hausted, the question was whether the will was republished by the codi- cil, so as to include the after-purchased land in the devise of the fee-simple to B. J., or whether the devise in the codicil, being ex- presslj' made " instead of the devise " in the will, must be considered as a revocation of it and as a substitution of that contained in the codi- cil. It was held that the words " instead of the devise " might well be intei-preted to mean "instead of so much only of the devise in the will as was incompatible with the codicil," and thait the disposition of the fee in the will, being thus unaltered by the codicil, must be' considered as republished and as operating as well upon the after-purchased, lands as on the other real estate.] Perhaps in scarcely any instance has the republishing operation of a codicil been carried to so great a length as in Rowley v. Eyton (jr) , where after-acquired lands, expressly devised by the codicil to the residuary devisee of the will, were held to be subject to a general charge of debts created by the will. The testator, after charging his real and personal estate with the payment of his debts, devised the residue of his real and personal estate to his son E. ; and having sub- sequently purchased several copyhold estates, by a codicil,, attested by three witnesses, devised them to his said son in fee. Sir W. Grant, M. R., held that the codicil was a republication of the will, so as to make the after-purchased lands subject to the devise for payment of debts ; the learned Judge evidently assuming that if the specific devise had been in the will, the lands comprised therein would have been sub- ject to the charge (Ji). Perhaps it is not quite clear that the decision would have been the same if the codicil had devised the lands in ques- tion to anj' other person than the residuary devisee in the will. But of course the operation of a eodicU to extend the devise in a will made before 1838 to intermediately acquired lands may Eepublica- be negatived by the contents of the codicil itself indicating f-™^"^^f" a contrary intention ; for though the republication takes tents of codi- place without positive intention, yet it can never operate in ''^ ' spite of * such intention. If, therefore, it can be collected from *196 the codicil, that the testator had in his contemplation the iden- tical property which was the subject of disposition in the will, and that only, the intermediately acquired lands will not pass under the resid- uary devise in the will.* The leading case of this class is Bowes e. Bowes (4), which was as follows: G-. B., in 1749, made a will devis- ing all his lands and hereditaments (with certain exceptions) to his wife, and five other persons in fee, upon certain trusts. In 1754 he bought and became seised of an undivided part of a freehold property. (o) 2 Mer. 128. (A)i On this point; see [Maskell v. Farringfon, 3 D. J. & S. 338.] (j) 7 T. R. 482, 2 B. & P. 500; Hughes v. Turner, 3 My. & K. 666; [Hughes. ». Hosking, 11 Moo. P. C. C. 1.] 1 Haven v. Foster, 14 Pick. 641; York «. Waller, 12Mees. & W. 69L VOL. I. 15 225 *197 REPUBLICATION OP WILLS. In 1758, by a codicil duly attested, reciting that he had by his will devised all his lands and hereditaments to his wife and the other per- sons (naming them), upon trust, he thereby revoked all the above devises, so far as related to two of the trustees ; and he thereby gave and devised his said lands, tenements, and hereditaments to the remain- ing trustees (naming them), their heirs and assigns, upon the same trusts and purposes as he had devised the same by his will ; at the same time revoking the legacies he had given to the removed trustees. And the testator concluded with declaring the codicil to be part of his will. The House of Lords, in conformity to the unanimous opinion of all the judges, held that the will was not republished so as to pass lands acquired between the will and codicil, on the ground that the word " said" confined the operation of the codicil to the lands which had actually been devised by the will. Lord Thurlow alone dissented ; tlie ground of his argument being, that the testator, when he recited his having devised all his lands, supposed his after-purchased lands would pass ; and that the words " my said lands " referred to what he had supposed he had conveyed. Lord Eldon, however, showed that the House ought to .decide -the question, as if the testator actually did know that the will had .not passed the after-purchased lands ; that when in the codicil he "referred to the will as having passed all his lands, he did no more than recite his foi'mer devise ; but that when he came to the operative part of the codicil he changed the tense of the verb ; and though in the former pai't he said, " whereas I have devised," &c. : yet in the latter he said, "I do herebj' revoke, and I do hereby give and devise." If, therefore, by the former words, " all my freehold and copyhold lands," the testator were understood to include all the *197 after-purchased lands, by the latter words of the codicil he * must be understood to be revoking a devise of the^e lands, which he had not at the time the will was made ; for his expressions of revoca- tion were co-extensive with the expressions of devise ; these expres- sions, therefore, unless explained by the context, would be unintelligible ; but the word " said" clearly showed that they were both intended to be confined to the lands which the testator possessed at the time of the will ; and this construction rendered them consistent. So, in Parker v. Briscoe (i) , where a testator having by his will devised his real estate, and subsequently acquired other lands by descent, but erroneously supposing them to have passed to him and his sons in strict settlement by the will of the last owner, he by a codicil altered certain limitations in his will, for the express purpose of pre- venting the union of his own estates with the estates supposed to be devised ; the court concurred in the argument that the language of the codicil negatived the application of the devise in the will to the prop- erty in question. (lis) 8 J. B. Moo. 24, [8 Taunt. €99.] 226 REPUBLICATION OF WILLS. *198 Again, in Monypenny v. Bristow {I) , where a testator having by his will, after certain particular devises, devised all the residue of his real estate to Ms brothers A., B., and C, by a codicil, reciting that he was desirous of making a more liberal provision for his wife, and that she might enjoj' the whole of his real estates for her life, gave certain lands to his wife, which by his will he had given to his brothers, and then devised a certain property, and all other the real estate, which by his will he had given to his brothers, in trust (inter alia) for his wife for life, and subject thereto, upon the trust declared by his will ;, it was held by Sir J. Leach, M. R., and afterwards, on appeal, by Lord Brougham, C, that, notwithstanding the generality of the testator's recited intention respecting his wife, the terms of the dispositive part of the codicil prevented its operating to republish the residuary devise in the will, so as to comprise two freehold houses which the testator had, since its execution, acquired. The case of Ashley v. Waugh (m) seems to present the extreme point to which the doctrine in question has been carried. By his will the testator devised all his real estate to A. and B. upon trust for sale. By a codicil, after reciting this devise, he revoked the appoint- ment of A., and appointed C, to be a trustee * and executor of *198 his ' ' said " will ; and Lord Cottenham thought that this case came within the principle of Bowes v. Bowes, or, at all events, that it was not so clear that lands intermediately acquired passed under the general devise in the will, by the republishing effect of the codicil, as that a purchaser ought to be compelled to take the title {n) . [On the other hand, in Doe d. York v. Walker {na) , the testator, by his will made before 1838, devised all the lands "of which caseof Doe 1 am seised or possessed," &c. at B., to two trustees upon "• Walker. certain trusts ; by codicil, in the year 1838, reciting the devise to his trustees upon trust, and that he had determined to appoint J. C. as an additional trustee, he gave and devised all his lands, &c., situate at B. aforesaid, " and described and devised in my said recited will,'' to the use of J. C. in fee upon the trusts of his will, and he directed that his will should be read and construed in the same manner, and should have the same operation and effect in all respects as if J. C. had been named and appointed a trustee thereof in addition to the Other trustees, and in all other respects he ratified and confirmed his said will. Parke, B., in giving judgment, said that if the codicil had not contained the last words, the court would most probably have considered that the case (0 2 R. & Mv. 117; see also Smith v. Dearmer, 3 Y. & Jerv. 278 ; compare Williams o. Goodtitle, 10 B."& Cr. 895, [5 Man. & Ey. 757. The report of the case in B. & Cr. is not correct.] (m) 4 Jur. 572. [(no. ) The rule that a purchaser will not be compelled to take a doubtful title is no longer observed, Alexander v. Mills, L. R. 6 Ch. 124; except, perhaps, in cases of doubtful con- struction, ib. {«) 12 M. &Wel3. 591; see also per Abinjfer, C. B. 4 Y. & C. 166, 167; and per Stuart, V. C, Langdale v. Briggs, 3 Sm. & G. 246, 252, affirmed, 8 D. M. & G. 391. 227 *199 EEPUBLICATION OP WILLS. fell within the authority of Bowes v. Bowes, and the other cases of a similar kind which we have before noticed, but that the true construc- tion of the last words was, that the testator thereby ratified and con- firmed his will in all other respects than those in which he had altered it by the previous provisions in his codicil, and consequently he might be considered as having made a new will of the date of the codicil exactly the same as the old will, with the alterations contained in the codicil. The result was that lands at B., which the testator had pur- chased after the date of his codicil, passed ^Dy the devise (o).] Hitherto, republication has been viewed only as affecting general devises. In regard to specific devises, the principle, that puWicatio"' ^^^ '^^^ speaks from the date of the republication, is to upon specific be received with more caution and reserve. It is u6Vls6S llUQGr t old law. *199 clear, however, * that the de\'ise of a particular prop- erty republished by the re-execution of the wOl, or the execution of a codicil, will, even linder the old law, comprise a new estate in that property intermediatety acquired by the testator, and falling within the terms of the republished devise. As where a testator, by a wiU made before 1838, devised a leasehold estate for lives, afterwards renewed the lease, and then republished the will, it was held that the renewed lease passed under the devise (p). So, where a testator has by such a will devised certain freehold lands, which devise is revoked by a conveyance of the lands to particular uses, with the ultimate Umitation to the use of the testator himself in fee, after which the testator makes a codicil to his wiH, duly attested, but with- out devising or mentioning the lands in question, the estate which reverted to the testator on the execution of the revoking convej-ance, passes by the effect of the republication, under the devise (9.) Republication by codicil or otherwise, however, did not under the old Does not shift 1*^ extend a specific gift in the will to property which that specific de- gift was not originally intended to embrace, though answer- ferent^prop-' ^^S ^^ t^® same description. Thus, if a testator by a will, erty. made before the year 1838, devised his estate called Black- acre, or bequeathed his horse called Bob, and afterwards sold the estate or horse and bought another of the same name, a subsequent codicil, made before the year 1838, did not by its republishing force make the devise or bequest extend to the new purchase. So it has been repeat- edly held that a legacy to a child, which has been adeemed or satisfied by a subsequent advancement to the legatee, is not revived by a con- structive republication of the will by means of a codicil, such codicil not indicating an intention to revive the legacy, though containing (0) 1 Vict. c. 26, s. 34. For the purpose of the question now under consideration the case was the same as if the lands purchased after the date of the codicil had been purchased be- tween the dates of the will and codicil.] {p). Carte v. Carte, 3 Atk. 180: see also Alford v. Earle, 2 Vern. 209. (2) Jackson v. Hurlock, 2 Ed. 263. 228 KEPUBLICATION OF -VHILS. *200 an express confirmation of the will in the usual general terms (r).* The case of Holmes v. Coghlll (s) seems to afford a further illustration of the principle. There the testator having, pointmentto under his marriage settlement (subject to an estate for life * °^"' power. in himself and an estate tail limited to Ms sons in strict settlement) , a power to charge 2,0001. upon certain estates, executed that power by will duly attested. Afterwards he and his eldest son suifered a common * recovery, and limited the lands to uses discharged *200 from the power. By the same instrument they limited to the . testator a power by wiU to charge the 2,000/. on other lands. Subse- quently, he executed a codicil, duly attested, to his will. It was con- tended that this codicil, by republishing the wiU, rendered it a good execution of the new power. But Sir W. Grant, though he admitted the general principle as to republication, held that this was not a good execution of the power. "It speaks," said he, " only of the power given by the marriage settlement, which was as much gone as if it never had existed. There is no way in which the will can be made to speak of the new power, for a new consideration affecting different estates " (m). [So, if the will refer expressly to the date of its own execution (x) , or to a particular custom then existing ( ^) , a codicil will not so republish it as to make it speak of the later date, or of an altered custom.] The same principle, of course, applies to the objects of gift; it is clear, therefore, that a codicil did not, and does not (for RepuWica- here the new and old law coincide), by its republishing tion does not operation, revive a devise or bequest, the object of which viae or be- has previously died in the testator's lifetime. Thus, if a 5"°^"??^^/ testator devises lands to his nephew John, who dies in the tfie devisee testator's lifetime, and he afterwards has another nephew of ™ legatee, the same name, the republication of the will would be inoperative to carrj- the property to the second nephew John (2) . The case of Per- kins V. Micklethwaite (a), indeed, may seem at first sight to contradict this position, for in that case a legacy originally designed for a son of the testator, who died after the execution of the will, was held to belong, by the effect of the codicil, to a subsequent^ born son of the same name ; but the express terms of the codicil appear to have warranted (r) Izard v. Hurst, 2 Freem. 224, [2 Eq. Ca. Ab. 769;] Monck v. Lord Moncfc, 1 Ba. & Be. 298; Booker v. Allen, 2 R. & My, 270; Powys v. Mansfield, 3 My. & Cr. 376; see also Diinkwater » Falconer, 2 Ves. 623; Crosbie v. Macdoual, 4 Ves. 610; [Cowper v. Mantell, 22 Beav. 223.] (s) 7 Ves. 499; S. C. 12 Ves. 206; [see also Jowett «. Board, 16 Sim. 352. (u) See accordinglv Cowper ». Mantell, 22 Beav. 223; Du Hourmelin v. Sheldon, 19 Beav. 389 ; Hope v. Hope, 5 "Gif . 13. Cf . Gale v. Gale, 21 Beav. 349 ; ante, p. 163. Under the act 1 Vict. c. 26, s. 24, the power, if general, may be exercised although not in existence at the time the will was made; Cofield v. Pollard, 3 Jur. N. S. 1203; and post, Cb. X. ad Jin. (X) Stillwell ». Mellersh, 20 L. J. Ch. 356. (y) Doe d. Biddulph «. Hole, 16 Q. B. 848.] (z) See 2 Ves. 626; see also Doe v. Kett, 4 T. R. 601. (a) 1 P. W. 275. 1 See Lahgdon v. Astor, 16 N. Y. 9 ; Paine v. Parsons, 14 Pick. 318. 229 *201 EEPtTBLICATION OF "WILLS. the construction, since it gave to the latter a legacy, over and above what the testator had given him by his will. The effect of republication can never extend further than to give the words of the will the same force and operation as they would tion"doernot b^ve had if the will had been executed at the time of repub- cure defect of hcation ; ^ it cannot invest with a devising efilcaey expression in ^^Qx expressions * which originally had none ; and, there- fore, where (&) a testator, who was devisee in tail of certain lands, in allusion to them, said, " which, though I could now legally dispose of, I mean fuUy to confirm to the devisees in remainder," and afterwards suffered a common recovery of the lands, to the use of himself for life, remainder to such uses as he, by deed, will, or codicil, should appoint. He then executed a codicil, whereby he expressly confirmed the will ; and it was contended, that the effect of the whole was to pass the estates in question to the remainder-men ; but the court of K. B. held, that the wUl contained no "devise, the expressions rather importing an intention to leave the property alone, than to dispose of it, and that the codicil could not alter the construction. Though it is quite clear, as we have seen, that republication has no Whether effect in restoring the operation of a specific devise, which under old has failed bj' the decease of its object in the testator's life- caUorfbrings t™6, yet it was somewhat doubtful under the old law, property whether lands, of which a devise in fee had so lapsed, a°lapsed^Ve° passed by a residuary devise in the republished will. This cific devise seems to depend on the point whether, if the specific devisee wituin rcsicl" uary devise had been dead when the wiU was made, the residuary devise '° """• would have comprised the lands expressed to be given to the person so deceased ; for, if it would not, then the lands, the devise of which subsequently lapses, could not, by the effect of the republication, pass under the residuary devise ; because republication merely makes the will speak from its own date, and cannot bring within the scope of a devise in the will any subject which it would not have comprehended, in case the circumstances under which the republication takes place had existed at the period of the original execution of the will. In short, the inquiry is no other than simply this, whether, under wills made before 1838, a residuary devise includes particular lands, the devise of which is void ah initio. The [only] authority on the .point [appears to be] Doe v. Shef- field (c), where the court of K. B. treated it as clear, that where a tes- tator devised certain lands to the sisters of A., and the residue of his lands, not thereinbefore disposed of, to B., and it turned out that all the sisters of A. were dead when the will was made, the lands in question (6) Lane «. Wilkins, 10 East, 241. (c) 13 East, 526. 1 A codicil properly attested may be a devisee beinp; a witness to the original will, republication of a will so as to give effect to Mooers v. White, 6 Johns. Ch. 375. a devise otherwise void on account of the ' 230 KEPUBLIOATION OF WILLS. *203 passed by the residuary clause. The real facts of the case, however, as eventually ascertained, did not raise the question {d ) . * Although in the case just stated, the extension of a resid- *202 uary clause to lands comprised in a specific or particular devise in fee, which is void ah initio, appears rather to have Suggested been assumed than discussed, and though, if the matter fromDi™i;. were res integra, there might be ground to . contend that a Sheffield. residuary devise, being in its nature specific, ought not to extend to any interest in real estate, which the will purports to dispose of; yet, considering how imperfectly this principle has been adhered to, the probability is, that a residuary clause would ,be held (in accordance with the notion of the judges who decided Doe v. SheflBeld) to take in all that is not efiectually disposed of, according to circumstances e-xist- ing at the making of the will (/) ; and, consequently, that in the case of the lapse of a particular devise in fee, succeeded by the republication of the will, a residuary clause in the repubUshed will would operate on the lands comprised in the lapsed devise. The point, however, cannot be considered as settled, and possibly now may never arise, as it can- not occur under a will made since the year 1837 ; the recent act having (sect. 25) expressly and (as preventing all such questions) most bene- ficially extended a residuary devise to all property comprised in lapsed or void devises. If the residuary devise itself has lapsed, of course the republication of the will is inoperative to impart new efficacy to the devise. Lapse of resi- as well where the lapse afiects an aliquot share only of the as to^aMqulrt residue, as where it embraces the entirety. Thus, if a tes- share. tator devise the residue of his lands to A., B., and C, as tenants in common in fee, and A. dies, and then the testator makes a codicil to his will, by the effect of which the will is republished, he would never- theless die intestate as to one third, since the subsisting devise, which originally embraced two thirds only, could never, bj'' the mere effect of the republication, be expanded into a gift of the entirety (g) . [And where by codicil the testator revoked the share of one tenant in com- mon, and directed that it should " fall into the residue and be disposed of accordingly," it was held that these special words did not contain any gift to the * others, or distinguish the case from one *203 of mere revocation of the share (A). J [(d) Williams v. Goodtitle, as reported 10 B. & Cr. 895, appears to be an authority that a residuary devise passed lands, a previous devise of which in the same will or codicil was void; but the report 5 Man. & Ry. 757, shows that no such question arose; lands were devised to trustees for a term qfyears^ (not in fee as might be supposed from the report in B. & Cr.) upon charitable trusts ; and as the reversion on the term, supposing it a valid term, would have passed under the devise of the residue, it followed, of course, that the term being void, the residuary' devisee toolc an estate in possession ; the sole question was, whether the will was republished, so as to pass after-acquired lands. (/) See however Ch. XX. s. 1, post; and Smith v. Lomas, 33 L. J. Ch. 578. (a) See Skrymsher v. Northcote, 1 Sw. 666 ; Ee Wood's Will, 29 Beav. 236. l{h) Humble v. Shore, 7 Hare, 247, 1 H. & M. 551, n. See for the case of mere revoca- tion, Cresswell v. Cheslyn, 2 Ed. 123.] 231 *204 EEP0BLICATHHJ OF "WTXLS. The doctrine of republication has lost much of its interest under the Kepubiica- ^*^*'* ^ ^^''*' °' ^^' "°*' i'^'^sed, by the effect of the provision tioQ, how far which dispenses with publication as part of the ceremonial of the^act ^ execution (though this may seem to render the term re-pub- 1 Vict. c. 26. lication scarcely appropriate («)), but by the operation of the enactment, which makes the will speak, in regard to the subjects of disposition, from the death of the testator : and more especially of the provision, which extends a general or residuary devise to aU the real estate to which the testator may happen to be entitled at his de- cease. This, of course, will render it unnecessary, in regard to wiUs made since 1837, to have recourse to the doctrine which makes a codi- cil, by means of its republishing force, extend a general devise in a will to after-acquiired real estate. It is to be remembered, however, that, with 'respect to the ob/ects of gift, the statute leaves the pre-existing law untouched ; though, consid- ering how slight an effect is produced by a repubUshing codicil in this respect (for we have seen that it does not revive a lapsed gift), this forms no very large exception to the remark, as to the diminished prac- tical interest of the doctrine of republication, in connection with the new law. However, where a will made before is republished by a codicil made Effect of ""^ '^^ since the 1st of January, 1838, or by re-execution, in republication the manner prescribed by the new law, the effect of such re- codicil made publication wiU be most important ; it will not, as heretofore, ■since 1837. merely extend any general or residuary devise in such will to intermediately acquired real estate, but wiU, unless a contrary inten- tion be indicated, bring within its operation all the real estate to which the testator may be entitled at his decease, and make the wiU speak, in regard to the property comprised in it, from that period ; in short, the codicil (the contents not forbidding), or the re-execution, will have the effect of subjecting the will for all purposes to the operation of the new act, the 34th section having expressly provided, that every will re-exe- cuted, or republished, or revived by any codicil, shall, for the puiposes of the act, be deemed to be made at the time at which the same shall be so re-executed, republished or revived (k) . *204 * [Where a will made since the act is so worded as to exclude after-acquired lands from a general devise, a codicil republishing the will has no more effect in altering the effect of the general devise, than it would have had if both instruments had been subject to the old law(0- A singular question was raised in Dunn v. Dunn (m), namely, — (J) But see sect. 34. [(4) See Winter v. Winter, 5 Hare, 306 ; Doe d. York v. Walker, 12 M. & Wels. 591; An- drews 1). Turner, 3 Q. B. 177 : Skinner v. Ogle, i No. Cas. 74, 9 Jur. 432 ; Brooke ». Kent, 3 Moo. P. C. C. 334. (I) Ke Farrer, 8 Ir. Com. L. Rep. 370. (m) L, K. 1 P. & D. 277. 232 BEPUBLICATION OF WILLS. *204 whettier a legacy bequeathed by will dated before 1838, would fail, if after that date the will was re-executed in the presence of two witnesses, of whom the legatee was one. The contention appears to have been that this must be so, because the will was now to be deemed, for the purposes of the act, to have been made at the time of re-execution. Sir J. WUde said it would be a case of great hardship, but did not de- cide the question. Should the question recur, it will probably be found unnecessary to hold that the legacy is defeated : for though the re-exe- cution is " a new making of the will " (re), the old making of it, uuder which the legacy is claimed, is not thereby merged or abolished.] It remains only to be observed, that a codicil or re-execution may still, as formerly, operate to revive a will which has been revoked. by marriage, or by a subsequent will, or otherwise ; but the remarks on this subject have been anticipated in a former chapter (o), to which the reader is referred. (n) 3 Q. R 178, 12 M. & Wels. 600. (o) Ante, p. 188.] 233 *205 GIFTS TO STTPEESTITIOPS *205 * CHAPTER IX. EESTEAINTS ON THE TESTAMENTARY POWEE. Section I. Gifts to Superstitious and OharitaUe Uses. [About the period of the Reformation, statutes were passed to Superstitious defeat or prevent dispositions of property to purposes which uses, wiiat. -vyere then accounted superstitious. Thus the statute 1 Edw. 6, c. 14, after premising that great cause of superstition and error in Christian religion was the fantasying of vain opinions concerning pur- gatory and masses satisfactory for the dead, declared the king entitled to all real (a) and certain corporate personal (6) property theretofore dis- posed of for the perpetual finding of a priest, or maintenance of any anniversary or obit or other like thing, or of any light or lamp in any church or chapel. This statute affects previous dispositions only. But bj' the earlier statute 23 Hen. 8, c. 10, all uses thereafter declared of Zarec? (except for terras of not more than 20 years) to the intent to have obits perpetual, or the continual service of a priest or other like uses, were made void. But there is no statute making superstitious uses void generally (c) : and the latter statute does not relate to per- sonalty.] Superstitious uses, which are not within th« letter of tliese statutes [and whether they seek to affect land or personal estate] are nevertheless void by the general policy of the law ; and, in such cases, if charity be not the object, but the design of the bequest be to secure a benefit to the testator himself (as, to say masses for his soul, &c.), the testator's own representative (who would be entitled if there was no such gift), and not the crown, would be let in {d). rtal Sects. 5, 6.1 See Att.-Gen. v. Vivian, 1 Euss. 226; [Att.-Gen. ». .Fishmongers" Company, 2 Beav. 151, 5 My. & Cr 11. (4) Sect. 7. (cS Per Sir W. Grant, Gary i). Abbot, 7 Ves. 495.] (d) West 1). Shuttleworth, 2 Mv. & K. 684. [Sec also Re Bluudell's Trusts, 30 Beav. 360 better reported 31 L. J. Ch. 52; Heath v. Cliapman, 2 Drew. 417; Att.-Gen. v. ri>>h- moneers' Conipany, 2 Beav. 161, 5 M. & Cr. 11. See also an analogous Chinese supei-sti- tion Yeap v. Ong, L. K. 6 P. C. 396. Including the souls of others with his own in the snp- 234 AND CHARITABLE USES. *207 *It has been decided that devisees may be compelled to *206 disclose whether thej' take subject to a secret trust of this g nature (e) . A most extraordinary decision was made on these statutes shortly before the Revolution. It was held by Lord Keeper North that a bequest to Mr. Baxter, of 600/. to be distributed among sixty pious ejected ministers, [(given, " because I know many of them to be pious and good men, and in great want,")] and legacies also to Mr. Baxter, one of them to be laid out in his book entitled ' ' A Call to the Uncon- verted," were void, as superstitious (/) ; but the decree was reversed by the Lords Commissioners. It is clear that not only is a bequest to the poor ministers of Protes- tant dissenters good, but one having for its object the propa- protestant gation of their religious opinions is also valid ; provided that dissenters. such opinions, although at variance with the doctrines of the Estab- lished Church, are not contrary to law {g) ; [thus bequests * to an Unitarian chapel (h) , or for the benefit of poor Irving- *207 ite ministers (i), or to the minister of a specified Baptist chapel (j) are valid.] ^ posed benefit will not save the bequest, see s. ce.] In West v. Shuttleworth there was a residuar}' bequest, and yet the void pecuniary legacies were held to belong to the next of kin. On this point, see Shanley v. Baker, 4 Ves. 732; [and observe that in West v. Shuttle- worth, the residuary legatees .Tiade no claim to the void legacies, and in fact supported the bequest of them. If the superstitious use had charity for its object, it would be executed cy- pres, see Gary v. Abbot, 7 Ves. 495, and per Lord Eldon, 19 Ves. 487. But it is not clear that any use (except of the kind mentioned in the stat. 1 Edw. 6) would now be held void solely as being superstitious. In Thornton V. Howe, 31 Beav. 14, Lord Romilly held that even a trust for propagating the sacred writings of Joanna Southcote would be enforced by the court. Those writings aver that Joanna Southcote was with child by the Holy Ghost, &c., &c., delusions almost identical with those which in Smith v. Tebbitt, L. R. 1 P. & D. 398, were held to render a woman possessed by them incapable of making a will.] (e) King v. Lady Portington, 1 Salk. 162, 1 Eq. Ca. Ab. 96. pi. 6 ; see further as to super- stitious uses, Duke Char. Uses, 106, 4 Kep. 104, Cro. Jac. 51, 1 Eq. Ca. Ab. 95, pi. 1, et seq., and Shelf. Ch. Us. 89, where the cases, early and modern, are collected. [In Kead v. Hod- gens, 7 Ir. Eq. Rep. 17, it was decided that a bequest in Jreland for masses for the testator's soul was valid: sed qu.'\ (f ) Att.-Gen. v. Baxter, 1 Eq. Ca. Ab. 96, pi. 9, 1 Vern. 248, 2 ib. 105, [1 Ves. 637,] 7 Ves. 76. (g) Att.-Gen. v. Hickman, 2 Eq. Ca. Ab. 193; West v. Shuttleworth, 2 My. & K. 684; [and see statutes 18 & 19 Vict. c. 81, ss. 2, 3, and c. 86, s. 2.] In Doe v. Hawthorn, 2 B. & Aid. 96, Abbott, J., afterwards Lord Tenterden, said, that the trust there in question of a chapel for the use of a congregation of Protestants " assembling under the patronage of the trustees of the late Countess of Huntingdon's College," was either a superstitious use within 23 Hen. 8, c. 10, or a charitable use within 9 Geo. 2, c. 36. But as to the former alternative it is notorious that the Court of Chancery unhesitatingly entertains suits for can-ying into effect trusts of places of worship belonging to Protestant Dissenters. The principlcs'on which it deals with such trusts are stated with great fulness and perspicuity by Lord Eldon, in Att.- Gen. V. Pearson, 3 Mer. 353, which bears more immediately on the position of [Unitarians, as to whom see now 7& 8 Vict. c. 45, and of whom Lord Canipbell said, 2 H. L. Ca. 863, tliat he had no doubt they would now on most occasions be considered as Protestant Dissenters. (h) Shrewsbury D. Hombury, 5 Hare, 406; Re Bamett, 29 L. J. Ch. 871. (t) Att.-Gen. v. Lawes, 8 Hare, 32. (j) Att.-Gen. v. Cock, 2 Ves. 273.] 1 In this country, where all religious de- able the court to provide for the execution of nominations stand upon an equality (Jackson the trust, and the gift is otherwise good, the ». Phillips, 14 Allen, 549, 554), the principal gift will be upheld. Religious charitable question in the case of gifts not of land is the societies appear indeed to stand upon no dif- question of certainty of the subject or the ferent footing from other charities. If the object. If that is sufficiently certain to en- testator neither specify how much of his 235 •207 GIFTS TO STJPEESTITIOTTS Before the statute 2 & 3 Will. 4, c. 115, bequests for the propagation Stat 2 & 3 ®^ *^® Roman Catholic religion were unlawful (k) ; but sect. 1 Will. 4, of that act, after noticing the acts in favor of ^ifrotestant dissenters, and a Scotch act imposing penalties on Roman (4) Caiy 9. Abbot, 7 Ves. 490; see also 4Ve9. 433, 6 Ves. 566, 1 Ba. & Be. 145; [Gates v. j Jones, cit. 2 Vcm. 266. c. 115. estate he desires to give to a charity, nor furnishes the means of ascertaining tlie sum through a delegated discretion or otherwise, the legal result is that he has given nothing at all, and his next of kin are entitled to the fund. And the same conclusion may be de- rived from the consideration that there Is no donee of the gift; by which is meant a donee to take the legal interest in the fund, and apply the gift in furtherance of the testator's intention. Beekman v. Bonsor, 23 N. Y. 298. The fact, however, that a charitable bequest, otherwise valid, cannot take effect immedi- ately ft>r want of proper objects or trustees, or of enabling acts of the legislature or of the executive, will not defeat it. Missionary Soc. V. Chapman, 128 Mass. 265 ; Fellows v. Miner, 119 Mass. 541; Sanderson v. White, 18 Pick. 328, 336 ; Odell v. Odell, 10 Allen, 1, 8 ; Baker v. Clarke Institution, 110 Mass. 88, 91. Thus, when land is devised to a charity and no trustee is named, the heir takes m trust for the charity, or equity "wiU appoint a trustee. Missionary Soc. v. Chap- man, supra; Bartletl v. Nye, 4 Met. 378; Washburn v. Sewall, 9 Met. 280; North Adams Dniv. Soc. v. Fitch, 8 Gray, 421; Winslow V. Cummings, 3 Cush. 358 ; Brown V. Kelsey, 2 Cush. 243; Bliss v. American Bible Soc, 2 Allen, 334. In Fellows v. Miner, supra, it is laid down not only that the courts win not allow a valid charitable trust to fail for want of a trustee, but that, if the trust is to be executed out of the state, the courts may appoint a trustee within the state to receive the bequest, or may order the fund, or the income thereof from time to time, to be paid to a trustee in the place where the trust is to be executed. Gray, C. J., re- ferring to Washburn v. Sewall, 9 Met. 280 ; Attornev-General v. London, 3 Brown, Ch. 171; S.'C. 1 Ves. Jr. 243; Mayor of Lyons o. East India Co., 1 Moore P. C. 175, 295-297; Attorney-General v. Sturge, 19 Beav. 597; Chamberlain v. Chamberlain, 43 N. Y. 424. In case of a legacy for charitable purposes to an association which has ceased to exist, giv- ing way to another association having the same object, equity may give the fund to the latter association in trust (or to any person as trustee), to cai'ry out the objects of the tes- tator ; but the latter association cannot take the gift absolutely as legatee. Bliss v. Ameri- can Bible Soc., '2 Allen, 334. But the doc- trine that a trust shall never fail for want of a trustee, since equity will supply the defect, is true only of a valid trust ; and, in order to be valid in this country, the trust must be so constituted that a title can vest in some per- son, natural or artificial, by force of the gift itself. A charitable donation, precise and definite in its purpose, though void at law 236 because the beneficiaries are not precisely ascertained, is thus constituted if there be a competent trustee to take the fund and ef- fectuate the charity. Downing v. Marshall, 23 N. Y. 366, 382; Beekman v. Bonsor, ib. 298; Williams v. Williams, 4 Seld. 525; Owens ». Missionary Soc, 4 Kern. 380. It is laid down in New York that a bequest to a voluntary, unincorporated association, with- out stating the objects of the gift, is not a gift to a charity, though the name of the association indicates that its object is charity. Owens V. Missionary Soc, 14 N. Y. 380, Selden, J. The chief ground, however, of the invalidity of the gift in such a case ap- pears to be the incapacity of the donee for want of Incorporation. So that it must fail in that state even though a charitable pui> pose be defined, the rule being well settled in New York, contrary to that which more gen- erally prevails, that a voluntary, unincor- porated association has no legal capacity to receive a donation even for a purpose denom- inated charitable. Downing v. Marshall, 23 N. Y. 366; Sherwood v. American Bible Soc, 1 Keyes, 561. See "White v. Howard, 46 N. Y, 144. Elsewhere unincorporated societies may take when duly organized by the choice of officers and the keepmg of writ- ten minutes in the nature of a record, so as to be capable of identification. King v. Parker, 9 Cush. 71, 82; Earle v. Wood, 8 Cush. 430; Washburn v. Sewall, 9 Met 280; Tucker v. Seaman's Aid Soc, 7 Met. 188, 200 ; In re Ticknor, 13 Mich. 44. Generally speaking, if a remainder be limited by devise to a corporation not in existence, the gift is void, though such a corporation should after- wards be created during the particular estate, because it is potentia rejnoia. Zeisweiss tf. James, 63 Penn. St. 465; Chohnley's Case, 1 Coke, 564. See White v. Howard, 46 N. Y. 144. Still if the purpose for which the devise over in remainder was made be a valid chari- table use, which can be enforced and admin- istered in a court of equity, it will not be allowed to fail for want of a trustee. M'Girr V. Aaron, 1 Penn. 49. Such a use may be vague and indefinite, so that no particular person may have such an interest in it as will give him a right to demand the execution of it ; still that forms no objection if a competent trustee be named, clothed with discretionary power to carry out the purposes of the donor. Zeisweiss v. James, supra. See Witman v. Lex, 17 Serg. & E. 93. Indeed, for the sake of upholding the testator's intention, the rule in these cases is, that when it appears from the will that tlie donee is to come into being in the future, or to become qualified to take upon the happening of some future event, a present bequest will not be presumed; nor AND CHABITABLE TTSES. *208 Catholics ; and reciting, that notwithstanding the proTisions of various acts passed for the relief of his Majestj'^s Koman CathoUc subjects, doubts had been entertained whether it were lawful for his Majesty's subjects professing the Roman Catholic religion in Scotland to acquire and hold as real estate the property necessary for religious worship, education, and charitable purposes, and that it was expedient to remove all doubts respecting the right of his Majesty's subjects professing the Roman Catholic religion in England and Wales to acquire and hold property necessary for reUgious worship, education, and charitable purposes,, enacts, " That his Majesty's subjects professing the Roman Catholic religion, in respect of their schools, Catholics places for religious worship, education, and charitable pur- p'aced on • ^ r, . . , !, , , , , . , -^ , same footing poses m Great Bntamy and the property held therewith, and as Protestant the pei-sons employed in or about the same, shall, in respect reftcfof '" thereof, be subject to the same laws as the Protestant dis- their schools^ senters are subject to in England in respect to their schools and places for religious worship, education, and charitable purposes, and not further or otherwise." By sect. 3, the act is not to extend to any suit actually pending, or commenced, or any property then in litigation, in any court in Great Britain (J,'). It has been held, that the act is retrospective, i.e. that it applies to the will of a testator who died before its passing (m) ; and Bequest for also, that it authorizes a bequest for the promotion of the propagation Roman Catholic reUgion,'^ as it places persons of this per- Catholic suasion on the same footing as Protestant dissenters, the religion. diffusion of whose rehgious tenets (as already observed) may be the subject of a valid trust. It is settled, however, that the Roman Catho- lic Relief Act has no effect in rendering valid gifts to superstitious uses, as legacies to priests for offering masses for the repose of the testator's * soul, &c. (h) ; [nor, it is presumed, would it render *208 (?) See also 23 & 24 Vict. c. 134.] (m) Braclshaw v. Tasker, 2 Mjr & K. 221; [and see Re Michel's Trusts, 28 Beav. 32; but Sir E. Sagden questioned this decision, 1 D. & War. 380.] (n) West V. Shuttleworth, 2 My. & K. 684. [Re Blundell's Trusts, 30 Beav. 360; Heath o. Chapman, 2 Drew, 417. will such a bequest be presumed unless there since the donee may be only a trustee, and the is not the least circum«tance from which to beneficiaries may be too uncertain. White collect the testator's intention of any thing ». Howard, 46 N. Y. 144; Wildermant). Balti- else than an immediate devise to take efifect more, 8 Md. 651; Needles v. Martin, 33 Md. in pnesenti. BuiTill ». Boardman, 43 N. Y. 609. 254, where it was said of a bequest to a cor- i A devise to a Roman Catholic priest, poration to be created, that every circum- who might succeed tlie devisee in a certain stance which concurred in givmg the bounty place to be entailed to him and to his succes- an executory character, would be regarded; sors in trust, &c., was held to be intended m and the gift in question was upheld. Hence, ease of the congregation, and for its sole ben- the gift of a fund to trustees, to be paid after efit, though for the maintenance of the priest; their incorporation, ' ' to employ a ^ireacher and upon the incorporation of the congrega- of the Univeraalist denomination" is good. tion it was decided that it legally held the Cory Society v. Beatty, 28 N. J. Eq. 570. estate devised. M'Girri;. Aaron, 1 Penn. 49. Again, the donee and the subject of the gift See Browers v. Fromm, Add. 362 ; Trustees may be sufficiently ascertained, and yet the of Bishops' Fund v. Eagle Bank, 7 Conn, trust fail for uncertainty of. personal objects ; 476. 237 »208 GIFTS TO STTPERSTITIOtrS valid such a trust as that which was the subject of discussion in Public policy. De Themines v. De Bonneval (o), namely, for printing and publishing a book which taught that the Pope had in all ecclesiastical matters a supremacy which was paramount even to the authority of the temporal sovereign. The case arose before the statute referred to, but Sir J. Leach rested his decision entirely on the ground that to allow such a publication was against public policy. Jews also are now by statute 9 & 10 Vict. c. 59, placed on the same footing as Protestant dissenters (p).] Charity has been defined to be a general public use (j).^ In order to Jews. (o) 5 Russ. 288. ( p) The cases relating to Jews before this act were. Da Costa v. De Pas, Arab. 228, 1 Dick. 258, 2 Ves. 274, 276, 7 Ves. 76, 2 Sw. 487, 2 J. & W. 308; and Straus v. Goldsmid, 8 Sim. 614. The only difference between 2 & 3 Will. 4, c. 115, s. 1, and 9 & 10 Vict. c. 59. s. 2, is the omission from the latter enactment of the words, "and the persons employed in or about the same: " which appears immaterial to the purposes of this Treatise. This enactment also has been held to be retrospective. Be Michel's Trusts, 28 Beav. 32.] (2) Amb. 651.^ 1 Sherwood v. American Bible Soc, 1 Keyes, 561 ; Jackson v. Phillips, 14 Allen, 639 ; Ommanney v. Butcher, 1 Tur. & R. 260. A devise of property in trust " solely for benev- olent purposes " in the discretion of the trus- tee is not a charitable gift, and is void. Chamberlain v. Stearns, 111 Mass. 267; Adye «. Smith, 44 Conn. 60. See Williams t'. Kershaw, 6 Clark & F. Ill ; S. C. 5 L. J. N S. Ch. 84; Norris v. Thomson, 4 C. E. Green, 307; S. C. 6 C. E. Green, 489. But the word "benevolent" when coupled with "charitable" or anv equivalent word, or used in such connection, or applied to such public institutions, as to manifest an inten- tion to make it synonymous with "charita- ble " may have effect according to the intention. Chamberlain ». Stearns, supra; Saltonstall v. Sanders, 11 Allen, 446; Rotch V. Emerson, 105 Ma,ss. 431, 434; Hill v. Burns, 2 Wils. & S. 80; Crichton w. Grier- son, 3 Bligh, N. S. 424; Miller v. Rowan, 5 Clark & F. 99. To give a bequest the character of a gift to a public charity, there must appear to be some benefit to he con- ferred upon, or duty to be performed tow- ards, either the public at large or some part thereof, or an indefinite class of persons. Old South Soc. «. Crocker, 119 Mass. 1: Go- ing 1). Emery, 16 Pick. 107, 119; Salton- stall V. Sanders, 11 Allen, 446. A definite number of persons, ascertained or ascertain- able, clearly pointed out by the terms of a gift as recipients of its benefits cannot consti- tute a public charity. Old South Soc. v. Crocker, supra; Attorney-General v. Federal St. Meeting House, 3 Gray, 1, 49 ; Parker v. May, 6 Cush. 336. Contra where the recipi- ents are not definitely pointed out. Thus, a gift to A. " in trust, to be used purely and solely for charitable purposes — for the great- est relief of human suffering, human wants, and for the good of the greatest number," is charitable. Everett v. Carr, 59 Me. 325, on authority of Saltonstall v. Saunders, 11 Allen, 238 446; Johnston')). Swann, 3Madd. 457; Drew V. Wakefield, 54 Me. 291 ; Swasev v. Ameri- can Bible Soc, 57 Me. 523; Wells v. Doane, 3 Gray, 201; Baker «. Sutton, 1 Keene, 226; Whicker v. Hume, 14 Beav. 509; Horde ». Suffolk, 2 My. & K. 59; Jackson v. Phillips, 14 Allen, 556. Further, as to what constitutes a charity, see among the great number and varietv of cases, Drury v. Natick, 10 Allen, 169, l''76-182; McDonald v. Mass. Hospital, 120 Mass. 432; Birchard v. Scott, 39 Conn. 63; Treat's Appeal, 30 Conn. 113; White u. Fisfc, 22 Conn. 31; Brown v. Baptist Soc, 9 R. 1. 177; Chapin v. School District, 35 N. H. 446; McAllister «. McAllister, 46 Vt. 272; Wetmore v. Parker, 52 N. Y. 450; Dono- hugh's Appeal, 86 Penn. St. 306; Bethlehem V. Persev. Co., 81 Penn. St. 445; American Tract Soc v. Atwater, 30 Ohio St. 77; Miller V. Teachout, 24 Ohio St. 625; Maynard V. Woodard, 36 Mjph. 423; Hathew'ay v. Sackett, 32 Mich. 97; County Commrs. v. Rogers, 55 Ind. 297; Newson v. Starke, 46 Ga. 88; Horiiberger ». Hornberger, 12 Heisk. 635 ; Roy i>. Rowzie, 25 Graft. 599 ; Ould o. Washington Hospital, 95 U. S. 303. The pm-pose should be definite; though a chari- table trust, deemed somewhat vague and indefinite, was enforced in Drew v. Wake- field, 54 Me. 291, on authoritv of Mitford V. Reynolds, 1 Phill. (Eng.) 185; Nash v. Morley, 5 Beav. 177; Attornev-General v. Comber, 2 Sim. & S. 93; Whicter v. Hume, 7 H. L. Cas. 124; Shotwell ». Mott, 2 Sandf. Ch. 46 ; Going v. Emery, 16 Pick. 107. In Marj-land, though a competent trus- tee be named, a gift " for the relief and sup- port of indigent and necessitous poor persons who may from time to time reside within the limits, as now known of the 12th ward of said city" is deemed void as being vague and indefinite. Wildeman v. Baltimore, 8 Md. 551 ; Needles v. Martin, supra. In the latter case a trust in favor of " free colored persons in Baltimore city " was held void for AND CHARITABLE USES. *209 ascertain what are charitable purposes, recourse is usually What are had to the preamble of the statute 43 Eliz. c. 4, which enu- *"''^'''* merates various kinds of charity: viz. the relief of aged,^ impotent, and poor people (r), maintenance of sick and Stat. 43 Eliz. maimed soldiers and mariners, schools of learning (s), free "' schools and scholars in universities ; " repair of bridges, ports, havens, causewaj'S, churches, sea-banks, and highways ; education and prefer- ment of orphans ; the relief, stock, or maintenance for houses of cor- rection ; marriages of poor maids ; supportation and help of young tradesmen, handicraftsmen, and persons decayed ; relief or redemption of prisoners or captives (t) ; and aid or ease of any poor inhabi- tants, concerning payment of fifteens, setting out of soldiers, and other taxes.' Charity is not confined to the objects comprised in this enumeration ; * it extenfls to all cases within the spirit and intendment of the statute.^ Thus, gilts (m), for the erection of water-works for the use of the inhabitants of a town (x) ; ° to be applied for the " good" of a place (y), [or for "charities and other public purposes *in" *209 a parish (z)], or for the general improvement of a town (a), or for the estabUshment of a life-boat (b), or of a botanical garden (c) ' to the trustees and for the benefit of the British Museum (d) ; [to the Royal, the Geographical, and the Humane Societies (e)] ; to the widows [(r) Nash v. Morley, 5 Beav. 177. (s) Att.-Gen. v. Nash, 3 B. C. C. 587. It) Does not include prisoners for crime, as poachers, Thrupp v. Collett,'2G Beav. 125. A bequest for such a purpose is against public policy and void. («} It makes no difference that the fund is raised by tax on the inhabitants of the town; the purpose alone is the criterion. Att.-Gen. v. Eastiake, 11 Hare, 205.] (a:) Jones v. Williams, Amb. 651. (y) Att.-Gen. v. Earl of Lonsdale, 1 Sim. 105; [Att.-Gen. •«. Webster, L. E. 20 Eq. 483. (0) Dolan V. Macdermot, L. (i. 5 Eq. 60, 3 Ch. 678.] («) Howse V. Chapman, 4 Ves. 542; Att.-Gen. v. Heelis, 2 S. & St. 67; [Mitford v. Kev- uolds, 1 Phill. 185.] (b) Johnston v. Swann, 3 Mad. 457. (c) Townley v. Bedwell, 6 Ves. 194; [but it is not clear that it would have been so decided unless the testator had signified his expectation that the garden would be a public benefit.] (rf) Britisli Museum v. White, 2 S. & St. 595. [(e) Beaumont v. Oliveira, L. E. 6 Eq. 534, 4 Ch. 309.] the same reason. A charitable gift is deemed other restraints relative to its use, manage- good though the use to be made of it is left to ment, or disposal, that are not allowed by the discretion of the trustee. Thus, a gift of law, it is these restraints, and the estates money to trustees " to be by them applied limited on them, that are void, and not the for the promotion of agricultural or horticul- principal or vested estate. Philadelphia v. tural improvements, or other philosophical or Girard, 45 Penn. St. 9. piiilanthropic purposes, at their discretion" i See Fellows v. Miner, 119 Mass. 541; is a valid charitable bequest. Eotch v. Gooch v. Assoc, for Aged Females, 109 Mass. Emerson, 105 Mass. 431. A city or town 558. may take and hold gifts for appropriate 2 Frankfield v. Armfield, 2 Sneed, 305; charitable uses. Drury v. Natick, 10 Allen, Cresson's Appeal, 30 Penn. St. 437. 169 ; Webb v. Neal, 5 Allen, 575; Vidal v. ' See the enumeration of cases of charity Girard, 2 How. 190; Perin v. Carey, 24 in Jackson ». Phillips, 14 Allen, 549. How. 505. In gifts to charitable uses, the * lb. law makes a distinction between those parts ^ gee the definition of a charity given in of the writing which declare the gift and its Price v. Maxwell, 28 Penn. St. 35. purposes, and those which direct the mode s Or drainage works. Henry County v. of its administration. Thus, where a vested Winnebago Drainage Co., 62 III. 454. Or a estate is distinctly given, and there are an- town-house. Coggesball v. Pelton, 7 Johns, nexed to it conditions, limitations, powers, Ch. 292. trusts (including trusts for accumulation), or ' See Rotch v. Emerson, 105 Mass. 433. 239 *210 GIFTS TO SUPEESTITrotrS and orphans (/),* or the poor inhabitants (^) of a parish ("poor" being construed those not receiving parochial relief (h)) ; to the church- wardens in aid of the poor's rate («') ; to the widows and children of seamen belonging to a port (k); [to "poor credible industrious per- sons, residing at A., with two children or upwards, or above fifty years of age, maimed or otherwise unable to get a living " (l) ; for preaching a sermon, keeping the chimes of the church in repair, playing certain psalms, and paying the singers in church (m) ; for building an organ gallery in a church (n), or repairing and ornamenting a chancel (o), or repairing a memorial window and mural monuments in a church (p); for endowing or erecting a hospital (q) ; '^ to a society formed princi- pally for teaching poor children and nursing the sick (r) ; ° to found prizes for essays (s) ; to deserving literary men who have been unsuc- cessful (t) ; for letting out land to the poor at a low rent (u) ; for the increase and encouragemenl; of good servants (x) ; for the benefit of ministers of any denomination of Christians (y) ; * or for the *210 * benefit, advancement, and propagation of education and learn- ing in every part of the world (s) ; for establishing and upholding an institution for the investigation and cure of diseases of quadrupeds (/) Att.-Gten. v. Comber, 2 S. & St. 93; [Thompson v. Corbv, 27 Beav. 649.] (o) Att.-Gren. v. Clarke, Amb. 422, also 14 Tes. 364. (k) Bishop of Hereford v.. Adams, 7 Ves. 324;. Att.-Gen. v. Wilkinson, 1 Beav. 372; [and see Att.-Gen. ?i. Bovill, 1 Phill. 762 ; Att.-Gen. v. Corporation of Exeter, 2 Buss. 45.] As to a gift to the inhabitants of a place,- see Rogers v. Thomas, 2 Kee. 8. {I) Doe V. Howell, 2 B. & Ad. 744. (*) Powell V. Att.-Gen., 3 Mer.. 48. [(() Eussell V. Kellett, 3 Sm. & Gif. 264. It was held first, that the gift pointed to indi- viduals, and some having died before payment,, that there could be no execution cy-pres ; but secondly, that the gifts were charitable, and did not pass to the representatives of those who, though thev survived the testatrix,- died before payment. See Mahon v. Savage', 1 Sch. & L. Ill, stated"post, Ch. XXIK. (m)' Turner v. Ogden, 1 Cox,. 316 ; see also Durour v. Hotteux, 1 Ves. 320. (n) Adnam ji. Cole, 6 Beav. 353. (o) Hoare v. Osborne, L. R. 1 Eq. 685. (p) Hoare s. Osborne, supra; Re Rigley's Trust, 36 L. J. Ch. 147. (?) Pelham v. Anderson, 2 Ed. 296, 1 B. C. C. 444; Att.-Gen. v. Kell, 2 Beav. 575. (r) Cocks V. Manners, L. R. 12 Eq. 574. (s) Farrer v. St. Catharine's College, L. R. 16 Eq. 19. (t) Thompson v. Thompson, 1 CoU. 395. («) Grafton ». Frith, 15 Jur. 737, 20 L. J. Ch. 198. (x) iioseombe v. Wintringham, 13 Beav. 87. (j;) Att.-Gen. v. Hickman, 2 Eq. Abr. 193; Att.-Gen. v. Gladstone, 13 Sim. 7; Att.-Gien. V. Cock, 2 Ves. 273; Att.-Gen. v. Lawes, 8 Hare, 32; Shrewsbury v. Hornby, 5 Hare, 406; Grieves v. Case, 4 B. C. C. 67, 2 Cox, 301, IVes. Jr. 548 ; Milbank v. Lambert, 28 Beav. 206; Thornber v. Wilson, 3 Drew. 245, 4 Drew. 350 ; secus if it be to the person now minister, semb. ib. 361. (z) Whicker v. Hume, 14 Beav. 509, 1 D. M. & G. 506, 7 H. L. Cas. 124. "Learning" was taken to mean "being taught:" not "knowledge," which would have been too indefinite. 1 Db Bruler v. Ferguson, 54 Ind. 549; M'Cord v. Othiltree, 8 Blackf. 15. Or of County Commrs. v. Rogers, 55 Ind. 297 ; poor children. Heueer v. Harris, 42 111. 425; Moore v. Moore, 4 Dana, 354 ; Fink v. Fink, Newson v. Starke, 46 Ga. 88. 12 La. An. 301. < See Going v. Emery, 16 Pick. 107; 2 McDonald v. Mass. Hospital, 120 Mass. Brown v. Kclsey, 2 Cush. 243; Sohiers. St. 432. Paul's Church, 12 Met. 250; Shapleigh ». 8 So of a rift for the "education and tui- Pilsbury, 1 Greenl. 271; Universalist Soc. v. tion of worthy, indigent females." Dodge Kimball, 34 Me. 424; Brown v. Concord, V. Williams, 46 Wis. 70. Or of pious, indi- 33 N. H. 296; Dublin Case, 38 N. H. 459. gent young men, preparing for the ministry, 240 CHARITABLE USES. *211 and birds useful to man, and for maintaining a lecturer thereon (a); and gifts in aid of the pubhc revenue of the state (b) ; and finally, gifts for any purpose which is either for the public or general benefit of a place (c), or tends towards public religious instruction or edifica- tion (rf)], have been respectively held to be charitable. [And in this respect the court makes no distinction between one sort of rehgion, or one sect and another. Their promotion or advancement are all equally " charitable," provided their doctriijes are not subversive of aU religion, or all morality («).] It is evident from the preceding examples, that, to constitute a charity in the legal sense, the poor need not be (though they commonly are) its sole or especial objects ; on which principle, Sir J. Leach treated a school for the education of gentlemen's sons, as a " school of learning" within the statute 43 Eliz. (/). [A gift to procure masses for the soul of the testator and others is not charitable (g) ; nor is a gift to a convent of nuns whose ypj,^^ ^^^ ^^j sole object is the sanctifying their own souls, and not per- charitable forming any external duty of a charitable nature (fi) ; "^^^' nor a gift for the erection or repair of a monument, vault, or tomb (»'), * whether it be to the memory or for the interment of *211 the donor alone (j), or of himself and his family and relations (k), unless it forms part of the fabric or ornament of the church (Z). Again, bequests for purposes of benevolence (m), or benevolence and liberal- (a) London University ». Yarrow, 23 Beav. 159, 1 De G. & J. 72. And see Marsh v. Means, 3 Jur. N. S. 790. (i) Thellusson v. Woodford, 4 Ves. 227; Nightingale v. Goalbourn, 5 Hare, 484; 2 Phill. 594; Newland v. Att.-Gen., 3 Mer. 684; Ashton v. Lord Langdale, 4 De G. & S. 402. (c) Per Lord Cottenham in Att.-Gen. v. Aspiual, 2 My. & Cr. 622, 623 ; Att.-Gen. v. Cor- poration of Shrewsbury, 6 Beav. 220; Att.-Gen. v. Corporation of Carlisle, 2 Sim. 437; British Museum v. White, 2 S. & St. 596.] > (rf) Att.-Gen. v. City of London, 1 Ves. Jr. 243 ; Powerscourt «. Powerscourt, 1 Moll. 616 ; [Baker «. Sutton, 1 Pteen, 232; Att.-Gen. v. Stepney, 10 Ves. 22; Townshend v. Carus, 3 Hare, 257; Lloyd v. Lloyd, 2 Sim. N. S. 266; Wilkinson v. Lindgren, L. K. 5 Ch. 570; Cocks V. Manners. L. R. 12 Eq. 585, per Wickens, V. C. (e) Per Komilly, M. R., Thornton v. Howe, 31 Beav. 19, 20. In Briggs v. Hartley, 14 Jur. 683, 19 L. J. Ch. 416, a legacy for the best essav on the Sufficiency of Natural Theology when treated as a science, was held inconsistent with Christianity, anj void. But this would probably not be followed. In Pare v. Clegg, 29 Beav. 589, the doctrines of Robert Owen (as to which see also Russell v. Jackson, 10 Hare, 214), were held by Romilly, M. R., to be visionary and irrational, but not illegal as being irreligious or immoral. The court is some- times compelled to declare good as a charitable bequest what it deems of very doubtful public utility, per Lord Selborne, L. R. 16 Eq. 24.] (./) Att.-Gen. v. Eari of Lonsdale, 1 Sim. 109. llg) See the cases cited, n. (d), ante, p. 205. (A) Cocks V. Manners, L. R. 12 Eq. 574. (i) Hoare v. Osborne, L. R. 1 Eq. 585; Re Rigley's Trust, 36 L. J. Ch. 147.] (/) Mellick D. President of the Asylum, Jac. 180; [Adnam i). Cole, 6 Beav. 353; Llovd v. Llovd, 2 Sim. N. S. 255; Willis v. Brown, 2 Jur. 987; Trimmer v. Danbv, 25 L. J. Ch. 424.] (k) See [Gravenor v. Hallum, Amb. 643;] Doe d. Thompson v. Pitcher. 3 M. & Sel. 407, 2 Marsh. 61, 6 Taunt. 359 ; [Rickards v. Robson, 31 Beav. 244; Fowler v. Fowler, 33 Beav. 616; Hoare «. Osborne, L. R. 1 Fq. 585: Re Rigley's Trust, 36 L. J. Ch. 147; Fisk v. Att.- Gen., L. R. 4 Eq. 621; Dawson V. Small, L. R. 18"Eq. 114.] Lord EUenborough suggested (3 M. & Sel. 407) that although repairing a donor's own tomb was not a charitable purpose, it was otherwise where the tomb was for nis family. But the statute had been complied with, [and the later cases admit no such distinction. These cases also show that a trust for the perpetual repair of a tomb, not being charitable, is void as a perpetuity. (l) Ante, p. 209. (m) James v. Allen, 3 Mer. 17 ; Re Jannan's Estate, 8 Ch. D. 584. VOL. I. 16 241 *212 GIFTS TO ity (m), or general utility (o), or for pious purposes {p), are not charita- ble bequests ; and a gift to one of the chartered companies of the city of London to increase their stock of corn, which they are (or were) com- pelled to keep for the London market, is not charitable, since it is in effect a gift to the company absolutely (9). A devise of lands upon trust to distribute the rents on certain d3,ys amongst several specified families according to their circumstances, as in the ppinion of the trustees they might need assistance, has been held not to be a devise for a charitable purpose, but a trust for the families named, and good for so long as the rule against perpetuities would allow. How long that was, was not decided (>•).] In Ommanney v. Butcher («) the testatrix declared as to certain Bequests to money that she wished it to be given in private charity, prilitr '" ^i'' ^- Plumer, M. R., held that the words did not create a charity bad. trust which could be carried into effect. The charities rec- ognized by the court ^ere public in their nature, and such as the court could see to the execution of; but here the disposition was confined to private charity. Assisting individuals in distress was private charity ; but such a purpose could not be executed by the court or the .*212 crown (i). [So a gift to fouiid a private * museum (m), or in aid of a subscription library (x) , or of a friendly society' {y) , or for the benefit of an orphan school kept by an individual substantially at his own expense («), is not charitable. A gift to an institution having a charitable object specified in the gift, or to the governors of such an institution (a) , or to the minister .of a chapel and his successors (b) , will generally be deemed a gift for (n) Morice ». Bishop of Durham, 9 Ves. 399, 10 Ves. 532; contra by the law of Scotland, Millar v. Rowan, 5 CI. & Fin. 99. (0) Kendall v. Granger, 5 Beav. 300. (p) Heath v. Chapman, 2 Drew. 417. The trust was for masses " and other piqus uses ; " and it was further held that even if the latter could, standmg alone, be supported as " such pious uses as were charitable," yet they were vitiated by being connected with the direction for masses. (j) Att.-Gen. v. Haberdashers' Company, 1 My. & K. 420. (r) Liley v. Hey, 1 Hare, 580. But see Gillam v. Taylor, L. E. 16 Eq. 581 ; and further as to gifts to poor relations, post, 213.] (s) T. & R. 260. [And see Nash i). Morley, 5 Beav. 177. (() Lord Langdale, M. R., thought a bequest "for the relief of domestic distress, and as- sisting indigent but deserving individuals," a good charitable bequest. Kendall i'. Granger, 5 Beav. 303. (u) Thomson v. Shakespear, Johns. 612, 1 D. F. & J. 399. fa} Carne v. Long, 20 L. J. eh. 503, 2 D. F. & J. 75. (y) Re Clark's Trust, 1 Ch. D. 497; also Re Dutton, 4 Ex. D. 54 (Mechanics' Institute). (z) Clark v. Taylor, 1 Drew. 6+2. (n) Per Lord St. Leonards, Incorporated Society v. Richards, 1 D. & W^ar. 294; and per Lord Hatherley, Att.-Gen. v. Sidney Sussex Coll., L. R. 4 Ch. 730; Re Maguire, L. R. 9 Eq. 6.32. (h) Grieves v. Case, 4 B. C. C. 67, 2 Cox, 301, 1 Ves. Jr. 548; Thornber ». Wilson, 3 Drew. 245, 4 Drew. 351. See also Smart «. Prujean, 6 Ves. 667; and Cocks i'. Manners, L. E. 12 Eq. 574. In the last case the gift to the convent, though held not charitable, was still treated as a trust for the purposes of the institution ; not involving a perpetuity, but capable of being performed by the existing members spending the gift as they pleased (as to which, see Brown v. Dale, 9 Ch. D. 78: and cf. Thomson v. Shakespear, Carne v. Long, Re Clark's Trust, supra, .which were void for perpetuity). In Aston v. Wood, L. R. 6 Eq. 419, a legacy " to the trustees of Zion Chapel, to be apportioned according to statement appending," no such statement forthcoming, was held to fall into the residue. The express reference to a trust to be declared appears to have rebutted any presumption iu favor of the chapel.] 242 CHARITABLE USES. *213 the specified charitable object or chapel.] But a gift will ^i,an&it not not be deemed charitable merely from the nature of the pro- necessarily fessional character of the devisee, or on account of the tes- accou^t'i'f'"' tator having accompanied the gift with an expression of his professional expectation, that the devisee would discharge the duties character of incidental to such character, however intimately those duties legatee. may concern the welfare of others, as this merely denotes the motive of the gift, and not that the devisee is to take otherwise than benefi- cially. Thus, in Doe d. Phillips v. Aldridge (c) , where the devise was to the Rev. A. A., a dissenting minister (described as preacher at the meeting-house of L.) for life, the testator adding, " And I further expect that he will, with the help of God, after my decease, without delay, settle and forward everj'thing in his power, to promote and carry on the work of God at L. aforesaid, both in his lifetime and after his decease ; " it was contended, that the devise to A. A. was void, as charitable, being not in his individual capacity, but in the character of preacher, and in confidence that he would discharge the duties of that station. But the court held that it was not charitable, and thought the point too clear for discussion. * Again, in Doe d. Toone v. Copestake (d), where an estate *213 was devised to trustees, to be applied by them and the officiating minister of the congregation or assembly of the people called Method- ists assembling at L. , and as they should from time to time think fit to apply the same ; it was held, that the devise was not charitable, the application being left to the trustees still more indefinitely than it was in Bishop of Durham v. Morice, [and it was not argued that the trust was restricted to charitable purposes merely because the Methodist minister was appointed a trustee (e).' (o) 4 T. R. 264. (d) 6 East, 328. [(e) In the two cases last stated it was only decided that the devisees could recover at law the property devised, the trust (if any) not being charitable; whether they took bene- ficially, or whether as trustees for the heir-at-law, the trust being void for uncertaintj', it was not within the province of the court to determine. 1 Where a bequest is for a purpose of lib- wards the support of the Roman Catholic erality or benevolence, or private charity not Chapel, in a certain place, has been held in amounting to a "charitable iise," and is of a Virginia too vague to be carried into effect, nature so general and undefined as to be in- the statute of Elizabeth not being in force in capable of being executed by the court, it that state. Gallego v. Att.-Gen., 3 Leigh, fails altogether, and the heir-at-law or the 450. So of a bequest " to the Baptist Asso- next of kin. as the case may be, becomes en- elation, that for ordinary meets at Philadel- titled to the property, as in the case of be- phia annually ; to be a perpetual fund for quests void by the statute. See Ellis «. Selby, the education of youths of the Baptist de- 1 Mylne & C. 286; 2 Story, Eq. Jur. § 1156; nomination," &c., the association not being Baptist Assoc, v. Hart, 4 Wheat, 1, 33, 39, a corporate body. Baptist Assoc, v. Hart, 43-45; Owens v. Missionary Society, 4 4 Wheat. 1. A similar decision was made Kern. 380; Price v. Maxwell, 28 Penn. St. in Connecticut, respecting a devise of a 25. In Delaware, a devise of money arising farm to " the Yearly Meeting of people called from land, to the trustees of a church, for the Quakers, in aid of the charitable fund of the education of poor children of the members of boarding school established by the Friends of such church is void. State i;. Wiltbank, 2 Providence." Greener. Dennis, 6 Conn. 293. Harrington, 18 ; State v. Walter, ib. 151. A See Wilderman v. Baltimore, 8 Md. 551. A direction in a will, that the executors thereof devise to the trustees of Brookhaven, a cor- should distribute $2,000 among needy, poor, porate body, capable of taking and holding and 'respectable widows, and pay f 1,000 to- land, in trust to pay the rents and profits to 243 *214 GIFTS TO A legacy payable once for aU may be charitable as well as one given ■y for the creation of a perpetual trust ; as, a legacy to the be charitable wldows and Orphans of a named place (/), or to six honest aWe at once ^^^ sober clergymen that are not provided with a living of toiiidivid- 4:01. (g) ; which could not in their nature have proceeded ""*■ from motives of personal, bounty to particular individuals. But a legacy payable once for all to poor relations (which includes A legacy to none more remote than the statutory next of kin (A)) is not 'Jpoorrela- charitable (j). If it were, only such as were actually poor charitable; in contemplation of the court could take (k) ; there might be many comparatively poor relations, yet none of them would take, and the legacy would be applied cy-pres, or (if the doctrine of cy-prls were thought .inapplicable (Z) ) would wholly faU ; either- of which re- sults would probably be a surprise to a testator who had intended to benefit his " poor relations." *214 * But the gift of a fund for the perpetual benefit of poor relations has frequently been supported as a charitable trOst(m). unless in- If Otherwise it would be void for uncertainty, since it would tended as a ^g impossible to Confine a trust for relations whensoever provision. existing to next of kin bj' statute. It would also be void as (/) Att.-Gen. v. Comber, 2 S. & St. 93; see also Russell v. Kellett, 3 Sm. & Gif. 264. (g) Att.-Gen. «. Glegg, Amb. 584. But see Thomas v. Howell, L. R. 18 Eq. 198, 209, where it is said that the legacy to sixty poor clergymen in Att.-Gen. v. Baxter (stated ante, |p. 206), was held not to be charitable. Lord Hardwicke's note of the decision is that it was good, "as if a legacy of those sixty individuals " (7Ves. 176); but that appears to be in answer to the argument (1 Vern. 219) that " to suffer them to take by such a devise was almost to make a corporation of them, and would keep them in a perpetual schism." Else- where (1 Ves. 536) he says of the case, " The court held the chnntable vse was not contrary to law." If Baxter had declined to select, would the gift have been void for uncertainty? (A) See Ch. XXIX. (i) Brunsden v. Woolredge, Amb. 507, where by will dated 1757 (see R. L. 1764, A fo. 536), land was given to poor relations, which, if a charitv, would have been void by 36 Geo. 2, c. 9 (1736). See also Widmore v. Woodroffe, Amb. 636 (stated post. Chap. XXIX.), where the L. C.'s arguments from uncertaintj' and from degrees of poverty assume that it was not a charity. (k) Att.-(ien. v. Duke of Northumberlancl, 7 Ch. D. 745. {I) As to cy-pres, see below. (m) Isaac «. Defriez, 17 Ves. 373, n.; White ». While, 7 Ves. 423; Att.-Gen. v. Price, 17 Ves. 371; Gillam v. Taylor, L. R. 16 Eq. 581; Att.-Gen. v. Duke of Northumberland, 7 Ch. D. 745. See also this distinction made m Brunsden v. Woolredge, Amb. 508. the regular minister, or other ruling officer, by the trustees of said church out of my for the time being, of a Baptist Church, which papers, the said f 8,000 to be put at interest was not, nor were its officers, a corporate forever, and the interest to be paid annually, body, was held void at law, in Jackson v. and to be distributed by said trustees, accord- Hammond, 2 Caines's Cas. 337. So a be- ing to the several necessities of said church, quest to an unincorporated female society in preachers, and mission; " and it was held another state, composed in part of married that the bequest was valid. Gibson i). M'- women, for charitable purposes, is void. Call, 1 Richardson, 174. See Witman v. Lex, Washburn v. Sewall, 9 Met. 280 ; Bartlett v. 17 Serg. & R. 88. In Gass v. Wilhite, 2 Dana, Nye, 4 Met. 378. A devise to an association 170, it was held that the legislature of the for religious purposes, unincorporated at the state of Kentuck}', in which state the con- testator's death, but since incorporated, is stitution guarantees freedom and equality to good in Pennsylvania. Zimmerman v. all religions, cannot denounce as a supersti- Anders, 6 Watts & S. 218. A testator in tious use any use or trust made for the benefit South Carolina, by will duly executed, be- of any religions society; and that the trust queathed "unto the Methodist Church at and use created by the "covenant," or article Darlington Court House " (an unincorporated of agreement, of the members of the society society), "and the preachers of said church, called Shakers are valid in law. and the Pedee Mission, $8,000, to be selected 244 CHAKITABLE XTSES. *215 a perpetuity, though this is not a recognized ground for varying the . construction. And in the case of a simple legacy the context may show that charity and not kinship is the prevailing consideration ; as seems to Mahon v. have been the case in Mahon v. Savage (n), where the be- Sa™se- quest was to " poor relations or such other objects of charity as the testator should mention," and Lord Redesdale held it to be a charitable bequest and not transmissible to representatives. The court does not take upon itself to frame schemes for the dis- posal of money for any other than charitable purposes. All All indefinite moneys, therefore, not bequeathed in charity must have u^ies^gfor*^ some definite object, or must devolve as undisposed of (o), charity, except in cases where it maj' be held that the trustee takes absolutely. The general consideration of such gifts will be reserved for a subse- quent chapter, as more properly falling under the head of gifts void for uncertainty ; but it must be here noticed, that where the be- „ , . quest is for charitable purposes, and also for purposes of an charitable indefinite nature not charitable, and no apportionment of ae^nf^ pur-' the bequest is made by the will, so that the whole might poses void be applied for either purpose, the whole bequest is void. A * -^^ distinction not now recognized was iiideed formerly taken, that such a bequest was good, if there were trustees named, to whose discretion the testator had committed the carrying out of his intentions, and with whom, therefore, the court would not interfere (p). Such a distinction will be found inconsistent with the decisions presently noticed ; and it seems now established, that the court will only recognize the validity of trusts which it can either itself execute or can control when in pro- cess of being executed by trustees (q) . Thus,] in Vesey v. Jamson (r), where a testator gave the residue * of his estate to his executors, upon trust to apply and *215 dispose of the same in or towards such charitable uses or pur- poses, person or persons, or otherwise, as he might by any codicil, or by memorandum in his own handwriting, appoint, and as the laws of the land would admit of; and, in default, upon trust to pay and apply the same in or towards such charitable or public purposes, as the laws of the land would admit of; or to any person or persons, and in such shares, manner and form as his (the testator's) executors, or the survivor of them, or the executors or administrators of such survivor, should in their or his discretion, will, and pleasure, think fit, or as they should think would have been agreeable to him, if living, and as the laws of the land did not prohibit. Sir J. Leach, V. C, observed, tjhat (n) 1 Sch. & L. 111. (o) Morice ». Bishop of Durham, 9 Ves. 399, 10 Ves. 522; James v. Allen, 3 Mer. 17. (p) Waldo V. Cayley, 16 Ves. 206; Horde «. Earl of Suffolk, 2 My. & K. 59; the latter case, though decided after Vesey v. Jamson, did not notice it ; and see the observations of Cottenham, C, 1 My. & Cr. 293. (2) Nash V. Morley, 5 Beav. 182.] (r) 1 S. & St, 69. 245 *216 GIFTS TO the testator had not fixed upon anj' part of the property a trust for a charitable use, and the court could not, therefore, devote any part of it to charity ; he had given it to the trustees expressly upon trust, and they could not, therefore, hold it for their own benefit ; the purposes of the trust being so general and undefined, they must fail altogether, and the next of kin become entitled. So, in Ellis v. Selby («), where a bequest for such charitable or other purposes as the trustees and the survivors or survivor of them, his ex- ecutors or administrators, should think fit, without being accountable to any person or persons whomsoever for such their disposition thereof, was held not to be a bequest absolutelj- devoting the property to char- ity; Sir L. Shad well, V. C, said, "Here the testator has expressly drawn a distinction between charitable purposes and other purposes ; and I must, therefore, take it that he meant either charitable purposes or purposes not charitable ; but whether the pui-poses not charitable were to be purposes which might give a beneficial interest to the trus- tees, or some other purposes, the testator has nowhere made clear. It is uncertain whether the ti-ust was to be for charitable purposes or for purposes not charitable. Then it is nothing more than if he had given an estate to A. or to B., which would be void; and my opinion is, that the gift of this portion of the personal estate is void for uncer- tainty.'' So in Williams v. Kershaw (<), the testator directed his trustees to ap- ply the residue of his personal estate to and for such benevolent, chari- table and religious purposes as they in their discretion should *216 think most advantageous and beneficial. It was * decided by Lord Cottenham, when M. E., that the gift was void for uncer- tainty. [And in Kendall v. Granger (m), where the trustees were directed to dispose of the residue for the relief of domestic distress, assisting indi- gent but deserving individuals, or encouraging undertakings of general utility, in such mode and proportions as their own discretion might sug- gest, irresponsible to any person or persons whatsoever ; Lord Lang- dale, M. R., decided that the gift was void for uncertainty. He said that to make the bequest valid, it must be obligatory on the trustees to apply the whole (x) of it in charitj' ; it was not a question whether the trustees might appty the fund to a charitable purpose, but whether by the words of the will they were bound to do so. To make the bequest valid it must be obligatory on them ; he thought there were older cases, showing that where charitable purposes were mentioned, the court would have taken care that the application should have been made to those purposes, but he was bound by the later decisions. (s) 7 Sim. 352, [affli-med 1 Mv. & Cr. 286.1 * [(() 5 L. J. N. S. Ch. 84,] 5 CI. & Fin. 111. («) 5 Beav. 303. See also Thomson s. Shakespear, John. 612, 1 D. F. & J. 399; Re Jar- man's Estate, 8 Ch. D. 884. (a) See James v. Allen, 3 Mer. 17. 246 CHAKITABLE USES. *217 Nor will the addition of an ascertained object to the charitable and the indefinite objects save the trust : for consistently with the will the whole might still be applied to the indefinite object. Thus, in Down V. Worrall (y), where the trust was for charitable or pious uses at the discretion of the trustees or otherwise for the benefit of the testator's sister and her .children ; one of the trustees died while part of the fund was still unappointed (z), and Sir J. Leach, M. R., held that the unappointed part was undisposed of and belonged to the next of kin. Such being the rule, the terms of the trust will first be closely ex- amined to see whether, though not the most correct or most „, ., . ,^ „ , ., . , , . , , , , Chanty held appropriate for describing only a charitable object, they the sole pur- ought not in fair construction to be so confined. Thus, in wUhst'andiiiff Dolan V. Macdermpt (a), where the trust was to lay out " in doubtful such charities and other public purposes as lawfully might be ®^Pi^^™°5- in the parish of T. ," as the trustees should think proper, it was held that the words " other public purposes" meant purposes ejusdem gene- ris, i.e. charitable, and that they were used only as filling up a de- scription of purposes which, although charitable within the stat. Eliz. (and in * that sense included in "charities") were not *217 within the popular meaning of the word " charities." Again, in Poc'ock v. Att.-Gen. (S), where a testator, after giving several charitable legacies out of a particular fund, directed the residue of it " to be given by his executors to such charitable institutions as he should by any future codicil give the same, and in default of any such gift, then to be distributed by his executors at their discretion ; " the testator made no further codicil, and it was held that the direction in favor of charity ran through the whole sentence : that the testator in- tended to choose the charitable institutions himself, but that if he failed to do so his executors were to choose them. The foregoing cases, where the gifts were held void for uncertainty, Must be distinguished from those where the bequest is for a p; .. ^. charitable purpose, and for another Ascertained object ; for where the here, even though the amount to be devoted to each object fharitable be not specified, and the apportionment be left to the discre- and other tion of trustees, yet the trust is such that the court can con- objects, trol the execution- of it so far as to see that the trustees though ap- portionment appropriate no part of the benefit to themselves ; whereas in left to trus- the foiiner cases the non-charitable object (which may ab- ^^^' Borb the whole) is so indefinite as to be wholly beyond the control of iy) 1 Mv. & K. 561. That " pious " uses are not charitable, see Heath v. Chapman, 2 Drew. 417. (2) No question was raised regarding the appointed part, but according to the cases, the bequest was void as to the whole. (a) L. R. 5 Eq. 60, 3 Oh. 676. Consult Ellis v. Selby as to the effect of omitting the word "public." (J) 3 Ch. D. 3i2. Cf. Wheeler v. Sheer, Mos. 288, cit. 1 Mer. 91, 97.] 247 *218 GIFTS TO the court ; and to hold that such a gift is valid, would be in effect to hold the trustees entitlfed for their own benefit.^ The objects among whom the trustees are to apportion the testator's Trustees de- bounty being sufficiently definite, are not to be disappointed dining to by the trustees refusing to exercise their power or dying donees take before doing so. In such event, the court will divide the equally. fyjKj equally among the several objects, upon the principle that equality is equity. Thus, in Att.-Gen. v. Doyley (c), where a testator directed his trus- tees and the survivor, and the heirs of such survivor, to dispose of his property to such of his relations of his mother's side as were most de- serving, a7id for such charitable purposes as thej' should also think most proper: one of the trustees declined to act, and Sir J. Jekyll, M. K., directed that one half of the property should go to the testator's rela- tives on the mother's side, and the other half to charitable uses. So, in Salusbury v. Denton (d), where a testator bequeathed a *218 fund to be at the disposal of his widow by her will, therewith * to apply a part to the foundation of a charity school or such other charitable endowment for the poor of O. as she might prefer,' and under such restrictions as she might prescribe ; and the remainder to be at her disposal among the testator's relatives as she might direct: the widow having died without exercising her power of apportioning the, fund, it was held by Sir W. P. Wood, V. C, that the gift was not void, but that the court would divide the fund in equal moieties. In Adham v. Cole (e), where a testator bequeathed the residue of his personal estate (consisting partly of leasehold propertj-) to trustees upon trust to lay out the same in building such a monument to his memory as they should think fit, and in building an organ gallery in the parish church, it was held by Lord Langdale, M. E., that the trustees had not rightly exercised their discretion in applying the whole to the monu- ment, and he referred it to the Master to ascertain in what proportion the residue ought to be divided between the two objects. ^ This case, it will be observed, differs from the preceding, in the mode of division adopted by the court ; the specific nature of the ob- jects enabling the court to apportion the fund between them without resorting to the expedient of cutting the knot by equal division. But the case is equally an authority against holding the bequest void for un- certainty (/). (c) 4 Vin. Abr. 485, 2 Eq. CaR. Ab. 194, 7 Ves. 58, n. (d) 3 K. & J. 629. [■(e) 6 Beav. 363. The trust for building the organ gallery failed of course under 9 Geo. 2, K. 36, so far as it depended on the leaseholds. ( f) In like manner, if there are several charitable objects, and the share of each is unde- fined, the court will direct inquiries to ascertain the proportion due to each, Re Eigley's Trust, 36 L. J. Ch. 147; or, if that, from the nature of the gift, is impracticable, will make equal division among the charities, Hoare v. Osborne, L. K. 1 Eq. 685. 1 Where a testator gives to A. an estate or plus, and do?s not specifically bequeath the rents, in trust to make certain payments to same, if there should be an " increase in the charities, and refers to the matter of a sur- profits of the estate, A. will be entitled, after 248 CHAEITAELE USES. -*219 And if, instead of a trust for a cliaritable and another definite object, there be a trust for a charitable or another definite object, as trustees shall appoint, there would be an implied trust for both in default of ap- pointment (^r).] The pohcy of early times strongly favored gifts, even of land, to charitable purposes. Thus, not only was no restraint im- posed on such dispositions by the early statutes of wills, but fariy timeg the act of 43 Eliz. c. 4,^ as construed by the courts, tended '" legaid to greatly to facilitate gifts of this nature, such act having been "^'^^ ^' held to authorize testamentary appointments to corporations for chari- table uses (A), and even to enlarge the devising capacity of testators, by rendering valid devises to those uses by a tenant in tail {i) ; * and also by a copyholder, without a previous surrender to the *219 use of the will (i), though it was admitted that the statute did not extend to the removal of personal disabilities, such as infancj', lun- acy, and the like (J). To the same policy we may ascribe that rule of construction presently considered, by the effect of which property once devoted to charity was never allowed to be diverted into any other channel, by the failure or uncertainty of the particular objects. At the commencement of the eighteenth century, however, .the tide of public opinion appears to have (ff) Brown v. Higgs, 4 Ves. 708, 5 Ves. 495, 8 Ves. 561 ; Fordyce v. Bridges, 2 Phill. 497. But see Thompson v. -Thompson, 1 Coll. 399, 8 Jur. 839. [(A) Flood's Case, Hob. 136. But see 1 D. & War. 303, 4, 5.] (i) Att.-Gen. v. Kye, 2 Vern. 453: Att.-Gen. v. Burdett, ib. 755. See also 3 Ch. Eep. 154. (4) Eivett's case, Moore, 890, pi. 1253, 3 Ch. Eep. 220. (0 See CoUinson's case, Hob. 136. making the specific payments required by the Hart, 4 Wheat. 1 ; Vidal v. Mayor of Phila- will, to take the surplus. Beverley ),-. "Att.- delphia, 2 How. 128. The sta'tute 43 Eliz. Gen., 6 H. L. Cas. 310 ; Att.-Gen. v. Windsor, c. 4, was repealed in Virginia in 1792. Gal- 8 H. L. Cas. 405. See Att.-Gen. v. Trinity lego «. Att.-Gen., 3 Leigh, 450; Janey ». Church, 9 Allen, 422. _ ^ Latane. 4 Leigh, 327. This statute, 43 Eliz. 1 The recent publications of the Commis- c. 4, forms, in principle and substance, a part sioners of the Public Eecords in England of 'he law of Massachusetts. Going i'. Emery, establish in the most satisfactory and conclu- 16 Pick. 107 ; Bartlett v. King, 12 Mass. 537 ; sive manner that cases of charities, where Sanderson «. White, 18 Pick. 328; Burbank there w,ere trustees appointed for general and v. Whitney, 24 Pick. ] 46 ; Bartlett v. Nye, indefinite charities, as well as for specific 4 Met. 378; Washburn v. Sewall, 9 Met. charities, were faniiliarlj' known to and acted 280 ; Wiiislow t). Cummings, 3 Cush. 358. .upon and enforced in chancerv, long before So of Penn.wlvania, Witman Lex, 17 Sei'g. the statute of 43 Elizabeth. And since the & E. 88: Mayor, &c. of Philadelphia v. Elli- case of Vidal u. Philadelphia, 2 IIow. 128, it ott, 3 Rawie, 170; Zimmerman v, Anders, 6 may be regarded as settled that chancery has Serg. & W. 218. But it has probably not an original and necessary jurisdiction in re- been re-enacted in terms in any of the tfnited spect to bequests and devises in trust to per- States. It is not in force in Maryland, sons competent to take for charitable purposes, Dashiell v. Att.-Gen., 5 Harv. & j". 382; when the general object of the charity is Wilderman v. Baltimore. 8 Md. 551. And it specific and certain, and not contrary to any has been abrogated in New York. Andrew positive rule of law. See Wade v. Anier. u. New York Bible Soc, 4 Sandf. 156 ; Ayres Colonization Soc, 7 Smed. & M. 695 ; Potter v. Methodist Church, 3 Sandf. 351 ; Oweiis v. V. Chapin, 6 Paige, 639 ; Moore v. Moore, 4 Missionary Soc, 4 Kern. 380. Whether it is Dana, 357; 2 Story, Eq. .Tur. § 1142, et seq. ; in force in Mississippi, qum'ef Wade v. Dashiell v. Att.-Gen., 5 Harr. & J. 392 ; Gal- Amer. Colonization Society, 7 Smed. & M. lego V. Att-Gen., 3 Leigh, 450 ; Janey v. 663. Latane, 4 Leigh, 327 ; Baptist Association v. 249 *220 GIFTS TO flowed in an opposite direction, and the legislature deemed it necessary to impose further restrictions on gifts to charitable objects ; from the nature of which it may be presumed that the practice of disposing by will of lands to charit}' had antecedentlj- prevailed to such an extent as to threaten public inconvenience. It appears to have been considered, that this disposition would be sufflcientlj- counteracted by preventing persons from aliening more of their lands than they chose to part with in their own lifetime ; the supposition evidently being, that men were in little danger of being perniciously generous at the sacrifice of their own personal enjoyment, and when uninfluenced by the near prospect of death. Accordingly, the stat. of 9 Geo. 2, c. 36 (usually, 2 c' 36. ^^^ rather inaccurately, caUed the Statute of Mortmain^), enacted that, from and after 24th June, 1736, no heredita- ments, or personal estate(»n) to be laid out in the purchase of ments, or per- hereditaments, should be given, convej'ed, or settled to or tobe'lald^OTit ^'PO"! ^^J pei'sons, bodies politic or corporate, or otherwise, in the pur- for any estate or interest whatsoever, or any wa3-s charged or redftaments incumbered, in trust or for the benefit of any charitable uses to be disposed whatsoever («) , unless such gift or settlement of heredita- for any char- ments Or personal estate (other than stocks in the public 'd'^'^trnb f^'i'^s) ^^ made by deed indented (o), sealed and delivered indenture en- in the presence of two credible witnesses ( p ) , twelve cal- Chaacery endar months before the death of the donor, including &c. *220 *the days of the execution and death, and enrolled (r) in Chancery within six calendar months after the exe- cution, and unless such stocks be transferred six calendar months before the death, and unless the same be made to take efleet in possession (s) for the charitable use, and be without any power of revocation, reserva- tion (t), trust, &c. for the benefit of the donor, or of any persons claim- ing under him. [(ot) a voluntary covenant to pay a sum to a charity after covenantor's death is void under this act, so far as it would aileet chattel real assets, Jeffries v. Alexander, 8 H. L. Ca. 594, and see S. C. as to validity of " devices to evade the statute," and as to the object of the act; and Fox v. Lownds, L. R. 19 Eq. 453. As to subscription fund, and as to parol declaration of trust, see Girdlestone v. Creed, 10 Hare, 480. in) A conveyance of land to church-wardens and overseers of a parish to build-a poor house, under 59 Geo. 3, c. 12, is not within the act. Burnaby v. Barsby, 4 H. & N. 690. (o) The deed need no longer be indented, 24 Vict. c. 9, s. 1. (p) In Wickham v. M. of Bath, L. R. 1 Eq. 17, it was held that the witnesses must not only be present, but subscribe the attestation ilause. (r) As to copyholds and cases where the conveyance to trustees is by one deed, and the declaration of trust by another, see 24 Vict. c. 9, ss. 2, 4; 25 Vict. c. 17, ss. 1, 3, 4. A deed conveyina; to a charity land already in mortmain does not require enrolment. Ashton v. Jones, 28 Beav. 460. (s) I. e.; giving the right to possession. Fisher v. Brierley, 10 H. L. Ca. 159. As to actual retention of possession by the donor, not expressly authorized bv the deed, furnishing evidence of a secret reservation, see S. C. and Way c. East, 2 Drew. 44. A lease for years to take effect in possession within one year is good, '26 & 27 Vict. c. 106.] (() This does not preclude the donor from reserving to himself the power of regulating the charity. 2 Cox, 301. See also 1 Mer. 327. [And by 24 Vict. c. 9, s. 1, certain restrictive covenants and other provisions are now permissible. 1 The Mortmain Statutes were never in force in Wisconsin, Dodge v. Williams, 46 Wis. 70. 250 CHARITABLE USES. *221 [The 2d section provides, that purchases for valuable consideration shall not be avoided by the death of the grantor within the twelve months, leaving, however, such purchases subject to the ^''^^ "'°" other conditions imposed b_y the act (m) . The 3d section declares all gifts, conveyances, settlements, of any hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any hereditaments, &c., not perfected according to the act, void. The 4th section excepts from the operation of the act -the two universities of Oxford and Cambridge, and the colleges thereof, and the scholars upon the foundation of the colleges of Eton, Winchester, or West- minster. The 5tli section puts a restriction, since removed {x) , on the number of advowsons to be held by any such college. The 6th section excepts Scotland from the act.] The act extends to leaseholds and mone}' secured on mortgage, whether in fee or for years (y) , [or bj- deposit of title-deeds (z) , and what species to arrears of interest on any such mortgage (a)] : and even to '^^fh°nli}J judgment debts, so far as thej' operate as a charge on real statute, estate (b) . And where a testator had bequeathed his personal * estate upon trusts for a charity, and afterwards contracted to sell *221 real estate, it was held that his lien on the propertj' for the pur- chase-money was ' ' an interest in land " within the meaning of the stat- ute, and accordinglj' could not pass with the rest of his personal estate(c). Again, where A., being entitled to certain sums of money which were to be raised by the ejf ecution of a trust for sale of real sum charged estate, bequeathed all his personal estate to B., who survived °" '^J"^. *"'" j A., and afterwards died, having bequeathed the residue of not yet her personal estate to charity ; it was contended, that,, as the ™'^^'^- period for raising the sums in question had arrived in the lifetime of B., (though they were not actually raised until after her decease) , it was a breach of dutj- in the trustees not to raise them, and this neglect ought not to invalidate the gift, especially as the charities had no right to elect to take it as land ; but Sir J. Leach, V. C, held, that these sums, con- stituting an interest in land at the testatrix's death, could not legally be given to the charities (d) . [And it makes no difference, as sometimes supposed (e) , whether B. (in the above case) was alone entitled to the whole proceeds of the land directed to be sold, and entitled, therefore, (m) On this section see Price v. Hathaway, 6 Mad. .304; Milbank v. Lambert, 28 Beav. 206; and 9 Geo. 4, c. 85; 24 Vict. c. 9, ss. ], S, 4; 25 Vict. c. 17, ss. 2, 5; 27 Vict. c. 13, s. 4; 23 & 30 Vict. c. 57. (x) 45 Geo. 3, c. 101.] (y) Att.-Gen. v. Graves, Amb. 155 ; Att.-Gen. v. Caldwell, ib. 635 ; Att.-Gen. v. Mevrick, 2 Ves. 44; Att.-Gen. v. Earl of Winchelsea, 3 B. C. C. 373; [S. C. nom. Att.-Gen. v. Hurst, 2 Cox, 364 ;] White v. Evans. 4 Ves. 21; Currie v. Pye, 17 Ves. 462. [See s. 3 of the Act, and Toppin v. Lomas, 16 C. B. 159.] (z) Alexander v. Brame, 30 Beav. 153; Lucas v. Jones, L. R. 4 Eq. 73. (a) Ib. , (6) Collinson v. Pater, 2 K. & My. 344. [And see Jeffries v. Alexander, 8 H. L. Ca. 694.] (c) Harrison v. Harrison, 1 R. & My. 71. [See also Shepheard v. Beetham, 6 Ch. D. 597 (lien for premium payable on grant of lease).] (d) Att.-Gen. v. Harley, 5 Mad. 321. [(e) Marsh v. Att.-Gen., 2 J. & H. 61; Lucas v. Jones, L. R. 4 Eq. 73. 251 *222 GIFTS TO to take the land unconverted ; or whether he was entitled only to a share of the proceeds, or to a sum paj^able thereout. In either case, if the real estate has not in fact been sold before B.'s- death, his interest is then an interest in land and within the statute (/). "It may very well be," said Lord Cairns, " that no one of the several persons en- titled to the proceeds could insist upon entering on the land, or talcing the land, or enjoying the land qua land, but the interest of each one of them is, in my opinion, an interest in land "{g) .] If the pecuniary gift is partly charged upon land and partly personal, Legacy, it will be void pro tanto. ' And therefore, where a testator and par^ devised a freehold estate to be sold, and the produce applied, persoual.void together with so much of the personal estate as should be pro tanto. necessary, to secure an annuity of 301. for the life of A., *222 and * after his death, the principal to go to a charity ; the fl-ee- hold estate not being sufficient to raise the money, it was held that the bequest was good as to the residue, which was to be raised out of the personal estate (/). [By the older authorities the act was held to] extend to every descrip- Propertv tion of property Savoring of the realtj'; as, the privilege by savoring of a grant from the crown of laying chains in the river Thames rea y. ^^^ mooring ships (g) ; canal shares (h) ; and monej'^ secured Early deci- hy assignment of turnpike tolls (i) , or of the poor's rate and sions respect- county rates (k) . [These authorities were followed in com- ing canal •' \ / l shares and paratively recent times bj' similar decisions regarding money debentures, gggm-ecl by mortgage of the rates imposed on the occupiers of houses by improvement commissioners (/) , or by mortgage of rail- waj' (m), harbor (n), dock (o), or canal (p ), tolls all which are com- monly called debentures (q) . AU. these were held within the plain words of the act, " charges or incumbrances .affecting hereditaments." But " the current of modern decisions is against the older eases, and whUe there is to be discovered an inclination formerly to carry the pro- (/) Conversely where a testator, having a reversionary interest in personalty, which during the life of the tenant for life (who survived him) was subject to a power of investment in real securities, but which was never so invested, bequeathed it to a charity, the bequest was held valid. The actual condition of the fund when it fell in was the criterion. Re Beau- mont's Trusts, 32 Beav. 191. „ „ ( o) Brook V. Badlev -L. R. 3 Ch. 672. See also Aspmall v. Bourne, 29 Beav. 462 ; Cad- burv V. Smith, L. K. 9 Eq. 43. Thus Shadbolt v. Thorton, 17 Sim. 49, is overruled.] (f) Waite u. Webb, 6 Mad. 71. ('= "ct. corporation or in individuals (as the case may be) , in trust only to use the land for the purpose of profit as part of the stock in trade, even though the undertaking be based entirely upon the holding of land, as in the cases of railwa>j-, dock, * market, gas, canal, mining, *223 and land-jobbing companies, and also, of course, where the hold- ing of land is only incidental to the business, as in the case of banking and assurance companies, are exempted from the operation of the aet(tt). The exemption does not depend on the clause frequently inserted in acts and deeds of settlement declaring shares to be personal estate and transmissible as such (x) , nor on the nature of the busi- ness (y), but on the nature of the individual shareholder's interest. " The true way to test it," said Lord St. Leonards, in Myers v. Peri- gal (z), " would be to assume that there is real estate in the company vested in the proper persons under the provisions of the partnership deed. Could any of the partners enter upon the lands, or claim any portion of the real estate for his private purposes ? Or, if there was a house upon the land, could anj' two or more of the members enter upon the occupation of such house ? I apprehend they clearly could not ; they would have no right to step upon the land ; their whole interest in the property of the company is with reference to the shares bought, which represent their proportions of the profits. No incumbrancer of an individual member of the company' would have any such right. In short, a member has no higher interest in the real estate of the com- pany than that of an ordinary partner seeking his share of the profits, out of whatever' property those profits might be found to have resulted." And the fact that by the dissolution of a company the shareholders may become specifically interested in the real property is to be considered as a remote event, and no more avoiding a bequest of a- share to a charity than a like bequest of a simple-contract debt would be avoided, because (r) Per Lord St. Leonards, 2 D. M. & G. 619. (s) As to companies or partnerships not incorporated, see Myers v. Perigal, 11 C. B. 90, 2 D. M. & G. 599; Watson v. Spratley, ]0 Excli. 222 (case on the Stat, of frauds); Hayter V. Tuclter, 4 K. & J. 243 ; and the authorities cited in those cases. (t) See 10 & 11 Vict. c. 78. [(«) Att.-Gen. v. Giles, 5 L. J. N. S. Ch. 44 ; Sparling « Parker, 9 Beav. 450 ; 'Walker V. Milne, 11 Beav. 507; Thompson «. Thompson, 1 Goll. 381; Hilton v. Giraud, 1 De G. & S. 183; Ashton v. Lord Langdale, 4 De G. & S. 402; Myers v. Perigal, 16 Sim. 533; Re Lang- ham's Trust, 10 Hare, 446; Edwards v. Hall, 11 Hare, 1, 6 D. M. & G. 74; Bennett v. Blair, 15 C. B. (N. S.) 518 (corn-exchange); Hayter v. Tucker, 4 K. & J. 243 (cost-book mme); Entwistle v. Davis, L. R. 4 Eq. 272 (land company) ; overruling 'Ware v. Cumberlege, 20 Beav. 503, and Glynn v. Morris, 27 Beav. 218. Shares in a railway company, whose line is leased to another compauv at a rent, are on the same footing. Linley v. Taj'lor, 1 Giff. 67, 2 D. F. & J. 84. (x) 10 Hare, 449. A deed would of course be insufficient for the purpose. Baxter v. Brown, 7 M. & Gr. 216. Besides porsonaltv, unless " pure," is within the act. (y) Entwistle ii. Davis, L. R. 4 Eq . 272, stated below. (z) 2 D. M. & G. 620. 253 *225 GIFTS TO it might ultimately become a judgment debt, and thus a charge upon realty (a) . •224 * This doctrine was fullj' adopted in Entwistle v. Davis (b), ■where shares in land companies established, one for the purpose of buying, improving, letting and selling land, the other for raising by subscription a fund out of which every member should receive the amount or value of his share for the erecting or purchase of a dwelling- house, or other real or leasehold estate (giving satisfactory mortgage security for the advance), were held by Sir W. P. Wood not to be within the statute. In neither case could a shareholder claim any portion of the land which was held by the company for the purposes of its business. If, in the case of the second company, an option had been given to every shareholder of taking a plot of land, the V. C. thought something might have been said. And if the land of a companj- or partnership be vested in any person in trust, not for the purposes of the undertaking generally, but for the individual shareholders or partners in proportion to their shares, then such shares are an interest in land within the meaning of the act Geo. 2, for then the individual shareholder would have power to call upon the trustee, not merely for his share of the profits-, but for part of the very land itself, which, in the cases pre- viously considered, he could not do (c). The current of decision regarding debentures has also been reversed. „ ., , The course taken was this. It was held in Q. B. that a Railway de- , ., , . , j. ,, ,, bentures, &o. mortgage by a railway company by assignment of the ' ' un- Liiter deci- dertaking" and tolls would not support ejectment against sions. ^jjg company. Coleridge, J., said it was a pure question of construction; that the word "undertaking" was ambiguous; it might possibly include the land ; but if it did, the instrument gave the mort- gagee power, if he took possession, to put an end to the undertaking : which was a monstrous and improbable supposition (d) . This was fol- lowed by Turner and Cairns, L.JJ., who decided that all that the mort- gagee could touch under such an instrument, was the profits of the undertaking ; that the undertaking was made over to him as a *225 going concern, and * plainly with a view to its continuance, and not so as to give him anj' power to break it up or interfere with (a) See 5 Beav. 442, 2 D. M. & G. 620, 7 ib. 525, 10 Exch. 222, 245, L. R. 4 Eq. 276. Whether shares of the nature now under consideration are goods and chattels within the Bankrupt Act, see Ex p. Vauxhall Bridge Company 1 Gl. & J. 101, and Re Lancaster Canal Company, Dilworth's case, Mont. & Bli. 94. On the nature of shares as qualification for the county vote, see Baxter ». Brown, 7 M. & Gr. 198; Bulmer v. Norris, 9 C. B. N. S. 19. Share's in an incorporated companv held not an interest in land within s. 4 of Stat, of Frauds, Bradley v. Holdsworth, 3 M. & Wels. 422; nor within s. 17, Duncuft v. Albrecht, 12 Sim. 189. So (as to s. 4) shares in a cost-book mine, Hayter v. Tucker, 4 K. & J. 243; Watson «. Spratley, 10 Exch. 222; Powell v. Jessop, 18 C. B. 337 ; Walker v. Bartlett, ib. 845. Shares in the Chelsea Water-works Co. were held (before 1 Vict. c. 26) to pass by unattested codicil. Bligh V. Brent, 2 Y. & C. 268. (6) L. R. i Eq. 272. (c) Per Wood, V. C, Havter v. Tucker, 4 K. & J. 251. (d) Do«.d. Myatt v. St. Helen's Railway, 2 Q. B. 364. 254 CHAEITABLE USES. *226 its management (e) . The two decisions are perhaps not identical ; the former being that the land did not pass, the latter that, if it did, it was only as an ingredient in a going concern. From these decisions, how- ever, it was concluded in Attree v. Hawe (/) , that mpney secured by such debentures was not such a charge on here- Hawe. ditaments as was within the act : for the mortgagee having Railway de- " no power to take the land, or enter on the land, or in any witliin the" way to interfere with the ownership, possession, or domin- '"^'■ ion of the statutorj' owners and managers,'' the gift of money so secured to charitable uses was not within the mischief against which the act was directed : " the mischief, and the sole mischief," aimed at being, it was said, the making land inalienable. It will be remembered that Lord Hardwicke very distinctly denied that this was an accurate definition of the objects of the Remarks on act (g). It was an object mentioned in the title to the act : Attree v. but only there, and the title was no part of the act. It will *"'^' also be remembered that the mere absence of power " to take the land or to enter on the land " does not necessarily take a case out of the act (k) . However, the decision in Attree v. Hawe is convenient, and must be taken to have finally settled the law with regard to railway de- bentures : for although the subject of gift in that case was debenture stocic, no distinction appears to have been intended or to be possible on that account; since the holder of such stock has by statute "all the rights and powers of a mortgagee of the undertaking,'' except the right to require payment of his principal. The principle of the j)g{,5,„f decision is applicable to the debentures of all public bodies of other com- with parliamentarj- powers and duties to be exercised for the P^"'^*- public benefit, as harbor, dock, canal, and waterworks companies (i), and public bodies constituted for the improvement of towns. Growing crops, which pass under a devise of the ' . land on * which they are growing, and clearly, there- *226 crops. fore, savor of realty, are within the act (la). But rent. Arrears of when due, is in the nature of fruit fallen : it is severed from the land, and the right of distress is not an interest in land, but merely a right to enter and enforce paj'ment of the debt by seizure of the chat- ■ (c) Gardner v. London, Chatham and Dover Railway, L. R. 2 Ch. 201. ( /■) 9 Ch. D. 337. See also Re Mitchell's Estate, 6 Ch. D. 655 ; "Walker v. Milne, 11 Beav. 507. ((/) Att.-Gen. v. Lord Weymouth, Amb. 22. " That which a man fancies to be a discov- ery of a new and correct reading (of a statute) which has escaped the attention of eminent men in time past, will often, on more mature consideration, be found not to have been over- looked bv them, but rejected for some sufficient reason." Per Lord St. Leonards, 1. D. & War. 326. (A) Ante, p. 221. (i) Holdsworth «. Davenport, 3 Ch. D. 185; Walker v. Milne. II Beav. 507. The cases of Ashton V. Lord Langdale, 4 De G. & S. 402 (railway debentures), and Chandler v. Howell, 4 Ch. D. 651 (mortgage of " works," &c. by improvement commissioners), must be consid- ered overruled. • (ia) Symonds v. Marine Society, 2 Giff. 325. 255 *227 GIFTS TO tels there found. Arrears of rent may, therefore, be bequeathed to a Tenant's charity (i). So may tenant's fixtures, which, on the deter- flxtures. mination of his lease, the testator might carry away with him (?).J Where lands are devised in trust for a charitN', the trust not only is Charitable itself void, but vitiates the devise of the legal estate on tiiriegai'*"'^ which it is ingrafted (m) ; and therefore, in such cases, the estates. heir maj' recover at law ; except where there are other trusts not charitable (ra) ; [or where the trust is secret, that is, where the dev- isee has verbally promised to hold in trust for a charity (o) ; in either of which excepted cases the devise carries the estate to the trustee,] and the heir (p) must prosecute his claim in equity. Where the conveying of land to a charity is enjoined as a condition subsequent, as where the devise is to A., on condition that he shall con- vey Whiteacre (part of the devised estate) to a charitj-, the condition alone is void, and the devise is absolute (q) . Though the statute does not in terms apply to the proceeds of land Bequest of ' directed to be sold, yet it is settled by construction, that a proceeds of fund of this nature is within its spirit and meaning (r) , on charity ille- the ground, it should seem, that the legatee might have g*'- elected to take it as land (s) ; and a legacy payable out of So, of bequest g^Q]^ ^ fund of course shares the same fate (t). The act, of money to , , , n , „ be laid out in however, does expressly embrace the converse case of land. money being directed to be laid out in land (u), and the prohibition applies not only where the investment in land is ex- *227 pressly directed by the will, but also * where it results from the nature and regulations of the charity itself (v). A recommendation to trustees to purchase land is imperative, and, Eecommen- consequently, has the same invalidating effect as a trust chase held to which is mandatory in terms (a;). '^ But, if an option be be manda- given to the trustees to lay out the money in land, or upon (h) Edwards v. Hall, 11 Hare, 6, 6 D. M. & G. 74; Brook v. Badley, L. R. 4Eq. 106 (a mining "rent"); Thomas «. Howell, L. R. 18 Eq. 203. (I) Johnston i). Swann, 3 Mad. 467.] (m) Adlington v. Cann, 3 Atk. 155 ; Doe d. Burdett v. "Wrighte, 2 B. & Aid. 710 ; [Pilking- ton D. Boughey, 12 Sim. 114; Cramp v. Playfoot, 4 K. & J. 479.] (n) Willett V. Sandford, 1 Ves. 186 ; see also Doe v. Copestake, 6 East, 328 ; Doe v. Pitcher, 6 Taunt. 359; [Arnold v. Chapman, 1 Ves. 108; Young v. (irove, 4 C. B. 668; Doe d. Chidgey V. Harris, 16 M. & Wels. 517; Wright v. Wilkin, 31 L. J. Q. B. 196. (o) Sweeting v. Sweeting, 3 N. R. 240. As to secret trusts, post, p. 233.] Ip) But if the devise were of particular lands in fee, and the will contained a residuary devise, the failure of the former would, under a will made since 1837, let in the residuary devisee, not tlie heir. ■ {q) Poor v. Miall, 6 Mad. 32. [()•) Att.-Gen. v. Lord Weymouth, Amb.20]; Curtis v. I-Iutton, 14 Ves. 537; Trustees of British Museum ». White, 2 S. & St. 595. Us) It is an interest in land, per Lord Cairns, L. E. 3 Ch. 674.] (*) Page V. Leapingwell, 38 Ves. 4B3. (m) Att.-Gen. v. Heartwell, 2 Ed. 234; Pritchards. Arbouin, 3 Russ. 458. («) Widmore v. Woodroffe, Amb. 636 ; Middleton v. Clitherow, 3 Ves. 734. [And see Den- ton V. Manners, 25 Beav. 38, 2 De G. & J. 675.1 ix) Att.-Gen. v. Davies, 9 Ves. 546; Kirtband ». Hudson, 7 Pri. 212: [Pilkington v. Boughey, 12 Sim. 114.] 1 See2Story,Eq.Jur.§§ 1068-1074; Hart Beuren, 1 Caines, 84; Farwell v. Jacobs, 4 ». Hart, 2 Desaus. 57; Van, Dyck v. Van Mass. 634; Boiling ». Boiling, 5 Munf. 334; 256 cha:^itable uses, *228 government or personal security (y), [or, generally, to execute the trust in either of two ways, the one lawful, the other not (z), or, if the regulations of the charity be such that the money ^here trus- bequeathed might, if the act were out of the way, be applied tees have an either in one way or the other (a), the bequest is valid, "nvestinland Thus, in Lewis v. AUenby (b), a bequest of residue, com- or other se- • • 1 • 1. ; , „ ,. . . curity, the prising pure and impure personalty, to trustees for division bequest is among such charities in London or elsewhere in England as ^'""^' they in their discretion should think proper, was upheld on the ground that the trustees had power to name the charities, and could properly exercise it as to the impure personalty only in favor of such charities as were exempted from the act.] It was attempted to bring within the scope of this principle a direction to invest on such mortgage securities as the trustees should approve, which, it was contended, authorized the trustees to lay out the fund on mortgages of personal chattels, or on Irish or Scotch real securities (some of which the testator was already possessed of) ; but Lord Langdale, considering that the reason- ing savored too much of refinement, held the bequest to be void (e) . So, if investment in land is the ultimate destination of the money, the bequest will not be protected by the circumstance y^r. , of * provision being made for its suspension during *228 purchase of an indefinite period ; and, therefore, a gift of per- ulSmate ob- sonal estate, to be laid out in the purchase of lands, has ject, the trust been repeatedly held to be void, although the trustees were '^ * empowered to invest the money in the funds until an eligible purchase could be made (d) ; [neither will a direction to purchase. Even though though accompanied by a legal alternative direction for the optjoj'^'fn application of the money in case the purchase cannot be case land can- conveniently made, give the trustees such a discretion as to "ientiy pur^ " take the bequest out of the statute, where there is no im- chafed, pediment to the primary trust but the statute (e) .J These deternaina- (y) Soresbv v. Hollins, Arab. 211, [9 Mod. 221; Widmore v. Governors of Queen Anne's Bounty, 1 B. "C. C. 13 n.; Att.-Gen. v. Parsons, 8 Ves. 186;] Curtis v. Hutton, 14 Ves. 537 i [Edwards v. Hall, 11 Hare, 11, 12, 6 D. M. &G. 89; Dent v. Allcroft, 30 Beav. 335; Saliis- bury V. Denton, 3 K. & J. 529 ; Graham i). Paternoster, 31 Beav. 30 ; Wilkinson v. Barber, L. E. 14 Eq. 96 : Morley v. Croxon, 8 Ch. D. 156. (z) Mavor of Faversham ». Ryder, 18 Beav. 318, 5 D. M. & G. 350; Baldwin v. Baldwin, 22 Beav. 419; London University v. Yarrow, 1 DeG. & J. 72; Sinnetts. Herbert, L. R. 7 Ch. 243; Lewis v. Allenby, L. E. 10 Eq^668. (a) Church Building Society ». Barlow, 3 D. M. & G. 120 ; Carter v. Green, 3 K. & J. 591 ; Denton v. Manners, 2 Be G. & J. 675, 682. Unless the purpose of the gift be expressly con- fined by the will to the illegal object : see last case. If the will be expressly worded to in- clude the illegal as well as the legal objects, it would seem that there must be an apportionment, EeEi^ley's Trusts, 36 L. J. Ch. 147; Hoare v. Osborne, L. R. 1 Eg. 585, and the share apportioned to the illegal object would be undisposed of. (6) L. R. 10 Eq. 668.1 (c) Baker V. Sutton, 1 Kee. 224. [Cf. London University*. Yarrow, supra, where a clioice' between London and Dublin was expressly given.] (d) Grieves v. Case, 4 B. C. C. 67, D'ick. 251, [1 Ves. Jr. 548, 2 Cox, 301 ;] English ». Orde, Duke, Ch. Uses, 432 ; Pritchard v, Arbouin, 3 Russ. 458 ; [Mann v. Burlingnam, 1 Kee> 235. (e) Att.-Gen. v. Hodgson, 15 Sim. 146.] Sydnor v. Sydnors, 2 Munf. 263; Pierson note (a) and cases cited; S. C. ib. 231V ti. Garnet, 2 Bro. C. C. (Perkins's ed.) 47, note (c). VOL. i. 17 257 *229 GIPTS TO tions.have clearly overruled Grimmett v. Grimmett (/) ; and it seems somewhat difiBcult to reconcile with them the more recent case of Att.-Gen. v. Goddard (g), where a testatrix, after bequeathing 1,000Z. Indian annuities to trustees for charitable purposes, added, " as money is of more uncertain value than land, I do also give them power to make such purchase as they shall think best for perpetuating the gift ; " Sir T. Plumer, M. R., hesitatingly held the bequest to be valid, though he admitted it to be doubtful whether the clause in the will did not amount to a direction to purchase land, and whether the discretion extended to anything further than the selection of the estate. It is clear that where the will is silent as to the purchase or acqui- , ,., sition of land, and the charitable trust or purpose is of a where the nature which admits of its being fuUy and conveniently exe- Fand'^s^not cuted without such purchase or acquisition, the legacy is essential to good. Thus, where the testator bequeathed 2,800Z. three per cent, reduced annuities, and directed the dividends to be applied " for and towards establishing a school," Lord Loughbo- Giftof income rough Said, that this did not include the purchase or renting to establish a of land : the master might teach in his own house, or in ' the chm'ch (k). So, in another case, the bequest of per- sonalty, " to be a perpetual endowment and maintenance of two — to endow schools,'' was considered, by Richards, C. B., to be so far one; good; though it Was rendered void by the addition of a recommendation to purchase land (i). And even where the interest of the bequeathed fund was directed to be applied in ' ' providing a _ ., proper school-house," Sir J. Leach, V. C, thought a school- *229 * that, aa the intention might be executed by hiring '*""^®" a house, without the necessity of purchasing land, the bequest was valid ; and that, too, though the wiU contained expres- sions showing that the testator contemplated the perpetuity of the charity (k). So, where the trustees were expressly directed to apply the income of a charity fund in the purchase or rental of an appropriate building (Z) . [Much reliance was in these cases placed on the circumstance that Cowtra where the purposes of the will were to be answered out of the fand'in-^ °* annual income as it arose, leaving the principal untouched, tended. Where a legacy was given towards " establishing " a school near the Angel Inn at E., provided a further sum could be raised in aid it 1 to thereof if found necessary; Sir G. Turner, V. C, said that establish a the first words indicated an intention to occupy a site in school; tjje neighborhood referred to; and that the latter words (f) Amb. 210. (ff) T. & R. 348. (7j) Att.-Gen. v. Williams, 4 B. C. C. 526, [2 Cox, 387;] see also Att.-Gen. v. Jordan, Highmore on Mortmain, 225. [Also Martin ». Wellstead, 23 L. J. Ch. 927; Ilartshorne ». Nicholson, 26 Beav, 68.] (i) Kirkl)ank u. Hudson, 7 Price 221. (k) Johnston v. Swann, 3 Mad. 457; [and see Grafton v. Frith, 15 Jur. 737, 20 L. J. Ch. 198.] (0 Davenport v. Mortimer, 3 Jur. 287 (V. C. Shadwell). 258 CHAEITABLE USES. *230 removed all dbubt, showing that the establishment of the school was not to be by a succession of small payments, but by the immediate expenditure of a sum of money. He thought it clear that the inten- tion was that land should be purchased (m). So, in Dunn v- Bownas {n), where a testator bequeathed a sum of money to the mayor and corporation of N. , in trust for the purpose of" establishing" a hospital for twelve poor wid- ~^ °^^' ' ows, with a monthly allowance of twenty shillings to each, the surplus to be applied in providing for them coals, clothing, or other necessa- ries ; and he declared that the bequest was to be carried into effect at the death of his sisters, or during their lives if they should think proper, in which case they should be allowed to name the first inmates, Sir W. P. Wood, V. C, held that the only way in which the trust could be executed was to buy a house with part of the fund, and that the reference to " surplus income " was not sufficient to alter this plain conclusion. And in Tatham v. Drummond (o) , a bequest of money to be applied towards the "establishment" of slaughter-houses in the _ a slaughter neighborhood of London was held void by Lord Westbury, house; who thought it could not be doubted that if there were no Statute of Mortmain, a bequest to " establish " a charity such as a school or a hospital in any parish or district would be carried into effect * by *230 the purchase of land and the erection of buildings thereon ; and he adopted Lord Loughborough's rule (p) that the court would not alter its conception of the purposes of a testator merely because they happened to fall within the prohibitions of the statute. So a bequest to ' ' found " a chapel (q) is prima facte void. — *» found a But a bequest to " endow " churches and chapels in pop- ' '^^^ ' ulous districts (r) , or to " support " a school at A. (s) , or to dow cfurch-' "found a charitable endowment " (<), is good. A bequest ^.schools, to establish an " institution" may also be good if the pur- nj^ j-, ." pose of the institution as described does not require the tion." purchase of land (m).] It has been much questioned whether a bequest of money, to be applied in the "erection" of a school-house or other building, for charitable purposes, is bad, as involving a trust to purchase. Lord Hardwicke considered that if the trustees could get a piece of J(m) Att.-Gen. ». Hull, 9 Hare, 647; and see Att.-Gen. v. Hodgson, 15 Sim. 146; Long- V. Eenneson, 1 Drew. 28; Re Clancy 16 Beav. 295. (n) 1 K. & J. 596. (o) 4 D. J. & S. 484, reversing Wood, T. C, 33 L. J. Ch. 438. (p) Att.-Gen. v. Williams, 2 Cox, 387. (?) Hopkins v. Phillips, 3 Giff. 182. (r) Edwards v. Hall, 11 Hare, 1, 6 D. M. & G. 74. («) Morley v. Croxon, 8 Ch. D. 156; Kirkbank v. Hudson, 7 Pri. 221, per Richards, C. B., supra. («) Salusbury 9. Denton, 3 K. &. J. 529. (k) Baldwin v. Baldwin, 22 Beav. 413 (trusts to provide annuities for indigent persons, with directions for the management of the '■ in-ititntion " ). And ."iee per Lord Cranworth, London University v. Yarrow, 1 De. G. & J. 81, but qu., for that was a hospital for animals.] 259 *231 GIFTS TO Legacy to be ground given to them, so that land need not be pur- erectinVor chased, the gift was good (x) ; but the contrary is now building, bad. settled (y) : [and to make such a bequest valid, the testator must either point to land already in mortmain; or he must forbid the purchase of land (z). Thus, in Mather v. Scott (a), where a testator bequeathed a legacy to trustees, with a request that thej' would entreat the lord of the manor to grant land for buildiug almshouses. Lord Langdale, M. R., held that the language of the bequest was not suffi- ciently expressed to exclude a purchase, and therefore the gift failed.] Legacy on And it is equally clear that a legacy [on condition that the thaUe'Ttee ^^^S^tee provide land for effecting the testator's object, is piovidlf^" void, as being in truth a purchase of the land from the land, void, legatee (6).J And it would not avail that charity legatees, by whom a fund is directed to be laid out in the erection of buildings, possess and offer to appropriate for the purpose land already in mort- main, unless the bequest were so framed as not to admit of a *231 new * purchase being made for the occasion (c) ; [nor is a be- quest to build made valid by a proviso that the legacy shall not be paid until the building has been commenced (d). But if the testator has expressly forbidden a purchase, though he Beauest to declares his expectation or desire that land will be provided build good, ' from other sources (e), or if the direction is to build " when forbidrthe ^^^ ^° s<'<'° *^ ^^^^ ^'i^^l ^^ ^''.V time be given for the pur- purchase of pose " (/) , the bequest is valid : for the statute does not forbid the dedication of land to charitj- b}' act inter vivos; on the contrary, it expressly regulates the manner of doing so, and there is nothing to invalidate a bequest of money for building upon land so provided. And a direction to the trustees to have due regard to the application of the fund being consistent with the laws then in force, has been held to refer to the mortmain laws, and to be equiva- lent to forbidding the purchase of land {g)-^ If the testator shows (k) Vanghan e. Fairer, 2 Ves. 182; Att.-Gen. v. Bowles, ib. 547, [3 Atk. 806.1 (y) Foy V. Foy, 1 Cox, 163; [Pelham v. Anderson, 2 Ed. 296, 1 B. C. C. 444, n.;] Att.- Gen. V. Nash, 3 B. C. C. 588; Att.-Gen. v. Whitchurch, 3 Ves. 144; Chapman v. Brown, 6 ib. 404; Att.-Gen. v. Parsons, 8 ib. 186; Att.-Gen. v. Davies, 9 Ves. 535; Pritchard v. Arbouin. 3Rus3. 458; [Att.-Gen. v. Hodgson, 15 Sim. 146; Smith v. Oliver, 11 Beav. 481. (?) Att.-Gen. V. Davies, 9 Ves. 544; Pratt v. Harvey, L. R. 12 Eq. 544. (nS 2 Kee. 172. (>) Att.-Gen- V. Davies, 9 Ves. 535 ; and see Dunn v. Bownas, 1 K. & J. 602.] (c) Giblett V. Hobson, 5 Sim. 651, 3 My. & K. 517 ; [Re Watmough's Trusts, L. R. 8 Eq. 272; Cox v. Davie, 7 Ch. D. 204.] In Giblett v. Hobson, Lord Brougham held that circum- stances dehors the will might be investigated for the purpose of getting at the intention [i.e. evidence of "surrounding circumstances," according to the general rule; see Ch. XIII. id) Pratt 1). Harvey, L. R. 12 Eq. 544, correcting the dictum of Alderson, B., Dixon ». Butler, 3 Y. & C. 677. (f) Philpott V. St. George's Hospital, 6 H. L. Ca. 338, reversing 21 Beav. 134, and over- ruling Trye e. Corporation of Gloucester, 14 Beav. 173. See also Cawood v. Thompson, 1 Sm. & 6if. 409. (/) This was assumed in Chamberlayne v. Brockett, L. R. 8 Ch. 206, and is according to Lord Cranworth's judgment in Philpott t). St. George's Hospital, 6 H. L. Ca. 357. If the gift itself were made to depend on such a contingency, it would be void for remoteness, L. R. 8 Ch. 208, n., 212. (y) Dent». AUcroft, 30 Beav. 335.] 260 CHARITABLE USES. *232 that he means the gift to take etfect, whether land be provided or not, the legacy is valid (h) . The bequest of a sum of money to be applied in the erection of buildings on land which is already devoted to charitable improvement purposes (i) , or in the repair and improvement of buildings of ian<\ »'- appropriated to charity (k) , is unquestionably valid, as by mortmaiii al- sueh gifts no additional land is thrown into mortmain (I) . lowed. [But, as before stated, a reference to land already in mort- Eeferenceto main must be found in the will. A bequest to build a par- main must be sonage house at C. "in manner as I have already promised ^j"'' ™ "'^ the same," was held to refer to a transaction by which a site had already been appropriated for the purpose, and so by impli- cation to the site itself {m). So a bequest * to build a parson- *232 age house in connection with B. church was upheld, on the ground that a site had in fact (though this was not noticed in the will) been appropriated to the purpose, and that the trustees would not have been justified in purchasing any other land for the purpose (z). And a bequest to help enlarge the parish church at M. was held good as impliedly referring to the glebe or churchyard (a). But a bequest " to erect a new chapel at H. instead of the one now in use when such ah erection shall take place," was held not to be a reference to the site on which the old chapel stood (J).] A legacy to be applied in the liquidation of a subsisting incumbrance on real estate, which is already subject to charitable uses, Legacy to be appears to have been considered as not falling within the ^fs^haveine same principle as a legacy to build on land so subject, but an incum- as appropriating to charity a new interest in land. Thus, charitv prop- a bequest of a sum of money, to be applied in paying off a ^^y invalid, mortgage debt on a meeting-house, cannot be supported (c) ; and it matters not that the incumbrance is equitable only (d). Where a legacy, which, standing alone, would be valid, is founded upon and derives its purpose and object from an illegal de- Legacy vise, it is necessarily involved in the failure of such devise. ?e'v"'^''h°h Thus, if a testator, after devising certain messuages to be fails, void. (h) Henshaw «. Atkinson, 3 Mad. 306. [But the decision did not depend on that. Per LordCranworth, 6 H. L. Ca. 359.] ((■) Glubb ». Att.-Gen., Amb. 373 ; Brodie v. Duke of Chandos, 1 B. C. C. 144, n. ; Att.- Gen. V. Bishop of Oxford, ib.; Att.-Gen. v. Parsons, 8 Ves. 186; Att.-Gen. ». Munby, IMer. 327; [Shaw ». Pickthall, Dan. 92; Fisher D. Brierlv, 1 D. F. & J. 643.1 (k) Harris v. Barnes, Amb. 651; Att.-Gen. v. Bishop of Chester, 1 B. C. C. 444. (/) As to the evidence required in these cases, that the land on which the expenditure .is to be made has been effectually devoted to charitv, vide Inglebv v. Dobson, 4 Euss. 342 ; [Shaw V. Pickthall, Dan. 92. " (m) Sewell i. Crewe-Read," L. E. 3 Eq. 60. (z) Cresswell v. Cresswell, L. R. 6 Eq. 69. (a) Re Hawkin's Trusts, 33 Beav. 570. (A) Re Watmough's Trusts, L. R. 8 Eq. 272, dissenting from Booth «. Carter, L. E. 3 Eq. 757, whicli is contra,'] (c) Corbyn v. French, 4 Ves. 418. [But debts incurred in respect of a meeting-house are not always a lien on it; and where they are not so, a bequest to enable the debtor to pay them is of course valid. Bunting ». Marriott, 19 Beav. 163.] (d) Waterhouse v. Holmes, 12 Sim. 162. 261 t ♦233 GIFTS TO converted into almshouses, bequeaths the interest of a sum of money to the occupiers of such houses — as the devise is clearly veid, the legacy is equally so (e) . Or, if a testator devises a messuage to be used as a school-house for the education of poor children, and bequeaths a fund to trustees, with a direction to apply the income in keeping the school- house in repair, and providing a master, the statute, by invalidating the devise of the house, deprives the pecuniary legacy of its object, which consequently fails (/) ; and in some other instances, presenting not quite so simple and obvious an application of the principle, *233 * a bequest, vaUd in itself, has been held to fail, from the impracticability of the general scheme, of which it forms a part(^). It is to be observed, that if a legacy, which is directed to be laid out Equitj. will ill land, is actually paid (the party paying it not availing not execute himself of the statute) , and the trustee lays it out accord- the legacy inglv, the court will not execute the trust (A) . [But if lands has been ^jg devised in trust for charity, and have been held and ap- Contra after phed accordingly for a long series of years,'it will be pro- lapse of time, sumed against the heir, that all proper means have since been taken to dedicate the propertj' effectually to the charity (i).] The statute cannot be evaded by a secret trust, and the heir may Secret trust compel a devisee to disclose any promise which he may have for charity, made to the testator to devote the land to charity {k) . And such promise, if denied by the devisee, may be proved by evidence aliunde (1) . The trust, by whatever means established, invalidates the devise. This doctrine evidently assumes that the trust, if legal, would have been binding on the conscience of, and might have been enforced Tjff 1, against, the devisee ; and this ground failing, the rule does trust is de- not apply. As where a testator, after devising lands by a ciarcd by ^jjj ^yjy attested, declares a trust in favor of charity by an separate un- j ^ . ./ attested unattested paper or by parol, the statute law, which affords paper. ^ ^j^g dcvisce a valid defence against any claim on the part of the charity, of course equaUj' defends him against the claim of the (e) Att.-Gen. v. Gouldins, 2B. C. C. 428; Att.-Gen. v. Wbitcliurch, 3 Ves. 141; Limbrey «. Gurr, 6 Mad. 151; Price v. Hathaway, ib. 304; [Smith v. Oliver, 11 Beav. 481; Att.-Geu. V. Hodgson, 15 Sim. 146; Cox v. Davie, 7 Ch. D. 204.] (/) Att.-Gen. v. Hiaxnian, 2 J. & W. 270. In cases the converse of this, namely, where the valid gift is the primary one, and the invalid gift is ancillary and subordinate to it, the former, of course, is not aiiected by the illegalitv of the latter, Blandford v. Fackerell, 4 B. C. C. 394, 2 Ves. Jr. 238; [Att.-Gen. v. Stepney, 10 Yes. 22.] (a) Grieves V. Case, 2 Cox, 301, 4 B. C. C. 67. (A) Att.-Gen. v. Acland, 1 R. & My. 243. But the legacy, if paid in mistake, might, it is presumed, be recovered back by the party paying it. It seems that where a legatee is called upon to refund, he is not, in general, liable to interest. (Gittins v. Steele, 1 Sw. 199.) [(j) Att.-Gen. «. Moor, SO Beav. 119; and see Att.-Gen. «. Drummond, 1 D. & War. 380.] (it) Boson V. Statham, 1 Ed. 508; Muckleston v. Brown, 6 Ves. 62; Martin v. Hatton, cit. ib. 61; Stickland «. Aldrid^e, 9 Ves. 516; Paine «. Hall. 18 Ves. 475. [So if land be con- veyed to trustees for a charitable purpose by deed in other respects conforming to the act, a secret understanding with the grantor to reserve the benefit to himself for his life, will, if proved, invalidate the conveyance. Way v. East, 2 Drew. 44; Fisher v. Brierly, 1 D. F. & J. 643, in which, however, the evidence failed to show any such understanding.] (0 Edwards v. Pike, 1 Cox, 17, 1 Ed. 267. 262 CHAKITABLE USES. *234 heir, founded on the charitable trust (m) . The case would be diflFer- ent, however, if the devisee had induced the testator to give him the estate absolutely, under an assurance that the unattested paper was a sufficient declaration of the trust for a charity (n) , [or un- Verbal pi-om- der a promise, either express or by silence implied, that if ggg''-'"^^^'' the estate were devised to him he would perform the trust (o). * And generally it is immaterial whether the promise be made *234 before or after the execution of the will. " The only distinction between a wUl made on the faith of a previous promise and „, , . * * Where devise a will followed by a promise is this — If on the faith of a is to several, promise by A. a gift is made to A. and B. the promise is esubShed fastened on to the gift to both, for B. cannot profit by A.'s against one fraud (p) . But if the will is first made in favor of A. and °" ^' B., and the secret trust is then communicated only to A., the gift will be fixed with a trust with respect to A., but not so as regards B. ; be- cause in this case the gift to B. is not obtained by the procurement of A., and is not tainted with anj' fraud in procuring the execution of the will " {(/) . In the former ease the whole beneficial interest results to the heir ; and the ground upon which the entirety, and not a moiety only, so results, namely, A.'s fraud, is as pertinent where upon the face of the will A. and B. are made tenants in common as where they are made joint tenants. In a case of the second kind, where upon the will A. and B. were tenants in common, it was held by Sir W. P. Wood, in conformity with his dictum cited above, that B. retained the beneficial interest in a moietj', and that only the trust of A.'s moiety resulted to the heir (r) . It is said, however, that a (subsequent) communication to A. might afiect B. if a joint tenant, which would not affect ~him if he were tenant in common (s) . But this point has not been clearly de- cided, nor the ground of the distinction stated. In both cases the trust is founded on the promise, and the promise is proved against A. alone. Supposing that B., though joint tenant under the will, is not bound by the trust proved against A. , it would seem that this trust, though void, is a severance of the joint tenancy in equity, and that B. is beneficially entitled to a moiety only.] Marshalling assets is the adoption of this principle : that where there are two funds and two parties, one of whom has a claim ex- Assets not clusively upon one fund, and the other the hberty of resort- |"^favo"of ing to either, the court will send the latter party primarily to charity. (m) Adiington v. Cann, 3 Atk. 141, 9 Ves. 519; [Wallc;rave v. Tebbs, 2 K. & J. 313 ; Lo- max V. Ripley, 3 Sm. & Giff. 48 ; Joues v. Badley, L. E. 3 Ch. 362.] («) See Adliugtoii v. Canu, 3 Atk. 152. [(o) Russell V. Jackson, 10 Hare, 204; Moss v. Cooper, 1 J. & H. 352; Springett ». .Jen- nings, L. R. 10 Eg. 488 ; of. M'Cormick v. Grogan, L. K. 4 H. L. 82. (p) Russell V. Jackson, 10 Hare, 204 (joint tenants). (?) Per Wood, V. G. in Moss «. Cooper, IJ. & H. 352. (r) Tee v. Ferris, 2 K. & J. 35T. (s) Rowbotham v. Dunnett, 8 Ch. D. 437, per Malins, V. C. The head-note overstates the dictum. In Jones v. Badley, L. E. 3 Eq. G.35, where the devise was to A. and B. as joint tenants, Lord Eomilly declared both to be trustees ; but the point was not taken.] 263 *236 GIFTS TO that fund from which the former is excluded ; or, if he should have *235 actually resorted to their common fund, will allow the * other to stand in his place to that extent. The application of this prin- ciple has been denied to charities ; and, accordingly, where property which cannot, is combined, in the same gift, with funds which can, be bequeathed for charitable purposes, and the disposition embraces sev- eral objects or purposes, some charitable and others not, the courts hold that the purposes not charitable cannot be thrown exclusively upon that part of the subject of disposition which is incapable by law of being devoted to charity, in order to let in the charitable purposes upon the remainder (t) . Thus, if a testator give his real and personal estate to trustees, upon trust to sell and pay his debts and legacies, and to apply the residue for charitable purposes, the court' will not throw the debts and legacies ex- clusively on the proceeds of the real estate, and the mortgage securities and leaseholds, in order that the charitable bequest may take effect so far as possible ; nor, on the other hand, will it direct the debts and legacies to come out of the pure personalty for the purpose of defeating the charitable residuary bequest to the utmost possible extent. Steering a middle course, equity directs the debts and legacies to come out of the whole estate, real and Tpersonal, pro rata ; for instance, supposing the real funds (including the leaseholds and mortgage securities) to consti- tute two fifths of the entire property, then two fifths of these charges would be satisfied out of such real funds, and the remaining three fifths out of the pure personalty (m) ; and, after bearing the charges in these several proportions, the former would belong to the heir or next of kin (as the case might be) , and the latter to the charity-residuary legatee. And, by parity of reasoning, if a testator bequeath pecuniary legacies to charities, and leave a general residue to others, consisting partly of leaseholds or real securities, and partly of pure personalty, the legacies will be void pro tanto, i. e. in the proportion which the funds *236 savoring of realty bear * to the entire property, though the pure personalty should be suflftcient to pay all the legacies. The proper course, in such case, is to paj' the debts and funeral and testa- mentary expenses (being all the prior charges to which the general residue was liable), in the first instance, out of the whole propertj"^, pro rata (x) , and then to provide for the pecuniary legacies in like manner ; (t) MogffD. Hodges, 2 Ves. 52, [ICox, 9;] Att.-Gen. «. Tvndall, 2 Ed. 207, Ainb. 614; Foster v. Bfagdeii, Amb. 704 ; Middleton v. Spicer, 1 B. C. C. 201 ; Att.-Gen. v. Earl of Win- chelsea, 3B. C. C. 373; Makehaui v. Hooper, 4 ib. 153; Hobson v. Blackburn, 1 Kee. 273; [Williams v. Kershaw, 5 L. J. N. S. Ch. 84, 5 CI. & Fin. 111.1 (u) Howse V. Chapman, 4 Ves. 542; Paice i). Archbishop of Canterbuiy, 14 Ves. 372; Curtis V. Button, ib. 537; Currie v. Pye, 17 Ves. 4f)4; Croabie ». Mayor of Liverpool, 1. E. & Mf. 761, n. ; see also Fourdrln «. Gowdoy, 3 My. & K. 397 ; [Johnson v. Woods, 2 Beav. 409 ; Att.-Gen. v. Southgate, 12 Sim. 77 ; and that too, though the purely personal part of the resi- due was alone disposed of by the will for the charitable purpose's, and the remaining part ■was left undisposed of. Edwards v. Hall, 1 1 Hare, 22. Lapsed or void specific legacies form part of this general fund. Scott ». Forristall, 10 W. E. 37. (x) In making the apportionment, the respective values ( are to be taken as at the time of the death of the testator, and not as at the' time of appor- (x) In making the apportionment, the respective values of the real and personal estates ■ • of the' ■ ■ ' ■ ■ ■ 2U CHARITABLE USES. *237 the effect of which i? that the charity legacies, so far as this ratable apportionment throws them upon the leaseholds and real se- General con- curities, are void {y) . Thus, every charitable legacy be- <=i»sion. queathed b}- any testator whose will does not contain the usual clause directing such legacies to be paid exclusivelj' out of the pure person- alty, and the general residue of whose property consists partly of lease- holds or real securities, is void^ro tanto. [The effect of this doctrine m&j sometimes be to render the Whole legacy void. Thus, in Cherry v. Mott («), the testator directed his ex- ecutors to purchase of the governors of Christ's Hospital a presentation to that charity for a boy, the son of a freeman of the borough of Hert- ford ; the purchase-money to be paid out of his personal estate. The testator's personal estate not being all pure personalty, Sir C. Pepys, M. R., was of opinion that the bequest never could take effect; for if the executors had agreed for the purchase at a given sum, that sum must have been raised proportionably out of the two sorts of person- alty, and the gift of so much as it was necessary to raise out of the personalty savoring of the realt}^, would have been void, and conse- quently the full purchase-money never could be raised ; and the testa- tor's intended gift faOed by reason of the impossibility of making the purchase. Where the testator has directed a charity legacy to be paid out of his pure personalty, which, however, is all exhausted by his Testator may- special t}' creditors, the charity may stand in the place of the shai^his™"" creditors on the real estate (a). In such a case, it is the sets. testator himself who has marshalled (so to speak) his own assets, and the court only prevents the arrangement made by him from being de- feated by accidental circumstances. The efficacy of such a di- rection to make a charity legacy payable in full, out of the * pure *237 personalty in priority to other legacies, was estabhshed by Lord Truro in Robinson v. Geldart (6) . As between the charity and the other legatees, he said the case was analogous to that of a demonstra- tive legacy. But this was b}' way of illustration only, and not of defi- nition : the direction does no more than regulate the priority of the legatees inter se ; it does not exempt the charitable legacy from con- tribution to the payment of debts, funeral and testamentary expenses, as it would do if it made the legacy strictly demonstrative. These prior tionment, Calvert «. Annita£;e, 1 H. & M. 446, overruling Kobinson v. London Hospital, 10 Hare, 29. (y) PhilanthropicSocietyi). Kemp, 4Beav. 581; Sturges. Dimsdale, 6 Beav. 462; Cherry ». Mott, 1 My. & Cr. 123 ; Briggs v. Chamberlain, 18 Jur. 56. (z) 1 My. & Cr. 123. (a) Att.-Gen. v. Lord Mountmorris, 1 Dick. 379. (6) 3 Mac. & G. 735; and see Nickisson v. Cocldll, 3 D. J. & S. 622, 635; Beaumont V. Oliveira, L. E. 4 Ch. 309. In Sturge V. Dimsdale, 6 Beav. 462, Lord Langdale had doubted the sufficiency of such a direction, and in Philanthropic Society v. Kemp, 4 Beav. 581, had decided that it was insufficient to counteract in favor of the charities some special words which he thought expressly regulated the order in which the several portions of the personal estate were to be applied in payment of debts and legacies. But as to this see Miles v. Harrison, L. E. 9 Ch. 321. 265 *238 GIFTS TO charges will still come ratably, and, in the first place, out of the pure and impure personalty (e) . Therefore, in order to make charitable legacies effectual as far as possible, the debts, funeral and testamentary expenses should be expressly and exclusively charged on the person- alty savoring of realty {d). And where the charitable legacies are themselves residuary, this is J, _ the most appropriate form of direction with regard also to shaiiing the payment of other legacies (e) . But of course it matters charitable ^^^ what the form is if it suflSciently shows the testator's bequest is intention. Thus, in Wills v. Bourne (/), where a testator directed his debts, legacies, and funeral and testamentary expenses to be paid out of his real estate, and, so far -as that was de- ficient, out of his personal estate, and bequeathed the residue of his personal estate to certain charities, declaring that " only such part of his estate should be comprised in the residue as might by law be bequeathed for charitable purposes : " it was held by Lord Selborne that the testator had thereby excluded impure personalty from the resi- due ; and that it followed by necessary implication that the realty and impure personalty must be applied for those purposes (^debts as well as legacies) which were to be satisfied before a residue was arrived ■ at. So, in Miles v. Harrison (g) , where a testator directed that his *238 personal estate should be * converted, and that out of the pro- ceeds his debts and legacies should be paid, and gave the residue to three charities in equal shares, with a direction to pay the charitable legacies out of the pure personalty, " which shall be reserved bj- my trustees for that purpose," it was held that the debts and other legacies were thrown wholly on the impure personalty. Lord Cairns observed, that although the testator intended creditors and those other legatees to have the security of his whole personal estate, yet that, as between them and the charities, those who had the two funds should go first on that which the charities could not take. Again, the pure personalty may be the subject of a specific bequest to a charity, in which case it will be entitled to the privileges and exemptions that belong to a legacy of that character (Ii) . In Miles v. Harrison, there was also a particular pecuniary bequest to another charity, unaided by any direction concerning its payment ; and the further question arose whether this legacj', which could in no part be satisfied out of the impure personalty, was not also debarred (c) Tempest v. Tempest, 7 D. M. & G. 470; Beaumont v. Oliveira, L. R. 4 Ch. 309. M) See Williams' Executors, p. 1234, 6th ed. (e) As in Jauncev v. Att.-6en., 3 Gift. 308 ; or in the more sweeping form used in Wigg «. NichoU, L. E. 14 fiq. 92, that " the estate shall be so marshalled and administered as to eive the fullest possible effect to " the chanty legacies. See also Gaskin ». Rogers, L. R. 2 Eq. 284; Re Fitzgerald, W. N.1877, p. 216. (/) L. R. 16 Eg. 487. (/;) h R.9Ch. 317; cf. Lewis u. Boetefeur, W. N.1878, p. 21, 1879, p. 11. (ft) Shepheard v. Beetham, 6 Ch. D.597. "A legacy is not the less specific for being gen-^ eral," per Lord Cottenham, 1 My. & Or. 117.] 266 CHARITABLE XTSKS. *2C9 from the pure personalty bj' the direction reserving the latter for paj- ment of the residuary bequest. " If, as I assume" said Lord Cairns, " the gift of the residue amounts to a direction that the personal estate shall be marshalled, a direction of that kind cannot operate to defeat in toto the pecuniary legacy to the charity : that legacy will stand as if nothing at all had been said about marshalling in the residuary gift ; for the essence of marshalling is that it puts those only to marshal who have got two funds, and this charitable legatee has only one."] Where a charitable legacy is charged on real estate as an auxiliary fund in aid of the personalty (and such, it wiU be hereafter ggg^,,. ^,^^^^^1 seen, is alwaj's the effect of a mere general charge), the leg- 'and is acy will be valid or not, and either wholly or in part, accord- auxUiary^ '"^ ing to the event of the personalty proving suiBcient for its *™'l- complete liquidation or not. As the validity of a charity legacy depends on its not being to come out of a real fund, the point of construction whether the legacy is pay- able out of personal or real estate, is sometimes warmly contested on this account ; and in the consideration of this question, it scarcely need be observed, no disposition has * been manifested by the * 239 courts to strain the rules of construction in favor of charity (e) . Never, indeed, was the spirit of any legislative enactment more vig- orously and zealously seconded by the judicature, than the judicial statute 9 Geo. 2. This is abundantly evident from the tieatmentof . ■' act of 9 Geo. general tone of the adjudications ; but the two points in 2, c. 36. which it is most strikingly displayed are, first, the holding a gift to charitj- of the proceeds of the sale of real estate to be absolutely void, instead of giving to the charity legatee the option to take it as money, according to the rule formerly adopted in the case of a similar gift to an alien (/) ; and secondly, the refusal of equity to marshal assets in favor of a charity, in conformity to its general principle ; that prin- ciple being evidently founded on an anxiety to carry out, as far as pos- sible, the intentions of testators. In this solitary case, the intention has been allowed to be subverted by a mere slip or omission of the testator, which the court had the power of easily correcting by an arrangement of the funds (i) . It will be observed that the act expressly allows gifts to the two English Universities and their colleges, and the three colleges of (e) See Leacroft v. Maynard, 1 Ves. Jr. 279, ante, p. 185. But where a testator shows by his will that he uses the term "personal estate" as contradistinguished from "leaseholds." occurring in the same bequest, and he afterwards by a codicil directs a charitable legacy to be payable out of his "personal" estate, the expression is considered as used in the same re- stricted and peculiar sense as in his will ; and the legacy is payable out of the pure person- alty, and is therefore good. Wilson v. Thomas, 3 My. & K. 579. (f ) Ante, p. 69. [However the disherison of the heir, against which the statute is di- rected, is equally produced whether the land is sold or not.] (i) As to the policy of the Stat, of 9 Geo. 2, c. 36, [see a note by the author in previous edi- tions, urging a relaxation of its prohibitions. But contra see Jeftries v. Alexander, 8 H. L. Ca. 594, 648 ; and per Lord Eomilly, 20 Beav. 508, L. R. 4 Eq. 111.] 267 *240 GEPTS TO Exception in Eton, Winchester, and Westminster (k) . It has never been English Uni- decided whether the proviso extends to colleges founded versifies, and since the act, as Downing College, Cambridge. Lord Chester, and Northington considered that it was confined to colleges Westminster, antecedently established (J) ; but Lord Loughborough ap- pears to have dissented from this opinion {m) . It is clear that the statute does not authorize a devise to a college in trust for other chari- table objects (?i) ; but it seems not to be essential that the trust should embrace the whole college ; a trust for the benefit of particular mem- bers would be within the proviso ; and therefore a devise to the Mas- ter and Fellows of Christ's College, in trust that they and * 240 * their successors should apply the rents for some undergraduate student, has been held to be good(o). But the devise must be for eoUegiate or academical purposes ; and a gift to the college, to the intent that an individual member (the senior fellow for the time being) should live in the testator's house, and entertain the poor, and distribute medicine and books among them, was held to be void on this principle (p) . Lord Loughborough appears to have thought, that, if a devise of real estate to a college was refused by the college, as of course it may be, whether the devise be upon trust or otherwise (9), it might, as the lands were originally devised to a valid purpose, be exe- cuted cy-pres (r). The exception made by the act in respect of property in Scotland has „ .. . been held to apply only to the locality of the lands destined Exception in ^^ j j j respect of to the trust ; precluding, therefore, the devise of lands m Scotland. England to a Scottish charity, but admitting of Enghsh per- sonalty being bequeathed to be laid out in lands in Scotland, so far as is consistent with the Scotch law, which permits the destination of real estate to some kinds of charity (s). It has been held that the circum- stances of the chaiity being Scotch, and Scotchmen only being eligible as trustees of it, do not conclusively show that the purchase is to be of lands in Scotland, so as to take the bequest out of the statute (<). So, of course, a bequest of money to be laid out in lands in Ireland, Purchase of ^°^ charitable purposes, will be good {u). [But by a modern lands in Ire- statute (x) it is enacted, that any donation, devise, or bequest, "*■ whereby any estate in lands, tenements, or hereditaments in Ireland is conveyed or created for a charitable purpose, must be exe- (k) For an instance of such a devise, see 3 Ves. 641. (0 1 Ed. 16. (m) See Att.-Gen. v. Bowyer, 3 Ves. 728. (n) Att.-Gen. v. Tancred, 1 Ed. 15, 1 W. Bl. 90, Amb. 351 ; see also Blandford e. Fackei> ell, 4 B. C. C. 394, 2 Ves. Jr. 238; Att.-Gen. v. Munby, 1 Mer. 32T. (o) Att.-Gen. v. Tancred, 1 Ed. 10. (p) Att.-Gen. v. Whorwood, 1 Ves. 534. (q) See 2 Kee. 163. Ur) Att.-Gen. v. Andrew. 3 Ves. 633.] (s) Oliphant ». Hendrie, 1 B.C. C. 571; Curtis w. Hutton, 14 Ves. 537; Mackintosh o. Townsend, 16 Ves. 330. [And the English rule arising out of the act against marshalling in favor of charities does not exist in Scotland. See Macdonald v. Macdonald, L. R. 14 Eq. 60.] (<) Att.-Gen. «. Mill, 4 Russ. 328, 5 Bli. N. S. 598, 2 D. & 01. 393, [Sugd. Law of Prop. 419.] (m) See Campbell v. Earl of Radnor, 1 B. C. C. 272; Baker v. Sutton, 1 Kee. 234 ; Att.- Gen. V. Power, 1 Ba. & Be. 154. [(x) 7 & 8 Vict. c. 97, b. 16. A deed must also be registered within the same period. lb.] 268 CHARITABLE USES. *242 cuted three calendar months before the death of the donor. This enact- ment does not, however, appear to extend to bequests of money to be laid out in land.] The statute 9 Geo. 2, c. 36, does not extend to the British colonies ; in its causes, its objects, its provisions, its qualifications, British Coio- and its exceptions, it is a law wholly English, calculated °'*^- for the purposes of local policy, complicated with local * estab- *241 lishments, and incapable, without great incongruity in the effect, of being transferred, as it stands, into the code of any other country («). By the custom of London resident freemen might devise land in mort- main [(a). By the general act De religiosis (b) the custom Custom of would have been abolished, but that afterwards there came London. a general confirmation of the customs of London by statute (c) . There is no saving of way custom in the stat. of George, anj' more than there was in the stat. De religiosis ; and as there has been no subsequent confirmation of the customs of London (rf ) , it follows, according to Lord Coke, that the statute of George is binding on the city of Lon- don (e). An express power given to a charitable corporation by stat. 6 Ann. to take and hold land by devise without license in mortmain has been held to be taken away by the stat. 9 Geo. 2 (/).] At all events it is clear that the custom of London applies only to lands in London (^r) . The legislature has, in several instances, relaxed in favor of par- ticular objects the restriction on disposing of land to chari- statutes al- table purposes. Thus, by the Land Tax Eedemption Act {^'^"^^^^"t'^^ (42 Geo. 3, c. 116, s. 50), money may, by will or other- to particular wise, be given to be applied in the redemption of the land <=''*rities. tax on hereditaments settled to charitable uses. So, the stat. 43 Geo. 3, c. 107, authorizes the devise of lands to the governors of Queen Anne's Bounty ; and again, the stat. 43 Geo. 3, c. 108, empowers persons, by will executed three months before death, to devise lands not exceeding five acres, or goods and chattels not exceeding in value 500Z. Qi), for erecting, rebuilding, repairing, purchasing, or * providing *242 any church or chapel where the liturgy of the Church of England may be used, or any mansion-house for the residence of the minister, (2) Per Sir W. Grant, M. E., in Att.-Gen. v. Stewart, 2 Mer. 141; [see also Att.-Gen. v. Giles, 5 L. J. N. S. Ch. ii; Whicker v. Hume, 1 D.M. & G. 506, H Beav. 509, 7 H. L. Ca. 124; Mayor of Lj-ons v. East Indian Company, 1 Moo. P. C. C. 298. So of course as to lands in a foreign country, where there is no law corresponding to stat. 9 Geo. 2, c. 36; Beaumont V. Oliveira, L. R. 6 Eq. 537. (a) 8 Rep. 129 a. (6) 7 Ed. 1, c. 1, ante, Ch. V. (c) Per Lord Coke, 2 Bulst. 190. And local customs are expressly saved by the stat. 23 Hen. 8, c. 10, s. 5. {d) The latest confirmation by statute appears to be 2 W. & M. sess. 1, c. 8, s. 3. (e) See also per Sir R. P. Arden, M. R., Highmore on Mortmain, p. 127; and see gener- ally as to these customs the authorities cited in Reg. v. Mayor, &c., of London, 13 Q. B. 1. ■(/) Luckraft v. Pridham, 6 Ch. D. 205. (.?) Middleton ». Cater, 4 B. C. C. 409. «) 38 & 39 Vict. c. 68. This act does not expressly refer to 9 Geo. 2, c. 3G; and, ac- cording to a suggestion of James, L. J. (6 Ch. D. 212), the case is therefore not taken out of the stat. Geo. 2. Sed jm.] (n) 19 Geo. 3, c. 23; see Makeham v. Hooper, 4 B. C. C. 153. (o) 10 Geo. 4, c. 25, s. 37. (2') 13 Geo. 2, c. 29. Uq) 6 Geo. 4.c. 20 (loc. and pers.). (r) 6 Will. 4, c. 7 (loo. and pers.).] (s) 4 Will. 4, c. 38 (loc. and pers.). (t) 51 Geo. 3, c. 105. (u) 3 & 4 Will. 4, c. 9, s. 1. (x) See Shelf. Char. Uses, 49. [{y) Mogg J). Hodges, 2 Ves. 52; British Museum v. White, 2 S. & St. 595; Nctlicrsole v. Indigent Blind School, L. E. 11 Eq. 1; Chester ». Chester, L. E. 12 Eq. 444. This appears to have been overlooked in the late edition (1865) of Chitty's Statutes, where several charita- ble institutions are stated to be exempted, by special enactment, from the operation of (he act of Geo. 2, though they are in fact only empowered to hold land; see, for instance, the acts establishing the Company of Surgeons and Barbers and the Marine Society. A power to take land by will is, of course, suiRcient, Perring v. Trail, L. E. 18 Eq. 88. (The Westminster Hospital. So the Middlesex and St. George's Hoispitals.) See and consider with reference to this point, 13 & 14 Vict. c. 94, s. 23, enabling owners of impropriated tithes to annex the same to the parsonages, &o., of the parishes where they arise. Denton v. Manners, 25 Beav. 38, 2 De G. & J. 675.] 270 CHAKITABLE USES. *244 * The act 9 Geo. 2 leaves the disposition of pure personalty *243 wholly unrestrained, except where directed to be invested in real estate; so' that with this qualification a man may dis- ^„,?"^e*"* pose of his whole personal estate (z) to charitable purposes souaity to capable of enduring forever, in despite of the claims of his pu™ses^not nearest Idndred ; and dispositions so made are strongly fa- restrained. vored in point of construction (a) ; for by a rule pecuhar to gifts of this nature, if the donor declare his intention in favor of charity indefinitely, without any specification of objects, or in favor of defined objects, which happen to fail, from whatever cause ; although, in such cases, the particular mode of application contemplated by the testator is un- certain or impracticable, yet the general purpose being charity, such purpose will, notwithstanding the indefiniteness, illegality, or failure of its immediate objects, be carried into effect. Thus, in Such be- the case of a gift to the poor in general (6) , or to charitable ^^^^l\y^^.^g uses generally (c), or for the advancement of religion, ex- when, pressed in the most vague and indefinite terms (d) ; or to such chari- table uses as the testator's executor shall appoint, and the testator revokes the appointment of the executor (e) ; [or the executor re- nounces probate (in which case he cannot claim to exercise his discre- tion) (/) ;] or to such charitable uses as A. shall appoint, and A. dies in the lifetime of the testator (g), or neglects or refuses to appoint (k), or to such charitable uses as the testator himself shall appoint [or has appointed], and he dies without making an appointment (i) , [or the instrument of * appointment cannot be found (k) ;] or where *2i4: the testator makes a disposition in favor of an object which has no existence (^) , or which is void in law(m), or has become impossi- ble (re) ; or bequeaths to the trustees of a charit}' who refuse to accept (o) ; or to a particular charity by a description equally applicable to more (z) Anon., Freem. Ch. Ca. 262; Baylis «. Att.-Gen., 2 Atk. 239 ; Da Costa v. De Pas, Amb. 228, cit. 7 Ves. 76, 3 Mad. 457. (a) 7 Yes. 490. (b) Att.-Gen. «. Matthews, 2 Lev. 187 ; S. C. nom. Frier v. Peacock, Finch, 245 ; Att.-Gen. «. Kance, cit. Amb. 422. (c) Clifford V. Francis, Freem. Ch. Ca. 330 ; Att.-Gen. v. Herrick, Amb. 712. (d) Powerscourt v. Powerscourt, 1 Mol. 616. (e) White v. White, 1 B. C. C. 12. i(f) Att.-Gen. v. Fletcher, 5 L. J. N. S. Ch. 75.J (f/) Moggi-idge V. Thackwell, 1 Ves. Jr. 464, 3 B. C. C. 517, 7 Ves. 36, 13 Ves. 416. In this case, and in Mills v. Farmer, 1 Mer. 55, Lord Eldon went very fully into the general doctrine. [(A) Att.-Gen. v. Boultbee, 2 Ves. Jr. 380, 3 Ves. 220.] ' (i) Freem. Ch. Ca. 261; Mills v. Farmer, 1 Mer. 55; [Commissioners of Ch. Don v. Sulli- van, 1 D. & War. 501.1 (jfc) Att.-Gen. v. Syderfen, 1 Vern. 224, 7 Ves. 43, n. (0 Att.-Gen. v. City of London, 3 B. C. C. 171; [Loscombe ». Wintringham, 13 Bear. 87:1 but see Att.-Gen. v. Oglander, 3 B. C. C. 166. (m) Att.-Gen. v. Whorwood, 1 Ves. 534; Da Costa v. De Pas, Amb. 228, 2 Ves. 276, 376, 2 Sw. 487. See 2 J. & W. 308, n.; Gary «. Abbot, 7 Ves. 490; [Att.-Gen. v. Vint, 3 De G. & S. 704;] but see Att.-Gen. v. Goulding, 2 B. C. C. 428. in) Att.-Gen. v. Guise, 2 Vern. 266; [Hayter v Trego, 5 Russ. 113; Att.-Gen. v. Iron- mongers' Company, Cr. & Ph. 208, 10 CI. & i'in. 908; Att.-Gen. v Glyn, 12 Sim. 84; Martm 17. Margham, 14 ib. 230 ; Incorporated Society v. Price, 1 J. & Lat. 498.] (o) Att.-Gen. V. Andrew, 3 Ves. 633 ; [D'enyer v. Druce, Taml. 32 ; Keeve v. Att.-Gen., 3 Hare, 191.] 271 *245 GIFTS TO than one (and it is ■wholly uncertain which was intended (p)) ; [or having evinced his intention to give a certain sum in charity, leaves blanks in his will for the names of the charities and the proportion to be allotted to each (g) ;] in these and all such cases, though the be- quest would, upon the ordinary principles which govern the construction of testamentary dispositions, be void for uncertainty, yet the purpose being charity, the Crown as parens patriae, or the Court of Chancery, will execute it cy-pres. [Nor is the rule displaced or superseded by a residuary bequest to Although other charitable uses contained in the same will. The legacy residuary "^^^^ ^^^ ^^^ ^'^^*' *^® residue ; for the doctrine is that it fails bequest. in the mode only and not in substance ; and cypres means the nearest to that which has so failed, not the nearest to the testator's other charitable purposes {r) . But if the testator expressly provides that, in case the particular mode of application directed by him should fail, the legacy shall fall into the residue, it should seem that the rule is excluded (s). For however exceptional, it is a rule of construction, and must yield to a contrary intention. And such contrary intention may, though (considering the length to which the doctrine has been carried (<)), not very readily, contrarV ^^ Collected by construction from the very terms of the gift ; intention ap- which may SO strictlv define the purpose as to render pears by the will. *24:5 it * incapable of execution otherwise than in the mode pointed. out by the will. The mode is then of the substance, and if it cannot be pursued the legacy will fail altogether. Gftt Thus in Att.-Gen. v. Bishop of Oxford (u) the bequest was ticuiar " to build a church at W. where the chapel now is ; " the charitj-. bishop (who was patron and parson) would not let it be built there, and the churchwardens suggested that "the old chapel should be repaired, the living augmented, &c.," while the next of kin insisted that a new church must be built and the surplus divided among them : but Lord Kenyon observed that if the bishop objected he could not interfere; that as to repairing, &c., he could not do that; the in- tention must be impUcitly followed, or nothing could be done. So in Corbyn v. French (oc) the legacy was to the trustees of a chapel to dis- charge a mortgage thereon : the mortgage had been already paid off; and Lord Alvanley held the legacy void by the stat. Geo. 2, c. 36 ; but ■ he also held that if it had not been so, it would have been void because the object intended could not be effected, and there was no ground to apply it to any other purpose. (p) Simon V. Barber, 5 Euss. 112; [Bennet v. Hayter, 2 Beav. 81; Re Clergy Society, 2 K. & J. 615. (o) Pieschel v. Paris, 2 S. & St. 384; seem, of course, if the total amount applicable to chanty be left in blank. Hartshorne v. Nicholson, 26 Beav. 58. (r) Mayor of Lyons v. Adv.-Gen. of Bengal, 1 App. Ca. 91. (s) See'Mayor of Lyons v. Adv.-Gen. of Bengal, 1 App. Ca. Ill, 115 (the Lucknow Fund). (0 See Lord Eldon's judgment, Moggridge r. Thackwell, 7 Ves. 68. (m) 1 B. C. C. 44i, n, and cited 4 Ves. 432, also 2 Vcs. Jr. 388, 3 Ves. 646. (x) 4 Ves. 431. 272 CHAKITABLE USES, *246 Again, in Cherry i>. Mott (y), where a testator desired that, if his personal estate should be sufficient for the purpose, a pres- chen-y r. entation to Christ's Hospital should be bought for the son Mott. of a freeman of H. ; the personal estate proved insufficient. Sir C. Pepj-s, M. R., said " This legacy is conditional. There is no gift if the personal estate be not sufficient to fulfil the contract." He added, " Another objection is that this is a gift for a particular purpose -which cannot take effect by reason of the refusal of the governors, and that it therefore fails altogether." After citing Att.-Gen. v. Bishop of Oxford, and Lord Alvanlej^'s view of the doctrine, he referred to the more ex- tended sense in which it was understood by Lord Eldon, and concluded, "In this case, however, there is no gift except in the direction to do that which cannot be effected. It is not within the principle of those cases in which the court executes a general purpose cy-pres, the par- ticular mode being impossible." This case has been referred to as standing on special ground as a conditional legacy. But as the condition required onlji that the estate should suffice for the particular mode, the appellation of " condi- tional " appears not to mark any difference in * kind, but only *246 the cogency of the terms to indicate that the mode was of the substance of the gift. Lord Alvanley said he thought the legacy in Corbyn v. French (sup- posing it not illegal), as well as the legacy in Att.-Gen. v. Bishop of Oxford, might each have been applied in repairing elusion of "the the particular building, though not for any other purpose (z). W''es doc- But partial exclusion of the rule is scarcely less significant than total exclusion. For the rule is that where the substantial inten- tion is charity, but the particular mode cannot be carried into effect, the court (or the Crown) supplies another mode (a) : which other mode need not bear any absolute resemblance to that not imply an intended by the testator ; only it must first be ascertained absolute that none can be found nearer to it (6) . Thus a trust for re- demption of British slaves in Barbary having, after a long continuance, failed for want of objects, was executed by Lord Cottenham in favor of charit}^ schools in England and Wales (c) . This must be borne in mind in considering the cases that remain to be noticed. In Clark v. Taylor {d), a legacy was bequeathed "to the treasurer of the female orphan school at G., patronized by Mrs. E., for the (y) 1 My. & C. 123. (0) See also New «. Bonaker, L. R. 4 Eq. 655, where a legacy to be applied for a charita- ble purpose in a foreign country having been refused by the government of that country, ap- parently on grounds of public policy, it was not argued that it should be applied cy-pres in this country. Cf. Att.-Gen. v. City of London. 3 B. C. C. 171. (a) Per Lord Eldon, 7 Ves. 69. See also per Grant, M. R., 9 Ves. 405. (A) Per Lord Cottenham, Cr. & Ph. 227. Oi'i^inally the rule seems to have been wholly unqualified; for, according to Wilmot, C. J. (0pm. 32, 33), "the court thought one kind of charity would embalm a testator's memory as well as another." (c) Att.-Gen. ». Ironmongers' Company, Cr. & Ph. 208, 10 CI. & Fin. 908. (d) 1 Drew. 642. VOL. I. 18 273 *247 GIFTS TO Cases of^ benefit of that charity ; " the school had been established Clark li. ^^^ maintained by Mrs. E. at her own expense, without Taylor. treasurer or other official, and still subsisted at the testator's death ; but afterwards, and before payment of the legacy, was discon- tinued; Sir R. Kindersley, V. C, said there was a recognized distinc- tion between a gift showing a general charitable purpose, and pointing out the mode in which it was to be carried into effect, and a gift to a particular institution ; that here the institution being a mere private school maintained by the beneficence of Mrs. E., he could not say the legacy was to go to any other institution. In Eussell v. Kellett (e), some of the poor persons for whom the gift Eussell V. was intended having survived the testator, but died before Kellett. payment, it was held by Sir J. Stuart, V. C, that their *247 * legacies lapsed. He said the doctrine of cy-prhs meant that some other object could be found in a reasonable degree nearly answering the object mentioned by the testator, but that here was such a singular and particular definition of the objects as made it impossible to find any other so nearly resembhng them as to justify the application of the doctrine. In Marsh vi Means (/), a testator gave a legacy, payable after the Marsh v. death of his wife, for continuing a certain publication (which Meaus. jii^d been published by The Association for Promoting Hu- manity to Animals) according to principles stated in one of its num- bers, viz. to expose cruelty to animals, to difiuse mpral and religious information, &c. At the date of the will the publication had been dis- continued, and the association itself was extinct ; and it was held by Sir W. P. Wood, V. C, that this was not a bequest for promoting these principles, but for continuing the publication of this particular book, which brought the case within Clark v. Taj'lor, so that the doctrine of cy-prls was not applicable, and the gift lapsed by extinction of the object. Again, in Fisk v. Att.-Gen. {g), where a legacy was given "to the Fiski). Ladies' Benevolent Society at L. as part of its ordinary Att.-Gen. funds," and before the testator's death the society ceased to exist, Sir. W. P. Wood, V. C, said it has been expressly decided by Clark V. Taylor and Russell v. Kellett, that when a gift was made by will to a charity which had expired, it was as much a lapse as a gift to an individual who had expired ; and that though the point might some day require further consideration, he could not interfere with the settled authorities. Whether the charitable object fails before or after the tes- tator's death, it is thus equally lapse witliin the meaning of this de- cision ; whereas in Hayter v. Trego (A), where the bequest was to " the D. asylum for female penitents," which was dissolved after the testator's (e) 3 Sm. & Gif. 264, ante, 209. (/) 5 W. R. 816, also reported (but obscurely) 3 Jur. N. S. 790. (n) L. R. i Eq. 521. See also Langford v. Gowland, 3 Gif. 617. 01) 5 Russ. 113. 274 CHARITABLE USES. *248 death, it was assumed that the legacy was to be applied cy-prh, the only question argued being whether this should be done by the Crown or by the court. Considering that in Clark v. Taylor, the institution was " a mere pri- vate school" ; that Eussell v. Kellett depended on an errone- Remarks on ous view of the doctrine of cy-prls (4) ; that Marsh 0. Means *''<= '^^^■ and Fisk v. Att.-Gen. were decided on the authoiity of * Clark *248 V. Taj-lor and Russell v. Kellett, which were followed (on the lat- ter occasion at least) with hesitation, it cannot be considered that the suggested rule of lapse is very strongly supported, at least in those cases where the bequest is to an institution established for charitable purposes which plainly appear in its name Qc). It is admitted that there is a distinction where there never was any such institution as that named by the testator ; for in that Distinction case it is clear he could not have intended to benefit a par- ■«'h«''e the ' ticular institution, and the legacy will be applied cy-pres (T). ty never ex-" So if the bequest is to the institution merely as the instrument ^^'^'^' for executing the testator's charitable intent, which he fully — or is a describes, the failure of the institution will not involve the ^^^^ trustee, failure of the charitable trust (m). There is another sort of case less easily distinguishable from Fisk v. Att.-Gen. ; that is, where the gift is in terms to a particular _ institution by a description equally applicable to more than are several one. It cannot here be presumed that the testator did not equIuTau- intend to select one in particular; for he may have known, sweringtiie and, considering the terms of the bequest, probably did '*^'"^'P''°°- know, only one answering the description ; yet, as it caAnot be ascer- tained which, the particular purpose faUs ; nevertheless it is clear that the legacy will be applied ey-prh (»).] Where the testator's object is sufficiently defined, and is capable of being carried into eflect, it will not be departed from upon a notion of more extended utUity (o). [Cherry v. Mott {p) shows that there may be a conditional legacy to a charity as well as for any other purpose, and that if the „ ... , condition is not fulfilled the legacy fails in substance. And legacy to if the condition is such that it need not be performed within <^''™''y- the limits allowed by the rule against perpetuity, the gift is void (9). Such cases must be distinguished from those where the intention is to give a fund to charity at once, though there may be an indefinite su.s- (i) Langford o. Gowland, before the same judge, is probably referable to the same ground. (h) See per Sugden, C, 1 D. & War. 294. But see L. E. 8 Ch. 211. (0 Loscombe v. Wintringham, 13 Beav. 87 ; Re Maguire, L. R. 9 Eq. 632. (m) Marsh ». Att.-Gen., 2 J. & H. 61 ; see also cases cited ante, p. 244, n. (0). («) Bennet v. Havter, 2 Beav. 81; Re Clergy Society, 2 K. & J. 615.] (0) Att.-Gen. v. Whiteley, 11 Ves. 241. [(p) 1M5'.& 0.132. (5) See Chamberlayne ji. Brockett, L. E. 8 Ch. 208 n., 212. 275 *250 GIFTS TO CHAKITABLB USES. pense or abeyance in its actual application. If the particular purposes may be answered, though not immediately, the fund will be re- *249 tained — how long does not clearly appear ; * but if those pur- poses turn out on inquiry to be impracticable, then the fund will be applied cy-pres. And during such retention there is no resulting trust for heir or next-of-kin (r).] With respect to the particular cases in which the Crown, and those Where the ^^ which the court undertakes this office, the distinction Crown and secms to be, that where the bequest is by the intervention of ctmrtVd-* trustees, [even though those trustees die in the testator's ministers lifetime or refuse to act,] it devolves upon the court (s) ; "^ *" ^' but where the object is charity without a trust interposed, the direction must be by the sign-manual of the Sovereign (<).' In a case (m) where there was a bequest to a voluntarj' charitable society, which existed when the will was made, and also at the death of the tes- tator, but was dissolved before his assets could be administered, it was held that the execution devolved on the court. Both the Crown and the court, however, in the exercise of their discretion, alike act upon the principle of adhering as closely as possible to the spirit of the donor's expressed or presumed intention (a;) . Where a pecuniary legacy is bequeathed absolutely to a corporation re the ^^i^^ing for only charitable purposes, the court will direct court will payment, without requiring that a scheme be settled by K dfarity ^^^elf for its appropriation ( y) . And the same rule obtains without a where a legacy is given to the treasurer or other officer of a scheme. charitable institution, though not a corporation, to become part of the general funds of that institution (z) . But where the legacy is to be applied, not as part of the general funds of the institution, but for certain permanent charitable trusts, which the testator has pointed out, the court will take upon itself to insure the accomplishment of the testator's object by a scheme of its own (a). [Where the legacj- is to Foreign ^ foreign charity the court will direct it to be paid to the charity. persons appointed by the testator to receive it, and will not take upon itself to settle a scheme (b). Nevertheless the court *250 has jurisdiction to secure a * legacy given for charitable purposes by a subject of the Crown, whether in or out of this countrj', and (r) Att.-Gen. v. Oglander, 3 B. C. C. 166 ; Abbott v. Fraser, L. R. 6 P. C. 96 ; Chamberlayne V. Brockett, L. R. 8 Ch. 206, and the cases there cited. (s) Moggridge v. Thackwell, 7 Ves. 36; Paice v. Archbishop of Canterbury, 14 Ves. 364; Att.-Gen. v. Gladstone, 13 Sim. 7; Reeve v. Att-Gen., 3 Hare, 191.] (0 Att-Gen. v. Fletcher, 5 L. J. N. S. Ch. 75, Pepya, M. R. ; Denver v. Druce, Taml. 32. (M) Hayter v. Trego, 5 Russ. 113. [(a;) 7 Ves. 87.] (y) Societv for the Propagation of the Gospel in Foreign Parts v. Att.-Gen., 3 Russ. 142; [Walsh V. Gladstone, 1 Phjll. 290.] (z) See Wellbeloved v. Jones, 1 S. & St. 43; [Re Barnett, 29 L. J. Ch. 871.] (a) lb. Ub) Collyers. Burnett, Taml. 79; Mitford«. Reynolds, 1 Phin.194. See Mayor of Lyons V. East India Company, 1 Moo. P. C. C. 293. 1 See 2 Kent, Com. 288, 289; 4 Kent, Com. 598, 599; 2 Story, Eq. §§ 1190 et^eq. 276 EULE AGAINST PEEPETXJITIBS. *250 will sometimes order the fund to be carried to a separate account in court, and the dividends only paid over to the person named in the will, subject to an account of the mode of its application (c). The legality of the charity is to be determined by the law of the country where it is to be applied (d).] It seems that the court discourages the investment of the funds of the charity in the purchase of land, under the 2d section of the statute 9 Geo. 2 (e). It remains to be noticed, that the cy-prh doctrine does Cy-prh doo- not apply to bequests which are made void by the statute in applied to question, and therefore a bequest of money to be laid out th^^^^'^g^" in land is not executed cy-pres, i.e. applied to an allowed Geo. 2, c. 36. charitable purpose.' [But an express gift over, in case the A gift over, charitable gift cannot by law take effect, is valid (/) .] ^ charit/* void, is good. Section II. Mule against Perpetuities. The necessity of imposing some restraint on the power of postponing the acquisition of the absolute interest in, or dominion over property, will be obvious, if we consider, for a moment, what would be the state (c) Att.-Gen. v. Lepine, 2 Sw. 181 ; Att.-Gen. v. Sturge, 19 Beav. 597. {d) New V. Bonaker, L. R. 4 Eq. 655.] (e) Att.-Gen. v. Wilson, 2 Kee. 683. [(/) Att.-Gen. ». Tancred, 1 Ed. 10, 1 W. Bl. 90, Arab. 354; De Themines v. De Bonneval, 5 Russ. 288; Robinson v. Robinson, 19 Beav. 494; Carter v. Green, 3 K. & J. 591 ; Warren «. Riidall, 4 K. & .J. 618 ; and per Lord Eldon, Sibley v. Perry, 7 Ves. 522 ; overruling Att.-Gen. v. Tyndall, 2 Ed. 207. The grounds of the decision in Att.-Gen. v. Hodgson, 15 Sim. 150, show- that it is not an authority against the validity of such a gift over. But as to those grounds, see Warren v. Rudall, 4 K. & J. 603, stated post, Ch. L.] 1 The English doctrine of cy-pres has often not be, a judicial doctrine except in one case ; been condemned in this country. Beekmau and that is where there is an available charity V. Bonsor, 23 N. Y. 298, 308 ; Williams «. to an identified or ascertainable object, and a Williams, 4 Seld. 527; Owens v. Miss. Soc, particular mode, inadequate, illegal, or inap- 14 N. Y. 380; Att.-Gen. v. Dutch Reformed propriate, or which happens to fail, has been Church, 36 N. Y. 452. But it should be re- prescribed. In such a case a court of equity membered that the cy-zjres doctrine as applied may substitute or sanction any other mode in England to charities has two branches ; the that may be lawful and suitable, and will first having relation to cases in which a chari- effectuate the declared intention of the donor, table gift of a testator is executed by the king's and not arbitrarily and in the dark, presuming sign-manual, and the second to cases arising on his weakness or wishes, declare an object under the general jurisdiction of chancery. for him. A court mav act judicially as long It is the first class of cases which has brought as it effectuates the lawful intention of the the subject of cy-pres into disrepute in Amer- testator." Moore v. Moore, 4 Dana, 366, ica. Whenever a bequest was made to a Robertson, C. J. ; Jackson v. Phillips, 14 particular charitable use which was illegal, or Allen, 539, 576-590. This will explain some wheneverabequestwasmadetocharitableuses of the cases at least in which it has been de- generallv, without provision for a trust and clared that the doctrine of cy-pres must be wanting a donee of any power of appointment rejected (see e. g. Methodist Church tr. Rem- at the testator's death;' the king then, by sign- ington, 1 Watts, 226). They are cases which manual, designated an object for the bequest. in England would come within the class over The result sometimes was a gift in direct which the king has assumed the power of oppo.sition to the declared intention of the appointment; a prerogative which, it is hardly testator. This was simply an exercise of necessary to say, has not reached this country, royal prerogative, and not a judicial proceed- Jackson" ti. Phillips, supra; Grimes ». Bar- ing. Hence it has well been .said that " The mon, 35 Ind. 198. cy-pres doctrine of England is not, or should 277 "250 EULB AGAINST PERPETUITIES. of a community in which a considerable proportion of the land and Policy of rule Capital was locked up.' That free and active circulation of against per- property, which is one pf the springs as well as the conse- quences of commerce, would be obstructed ; the improve- ment of land checked ; its acquisition rendered difficult ; the capital of 1 In Alabama (Code, 1876, Title 3, ch. 1, p. 572), "Lands may be oonvej-ed so as to avoid perpetuities;" but conveyances to other than wife and children, or children ■only, cannot extend beyond three lives in being at the date of the conveyance and ten years thereafter. In Georgia (Code, 1873, Title 5, ch. 3, p. 393), limitations of estates may extend through any number of lives in being at the time when the limitations com- mence and twenty-one years, and the usual feriod of gestation added' thereafter. In ndiana (Stat. 1876, Vol. 1, ch. 82, p. 369), the absolute power of aliening lands shall not be suspended by any limitation or con- dition whatever conteined in any grant, con- veyance, or devise, for a longer period than during the existence of a life, or any num- ber of lives, in being at the creation of the estate conveyed, granted, devised, and therein speciiied, with the exception that a contin- gent remainder in fee may be created on a prior remainder in fee, to take effect in the «vent that the person or persons to whom the first remainder is limited shall die under the age of twenty-one j'ears, or upon any other contingency by which the estate of such person or persons may be determined before they attain their full age. In Iowa (R. S. 1880, Vol. 1, Title 13, ch. 3, p. 521), every disposition of property is void which sus- pends the absolute power of controlling the same for a longer period than during the lives of persons then m being and for twenty- one years thereafter. In Maryland (Rev. Code, 1878, Art. 49, p. 419), no will, testa- ment, or codicil shall be effectual to create «ny interest or perpetuity, or make any limi- tation or appoint any uses not now permit- ted by the constitution or laws of that state. In Mississippi {Rev. Code, 1871, ch. 62, p. 499), estates in fee-tail are prohibited ; and every estate which shall be created an estate in fee-tail shall be an estate in fee-simple: provided, that any person may make a con- veyance, or a devise of lands, to a succession of donees then living, not exceeding two; and to the heirs of the body of the remainder- man, and in default thereof to the right heirs of the donor, in fee-simple. In New York (R. S. 1875, Vol. 2, ch. 1, pp. 1101, 1102), the absolute power of alienation shall not be sus- pended by any limitation or condition what- ever for a" longer period than during the con- tinuance of not more than two lives in being at the creation of the estate, except that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other con- tingency by which the estate of such persons may be determined before they attain their full age. This statute has been re-enacted verbatim in Michigan (Comp. Laws, 1871, Vol. 2, ch. 147, p. 1326), in Minnesota (Stat. 1878, ch. 45, p. 561), and in Dakotah (Rev. Code, 1877, ch. 2, p. 261). The statute of New York finds exemplification in a recent case, in which it was contended, in the con- struction of a will drawn without technical accuracy, that a gift over, after "the deaths "respectively" of four persons named, should be treated as a gift over after the deaths of such persons "severally." But the court held that the context would not permit such an exchange of words. The clause in question was as follows : " I give and devise- and bequeath all the rest, residue, and remainder of my estate, both real and personal, to my executors hereinafter named, or the survivors or survivor of them, upon the following trusts, namely : To pay the in- cpme, rents, issues, and profits thereof to my brothers R. P. and W. P., and to my sisters F. M. and N. C, equally, share and share alike during the joint lives of my said broth- ers and sisters, then to divide the said real and personal estate equally among the chil- dren of my said brothers and sisters, respec- tiwly: the said children to take the parent's share. And I hereby expressly declare that in case either of my said brothers or sisters shall die, leaving the others surviving, then the income herem intended for the one or the other so dying shall be paid to the issue or representative of the one or the other so dying." The court observed that the con- struction contended for would require a divi- sion of the whole property upon the death of one of the beneficiaries while the evident meaning was that ail should enjoy the in- come of the whole din'ing their lives. Colton !). Fox, 67 N. Y. 348. In Vermont (Gen. Stat. 1862, Const, p. 25, § 36), the legislature shall regulate entails in such a manner as to avoid perpetuities. In Wisconsin (E. S. 1878, ch. 95, p. 615), the absolute power of aliena- tion shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, excejit when real estate is given, granted, or devised to literary or charitable corporations which shall have been organized under the laws of this state, for their sole use and benefit, and except that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other con- ■ tingency by wliich the estate of such persons may be determined before they attain their full age. The law extends to realty only. Dodge V. Williams, 46 Wis. 70. 278 EULE AGAINST PERPETUITIES. ^251 th^ countiy gradually withdrawn from trade ; and the incentives to exertion in everj^ branch of industry diminished. , Indeed, such a state of things would be utterly inconsistent with national prosperity ; and those restrictions, which were intended by the donors to guard the objects * of their bounty against the effects of their own im- *251 providence, or originated in more exceptional motives (g) , would be baneful to all. It was soon perceived, therefore, that when in- creased facilities were given to the alienation of property. Origin of the and modes of disposition unknown to the common law arose, '"'''■ from the introduction of springing uses and executory devises, which no act of the owner of the preceding estate could defeat, it was necessary to confine the power of creating these interests within such limits as would be adequate to the exigencies of families, without ti'ansgressing the bounds prescribed by a sound public policy. This was effected, not by legislative interference, but bj' the courts of judicature, who, in this instance, appear to have trodden very closely on the line which divides the judicial from the legislative functions.^ (g) Perhaps these restrictions most frequently spring from the desire to exert a posthu- mous control over that which can be no longer enjoyed. " Te teneam raoriens." is the dying lord's apostrophe to Ms manor, for which he is forging these fetters, that seem by restricting the dominion of others, to extend his own. 1 It is no objection to a grant or devise to a chai'itable use that it creates a perpetuity. Yard's Appeal, 64 Penn. St. 95; Holmes ». Mead, 52 N. Y. 332, 340; Williams v. Wil- liams, 8 N. Y. 525; Dexter ti. Gardner, 7 Allen, 243; Odell v. Odell, 10 Allen, 6; Perin v. Carey, 24 How. 465 ; Ould v. Wash- ington Hospital, 95 U. S. 303; Magdalene College V. Att.-Gen., 6 H. L. 205; and a great number of other cases, English and American. Indeed, a gift to a charity to be created is not void within the rule concern- ing perpetuities, provided no perpetuity be created in a prior taker, by the devise. Ould V. Washington Hospital, 95 U. S. 303; Jocelyn v. Nott, 44 Conn. 55; Burrill v. Boardman, 43 S. Y. 254; Dodder v. Wil- liams, 46 Wis. 70; Inglis v. Sailors' Snug Harbor, 3 Pet. 99; Sanderson v. White, 18 Pick. 328. As to the question of capacity, a distinction is taken between a devise in prcBsenti to one incapable of taking, and a devise in futuro to an artificial being, to be created and enabled to take. Where lands are granted to pious uses before there is a grantee competent to take, the fee will lie in abeyance, vesting when the grantee comes into existence. Ould v. Washington Hospi- tal, supra; Pawlet V. Clark, 9 Cranch, 292. A present gift to a charity (not void for un- certainty) to come into existence, though at an uncertain time, if there be no gift in the first instance or perpetuitv in a prior taker, is good. Ould ». Washington Hospital. Hence, a bequest of a fund to trustees for the purpose of establishing a bishop in foreign territory is valid. Att.-Gen. ■». Chester, 1 Brown, C. C. 444. So of a sum left to build and endow a church. Sennet v. Herbert, Law Rep. 7 Ch. 237. So of a fund to be de- voted to the erection of almshouses, so soon as land should be given for the purpose. Chamberlayne v. Brockett, Law Rep. 8 Ch. 206. Nor is the case different by reason of the fact that the trustee of the fund is re- quired to approve of the object claiming the charity before transferring the fund. Ould V. Washington Hospital, supra; Philpott v. St. George's Hospital, 6 H. L. Cas. 359. It matters not, further, that the fund is not given for the purpose of founding the charity, or establishing the object of the bequest : it is equally valid, though it is to be paid over upon the event of the acts of third persons, such as an act of the legislature granting a charter of incorporation. lb.; Inglis w. Sail- ors' Snug Harbor, supra. But as to cases not exempt from the operation of the perpetnity law, and as to charities to be created al'ter a period too remote, it matters not whether the estate be limited by waj' of legal settlement or under cover of a trust : in any case if the power of alienation be suspended beyond the period allowed by law, the limitation is ohnoxious to the rule against perpetuities. Goldsborough v. Martin, 41 Md. 488, 501; Wells V. Heath, 10 Gray, 25. And if the gift is made in the first instance to an indi- vidual and then over, upon a contingency that may not happen within the prescribed limit, to a charity, the gift to the charity is void, not because the charity could not take at the remote period, but because it tends to create a perpetuity in the individual who is the first taker, by making the estate inalien- able by him beyond the period allowed by law. 'Companv of Pewterers ». Christ's Hospital, 1 Vem. 161; Commissioners of 279 *252 EULE AGAINST PERPETUITIES. The early judges had an extreme repugnance to every disposition of property that savored of a perpetuity, but the expressions howregarded which occasionally fell from them, demonstrative of this bv the early feeling, did not afford a specific definition of the monster which the law was stated " to abhor." The effect, however, was to throw such a general suspicion over all executory limitations, as to render the validity of every gift of this nature questionable, until it had been the subject of adjudication. The onus probandi (so to speak) was regarded as lying on those who had to sustain the future gift ; and the course which the decisions have taken, has been to aflSrm the validity of one executorj' disposition after another, until the rule has settled down to an analogy to the ordinary limitations in strict settle- ment, i.e. to the allowance of a life or any number of lives in being, and twenty-one years afterwards (A) . But though the new modifications of estate consequent on the intro- Period for . duction of uses, first drew attention to the necessity of im- which the posing some restraint of this nature, they did not wholly vesting of es- , .„.„ ,, . ■, tates may be Create that necessity ; for, if uses had never existed, some suspended, g^^j^ restriction would have been requisite on executory and future interests in personal estate, analogous to that rule of the common law concerning remainders, which precluded (and still precludes) the giving to an unborn person an estate for life, with remainder *252 * to his issue (ha) , or, as it was rather quauitly expressed, the creating of a possibility upon a possibility. It was long (i) an undetermined point, whether the period of twenty- A life or lives one years, which a testator or settlor was permitted to add in being, and ^ ^ jj^g qj, jjyeg in being, was an absolute term, or was in- twenty-one °' ' years. tended merely to afford an opportunity of postponing the interest of an unborn object of gift until his or her majority.'^ This question was finally set at rest in Cadell v. Palmer (k) , in which the (h) In the writer's edition of Powell on Devises (vol. 1, p. 389, n.), the progress of this rule is fully traced. Iha) Somerville v. Lethbridge, 6 T. E. 213 ; Beard v. Westcott, 5 Taunt. 393 ; Hayes 0. Haj-es, 4 Kuss. 311; [see also 2 D. M. & G. 170.] But see post. (() See Beard v. Westcott, 6 Taunt. 395, 5 B. & Aid. 801, T. & E. 25. (k) 7 Bli. 202, [1 Cl. & Fin. 372, 10 Bing. 140, 1 Sim. 173, nom. Bengough v. Edridge. Ponation «. De ClifEord,- 1 Dm. & W. 254. l See Van Vechten v. Van Vechten, Within the same class fall cases of gifts of 8 Paige, 104; Mainwarin^ v. Baxter, 5 Ves. an annuity to A. and his heirs, or of personal (Sumner's ed.) 460, Perkins's note (a) ; Lor- property to A. and the heirs of his body and rillard v. Coster, 5 Paige, 172; S. C. 14 then over to a charity, in which the gifts Wend. 265 ; Hawley v. James, 5 Paige, 318 ; over have been held" void as too remote. S. C. 16 Wend. 61 ; Butler v. Butler, 1 HofE. Att.-Gen. v. Gill, 2 P. Wms. 369; Att.-Gen. 344; Hone v. Van Schaick, 20 Wend. 364; V. Hall, W. Kel. 13; Gray, J., in Odell v. 4 Kent, 271, et seq. An executory devise, Ortell, 10 Allen, 1, 7. Charitable gifts appear like other estates, must vest during the pe- not to be supported in Maryland if within riod established by the law against perpe- the perpetuitv law, unless there is a donee or tuitiea. Nightingale v. Burrell, 15 Pick. 104 ; trustee capable of taking the gift in sucoes- Hawley v. Northampton, 8 Mass. 3, 37, 38; sion. Dashiell D. Att.-Gen., 5 Bar. & J. 392; Brattle Square Church v. Grant, 3 Gray, 143, S. C. 6 Har. & J. 1. Sec Needles v. Martin, 152, 153; Fisk v. Keene, 35 Me. 349. 33 Md. 609; see also Methodist Ep. Church*. Warren, 28 Md. 338, 618. 280 ETJLE AGAINST PEBPBTUITIES. *253 House of Lords decided in favor of an executory limitation in a will to take effect at the period of twenty years after lives in being (Z) . Baj-- ley, B., after an elaborate examination of the authorities, declared the unanimous opinion of the judges to be, that the true limit of the rule against perpetuities was "a life or lives in being ^ and twenty-one years, without reference to the infancy of any person whatever." This Term of important case, however, would still have left a subiect for t'"'e;ity-one V63,rS flllOWGO. controversy, if the House had contented itself with sim- absolutely, ply adjudicating in the case before it ; but, with a laudable "eferenc^e' "to" anxiety to close the door to all future discussion, it was infancy; proposed to the judges to consider, whether a limitatibn by way of executory devise is void as too remote, or otherwise, if it is not to take effect until after the determination of a life or lives in being, and upon the expiration of a term of twentj-one years afterwards, together with the number of months equal to the ordinary or longest 'period of gestation ; but the whole of such years and months to be taken as a term in gross, and without reference to the infancy of any person whatever, born or en ventre sa mere. The judges declared their unanimous j^j ^^j jjjg opinion on this point to be, that such a limitation would be period of ges- void as too remote, they considering twenty-one years as the limit, and the period of gestation to be allowed in those cases only in which the gestation exists.^ A possible addition of the period of gestation to a life and twenty-one years, occurs in the ordinary case of a devise or * be- *253 quest to A. (o male) for life, and after his death to such of his children as shall attain the age of twenty-one years, or, indeed, in the case of a devise or bequest simply to the children of A. (a male), who shall attain majority, though not preceded by a life interest ; in either case A. may survive the testator, and die leaving a wife enceinte, and, as such child would not acquire a vested interest until his majority, the vesting would be postponed until the period of twenty-one years beyond a life in being, with the addition, it might be, of nine or ten months ; and if, to either of these hj^pothetical cases, we add the circumstance that A. the parent, were (as of course he might be) an infant en ventre sa mere at the testator's decease, there would be gained a double period for gestation (namely), one at the commencement, and another at an (0 See as to this case Sugd. Law of Prop. 314. It will be observed that the term of twenty years only was taken in this case. It may have been thought that, as the execution of the ultimate trust involved a conveyance by the trustees to certain uses, a time should be allowed, sufficient in any possible case for completing -.that conveyance. According to the then law, it might have been necessary to suffer a recovery, which could only be done in term time. At the present time, it would appear unnecessary to make an allowance, even of a day, as there does not seem to be any conversance which could not be perfected in a day.] 1 Brattle Sq. Church ». Grant, 3 Gray, limitation is two lives in being. See note on 152; and cases supra and infra, through the p. 278 (bottom paging). But the invalidity present section. In New York -and in some of the limitation over does not affect the other states, as in Michigan, the period of prior gift. Woodruff v. Cook, 63 N. Y. 638. 281 *254 EITLE AGAINST PEEPETXJITIES. intermediate part of the period of postponement. To tseat the period of gestation, however, as an adjunct to the lives is not, perhaps, quite correct. It seems more proper to say that the rule of law admits of the absolute ownership being suspended for a life or lives in being, and twenty-one years afterwards, and that, for the purposes of the rule, a child en ventre sa mere is considered as a life in being. Where the vesting of a gift to unborn persons is postponed for a fixed Vesting can- term, exceeding twenty-one years, the gift is unquestionably pone'd fSr^ void, although not preceded by a life ; for the fact of the gross term testator not having availed himself of the allowance of a life twentv^ne does not enable him to take a larger number of years. Thus, years. in Palmer v. Holford (w) where a testator bequeathed a sum of stock upon trust to raise an accumulated fund, and to transfer such fund unto all and every the child and children of his son C. T. H., who should be living at the expiration of twenty-eight years, to be computed from the testator's decease, except an eldest or only son ; and in case no such child should be then living, then to the children then living of J. S., another son ; and in default of such child to J. S., if living, and so on to the children of two daughters whom he named, with the like substitution of those daughters; Sir J. Leach, M. R., said : " The expressed intention of the testator is that all the children of his son C. T. H., other than an eldest son, should take who were living at the expiration of twenty-eight 3'ears, and that no person should take before that period. If C. T. H. had such children *254 born to him at any time within seven j'ears from the * testator's death, then the vesting of the interests of such children who were unborn at the death of the testator would have been suspended for more than twenty-one years, and the gift, therefore, is too remote and void ; and the gifts over not being to take effect until after the same period, which is too remote, are necessarily void also " (n). The principle of the above case clearly applies where any the most inconsiderable addition is made to the term of twenty-one years ; there- fore a gift, the vesting of which is postponed for twenty-one years and a day, is void. [In deciding the question of remoteness, the state of circumstances Period to be at the date of the testator's death, and not their state a,t tlie froTtht^tes- <^^t^ o^ t^^ ^i^l' is *o ^® regarded. Thus, if a testator be- tator's death, queaths money in trust for A. for life, and after his death for such of his -children as shall attain the age of twenty-five, which latter trust would be void i£ the testator were to die before A. ; yet if A. should die before the testator leaving children, of whatever age, the tm) 4 Russ. 403 ; [and see Speatman v. Speakman, 8 Hare, 180. \n) It will be perceived that all the s'f's over, including the gift to J. S. himself, were held void, though the vesting of that gift being subject to the contingency of J. S. being alive at the expiration of the twenty-eight years, was necessarily confined to a life in being: this was in accordance with the general rule hereafter noticed, that every gift, limited after a gift void for remoteness, is also void. 282 EULE AGAINST PERPETUITIES. *255 trust will be good, since it must of necessity vest or fail within lives in being, viz. the lives of tlie children (o).] ^ To the test of the rule settled bj- Cadell v. Palmer, every gift of real or personal estate, by will or otherwise, must be brought. The application of such test instantly shows that an execu- devL^To* "^ torv limitation to arise on an indefinite failure of issue of any F'.*^ »■? 1° person livmg or dead, is void for remoteness ( j»)^ though it failure of is- is to be observed that in this and all other cases, if the execu- ^"''' ''°"^' tory devise is [in defeasance of or immediately] subsequent to an estate tail, it wiU be good, because the power which resides in the _ , owner of that estate to destroy all [defeating or] posterior grafted on an limitations, executory as well as vested, takes the case out ''^'^'^ '"''■ of the mischief of, and consequently out of the rule against, * perpetuities (9). Thus if a person, by deed or will, creates *255 an estate tail, and annexes to it a proviso divesting the estate in favor of another in case the devisee, or his issue in tail, should at any time thereafter neglect to assume the name and bear the arms of the testator, or in case another property should at any future time devolve to him or them, or on any other such event ; this executory (0) Vaiiderplank v. King, 3 Hare, 17 ; FauUtner v. Daniel, ib. 216 ; Williams v. Teale, 6 Hare, 251; Peard ». Kekewich, 15 Beav. 173 ; Southern v. WoUaston, 16 Beav. 166,276; Cattlin «. Brown, 11 Hare, 382. The point is now never contested, see e.g. 3 Ch. D. 6+5. The doubts once entertained (10 Hare, 112) in consequence of what appeared to be a contrary decision in Harris v. Davis, 1 Coll. 416 (where however the question was not presented in this view), must be considered as removed.] (p) Badger v. Lloyd, 1 Salk. 2.32; Moore v. Parker. 1 Ld. Eaym. 37; Lady Lanesborough V. Fox, Ca. t. Talb. 262; [Lepine o, Ferrard, 2 E. & My. 378; Carter v. Bentall, 2 Beav. 5.")!; Harding v. Nott, 7 E. & B. 650.] But remember stat. 1 Vict. c. 26, s. 29, as to wills made since 1837. (q) Gullivers. Ashbjf, i Burr. 1929; [Att.-Gen. v. Miller, 3 Atk. Ill; as to a charge sub- sequent to an estate tail, Goodwin v. Clark, 1 Lev. 35 ; Faulkner v. Daniel, 3 Hare, 199 ; Morse v. Ormonde, 1 Euss. 382; Bristow v. Boothby, 2 S. & St. .465.] 1 So if by a reasonable and natural inter- length in Ch. XLI. But it may be here re- prefation of" the will the rule of perpetuity marked that while it is universally conceded can be escaped, the courts will respect the that a gift over upon an indefinite failure of intention and desire of the testator. See, e..^., issue is void as creating a perpetuity, tiie Simpson v. Cook, 24 Minn. 180, where a sus- courts are far from agreed as to the question pension of the power of alienation until the when such a gift must be deemed to have testator's yoimgest of five children, under a been intended. In some cases the courts, statute limiting suspension of alienation to impressed with a desire to uphold the will, two lives, should reach majority was con- or proceeding upon statutes, have held that strued to refer to the youngest of his children a gift over in case A. (the prior taker) "die living at liis death. Butler v. Butler, 3 Barb. without issue," should be construed to mi.'an Ch. 304; Burke v. Valentine, 52 Barb. 412, '* without issue living at his death." Tyson 425. V. Blake, 22 N. Y. 658; Goodell v. Hibbard, 2 See Brashear v. Macev, 3 J. J. Marsh, 32 Mich. 47, 55. In other cases, while such 91; Adams ». Chaplin, 1 Hill, Ch. 265; Al- an expression as "die without issue" has len «. Parham, 5Manf. 457; Lynch v. Hill, been conceded to mean an indefinite failure of 6 Munf. 114; Eice v. Satterwhite, 1 Dev. & issue, a distinction has sometimes been tak'^n B. Eq. 69: Mazyck ». Vanderhorst, Bailey, in favor of a provision over in case A. die Eq. 48; Postell v. Postell, Bailey, Eq. 390; without " leaving " issue; or "leaving sur- Morgan v. Morgan, 5 Day, 517; Paterson viving issue" (Fosdick ». Cornell, 1 Johns. V. Ellis, 11 Wend. 259; Miller v. Macomb, 440; Anderson v. Jackson, 16 .lohns. 382. 26 Wend. 229 ; Halls;. Chaffee, 14 N. H. 215 ; But see Burrou^h v. Foster, 6 R. I. 534), and Fisk ». Keene, 35 Me. 349 ; Brattle Square many other distinctions have been taken, as Church w. Grant, 3 Gray, 142: Tator». Tator, will 'be seen in Ch. XLI. The subject lias 4 Barb. 431 ; Conklin v. Conkljn, 3 Sandf. been regulated by statutes to some extent in Ch. 64; IngersoU's Appeal, 86 Penn. St. many states. 240. This subject is considered more at 283 *2c>6 ETJLE AGAINST PERPETUITIES. limitation, though it would have been clearly void, if engrafted on an estate in fee-simple, is good as applied to an estate tail (r). [But to bring the case within this saving the event must be one which will necessarily happen, if at all, at or before the determination of the previous estate taE ; otherwise there wUl or may be an interval during which the executory devise will be indestructible, and the limita- tion will consequently be void ab initio («) . But the remoteness of the event upon which a remainder after an Difference estate tail is to vest is immaterial, since it is always barrable between an as long as the estate tail continues ; and if, beinar unbarred, executory * c? ? devise and a it is not vested when the latter determines, it fails for want remainder, ^f ^ particular estate. Thus, in Jack v. Fetherston (t), estates were Umited by settlement to T. S. W. for life, with remainder Jack*. to his first and other sons in tail male, and for default of I'etiierston. gmjjj issue male, and in case of issue female only of T. S. W., to T. S. W. in fee, and in case of failure of issue of T. S. "W., then , . , further limitations were made. It was argued that the ulti- may be good mate limitations being deferred till a general failure of issue limited upon ^^ '^" S- W., while previous estates were limited to his issue an event too male Only, were too remote ; but Bushe, C. J., said that this remo e. objection was in some degree founded on a misapprehension of Mr. Fearne's meaning, and in not distinguishing the limitation from the event : the event might be such that it might happen either before or after the future estate was to vest, and yet the possibility it might happen after did not affect the nature of the limitation. So that the remoteness of the event is immaterial, if the estate is not too remote. In Cole V. Sewell («) the same question arose as Seweii. *256 to the validity * of estates limited by deed to take effect in case of a general failure of issue by way of remainder after previous estates tail limited to some only of such issue. Lord St. Leonards (then L. C. Ir.) said: "As to the question of remoteness, at this time of day I was very much surprised to hear it pressed upon the cotirt, because it is now perfectly settled that where a limitation is to take effect as a remainder, remoteness is out of the question : for the given limitation is either a vested remainder, and then it matters not whether it ever vest in possession, because the pre- vious estate may subsist for centuries, or for all time ; or it is a contin- gent remainder, and then, by the rule of law, unless the event, upon which the contingency depends, happen so that the remainder maj' vest eo instanti the preceding limitation determines, it can never take effect at all. There was a great difficulty in the old law, because the rule as M Nicolls V. Sheffield, 2 B. C. C. 215; Carr v. Eai-1 of Evroll, 6 East, 58: Earl of Scarbor- ough «. Doe d. SaviUe, 3 Ad..& Ell. 897. Us) Bankes v. Holme, stated below. \t)-" • " " ■•"" \t) 2 Huds. & Br. 320. (m) 4 D. & War. 1, corrected by the judge himself, and differing in some material pas- sages from 2 Con. & L. 344.] 284 UTILE AGAINST PERPETUITIES. *257 to perpetuity, which is a comparatively modern rule (I mean of recent introduction, when speaking of the laws of this country), was not known, so that, while contingent remainders were the only species of executory estate then known, and uses, and springing and shifting limitations were not invented, the law did speak of remoteness and mere possibilities as an objection to a remainder, and endeavored to avoid remote possibilities : but since the establishment of. the rule as to perpetuities, this has long ceased, and no question now ever arises with reference to remoteness ; for if a limitation is to take effect as a spring- ing, shifting, or secondary use, not depending on an estate tail, and if it is so limited that it may go beyond a life or lives in being and twentj'- one years and a few months, equal to gestation, then it is absolutely void ; but if, on the other hand, it is a remainder, it must take effect, if at all, upon the determination of the preceding estate. In the latter case, the event may or may not happen before or at the instant the pre- ceding estate is determined, and the limitation will fail, or not, accord- ing to that event. It may thus be prevented from taking effect, but it can never lead to remoteness. That objection, therefore, cannot be sustained against the validity of a contingent remainder. If the remainder over had been regularly in default of issue male of the daughters, it would have taken effect when and if that failure happened. Now the remainder over is in default of issue generally, but it can only take effect when and if there is a failure of issue male, that is, upon the regular determination of the previous estate ; there is no dis- tinction in the point of * perpetuity between the limitations, *257 either only can take effect at the same period. The simple dis- tinction is, that although the event happen, the latter gift — depending upon the contingency — may never take effect ; but that introduces no question of remoteness." In a subsequent part of his judgment, after citing a passage from Coke Litt. 378, which speaks of a remainder depending on the contingency of one man dying before another as being " a common possibility," he continued: " The concluding words show that in those earlj' times they were looking to the period when the contingency might arise. The effect, however, of the modern rule against perpetuities has been to render this doctrine obsolete, although it has rendered void successive life-estates to successive unborn classes of issue. In NicoUs v. Sheffield (a;), the court held that a proviso for shifting an estate after an estate tail was valid ; and Lord Kenjon would not listen to an argument founded on remoteness, because the limitation over might at anj' time be barred by the previous tenant in tail." He therefore held the remainder good. This decision was affirmed in D. P. (y). Lord Cottenham observed: "It is said that this last limitation is too remote, because, there being no previous limitation to issue generally, there might be a failure of all the prior (x) 2 B. C. C. 215. (y) 2 H. L. Ca. 186. 285 *258 EtTLB AGAINST PEEPETTTITIES. limitations and yet issue, as in the case of a son of a daughter, might exist, so that this last limitation would not take effect. But if this be a remainder it would be barrable (z) , and the objection therefore would not arise." He then went on to show that the limitation in question was a remainder limited on a contingency, and therefore good. So in Doe d. Winter v. Perratt (a), where the devise was to I. C. in Doe V. Per- ^^^^ male, with remainder to the first male heir of the branch ratt. of E. C.'s family who lived at H., the branch of E. C.'s family who lived at H. might have consisted for an indefinite time of females only : so that the gift to the first male heir who should come into existence was too remote, had it not been limited by way of contingent remainder ; but being so limited, no doubt of its validity was expressed on this ground ; the only question was, who was meant by " first male heir." The judgment of Lord St. Leonards in Cole v. Sewell has *258 *been criticised (6), as if it had asserted that contingent re- mainders were in no case subject to the rule against perpetui- j, , ties, being sufficiently restricted by the rule which requires Cole V. Sew- them to vest, if at all, at or before the determination of the particular estate. But this does not appear to have been his real meaning. He nowhere says that the event upon which the preceding particular estate (upon which the contingent remainder is to depend) is limited to determine need not be within the limits allowed by the rule. On the contrary, he says, "The modern rule against perpetuities has rendered void successive life estates to succes- sive unborn classes of issue " (c) , and (as he has since remarked (d) ) he relied on the previous estate tail. The rule here referred to pre- vents the existence of a particular estate which, by enduring to a too remote period, might support a too remote contingent remainder; while in the case before him the estate tail removed all question of per- petuity. The event upon which the particular estate is to determine need not be, and in Cole v. Sewell was not, the same as the event upon which the contingent remainder is to arise : and the L. .C.'s judg- ment is directed only to show that where the former event is not ob- noxious to the rule against perpetuity, the remoteness of the latter event is immaterial. It is quite consistent with the very words of his judgment, and is required indeed by the general tenor of it, to hold with Sir W. P. Wood (e) that " a contingent remainder cannot be lim- ited as depending on the termination of a particular estate whose deter- mination will not necessarily take place within the period allowed by (a) This must be taken to mean "always barrable," which would not always have been the case with an executory limitation, c. g. when the estates tail had determined, see Baulies V. Holine, infra, p. 261. (a) 9 CI. & Fin. fi06. w) See .Appendix A. (c) See above, p. 257, and 2 D. M. & G. 170. id) Law of Prop. p. 120. (e) 11 Hare, 374, 375. 286 KTTLE AGAINST PERPETUITIES. *259 law ; " and that " a perfectly accurate statement of the law is made in the able argument of Mr. Preston in Mogg v. Mogg(_/), where he saj's ' a gift to an unborn child for life is good if it stops there, but if a remainder is added to his children or issue as purchasers it is not good, unless there be a limitation of the time within which it is to take effect : ' " thus connecting, if not identifying, the rule against perpetui- ities with the rule which prohibits the limitation of successive estates to successive unborn classes of issue ($').] * A term of years (like anj- other estate) may be made expect- *259 ant by way of remainder on an estate tail ; but sometimes it happens that the term is so limited as to render it hard to years, wheth- say whether it is ulterior or precedent to the estate tail. "'■' "'terior or ■' . '^ precedent to If the term is precedent to the estate tail, of course it can- estate tail. not be defeated by the acts of the tenant in tail (fi) : and in such case, if the trusts of the term are not to arise until the failure of issue under the entail, those trusts are necessarily void. As in Case v. Drosier (i), where a testator devised his estates at M. and T. to trustees for 500 }'ears, upon the trusts after declared, and he then devised the M. estate, subject to the term, to A. for life, with remainder to his sons and daughters in tail, in strict settlement, in the usual manner, with re- mainder to B. and his sons and daughters, in like manner. He then devised the T. estate in a similar manner, except that B. was put in the place of A. And the testator declared the trusts of the term of 500 years to be, for the purpose (among others) of raising portions for two granddaughters, paj'able at twenty-one, and further portions in case either A. or B. should die without issue, and all which were to sink in case they died under age and unmarried. Lord Langdale, M. R., thought that the words " without issue" meant without issue who were objects of the prior limitations ; but as this might be a remote event, and as there were no means by which the charges would be barred, the trusts could not be supported. " They depend," he observed, " on a teim, and that term is precedent to the estates tail, so that after a re- covery by a tenant in tail, there would remain a term and a trust to be performed ; a trust which could not be defeated, and a term which can- not be destroyed." [Of course it is not the mere limitation of an estate tail, — as, to the first son of A., who never has a son, — but the vesting of it in the devi- see, which protects the trusts of the subsequent term. On the death of A. without having had a son the trusts wiQ be good or bad, or (if (/)lMer. 664. ("(/) See Gilbert, Uses, n. by Sugd. p. 260. Mr. Josbua Williams treats the two rules as indepemlent, and denies the validity of such successive limitations, although restricted as suggested by Mr. Preston. He gives a specimen of such limitations which he considers to be unprecedented, and therefore invalid, Law. of R. P. 264; Appendix F., 9th ed. But see Cadell V. Palmer, stated on this point, post, p. 379.] (h) Eales v. Conn, 4 Sim. 65. (i) 2 Kee. 764, [affirmed by Lord Cottenham, 5 My. & Cr. 246. See Sykes ». Sykes, L. R. 13 Eq. 56, ace. ;] and see Hayes's Introd. vol. 1, p. 135, vol. 2, p. 170, n., Bth ed. 2.87 *260 KULE AGAINST PERPETUITIES, severable), some good and some bad, according as thej' are within or without the limits set bj' the rule against perpetuity (i).] Executory The question, whether an executory limitation was limitation, *260 precedent * or subsequent to an estate tail, was much cedent or discussed in Doe d. Lumley v. Earl of Scarborough (^), subsequent, -^yjiere lands were devised to A. for life, with remainder to his first and other sons in tail, remainders over, with a proviso, that if the earldom of S. should descend upon A. or anj- of his sons, within the period of certain lives, or within the term of twentj'-one years after the decease of the survivor, his or their estate should cease, and the lands remain over as if he or they were dead without issue. The eldest son of A. suffered a common recovery, and A. joined in the convej-ance for the purpose of making a tenant to the prcecipe. The earldom after- wards devolved upon A. It was held in the Exchequer Chamber (m) (reversing a decision in B. E.), that the executory limitation was barred ; the court being of opinion, that this was a mere proviso for the cesser of the old estates created by the wiU to which it applied, so as to accelerate and let in the enjoyment of the remainders over, and not (as had been considered in the court below) the creation of any new estate. The judges in B. R. were of opinion that the proviso operated, not by way of determining or defeating the estate tail of the son of A., but antecedently to that estate, by preventing the estate tail from ever taking effect ; and that the persons entitled in remainder had two dis- tinct estates, one of. which was antecedent, and the other posterior to the estate tail, and consequently, that the former could not be affected by the recovery. The same species of reasoning by which a remainder or an executory Whether a limitation, to arise on the determination of an estate tail, is remainaer, supported, might seem to have applied to a contingent re- destructiWe, mainder, which was formerl}' liable to be destroj-ed by the for remote^ act of the Owner of the preceding estate of freehold, no es- ness. tate being interposed for its preservation; but the writer is not aware of any authority for the application of the doctrine to such cases. If therefore freehold lands, of which the legal inheritance was in the testator, was devised to A. for life, with remainder to his eldest son who should be living at his decease, for life, with remainder in fee to the children of such eldest son who should be living at his (the son's) decease : although A. in his lifetime might have destroj-ed all the re- mainders, and the eldest son, after his (A.'s) decease, might have destroyed the ultimate remainder in fee devised to his children, with- out being amenable either at law or in equitj' to the persons whose es- tates were thus destroyed, such ultimate remainder would, nevertheless, [(k) Tregonwell f. Sydenham, 3 Dow, 394, where all the trusts were held void, except the trust to raise the monev, and the money was held to result to the heir. See as to the last point, Ch. XVril. s. 2.1 (/) 3 Ad. & Ell. 2, 4 Nev. & M. 724. (m) 3 Ad. & Ell. 897. 288 EULE AGAINST PBEPETUITIES. *262 have *been void for remoteness (n) on the ground that the *261 destruction in these eases was effected by what the law called a tortious or wrongful act (though it was a wrong without a remedy) , the perpetration of which was not to be presumed. [And now Effect of 8 & the Stat. 8 & 9 Viet. c. 106, s. 8, which has deprived the svict.c.ioe. owner of the previous estate of freehold of the power of destro3-ing the contingent' remainders depending on it, has also deprived those re- mainders of any validity they might have derived from their destructi- bility. The devise of an estate in reversion may, it seems, be void for re- moteness when a devise of an estate in remainder would not. j^ ^g^j^g „f ^ A reversion is, in fact, a present interest, since it carries reversion the services and rent (if any) during the subsistence of the "hen a simi- particular estate (o) ; and a devise of it, therefore, contin- lar devise of gentlj' on a future event is, like a similar devise of anj' other would be estate in possession, an executory limitation which need not s<""l- vest eo instanti that the particular estate determines, and is void if the event be too remote. Thus, in Bankes v. Holme (/>), where a settlor, having .the reversion in fee expectant on a failure of issue male of his sons and issue general of his daughters, devised it on the contingency of there being no child or children of his wife by him begotten, or (as eventually happened) of there being such, but all of them dying without issue ; it was held, that the devise was too remote and void {q). If the devise in this case had been such as to create a remainder in fee, such remainder could only have taken effect in case the general failure of issue had happened simultaneously with the determination of the estates tail to the sons and daughters {r) , and up to that time would have been barrable, and therefore not too remote. The devise of the reversion on the other hand, though barrable during the subsistence of the estates tail, would not necessarily have always been barrable, since, taking effect as it did by way of executory devise, it must, if held valid, have awaited the time when the issue general failed ; an indefinitely long period might thus elapse between the determination of the estates tail and the failure of issue general, during which the reversion would have descended in fee to the testator's heir, who could not have * barred the executory gift, and the rules against perpetuity *262 would have been infringed (s) . Contingent remainders of copyholds were governed by the same [(») Or by the rale already noticed which forbids the giving of an estate for life to an nnborn person, with remainder by purchase to his issue. (o) Preston on Merger, 24G ; Badger v. Lloyd, 1 Ld. Eaym. 523 j Bac. Uses, 45, 46, cited Sand. Uses, ch. 2, v. 2. i (p) 1 Riiss. 394, n. ; Sugd. Law of Prop. 351 ; and see Doe v. Fonnereau, Dougl. 486. (q) But the devise might have been supported on a distinct ground : the testator referred to the settlement, and, though he misrecited it, he manifestly intended to devise his rever- sion, whatever it was. See Ch. XL. s. iii. 5. (r) The case would then have been similar to Cole ». Sewell. (s) BristowB. Boothby, 2 S. & St. 465; and see Morse v. Ormonde, 1 Russ. 382. VOL. I. 19 289 *263 BULB AGAINST PERPETUITIES. How far rules as contingent remainders of freeholds, except that the pticabie to"^ former were not liable to destraction by the owner of the copyholds, pj-evious estate (i!). The statute 8 & 9 Vict. c. 106, by de- priving the owner of a previous estate in freeholds of this power, hag removed the only point of difference between contingent remainders in lands of those tenures (u) . Contingent remainders (or, more properly, executory interests) of A different t™®* °' equitable estates are not governed by the same rule rule applies as contingent remainders of legal estates ; for they do not lim™atioM°" necessarily vest or fail upon the determination of the pre- bv way of re- yious estate, but await the happening of the contingency on mamderni , . , , ,■■-,, ^ ,,„.',. J ' equitable which they are limited (a;), and are therefore invalid if that interests. contingency be too remote (y). But, like executory devises, they are good after an estate tail, if limited on an event which must necessarily happen at or before the determination of that estate, e. g. a trust for a class to be ascertained at or before such determination (z). These considerations bear upon an observation which has been What is the ^ade (a) On the doctrine advanced in Cole v. Sewell (and ground of the the Same would apply to Doe v. Perratt), to the effect that Cole V. a contingent remainder limited after an estate tail is not gewell. ypiij Qji account of the remoteness of the contingency on which it is to arise. It is said that it was not necessary to the decision to lay down any such rule, since the remainder was preceded by estates tail, the owners of which might have barred it, and remoteness was thus obviated. But supposing this to have been the ground of the de- cision, it must have applied equally had the contingent remainder, together with the estates tail, been , equitable and not legal interests : for the remainder would then also have been barrable by the owners of the estates tail : and j^et if those estates had determined without being barred, the contingent remainder, — since it would not have failed, but would have waited for the happening of the event upon which it was limited (a period of indefinite duration), — must clearly have been ob- noxious to the rule against perpetuities, and therefore void ab initio. It is absolutely necessary therefore to assign some reason for the *263 * validity of the contingent remainders limited on a remote con- tingency in. the cases of Cole v. Sewell and Doe v. Perratt, be- sides that of their being barrable along with the previous estates tail. The validity of remainders limited on a remote contingency does not The question ^PP^ar to be affected by the act 8 & 9 Vict, c; 106, s. 8. whether a Under that act contingent remainders which would pre- remamOer' viously have failed through the determination by forfeiture, (t) Piokersgill v. Grey, 30 Beay. 352; so of estates /iKr mitre vie, ib. (a) Fearne, G. K. 320. he) Hopkins v. Hopkins, Ca..t Talb. 44, 1 Atk. 581; Chapman v. Blisset, Ca. t.Talb.l60. (y) Monypenny ». Dering^ 7 Hare, 568, 690. («) Heasinan v. Pearse, L. E. 7 Ch. 276. (a) See Appendix A.J 290 BULE AGAINST PERPETUITIES. *264 surrender or merger of ttie previous vested estate of free- Js^o'disnot hold by whick they were supported, are to take effect, not- I &Vviet'. withstanding such determination, in the same manner in all "=• ^'^i respects as if such determination had not happened ; that is to say, such remainders will still fail in any ease where they would formerly have failed if the previous estate had determined by any other than one of the modes mentioned in the act ; and consequently when the pre-saous estate determines by any of these modes, the contingent remainders depending thereon will be preserved only until the time when the pre- vious estate, if it had not been determined by one of these modes, would have determined in any other manner, and the contingent re- mainder must then take effect or fail. Neither is a remain- . , — nor by der limited on a remote contingency affected by the stat. 40 & 41 Vict. 40 & 41 Vict. e. 33, which enacts that every contingent "' ' remainder thereafter cheated, which would have been valid as a spring- ing use or executory devise, had it not had a sufficient estate to sup- port it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect as if the remainder had originally been created as an exec^ utory devise : for if the remainder had been originally limited as an executory devise, to take effect on the remote contingency, it would not have been valid.] The most frequent instances of the transgression of the rule against perpetuities occur in devises or bequests to classes, eompris- Most fre- ins either individuals who may not come into existence at quentiy oc- J' •' curnng cases all during a hfe in being and twenty-one years afterwards, of remote or persons who may not be in esse at the death of the testa- S'*'^" tor, and the vesting of whose shares is postponed beyond majorit3^ In the former case, the rule is fatally violated, even though the gift to the unborn objects is so framed as to confer on them vested interests imme- diately on their birth. An example of the latter kind is supplied by Dodd Gifts to an V. Wake (5), * where a testator bequeathed a sum of *264 to"vest after' 3,000^. unto and amongst the children of his daughter majority. M. M., " who shall be living at the time the eldest shall live to a;ttain the age of twenty-four years, and the issue of such of the children of his said daughter, as may then happen to be dead leaving issue," per stirpes. M. M. had three children living at the testator's death ; but the question was, whether the bequest was not void for remoteness, in- asmuch as all these children might die under twenty-four, and then the legacy could not vest in any child, until the expiration of twenty-four years and upwards after the testator's decease. Sir L. Shadwell said : (6) 8 Sim. 616 ; [and see Boughton p. Jamea, 1 Coll. 26, 1 H, L. Ca. 406 ; Griffith v. Blunt, 4 Beav. 264. But a gift to a class at a prescribed age includes none born after the eldest has attained the age; if, therefore, he does so in testator's lifetime, the gift is good, wJhatevQr the age prescribed. Picjten v. Matthews, 10 Ch. D. 264.] 2n *265 BTJLE AGAINST PEEPETUITIES. " The testator appears clearly to have intended, that only those children of his daughter should take who should be alive when the eldest child for the time being should attain the age of twenty-four, and, therefore, the bequest is void for remoteness." It is proper to remark that, in the class of cases under consideration. Distinction * limitation which would as an executory devise be void for in regard to remoteness, may be good as a contingent remainder, on ac- remamders. ^.q^jj ^f ^j^g necessity, which the rules applicable to contin- gent remainders impose, of its vesting, if at all, at the instant of the determination of the preceding estate for life. Such an estate, there- fore, if limited to a person who was in existence at the death of the tes- tator, necessarily restricts the devise within proper bounds. Thus if lands of which the testator had the legal inheritance be devised to A. for life, with remainder in fee to the children of A. who. shall attain the age of twentj'-two, the devise in remainder will be good, because if at the death of A. no child has attained the vesting age, the remainder will fail under the doctrine in question (c) ; and if anj' child has attained that age the devise will take eflfect in favor of such child to the exclu- sion of any child or children afterwards attaining the prescribed age(rf). [With respect, however, to equitable interests (and though the au- Rule differ- thorities extend only to equitable interests by way of re- ent with re- mainder in personalty, they must, it is conceived, equally equitable in- applj' to trusts of inheritance (e)), a different rule prevails ; terests. ^^ alreadj' stated, they await the happening of the event upon which thej' are limited, notwithstanding the determination *265 of the particular * estate. They are therefore void when that event is too remote ; and] the fact that some of the objects event- Gift of per- ually composing the class were actually born within the pe- Bonai estate riod allowed by the rule of law, will not render the gift whkh"may valid, quoad those objects. Thus, in Leake v. Robin- conipviseob- soh(/), where certain stock and moneys were bequeathed i6cts too V6— >/ A mote void as to W. R. R. for life, and after his decease, to the child or to all. children of the said W. R. R. who, being a son or sons, should attain the age of twenty-Jive, or being a daughter or daughters, attain that age, or be married with consent ; and in case the said "W. R. R. should happen to die without leaving issue living at the time of his decease, or leaving such, they should all die before any of them should attain twenty-five, if sons, and if daughters, before they should attain such age, or be married as aforesaid, then to the brothers and sisters of the said W. R. R., on their attaining twenty-five, if a brother (c) Fearne, C. R. 4. [Festing v. Allen, 12 M. & Wels. 279 1 Alexander v. Alexander, 16 C. B. 59. (d) Brackenbury v. Gibbons, 2 Ch. D. 417. See further as to contingent remainders of this Ifind since 40 & 41 Vict. c. 33, post, Ch. XXVI. (e) See Blagrove v. Hancock, 16 Sim. 371; Walker v. Mower, 16 Beav. 365, where, how- ever, the trust was executory.] (/) 2 Mer. 363. 292 B0LE AGAINST PERPETUITIES. "*266 or brothers, and if a sister or sisters, on such age or marriage as afore- said. It appeared that five of the brothers and sisters of W. E. R. were born before the testator's death, and it was contended, therefore, that the bequest, though confessedly void as to those born afterwards, was good as to these objects ; for that no case had gone the length of deciding, that persons who are capable of taking under a will, should not take, merely because they are joined in a bequest with others who are incapable; but Sir W. Grant, M. R., held, that the bequest was void as to the whole, observing, with his usual fehcity: "The be- quests in question are not made to individuals, but to classes ; and what I have to determine is, whether the class can take. I must make a new will for the testator, if I split into portions his general bequest to the class, and say, that because the rule of law forbids his intention from operating in favor of the whole class, I will make his bequests what he never intended them to be, viz. a series of particular legacies to particular individuals ; or, what he has as little in his contemplation, distinct bequests, in each instance, to different classes, namely, to grandchildren living at his death, and to grandchildren born after his death." (^).i * And even if all the members of the class had happened to be *266 born during the life of the tenant for life, or even in the lifetime of the testator himself, the gift would nevertheless have been abso- lutely void, as it is an invariable rule that regard is had to possible not actual events, and the fact that the gift might have included objects too remote is fatal to its validity, irrespectively of the event. ^ Where the testator has combined with the remote class a living per- son in such a manner as to constitute him a member of the Gift to a class class, the gift to him cannot be distinguished from, and n^'jli^dpfr* therefore shares the fate of, the gift to the other intended son. objects with which it stands blended and associated (A) . [This eonclu- [(g) The books abound with cases in which the decision in Leake v. Eobinson has been followed; it will be sufficient to refer to some of them, Judd ii. .ludd, 3 Sim. 525; Newman v. Newman, 10 Sim. 51 ; Comport v. Austen, 12 Sim. 218 ; Ring v. Hardwick, 2 Beav. 352 ; Bull v. Pritchard, 1 Russ. 213, 5 Hare, 567; Vawdry v. Geddes, 1 R. & My. 203; Southern v. Wol- laston, 16 Beav. 166; Merlin v. Blagrave, 25 Beav. 125; Pickford ». Brown, 2 K. & J. 428; E»ad V. Gooding, 21 Beav. 478, 4 D. M. & G. 510; Rowland v. Tawney, 26 Beav. 67 ; Smith V. Smith, L, R. 5 Ch. 342, referred to below.] (A) Porter v. Fox, 6 Sim. 485. l.See Caldwell v. Willis, 57 Miss. 555. Loring v. Blake, 98 Mass 253; Brattle Sq. 2 The same principle prevails in this Church v. Grant, 3 Gray, 142. The fact, country, that, in applying the rule against however, that the testator has given an estate perpetuities, regard is to be had to possible, to trustees which may come within the pro- not to actual, events ; and the fact that the hibition of perpetuities is not fatal, if the limitation might have included objects too cestuis que trust have the right to terminate remote is fatal. Donobue v. Mcl^ichol, 61 the trust and alienate before the period of Penn. St 73: Brattle Sq. Church u. Grant, 3 remoteness begins. Levering v. Worthing- Grav, 142. 153; Sears e. Russell, 8 Grav, 86, ton, 106 Mass 86; Bowditch v. Andrew, 8 97;'Whelan ». Reill)-, 3VF. Va. 597; Amory Allen, 339; Otis v McLellan, 13 Allen, 339. e. Lord. 5 Seld. 403; Hawley v James, 16 And this appears to be true though the ter- Wend 61, 120. The gift must be framed so mination of the trust may require the consent as to take effect fs »eces»tte(e within the period of the trustees. Levering ». Worthington, allowed. Sears v. Putnam, 102 Mass. 5; supra. 293 *2^7 KtJL-E AGAINST PEEPEtTJITIBa, sion was questicJned by a learned judge (j), who thooght the gift to the Jiving person, when associated with a gift to al " cias&" (all to take as tenants in common) , ought not to fail any mor'e than it would if it had been associated with a gift ijo other named individuals to take with him ais tenants in common. But the conclusion seems inevitable : for in the former case the share of the living person codld not be ascertained bat by reference to' the number of members ultimately included in the class ; and this could not be known within due limits. This it was that made the living person one of the class, subject to all the cOnditicins that ap- pertained to that character. Leake e. Robinson shows that it is not the description of the' legatees as children or grandchildren that consti- tutes them a class, but the mode and conditions of the gift. Sir W. Grant there observed (f), thait supposing the distinction made (aS was there attempted) between persons capable and persoiis incapable, there was still the difficulty of adjusting the proportions in which the capable diildren were to take, and in determining the manner and the period of ascertaining those proportions. Where this difficulty does not exist, the rule in Leake v. Robinson Void as to does not generally apply. Thus in Storrs v. Benbow(^), wh^reThe' where the testator beciueathed 500^. to each child that might amount Of be born to either of the children of either of his brothers, it Iscerteined was decided by Lord Cranworth that the gift was valid as t6 within legal ^g children of nephews who were born in the testator's life- limita. Storrs V. Ben- time, and void as to the children of the other nephews, bow. #267 He said it was a * mistake to compare the case- with mlj' wiiere* , Leake v. Robinson. The legacy givefi to one of the sKafes asoer- former set of children could not be bad because there was a within the legacy given under a similar description to a person who period. wouM nOt be able to take because the gift was too remote. Again, in Griffith v. PoWnall (I) , A. had a power to appoint among Griffiths. all the children of B., begotten and to be begotten, Pownail. j^Q^ their issue ; and in default to the children equally. All the children that B. ever had (six in number) were born at the time of the creation of the power, and A. appointed that the share which each child of B., begotten and t6 be begotten, was entitled to in default of appointment, should be held in trust for that child for life, and after its death for its children. Sir L. Shadwell, V. C, held the appointment valid. He said that, if the gift be of the bulk of the property amongst a set of persons collectively, some of whom are within the rule of law as to perpetuity, but the rest of 'them are not, the gift is void in toto. That in the case before him the gift was not of the bulk of the fund, [(i) Per Stuart, V. C, JameS ft Lord Wynfortj 1 Sm. & Gif. 58, 69. If the gift were in joint tenancy, Would the whole fund accrue to the mdividXial V (_/) 2 Mer. 390. (k) 3 D. M. & G. 390. See also Wilkinson ft Duncan, 30 Beav. Ill, as to tlie legacies of 2i000<. ; fts to the residue, the case was like Leake v. Robinson. (/) 13 Sim. 393. 294 BULE AGAINST PEEPBTTTITIES. *268 but the testator merely directed bow the share of each daughter Should go after her death. If there had been a seventh or eighth daughter, the gift would have been bad as to their ehildrep ; nevertheless the gift to the elder children would have been good. The distinction was disregarded in Greenwood v. Eoberts (m) , where the testator bequeathed personal property upon' trust, among other things to pay his brother Thomas an annuity of 200/. Roberts, a year, and after his decease to pay the same to and amongst '™*™- Such of his children as might he then living in equal shares during their Respective lives, and at the decease of any of them, he ordered, that so much of the principal or capital stock as had been adequate- to the pay- ment of the annuity to which the child so dying had been entitled dur- ing his or her life, should be sold, and the produce thereof divided equally amongst the children of him or her so dying, when they should severally attain the age of twenty-one years ; he gave theni vested interests therein ; and further directed that if any of the children of his brother Thomas should at his (Thomas's) death be dead and have left issue, Such issue should be entitled among them to the same sum as the}' would eventually have been entitled to had their parents survived Thomas. Thomas survived the testator, and left a son Richard, who was alive at the death of the testator ; but it was held by Sir J. Romilly, M. E. , that the * children of Richard could not take. *268 He said, " The gift is, in the first instance, distinctly to a class, namely, to such of the children of his brother Thomas as may be then living, and Richard takes a life interest in that bequest solely in his character of one of those children. The gift over after the decease of those children is not confined to such of the children of his brother as should be alive at the testator's decease, and nothing points to Richard more than any other child of Thomas, who might be born after the death of the testator. I am of opinion that I must, upon the expres- sion Used by the testator, treat ' the children of him or her so dying ' as another class, and that I cannot, because the testator has directed that on the death of Thomas the fund is to be equally divided between such of his children as shall be then alive, treat the bequest as if it had been a separate set of bequests to each of such children as eventually con- stituted the class ; and therefore, in my opinion, he has given this annuity to a class to be ascertained at a future period, and after the death of each of the persons constituting that class to another class, some of whom are prohibited by law from takings by reason of the rule against perpetuities. If I am correct in this view, the rule in Leake v. 'Robinson must apply. I am of opinion that Richard is neither men- tioned nor individually described in the will as a person taking (to use Lord Cottenham'S expression, in Roberts v. Roberts (m)) a separate and individual portion of the annuity bequeathed to Thomas, but that he takes it as one of a class, and that his children intended by the teS- (m) 15 Beav. 92. (m) 2 PMU. 53i. 295 *269 EULE AGAINST PERPETUITIES. tator to take after his decease, are persons forming part of a class, some of whom are precluded from taking, and consequently that the gift over after his decease is void." But Leake v. Robinson appears not to justify the use here made of Remarks on ^^^ word " class." The grandchildren were not all of one Greenwoods, class ; there were as many separate classes of grandchildren as there were children of Thomas, and although to save repe- tition the gifts to all these classes were included in one set of words, the gift to each of, them was wholly independent of the gifts to the others, its amount having been finally ascertained at the death of Thomas, when the number of his children who survived him or prede- What consti- Ceased him leaving issue was known. A number of persons tutesagiftto are popularly said to form a class when the3' can be desig- nated by some general name, as "children," "grandchil- *269 dren," *' nephews ; " but in legal * language the question whether a gift is one to a class depends not upon these considerations, but upon the mode of gift itself, namely, that it is a gift of an aggre- gate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons. Thus a bequest of 1,000/. to the children of A., the eldest child to take one moiety, the younger children the other moiety, is, in ordinary language, a gift to one class of persons, namely, children ; in the legal accepta- tion of the words it is a gift partly to an individual, namely the eldest child of A., and partly to a class, namely, his younger children. On the other hand, a gift to A., B., and C, and the children of D., share and share alike, may, legally speaking, be a gift to a class (ra), but yet these persons would not in the ordinary acceptation of the term form a class. Moreover, under a gift to a class, if any of the class take, they take the whole ; the subject of gift can never, therefore, be partly disposed of and partly undisposed of; this shows that the grandchildren in Greenwood v. Roberts did not take as a class, for supposing the gift valid, the children of one child of Thomas would have taken part of the fund, while another part would have been undis- posed of if another child of Thomas had no children. The principle of GriflSths v. Pownall prevailed in Cattlin v. Brown (o), Cattlin ». where a testator entitled to the equity of redemption in lands, hclTvoicUn'^ subject to a mortgage in fee, devised them to T. B. C. for part only. life, with remainder to all and every his child and children (ra) Porter v. Fox, 6 Sim. 485; see also Clark «. Phillips, 17 Jur. 886; Re Stanhope's Trusts, 27 Beav. 201; Knapping ». Tomlinson. 34 L. J. Ch. 7; Aspinall v. Duckworth, 35 Beav. 307. Re Ann Wood's Will, 31 Beav 323 (as to the lapsed share), and Drakeford v. Drakeford, 33 Beav. 46 are contra: sed. m., and as to the last-named case see 9 Jiir. N. S., Pt. 2. 301. In Re Chaplin's Trusts, 33 L. J. Ch 183, it was admitted by Wood, V. C, that naming some of a class did not make it less a class ; yet he held that the named person having died before the testator his share lapsed : which seems contradictory. (o) 11 Hare, 372. See also Vanderplank ». King, 3 Hare, 1. 296 BtTLE AGAINST PERPETUITIES. *270 daring their natural lives if more than one ; and after the decease of any or either of such child or children then the part or share of him, her, or them so dying was given to his, her, or their child or children lawfully begotten, or to be begotten, and to his, her, or their heirs as tenants in common. T. B. C. left several children, some born in the testator's lifetime, some after his death ; and it was held by Sir W. P. Wood, V. C, that the shares of the children born in the lifetime of the testator were well given to their children though the gift to the other * grandchildren failed. He thought Greenwood v. Roberts was *270 distinguishable because " the children of the brother who Explanation were born and in esse at the death of the testator, might all °fKote"ts°by have been dead at the death of the brother, and the case Wood, V. c. therefore fell within the rule in Leake v. Robinson. It was a gift to a class, and all the members of the class might be persons without the limits. The children born at the testator's death might take no interest whatever. On this ground the decision in Greenwood v. Roberts was no doubt perfectly right." And he intimated that the case before him might have been similar if the devise had been to the sons of T. B. C. living at his decease, with remainder to their sons in fee. Sir R. Kindersley said {p) he was unable to see the distinction here referred to : it appeared to him that in Cattlin v. Brown pre- Remarks clsely the same observation would arise, and that it would Kjn'^ersley be equa% true that all the children of T. B. C. that were V. C. born and in esse at the death of the testator might die in the lifetime of T. B. C. He did not see how the observation or the ground of distinction applied ; and it struck him Jhat the same reason which was given in support of Greenwood v. Roberts would have Explanation required Cattlin v. Brown to be decided in the same way. of "j^®"p ,^ It must also be observed that the M. R. himself declared (q) erts by Rom- that the gift to grandchildren in the latter case would un- '"y- ^- ^• doubtedly have been good if the class was to be ascertained at the death of Thomas ; and he referred his decision to the clause which sub- stituted the issue of any child of Thomas who should die before Thomas, in the place and to take the share of their parent, and to the fact that such issue took no vested interests until they attained twenty- one, so that if the children of Thomas who were living at the date of the will died before Thomas and left children who died under twenty- one leaving remoter issue, it would not be until these remoter issue attained twenty-one that the class would be ascertained, or the number of shares ascertained into which the fund would be divisible, and this would be too remote. This was a new ground. It was not taken in the case itself; doubtless because the substitution clause said Eemarka nothing about the age of twenty-one. But if this clause is to thereon. be understood as so referring to the previous gift to grandchildren in (p) Knapping v. Tomlin.son, 34 L. J. Ch. 3. (2) See Webster v. Boddington, 26 Beav. 136. 297 *2t2 KtTLE AGAINST PEEPETUlTIBg* remainder, as to import into itself the mention of that age, So *271 also must it be deemed to import the declaration that the * inter- ests given were "vested." Besides, the intermediate interest Was given for the benefit of the graudohildren during minority. The distinction already noticed as having been taken by Sir W. Wood Wilson 01 regai'ding Greenwood v. Roberts, was disregarded by him in frft^h^id Wilson v. Wilson (r). The bequest there was of a sum of void in part money Upon trust to pay the income to the testator's wife only. during her life, and after her death in trust for the then present and future children of I. L. who should be living at the death of the testator's wife, and who should attain the age of twenty-one or marry, in equal shares j and the testator directed that the shares of each daughter should be settled upon trust for her for life, and after her death for her childrea. Sir W. Wood decided that the trust in favor of a child of a daughter who was living at the death of the testator Was valid. He said, " I can conceive no ground why in respect of a child of I. L. in esse at the time of the testator's decease there should not be a direction that her share should be settled on her children. In Porter V. Fox («) and that class of cases the diflSculty arises from their being a gift to a class of persons some of whom can take whilst others cannot. In these cases it cannot be ascertained what is the share of each, and hence the gift is held void as to all. Here, however, the children Of each child of I. L. form a separate class, and the share of each class is separatelj' ascertainable." Cattlin V. Brown was followed by Sir R. Kifidersley in Knapping v. Knapjiing v. Tomlinson (<) , ■vihere the devise was identical in its terms TomTinson. ^^j^ ^^^ j^ ^j^g former case. The V. C. reviewed all the void in part Oases, and expressed his entire concurrence with Sir Wi only. Wood's decision. Sir J. RomiUy, having also declared {u) his approval of that decision, and having referred his own decision in Greenwood li. Roberts to grounds which, at all events, remove it from apparent opposition to the other authorities (a), it must be taken as settled that where the shares of all the separate stocks can be ascer- tained within legal limits, as in those authorities, the rule in Leake «*. Robinson is not applicable so as to defeat limitations, otherwise valid, of the separate shares. Neither does the rule extend to cases where, in the event of the death of any of the original class, another class is substituted ISoteSftis ^° ^® ^^^' '^^°®' ^ * ^'^"^ is bequeathed to the children substifa- of A. (a person living at the testator's death), and Itonefaih. *272 if any of them * should die before the period of dis' tribution (e. g. before attaining the age of twenty- >) 4 Jur. N. S. lore, 28 L. J. Ch. 95. ' ^ Sirii 485. 34 L. S. Ch. 3, 10 Jur. N. S. 626. in Webster v Boddington, 26 Beftv, 137, 188. Arnold v. CJoagrave, 1 K. & My. 205 (where the point was not taken) is overruled. 298 EtTLB AGAINST PEEPETUITIES. *273 one) his share is given to his issue, to vest in them at twentj'-oiie ; here the substituted gift to issue of a child born after the testator's death is obviously too remote, and the child's share remains undisturbed j but the substituted gift to issue of a child born in the testator's lifetime is vahd, for the fund is, in any event, to be divided into as many shares as there are members of the original clasSf i. e. children of A. ; as in Wilson V. Wilson, the issue of each child of A. forms a separate class, whose share is separately ascertainable (y) . On the other hand, if the gift to the issue is not substitutional but original and concurrent with that to children, as, if the be- otherwise quest be to such of the children of A. as attain twenty-one, where it is and the isstie who attain twenty-one of such of the children ™"'=""^°'- of A. as die tinder twenty-one, per stirpes. Here they all form. but one class, the share of no one of whom can be finally ascertained without reference to the shares of all the others* And as some of this class maj'' obviously not be ascertained within a life in being and twenty-one years, the whole gift fails («). It is true that, according to the terms of the gift, the minimum share of each would be ascertained within a life in being (i. e. the life of A.) and twenty- one years after. But the maxi- mum would remain uncertain until it was seen whether the issue of any child dying under age and leaving issue did or did not attain twenty- one, which would clearly be beyond the legal period.] The doctrine that the vahdity of a gift is to be tried by possible not actual events is, of course, applicable no less to gifts to individ- uals than to gifts to classes. If, therefore, the devise * or be- *273 quest be in favor of an unborn person, who may not answer the required description within a life and twenty-one yeats, it will be Void, although a person should happen to answer the description within such period. Thus, if a testator give real or personal estate to an unborn person, who shall thereafter happen to acquire some personal- qualifica- tion, which is attainable at any period of life, and is not necessarily confined to minority, as in the case of a gift to the first son of A. who shall obtain a commission in the army, take a degree at the ttniversity, (y) Packer v. Scott, 33 Beav. 511, appears to be a case of this kind ; but the report is very llft'peTfect. The (Jiiestion whether a gift is original or substitutional is not peculiar to the subject of remoteness. It is dealt with, post, Ch. XXX. s. 3. See also Ch. XLIX. s. 1. One .example will here be useful. In Stuart v. Cockerel!, L. R 5 Ch. 713, the bequest was to S. for life, remainder to his' eldest son for life, remSiftd'er to E. for life, artd after the death of the survivor of the tenants for life "to the children of S. share and share alike if more than one, and if but one, then to such one child and the cWM oi* childrefi of such of the children of .S. as shall be th6n dead, according to the Statute of Distribution! but in case there shall be no child or grandchild of S. then Rving, then " over. At the death of the testatrix S. had no child. Without the gift oVer this *rould have been » vested gift trt the children of S., with a Substitutional gift to grandchildren (Re Bennett's Trusts, 3 K. & .J. 280 j Baldwin ». Rogers, S i). M. & Q. 649) ; but the gift over was held to show that no children of S., except such as were living at the period of distribution, were objects of the gift, and that the children then living and the children of such of the children as were then dead formed one class. (sO Smith*. Smith, L R. 5 Ch 342; Stuart ». Cockerell,stiprai Seaman v. Wood, 22 BeaV. 691; Webster*. Boddington. 26 Beav. 128; Hales. Hale, 3 Ch. D. 643; Bentinck tf. Dukp of Portland, 7 Ch. D. 693. In Re Moseley's Trusts, L. R. 11 Eq. 499j 502, it was overlooked that issue as well as children were required to attain twenty-one : this made the whole gift void. 299 *274 ETJLE AGAmST PERPETUITlEa. or marry (a) , it is conceived that the gift would be void, even though A. should happen to have a son who should answer the required qualifi- cation before the age of twenty-one. [Thus, in Lord Dungannon v. Smith (6) , where a testator devised Lord Dun- leaseholds in trust for his grandson A. for life, and after his gannon v. death " to permit such person who for the time being would take by descent as heir male of the body of his said grand- son to take the profits thereof until some such person should attain the , age of twenty-one years, and then to convey the same unto such person so attaining the age of twenty-one years " absolutely, with a gift over "if no such person should live to attain " that age. The eldest son of A. attained twenty-one in his father's lifetime, and claimed the prop- erty as having, in event, vested within legal limits. He contended that the devise might be read as containing separate gifts, to the eldest son, if he attained twenty-one, if not, to the first other heir male who should attain that age ; but it was held otherwise, for there was no gift to the eldest son, except as one of a set or series of persons, any one of whom might come within the description, whether he was within the limit or not, and there was no authority for moulding or splitting the bequest in the manner proposed. The case was considered to be analogous to Leake v. Robinson. Again, in Hodson v. Ball (c) , a gift over of a share of any chQd of the testator, in case of failure of its issue at -any time during the life of the child's husband or wife, was held void ; since the husband *274 or wife might be a person not born at the * testator's death, and might survive the child more than twenty-one years, and the gift over would thus take effect after the expiration of a life and twenty-one years. Again, where freehold lands are limited in strict settlement, and Vesting of leasehold or other personal property is vested in trustees, personal prop- upon corresponding trusts, but so as not to vest absolutely in strict set- in any tenant in tail till he shall attain the age of twenty-one norbTd""*' years, but on his death under age to devolve as the freeholds, ferred till any this trust, SO far as it is limited in favor of tenants in taU, tafut'tains is void, since by the death of successive tenants in tail under twenty-one. age and leaving issue the vesting of the leaseholds might be deferred beyond the period allowed by law. Care should therefore be taken that the vesting is only deferred till some tenant in tail by purchase attains the age of twenty-one years {d) . Similarly in all cases where (a) To these mav be added the case of a giit to the first son of A. who shall be in holy orders (as in Proctor v. Bishop of Bath and Wells, 2 H. Bl. 358), for although such orders are never conferred on any one under the age of twenty-three, yet A. may have a son who is qualified and takes orders in his lifetime. (i) 12 CI. & Fin. S46, 10 Jur 721, Sug. Law of Prop. 342, and see Ibbetson v. Ibbetson, 10 Sim. 496, 5 My. & Cr. 26 ; Wainman «. Field, Kay, BOTi also Merlin v Blagrave, 25 Beav. 126 ; and cf HarVev v. Harvey, 5 Beav 134. (c) 14 Sim 558." See also Lett ». Randall, 3 S M. & G. 83; Buchanan v. Harrison, IJ. & H, 665 ; Re Merricks' Trusts, L. R. 1 En 561. (d) This is the common form, Davidson's Conimon Forms, p. 216. If the clause stops 800 RULE AGAINST PERPETUITIES. *275 under a deed or will a strict settlement Is created, and (as is usually done) power is given to the trustees during the minority of any person entitled under the settlement to manage and let the property and receive the rents and profits (e), or to cut timber and sell it (/), and invest the moneys arising thereby in the purchase of other lands to be settled to the same uses, the exercise of these powers must be carefully restricted to the period of the minorities of tenants in tail by purchase, else the powers will be altogether void (g) . * The invalidity of such trusts admits, however, of one ex- *275 short with the proviso against absolute vesting, and omits the concluding gift over, remote- ness is avoided without help of the words "bj- purchase." For then there is no gift of tlie personalty except in the primary trust, and under this trust it vests absolutely in the lirst tenant in tail by purchase: and the proviso, being but an accessory to that, must be con- strued also to relate only to tenant in tail by purchase, Christie «. Gosling, L. R. 1 H. L 279 ; Martelli v. Holloway, L. R. 5 H. L 532. According to this construction, however, the inten- tion to keep the two species of property together as long as possible fails. The concluding gift over is required to efEectuate this intention, and as this gift contains trusts for tenants in tail taking by descent, the rule of construction established in Christie v. Gosling is inapplicable, and the words "by purchase" are needed to obviate remoteness; see Gosling v. Gosling, 1 D. J. & S. 16. See further on this subject, post, Ch. XLIV. s. 3. (e) Lade v. Holford, 1 W. Bl. 428, Amb. 479, Fearne, C. R. 530, n.; Browne v. Stoughton, 14 Sim. 369; Scarisbrick v. Skelmersdale, 17 Sim. 187; Turvin v. Newconibe, 3 K. & J. 16; Floyer v. Bankes, L. R. 8 Eq. 116 (where, however, the powers were annexed to an anterior term). (/) Ferrand v. Wilson, 4 Hare, 373. (g) Observations on Browne v. Stouyhton. — Mr. Lewis, in the supplement to his work on Perpetuities, doubts the correctness of the decision in Browne «. Stoughton, conceiving that such trusts are, like executory limitations engrafted on an estate tail, barrable along with the estate tail, and therefore not void for remoteness. But the trustees clearly have an actual estate in the lands, which estate is not subsequent or collateral, but anterior to the estate tail, and the trusts declared cannot therefore be affected by any act of the tenant in tail. This is clear from Marshall v. Holloway, where there was no terra anterior to the estate tail, nor was the destination of the accumulated fund (if made) too remote, being identical with that of the general personalty, thi; gift of which was held good. The sole ground of the determination therefore was, that the trust for accumulation could not be split or severed, so as to place pai-t before the first estate tail (which would be neither too remote nor barrable), and part after (which would be too remote if it were not barrable). The whole was an entire limitation, and must stand or fall together. " The other was the better view, but the point is now well settled." Sug. Law of Prop. 349. K in Browne v. Stoughton the trust had been barrable along with the estate tail some startling results would follow. Suppose, for instance, tliat instead of an accumulation being directed during minority, it had been directed during the first twenty-one years after the testator's death to raise money for pajnnent of legacies, it must follow tfiat the* tenant in tail, if of full age, could bar the trust, an'd deprive the legatees of their legacies. Browne v. Stoughton caimot therefore be distinguished from Lord Southampton ». Marquis of Hertford, 2 V. & B. 54, on the ground that, in the latter, a term was created anterior to the estate tail ; indeed Lord Eldon, in Marshall v. Holloway, 2 Sw. 445, expressly said that that made no difference. See also 3 Jur. N. S. pt. ii. 181. Mr. Sanders went even further than Mr. Lewis ; in an opinion (Sanders on Uses, 5th ed. p. 203, n.) he says, with respect to Lord Southampton v. Marquis of Hertford: "It is not easy to discover the ground of the decision, but it is to be observed that the term of 1,000 years preceded the limitations in tail; and it seems to be inferred that a recovery by tenant in tail, subject to the term, did not destroy the preceding trusts of the term. If this be the case, there is a great fallacy in the inference ; for the trusts of a term created for the purposes of a settlement, must follow the ultimate devolution of the inheritance, and not the inheritance the trusts of the term. A recovery by tenant in tail would acquire the fee-simple, and render the term attendant on the inheritance discharged of the trusts for accumulation." But Case v. Drosier (ante, p. 259) shows that Mr. Sanders' opinion does not represent the accepted view of the law on this point. In Meller v. Stanley, 2 D. J. & S. 183, where one having freeholds for lives devised his real and personal estate to trustees, and directed them to keep up the policies on the existing lives (which he had insured ), and from time to time to renew the lease and insure the new lives ; and subject as aforesaid he gave the propert3' to A. for life, remainder to his first and other sons in tail, &c. : Turner, L. J., said he was not satisfied that the trust could (as was contended) be held valid as to renewal on the dropping of existing lives, and invalid (for remoteness) as to others; he thought, however, it was valid as to afl, since there must necessarily be a person who within tha lawful period would have absolute command over the estate and consequently over the trust. 301 *276 ECXB AGAINST PEEPETTJITIES. ception, namely, where the fund arising therefi-om is to be applied Rule against in discharge of incumbrances affecting the estate (A), for S^'^^ n°r^' then they only prescribe a particular mode of paying the ply to accu- incumbrances, which, in case of a mortgage, the incumbran- pay^ut of" '^^ himself might adopt by entering into receipt of the rents aebts. and profits, and may at any time be put an end to, either by the owner paying the incumbrance, or the incumbrancer enforcing his claim against the corpus of the property ; thus there is no restraint o,n alienation. As the payment of all the debts of a testator can now be enforced out of his real as well as his personal estate, there seems, on the principle above noticed, ijo reason at the present day to doubt the validitj'^ of a trust for the accumulation for any period, however long, of the income of aU or any part of a testator's property, whether real or personal, for the purpose of paying his debts («').] *276 * A testator is in less danger of transgressing the perpetuity rule, whilst providing for his own children and grandchildren, Astoprovi- than when the objects of his bounty are the children and ^'rand hil- grandchildren of another, since, in the former case, he has dren. only to avoid postponing the vesting of the grandchildren's shares beyond their ages of twenty-one years, and then the fact of the gift extending to after-born grandchildren would not invalidate it, be- cause all the children of the testator must be in esse at his decease, and their children must be born in their Ufetime, so that, they necessarily come into existence during a life in being. On the other hand, a gift embracing the whole range of the unborn grandchildren of another liv- ing person would be clearly void, though the shares should be made to vest at majority or even at birth, for the grandfather might have chil- dren born after t;he testator's decease ; and as the gift would extend to the children of such after-born children, it would be absolutely void for remoteness, and that, too, according to the principle already laid down, without regard to the fact of there being any such child or not. Of course a testator may so frame and mould his disposition as to make its validity depend on subsequent events ; or, in other mould his words, avail himself of the course of circumstances posterior dispositjon ^ ^jjg jnajiing of his will, in order to get as wide a range of subsequent postponement as possible ; for instance, he may convert the events. intended estate tail of a person then unborn, into an estate for life in case of his happening to come in esse in his (the testator's) lifetime. In all cases of failure under circumstances of this nature, the deiiciency is one not of power but of expression ; and the question in every instance is, whether the testator has clearly shown an intention to (ft) Lord Southampton ». Marquis of Hertford, 2 V. & B. 54, see p. 65 ; Bateman v. Ho.tch- kin, 10 Beav. 426; Briggs v. Earl of Oxford, 1 D. M. & G. 363, and see Bacon v. Proctor, T. & R' 40. In tlie two first cited cases there was a preceding term, so that it is absolutely necessary to refer them to this special ground. See also Gilbertson ii. Kichards, 5 H. & N. 453. (j) Tewart v. Lawson, L. E. 18 Eq. 490.] 302 ETTIiB AGAINST PERPETUITIES. •277 take the most ample range or period of postponement, whieh subsequent circumstances admit of. A point of this kind was Toiiemache much canvassed under the will of Lord Vere {k) , * who *277 «, Earl of bequeathed to trustees all his household goods, furni- "^^ "^^' ture, pictures, books, linen, &c., upon trust to permit his Devise to a wife to have the use of them during her life, and, upon her P«r\™ ^J"» ° 7 5 r might not an- death, to permit his son A. B. to have the use of the same swer a certain goods, &c., for his life, and, upon the. decease of the sur- ^"Jftin^ai-™ vivor of his (the testator's) wife and son, in trust for such ^o-waA period, person as should from time to time be Lord Vere, it being respeetiTejy' his will that the goods, &c., after the decease of his wife, of event. should from time to time go and be held and enjoyed with the title of the familj-, as far as the rules of law and equity would permit. At the death of the testator, the title of Lord Vere descended upon his son, the legatee for life, upon whose decease it descended to his son (the testator's grandson, who was also living at the death of the testator) , and, upon the death of the grandson, it descended to the testator's great-gi-andson, who was born after the death of the testator. The chief struggle was between the personal representatives of thd^grand- son and those of the great-grandson. As the former was born in the testator's lifetime, it was clear, that he mic/ht have been made legatee for life, with remainder absolutely to the person next in succession, and the question, therefore, was, whether the will authorized such a construction. Sir J. Leach, V. C, before whom the case was origi- nally brought, decided in the affirmative; his Honor observed: "He gives to such person as shall from time to time be Lord Vere, because his purpose is, that the enjoyment shall be continued with the title of the family, as far as the rules of law and equity will permit ; in other words he gives to such person as shall from time to time be Lord Vere, with a declaration that each Lord Vere, in succession, shall take the use and enjoyment until there be a Lord Vere who cannot, by the rules of law and equity, be confined to the use and enjoyment only (t) . This (k) Lord Deerhurst ». Duke of St. Albans, 5 Mad. 2-32; S. C. in D. P. nom. Toiiemache V. Earl of Coventry, 2 CI. & Fin, 611; 8 Bli. 547 ; compare this case with Tregonwell v. Syd- enham, 3 Dow, 194, where a testator, after devising lands (subject to certain terms for years which he created for the purposes thereinafter mentioned) to A. for life, remainder to his iirst and other sons in tail male, with remainder to the eldest daughter of A. in tail general, with remainders over, directed that when a certain sura of money should be raised out of the rents of his lands under a term of sixtj' year.s,* the same should be settled to the use for life of the person who happened then to be entitled in possession under the liniitation in his will, with remainder (in effect) to his issue in strict settlement. When the time arrived for laying out the money, it happened that the person entitled in possession under the limitation in question was not vn esse at th^ testator's death, and therefore could not be made tenant for life with remainder to his issue ; but the grounds on which Lords [Redesdale and] Eldon rested the decision of the house show that if the person entitled in possession had happened tobe a per- son in esse at the testator's death, the trust for laying out the money would in their opinion have been legal. See the will stated at length, post, Ch. XVIII. s. 2. (I) In order to render the several positions in the text consistent with the actual rule of law. we must add in each instance, " ws'iA remntnc^er to the next accessor ;" for the legal prohibition is not tp the giving a life-interest to an unborn person, but to the engrafting on * This was before the Thellusson Act, post, s. 3. 303 *278 EtTLB AGAINST PERPETUITIES. declaration, therefore, is nothing more than a legal qualification of the prior general description of his legatees, and the effect is the same as if the will had been in the following form : ' Upon trust for such per- son as shall from time to time be Lord Vere, it being mj' intention that the absolute interest shall not vest in any Lord Vere, who *278 may, by the rules of law and equity, be * limited to the use and enjoyment only ' (m) . In this view of the case, there is a direct gift, and nothing executory. By the rules of law and equity, every person living at the death of the testator, who should become Lord Vere, might be limited to the use and enjoyment only (m). The son and grandson of the testator were living at his death, and both, therefore, limited to the use and enjoyment only (m) ; but the child who suc- ceeded the grandson as Lord Vere and Duke of St. Albans, was not living at the death of the testator, and could not, therefore, by the rules of law and equity, be limited to the use and enjoyment only (m). He took, therefore; an absolute interest, which is now vested in his personal representative." [This judgment was affirmed by Lord Lyndhurst, but was reversed in D. F. on the advice of Lord Brougham, C. He admitted that the testator might lawfully have limited the chattels to go according to the decree of the V. C. if he had used the proper words ; but first he said there was no authority' for putting that construction on the words used ; and secondly he took a new objection, founded on the bequest being an attempted annexation of chattels to an honor ; which he described as an attempt to create a new species of limitation in succession, unknown to the law, to spring up with the person, i. e. to the Lords Vere who- ever they might be ; and he mentioned certain contingencies, especially a possible abeyance of the honor, which, in his opinion, showed that there might be no one to answer that description within the allowed period : and although none of those contingencies had happened, the soundness of the limitations could not depend on the event. Lord St. Leonards has criticised this judgment (n) , and has adduced authorities to show that chattels may be limited to go along with an honor ; and with regard to the question of construction (which is of the greater interest here), he distinguishes between a compendious limitation to several persons successively, where the legal limit can clearly be marked, as in Lord Vere's will, and- a limitation like that in Lord Dungannon v. Smith, where only one person was to talie, and it depended on the event whether the person who lived to answer the description would or would not come in esse within the legal period. He thought Tregonwell v. Sydenham a grave authority for giving effect to such a limitation as that in Lord Vere's will as far as the events would allow, keeping within the legal boundary.] such life-interest a remainder over to the issue of such person, or any other unborn person. Vide some remarks on this point, post, p. 279. (m) See last note. [(n) Law of Prop. 336.] 304 RULE AGAINST PERPETUITIES. *280 * If the objects of a future gift are within the, line *279 prescribed by the rule against perpetuities, of course born person it is immaterial what is the nature of the interest which such *°'' '''^ ™''''' gift confers (o). It would be very absurd that persons should be com- petent to take an estate in fee in land, or an absolute interest in per- sonalty, and nevertheless be incapable of taking a temporary or terminable interest (for the larger includes the less), and yet it would not be difflcult to cite dicta, nay, even to adduce a decision {p), pro- pounding the doctrine, that a life-interest cannot be given to an un- born person. The fallacy has probably arisen from the terms in which the general rule has been ordinarily laid down, namely, that j'ou cannot give an estate for life to an unborn person, with remainder to his issue, which has been read as two distinct propositions, the one affirming the invalidity of a limitation for life to an unborn person, and the other the invalidity of a limitation to the issue ; though, in fact, all that is meant to be averred is, that a limitation to the children or issue of an unborn person, [following a gift to such unborn person,] is bad, as it clearly is, since such children or issue may not come in esse until more than twenty-one years after a life in being (q) . [Taken as containing two separate propositions, the rule is not true in either of its branches, for a legal remainder immediately expectant on a vested estate of freehold may be limited, not only to an unborn person, child of a living person,- but to any unborn person whatever, since, in order to take, such un- born person must, as we have seen (r), come in esse during the subsist- ence of the previous estate, that is, of a vested estate for life or in tail, otherwise the contingent remainder to him will fail. Indeed it is clear from Cadell v. Palmer (s) that even a long succession of es- ^g t^ succes- tates for life to unborn persons and their issues is valid, if sive limita- subjected to the restriction, that in order to take they must bom persons come into existence during lives in being and twenty-one '*'^'"' ™''*' -r T T • !■ ■ ' . comQin esse years afterwards. In that case a direction to limit successive within the ai- estates for life to every person who, being in the line of the '"^^"^ period. heirs male of C. B., should come into existence during the period of the lives of twenty-eight * living persons and twenty years *280 after the decease of the survivor of them was held valid. Under this devise it was possible that five successive generations, all unborn at the decease of the testator, should have taken estates for Ufe, and. (o) Cotton r. Heath, 1 Eoll. Ab. 612, pi. 3; Marlborough v. Godolphin, 1 Ed. 415 ; Doe d. Toolev V. Gunnia, 4 Taunt. 313; Doe d. Liversage v. Vaughan, 1 D. & Rv. 52, 5 B. & Aid'. 464 ; Xshley v. Ashley, 6 Sim. 358 ; Denn v. Pago, 3 T. R. 87, n. i Hay w.'Earl of Coventry, 3 T. R. 83 ; Foster v. Komney, 11 East, 594; Bennett v. Lowe, 5 M. & Pay. 4S5, 7 Bing. 535; Eoutledge v. Dorril, 2 Vea. Jr. 366; [Burley v. Evelyn, 16 Sim. 290; Hampton v. Holman,. 6 Cb. D. 183; and see Feame, C. E. 503.] (p) Hayes «. Hayes, 4 Russ. 311 ; [see as to this case, 6 Hare, 250, 1 Coll. 37, 5 Ch. D.. 188. (?) See 11 Hare. 375. (r) See Doe d. Winter v. Perratt, 9 CI. & Fin. 606, and ante, p. 257; and remember the distinction there taken between legal and equitable limitations. (s) Ante, p. 252. VOL 1. 20 305 *281 EULE AGAINST PERPETUITIES. also (under further gifts in the will not noticed here) that after the de- cease of the last of the five generations, a sixth generation might have taken an estate tail with remainders over. So where there was a gift to issue of A. (a living person), to vest on a remote event, and a gift over to B. if there should be no issue of A. who should survive the tes- tator and A., the gift over was held valid, the word " survive" import- ing that the issue here spoken of were not all issue or all included in the previous gift, but such as should be born in the lifetime of the per- sons whom they were to survive, namelj', the testator or A. (t). These considerations would seem to settle] a point which has not, it is believed, been the subject of positive decision, namely', whether a de- vise which either from the nature of the subject of gift, as in the case of a life estate, or from the nature of the qualification superadded to the devisee, as in the instance of a gift to children living at the death of the testator, can never extend beyond the period allowed bj' the rule of law, is good though limited to arise upon an event which might, abstractedly considered, happen after that period, as an indefinite failure of issue ; in other words, whether a bequest, in a will made before 1838, if A. shall die without issue, to B. if then living, is to be regarded in pre- cisely the same light as a gift, in case A. shall die without issue living B. Upon principle it is difficult to perceive any solid difference be- tween the two cases ; and the opinion of Mr. Fearne (m) seems to have been in favor of the validity of the former limitation, though none of the cases cited by this distinguished writer go directly to the point. In Oakes v. Chalfont(x), which is his leading authority, the words "for want of such issue " evidently pointed at the children who were the ob- jects of the preceding gift,, and the bequest ov6r was therefore clearly good, as a simple substituted gift. [Sir LI. Ken3'on, in Jee v. Aud- ley (y), expressly states such a limitation to be good.] Sir W". Grant, though at one time he expressed doubts on the subject (z) , [seems lat- terly to have been of the same opinion (a), and the authority of *281 Lord Brougham is on the same side (6).] The * question is now of somewhat diminished interest, [since it generally arises on a gift "in default of issue," which words, in wills made since 1837, are not generally to be construed as referring to an indefinite failure of issue ; but it is still of some importance, because it may arise on a gift limited to take effect on any other event which, abstractedly considered, is too remote.] As a gift for life to an unborn person is valid, so it is clear is a remainder expectant on such gift, provided it be made to take (t) Gee «..IJrtdell, L. E. 2 Eq. 341. See also Lachlan ti. Be3'nolds, 9 Hare, 796.] ?») C. R. 488, 500, Butler's note. (a!) Pollex. 38. [(«) 1 Cox, 326.1 (z) Barlow v. Salter, 17 Ves. 483; see Sugd. Gilb. Uses, 277, n. [(«) Massev v. Hudson, 2 Mer. 133. (6) Campbell v. Harding, 2 R. & My. 406.] 306 BULB AGAINST PEEPETFITIES. *282 effect in favor of persons who are competent objects of -*^s to gifts in gift (c) ; though here also a fallacy prevails ; for it is not ex™ec"ant on uncommon to find it stated in unqualified terms, that, though ^^'^'^ *"'' ''f« ^^J• ■ J. J. ^ ^ -,? to unborn j-ou may give a liie-mterest to an unborn person, every ulte- person, rior gift is necessarily and absolutely void ; and some countenance to this doctrine is to be found in the judgment, as reported, of an able judge (rf), though the adjudication itself, rightly considered, lends no support to any such doctrine, as the ulterior gift, which was there pro- nounced to be void, was nothing more than a declaration that the prop- erty should go according to the Statute of Distribution ; so that the claim of the next of kin, who was held to be entitled, was perfectly consistent with the will, unless, indeed, it applied to the next of kin at the death of the unborn legatee for life, which would have been clearly void, as embracing persons who would not have been ascertainable until more than twenty-one years after a life in being ; but for this construction there seems to have been no ground. [But the absolute interest, however parcelled out, must be so limited as necessarily to vest (if at all) within the legal period. Thus, An interest if a devise be made to an unborn person for life, and in case nn/v'^g'J"^^ he should die without issue living at his death, or under the within the age of twenty-two years, then to B., this remainder is void, ^^JJi" though since it depends on the termination of a particular estate by alienable, an event which may not happen within a life in being and twenty-one j-ears. It has been suggested that an interest to arise on such an event in an ascertained person is now good, because by a modern statute (e) contingent interests may be disposed of at law (/) ; and the suggestion finds support in principle in a decision of Sir J. Stuart, who, in Avern V. Llo}"d (ff), — where personalty was bequeathed to the issue of A., a living person, share and share alike, for their * lives, and *282 for the survivors and survivor, and after the decease of the sur- vivor, to the executors, administrators and assigns of the survivor, — held the ulterior limitation valid, on the ground that " each of the ten- ants for life had as much right to alien his contingent right to the abso- lute interest as to alien his life-estate." Now the rule against perpetuity has always in terms required the vesting of estates within the prescribed limit. The first instance of an executor}- gift void for remoteness given by Mr. Fearne (A) is a devise to A. and his heirs, and if A. die without heir, then to B. ; which, ac- cording to the suggestion, would now be good. The rule as it affected equitable' interests, whether in real or personal estate, was in corre^ sponding terms : yet these were always alienable. It is submitted that the statute referred to has not made any change in the rule, and that Uc) Eoutledge ». Dorri.", 2 Ves. Jr. 366; Evans ». Walker, 3 Ch. D. 211.] {(l) See Cooke v. Bowler, 2 Kee. 53. [(e) 8 & 9 Vict. c. 106, o. 6. (/) Gilbert.son ii. Richards, 4 H. & N. 277, 5 ib. 453. (g) L. R. 5 Eq. 383. (A) C. R. p. 445. 307 *283 ETILE AGAINST PEEPETUITrES. the law is as laid down by Sir R. Malins, V. C, in a, case (i) where a testator haying under his ante-nuptial settlement an exclusive power of appointing land to his issue, appointed it by his will to his son A. in fee, but if the son should have no child who should attain twenty-one, then to the testator's grandson B. in fee. The V. C. held that the gift over was void for remoteness. That the old rule is unchanged also as regards remainders is shown by the dictum already cited of Sir W. Wood, who long after the pass- ing of the statute said that " a contingent remainder cannot be limited as depending on the termination of a particular estate whose determi- nation will not necessarily take place within the period allowed by law"(i). That the right of alienation is not sufficient of itself to exclude the Curtis «. ^^^^ i^ further shown by Curtis v. Lukin (/), where certain Lukin. property was bequeathed in trust to accumulate the income for sixty years, and to apply part of the fund so formed for the benefit of class A. and pay the rest to class B. ; both classes would be ascer- tained within lawful limits, but the proportions in which the fund would be divisible between them depended on contingencies which could not be ascertained until the end of the term of sixty years. It was con- tended that, inasmuch as the beneficiaries as soon as ascertained had full power to dispose of the fund and stop further accumulation, *283 the case was not * obnoxious to the rule against perpetuity ; but Lord Langdale held that, although among themselves they might make a title to the fund, yet each of them would be uncertain as to the amount of his share, and therefore that the trust could not be sustained. And it was not suggested that the power which each un- doubtedly possessed to alien his contingent share protected the case from the rule.] Where a devise is void for remoteness, all limitations ulterior to or expectant on such remote devise are also void, though the uiterior'to a object of the prior devise should never come into existence. remote de- Thus, in the often-cited case of Proctor v. Bishop of Bath Vise void ■ ' and Wells (m) , where there was a devise to the first or other son of T. P. that should be bred a clergyman and be in holy orders, and to his heirs and assigns ; hut if the said T. P. should have no such sons, then to T. M. his heirs and assigns. T. P. died without ever having had any son. As by the canons of the Church no person can be admit- ted into deacon's orders before the age of twentj^-three, or be ordained priest before twenty-four, it was clear that this qualification postponed the devisee's interest until he attained the age of twenty-three at the (j) Re Brown & Sibly, 3 Ch. D. 156. Seo also observations bv the same judge (L. R. 7 Eq. 369) on Avern v. Lloyd, supra, and on Ashley ii. Ashley, 6 Sim. 358, where the question of remoteness was not mooted. (k) n Hare, 374. \l) 5 Beav. 147.1 (m) 2 H. Bl. 358; see also Palmer v. Holford, ante, p. 253. 308 KULE AGAINST PBEPETUITIES. *284 least. The Court of C. P., therefore; held the first devise to be void for remoteness, and that the devise over, as it depended on the same con- tingency, was also void ; observing, that there was no instance of a limitation after a prior devise, which was void for the contingency's be- ing too remote, being let in to take effect. So, in Robinson v. Hardcastle (n), where, on the marriage of James Dunn with Dorothy Wright, lands were limited to himself for j. j life, remainder to such of the children of the marriage and in mainder not such proportions as he should appoint, remainder to the first ^'^''^'^'^^'^'i- and other sons in tail, with remainders over. James Dunn, by will, appointed the estate to the eldest son of the man-iage for life, remainder to trustees to preserve contingent remainders, remainder. to his (the son's) first and other sons in tail, remainder to the daughters in tail, as tenants in common, remainder as to part, to testator's daughter in fee ; and as to other part, to the use of another daughter in fee. The ap- pointment to the children of the testator's son being clearly too remote (the son being unborn at the time of the execution of the deed creating the power), it was contended, that the effect was the same as if it had never been inserted in the will, and that the remainder in fee was * accelerated : but Buller, J., observed, that if a subsequent *284 limitation depended upon a prior estate which was void, the sub- sequent one must fall with it; to support the opposite argument, the testator must be considered as intending that if the first use was bad, the subsequent limitation should take place, which would be extraordi- nary indeed. The court accordingly certified (it being a case from Chancery) that the devise over was void. The same principle was followed in Cambridge v. Rous(o), where, personal property was bequeathed to A. for life, and after her decease to her children, when they should attain the age of twenty-seven, and in the event of her having no such children, over ; and Sir W. Grant, M. R., held the trust for the children to be too remote, and that the limitation over, therefore, was also void. [Again, in Beard v. Westcott ( jo) , a testator devised lands to his grandson, J. J. B., for 99 years, determinable with his life. Beard o. remainder to his first son (unborn) for 99 years, determi- Westcott. nable with his life, remainder (in effect) to his first son for a like term, and so on ; and in case there should be no issue male of the said J. J. B. , nor issue of such issue male at the time of his death, or in case there should be issue male at that time, and they should all die before they should respectively' attain twenty-one without lawful issue male, then there were similar limitations over to X. and his issue. On a case from Chancery the Court of C. P. held that the several gifts after the gift to the unborn son of J. J. B. were void. They also held, that if the event (») 2 B. C. C. 22. 2 T. E. 241, 380, 781. (0) 8 Ves. 12. The case is here stated ivithout the alternative bequest. [(p) S Taunt. 393, 5 B. & Aid. 801, T. & R. 25. 309 *285 EULE AGAINST PERPETUITIES. mentioned (q) arose, the gift over would take effect, the event in ques- tion being (as it clearly was) within the legal limits of perpetuitj'. The decision on the latter point was not acquiesced in, and a case was sent to the Court of K. B., who held that the gift over was void, and Lord Eldon alHrmed that decision. "Not," said Lord St. Leonards (r) , " because it was not within the line of perpetuity, but expressly on the ground that the limitation over was never intended by the testator to take effect, unless the persons whom he intended to take under the previous limitations would, if they had been alive, have been capable of enjojdng the estate, and that he did not intend that the estate *285 should wait for * persons to take in a given event, where the person to take (that is, to take in the interim) was actually in existence, but could not take. This shows," he continued, " that wiiere there are gifts over which are void for perpetuity, and there is a subse- quent and independent clause on a gift over which is within the line of perpetuities, effect cannot be given to such a clause unless it will dove- tail in and accord with previous limitations which are valid."].-' But care should be taken to distinguish between cases such as the _. ,. ^. preceding, and those in which the sift over is to arise on Distinction ^ , . ,/,,.,. . , . where the an aUernotive event, one brancli of which is within, and the w-ise on^a* '° Other is not within, the prescribed limits ; so that the gift double con- over will be valid, or not, according to the event («)^. [Thus, tingency. j^^ Longhead v. Phelps (i), where trusts were declared of a term, in case of the death of A. without leaving issue male, or in case such issue male should die without issue, the court held it clear that the first contingency having happened the trusts of the term were vaUd •without reference to the other contingency.] In Leake v. Robinson (u), too, certain stock and moneys were be- {q) That is, the second event mentioned in the 'proviso. There could be no question as to the validity of the first event; that was clearly p:ood within all the authorities next stated, and, J. \. B. being still alive at the time, it had not become impossible, but the court of K. B. seems to have altogether ignored it. (r) In Monypenny v. Bering, 2 D. M. & G. 182. And see Sug. Gilb. Uses, 2T0.] (s) See same principle applied to a different species of case. Tregonwell v. Sydenham, 3 Dow, 194, ante, p. 276, n. [(*) 2 W. Bl. 704. Crompe «. Barrow, 4 Ves. 6S1, is commonly cited to the same point. But in that case there was no question of remoteness, the appointor's son C. B. being the child of a former marriage, i.e. born before the creation of the power. If otherwise, the alternative gift over, if C. B. should die and leave no child surviving him (which was held good), would in fact have been too remote ; for the vesting would have been suspended until the death of an unborn person. It is probable that a similar explanation may be given of Re Lord Sondes' Will, 2 Sm. & Gif. 290, sc. that Charlotte Palmer was living at the creation of the powers.] (u) 2 Mer. 363. 1 See Re Thatcher's Trusts, 26 Beav. 365; the other alternative gift is too remote. Jack- Cambridge V. Rous, 25 Beav. 409. son «. Phillips, 14 Allen, 539, 572; Ackennan 2 Armstrong v. Armstrong, 14 B. Mon. v. Vreeland, 14 N. J. Eq. 23; Minter t'. 333; Fowler v. Depau, 26 Barb. 224; Dunlap Wraith, 13 Sim. 52; Post v. Hover, 33 N. Y. II. Dunlap, 4 DesaUs. 305. In the case of a. 693 ; Schettler v. Smith, 41 N. Y. 328. So gift over upon an alternative contingency, if also of two separable trusts, or of a trust one of the alternatives be not too remote, and separable into two parts, one of which contra- the event transpires so as to make the gift venes the peipetuity law and the other does over available it deemed valid, such gift will not, the latter may be upheld, though the be supported notwithstanding the fact that former cannot be. Post ti. Hover, supra. 310 RULE AGAINST PERPETUITIES. *286 queathed to W. R. R. for life, and, after his decease, to the child or children of the said W. R. R. who, being a son or Other in- sons, should attain the age oftiioenty-five, or, being a daughter tenmtive or daughters, should attain that age or be married with con- ''""tations £rood or not sent ; and in ease the said W. R. R. should happen to die m event. without leaving issue living at the time of his decease, or, leaving such, they should all die before any of them should attain twenty-fire if sons, and if daughters, before they should attain such age or be married as afore- said, then to the brothers and sisters of W. R. R. on their attaining twenty-five if a brother or brothers, and if a sister or sisters, on such age or marriage as aforesaid. W. R. R. died without leaving issue, and it was not contended, that, in the circumstances which had happened, the bequest over to the brothers and sisters was void, in reference to the event on which it was limited ; though it was held, that as the bequest to the brothers and sisters included all who were living at the death of * "W. R. R. (x), it was clearly void from the remoteness *286 of the bequest itself. Had W. R. R. left any issue, the event also would haA'e been too remote. [In Goring v. Howard (y), there was a bequest of personal property upon trust for the testator's grandson G-. G-. , and his brothers and sis- ters equally for their lives, and after the decease of any of the grand- children to paj' his or her share to his or her issue, if any, till they attained the age of twenty-five, and then to transfer to them their par- ent's share equally ; and in case any of the grandchildren should die without leaving issue at his or her decease and without having obtained a vested interest, then the share of the grandchild so dying to go to the survivor or survivors, and to be paj'able and transferable as before men- tioned ; Gr. G. died a bachelor, and his brothers and sisters were held entitled to his share of income for their lives, in the alternative that had happened of no child of G. G. being alive at his decease, though the gift to such a child, had there been one, would have been too remote. So in Monj'penny v. Bering (z) , where there was a devise in trust for P. M. for life, and after his decease in trust for his first son for life, and aft€r the decease of such first son, " upon trust for the first son of the bodj' of such first son and the heirs male of his body, and in default of such issue upon trust for all and every other the son and sons of the body of the said P. M., severallj^ and successivelj' according to seniority of age, for the like interests and limitations as I have before directed respecting the first son and his issue, and in default of issue of the body of P. M., or in case of his not leaving any at his decease, upon trust for T. M. for life," with remainders over. Lord St. Leonards held that the limitation to the unborn son of an unborn son of P. M., being itself void, invalidated the remainders depending upon it ; but that the remainder {x) Vide ante, p. 265. [(.V) 16 Sim. 395 ; and see Minter ». Wraith, 13 Sim. 52. (z) 2 D. M. & G. lis. See also Cambridge ». Rous, 25 Beav. 409. 311 *287 RULE AGAINST PERPETUITIES. to T. M., and the subsequent remainders, were good in the alternative event which had happened of P. M. not leaving any issue at his decease. And where the alternative limitations are distinct and separate in Alternative their nature, it makes no difference that they are not each limitations separately expressed in different clauses, but involved in separately words wMch apply equally to, and include within them, both expressed. limitations. This point was decided in Doe v. Challis (a) , *287 where J. D. * devised four houses in trust for his daughter Elizabeth for life, and after her decease to such of her children as being sons should attain the age of twenty-three years, or being daughters should attain the age of twenty-one years, equally as tenants in common in fee ; and in case all the children of Elizabeth should die, if a son or sons, under the age of twenty-three years, or, if a daughter or daughters, under the age of twenty-one, or if she should have none, then he devised the property in trust for his son John and his daughters Sarah and Anne equally for their respective lives, and at their respect- ive deaths he devised the share of the one dying to his or her children who being sons should attain twenty-three, or being daughters should attain twenty-one, as tenants in common in fee ; and in case of the death of his son or either of his daughters without leaving a child who being a son should attain twenty-three, or being a daughter should attain twenty-one, he devised the third share of the one so djdng to the chil- dren of the others in the same manner as before. Elizabeth .died in 1838 without ever having had a child, and in 1847 Anne died without everlaving had a child. Two questions were raised ; first, whether the gift over on the death of Elizabeth was good ; and, secondly, whether the gift over on the death of Anne was good. The Court of Q. B. de- cided both questions in the affirmative. As to the first, they held (in accordance with the authorities before stated) , that if Elizabeth had had a child, although he did not attain the prescribed age, the gift over would have been void for remoteness, but that in the event which hap- pened of her never having had a child the gift took effect as an altei-na- tive contingent remainder. As to the second, the court decided that here also the gift over took effect, although the event of her never having had any children was not actually expressed, being of opinion, upon the authority of Jones v. Westcomb (b) and similar cases, that wher- ever there was a gift over on a class dying within a particular age, it took effect if that class never came into existence. In the Exchequer Chamber the decision on the second point was reversed, the court, without denying the authority of Jones v. Westcomb, applying the same principle to the splitting of one set of words into two contingencies, that Sir W. Grant, in Leake v. Robinson, applied to the splitting of a class. Alderson, B., who delivered the judgment of the court, said: "The true meaning of the devise is, in every event which can happen (a) 18 Q. B. 224, 231. (4) Eq. Ca, Abr. 245. See Ch. L. 312 BULE AGAINST PERPETUITIES. *288 in which Anne dies * leaving no children if male who attain *288 twenty-three, or if female who attain twenty-one, I give the es- tate over. That is what he says, and that is what he means. He in- cludes all those events in one clause. Some are legal, some are illegal. How is the court to sever these events, which the testator has express- ly joined together, without making a new will ? The principle seems, therefore, to be against splitting such a devise when we are considering the question whether it is a legal one. Now this question, it is con- ceded, must be determined as on reading the will at the instant of the testator's death. Do the cases cited affect this principle ? On looking over them we find in all of them that the devise in any event was legale and that it was competent for the testator to make it." Apart from the question of perpetuity, it was admitted that Jones v. Westcomb was full and sufficient authority for construing the will as was done in the Court of Q. B. ; so that the sound rule which requires a will to be construed without reference to the consequences as regards remoteness was actually transgressed in order to defeat tiie intention. On appeal to D. P., the case of Leake v. Robinson was declared to be inapplicable, and the decision of the Exchequer Chamber was re- versed (e). "No case," said Wightman, J., " or authority has been cited to show that where a devise over includes two contingencies, which are in their nature divisible, and one of which can operate as a remainder, they may not be divided, though included in one expres- sion ; and our opinion does not at all conflict with the authority of Jee V. Audley, and Proctor v. Bishop of Bath and Wells, in neither of which cases was it possible for the limitation over to operate as a remainder."] As the law does not permit to be done indirectlj' what cannot be effected in a direct manner, the rule which forbids the giving ^j ^^^ ^^_ of an estate to the issue of an unborn person [in remainder powering on the life of his parent], equally invalidates a clause in a po"tp?ne*ab- settlement or will, containing limitations to existing persons solute owner- for life, with remainder to their issue in tail, empowering trustees, on the birth of each tenant in tail, to revoke the uses, and limit an estate for life to such infant, with remainder to his issue (d).^ \ (c) Nom. Erers ». Challis, 7 H. L. Ca. 531. Re Thatcher's Trusts, 26 Beav. 365, appears to be contrary : but it was before the decision of D. P. in Doe v. Challis, and was decided on the authority of Beard v. Westcott.] (rf) Duke of Marlborough ». Earl Godolphin, 1 Ed. 404. The author of this futile dfevice for evading the rule against perpetuities, was no other than the great John Churchill, the first Duke of Marlborough. Lord Northington's judgment in this case well deserves the reader's perusal. 1 See Fonda v. Penfield, 56 Barb. 503 ; Bar- within the principle. Clark v. Piatt, 30 Conn, num V. Barnum, 26 Md. 119. It makes no 282. Every power the direct object of which difference in the applications of the rule is to create a perpetuity is void. The only ex- against perpetuities whether the estate is ceptions to this rule arise out of the distinction limited by way of legal settlement or under between general and limited or special powers, cover of a trust. Goldsborough v. Martin, 41 But in every case the execution of thepower Md. 488, ,501; Deford ». Deford, 36 Md. 168. being distinct from the power itself, must Butapowerto change trustees does not come conform to the requirements of the rule against 313 *290 EULB AGAINST PERPETUITIES. *289 It has been already observed, that, in the case of * appoint- ments, testamentary or otherwise, under powers of selection or distribution in favor of defined classes of objects, the appointees Appointee must be persons competent to have taken directly under the doZ powS^' e G. Si. & G. 145; Allyn t). Mather, 9 St. Amour v. Rlvard, 2 Mich. 294. Conn. 114; (jibson v. McNeely, 11 Ohio 322 BULE AGAINST PERPETUITIES. *300 birth, in tail male, remainder over." The C. P., on a case sent from chancery, certified that the estate would vest in the second son (when born) of W. NichoU * by executory devise ; and that in *299 order to effectuate the general intention of the testator, he would take an estate in tail male, determinable on the accession of the paternal estate. So, in Robinson v. Hardcastle (1), where, on the marriage of A. and- B., lands were limited to A. for life, remainder to such of the children of the marriage as A. should appoint, and, in default, over. A. by will appointed to his son for life, with remainder to trustees to preserve contingent remainders, with remainder to the first and other son,s of such son successively in tail male, with remainder to his daughters as tenants in common in tail. Buller, J., expressed an opinion that the son, by the application of the cy-pres doctrine, took an estate tail ; but the court was not called upon to decide the point. The case, however, which has carried this doctrine farther than any other is Pitt v. Jackson (w) , where, by a settlement on the -p-itt v. Jack- marriage of P. W., certain moneys were directed to be laid ^°'^- out in the purchase of lands, to be settled to the use of P. W. for life, without impeachment of waste, with remainder to his intended wif^ for life, remainder to the use of the children of the marriage, subject to such powers, limitations and provisos as P. W. by deed or will should appoint, with remainders over. By will P. W. appointed trust moneys to be laid out in real estate, to be conveyed in trust for his daughter M. , during her life, for her separate use, remainder to trustees to sup- port contingent remainders, remainder to all and every the child and children of his said daughter, as tenants in common in tail, with remain- ders over. Sir Lloj'd Ken3'on, M. R., declared the appointment to be invalid, and that the whole of the share appointed to the daughter for her separate use was to effectuate the testator's general intention, to be considered to vest in her an estate tail. In this case, the nature of the estate appointed to the children dif- fered widely from the mode of its devolution under an estate _ , .,,.,,., . , . T t. ■ Keraarks on tail, which this doctrine gave to their parent. In all the Pitt v. Jack- preceding cases, the first and other sons were to take succes- ^'"'' sively ; here, all the children, female as well as male, were to take con- currently. The authoiity of Pitt v. Jackson [has been often doubted] ; even the eminent judge who decided it, on a sub- ' sequent occasion, admitted that it went to the outside of the rules * of construction, adding, however, that still he did not *300 think it was wrong (ra). Lord Eldon, in quoting this obser- _ y^^y ^^^_ vation (o) , intimated that it was not proper to go one step finned. (I) 2 T. E. 241, 380, 781. [See also Parfitt v. Hember, L. R. 4 Eq. 443.] (m) 2 B. C. C. 51, cited2Ve9. Jr. 349; see also Smith w. Lord Camelford, 2 Ves. .Tr. 698; [and Stackpoole ». Stackpoole, 4 D. & War. 320, where (as in Pitt v. Jackson) the doc- trine was lield applicable to a testamentary appointinent.] Cm) 1 East, 451. (o) 7 Yes. 390. 323 *301 RULE AGAINST PEEPETXJITIES. further ; for those cases, in order to serve the general intent and the particular intent, destroyed both. [However, Pitt v. Jackson was approved by Lord St. Leonards (/>), and was followed by Sir J. Wigram, V. C, under precisely similar circumstances in Vanderplank V. KingCy). But although the mode and form of the provision intended by the The mode of wUl may be altered by the application of this rule of con- mav^be" struction, no person or line of persons may be introduced changert, but for whom no provision whatever was intended. Therefore, sons provided ^"^ Monypenny v. Bering, already stated (r) , it was held by for. Lord St. Leonards that the first son of P. M. could not be held to take an estate tail, because such an estate would in regular suc- cession, and after failure of the eldest son and his issue, descend to the second and other sons of such first son, for whom the will made no provision. In Vanderplank v. King («) , the question arose, whether the cy-pres The cypres doctrine could be applied to some of a class and not to doctrine may others. The testator devised lands to his daughter (who aome only of was living at his decease) for her life, with remainder to all a class. iier children (as it was decided) as tenants in common for their lives, with remainder to the grandchildren per stirpes in tail, with cross remainders between the grandchildren of each stock, and also (as It was held) between each stock of grandchildren. The testator's daughter had several children living at his death, to whom alone es- tates for life with remainder to their issue could be legally limited ; one, child named Matilda was born after the testator's decease, the re- mainder to whose issue was void for remoteness, and Sir J. Wigram, V. C, decided that the cy-pres doctrine was to be applied to the share of Matilda, and that she took an estate tail, but that it was not neces- sary similarly to modifj'' the estates limited in the shares of the *301 other children ; * Matilda in fact was made to stand in the same position as a single child of hers would have done, under the will and apart from the perpetuity rule, she being dead. The doctrine in question is not confined to the first set of limitations Doctrine of requiring modification, but is extended to all that follow ; cy-pres not thus, in Hopkins v. Hopkins («), a testator devised lands fi°stsetof in trust for I. H. for life, with remainder to S.H., son of limitations. §_ jj. foj. Y\f&, with remainder to the first and other sons of I. H. successively in tail male, and for want of such issue, in case I. H. Up) 4 D. & War. 320, 2 D. M. & G 173. (?) 3 Hare, 1. (r) 2 D. M. & G. 145, and in Ex. 16 M. & W. 418; ante, p. 286. In Nicholl v. NIcholl, ante, p. 298, the will included none of the descendants of the second son of W. N., except the second son of that second son and the heirs male of his body ; whereas the decision included them all, and among them, of course, the first son of the second son of W. N., whose exclu- sion from the will appears to have been designed. The case is therefore overruled, so far, at least, as it favors a doctrine contrary to Monypenny v. Dering. («) 3 Hare, 1. See also Peyton ». Lambert, 8 Ir. Com. Law. Rep. 485. (t) Co. Lit. 272, a, Butler's note 1, vii. 2, 1 Atk. 581.] 324 EULB AGAINST PKRPETUITIBS. *302 should have any other son or sons, then in trust for all and every of such other son and sons respectively and successively for their respec- tive lives, with like remainders to their several sons successively and respectively as were thereinbefore limited to the issue male of the said S. H., with remainders over. S. H. died in the testator's lifetime without issue, and I. H. never had any other son, so that it was neces- sary to apply the cy-pres doctrine to the limitations to his other sons for life, with remainder to their issue, the remainder to such issue being too remote ; and as the remainders over were held good, it is clear that it was considered that not only the second but the third and every other son of I. H. would, under the doctrine in question, have taken an estate tail.j It has been decided in relation to the doctrine in question, first. That it does not apply to limitations of personal estate (m) , [nor of a mixed fund {x) ;] secondlj-. That it is inapplicable where an at- , . . . t?mpt is simply made to limit a succession of life-estates to posed on the the issue of an unborn person, either for a definite or indefl- '^<"='""^- nite series of generations {y) ; and, thirdly, That the doctrine is not applicable where the limitation to the children of the unborn persons gives them an estate in tee-simple. The last point was decided in Bristow V. Warde (z), where money directed to be laid out in land was, b3' the trusts of certain articles, and a settlement executed in pursuance of those articles, made subject to a power of appointment hj the husband, in favor of the * children of the marriage ; and he ap- ^302 pointed portions of the fund to certain of the children for life, and after their decease, among their children, as they should appoint ; it was held to be 'real estate, and that the husband's appointment (which, if valid, would have the effect of vesting absolute interests in the grandchildren equally, in default of appointment by the children) , was void as to the grandchildren, and could not,, as Lord Loughborough was of opinion, be executed cy-pres (a) .^ (m) Routledge v. Dorril, 2 Ves. Jr. 365. [But see Mackworth v. Hinxman, 2 Kee. 658, ■where the general intent was to limit personalty so that it should go along with an honor, the successive life-estates being only the mode: and see Re Johnson's Trusts, L. K. 2 Eq. 716. (X) Boughton 1). James. 1 Coll. 44, 1 H. L. Ca. 406.] iy) Somerville ». Lethbridge, 6 T. R. 213; Seaward «. Willock, 5 East, 198; Beard «. Westcott, 5 Taunt. 393, 6 B. &' Aid. 801, T. & R. 25. [See, however, per Rolt, L. J., Fors- brook V. Forsbrook, L. R. 3 Ch. 99.] (2) 2 "Ves. Jr. 336; [and see Hale «. Pew, 25 Beav. 335; and it is not admitted in constru- ing a deed, Brudenell v. Elwes, 7 Ves. 390. (a) See further, as to the doctrine of cy-pres, Sugd. Pow. ; Fearne, C. R. by Butl. 1 In the case of a devise to trustees for the should die without issue, does not create a testator's children and their heirs, it has been perpetuity; that it is merely a restriction on held in Kentucky that a provision that the the power of alienation on the part of the life land shall "not be sold under any pretext," tenants, intended to secure the remainder to in coiuiection with a gift over to tlie survivors the descendants of the testator. Best v. Conn,, of the estate of any of the said children who 10 Bush, 36. 325 ►302 FOB WHAT PERIOD INCOME Skction in. For what Period Income may he accumulated. FoEMEELT the rule that fixed the period for which the vesting of Old rule fix- property might be suspended, regulated also the power of ing extent of deferring its enjoyment ; it being then permitted to a settlor accumulation or testator to create an accumulating trust absorbing the of income. entire income during the full period for which the vesting might be postponed, a,nd whether it was or was not so postponed.* And no inconvenience appears to have been felt in allowing so wide a range of accumulation, few persons having availed themselves of the 1 This rule prevails in Massachusetts. Odell V. Odell, 10 Allen, 1. See also Fosdick «. Fosdick, 6 Allen, 43; Hooper v. Hooper, 9 Gush. 122 ; Levering v. Worthington, 106 Mass. 86, 89; Thomdike v. Lovering, 15 Gray, 391 ; Craig v. Craig, 3 Barb. Ch. 76 ; Killam v. Allen, 52 Barb. 605; Dutch Re- form Church V. Brandow, 52 Barb. 228 ; White V. Howard, 52 Barb. 294; Hillyard v. Miller, 10 Penn. St. 326; Kimball v. Crocker, 53 Maine, 263. As to the New York rule, see Manice v. Manice, 43 N. Y. 303, 376; Haxtun t'. Corse, 2 Barb. Ch. 518; Kilpatrick v. John- son, 15 N. y. 322. In New York, Michigan, Minnesota, and Louisiana, the common-law rules in relation to accumulations are changed by statutes, which are substantially the same in each of those states. 1 Perry Trusts, § 398. As to Alabama and Pennsylvania, see 1 Perrv Tiusts, § 398; Brown v. William- son, 36"Penn. St. 338. In Kimball r. Crocker, 63 Maine, 263, a provision directing an accu- mulation of interest for twenty-five years was held to be invalid. Appleton, C. J ., said that where the accumulation was for a gross number of years, the rule against perpetui- ties prohibited more than twenty-one years. " Wherever lives in being do not fonn part of the time in suspension or postponement, the only period under the rule against perpe- tuities is twenty-one years absolute." But the learned judge added that a void trust for the accumulation of income does not invali- date a bequest. A will might be void in part and valid as to the residue. " In the_ present case, the direction to accumulate is void. The will is not defeated so far as relates to the trusts arising under the will, or as to the leg- acy" therein given. See Williams v. Wil- liams, 4 Selden, 526, 539; Hawlej'V. James, 5 Paige, 318. It was held in Odell «. Odell, 10 Allen, 1, that a bequest of an annual sum, outrof the income from real estate, for fifty years to trustees, to be invested by them ani^ accumulated during this time, and then ap'- plied to establish a chanty, is a valid bequest, even if the accumulation cannot be allowed for so long a period. In, this case the will contained the following bequest: I give to the trustees of the Salem Savings Bank in trust one hundred dollars annually for fifty vears, to be paid to them by my executors, to be safely invested by said trustees, the inter- est to be added to the principal by them semi- annually. At the expiration oi fifty years, the sum which shall be accumulated shall be appropriated by a society of ladies from all the Protestant religious societies in Salem to provide and sustain a home for respectable, destitute, aged, native-born American men and women. The above annual payment shall be made from the income of my real es- tate, which real estate shall be held in trust by my executors until the last payment shall have been made to, the trustees of the Salem Savings Bank, then my real estate shall be divided equally among" the grandchildren of my late brother James. And it was held that this was a valid bequest. The authorities upon the point were cited and reviewed by Mr. Justice Gray, but no conclusion was ar- rived at in regard to what would be the legal limit of accumulation for a charitv. Odell v. Odell, 10 Allen, 9-13. But in "Hillyard v. Miller, 10 Penn. St. 326, it was held that trusts created by a devise for accumulation beyond the period attained for the vesting of an executory limitation are absolutely void, although the fund thus to be created is di- rected to be ultimately applied to the founda- tion and support of a charity. The laws of Pennsylvania allow accumulations in two cases only, or rather in favor of one class of persons possessed of two qualifications. 1. They must be minors. 2. They must be such persons as, if riot minors when the deed or will goes into effect, will be entitled to lake the rents and profits from which the accumu- lations are to arise. Washington's Estate, 75 Penn. St. 102. Any attempt to direct such accumulations into other channels renders the deed or will void pro tanto, and the rents or profits so appropriated pass to those who would have been entitled thereto if such ac- cumulation had not been directed. lb. 326 MAY BE ACCUMULATED. *303 permission to a mischievous extent, until Mr. Thellusson made the ex- traordinary and well-known disposition of his immense propertj' (i) , by the operation of which, every child and more remote descendant born or rather procreated in his lifetime (and which included every individual of those descendants towards whom personal knowledge and intercourse might have been supposed to induce a particular affection-) , were excluded from enjoyment, for the purpose of swelling, to a princely magnitude, the fortune of some remote and unascertained scions of the stock. The necessity then became apparent of preventing bj- legisla- lation the repetition of a scheme fraught with so much mischief and hardship. This led to the stat. 39 & 40 Geo. 3, e. 98, which, gtat. 39 & 40 after reciting that it was expedient that all dispositions of Cr^"- 3,.c. 98. real or personal estate, whereby the profits and produce thereof were directed to be accumulated, and the beneficial enjoyment thereof was postponed, should be made . subject to the restrictions thereinafter contained, proceeded to enact, " that no person or persons * shall, after the passing of this act, by any deed or deeds, sur- *303 render or surrenders, will, codicil or otherwise soever, settle or dispose of any real or personal property, so and in such tion restrain- manner, that the rents, issues, profits or produce thereof ,^.^' ""''^^^'''.'' shall be wholly or partially accumulated, for any longer term orfortwenty- ihaii the life or lives of any such grantor or grantors, settlor ^uriurmi-"' or settlors, or the term of twenty-one years from the death nority, &c. of anj' such grantor, settlor, devisor or testator, or during the minority or respective minorities of any person or persons who shall be living or en ve7itre sa mere at the time of the death of such grantor, devisor or tes- tator, or during the minority or respective minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurances directing such accumulations, would for the time being, if of fuU age, be entitled unto the rents, issues, and profits, or the in- terest, dividends, or annual produce so directed to be accumulated ; and in every case, where anj' accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, and the rents, issues, profits and produce of such property, so directed to be accumu- lated, shall, so long as the same shaU be directed to be accumulated contrary to the provisions of this act, go to and be received by such person or persons as would have been entitled thereto, if such accumu- lation had not been directed." Sect. 2 provides, " that noth- ^^^ ^^^ ^^ ing in this act contained shall extend to any provision for extend to payment of debts of any grantor, settlor, or devisor, or other fo™^ebts°'or person or persons, or to any provision for raising portions portions for for any child or children of any grantor, settlor, or devisor, " ' ''^^' or any child or children of any person taking any interest under any such conveyance, settlement, or devise, or to any direction touching the produce of timber or wood, upon any lands or tenements, but that (b) 4 Ves. 227. 327 *304 POK WHAT PERIOD INCOME all such provisions and directions sliall and may be made and given as — nor to ^f t'^is ^°^ ^^^ '^o* passed." By sect. 3 [since repealed (c)3 Scotland; the act is not to extend to heritable property in Scotland (d), wills, unless nor, by sect. 4, to wiUs made before the act, unless the tes- ^"^ ' tator should be living and of sound mind for twelve calen- dar months from its passing.* — nor to Ire- [This Statute, having been passed just before the Irish land. ^ct of Union came into operation, does not extend to Ire- land (e). How the *304 * The period of twentj--one years from the testa- fwen^'^ne *°'''® •^^^''h is to be Calculated exclusively of the day of years 'is to be his death (/), and must be a period immediately following ca cu ate ; j^j^ death. Thus, if the accumulation be fixed to commence at a time subsequent to the testator's death, it wiU necessarilj- cease when twenty-one years from his death- have elapsed, though it may —one of the ^^"*^^ been in operation only one or two years {g). And a pericjds only testator or Settlor is not at libertj' to take more than one of the several periods of accumulation mentioned in the statute ; for instance, he cannot direct an accumulation for a term of twenty-one years from his decease, and also during the minority of a person enti- tled under the limitations (A).] The clause which would seem to afford the widest range of accumu- As to accu- lation is that which authorizes it during the minority of any niulationdur- person, who would, if of full age, be entitled, under the norityofan trusts, to the income; and who, it will be remembered, unborn per- might. Under the rule of law discussed in the last section, son entitled ° ' under the be any person coming into existence during a hfe in being trusts. ^^ ^jjg testator's decease. [It has been thought,] however, that this seemingly important clause is rendered inoperative by the con- Haley V. struction put upon it in Haley v. Bannister (t), where the Bannister. testator had directed certain sums of stock in the public funds to be purchased by his executors, and the dividends accumulated until one of the children of his daughter, born, or to be born, should attain the age of twentj'-one, when the whole was to be transferred to Uc) 11 & 12 Vict. c. 36, s. 41.] (d) But a direction to invest accumulations in lands in Scotland did not bring the case within s. 3. Macpherson v. Stewart, 28 L. J. Ch. 177. (e) Ellis V. Maxwell, 12 Beav. 104; Heywood v. Heywood, 29 Beav. 9. English leaseholds, though personal estate, are governed by the hx Itia, and, though belonging to a domiciled Irishman, are [subject to the act, Freke v. Lord Carbery, L. R. 16 Eq. 461; vide ante, p. 4, n. (/) Gorst V. Lowndes, 11 Sim. 434; Lester v. Garland, 15 Ves. 248. (ne years liams, 41 Mich. 552. longer, are not forbidden in Michigan ; nor 328 MAY BE ACCUMULATED. — " MINOIIITY." *305 such child, and any other child or children who might be then living ; the will contained a residuary clause. Sir J. Leach, V. C, said, " The statute prevents an accumulation of interest during the minority of an unborn child; but as to the principal the law remains as before the stat- ute. The excess of accumulation prohibited by the statute would form part of the residue." [By the words " during the minority of an unborn child," the V. C. must, it is conceived, have meant " until an unborn child should come of age," which was the case before him : his decision in this view could onl}' be that the whoh of such period could not be taken, not that the part commencing with the birth of the child could not be observations taken alone. However, Lord Langdale, M. R., ?*^''i''^, ' o ' r^r Langdale on * in Ellis V. Maxwell («) observed, '*If the accumu- *305 Haley ». lation is permitted only during the minority of a per- Bannister. son entitled under the uses of the will, and no time is allowed either before the minority commences or after it has ceased, it does not seem that anj'thing is added to the permission to accumulate during the minoritj' of a person living at the death of the testator. But taking the words as they are, they do not appear to permit accumulation dur- ing a minority and a time to elapse between the death of the testator and the commencement of the minority ; " and after noticing Longdon V. Simson, and Haley y. Bannister, he continued: "These cases pre- vent me from considering, that upon the construction of the act the accumulation would be lawful during the minority of any grandchild born after the death of the testator." The case, like Longdon v. Sim- son, and Haley v. Bannister, involved an accumulation not only during the minority of an unborn person, but ajso until he should be born ; and though it has been said (f), that in Haley v. Bannister, Sir observations J. Leach held that the statute referred only to the minority of Sir J. or successive minorities of persons in existence at the time '""' ^' the will came into effect, and that the same point was affirmed and ex- tended in Ellis V. Maxwell, yet it is clear that the point was not touched by the actual decision in either of those cases, which fell under the or- dinary rule that only one of the periods allowed by the statute can be taken. The construction put upon the statute by the dicta j^^ ^^^^^ cited above virtuallj'' strikes out of the act the clause in^ upon trusts question, and] seems to place in some peril the accumulat- providing for ing trusts ordinarilj^ introduced into provisions for the main- maintenance, tenance during minority of persons unborn at the testator's muiation of decease, which direct the unapplied surplus income from sirplus m- . , come. time to time to be added to the principal. Such trusts, however, are distinguishable from the bequest in Haley v. Bannister, in this, that they extend onl}- to the unapplied surplus, and not to the entire income (m), and therefore, approach more closely to the prin- [(fc) 3 Beav. 596. (0 Bryan v. Collins, 16 Beav. 17. (m) But the act expressly includes partial accumulations.] 329 *306 FOE WHAT PERIOD INCOME ciple of the rule of law, which accumulates the income of minors after providing for maintenance ; though thej' differ from that rule in regard to the ultimate destination of the accumulated fund, which the law gives to the minor himself, but which the express trust commonly attaches to the principal fund ; though even this difference is considerably nar- rowed, where the trustees possess (as they commonly do and *306 always ought to do) a power of * applying the accumulated fund at any subsequent period of minority-, which clause would cer- tainly afford a strong argument for taking the trusts in question out of the principle of Haley v. Bannister, if [the doctrine sometimes deduced from] that case can be supported. Indeed, considering the extreme inconvenience of holding the ordinary accumulating maintenance trusts in favor of unborn persons to be invalid, the courts would bo doubt struggle to avoid such a conclusion.^ It is well settled that a trust for accumulation exceeding the statu- „ tory limit is good pro tanto. Thus, where a testator directed bracing too that the profits of certain canal shares should be invested, cUmuktion *^^® interest arising to be applied to the education of the good pro children of A. and B. (who had no child at the death of the testator), and on their attaining twenty-one to be divided among them; Sir "W". Grant, M. R., held, that the accumulation was good for twenty-one years from the death of the testator, though void for the subsequent period (w). [But a trust for accumulation which not only exceeds the statutory The act does limits, but also the period allowed by the rule against per- makrvaHd'^ petuities, is, like any other ?uch limitation, void in toto, trusts for ac- even though it be for a purpose excepted from the operation previously' '^^ ^^^ ^°t ! ^^^ ^^'^ ^^^ ^'^^^ "lot by the exceptions contained oad. in it impliedlj- make valid what was previously invalid (o) . Accumula- 'QxLi, as before noticed (p), accumulation for payment of the tionforpav- , , „ , Y ,1 ment of tes- debts of the testator does not contravene the rule against vaM^houeh P^fp^tuities, and is therefore good, though it^ duration be to endure unlimited {q) . And a direction to accumulate until a certain lite?nd\wen°^ ^'i™ ^^ reached, though not in terms limited in duration, and ty-one years; though the accumulations may not amount to the stated sura within the necessary limits of time, is nevertheless good if the total amount to be raised is so disposed of as necessarily to vest absolutely («) Longdon v. Simsnn, 12 Ves. 395; see also Griffiths v. Vere, 9 Ves. 127; Palmer v. Holford, 4 Russ. 403; [Re Risslyn's Trust, ]6 Sim. 391. and cases in this section, passim. (0) Lord Southampton v. Marquis of Hertford, 2 V. & B. 54; Marshall v. Holloway, 2 Sw. 432; Browne v. Stoughton, 14 Sim. 369; (as to which cases see ante, p. 274;) Searisbrick ». Skelmersdale, 17 Sim. 187; Boughtoni). James, 1 Coll. 26, 1 H. L. Ca. 406; Turvin v. New- come, 3 K. & J. 16. (iJ) Ante, p. 275. (o) Lord Southampton v. Marquis of Hertford, 2 V. & B. 54, see p. 65 ; Bacon o. Proctor, T. & B. 40 ; Bateman ». Hotchkin, 10 Beav. 426. 1 See Washington Estate, 76 Penn. St. sylvania (1853) restraining the power of ao- 102, 107, a decision under the Act of Penn- cumulation. 330 MAY BE ACCUMULATED. — " POETIONS." *308 in some person or persons within those limits, since those persons might at anj' moment after the vesting stop the accumulations and dispose of the fund (r) . But an accumulation for the payment of debts _ ^,^t jf {„ of a stranger does not come within the reason of the payment of rule which * protects a similar provision for paj-- *307 another, good ment of the testator's own debts, and is therefore thaf /fmk'-'"" valid by the common law only for the period of a life in be- ing and twenty-one years after. The act leaves this rule affected by untouched, sect. 2, excepting from the operation of the first *''® ^''*" section ' ' all provisions for paj'ment of debts of any grantor, settlor or devisor, or other person or persons "(«). And this has been held to in- clude not only debts due at the testator's death, but future debts accru- ing within the period last mentioned (<). But the accumulation must be designed and intended bond fide as a provision for payment of debts. Where a testator directed the income of residue or a sufficient part of it to be applied for the benefit of- his son, and the surplus to be accu- mulated and added to capital, and after the son's death the whole to be divided among the son's children ; but if the son should die without issue, the testator bequeathed a moiety of the fund to B. ; B. afterwards became indebted to the testator, who then hy codicil declared that B. should not be obliged to pay the debt unless and until he became pos- sessed of the moiety, which, in that case, was to be set off against the debt. B. eventually became entitled to the moiet^', but it was held that the testator was not thinking of the debt when he directed the accumu- lation, and that it was not protected by sect. 2 (m). And if creditors avail themselves of their legal rights, and get their debts paid in a dif- ferent way, as by resorting to the corpus, the accumulation cannot, even if the will so direct, be continued bej^ond the period allowed by sect. 1 of the act, in order to recoup the persons to whom, subject to the trust for accumulation, the estate is devised (x). The exception in the act respecting accumulations for the purpose "of raising portions for anj' child or children {y) of any p grantor, settlor, or devisor, or any child or children of any of the excep- person taking any interest under such conveyance, settle- cumukthnr" ment, or devise," has created great difficulty. And first, for children's what is a portion within this exception ? ^^ '°"^" In Beech v. Lord St. Vincent (2), lands were devised to A. for life, with remainder to his first and other sons in tail, with remainders over, and 2,000Z. per annum was directed to be accumulated for twen- ty-one years during the life of A., and so much * longer as A. *308 had any younger children ; the accumulations to be held on cer- ()•) Oddie V. Brown. 4 De G. & J. 179. And see Williams v. Lewis, 6 H. L. Ca. 1013. (s) 2 D. M. & G. 498. (t) Varlo v. Faden, 27 Beav. 255, 1 D. F. & J. 2U. (a) Mathews ». Keble, L. R. 3 Ch. 691. (k) Tewnrts. Lawson, L. R. 18 Eq. 490. (w) This means legitimate children. Shaw v. Rhodes, 1 M. & Cr. 159. (z) 3 De G. & S. 678, 3 Jur. N. S. 762. 331 *309 FOR "WHAT PERIOD INCOME tain trusts for such younger children. It was twice held that this was an accumulation for raising portions within the exception in the statute. Barrington -^^^ ^^ Barrington J;. Liddell (a) , where lands had been set- V. Liddell. tied on the marriage of A. in the usual way, with a term of years for securing (in the events that happened) the sum of 40,OOOZ, for younger children's portions ; and afterwards a testator bequeathed a sum of 15,000^. in trust to be accumulated during the life of A., until it reached the sum of 40,000/., and then to be applied in satisfaction of the portions ; and he gave another sum for building a mansion-house on the settled estate ; Lord St. Leonards held, that this was clearly within the exception, and that the accumulation might continue after the expiration of twenty-one years, computed from the testator's death. A provision for raising or satisfying portions charged or created by a pre- vious instrument is, therefore, within the exception in the statute (A). On the other hand, it has been decided that an accumulation of the „.. . whole of a testator's estate (c), or of the residue, compris- ui estate aug- ing the buUc, of it (d), and a gift of the augmented fund, accumulation Comprising both capital and accumulations, is not protected isnotapov- by the exception. "A direction to accumulate all a per- *'""■ son's property," said Lord Cran worth (e) , " to be handed over to some child or children when they attain twenty-one can never be said to be a direction for raising portions for the child or children : it is not raising a portion at all ; it is giving everj'thing. ' Portion ' ordinarily means a part or share, and though I do not know that a gift of the whole might not in some circumstances come under the term of a gift of a portion, yet I do not think it comes within the mean- ing of a portion in this clause of the act, which points to the rais- ing of something out of something else for the benefit of some chil- dren or class of children. ... If every dh'ection for accumulation for a child was a portion, the intention of the legislature, which was to prevent accumulations, such accumulations being most frequently directed for the benefit of children, would be entirely defeated." Again, in Burt v. Sturt(/), where legacies were given to all *309 * the testator's children, and the residue was directed to be ac- cumulated during the lives of the children and of the survivor of them, and after the decease of the survivor the whole was to be divided between the grandchildren of the testator then living, Sir W. P. Wood V.-C, said it was simply a scheme of the testator for the purpose of accumulating his propert.y into one mass, and handing it over in that mass at the remote period of the death of the survivor of a number of (a) 2D.M. &G. 480. (ft) But (as appears by Beech v. Lord St. Vincent and other cases, and notwithstanding Halford ». Stains, 16 Siin. 496) not exclusively so. (c) Wildes 1). Davies, 1 Sm. & Gif. 475. (d) Evre v. Mar.«dcn, 2 Kee. 573 ; Bourne v. Buckton, 2 Sim. N. S. 91; Edwards ». Tuck, 3 D. M. & G. 40 ; Mathews «. Keble. L. R. X Ch. 691. (c) Edwards v. Tuck, 3 D. M. & G. 58. (/) 10 Hare, 415. See also Drewett v. Pollard, 27 Beav. 196. 332 MAY BE ACCTJMITLATED. — "PORTIONS." *310 persons whom he had mentioned, not to any given child or children, but to two or three or possibly one favored individual ; *t did not seem to him that in any sense or upon any rational construction he could call that the raising of a portion for children : in truth it was only the Thel- lusson scheme arranged in a somewhat less complicated and less ex- tensive shape. In Jones v. Maggs (ff) , where a legacy of 200?. was directed to be accumulated until the child of A. (who then had one child) whether should attain twenty-one, and on that event to be divided, ^^"\? ''"'® with its accumulations, among the children of A. who should pecuniary be then living, and the residue of the personal estate was '"^acy so '=' * augmented, given to the parent. Sir G. Turner, V.-C, held that the Jones i>. legacy was not a portion, though in a certain sense it was *^^^' raisable out of the property of the parent ; otherwise every legacy given to a child of a residuary legatee must be so construed and the act would be wholly defeated. This decision was much influenced by the V.-C.'s opinion, now exploded, that to bring the case within the exception, the parent must take an interest in the very fund directed to be accumulated ; and no distinction was noticed between the accumula- tion of the entirety or bulk of an estate and of a mere pecuniary legacy-. The effect upon the act of a contrary decision was certainly overstated. On the other hand. Sir J. Stuart, V.-C, distinguished between a gift of the whole of a testator's estate, augmented by accumulation, and a gift of a pecuniary legacy so augmented (A) . And in Middleton v. Losh(j), where a testatrix bequeathed 50,000?. to trustees MifJieton ». upon trust to invest, and apply a competent part of the ^°^^- income towards the maintenance and support of her son W., and to accumulate the remainder, and after his decease upon trust to divide the capital and accumulations between the children of W., and in case of the death of W. without issue the * capital and accu- *310 mulations to sink into the residue of her personal estate ; he de- cided that the accumulation was valid as a provision for portions, rely- ing mainly on " the just principles of construction " adopted by Lord St. Leonards in Barrington v. Liddell. The question chieflj- discussed in that case was not what is a portion, but what interest must be given to the parent (k) . And although the subject of gift was, as in Middleton v. Losh, a pecuniary legacy aug- mented bj- accumulation, and although it must be admitted that whether the testator has or has not directed the legacj' to be taken in satisfac- tion of portions already charged on the estate of another person, the result quoad the testator's own estate is the same, yet the presence of such a direction brings the case literally within the words of the act, (a) 9 Hare, 605. (h) Wildes v. Davies, 1 Sm. & Gif. 475. (I) 1 Sm. & Gif. 61. See also St. Paul v. Heath, 13 L. T. N. S. 270; and the observa- tions on Middleton v. Losh, in 10 Hare, 426. (i) See this insisted on, 2 Dr. & Sm. 61. 333 *311 PERIOD ALLOWED FOR ACCUMULATION. and distinguishes it too widely from Middleton v. Losh to permit its being regarded %,s an authority for the decision in the latter case. A similar direction would equally bring within the letter of the act a case where (as in Edwards v. Tuck) the subject of gift was not a pecuniary legacy only but the bulk of the testator's estate. But there is no actual decision to that effect. A trust to accumulate a legacy during a stated period, and at the Legacy to ac- expiration of it, to pay the income to A. for life, and after- cumuiatein wards to divide the capital among the children of A., is for liie and plainly not a provision for raising portions for children, but for'^hTs'cMl- °^^^ ^ legacy in trust for a parent for life, and after his death dren, not a for his children (l) . And it cannot be material to the con- portion, struction of the statute that the testator has or has not called the children's shares of an accumulated fund their " portions " (m) . It will have been seen that, in Middleton v. Losh, the aggregate fund was not necessarily to go to the children of W., but if all his issue died Acciimuia- ^"^ ^^^^ lifetime it was to fall into the residue, so that it was tion valid or not in all events a fund for portions. But the validity of the iug to the accumulation ma}' well depend on the event : as in Re Clu- purpose low's Trusts ()i), where a fund was directed to be accumu- emvt it is lated, and was given to the children of the testator's son applicable. (who took an interest under the devise) ; but if there should be no children, to such persons as the parent should by will ap- point : Sir "W. P. Wood, V.-C, said that if there had .been children, this might have been upheld as a provision for their portions ; but as *311 there were and could be none, and the testamentary power * of appointment was clearly no " portion" for the parent, the V.-C. held that the direction to accumulate was within sect. 1 of the act, and invalid after the lapse of twentj'-one years from the testator's death. The next question is, what is the interest which a parent, not being Wliat inter- t^e grantor, settlor or devisor, must take under the conve}*- est the parent ance. Settlement or devise, in order to render valid an ac- underthede- cumulation for portions for his children? May it be an vise. interest of anj' kind, or must it be an interest in the identical propertj' from which the income directed to be accumulated arises ? and must it be a substantial interest, or will a merely nominal interest suf- fice ? In Barrington v. Liddell (o) , Lord St. Leonards read the word " devise " in the act as meaning " will," and held, that the interest need not be one in the very fund to be accumulated, and that the legacy for building a mansion-house on the estate of which the parent was tenant for life, gave him a sufficient interest within the act. And as to quan- {l) Watt V. Wood, 2 Dr. & Sm. 56. (m) See per Kinderslev, V.-C, Bourne «. Buokton, 2 Sim. N. S. 96. (n)lJ. &H. 639. (o) 2 n. M. & G. 480, stated above.. Morgan v. Morgan, 15 Jur. 319, 20 L. J. Ch. 109, ap- pears to decide that a specific legacy to the parent will not render valid an accumulation of a general legacy to the child. But the case is obscure. 334 "PORTIONS." — EELBASED INCOME. *312 turn, the L. C. cited, with apparent approbation, the opinion expressed by Lords Lj-ndhurst and Brougham (jo) , and approved by Lord Cran- worth (g) , that any interest, however minute, was sufflcient. But, ac- cording to Lord Langdale (r) , it would seem that, where accumulation is directed for the benefit of children of several parents, if any one par- ent takes no interest, the whole direction fails. The destination of the income which the statute releases from ac- cumulation has occasioned much debate. The law on this Destination point, however, may now it is conceived be stated as fol- of tiie income ' released from lows : — accumula- 1. Where there is a present gift in possession, and the ''''"• direction to accumulate is engrafted upon that gift, the statute, by dis- charging the property from the superadded trust, has the effect of en- titling the donee or successive donees to the immediate income, as if the prior gift had stood alone (s)^. 2. Where the vesting of a contingent interest (t) , or the * possession of a vested interest (u) is postponed till the expira- *312 tion of the period of accumulation, the statute, by stopping the accumulation, does not accelerate the vesting in the one case, or the possession in the other ; but where the property is not a residue carries the income in the case of personal property to the residuary legatee (a;) ; and in the case of real property, to the residuary devisee, or heir, ac- cording as the will does or does not come within the statute 1 Vict. c. 26 (y) . Where the residue is not given absolutely, but only for life or some other limited interest, the income forms part of the capital of the residue, so that the person having such limited interest is only entitled to the income of such income (z).^ (p) Evans v. Hellier, 5 CI. & Fin. 126. (i^) Edwards v. Tuclt, 3 D. M. & G. 40. Wood, V.-C, appears to have been of tlie same opinion, Burt v. Sturt, 10 Hare, i2fi. (>■) Eyre v. Marsden, 2 Kee. 573. (s) Trickey v. Triekey, 3 My. & K. 560; Combe v. Hughes, 34 Beav. 127, 2 D. J. & S. 657. An absolute donee may, at majority, stop accumulation directed for his sole benefit and require immediate payment. Gosling v. Gosling, Johns. 265. Secus, if any other person may by possibility be interested. Gott v. Nairne, 3 Ch. D. 278 ; Harbin i!. Masterman, L. R. 12 Eq. 55D. (0 Jones v. Maggs, 10 Hare, 605. (m) Macdonald v. Bryce, 2 Kee. 276; Evre v. Marsden, ib. 374; Ellis v. Maxwell, 3 Beav. 597; Nettleton v. Stephenson, 3 De G. & S. 366; Lord Harrington v. Liddell, 10 Hare, 420 ; Weatherall v. Thornburgh, 8 Ch. D. 261. "Where accumulation is directed for a stated period, " or so much of it as the law will allow," and the gift is to take effect at the expira- tion of the stated period (without more) acceleration is excluded by the will itself. Talbot v. Jevers, L. R. 20 Eq. 255. (a:) Ellis ». Maxwell, 3 Beav. 587 ; Att.-Gen. v. Poulden, 3 Hare, 555 ; Jones e. Maggs, 9 Hare, G05. (y) Nettleton v. Stephenson, 3 De G. & S. 366; Smith v. Lomas, 33 L. J. Ch. 578; Green V. Gascoyne, 4 D. J. & S. 565. S6e also Re Clulow's Trust, 1 J. & H. 639, where the accu- mulatioti bein^; in the nature of a charge on real estate sank for the benefit of the estate. Cf . Simmons v. Pitt, L. R. 8 Ch. 978, where a previously existing charge was directed to be accu- mulated and the next of kin took the excess. (2) Crawley v. Crawley, 7 Sim. 427 ; Morgan v. Morgan, 4 De G. & S. 175, 176, 20 L. J. 1 See Haxtun v. Corse, 2 Barb. Ch. 506; 322; Phelps v. Pond, 23 N. Y. 69; Philadel- Craig s. Craig, 3 Barb. Ch. 76; Hawley «. phia v. Girard, 45 Penn. St. 1; Combe ii. James, 5 Paige, 318; Williams v. Williams, Hughes, lljur. N. S. 194. 4 Seld. 525 ; Kilpatrick v. Johnson, 15 N. Y. 2 Hull v. Hull, 24 N. Y. 647. 335 *313 PEEIOD ALLOWED FOE ACCUMULATION. Where it is residue that is directed to be accumulated, the income of such residue, when the accumulation is stopped, will, in obedience to a well-settled principle (a), devolve in the case of personal property to the next of kin (b), in the case of real property to the heir(c), and in the case of a mixed fund to the next of kin and heir respectively (d). 3. The income of the accumulations follows the same rule ; therefore if the accumulations arise from personal property not being a residue, the income falls into the capital of the residue (e) , so that a tenant for life would only be entitled to the income of such income ; and where residuary personalty is directed to be accumulated, the income of the accumulations, of course, goes to the next of kin. Where the *313 accumulations arise from residuary *real estate, the accumu- lations of rents and profits seem to preserve their character of realty, so that the heir is entitled to the income of such accumula- tions (/) ; and it would, of course, follow, that where the accumula- tions arose from real estate other than residuary, the residuary devisee would, under the present law, be entitled. In Ellis v. Maxwell (g) , where the rents of the testator's real estate were directed to form part of Ms personal estate, and the personal estate was directed to be ac- cumulated, it was held that the income of the accumulations went to the residuary legatees. The case turned on the special words of the will. The interest which, by the operation of the statute, results to the Nature of the ^^^^i ^^^^ ^^ either a chattel interest, and pass on his death interest to his executors or administrators (h) , or an estate of free- which d6~ volves to the hold ; in the latter case it will devolve upon his heir, if he '"''''• die before 1838 (i) ; if after 1837, upon his personal repre- sentatives (k) .] In applying the statutory provision against accumulation, regard is Trusts whose had to the substance and effect, and not to the form and cjfec( IS to mere language of an instrument ; for, if property be disposed cumulation of in such manner as [either in all events, or on a contin- within'the S^^^Y which happens (Z)] to produce an accumulation of in- statute. • come, for a period exceeding what the statute authorizes, it (a) Skrymsher i). Northcote, 1 Sw. 566. (b) Macdonald v. Brvce, 2 Kee. 276 ; Pride v. Fooks, 2 Bear. 437 ; Elbome v. Goode, 14 Sim. 165; Wilson »." Wilson, 1 Sim. N. S. 288; Bourne v. Buckton, 2 ib. 91 ; Oddie v. Brown, 4 De G. & J. 179; Weatherall v. Thornburgh, 8 Ch. D. 261 (crown entitled in default of next of kin). (c) Halfordt). Stains, 16 Sim. 488; Wildes v. Davies, 1 Sm. & Gif. 475; Weatherall v. Thornburgh, supra (crown in default of heir). (d) Evre v. Marsden, 2 Kee. 564, 4 Mv. & Cr. 431; Edwards „. Tuck, 3 D. M. & G. 40; Burt V. Sturt, 10 Hare, 415. (c) Crawley v. Crawlej', 7 Sim. 427 ; O'Neil v. Lucas, 2 Kee. 316 ; Morgan v. Morgan. 4 De G. & S. 175, 20 L. J. Ch. 441. ^ ^ (/) Eyre V. Mai'sden, 2 Kee. 577; this appears still more plainly from Fitch v. Weber, , 6 Hare, ft5, and other similar cases noticed post, which show that the next of kin can take nothing but what is personalty at the time of the testator's death. la) )2 Beav. 104. (h) Sewell v. Denny, 10 Beav. 315. (?) Halford v. Stains, 16 Sim. 488; in Barrett v. Buck, 12 Jut. 771, the personal represen- tative of the heir was held to take, but as his right was not disputed, the case is scarcely an authority. (k) 1 Vict. c. 26, B. 6. (0 Mathews v. Keble, L. R. 3 Ch. 691. 336 IMPLIED TRUST. ^Sli will not avail that there is an absence of any trast expressly and in terms directed to this object. An obvious case of this nature is that of a bequest of a general resi- due to a class of persons (some of them unborn at the tes- j^^ ^^ ^^^^_ tator's decease) whose shares are not to vest until the age niuiation of twent3--one years ; for it is to be observed, that as a resid- d"ary be-*'" uary bequest, to take effect in future, carries not only the quest i" fa- bulk or corpus of the property, but also the intermediate bora persons income, it follows that the statute is infringed whenever the *' majority- vesting, or even the distribution, is postponed until a period or event which occurs more than twent3--one years after the testator's, decease, without any express application of the income accruing in the interval. [Sir L. Shadwell was indeed of opinion that the statute did not affect accumulation which arose from the nature of the gift, but operated merely to strike out of the will so much of a direction * to accu- *314 mulate as exceeded the prescribed limits (m) ; his opinion, how- ever, is clearlj'' opposed to the other authorities upon this question, including one of the highest court of appeal («) . There is a plain distinction between such a case and the cases where the property being vested in an infant the accumulation is to be assumed to be the act of the court (o) . Where there is a contingent legacy to A. to vest upon a certain event, and an accumulation is directed in the mean time, and if the event does not happen the legacy and accumulations are given over to B., and at the end of a period greater than twenty-one years (say thirty years) from the testator's death, the happening of the event is first ascertained to be impossible, so that the gift to B. then takes effect in possession, it has been held bj^ Sir J. K. Bruce, V.-C. (p), that B. is to have all the intermediate income of the original and accumulated fund between the end of the twenty-one years and the happening of the event ; Sir J. Eomillj', however, in a similar case (q), intending to follow this de- cision, decided that B. is to have simple interest on the amount of that fund during the same period. In Bassil v. Lister (/■), Sir G. Turner, V.-C, decided that a direction in a will to apply a sufficient part of the Income of the tes- Whether in- tator's property in keeping up certain policies which he had ]i^™s"forma effected on the lives of his children in their names, and which mode of ac- in case of their marriage he directed to be settled on their w"ithi'n'\h'e wives and children, was not a trust for accumulation within act. (m) Elborne v. Goode, 14 Sim. 165; Corporation of Bridgnorth i'. Collins, 15 Sim. 538. (b) Evans v. Hellier. 5 CI. & Fin. 114; S. C. nom. Shaw v. Rhodes, 1 Mv. & Cr. 135; Macdonald v. Bryce, 2 Kee. 276; Morgan v. Morgan, 20 L. J. Ch. Ill, 15 Jur! 319; Tench v. Cheese, 6 D. M. & G. 641; Macpherson v. Stewart, 28 L. J. Ch. 1T7; and see Bective v. Hodgson, 10 H. L. Ca. 664, 668. (o) See per Wood, L. J., Mathews v. Keble, L. R. 3 Ch. 696; per Lord Cranworth, V.-C, Wilson V. Wilson, 1 Sim. N. S. 297. (p) Morgan v. Morgan, 20 L. J. Ch. Ill, 441, 15 Jur. 319. (j) Brvan v. Collins, 16 Beav. 14. ()•) 9 Hare, 177. And see Meller v. Stanley, 2 D. J. & S. 183. VOL. I. 22 337 *315 PERIOD ALLOWED FOK ACCUMULATION. the statute, and was therefore valid beyond the period of twenty-one years from Ms death. He observed : " It was said in argument that the paj-ment of the income to the Insurance Company was itself an acciunu- lation ; that the company were recipients of the income for the purpose of accumulation ; that what was done was the same thing as if the rents were paid to an individual, to accumulate in his hands, and to be paid over at the death of the life insured ; and the case was presented to the court in many similar points of view ; but I do not see how *315 the payment of the * premiums to the Insurance Company out of the income is an accumulation of the income. The premiums, when paid to the Insurance Company, become part of their general funds, subject to all their expenses ; and although it is true that the funds in the hands of the companies do generally produce accumula^ tions, it is impossible to say what accumulations arise from any particu- lar premium. It was said that it was an accumulation as to the estate, because the estate receives back a certain sum upon the death of the party whose life was insured ; but what the estate receives back is not the accumulation of the income, but a sum payable by the office by con- tract with the testator ; and is this an accumulation within the meaning of the statute ? The history of the statute goes far to show that it is not, and I think the language of the enactment confirms that view. The enactment is, that no person shall settle or dispose of real or per- sonal estate, so and in such manner that the rents, profits, income or produce shall be accumulated beyond the prescribed periods ; and these are words which admit of a clear, plain common-sense interpretation, as referring to the accumulation of rents, profits and income, qua rents, profits and income. Why is the court to put a, strained construction upon them, and cut down the undoubted right which existed before the statute, beyond what the language of the statute, in its ordinary inter- pretation, imports? It is said that the court ought to do so, because the spirit and intent of the statute was to prevent accumulations and the suspension of the beneficial enjoyment ; but this argument appears to me to beg the question.; for it assumes that what the petitioner here calls an accumulation suspending the beneficial enjoyment, was an ac- cumulation intended to be prevented b3' the statute. Much reliance was placed in the argument upon the mischief which might ensue from policies of insurance being resorted to for the purpose of evading the statute, if the dispositions of this will were upheld, but I entertain no apprehension of any such mischief; I think that settlors and testators, who contemplate accumulations, are far too keen-sighted to incur the risks to which such a course of proceeding would be exposed. On the other hand I see enormous mischiefs which would arise from the con- struction for which the petitioner contends. The case before us is but one instance of the difficulties to which such a construction would lead. If it be supported what is to become of partnership agreements for long terms of years, whei'e certain sums are to be drawn out annually, 338 UFE INStJEANCE. *317 and the remaining profits are to * accumulate and be divided *316 at the end of the terms ? What is to be done with policies of insurance on the lives of debtors (s) ? And how is the ease of a settle- ment of policies of insurance, with stock transferred in trust to pay premiums out of the dividends, to be dealt with?" The V.-C. seems here to argue that because of the mode of accumu- lation adopted the statute did not applj- ; but the terms of the statute are general, that no person shall " by deed or deeds, &c., or otherwise howsoever, settle or dispose of his property so and in such manner " that the income thereof shall be accumulated ; it can scarcely therefore be said that the act does not apply because a particular mode of accu- mulation is resorted to {i) . To exclude the act, it must be denied that there is any accumulation of income whatever ; but it could not be denied, nor did the learned judge attempt to deny, that effecting an insurance was one mode of accumulation. This answers the objection, that,, "though the funds of the company might be accumulated, it would be impossible to say what part of such funds arose from any particular premiums ; " an objection which affects only the mode of accumulation. The testator's estate instead of getting back the total amount of premiums with compound interest, a sum varying in amount according to the period during which the premiums have been paid, gets back a sum certain, whatever that period may be. This sum is not less the result of an accumulation because it is of certain amount. The decision was also rested on the ground that the sum paid back was in pursuance of a contract, and therefore not within the statute ; this seems to beg the question, since, if there be an accumulation, the statute must reach it, whether it arise under a contract or by will : for its terms are general ; and a person can no more contract that his income shall be accumulated be3'ond the prescribed limits, than he could direct by wiU that it should be so accumulated ; indeed, if the statute does not extend to contracts, it does not touch any accumula- tion made by marriage settlement, for every such settlement is a con- tract. The question what would become of partnership agreements for long terms of years, b}' which a certain sum is to be drawn out and accumulated annuallj^, va.a,y, perhaps, be answered by another ques- tion, namety, supposing such agreements not to be affected * by the act in question, what would become of them when con- *317 sidered with respect to the rule against perpetuities ? an ordi- narj' trust for accumulation, extending over a long term of years (that is, as the V.-C. must have meant, more than twentj'-one years) would be void altogether as ti-ansgressing the rule against perpetuities (a) ; one of two things, therefore, is clear, either such agreements are not valid, or, if they are valid, they are governed by rules which do not (s) The statute expressly excepts provisions for the payment of debts of any person, see 2 D. M. & G. 498. (t) And see the observations of Lord Cranworth, 6 D. M. & 6. 462. (a) Pahner ». Holford, ante, p. 253. 339 *317 PERIOD ALLOWED EOE ACCUMULATION. hold good with regard to ordinary trusts, and, in either case, no argu- ment can be drawn from this source in support of the decision in Bassil V. Lister. Probably, the partnership agreements in question would be held good on the principle of the decision in Bateman v. Hotch- kin(a;), before noticed, that an accumulation which is capable at any mo- ment of being put an end to (y), can infringe neither the statutory- rule against accumulation, nor the common-law rule against perpetuities. Lastli', as to the question what would become of settlements of policies of assurance with trusts for keeping them on foot by payment of the premiums, the answer seems to be, that thej'' are either cases where security is given for a debt, or cases of settlement on a marriage, in which one of the settlors is the person during whose life the accumula- tion is to be made, both of which classes are within the exceptions of the statute under which a direct trust for accumulation would be good ; and it is conceived that there is no authority for saj-ing that any other settlement of policies of assurance is good, where a direct trust for accumulation would not also be good. It will be observed, that the remarks of the learned judge are irre- spective of the fact, that the policies were effected in the testator's life- time ; his decision was, that insurance is not a mode of accumulation affected by the statute, and it would, therefore, have been the same, if the policies had been effected after the testator's death. By giving small conditional legacies, a testator could easily procure persons, after his death, to allow policies to be effected on their lives, in their names, and to assign them to the testator's trustees, than which an easier and. cheaper mode of accumulation could not be devised.] (a) Ante, p. 275. (y) See Downs v. Collins, 6 Hare, 418.] 340 FROM WHAT PERIOD A WILL SPEAKS. *318 * CHAPTER X. *318 FKOM WHAT PERIOD A WILL SPEAKS. For some purposes a will is considered to speak from its date or execution (a) , and for others from the death of the testator : ^^^^ ^^^ the former being the period of the inception, and the latter riod a will that of the consummation of the instrument.' In determin- '^^^^ ^' ing to which of these the language points, it is necessary to distinguish between wills that are subject to the act 1 Vict. c. 26, and those which are regulated by the pre-existing law. First, with regard to wills made before the act. It may be stated, as a general rule, that wherever a testator refers to an actually existing state of things, his language is referen- Expressions tial to the date of the will, and not to his death, as this is "hM refer to then a prospective event. ^ Such, it is clear, is the construe- date of will. tion of the word " now," or any other expressions pointing at present time.' Thus, a devise to the descendants now living, of A. has been held to comprise the descendants living at the date of the will, "Now," how exclusive of such as come into existence between that pe- construed. riod and the death of the testator (6), and who would, but for this (a) In this chapter, and indeed throughout the present work, the date and the period of execution are assumed to be identical; which, it is obvious, may not be the case, and then the question would arise — which is to predominate? It is conceived that, for some purposes, the date, and for others the time of execution, would do so. In regard to the will's capacity of operation iin real estate (supposinp^, of course, the will to be subject to the old law), the period of the actual execution would be the material fact; but in regard to points of con- struction, the effect would sometimes, perhaps generally, depend on the date, or the time of apparent execution : for instance, if a testator dated his will 1st January, 18.30, and executed it on the 1st June in the same year, a bequest in such will of "all the consols now stand- ing in my name," possibly might be held to pass the consols only of which he was possessed on 1st Januarv, and not what he had acquired between the date and execution, and which he held on 1st June. [See Randfield v. Randfield, 8 H. L. Ca. 228.] (6) Crossley v. Clare, Amb. 397, 3 Sw. 320, n. See also Att.-Gen. v. Burv, 1 Eq. Ca. Ab. 201, pi. 12, 8 Vin. Abr. ,328, pi. 2; Abnev D. Miller, 2 Atk. 693; BlundellV Dunn, cit. 1 Mad. 433; see also All Souls' College v. Codrington, 1 P. W. 597; but see Eowland v. Gor- such, 2 Cox, 187. ■■ It is a general rale that a will speaks v. Ladd, 26 Ohio St. 210 ; Morse v. Mason, from the death of the testator, and not from 11 Allen, .36; Quinn v. Hardenbrook, 54 its date, unless its language, by a fair con- N. Y. 8.3; Ross v. Ross, 12 B. Mon. 437; struction, indicates the contrary intention. Butler o, Butler, 3 Barb. Ch. 304; Eells v. Caniield «. Bostwick, 21 Conn. 550; Gold «. Lvnch, 8 Bosw. 465; Ansliutz v. Miller, Judson, lb. 616. 8l Penn. St. 212. 2 Everett v. Carr, 59 Me. 325, 332 ; Gold 8 See, e.g. Hutchinson v. Barrow, 6 Hurl. V. Judson, 21 Conn. 616; Board of Educatipn & N. 583. 341 *319 PROM WHAT PEEIOD A WILL SPEAKS. *319 restrictive addition, have been let in(c) ; and the same * con- struction has obtained, even where the word " now " is combined with a term which could not have full effect, according to its technical import, unless used prospectively, as in the case of a devise to the heir male of the body of A. " now living," under which the heir apparent of A. living at the date of the will has been held to be entitled ; so that the word ' ' heir " was made to surrender its primary and proper signifi- cation, in order to give effect to the word " now," with which it stood associated {d}.^ On the same principle verbs in the present tense have a similar effect Verbs in in restricting a devise or bequest to the subjects or objects present tense, existing at the date of the will, though in some of the cases considerable reluctance appears to have been manifested to carry out this principle, where its effect would be inconveniently to narrow the scope of the will, by excluding any who might be presumed to be intended objects of the testator's bounty.^ Thus, in Wilde v. Holtzmeyer(e), Sir R. P. Arden, M. R., expressed an opinion that a bequest of " all the propertj' / am possessed of" would, if unrestrained by the context, extend to all the testator's per- sonal estate at his death. So, in Bridgman v. Dove(/), it was held that a charge of all the debts I have contracted since 1735, extended to all debts owing by the testatrix at her decease, including those she contracted after the period referred to ; [and in Bland v. Lamb (g) , the words ' ' I maj' have for- got many things, if such there is, it is to be thrown into the lump for the benefit of the legatees," were held by Lord Eldon to carry the residue at the testator's death.] Again, in Ringrose v. Bramham (h), Sir L. Kenyon, M. R., held that a bequest of 501. " to A.'s children, to every child he hath by his wife B.," to be paid to them as they should come of age, spoke at the time the will took effect, so as to let in all the children then living. The circumstances of the case, however, though not expressly adverted to by his Honor, perhaps aided the construction. The testator had directed a sum of money to be placed in the hands of a person until the (c) As to the construction of gifts to classes, ride Ch. XI. on Lapse, CIi. XXX. on Devises to Cliildren, (d) James i'. Richardi=on, T. Jon. 99, 1 Eq. Ca. Ab. 214, pi. 11, 1 Vent. 334, 2 Lev. 232, Eavm. 330, 3 Keb. 832, Poll. 457; [Burchett v. Durdant, on same will, Skin. 205, 2 Vent. 3ll, Carth. 154.1 (f) 5 Ves. 816. (/) 3 Atk. 201. [((/) 2 J. & W. 399.] (A) 2 Cox, 384. 1 See FTeard v Horton. 1 Denin, 165i will of a husband, giving power in his wife to Sinims ». Garrot, 1 Dev. & B. Eq. 393. make a will of the property given her bv him, 2 A gift of certain personal property, and must be presumed to have been intended to " all the balance of my property of every de- take effect from its date, in (he absence of any Bcripfion, real and personal " to S. does not indication in the will to the contrary ; and the in Virginia pass after-acquired real estate. consequence is, that the wife mav execute a Gibson v. Oarrell, 13 Graft. 136.. As to the valid will of the property in the'lifetime of distinction between realty and personalty, her husband, if she survive him. Nor need and as to after-acquired property generally, she re-execute it on his death. Thorndiketi. see supra, p. 326, and note. A clause in the Reynolds, 22 Gratt. 21. 342 FEOM "WHAT PEEIOD A WILL SPEAKS. *320 children came of age, wMch exceeded the sum which would have been necessary for the purpose if the legacy were confined to the children then in existence. In regard to gifts to children, indeed, an anxiety to include as wide a range of objects as possible has so powerfully influenced * the construction, that such *320 children, cases are to be regarded as sui generis. To this anxiety is also to be ascribed the rule, which constitutes another excep- tion to the doctrine under consideration, that a gift to children " begot- ten " extends to children born after the date of the will ; and a gift to children -'to be begotten" includes those antecedently in existence (i).^ To return, however, to the general subject, it may be stated that where a testator, in a will which is regulated by the old law, _ refers to a specific subject of gift, he is considered (/) as to speciSc pointing at the state of facts while he is penning the instru- bequests. ment, and not at the time of his decease, even though he may not have used the word " now," or any other adverb emphaticallj- denoting pres- ent time. The doctrine relating to the ademption of specific bequests stands upon this principle. Thus, if a testator, before the year 1838, having a leasehold messuage, or a sum of 1,000/. consols, bequeathed "all that my messuage in A.," or "all that sum of 1,000/. consols standing in my name," he is considered as referring to the house or the stock belonging to him when he made his will ; and, therefore, if he subsequently disposes of such house or stock, the bequest fails, though he may at his decease happen to be possessed of a messuage or a sum of stock answering to the description in the will (Ic). [And the rule was the same where the testator having stock in his possession at the date of his will bequeathed it as " all my stock," and afterwards sold the stock and bought new, or added to the old : in the one case the bequest failed altogether, and in the other comprised only the old stock (/).] (j) Co. Litt. 20 b. ; [see as to this, post, Ch. XXX. ij) Unless he expressly refer to the state of facts at his death ; as, by bequeathing all his horses, or all his stock, belonging to him at his death: this would be a specific bequest, though not liable to ademption, Bothamley -w. Sherson, L. R. 20 Eq. 304. A gift of property " to which I am entitled under the will of A." was held to pass money afterwards received by the testator under that will and invested in his own name, it being still traceable, Morgan v. Thomas, B Ch. D. 176. i.k) Pattison «. Pattison, 1 My. & K. 12. (/) Cockranu. Cockran; 11 Sim. 248. See also per Wood, V.-C, Goodlad ». Burnett, IK. & J. 347.] 1 An immediate gift to children simplid- Mason, 11 Allen, 36; Buzby's Appeal, su- ter, without additional description, means a pra; Clarke's Estate, 82 Penn. St. 528. Thus, gift to the children in existence at the death where it clearly appears that the testator in- of the testator, if there be any at that time. tended his heirs or next of kin at the death of Shotts V. Poe, 47 Md. 513 ; Benson v. a tenant or legatee foi* life, such intent will Wright, 4 Md. Ch. 278. So, too, it is a gen- prevail. Buzby's Appeal, supra. Nor will eral rule that a bequest or devise to the the use of the word " then " as introductory " heirs " or the "heirs at law" of a testator to the gift over after the death of the legatee will be construed as referring to those who or tenant for life prevent the general rule are such at the time of the testator's death, from applying, unless it be so used as to unless a different intention is plainly mani- clearly indicate that the next of kin or heirs fested by the will. Minot v. Tappan, 122 living at the death of the life tenant or lega- Mass. 535; Abbott v. Bi-adstreeJ, 3 Allen, tee are intended. Minot v. Tappan, supra. 587; Buzby's Appeal, 61 Penn. Still. Hollowav )'. Hollowav, 5 Ves. 399; Ware «. The rule, however, will always yield to the Rowland", 2 Phill. (Eng.) 635. expression of a different intention. Morse v. 343 *821 FEOM WHAT PKRIOD A WILL SPEAKS, And a new estate in leasehold property, acquired by a subsequent Effect of re- renewal of the lease or otherwise, is no less out of the reach be&TOs^or °f ^ specific disposition of such property, as ordinarily ex- leasehoids. pressed, than an interest in any other property answering to the same locality ; it being considered that the testator, when referring to the property in question, had in his contemplation exclusively the specific interest in it of which he was possessed when he made his will, though he has not in terms referred to such interest, but has used *321 expressions descriptive of the corpus of the property : as in *the case of a bequest of " aU my tithes and ecclesiastical dues at W."(la) ; or "the perpetual advowson and disposal of the living or rectory of W. for ever, together with the tithes of all sorts thereof "(m) ; or " all my leasehold estates in the parish of C."(n) . In all such cases the renewal of the lease under the old law revoked the bequest, or rather, to speak more accurately, withdrew from its operation the prop- erty which was the subject of disposition : in short, effected what is technically called an ademption. But though the general principle has long been settled, yet questions often arose in consequence of the context of the will affording ground to contend, that the testator intended any after-acquired interest of which he might become possessed by renewal, to pass under the bequest. The renewed lease will pass where the testator includes in the bequest Renewed the right of renewal as an accessory to the immediate sub- lease passes ject of disposition. And [where the lease of which a be- of renewal is quest is made is vested in a trustee for the testator and is included. renewed by the trustee, the gift of the property comprised in the lease being in fact a gift of the equitable interest which includes the benefit of renewal, the trust of anj' renewed term granted to the trustee would pass under such bequest (o) . And the same principle applies to the case of a lease for lives with a covenant for perpetual renewal (/>).] Where (q) a testator, who was by his marriage settlement under an obligation to renew the lease of certain property which had been thereby"- settled, and the beneficial interest whereof was, in default of issue of the marriage, vested in himself, by his will bequeathed the property, describing it as his manor, &c. in L. held by lease from the Dean and Chapter of Windsor, to the trustees of his marriage settlement, upon certain trusts, including among others a trust to perform the covenants contained as well in the then lease as in any future leases thereafter to be obtained : Lord Eldon (affirming a decree of Sir J. Leach, V.-C.) (,1a) Eudstone v. Anderson, 2 Ves. 418. (m) Hone' v. Medcraft, 1 B. C. C. 261. (n) Coppin v. Fernvhougli. 2 B. C. C. 291. [(o) Carte «. Carte, 3 Atk. 174; Slatter v. Noton, 16 Ves. 200. l]i) See Poole «. Coates, 2 D. & War. 493, 1 Con. & L. 531, sUted ante, p.l5T.] (}) Colgrave v. Manby, 2 Russ. 238 ; see also 6 Mad. 72. 344 FROM WHAT PERIOD A WILL SPEAKS. *322 was of opinion that, regard being had to the language of the settlement and will, the testator must be considered as dealing with his whole in- terest and the obligations which existed, and that the devise passed all future renewals as well as the term which then subsisted. From the judgment of the V.-C, in this case, it would * appear that *322. he had fallen in with the notion of Lord Hardwicke, in Carte v. Carte (r) , that a bequest of the testator's interest in leaseholds refen-ed to his interest at the time of his decease. Lord Eldon, though he affirmed the decree, lent no countenance to any such doctrine ; which, indeed, is directly encountered by Slatter v. Noton (s), where a bequest bj- a lessee of her dwelling-house, and all her estate, term, and interest therein, was held not to include a term of years subsequently acquired by the renewal of the lease. It has been decided, however, -vyhether by Lord Eldon (<), that a bequest of leaseholds " for aU the word referred residue of the term and interest I shall have to come therein future in- at my decease," does not refer merely to the residue which terest. might, at the testator's decease, happen to be unexpired of the term which existed at the making of the will (as considered by Sir Wm. G-rant, whose decree his Lordship reversed), but comprises an interest subsequently acquired by renewal. And this seems to accord with the doctrine of Churchman v. Ireland (m), where a devise of all and singular the effects, real and personal, "which I shall die possessed of," was held to refer not merely to the lands then belonging to the testator of which he should die seised, but to all property which the testator might acquire after the execution of his will (a;).^ "The learned reader will, no doubt, perceive the difference between cases in which a bequest of a term of years is adeemed by p-g the renewal of the lease, and those in which the devise of a between free- freehold estate is revoked by the effect of a conveyance re- L'^thoku in vesting the estate in the testator but occasioning an inter- regard to re- ruption of his seisin (3/). The ademption in the former case of convey-'" is not, like the revocation in the latter, the consequence of a ^'"=^^- technical rule of law, acting independently of volition, but is simply the effect of the absence of apparent intention to include the future interest. Accordingly it has been decided, that where a testator, after bequeath- ing, by a will made before 1838, a chattel lease, assigned it to a trustee for himself, the transaction had no revoking effect upon the prior be- quest as to the equitable interest which remained in the testator («), (r) 3 Atk. 174. (s) 16 Ves. 197. [(t) James v. Dean, 11 Ves. 383, and 15 Ves. 236.] (m) 1 E. & My. 250, overruling Baclc v. Kett, Jac. 534. (x) See also thellusson v. Woodford, 13 Ves. 209, 1 Dow, 249; [and Hance v. Truwhitt, 2 J. & H. 216, where the words were " whereof I am or shall or may be seised."] (y) Vide ante, p. 147. (z) See Woodhouse v. Okill, 8 Sim. 115. 1 Where there . is no gift to the objects, contrary intention can be collected from the except in a direction to divide the subject will. Tebbs ». Duval, 17 Gratt. 349; Leake among them upon the happening of a particu- v. Robinson, 2 Mer. 363 j Jones v. Mackil- lar event, only such can take as answer the wain, 1 Buss. 220. description at the period of divisioib, unless a 345 *324 FROM WHAT PEKIOD A WILL SPEAKS. though the legal estate, which was assigned to the trustee, was of course thereby withdrawn from its operation. Still less does the *323 merely taking an assignment of the legal * estate (which is the converse case) revoke the bequest (a) ; such an act, indeed, we have seen does not amount to revocation even of a devise of real estate (b) ; though of course, even in the case of a chattel lease, the legal estate would not pass by the bequest, unless it contained expressions adequate to comprise any future estate in the property. [Lands held under renewed leases for lives, as we have before seen, fell (previously to 1 Vict. c. 26) under a different rule from those held under renewed leases for years, and could not in anj' case have passed under a wUl made before renewal, though such will professed in terms to devise every future interest in the lands (c).J The same principle which governs the construction of expressions Construction descriptive of a specific subject of disposition, applies also of words re- to the objects of gift. Thus, if a testator give an estate or a existing indi- sum of money to his son John, the gift will take effect in Tidual. favor of his son of this name (if any) at the date of the will, and of him only.^ If, therefore, such son should die m the tes- tator's lifetime, and he should afterwards have another son of the same name who should survive him, such after-borja son would not be aa object of the gift. [Similarly, a gift to the child with which the testa- tor's wife was pregnant, which child was still-born, was held not to take effect in favor of another child of which the testator's wife was pregnant at the time of his death, though the result was that all the testator's property was devised away, and the last-mentioned child left unprovided for (rf)-] And the same rule would seem to obtain if the devisee or legatee were described with reference to his filial character only, without any other designation (e), as in the case of a gift to "my son" simply, which would apply, it is conceived, to the son (if any) living at the date of the will, to the exclusion of any after-born son, though such after-born son should, by reason of the decease of the then existing son, happen to be the only person answering the descrip- tion at the death of the testator. A question of this nature [may arise on wills made before 1838, containing a gift to the wife of the testator (_/), and on all Gifts to wife ^iHg containing a gift to the wife of another person, Btrued; *324 under] * which, on the principle just stated, the indi- vidual standing in the conjugal relation at the date (a) Clough V. Clough, 3 Mv, & K. 296. (i) Ante, p. 155. Uc) Marwood 0. Turner, 3 P. W. 1G3. (rf) Foster v. Coolt, 3 B. C. C. 346.] (e) This position, liowever, is advanced with some diffidence, seeing tlie strong anxiety of the cotirts to extend, as much as possible, gift.s to children ; [see Perkins »;. Mieklethwaite, ante, p. 200; and Thompson v. Thompson, and King o. Bennett, post, Ch. XXX. s. 7. ( f) Under 1 Vict. c. 26, 9. 18, the will would be revoked by a second marriage, and the qnestion could not arise. See Pratt v. Mathew, 22 Beav. 334.] 1 See Anshutzt). Miller, SlPenn. St. 212, gift to testator^s widow: Butler ». Butler 3 Barb. Cb. 304. 346 PROM "WHAT PERIOD A WILL SPEAKS. *325 of the will, would take, exclusively of any other person who might happen to answer the description at the death of the testator (5'). Accordinglj-, by early writers it is laid down {h) , that if one devise land to the wife of J. S., and J. S. die, and she take to husband J. D., and then the devisor die, she shall take the land ; and yet she is hot the wife of J. S. w^hen the devisor dies, nor shall she take it as his wife : but the intent is, that she who was the wife of J. S. at the time of the making the will should have it, and the person is clear by the descrip- tion. But if J. S. had had no wife at the date of the will, it is very doubtful whether a person subsequently becoming such in the testator's lifetime could have claimed under the devise, unless the description were appli- cable to her at the testator's death ; she ought, it is conceived, to answer the description at one of these periods. The distinctions upon the subject deducible from general princi- ples, and the authorities just referred to, appear to be the general prop- following : First, that a devise or bequest to the wife of A., ositions; who has a wife at the date of the will, relates to that person, notwith- standing any change of circumstances which may render the descrip- tion inapplicable at a subsequent period, and, by parity of reasoning, is under att circumstances confined to her ; but that, secondly, if A. have no wife at the date of the will, the gift embraces the individual sustaining that character at the death of the testator («) ; and, thirdly, if there be no such person either at the date of the will, or at the death of the testator, it applies to the woman who shall first answer the description of wife at any subsequent period. There seems to be no ground, upon principle, for varying the con- struction, where the gift to the wife is by way of remainder whether gifts after the death of the husband ; the rule being, that the '" remainder ' *" are distin- devise of an estate in remainder, to a person in a certain guishabie. character, and by reference simply and exclusively to that character, vests in the person sustaining it at the death of the testator. The consequence would be, that in case the person who was wife at the death of the testator, or who subsequently became such, died in the lifetime of her husband the tenant for life, no after-taken wife * surviving him would be entitled under the devise ; since it *325 would be impossible, consistently with the principle in question, to hold that it remained contingent until the death of the husband, or that it shifted from time to time to the several persons upon whom the character of wife successively devolved {k) . The doctrine here con- (y) Niblock v. Garratt, 1 E. & My. 629; [Bryan's Trust, 2 Sim. N. S. 103; Franks v. Brooker, 27 Bear. 635.] (A) 10 Mod. 371 ; 8 Vin. Abr. 309, tit. Dev. T. b. pi. 2; Plow. 344, a. [(!) See Llovd v. Davies, 14 C. B. 76; and analogous cases, Ch. XXX arf /?».] [(A) Radford ». Willis, L. R. 7 Ch. 7, and see Boreham v. Bignall, 8 Hare, 131, where however the words were special.] See also Driver d. Frank v. Frank, 3 M. & Sel. 25, 8 Taunt. 468. 347 *326 PROM WHAT PERIOD A WILL SPEAKS. tended for, however, may appear to be encountered by Peppin v. Bick- ford (/), where a testator gave to his nephew A. 6,000i. to be raised out of his estate, and which he directed should not be paid or payable until the day of his marriage, when it was to be laid out in the purchase of land, to be settled and conveyed to the said A. and his assigns for life, and after his decease, to and upon the wife of A. for life, and after her decease, then unto and upon the first son of A. on the body of such wife to be begotten, in tail male, remainder to the other sons succes- sively in tail male, remainder to the daughters as tenants in common in tail, remainder to the testator's brother-in-law B. in fee. A. was unmarried at the date of the will and the death of the testator. He subsequently married a lady, who died in his hfetime without issue. He afterwards married again, and the second wife claimed to be in- cluded in the trusts, contending that the estates were to be settled on any after-taken wife of A. and his issue by such wife, in case his first wife should die without issue ; and the court so decided. Lord Lough- borough said : " If the wife had died within a month after the marriage, there could have been no issue to take the provision : and the legacy of 6,000/., except as to the life-interest of the nephew, would have lapsed (qu. failed?). It is impossible to ascribe such an intention to the testator" (m). In this case, the construction must, it is conceived, be referred to the Remarks up- special clrcumstances of the trust being executory, which on Peppin v. authorized the court to give it a liberal construction, and that, by restricting the trust in favor of the wife to the first person standing in that relation, the Umitation to the issue would have been restricted to her children, which could hardly be ^the intention of the testator, who was the husband's relation (n). [On the same principle, a gift to the testator's servants, simply, Gift to ser- without adding a condition, " that shall be in his service at vants means ^is decease," wUl take eflfect in favor of the servants date of will. *326' at the date of * the wUl, even though they subse- quently quit the testator's service, to the exclusion of those who subsequently enter his service (o).] Under the old law, where a testator made a general gift of his real Ab to general ^'^'^ personal estate, he was considered as meaning to dis- devises and pose of these respective portions of property to the full eques s. extent of his capacity ; and, accordingly, such a gift, in regard to the real estate, was read as a gift of the propertj^ belonging to the testator at the time of the execution of his will (he being inca- pable of devising any other), and as to the personalty, as a disposition 0,) 3 Ves. 570. (m) See also AUanson v. Clitheroe,' 1 Ves. 24, Belt's Sup. 24. Un) ReLyne's Trust, L. R. 8 Eq. 68; Lnngworth v. Bellamy, 40 L. J. Ch. 513. (0) Parker v. Marcliant, 1 Y. & C. C. C. 290. It the condition be added it must be strictly complied with. Previous dismissal, though wrongful, intercepts the gift. Darlow v. Edwards, 1 H. & C. 547. See also Re Hartley's Trust, W. N., 4 May, 1878, where on the master's illness his establishment was broken up.] 348 FBOM WHAT PERIOD A WILL SPEAKS. *326 of what he might happen to possess at the period of his decease.* And ~the rehictance of the bourts to confine a general bequest of personaltj- to what the testator possessed at the date of the will sometimes, we have seen (jo), prevailed against the force of words which might seem so to restrict it. The same principle also was applicable to a general bequest of any particular species of personal property, as of " my furniture and effects," which accordingly was said to embrace property of this description belonging to the testator at his death (§').'' The will also was held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons ; Qjftg to as to children or descendants, which applied to the per- classes. sons answering the description at the death of the testator, irrespec- tivelj' of those to whom the description was applicable at the date of the will, but who subsequently died in the testator's lifetime. Secondlj', it remains to consider how far the preceding doctrines apply to wills which, being made or republished since the As to wills year 1837, are regulated by the act 1 Vict. c. 26, which " vkt.'^26, provides (s. 24), "That everj' will shall be construed, with s. 24. 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 -vyrin ;„ jgfej. death of the testator, unless a contrary intention shall ap- ence to the pear by the will." ' speak f?ora This enactment must be viewed in connection with sect. 3, '^^ death. (/)) Vide ante, p. 319. (q) 1 Eq. Ca. Ab. 200, pi. 12. [See also Banks v. Thornton, 11 Hare, 176, where a bequest of "all the residue, of ray property which consists of stock" was held to include all stock in the testator's possession at his death. 1 Van Kleeck ». Dutch Church, 20 "Wend. Kansas. Comp. Laws, 1879, ch. 117, p. 1007. 457; Canfield ». Bostwick, 21 Conn. 550; Kentucky. Gen. Stat. 1873, ch. 11-3, p. 832. Gold V. Judson, ib. 616; Philadelphia v. See Walton ». Walton, 7 J. J. Marsh. 58. Davis, 1 Whart. 490; Loveren v. Lamprey, Maine, p. S. 1871, ch. 74, p. 564. 2 Foster, 434, 442; Kuhn «. Webster, 12 Maryland. Rev. Code, 1878, Art. 49, p. 421. Gray, 3; Haven u. Foster, 14 Pick. 534; See Carroll w. Carroll. 16 How. 275 ; Johns Wait «;. Belding, 24 Pick. 136; Lanningu. ». Hodges, 33 Md. 515. ' Cole, 2 Halst. Ch. 102. See Gilmer v. Gilmer. Massachusetts. Gen. Stat. 1860, ch. 92, 42 Ala. 9; Raines o. Barker, 13 Gratt. 128; p. 478. Gibson v. Carrell, ib. 136 ; Clements v. Kvles, Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, ib. 468 : WagstafE «. Wagstaff, L. R. 8 Eq . 229 ; p. 1372.' Delacherois v. Delacherois, 11 H. L. Cas. 62. Minnesota. Stat. 1878, ch. 47, p. 567. 2 See Warner v. Swearingen, 6 Dana, 195. Mississippi. Rev. Code, 1871, ch. 54, p. 525. 8 States in which after-acquired property Missouri. R. S. 1879, Vol. 1, ch. 71, p. 679. may pass by will: — See Liggat o. Hart, 23 Mo. 127; Applegate Alabama. Code, 1876, Title 4, ch. 2, t). 586. ■Nt^L^Jb!*' p15 «,lf® 1 87i .t, it „ mn ri„i:f ;„ n^Ar.^ a ct„* ioto xt-^i i IVebraska. Gen. otat. 1873, ch. 17, p. 300. Tkle6 ch.^,p 7^. ' ' Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, Colorado.' Gen! Law.«,'l874, ch. 103, p. 929. -NroJ; «".„„.»,!„ n..„ t„,„. la-a „h loq Connecticut. Gen. Stat. 1875, ch. 11, p. 368. New, Hampshire. Gen. Laws, 18,8, ch. 193, Dakotah. Rev. Code, 1877. Title 5, ch. 1, j^^P; ^^^;^^_ ^^^,.^.^^^ nm-Xm, Vol. 2, P^i^r- C^T-l^^-rfiltA^^^ ^; 49.- NeS; Yofk. R. S. 1875, Vol. 3, eh. 6, p. 58. Georgm. Code,1873,Tte6,ch.2,p.425. North Carolina. Battle's Revisal, 1873, Ilbno.s. R.S.1880 ch 148 p.1108. ch. 119, p. 847. See Battle ». Speight Indiana. Stat. 1876, Vol. 2. ch. 3. p. 571. g j^.^^ 'ggg '^ " ' Iowa. Rev Code, 1880, Title 16, Vol. 1, qj^j^ ^ S.'l880, Vol. 2, ch. 1, p. 1436. en. 2, p. 607. ' ' ' " 349 »327 FBOM WHAT PEEIOD A WILL SPEAKS. which enables testators to dispose of all the real and personal estate to which they may be entitled at the time of their death, *327 * which, if not so disposed of, would devolve to their gen- eral real and personal representatives. Had the latter clause stood alone, it might have been a question whether the legislature, See Smith B.Jones, 4 Ohio, 136; Board of Education v. Ladd, 26 Ohio 8t. 210. Pennsvlvania. Bright. Purd. Digest, 1700- 187'2, Vol.: 2, p. 1476. See Clarke's Es- tate, 82 Penn. St. 528; Cresson's Appeal, 76Penn. St. 19. Rhode Island.- Gen. Stat. 1872, ch. 171, p. 373. South Carolina. R. S. 1873, ch. 85, p. 440. Tennessee. Stat. 1871, Vol. 2, ch. 1, p. 999. Texas. R. S. 1879, Title 99, p. 712. Utah. Comp. Laws, 1876, ch. 2, p. 271. Vermont. Gen. Stat. 1862, ch. 49, p. 377. Virginia. Code, 1873, ch. 118, p. 911. See Smith V. Edrington, 8 Cranch, 66 ; Allen V. Harrison, 3 Call, 251 ; Hyer v, Shobe, 2Munf. 200. West Virginia. R. S. 1878, ch. 201, p. 1170. Wisconsin. R. S. 1878, ch. 103, p. 649. Contra inl Florida. Bush's Digest, 1872, ch. 4, p. 75. In Massachusetts, " any estate, right., or interest in lands acquired bj- the testator, after the making of his will, shall pass thereby, in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator." Gen. Stat. Mass. ch. 92, § 4. In New York, the provision is, that "every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms de- noting his intent to devise all his real prop- erty, shall be construed to pass all tlie real estate which he was entitled to devise at the time of his death." 3 New York Rev. Stat. p. 58, § 7. In construing the similar statute of New Hampshire, the court in Lov- eren v, Lamprej', 2 Foster, 434, refer to the decisions upon those general expressions in a will, which have always been held to pass after-acquired personal property, and suggest that the same expressions used in reference to real estate since the statute ■would pass such real estate acquired after making the will. lb. 444. The effect of the English statute, and of statutes of the same purport, is to substitute a new and distinct mtent in place of the one previously consid- ered to exist, — an intent to give the after- acquired estate, — unless there be evidence in the will that such was not the purpose of the testator. See, e. y., Roney v. Stiltz, 5 Whart. 381. Still, the question is one of the testator's actual intention when that can be ascertained from the will ; Cole v. Scott, 16 Sim. 259; S. C. 1 Macii. &'G. 518; Hutchin- son i>. Barrow, 6 Hurl. & N. 583 ; In re Mid- land By. Co., 34 Beav. 525; Garrison v. Garrison, 5 Dutch. 153. And the statutes of the states differ upon this subject. "See further Brimmer ». Sohier, 1 Cush. 118 ; Blaney v. Blaney, ib. 107; Brigham v. Winchester, 1 Met 390; Wait v. fielding, 24 Pick. 136; Winchester v. Forster, 3 Cush. 366; Hill v. Bacon, 106 Mass. 578; Hosea v. Jacobs, 98 Mass. 65 ; Jones v. Shewmaker, 35 Ga. l51 ; Gibbon «. Gibbon, 40 Ga. 5B2: Gable D. Daub, 40 Penn. St. 217; Smith ti. Hutchinson, 63 Me, 83; Meserve ». Meserve, ib.518; McGavock ».Pugsleyj 12 Heisk. 689; Thorndike v. Rey- nolds, 22 Gratt. 21 ; Henderson v. Rvan, 27 Texas, 673; Wedgwood v. Denton, l". R. 12 Eq. 290 ; Castle v. Fox, L. R. 11 Eq. 542; Cox V. Bennett, L R. 6 Eq. 422; Miles v. Miles, L. R. 1 Eq. 462. The statute of Massachusetts has been construed in several instances to apply to a will made before the act took effect, where the death of the testator occurs after- wards, and this construction is there under- stood not to give the statute a retroactive effect. Cushing v. Aylwin, 12 Met. 169; Pray v. Waterston, ib. 262. Such also is the construction of the statute of New Hamp- shire; Loveren v. Lamprey, 2 Foster, 434; Perkins v. George, 45 N. H. 453; Wakefield V. Phelps, 37 N. H. 295; and of New York, Parker v. Bogardus, 5 N. Y. 309; Lvnes v. Townsend, 33 N. Y. 558; Youngs r. Youngs, 45 N. Y. 254; Quinn v. Harden brook, 54 N. Y. 83-; Green v. Dikeman, 18 Barb. 535 ; Ellison V. Miller, 11 Barb. 332; Pond v. Bergh, 10 Paige, 140; De Peyster v. Clendining, 8 Paige, 295; Bishop ». Bishop, 4 Hill, 138; and of Virginia; Smith i). Edrington, 8 Cranch, 66. The statute of Maryland, above refeiTed to, has been held not to apply to wills made before it took effect, though the testator died afterwards. Carroll v. Carroll, 16 How. 275. So of the Pennsvlvania statute; Mullock V. Souder, 5 Watts & S. 198; and that of Connecticut, Brewster v. McCall, 15 Conn. 274; and of North Carolina ; Battle ii. Speight, 9 Ired. 288. Under the original of the pro- visions of the Act of Massachusetts above cited, the court in Cushing v. Aylwin, .supra, said that the object of the statute was to do away with an inflexible rule of the old law, theretofore in force, which had been found to operate injuriously, often defeating the in- tention of the testator clearly expressed ; and it was thought there was no good reason why the statute should not apply as well to wills made before as to those made after the act, when the will had not taken effect before that time by the death of the testator. The court declared that the Legislature had constitutional power to enact such a law. and thought that such was the intention. ' The- language was general, and not restricted to wills made after the statute. "Wilde, J. See also Pray v. Waterston, 12 Met. 262; Brim- mer i;. Sohier, 1 Cush. 118. 350 PEOM "WHAT PERIOD A WILL SPEAKS. *328 by merely enabling testators to jJispose of after-acquired General de- real estate, had so far varied and enlarged the construction estate now of a general devise as to make it extend beyond the real extends to ^ . ^ property at estate belonging to the testator when he made his will, to deatii. " which the established rules of construction, no less than the prihciple which forbade the devise of after-acquired real estate, previously re- stricted it. Any such question is, of course, now precluded ; for by the combined effect of the 3d and 24th sections of the statute, it is evident that a general devise of real estate (r), [or of the testator's real estates in a given county or parish (s),] will operate on General de- all the property of that description, to which the testator j^J^pa^tieukr' may happen to be entitled at his decease ; and though it place, seems to have become uSual in practice, to extend the devise in express terms to the real estate belonging to the testator at his death, yet this must be considered as a measure of excessive caution, and not as springing from, or sanctioning, any serious doubt as to the construc- tion. Indeed, to hold that a general devise is still confined to real estate belonging to the testator at the date of his will would most inconveniently narrow, and go far towards rendering nugatory, the enactment which declares the will to speak in regard to the estate (real as well as personal) comprised in it from the death of the testator. [But a general devise of lands in a particular place will, of course, not include lands subsequently purchased, where the will expressly disposes of the latter ; the contrary intention spoken of in the act is then clearly shown (<)■]' The application of the new principle of construction to specific be- quests, however, is attended with more difficulty. [It has, Application given rise to much litigation, and will probably give rise to of s. 24 to more] before its precise limits and eflfect are fully established. ^''^'^' °^' ' The cases immediately in the contemplation of the legislature, probabty, were (1) that of a specific bequest of a renewed leasehold property (u), which, we have seen, under the old law, did not apply to the new estate ac- quired bj' a renewal of the lease subsequentlj'*to the will ; (2) the case of a bequest of [all the testator's stock * of a given descrip- *328 tion (which we have already seen did not include any additional stock of the same description purchased by the testator after the date of his will) ; and perhaj)s also (3) the case of a bequest of] a specific sum of stock in the funds, which, upon the same principle, did not ex- tend to substituted stock subsequently acquired by the testator, though of precisely similar amount. The applicability of the new enactment to the first case cannot be ()•) O'Toole V. Brown, 3 Ell. & Bl. 572; Jepson v. Kej', 2 H. & C. 873. (s) Doe d. York v. Walker, 12 M. & Wels. 591. («) Re Farrer, 8 Ir. Com; L. Rep. 370. (m) See 4tli report of the R. P. C. pp. 23, 24, where this is fhe only case of specific bequest adverted to in connection with this subject ; all the other cases there contemplated being devises expressed in general terms. 351 *329 PEOM WHAT PERIOD A WILL SPEAKS. to renewed questioned [and its application has been extended to cases ' where, after making his will disposing of the demised prop- to after- evtv, the lessee has bought the reversion in fee : the newly purchased re- ... , , .„ . , ^ t ^ version in acqmred interest passes bj- the will, notwithstanding a reier- *®^' ence (commonly found in such cases) to the term for which the property is at the time held ; this being considered only a mode of describing the propertj-, and not as equivalent to saying, "I give my present interest and nothing else " (x) . The latter meaning would equally exclude a renewed term(2/). It is also clear that the second case is within the rule. Thus, in to specific Goodlad v. Burnett (2), where the testatrix gave "her New ^nmdefin^ Three-aud-a-quarter per Cent. Annuities " to trustees, upon amount; the trusts therein mentioned ; and, after making her will, purchased a considerable quantity of that stock in addition to what she possessed at the time of making her will, it was held bj' Sir W. P. "Wood, V.-C, that the whole was included in the bequest. He thought the Wills Act must have some sense given to it as regarded personal estate : before that act, there was no doubt that, as regarded the general personal estate, the wiU in most cases spoke from the death, but not in all ; and the present was one in which the bequest would have been confined to the stock in the testatrix's possession at the time of making her will (a) . It was precisely such a case to which the act would seem to have application ; the only question was, did a con- *329 trary * intention appear by the will? There was nothing to in- dicate such an intention, except the mere circumstance of the testatrix having described the stock as "my Three-and-a-quarter per Cents ; " and where, as here, the bequest was generic, — of that which might be increased or diminished, that circumstance was insufficient. The same principle has been applied to a devise of land. Thus in to a devise of Strevens V. Bayley (i) , where the testatrix devised to the C.""o^as to plaintiff " the lands of Cun-amore," and devised all the resi- include after- due of her real estate to the defendant. The townland of l^ds"of C. ; Curramore had originally been held in undivided moieties, and there had been a partition under which the testatrix was, at the date of her will, entitled to one portion in severalty ; and after . (x) Stnithers ». Struthers, 5 W. R. 809; Miles ». Miles, L. R. 1 Eq. 462; Cox ». Bennett, L. R. 6 Eq. 422. Sect. 23 of tlie Act was also relied on, as to which vide ante, p. 164, n. In Emuss v. Smith, 2 De G. & S. 722, it was held that a devise of " all my freehold estate at Brickhouse Lane which I purchased of B." by a testator who had before making his will purchased of B. an estate in that lane, partly freehold and partly leasehold, did not pass the reversion in fee afterwards purchased from C. of the part theretofore leasehold. As to the bequest of the garden, formerly leasehold, at Falsam Pits, this is not referred to either in the argument or the judgment. Only, according to the note of the decree, p. 738, it was declared to have been adeemed by the subsequent convej-ance of the fee. But the later decisions make this questionable. (y) See Wedgwood v. Denton, L. R. 12 En. 290, 295, 296. (z) 1 K. &. J. 341. See also Drake v. Martin, 23 Beav. 89 ; Trinder v. Trinder, L. R. 1 Eq. 695; and per Jessel, M. R., L. R. 20 Eq. 312. (a) Compare Banks v. Thornton, 11 Hare, 176. (6) 8 Ir. Law Rep. N. S. 410.] 352 FKOM WHAT PERIOD A WILL SPEAKS. *330 the date of her will, she purchased the other portion. It was held that the whole townland passed to the plaintiff. Monahan, C. J., who delivered the judgment of the court, considered that the description comprised the whole townland, and, consequently, included aU in the townland of which the testatrix was seised at her death. So in Castle v. Fox (c) , where a testator being entitled to the mansion house of Cleeve Court and lands adjoining, devised " his mansion and estate called Cleeve Court " to certain persons, and the residue of his property- to certain other persons ; and afterwards, at different times, bought other pieces of land, which he added to Cleeve Court, and treated and spoke of them as part thereof; Sir R. Malins, V.-C, said he was required by sect. 24 to ask the question what it was the testator called the Cleeve Court Estate at the time of his death ; and finding upon the evidence that these additions were then regarded and treated by the testator as part of the estate, he held that they passed as such under the specific devise.] The new rule of construction, however, [would,] according to the general terms in which the enactment is framed, apply to toasriftof many cases in which its effect [would] be less decidedly "my house salutary, nay, where it [would,] in all probability, defeat the "^^•^i"'*'®i intention ; for example, suppose that a testator, having a house in * Grosvenor Square, bequeaths it by the description of his *330 messuage in that square, and afterwards sells the property, and purchases another house in the same square, of which he is possessed at his decease, the bequest will comprise the new acquisition if the enactment which makes the will speak from' the death [is literally con- strued] . So (to put a stronger case) , suppose that a tes- _ ^^ „ tator, having a small farm in tne parish of A., devises " all estate in the that his estate in the parish of A." and that subsequently to P*"''^" °* ■*■•' the will he disposes of the farm in question, and purchases another in the same parish, but of ten times the value, which he continues to hold until his decease, or such larger farm may have devolved on the testator by descent or otherwise without any spontaneous act on his part, or even without his knowledge, or when incapable of altering his wiU ; in either case the newly acquired estate must,it is conceived, [if the words of the act are taken as they are] , be held to pass bj' the devise (e) . It may even happen that by a strict application to specific gifts, of the principle which makes the will speak from the death, a Effect, where gift of this nature might be invalidated for uncertainty. For [JJa^oneTub- instance, if a testator, having a house in the Strand, devises ject of gift at it by the description of liis house in the Strand, and after- testator. (c) L. E., 11 Eq. 542. See Webb v. Byng, 1 K. & J. 580, a very similar case, where the after-acquired property was held not to pass through insufficiency of evidence to prove that it was regarded by the testatrix as part of the estate devised. Citing this case, E. P. S. p. 372, Lord St. Leonards says, "consider this case." As to the admissibility of such evidence, see S. C. and other cases post, Ch. XIII. (e) The terms of gift here supposed are more particular than those in Doe d. York v. Walker, 12 M. & Wei. 591. VOL. 1. 23 ' 353 *331 PKOM WHAT PERIOD A WILL SPEAKS. wards acquires another in the same place, and holds both houses at the time of his decease, it is evident that the statutory provision would, in such a case, by bringing both the houses within the terms of the description, render the devise void for uncertainty ; unless it could be ascertained by extrinsic evidence which of them was in- tended (/). To avoid such a consequence, probably it would be held that the fact of the testator's ownership of one house only at the date of the will was a sufficient indication of his meaning that house ; and yet this is, pro tanto, a departure from the principle of the enactment under consideration ; for had the devise been in terms of the house in the Strand which should belong to the testator at his decease, there would have been no ground for distinguishing between the house that belonged to him when he made his will, and that which he subsequently acquired : so that, if the extrinsic evidence failed to show which of the two houses was intended (if, indeed, evidence is admissible in such a case (/),) the plurality would be fatal to the devise. *331 * [But the courts have striven to find a reasonable meaning in the act. "Suppose," said Sir J. K. Bruce (5'), "a man Contrary in- ^ have a brown horse and bequeath it, and then to sell it dialed b"" ^^^ buy another brown horse, and die, does the horse of nature of a wMch he was possessed at the time of his death pass ? " Or specific gift, suppose a man to have a picture, say, of the Holy Faniily, by some inferior artist, and to bequeath it as " my Holy Family,'' then to sell it, and afterwards to acquire a far better one on the same sub- ject painted by an eminent artist : Sir W. P. Wood thought it would be a monstrous construction to hold that the latter picture would pass ; and he observed that where there was a distinct reference to a distinct and specific thing incapable of increase or diminution, and not to a genus, there was an indication of a contrary intention sufficient to ex- clude the rule which makes the will speak from the testator's death {h) . No such case as that of the house, the horse, or the picture has ever been brought into court. If the question should ever arise, it may be expected that the desire to avoid a " monstrous" result will exercise a preponderating influence on its determination (i) . The third case mentioned above, namely, that of a specific bequest of _,, ^ ^ a definite sum of stock, is somewhat different ; for thoush The act not . , 1 i. • ,. . . . ° applicable to incapable 01 increase or diminution, i. e. not generic, yet any quesfof stock ^'t'^'^'" equal sum of the same stock is practically identical ; of a definite and the question is whether the old rule, according to which amount; g^^j^ ^ bequest did not extend to the substituted stock, though of precisely equal amount (k), has been altered by the act. In (/) As to this, vide post, Ch. XIII. [{(/) Emusa v. Smith, 2 De G. & S. 722. But if a breeder of horses should bequeath "his j'earlings," and survive into the next year, the yearlings of the latter year and not those of the former (now two-year-olds) would probably be held to pass. (h) Re Gibson, L. R. 2 Eq. 669. (i) But see per Malins, V.-C, L. R. 11 Eq. 551 652. (4) Pattison v. Pattison, 1 My. & K. 12. In Re Gibson, presently stated, Wood V -C " 354 PEOM WHAT PERIOD A WILL SPEAKS. *332 Re Gibson (Z), where a testator, having 1,000?. N. B. railway stock be- queathed " mj' one thousand railway shares," and afterwards sold his 1,000?. stock, and at various times bought stock and shares of the N. B. railway exceeding the amount bequeathed, and was possessed of them at his death ; it was contended that although the legacy was spe- cific, and according to the old law * adeemed, yet under sect. 24 *332 of the act the legatee was entitled to have his legacy satisfied out of the newlj' purchased shares : but Sii; W. P. Wood, V.-C, said the testator had distinctly referred to one thing in his will which was no longer in existence at the time of his death : that thing and that only could be considered as the subject of the bequest. The claim therefore failed. This in principle covers a case where the substituted stock is exactly equal to the original subject of bequest. Again in Sidney v. Sidney (to), where a testator recited, as the fact was, that his son owed hinn 1,440Z. or thereabouts, .secured nor to release by bills, notes or otherwise (the precise amount was 1,400/.), o£ a specific and released him from the payment of interest up to the ^'^'^'"'S e t. time of the testator's death ; this debt was afterwards paid ofl", but another of 1,290Z. was incurred, which was partly secured by notes and partly unsecured, and which remained due at the testator's death. " The question is," said Sir G. Jessel, M. R., " how far the provisions of s. 24 apply to gifts of legacies as distinguished from gifts of residue. The first question to he considered in all these cases is what does the instru- ment mean ? " And he held that the will meant to describe a specific sum then existing, and that consequently it could not, under s. 24, be read as speaking at the time of the testator's death, so as to include a new subject, viz., the interest on the new debt. The legacy was there- fore adeemed (re).] Another question is whether the enactment which makes the will speak from the death has the effect of carrying forward to .™^ , that period words pointing at present time. For instance, s. 24 makes supposing a testator to bequeath " all that messuage in which p°/sent'ti'me I now reside," and that after making his will he changes his point to tes- residence to another house belonging to him, which he eon- * ""^ ^ ^^ ' tinues to occupy until his death, does the act make the word "now" referred to Lord Hardwicke's doctrine in Avelyn v. Ward, 1 Ves. 423, that the substitution of one entire fund (not purchased bit by bit) for another of equal amount was a revival of the bequest. But since 1 Vict. c. 26, a bequest of personalty once adeemed cannot be revived bj' parol, and the " continuing operation " of a will under s. 24 extends only to uninterrupted gifts. (0 L. R. 2 Eq. 669. A bequest of railway " shares " generally includes railway stock, Morrice v. Aylmer, L. E: 7 H. L. 717. ( m) L. R. 17 Eq. 65. A release by will of debts is clearly a gift of personal estate within s. 24, Everett v. Everett, 7 Ch. D. 428; in this case a release of specified debts " now due and of all other moneys due from " the legatee, was held to include after-incurred debts. (n) See also Maxwell v. Maxwell, L. R. 4 H. L. 506, as to expressions showing an inten- tion to refer only to the state of circumstances existing at the date of the will. A bequest, if specific under the old law, is specific also under the new. The Wills Act, s. 24, gives it an enlarged Operation; but the nature of the bequest is not altered. See Bothamley v. Sherson, L. R. 20 Eq. 313. 355 *S34: FEOM WHAT PERIOD A "WILL SPEAKS. apply to the house occupied by the testator at his death? It is con- ceived that the principle will not be carried such a length, and that this would be considered as a case in which ' ' a contrary intention ap- *333 pears by the will : " [for the reference is to a specific thing * then in existence, and the words "in which I now reside" are the only distinguishing terms of description. So where the words describing the subject of gift are far more gen- eral, yet if they expressly point to the present time, and are manifestly used with reference to the period when this will is made (o), the opera- tion of the act is excluded. Thus, in Cole v. Scott {p), where by will, dated the 29th of April, 1843, the tesia'or, after devising "the house in which I now reside," and also making another devise of the "residue and remainder of my messuages, &c., whereof I am now seised or possessed," also devised and bequeathed " all such manors, '(fee, as well freehold as copyhold and leasehold, as are now vested in me, or as to the said leasehold premises shall he vested in me at the time of my death as trustee or mortgagee," the question was whether after-purchased property passed under the residuary devise ; and it was held by Sir L. Shadwell, V.-C, and, on appeal, b^' Lord Cottenham, C, that the after-purchased property did not pass. Both judges, especially the former, relied on the contrasted use of words im- porting a distinction between the estates then vested in the testator and those he might thereafter acquire, and concluded that the word " now" must be referred to the date of the will. If the will had been undated, the L. C. thought (for reasons not expressed) that " now" must under the act be referred to the time of the death. But whether the will is dated or not, Cole v. Scott is not an authority for giving to the word ' ' now " the effect of excluding after-acquired property in every case in which the testator gives that of which he is " now seised " or " now possessed." Thus in Wagstaff v. Wagstaff {q), a gift of " all my ready monej-, shares, freehold propert}', plate, pic- tures and any other property that I may now possess, except the house at P. ," was held by Sir J. Eomilly to include all the personal property of the testator at his death. He appears to have thought there was no difference between the words " I possess" and " I now possess." As & matter of grammar, both, it is true, express the present time ; but upon the question of indicating a contrary intention within the act, the introduction of the word ' ' now " seems to go much further towards in- dicating an intention to give only what the testator has at the *334 time (r). Something more than this single * word, however, will generally be wanted for that purpose : some more pointed dis- tinction must be drawn (at least in the case of a general gift) between what belongs to the testator at one time and what belongs to him at (o) See Sugd. R. P. S. p. 372. (p) IB Sim. 259, 1 M. & Gord. 518. See also Douglas v. Douglas, Kay, 400. (q) L. R. 8 Eq. 229. (»•) See per Turner, L. J. 8 D. M. & G. 4.37. 856 FBOM "WHAT PERIOD A WILL SPEAKS. *335 the other. And "now" has never been so construed since the act as to produce intestacy (t). Again, in Re Midland Railway Company (m), where a testator gave " all that my messuage situate in Bordgate in Otley, wherein my son D. now resides, with the stables and appurtenances thereto belonging and therewith occupied," and afterwards bought a piece of land adjoining the house, which he attached to it as a garden ; it was held by Sir J. Romilly that the garden passed with the house. In his opinion it was as if the testator had said, "I give my farm Whiteacre, now in the occupation of J. S. : " but he added that if the devise had been of " the messuage as it now stands, and the lands now held therewith by D.," it would not have included the after-acquired garden. In the case first put by the M. R., the reference to occupation is not an essential part of the description (x) : in the second it is ; the subject of gift can- not be identified without it, and the word ' ' now " would confine the gift to land so occupied at the date of the will (y). But it is clear that words which merely import but do not emphati- cally refer to time present, as a general devise or bequest of verbs in property, or of property of a particular genus, of which "I present tense. am seised" or " am possessed," will generally include all or all of that genus to which the testator is entitled at the time of his death, though acquired after the date of the will (2). And the eflfect of the statute ought not to be frittered awaj- by catching at doubtful expressions for the purpose of taking a case out of its operation (a). Thus in Lilford V. Keck (6), where a testator devised all the freeholds " of which I am seised," and then devised to corresponding uses all the copjhold and leasehold property " of which I am or at the time of my death shall be possessed ; " it was held by Sir J. Romilly that after-purchased free- holds passed by the former devise. So in Re Ord (c), where a tes- tator, possessed of leaseholds at C, part of which was charged * with a mortgage and the rest with an annuity, devised all his *335 leasehold lands at C, charged with the mortgage debts charged thereon, " and also with the annuitj' now charged thereon," to his son ; and afterwards bought other leasehold lands at C. ; it was argued that the devise was confined to such leaseholds as were charged with the mortgage and annuitj-, a construction which of course excluded the after-bought lands; but Sir C. HaU, V.-C, held that the reference to the charges (which was not quite accurate) was insufficient to deprive the words of gift of their proper interpretation under the act.] (*) See especially Hepburn v. Skirving, 4 Jur. N. S. 851, a strong decision, especially as to the bank shares. (u) 34 Beav. 525. That a devise of a house will generally carry the garden, see post, (x) See Chamberlain ». Turner, Cro. Car. 129. iy) Hutchinson v. Barrow, 6 H. & N. 583; Williams «. Owen, 2 N. R. 585. (z) Doe d. York v. Walker, 12 M. & Wei. 591 ; Lady Langdale v. Briggs, 3 Sin. & Gif. 246, 8 D. M. & G. 391. la) Per Cotton, L. J., Everett v. Everett, 7 Ch. D. 428. (6) 30 Beav. 300. (c) 9 Ch. D. 667. 857 *336 FKOM WHAT PEBIOD A WILL SPEAKS. In order to avoid all such (Questions, a testator should add to his de- Practical scriptlon of property specifically disposed of expressions in- suggestion. capable of being applied or not likely to apply to any other. He should give " the house No. 23 in Grosvenor Square," or " his farm in the parish of A. called B., now in the occupation of C." (all which particulars could hardly coincide in two instances) , or " all lands in the county of C. to which he is entitled at the date of his will." The last restriction seems in general the best, as it precludes the possibility of after-acquired property being let in. [It .has hitherto been assumed, and the assumption pervades all the Is s 24 ap- cases, that the words of the act " every will shall be con- piicabie to strued, with reference to the real and personal estate com- cepted f om" prised therein, to speak and take effect as if," &c. , are not devise? to be taken in their literal sense as meaning " real and per- sonal estate then actuallj^ comprised therein" (i.e. devised thereby). It is plain that this sense was not intended, for the context shows that the enactment has reference to property not then actually comprised in the will (rf). The true meaning appears to be " with reference to the question what estates are comprised in any disposition in the will." If this is so, it disposes of a point raised and left unsettled in Hughes v. Jones (e) , namely, whether the enactment is applicable to excep- *336 tions from a devise ? To hold that it is, * would (it was argued) be to make the will speak from the death with reference to prop- erty excluded from it, whereas the act makes it so speak only with reference to property comprised in it. This argument proceeds upon a mistake. The whole question is, what is comprised in the terms ? This cannot be answered without taking into consideration "and construing all the terms of the description, as well those which exclude as those which include. And if a man devises all his real estate except his copyholds or except his estates in the county of B., or bequeaths all his stock except consols, good sense requires that both parts of the description, being equally general or generic, should be construed to speak as from the same time. If the exception, or exclusive portion, refers to an actually existing state of things, it must, of course, be con- strued to speak as from the (Jate of the will, just as inclusive terms having a similar bearing must be construed. If the will goes on to make a distinct disposition of the excepted property, with the result ((?) See per Turner, L. J. 8 D M. & G. 436 (where the word " is " is misplaced, see 26 L. J. Ch. 49). The words of the act appear to have been hastily adopted from tlie " proposi- tions " of the 4th R. P. Reportj p. 80. They require to be read with the report, which says (p. 24) " We propose that a will shall pass property of any description comprised in its terms which a testator may be entitled to at the time of his death, unless a contrary intention shall appear by the will. If this recommendation be adopted the law respecting the time from which a "devise of freehold or copyhold estate is to be considered to take effect will be pre- cisely similar to that which is at present in force as to personal estate." And this recom- mendation is referred to as follows (p. 29) ; " If im uie have proposed wills be made to speak with reference to the property comprised in them as at the time of the testator's death " &c (e) 1 H. & M. 765. ' 358 FBOM WHAT PEEIOD A WILL SPEAKS. *337 that what is excluded from one devise is included in the other, the ques- tion (if question it is) can hardly be said to arise (/) . A general power of appointment created after a will, but in the tes- tator's lifetime (g) , will be executed by the will if the will Powers of would have operated to execute the power had it been in ex- erected' aft"' istence at the date of the will {h) ; and consequently, under date of will sect. 27 of the act 1 Vict. c. 26, a general residuary devise by a^residut*^ or bequest wiU, unless a contrary intention appears by the ary gift; will (i), operate as an execution of aU general powers of appointment given to the testator without reference to the date of their creation. But not of general powers of revocation. Even where the _ but not will is made expressly in exercise of all powers of appoint- .powers of ment, a power of revocation will not be thereby executed, if the words of the will can be otherwise satisfied. If there' were no power but one of revocation and new appointment it would be different {k).'] It will be remembered that the enactment which makes the will speak from the death relates to the subject-matter of disposi- tion only, and that it does not in any manner [affect not supply the * question of testamentary capacity. Thus al- *337 testamentary -J ^ 'J capacity; though the will of a woman under coverture at the time of making it may operate by force of the enactment to dispose of separate propertj' afterwards acquired by her (/), or as the execution of a general power afterwards conferred upon her (m), it acquires no valid- ity under this section by the mere fact of her having survived her hus- band and being discoverte at the time of her death («). The statute does not make an instrument valid which through the personal disabil- ity of the testator was invalid in its inception, but gives a new rule for the interpretation of instruments which are valid without the aid of the statute. Neither does the enactment in any manner] interfere with the con- struction in regard to the objects of gift (o) ; as to whom, there- (/) See Lysaght v. Kdwards, 2 Ch. D. 521, 522; Ee Scarth, 10 Ch. D. 499, better reported 40 L. T. Rep. 184. (g) It need scarcely be observed that if the power is created by will and the donee dies before the donor the power lapses, Jones v. Southall, 32 Beav. 31. (A) Sugd. R. P. Stat. 379; and see Carte v. Carte, 3 Atk. 174; Stillman v. Weedon, 16 Sim. 26; Cofield v. Pollard, 3 Jur. N. S. 1203; Patch v. Shore, 2 Dr. & Sm. 589; Hodsdon v. Dancer, 16 W. R. 1101, W. N. 1868, p. 222. (i) See Pettinger v. Ambler, L. R. 1 Eq. 510; and further on this subject, post, Ch. XX. s. 5. (h) Pomfret v. Perring, 5 D. M. & G. 775; Palmer i>. Newell, 20 Beav. 38; Re Merritt, 1 S. W. & Tr. 112, 4 Jur. N. S. 1192. (/) Willock V. Noble, L. E. 7 H. L. 599, 8 Ch. 788. (m) Thomas v. Jones, 2 J. & H. 475, 1 D. J. & S. 63. "The effect of the section in (;he case of a married woman is that she must be regarded as a married woman executing the in- strument immediately before her death, and passing thereby every thing of which at the time of her death- she had acquired a power of disposing," per Wood, V.-C., 2 J. & H. 484. A clear opinion was given by Lord Westbury in this case that a general power over an equita- ble estate given to the survivor of two persons, to be executed by deed or will, was well exe- cuted bv a will made during the life of both by the one who eventually survived. (») Willock V. Noble, L. E. 7 H. L. 580; Re WoUaston, 32 L. J. Prob. 171; Price v. Parker, 16 Sim. 198. (0) Bullock i;. Bennett, 7 D. M, & G. 283 ; Violett v. Brookman, 26 L. J. Ch. 308. 359 *337 FROM WHAT PERIOD A "WILL SPEAKS. nor relate to fore, the doctrines discussed in the present chapter, re- gift, specting the period at which the will speaks, or at which the objects are to be ascertained, remain in full force, even under a will the period of whose execution or republication brings it within the new law. [If, after the execution of a will, an alteration is made in the law Effect of a which produces an alteration in the effect of the will, and change in the ^fr^Q testator leaves the will unaltered, he will be presumed law between ' '■ ■will and death. to intend that it shall take effect according to the altered law(jB).]'- (p) Hasluck V. Pedley, L. K. 19 Eq. 271 (Apportionment Act, 1870). 1 So the validity of the execution of a will is to be determined by the law in force at the testator's death. Jones v. Robinson, 17 Ohio St. 171; Mullen v. McKelvey, 5 Watts, 399; Houston V. Houston, 3 McCord, 491 ; In re El- cock, 4 McCord, 39. But it is held in Penn- sylvania that the laws governing property when a will is executed are to govern, and not those prevailing (if different) at the testator's death. Tavlor v. Mitchell, 57 Penn. St. 209; Gable v. Daub, 40 Penn. St. 217. See Har- groves V. Redd, 43 Ga. 142. The question whether an estate is to be divided according to the law as it existed at the death of the tes- tator, or at the death of the devisee for life, will depend upon the further question, wheth- er the estate of the devisee m remainder is vested or contingent. If his estate vested at the death of the testator, no subsequent change of the law could affect his rights. II it remained contingent until the death of the devisee for life, the law as it then stood must govern, unless a different intention appear in the will. Vantilburgh v. Hollinshead, 14 N. J. Eq. 32. 360 DOCTRINE OP LAPSE. *338 * CHAPTER XI. *338 DOCTEINE OP LAPSE. The liability of a testamentary gift to failure, [or as it is generally termed lapse,] by reason of the decease of its object in the Qgngj^i ^^^_ testator's lifetime, is a necessary consequence of the ambu- ciple respect- latory nature of wills ; which, not taking effect until the '"^ ^P^®' death of the testator, can communicate no benefit to persons who pre- viously die : in like manner as a deed cannot operate in favor of those who are dead at the time of its execution. [Though the term " lapse" is generally' applied to failure by death of the object of gift in the testa- tor's lifetime, yet the same effect may be produced bj"^ other means, as where there was a gift of consumable articles to A. for life, or so long as she should remain unmarried (equivalent to an absolute gift) , it was held, that the marriage, of A. in the testator's lifetime caused a result similar to that of her death (a) in his lifetime.] The doctrine apphes indiscriminately to gifts with and gifts without words of Km- As to real itation. Thus, if a devise be made to A. and his heirs, or estate; (unless the will be regulated by the new law) to A. and the heirs of his body, and A. die in the lifetime of the testator, the devise absolutely lapses, and the heir, special or general (as the case may be), of A. takes no interest in the property, he being included merely in the words of limitation, i.e. in the terms which are used to denote the quantity or duration of the estate to be taken by the devisee, through whom alone any interest can flow to such heir (b).^ (a) Andrew v. Andrew, 1 Coll. 690.] db) Brett v. Eigden, Plow. 345; Fuller v. Fuller, Cro. El. 422; Wynn v. Wynn, 3 R P. C. Toml. 95; [Hutton v. Simpson, 2 Vern. 722;] see also Goodright v. Wright, 1 P. W. 397; Ambrose v. Hodgson, 3 B. P. C. Toml. 416. 1 SeeBallard*. Ballard, 18 Pick. 41; Bird- Mason, 11 Allen, 36; Workman v. Work sail V. Hewlett, 1 Paige, 32; Dunlap v. Dun- man, 2 Allen, 472. In Massachusetts, the is- lap, 4 Desaus. 314; Gore v. Stevens, 1 Dana, sue of a donee who has died during the testa- 205 ; Trippe t>. Frazier, 4 Harr. & J. 446 ; Pres- tor's lifetime, when such issue was born before cott V. Prescott, 7 Met. 145. An exception to the making of the will, does not take the gift the rule of lapse is created by statute in most intended for the parent. Wilder v. Thayer, of the states. See p. 351, n. " When a devise 97 Mass. 439. The doctrine of lapse by' the of real or personal estate is made to any child death of a donee during the lifetime oi the or other relation of the testator, and the de- testator has been changed by statute in New visee shall die before the testator, leaving issue York also in caseswherethe devise or bequest who survive the testator, such issue shall take is to a child or descendant of the testator who the estate so devised, in the same manner as dies in the testator's lifetime, leaving a de- the devisee would have done if he had sur- scendant who survives the testator. In such vived the testator, unless a different disposi- a case, the estate or interest vests in the de- tion shall be made or required by the will." scendant of the legatee or devisee. Downing Mass. Gen. Stat. c. 92, § 28. See Ballard ». v. Marshall, 23 N. Y. 366. It is provided in Ballard. 18 Pick. 41 ; Fisher v. Hill, 7 Mass. 86 ; Pennsylvania, by the Act of March 19, 1810, Sears v. Putnam, 102 Mass. 5, 10; Morses. Bright. Purd. 1700-1872, vol. 2, p. 1476, 361 *338 BOCTfilKB OP LAPSE. Bequests of personal property, of course, are subject to the same that no devise or legacy in favor of a child or other lineal descendant of the testator shall be deemed to lapse by his or her death in the lifetime of the testator, but the intention of the testator to exclude such surviving issue is to prevail if expressed. See Woolmer's Estate, 3 Whart. 477. By statute, in. Georgia, legacies do not lapse if any issue of the legatee be living when the testator dies.' Code, 1873,' Title 6, ch . 2, p. 425. Laws similar to the fore- going, respecting lapse of devises or legacies, exist in South Carolina, Virginia, Maryland, and probably in most of the other states. The Act of Assembly of Pennsylvania, 1810, which prevents the lapse of a legacy bequeathed to a child or other lineal descendant of the testa- tor,, is held not to reach' the case of a bequest to a niece and her heirs ; and in a case of that kind the legatee having died in the lifetime of the testator leaving a husband and <:hildren, the legacy was held to have lapsed. Dick- inson V. Purvis, 8 Serg. & R. 71. A son-in- law is not a child within the meaning of this act. Commonwealth v. Nase, 1 Asnm. 242. The act was intended further to give a benefit to the issue, and not to confer any right upon the devisee or legatee to control the devise or legacy." Newbold v. Pritchett, 2 Whart. 46. But see Johnson v. Johnson, 3 Hare, 157. A legacy lapses where the legatee, not being a lineal descendant of the testator, dies in his lifetime, notwithstanding the testator knew of his death, and intended his children should have the benefit' of the legacy. Comfort v. Mather, 3 'Watts & S. 450. A will was ex- ecuted in New York in 1825, devising certain real estate to the son of the testator. The testator died in 1840 ; the son died in 1833. The property was held to helong to the soil's children, and not to the heirs-at-law of the testator, in accordance.. with the statute which to6k eifect in 183i. Bishop v. Bishop, 4 Hill, 138. There is a distinction in the English books between a lapsed devise and a lapsed legacy; and while the latter falls into the residuary estate, and passes by the residuary clause, if anv there be, and, if not, passes to the next of fciii, the former does not pass to the residuary deviseei but, the devise' becom- ing void, the estate descends to the heir-at-law. Hayden v. Stoughton, 5 Pick. 528, 537, 538 ; Price ».- Maxwell, 28 Penn. St. 23. As to pei^bnal property, a residuary clause not only carries all not disposed of, but everything which in the end turns out not to be dispo.. Dry, 1 P. Wms. 700; tions to others who are living at the testa- Page V. Page; 2 P. Wms. 48§; Frazier v. Fra- tor's death. Downing v. Marshall, 23 N. Y. zier, 2 Leigh, 642; Craighead v. Given, 10 366; Norrisx. Beyea, 3 Kern. 273. There is Serg. & R. 351 ; Commonwealth v. Kiel, 1 no lapse by the death of a legatee after the Ashm. 242. Where a legacy is given to one decease of the testator, but before the time of for life, with remainder over, and the legatee payment arrives, the gift being absolute; and for life dies before the testator, the remain- a /brtt'ori is this true where the postponement der does not lapse, but takes effect upon the of payment is merely permissive. Traver v. death of the testator. Billingsley v. Harris, Schell, 20 N. Y. 89. 363 *340 DOCTKINE OF LAPSE. not requisite to carry the absolute interest, has been considered as insufficient to denote an intention to make the executors or adminis- trators substituted and independent objects of gift. And where the devisee or legatee happens to be dead when the will is made, the words of limitation are equally inoperative to let in the representatives of the deceased person (d).^ And even a declaration that the devise or bequest shall not lapse. Effect of dec- does not per se prevent it from failing by the death of the legacy" haU o^yect in the testator's lifetime, since negative words do not not lapse. amount to a gift ; and the only mode of excluding the title of whomsoever the law, in the absence of disposition, constitutes the successor to the propert}', is to give it to some one else (e) ^- A dec- laration to this effect, however, following a bequest to a person and his executors or administrators, would be considered as indicating *340 an intention to substitute the executors or * administrators, in the event of the gift to the original legatee failing by lapse (/) . [Where the bequest is to A., and, in case of his death, "to his exec- Cases of sub- utors or administrators," or "to his legal personal represen- stitution. tatives," there can, of course, be no doubt that the gift does not fail (g) ; the only question then is, who are the persons to take bene- ficially, a point which will be treated of hereafter. But where there was a direction to pay legacies within six months, and a gift to the chil- dren of the legatee, in case of the legatee's death not having received his legacy, it was held, nevertheless, that the legacy lapsed by his death in the testator's lifetime (h) . The doctrine of lapse is properly extended to the cases of gifts on LaBse of eift contingencj'. Thus, if the gift be to A., but on the happen- on contin- ing of a certain event to B., if A. dies in the lifetime of the S'^'^'^y- testator, and the event on which B. is to take does not hap- pen, a lapse occurs, although B. survives the testator (i). , Again, it is clear, that if A. survive B., and devise an estate to the (d) Maybank v. Brooks, 1 B. C. C. 84. [(e) Johnson v. Johnson, 4 Beav. 318; Pickering v. Stamford, 3 Ves. 493; Underwood v. Wing, 4 D. M. & G. 633, 8 H. L. Ca. 183. To enable a person to take under a will it must be proved affirmatively that he survived the testator. Barnett v. Tugwell, 31 Beav. 232.] {/) Sibley v. Cooke, 3 Atk. 572. [But a declaration that a legacy shall vest in the lega- tee immediately upon execution of the will, following a gift to one, his executors, administra- tors and assigns, will not prevent lapse. Browne v. Hope, L. E. 14 Eq. 343. (a) Long V. Watkinson, 17 Beav. 471; Hinchliffe ». Westwood, 2 De G. & S. 216: Hewit- son V. Todhunter, 22 L. J. Ch. 76. See Ch. XXIX. . (A) Smith V. Oliver, 11 Beav. 494. But as to this case see Ch. XLIX., s. 1. (0 Humberstone v. Stanton, 1 V. & B. 385; Doo v. Brabant, 3 B. C. C. 393, 4 T. K. 706; Williams v. Jones, 1 Russ. 617. 1 If an estate be devised charged with leg- to the benefit of the share so charged, and acies, and the legacies fail, the devisee takes does not fall into the residue. lb. the estate entire. Macknet i;. Macknet, 24 2 LapSe by death in the lifetime of the tes- N. J. Eq. 277. See S. C. 27 N. J. 594. So tator may be prevented by an unconditional where a testator has in effect charged upon a gift over, to take effect in that event, God- particular share of the estate a provision made dard v. May, 109 Mass. 468; Prescott v. for his widow in lieu of dower, and the widow Prescott, 7 Met. 141 ; Carpenter v. Heard, 14 refuses to accept the provision, the same goes Pick. 449. 364 JOINT-TENANTS. — CLASS. *341 uses declared by B.'s will, a devisee under B.'s will must Gift by A. to also survive A., in order to take under A.'s will (k). And ^'y "^^''^ a power created by will lapses by the death of the donee be- Lapge of fore the donor (?).] power. "Where there is a devise or bequest to a plurality of persons as joint- tenants (i.e. who are not made tenants in common Cm)), no t„ ^ \ //' l^apse pre- lapse can occur unless all the objects die in the testator's vented by lifetime ; ^ because as joint-tenants take per my et tout, or, among joinL as it has been expressed, " each is a taker of the whole, but tenants. not wholly and solely " (re), any one of them existing when the will takes effect will be entitled to the entire property. Thus, if real estate be de- vised to A. and B., or personal property be bequeathed to A. and B., and A. die in the testator's lifetime, B., in the event of his surviving the testator, will take the whole (o) . And the same consequence would ensue if the gift failed from any other cause (p) ; * while *341 it is equally clear that if the devisees or legatees in any of these cases had been made tenants in common, the failure of the gift as to one object would not have entitled the other to the whole by the mere effect of survivorship (9).^ "Where, however, the devise or bequest embraces a fluctuating class of persons, who, hy the rules of construction, are to be as- Doctrine in certained at the death of the testator, or at a subsequent ^f^ to*^^ '" period, the decease of any of such persons during the testa- classes, tor's life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in common, since members (Jc) Culsha V. Cheese, 7 Hare, 2-15. (/) Jones V. Southall, 32 Beav. 31.1 (m) See Ch. XXXII. (re) Cart. 4. (0) Davis V. Kemp, Cart. 4, 5, Eq. Ca. Ab. 216, pi. 7; Buffar c. Bradford, 2 Atk. 220; Morley v. Bird, 3 Ves.'628. (/))" Humphrey v. Tayleur, Amb. 136 ; Larkins v. Larkins, 3 B. & P. 16 ; Short d. Gastrell 0. Smith, 4 East, 419; [all cases of revocation: and Young v. Davies, 2 Dr. & Sm. 167, where one joint-tenant was an attesting witness. But in Re Kerr's Trusts, 4 Ch. D. 600, on an appointment to A., an object of the power, and B. a stranger, Jessel, M. R., refused to apply "the rule of tenure applicable to real estate," and held that A. took one half only.] (}) Page ». Page, 2 P. W. 489 ; [Sykes v. Sykes, L. R. 4 Eq. 200 ; Re Wood's Will, 29 Beav. 236. But in Sanders ». Ashford, 28 Beav. 609, a devise to five persons named, " to be equally divided between them if more than one," was held to carry the whole to the sur- vivors by implication from the last words. In Clarke v. Clemmans, 36 L. J. Ch. 171, where a testator bequeathed residue to A. and others nominatim as tenants in common, but A. was already dead (as the testator showed he knew), Malins, V.-C, held that the others were entitled to the whole fund: sed ju.] 1 Hooper v. Hooper, 9 Cush. 122, 130; ^ ■^here a provision is made for the support Holbrook v. Harrington, 16 Gray, 102 ; Dow or maintenance in whole or in part for two per- il. Doyle, 103 Mass. 489. But where real and sons jointly, until the decease of both, the personal, property is directed to be equally death of one in the lifetime of the testator does divided among three individuals, and one of not cause a lapse as to the other. Dow D.Doyle, them dies in the lifetime of the testator, the 103 Mass. 489 ; Prescott v. Prescott, 7 Met. share of such person does not vest in the sur- 141 ; Loring v. Coolidge, 99 Mass. 191. And vivors, but sink's into the residue. Common- if a gift be made to A. and B., and in the wealth V. Nase, 1. Ashm. 242; Jackson v. event of the death of either, to the survivor, Roberts, 14 Gray, 546, 550. See Frazier v. the survivor will take though one die in the Frazier, 2 Leigh, 642; Nelson v. Moore, 1 lifetime of the testator, unless a different Ired. Eq. 31 ; Mebane v. Womack, 2 Jones, intention appear. Martin v. Lachasse, 47 Eq. 293; next p., note 1. Mo. 591. 365 *342 DOCTRINE OP LAPSE. of the class antecedently dying are not actual objects of gift.'' ThuS) if property be given simply to the children, or to the brothers or sisters of A., equally to be divided between them, the entire subject of gift will vest in any one child, brother or sister, or any larger number of these objects surviving the testator, without regard to previous deaths {r) ; ^ and the rule is the same where the gift is to the children of a person actually dead at the date of the will, [or to the present-born children of a person, in either of] which cases, it is to be observed, there is this peculiarity, that the class is susceptible of fluctuation only by diminution, and hot bj' increase ; the possibility of any addition by future births being [in the former case] precluded by the death of the parent, [and in the latter by the express words (s). The rule is also the same if, in a gift to the children of a deceased person, the testator in terms includes any child who may die before him leaving issue, which of course is nugatory (t) , or if one who. would otherwise be a member of the class is an attesting witness (m), or if the gift to one is re- voked (a:).] Gift to exec- *^^^ * -^ §^^ ^ cxecutors has sometimes been construed ntora as a as a gift to a class, and as such carrying the entire subject of gift to the individuals composing the class, i.e. sustaining the ofHce, ■ at the death of the testator, though made tenants in common, in exclusion of any who die in the testator's lifetime. Such has been adjudged to be the eflect of a bequest " to my executors here- inafter named, to enable them to pay my debts, legacies,; funeral and testamentary charges, and also to recompense them for their trouble, equally between them(y)." [The " recompense " was held to go with the " trouble " to the survivors. Besides, the survivors, of course, took (r) Doe d. Stewart v. Sheffield, 13 East, 526 ; [Shiittleworth v. Greaves, 4 My. & Cr. 35 ; and compare Cort d. Winder, 1 Coll. 320.] (s) Viner v. Francis, 2 B. C. C. 6B8, 2 Cox, 190; [Leigh, v. Leigh, 17 Beav. 605 ; Dimond <). Bostock, L. K. 10 Ch. 358. (() Ee Coleman and Jarrom, 4 Ch. D. 165. But by apt words issue (if any) may of course be substituted to take the share of. a deceased parent without destroying the nature of the class-gift. See an instance, Aspinall v. Duckworth, 35 Beav. 307. («) Fell V. Biddolph, L. R. 10 G. P. 709. (x) Shaw V. M'Mahon, 4 D. & War. 431 ; Clark v. Phillips, 17 Jur. 886. That under a gift "to A- and the children of B.," A. is a member of the class, vide ante, p. 269.] (2^) Knight r. Gould, 2 My. & K. 295; but in Barber v. Barber, 8 My. &C. 688, where a testator bequeathed one moiety of the residue of his property, in a certain event which hap- 1 Hooper v. Hooper, 9 Cush. 122, 130; Jackson v. Merrill, 6 Johns. 185. Where a , Dow V. Doyle, 103 Mass. 489 ; Holbrook v. testator devised lands to his son, and his Harrington, 16 Gray, 102, 104. If the class daughter, and two grandsons (surviving be composed of relations of the testator, one children of a deceased daughter), to be di- of whom dies in the lifetime of the testator, vided between them into three parts, one third leaving issue, the issue take by statute m to the son, one third to the daughter, and the Massachusetts. Moore v. Weaver, 16 Gray, other third to the two grandsons, and devised 305. But in the ease of a gift to individuals, other portions to other children in full of described bv name, the death of one, as has their share of his estate, and charged the been remaricid on the preceding p., note 1, devisees of the first Uiree parts with me pay- will cause a lapse, unless an intent to the con- mentof his debts, in equal thirds; and one trary appears. Jackson ». Roberts, 14 Gray, of the grandsons died in. the lifetime of the 646, 550. See also Stedman v. Priest, 103 testator, unmaiTied, — it was held that the Mass. 293; Schafier v. Kettell, 14, Allen, devise to him did not lapse, but survived to 528. „ _ .^ , his brother. Anderson v. Parsons, 4 Greeul. 2 See Jackson v. Staats, 11 Johns. 337; 486. ' 366 GIFTS TO A CLASS. *343 the whole in trust to pay debts ; and the same persons were, by the words of the will, entitled to keep for their own benefit what remained after such payment. The case turned on the special terms of the wiU.] If, however, the objects are to be ascertained at some period or event which happens in the testator's lifetime, [it seems formerly to have been considered that] the subsequent decease of any Jio„ ,vhere' member or memljers of the class in such lifetime would oc- class is ascer- casion the lapse of their shares, in the same manner as if the gome event gift had been originally made, in favor of the individ^ which occuig uals answering the * description. Such certainly was *343 lifetime, the opinion of Sir R. P. Arden, M. R., in AUen v. Callow (z) ; but the point did not arise, and the propriety of the con- struction seems questionable, for it is difficult to perceive why the throwing into the description of children an additional ingredient, by requiring them to be living at a given period, should vary in other re- spects the construction applicable to tlie gift ; [accordingly, in Lee v. Pain (a), where the gift was to M. for life, and after his decease, to his children living at his decease, equally between them, and M. died in the lifetime of the testatrix, leaving three children surviving, one of whom also died in the lifetime of the testatrix, Sir J. Wigram, V.-C, decided that the children living at the death of M. who survived the testatrix took as a class, and that there was no lapse ; and his decision has been followed in other cases (S) . Such a gift] is not the less a gift to a class because a special qualification is superadded ; and the fact that the event which regulates the qualification occurs in the testator's pened, to his executors therein named ; and in another event (including former), which also happened, he directed that the entire property should " devolve to [four persons,, naming them,] to be divided betwixt them in equal proportions, and their heirs for ever; " and added, " which last-mentioned four persons I also appoint as my executors, to. see that evei5f^ thing is duly executed and performed according to my will and desire therein." The testator appointed two other persons as additional executors, and at the foot of his will wrote as fol- lows : "It must be understood to be my will and intention, that if either or more than one of my executors shall refuse to accept the trust and act as executor, then I annul totally my bequest of my property to every such person as shall refuse to take the trusts upon himself."^' One of the executors having renounced the trusts, his .share was claimed by the. other (hree, who contended that the four executors to whom the gift was made were to be considered as a class, and that the three who proved constituted the class ; but Lord Cottenham, after a full examination of the authorities, held that the share lapsed to the next of kin, inasmuch as the gift was not to executors described as such, but to individuals noininatim^ though appointed executors; ahd he considered it as analogous to a gift to B., C, and D., children of A., as tenants in common, which, of course, would not be a gift to children as ^ class, [see Bain ». Lescher, 11 Sim. 397,] so as to entitle such of the legatees as might be living at tlie death of the testator. And with respect to the moiety which was given, in the first instance, to the "executors" simply as such, his Lordship considered that this was qualified and explained by the subsequent clause, and indeed, unless so construed, it would carry the half, not to the four, but to the six executors ; [and generally a gift to the persons " hereinbefore (or herein- after) named " as executors is a gift to the individuals named, not to a class. Hoare v. Osborne, 33 L. J. Ch. 586. So of a gift to " before-mentioned legatees," the words of refer- ence are merely to save'repetition, and the construction must be the same as if the repetition were actually made. Re Gibson, 2 J. & H. 656; Nicholson v. Patrickson, 3 Gif. 209.] (2) 3 Ves. 289 ; see also Ackerman v. Burrows, 3 V. & B. 54, where the testator addressed a letter (which was adjudged to be testamentary) to his mother and sisters, in which he desired that, in a certain event, his property might be divided amongst them. Sir W. Grant, M. R., hold that the share of a sister who died in the testator's lifetime lapsed ; but a case so peculiar, and. apparently decided upon its particular circumstances, throws very little light on the general principle. [(a) 4 Hare, 250. (b) Leigh e. Leigh, 17 Beav. 605 ; Cruse v. Howell, 4 Drew. 215.] 367 *344 DOCTRINE OP LAPSE. lifetime, and therefore precludes future accessions to the class, has no farther influence upon the construction than the death in the testator's lifetime of a person whose children are simply objects of gift, which we have seen does not prevent its being considered as a gift to a class, and as such comprising the objects living at the death of the testator. Had the courts held that, in order to attract the rule of constructi6n peculiar to classes, it was essential that the class should be susceptible of in- crease as well as diminution, there would have been something like a principle to proceed upon ; but the distinction between a gift to' the children of A., who dies in the testator's lifetime, and a gift to the children of A. living at the decease of B., a person who dies in the testator's lifetime, seems to be purely arbitrary. It is not clear what would be the effect of a gift to certain other Gift to next ''l^^ses of persons, as, to the next of kin or relations as ten- of kin or ants in common of A., a person who dies in the lifetime of the testator, in the event of any of the next of kin or relal- tions dying in the interval between the decease of A. and of the testa- tor ; since, in every case where such a gift has occurred (and *344; * in which the entirety has been held to belong to the surviving next of kin at the death of the testator), the bequest seems to have contained no words which could operate to sever the joint ten- ancy (c). [In Ham's Trusts (d) , though there were words which severed the joint tenancy, yet there were other words which prevented the lega- tees from taking as a class; Sir R. T. Kindersley, V.-C, however, appears to have been of opinion that without the latter words the gift would have been a gift to a class, and would have taken effect in favor of those only who survived the testator.] a "Where the devise which lapses comprises the legal or beneficial own- Devises of ership only, of course its failure creates a vacancy in the dis- ficfal owner^' positiou merely to that extent. Thus, if a testator devise ship oni}-. lands to the use of A. in fee, in trust for B. in fee, and A. die in the testator's lifetime, the legal estate comprised in the lapsed devise to A. devolves to the testator's heir (or, if the will has been made or republished since 1837, and contains a residuary devise, then to the residuary devisee), charged with a trust in favor of B., whose equitable interest under the devise is not affected by the death of his trustee. An example Of the converse case is afforded by Doe d. Shel- ley V. Edlin (e) where a testator gave (inter alia) to A. his real estates to hold to A., his heirs, executors, administrators, and assigns, upon trust to receive the rents and profits thereof, and pay the same to B. for her life, for her separate use, free from the control of her husband ; and after the decease of B-, upon trust to convey the real estates to such uses and in such manner as B. by deed or will should appoint. B. died (o) Bridge* Abbott, 3 B. C. C 224; Vaux v. Henderson, IJ. & W. 388, n. \(d\ 2 Sim. N. S. 106; see this cape stated post, Ch. XXIX.1 (e) 4 Ad. & Ell. 582. 368 CHAEGES ON LAND. *345 in the testator's lifetime. It was held, nevertheless, that the legal in- heritance passed to A. under the devise. Lord Denman suggested a doubt whether the doctrine would apply to a case in which the trustee had no duty to perform, as in the case of a devise to the use of A. in fee in trust for B. It seems diiHcult to discover any soUd ground for distinguishing such cases. And here it may be noticed that where an estate is devised to one, charged with a sum of money, either annual or in gross, Lapse of de- in favor of another, the charge is not affected by the lapse ^'^^® "*, of the devise of the onerated property. Thus, if Blackacre property. be devised to A. and his heirs, charged with or on condition that he pay * oOZ. a year, or the sum of 5001. to B., and it hap- *345 pens that A. dies in the testator's lifetime, his (the testator's) heir at law (or his residuary devisee, if the will is subject to the new law) will take the estate charged with the annuity or legacy in ques- tion (/). This principle is strongly exemplified in Oke v. Heath (g), in which a person having a power of appointment over a sum of money, by will appointed a less sum (part of the fund in question) to A. ; and in consideration thereof A. was to pay to his mother an annuity of 1001. during her life for her separate use, and to enter into a bond, with a penalty, for the payment thereof; and the testatrix gave the residue of what she had power to dispose of to B. A. died in the testatrix's lifetime, yet the mother was held to be entitled to her annuity out of the fund, the whole of which, by the death of A., had devolved to B., the residuary appointee. In the converse case, namely, where the person for whom the money is to be raised dies in the testator's lifetime, it is more difii- ^ Tj3.tisp ox cult to determine the destination of the lapsed interest, the specific sum question being then embarrassed by the conflicting claims of ° Y®^^.°"_ the devisee of the lands charged, and of the heir of the tes- its destina- tator : the former contending that the charge has become *'""■ extinct 'for his benefit; and the latter, that the lapsed sum is to be re- garded as real estate undisposed of by the will. This, at least, is clear, that where land is charged with a sum of monej- upon a contingency, and the contingency does not jj^, ^ happen, the charge sinks for the benefit of the devisee (h). contingent As in the case of a devise of land to A., charged with a leg- '=°*''S^^! acy to B., provided B. attain the age of twenty-one, as to which Lord Eldon (»■) has observed, "The devise is absolute as to A., unless B. (/) Wigg V. Wigg, 1 Atk. 382 ; Hills v. Wovle;-, 2 Atk. 605. ((/) 1 Ves. 135. [See also Re Arrowsmith' s Trusts, 6 Jur. 1231, and on app. (where the point did not arise) 2 D. F. & J. 474.] (A) Att.-Gen. v. Milner, 3 Atk. 112; Croft «. Slee, 4 Ves. 60; [Be Cooper's Trusts, 23 L. J. Ch. 25, 4 D. M. & G. 757 ;] but such a gift as that in Att.-Gen. v. Milner would now be held to be vested. ((■) In Tregouwell v. Sydenham, 3 Dow, 210. VOL I. 24 369 *346 DOCTKINE OS LAPSE. attain the age of twenty-one : if he does, he is to have the legacy. But his attaining the age of twenty-one is a condition, upon which alone he is to have it ; and, if he does not attain that age, then the wiE is to be read as if no such legacy had been given, and the heir at law does not come in, because the whole is absolutely given to the devisee ; but a gift which fails must clearly be intended, upon *346 the failure of the condition, to * be for the benefit of the devi- see." It would, of course, be immaterial, in such case, whether the death of the legatee during minority occurred in the testator's life- time or afterwards. Where a legacy, paj-able in futuro, though not expressly contingent, —where Ha- ^® bequeathed in such a manner as that it would fail by the ble to failure death of the legatee before the time of payment (and such tSough'not .^^ always the rule where the postponement is referable to expressly the circumstances of the legatee, and is , not made , for the coningen. convenience of the estate),' the ease evidently falls within the principle of Lord Eldon's reasoning; and, consequently, if the lega- tee die before the vesting age, whether in the lifetime of the testator or not, the charge sinks in the estate. It is to be .observed, also, that a legacy which, though originally made Charges abso- contingent, becomes absolute by the effect of events in the lute in event, testator's lifetime (subject, of course, to a liabilitj' to failure by lapse), is to be regarded, in apptying the doctrine in question, in precisely the same light as if it were originally absolute. Thus, if land be devised, charged with a specific sum to A., on condition of his at- taining the age of twenty-one years, and A. do attain that age, and subsequently die in the testator's lifetime, the gift receives the same construction as if it had not originally been made conditional on his attaining the prescribed age. With respect to the general question, as to the destination of sums General doc- charged on real estate which lapse by the event of the lega- trine as tothe tee dying in the testator's lifetime, little direct authority can destination of , ,, , , , , , , , ,.,,... sums payable be adduced ; but as there seems not to be an}- sohd distmction out of land, between such cases and those in which the gift of the specific sum is void ab initio, recourse is naturally had to the cases on this point, which supply much matter for comment. The principle as between the heir and devisee of the land is (k), that " if the devise to a particular person, or for a particular purpose, is to be considered as intended by the testator as an exception from the gift to the residuary (fc) Vide Sir J. Leach's judgment in Cooke v. Stationers' Company, 3 My. & K. 264. 1 A legacy charged upon real.estate lajjses for the convenience of the estate, or of the bv the death' of the legatee before the time person charged with the pavment of the leg- of payment only in those cases in which the acy. Harris «. Fly, 7 Paige, 421. See payment was postponed by the testator in Goulbourn D. Brooks, 2 Y. & Coll. 539 ; Doa- reference to the situation and circumstances ner's Appeal, 2 Watts & S. 372. of the legatee, and not where it was postponed 370 CHARGES ON LAND. *347 devisee, the heir takes the benefit of the failure (l). If it is to be considered as intended by the testator to be a charge only on the estate devised, and not an exception * from the gift, the devisee *347 will be entitled to the benefit of the failure." The following are the decisions in favor of the heir. In Arnold v. Chapman (m) a testator devised a copyhold estate to Chapman, he causing to be paid to his executors the sum of Decisions in 1,000;. ; and, after payment of debts and legacies, he de- [*|°'""*"'® vised all the remainder of his estate to the Foundling Hos- j^^^^^]^ „_ pital. As the bequest of the 1,000/. to the hospital was Ciiapman. void, a question arose whether it should go the heir, or sink for the benefit of the-devisee. Lord Hardwicke held that the heir was entitled by way of resulting trust, observing : " As this charge is well made on the estate, but not well disposed of, by reason of the act, it, must be considered as between the heir and the hospital, {_qu. devisee ?] as part of the real estate undisposed of, and must be for his benefit." In the next case, of Gravenor v.. Hallum (ra), a testator devised to his executors and their heirs a messuage in Ipswich, subject to Gravenor v. the annual payments, making together 10/., thereinafter Hallum. given and forever charged thereon, and all other his real estate, in trust to be sold, directing the moneys arising from the sale, and his personal estate, to be distributed as therein mentioned. The testator then gave the 10/. a-j'ear to charrity. Lord Camden held that the heir was enti- tled. " The rule as to real estate is," he said, " that where the inten- tion of a testator is to devise the residue exclusive of a part given away, the residuary devisee shall not take that part in any event. If he had said, ' I give my estates over and above the rent-charge,', it would have been more plain : it is the same thing as if he had so expressed himself. The rent-chai'ge is severed forever from -the devise, which he gives to the residuary legatees." So in Bland v. Wilkins(o), before Sir Thomas Sewell, where lands were given to E. N. in fee, upon condition that her execu- Bland v. tors or administrators should pay 10/. to a charity. His ''^•I'f'ns. Honor held that the 10/. should go to the heir, as part of the produce of the land undisposed of. The authorit}' of Arnold v. Chapman, and the consequent superiority of the heir's claim, was recognized by Sir J. Leach in Hench- Henchman v.. man v. Att.-Gen. (p). Though ultimately the L. C. held Att.-Gen. [(/) As in cases where lands are directed to be sold, and the produce divided, Page d. Leapingwell, 18 Ves. 463 ; Gibba v. Rumsey, 2 V. & B. 294; Jones v. Mitchell, 1 S. & St. 290 ; see also Cruse v. Barley, 3 P. W. 20; and Collins v. Wakeman; 2 Ves. Jr. 683. As to Cooke 1). Stationers' Company, 3 My. & K. 262, see judgment of Wood, V.-C, in Ee Cooper's Trusts, 23 L. J. Ch. 29, n.] (m) 1 Ves, 108. (n) Amb. 643, 1 B. C. C. 61, n. (0) In 1782, cited 1 B. C. C. 61. (p) 2 S. & St. 498. A testator devised certain copyhold lands to W. H., his heirs arid assigns, upon condition that he within one month after the decease of the testator, paid to his (the testator's) executors a sum of 2,000f., which he desired should be taken as part of his personal estate, and disposed of in the same manner ; and, after giving certain legacies',, he disposed of the residue of his personal estate, including the 2,0002., in favor of charities. 371 *349 DOCTEOTE OF LAPSE. *348 * the charge to be extinct for the benefit of the devisee of the land, yet the adjudication on the appeal was founded on special circumstances, and did not touch the general doctrine. [It will be observed that in Arnold v. Chaprnan and Henchman v. Observations Att.-Gen., the gift of the money to the executors was good, on Arnold u. and might, as Lord Hardwicke observes, be wanted for Gravenori). debts, and, in this view, was well severed from the estate, Hallum. a,nd not merely a charge upon it {q). In Gravenor v. Hal- lum, the annual payments were expressly treated as exceptions, and not charges. In Bland v. Wilkins, the grounds of the determination are not known. None of these cases, therefore, are authorities that the benefit of a charge, the gift of which is void ah initio, falls to the heir. We now come to the cases where the decision was in favor bf the devisee of the land, all of which will, it is conceived, be found to be cases of mere charges. J Thus, in Jackson v. Hurlock(r), A. devised to B. and her heirs cer- Decisionsin ^^^^ manors, charged with the payment of any sum not favor of the exceeding 10,000/. to such person as he, by any letter or ianTcha*iged!s writing to be left with her, should appoint. By a writing Jackson v. SO left, he charged on the estate {int. al.) several sums to Huriocfc. charitable and superstitious uses, amounting to about 6,000/. *349 Lord Northington * held that these void legacies must sink into the estate, for the benefit of the devisee. It had been argued at the bar, he said, upon a mistake, as if the testator had intended, at all events, to take 10,000/. out of the estate ; whereas he meant the re- verse. A sum not exceeding 10,000/. had put a charge upon the estate which could not take place. So, in Barrington v. Hereford, decided by Lord Bathurst ; which, The testator died without customary heir or next of kin, and the question was, whether the 2,000^. belonged to the devisee, the lord of the manor, or the Crown. Sir J. teach, V.-C., considered Arnold v. Chapman to be a decisive authority against the devisee ; and that the lord of the manor could not be entitled to it, as he takes only propter defectum tenentis, and here he had a tenant, and had received his fine upon admittance. His Honor observed, that, if there had been next of kin, a question might have been raised, whether the testator did or did not intend that this sum of 2.000Z. should have all the same qualities as if it had been personal estate at his death. There being no next of kin, the Crown took, by force of ita prerogative; if renl estate, because there was no customary heir, if personalty, because there was no next of kin. On appeal [3 My. & K. 485,J Lord Brougham considered that, though the Crown might take personalty as bona vacantia, it could not take real estate except by- escheat; which had no place here, because copyholds must escheat {if at all) to the lord. He thought that it was not material whether the sum was considered to be excepted out of the devise, and therefore devolving to the heir, as in Arnold v. Chapman, or as a charge upon it, and therefore failing for the benefit of the devisee of the land, as in .Jackson r. Hurlock; because, as there was no heir, and as neither the lord (he having a tenant to perform his services), nor the Crown could take by escheat, and as the holding it to be personalty was out of the question, his Lordship considered that the cestui que trust had failed, and that the devisee of the land had the benefit of the extinction of the charge by the necessity of the case. His Lordship observed, too, that the money could not be raised by the aid of the court, who, though it would assist the heir if there had been one, would not have lent itself to the Crown. [As to which see above, p. 68, n. (y). (q) But see Tucker v. Kayess, 4 K. & J. 339.] (r) Amb. 487, better reported 2 Ed- 263. 372 CHARGES ON LAND. *350 according to a very short statement by a reporter of a sub- Barrington ». sequent period (s), seems to have been a bequest of 1,000/. to be laid out in land, in trust for B., charged with an annual sum to a charity. It is said that the M. E. gave it (i.e. the annual sum) to the residuary legatee, but that the chancellor decided in favor of the specific devisee, as arising out of the estate. Sir R. P. Arden, M. E. in Ken- neU V. Abbott (<), said, "that Lord Bathurst first thought the heir entitled, upon the cases of Cruse v. Barley (m), and Arnold v. Chap- man ; but afterwards his Lordship changed his opinion, and it is now perfectly settled, that if an estate is devised, charged with legacies, and the legacies fail, no matter how, the devisee shall have the benefit of it, and take the estate." So, in Baker !?. Hall(a;), where a testator gave 'to the minister or clergjTnan of a certain parish, for ever, an annuity or rent- Baker v. charge of 35/., to be issuing out of a certain messuage, &c., ■^*''- for a charitable purpose, with a power of distress. He then devised the premises (subject to the annuity), upon certain trusts ; and devised all the residue of his real and personal estate not thereinbefore disposed of, upon other trusts. The question was, whether the annuity, the devise of which was void, went to the residuary devisee, or to the specific dev- isee of the lands. Sir W. Grant said, that the testator appeared to have expressly excepted the annuity out of the residue of his estate ; and could never have had it in contemplation that it should go, in any event; to the residuary devisee ; and he decided that it sunk for the benefit of the specific devisee. [It will be observed, that the annuity was not an exception out of the estate out of which it was to issue : that estate was devised subject to it ; in other words it was a mere charge. According to the law as settled at the present day, there could not be a doubt that the residuary devisee would have no claim, for the authorities (y) clearly show that a * declaration of trust in favor of a charity *350 avoids the devise of the legal estate ; a rent-charge, therefore, devised as in the above case, never could have existence, and conse- quently could not form the subject of claim by any person (z) . In Cooke v. Stationers' Company (a) , Sir J. Leach, M. E., distin- guished between a charge and an exception ; and being of cooke v. opinion, that the legac}-, in the case before him, was a charge. Stationers' held that the devisee was entitled. He observed, that the ""P^y- devise being upon condition to pay the legacies made no difference, being no more than a charge of the legacies ; consequently Bland v. Wil- kins (6) must be considered as overruled. So, in Ridgway v. Woodhouse (c), where a testator devised real es- {*) 1 B. C. C. 61. (0 4 Ves. 811. (a) 3 P. W. 20, stated post, Ch. XIX. s. 5. {X) 12 Ves. 497. [{y) Ante, p. 226. \z) The remark in the text also applies to Lord Eldon's observations, .3 Dow, 216, 216. If the trust of the term had been to raise money for charity, the term itself would have been void, and the estate discharged. (a) 3 My. & K. 262. (i) Ante, p. 347. (c) 7 Beav. 437. 373 *351 DOGTEINE OP LAPSE. •Wdgway V. tate in trust for his wife for her life ; but in case his wife's ouse. gjg^gj. ,g}jQ„i^ reside with her, he directed his trustees to re- tain out of the rents 100?. for every day of such residence, and pay the same to a charity. Lord Langdale, M. E., said: "The direction to pay to the charity is void, and consequently the direction to retain, so far as it was intended to operate for the benefit of the charity, was also void, and had no effect ; and that purpose failing, I think the direction to retain must fail altogether." The point under consideration was much discussed in Ee Cooper's Ee Cooper's TruSts (d) , in which there was a specific devise on trust in Trusts. , the first place to raise a sum of money by sale or otherwise ; and, after raising as aforesaid, the estate was to be in trust for the tes- tator's son and his issue ; it was then directed that the money should goto the testator's daughter for life, and afterwards to her children. Then followed a residuary devise. The daughter survived the testator, but died without ever' having had a child. Sir W. P. Wood, V.-C, treated the distinction between an exception and a charge as Settled ; the question was to which head the case before him belonged. He said he "did not find a case deciding that a gift so circumstanced as that had been held to be an exception " (e) . Lapsed *351' * These principles were applied by Sir E. Kinders- tosinkforthe ley, V.-C, without hesitation to the case of failure devisee. by lapse (/). ■ Where personal property is bequeathed to A. and the beirs of his Whether be- body, and in case of failure of issue of A., then to B., quest of . ; (which, as is well settled, is an absolute gift to A., if he sur- and the heirs vive thcitestator) , it is Undetermined whether, if A. die with- of his body, out issue 1 in the lifetime of the testator, the sift to B. will remainder to ' o B., lapses by take eflfect. If we consider that the gift to A., if he sur- deathof A. T/iye the testator, is absolute only because the gift to B. is too remote, then it would seem, since questions of remoteness are to be considered with regard to the state of facts at the death of the testator, and not at the date of his will (g) , that the gift to B. is not open to the id) 23 L. J. Ch. 25, 4 D. M. & G. 751. See also Carter v. Haswell, 3 Jur. N. S. 788, 26 L. J. Ch. 576 ; Tucker v. Kayess,- 4 K. & J. 339 ; Sutcliffe v. Cole, 3 Drew. 135 ; Heptin- stall V. Gott, 2 J. & H. 449 ; Re" CIulow's Trusts, IJ. & H. 667, where an accuipulation of rents being stopped by statute, the excess was h«ld to sink in the estate. (e), .In Tucker v.. Kayess, .sup., the V.-C. said he still adhered to this observation, which he cited as follows : "I do not find a single case in the books where a sum of money to be -paid out of an' estate has ever been held to be an exception." The variation is not im- material: for in the subsequent case of Heptinstall v. Gott (supra) the V.-C, referi'ing to Ee Cooper's Trusts, said, " If any child had ever been in existence, I apprehend that the principle of Arnold jr. Chapman would have applied," — »'. e. that if the daughter and her child had afterwards died in the testator's lifetime, and the gift had thus failed by lapse, the case would have been one of exception, and that the charge would not have sunk for the benefit of the specific devisee. And it appears, in fact, from the V.-C.'s judgment in Re Cooper's Trust, that if a testator makes a disposition of the money, in terms complete, in iavorot a person or persons in esse during his life, and legally competent to take, the V.-C. would hold the case to be one of exception; Sed qu. j and Sutcliffe v. Cole (infra), which was a case of lapse, is contra. (/) Sutcliffe V. Cole, 3 Drew. 135. (g) Ante, p. 254. 374 HOW AFFECTED BY STAT. I VICT. *351 objection of remoteness, and is therefore good. In Brown v. Higgs {h) , Lord Alvanley seemed to entertain no doubt that the gift to B. would take eflfect, whether A. died without issue or not ; but in Harris v. Davis (»)) Sir J. K. Bruce, V.-C, thought such a gift bad.] The doctrine of lapse has been modified by the act 1 Vict. c. 26 in three important particulars. First, by s. 25, which provides, Stat, i Vict. " That unless a contrary intention shall appear b}^ the will. Real estate such real estate or interest therein as shall be comprised or comprised in 1 1 , 1 . , . ... , .11 lapsed or intended to be comprised in anj' devise in such will con- void devises tained, which shaU fail or be void by reason of the death "egj^aafv de- of .the devisee in the lifetime of the testator, or by reason vise. 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." ^ Under this enactment, the gift of a sum forming an exception out of real estate to a person who dies in the testator's lifetime, or the gift of which is void ah initio, [will enm-e for the benefit of the residuary devisee.] If, however, the will does not contain an operative residuary devise, or the sum [excepted] affects the * property *352 comprised in the residuary devise, [such sum falls to the heir. (A) 4 Ves. 717; and see Mackinnon v. Peach, 2 Kee. 55S; Donn v. Penny, 1 Mer. 22, 23. (i) 1 Coll. 416. 1 Legacy devised to child or other de- scendant of the testator does not lapse : — Alabama. Code, 1876, Title 4, ch. 2, p. 588. Arkansas. Digest, 1874, ch. 135, p. 1014. California. Codes & Stat. 1876, Vol. 1, Title 6, ch. 1, p. 724. Colorado. Gen. Laws, 1877, ch. 103, p. 931. Connecticut. Gen. Stat. 1875, Title 18, ch. 11, p. 370. Dakota. Rev. Code, 1877, ch. 1, p. 347. Illinois. E. S. 1880, ch. 39, p 422. Indiana. Stat. 1876, Vol. 2, ch. 3, p. 673. Kansas. Comp. Laws, 1879, ch. 117, p. 1007. Maine. R. S. 1871, ch. 74, p. 564. Massachnsetts. Gen. Stat. 1860, ch. 92, p. 479. Michigan. Comp. Laws, 1871, Vol. 2, ch. 154, p. 1376. Minnesota. Stat. 1878, ch. 47, p. 570. Mississippi. Rev. Code, 1871, ch. 54, p. 526. Missouri. R. S. 1879, Vol. 1, ch. 71, p. 681. Nebraska. Gen. Stat. 1873, ch. 17, p. 304. Nevada. Comp. Laws, 1873, Vol. 1, ch. 37, p. 202. New Hampshire. Gen. Laws, 1878, ch. 193, p. 455. New Jersey. Revision, 1709-1877, Vol. 2, p. 1247. New York. R. S. 1875, Vol. 3, ch. 6, p. 65. Ohio. R. S. 1880, Vol. 2, ch. 1, p. 1436. Oregon. Gen. Laws, 1843-1872, ch. '64, p. 789. Pennsylvania. Bright. Purd. Digest, 1700- 1872, Vol. 2, p. 1476. Rhode Island, p. 374. Gen. Stat. 1872, ch. 171, South Carolina. R. S. 1873, ch. 86, p. 444. Texas. R. S. 1879, Title 99, p. 713. Vermont. Gen. Stat. 1862, ch. 49, p. 380. Wisconsin. R. S. 1878, ch. 103, p. 651. Legacies to devisee or legatee do not lapse : Georgia. Code, 1873, Title 6, oh. 2, p. 425. Iowa. Rev. Code, 1880, Vol. 1, ch. 2, p. 608. Kentuckv. Gen. Stat. 1873, ch. 113, p. 836. Maryland. Rev. Code, 1878, Art. 49, p. 420. North Carolina. Battle's Revisal, 1873, ch. 119, p. 847. ■ Tennessee. Stat. 1871, Vol. 2, ch. 1, p. 1011. Utah. Comp. Laws, 1876, ch. 2, p. 271. Virginia. Code, 1873, ch. 118, p. 911. West Virginia. R. S. 1878, ch. 201, p. 1171, There is no distinction in Massachusetts in regard to the question whether a lapsed gift falls into the residuum between lapsed devises and lapsed legacies. Either of them will pass under a general residuary clause unless the will shows a clear intention to the contrary. Thayer «. Wellington, 9 Allen, 283; Blaney V. Blaney, 1 Cush. 107 ; Prescott v. Prescott, 7 Met. 141. This departure from the more general rule is attributed to the statutes which have put devises and legacies upon substan- tially the same footing. That which is part of the residuum cannot , by lapse fall mto the residuum. Sohier v. Inches, 12 Gray, 385. 375 *353 DOCTEINB OP LAPSE. Of course the act has no bearing on the question whether the sum be an exception or simply a charge ; nor does it] apply to the class of cases first noticed, in which the gift of a sum of mone}' charged upon land on a contingency, is defeated bj' the failure of the event (whether it be the decease of the object before a certain age, or otherwise), and not bj' lapse. The next alteration in regard to lapse relates to devises in tail as to 1 Vict. u. 26, which s. 32 provides, " That where any person to whom any ?; ^^.- . real estate shall be devised for an estate taU, or an estate in Devises in , ^ ' , lail not to ,quasi entail, shall die iji the lifetime of the testator, leaving visee leaves issue who would be inheritable under such entail, and any issue. such issue shall be hving at the time of the death of the tes- tator, 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 should appear in the will." The third and remaining alteration concerns gifts to the children or Sect. 33. other issue of the testator, as to which s. 33 declares, " That u>fs child^w' ''^'i^re any person, being a child or other issue of the testator, other de- to whom any real or personal estate shall be devised or be- leaves'issue " queathed, for any estate or interest not determinable at or not to lapse, -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 will." It will be observed that the words " such issue," occurring in s. 32, Remarks admit of application either to the issue inheritable under the c.^26 ^^32 dtail, surviving the deceased devisee, or the issue inheri- & 33. table under the entail generall}-, whether living at the death of the devisee or not. According to the latter construction, if there be issue living at the death of the devisee or legatee, and also issue living at the death of the testator, the requisition of the statute is satisfied, though the same issue should not exist at both periods. Thus, if lands Whether be devised to A. in tail, who dies in the testator's lifetime, mSt te liv- leaving an only child, and such child afterwards die in the ing at death testator's lifetime, leaving issue who, or anj' of whom, sur- andTf tes- '^^'^^ *^® testator, the devise would, it is conceived, be pre- tator. served from lapse. In s. 33, however, there is more difliculty in adopting a similar construction ; for in this clause the words *353 "such issue "would seem in strict construction to apply * ex- clusively to the issue living at the death of the devisee or lega- tee. But here, also, a liberal construction [has been] adopted (k), by considering the ■ivord "issue" to be used as nomen collectivum, namely, {hi Re Parker, 1 Sw. & Tr. 523, 6 Jur. N. S. 354. But see Sugd. R. P. S. 392. » 376 HOW AFFECTED BY STAT. I VICT. *354 as including every generation of issue, and not merely as designating the particular individual or individuals living at, the death of the legatee ; so that the existence of any person belonging to the same line of issue at the death of the testator will suflSce to prevent the lapse. Of course the application of both these sections is excluded where the devise in tail or the gift to the testator's child or issue is ex- Enactment presslj^ made contingent on the event of the devisee or lega- does not ap- tee surviving the testator ; for in such a case to let in the gift doeJnot heir in tail under sect. 32 would be something more than '"Ps^i but 1 . . . . -. 1 .1 11.' property substitution : it would be to give the property to the heir in passes over tail in an event upon which the testator has not devised it to '° another. the ancestor ; and in such a case to hold the child or other descendant of the testator to be entitled under sect. 33, would be in direct opposi- tion to the language of the will. Nor, it is conceived, does the statute touch the case of a gift to one of several persons as joint-tenants ; for as the share of any object dying in the testator's lifetime would survive to the other or others, such event occasions no " lapse," to prevent which is the avowed object of both the clauses under consideration. The same reasoning applies to a gift to a fluctuating class of objects who are not ascertainable until the death of the testator, though made tenants in common. Thus, suppose a testator to bequeath all his per- sonal estate to his children simply in equal shares, the entire property will, as before the statute, belong to the children who survive the tes- tator, without regard to the fact of any child having, subsequently to the date of his will, died in the testator's lifetime leaving issue who survive him (/). As gifts to the testator's children as a class are of frequent occurrence, their exclusion from this provision of the statute will greatlj' narrow its practical operation. The reader will perceive that sect. 33 does not substitute the surviv- ing issue for the original devisee or legatee ; but makes the gift to the latter take effect, notwithstanding his death in the ^"'Issue^of testator's lifetime, in the same manner as if his death had child dying happened immediately after that of the testator, [and lifetime not whether it happened * befoi-e (m) or after («) the date *354 substituted. of the will, though not if it happened before the act came into operation (o). J The subject of gift, therefore, will, to all intents and purposes, constitute the disposable propertj^ of the deceased donee, and as such [will either devolve on his representatives {p), or] follow the dispositions of his will so far as that will, according as it may be regulated by the new or the old law, is capable of disposing and {I) OIney v. Bates, 3 Drew. 319; Browne «. Hammond, Johns. 210. (m) Mower ». Orr, 7 Hare, 473 ; Winter v. Wirter, 5 Hare, 306 ; Wisden i). Wisden, 2 Sm. & Gif. 396 ; Barkworth «. Young, 4 Drew. 1. (re) .Johnson ». Johnson, 3 Hare, 157; Skinner v. Ogle, 4 No. Gas. 74, 9 Jur. 432. (o) Wild V. Reynolds, 5 No. Cas. 1; Winter'w. Winter, 5 Hare, 314. (j>) Winter ». Winter, Wisden v. Wisden, supra. 377 *355' DOCTRINE OF LAPSE. does dispose of after-acquired property {q) . Hence occurs this rattier novel result, that it cannot be predicted of any will of a deceased per- son, whose parent or any more remote ancestor is living, what may be the extent of property which it will eventually comprise, and no final distribution can be made pending this possibilitj' of accession. [The effect of the section is to prolong the original testator's life by a fiction for a particular purpose ; that purpose is to give eflFect to the will in which the gift which would otherwise lapse occurs, and it only points out the mode in which that effect is to be given. Thus the subject of gift devolves with any obligation to which, under that will, it would havfe been subject in the hands of the deceased donee if he had actually survived ; as, an obligation to compensate other legatees under the same will, disappointed by his assertion of rights that defeat their lega- cies (r) . But the fiction does not prolong the life generally for other purposes. Thus, an agreement to settle property which should come to the deceased donee (testator's daughter) " during coverture," was held not to include property which had so come to her only by this fiction (s) . And if the deceased donee was a married woman, whose husband also died before the testator, her will made during coverture would not, it should seem, by virtue of such fictitious prolongation of life, acquire any validitj^ which did not otherwise belong to it {t) . It has been decided that sect. 33 does not prevent the lapse of prop- Sect. 33 does ertj- appointed by will under a power to appoint in not apply to #355 favor * of particular objects, where, by the instrument appointments . / ■' ... -,/.., under a spe- creatuig the power, the property is disposed of in de- cial power. ^^^^ ^^ ^^^, appointment being made (m) ; but that it does prevent lapse where the power is general, although there may be a dis- position in default of appointment (x:).] (g) Mower v. Orr, Johnson v. Johnson, supra. Ir) Pickersgill o. Kodger, 5 Ch. D. 163 ; see further as to this ease, post, Ch. XIV. (s) Pearce i'. Graham, 32 L. J. Ch. 359. But the subject of bequest has been held liable to probate duty as part of the deceased donee's estate. Perry's Executors v. The Queen, L. K. 4 Ex. 27. («) See the doubt expressed. Re Mason's Will, 34 Beav. 497, 498. (M) Griffiths ». Gale, 12 Sim. 327, 354. (x) Eccles v. Cheyne, 2 K. & J. 676.] 378 UNCERTAINTY AS TO THE SUBJECT. *356 * CHAPTER XII. *356 GIFTS "WHEN VOID FOE UNCEETAINTY. I. General Doctrine. U. Uncertainty as to Subject of Disposition. III. Uncertainty as to Objects of Gift. IV. Effect of Mistake in Locality or Occupancy of Lands, and of Misnomer generally as to Subjects or Objects. V. What Wwds are sufficient to create a Trust. I. — In the construction of wills the most unbounded indulgence has been shown to the ignorance, unskilfulness, and negligence indulgence of testators : no degree of technical informality, or of gram- shown to tes- matical or orthographical error (a), nor the most perplexing construction confusion in the collocation of words or sentences, will deter °* '""'• the judicial expositor from diligently entering upon the task of elicit- ing from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together (6) ; ^ but if, after every en- deavor, he finds himself unable, in regard to any material fact, to pene- trate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable con- sequence.^ Conjecture is not permitted to supply what the testator has failed to indicate ; for as the law has provided a definite successor in the absence of disposition, it would be unjust to allow the right of this ascertained object to be superseded by the claim of any one not pointed out by the testator with equal distinctness.* The principle Heir or next of construction here referred to has found expression in the be o'ust°d'oa familiar phrase, that the heir is not to be disinherited unless conjecture. (o) See 3 Keb. pi. 49, 23 ; [Henniker v. Henniker, 12 Jur. 618. But see Jackson v. Craig, 20 L. J. Ch. 204, 15 Jur. 811 ; Baker v. Newton, 2 Beav. 112; Langlev v. Tliomas, 6 D. M. & G. 645. (4) See Minsliull v. Min3hull,"l Atk. 410.] 1 Den V. M'Murtrie, 3 Green (N. J.), 276; Appeal, 89 Penn. St. 67; Beck's Appeal, 78 Lillard u. Eevnolds, 3 [red. 366 ; Townsend v. Penn. St. 432. Downer, 23 "V^t. 225 ; Winder ii. Smith, 2 .Tones, 2 Latent ambiguities mav be resolved hj 327. A devise is always most favorably ex- the declarations of the testator after the mak- pounded to carry out the intent and give "effect ingof the will. Cotton v. Smithwick, 66 Me. tothe will of a' devisor who, innps consilii, 360. But such evidence is admissible only preparing his own will, omits or misapplies Tvhen, without resort to parol evidence, the the legal and proper phrases. Lytle v. Bever- will cannot be interpreted. lb. idge, 58 N. Y. 692. Technical rules of con- 3 Kelley v. Kelley, 2S Penn. St. 460; struction must give way to the plainly Wootton V. Bedd, 12 (Jratt. 196. expressed intention of the testator. Wright's 379 *357 GIFTS WHEN VOID FOE UNCEETAINTY. by express words or necessary implication ; which, however, must not be understood to imply that a greater degree of perspicuity or force of language is requisite to defeat the title of the heir to the real estate of a testator, than would suffice to exclude the claim of the next *357 of kin * as the successor to the personalty ; for though undoubt- edly, on some points, a difference of construction has obtained in regard to these several species of property, that difference is ascriba- ble, rather to the diversity in their respective nature and qualities, than to any disparity of favor towards the claims of the heir and next of kin. ^ In modern times instances of testamentary gifts being rendered void for uncertainty are of less frequent occurrence than formerly ; which is owing probably, in part, to the more matured state of the doctrines reg- ulating the construction of wills, which have now assigned a determinate meaning to many words and phrases once considered vague and insen- sible, and in part to the more practised skill of the courts in applj'ing these doctrines.^ Hence the student should be cautioned against 3'ield- ing implicit confidence to any early cases (c) , in which a gift has been held to be void for uncertainty, the principle whereof has not been rec- ognized in later times. To the validity of every disposition, as well of personal as of real estate, it is requisite that there be a definite subject and object ; and uncertainty in either of these particulars is fatal.' II. — A simple example of a devise rendered void by uncertainty as to the intended subject-matter of disposition, is afforded as to subject by the early case of Bowman v. Milbanke (d) , where the oigitt. words, "I give all to my mother, all to mj' mother," were (c) Pride v. Atwicke, 1 Keb. 692, 754, 773 ; Price v. Warren, Skinn. 266, 2 Eq. Ca. Ab. 356, pi. 2. (d) 1 Lev. 130, Sid. 191, T. Ravm. 97 ; but in another earlj' case (Taylor v. Webb. Styles, 301, 307, 319; S. C. nom. Marreti). Sly, 2 Sid. 75), the words, "I make my cousin, Giles Bridges, my sole heir, and my executor," were held to constitute the cousin devisee in fee of the testator's lands : it being'observed, that the testator not only made him his heir, but his executor also; and if he should not have the lands, the word " heir" was nugatory, for, by being executor only, he should have the goods. [As to which, see Ch. XVIII, s.'tra notisT] The word " heir " was said to imply two things: tirst, that he should have the lands ; sec- ondly, that he should have them iii fee-simple. [See also Parker v. Nickson, 1 D. J. & S. 177,'''! acknowledge A. to be heir."] 1 If the construction of a gift be doubtful, Wentzel, 68 Penn. St. 84. So where a will the law leans to a construction in favor of a contains no limitation over after a devise in distribution as conformable to the general remainder, that fact is to be weighed in rules of inheritance as possible, consistent support of the same construction. Huber's with the language of the will. France's Estate, Appeal, supra; Grove's Estate, 58 Penn. 75Penn.St.220;Smith'8Appeal, 23Penn. St. St. 429; Ogden's Appeal, 70 Penn. St. 9. Moreover, where the words of a devise 501. are equivocal, the court will endeavor to put 2 To avoid a will for uncertainty, it is not such a construction upon them as will pass enough that the dispositions in it are so ob- the land. Garrison ». Garrison, 5 Dutch, scure and irrational that it is difficult to be- 153. In case a clause in a will is obscure lieve they could have been intended by the or ambiguous, words which manifest an in- testator, but it must be incapable of any clear tention to dispose of the whole estate of the meaning. Mason ». Robinson, 2 Sim. & S. testator are to be treated as favoring the 295 ; VVootton v. Redd, 12 Gratt. 196. construction that he meant to pass a fee. » SeeRothmahlers. Myers,4Desau8.215; Huber's Appeal, 80 Penn. St. 348; Geyer v. Trippe v. Frazier, 4 Harr. & J. 446; Flint v. 380 UNCEKTAINTY AS TO THE SUBJECT. *358 adjudged insufficient to carry the testator's land to his Gift of "all" mother, as it was wholly doubtful and uncertain to what definite.' " the word "all" referred. In Mohun v. Mohun (e) , the will consisted merely of these words : " I leave and bequeath to all my grandchildren, and share and share alike." By a codicil the testator appointed certain persons to be trus- tees for his grandchildren and nieces : Sir T. Plumer, M. E., held that this was too uncertain to create a devise. It had been contended that the whole difficulty would be removed by the transposition of the word " all," which, in its present * situation, was without effect,- *358 the word ' ' grandchildren " including all who correspond to that description ; but his Honor observed, that there was uncertaintj' both in the subject and object of the bequest, and the court could not transpose words for the purpose of giving a meaning to instruments that had none. To authorize the transposition of words, it is clearly not enough (as hereafter shown (/)) that they are inoperative in their actual Remark as to position : they must be inconsistent with the context. In transposition of words the case just stated the word " all," though silent where the testator had placed it, was not repugnant ; and it is observable that the transposition of the word " all," even if justifiable, would not, according to Bowman v. Milbanke, have supplied a definite subject of disposition. [But where, after giving several legacies, the will proceeded, " after these legacies and my funeral expenses are paid, I leave to n ifterleea- my sister A. , without any power or control of her husband ; in cies, &o. are case of her death to be equally divided amongst her children f^'^' y^S- or grandchildren : " this was held by Sir J. Bacon, V.-C, to due held to be a good gift of the residue to A. {g) .] Where the intended subject-matter of disposition consists of an in- definite part or quantity, the gift necessarily fails for uncer- p~ , tainty. On this principle, a bequest of " some of my best definite part linen "(Ji) , [or " of a handsome gratuity to each of my exec- ^'"''' utors "(»'))] has been held void. [But a distinction seems to be taken when the will furnishes some ground on which to estimate the amount intended to be —except bequeathed. Thus, in Jackson v. Hamilton (J) , where the ^|]] f^'n^he, testator directed his trustees to retain a reasonable sum of grounds for money to remunerate them for their trouble it was referred to theamount. (c) 1 S. W. 201. [( f) Ch. XVI. s. 2. (o) Be Bassett's Estate, L. R. 14 Eq. 54.] (A) Peck V. Halsey, 2 P. W. 387. [{i) Jubber v. Jubber, 9 Sim. 503. 0') 3 J. & Lat. 702. Hughes, 6 Beav. 342. When a direction is direction, will take as if no such direction had made as to the foi-m of disposing of some of been made. Gill v. Grand Tower Mining the testator's property among his heirs, and Co., 92 111. 249. And even when thedirec- not as to the disposition itself, the donees and tion contains a mode of disposition in un- their shares, if no trust be created it is not equal shares, if the direction cannot be fol- material that the direction is not carried out lowed out by reason of uncertainty as to the by the parties concerned : and the parties, shares, the property will descend as intestate having taken no action as to carrying out the estate, lb. 381 *359 GIFTS "WHEN VOID FOR UNCERTAINTY. the master to ascertain what would be a reasonable sum. So, where the bequest is for the maintenance, support, and education maintenance, ^f an infant, or for the maintenance and support of an adult ,&c. ofanin- person, although no amount be specified, the court will de- good, though termine the amount to be applied for that purpose (k) . And cifl^d™ ^^^' * bequest of " 3,000^. or thereabouts," to be raised by accu- ' mulating annual income, has been held good : the words " or thereabouts " being considered as used only to meet the difficulty *359 ' which would arise * in accumulating up to the exact limit, and to render any little excess, occasioned by the addition of an entire dividend, subject to the same disposition as the specified sum (Z). So, — for found- where a Scotch testator expressed a wish (in eflfect) to es- ing a school, tablish in Dundee a hospital for one hundred boys, like, but less than, Heriot's Hospital, but omitted to say how much was to be appropriated for the purpose, it was held in D. P. (m), that the testator had sufficiently defined his object to enable the court to determine the amount required for it. And where a testator creates a trust for the repair of an existing tomb (ra) , or even for the building of a new one (o), although this, as already noticed (p), is a void trust, the court will de- termine what would have been required for it, if a determination on that point is needed in order to give practical effect to other parts of the will (q) . A bequest of a sum "not exceeding" 100?. (r), or of " 50Z. or 100?." (s), will be construed in a manner most beneficial to the legatee, Where the ahd _js, therefore, a good gift of the whole 100/. ; and a dXrentiy bequest will not be void for uncertainty, merely because the stated. amount is differently stated in different parts of the will, if the court can collect that one statement was evidently a mistake, even though the mistake be contained in the very words of gift (<).] An instance of uncertainty in the subject of gift occurred in Jones Uncertainty d. Henry v. Hancock, which underwent much discussion (m). as to the The testator devised lands to his daughter, Ann Henry, for devisee is to Ufe, with remainder to her first and other sons in tail male, take. remainder to his other daughter Frances. The devise to Ann was upon condition that she married a man possessed of a prop- (k) Broad v. Bevan, 1 Russ. 511, n.; Pride v. Foolts, 2 Beav. 430; Kilvington v. Gray, 10 Sim. 293 : Batt v. Anns, 11 L. J. Ch. 52; Thorp e. Owen, 2 Hare, 610; Pedrotti's Will, 27 Beav. 583 ; and see 1 Sim. N. S. 103, and other cases noticed along with the above, post. (l) Oddie s. Brown, 4 De G. & J. 179, diss. K. Bruce, L. J. (m) Magistrates of Dundee «. Morris, 3 Macq. 169; see also Adnam v. Cole, 6 Beav. 353. (n) Fisk V. .^tt.-Gen., L. R. 4 Eq. 521; Re Birkett, 9 Ch. D. 576; Fowler v. Fowler, 33 Beav. 616, contra, must be considered overruled. to) Mitford v. Reynolds, 1 Phil. 185. (p) Ante, p. 211, n. (i). (y) See Chapman's. Brown, and other cases presently stated. (>•) Thompson v. Thompson, 1 Coll. 395; Cope v. Wilmot, 1 Coll. 396, u.; Goagh v. Bult, 16 Sim. 45. (s) Scale 1). Scale, 1 P. W. 290 ; and see Haggar ». Neatby, Kay, 379. (t) Philipps V, Chambei'laine, 4 Ves. 50.] (u) 4 Dow, 145. See Gibbon v. Harmer, 2 Roll. Rep. 425 ; Hoffman v. Hanke}', 3 My; & K. 376, post i [Rickards v. Rickards, 2 Y. & C, C. C. 419.] 382 tTNCEKTAIKTY AS TO THE SUBJECT. *361 erty at least equal to, if not greater than, the one he left her. The testator then proceeded as follows: "And if she marries a manwith less property than that, in that case I leave her only as much of mine as shall be equal to the property of the man she marries ; and all the remainder of my property shall * immediately pass over *360 and be given up to mj' second daughter Frances Henry, to whom, in that case, I bequeath it." It was held in D. P., that the devise over was void for uncertainty, as the specific portion or share so given over did not appear in the will itself. On delivering the jn^jj^tth opinion of the judges, Gibbs, C. J., said, " The will gives uncertainty over an uncertain part, not specifying the lands if to be held '"'"^'*'^- in severalty ; or, if this should be considered as an undivided portion in the whole, it cannot be discovered from the will what that portion is. It has hardlj' been contended, that anything was given over in sever- alty ; but it was contended, with more color, that the person to take the excess, beyond the husband's property, would be tenant in common with Ann, of a moiety or some other given share. It is impossible to put the case upon any other ground than this : .a portion is given over, and it cannot be a portion to be held in severalty. The only way then is, that the person to take the excess shall have some undivided portion of the whole ; and if the devise defines what that interest is, it will be sufficient to give its objects the benefit of it. But we think that the devise does not define any specific interest which the object of it can take. The only ground upon which this can be contended to be a ten- ancy in common, which supposes some specific share, is, that it may be left to a jury to decide according to the values. The inconvenience and confusion which would result from this is obvious ; different juries would set different values on the respective properties of the husband and wife : and the valuation must be made too at the period of the mar- riage, and at any distance of time a jury might be called upon to say what was the value of the propertj'. It would not only be difficult, but in some cases impossible, to ascertain the value in this way. Unless the Our opinion, however, does not rest on the inconvenience specific in- and confusion, but on the principle of law, that such a de- g^'are iTdis- vise is not sufficient to create a tenancy in common. If it tinctly were so, it must be upon the marriage of Ann ; and all the derise not ' consequences of a tenancy in common must then have taken sufficient to create a place." " They must have. been capable of being separately tenancy in sued in all real actions, and in actions of ejectment, a mod- <=ommon. em proceeding which has come in the place of real actions. Now, in every real action, though we do not know from the writ, it must appear in the declaration what is the specific interest in question, how the title is derived, and what the precise interest is ; but here there is no such thing. *At the time of Ann's marriage it could not be *361 collected from the will what the specific interest was. If they were in the situation of tenants in common, see how they could answer : 383 *362 GIFTS "WHEN VOID FOR UNCERTAINTY. a creditor, who has a demand against one of them, institutes his suit, and proceeds to get the lands by elegit. He has judgment for a moiety of the share, and the sheriff is directed to deliver a moietj'. But the share must appear in order to enable the sheriff to deliver the moietj^ ; and no case has ever occurred where the difficulty has been cast on the sheriff to ascertain the share. And there is no instance of a tenancy in common where the extent of the interest could not be ascertained from the instrument creating it. This, difflcultj-, too, presents itself: tenants in common have each a right to a writ of partition. The writ does not state the share, but in the declaration the precise interest is stated." [But a devise to two persons in such shares as should be determined Devise in ^^ (blank) , would make them tenants in common in equal sliares to be shares (a:) . On the same principle an equal division is by person made where the donee of a power of distribution fails to omitted to exercise the power (y) ; or where the gift consists of a gen- eral direction that the legatees should " participate" (z).] And (a) where the gift comprises a definite portion of a larger quan- Gift of part titj') i* is not rendered nugator}' bj^ the omission of the tes- of a larger tator to point out the specific part which is to form such quantity not ^. ,,. , ,.. , .,, uncertain, portion, the devisee or legatee being m such case entitled to where devi- select ; by which means the subiect of the gift is reducible see IS en- ' j j b titled to to certaintj' ; and "id certum est quod certum reddi potest "- ^^ ^''*" is a settled rule in the construction of wills. Thus, if a man devise two acres out of four acres that lie together, it is said that this is a good devise, and the devisee shall elect (6). So, if a testator devise a messuage, and ten acres of land surrounding it, part of a larger number of acres, the choice of such ten acres is in the devisee (c) . [Again, where a testator devised the residue of his property to his wife Gift of any ^'^^ I'f^, " reserving to her power to will away anj- part" of part or of so it at her death, with a gift to his daughter of what his atee shall *362 wife * should not dispose of ; it was argued that it ^^'™'- was clear the testator did not intend the power to ex- tend to the whole, and so to disinherit his daughter, and that no limits being defined, the power was void for uncertainty ; but it was held that the power extended to the whole estate (rf). So a trust to permit the testator's wife " to appropriate absolutely to herself such parts" of his plate as she should desire to possess, has been held to give the widow the whole of the plate (e). But where a testator bequeathed his house- Ux) Robinson v. Wheel^Tight, 21 Beav. 2U. M Salusbury v. Denton, 3 K. & J. 529. (z) Liddard v. Liddard. 28 Beav. 266. See also Greville v. Greville, 27 Beav. 694.1 (fi) Peck V. Halsey, 2 P. W. 387. (4) Grace Ma,rshairs case, Dy. 281 a. n., 8 Tin. Abr. 48, pi. 11. (c) See Hobson i;. Blackburn, 1 Mv. & K. 574; (Jacques v. Chambers, 2 Coll. 441: Duck- manton v. Puckmanton, 5 H. & N. 219 ; Millard «. Bailey, L. R. 1 Eq. 378. (rf) Cooke ti Farrand, 7 Taunt. 122. (f ) Arthur u. Mackinnon, W. N. 1879, p. 93. 384 TJNCEETAINTY AS TO THE SUBJECT. *363 hold property on trust for sale, " except such articles as his wife should wish to retain for her own use, which he thereby empowered her tp appropriate," it was said that this intimated a confidence that the wife would make some selection, and would not take the whole ; though to what extent short of that is not very clear (/).] But, if a testator having two closes called Whiteacre, devises (not one of his closes, but) his close called "Whiteacre, this does Gift of close not entitle the devisee to take either of the closes at his A., testator pleasure, but the uncertainty as to which is intended, ren- that name, is ders the devise void (jr) ; [and if he make a general devise ''°'^- of all except the close called Whiteacre, there being two of that name, the exception is uncertain, and the general devise will be read as if it contained no exception (/i). But where a testator bequeathed all his property in the Austrian and Russian funds, " and also that vested in a Swedish mortgage," the testator having several Swedish mortgages, they were all held to pass (i). And where a testator having five lease- hold messuages in L., comprised in four leases, bequeathed "his four leasehold messuages in L. ," it was held that all five messuages passed upon a context somewhat favoring that construction (F)] . A bequest of what shall remain or be left at the decease of the prior legatee (/), [or of what the legatee is possessed of gift oyg,. of at * the time of death (m) , or of what he does not *363 T^^^^^f^' want (n), or does not spend (o), or of what he can posed of, lield transfer (p), or what he can save out of his yearly income (q), too indefinite. or of what remains undisposed of, or is not disposed of b3' deed or will (r), or of the " bulk" of certain property («), or a gift over of the whole legacy in case of the death of the prior legatee intestate {t) , is void for uncertainty.] (f) Kennedy v, Kennedy, 10 Hare, 438. In Davis v. Davis, 1 H. & M. 255, the donee of a power to distribute plate. &c., being also one of the objects, allotted the largest share to himself, and this was upheld. See also Eeid v. Eeid, 30 Beav. 389.] (y) Richardson v. Watson, 4 B. & Ad. 798; but evidence is admissible to remove such an amtii^iiity; see next chapter. [(A) Bliindell v. Gladstone, 14 Sim. 83, better reported 8 Jur. 301. But the devise was, in fact, of all (except W.), " including trust estates," and W. was given to A. ; and the decree was reversed, 3 M. & Gord. 692, on the ground that one of the two properties called W., being vested in the testator as trustee, it was to be presumed that he meant the other to pass by the particular devise (i) Richards v. Pattesoh, ] 5 Sim. 601. (k) Sampson v. Sampson, L. R. 8 Eq. 479. (I) Bland v. Bland, 2 Cox, 349;] Wynne v. Hawking, 1 B. C. C. 179 ; Pushman v. Filliter, 3 Ves. 7 ; Wilson v. Major, 11 Ves. 205 ; [Perry v. Merritt, L. R. 18 Eq. 152. (m) Att.-Gen. v. Hall, IJ. & \V. 158, n., 2 Cox. 355; Pope v. Pope, 10 Sim. 1. (n) Sprange )). Barnard, 2 B. C. C. 587; Hudson v. Bryant, 1 Coll. 681; it seems that Unwell V. Halsey, 1 P. W. 651, cannot now be considered law; see per Lord Loughborough, 2 Yes. Jr. 532, and per Sir E. Sugden, 1 LI. & G. 298. (o) Henderson v. Cross, 29 Beav. 216. (p) Flint V. Hughes, 6 Beav. 342. (q) Cowman v. Harrison, 17 Jur. 313, 22 L. J. Ch. 993. (?■) Bourn v. Gibbs, 1 R. & Mv. 614 ; Ross i>. Ross, 1 J. & W. 154; Bull v. Kingston, 1 Mer. 314 ; Gi-ev v. Montague, 2 Ed. 205, 3 B. P. C. Toml. 315; Phillips v. Eastwood, 1 LI. & G. 270; Watkins «. Williams, 3 M. & Gord. 622; Re Yalden, 1 D M. & G. 53; Bowes v. Goslett. 27 L. .1. Ch. 249, 4 Jur. N. S. 17; but see Borton v. Borton, 16 Sim. 652. («) Palmer v, Simmonds, 2 Drew, 221. («) Cuthbert ». Purrier, Jac. 416 ; Green v. Harvey, 1 Hare, 428 ; Eade v. Eade, 5 Mad. 118; Lightboume v. Gill, 3 B. P.C. Toml. 260; Weale v. OUive, 32 Beav. 421.] VOL. I. 25 385 *364 GIFTS WHEN VOID FOR UNCEBTAINTY. Some of these cases certainly had special, circumstances, and the in- Whether the deflniteness seems not to have been invariably considered to same rule be such as to invalidate the gift («) . At all events expres- specificchafr- sions of this nature are capable of explanation, where the tels. property', or part of it, consists of household furniture, or other articles of a perishable nature, by considering these words as referring to the expected diminution of the property by the use and wear of the first taker. [Neither would there be any uncertainty as to the subject of the gift over in any bequest of specific chattels cfipable of identification. The point, however, is unimportant ; for the gift over would be void on another ground, namely, its repugnancy to the prior gift (a:). But where] property (whatever be its nature (y)) is expressly limited to the first taker for life, there is not, it is believed, any case in which such expressions have been held to render the ultimate gift void [com- prising as they then do the whole corpus.] Thus, in Cooper v. Wil- Giftof what liams (z) [the testator gave personal property to his wife for of A. good and it seems to have been thought that the gift over was taiSor life g^o^-] 1^° i"- Gibbs v. Tait (a), where a testator bequeathed only. a residue to his wife and her assigns, and directed her to Gibbs V. Tait. apply the interest and proceeds thereof for her own use and benefit, and after her decease or marriage he gave what should he remaining of such residuary moneys to other persons, no objection *364 * seems to have been advanced to the validity' of the gift on the ground of uncertaintJ^ [Again in Constable v. Bull (6) , there was a devise and bequest of Constable ». ^^ the testator's real and personal estate to his wife for her Bull. sole and separate use and benefit, " and at the decease of my wife whatever remains of my said estate and eflfects to go " to certain other persons. Sir J. K. Bruce, V.-C, said, the only question seemed to be whether the words " whatever remains of" had the effect of pre- venting the gift to the widow from being construed as a gift of a life- interest, for that without these words the subsequent bequests would have the effect of so reducing the interest given to the widow: that there were several meanings capable of being rationally attributed to these words which would be inconsistent with the construction giving to the widow the power of disposing of the property, and that he thought the gift over was good. This construction was approved and followed by Sir C. Hall in Bibbens v. Potter (c).] (u) Duhamel v. Ardovin, 2 Ves. 162 ; Hands v. Hands, 1 T. R. 437, n. \{x) See Ch. XXVII. (y) Except "consumable" articles, see Andrew v. Andrew, 1 Coll. 690; and Ch. XXVT. ad. Jin.'] (z) Pre. Ch. 71, pi. 64. (a) 8 Sim. 132. [(ft) 3 De G. & S. 4Ui see also Borton v. Borton, 16 Sim. 552; Re Stringer's Estate, 6 Ch. D. 1. But see Flint ti. Hughes, 6 Beav. 342. (c) 10 Ch. D. 733. In Re Adams, 14 W. B. 18, " all remaining "clearly referred to the previgus legacies.} 386 TTNCERTAINTY AS TO THE SUBJECT. •'365 If the gift of what shall he left is preceded by a power of disposition or appropriation reserved to a trustee or prior legatee in ^j^ j ^^ ^^^^ favor of particular objects, the expression evidently points shaij be left at that portion of the property which shall be unappointed J'^powerof^ or unappropriated under the power. As in Surman v. Sur- disposition, man (rf), where a testator bequeathed his personal estate to Surmarm. his wife for life or widowhood, with a power to her to apply Surman. the same to her own benefit and the maintenance of A. and B. during minority ; and at her decease or second marriage, he gave the same, or so much as should then remain, to certain persons ; this was held to be a good bequest of the personal estate unapplied to the prescribed purposes. [So, in Lancashire v. Lancashire (e), a testator devised all his real and personal estate to trustees, and directed them to apply Lancashire v. the income for the maintenance of A. till she attained the Lancashire. age of twentj'-one or married, and then to convey and settle such part as they should think proper on A. for life, with remainder to her chil- dren, with remainder, in default of children, to B. in fee ; and as to such part or parts" of the trust estate as his trustees should not think proper to settle as aforesaid, upon * trust to convey, as- *365 sign and transfer the same to A. absolutely. A. died before the trustees made any settlement, and Lord Cottenham, affirming the deci- sion of Sir J. K. Bruce, V.-C, held, that the power to make a settle- ment had determined, and that the heir of A. was entitled to the whole of the real propertj' to the 'exclusion of B. And the same principle would seem to apply where the power is general (/). It will be observed, that in these cases the words seemed or were considered to provide for carr3'ing over everj'thing that was Distinction not disposed of under the power, and, consequently nothing Jj^^f"^ having been disposed of, the ultimate limitation carried the ^>iole except whole subject of gift. The next two cases, however, seem taihed part to show that if the words are such as to point to a division fJ"^ ^ S'^^ °* ' the remam- into parts, and to amount to a gift of the individual parts, der after de-' then, if one of the parts cannot be ascertained, the legatee uJ{asc"f.''" of the other part is necessarily disappointed, since his part tained part. is undetermined, and the words are not sufficient to carry the whole to him. Thus, in Jerningham v. Herbert (g), the testatrix gave to A. such of her jewels as should at her decease be deposited with Messrs. jernUigh^m R., and gave the rest of her jewels to B. At her decease "■ Herbert. there were no jewels deposited with Messrs. R., and Sir J. Leach, M. R., (d) 5 Mad. 123; [Scott v. Josselyn, 26 Bear. 174; Re Sanderson's Ti-ust, 3 K. & J. 497) but see Gude v. Worthington, 3 De G. & S. 389, which seems contra, but the grounds of the decision do not appear. (e) 2 Phil. 657, 1 De G. & S. 288. (/) See Cooke v. Karrand, 7 Taunt. 122, 2 Marsh. 431; Calvert v. Johnston, 3 K. & J. 659, 660. (g) i Russ. 388. 387 *366 GIFTS WHEN VOID FOE UNCERTAINTY. said th^at the will contained no present gift of the jewels, but referred to a future act to be done by the testatrix in order to complete her gift, and that act being prevented, the intended gift wholly failed. Again, in Boyce v. Boyce(A), where the testator devised certain houses in S. to trustees upon trust for his wife for hfe, and after her decease upon trust to convey to his daughter M. in fee such one of the houses as she should choose, and to convey and assure all the others which M. should not choose to his daughter C. ; M. having died in the testator's lifetime, Sir L. Shadwell, V.-C., said it was only a gift of the houses that should remain, provided M. should choose one of them, that no choice had been or indeed could have been made by M., and therefore the gift in favor of C. failed. Gift of the Where the bequest is of the residue or, surplus of a speci- fand after * ^^^ ^"'^'^ remaining after providing for an object which is providing for illegal or unattainable, and the exact amount to be laid out oWectSvoid *^" wbich is not specified, the bequest is necessarily if the amount *366 void for uncertaiutj^, * unless the purpose is such and such'object'is ^'^ defined that the court can determine what would, unascertain- have been the proper amount to be expended had the object been legal or attainable, or unless (according to some recent Chapman!), cases) the bequest of surplus carries with it all that is not otherwise effectually disposed of. Thus in Chapman v. ' Brown (i), the testatrix, after giving some legacies, gave all the residue of her real and personal estate to her executors to be applied for the purpose of building or purchasing a chapel where her executors should think it was most wanted, and if any overplus should remain from pur- chasing or building the same, she directed it to be applied to such charitable uses as her executors should think proper. The bequest for the chapel being void. Sir W. Grant, M. R., declared that the gift of the overplus was void also, since the amount could not be ascertained. " He thought it impossible to frame any direction that would enable the master to form any idea as to what would have been proper to expend upon the chapel. If the testatrix had pointed out any particular place, that might have furnished some ground of inquiry as to what size would be sufficient for the congregation to be expected there, but the gift in question was so entirely indefinite, it was quite uncertain what the resi- Att.-Gen. V. due would have been." Again, in Att.-G-en. v. Hinxmau (k), Hmxman. there was a devise of a house to be used as a school for poor persons of the parish of W. ; the executors were directed to put the house in repair, and to invest a sum of monej'^ in stock in the name of the minister, churchwarden and overseers, who were to apply the divi- dends for the purposes of the school, and to apply the surplus, if any, after paj'ment of the expenses of the school, among poor parishioners l!i) 16 Sim. 476. (i) 6 Ves. 404. Ik) 2 J. &W. 270; and see Att.-Gen. v. Davies, 9 Ves. 535; Att.-Gou. v. GouldiiiK, 2 B. C. C. 428. 388 ■UNdERTAlNTY AS TO THE SUBJECT. *367 of W., as the trustees should think fit. The devise of the house for the school being void, and the first trust declared of the stock having con- sequently failed, Sir T. Plumer decided that the gift of the residue of the surplus dividends, being unascertainable, was void. Again, in Limbrey v. Gurr(/), where a testator bequeathed 7,000/. Limbreys. upon trust to pay the expenses of the testator's funeral and G"'t- monument, and of building eight almshouses on a particular piece of ground, and to apply the residue to the trusts directed of a legacy of 8,000/., which he bequeathed upon trust out of the income to pay cer- tain weekly sums to the poor persons in the almshouses, to pur- chase *a quartern loaf for twenty other poor persons, and to *367 keeping the almshouses in repair, and to apply the residue in distribution of bread as therein mentioned ; Sir J. Leach held that the residue of each sum was unascertainable, by reason of the gifts to the prior objects failing, and the gift of both residues therefore void. But if the testator has so defined his object as to furnish fair and reasonable data the court will determine the amount which g^^^^ .j ^^^ ought to have been expended on it if it had been legal, and amount is as- thus at the same time ascertain the amount of the surplus. Thus in Mitford v. Reynolds (m) , the testator, after several bequests, directed the purchase of a particular piece of land, and the Mitford ». construction of a vault for the bodies of himself and his par- Reynolds, ents and sister, and of a monument, the expense of which purchase and construction was to be met and provided for from the surplus property after paj'ment of debts and legacies. Then came a bequest of the remainder of his property to a valid charitable purpose ; and it was held by Lord Lyndhurst that assuming the prior object to be void, yet it was not so uncertain as to the amount that would be re- quired for it as to vitiate the gift to the charity. He thought the diffi- culties which existed in Chapman v. Brown had no existence here. The place was defined, the very spot pointed out, and the extent re- quu'ed for the purchase ; there was no difficulty in directing a reference to the master for the purpose of ascertaining what would be a proper sum to carry that intention of the testator into effect. That sum being once ascertained, would be deducted from the residue, the amount of which would then be rendered certain (n) . So in Fisk v. Att.-Gen. (o), where a testatrix bequeathed 1,000Z. to the rector and churchwardens of a parish and their succes- risk ». sors upon trust to apply such part jof the dividends as Att.-Gen. should from time to time be required in keeping in repair her family (0 6 Mad. 151. (m) 1 Phil. 185, 706. (n) The L. C. held that the direction as to the monument, &c., was a disposition of an integral part of the residue, and that the "remainder" was what was left of such residue after building the monument. 1 Phil. 199. But owing to the peculiar wording of the L C.'s decla- ration concerning the charitable gift, Shadwell, V.-C, afterwards thought himself bound to hold that the prior purpose having failed through the refusal of the owner to sell the land, the whole residue was well given to the charitv. 16 Sim. 105. (o) L. K. 4 Eq. 521. See also Ee Eigley's "Trust, 36 L. J. Ch. 147. 389 1*369 GIFTS WHEN VOID FOB UNCEETAINTy. grave, and to pay or divide the residue of the said dividends at Christ- - . mas in every yearfor ever, among the aged poor of the parish; •368 Sur.W. P.. Wood, V.-C, cited Mitford v. Reynolds and *the ,, Dundee. Case. (o), and said that, following the latter ca^e, he ought,, if, the gift of the residue had been exclusive of the amount Does the void required for the repair, of the gr^ve, to have ascertained the ^''the'^res^'" a™oint required for the void purpose.. But he said, "the .due"i? gift is not to. the executors to do certain things and pay the residue to the rector and churchwardens; the gift is out-and-out to the rector and churchwardens, and then there is a gift of a portion for a purpose whidi fails." That, being so, he thought the better con- struction was that the rector. and. churchwardens took the whole fund. As to this, however, it.ia plain that the rector and churchwardens were just as muph trustees of one part as of the other; and in Dawson v. SmaU (/>)i where a sum was given on similar, trusts, and the distribu- tion was to be made (as was held) by the .executors, Sir J. Bacon, V.-C, asked " what difference can it make that a person is named to have the management and. conduct of the gift, and that it is given to be disposed of by the executors of the testator? There is no, sort of distinction." The cases, therefore, being, undistinguishable, he considered himself bound bj' the decision in Fisk v. Att.-Gen., and held that the whole fund was well given to the residuary objects discharged from the void pur- pose. It is probable that Sir W. Wood drew the distinction. in order to avoid a conflict with Fowlex v. Fowler (q), which was cited before him. In ,that case the. gift was. in the form of a direction to executors to invest and apply the income in or towards the maintenance of certain existing graves, and to pay the surplus income to the rector of B. for the time being for his own use, and Sir J. Romilly held that the first trust being void, the second failed for uncertainty. He thought that the particular residue might originally have been held to include what was intended for the void, purpose, like a general residue, but that the contrary was quite settled. However, in Re Williams (r) the decision in Fisk v. Att.-Gen. was ■again applied tO: a case i where the distinction on which that decision was based did not exist, the trusts being committed to the executors. •Sir R. Malins there said he did not agree that Fisk v. Att.-Gen. turned on the, distinction in question ; he considered that the V.-C. Wood really intended to overrule Chapman ». Brown. But if. so, why •369 did Sir W. Wood say that, but * for that distinction, he ought to have ascertained the amount required for the void purpose ? This would have been an empty form, if the amount when ascertained was still to fall into the " residue." And although he intimated that eAnte, p. 359. L. R. 18 Eq. 14. See also Hunter, ti. BuUcpk, L. R, 14 Eq, 45, before the same judse. 33Beav.616. (») 6 Gh. JJ. 735. ^ 390 UNCERTAINTY AS TO THE OBJECT, *370 the Dundee Case liad narrowed the authority of Chapman v. Brown, he was, of course, alluding only to that part of the decision in the latter case upon which alone the Dundee Case had any bearing, viz. the ques- tion whether the coui^t ought or ought not to have determined the amount required for building the chapel. Even on this part of the case Sir G. Jessel thought differently (s) ; for in his opinion there was nothing to guide the court towards determining what would have been a reasonable sum for building the chapel ; the whole fund might have ■ been required for it : the Dundee Case, therefore, did not interfere with Chapman v. Brown, which still remained an authority for the position that, if the first object is not so defined that ji^ou can reason- ably ascertain the amount required, the whole must fail, because you might then apply the whole to the first object, and so there would be no ascertainable residue (s). In Re Birkett (t) the question again arose on a gift undistinguishable from the gift in Fisk v. Att.-Gen., and Sir G. Jessel, M. R., xj^ g- . said that the prior purpose being void, he was bound by the decisions of the three V.-CC. to hold that the whole income passed under the gift of surplus. But apart from the authorities, his opinion was clear that the amount required for the repairs of the tomb ought to have been ascertained (as it could be by any competent person), and only the remainder given as surplus. He observed that the case was a singular illustration of the way in which our law gets altered. Reference may here be made to the case of Ford v. Fowler («), where the testator recommended (construed "directed") F. and Trusts of an his wife to settle a sum which he had bequeathed to the lat- ascertained ter, " together with such sum of money of his (F.'s) own as though in-' F. shall choose," for the benefit of his wife and children, tended to em- ' .,, ,. . brace another Lord Langdale, M. R., said that there being a certainty as unascer- to that which was in the testator's power, the trust as to **'°^ for the misnomer of the county in which a parish is situate produces no uncertain tj', unless the testator should happen to have property answering to the description in a parish of that name in more than one county (o) . It has even been held that a devise of houses and lands lying in the parish of Billing, and in a street called Brook-street, is a good devise of lands in BiUing-streei, the testator having no lands in the parish of Billing (;j).= So it is clear that a leasehold estate will pass xinder the description Leasehold of freehold, where the reference to its name or local situa- "freehold/' ^^on, and the fact of the testator having no freehold estate (h) See Purchase v. Shallis, 2 H. & Tw. 354, 14 Jur. 403, 19 L. J. Ch. 518; Howard v. Conway, 1 Coll. 87; Stephens v. Powys, 1 De G. & J. 24J (I) Blague,!). Gold, Cro. Car. 447, 473 ; Thompson v. Tonson, And. 188, 2 Leon. 120. (m) Chamberlaine v. Turner, Cro. Car. 129. (n) Hastead ». Searle, 1 Ld. Eaym. 728. (o) See Owens ». Bean, Finch, 395; Brown V. Longley, 2 Eq. Ca. Ab. 416, pi. 14. (j>) Brownl. 131, 8 Vin. Ab. 277, pi. 7. 1 It is a settled rule that if there be first supra. Mistake in describing the location of an unambiguous and certain description of lands devised, made by the draftsman of the a thing, and afterwards another description will, was held, however, proper ground for failing in certainty, the latter must be re- parol evidence to show the tract intended in jected. Jones v. Robinson, 78 N. Car. 396. Creasj'B. Alverson, 43 Mo. 13. So, too, if a description of person or property 2 gee Dodson v. Green, 4 Dev. 488. be partly false, but sufficient remain to ideri- ^ A devise of a tract of land by name, and tify the object, the false will be rejected, and described as lying in A. county, passes the the gift sustained.'. But the case is othenvise whole tract, though part of it lies in another if a sufficient description does not remain after county. Hammond v. Ridgely , 5 HaiT. & J. rejecting the false; and parol evidence can- 24S;lJorsey!). Hammond, iHarr. & J. 190. A not be received to correct the mistake. Fitz- devise of " all my homestead farm in D., being patriok ». Filzpatrick, 36 Iowa, 674. So if a the same farm whereon I now live, and tli'e testator devise land in " section thirty-two," same which was devised to me by my honored having no land there, it is held that evidence father," will pass the whole of the h'omestead cannot be received to .show that the testator farm, though it appears that a part of it was meant section, thii-tj^-three, in which he had not devised brj' the father. Drew v. Drew, 8 land, and that the draftsman of the will made Fost. 489. See Woods ». Woods, 2 Jones, a mistake in the matter. Kurtz «. Hibner, Eq. 420. S5 111. 514. See Fitzpatrick v. Fifzpatrick, 398 MISNOMEE AND MISDESCEIPTION. *378 answering thereto, leave no doubt of the identity (q) ; and vice versa. (/•). It has been adjudged, too, that under a devise of buildings in a speci- fied street, houses situate in a lane contiguous to, and opening into, that street passj for want of a subject more nearly answering to the de- scription (s) . The same principles of construction, of course, ap^ ply to objects *of gift. It is sufficient, therefore, *378 that the devisee or legatee is so designated as to be distinguished from every other person, and the inaptitude of some of the particulars introduced into the testator's description is immaterial ; ^ and this whether the object of the gift be a corporation In descrip- tion of objects all particu- lars need not be correct. (g) Denn d. Wilkins ». Kemeys, 9 East, 366. (r) Day t'. Trig, IP. W. 286, post; Doe d. Dunning*. Lord Cranstown, 7 M. & Wels. 1. (s) Doe d. Humphreys v. Roberts, 5 B. & Aid. 407, post; but observe that these cases were before 1 Vict. c. 26, the effect of wiiich on such questions of construction is remarked upon, post, Ch. XIII. ; [see also Baddeley v. Gingell, 1 Exch. 319, where houses in an enclosed yard opening into a street, were held to be houses "within the street," so as to be liable- to a rate imposed by statute on "houses within the street."] 1 The general rule 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 will not disappoint the bequest. See 2 Williams, Ex. (6tli Am. ed.) 1152; Bradshaw v. Bradshaw, 2 Younge & C. 72; Smith V. Smith, i Paige, 271; S. C. 1 Ed. 183; Att.-Gen. ». Sibthorpe, 2 Russ. & M. 107; Trustees v. Peaslee, 15 N. H.. 317; Woods V. Moore, 4 Sandf . 579 ; Winkley v. Kaime, 32 N.H. 268; Douglass. Blackford, 7 Md. 8. Thew;ords, "membersof my family," have been considered sufficiently certain. Hill ». Bowman, 7 Leigh, 650. A legacy having been given to a legatee in the name which she had for many years assumed, the court directed an inquiry who was the per- son meant, in Neathway v. Ham, Taml. 316; 1 Greeul. Ev. § 301. Devisees may take by their popular names if the testator's intent is clear. Sutton v. Cole, 3 Pick. 232. In- deed, an imperfect description of the donee will not render the gift void unless the ambi- guity be such that it is impossible, either from the will or other proper evidence, to ascertain who is the object of the testator's bounty. Congregational Soc. v. Hatch, 48 N. H. 393; Smith V. .Smith, 4 Paige, 271. In the case first cited, it was said that a devise was to be held void for uncertainty only when after re- sort to oral evidence it still remains a matter of mere conjecture what was intended by the testator. See Townsend v. Downer, 23 Vt. 223. In the recent case of Straw «. East Maine Conference, 67 Me. 493, a bequest to the *• Jlethodist Episcopal Missionary Society of Maine" was given to the ''Trustees of the East Maine Conference of the Methodist Episcopal Church," as being the Society in- tended; no society of the name given in the will bsing in existence. An incorporation of the latter name did exist, and the testator lived within the territorial limits covered by it; And a gift " for the first church of the Chris- tian denomination in Bangor " was given to the First Bangor Christian Church, in Nason v. First Bangor Church, 66 Me. 100. So, also, evidence is held admissible to show that a gift to " The Congregational Societv in Auburn " was intended for '' The First Con- gregational Society in Auburn," and that a gift to " The Congregational Foreign Mission- ary Society" was intended for "The Ameri- can Board of Commissioners for Foreign Missions." Howard ». American Peace Soc, 49 Me. 288. A testator bequeathed to the School Commissioners and their successors, of " South Farnham District, Essex county, for the schooling of the poor children of that dis- trict, 81,000, to be put out at interest, and the interest only to be applied for the schooling of said poor children." There were School Com- missioners of' the county of Essex, and the testatorwas one of them at his death, but they were not a corporate body ; there were no other school commissioners of South Farnham Dis- trict, nor was there any such district, that being onh'' the name of an ancient parish ; and the bequest was held void. Janey v. Latane, 4 Leigh, 327. See Telfair v. Howe, 3 Rich. Eq. 235 ; Carter v. Balfour, 19 Ala. 814. On the other hand, a testator gave a legacy to the "Boy's Asylum and Farm School," there being no mstitution or association of any similar name except a body incorporated by the name of the "Boston Asylum and Farm School for Indigent Boys;" and it was held that this corporation was entitled to the legacy. Minot v. Boston Asylum, 7 Met. 416. See General Lying-in Hospital v. Knight, 11 Eng. L. & Eq. 191 ; McBride r. Elmer, 2 Halst. Ch. 107; Baldwin v. Baldwin, 3 Halst. Ch. 211; Calhoun v. Furgeson, 3 Rich. Eq. 160; Trustees v. Peaslee, 15 N. H. 317; Button V. Amer. Tract Soc, 23 Vt. 336; St. 399 *379 GIFTS WHEN VOID FOR UNCERTAIKTY. or an individual.^ Thus, a devise " to tlie mayor, jurats, and town council of the ancient town of Eye," has been held to be good, though they were incorporated by the name of " the mayor, jurats, and com- monalty " (<) . A bequest ' ' to the fellows and demies of Misnomer of Magdalen College, Oxford," however, has been decided not '"'porat'ons- adequately to designate Magdalen College, whose corporate name or style is, "The president and scholars of St. Mary Magdalen" (m). [But where money was bequeathed to the provost and fellows of Queen's College, Oxford, to purchase books to be added to the hbrary, the proper name of the corporation being " the provost and scholars, &c. : " the corporation was held to be entitled principally on the ground that the library belonged to the body corporate, who were, therefore, the proper persons to make additions to it (a;) . And where a bequest to " the Westminster Hospital, Charing Cross," was claimed by the West- minster Hospital in Broad Sanctuary, and also by the Eoyal Ophthalmic Hospital, and. by the Charing Cross Hospital, Agar-street, Strand, the latter was held entitled, as being nearest to the locality mentioned, and as being a general hospital (y) : the testator, when he intended to give to a hospital of a special character, having so named it(z). And where the description is equally applicable to two different objects, either of which would have been sufficiently' designated if the other had not existed, evidence is admissible to remove the ambiguity, by show- ing which of them was known to the testator, arid (if a charitable institution) to which of them he subscribed (a). If this evidence fails to indicate which the testator meant, the bequest fails, unless, as already noticed, it is charitable and applicable 'cy-pr^s (b) . As a general rule, " Veritas nominis tollit errorem demonstrationis ; " so that where there is a person to answer the name, it General rule #379 * ^ju ijg immaterial that anv further description doss as to name. •' a not precisely' appl}^J Thus, a bequest to C. M. S. and C. E., legitimate son and daughter of C. S., Was held to be a good bequest to persons of those names, though they turned out to be illegiti- mate, in consequence of an anterior marriage of their father being established (c). [And the rule has prevailed, although besides a wrong (0 Att.-Gen. v. Corporation of Rye, 1 J. B. Moo. 267, 7 Taunt. 546. See also Fitz. Dev. 27, Dalison, 78, s. 8; 10 Rep. 57; Foster v. Walter, Cro. Eliz. 106, 2 Leon. 165. But as to gifts to corporations, vide ante, p. 65. (m) Att.-Gen. v. Sibthorp, 2 E. & My. 107. [(k) Queen's College v. Sutton, 12 Sim. 521. (m) See ace. Re Alchin's Trusts, L. R. 14 Eq. 230. (z) Bradshaw v. Thomson, 2 Y. & C. C. C. 295; and see Wilson v. Squire, 1Y.& C. C. C. 654; Smith v. Ruger, 5 Jur. N. S. 905. (a) Ke Kilvert's Trusts, L. R. 7 Ch. 170; Re Team's Will, W. N. 1879, p. 8. (6) Re Clergy Society, 2 K. & J. 615.1 (c) Standcni). Standen, 2 Ves.'Jr. 589, 6 B. P. C. Toml. 193; [and see Doe d. Gaines tj. Louis Hospital Association v. Williams, 19 ambiguities can be so explained. Pickering Mo. 609. But it must be remembered that v. Pickering, 50 N. H. 349. ambiguity on tlie face of a will cannot be 1 Brewster b.M' Call, 15 Conn. 274; Trus- explained by parol evidence. Only latent tees v. Peaslee, 15 N. H. 317. 400 MISNOMER AND MISDESCRIPTION. •380 or inaccurate description, one of the Christian names of the legatee was omitted ; a gift to ' ' my niece Elizabeth " being held a sufficient de- scription of Elizabeth Jane, a great grand-niece (rf) . But " nihil facit error nominis cum de corpore constat" (e) ; and there are many eases in which the description is such as to lead to Misnomer of an irresistible inference that the person named was not the individuals. person in the testator's mind. J Thus, where (/) the devise was to Wil- liam Pitcaime, eldest son of Oharles Pttcairne, it was insisted that the eldest son had no title, because his name was not William, but Andrew ; nevertheless the court was of opinion that the words were sufficient to point him out with certainty. So (g) under a bequest to ^'^ John and Benedict, sons of John Sweet," a son named James (there being no John) was held to be en- j^^^g g„y_ titled. It was proved, too, that the testator used to call tied under him Jackey ; but Lord Hardwicke appears to have thought ^' ' '" "' this evidence unnecessarj'' to establish his title. Again, where (A) a testator gave an annuity to his brother Edward Parsons for life, and, after his decease, the same to go Edward, equally among his (E. P.'s) children, "by liis present JJii^'ake (or wife ; " and at the date of the will, the testator had no Samuel. brother except one named Samuel, who had a wife and children ; but four or five j-ears before, he had a brother named Edward, who as well as his wife, was then dead, which fact was known to the testator, who by the same will, gave legacies to his children. The testator had been in the habit of calling his brother Samuel, Edward and Ned. Lord Loughborough, without argument, held the children of Samuel to be entitled. In another case(i), a bequest to the " Eev. Charles Sihith, of Sta- pleton Tawney, clerk," was held to apply to one who ^j^ ., , * answered the other parts of the description, but *380 mistake'for whose name was Richard; though it was suggested Richard, that the person intended was Charles Smith of Romford, an officer in the army, but who, it appeared, was dead at the date of the will, and that the testator had been informed of the fact. If the other part of the description, as well as the name, had corresponded with those of the deceased Charles Smith, and the testator could have been ignorant of his death, it would have been difficult to sustain the claim of Richard. So where (^) a testator bequeathed to his six grandchildren (/) by Rouse, 5 C. B. 4i2: Giles v. Giles, 1 Kee. 685; Re Blackman, 16 Beav. 377; Ford v. Ballev, 23 L. J. Ch. 225; Pratt ». Mathew, 22 Beav. 334. (d) Stringer v. Gardiner, 27 Beav. 35, 4 De G. & J. 468. (c) 11 Rep. 21 a.] (/) Pitcaime v. Erase, Finch, 403 ; see also Gynes v. Kemsley, 1 Freem. 293 ; Rivers' case, 1 Atk. 410. (o) Dowset v. Sweet, Amb. 175. (ft) Parsons v. Parsons, 1 Ves. Jr. 266. (j) Smith V. Coney, 6 Ves. 42 ; see Re Blackman, supra. Oc) Garth v. Meyrick, 1 B. C. C. 30. (/) As to gift to a specified number of children, vide post, Ch. XXX. 3. 4. VOL. I 26 401 *381 GIFTS WHEN VOID FOE tTNCEETAINTT. Other in- their Christian names, but the name of Ann, one of themy mistake ia was repeated, and that of Elizabeth, another, omitted, it Christian ^a,s held that Elizabeth should take the share mistakenly name. i i . . given to Ann by the repetition of her name. Again, where (m) a testator gave to his namesake Thomas Stoekdale, the second son of his brother John Stoekdale, the second son, though not named Thomas, was held to be entitled, there being no son of that name. The error in the name here was remarkable, as the testator, in describing the legatee as his own namesake, had his attention particu- larly drawn to the name. So, under a devise to " Mary Cook, wife of Cook" («), a mar- ried woman named Elizabeth Cook was held to be entitled, on evidence showing that the testator had no other relative of the name of Cook, and that she was the person intended. In this case the additional de- scription was very slight, it merel3^ showed the devisee to be a married woman. In cases of this kind, however, it not unfrequently happens that part Distinction of the description applies to one person, and part to another. ^ more Mian [Here the maxims quoted above give but little help. The one claimant, essence of the previous cases is that as to one term of the description it is applicable to no one ; it is clearly erroneous. But in the cases now referred to each of the terms applies correctly-, or with some degree of accuracy, to some one, and the question is, which is wrong? This can onl}' be solved bj' considering the general context and the surrounding circumstances (o) , and although it has been said that the demonstration has generally prevailed over the name, yet numerous instances will be found on both sides. *381 *Thus in Garland v. Beverley (p) where a testator devised land to his nephew for life, remainder to "William, the eldest ^ , son of my said nephew" for life, remainder to the issue Cases wliere i . file name of "W. in tail ; William was, in fact, the second son, but pevailed. ^^g nevertheless held to be entitled. Again in Gillett v. Gane(9') where the testator devised to his son -for life, remainder to " Robert the fourth son" of the son in fee, with an executorj' gift over if Eobert should die under twent}'-one " to the fifth son," and so on to those born after the fifth ; Eobert Henrj', in fact, was the third son, but having attained twenty-one was held to be absolutely entitled. On the other hand, in Doe v. Uthwaite (r) where, after previous limi- (m) Stoclidale v. Biishby, 6. Coop 229, 19 Ves. 381. (n) Doe d. Cook V. DanTers, 7 East. 299. [(o) See Cli. XIII. (p) 9 Ch. D. 213. So in Pryce i: Newbolt, 14 Sim. 354, though the name was not fully given; as .to which see also Bernasconi v. Atkinson, Gillett ». Gane, Charter v. Charter, all cited infra. iq) L. R. 10 En. 29. Other cases where the name has prevailed over the description are, Uernasconi «. Atkmson, 10 Hare, 345 ; Garner v. Garner, 2!) Beav. 114 j Farrer v. St. Catha- rine's Cillege, L. R. 16 Eq. 19; Re Lyon's Trusts, W. N. 1879, p. 20. ^7) ;i Moore, 304, 8 Taunt. 3Q6, 3 B. & Aid. 632. See also Neeld v. Neeld, W. N. 1878, p. 219. 402 MISNOMER AND MISDESCRIPTION. *882 tations, the devise was to " Stokeham U., second son of A." Cases where for life, remainder to Ms issue in strict settlement, remain- tion pm-"'^ der " to John U. , third son of A." and his issue in like man- '>'»''«'i. ner ; in fact, Stokeham was the third son of A. and John was his sec- ond, and it was held that the mistake was in the name, and that John and his issue were entitled before Stokeham and his issue. So, where there was a gift to Glare Hannah, the wife of A., whose wife was named Hannah onlj-, but who had an infant daughter, named Clare Hannah, it was held that the testator could not have had an infant in view when he gave a legacy to a wife, and that therefore the wife was entitled to the legacj* (s). And where both the name and description are almost entirely inapplicable, the general purpose of the testator, collected from the circumstances, will sometimes point out the object : as where there was a gift for life to Elizabeth, the natural daughter of the testator's servant, Elizabeth, a single woman, with I'emainder to her childi'en. The servant Elizabeth was a married woman, who had an illegitimate son John, who had died leaving children, and a legitimate daughter Margaret, and it was held that the children of John were enti- tled, and not Margaret, the circumstances being such as to lead to the inference, that the children * of the illegitimate child of *382 the servant Elizabeth, without reference to name or sex, were the objects of the testator's bounty (J). The position in the will of the name of a legatee may sometimes pre- vent uncertainty'. Tims, in Fox v. Collins (m), where lega- Uncertainty cies were given to S. C, A. C. of St. Ives, and S. B., and p™'t1on of then a legacy to A. C. of Hereford, and others, and the resi- name in will, due was given "to the said S. C, A. C, and S. B., it was held, that under the last gift A. C. of St. Ives was entitled, partly on the ground that .the word " said" applied to the three persons taken together, and that in the previous part of the will A. C. of St. Ives was named be- tween S. C. and S. B.] If the ambiguity is not removed by the context and by parol evi- dence [of the surrounding circumstances, the gift necessarily Name and fails for uncertainty ; for direct evidence of the testator's f'^^^'^yp"'"' intention is inadmissible. Thus in Drake v. Drake (x), balanced, where a testator gave a legacy to " his sister Marj' Frances T. D." and the residue of his estate to " his niece Mary Frances T. D." and three other persons. The testator had a sister-in-law, but no niece of that name, though he had nieces, one of whom was named Frances Isabella T. D., another Mary Caroline T. D., and a third Mary Elizabeth T. D. ; (s) Adams ». Jones, 9 Hare, 485; and see Lee v. Pain, 4 Hare, 253; He Wolverton Estates, 7 Ch. D. 197. ... (I) Ryall V. Hannam, 10 Beav. 537; and see Rickit's Trust, 11 Hare, 299. («) 2 Ed. 107. See also Doe ». Wesllake, 4 B. & Aid. 57. Other capes in which the de- scription has prevailed over the name are, Re Feltham's Trusts. 1 K. & J. 528; Hodgson ». Clarke, 4 D. F. & J. 394; Re Nunn's Trusts, L. R. 19 Eq. 331; Charter v. Charter, L. R. '7 H. L. 364 fan important case% (k) 8 H. L. Ca. 172, affirming Romilly, M. R., 25 Beav. 642. 403 ' *38S GIFTS WHEN VOID FOR UNCBETAIISTY. there was no circumstance showing, that one niece was intended to take th^ share of residue rather than another, and nothing to take it from a niece and to give it to the sister-in-law, unlessi. without any evidence to prove error , of demonstration, there was a rigid rule that, the name •should prevail. It was therefore held in D. P. that the gift of one fourth of the residue failed. The same principles are applicable for the construction of wills where No name ex- the devisee is not mentioned by name, but the description is of'tfafde*'' composed wholly of "demonstration," as, where, the gift scription. is to the first or second son, or to the children, of some named person. Thus in Camoys v. Blundell {y), where the gift was to the " second son of Edward "Weld, of Lulworth, for life," and there *383 was among other subsequent remainders, a remainder *to the first and other sons of each brother,/ except . Minshull, the party may or may not act in his discretion. H. R. V. Johns. 287 ; Williams U.Williams, In the latter, the trust will be executed, not- 1 Sim. N. S. 358; Bonser v. Kinnear, 2 Gift, withstanding his omission to act. 2 Story, Eq. 195 ; Knight v. Boughton, 11 Clark & F. 513, Jur. § 1070; Moggridge «. Thackwell, 7 Ves. 551; Harrison v. Harrison, 2 Gratt. 1; (Summer's ed.) 36 i note (rf) and cases cited; Coates' Appeal, 2 Barr, 129; Van Amee «. Mori(je v. Bishop of Durham, 9 Ves. (Sum- Jackson, 35 Vt. l^S,; Wliipple v. Adams, mer's ed.) 399, note (a) and cases cited; 2 Wil- 1 Met. 444; Homer «. Shelton, 2 Met. 194, 412 ."WHAT WOEDS WILL CEEATE A TEUST. •*392 Thus, in. Curtis v. Rippon («), where a testator gave all his real and personal estate to his wife, trusting that she would, in love instances of to the children committed to her care, make such use of it words being as should be for her own and their spiritual and temporal to create a good, remembering always, according to circumstances, the '"^"s'- church of God and the poor. Sir J. Leach, V.-C, held the wife to be absolutely entitled, the testator's intention evidently being to leave the children dependent on her. So, in Abraham v. Alman (a) , where a will contained the. * fol- *392 lowing passage: " I do likewise will and bequeath to my ^^^^[3(00 only son J. the sum of 60^. sterling per year forever; also indetinhe to to provide for the two daughters of my child H. E., namely, "'''"^ '"■•''«'• S. 'E. and E. E., and the remainder of my property to the two children of my daughter S. A." — Lord Gilford, M. E., held that the words in question did not create a trust on the 60/. a year, or the remainder of the property bequeathed to the children of S. A. ; the former was a dis- tinct, independent bequest ; and it was not clear that the testator in- tended to make a provision for the daughters of H. E., out of the latter ; the court had no means of determining what that provision was to be, [or in what manner or out of what fund to be made.] Again, in Sale v. Moore (6), where a testator bequeathed the. remain- der, of what he should die possessed of, after payment of debts and lega- cies, to his dear wife, adding, " recommending to her, and not doubting, as she has no relations of her own familj-, but that she will consider my near relations, should she survive me, as I should consider them m3-self in case I should survive her." In a preceding part of the will, the tes- tator had assigned' as a reason for his not leaving his brother and sister anything, that they were provided for, and that he could not do so with- out taking from his wife's property, who was more jn need of it. — Sir A. Hart, V.-C, held that the effect of the whole was, that no trust for the relations was created. So, in Hoy v. Master (c) , where a testator mUed the whole of his (2) 5 Mad. 434. ' (a) 1 Russ. 509. (6) 1 Sim. 534; [see also Reeves ». Baker, 18 Beav. 3T3.] (c) 6 Sim. 568. 206. A strong disposition has been indicated him,"giTesW. the absolute property, in these in modern times to limit this doctrine of rec- articles, even though the will contain a pre- ommendatory trusts, so far as to give to the vious residuary bequest to W. for life, witli wordsofwillstheirnaturalandordinarysense, remainder over. Wells v. Doane, 3 Gray, unless it is clear that they are designed to be 201. So where legacies are given to persons used in a peremptory sense. See 2 Story, Eq. generally, with the additional expression Jur. § 1069; Sale v. Moore, 1 Sim. 534; Shaw " to be at their disposal," they are consid- V. Lawless, 1 Lloyd & G. 558 ; Ford v. ered to be immediate vested interests in the Fowler, 3 Beav. 146 ; Knight v. Knight, ib. legatees, so as to be transmissible to their 148; Hart v. Hart, 2 Desaus. 83; Van Dyck personal representatives, although they make 1). Van Beuren, 1 Gaines, 84; Bull v. Vardy, no disposition of the property. 1 Eoper, IVes. (Summer's ed.) 270, note (i). A clause Legacies, by White, 429, 430, Ch. 10, § 7. in a will expressing the testator's "will and See Hixon v. Oliver, 13 Ves. 108; Barford intention that W. may dispose of the f urni- v. Street, 16 Ves. 139 ; Martin v. Douch, ture, plate, pictures and all other articles 1 Chan. Gas. 198; Robinson v. Dusgate, now in my house, absolutely, as he may 2 Vern. 180; Maskelyne v. Maskelyne, deem expedient, in accordance with my Amb. 750 ; Bull s. Kingston, 1 Meriv. 314. wishes as otherwise communicated by me to 413 *393 GIFTS WHEN VOID FOR UNCEETAINTT. property to his wife for life, and that, after her decease, one third should devolve to his beloved daughter M., and that the other two thirds should be at the sole and entire disposal of his said wife, L. B. ; " trust- ing that, should she not marry again and have other children, her affec- tion for our joint offspring, the said M. B., would induce her to make her said daughter her principal heir." The wife did not marry again, and disposed of her property to a stranger ; whereupon it was claimed by the daughter, on the ground that the wife had a life-interest only, with a power of appointment in favor of the children of any future marriage, witli an alternative trust for the daughter absolutely. But Sir L. Shad- well held that the wife took the two thirds absolutely. Again, in Lechmere v. Lavie (rf), where a testatrix made a codicil to her will in the following words : "I hope none of my children 'will Words too accuse me of partiality, in having left the largest indetinite to *393 * share of my property to my two eldest daughters, create a trust. ^^ ^^j^ motive for which was to enable them to keep house so long as they remain single ; but, in case of their marrying, I have divided it amongst all my children. If they die single, of course they will leave what they have amongst their brothers and sisters, or their children." Sir J. Leach, M. R., considered that these words were not intended to create an obligation upon the two eldest daughters, as they applied not simply to the property given by the testatrix, but to all property which the daughters might happen to possess at their deaths, leaving what she gave by her will at their disposition during their lives, and extending to property which might never have belonged to her, and wanting altogether certainty of amount. It is submitted, howiever, that the uncertainty in regard to the sub- ject of gift arose, not from the testatrix having combined in the trust with her own property that of her daughters themselves, which she could not dispose of (e), but from the absence of any clear indication of intention that the trust was to affect all the property which the daughters derived from the testatrix. The expression " what the}' have " would seem to impl}' that the legatees might dispose of. as absolute owners, any part they chose, and that the trust should apply only to what re- mained. This brings the case within the principle of Wynne v. Haw- kins (/) , where a testator bequeathed what he should leave behind him to his wife, " not doubting that she would dispose of what should be left, at her death, to their two grandchildren." Lord Thurlow said that the words "not doubting" would be strong enough; but that where, in point of intent, it was uncertain what property was to be given, ^nd to whom, the words were not sufficient, because it was doubtful what the confidence was which the testator had reposed ; and, where that did not appear, the scale leaned to the presumption that he meant to give the whole to the first taker. (d) 2 My. & K. 197. \(e) Aa to this, see Lefroy d. Flood. 4 Tr. Ch. Rep. 1, 12.] (/) 1 Bro. C. C. 179. As to cases of this class, vide ante, pp. 362, 363. 414 WHAT WORDS WILL CREATE A TRUST, *395 So, in Horwood v. West (g) , where a testator recommended his wife to give by her will what she should die possessed of under his will in a certain manner — Sir J. Leach, V.-C, assumed, that if these words had been uncontrolled by the context, the trust must have been void for un- certainty ; but he thought that it was evident, from a direction in the will to the wife to secure to * her- *394: Words too self, on a second marriage, whatever she should pos- creafe"a'tru.st. sess by virtue of his will, that the testator intended the trust in question to be coextensive with such direction, i.e. to extend to all the property the wife derived from, the testator. It should be obsei'ved, however, in regard to the objection of uncer- taintjs that the preceding cases, though frequently referred to as if they were the subject of a peculiar rule, merely require, in common with aU others, that the intention of the testator should be manifested with sufficient certaintj' to enable the court to act judicially upon it. So, in Ex parte Payne (»), where a testator, after devising the prop- erty in question to his daughter in fee, proceeded to declare that the estate was intended as some reward for her attention to him, and was kept separate from the other interests she would take under his will as a testimony thereof. And he directed his daughter to keep the premises' in good repair ; and in case she should marry, he strongly recom- mended her to execute a settlement of the estate, and thereby to vest the same in trustees, to be chosen by her, for the use of herself for life, with remainder to her husband for life, with remainder to the children she might happen to have, or to such other uses as his daughter should think proper, to the intent that the said estate, in the event of her mar- riage, might be effectuallj' protected and secured. The question, on petition, was, whether the daughter (who was unmarried) could make a good title to the devised property in fee. It was contended for her that she could, for that neither the persons to take nor the estates them- selves were certain ; and that, even if the daughter married, she might limit the estate to such uses as she thought proper : and of this opinion was Lord Abinger, C. B. [And in Williams v. Williams (k) , where the testator by his will be- queathed propertj- to his wife absolutely for her own use»and Williams ». benefit, and subsequently in a letter to her, wrote as follows : Williams. "I hope my will is so worded that everj'thing that is not in strict settlement you will find at your command. It is my wish that * you should enjoy everything in my power to give, using your *395 judgment where to dispose of it amongst your children when you (g) 1 Sim. & St. 387. ((■) 2 Y. & C. 636 ; see also Knight v. Knight, 3 Beav. 148 ; [S. C. nom. Knight v. Boughton, 11 CI. & Fin. 513, 8 jur. 923; Lefroy v. Flood, 4 Ir. Ch. Rep. 1 (in which great reliance was placed on the fact that the approbation of the devisee was required to the conduct of the persons claiming as ceatuis que trust ; the force of which requisition must, however, depend on circumstances. Bonser v. Kinnear, 2 Gif. 195;) Quavle v. Davidson. 12 Moo. P. C. 0. 238; Maud v. Maud, 27 Beav. 615; Scott ». Kev, 35 Beav. 291 (as to one third); but see Malone v. O'Connor, 2 LI. & Go. 465. " (i) 1 Sim. N, S. 358. Alb *396 .GIFTS WHEN VOID FOE UNOEETAINTY. can no longer enjoy it yourself, but I should be unhappy if I thought it possible that any one not of your family should be the better for what I feel confident you will so well direct the disposal of." It was held by Lord Cranworth, V.-C, that no trust was created : he thought the words of the codicil could not operate to cut down the absolute interest given to the wife : but he relied chiefly on the uncertainty of the objects to whom the precatory words referred (Z).] It will be observed that in all these cases the consequence of holding the expressions to be too vague for the creation of a trust was, that the devisee or legatee retained the property for his or her own benefit ; and in this respect these cases stand distinguished from those (m) in which there was considered to be suflScient indication of the testator's inten- tion to create a trust, though the objects of it were uncertain : a state of things which, of course, lets in the claim of the heir or next of kin to the beneficial ownership. In such cases there is no uncertainty as to the intention to create a trust, but merely as to the objects ; in the other class of cases it is uncertain whether any trust is intended to be created. [But inasmuch as uncertainty in the object furnishes a strong argument that a testator did not intend to create a trust, it is obvious that the two classes of cases are intimately connected with each other. Meaning of ^^^ ^^^ ^^ ^^^ * certain subject and a certain object are the rule re- necessary to constitute a trust, where the words used are t'ainty^or'^' precatory only, does not mean that the subject or object object and must be SO defined that it can in fact be ascertained by the subject lor a precatory court. A precatory trust " for the benefit of ," or of trust. 4 i ^jjg person named in such a paper,'' where no such paper is found, or " for such objects as I have communicated to" the donee, where no such communication has been made (n) , would completely ex- clude the donee from aU beneficial interest, although it leaves the object wholly unascertained (m) . But what is meant by the rule is this : in ascertaining whether the precatory words import merely a recom- *396 mendation, or whether they import a * definite imperative direc- tion to him as to his mode of dealing with the property, the court will be guided by the consideration whether the amount he is requested to give is certain or uncertain, and whether the objects to be selected are certain or uncertain ; and if there is a total absence of explicit direction as to the quantum to be given, or as to the objects to be selected by the donee of the property, then the court will infer from the ■circumstance of the testator having used precatory words, expressive only of hope, desire, or request, instead of the formal words usual for (l) As to the meaning of " family," see L. E. 6 Ch. D. 600, 8 Ch. D. 542, and post, Ch. XXIX. (m) Stubbs V. Sargon, Fowler v. Garlike, Corporation of Gloucester v. Wood, Briggs v. Penny, ante, p. 383 et seq. (n) Bernard v. Minshull, Johns. 276. But where the gift was " subject to such disposi- tion thereof or of any part thereof as the testator might by deed or writing thereafter direct," it was held there was no trust, the testator not having made up his mind whether he woiud make any such disposition or not. Fenton v. Hankins, 9 W. E. 300. 416 WHAT WOEDS "WILL CREATE A TRUST. *397 the creation of a trust, that those words are used, not for the purpose of creating an imperative trust, but simply as suggestions on the part of the testator, for the guidance of the donee in the distribution of the property ; the testator, placing implicit reliance upon his discretion and leaving him the sole judge whether he will adopt those suggestions or not, and whether he will dispose of the property in the manner indi- cated bj' the testator, or in any other manner at his absolute discretion. The question is not whether the object is so defined that it can be dis- tinctly ascertained by the court, but whether the object is purposely left to be selected bj' the donee (p) ; as, -for instance, where the testator expresses a desire that the donees shall ' ' distribute the fund as they think will be most agreeable to his wishes " (5).' Secondly, we are to consider whether in cases where words are added expressing a purpose for which the gift is made, such 2. Qm for a purpose is to be considered obligatory. Where the purpose specified of the gift is the benefit solelj' of the donee himself, he can P'"'P''*^- claim the gift without applying it to the purpose, and that, it is conceived, whether the purpose be in terms obligatory or not. Thus, if a sum of money be bequeathed to purchase for any person a ring (r), or a life-annuity (s), or a house(<), or to purposeisthe set him up in business {u) , or for his maintenance beneiit of and education (x), or to bind him * apprentice (y) , or *397 the gift is towards the printing of a book, the profits on which absolute. are to be for his benefit (z) , the legatee may claim the money without applj'ing it or binding himself to apply it to the specified purpose ; and even in spite of an express declaration by the testator, that he shall' not be permitted to receive the money (a) . (p) See judgment of Wood, V.-C, Bernard v. Minshull, Johns. 287, 290. (y) Stead v. Mellor, 5 Ch. D. 223. ()•) Apreete v. Apreece, 1 V. & B. 364. (s) Dawson v. Hearii, 1 R. & My. 806; Ford «. Batley, 17 Beav. 303; Re Browne's Will, 27 Beav. 324. It maltes no difference whether it be a bequest of a specified sum to purchase an annuity, or a direction to purchase an annuity of a specified amount. Yates v. Compton, 2 P. W. 308. (() Knox V. Hotham, 15 Sim. 82. (m) Gough v. Bult, 16 Sim. 45. (x) Webbs. Kelly, 9 Sim. 472; younghusband o. Gisborne, ICoIl. 400; Presantr. Good- win, 1 Sw. & Tr. 544, 29 L. J. Prob. 115. It follows that if the legatee die before receiving his legacy, his representative is entitled, Yates ». Compton, 2 P. W. 308 ; Barnes v. Rowley, 3 Ves. 305 ; Palmer v. Crauford, 3 Sw. 482; Bayne v. Crowther, 20 Beav. 400; Attwood v. Alford, L. R. 2 Eq. 479. (i/) Barlow v. Grant, 1 Vern. 255 ; NeviU v. Nevill, 2 ib. 431 ; but see Woolridge v. Stone, 4 L. J. 0. S. Ch. 56; see further. Barton v. Cook, 5 Ves. 461; Leche v, Kilmorey, T. & R. 207; Att.-Gen. w. Haberdashers' Company, 1 My. & K. 420; Lewes v. Lewe's, 16 Sim. 266 ; Noel v. Jones, ib. 309 ; in Lockhart v. Hardy, 9 Beav. 379, a legacy to a devisee to pay off a mortgage debt on the estate devised to him was held good, though the mortgage was foreclosed in the testator's lifetime. And see Earl of Lonsdale v. Countess Berchtoldt, 3 K. & J. 185; Re Colson's Trusts, Kay. 133 (enjoyment of repairing fund accelerated by dis- entailing the estate) : and cases cited ante, p. 311, n. (s). (z) Re Skinner's Trusts, 1 J. & H. 102, in which it was a question of some difBculty, whether the principal object of the bequest was the benefit of the person named, or the publi- cation of the testator's opinions. (a) Stokes v. Cheek, 28 Beav. 620. 1 A gift to enable a legatee to confer a Ford v. Porter, 11 Rich. Eq. 238, 255; Craig bounty is not a trust, but a beneficial legacy. v. Beatty, 11 S. Car. 375, 377. VOL. I. 27 417 *398 GIFTS WHEN VOID FOR UNCERTAINTY. These cases rest on the principle that the court will not compel that Principle of to be done which the legatee maj' undo the next moment, as the cases. jjy gelling the thing to be purchased or giving up the busi- ness : and we shall hereafter see (b) , that the same principle appUes where property is directed to be converted, for the donee may claim it in its original state ; but of course, in such case, if there be more than one donee interested in the gift, the deviation from the testator's direc- tions cannot be made without the consent of all, as if the house when purchased was to be conveyed to or settled on two or more persons. So, if the annuity is to be held by trustees for the annuitant with a gift over in case he should alienate or become bankrupt, his right to receive the fund is intercepted (c). If the gift is not immediate, but is post- poned until the death of a tenant for life, and the annuitant dies before the tenant for life without alienating or becoming bankrupt, it should seem on principle that, as the event on which his interest was to be defeated has not happened, such interest, which originally and apart from the gift over was vested and transmissible (d), remains intact, and that his representatives are entitled to the fund ; and so it was decided in Day v. Day (e). Where the amount to be applied for the benefit of the legatee is left Where inter- to be fixed at the discretion of trustees, the legatee has no est of legatee right to any more than the trustees in their discretion is left to dis- cretion of *398 will allow. * Thus, where real and personal estate trustees. ^g^g giyen to trustees upon trust to apply the whole or any fart of the rents and annual income towards the maintenance of A. , and the trustees applied a part onlj', and then A. died ; it was held that his representatives were not entitled to the surplus rents and in- come (/). And in a case where a testator authorized his trustees to apply any sum not exceeding a stated amount in the purchase of church preferment for A. , and A. died before any sum had been so applied ; it was held that the gift failed ; a discretion was vested in the trustees as to the amount of the legacy, and as to the mode and occasion of raising it, and A. could not in his lifetime have claimed payment of it to himself {g) . But as soon as the trustees exercise their discretion by making a purchase for the object of their power, the thing pur- chased becomes the absolute property of the latter (h) ; and instead (J) Post, Ch. XIX. s. 2. (c) Hatton ». May, 3 Ch. D. 148; per Kindersley, T.-C, Day v. Day, 22 L. J. Ch. 881, 17 Jur. 586, also shortly and semb. inaccurately reported 1 Drew. 569. But where the an- nuity was to be purchased in the name of the annuitant, it was held that a gift over was in- effectual, and the annuitant entitled absolutely. Hunt-Foulston v, Furber, 3 Ch. D. 285. (d) Bayley v. Bishop, 9 Ves. 6; and cases'n. (a;), supra. (c) Supra. But the point was decided otherwise by Malins, V.-C, Power v. Hayne, L. R. 8 Eq. 262. (/) In Re Sanderson's Trust, 3 K. & J. 497. Compare Beevor v. Partridge, 11 Sim. 229. If the whole income is needed for maintenance the result is the same as if there were an absolute trust. Rudland v. Crozier, 2 De G. & J. 143. (g) Cowper ». Mantell, 22 Beav. 231. (n) Lawrie v. Bankes, 4 K. & J. 142. (Commission in the army purchased, and soon after sold by the object.) 418 "WHAT "WORDS WILL CEBATE A TEITST. *399 of apph'ing a sum specifically the trustees maj' hand it over to the "object (?■). "Where the motive or purpose of the gift is the benefit of other per- sons as well as the primary donee, three constructions obtain, „„ 1 ■ ■■ rr,, Where the according to the language used. The purpose may be so purpose not peremptorily expressed as to constitute a perfect trust ; or ^meo^lone* may be such as to leave entirely in thfe discretion of the three con- primary donee the quantum of benefit to be communicated to ^ '"° '°"^' the other persons, provided that such discretion is honestly exercised ; or lastly, the expression of motive or purpose may be merely nugatory and not operate to abridge the previous absolute gift to the primary donee. In the following cases, illustrating these distinctions, the deci- sions will be found on examination of the reports to turn in many in- stances on minute distinctions, which it would require too much space to particularize ; and some cases will be found almost irreconcilable with others : the preponderance, however, seems to lean in favor of giving the primary donee a discretion which he must honestly exercise, or in default, subject himself to the control of the court, with a ten- dency, however, rather to narrow than to extend the effect heretofore ascribed to words expressing the purpose or motive of the gift. a. As to the cases in which a complete trust is created. A * gift to A., to dispose of among her children (i), or for bringing *399 up her children (/) , gives A. no interest, but creates a complete trust for the children. And in Taj-lor v. Bacon (to), where ^ f,^^^ ^^ the testator bequeathed the dividends of stock to R., the complete wife of his son G., for the benefit of his son G., of herself ™* ' and of their children, and after the decease of G., the stock to remain in trust for the benefit of E. and her children during her Ufetime, if she should remain a widow ; it was held that the wife was a trustee of the interest for herself, her husband and children. In Jubber v. Jubber (n), the bequest was to the testator's wife for the benefit of herself and her unmarried children, that " thej' may be com- fortably provided for as long as my wife maj' remain in this life," with a bequest over upon her death. The widow and unmarried daughters were held to be entitled in equal shares to the income during the widow's life, whether as joint- tenants or tenants in common was not decided. In "Wetherell v. Wilson (o), the testatrix, under a general power, bequeathed a sum of stock in trust for her children at twenty- one or marriage, and directed the trustees, in the mean time, to paj^ the interest of the fund to her husband, in order the better to enable him (0 Messeena v. Cair, L. E. 9 Eq. 260; Palmer ». Flower, L. R. 13 Eq. 250. In the latter case the power was to purchase promotion in the army, and, in the mean time, purchase was abolished. In Re Ward's Trusts, L. R. 7 Ch. 727, it was held otherwise in case of a deed. {h) Blakeney v. Blakeney, 6 Sim. 52. (0 Pileherii. Randall, 9 W. R. 251. («j) 8 Sim. 100; see also Chambers o. Atkins, 1 S. & St. 382; Fowler v. Hunter, 3 T. & J. 506; Re Camac's Trust, 12 Jur. 470; Barnes v. Grant, 26 L. J. Ch. 92; Bibby v. Thomp- son, 32 Beav. 646. («) 9 Sim. 503. (o) 1 Kee. 80. 419 *400 GIFTS WHEN VOID FOE TJNCEETAINTYi to maintain the children of the marriage, until their shares should be- come assignable to them. Lord Langdale decided that the husband-* took nothing beneflcialty, but was bound' to apply the income for, the benefit of the children. In Wilson v. Maddison (p), the testator be- queathed " to A. W.,with her little girl and two Uttle boys, for their joint maintenance, —^ their mother to have the care of bringing them up to the best of her power, till they are able to do for themselves, — 30/. a year, to be paid to the said mother, as above, half-yearlj-, as may best suit ; " and it was held that the four persons were constituted joint- tenants, and that while three were minors, the fourth, being an adult, should receive the annuity for their maintenance {q). b. As to the cases in which the court has cousidered the primary donee to have a discretion liable to be controlled, if not ''h'^rtfel" honestly exercised (r). In Hamley v. Gilbert (s), the residue is a discretion was given to E. G. H., to be laid out and expended controlled^ *400 by her at her * discretion, for or towards the education of her son F. G. H. , and that she should not at any time thereafter be hable and subject to account to her said son or to any other person whatever for the disposal or application of such resi- due or any part, thereof. It was held that E. G* H. was absolutely entitled to the residue, subject to a trust, to apply a part to the educa- tion of her son during his minority (i), and it was referred to the master to inquire what would be a suflflcient sum to be appropriated for that purpose. In Gilbert v. Bennett (?^), the testator bequeathed all his property to his wife and two other persons in trust, to pay the income to his wife for the education and support of his children \>y her ; but none of his property was to be disposed of, but the income arising therefrom to be applied as above, to their maintenance and support, and advancement in life and support of his children ; and after her death, he gave the property to be divided among his children. The V.-G. said, the natural construction of the will was, that the testator intended the whole of the income to be paid to his wife for her life, and to impose on her the burden of maintaining and educayng the children out of it. In Hadow v. Hadow (*), Leach v. Leach (y), Browne u.^Paull (z), and Longmore ^v. Elcum (a), words nearly similar received the same con- (p) 2 Y. & C. C. C. 372. (q) See also Es Harris, 7 Exch. 344. (r) The mode and extent of interference exercised by the court depend on the will in each case. See Castle ». Castle, 1 De G. & J. 352. (s) Jac. 354. (*) As to the confinement of the ■trust to minority, see Gardiner v. Barber, 2 Eq. Rep. 888, overruling Soames ». Martin, 10 Sim. 287, contra. ' But where the income of a fund is to be applied for the maintenance or education' of the legatee during the life of A. or during any other specified period, the trust does not cease on the legatee attaining majority or dying in A.'s lifetime. Longmore v. Elcum, 2 Y. & C. C. C. 363; Bayne i\ Crowther,"20 Beav. 400; Bi'ocUlebank v. Johnson, ib. 211, 212. So even where the trust is for maintenance, education, An&hmging up. • Badham v. Mee, 1 R. & My. 631. As to cesser of the trust on marriage of a daughter, see Camden v. Benson, cit. 8 Beav. 350; Bowden v. Laiug, 14 Sim. 113; Carr v. Living, 28 Beav. 644 ; Scott v. Key, 35 Beav. 291. («) 10 Sim. 371. I,x) 9 Sim. 438. (y) 13 Sim. 304. (2) 1 Sim. N. S. 92; see also Bowden j). Laiug, 14 Sim. 113. (a) 2 Y. k C. 0. C. 363. 420 WHAT WOKDS "WILL CREATE ATEUST. ?401 struction. It appears, as th.e result, of these authorities, that Result of the where the interest of the children's legacies is given to a parent to be applied for or towards their maintenance and education, there, in the absence of anything indicating a contrary intention, the parent takes the interest subject to no account, provided , only that he discharges the duty imposed upon him of maintaining and, educating the children (b) ; and that a contrary intention is not indicated by a direc- tion, that in case of the parent's death, other trustees should make the application of the fund, in which case, however, such: trustees would take nothing beneficially (c). [*In Crockett v. Crockett (rf), where the testator *401 Crockett ». directed that aU his property should be at the dis- Crockett. posal of his wife for herself and children, the only point decided was that the wife and children were not joint-tenants ; but Lord Cottenham was of opinion that the wife had a personal interest in the fund, and that as between herself and her children she was either a trustee with a large discretion as to the application of it, or had a power in favor of the children, subject to a life-estate in herself. The former construc- tion would have been the more consistent with the previous authorities.! The latter would not only have introduced a limitation of. the wife's interest not expressed in the will, but would have left that diminished interest still subject to the charge of maintaining the children. A " recommendation " not to diminish the principal, but to vest it in gov- ernment or freehold securities, has been held to require this construc- tion (e) . In Raikes v. "Ward (/), the gift was to the testator's wife,: " to the intent she may dispose of the same for the benefit of herself Raikes v. and our children in such manner as she may deem most "Ward, advantageous." The court, in deciding against the claim of the chil- dren to an absolute interest, said, it could not deprive the widow of the honest exercise of the discretion which the testator had vested in her,i or refuse its assistance to inquire into or sanction any reasonable arrangements which she might desire to make. Expressions somewhat similar to those found in the last two cases have ureases. received the same construction in the 'cases of ConoUy v. FarreU (jr) , Woods V. "Woods (A), and Costabadie v. Costabadie (j). In several cases {k) , the court has held the donee entitled to receive (J) Per Lord Cranworth, 1 Sim. N. S. 103. (c) lb. 105. (d) 2 Phil. 563, reversing the decision, 5 Hare, 326 {Trhich seems to hare proceeded on some misapprehension of the decree, 1 Hare, 451). See also Scott v. Key, 35 Beav. 291; Armstrong ». Armstrong, L. R. 7 Eq. 518. (e) Hart i: Tribe, 18^eav. 215 ; but see per Turner, L.J. 1 D. J. & S. 418. (/) 1 Hare, 445. ' (o) 8 Beav. 347. , (i) 1 My: & Cr. 401. (i) 6 Hare, 410; and see Cowman v. HaiTison, 10 Hare, 234; Smith v. Smith, 2 Jur. N. S. 967; Godfrey v. Godfrey, 2N. R. 16; Dixon v. Dixon, "W. N. 1878, p. 225. (k) Cooper v, Thornton, 3 B. C. C. 96 ; Robinson i). Tickell, 8 Ves. 142; "Woods t). "Woods, 1 My. & Cr. 401; "Wood v. Richardson, 4 Beav. 174; Pratt v. Church, lb. 177;'Brigg3 v. Sharp, L. E. 20 Eq. 317. 421 *402 GIFTS WHEN VOID FOE UNCEBTAINTY. The donee the legacy or dispose of the property devised or bequeathed afiowed°to ^"'^ receive the proceeds, without saying -whether he was receive the absolutely entitled or bound honestly to exercise a discre- o^Kisiiiter- tionary trust. In such cases it was merely decided that est being there was no absolute trust. d6ClAI*6d But here, as in the case of precatory trusts, if the prop- Distinction erty is given in the first instance for the absolute in'^firstTn™" *^^^ benefit, or to be at * the disposal, of the donee, espe- stanoe abso- cially if such donee be the parent, no trust will be luteiy. created by subsequent words showing that the maintenance of the children was a motive of the gift. And, although it is not directly denied that the court may control the execution of a trust where the shares of the beneficiaries are left to the discretion of the donee (for the court is in the constant habit of ascertaining the amount required for maintenance of children) , j'et increased weight is given to that indefiniteness as showing that no trust whatever was intended. Thus, in Lambe v. Eames {I), where a testator gave his estate to his widow "to be at her disposal in any way she may think best for the benefit of herself and family ; " the widow made a wUl disposing of part of her husband's estate, and giving an interest therein to a natural son of one of his children ; and the questions were whether there was a trust, and if there was, whether it had been duly executed. Crockett V. Crockett, and other cases cited above, were pressed on the court ; but with reference to them Sir W. James, L. J., expressed a strong disapproval of the "officious kindness" of the court in interposing trusts where none were intended, and said, " If the case stood alone, I should say that no sufficient trust was declared by the will ; but if there be any such obligation, I think it has been fairly discharged by the way in which she (the widow) has made her will " (m). c Where ^* Lastlj', as to Cases where the primary donee was held primarj' to be absolutely entitled. absolutely ^^ Brown v. Casamajor (w) , a legacy was given to a entitled. father, the better to enable him to provide for his younger Brown v. children. The father consented to secure the principal for Casamajor. ^j^g tjenefit of his yftunger children, but the court, on his petition, held him entitled to the past arrears of interest. The report suggests no reason for this decision, but that which appears to be the reasonable one, viz., that the legacy was originally absolute to the father, and remained so except so far as his consent to settle it had deprived him of hi^ interest. Again, in Hammond v. Neame (o) there was a gift to a trustee of a (,1) L. R. 6 Ch. 597. See also Macliett v. Mackett, L. R. 14 Eq. 49. But see Scott v. Key, j Beav. 291. (m) InWillis v. Kymer, 7 Ch. D. 181, a jirecatorj' trust for children, simpliciter, ■ ell executed in regard to daughters by limiting their shares to tlieir separate use. 35] . _ . , was held well ( (re) 4 Ves. 498. (0) 1 Sw. 86.] 422 "WHAT WORDS WILL CREATE A TRUST. *404 sum of stock, upon trast to pay the income to the testator's Hammond ». niece, "for and towards the maintenance, education and bringhig up of all and every her children, until he, she, or they shall attain * twenty-one ; " and then the stock was given equally *403 among them. The niece having no children at the testator's death, it was held that she was entitled to the interest of the stock.] So, in Benson v. Whittam (p) , a testator bequeathed certain annui- ties to be paid out of any money arising from whatever Benson v. dividends he might die possessed of in the Bank of Eng- Whittam. land, and the residue of the dividends to his brother A. (to enable him to assist such of the children of the testator's deceased brother F. as he might And deserving of encouragement) , to be paid to the several per- sons as they became due. Sir L. Shadwell, V.-C, decided that the words in the parenthesis did not raise any trust in favor of the children of F. ; they merely expressed the motive or cause of the gift, and he commented on other passages corroborating this conclusion. [In Thorp v. Owen (q), the testator desired that everything should remain in its present position during the lifetime of his wife, Thorp v. and after her decease gave his real and personal property to Owen, other persons, and then added, " I give the above devise to my wife, that she may support herself and her children according to her discre- tion and for that purpose," Sir J. Wigram, V.-C, decided that the widow took absolutely for her life. He said: " The cases should be considered under two heads : first, those in which the court has read the will as giving an absolute interest to the legatees, and as expressing also the testator's motive for the gift ; and, secondlj', those cases in which the court has read the will as declaring a trust upon the fund or part of the fund in the hands of the legatee (r). A legacy to A., the better to ena- ble him to pay his debts, expresses the motive for the testator's bounty, but certainly creates no trust which the creditors of A. could enforce in this court; and again, a legacj'^ to A., the better to enable him to maintain or educate and provide for his family, must, in the abstract, be subject to a like construction. It is a legacy to the individual, with the motive onlj- pointed out. This is very clearly, and, in my opinion, , ■rightly laid down by the V.-C. in Benson v. Whittam ; and the cases of Andrews v. Partington («), Brown v. Casamajor, and Hammond v. Neame, illustrate the same principle. At the same time, a legacy to a parent, upon trust to be by him applied, or in trust for the maintenance and education of his children, will certainly give the children a right, in a Court of Equity, * to enforce their natural claims *404 against the parent in respect of the fund on which the trust is declared." And the V.-C. added (<) : " If you give property to per- sons to accomplish an object, increasing their funds, so that they might (p) 5 Sim. 22. ({) 2 Hare, 60T. (?') This second head has in the text been split into two divisions. (i) 2 Cox, 223. Compare Barrs v. Fewlces, 2 H. & M. 60. (0 Page 614. 423 *405 GIFTS WHEN VOID FOB UNOBETAINTr. be better able to do it, that is, in point of fact, a gift to them, and there is no trust which others can enforce." This is an important dis- tinction, clear in principle, but often difficult of application. In Biddies v. Biddies (m), under a gift to A., to bring up and main- BequesttoA. ^^^^ ^'"i ^' ^^® ^^^-^ to be absolutely entitled. And in to maintain Byne v. Blackburn (x) , where the testator bequeathed a sum of money to trustees, in trust after the death of his daughter M., to pay the dividends to her husband during his life, " nevertheless to he hy him applied for or towards the maintenance, education or benefit of the children of M.," it was held that no trust was created in favor of the children; and that A. was entitled abso- lutely for his life ; on the ground that if the testator had intended A. to be merely a trustee, he would not have made the bequest in the irst instance to other trustees ; and that where there is a gift to a parent, coupled with a direction that he shall perform certain parental duties (which are legal obligations as regards a father, but are merely moral obligations in the case of a mother), it is a gift to and a beneficial Interest in the person to whom it is made. Yet nothing is more com-r mon in trusts for the maintenance of children than to direct the trustees to pay the money over to the children's guardian, to be by him applied for their benefit ; and with regard to the second reason, it is difficult to reconcile it with Su- J. Wigram's remarks cited above.] Such, then, is the long train of decisions arising from the neglect of jj , testators clearlj'' to distinguish between expressions which upon the are meant to impose a trust or obligation, and those which cases. g^j,g jj)tgjj(jg(j merely to inculcate the discharge of a moral duty [or point out the motive of the gift.] At one period the courts seem to have been so astute in detecting an intention to create a trust when wrapped in the disguise of vague and ambiguous expressions, as almost to take from a testator the power of intimating a wish without creating an obligation, unless, indeed, by the use of words dis- *405 tinetly negativing the contrary construction. But though * a sounder principle now prevails, the practitioner will perceive, in' the state of the authorities, the strongest incentive to caution in the employment of words which may give rise to a question of this, nature. If a trust is intended to be created, this should be done in clear and explicit terms ; and if not, any request or exhortation which the testator may choose to introduce, should be accompanied by a declaration, that no trust or legal obligation is intended to be imposed. Sometimes a testator's recommendation in favor of a third person is not of a nature to create a simple absolute trust for his benefit, but has (u) 16 Sim. 1; see also Berkeley v. Swinburne, 6 Sim. 613; Oaltes v. Strachv, 13 Sim. 414; Leigh v. Leigh, 12 Jur. 907; Jones v. Greatwood, 16 Beav. 528; Hart v. Tribe, 18 Beav. 215 (as to the lOOf.) ; Wheeler ». Smith, 1 Gif. 300; Howarth v. Dewell, 29 Beav. 18. (a!) 26 Beav. 41. See also the judgment in Lambe ». Eames, L. R. 6 Ch. 697.] 424 -WHAT -WORDS WILL CBEATE A TRUST. *406 for its object the placing or continuance of sucli person in some office or capacity connected with the property that is the subject of disposi- tion involving the performance of a certain duty. As where Direction to a testator directs that the tenants of the devised property permit ten- shall be allowed to continue in its occupation, either with or tinue inoccu- without a condition or restriction as to rent, cultivation, &c. P'"'""! As in Tibbits v. Tibbits(y), where a testator made a devise to his son, recommending him to continue his cousins A. and B. " in the oc- cupation of their respective farms in the county of W. as heretofore, and so long as they continue to manage the same ina good and hus- bandlike manner, and to duly pay their rents," it was held to be atrust for the cousins who had been tenants at will. It has been much discussed whether a direction or injunction to em- ploy a particular agent or steward, imposes on the devisee an obligation in the nature of a trust in favor of the person a particular so named, subject, of course, to the implied condition to ^'''^™'''^' ^''" faithfully discharge the duties of the office. [Thus, in Hib- Hibbertu. bert V. Hibbert (z)', the testator, whose only real estates were Hibbert. , in Jamaica, directed that his friend H. should be appointed receiver of his real and personal estates, adding that he made this appointment for the sake of benefiting H. in a pecuniary point of view. Sir W. Grant, M. R.,. held that H. was entitled to be receiver, agent and consignee for the Jamaica estates, upon his personal recognizance, without (as would have been required if he had not been appointed by the testator) giving the usual security.] So, in Williams v. Corbet (a), where a testator devised his estates to trustees upon trust tq let the same, and applj"- the * rents in paying off certain incumbrances, and *406 CoAet?^ * appointed A. to be auditor of the accounts during the execution of the ti'usts, and directed the trustees to pay him the usual annual remuneration. Sir L. Shadwell, V.-C, held that the trustees were not justified in removing A. from the office, there being no impu- tation on his conduct, for that he had as much right to be the auditor as any one of the devisees had to the estates. [On the other hand] in Lawless v. Shaw (6), where a testator after devising his estates, charged with certain annuities, to his Lawless v. friend William Shaw (then aged twenty years) for life, with Shaw. remainders over in strict settlement, and after bequeathing Oireqtion to to his friend and agent B. E. Lawless 100^. as a token of pOTticukr the testator's esteem for him, and after directing his execu- steward. tors to pay his agent 150?. to be distributed among the poor of his es- tates, declared it to be his particular desire that his executors, whilst acting in the management of all or any of his affairs, as also his friend M 19 Ves. 656. [Compare Quayle v. Davidson, 12 Moo. P. C. C. 268. (z) 3 iVIer. 681. See also Saunders v. Rotherham, 3 Gif. 556 (direction to continue testa- tor's trade and employ A. as manager).] (a) 8 Sim. 349. (6) 1 LI. & Go. 154. 425 *407 GIFTS WHEN VOID FOR UNCERTAINTY, W. Shaw, when he should enter into the receipt of the rents of his estates, should continue Lawless in the receipt and management there- of, and likewise should employ and retain him in the agency and man- agement of lands to be purchased in pursuance of the will, at the usual fees allowed to agents, he having acted for the testator since he became possessed of the estate fully to his satisfaction. The testator also be- queathed to his friend and agent Mr. Lawless 150Z. to purchase a mon- umental tablet. Soon after the testator's decease, Shaw, the devisee for life, dismissed Lawless from his office as land-agent, but without impeaching his character or capacity. Lawless filed a bill against Shaw, claiming to be reinstated, which was dismissed by Lord Plunket ; whose decree, however, was upon a rehearing reversed bj^ his successor. Af- ter reading the clause of the will applicable to Lawless, Sir E. Sugden inquired: "Is that a simple recommendation to continue him in an office removable at pleasure, and which the devisee may put an end to the next hour? or, is it a direction to continue him against the will of the devisee, subject of course to the conditions implied, that he conduct himself honestly and faithfully in the discharge of his duty, and con- tinue competent both in mind and body ? Does it mean that the agency shall be of the same character, and that he was to be continued in the same manner as he was emploj-ed bj' the testator himself, that is, re- movable at pleasure ? " His Lordship then proceeded to show *407 at some length that it was * clearly imperative on the trustees to employ Lawless during Shaw's minority. " Now if it was," he continued, "imperative on the trustees toemploy him duringthe minority, can I draw a distinction and say, that a different right was given by the same words to Shaw from that given to the trustees, particularly in a will where, as I have pointed out, the testator knew how to distinguish the powers which he gave, according to the persons by whom and the period at which they were to be exercised ? If imperative on the trustees, it was equally so on Shaw, when he succeeded to the estate. If j'ou look at the language of the clause there can be no doubt as to the intention. It is in substance this : I have found him a faithful agent to myself, and it is my particular desire that you retain him in the management of the estate, and I will leave no doubt as to the fees he is to receive. The word ' continue ' is used in the first part of the clause, and in the second the words ' retain and employ.' These are strong words importing a continuance and endurance as long as he conducts himself properly. In the preceding clause there is an absolute gift of 1501 for charity, and a direction that it should be paid to Lawless to be by him distributed. Can any One doubt that that is imperative ? though merely a direction it is nevertheless just as binding as the gift itself of the money to the poor. This is followed by the clause in question, ' and it is also my particular desire,' &c. ; these words, in connection with the gift in the preceding clause, import a gift also to, Lawless himself: then it is said Shaw is made tenant for life, and can you cut down his life-estate? To this I 426 "WHAT WOEDS WILL CREATE A TEUST. *408 answer, I leave him as I find him. The testator emploj'ed this gentle- man to receive his rents, and desired his devisee to continue him ; this is in the nature of a condition imposed on the tenant for life, and therefore the person who takes the estate must perform the condition. It is said that this was intended for Shaw's benefit. It maj' be so, but not e:^clusively ; I have no means of forming a judgment whether it was or was not. I cannot say whether the testator may not have in- tended a benefit to the estate itself ; he certainly did, so far as he made it imperative upon the trustees to employ Lawless during the minority. A very j'oung man was about to step into possession of an estate ; the testator, therefore, might wisely say : ' I will take care to have a faithful agent emplo3'ed for the benefit of the estate itself ; I will at the same time make the office a reward to a tried agent for his past exertions.' Then it is said, Suppose the testator recommended the devisee to * employ a particular baker or tailor ; well, suppose the testa- *408 tor did make such a condition in clear express terms, for it would not be implied ; a man may devise an estate under any condition he pleases, provided it is not an illegal one." [The decision of Sir E. Sugden was, however, reversed, and that of Lord Plunket established in D. P. (f) , on the ground that a Shawu. Law- gift of an estate to one person is inconsistent with a direc- rev^ershi? de- tion that another should have the management of it. Lord cision below. Cottenham said : " If Lawless's title is what it has been argued to be, he has an equitable charge on the legal estate of Shaw ; and as he is to have the usual fees of 5/. per cent, the result would be that Lawless would not onty be an equitable incumbrancer to that amount, but would have a right to manage and direct the estate, and would have full power over the conduct of the property. If so, the testator must have in- tended that Shaw, to whom he gave the estate for life, should not have the direction of his own estate ; for the two powers of direction and nJanagement are inconsistent with each other. He must be taken on this view of the case to have intended that the legal devisee for life sllould not have the management, but that the equitable incumbrancer on the real estate should have the control and management of the prop- erty. But the trustees of the will are, during a considerable part of the time, to have not only the management of the estate which the testator devised, but are authorized and directed to lay out part of the person- alty, the residue, in the purchase of other lands. If Lawless is the equitable incumbrancer to the amount of one twentieth part of the in- come of the estate, he has a clear interest in the residue, for he might take one twentieth part of the residue. He might file a bill in chan- cery, in order to control the application of the residue, and claim to be absolutely interested iu what he is entitled to receive, namel}', this one twentieth part." The observation as to Lawless being entitled to [(c) Shaw V. Lawless, 5 CI. & Fin. 129. See also Finden v. Stephens, 2 Phill. 142. 427 *408 .GIFTS "WHEN VOID FOE UNCERTAINTY. one twentieth share of the residue seems scarcely applicable, ibr he had in fact, at the utmost, only a percentage on the rents as a salary, for performing a duty, and that only so long as he performed it properly and obeyed his employer (rf). The due yearly performance of that duty was, therefore, a condition/ precedent to his right to receive his yearly percentage, and such a right to a percentage of the receipts could scarcely be converted into a right to a like percentage of the capital.] (d) See 1 LI. & G. 172. 428 PAKOL EVIDENCE, HOW FAR ADMISSIBLE. *409 * CHAPTER XIII. *409 PABOL EVIDENCE, HOW FAR ADMISSIBLE.^ As the law requires wills both of real and personal estate (with an in- considerable exception) to be in writing,' it cannot, consist- Parol evi- ently with this doctrine, permit parol evidence to be adduced, ^^sftj" to' either to contradict, add to, or explain the contents of such control will, will (a) ; ^ and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is the partial or total failure (a) Goss V. Lord Nugent, 5 B. & Ad. 64, 65; Wigram on Wills, 5; Lowfleld v. Stone- ham, 2 Stra. 1261.] ^ It is laid down by high authority that there is no material difference of principle in the rules of interpretation between wills and contracts, except what naturally arises from the different circumstances of the parties. 1 Greenl. Ev. § 287. The object in both cases is the same, namely, to discover thfe intention. And to do this, the court may, in either case, put itself in the place of the party, and then see how the terms of the instrument aifect the property or subject-matter. Doe v. Martin, 1 Nev. & M. 524; Brown v. Thorn- dike, 15. Pick. 400. With this view, evidence must be admissible of all the circumstances surrounding the author of the instrument. It is only thus that parol evidence is admis- sible to "explain written instruments; there- by showing the situation of the party in all his relations to persons and things around him. Thus, if the language of tlie instru- ment is applicable to several persons, to sev- eral parcels of land, to several species of goods, to several monuments or boundaries, to several writings; or if the terms are vague and general, or have divers meanings in a will, the words, e.g. "child," " children," "grandchildren," "sou," "family," or "nearest relation," being loosely employed (see Blackwell v. Bull, 1 Keen, 176 ; Brown v. Thorndike, 15 Pick. 400; 1 Phill. Ev. pp. 5-32- 547, Cowen's notes, 939-958) ; .^ in all these and the like cases, parol evidence is admis- sible of any extrinsic circumstances' tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect. In regard to wills, much greater latitude, however, was formerly allowed, in the ad- mission of evidence of intention, than is warranted by the later cases. The modern doctrine on this subject conforms more to principle; being nearly or quite identical with that which governs the interpretation of other instruments. See Hiscocks «. Hisaocks, 5 M. & W. 383, 367; Webley v. Langstaff, 3 Desaus. 509; Breckenbridge v. Duncan, 2 A. K. Marsh. 51; Keeves it. Reeves, 1 Dev. Eq. 386; Patterson v. Leith, 2 Hill, Ch. 16; Comfort V. Mather, 2 Watts & S. 450; Lewis V. Lewis, ib. 455; Haydon v. Ewing, 1 B. Mon. 113; Miller v. Travers, 8 Bing. 244; 1 Phill. EV. 545; 3 Phill. Ev. Cowen 6 Hill's notes, 1362, et seq. and cases cited ; Puller V. Puller, 3 Rand. 83; Kimball v. Morrell, 4 Greenl. 368; Brown v. Thorn- dike, 15 Pick. 400. Hence, if the words of a will are clear, and have a definite meaning, no extrinsic evidence to show a different meaning can now be admitted. Brown v. Sal- tonstall, 3 Met. 426 ; 1 Greenl. Ev. § 290; 1 Stor}', Eq. Jur. § 181 ; Chambers v. Min- chin, 4 Ves. (Sumner's ed.) 675, note (a); Selwood V. Mildmay, 3 Ves. (Sumner's ed.) 306, note (n); Fonnereau v. Poyntz, 1 Bro. C. C. (Perkin's ed.) 480, note (a), arid cases cited; Spalding v. Huntington, 1 Dav, 8; Hand v. Hoffman, 3 Halst. 71 ; Canfield v. Bostwick, 21 Conn. 550. For example, a devise to the testator's children, he having children of his own and step-children, does not embrace the step-children ; and parol evidence is inadmissible to show tliat the testator intended to include them. Fouke v. Kemp, 6 Harr. & J. 135. See post, p. 414, n. 2 Kinsey v. Ehem, 2 Ired. 192 ; Whitlock K. Wardlaw, 7 Rich. 453. 429 *410 PAROL EVIDENCE, of the testator's intended disposition ; for it would have been of little avail to require that a will ab origine should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instru- ment failed to make a full and explicit disclosure of his scheme of dis- position, its deficiencies might be supplied, or its inaccuracies corrected, from extrinsic sources. No principle connected with the law of wills is more firmly established or more familiar in its application than this ; and it seems to have been acted upon by the judges, as well of earlj' as of later times, with a cordiality and steadiness which show how entirely it coincided with their own views. Indeed, it was rather to have been expected that judicial experience should have the effect of impressing a strong conviction of the evil of offering temptation to perjury. Thus (among many instances) (b), in Strode v. Lady Falkland (c). Letters and letters and oral declarations of the testator being offered to oral deciara- prove the intention to include a reversion in the words, "All tator reject- other my lands, tenements, and hereditaments, out of settle- «^' ment," it was unanimously agreed by Lord Cowper, C, J. Trevor, M. R., T. Trevor, C. J., and Tracy, J., that this kind of evi- dence could not be admitted,'' for that where a will was doubtful *410 and uncertain, * it must receive its construction from the words of the will itself ; and no parol proof or declaration ^ ought to be admitted out of the will to ascertain it. " So, in Brown v. Selwin (d) (which is a leading authoritj-), where the Evidence of testator having bequeathed the residue of his personal estate mistake by to two persons, whom he appointed his executors, and one drew the will of whom was indebted to him by bond, it was attempted to rejected. -^^ proved by the evidence of the person who drew the will, that he received the testator's written instructions to release the bond debt by the will, but that he refused to do so, under the impression that the appointment of the obligor to be one of the executors extinguished the debt — Lord Talbot held the evidence to be inadmissible ; and his decree was affirmed in D. P.° (J) Cheney's case, 5 Rep. 68; Vernon's case, i Rep. 4j Lawrence v. Dodwell, 1 Ld. Eaym. 4.38 ; Bertie t). Falkland, 1 Salk. 232 ; Cowers v. Moor, 2 Vern. 98 ; Bennett r. Davis, 2 P. W. 316; Parsons r. Lanoe, 1 Ves. 189; Ulrich v. Litchfield, 2 Atk. 374; [Parmiter v. Parmiter, IJ. & H. 13!).] (c) 3 Ch. Rep 98. \d) Cas. t. Talb. 240,3 B. P. C. Toml. 607. [It mast always be assumed that the lan- guage of the Willis that of the testator: if proposed bv his professional adviser, it is yet adopted bv him; per Wood, V.-C, 10 Hare, 348, 349; and see per Romilly, M. R., 32 Beav. 423. And parol evidence that a will was or was not drawn by a skilled person is not admis- sible, though any evidence on the point apparent on the face of the will may be considered in construing it, Richards d. Davies, 13 C. B. N. S. 69, 861 ; and if obviously technically drawn, the technical is the- primary meaning, per Bvles and Willes, JJ., Thellusson i). Renillesham, 7 H. L. Ca. 449, 486. But as in the case of" a deed (10 Kast, 427, 4 B. & Cr. 272), so in the case of a will, evidence is admissible to show that the instrument was in fact executed on a different day from that stated in ifr. Reifell v. Reftell, L. R. 1 P. & D. 139.] 1 See Mann B. Mann, 14 Johns. 1; Ryerss 'See Jackson v. Sill, 11 Johns. 201; ». Wheeler, 22 Wend. 148. Tucker v. Seaman's Aid Society, 7 Met. 188; 2 Woodruff i;. Migeon, 46 Conn. 236; i.e. Bradley v. Bradley, 24 Mo. 311. where the language of the will is clear. 430 HOW FAK ADMISSIBLE. *411 Again, in Lord Walpole v. Earl of Cholmondeley (e), where it ap- peared that the testator, the Earl of Orford, made a will in Lord Wai- 1752i whereby he devised his real estate to certain limita- of choimon- tions. In 1756 he made another will, altering those limita- deiey. tions ; but in neither of these wills did he bequeath his personalty, ap- point executors, or make any provision for the payment of his debts. In 1776 he sent for his attornej', to make a codicil for these purposes ; and, on the attorney telling him he should want his will, his Lordship sent him for it to his steward, who gave him the will of 1752. The other will appears not to have been in his custodj'. The attorney then drew the codicil, which recited generally, .that by his last will and tes- tament, dated 25th November, 1752, the testator had devised his real estate to certain uses, but had not charged the same with the payment of his debts or legacies, or disposed of his personal estate, or appointed any executors ; and he declared that writing to be a codicil to his •said last will, and to be accepted and taken as part thereof, *411 and revoked the same so far onl}'^ as it was incompatible Express re- with the codicil ; and he subjected all his estates to the pay- Publication ' "^ . ^ ^ 01 antecedent ment of his debts, the legacies thereinafter bequeathed, and will not cou- his funeral expenses, gave several legacies, and appointed paroitvi- executors. The codicil was duly executed. The parol evi- denoe. dence also went to show, that when the testator made the will of 1756, he told one of the witnesses that he and his great-uncle (to whom the property was thereby limited for life, with remainder to his sons in strict settlement) had made reciprocal limitations in favor of each other's families, in case of failure of issue of either of them. And it appeared further, that when he made the codicil of 1776, he expressed no inten- tion of altering the limitations of the real estate, further than by sub- jecting it to his debts, legacies and funeral expenses. The question was, ^whether this evidence could be received to control the operation of that codicil, which had, by republishing the recited will of 1752, revoked that of 1756 (/). The court of C. P., and afterwards the court of K. B., on a writ of error, held the evidence to be inadmissible.* It had been argued, that the evidence raised a latent ambiguitj' on the words " last will, dated 1752," by showing that that will was not the last will ; and that though the expression " last will" was generally used in a (e) r T. R. 138, 3 Ves. 402; [Re Chapman. 8 Jur. 902, 1 Rob. 1 ; Payne v. Trappes, IRob. 583, 11 Jur. 854; and see Stringer ». Gardiner, 27 Beav. 35, 4 De G. & J. 468; Re Nunn's Trusts, L. R. 19 Eq. 332; Farrer v. St. Catharine's College, L. R. 16 Eq. 19. Quincey ». Quincey, 5 No. Cas. 154, 11 Jur. Ill, and Re Thomson, L. R. 1 P. & D. 8, are contra: sed qu. The decision in the former of these two cases may perhaps be supported on the same grounds as Rogers v. Goodenough, 2 Sw. & Tr. 342. 3rL. J. Prob. 49; for it appears that the will mistakenlv referred to had been destroyed. Vide ante, p. 191. (/) Ante, p. 188. 1 Parol declarations of a testator as to his question of revocation, nnless they are part of intention of dying intestate are inadmissible the res gestai. Dan v. Brown, 4 Cowen, 483. to show a revocation of his will. Lewis v. See .lackson v. Betts, 9 Cowen, 208; Jackson Lewis, 2 Watts & S. 455. See ante, p. 188. ». Kuiffen, 2 Johns. 31. Such declarations are inadmissible on the 431 *412 PAEOE EVIDENCB, tectinical sense, it was sometimes used in- the strict and literal sense, and, therefore, evidence should be admitted to show in what sense it was used by the devisor ; but Lord Kenyon observed, that neither of those instruments was a will, properly so called, until the death of the devisor: but were ambulatory until that time, and either of them was capable of being destroyed or set up by the devisor. "Supposing," continued his Lordship, *' Lord Orford had said to the attorney, ' I have two wills in the steward's hands, desire him to send me the last will,' and the steward hadj by mistake, sent him the first, and that mistake had been shown by parol evidence, there would have been a latent am- biguity ; and it seems to me (though the opinion is extra-judicial), that that ambiguity might have been explained by other parol evidence, on the same principle as in the instance of cancelling a will, where parol evidence is admitted to show quo animo the act was done ; or as in the case of a child's destro3'ing a deed." Difference ^^ ^ill ^^ observed, that in the two cases suggested between re- *412 by Lord * Kenyon; the alleged revoking act is from Ind'rS-oking its nature susceptible of, and indeed requires, this codicil. species of explanation. The same observation would have applied to the case then before the court, if the revocation had consisted in the act of the steward sending the wrong will ; but as this evidently was. not the case, the revocation being wholly produced by the fact of the will being referred to in the codicil, it was clearly impossible, upon the principle adopted in this case, to admit parol evidence of the actual intention to control the revoking effect of the codicil. A fortiori parol evidence is not admissible to supplj' any clause or Devise inad- word which, may have been inadvertently omitted by the per- vertently son drawing or copying the will.^ Thus, in Earl of New- notbesup-' burgh v. Countess of Newburgh(A) where a testator gave plied. instructions to his solicitor to prepare a will, by which his wife was^to take an estate for life in lands in the counties of Sussex and Gloucester. The solicitor prepared the draft, and laid it before a con- vej-ancer to settle, by whom, it appeared, that the word " Gloucester" had inadvertently been struck out, and the person who made the fair copy of the settled draft changed the word ' ' counties " into ' ' county ; " and the will, therefore, omitted altogether the estate for life in the lands (h) 5 Mad. 364. In Langston v. Langston, 8 Bli. 167, 2 CI. & Fin. 194, a nice question of construction arose, in consequence of tlie omission of a line by the person copying tlie will for signature ; and Lord Brougham called for and inspected the draft, with a view of inform- ing himself of this fact, in spite of (he protestations of the appellant's counsel. Its inadmissi- bility, however, was admitted by his Lordsliip, wlio, in his judgment, emphatically disclaimed all reliance on or influence from the information derived from tliis source. Perhaps, however, the principle which excludes such evidence was somewhat infringed by the inspection of the draft will, even with the disclaimer; for in such cases who can venture to affirm that his niiud has not received a bias, by allowing the inadmissible evidence to have access to it ? 1 See Cesar »., Chew, 7 Gill & J. 127; Hyatt «. Pugsley, 23 Barb. 285; Abercrora- Andress v. Weller, 2 Green, Ch. 604, 608, bie v. Abercrombie, 27 Ala. 489 ; Harrison ». 609 j Comstock v. Hadlyme, 8 Conn. 254 ; Morton, 2 Swan, 461. 432 HOW FAK ADMISSIBLE. *413 in the county of Gloucester. "When the will was executed the abstract of the will (which agreed with the instructions given by the testator), , and not the will itself, was read to the testator, so that the mistake re- mained undiscovered. The widow filed a bQl, praying to have the will corrected on this evidence ; but Sir J. Leach, V.-C, refused it, because, admitting it to be clearly made out that the mistake existed, the court had no authority to correct the will according to the intention. The wiU, executed with that omission, was certainly not the will of the de- visor ; and so it must be found by a jury upon the facts stated as to the Gloucester estate ; but the court could not, for that reason, set up the intention of the testator, which by mistake he had vbeen prevented from carrying into execution, as if he had actually executed that inten- tion in the * forms prescribed by the Statute of Frauds. To as- *413 sume such a jurisdiction would, in effect, be to repeal the Statute of Frauds in all cases where a testator failed to comply with the statute by mistake or accident. His Honor added, that he was wiUing to direct an issue, whether this was the will of the testator as to the Gloucester estate ; and upon this issue the evidence tendered would be admissi- ble {{) . No such issue was asked. The case was afterwards reheard before the V.-C, when it was suggested, as the result of the convey- ancer's evidence, that there was no omission in the will, but that the error was owing to the introduction of a passage which he had at first written, but afterwards struck through with a pen ; but which had been copied by mistake in the fair will : and it was contended, therefore,. that there ought to be an issue, to try whether those words so introduced by mistake were part of the will. The V.-C. thought that, if such a case had been originally made, they would have been entitled to such an issue (j) ; but that, as it was opposed to the allegations on the record, he could not entertain it. The case was carried to the House of Lords, where the question, whether parol evidence was admissible to prove such mistake, for the purpose of correcting the will and entitling the appellant tjo the Gloucester estate, as if the word "Gloucester" had been inserted in the will, was submitted to the judges, who declared (i) The report states that a case~wa3 cited at the bar on the authority of Richards, C. B., in which Lord Eldon had sent it to the jury upon the same description of facts. [But Lord St. Leonards says (Law of Prop. 207) it could not be maintained that the omission of the word "Gloucester" in the particular devise would render the whole will void as to the Gloucester estate; because although the will did not contain all that the testator intended as to this estate, it contained in the actual devise of it nothing but what he did intend. The case was ultimate! v decided in D. P. upon the construction of what still appeared on the face of the will. Law of Prop. p. 367. (.7 ) Upon this Lord St. Leonards remarks : " This is a dangerous jurisdiction : for al- though no doubt the striking out of the two lines would have made the will what the testator directed, vet those lines, though inaccurate, were introduced in order to carry the instructions for the wfll into legal operation. It might on the same ground be contended that a mistake in a legal limitation made through carelessness or ignorance could be corrected by striking out the words improperly introduced." Law of Prop. p. 197. See also Barter t'. Barter, L. R., 3 P. & D. 11; Re L)avy, 1 Sw. & Tr. 262, 29 L. J. Prob. 161, 5 Jur. N. S. 252. More- over the effect of striking out the words in Newburgh «. Newburgh would be the opposite of that in the decided cases : it would create a devise and not an intestacy. Per Sir J. Wigrain,, Wills, pi. 183 11. And see Stanley v. Stanley, 2 J. & B. 502.] VOL. I. 28 433 *414 PAROL EVIDENCE, ttieir unanimous opinion to be, that the evidence was not adinis- siMe(i).* The distinction suggested in the court below is very important. Clause im- It seems to amount to this : that though you cannot resort properly in- ^q parol evidence to control the eflfect of words or troduced into ^ will may be *414 expressions which * the testator has used, by showuig issue'rfeB^sa- *^** ^^ ^^^ ^^^^ them under mistake or misappre- vit vel rum. hension, nor to supply words which he has not used, j'et that j'ou may, upon an issue devisavit vel non, prove that clauses or expressions have been inadvertently introduced into the will, con- trary to the testator's intention and instructions, or, in other words, that a part of the executed instrument is not his will. In support of this doctrine maj' be adduced the case of Hippesley v. Homer (/) , where a testator, having by his will dated in 1800, devised his estate to cer- tain limitations, by a codicil made in 1804, after empowering one of the devisees for life to make a jointure and charge portions for children, made certain variations in the limitations in the will, and gave certain additional powers of management to his trustees. The bill alleged, (i) 1 M. & Sc. 352. [See Wade v. Nazer, 12 Jur. 188, 6 No. Cas. 46, 1 Rob. 627.] (/) T. & R. 48, n. [See also Powell v. Mouchett, 6 Mad. 216; Lord Triinlestown ». D'Alton, 1 D. & CI. 85; Lord Guillamore v. O'Grady, 2 Jo. & Lat. 210; Re Duane, 2 Sw. • & Tr. 590, 31 L. J. Prob. 173; Re Oswald, L. R., 3 P. & D. 162. 1 In Comstock i: Hadlyme, 8 Conn. 254, the question arose whether an important omission in drafting a will would render it void. The facts were, that the testatrix, in- tending to give a legacy of one hundred dol- lars to each of her grandchildren, instructed the scrivener to insert such legacj'in her will, and executed the will, supposing that it had been duly inserted, when in fact the scrive- ner, though he had inserted the names of the legatees, had by mistake omitted the amount. The court held that the mistake did not render the will void. The question how far a will invalid as to some of its provisions can be sustained as to others not in conflict with the statute regulating the devise of real es- tate; and when a will will be avoided IntMo, on the ground that by declaring void portions of it, the main intent of the testator is de- feated, was considered and discussed by Mr. Justice Cowen, in Salmon v. Stuyvesant, 16 Wend. 321. The learned judge denied that there was any such doctrine as that a failure in part is fatal to the entire instrument, that the intent ofthe testator is indivisible, and that the whole must be effectuated, or its identity is lost. " No will of any considerable estate, embracing various kinds of property and seeking to provide for a numerous family by the bestowment of different interests, couli ever stand the test of such a principle. Some slight mistake of testamentary power, some uncertainty of expression, some lapse of ademiition, or one of the thousand occur- rences which baffle human wisdom and fore- cast, always has arisen and always will arise to prevent the exact fulfilment of all the testator's purposes." See Whitlock v. Ward- law, 7 Rich. 453. In regard indeed to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them, when they are apparent upon the face of the will, or may be made out by a due construction of its terms; for in cases of wills the intention will prevail over the words. But, then, the mis- take must be apparent on the face of the will, otherwise there can be no relief: for, at least, since the Statute of Frauds, which requires wills to be in writing, parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity. 1 Story, Eq. Jur. § 169-183; Avery v. Chap- pel, 6 Conn. 270; Mann v. MannJ 1 Johns. Ch. 231, 234; Rothmahlers. Myers, 4 Desaus. 215; Mellish v. Mellish, 4 Ves. (Sumner's ed. )46, and note (a); Phillips v. Chamber- laine, ib. 51; Nutt v. Nutt, Freem. Ch. (Miss;) 128 ; Arthur i;. Arthur, 10 Barb. 9 ; ante, E. 409, note 1. It follows that an omission y a scrivener in preparing a will of real estate cannot be supplied by parol evidence. Andress v. Weller, 2 Green, Ch. 604, 608, 609. Whether such omission can be sup- plied in a will of personal estate, by parol proof, aided by the written instructions to the scrivener, see ib. ; Darner v. Janssen, cited 3 Phill. 434 ; Fawcett v. Jones, ib. 434. In Wood V. White, 32 Me. 340, in equity, it appeared that a testator bequeathed a legacy to "J. Wood," and the name of "George Wood" was allowed to be substituted, on parol proof that he was the person in- tended. 434 HOW FAR ADMISSIBLE. *415 that the testator executed the codicil upon the representation and in the belief that it contained nothing but powers to the devisee for life to make a jointure and charge portions for children, and prayed that it might be set aside. The facts charged were admitted by the answer. Issues were directed : First, as to whether the testator did, bj' a paper writing, purporting to be a codicil to his will, devise in manner follow- ing : (Then follow the words of the codicil, by which only the powers of jointuring and charging portions were conferred.) Secondly, whether the testator did, by the said codicil, devise in manner follow- ing : (Here was set forth the remaining part of the codicil.) The jury found that the part of the codicil which was the subject of the second issue did not constitute the will of the testator ; and that the part of the codicil which was the subject of the first issue did constitute the will of the testator. Whereupon the court (not being able to direct the instrument to be delivered up, as part of it was good) declared that so much of the codicil as did not constitute the will of the testator was void. [So parol evidence is admissible to show that a document duly exe- cuted as a will was never intended to operate as the will of g^^ggyyon „f the deceased ; as, if two persons, intending to malce their wrong instru- wills, each by mistake executes tlie document prepared for ™™'' the other (ni) : or to show that a document was not intended _of a pre- to be testamentar}', but only as a contrivance to effect some tended will; collateral object, e.g. to be shown to another person to induce him to comply with the * pretended testator's wish (n) . In *415 both these cases the animus testandi is wanting. So parol evi- dence is admissible to show that the later of two identical _ of a dupli- documents was intended to be a duplicate of the earlier one, '*'*• and not a distinct instrument (o).] Parol evidence is also admissible for the purpose of counteracting fraud ; for to reject it in such case would be to make a jj^j^ j„ ^^^^^^ rule, whose main object is to prevent injustice, instrumental of fraud, in producing it. As in Doe d. Small v. Allen (/>), where it appeared that the testator, upon being pressed by some per- I^ptindusiy'^" sons to execute a second will, inquired if it were the same obtruded for as the former ; and being told that it was, executed the will, which turned out to be different. It was held in K. B. that evidence of these facts ought to have been received. " I agree," said Lord Kenyon, " that the contents of a will are not to be explained by parol evidence ; but, notwithstanding the Statute of Frauds, evidence may be given to show that a will was obtained by fraud ; and the effect of the evidence offered in this case was to show that one paper was obtruded on the testator for another which he intended to execute." (m) Re Hunt. L. E. 3 P. & D. 250. (n) Lister v. Smith, 3 Sw. & Tr. 282, 33 L. J. Prob. 29. (o) Hubbard v. Alexander, 3 Ch. D. 738 ; see also Doe v. Strickland, 8 C. B. 724.] (,p) 8 T. E. 147. 435 *415 PAEOL EVIDENCE, [And as a charge of fraud may be supported, so it may- be rebutted by evidence of this nature. Thus, in Doe v. Hardy (9), where the defence to a claim under a codiciLto the testator's will was, that the codicil was a forgery ; an objection was made to the receipt of evidence offered by the plaintiff of declarations by the testator, that he intended the lessor of the plaintiff should have the property. But Littledale, J., thought the declarations of the testator were admissible to show his intention's, where the defence was either fraud, circumvention, or forgery.] Another illustration of the principle occurs in the case suggested by Promise by I^ord Eldon in Stickland v. Aldridge (r), "of an estate heir or devi- suffered to descend, the owner being informed by the heu-, tator " that, if the estate is permitted to descend, he wiU make enforced. a provision for the mother, wife, or any other person, there is no doubt equitj' would compel the heir to discover whether he did make such promise.^ So, if a father devises to the youngest son, who promises that, if the estate is devised to him, he will pay 10,000/. to the eldest son, equity would compel the former to discover whether that passed in parol ; and, if he acknowledged it, even praying the benefit of the statute, he would be a trustee to the value of 10,000/." ^ [(?) 1 Moo. & R. 525.] (r) 9 Ves. 619. See also Drakcford v. Wilkes, 3 Atk. 539. 1 Gaullaher v. GauUaher, 5 Watts, 200; Owing's Case, 1 Bland, 397. 2 Where a gift or bequest is procured from a testator through a promise to nold the subject in whole or in part for a third person ■whom the giver desires to benefit, a trust ■will arise ex malejicio if the promise be not fulfilled. Russell v. Jackson, 10 Hare, 206; Tee ». Ferris, 2 Kay & J. 857; Jones b. Bad- ley, L. R. 3 Ch. 362; McCormick e. Grogan, L. R. 4 H. L. 82; Glass v. Hulbert, 102 Slass. 24; Gaither v. Gaither, 3 Md. Ch. 168; Hooker v. Axford, 33 Mich. 463; Bigelow, Fraud, 119. But the grantee or devisee is charged with the trust not by reason merely of the oral promise, but because of the fact that by means of such promise he has induced the transfer of the property to himself. Glass V. Hulbert, supra. And this, in the matter of real estate, takes the case out of the opera- tion of the Statute of Frauds. That a devisee taking property upon a parol promise to hold for the benefit of a third person may be com- pelled at the suit of such person to convey the intended interest, is clear. Hooker v. Axford, supra. A more difficult question, however, arises where, with such devisee, there is associated another devisee who claims that he had no knowledge or intimation at the time of the execution of the will, or before the death of the testator, of such intended trust. But parol evidence, though amounting to no more than strong inference of knowledge of the trust, has been held admissible in a case in which the will had been advised and drawn upon the suggestion of the other devi- see who fullv admitted the trust. Hooker v. Axford. 'The case cited does not go the length of allowing evidence of a trust as to the refusing trustee, where there is no evi- dence of his knowledge of the alleged inten- tion of the testator. It might well be doubted if evidence could be received in such a case. The act of the devisee in claiming to hold the propert)-, notwithstanding the admission of his co-devisee, would not be a fraud. Fraud, in such cases, arises only when the devisee has consented to hold in trust ; such consent being presumed to be the reason .for omitting the declaration of trust from the will. And an engagement of the kind may be entered into as well by silent assent to the undertak- ing as b^' express words of promise. Bvrn «. Godfrey, 4Ves. 10; Paine v. Hall, 18 ves. 475. There appears to be no difference be- tween gifts of realty and gifts of personalty obtained by means of such promises. The Statute of Frauds does indeed provide excep- tionalh' for the transfer of title to or interest in land; but fraud (when but for the inter- ference of the courts it would be accom- plished) takes a case out of the statute, and nothing short of fraud appears to suffice for the relief of an omitted claimant of person- alty. This is the only ground for the inter- ference of equity, Gl'ass-i). Hulbert, supra; and there is cleai-lj' no ground of jurisdiction at law in such cases except fraud. And as it is getting property by deceit, and not the breach of an oral promise, which justifies in- terference (ib.), it follows that the promise, when not valid in itself, must have been made to the testator and not merely to the claimant. But, in Pennsylvania, the breach of an oral agreement has alone been treated as ground of equitable jurisdiction in analo- gous cases. Wolford v. Herrington, 74 Penn. St. 311, 315 J Overton v. Tracev, 14 Sei-g. & R. 326. ' 436 HOW PAE ADMISSIBLE. *417 And it is clear that, in such a case (and this, indeed, is the •point which is chiefly material here), if the trust -were denied *416 by the heir or devisee, it might be proved aliunde (s). It seems, too, that parol evidence is admissible for the purpose of rebutting a resulting trust ; ^ as in such case it does not con- paroi evi- tradict the will, its effect being to support the legal title of <^?™« admis- the devisee against, not a trust expressed (for that would a resultiug be to control the written will), but against a mere equity '"'''''• arising by implication of law (t) . On the same principle, parol evidence was, under the old law, admis- sible to support the claim of an executor (now taken away by stat. 1 Will. 4, c. 40) to the undisposed-of residue of a testator's personal estate, against the presumption in favor of the next of kin created by a legacy to the executor (a). Such evidence may also be adduced to repel the presumption [as distinguished from an express declaration (a;)] against double portions ; in other words, to show that a legacy by a parent to his child was intended not to be (as the general rule would make it) a satisfaction of a portion previously due to such child by the testator, or that a subsequent advancement to the child was not to be (as it would, according to the general doctrine) a satisfaction [entire or partial, according to its amount (y),] of a legacy to such child (z). [In all these cases, where parol evidence is admissible to repel the presumption, counter-evidence is also admissible in support of it ; the evidence on either side being admissible, not for the purpose of proving, in the first instance, with what intent the writing was made, but simply with the view of ascertaining whether the presumption, which the law has raised, is well or ill founded (o) . But evidence in support of the presumption is not admissible, unless evidence to rebut it has been first admitted ; still less is evidence admissible to create a presumption not raised by the law ; in the former case it is unnecessary (b) ; and in both cases its effect would be to contradict the apparent meaning of the will (c).] It is clear, also, that parol evidence is admissible to prove the fact that the testator intended to place himself in loco * parentis towards a legatee, who was not his child (rf) ; [or to *417 (s) See Oldham v. Litchfield, 2 Vern. 506; [Podmore v. Gunnine, 7 Sim. 644: Tee v. Ferris, 2 K. & J. 357; Chester v. Urwick, 23 Beav. 407; Probv ». Landor, 28 Beav. 504; M'Cormick v. Grogan, L. R. 4 H. L. 82, Norris v. Frazer, L. K. 15 Eq. 318.] («) Mallabar v. Mallabar, Cas. t. Talb. 79. (m) See 1 Rop. Leg. bv White, 337. [Secus since the Act, Love v. Gaze, 8 Beav. 474. (x) Smith V. Conder, 9 Ch. D. 170. (y) Pvm v. Lrtckyer, 5 My. & C. 29.] (z) 1 Rop. Leg. bv White, 338. [(a) Kirk v. Eddowes, 3 Hare, 617. (i) Kirk v. Eddowes, 3 Hare, 520; White v. Williams, 3 V. & B. 72. (c) Hall V. Hill, 1 D. & War. 94; Lee v. Pain, 4 Hare, 216; Palmer v. Newell, 20 Beav. 39.] (d) Powys v. Manfield, 3 My. & C. 359. 1 See Mann v. Mann, 14 .John. 1; Herrick 4 Har. ^ J. 551 ; Hall v. Sprigg, 7 Mart. V. Stover, 5 Wend. 680 ; Williams v. Crarv, (La. ) 243 ; Powell^ v. Manson Manuf . Co., 4 Wend. 443; BotsfordD.Burr, 2 Johns. Ch. 3 Mason, 347, 362, 363; Stark v. Can- 416; Kider v. Kidder, 10 Ves. (Sumner's ed.) nady, 3 Litt. 399; Jackman v. Ringland, 4 360, and note (o); Steerei; Steere, 5 Johns.Ch. Watts & S. 149; Buck v. Pike, 2 Fairf. 1; 1; Jackson ». Feller, 2 Wend. 465; Boyd v. 4 Kent, 305, 306; 2 Story, Eq. Jur. § I'm, M'Lean, 1 Johns. Ch. 582 ; Dorsey v. Clarke, 437 •417 PAEOL EVroBNCB, not to be in- fluenced by parol evi- dence of ac- tual inten- tion. prove that gifts have been made to the legatee by the testator in his life- time, and that they were of a nature to bring them within the equitable presumption (e) or within the terms of an express declaration contained in the will (/) , that advancements should be in satisfaction of legacies. And for this purpose contemporaneous declarations of the testator's intentions are admissible ; since the rule which would exclude them, if the intention had been committed to writing, does not apply.] Returning, however, to the general rule, it is clear that parol evidence Construction of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the eonstmction of the written will, the language of which must be interpreted ac- cording to its proper acceptation, or with as near an ap- proach to that acceptation as the context of the instrument and the state of the circumstances existing at the time of its execution (which, as we shall presently see, forms a proper subject of inquirj') , will admit of.^ No word or phrase in the will can be diverted from its appropriate subject or object by extrinsic evidence, showing that the testator commonly (g), much less on that particular occasion (A) used the words or phrase in a sense peculiar to himself, or even in anj' gen- [(e) Rosewell v. Bennett, 3 Atk. 77 ; Kirk v. Eddowes, 3 Hare, 509 ; Twining v. Powell, 2 Coll. 262. (/) Whateley v. Spooner, 3 K. & J. 642; M'Clure i;. Evans, 29 Beav. 422. (^r) See per Parke, B., Shores. Wilson, 9 CI. & Fin. 558; Crosley d. Clare, 3 Sw. 320, n.; Millard v. Bailey, L. K. 1 Eq. 378. (A) Mounsey v. Blamire, 4 Russ. 384; Green v. Howard, 1 B. C. C. 31; Strode v. Russell, 2 Vern. 625; Barrow v. Methold, 1 Jur. N. S. 994; Knight v. Knight, 2 Git. 616, is contra; but the ruM as stated in the text is firmly settled.] Observe that the rule supposes the ex- istence of an appropriate subject or object; otherwise it should seem evidence would be ad- missible of the testator having commonly described the object (and why not the subject alsoV) by the terms used in the will. [Lee v. Pain, 4 Hare, 251, post ; Douglas si. Fellows, Kay, 118.] 1 If the description of a person or thing be wholly inapplicable to the subject intended, or said to be intended by it, evidence is in- admissible to prove whom or what the tes- tator reallv intended to describe. 1 Greenl, Ev. § 290'; De d'Gord v. Needs, 2 M. & W. 129; Brown v. Saltonstall, 3 Met. 423; Den I). Bolick, 1 Ired. 244. As to the inadmissi- bility of declarations of intent, see also Roth- mahler v. Myers, 4 Desaus. 216; Kelley v. Kelley, 25 Penn. St. 460 ; Miller v. Springer, 70 Penn. St. 269; Iddings v. Iddings, 7 Serg. & R. Ill; Webb v. Webb, 7 Mon. 626,628; Tudor V. Terrel, 2 Dana, 47 ; Comstock v. Had- Ijme Soc, 8 Conn. 254, 265, 266 ; Reeves v. Beeves, 1 Dev. Eq. 386 ; Mordecai v. Boylan, 6 Jones, Eq. 365 ; Cesar v. Chew, 7 Gill & J. 127; Duncan v. Duncan, 2 Yeates, 303 ; Sword I). Adams, 3 Yeates, 34 ; Jackson v. Sill, 11 Johns. 201 ; White v. Hicks, 33 N. Y. 383 ; Adams r. Winne, 7 Paige, 97 ; Avery v. Chap- Eel, 6 Conn. 270 ; Geer r. Winds, 4 Desaus. 85 ; •el Mare ». Rebello, 3 Bro. C. C. (Perkins's ed.) 446, 451, note (a) and cases cited ; Tucker V. Seaman's Aid Soc, 7 Met. 188, 206 ; Smith V. Wells, ib. 240; Minot v. Boston Asylum, ib. 416 ; Osborne v. Varnev, ib. 301 ; Ryers e. Wheeler, 22 Wend. 148; Fitzpatrick v. 488 Fitzpatrick, 36 Iowa, 674; Mitchell v. Walker, 17 B. Mon 61; Johnson v. Jolin- son, 32 Ala. 637; McCray v. Lipp, 35 Jnd. 116; Harrison v. Morton, 2 Swan, 461; Cagney v. O'Brien, 83 111. 72; Button v. Amer. Tract Soc, 23 Vt. 336; Robinson V. Bishop, 23 Ark. 378; Willis v. Jenkins, 30- Ga. 167; Gilliam v. Chancellor, 43 Miss. 437; Gilliam v. Brown, ib. 641. But parol evidence is admissible under the statutes of some states to show that the omission of a provision for a child of the testator was in- tentional. Buckley ».' Gerard, 123 Mass. 8; Ramsdill v. Wentworth, 101 Mass. 125; S. C. 106 Mass. 320; Converse v. Wales, 4 Allen, 512; Wilson V. Fosket, 6 Met. 400; Mass. Gen. Stat. c. 92, § 25; Lorieux t>. Keller, 5 Iowa, 196 ; Lorings v. Marsh, 6 Wall. 337. And in the absence of evidence of express declarations by the testator of his intention, it is proper to show the intelligence of the decedent and his relations towards his family. Buckley 0. Gerard, supra; Converse v. Wales, supra; Ramsdill v. Wentworth, supra. As to what is an insufficient delaration of inten- tion, see Bancroft v. Ives, 3 Grav, 367. But evidence of intentional omission is excluded in certam other states under special statutes, HOW FAR ADMISSIBLE. *418 eral or popular sense, as distinguished from its . strict and primary import.^ Thus, in Doe d. Brown v. Brown (i), it was held that a de- vise * of copyhold lands could not be extended to freeholds, by *418 the production of evidence showing that the testator had so ^ described them in a deed executed by him, the will itself not extended furnishing no distinct indication that the testator meant to J-" freeholds , ii,-.niii- °'^ parol evi- give what was conveyed hj the deed, and there being copy- deuce. hold lands to satisfy the devise. So, in Doe d. Chichester v. Oxenden {k) (which is a leading author- ity), where a testator devised his " estate of Ashton, in the -p ^ , . county of Devon ; " and evidence was adduced to show that " estate of the testator was accustomed to distinguish by the appellation 4\a'.™d w' of his " Ashton estate " the whole of his maternal estate, in- extrinsic evi- cluding property in several contiguous parishes ; the Court ^^'^^' of C. P., notwithstanding this evidence, held that only the premises in the manor of Ashton passed ; Sir James Mansfield observing, that this would give the will an effectual operation, and herein the case differed from all others in which such evidence had been received : for in them, without it, the devise would have had no operation ; and it was, he said, safer not to go beyond the line. This decision was affirmed in D. P. on the unanimous opinion of the judges (/) ; and the principle of it has been since repeatedly recognized.^ Thus, in Doe d. Browne V. Greening (»i), the Court of K. B., on its authority', rejected evidence • (j) 11 East,, 441. See Hughes v. Turner, 3 My. & K. 666, where Sir C. Pepys, M. R., held that a revoked will could not be looked at for the purpose of influencing the construction of the subsequent unrevoked instrument. [See also M'Leroth v. Bacon, 5 Ves. 165; Randall V. Daniel, 24 Beav. 193. But in Re Feltham's Trusts, 1 K. & J. 632, on a bequest to "Thomas Turner, of Regency Square, Brighton," the facts being that there was a James Turner of Regency Square, Surgeon, and a Rev. Thomas Turner, of Daventry, both nephews of testatrix's husband; an old will containing a bequest to "Thomas Turner, of Regency Square, Brighton, Surgeon," was admitted to prove the fact that the testatrix always callei the surgeon Thomas. From that fact the court inferred that the actual will (which was not strictly applicable to either claimant) erred in the name and not in the description. " But," said the V.-C, " I cannot rely on the circumstance that she therein {i.e. in the old will) gave him a legacv." The distinction appears to have been overlooked in Re Gregory's Settlement, 6 N. R. 282:] (h) 3 Taunt. 147. This case seems to have settled a point left in doubt by Whitbread v. May, 2 B. & P. 593. {(I) 4 Dow. 65.] (m) 3 M. & Sel. 171. [See also Evans v. Angell, 26 Beav. 202. But as to the meaning of "at" see Homer w. Homer, 8 Ch. D. 758.] Chace v. Chace, 6 R. I. 407; Bradley v. 206; Doe v. Hiscocks, 5 Mees. & W. 363; Bradley, 24 Mo. 311. Under the California Miller i). Travers, 8 Bing. 244; S. C. 1 Moore statute it is held that evidence dehors the & S. 342. See also Jackson v. Sill, 11 Johns, will that the omission was intentional cannot 201; Mann v. Mann, 1 Johns. Ch. 231; S. C. be received. Estate of Garraud, 35 Cal. 336. 14 Johns. 1; McCoy v. Hugus, 6 Watts, 345; 1 In a case in which it appeared that a tes- Cesar v. Chew, 7 Gill & J. 127 ; Richards o. tatorgave all his "back land" to certain Dutch, 8 Mass. 506 ; Farrar u. Ayres, 5 Pick, devisees, purol evidence was admitted to 404; Crocker ». Crocker, 11 Pick. 252; Brown show what was intended by the term " back ». Saltonstall, 3 Met. 423; Minot ». Boston lands," and that the testator usually gave Asylum, 7 Met. 416; Winslowji. Cummings, certain lands that name in his familv and 3 Cush. 358; Earle v. Wood, 8 Cush. 430, neighborhood. Ryers v. Wheeler, 22 VV^end. 449 ; Thayer u. Boston, 15 Grav, 347 ; Ameri- 148. See Black v. Hill, 32 Ohio St. 313. can Bible Soc. v. Pratt, 9 Allen, 109 ; Giftord 2 Tucker v. Seaman's Aid Soc, 7 Met. 188, v. Rockett, 121 Mass. 431. 439 *419 PAROL EVIDENCE, offered to show that, under a devise of lands " at Coseomb," it was intended to include lands near Coseomb. So, in Doe d. Tyrr.el v. Lyford (n) , where the testator devised lands _ . at Sutton Wick, in the parish of Sutton Courtney, which he Construction , j /. cy ^i ,, „ . , , of words not purchased of A., the same court would not allow it to be e^dencYof proved by extrinsic evidence that he intended to include actual inten- certain pieces of ground not in the hamlet of Sutton "Wick, Z"'"' but parcel of the estate purchased of S., and in the parish of Sutton Courtney. Again in Doe d. Preedy v. Holtom (o) , where a testator devised to A. his messuage or tenement in Swalcliffe, wherein he (the testator) then resided, with the offices, outhouses, barns, stables, and other edi- fices and buildings, yards and gardens to the same adjoining, and all the several closes or enclosed grounds, pieces and parcels of ground, called and known by the several names of "Cow-house," &c., with the ap- purtenances, part of the farm and lands then in his own occupation, &c. And he devised to B. all other his hereditaments in Swalcliffe (except what he had before devised to A.). The question was, whether *419 *the devise to A. comprised two cottages adjoining the messuage in which the testator resided, and which he had separated there- from by a stone wall, and let off to tenants. It was held, that the cot- tages in question, though not in the testator's own occupation, passed under the devise to A. (it being considered that the devise was not confined to what was in the testator's own occupation) , and that evi- dence of the testator's intention, orall}' declared at the time of giving instructions for and executing his will, that the cottages should be included in the devise to B., was inadmissible. And it may not, perhaps, be quite superfluous to observe, that rela- Position of ^^^ pronouns, which have no independent force or significa- reiative pro- tion, but whose effect depends wholly upon the position which be varied'by ^^^i' occupy in the instrument, cannot, by means of parol parol evi- evidence, be shifted, so as to relate to a different antece- dent. Thus, in Castledon v. Turner (p), where a testator had made dispositions in his will to several, and but two women were mentioned throughout the whole will, viz. his wife and his niece, and, in the latter part of the will, a particular estate was devised to " her" for and during her natural life, — Lord Hardwicke refused to receive parol evidence for the purpose of showing to which of the two women " her" referred ; the offering it was an attempt contrary to the princi- ples of the court, because it would tend to put it in the power of wit- nesses to make wills for testators. And he held, that, though "her" was a relative term, it related to the wife, upon the ground that, (re) 4 M. & Sel. 550. [As to CoUison v. Girling, 4 Mj'. & C. 63, 9 CI. & Fin. 88, see Wigr. Wills, 43 & 48, n., 4th ed.] (o) 5 Nev. & M. 391, 4 Ad. & Ell. 76. [(i?) 3 Atk. 257.J 440 HOW FAR ADMISSIBLE. *420 throughout the will, in other places, "her" seemed to relate to the wife (q) . If, however, the context of the will presents an obstacle to the con- struing of the terms of description in their strict and most Words mav appropriate sense, a foundation is therebj' laid for the ad- f,fo*'™g^ mission of evidence showing that they are susceptible of primary ac- some more popular interpretation, which will reconcile them l^ncons^tency with, and give full scope and effect to, such seemingly re- of context. pugnant context. To this principle, it is conceived, may be referred the important case of Doe d. Beach ». Earl of Jersey (r), where a testatrix, after reciting a power reserved to her by her settlement, on her mar- riage with G. V. P., devised, subject to the estate for life of her husband therein, all that her Briton Ferry estate, with all the manors, advowsons, messuages, buildings, lands, tenements. Devise of the and * hereditaments thereto belonging, or of which *420 Briton Ferry the same consisted. In a subsequent part she added: "Also I give my Penlline Castle estate, which, as well as my Briton Ferry estate, is situate, Ij'ing, and being in the county of Gla- morgan," &c. [A claim was laid under this devise to certain lands which were neither in the parish of Briton Ferry nor in the county of Glamorgan, but in a parish in the county of Brecon. It appeared by special verdict that the Glamorganshire lands contained 30,000 acres, part whereof consisted of the' messuage and lands in the parish of Briton Ferry, comprising the whole of the parish, and that the Brecon lands contained 4,000 acres ; that there were six advowsons, of which the advowson of the parish of Briton Ferry was one, and one manor, and one undivided sixth of another manor in Glamorgan, and that there was no manor of Briton Ferry. Objections were made to the reception of certain evidence, consisting of old account-books, in which was the following entry : " Briton Ferry Estate in the county of Brecon ; " and of proof that the lands in question, together with the other property, had all gone by the name of the Briton Ferry estate. Abbott, C. J., delivered the opinion of the judges, namely, that the words " all that my Briton Ferry estate, with all the manors, &c.," found in the will of this testatrix, in which mention also was made of ' ' her Penlline Castle estate," denoted a property or estate known to the testatrix by the name of her Briton Ferry estate, and not an estate locally situate in a parish or township of Briton Ferry («) , and consequently that a question (q) Parol evidence is also inadmissible for the purpose of raising a. case of election, Cle- mentson v. Gandv, 1 Kee. 309, post, Ch. XIV. (r) 1 B. & Aid. 550, and 3 B. & Cr. 870. [(«) The same case had previously been before the Court of K. B. on a somewhat different point; and there Bayley, J., said it was clear that the devise could not be confined to that part of the estate which" was within the parish of Briton Ferry, for the testatrix spoke of manors and advowsons, and in that part of the estate there was no manor and only one ad- vowson : the devise, therefore, must extend to the whole of the Briton Ferry estate. 1 B. & Aid. 5S8. 441 *421 PAROL EVIDENCE, arising upon any particular tenement was properly a question of parcel or no parcel, and they therefore thought the several matters offered to be proved and given in evidence on the part of the defendant were admissible and ought to have been received. However,] on account of an imperfection in the special verdict, the House of Lords awarded a venire de novo. [So, in Doe d. Gore v. Langton (t), it was contended that the words Words ■ "thereunto belonging" must be taken in their primary ''thereunto^ seusB, the consequence of which would be to exclude the e ongmg. \g^^^g jjj qvxestion by reason of the words being correctly applicable in every particular to other lands. But the Court of K. B. thought that it was to be collected from the face of the will *421 itself, that *the testator had not used tlie disputed words in their primary sense (m), and held that extrinsic evidence was therefore admissible to show in what sense he had used them. Lord Tenterden, C. J., in delivering the judgment Of the court said: ''The extrinsic facts in this case leave no room to doubt that the testator intended his newly acquired propertj' to pass by his will as part of his Barrow estate ; but, nevertheless, it cannot pass unless that meaning can be collected from the will itself; and there are two clauses in the latter part of the will which appear to manifest that intention and to be sufficient to authorize us to put such a construction on the words thereunto belonging as will accord with and give effect 'to that inten- tion."] And here it may be observed, that if a testator make his will in a -As to trans- foreign language, or introduce therein certain terms or char- phermg^pecu- meters which are not understood by the court, recourse may liar charao- be had to persons conversant with the subject, for the pur- ' pose of translating the will, or deciphering the characters (x). --and ex- [And where the testator makes use of words which in their plaining local '- . n. .1 , , ■ . , or technical Ordinary sense are intelligible, but which are used by a cer- terms. ^^^j^^ class of persons to whom the testator belonged (y), or in a certain locality where he dwelt (z), in a peculiar sense, parol evi- dence may be given to show the fact of such usage, unless it also appears on the face of the will that the testator used the word in its (0 Stated post, Cli. XXIV. («) 2 B. & Ad. 693.] (x) Masters 0. Masters, 1 P. W. 421; ITorman v. Morrell, 4 Ves. 769; [Kell v. Chai-mer, 23 Beav. 195; Clayton v. Lord Nugent, 13 M. & W. 206, per Alderson, B.;J Goblet v. Beechey, 3 Sim. 24, 2 R. & My. 624, Wig. Wills, App. Mmning of contraction used by testator. — In the last case the question was, wheither the word "mod." occurring in the codicil to the will of a sculptor, applied to his models. The opinions of sculptors and persons sl. Sharp, 1 My. & K. 602, per Lord Brougham j Att.-Gen. v. Drummond, 1 Dr. & War. 367, per Sugden, C. ; Shore v Wilson, 9 CI. & Fin. 555. per Parke, B. ; Doe d. Thomas v. Beynon, 12 Ad. & Ell. 431; Blundell v. Gladstone, 3 Mac. & G. 692; Phillips v. Barker, 1 Sm. & Gif. 583; Wigr. Wills, Prop. V. But in Pilcher v. Hole, 7 Sim. 210, the V.-C. said he could not look at the price of stocks for the purpose of putting a construction on a will. How far it may be assumed that a testator, when he makes his will, has the material circum- stances in his mind, see Hopwood v, Hopwood, 22 Bcav. 494, 495; Re Herbert's Trusts, 1 J. & H. 121. If he shows by the will that he has taken a mistaken view of the circum- stances, that view must govern the construction ; see Hannam i). Sims, 2 De G. & J. 151.] (/) Vide Wigram on Wills, 2d ed. 75; a work which should be perused by every person who wishes to acquire an intimate acquaintance with this intricate subject. (o) Doev. Roberts, 5 B. & Aid. 407; [see Baddelev v. Gingell, 1 Exch. 319;] but learn the limits of this doctrine from Miller v. Travera, IM. & Scott, 342, 8 Bing. 244. may and ought to be taken into considera- will be considered in giving effect to his will, tion. The interpreter may place himself in Brearley v. Brcarley, 1 Stockt. 21. the position occupied by the testator when he i See, e.g. Griscom v. Evens, 40 N. J. mad^ the will, and from that point of view 402, 407; Goodhue v. Clark, 37 N. H. 525, discover what was intended. Brown v. 533; Tilton v. Tilton, 32 N. H. 257, 263; Thorndike, 15 Pick. 388; Postlethwaite's Gale d. Drake, 51 N. H. 78, 83. Appeal, 68 Pa. St. 477; Smith v. Bell, 6 Pet. « l.Greenl. Ev. § 287; Doe v. Martin, 68; Sicloff v. Redman, 26 lud. 251; Blake ». 1 N. & M. 512; Holsten e. Jumpson, 4 Esp. Hawkins, 98 U. S. 315, 324. But where the 189; Brown v. Thorndike, 15 Pick. 388; 1 intention of the testator is clear, neither his Phill. Ev. 736. Bituation, nor that of his family or property, » Allen v. Lyons, 2 Wash. C. C. 475. 444 HOW FAR ADMISSIBLE. *424 the general personal estate,] the testator having no such stock when he penned the bequest (h). Again, we discover traces of the doctrine in the rule (also hereafter discussed) which construes a gift to the children of a deceased person, or the children " now born " of a living person, as comprising illegitimate children, there being no legitimate child to sup- ply the gift with a more appropriate object ; [or a gift to the testator's nephews, as a gift to his wife's nephews, he having none, and there being, at * the date of his will, no possibihty of his ever *424 having any (i) :] and lastly, in the rule which reads a devise or bequest to apply to a person or thing imperfectly answering the name and description in the wiU, there being no person or thing more pre- cisely answering to them (h) . In these instances, and many more which might be adduced, the apphcation of the rules of construction evidently depends on and is governed by the state of extrinsic facts (Z). It would .be dangerous, however, to place this statement of the doctrine in the hands of the reader, unaccompanied by a g^^^^ ^j ^^^^ caution against the mistaken application of it to gifts com- at date of prising a subject or object, or a class of objects, which, by ^^t 'to jnflu. the rules of construction, is to be ascertained at the death ^noe con- of the testator, or at any other period posterior to the date of the will. In such cases, it would be manifestly . improper to admit the state of facts existing when the will is made to have any influence upon the construction : for instance, since a residuary bequest comprehends all the personal property of which the testator is possessed at the time of his decease, the absence of any given species of propertj', or of any property whatever, at the date of the will, to satisfy such bequest, ought not, in the slightest degree, to affect its construction, by extend- ing the bequest to property not strictly belonging to the testator, or over which he has not any power of disposition (m) . On the same [(Ji) Selwood V. Mildmay, 3 Ves. 306 ; see, on this much-discussed case, Miller v. Travers, vhi supra (where Tindal, C. J., refers to the head *' falsa demonstratio non nocet " ). In Ling- drcn V. Lingdren, 9 Beav. 358, Lord Langdale, M. E., followed it, aad snid of it, ' ' The absence of the fund purported to be given showing that a specific legacy was not intended, other evi- dence was admitted to show how the mistake arose; and this being clearly shown, it was held that the legatees were entitled to pavment out of the general personal estate." See also Wigram, Wills, pp. 102, 103, 164, 167; Auther v. Auther, 13 Sim. 422, where the V.-C. took the context for bis sole guide. If in another part of the will the testator correctly described the subject, the inference that he meant to include it in the incorrect description would be rebutted. Waters ». Wood, 5 De G. & S. 717. (i) Sherratt v. Mountford, L. R. 8 Ch. 928. (t) King's College Hospital v. Wheildon, 18 Beav. 33.] {/) Observe that, in all the above cases, the parol evidence is not adduced to .show that the testator actually intended the devise to have the operation which is given (o it, but merely to supply facts from which the court infers such to be the intention; and this inference would not be allowed to be controlled by the production of evidence showing that the construction thus put on the will is at variance with the testator's real intention. [See Stringer v. Gardiner, 27 Beav. 35, 4 De G. & J. 468; Sherratt v. Mountford,- L. R. 8 Ch. 928. (m) Stephenson «. Heathcote, 1 Ed. 38; Cave «. Cave, 2 Ed. 144; Sibley v. Perrv, 7 Ves. 532; Lord Inchiquin ti. French, Amb. 40; Abbott i;. Middleton, 4 H. L. Ca. 257 (per Lord St. Leonards); Wigr. Wills, p. 81, 3ded.; Doe v. Gillard, 5 B. & Aid. 788, is contra; aed qu. But it is otherwise if it appears by the will that the testator is estimating the amount of his property and its suificiency for the payments he directs; Barksdale v, Gilliatt, 1 S. W. 565; 445 *425 PAROL EVIDENCE, principle, If a testator bequeaths all the stock of a particular denortiina- tion, of which he may be possessed at the time of his decease, no argu- ment is supplied for extending the bequest to stock of any other denom- ination by the circumstance that the testator had at the making of the will no stock answering to the description (n) . Again, as a *425 devise or bequest to the * children of a living person as a class will comprise all who come in esse before the death of the testa- tor, the fact of there being no child properly so called, i.e. no legiti- mate child, at the date of the will, raises no necessary inference that the testator had in his contemplation then existing illegitimate chil- dren (o). [And in every case it must be remembered, that, whatever the surrounding circumstances, it is still the will that is to be construed. In the words of an eminent judge (p), " when the court has possession of all the facts which it is entitled to know, thej' will only enable the court to put a construction on the instrument consistent with the words ; and the judge is not at liberty, because he has acquired a knowledge of those facts, to put a construction on the words which they do not properly bear."] And it is. material to observe that the stat. 1 Vict, which (we have Effect of seen) makes the will speak as to both real and personal es- 1 Vict. c. 26. tate from the death of the testator, will tend greatly to nar- row the practical range of the rule which authorizes the apphcation of words to a less appropriate subject, on account of the non-existence of one strictly and in all particulars answering to those words. If, therefore, a testator, bj- a will made or republished since 1837, should devise all his lands in the parish of A., the fact of his theii not having lands in that parish will supply a much less forcible and conclusive argument than heretofore, for holding the words to appty to lands in a contiguous parish, seeing that a testator not only may extend his devise to after-acquired estates, but that a devise is to be construed as speak- ing at his death, unless the contrary appears ; so that the testator may have contemplated, and is to be presumed to have contemplated, the future acquisition of lands in the parish in question, to satisfy the terms of the devise in their strict and proper acceptation (^). Colpoys V. Colpoys, Jac. 451, 457; and see Singleton v. Tomlinson, 3 App. Ca. 418, 425. And as to real estate, sec Stanley i'. Stanley, 2 J. & H. 503 ; with wliich compare Davenport V. Coltmaii, 12 Sim. 605; Tennent v. Tennent, IJ. & Lat. 384. (re) It is otherwise in the ease of ,a specific bequest of stock belonging to the testator at the date of the will. Att.-Gen. v. Grote, 3 Mer. 316, 2 R. & Mv. 699 ; Sayer v. Saver, 7 Hare, 380, 3 Mae. & G. G07; Bovs w. Williams, 3 Sim. 56-3, 2 R. &"Mv. 689; Horwood v. Griffith, 4 D. M. & G. 708; I'onnereau v. Povntz, 1 B. C. C. 472, cit. 6 Ves. 401. (o) Post, Ch. XXXr. ; and see Doe d. Allen v. Allen, 12 Ad. & Ell. 451. Ip) Per Susden, C, Att.-Gen. v. Dnimmond, 1 D. & War. 367. And see per Cotton, L. J., Everett v. Everett, 7 Ch. D. 433, 434. The expression '• surrounding circumstances " is some- times strained to incluile matters wholly outside the scope of the rule, as, instructions given by the testator for preparing his will, Birks v. Birks, 4 Sw. & Tr. 23, 34 L. ,1. Prob. 90 (referred to another ground, ante, 175 n.), or declarations of intentions by the testator, Eo Kuding's Settlement, L. R. 14 Eq. 266. (q) See however Lake v. Currie, 2 D. M. & G. 536 ; Nelson v. Hopkins, 21 L. J. Ch. 410 j ante, pp. 326 et scj. ; post, Ch. XX. ss. 4, 6.] 446 HOW PAK ADSnSSIBLE. *427 r Of course, parol evidence is admissible (and that, without intrench- ing on the doctrine of Doe v. Oxenden) , in order pai-oi evi- to * ascertain what is comprehended in the terms of *426 dence admis- * sible to show a given description, referring to an extrinsic fact.^ whatiscom- Tlius, if a testator devise the house he Uves in(r), or his Tglveii'de-''' farm called Blackacre(s), or the lands which he purchased scriptioa. of A., parol evidence must be adduced to show what house was occupied by tlie testator, what farm is called Blaekacre, or what lands were pur- chased of A. ; such evidence being essential for the purpose of ascer- taining the actual subject of disposition. The distinction obviously is, that although evidence dehors the will is not admissible, to show that the testator used his terms of description in any peculiar or extraordinary sense, j-et it may be adduced to ascertain what the description properly comprehends.'* Of this principle we have a useful example in Sanford v. Raikes (t), decided by Sir W. Grant, a judge whose exposition of the principles of law was ever marked by a perspicuity and felicity of illustration peculiarly his own. A testator b^^ codicil devised in these words : " I give the liouse in Sej-mour Place, which I have given a memorandum of agreement to purchase (and which is to be paid for out of timber, which I have ordered to be cut down) , to the Rev. John Sanford." It hap- pened that the testator had shortly before entered into an pg{„rence to agreement to purchase the house in question for 7,350/., an extrinsic and had, two da3-s after that contract, given an order in '"="™'^'^ ■ writing to his steward, to cut down timber on a particular estate, to the amount of 10,000?. One of the objections made by the heir to this devise was, that the codicil did not refer to any particular timber, and could not be made good by evidence aliunde ; and reliance was placed upon the cases deciding that a will to incorporate another instrument must so describe it, that the court could be under no mistake. But the M. R. Conclusively answered this reasoning. "I had alwaj's understood," he observed, " that where the subject of a devise was described bj- reference to some extrinsic fact, it was not merely compe- tent, but necessary, to admit extrinsic evidence to ascertain the fact ; and through that medium, to ascertain the subject of the devise. I do not know what this has to do with cases where there is a reference to some paper, which is to make part of the will. There it may be con- sidered that the will itself must specify the paper that is to be incor- porated into it. Here, the question is not upon the devise, but upon the * subject of it. Nothing is offered in explanation of *427 the will, or in addition to it. The evidence is only to ascertain what is included in the description which the testator has given of the ()■) Doe (1. Clements ». Collins, 2 T. R. 498. (s) Goodtjtle «. Southern, 1 M. & Sel. 299 : see also Buck d. Whallej' v. Newton, 1 B. & P. 53. (t) 1 Mer. 646. J < > Nichols o. Lewis, 15 Conn. 137. 2 Burthe ». Denis, 31 La. An. 568. 447 *428 PAROL EVIDENCE, thing devised. Where there is a devise of the estate purchased of A., or of the farm in the occupation of fi., nobodj' can tell what is given, until it is shown by extrinsic evidence, what estate it was that was purchased of A., or what was in the occupation of B. In this case, the direction with regard to payment for the house amounted in effect to a devise of so much of the produce of the timber ordered to be cut down as should be sufficient to pay for the house. What is there in the fact here referred to, namely, an antecedent order for cutting down timber, that makes it less a subject of extrinsic evidence, than such a one as I have alluded to ? The moment it is shown that it was a given number of trees growing in such a place, or 10,000Z. worth in value of the timber on such an estate, that the testator had ordered to be cut down, the subject of the devise is rendered as certain, as if the number, value, or situation of the trees, had been specified in the will.'' So, in Onglej' v. Chambers («) , where a testator devised the rectory or parsonage of M., with the messuages, lands, tenements, tithes, hereditaments, and all and singular other the premises thereunto belonging, with their and every of their rights, members and appur- tenances ; it was held, that lands, and a messuage (in addition to the Kemark on parsonage-house) , in the same parish, which had been ac- Ongley*. quired by the owners of the rectory about two centuries am ers. ^^^ ^^^ j^^^ heen uniformly demised and occupied with it since that period, and had been so purchased by and conveyed to the devisors passed: Lord Gifford, C. J., pbserved, that the expression was " messuages ; " whereas, strictly speaking, there was but one mes- suage belonging to the rectory, namely the parsonage-house. The having recourse to the leases and other extrinsic evidence, to show what lands had been usually enjoyed with the rectory, was objected to on the authority of Doe v. Brown and the class of cases before stated ; but the distinction between the cases is obvious. Here it was a ques- tion of parcel or no parcel, the description referred to the fact, and it was governed bj- the same principle as the case suggested bj^ Sir W. Grant of a devise of lands in the occupation of A. [In Ricketts v. Turquand (x) , a testator who had purchased *428 a * house and lands, which, together, were geuerallj- called and known as the "Ashford Hall estate," devised as follows: J. ■ f " As it is mj' wish and desire that all my e^state in Shrop- " my estate shire, called Ashford Hall, should be sold, I do, there- called A." fQ^e, give and devise the same unto" A. and B., "in trust to sell," &c. Parol evidence was admitted to show what was in- cluded by the term " mj' estate called Ashford Hall." The distinction between this case and Doe v. Oxenden was clearly pointed out by Lord (m) 8 J. B. Moo. 665, 1 Bing. 483. Ux) 1 H. L. Co. 472; see also Doe d. Gore v. Laiigton, 2 B. & Ad. 680; Doe v. Jersey, 1 B. & Aid. 550, 3 B. & Cr. 870; Goodtitle v. Southern, 1 M. & Sel. 299 ; Purchase!). Shallis, 2 H. & Tw. 354; Webb v. Byng, 1 K. & J 580 (as to which vide ante, p. 329 n.); Gauntlett ». Carter, 17 Beav. 686; Ross v. Veal, 1 Jur. N. S. 751; Harrison v. Hyde, 4 H. & N. 805.] 448 HOW PAR ADMISSIBLE. *429 Cottenham, who said: "If a testator describes lands in a particular parish, or in a particular locality, j'ou cannot go into evidence to show he meant by the general appellation to include something out of it. You cannot do that without contradicting the terms used. Here is a term which includes more or less land, according to what was meant by the term used, and all we are in search of is the particular meaning of the expression which is used." The distinction between a devise of "my estate of Ashton," and a devise of "my estate calkd Ashford Hall," is, upon the words, not very perceptible. But in Doe v. Oxen- den the word of was held equivalent to a<, a construction which makes it easier to refer the cases to the opposite principles which governed them, and which are in themselves clear enough.] Upon the same principle, of course, it is not essential to the validity of a gift, either of real or personal estate, that the person who is the intended object of the testator's bounty should be actually pointed out on the face of the will ; it is enough that the testator has gujgjjjgnt jf provided the means of ascertaining it, according to the testator pro- maxim, " id certum est quod certum reddi potest." Nor is of ascertain- it material that the description makes the object of gift to '"g the object depend upon circumstances or acts of persons which are future and contingent, or even upon the future acts of the testator himself, though this is sometimes resisted as contravening the princi- ple of the statutory requisition of attesting witnesses. There seems however to be no valid ground for the objection. Everj' description must more or less involve inquirj' into extrinsic facts ; and there is no reason why the ascertainment of the objects may not depend as well upon the acts or conduct, past or future, of the testator, as upon any other contingent cu-cumstance ; [provided only the acts are not testar- mentary.] Hence it was decided in Stubbs v. Sargon (y), that a devise in favor of the persons * who might be partners of the *429 testatrix, or to whom she might sell her business, was valid ; Lord Langdale observing that if the description be such as to distin- guish the devisee from every other person, it is sufficient, without entering into the consideration of the question, whether the description was acquired by the devisee after the date of the will or bj- the testa- tor's own act in the course of his aflFairs, or in the ordinary management of his property. [The admission or rejection of parol evidence is commonly said toi depend in all cases on the canon, which rejects it in the case Rule as to of a patent ambiguitj', or " that which appears to be ambig- F^t*™'amb'- uous upon the deed or instrument,'' and admits it in the guities, how case of a latent ambiguity, or " that which seems certain and sfve'^in dlcid- without ambiguity for anj'thing that appeareth upon the ins ™ admis- deed or instrument, but there is some collateral matter, out- evidence. (y) 2 Kee. 265, [3 My. & Cr. 507, ante, p. 94. VOL. 1. 29 449 *430 PAROL EVIDENCE, side of the deed, that breedeth the ambiguity " (z).^ In the latter case, ambiguity being raised by parol evidence, may, it is said, be fairly removed by the same means. But upon examination the maxim proves not to be an universal guide ; for, on the one hand, there are many recognized authorities for the admission of parol evi- dence to explain ambiguities appearing on the face of the will (a) , while, on the other hand, the existence of a latent ambiguity will cer- tainly not, as appears sometimes to have been supposed, warrant the admission in all cases indiscriminately of parol evidence to show what the testator meant to have written as distinguished from what is the meaning of the words he has used (6). It is to the admissibility of this species of evidence that attention is now to be turned. To say that such evidence is admissible, because the ambiguity complained of has been raised by the extrinsic facts, is to lose sight of the essential differ- ence between the nature and effect of the evidence which raises, the am- biguity, and that by which it is to be removed ; for the former is confined to a development of facts with reference to which the will was written, and to which the language of the will expressly or tacitlj- re- fers ; and, therefore, it lies within the strict limits of exposition, which it cannot be denied that the latter transgresses (c) . To render the proposition tenable, it must be supposed to assert only that, if *430 an ambiguity is introduced into an otherwise unambiguous * will by parol evidence of the state of the testator's family-, or other circumstances, that ambiguity may be removed by further evidence oft the same nature (d). But if this interpretation of the rule be admitted, all distinction between patent and latent ambiguities is lost, for in every case the judge by whom a will is to be expounded is entitled to be placed, by a knowledge of all the material facts of the case, as nearly as possible in the situation of the testator when he wi'ote it. The conclu- sion is either that the distinction taken by the canon between latent and patent ambiguities is an unsubstantial one, or that the canon, in its second branch, asserts the admissibility of evidence to show the testa- tor's intention (as distinguished from the meaning of his written words) ; and that, consequently, if true, its application must be con- fined to a special class of cases. It remains to inquire in what eases, if any, such evidence is admissi- Evidence of ble. Suppose then that evidence has been given of all the when'admis- ^^^^^^^ f'^cts and circumstances of the case, and that these Bible. have ultimately raised] an ambiguity by disclosing the exist- (2) Bacon's Maxims, Reg. 23. (a) Doe d. Gord v. Needs, 2 M. & Wels. 129; Doe d. Smith v. Jersey, 2 B. & B. 653 ; Fcn- nereau v. Poyntz, 1 B. C. C. 472; Colpoys ». Colpoys, Jac. 451, Wigr. Wills, 65, 66, 178, whence the views expressed in the text have been adopted. (6) See cases, an^e, p. 409, n. (i). (c) See Wigr. Wills, 121; per Romilly, M. R., Stringer v. Gardiner, 27 Beav. 38. (d) Per Alderson, B., 13 M. & Wels. 204. 1 This is pronounced, the clearest definition in the books by the court in South Newmarket Sem. V. Peaslee, 16 N. H. 317, 327. 450 HOW" FAE ADMISSIBLE. *431 ence of more than one object or subject to which the words are equally applicable.^ The uncertainty as to which of these was in the testator's contemplation would, if the investigation stopped here, necessarily be fatal to the gift. [Under these peculiar circumstances, however, dec- larations of the testator or other direct evidence of his intention are admissible] to clear up the ambiguity, by pointing out (if they can) the actual subject or object of gift, amopg the several properties or persons answering to the description.^ [Of this nature are the examples given by Lord Bacon, in illustration of the maxim, " Ambiguitas "Equivoca- verborum latens veriflcatione suppletur ; nam quod ex facto ''""■" oritur ambiguum veriflcatione facti tollitur ; " * and are styled by him cases of equivocation (e). J Thus, where a testator devises his manor of Dale, and it is found that he had at the date of his wQl two manors. North Dale ^g^^i ^i,gjg and South Dale, evidence may be adduced to show which ot there are two them was intended (/).* Again, if a testator, having two object an- closes in the occupation of A., devises all that his close in swering to A.'s occupation, evidence is admissible to prove which of the two closes he meant to devise.^ The same principle, of course, is applicable (and it has been *most frequently applied) to the objects of a devise. Thus, in *431 Lord Cheyney's case (g), it was resolved that if a man have two (e) See, as to the meaning of the word ambiguity, Wigr. "Wills, pi. 210; Cic. Q. Tuso. m. 9.] (/) SeelM.&Sc.'343. (j) 5 Rep. 68 b. ^ Dunham «. Averill, 45 Conn. 61, 68; Street, Philadelphia; the testator had no Beardsley v. Amei ican Miss. Soc., ib. .327 ; Bur- property' in Fourth Street, but had a house and net I'. Burnet, 30 N. J. Eq. 595; Griscom ». lot in Third Street. Parol testimonj' was ad- Evens, .40 N. J. 402, 407. The testator hav- mitted to explain the ambiguity. ' Allen v. ing used the phrase '"my two farms," evi- Lyons, 2 Wash. C. C. 475. See' Riggs v. deuce may be introduced to show the situa- IVfyers, 20 Mo. 239. So where a testator de- tion of the land, and the manner in which it yised "thirty-six acres, more or less, in lot had been used and treated, in order to ascer- 37, in 2d diyision in Barnstfead," and there tain whethera disconnected piece of woodland was no such lot as 37 in the 2d division in was in fact a part of one of the " two farms," that town, but there was lot No. 97 in that so as to pass under the devise. Black v. Hill, division, a part of which the testator died 32 Ohio St. 313. See Rj-erss v. Wheeler, 22 possessed of; — it was held that there was a Wend. 148. latent ambiguity in the devise which might 2 See Wilson s. Fosket, 6 Met, 404, 405; be explained by parol evidence. Winkley ». Lowe V. Carter, 2 Jones, Eq. 377 ; Mitchell v. Kaime, 32 N."H. 268. So where a testator Mitchell, 6 Md. 224. devised all his messuages and lands in the 3 Doe«. Roe, 1 Wend. 541; Storer ». Free- parish of D., parol evidence was admitted to man, 6 Mass. 440, 441; Watson t). Boylston, show that, although in point of fact some part 5 Mass. 417; Stackpole «. Arnold, 11 Mass. of said land was situate in the parish of W., 23, 30; Webster v. Atkinson, 4 N. H. 21; yet that, at the date of his will and death, that Jackson v. Sill, 11 Johns. 201; Peisch v. part was generally reputed to lie in D. An- Dickson, 1 Mas. 10, U; Mann ». Mann, stee u. Nehns, 1 H. & N. 225. 1 Johns. Ch. 231; Vernor v. Henry, 3 Watts, ^ Where the description in a will of the 385 ; Tudor v. Terrel, 2 Dana, 49 ; Edwards «. person or thing intended is applicable with Richards, 1 Wright, 597; Hand ». Hoffman, legal certainty to each of several subjects, ex- 3 Halst. 78; Baugh v. Read, 1 Ves. (Sum- trmsic evidence is admissible to prove which ner's ed.) 257, n. (6), and cases cited; Pat- of such subjects was intended bv the testator, terson v. Leith, 2 Hill, Ch. 16 ; Breckenridge 1 Greenl. Ev. § 290. See 1 Pliill. Ev. 532, n., D. Duncan, 2 A. K. Marsh. 51; Comfort v. 939; Jackson v. Goes, 13 Johns. 518; Pritch- Mather, 2 Watts&S. 450; Haydon «. Ewing, ard p. Hicks, 1 Paige, 270; Pinson ». Ivey, 1 B. Hon. 113; Connolly t'. Pardon, 1 Paige, 1 Yerg. 296; Wnsthoff v. Dracourt, 3 Watts, 291; Capel v. Robarts, 3 Hagg. 156. 243; Button ». American Tract Soc, 23 Vt. * Devise of a house and lot in Fourth 336; Gass v. Ross, 3 Sneed, 211. 451 *431 PAROL EVIDENCE, sons, both baptized by the name of John, and, conceiving that the elder (who had been long absent) is dead, devise his lands, bj' his will in writing, to his son John, generally, and in truth the elder is living ; in this case the younger son may produce witnesses to prove his father's intent, that he thought the other to be dead, or that he, at the time of the will made, named Iiis son John the younger ; for, ol)serves Lord Coke, no inconvenience can arise, if an averment in such case be taken (h) ; because he who sees such will, ought at his peril to inquire which John the testator intended ; which may easily be known by him who wrote the will, and others who were privy to his intent. So, in Jones v. Newman (i), where a testatrix devised to John Chier Evidence ad- of Calcot. There were two persons, father and son, of that mitted to name, and evidence was admitted to show which was in- snow which -t \ /^ of two per- tended. One of them had subsequently died in the tcsta- ing^to'tive^'" trix's lifetime ; but, of course, that could not influence the name was in- construction.^ [So, wliere a testator bequeathed a legacj' ^ ^ ' . to "W. 'R., his farming man," and it appeared he had two of testator farming men of that name, evidence of tlie testator's decla- admitted. rations in favor of one of them was admitted (^')-] Again, in Doe d. Morgan v. Morgan (Z), where a testator devised cer- tain propertj' to his nephew Morgan Morgan, and then in the same will devised other property to his nephew Morgan Morgan, of the village of Mothvey. It appeared that the testator had two nephews of this name, one of whom lived at Mothvej', and the other elsewhere ; it was con- tended that as the first devise was to Morgan Morgan simpliciter, and the second devise to Morgan Morgan of Motlivey, it was to be pre- sumed that the testator in making this distinction had different persons in his contemplation, and that, this being apparent on the face of the will, parol evidence to the contrary was inadmissible ; but the court held that evidence of the testator's oral declarations, made at tlie time of the will, was admissible.^ ^h) Bat the effect of the doctrine is to render it necessary to the completeness of a title derived under a devisee, that it sliould be ascertained that there is not more tlian one person answering to the description ; but this is seldom attended to in practice, unless some discre- pancy occurs between the terms of the will and the actual name or addition of the claimant. (»•) W. Bl. 60. [(it) Reynolds v. Whelan, 16 L. J. Ch. 134 J (I) 1 Cr. & M. 235. 1 See Matter of Cahn, 3 Eedf. Sur. 31; evidence that James was not the nephew but Connolly v. Pardon, 1 Paige, 291; Stokeley a grandnephew of the testator, and, instead V. Gordon, 8 Md. 496. Iii Smith «. Smith, of being the son, he was the grandson of 1 Edw. Ch. 189 ; S. C. 4 Paige, 271, a legacy Elizabeth. Robert, on the other hand, was a was left to Mary S., wife of Nathaniel &. nephew of the testator, and the only son of Mary S.'s husband was named Abraham, and Elizabeth who was living at the date of the Sarah S.'s husband was Nathaniel S. Upon will. Upon the extrinsic evidence produced, extrinsic evidence and circumstances, it was the court held James to be entitled. See held that Marv S. was entitled. In Vernor Jackson v. Stanley, 10 Johns. 133; Jackson «. Henry, 3 Watts, 385, the testator had w. Boneham, 15 Johns. 226; Jackson ;;. Hart, given a legacy to James Vernon Henry, de- 12 Johns. 77; Hall v. Leonard, 1 Pick. 31; scribing the legatee as his nephew, and son Stokeley v. Gordon, 8 Md 496. of Elizabeth, a deceased sister of the testator. 2 Tucker v. Seaman's Aid Society, 7 Met. James Vernon Henrv claimed the legacy, as 208, 208. also did Robert R. 'Osxay. It appeared in 452 HOW FAR ADMISSIBLE. *433 [*In Doe d. Gord v. Needs (m), there was a devise to George *432 Gord, the son of John Gord ; another to George Gord, the son of George Gord ; and a third to George Gord, the son of Gord. The Court of Exchequer held, that evidence of the testator's declarations, that he intended George Gord, the son of George Gord, to take the property devised to George Gord, the son of Gord, was admissible : that it was clear the testator had selected a particular object of his bounty ; though if there had been a blank before the name of Gord the father, that might have made a difference : that if there had been no mention in the will of any other George Gord, the son of a Gord, evi- dence of the testator's declarations would undoubtedly have been admis- sible, upon the authorities, which were all characterized by the fact that the words of the will did describe the object or subject intended, and the evidence of the testator's declarations had not the effect of vary- ing the instrument in any way whatever ; it only enabled the court to re- ject one of the subjects or objects to which the description applied, and to determine which of the two the devisor understood to be signified by the description which he used in the will : that the mention in other parts of the will of two persons, each answering the description of George the son of Gord, had no more effect for this purpose than proof by extrinsic evidence of the existence of such persons, and that they were known to the devisor, would have had : and that though the claim- ant under the devise in question was more perfectlj' and fully described in another part of the will, still he was correctly, however imperfectly, described by that devise. In Doe d. Allen v. Allen («), a testatrix devised her land to her brother T. A. for his life, and after his decease to John A., grandson of her said brother T. A., his heirs and assigns, charged, nevertheless, with the bequest of lOOZ. to each and every of the brothers and sisters of the said John A. At the time of making the will, there were two grandsons of T. A., each named John ; but one of them, the lessor of the plaintiff, had brothers and sisters ; the other, the defendant, had none : it was held, that the bequest to the brothers and sisters of the said John A. did * not contain a description of the devisee, *433 so as to exclude extrinsic evidence in favor of the defendant's claim, as it would have applied to after-born brothers and sisters ; and that a declaration by the testatrix, of her intention in the defendant's favor, was admissible.] On the other hand, in Doe d. Westlake v. Westlake (o) , where the devise unto " Matthew Westlake my brother, and to Simon Urn) 2 M. & Wels. 129. See also Phillips v. Barker, 1 Sm. & Gif. 683. (re) 12 Ad. & Ell. 451. In Bennett v. Marshall, 2 K. & J. 740, the case of two persons, one ■with several Christian names, the other with one only, that one being identical with the first Christian name of the former, was considered to be the same as the case of two persons bearing the same name. It is not stated however what was the nature of the parol evidence admitted. See also per Malins, V.-C, Webber v. Corbett, L. R. 16 Eq. 518.] (o) 4 B. & Aid. 57; [see also" Douglas i'. Fellows, Kay, 114; Webber v. Corbett, L '" " Eq. 518; and cf. Fleming v. Fleming, 1 H. & C. 242. 463 *434 PAKOL EVIDENCE, ConiTO, where Westlake my brother's son; "and it appeared by the evi- preferring dence, that the testator had three brothers, Thomas, Richard, forded b**the ^"*^ Matthew, each of whom had a son named Simon ; will; ' Thomas and Richard were mentioned in previous parts of the will : the Court of King's Bench held (and that in perfect consist- ency with tlie preceding cases (p)), that the fact of there being several brothers' sons named Simon did not raise a latent ambiguity, so as to let in evidence of oral declarations made by the testator respecting his intention ; it being clear, on the face of the will,^ that the nephew in- tended was the son of Matthew. " My brother's son" evidently meant the son of that brother who was then particularly in his mind. [And the result would doubtless be the same where the evidence . of surrounding circumstances disclosed reasons for the testa- rounding cir- tor preferrmg one person to another of the same name (q) : cumstances. ^^^ ^^^^^ jg properly no " ambiguity" until all the facts of the case have been given in evidence, and found insufficient for a definite decision (r).] There seems to be no doubt, though it has never been distinctly rt, „ decided, that the principle of the preceding cases applies brother," to a devise to a person sustaining a given character, as " to tetor'havhiK ^^ brother, son," &c., without specification of name ; so several that if the fact should happen to be, that there were more brothers. persons than one to whom the description applied, parol evidence would be admissible to show which of them was the intended object of gift ; for, as the uncertainty does not appear until the parol evidence discloses the plurality of persons answering to the terms of the will, it seems to be an instance of that [kind of] ambiguitas latens, [to remove which evidence of intention is permitted («).] In *434 * several reported cases, indeed, devises of this kind have failed, on account of the uncertainty of the object ; but in none of them does parol evidence appear to have been ofiered to remove the am- biguity. Thus, in Dowset v. Sweet (<) , a bequest to the son and daughter of W. W. was held to be void as to the son, on account of there being more than one. So, in Doe d. Hayter v. Joinville (m), one of the grounds on which the devise to the testator's "brother and sister's family" failed was, that there were children of two sisters of the testator, one living and one dead, and it did not appear which of them was intended. (p) See Wigram. Wills, pi. 144. (?) Jefferieii v. Michell, 20 Beav. 15. (r-) "Wigram, "Wills, Prop. VI. and VII. (s) See ace. per Lord ThurloW, 1 Ves. Jr. 415 ; and Hampshire v. Peirce, 2 Ves. 216 — the gift to "the four children of B." — as to which case, however, see 6 M. & Wei. 371. Note the difference between this case and that of a gift to " one of the sons, brothers, &c. of A.," 2 Vern. 625. But a devise " to one of my cousin A.'s daughters that shall marrv with a Nor- ton within fifteen years " has been held to mean the daughter who shall ^rs« marry a Norton, and consequently a good devise. Bate v. Amherst, T. Raym. 82. See also Ashburner v. Wilson, 17 Sim. 204.] (0 Amb. 175. («) 3 East, 172. 1 Wootton V. Redd, 12 Gratt. 196. 454 HOW FAE ADMISSIBLE. *435 Sometimes.it happens that one part of the description applies to each of several claimants in common, andi another part to neither _. of them ; as in the case of Careless «. Careless (v), where the of description bequest was to " Eobert Careless my nephew, the son of gP^hof'" Joseph Careless." It appeared by the evidence that the ^ several per- testator had no brother named Joseph, but he had two to"nefther'"' brothers, John and Thomas, both mentioned in the will, evidence ad- each of whom had a son named Robert. These nephews were the respective claimants ; Thomas's son reljdng on the fact, that in other, parts of his will the testator had described Robert, the son of John, in a different manner, sometimes calling him his nephew Robert simply, without any further designation, and sometimes rightly Eobert the son of John. By the parol evidence which was adduced on both sides, it appeared that the testator was intimatelj'^ acquainted with John's son Robert, but that Thomas's son lived at a distance, and was almost unknown to him, the testator having been introduced to him but once ; and it was even doubtful whether the testator knew that his brother Thomas had a son).] Thus, Sir John Strange (j) , in citing a case where the executor con- stituted in a will was, " my nephew Eobert New," which in the engross- ing was written "Nunc," and parol evidence was admitted, and thereupon New was declared the person meant, observed, that this would hardly have done, if it had not been for the relative words " my nephew," and its appearing that New was the testator's nephew, and that he had no such nephew as Eobert Nune. [And in Miller v. Travers {r) , where a testator devised all his free- hold and real estates whatsoever, situate in the county of g^,^g j,^,^ ^^ Limerick, and in the cit}' of Limerick, to trustees and their to subject of heirs. At the time of making his will, the testator had no ^' real estate in the county of Limerick, but he had considerable real estates in the county of Glare: and it was held by Lord Brougham, L. C, as- sisted by Tindal, C. J., and Lord Lyndhurst, C. B., that evidence to prove that the testator intended his estates in the county of Clare to pass by the de^-ise, and that the word Limerick was inserted by mistake in- stead of Glare, was not admissible.] And in no instance has a total blank for the name been filled up by parol evidence («) .^ In such cases, indeed, there is no cer- Total blanks tain intent on the face of the will to give to any person : the j^'bTsllp-"''' testator may not have definitively resolved in whose favor plied. to bequeath the projected legacy (/) . (p) Per Lord Abinger, Doe «. Hiscocks, 5 M. & Wels. 369.] (y) Hampshire v. Peirce, 2 Ves. 218. [(»•) 8 Bing. 244, 1 M. & So. 342.] The judgment of Tindal, C. J., contains a full and able examination of the authorities. [See also Okeden v. Clifden, 2 Russ. 309; Re Clergv Societ)', 2 K. & J. 615 ; Re Peel, L. R. 2 P. & D. 46 ; Barber v. Wood, 4 Ch. D. 885. Beaumont v. Fell, 2 P. W. 141, 2 Eq. Ca. Ab. 366, pi. 8. where a legacy to " Catherine Earnley ' ' was, upon evidence of intention, held well bequeathed to Gertrude Yardley, is overruled (5 H. L. Ca. 168) ; unless it can be deemed a case of nickname — ■ which is questionable. The same may be said of Masters v. Masters, 1 P. W. 425, where ona legacy to "Mrs. Sawyer" inquirywas directed whether Mrs. Swapper was the person intended. (s) Bavliss. Att.-Gen., 2 Atk. 239; Ulrich «. Litchfield, lb. 372; Taylors. Richardson, 2 Drew. 16. (0 Per Parke, B., Doe v. Needs, 2 M. & Wells. 139.] 1 If the description of the person or thing saus. 2J5; Tucker v. Seaman's Aid Soc, 7 be wholly inapplicable to the subject intended, Met. 188; Hyatt «. Pugsley, 23 Barb. 285. or said to be intended by it, evidence is inad- 2 Tucker v. Seaman's" Aid Soc, 7 Met. missible to prove whom or what the testator 205; Wigram on Extrinsic Ev. Prop. 6, pi. really intended to describe. His declarations 121, p. 88; Prop. 7, pi. 181, p. 143; 1 Phill. of intention, whether made before or afterthe Ev. (Cowen & Hill's ed.) 539, 540, and notes; making of the will, are alike admissible. 1 Greenl. Ev. Pt. 2, c. 15, § 301, and notes; Wigram on Wills, pi. 104, 194, 195; 1 Greenl. Miller w. Travers, 8 Bing. 244; Ram on Wills, Ev. § 290. See Rothmahler v. Myers, 4 De- c. 3, p. 32, 34, 2 Williams, Ex. (6th Am. ed.) 461 *442 PAROL EVIDENCE, HO"W FAK ADMISSIBLE. The effect of partial or imperfect descriptions, however, has often Partial come under consideration. In Hunt v. Hort (m) , where the blanks sup- bequest was to Lady , Lord Thurlow considered it ^'^ ' as equivalent to a total blank, and, therefore, that the name *442 * could not be supplied by parol evidence. But in Abbot v. Massie (x), where the bequest was to Mr. and Mrs. G., Lord Loughborough directed an inquiry as to who Mrs. G. was. Of course, if there had been more than one person answering to the imperfect de- scription in the wiU, and the evidence had failed to point out which of them was the intended object of the testator's bounty, the bequest would, in both the preceding cases, have been void for uncertainty. [At the conclusion of his judgment in Blundell v. Gladstone, the V.-C. Evidence ^^^^ ^^ decided the case upon the words of the will, coupled sometimes with that evidence only which had been given as to the state though im- of the "Weld family at the date of the will, and which he thought material. ^^^ f^g ^^ly p^^.^ ^y ^^^ evidence which ought to he received (j/) , But besides that evidence there was parol evidence ( z) of the testator having, both before and after making his will, and even after correction of his mistake, repeatedly called the possessor of Lul worth by the name of Edward Weld. This evidence had been received in the Master's office, and in delivering the opinion of the judges in D. P. (where the suit was carried), Parke, B., said, they thought it was rightly re- ceived ( a) . Hence it is to be inferred that evidence (to which, upon the principles discussed in this chapter, there is per se no objection) of facts connected with the case, and which maj' bj' possibilit}^ influence the construction of the wiU, is admissible, although ultimatel}- it is found to be immaterial and has to be excluded from consideration (6).] (u) 3 B. C. C. 311; see also 1 M. & So. 351. (x) 3 Ves. 148; [and see Re De Eosaz, 2 P. D. 66. (y) 11 Sim. 488. (2) lb. 470. (n) 1 H. L. Ca. 778, nom. Camoys v. Blundell. (4) See also Lowe v. Lord Huntingtower, 4 Enss. 632, n.; SaVero. Saver, 7 Hare, 381, Wigr. Wills, pi. 103.] . a . . . 1 pp. 1153, 1154. It was remarked, in a gen- contracting party has been omitted, the omis- eral way, by Parker, C. J., in Brown v. Gil- sion may be supplied bv extrinsic evidence, man, 13 Mass. 158, that, where a contract has See also, Penniman v. Sarremore, 18 Mart, been reduced to writing, and the name of the 497 ; Lynn v. Bisberg, 2 Dall. 180. 462 ELECTION. *443 * CHAPTER XIV. *443 ELECTION. The doctrine of election ^ may be thus stated : That he who accepts a benefit under a deed or will, must adopt the whole con- pogtji„g ^f tents of the instrument, conforming to all its provisions, and election, renouncing every right inconsistent with it.^ If, therefore, ^ "'' a testator has affected to dispose of propertj^ which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition ; ° but if, on the contrary, he choose to enforce his proprietary rights against the testator's disposi- tion, equity will sequester the property given to him, for the purpose I For a full discussion of tliis subject, see 2 Story, Eq. Jur. § 1075, et seq. ; Sclinebly v. Ragan, 7 Gill & J. 120; Creswell e. Lawson, ib. 228: Robertson v. Stevens, 1 Ired. Eq. 247; Addison «. Bowie, 2 Bland, 606; Daxon V. Steele, 2 Jones, 178; Gest v. Flock, 1 Green, Ch. 108 ; Page v. Hughes, 2 B. Mon. 442; Butricke v. Broadhurst, 1 Ves. (Sum- ner's ed.) 172, note (a); Cogdell v. Cogdell, 3 Desaus. 346, 388 ; Deveaux v. Barnwell, 1 Desaus. 497; Collins v. Janey. 3 Leigh, 389; Hvde V. Baldwin, 17 Pick. 303; Hamblett v. Hamblett. 6 N. H. 333 ; Weeks «. Patten, 18 Me. 42; Bugbee v. Sargent, 23 Me. 269, 271. Election maybe enforced against /emescouer* and infants, between two inconsistent rights, where there is a clear intention of him under whom one of those rights is devised that both shall not be enjoyed, and when it would be against conscience to enjoy both. Robertson V. Stevens. 1 Ired. Eq. 247; Tiernan v. Ro- land, 15 Penn St. 429; Sledds i). Carey, 11 B. Mon. 181. Wherever a testator may put Ills devisees to an election to take under or in opposition to his will, the court may, in such case, elect for infants. Addison v. Bowie, 2 Bland, 606. See 2 Story, Eq. Jur. § 1097; Frank v. Frank. 3 Mylne& C. 171; M'Queen V M'Queen, 2 Jones, Eq. 16; Flippin j). Ban- ner, ib. 450. ^ A party entitled to an estate mav there- fore, by accepting a devise under a will which attempts to dispose of his property, be barred of a clear right. Penn. Life Ins. Co. «. Stokes, 61 Pedn. St. 136. See also as to the rule stated in the text, Watson v. Watson, 128 Mass. 152; Hvde v. Baldwin, 17 Pick. 308; Holtw. Rice, 54 N. H. 398; Smith v. Guild, 34 Me. 443; Weeks v. Patten, 18 Me. 42; Buist V. Dawes. 3 Rich. Eq. 281 ; Waters v. Howard, 1 Md. Ch. Dec. 112; Fulton v. Moore, 25 Penn. St, 468; Hamblett v. Ham- blett, 6 N. H. 333; Bell v. Armstrong, 1 Addams, 365; George «. Bussing, 15 B. Mon. 558. And the rule holds good at law as well as in equity. Watson v. Watson, 128 Mass. 152; Smith «. Smith, 14 Gray, 532; Brown I). Brown, 108 Mass. 386 ; Hapgood v. Hough- ton, 22 Pick. 480, 483; Doe v. Cavendish, 3 Doug. 48, 55; S. C. 4 T. R. 741, 743, note; Wilson V. Townshend, 2 Ves. Jr. 693,696; Birmingham v. Kirwan, 2 Schoales & L. 444, 450. But where a man gives a child or other person a legacy or portion in lieu and satis- faction of a particular thing, this will not ex- clude him from another benefit, though it may happen to be contrary to the will; for the court will not construe it in lieu of everything else, when he has named a particular thing. East ». Cook, 2 Ves. Sen. 33 ; Hapgood V. Houghton, 22 Pick. 480, 483; Ward v. Ward, 15 Pick. 526. 8 But in order to furnish a case for election under a will, it must be clear that the testator intentionally assumed to dispose of the prop- erty of the beneficiary, and did not intend to dispose of any expectant or other interest of his own in the property. Havens v. Sackett, 15 N. Y. 365. 463 *444 ' ELECTION. of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights. Thus where (a) A. seised of two acres, one in fee, and the other in tail, and having two sons, by his will devised the fee-simple acre to his eldest son, who was issue in tail, and the entailed acre to his j-oungest son, and died. The eldest son entered upon the entailed acre, where- upon the younger son brought his bill against his brother, that he might enjoy the entailed acre devised to him, or else have an equivalent out of the fee acre ; because his father plainly designed something for him. Lord Cowper said, "The devise of the fee acre to the elder must be understood to be upon the tacit condition, that he shall suffer the younger son to enjoy quietly, or else that the younger son *444: *shall have an equivalent out of the fee acre." And he decreed the same accordingly. [This case is the more remarkable, as showing the length to which the doctrine of election has been carried ; because the elder son was actually entitled to both aci'es hy his bet- ter title as general or special heir, and took nothing under the will. Yet the mere intention to give him property by the will was held suffi- cient to put him to his election (i).] But a devisee or legatee is not precluded from claiming derivatively, Does ex- through another, propertj' which such other person has taken tend to deriv- in opposition to the will. Thus, a man maj^ be tenant by the courtesy, in respect of an estate of inheritance taken by his wife in opposition to a will under which he has accepted benefits, without affecting his title to those benefits (c) . [For, compensation having once been made by the wife (cT) cannot be exacted a second time. And a devisee or legatee who claims derivatively through an- other, to whom the will gave nothing, is equally* free ; for whether the true owner took subject to an obligation which he has discharged, or subject to no obligation whatever, can make no difference : thus one co-heiress electing to take under a will, may retain a share which since the testator's death has descended to her from a deceased co-heiress although bound to give up her own original share (e).^ (n) Anon., Gilb. Cas. Eq. 15; see also Pre. Ch. 351; Belt's Suppl. to Ves. 250; 1 Ves. 234 IB.P. C.Toml. 3O0;3B. P.C.TomI.167; Amb. 388, lEd. 532;3B. C. C. 310: 4 B.C. C. 21 S. CI Ves. Jr. 514; 4 B. C.C. .'58; 1 Ves. Jr. 534; 2 Ves. .Tr.SGT; ib. 693: ib.544; 3 Ves. 191 ib. 384; 5 Ves. 515; 9 Ves. 369; 13 Ves. 224; 1 Dow, 249: 2 V. & B. 18T f 2 Mer. 86; 1 Sw 359; ib. 409; [3 Russ. 278; 4 Y. & C. 18; 2 Di;ew. 93.] Where several are disappointed the sequestered property is divided among them in proportion to the value of the interests of which they are disappointed. Howells v. Jenkins, 1 D. J. & S. 617. If the property which the testator affects to dispose of belongs to several, as tenant for life and remainder-man (Ward V. Baugh, 4 Ves. 623), or as tenants in common (Fytche v. Fytche, L. R. 7 Eq. 494), each has a separate right of election. [(6) See Schroder v. Schroder, Kav, 584-586. But 9 Pri. 573, Richards, C. B., dub.} (c) Ladv Cavan v. Pulteney, 2 Ves. Jr. 544, 3 Ves. 384. Ud) 2 Ves. Jr. 555. (e) Wilson v. Wilson, 1 De G. & S. 152. And see Howells v. Jenkins, 2 J. & H. 706; Grissell v. Swinhoe, L. R. 7 Eq. 291. But see per Lord Moncreiff, L. R. 7 H. L. 79. 1 See Carder v. Fayette Co., 16 Ohio St. 353 ; Bowen v. Bowen, 34 Ohio St. 164 ; Crost- waight V. Hutchinson, 2 Bibb, 408. 464 ELECTION. ' *445 It must however be understood that the obligation attaches on who- ever at the testator's death is true owner of the property wrongfully disposed of, and to whom also a benefit is given by the will. This is the point of time to be regarded. And it matters not from whom, or by what previous acts or devolutions, such owner's title was derived (/). Where the obligation to elect has once attached, the property which is taken under the will as bounty, however and whenever it may devolve, continues liable until compensation is duly made (jr).] The doctrine of election clearly applies as well to [contingent as to vested rights (A) ; to the interest of next of kin in Does apply to the * unascertained residue of an intestate's personal *445 eontingent estate («') ; and to] reversionary and remote as well as sionary in- to immediate interests (k).'- Lord Hardwicke, indeed, at one 'crests. time seems to have thought that it did not extend to a remainder ex- pectant on an estate tail (I) ; but the notion stands upon no intelligi- ble principle, and is inconsistent with his own decision in Graves f. Forman (m) , in which he would not allow an heir at law to whom an estate for life in remainder after an estate tail was devised, to take it without giving up a copyhold disposed of to another, but upon which the will could not (in the then state of the law) operate, for want of a previous surrender. The heir it seems (strangely enough) elected to take the estate for life in remainder, and eventually got nothing ; the tenant in tail having acquired the fee-simple by suffering a common recovery. It is immaterial in regard to the doctrine of election, whether the testator, in disposing of that which is not his own, is aware . , . , „ , . „ . , n , , . . Immaterial of his want of title, or proceeds on the erroneous supposition whether tes- that he is exercising a power of disposition which belongs to n„'ainted°" him ; ^ in either case, whoever claims in opposition to the with his want will, must relinquish what the will gives him («) . This " ' seems to result from the impossibility of knowing with certainty that the testator would not have made the disposition, had he been accu- rately acquainted with the title ; and (as a great judge has observed) , (/) Cooper V. Cooper, L. R. 6 Ch. 15, 7 H. L. 53. (g) Fytche v. Fjjtche, 19 L. T. N. S. 343; Pickersgill v. Eodger, 5 Ch. D. 163. Where the person to elect is dead without electing, and his own property and that taken under the will go different ways, the latter is (as between the two) primarily liable, ib. But the disap- pointed legatees may recover to the extent of the latter against his general estate. Eogers v. Jones, 3 Ch. D. 688. (A) Per Lord Loughborough, 2 Ves. Jr. 696, 697. (i) Cooper v. Cooper, L. R. 6 Ch. 15, 7 H. L. 53. How the value of such an interest is to be ascertained, see S. C. 7 H. L. 68.] (A) Webb V. Earl of Shaftesbury, 7 Ves. 480; Wilson v. Lord John Townshend, 2 Ves. Jr. 697. (I) Bor V. Bor, 3 B. P. C. Toml. 178, n. (m) Cited 3 Ves. 67 ; [see Mahon v. Morgan, 6 Ir. Jur. 173.] (m) Whistler!). Webster, 2 Ves. Jr. 370; Thellusson«. Woodford, 13 Ves. Jr. 221; Welhyv. Welby, 2 V. & B. 199, overruling Cull v. Showell, Amb. 727, unless decided on the ground of the great lapse of time, which seems probable. 1 2 Storv, Eq. Jur. § 1095. 2 2 Story, Eq. Jur. § 1093. See Swanston's note to Dillon B. Parker, 1 Swanst. 407. VOL I. 30 465 *446 ELECTION. " nothing can be more dangerous than to speculate upon what he would have done, if he had known one thing or another " (o). A question which has been much discussed is, whether the principle Principle of governing cases of election under a will is forfeiture or corn- doctrine is pensation ; * or, to speak more explicitly, whether a person tion, not for- claiming against a will is bound to relinquish the benefit feiture. thereby given to him in toto, or only to the extent of indem- nifj'ing the persons disappointed by his election. The strong current of the authorities, particularly those of a recent date, is in favor of the principle of compensation (p) ; interrupted, certainlj-, by *446 * some dicta (q), [and by an express decision of Lord Lang- dale (r),] in favor of the doctrine of forfeiture. In Green w. Green (s) , Lord Eldon is generallj- supposed to have used expressions indicating a similar opinion. But he expressly admits the cases to have decided that the party electing against a will was not bound to give up more than was enough to make satisfaction for that .which was intended for another ; and when he states the contrary doctrine, it is with reference to the ease before him, which arose upon a. deed, "in' which," he observed, " as it is a contract, it is very difficult to say that compensation onlj' is to be made "(<). The doctrine of compensation (o) See Sir E. P. Arden'8 iudgment in WhisHer v. Webster, 2 Ves. Jr. 370. ip) Webster v. Mitford, 2 Eq. Ca. Ab. 363, stated from Reg. Eib. 1 Sw. 449; Bor v. Bor, 3 B. P. C. Torn). 167 ! Ardesoife v. Bennett, 2 Diclc. 463 ; Lewis v. King, 2 B. C. C. 600 ; Frelie V. Lord Barrington, 3 B. C. C. 284 ; Blake v. Biinburv, 1 Ves. Jr. 523 ; Whistler v. Webster, 2 Ves. Jr. 372; Lady Cavan ti. Pultenev, 2 Ves. Jr. 560; Ward v. Baugh, 4 Ves. 627; Dash- wood V. Pevton, 18 ves. 49 ; Welbv v. Welby, 2 V. & B. 190; (see these cases stated Gretton V. Haward,"l Sw. 433 n.;) [Tibbitts v. Tibbitts, Jac. 317.] (}) Cowper J). Scott, 3 P. W. 119; Cookes v. Hellier, 1 Ves. 235; Morris t'. Burroughs, lAtk. 404; Villareal v. Lord Galwaj', 1 B. C. C. 292, n.; Wilson v. Townshend, 2 Ves. Jr. 697; Wilson v. Mount, 3 Ves. 194 ; Broome v. Monck, 10 Ves. 609; Thellusson ». Woodford, 13 Ves. 220. [{r) Greenwood v. Penny, 12 Beav. 406.] (s) 2 Mer. 86. (() 19 Ves. 668. 1 See this point discussed, 2 Story, Eq. Jur. the testator as undisposed of, but is restored § 1085, and notes ; Jennings v. Jennings, 21 to the donee, the purpose being satisfied for OhioSt.8I;Sandoe'sAppeal,65Penn. St.3]4. which alone the court controlled the legal It is said by Mr. Justice Story that the fair right. Gretton v. H award, 1 Swanst. 409; result of the modern leading decisions is, that Sandoe's Appeal, 65 Penn. St. 314. And the insuchacasetbereis not aivabsolute forfeiture, disappointed donee can never get more than but there is a duty of compensation (at least the value of the interest intended for him. where the case admits of compensation) or its But if the estate devised to the electing donee equivalent; and that the surplus, after such is obviously less valuable than that owned by compensation, does not devolve upon the heir him, equity will decree a conveyance of the as a residuum undisposed of by the will, but be- estate devised to the first donee, or permit the longs to the donee; the purpose being satisfied, second donee to recover it in ejectment, for which alone com'ts of equity will control Lewis v. Lewis, 13 Penn St. 79. It should be" his legal. right. lb. § 1085. 'The operation added that this doctrine of election is never of this principle of compensation (apart from applied except where, if an election is made statute) is generally thus worked out : In the contrary to the will, the interest that would event of an election to take against the will, pass from the testator by the will can be laid equity assumes jurisdiction to sequester the hold of in equity to compensate the disap- benefit intended for the refusing donee by pointed donee. Some free disposable prop- way of taking the rents, profits, and issues, erty must be given to the electing donee in order to insure proper compensation to him which can become compensation for what the whom such election disappoints. The surplus, testator endeavored to take away. Bristow if any, above the value of the property owned v. Warde, 2 Ves. Jr. 336 ; Box v. Barrett, L. R. by the electing donee, after compensation, 3 Eq. 244. does not devolve upon the representative of 466 ELECTION. *44'7 "was also subsequently recognized by the same high authority in Kerr v. Wauchope (m) , as well as in the earlier and much-discussed case of Lord Rancliffe v. Parky ns (a;) ; and [is now generally accepted as the settled doctrine of the court (y).] In order to raise a case of election, there must be a personal compe- tency on the part of the author of the attempted disposition, personal as the doctrine is founded on intention (z) which supposes competency such competency. Thus, under the old law, where person- tention alty was, and real estate was not, disposable by the will of ''equisite; a person under age, the heir of the infant testator was allowed to take his real estate in opposition to the will, without relinquishing a legacy bequeathed to him by the same will (a). And though the disability' of coverture is, in some respects, distinguishable from and less t " £ ts absolute than that of infancy (a feme covert having, it is and/emes said, a disposing mind, but not a disposing power, while an '""'^'■*^*- infant has neither the one nor the other), yet the principle seems, ac- cording to the authorities, to apply to the attempted dispositions of married women. If, therefore', a feme eoverte, having * a tes- *447 tamentary power, makes an appointment by will in favor of her husband, and by the same will professes to bequeath to another per- sonal estate to which her power does not extend, the husband may take the benefit appointed to him, and also defeat the intended bequest of the other property, by the assertion of his marital right (S). It formerly happened (and may still occur under a will which is regu- lated by the old law) , that a testator, bj' a will sufficient in „ • j^ point of execution to pass personal estate, but not ade- put to his quately attested for the devise of freehold estate, devised ^''='=''''"- such estate away from the heir, to whom, by the same will, he be- queathed a legacy. In such cases the heir is allowed to disappoint the testator's attempted disposition, by claiming the estate in virtue of his title b^' descent, and, at the same time, take his legacy, on the ground that the want of a due execution precludes all judicial recognition of the fact of the testator having intended to devise freehold estates ; and, therefore, the ■sv'ill cannot be read as a disposition of such estates for the purpose even of raising a case of election against the heir (c).^ If, (a) 1 Bli. 1. (a;) 6 Dow, 149. [(I/) Schroder ». Schroder, Kay, 578; Howells ». Jenkins, 1 D. J. & S. 617; Coopers. • Cooper, L. R. 6 Ch. 15, 7 H. L. 53.] But 1 Roper's Husband and Wife, by Jacob, 556, n. is contrary; [see also Sugd. Pow. p. 575, 8th ed., where the doctrine of forfeiture is also pre- ferred.] (z) 1. e. a disposing intention, not an intention to put the owner to liis election. See per Lord Cairns, Cooper v. Cooper, L. R. 7 H. L. 67. (a) Hearle v. Greenbank, 1 Ves. 2!)8. (b) Rich V. Cockell, 9 Ves. 370; [Coutts v. Acworth, L. R. 9 Eq. 519, is contra; but the point was not taken. In Blaiklock v. Grindle, L. R. 7 Eq. 215, the invalid bequest purported to be in exercise of a power given to f. c. if she died before her husband. The will was made in his lifetime, but he afterwards died before his wife, so that the point did not arise. As to the capacity off. c. to elect, see Frank «. Frank, 3 My. & Cr. 171; Wall v. Wall, 15 Sim. 513; Wilson V. Townshend, 2 Ves. Jr. 693.] (c; Hearle v. Greenbank, 1 Ves. 298, 3 Atk. 697, 716; Carey v. Askew, 1 Cox, 241; Shed- 1 2 Storj', Eq. § 1096, note at the end. 467 *448 ELECTION. however,=the legacy to the I heir is bequeathed upon the express condi» tion that he shall confirm the devise, the case is otherwise : the heir then is not permitted to accept the benefit conferred upon him by the wUl, without performing the condition which the testator has expressly annexed to tlie enjoyment of his bounty (d). Of course this question cannot now arise under wiUs made or repub-> Effect of lished since the year 1837, which, if sufficiently executed for iVict. c, 26, the bequest of a personal legacy, will also be effectual to oc line, jjjgppgg Qf freehold estate. Nor is this the only, instance in which the statute 1 Vict, has tended to narrow the practical range of the doctrine undeir consideration ; for now that the devising power extends to after-acquired real estate, it can no longer be a ques- tion (as formerly (e)), whether the testator has, by attempting to *448 * dispose of the real estate to which he maybe entitled at his decease, raised a case of election against the heir in respect of such property.-' [Even before- the act, the heir was held not to be put to his election in cases of revocation by alteration of estate (/). Nearly allied to the cases last noticed, are those where a testator In what cases entitled to heritable property in Scotland, affects by will in a Scotch heir, the English form, ineffectual to pass the Scotch propertj', to election by devise it away from the Scotch heir, at the same time giving English will, ijjjjj property in England. It seems now well settled that in such cases, if the English will purports to give the Scotch property either by name or under the general denomination of property in Scot- land (g), or of property " in any part of the United Kingdom" (h), the Scotch heir is put to his election, while, on the other hand, a devise in general terms of all the testator's property whatsoever and wheresoever don V. Goodrich, 8 Ves. 481 ; Brodie v. Barry, 2 V. & B. 127; Gardiner v. Fell, 1 J. & "W. 22; [Wilson V. Wilson, 1 De G. & S. 152, seems contra. But see as to that case Middlebrook v. Bromley, 9 Jur. N. S. 614; and per Lord Alvanley.Buckridge v. Ingram, 2 Ves. Jr. 665, cited by Lord Eldon, 8 Ves. 500]. (d) Boughton V. JBoughton, 2 Ves. 12. (e) See Churchman v. Ireland, 4 Sim. 529, [1 E. & Mv. 250 ; Tennant v. Tennant, 2 LI. & G. 516 ; Schroder v. Schroder, Kay, 678, 24 L. J. Ch. 510; Hance v. Truwhitt,2 J. & H. 216 ; ante, p. 322. In Schroder v. Schroder the testator (who died before the act 3 & 4 Will. 4, c. 106, s. 3, came into operation), after making his will, which purported to devise his after- acquired real-estates, contracted to buy a certain estate, and then made a codicil directing his trustees to complete the purchase, and hold the estate on the trusts of the will, which were partly in favor of the heir; afterwards the codicil was revoked by a conveyance to uses to bar dower in the testator's favor [vide ante, p. 155), and it was held that the heir must elect. But if a testator before 1838, devised estate A., which he had contracted to buy, to one person, and estate B., with all other estates which he might subsequently acquire to another, and gave benefits to his heir, and afterwards took a conveyance of estate A. to uses to bar dower in his own favor and acquired other estates, it is questioned by the V.-G. whether the heir was bound to elect; for there was no intention to give estate A. to the devisee of B., and the whole doc- trine of election proceeded so entirely on the ground of intention, that perhaps the heir might be entitled to retain the estate against both devisees, neither of whom would have a better right against him than the other. (/) Plowden v. Hyde, 2 Sim. N. S. 171 ; Tennant v. Tennant, 2 LI. & Go. 516 ; Sugd. Pow. S77, 8th ed. («) Brodie v. Barry, 2 V. & B. 127; Keynolds v. Torin, 1 Kuss. 129 ; M'Call v. M'Call, 1 Dru. 283. (A) Orrell v. Orrell, L. E. 6 Ch. 302. 1 See, however, Gibbon «. Gibbon, 40 Ga. 562; Eaines v. Corbin, 24 Ga. 185. 468 JELECTION. ^449 is held to refer only to such property, as he has power to give by the wUl, and the Scotch heir maj' claim both by descent and under the wiU (i) ; the first proposition also seems to apply where, the disposition is in the Scotch form, but . not sufficient to pass lands in England away from the English heir(^), and it is presumed the latter proposition would be held to apply also, as the doctrine of approbate and reprobate in Scotland, and of election in England, seem to be identical (l) . * It is clear that the doctrine of election is appU- *449 Where an cable to cases of appointment under a power, so raised by\ that if one having g, special power by his will gives benefits power to ap- out of his own property to the objects of the power, and tieiiiar°ob^ appoints the subject of the power to strangers, the former J^'^'^- win be obliged to elect in favor of the latter (m) . But in cases where the appointment is made to the objects ,of the power abso- None, where lutely, and the donee superadds a proviso or condition in poj'ntment^s favor of strangers to the power ; though the proviso is attempted to void, no case of election arises. The court reads the will in favor oV as if all the passages in which such attempts are made stranger&j . were swept out of it, for all purposes, i.e. not only so far as they attempt to regulate the quantum of interest to be enjoyed by the ap- pointee, but also so far as they might otherwise have been relied upon as raising a case of election (n). A residuary appointment that carries an ill-appointed portion of the fund is in this respect undistinguishable from an absolute appointment with ineffectual modifications. Thus where the donee of a special power appointed part of the fund upon trusts that were void for remoteness, and the residue to A. and B., to whom also he bequeathed part of his own estate, it was held first that the ill-appointed part did not pass as in default of appointment; but fell into the residue, and secondly that A. and B. were not bound to elect in favor of the , remote objects. Sir W. James, V.-C, collected from the authorities that " The rule as to election is to be applied as between a gift under a will and a claim dehors the will and adverse to it, and is (i) Johnson v. Telford, 1 R. & My. 244; Allen v. Anderson, 5 Hare, 163; Maxwell ». Max- well, 16 Beav. 106, 2 D. M. & G. 705. («) Dundas v. Dundas, 2 D. & CI. 349. The Scotch courts therefore, unlike the English courts, will read against the English heir an instrument imperfectly executed according to the Statute of Frauds, so a-s to put him to an election; and in like manner thcJ English courts (treating the Scotch heir differently from the English heir, Dewar. «. Maitland, L. R. 2 Eq. 834) will read against the Scotch heir an instrument insufficient according to the law o£ Scot- land to disinherit him. i (/) 2 D. & CI. 352, 1 Bligh, 21, 16, Beav. 107. (m) Whistler v. Webster, 2 Ves. Jr. 370; and see Fearon ». Fearon, 3Ir. Ch. Rep. 19; Reid V. Reid, 25 Beav. 469 ; Tomkyns M..Blane, 28 Beav. 422; Cooper v. Cooper, L. R. 6 Ch. 15, 7 H. L. 53. (n) Carver v. Bowles, 2 R. & Mv. 301; Church v. Kemble, 5 Sim. 525; Blacket i). Lamb, 14 Beav. 482; Woolridge ». Woolfidge, Johns. 63; Churchill v. Churchill, L. R. 5 Eq. 44. The doubts expressed in Moriarty v. Martin, 3 Ir. Ch. Rep. 26, whether this is law except in cases where the proviso is in terms " so far as lawfully may be " (as in Carver v. Bowles) have not prevailed. And see the doctrine recognized Roach v. Trood, 3 Ch. D. 444, where however it was excluded by the appointee having executed the appointment (which was by deed) and so accepted the proviso. As to the question whether the appointment ia in the first instance absolute, vide ante, p. 295. 469 *450 ELECTION. not to be applied as between one clause in a wUl and another clause in nor in aid of ^^^ same wUl." Nor was it to be applied in aid of a gift a perpetuity, -vsrhieh violated the law against perpetuity (o). "With the rule as thus stated by the V.-C. agree those cases which „ ., have determined that where by the same will several proper- uDdersame ties are given to the same person, some beneficial and the mavTe°tak- Others burdensome, he is generally at hberty to ac- en,"the other *450 cept the former * and reject the latter ( p) , although rejected; ^^ g^ doing he throws a burden on the testatoPs general estate, which, if he accepted both, must be borne by himself; as where the repudiated gift comprises shares in a company which, after the testator's death, fails, and is wound up, the shareholders being called on to contribute (q) , or where the subject is leasehold property, in respect of which the testator was liable at his death under his cove- — unless a nant to repair (r). But the question is one of intention, tentTon ap°" ^'^^' t^ierefore, where a testator bequeathed an annuity to pears. A., and also a leasehold house held at a rack rent beyond its value. Sir J. Leach, M. R., thinking that the plain intention of the testator was that his estate should no longer be subject to the rent of the leasehold house, held that the legatee must take both bequests or neither (s).^ Again, where one, having a testamentary power of appointment over Tiiere must ^ fund which in default of appointment belongs to A., makes be an actual his will, and thereby expressly declares that he abstains property'be- from making any appointment, on the ground that the fund longing to the ^{^ devolve (as he supposes) on B., and gives A. certain TDGrson, who is x a ' * o to be put to benefits by his will ; A. is not put to his election, since by his election ; ^g^jjjjjg ^oth he disappoints no actual disposition of the tes- tator : all that can be said is that the testator was mistaken (t) . A case of election arises where a testator, whether under a power or There must ^^^^ gives property which belongs to one person to another, also be prop- and gives to the former property of his, the testator's : but testator to there must be some free disposable propertj' given to the ""'"P?"**'* person who is put to his election, which, if he elects to pointed devi- take against the will, may be laid hold of to compensate the "'"'• disappointed devisees. The doctrine is therefore inappli- cable where the will deals only with property subject to special powers (o) Wollastons. King, L. R. 8 Eq. 165; Wallinger v. Wallinger, L. E. 9 Eq. 301; Bur- ton ». Newberv, 1 Ch. D. 242 ; Bizzey v. Flight, 3 Ch. D. 274. (p) Andrew v. Trinity Hall, 9 Ves. 525. (j) Moffett v. Bates, 3 Sm. & Gif. 468. (r) Warren v. Rudali; 1 J. & H. 1. (s) Talbot ■». Earl of Radnor, 3 My. & K. 254. (() Langslow v. Langslow, 21 Beav. 552; see also Box v. Barrett, L. R. 3 Eq. 244; and post, Ch. XVII.- 1 See Talbot v. Radnor, 3 My. & K. 252 ; several gifts to a donee is conditional on his Moffett V. Bates, 3 Sm. & G. 468. Of course, giving up what the testator attempts to devise election may be excluded by an expression away from him. Wilkinson v. Dent, L. R. of intention by the testator that only one of 6 Ch. 339, 341. 470 ELECTION. *451 of appointment. Thus, where a man had an exclusive power of ap- pointing an estate to his children and grandchildren, and an exclusive power of appointing a fund to his children only ; and appointed the estate to some of his children, and the fund to his children and to a grandchild. It was held that the children were not bound to elect between giving effect to the appointment of a share in the fund to the grandchild and rejecting the estate appointed to them under the first power (m).J The doctrine of election has been held not to apply Not appli- to creditors;-' *and, therefore, where a testator ap- *451 ^editors. propriated to the payment of debts propertj^ which was not liable thereto, and by the same will disposed of, in favor of other persons, property which was by law assets for the payment of debts, it was held that the creditors might take the latter in subversion of the testator's devise, without abandoning their claim to the former (v). And where- a testator devised for paj-ment of debts certain lands (in- cluding some which were not his own, but belonged to his son), the son was allowed to participate as a creditor in the provision for debts, out of the other property, without relinquishing his own estate to the cred- itors (to). But now real estates of every description are assets for the payment of debts (x) . At one period it was doubted whether evidence dehors the instrument was admissible for the purpose of showing that a testator Whether considered that to be his own which did not actually belong ^encell ad- to him, or was not under his disposing power. In the well- missible. known case of Pulteney v. Darlington (y), rent-rolls and steward's ac- counts were admitted to prove that the testator dealt as absolute owner with lands of which he was only tenant in tail, and, consequently, that he must have intended them to pass under a general devise of his real estate, so as to impose election on the heir in tail, to whom, by the same will, a benefit was given, though the testator had a large estate of his own, to which the words were applicable (z). Lord Commissioner Eyre, however, in Blake v. Bunbury (a), laid it down that "the intent of the testator to dispose of that which was not his, ought to appear on the will." The admissibility of extrinsic evi- dence, too, was strongly denied by Lord Loughborough, in Stratton v. (u) Re Fowler's Trusts, 27 Beav. 362.] («) Kidney v. Coussmaker, 12 Ves. 136; see also Clarke v. Guise, 2 Ves. 617. (w) Deg V. Deg, 2 P. W. 412. ' (x) Ch. XL VI. s. 1. (y) 2 Ves. Jr. 544, and 3 Ves. 384. (2) See also Hinchclifle v. Hinchcliffe, 3 Ves. 516; Rutter v. Maclean, 4 Ves. 531; Pole v. Lord Somers, 6 Ves. 309 ; and Druce v. Dennison, ib. 385 ; and see Finch v. Finch, 4 B. C. C. 38, 1 Ves. Jr. 534. (a) 1 Ves. Jr. 523. 1 2 Story, Eq. §1092, and note. A will (fiiinma/ devise, that H. by bringing an action contained the following clause : " I will, first- against her executor for her board, in Avhich, ly, that, loath to offend, by the word pay^ the however, judgment was recovered againt H., generous feelings of my friends, whose kind- elected to relinquish the benefit of the devise ; nesses to me have been many and long con- but that he did not thereby forfeit his claim tinned, — to H. and his wife', I wish their ac- to an independent resjduary legacy to_ his ceptance of twenty-five acres of land," &c. wife, in the same will, the implied condition The testatrix was li^nng in the family of H. being limited to the devise of the land. Hap- at the time. It was held that this was a con- good v. Houghton, 22 Pick. 480. 471 *452 ELECTION. Best (b) ; and the same judge expressed his disapprobation of Pultenej' V. Lord Darlington, in Butter v. Maclean (c) ; as did Lord Eldon in Pole V. Lord Somers (rf), and Druce v. Dennison(«). In the latter case, however. Lord Eldon admitted a statement of property written by the testator, and books of account, as evidence that he considered .himself to be owner, and, as such, intended to dispose of certain messuages and leases, the property of his wife, part of which *452 the * testator had made his own by alienation ; but Lord Eldon seems to have regarded the papers themselves as testamentary, and to have thought that he must either admit the testator's explana- tory statement as extrinsic evidence, or give the parties an opportunity of propounding it as a part of the will in the Ecclesiastical Court. However, in a subsequent case (/) he observed that he thought the rules as to election had been settled: " It must appear on 1;he face of the will, that the testator proposes that there should be an election, and as to what subjects." And he referred to Druce v. Dennison as standing, to some extent at least, on the special ground which has been noticed. He also adverted to a case of Andrews v. Lemon, where a testator bequeathed all his personal property (he having personal prop- erty of his own, and also personal property not so strictly his own, but which he had power to dispose of by deed or will) for purposes for which his own was insufficient; Sir L. Kenyon, M.R., directed an inquiry whether by personal property he meant his own strictly, or in- tended to include both : but when the evidence was taken, he was so much struck with his own decision, that he said: " Though the evi- dence has been taken, I shall not now admit one word of it, it being necessary, for the general interests of mankind, that persons should in their wills state clearly what they mean." The doctrine thus earnestly advocated by these eminent judges has Parol evi- prevailed in subsequent eases. As in Clementson v. dence re- Gandy (ff) , where parol evidence was tendered for the pur- '^"^ ^ ' pose of showing that the testatrix had supposed herself to be absolute owner of, and intended to include in the residuary bequ€st in her will, certain settled property, in which she had only a life-inter- est, in order to raise a case of election against a legatee under the will, who also took an interest in such property under the settlement ; but the evidence was rejected. Lord Langdale, M. R., observing that the intention to dispose must in all cases appear by the will itself; that there was no ambiguity in the expressions the testatrix had employed ; and extrinsic evidence for the purpose of contradicting the intention was inadmissible. With respect to the intention, as manifested by the will itself, it is to (b) 1 Ves. Jr. 285. (c) 4 Ves. 537. (d) 6 Ves. 322. l. per cent stock (then forming the whole of his funded property) into the joint names of himself and his wife, bequeathed the rents of his leasehold houses, and the interest of all Ms funded property or estate, of whatsoever kind, to trustees, upon trust for his wife for life, and after her decease upon trust to pay divers legacies of U. per cent stock, the aggregate amount of which fell short by 60/. only of the amount of stock of that description so formerly transferred by him : he afterwards made some further purchases of bl. per cent stock, taking the transfers- in the joint names of himself and Ms wife. The testator at his death left no funded property, except the U. per cents and ,5/. per cents be- fore mentioned, exclusive of which his assets were greatly inadequate to pay his legacies. It was held first, that all the sums of stock then standing in the joint names of the husband and wife, and whether transferred before or after the date of his will, became, by survivorship, the absolute property of the wife ; secondly, that the will did not pur- port to dispose of the stock in terms sufficiently distinct and explicit to put the wife to her election («). In like manner a general devise of the testator's real estate has always been held to show an intention to give what strictly and General de- properly belonged to him, and nothing more, even if the tes- visere- tator had no real estate of his own upon which the devise property of could operate ; for though a general disposition would not, testator. in wills made before the year 1838, pass after-acquired real estate, and, therefore, the presumption rather is that the testator, in framing such a- devise, had a particular property in his contemplation ; yet the pre- sumption is not of such force as alone to constitute an adequate ground for holding a gift of the testator's property to comprise what belonged to another ; a conclusion which seems to be more improbable than the supposition that * the testator introduced into his will a *454 (A) 5 Sim. 35 ; 2 Itfy. & K. 262; see also Crabb v. Crabb, 1 My. &-K. 511; [Blommart v. Player, 2 S. & St. 597; Parker v. Carter, 4 Hare, 411; Smith ». Lyne, 2 Y. & C. C. C. 345; Seaman «. Woods, 24 Beav. 381. (!) See Att.-Gen.i). Fletcher, 5 L. J.N. S. Ch. 75;] and compare Shuttleworth v. Greaves, 4 My. & Cr. 38, where certain canal shares standing in the joint names of (he testator and his wife were held to be intended to pass under a bequest of " my shares in the N. Canal Naviga- tion," so as to put the wife, to her election, the testator having no shares of his own answering to the description. 1 Clementson v. Gandy, 1 Kee. '309; Beav. 14; Havens ». Sacbett, 15 N. Y. 365; Dummer v. Pitcher, 2 Mv. & K. 262; S. C. Lefevre i). Lefe-\Te, 59 N. Y. 434; Church v. 5 Shn. 35; Cavan «. Pulteney, 2 Ves. Jr. Bull, 2 Denio, 430; S. C. 5 Hill, 206; Fuller 544; S. C. 3 Ves. Jr. 384; Pole v. Somers, v. Yeates, 8 Paige, 325; Jones v. Jones, 8 6 Ves. Jr. 309 ; Honywood v. Forster, 30 Gill, 197. 473 *455 ELECTION. general or residuary disposition, without having in view any particular property'. The same principle was held, in TimeweU v. Perkins (k), to apply to Devise of ^ devise of a specified kind of property, as ' ' ground-rents ; " "ground- in regard to which, however, it is to be observed, that the rents. bequest would have included, and, therefore, might have been designed to include, leasehold ground-rents purchased by the testator after the making of the will ; so that no inference that he had not his own property in contemplation arises from the circumstance of his not having any such when he made his will ; and the same remark applies to devises affecting even real estate in wills made or republished since the year 1837, which (as already shown (Z)) are operative on after- acquired property of this description. With respect, however, to wills which are subject to the old law, it is Devise of to ^e observed, that, though a general devise is (as we have ing'to'cerTahi s®?'i) Construed as comprising property belonging to the tes- locality. tator and that only, even when there is nothing properly and strictlj' his own on which it can operate ; yet a devise of lands answer- ing to a particular locality seems to stand upon a different footing. It is hardly to be supposed that a testator would make such a devise without having a particular property in view. In Eead v. Crop (m) , however, where a testator had devised all his freehold and copj'hold estates at Roydon, Thorley, Epping, and Witham, in the counties of Essex and Herts (which copyholds he had surrendered to the use of his will) , to his wife for life, and after her decease in trust for his children ; and it appeared that the testator, at the time of his death, {queere, at the making of his will?) was seised in fee of a copyhold estate at Witham, and also of the moiety of an estate at Thorley, to the other moiety of which he and his wife were entitled in her own right ; they were also seised in her right of two copyhold estates at Roydon and Epping ; but in these places the testator, in his own right, had no prop- erty. It was contended, that the testator having taken upon himself to devise bis wife's estates, she must be put to her election ; but Lord Thmiow said, that the testator had described what he meant to devise by the words, "the estates which he had surrendered." He had not surrendered any of his wife's estates, so that they could not pass by the devise. According to another report (n), his Lordship said : " I *455 think * these words are too loose to raise the construction con- tended for. If he had devised all his estates generallj^, there would have been no doubt ; and I cannot think that his mentioning his estates in the four places b}' name is sufficient to make me suppose that he meant to devise his wife's estates. As to Thorley, there can be no pretence for it, since he had an estate there to answer the description ; and I think, therefore, the wife is not called upon to make an election." Lord Thurlow's remarks, it is conceived, must be taken in connec- (4) 2 Atk. 102. (0 Ante, p. 64. (m) 1 B. C. C. 492. (n) Cox's MS. ; 1 Sw. 403, n. 474 ELECTION. *456 tion with the special circumstance^ of the case before the Suggested court ; for he could hardly mean to affirm, as a general ^'s'mction position, that where a testator devises all his lands at A., erai devises having no other property there than lands which he holds in restricted^by right of his wife, he is not to be presumed as intending to locality. dispose of that property. The difference between such a case and that of a general devise of all the testator's real estate is obvious. The ref- erence to locality Shows that he has a particular property in view ; and if it be answered that everj^ devise, however general in its terms, is spe- cific, we may (without denying this as a general principle) reply, that such clauses are frequently inserted in wills to take in any property which may have escaped the testator's recollection, or maj' not be within his knowledge ; which cannot be affirmed of a devise of lands in a particular parish or town, or even county. Such a question, however, jj s t i will present itself under a different aspect in regard to wills by i Vict. made since the year 1837, which (we have seen (o) ) speak, *^' ^^' in reference to the property comprised in them, from the death ; [though even with regard to them, if they devise lands in a particular locality, it is difficult to saj' that no inference that the testator had some specific property in view arises from the fact of his having none of his own to satisfy the devise at the date of its execution ; for it is a whimsical in- tention to impute to a testator, when he affects to dispose of all property of a particular character, of which he has now or may hereafter have power to dispose, that he makes that disposition without the least sus- picion that he has then any property of that description, and solely with the notion that he may thereafter buy some such property (p). Where the devise is specific in the'sense of being a gift of a particular es- tate, as "my E. propertj-," the wife alone and not the devisor being entitled to that property, she must undoubtedlj^ elect (9). And * where (r) a testator was seised of freeholds in fee-simple and of *456 copyholds in tail, and himself occupied parts of each, and had let other parts of each to tenants at entire rents, and then by will, dated in 1859, devised his " real estate " upon trust as to the " lands occupied by him" for his wife, and confirmed his tenants "in their present occupa- tions at their present rents " for twenty-one years ; it was held that the heir in tail of the copyholds (to whom an annuity was bequeathed) must elect.] But the most numerous as well as the most difficult class of cases with which the courts have had to deal, consists of those in _ ^. . , , , . Question which the testator and the person against whom the election whether tes- is sought to be raised, have each an undivided share or Jo'j'nciu^T'^^ [some partial or limited] interest in the property ; and in interest of co- which, therefore, the question is not, as in the cases before P™?"""^ *"■• discussed, simply whether the testator referred to particular tenements, (0) Ante. Chap. X. [(p) Per Wood, V.-C, Usticke v. Peters, 4 K. & J. 455. Iq) Whitley v. Whitley, 31 Beav. 173 (will in 1857). (r) Honywood v. Forster, 30 Beav. 14. 475 *457 ELECTION, bat whether he intended the devise to comprise such property, indusiv« Padburye, of the interest of his co-owner.^ [Thus, in Padbury v. Clark. Clark (s) , the testator being entitled to a moiety of a free- hold house, devised " all that my freehold messuage, &c., now on lease to A. and in his occupation," giving the person entitled to the remain- ing moiety benefits under his will ; he was also entitled to a moiety of some other property, which he devised by the description of ' ' all that my moiety," &c. Lord Cottenham observed that he found no ground for a doubt as to the intention to give the entirety ; that the words were ample, complete and correct for that purpose, but wholly inapplicable to the supposed gift of a moiety only : and that if this were matter of any doubt, this construction would be strongly corroborated by the other devise, which showed how the testator described a moiety when his in- tention was to give only a moiety. The L. C. therefore held that the owner of the other moiety must elect. A direction to repair the specifi- cally described property would likewise corroborate this construction (<) ; but it would appear from Lord Cottenham's judgment, and from sub- sequent authorities (m), that a specific devise as of the entire subject will generally suffice, without such assistance, to put the co-owner to his election. So, in Swan v. Holmes (x), where a sum of 10,000^. consols stodd Swan ». settled in trust for two sisters for life, and after their Holmes. #457 « deaths, two thirds of the capital in trust for their brother, and one third in trust for their sisters ; and the brother bequeathed the whole of his property to trustees, as to part on certain trusts for his sisters ; and he afterwards bequeathed the property, "including the 10,000Z. trust money," to other persons; it was held that the sisters must elect between the benefits given them by the wUl, and their interest in the 10,000/.^ consols. So, where the testator has a reversion only in the lands devised, it Question frequently becomes a question whether ■ he intended to con- whether tes- fine the will to that estate, or to include in it the immediate reversion and absolute interest. Prima facie, the testator must of «"!y! i"'™^s course be understood to refer only to what he had power to immediate dispose of. But the context of the will must be examined, interest. ^ ggg whether an intention to include also what he had no such power to dispose of be indicated ; and for this purpose, notwith- standing some strong expressions tending to show the difflcultj^ of applying the doctrine of election to such cases (y) , the ordinary rules is) 2 Mac. & G. 298. ' (() Howells V. Jenkins, 2 J. & H. 706. There was no siich direction in Padburv v. Clark. ]m) Wilkinson «. Dent, L. R. 6 Ch. 339; Fitzsimons ». Fitzsimons, 28 Beav. 417 ; Miller V. Thnrgood, 33 Beav. 496. (a;) 19 Beav. 471 ; see remarks on Keynolds ». Torin, post, p. 468. (y) See per Lord Eldon, in Rancliffe «. Parkyns, 6 Dow, 149. ' In such cases the court will incline to necessity of an election. Maddison v. Chap- a construction which will make the testator man, 1 Johns. & H. 470. See Havens v. deal only with his own^ and thus prevent the Sackett, 15 N. Y. 365; 2 Story, Eq. § 1089. 476 ELECTION. *458 for collecting the testator's intention must be observed, the- question being simply, what does the testator mean ? If he has subjected the lands in question to limitations which, if the devise be limited to the reversion, cannot, or probably wUl not, ever take effect, or has con- ferred powers on the devisees which, on the same hypothesis, they can never exercise, the intention to include the immediate interest wiU be sufficiently established {z) . But these indications of intention will not prevail against an express and imreserved confirmation of the settle- ment creating the estates which precede the testator's reversion. Ex- press declaration overrides conjecture, however probable (a). Again, if a testator, having an estate subject to an incumbrance, simply devises the estate without saying more, he is to be gjj^jj^^ ^^^^ taken to mean the estate in its actual condition ; ^ and the tion where incumbrancer to whom other benefits are given by the wiU, tit^Wsublect' is not, in such a case, put to his election ; still less, if the to incum- beneficiary be entitled onlj'^ to participate in the incumbrances with others to whom no benefit is given by the will (b). So if, being an incumbrancer only, the testator devise the estate, this may be satisfied without * imputing an intention to dispose of more *458 than his own interest (c) . A similar question, and one which has been frequently agitated, is] whether the widow of a testator [to whom she was married Dowress before 1834] is precluded, by a benefit given to her by his when put to will, from claiming dower out of lands devised by that will. ^ (z) Welby v. Welby, 2 V. & B. 187; Wintour v. Clifton, 21 Beav.,447, 8 D., M. & 6. 641 ; Usticke V. Peters, 4 JC & J. 437. (a) Rancliffe v. Parltyns, 6 Dow, 149. But confirmation of a portion of the settlement leaves the remaining portion unconfirmed- Blake v, Bunbury, 1 Ves. Jr. 514. (b) Stephens v. Stephens, 3 Drew. 697, 1 De G. & J. 62. (c) Maddison v. Chapman, 1 J. & H. 470.] ( 1 Talbot V. Radnor, 3 My. & K. 252; wife a legacy, for he might intend to give Moffett V. Bates, 3 Sm. & G. 468. only what was strictly his own, subject to 2 The intention of the testator to compel dower. There is no repugnancy in such a the widow to elect must be clear. If it be bequest. In order to exclude dower, the in- not made known in express terms, the inten- strument containing the bequest ought to tion must appear by manifest implication comprise some provision inconsistent with from the will, founded upon the fact that the the claim to it. 3 Wooddes. § 59, p. 493; claim of dower would not be consistent with Arnold v. Kempstead, 2 Eden, 237, and cases the language or meaning of the will. 4 Kent, cited in notes to 2d ed.; Villareal v. Galway, Com. 58; Bull v. Church, 5 Hill, 206; S- C. Amb. 682; S. C. 1 Bro. C. C. 292, notes; a.Denio, 430; Savage ». Bumham, 17 N. Y. Fuller v. Yeates, 8 Paige, 325; French v. 661, 571; Dodge ». Dodge, 31 Barb. 413; Davies, 2 Ves. Jr. 572, 577 ; Lawrence D. Law- Lasher V. Lasher, 13 Barb. 106; Palmers, rence, 2 Vern. 366, and Mr. Raithby's note; Voorhis, 35 Barb. 479 ; Lord v. Lord, 23 Conn. Greatorex v. Cary, 6 Ves. 615 ; Birmingham 327; Fulton v. Fulton, 30 Miss. 586; Braxton i). Kirwan, 2 Scho. & Lef. 452, 453 ; Pearson V. Freeman, 6 Rich. 35; Norris v. Clark, 2 v. Pearson, 1 Bro. C. C. (Perkins's ed.) 292, Stockt. 51; Higginbotham v. Cornwell, 8 and notes; Harrison «. Harrison, 1 Kee. 765 ; Gratt. 83; Parker v. Sowerby, 4 De G., M. Jackson v. Churchill, 7 Cowen, 287; Van & 6. 321. If a testator should bequeath prop- Orden «. Van Orden, 10 Johns. 30 ; Pickett ertyto his wife, manifestly with the intent v. Peav, 2 Const. S. C. 746 ; Kennedy J), that it should be in satisfaction of her dower. Mills, 13 Wend. 553; Bull v. Church, 5 Hill, it would create a case of election. But such an 206. See 2 Story, Eq. § 1088; Hill ». Hens- intention must be clear, and free from am- worth, Llovd & G. temp. Plunk. 87; Hall biguity ; and it will not be inferred from the v. Hill, 1 Cru. & War.' 94; S. C. 1 Con. & testator's making a general disposition of all Law. 120 ; Bailv v. Duncan, 4 T. B. Mon. 265, his property, although he should give his 266; Hall v. Itall, 2 M'Cord, Gh. 280; Her- 477 *458 ELECTION. General de- It is clear that a mere devise in general terms of the testa- visG Q06S not put dowress tor's real estate affords no indication of an intention to dis- to her eiec- pose of the dower. This was adjudged so long ago as the case of Lawrence v. Lawrence (rf), where a testator gave (d) 2 Vern. 365, 1 Eq. Ca. Ab. 218, pi. 2, 1 Freem. Ch. Ca. 234, 3 B. P. C. Toml. 48-t, 8 Vin. Abr. Copyh. 361, pi. 22 ; see also Lemon v. Lemon, 8 Vin. Abr. Copyh. 366, pi. 45, 2 Eq. Ca. Ab. 355, pL 13; Hitchin \>. Hitchin, Pre. Ch. 133, 2 Vern. 403; Brown v. Parry, 2 Uick, 685; Incledon r. Northcote, 3 Atk. 430; Strahan v. Sutton, 3 Ves. 249; Lord Dorches- ter 0. Earl of EfSngham, G. Coop. 319; See also Ayres v. Willis, 1 Ves. 230; Waller ». Fuller, 8 Vin. Abr. Copyh. 244, pi. 19. [So a bequest fo the widow on condition that she make no claim on " the residue of my property," was held not to exclude her from dower. Wetherell v. Wetherell, 4 Gif. 51.] bert V. Wren, 7 Cranch, 370; Adsit ». Adsit, 2 Johns. Ch. 448 ; Smith v. Knishern, 4 Johns. Ch. 9; Dickson v. Robinson, Jacob, 503; Shaw u. Shaw, 2 Dana, 342; Morgan D.Ed- wards, 1 Dow& Clark, 104; Gordon «. Ste- vens, 2 Hill, Ch. 48; Edwards v. Morgan, 13 Price, 782; Duncan v. Duncan, 2 Yeates, 302; Jones 1). Powell, 6 Johns. Ch. 194; Shotwell V. Dedam, 3 Ohio, 1; Ellis v. Lewis, 3 Hare, 310. That is, at common law, where there is a devise of real estate to a wife, without any declaration in the will that it is to be in lieu of dower, she is not put to her election, but may take both devise and dower. Shaw v. Shaw, 2 Dana, 342. See, also, Larrabee v. Tan Alstine, 1 Johns. 307 ; Kennedy ». Med- row, 1 Dall. 414; Ambler v. Norton, 4 Hen. & M. 23. She is not bound to make her elec- tion until all the circumstances are known, and the condition and value of the funds are clearly ascertained. 2 Story, Eq. Jut. § 1098 ; Kidney v. Coussmaker, iS Ves. (Sum- ner's ed.) 136, note (a); Hall v. Hall, 2 M'Cord, Ch. 280. An election made under a mistake will not bind her. Snelgrove «. Snelgrove, 4 Desaus. 274; 4 ICent, 57. Still she may lose her right by delay. Blunt v. Gee, 5 Call, 481. So, a widow claiming dower, and having it partitioned off to her by legal process, and holding and enjoying the same for several years, has made her election, and cannot afterwards set it aside and claim her third in fee-simple, under the statute, when the estate is nearlj- settled. Quarles v. Gar- nett, 4 Desaus. 146. See Pigott v. Bapley, M'Clel. & Y. 56; Upshaw v. TJpshaw, 2 Hen. & M. 3; O'Driscoll v. Koger, 2 Desaus. 299; 2 Story, Eq. Jur. § 1088, and notes ; Allen v. Pray, 3 Fairf. 138; Perkins v. Little, 1 Greenl. 148; Kennedy v. Medrow, 1 Dall. 415; Stark V. Hunton, Saxt. 216. In some cases, the intent to exclude the right to dower has been shown by matters extraneous to the will. Baily v. Duncan, 4 T. B. Mon. 265, 266. By the General Statutes of Massachusetts, when any provision is made for a widow by will, she must elect whether she will have that or her dow- er; but she shall not have both, unless it plainlv appears, by the will, that the testator so intended. Gen. Stat. c. 92, § 24. This makes an alteration of the rule at common law. Reed «. Dickerman, 12 Pick. 149 ; A lien V. Pray, 3 Fairf. 138. Still, a provision for the widow in her husband's will does not affect her claim to one third of the residue of his personal property. Kempton, Appellant, 23 Pick. 163; Nickerson i-. Bowlv, 8 Met. 424 ; Briggs v. Hosford, 22 Pick. 288". And the provision of the General Statutes of 1860 has since been changed, 1861, c. 164. By the Stat- utes of 1871, c. 200, "a widow for whom no pro- vision is made in the will of her husband may tile her waiver of the provisions of the will in like manner and with the same effect as if provision had been made for her in the will.'* For circumstances amounting to an election by the widow, see Quarles v. Garnett, 4 De- saus. 146 ; Blunt v. Gee, 5 Call, 481; Steele V. Fisher, Edw. 435 ; Shaw v. Shaw, 2 Dana, 342; Clay D.Hart, 7 Dana, 6; Watkins v. Watkins, 7 Yerg. 283; Pearson v. Pearson, 1 Bro. C. C. (Perkins's ed.) 292, and notes and cases cited; Walce d. Wake, 1 Ves. (Sumner's ed.) 335, and notes; Wilson u. Hamilton, 9 Serg. & R. 424. The statutes of many of the states make provision for the period of time within which the widow shall make her election. The statute of Virginia, 1727, gave the widow nine months, now ex- tended to one year. See Kinnard v. Williams, 8 Leigh, 400; Code, 1873, Title 31, ch. 106, p. 854. The R. S. of Ohio, 1880, Vol. 2, Title 2, ch. 1, p. 1433, give the widow one year. The Gen. Stat, of Vermont, 1862, Title 16, ch. 55, p. 412, allow the widow the period of eight mouths for her election after probate. The statutes of Massachusetts give six months after probate of the will ; and, like those of New York, they assume that the substituted provision in lieu of dower is taken, unless waived within the time pre- scribed. See Laws of 1861, c. 164; 1 Rev. Stat. New York, 741, §§ 11, 12, 13, 14; Pratt B. Felton, 4 Cush. 174; Adams v. Adams, 5 Met. 277. But it was further provided by the statute of Massachusetts (Rev. Stat. c. 68, § 13), that "if the widow is deprived of the provision made for her, by will or other- wise, in lieu of dower, she may be endowed anew, in like manner as if such'provision had not been made." (See Gen. Stat. c. 90, § 13.) The widow has been held to come within this provision, if all the propertj- of the testator is taken or required for the pay- ment of his debts. Tlioinpson v. McGaw, 1 Met. 66. The Revised Statutes of Illinois, 1880, ch. 41, p. 426, declare that any provision by will bars dower, unless it be' otherwise expj-essed in the will, and unless the widow, within one year, renounces the provision. See 4 Kent, 58, 59, note (c). 478 ELECTION". *459 certain legacies to his widow, and also part of his real estate during widowhood, and devised the residue of his estate to other persons ; and it was held in D. P. that she was not precluded by the acceptance of the legacies from claiming dower in the whole. And the addition of the word ' ' all " would not enlarge the operation or varj' the construction of the devise, which is still but a gift of " all " the testator's own estate. Thus, in Thompson v. Nelson (e), where a testator devised ' ' all and singular " his real estates whatever, and all his goods, chattels, and personal estate, to trustees, upon trust in the first place to pay his wife the sum of 480^., and then to apply .the resi- due amongst his three children — Sir L. Kenyon, M. R., held that she was entitled to both, on the principle that to put the widow to her election, " it should appear that, if she took both dower and the provi- sion under the wUl, some other part of the testator's disposition would be defeated." According to these authorities, as well as upon principle, it seems to be immaterial whether the lands devised to the widow be or be not part of that out of which her dower arises ; nor, it should seem, would her dower be excluded even in respect of the lands so devised. Where the contrary has been decided, it has always been upon the ground of the testator having introduced into the devise some special provision w;hich is irreconcilable with the widow's claim of dower ; as by pre- scribing a * mode of enjoyment that requires the devisee to have *459 the entirety of the property. Thus, in Birmingham v. Kirwan (/), where a testator devised his house and demesne to trustees, upon trust to permit his wife to enjoy the same for life, she paj-ing 13s. j'early for every acre, to keep the house in repair, and not to let, except to the person who should be in possession of the remainder; and the. residue of his lands, subject to debts and legacies, to A. for life, remainder to B. in fee. The ques- tion was as to the wife's right of dower : first, in the part ■^\^^i provi- devised to her ; secondly, in the residue. Lord Eedesdale : sions are in- , " The result of all the cases of implied intention seems to with claim of be, that the instrument must contain some provision incon- do^e"^- sistent with the assertion of a right to demand a third of the land to be set out by metes and bounds. It is clear the assertion of a right of dower as to the house and demesne would be inconsistent with the devise of the house and demesne. The house and demesne are devised- with the rest of the estate to trustees. That devise taken simply might be subject to the widow's right of dower, but it is coupled with a direc- tion that she shall have the enjoyment of the house and demesne, pay- ing a rent of 13s. an acre, which must be paid out of the whole {g). (e) 1 Cox, 447; see also Dowson «. Bell, 1 Kee. 761; Harrison v. Harrison, ib. 765. ?/) 2 Sch. & Lef. 444. (.y) Why out of the whole? If a devise of my house and demesne does not include the dower, how can an obligation to pay a certain rent for every acre (which clearly means every acre of what is before devised), extend itV See infra. 479 *460 ELECTION. Then follow directions that she shall keep the house and demesne in repair, that she shall not alien, except to the person in remainder; directions which apply to the whole of the house and demesne, and could not be considered obligations on a person claiming title bj' dower. It was clearly, therefore, the intention of the testator, that the wife should enjoy the whole of the house and demesne under a right created by the will ; and not part of it under a right which she previously had, and part under the wHl." On the other question, however, his Lord- ship held, that the devise of the beneficial interest in the house and demesne was not a bar tothe widow's right of dower in the rest of the estate. The will might be perfectly executed as to all other purposes, without injury to the claim of dower. With respect to the rest of the estate, it might be mortgaged or sold subject to that claim. It should be observed, that a restriction on letting, which was one As to direc- of the circumstances adverted to by Lord- Redesdale, in the tiontolet; preceding case, had been held bj' Sir R. P. Arden, M. E., in Strahan «. Sutton (A), not to render the devise inconsistent, *4:60 with *the dowress's claim, though it was contended that she might have her dower set out by metes and bounds ; in answer to which the M. R. said: "It has been determined, that the widow need not take it by metes and bounds ; she may take a rent-charge ; she may take one third of the rents and profits. To think she would occupy one chamber in this house, in order to let it to those persons " (i.e. the persons to whom it was prohibited to be let), " is really most extravagant.'' The devise in Strahan v. Sutton containing this pro- hibitory direction was to another person, and not to the dowress as in Birmingham v. Kirwan. The principle of the two cases, however, is not easily distinguishable. Subsequent judges, certainly, seem to have followed Lord Redesdale, in allowing weight to circumstances of a less decisive and unequivocal character than Sir R. P. Arden thought — to use oc- J^^cessary («') to create an inconsistency which would exclude cupy, and the dowress's claim. As in Miall ij. Brain (i). Sir J. Leach, enjoy; V.-C, held, that the claim of dower was inconsistent with a trust to permit another to use, occupy, and enjo}- the estate for her life ; his Honor thinking that the testator contemplated the personal use, occupation, and enjoyment. So, in Butcher v. Kemp (l) , the same learned judge considered that . a' direction to trustees (to whom a farm was devised during — to carry on ^ o business and the minority of the tenant for Ufe, who was the testator's '^'' daughter) ' ' to carry on the business thereof, or to let the same upon lease for her benefit," was inconsistent with the claim of dower. "The testator's plain intention," said the V.-C. "is that his ) See his judgment in French i/.Davies, 2 Ves. Jr. 576, and in Strahan v. Sutton, 8 Ves. 250. . (J) i Mad. 119. (0 5 Mad. 61; [see also Koadley v. Dixon, 3 Kuss. 192. 480 ELECTION. *461 trustees should, for the benefit of his daughter, have authority to con- tinue his business in the entire farm which he himself occupied, consist- ing of about 136 acres ; and this intention must be disappointed, if the widow could have assigned to her a third part of this land." How far this argument and decision are obnoxious to the reasoning applied to some of the cases stated in the sequel, the learned reader will form his own opinion. [Again, in Hall v. Hill {m) , there was a general devise of the testa- tor's estates to a trustee, upon trust to pay his wife an . , . V. ■ ^ power to annuity, and to permit her to enjoy part of the property lease puts the " for her life, and the residue was otherwise disposed of. ^g'^jjljl^''' ^^^ By a codicil a power to lease was given to the trustee. Sir E. Sugden, C, decided that the widow must elect between her dower and the * benefits under the will. He observed, that *461 ' ' he was not aware how a power of leasing in the case before him could be exercised over all the estate, if the widow's right to dower were allowed. He could understand how the rents might be enjoyed or the estate sold subject to the claim for dower ; but how could the estate be demised subject to the right of the lady to have a third part set out by metes and bounds?" In O'Hara v. Chaine (n), before the same judge, there was a devise to trustees, upon trust to sell and a power to lease from year to year so much as remained unsold, and also a direction to the trustees to complete the sale of lands contracted to be sold by the testator in his lifetime. As to the estates contracted to be sold, the court said there was no doubt the widow must elect as in the absence of anj' stipulation the contract imported that they were to be conveyed discharged of dower ; as .to the residue the power of leasing was suflicient to show she must also elect. These decisions as to the effect of a power of leasing have been followed bj' Sir J. K. Bruce, V.-C, in Grayson v. Deakin(o), and by Sir R. T. Kindersley, V.-C, and the Court of Appeal, in Parker v. Sowerby {p) (in which latter case the circumstance that the power was limited to the minority of the devisees was considered to make no difference) ; and, yielding to the current of authorit}', bj' Sir J. Stuart, V.-C, in Linlej^ v. Taylor {q). However fine the distinction, 3'et it is clearl}' settled, in accordance with the opinion of Lord Redesdale (r) , that a general de- Power of sale vise of all the testator's estates upon trust for sale will not fi^^^^^^' ^"' put the widow to her election ; because the sale may be her election, made subject to her right of dower (s) ,^ But in a case where there was (m) 1 D. & War. 94, 1 Con. & L. 120. («) 1 J. & Lat. 662. (a) 3 Ue G. & S. 298; and see Reynard v. Spence, 4 Bear. 103; Lowes ». Lowes, 5 Hare, 501; Pepper v. Dixon, 17 Sim. 230. See also Thompson v. Burra, L. R. 16 Eq. 592. (;;) 1 Drew. 488, i V. M. & G. 321, overruling Warbutton v. Warbutton, 2 Sm. & Gif. 163. (?) 1 Gif. 67. (,■) Ante, p. 459. (s) Ellis V. Lewis, 3 Hare, 313; Gibson v. Gibson, 1 Drew. 42; Bending v. Bending, 3 K. & J. 257. 1 See Colgate v. Colgate, 8 C. E. Green, 379. VOL. I. 31 481 *462 ELECTION. a devise of a particular house, with the furniture and appurtenances, upon trust for sale, Sir L. Shadwell, V.-C, thought the widow must elect (t). " How," he asked, " could there be a sale of the house if the lady had said, ' No, I will have a third of it ' ? Directing the property to he sold with the appurtenances attached to it, is necessarily inconsistent with the claim of dower." The diiference between the two cases is not clear. Election asto Where lands are included in one devise, to trustees, property im- *462 and powers * OP directions are given to them as to plied from p^rt sufficient to exclude the widow's dower as to powers relat- ,,.,,.. , , . ing to part, that part, she will, it seems, be put to her election as to the other part also. The powers or directions expressed as to part show how the trustees were intended to take the whole (m).] Another point much discussed has been, ,as to the effect of the prop- As to devise ^^^Y being devised to the dowress and others in equal shares, to dowress In Chalmers v. Storil (x) , the devise was in these words : in equal "I give to my dear wife A. and my two children (naming shares. them) all my estates whatsoever, to be equally divided amongst them, whether real or personal." One of the questions was, whether the wife, taking a share under this devise, was bound to relin- quish her dower. Sir W. Grant considered the claim of dower to be directly inconsistent with the disposition of the will. He said: "The testator directing all his real and personal estate ' to be equally divided,' &c., the same equality is intended to take place in the division of the real as of the personal estate, which cannot be, if the widow first takes out of it her dower, and then a third of the two remaining thirds. Far- ther, by describing his EngUsh estates, he excludes the ambiguity which Lord Thurlow, in Foster v. Cooke (y), imputes to the words 'my estate,' as necessarily extending to the wife's dower." Lord Thurlow's observation in Foster v. Cooke, to which probably Remarks on ^^'^ ^' Gr^aut referred, was made in answer to an argument Chalmers v. founded On the testator's direction to trustees to possess "■ themselves of "all his estates and substance," and was as follows : " Because he gives all his property to trustees, am I to gather from his having given all he has, that he has given that which he has not? " That he would not have considered the word " English " (which, it is observable, does not appear in the case as reported), to constitute a ground for varying the construction, is evident from his decision in Read v. Crop (2) , where he held that a devise of estates in a certain locality did not demonstrate an intention to include the testator's wife's interest in lands in which he and she had undivided shares ; or, indeed, (0 Parker ». Downing, 4 L. J. N. S. Ch. 198. («) Miall «. Brain, i Mad. 119; Roadley v. Dixon, 3 Euss. 204; O'Hara v. Chaine, IJ. & Lat. 665.] (x) 2 V. & B. 222. [But is the report correct? See 3 K. & J. 261, 262.] \y) a B. C. C. 347. {i) Ante, p. 454. 482 ELECTION. *464 even lands belonging exclusively to the wife, though the testator had no lands of his own answering to the locality. It is evident, how- ever, that the M. R. did not wholly rely on this ground, as * he *463 lays much stress upon the words importing equality of division. That these words ought not to influence the construction, wiU be appar- ent upon a moment's consideration. The presumption being (as we have seen), that a testator means to dispose of his own interest exclu- sivelj' of that of any co-owner, it follows that every devise is first to be read as applying to that interest, and, unless some repugnance or inap- titude occurs in such an application of the testator's language, there is no ground for extending the devise to that portion of interest which is not disposable by him. Now, to try Chalmers v. Storil by this test. A testator gives aU his estates, or all his English estates (no matter, for the present purpose, which), to A. (who has dower or any other interest in the lands), B., and C, " equally to be divided among them." These words are obviouslj^ satisfied bj' applying them to the interest, whatever it may be, belonging to the testator ; for nothing is to be divided but what is before given ; and as it is clear that, if the devise had stopped at the names of the devisees, it would not have included the dower, the subsequent words evidently ought not to be made a ground for extending them. The argument for such a construction is evidently fallacious : it makes the words ' ' all my estates " extend to the dower, by reason of the after-added expression, " equally to be divided ; " assuming, in opposition to the established construction of devises couched in these general terms, that the dower is one of the subjects " to be divided." It is remarkable that a judge, whose logical acuteness and powers of reasoning have deservedly excited admiration, should not have instantlj' detected the fallacy of the argument (a) . But, however unsatisfactory may be the principle upon which Chal- mers V. Storil stands, it seems to have been adopted in Chalmers v. several subsequent cases. Thus, in Dickson v. Robinson (b), i^^"d/°^' where the testator having given his real and personal estate pigi^gon ^ to his widow, upon trust, for the equal benefit of herself, his Robinson. two daughters, and the child or children with which she was then preg- nant — Sir T. Plumer, M. R., on the authority of Chalmers v. Storil, held, that the widow, if 'She took under the will, must relinquish her dower. So, in Roberts v. Smith (c), where a testator devised Roberts ». to his wife *M., a freehold messuage in fee-simple, *464 Smith, his ready money, and household furniture. He then devised to A. and B. and the said M. certain freehold and leasehold messuages, and all other his estates and property, upon trust to apply [(a) See, however, _per Wickens, V.-C, Thompson v. Burra, L. R. 16 Eq. 602 ; and see Tavlor «. Taylor, 1 Y\ & C. C. C. 727, where the power to lease was not relied on by the"V.-C.] (6) Jac. 503. (c) 1 S. & St. 613. [And see Goodfellow v. Goodfellow, 18 Beav. 356.] 483 *465 ELECTION. one half part of the money arising therefrom to M., so long as she should remain unmarried, for the support of herself and the children of her former husband, until they should attain twenty-one ; and then, upon trust to pay the same, and also the other half part of the moneys to arise as aforesaid from the time of the testator's death, for the main- tenance of his (the testator's) children until twenty-one ; and, on at- taining that age, such child to take an equal share of his said freehold property. The widow claimed dower. Sir J. Leach, V.-C, said: " The principle referred to in Chalmers v. Storil decides this case. The plain intention of the testator was, that the wife should have half the income of his property for the maintenance of herself and her children by her former husband, and that the other half of the income should be applied to the maintenance and education of the testator's own children. That intended equality would be disappointed if the wife were in the first place to take her dower." Undoubtedly, if an intention to give an immediate interest in the J, , entire corpus of the land can be perceived in these cases, the upon Roberts intended equality would be destroj'ed bj' letting in the dower. V. bmit . -gjj^ jj^^ does this intention a:ppear ? There is no other evi- dence of it than a simple devise of the land, which all the authorities, from Lawrence v. Lawrence down to Dorchester v. Effingham, tell us demonstrates no intention to give a larger interest than the testator has ; otherwise, indeed, the question could never arise, as the widow must, in every case, be excluded from dower in land devised bj' the will, or re- linquish all claims under it. The probability is, that in these cases the testator never thinks of the dower ; but that, as Lord Alvanley has observed, is not sufficient for her exclusion : "it must appear that he did know it, and meant to bar her, or that what she demands is repug- nant to the disposition " (rf). This principle, indeed, is not denied in Chalmers v. Storil and Eoberts v. Smith, but the great difference con- sists in the application of it. Ellis D. C^ii" J- Wigram commented on these cases in Ellis v. Lewis. Lewis (e), where the devise was upon trust to sell and Devise on *465 pay debts and * legacies, and invest the residue of the trust to sell. proceeds, and pay a moiety of the income to the tes- tator's wife during her widowhood, and the other moiety to his sister for life, with bequests over after their decease. The V.-C. , in deciding that the widow was not obhged to elect, founded his judgment on the ground that, according to the cases, a trust for sale was not inconsistent with dower, and that the direction to divide the proceeds of sale could not decide what the subject of the sale was, so as to show that it included the interest of the widow : and he distinguished the cases before noticed, and apparently opposed to this construction, on the ground -that in them (d) See French v. Davies, 2 Ves. Jr. 577. [(e) 3 Hare, 314; see also Gibson v. Gibson, 1 Drew. 58; Bending*. Bending, 3 K. & J. 257.] 484 ELECTION. *466 there was a direction to divide the subject of gift itself; in the case before him, it was tlie proceeds of the sale only that were to be divided, and he referred to tlie close of the judgment in Chalmers v. Storil, as show- ing tiiat, in Sir W. Grant's opinion, the testator there intended his property to be divided as it stood in specie, an intention certainly inconsistent with the right of dower. J In Reynolds i>. Torin (/) , where a testator bequeathed to his wife during her life four sevenths of the income of his general Reynolds v. residuary estate, in which lie intended to include a Scotch Tonu. heritable bond, as appeared hy the schedule of his propertj' annexed to his will (in which he had specified the amount of this bond) , but the infant heir having elected, under the order of the court, to claim against the will, took that bond by his legal title, subject to the widow's right of terce — Lord Gifibfd, M. E., held, that the widow must elect, and that, although disappointed of the four sevenths of the interest of the bond debt which the testator meant her to enjoy, she must, if she claimed what he had effectually bequeathed to her, bring in her terce to increase the general residuary estate. As the testator had stated this bond at its full amount in the sched- ule of his propert3', perhaps this case may be sustained in- Remarks dependently of the reasoning on which Chalmers v. Storil ^^^ t-.'^To- and the other cases of that class (which, it is observable, rin. were not cited in it) , are founded ; though certainly the ground of dis- tinction would have been much stronger if the widow's terce had extended to a portion of the capital ; for, subject to her claim in re- spect of part of the income, the capital was still the property of the testator. Another question which has been much litigated Dowress not between the * dowress and devisees, is, whether she *466 I'airedbv ' ' mere annuity is put to her election bj' a rent-charge, or an annuity out of prop- charged on the property out of which the dower arises. ^'^^' Lord Hardwicke, in Pitts v. Snowden(5'), decided that she was not [and although this has not been uniformly followed {h) it] seems to have been treated as clear [in all the later cases (i)] . And it seems to be the sound doctrine. It ought, in the words of Lord Alvanley, in French v. Davles(y), "to be clear, plain, and in- controvertible, that the testator could not possibly give what he has given, consistently with her claim of dower." A mere annuity [though a circumstance deserving weight {k) ] certainly furnishes no such incon- (h) Arr Euss. 123. (g) 1 B. C. C. 292, n. mold V. Kempstead, Amb. 486, 2 Ed. 236 ; Villa Real v. Lord Galwav, Amb. 682, more fully reported 1 B. C. C. 292, n.: Jones ». Collier, Amb. 730: Wake f.Wake, 3 B. C. C. 255, 1 Ves. Jr. 135. (i) Peareon ». Pearson, 1 B. C. C. 291 ; Foster v. Cooke, 3 B. C. C. 347; Miall v. Brain, 4 Mad. 119 : Dowsonu. Bell, 1 Kee. 761; [Holdich «. Holdich, 2 Y. & C. C. C. 18; Lowes v. Lowes, 5 Hare, 501; Hall v. Hill, 1 D. & War. 103.1 (/) 2 Ves. Jr. 572. {{k) Per Witkens, V.-C, Thompson v. Burra, L. R. 16 Eq. 602.] 485 *467 ELECTION. trovertible evidence ; on the contrary, the more reasonable supposition is, that the testator gives that which he has power to dispose of, and that only; and the answer to the argument commonl3' urged, that the remedy by distress requires that the entiret^^ of the lands should be sub- ject to the annuity, and not the two thirds onlj-, is that the dowress takes not an undivided third, but the entirety' of a divided share, which is set out bj- metes and bounds. In French v. Davies (as well as in Greatorex i>. Carey (^), where a similar decision was made bj^ Lord Alvanley), the annuity was charged on a mixed fund, consisting of both real and personal property, and the same occurred in Miall v. Brain. In Pearson v. Pearson (m). Lord Loughborough seems to have thought that the annuity was a bar of dower if the annual value of the lands was not adequate to satisfy both ; but this appears to introduce a fluctuating and unsatisfactory rule, and the notion derives no counte- nance from any of the recent cases (ra) . And here it may be observed, that where a widow is barred of her To whom the •^^^^1' ^"^ lands devised by the will, by a benefit given to her bar of dower in Satisfaction of such claim, the exclusion is considered as enures. made, not in favor of the devisee personally, but of the estate ; and, consequentl}', it enures to the benefit of the heir, in case of the devolution of the land upon him by the failure of the de- vise (o). *467 *But it has been decided that a gift to the widow in satisfac- tion of all her claims on the testator's estate, does not preclude Widow li^r from claiming her share of the personalty under the whenexclud- Statutes of Distribution, in the event of the failure of a be- share of per- quest of that property.^ And, therefore, where a testator sonaity. g^ye certain property to his wife in satisfaction of all dower or thirds which she could claim out of his real and personal estate, or either of them, and bequeathed his personal estate to charitable pur- poses (which bequest was void as to real securities) , it was held that the clause in question did not prevent the widow from claiming her share in the real securities, with the next of kin, since neither the heir at law, nor by parity of reasoning, tlie next of kin, can be barred by anything but a disposition of the heritable subject, or personal estate, to some persons capable of taking (jo). [So an annuity given to the widow " in lieu and satisfaction of all dower and thirds or other claims and de- mands which she could or might have had or been entitled to" out of (0 6 Ves. 615. (m) 1 B. C. C. 291. [(n) Except Warbutton u.Warbutton, 2 Sm. & Gif . 163, which, however, is overruled, ante p. 461.] (o) See Pickering v. Lord Stamford, 3 Ves. 337. (p) Picltering 1). Lord Stamford, 2 Ves. .7r. 272, 581, 3 Ves. 332, ■192; see also Sampson v. Hutton, 11 Tin. Abr. Copyh. 185, 2 Eq. Ca. Ab. 439, but more correctly stated 3 Ves. 338; [but a declaration to this effect in a settlement will of course effectually bar the widow. Gurly V. Gurty, 8 CI. & Fin. 743; Druce v. Denison, 6 Ves. 395; the former caseapneai-s to overrule Slatter v. Siatter, 1 Y. & C. 28. 1 See Kempton, Appellant, 23 Pick. 163; Hosford, 22 Pick. 288; Crane ». Crane 17 Nickerson v. Bowly, 8 Met. 424; Briggs v. Pick. 422; and ante, p. 458, n. ' 486 ELECTION. *468 the testator's estate, will not bar her right as customary heir to her hus- band in respect of copyholds not disposed of by his will {q).'\ The difference between such a case and that of dower seems to be this : Where a testator gives a benefit in lieu of dower, he Effect of fail- purchases an interest in the estate for the benefit of any and "^tion^^f ^''"' every person claiming that estate under him, whether as dowei-iands, heir or devisee ; and the exclusion of the dower arises, not JSt ir^fvenTa from the disposition of the property (which, it has been lieu of dower, shown, will not per se exclude the dower), but from the provision for the widow being given expressly in satisfaction of it, and, consequently, is not affected by the failure of the disposition. "Whereas, in the case under discussion, though the gift is expressed to be in satisfaction of the widow's claim on the testator's estate, yet, in fact, the efficient part of the exclusion consists in the disposition, which gives the property to some other person : that disposition therefore failing, the widow's claim under the Statutes of Distribution is revived ; and such claim is not inconsistent with any disposition in the will. It would seem to follow, from this view of the subject, that where the exclusion of the dower by means of election arises merely from the terms and mode in which the estate * subject to the dower is devised, there is strong *468 ground for holding that the failure of the dcN'ise lets in the claim of dower. The question, of course, is always a question of intention to be collected from the whole will. [And with regard to the widow's exclusion from her share of the per- sonaltj', it is said to be different if, on the face of the wUl, Distinction in there is an original intestacy as to a part of the personal es- "^^^^ °^ P^r- tate : on the ground that the exclusion cannot then be rep- where widow- resented as auxiliary to a,nj disposition of that portion of '^ "J 'j'Tl (. the personalty : it must have an independent effect ; and part of the the only effect it can possibly have is to exclude the widow JStfundis^ '^ from participation in the undisposed part of the personalty, posed of. This was so decided by Sir J. Stuart, V.-C, in the case of Lett v. Ran- dall (r). He distinguished the case from one where it might be attempted to exclude the heir from taking undevised realty, without effectually disposing of it to some other person. The equivalent to that in regard to personalty would be an attempt to exclude all the next of kin, which would be as nugatory as an exclusion of all mankind. In the case before the court, the exclusion of the widow would enure to the benefit of the remaining next of kin.] A provision made for a wife " for her jointure, and in lieu of dower and thirds, at common law [out of any real or personal es- What bars tate," though, strictly speaking, the widow has no thirds at s^arTin per- common law out of her husband's personal estate, has been sonal estate. (j) Norcott V. Gordon, 14 Sim. 258. (r) 3 Sm. & Gif. 83, not appealed on this point, 2 D. F. & J. 388. But see Sykes v. Sykes, L. R. i Eq. 200. 487 *469 ELECTION. held to extend to her distributive share out of such estate («). Where the provision was made " for a jointure and in lieu of dower and thirds at common law" (without express mention of personal estate), and was charged on the land only, it was held to be clear that the widow was excluded only from further claim against the land (t). But where the provision was made in similar terms, and charged both on real and personal estate, it was held that you must look to the fund out of which the provision was made, and that the widow was therefore excluded from her share of the personal as well as the real estate (m). The words " in lieu of dower or thirds at common law or otherwise," have been held to extend to the wife's right of freebench in copyholds («?).] The question whether a dowress is put to her election by the contents Effp t of 3 & ^^ ^^^ husband's will, wiU less frequently arise in re- 4 Will. 4, c. *469 gard * to widows whose marriage was since the 1st of pofnts'd^- January, 1834 ; as such persons may, under the act cussed inthis of 3 & 4 Will. 4, c. 105, be excluded from dower by various " *P ^'' acts of the husband, including a disposition of the property by deed or will [(for which a general devise has been held suffi- cient (a;))], or a mere declaration therein, or a rent-charge, or other in- terest devised to her out of any lands subject to dower ; but a mere gift of personal estate, or of an interest in lands not liable to dower, will not defeat the widow's claim. [This act does not affect cop3-holds (y) ; As to copy- but it must be remembered that the Wills Act, 1 Vict. c. 26, holds. jjjjs been held {z) to render a devise of copyholds as effectual as a surrender to bar the widow of freebench. The ordinary doctrine of election may, doubtless, be excluded either Gift in lien of wholly Or partially, if the testator so desires. "The rule a specified in Noys r. Mordaunt," said Lord Hardwicke (a) , "of not not"fxciude claiming by one part of a will in contradiction to another, is from another a true rule, but has its exceptions. . . . Several cases have ^' been, and several more may be, in which a man shall give a child or other person a legacy or portion in lieu or satisfaction of par- ticular things expressed, which shall not exclude him from another bene- fit, though it may happen to be contrary to the will ; for the court will not construe it as meant in lieu of everything else when he has said a particular thing-; which East has done in his will, declaring what the provision for the plaintiff should be in satisfaction of, not of this sum of money. Let the defendant, therefore, transfer it to plaintiff." The case put by Lord Hardwicke (ending with the words "said a particular thing") occurred in Brown v. Parry (J), where a testator (s) Guvly ». Gurlv, 2 D. & Wal. 463, 8 CI. & Fin. 743. (() Colleton V. GaVth, 6 Sim. 19. (m) Thompson v. Watts, 2 J. & H. 291. (») Nottley V. Palmer, 2 Drew. 93. (x) Lacey u. Hill, L. R. 19 Eo. 346. («) Powdrell v. Jones, 2 Sm. & Gif. 407; Smith v. Adams, 5 D. M. & G. 712. (z) Lacey v. Hill, L. R. 19 Eq. 346, ante p. 60. (a) East 1). Cook, 2 Yes. 33. See also Bor v. Bor, 3 B. P. C. Toml. 167. (6) Komilly's No. Cas. 85, also reported, but unperfectiv, 2 Dick. 685. 488 ELECTION. *470 gave his wife an annuity " to be accepted by her in lieu of her dower," and also bequeathed other benefits to her (without adding in lieu of her dower) ; the widow elected not to take the annuity, but to keep her dower ; and it was held by Lord Thurlow that she was nevertheless entitled to take the rest of the testator's bounty, and that the case was too clear for argument. In truth, this is not properly a case of election at aU; which arises only when something is taken against the will. There is here a legacy upon an express condition which is submitted to ; and another legacy without express condition. Why should a * condition be annexed by implication to the latter bequest, when *470 by taking it the legatee disappoints no part of the will ? But the case is different where a gift is made in lieu of a particular thing expressed, and there is then a question, — not whether the lega- tee, while rejecting the proposed exchange, can take another gift under the will unconditionally, but — whether, while accepting the exchange, he can insist on his right to another property against the will. Thus, in Wilkinson v. Dent(c), where a testatrix gave to her brother T. 10,000?. in satisfaction of any sums in which she then was or might at her death be indebted to hun, and to her brother W. 3,000Z. in lieu and satisfaction of any rent-charge out of a certain part of her real estate, and specifically disposed of the entirety of another estate, in which both brothers had interests ; it was held that the brothers taking their legacies must bring these latter interests into account as well as the debts and the rent-charge. Sir W. M. James, L. J., said: " There are two legacies which the will declares are to be taken in satisfaction of certain demands against the estate. It is the common case where the father of a family leaves a legacj' to a member of his family, and says you must take that and not raise any question against mj' estate. It is argued that in such a case there is a special direction which prevents election as to other parts of the will, and reference was made to East V. Cook. It is not verj' easj' to understand that case, but it was prob- ably of this kind : My eldest son is owner of a bit of property ; it would be verj' convenient that this bit of property should go along with a property which I am devising to my second son ; so I make a devise of this bit of property to the second son ; and, among other gifts to my eldest son, I give him a piece of property which I state in my will to be in lieu of his bit of propertj', which I purport to take awaj- from him (rf). In such a case the eldest son is merely put to his choice between those two bits of property. It is a case where the ordinar}- doctrine of elec- tion is excluded by an apparent expression of intention hy the testator, (c) L. R. 6 Ch. 339. See also Fytche n. Fytche, 19 L. T. N. S. 343; the report of which, L. R. 7 Eq. 494, omits to state the sift upon which the wliole case turned, viz. the gift of the wife's navigation sliaires, after her death, away from her. {d) The L. J. did not say how much of this he supposed to be expressed in the will, and how much to be supplied by conjecture. The caf^e put resembles that put by Lord Hardwicke, but both of them differ from the case which actuallv arose in East v. Cook, since what the plaintiff there claimed and took he took against the will, viz. Goff's 1,000/. 489 *471 ELECTION. that only one of the gifts to the eldest son is conditional on his giv- *471 ing up what the testator purports to take away from him. * Such a case in no way governs the present. . . . The question is whether there is testamentary bounty to a person whose estate and right are by another part of the will interfered with. It is clear there is, though before the amount of the bounty can be ascertained, the amount of the claim which the legatee had against the testatrix must be ascertained." In order to presume an election from the acts of any person, that From what person must be shown to have had a full knowledge of all tum f^p^rt*^ *^^ requisite circumstances as to the amount of the diflTerent suined. properties, his own rights in respect of them, &c. (e) ; and a person having elected under a misconception is entitled to make a fresh election {/) : and the fact of a person not having been called upon to elect and entering into the receipt of the rents and profits of both properties, as it affords no proof of preference, cannot be held an election to take one and reject the other {g).'] ' (e) Wake 1). Walte, 1 Ves. Jr. 335, and the other cases mentioned 1 Sw. 381, n. : Eevnard V. Spence, 4 Beav. 103; Edwards v. Morfrnn, 13 Price, 782, IW'Clel. 541, 1 Bli. N. S" 401. Brice «. Brice, 2 Moll. 21; . Wintour v. Clifton, 21 Beav. 468; Sopwith v. Maiighan, 30 Beav. 235; Wilson v. Thoriibury, L. R. 10 Ch. 239. (/) Kidney v. Coussmaker, 12 Ves. 136. (g) Padbury v. Clark, 2 Mac. & G. 306 ; Brice ». Brice, 2 Moll. 21; but see Worthington u. Wiginton, 20 Beav. 67; and generally, as to what acts constitute, election, see note to Dillon V. Parker, 1 Sw. 382; Giddings v. Gicldings, 3 Kiiss. 241; Brisco v. Brisco, 1 J. & Lat. 334; Mahon «. Morgan, 6 Ir. Jur. 173; Ruttledge u. Euttledge, 1 Dow. & CI. 331. As to how far thegain or loss to the person called on to elect is to weigh in presuming election, see Harris V. Watkins, 2 K. & J. 473.] 1 Whether enforced on the law or equity Brown, C. C. 255; Padbury v. Clark, 2 Mac. side, election depends upon principles of & G. 298 ; S. C. 2 Hall & T. 341 ; Spread v. equity and justice. It will not be binding Morgan, 11 H. L. Cas. 588, 602, 611, 615. when made in ignorance of material facts. And when a will has been proved in common Watson B.Watson, 128 Mass. 162, 155. So too form (by the executor, exparle) a legatee may an alleged election may be repudiated when aftei'wards, upon tendering the sum received made (though with knowledge of the facts) in under the will, or upon bringing it into court, misapprehension of the party's legal rights contest the validity of the will and compel and in ignorance of his obligation to elect. probate of it in solemn form. Watson u. Watson V. Watson, supra ; Reed v. Dicker- Watson, 128 Mass. 162 ; Bell v. Armstrong, man, 12 Pick. 146, 161 ; Delay v. Vinal, 1 Met. 1 Add. Eccl. 365, 374 ; Hamblett v. Hamblett, 57, 65; Pusie v. Desbouvrie," 3 P. Wms. 315; 6 N. H. 333; Holt t). Rice, 54 N. H. 398. Wake V. Wake, 1 Ves. Jr. 335; S. C. 3 4:00 EFJ'ECT OF KEPUGNANCY OR CONTEADICTION IN WILLS. *472 * CHAPTER XV. *472 EFFECT OP EBPUGNANCY OR CONTRADICTION IN WILLS, AND AS TO REJECTING WORDS. Doubt is sometimes cast upon the intention of a testator by the re- pugnancy or contradiction between the several parts of his Rule in case will, though each part, taken separately, is sufHciently defi- t/on^or™-'"'' nite and intelligible.'' In such cases the context (which is so pugnancy. often successfuU}'' resorted to for the purpose of throwing light on a doubtful passage) becomes itself the source of obscurity ; and, unless some principle of construction can be found authorizing the adoption of one, and the rejection of the other of the contrariant parts, both are necessarily void, each having the effect of neutralizing and frustrating the other. With a view to prevent this most undesirable result, it has become an established rule in the construction of wills, that where two clauses or gifts are irreconcilable, so that they cannot possibly stand 1 The court is bound to give effect to every word of the will, without cliange or rejection, provided an effect can be given to it not in- consistent with the general intent of the whole will taken together. Gray v. Minnethorpe, 3 Ves. Jr. 103 ; Constantihe v. Constantine, 6 Ves. 100 ; Doe v. Rawding. 2 B. & Aid. 441 ; Homer v. Shelton, 2 Met. 202 ; Jones v. Doe, 1 Scammon, 276 ; Leavens v. Butler, 8 Port. 380; Kane v. Astor, 5 Sandf. 467; Lasher V. Lasher, 13 Barb. 106. But where it is im- possible to form any consistent whole, the sep- arate parts being absolutely irreconcilable, the last will prevail, as indicating the testator's latest intention. Constantine v. Constan- tine, 6 Ves. 100; Doe v.. Biggs, 2 Taunt. 109 ; Sherrat v. Bentley, 2 My. & K. 149; Homer V. Shelton, 2 Met" 202; Pickering t>. Langdon, 22 Me. 430 ; Smith v. Bell, 6 Peters, 84; Brad- street 1). Clarke, 12 Wend. 602; Baird v. Baird, 7 Ired. Eq. 265; Evans v. Hudson. 6 Ind. 293; Miller v. Flournoy, 26 Ala. 724; Covenhoven v. Shaler, 2 Paige, 122 ; Adie v. Cornwall, 3 T. B. Mon. 276; Lewis's Es- tate, 3 Whart. 162. As where one clause of a will gives certain property to one person, and a subsequent clause gives the same prop- erty to another person, the devisee under the last devise takes the property. Hollins v. Coonan, 9 Gill, 62; Pratt v. Ei'ce, 7 Cush. 209. So a devise of an undivided part of a testator's Teal estate must yield to a subsequent clause in the will, authorizing the executors, at their discretion, to sell and convey a part or the whole of the real estate of the testator. Pratt V. Rice, supra. But this rule is only applied where the two provisions are totally "inconsist/- ent with each other, and where the real inten- tion of the, testator cannot be ascertained. Covenhoven v. Shuler, 2 Paige, 122; Picker- ing V. Langdon, 22 Me. 430; Homer i;. Shelton, 2 'Met. 202 ; Walker v. Walker, 17 Ala. 396. See Howard v. Howard, 4 Bush, 494; Stickle's Appeal, 29 Penn. St. 234; Newbold V. Boone, 52 Penn. St. 167 ; Sheets's Estate, ib. 257; Shreiner's Appeal, 53 Penn. St. 106; McBridei). Smvth, 54 Penn. St. 245; Braman V. Stiles, 2 Pick. 460, 463; Bartlett i). King, 12 Mass. 542; Pratt v. Rice, 7 Cush. 209; Iglehart v. Kirwan, 10 Md. 559; Auburn Sem. V. Kellogg, 16 N. Y. 83; Sweet v. Chase, 2 N. Y. 73 ; Kane v. Astor, 9 N. Y. 113; Oxley v. Lane, 35 N. Y. 340; Lovett V. Gillender, ib. 617; Thrasher v. Ingram, 32 Ala. 645; Redding v. Allen, 3 Jones, Eq. 358; Kerr v. Chi'slin, L. R. 8 Eq. 462; Evans v. Hudson, 6 Ind. 293; Oilman v. Oilman, 52 Me. i65. Subsequent clauses in a will are not incompatible with or repug- nant to prior clauses when they ma}-- take effect as qualifications of the latter without defeating the intention of the testator in mak- 491 *473 EFFECT OP KEPUGNANCr together, the clause or gift which is posterior in local position shall pre- vail, the subsequent words being considered to denote a subsequent intention: "Cum duo inter se pugnantia reperiuntur in testamento, ultimuin ratum est " (a) . Hence it is obvious that a will can seldom be rendered absolutely void by mere repugnancy : for instance, if a testator in one part of his will gives to a person an estate of inheritance in lands, or an absolute interest in personalty, and in subsequent pas- sages unequivocally shows that he means the devisee or legatee to take a life-interest only, the prior gift is restricted accordingly. As in Crone v. Odell (i), where a testator devised the residue of his Posterior of ^^^^ ^^^ personal property to his children A., B., and C, two incon- and all their j-ounger children, their heirs, executors, clauses pre- *473 administrators * and assigns, for ever ; so far it was *^''™'l! a clear joint devise ; but he went on to declare, that, nevei-theless, his intentions were, that A. should receive the entire in- terest or 3'early produce of such part of his real or personal fortune as he (testator) intended for his (A.'s) younger children during his life. The testator then made a similar direction as to B. and C. ; and he provided, that, in case any of his said three children should die, the share of such should go to the j-ounger children of such children ; if no younger children, to the survivors ; and he gave the parents a power of distribution among their younger children. Lord Clare held the parents and children to be entitled jointly ; but this was reversed by Lord Manners, who determined that the parents took life-interests onlj-, with a power of distribution among their younger children ; which decree was affirmed in D. P. So, in Sherrat v. Bentley (c), where a testator, after bequeathing (a) Co. Litt. 112, b; Ulrich r. Litchfield, 2 Atk. 372; Sims v. Doughty, 5 Ves. 243; Con- stantine v. Constantine, 6 Ves. 100 ; Doe d. Leicester v. Biggs, 2 Taunt. 109 ; see also Chand- less ». Price, 3 Ves. 99 ; Wykhaiii v. Wvkham, 18 Ves. [421 ; Marks ». Solomon, 18 L. J. Ch. 234, 19 L. J. Ch. 655.] (6) 1 Ba. & Be. 449, 3 Dow, 61; see also Roe d. James v. Avis, 4 T. R. 605. (c) 2 Mv. & K. 149. Se also Re Brooks' Will, 2 Dr. & Sm. 362; Gravenor v. Watkins, L. E. 6 C. P. 500, post Ch. XXXIIL s. 5. ing the prior gift. Taggart ». Murray, 53 cause the testator uses in one part of his N. Y. 233; Sweet v. Chase, 2 Gomst. 73; will words having a clear meaning in law, Norris v. Beyea, 13 N. Y. 280; Tyson v. and in another part words inconsistent with Blake, 22 N. Y. 559; Stickle's Appeal, 29 the former, the first words are to be can- Penn. St. 234. While it is in general true celled or overthrown. Jesson v. Wright, 2 that, of two contradictory clauses in a will, the Bligh, 56, per Lord Redesdale. It is well es- first must give way, still the two clauses must tablished that the general intent, although first refer to the same subject-matter, and the last expressed, will overrule the particular. Jes- must be clearly inconsistent with the first, sou v. Wright, 2 Bligh, 56; Doe v. Harvey, 4 If the main provision plainly covers the whole Barn. & C. 620; Hawley i). Northampton, 8 subject, and is defined in terms that exclude Mass. 3; Cook ». Holmes, 11 Mass. 528; all doubt, the subsidiary provision must in Chase v. Cockerman, 11 Gill & J. 185; Mor- ordinarv cases be confined to its partial and ton i. Barrett, 22 Me. 257 ; Pickering!). Lang- restricted operation. Sheetz's Appeal, 82 don, 22 Me. 413 ; Miller v. Flournoy, 26 Ala. Penn. St. 213, Woodward, ,T. See also 724. If there are words which have no intel- Barksdale v. White, 28 Graft. 224; Ravfield ligible meaning, or are absurd, or repugnant V. Gaines, 17 Gratt. 1; Kenzie v. Eoleson, to the clear intent of the rest of the will, they 28 Ark. 102; and cases cited supra. It may of course, as will appear later, be re- must not, therefore, be understood that, be- jected. Bartlett v. King, 12 Mass. 537. 492 OK CONTKADICTION IN WILLS. *474 several legacies, devised unto his wife a certain messuage and all other his real estates, and his household goods and all other his personal estate, to hold to his said wife, her heirs, executors, administrators and assigns, for ever. The testator then directed that none of the legatees should be entitled until twelve months after his wife's decease ; and, in case his wife should happen to die in his lifetime, and the before-men- tioned devises and. bequest to her should thereby lapse, the testator gave the estate and effects, as well real as personal, comprised therein, to S., his heirs, executors, administrators and assigns, to the use of such persons as his wife should, in her lifetime, by writing under her hand appoint. The testator then gave some pecuniary legacies, and proceeded to devise and. bequeath to W. A. and his (the testator's) brother-in-law's children the residue of his real and personal estates, to be equally divided amongst them, share and share alike, at the decease of his said wife. The heir at law contended, that the will was void for uncertaintj', on account of the repugnance between the gift to the wife, her heirs, executors, administrators and assigns, and the subsequent gift of the residue to others, to be divided at her decease. The person claiming under the wife contended that the pecuniary legacies and the gift of the residue were only to take effect in the event of her decease in the testator's lifetime; but Sir J. Leach, M. R., was of opinion that the court was not warranted in putting such a construction upon the * will, for that the testator's general intention, as collected from *474 the concluding passages in his will, was to give the wife the full enjoyment during her life only, and to give it over to the persons named afterwards; and that the words "heirs, executors, administrators and assigns," were to be rejected ; and his Honor referred, as one of the grounds of his decision, to the rule, that the latter part of a will shall prevail against inconsistent expressions in the prior part of it. On appeal. Lord Brougham affirmed the decree, observing that either the testator had changed his intention and was minded to give his wife a hfe-estate instead of the fee, or he was ignorant of the force of the words he had oi'iginally used, and those words must be rejected as having been used by mistake. The former alternative was the one to which the rule, sanctioned by the authorities (which he stated in de- tail), led. The latter was the inference drawn, not unfairly, from the whole instrument taken together. But in these cases it is a settled and invariable rule not to r''"' ''"f"^ , , • nevise not disturb the prior devise farther than is absolutelj' necessary unneces- for the purpose of giving effect to the posterior qualifying turbed^'^' disposition.' As in Doe d. Amlot v. Davies(rf), where a testator devised all his ' (d) 4 M. & Wels. 599. [Ses also Crossman v. Bevan, 27 Beav. 502; Spence v. Handford, i Jur. N. S. 987, 27 h. J. Ch. 767.] 1 See Henning v. Varner, 34 Md. 102. 493 *475 EPi-ECT OF EEPUGNANCY messuage and garden in the occupation of D., and also all that his messuage and garden wherein he then resided, both situate in P., to trustees and their heirs, upon trust to pay the rents to his wife during widowhood, and after the determination of that estate, to the use of his children by his said wife, equally to be divided between them and the lawful issue of their or his bodies or body, and, in default of such issue, to his nephew D. The testator immediately afterwards gave to his daughter F. a pecuniary legacy when she attained the age of twenty- one 3'ears, and the house where she then lived, after the decease of her mother or the day of intermarriage ; and the testator gave to his daughter R. a legacj- in like manner, and the house then in the occu- pation of D., after the decease of her mother or the day of her inter- marriage. The two houses last referred to were those comprised in the previous devise. It was admitted that, under the first devise, the daughters would have been tenants in common in tail of the two houses, but, as the second devise clearly indicated an intention to give one of the houses to each daughter, the whole was in sqme degree rec- *475 onciled by holding each to take an estate *for life in severalty in her own house, under the latter devise (which contained no word of inheritance), leaving the prior devise still to operate on the in- heritance in remainder, of which it made the two daughters tenants in common in tail expectant on the estate for life of each in the respective houses. The doctrine in question has been sometimes unsparingly applied, „ . even where the effect of the posterioE devise is not merely Devise an- ^ •' nulled by (as in the two last cases) to restrict and quahfj' the interest kronSnt conferred by the prior devise, but wholly to defeat and devise in frustrate such prior devise. Thus, in Ulrich v. Litchfield (e), ' where a testatrix bequeathed her real and personal estate to A. and B. equally' for life, and, upon the death of A., she gave the whole estate to B. in tail, with remainder over, with a few pecuniary legacies, and charged her real estate with the payment of the legacies, if the personalty should be insuflScient. The testatrix then gave all the residue of her personal estate to her uncle C.'s three daughters. Lord Hardwicke held the daughters to be entitled to the residue of the per- sonal estate, considering that the testatrix must be presumed to have altered the intention expressed in the prior part of her will.^ But the rule which sacrifices the forrner of several contradictory —the whole clauses is never applied but on the failure of every attempt to be recon- ^q gfyg ^q tjjg whole such a construction as will render every ClICQ if DOS" sible.' part of it effective (/).^ In the attainment of this object (c) 2 Atk. 372. [(/) Langham v. Sandforil, 19 Ves. 647; Shipperdson ». Tower, 1 Y. & C. C. C. 459; Eriffgs V. Penny, 3 De G. & S. 639 ; Jackson v. Forbes, Taml. 88; Brocklebank v. Johnson, 20 Beav. 205.] 1 See Pratt ». Rice, 7 Cush. 209; Hollins 2 Van Techten v. Keator, 63 N. Y. 52; V. Coonan, 9 Gill, 62. Van Nostrand v. Moore, 52 N. Y. 12; Tisdale 494 OR CONTRADICTION IN WILLS. *476 the local order of the limitations is disregarded, if it be possible by the transposition of them to deduce a consistent disposition from the entire will. Thus, if a man, in the first instance, devise lands to A. in fee, and in a subsequent clause give the same lands to B. for life, both parts of the ■wUl shall stand ; and, in the construction of law, the devise to B. shall be first (g) , the will being read as if the lands had been devised to B. for life, with remainder to A. in fee.^ So where (A) a testator, after devising the whole of his estate to A. , devises Blackacre to B., the latter devise will be read as an exception out of the first, as if he had said, "I give * Blackacre *476 to B., and, subject thereto, all my estate, or the residue of my estate, to A." By parity of reason, where (k) a testator gives to B. a specific fund or property at the death of A., and in a subsequent clause Devise quali- disposes of the whole of his property to A. , the combined "^d ^y sub- effect of the several clauses, as to such fund or property, is position. to vest it in A. for life, and, after his decease, in B.^ Again {I) , where a testator gave his real and personal estate to A-, his heirs, executors, and administrators, and in a subsequent part of his wUl gave all his property to A. and B. , upon trust for sale, and to pay the interest of the proceeds to A. for life, and at her decease, upon trust to pay certain legacies, leaving the residue undisposed of, A. was held to be entitled, under the first devise, to the beneficial interest in reversion, not exhausted by the trust for the paj'ment of legacies created by the second {m). Sometimes it happens that the testator has, in several parts of his will, given the same lands to different persons in fee. At Effect of first sight this seems to be a case of incurahle repugnancy, separate con- and, as such, calling for the application of the rule, which devises, each sacrifices the prior of two irreconcilable clauses, as the only '" *^''- mode of escaping from the conclusion that both are void. Even here, however, a reconciling construction has been devised, the rule being in such cases, according to the better opinion, that the devisees Both take take concurrently (n) . The contrary, indeed, is laid down by concurrently. (g) Per Anderson, Anon., Cro. El. 9; see also Eidout V. Dowding, 1 Atk. 419; [Plenty V. West, 6 C. B. 201 ; Ustioke v. Peters, 4 K. & J. 437^ (h) Cuthbert v. Lempriere, 3 M. & Sel. 158; [see also Anon., Dalison, 63; Adams v. Gierke, 9 Mod. 154; Alliim v. Frver, 3 Q. B. 442; Doe d. Snape v. NeviU, 11 Q. B. 466.] {k) Blamire v. fieldart, 16 Tes. 314, (Z) Brine v. Ferrier, 7 Sim. 549. (m) The inconsistent gifts were in fact contained in severalpapers supposed to be written at different times ; but as they had been proved as one will, they were, of course, to be so construed. (n) 3 Leon. 11, pi. 27 ; 8 Vin. Abr. Copyh. 152, pi. 3; Arg. in Coke v. Bullock, Cro. Jac. 49, and in Fane v. Fane, 1 Vern. 30. V. Mitchell, 13 Rich. 263; Eountree ». Talbot, 12 Wend. 602; BairdtJ.Baird, 7Ired. Eq.265; 89 III. 246; Siceloff v. Redman, 26 Ind. 251 ; Miller v. Flournov, 26 Ala. 724; Griffin v. Alutter's Estate, 38 Penn. St. 314; Fahrney Pringle, 56 Ala. J86; Davis v. Bennet, 30 V. Holsinger, 65 Penn. St. 388; Vancil i). Beav. 226. Evans, 4 Coldw. 340; Homer v. Shelton, 2 1 See Crissman v. Crissman, 5 Ired. 498. Met. 202; Iglehart v. Kirwan, 10 Md. 559; 2 gee Hatfield v. Sneden. 42 Barb. 615; Pickering «. Langdon, 22 Me. 430 ; Smith v. Pruden v. Pruijen, 14 Ohio St. 251; Parkert). Bell, 6 Peters, 68, 84; Bradstreet v. Clarke, Parker, 13 Ohio St. 95. 495 *477 EFFECT OF EEPUGNANCY Lord Coke (o), and other early writers (p) , who say that the last devise shall take effect ; and a similar opinion seems to have been entertained hy Lord Hardwieke, though he admitted that, latterlj"^, a different con- struction had prevailed ((7) . The point underwent much discussion in Sherrat v. Bentley(r), already stated; and Lord Brougham, after reviewing the authorities, and fully recognizing the general doctrine, which upholds the latter part of a will by the sacrifice of the former to which it was repugnant, considered that, consistently with this *477 rule, it might be held, that, where there are two devises in * fee of the same property, the devisees take concurrently. " If, in one part of a will," he said, " an estate is given to A., and afterwards the same testator gives the same estate to B., adding words of exclu- sion, as ' not to A.' che repugnance would be complete, and the rule would appl}'. But if the same thing be given, first to A. , and then to B., unless it be some indivisible chattel, as in the case which Lord Hardwieke puts in Ulrich v. Litchfield, the two legatees maj- take together without any violence to the construction. It seems, therefore, by no means inconsistent with the rule, as laid down by Lord Coke and recognized by the authorities, that a subsequent gift, entirely and irreconcilablj' repugnant to a former gift of the same thing, shall abrogate and revoke it, if it be also held that, whete the same thing is given to two different persons in different parts of the same instrument, each may take a moiety ; though, had the second gift been in a subse- quent will, it would, I apprehend, work a revocation." [It is laid down by Lord Hardwieke in Ulrich v. Litchfield («), that Whether as the two devisees, if they take concurrently, are joint-tenants ; or' tenantTia ^^^® '^ supported by several old authorities (t) , and appears common. to have been assumed by Lord Brougham, who speaks of their joint estate (m). When he speaks (as above) of each taking a " moiety," it is only as opposed to either taking tlie whole to the ex- elusion of the other. In Ridout v. Pain (cc), Lord Hardwieke says, that "latterly such a devise has been construed either a joint tenancy or tenancy in common, according to the limitation ; " and this it is said must be presumed to mean, " that if the two estates given bj' the will have the unity or sameness of interest in point of quantity- essen- tial to a joint tenancy, the devisees shall be joint-tenants, but otherwise shall be tenants in common " {y) .^ Now, as both devisees are supposed to have vested estates in fee, this interpretation points to their being (0) Co. Lit. 112. (p) Plow. 541. (o) See Ulrich v. Litchfield, 2 Atk. ZH. ir) 2 Mv. & K. 165, ante, p. 473. f(.i) 2 A'tk. 372. (t.) 14 Vin. Ab. 485, pi. 2; Anon., Cro. El. 9; Wallop 0. Darby, Telv. 210; Co. Lit. 21 a, .1. (4.) {«) 2 Mv. & K. 166. (x) 3 Atk. 493. (y) Co. Lit. 112 b, n. (1), by Harg.] I See McGuire v. Evans, 5 Ired. Eq. 269; Jones's Appeal, 3 Grant, 169. 496 OE COKTRADICTION IN "WILLS. *478 joint-tenants. Independently of authority this seems the] preferable construction, as less violence is thereby done to the testator's language than by making them tenants in common, as the creation of a tenancy in common reiquires positive intention. It is observable that both Lord Hardwicke and Lord Brougham considered that the doctrine in question did not apply to a single indivisible chattel ; but such an exclusion is attended Whether doc- with * difficulty, for though, certainly, it may seem *478 [oanmdivM- rather absurd that a testator should give a horse or bie chattel. a watch to several persons concurrently, yet it is impossible to say that there may not be such an intention ; and where is the line to be drawn ? Is it to depend upon the greater or less convenience attending a joint or concurrent enjoyment of the subject of gift ? Sometimes where an estate in fee is followed by apparently incon- sistent limitations, the whole has been reconciled by reading Apparent in- the latter disposition as applying exclusively to the event consistency of the prior devisee in fee dying in the testator's lifetime, reference to ''^ the intention being, it is considered, to provide a substituted '^P^^" devise in the case of lapse (z) ; [or by understanding the latter de- vise to be dependent on a certain contingency mentioned in the will, though such contingency may not clearly appear to be attached to it (a).] The anxiety of the courts to adopt such a construction as will recon- cile and give effect to aU parts of a will is further exempli- ^ fled by Holdfast d. Hitchcock v. Pardee (6) , where a testator devises devised to A. a farm in the occupation of C, and to B. '■'=<=onciled. lands in L. marsh ; and it appeared that part of the farm in the occu- pation of C. consisted of lands in L. marsh ; but there was another estate, not in his occupation, consisting entirelj' of marsh lands in L. ; and it was held, that the subsequent devise was not, as contended, a revocation of the preceding devise, but that A. took the farm, and B. the marsh lands not included in that farm. [So, where (c) a testator devised to A. "her heirs, executors and administrators," a house in T. Street (describing it) , and in distinct clauses gave her several other houses, " the whole of which premises were in the borough of Plymouth, during her natural life," but should A. have children, " the before-mentioned houses" to descend to them ; but if she should die without issue (which happened), then the "said premises" to become the joint property of the children of X. The house included in the first devise being, as well as all the rest, in the borough of Plymouth, it was contended that it went with them to the children of X. But it was held, that although the words were not (2) Clayton v. Lowe, 5 B. & AM. 536 ; but see remarks on this case, post, Ch. XLIX. [(a) Ley v. Ley, 2 M. & Gr. 780.] (6) 2 W. Bl. 975; see also Woolcomb v. Woolcomb, 3 P. W. 111. [(c) Doe d. Bailey v. Sloggett, 5 Exch. 107.] VOL. I. 32 497 *480 EFFECT OF EEPUGNANCT perfectly accurate, yet they could not intend that the testator meant by the subsequent words to cut down the estate in fee first given.] *479 * But, perhaps, the strongest authority of this kind is Bet- tison V. Richards (d), where a testator, after devising an estate pur autre vie, devised all other his estates, real and personal, wheresoever situ- ate, unto E. L., her heirs, executors, &c., forever, charged with debts and certain legacies ; and in case his son should die without issue of his body lawfully begotten, then he devised all his manors, messuages, tenements and real estate not thereinbefore disposed of, situate in the several counties of H., G., N., L., and D., and the town of N. (though, it will be observed, he had previously disposed of all his real and per- sonal estate) , and also all his personal property in the public funds or elsewhere, unto the said E. L. during her life, and after her decease unto R. S. in fee. It appeared that the testator- had the reversion in fee expectant on the determination of an estate tail male in his son, in large estates in the several counties specified, except D. and the town of N. , where he had lands in fee-simple in possession. It was con- tended that the latter devise was confined to the lands in the specified counties, of which the testator had the reversion only ; and that the other lands even in the counties particularized in the second devise, passed under the first devise ; and of this opinion appears to have been the Court of C. P., which certified that E. L. took an estate in fee in the lands in D. and the town of N., subject to the debts, &c. [These cases also exemplify a rule which is certainly not of less fre- Clear gift not queut application than that enunciated at the beginning of doubtfurex^ ^^^^ chapter, viz., that where there is a clear gift in a will it' pressions. cannot afterwards be cut down except by something which with reasonable certainty indicates the intention of the testator to cut it down. It need not (as sometimes stated) be equally clear with the gift. ' ' You are not to institute a comparison between the two clauses as to luciditj^" (e). But the clearly expressed gift naturally requires something unequivocal to show that it does not mean what it says. It is clear that words and passages in a will, which are irreconcilable with the general context, may be rejected, whatever maj' be the local Rule as to the position which they happen to occupy ; ^ for the rejection of *480 * rule which gives efltect to the posterior of several ^"^ '■ inconsistent clauses must not be so appUed as in any W 7 Taunt. 105. [(e) Per Lord Campbell, Eandfield v. Eandfield, 8 H. L. Ca. 225, where the rule was held inapplicable. For further instances of the application of the rule see Clavering v. Ellison, 3 Drew. 451, 26 L. J. Ch. 335; Re Larkin, 2 Jur. N. S. 229; Davis v. Bennet, 30 Beav. 22(j: Walmslev «. Foxhall, ID. J. & S. 605; Kerr v. Clinton, L. R. 8 Eq. 462; Crozier v. Crozier, L. E. 15 "Eq. 282. 1 A gift to certain children by name will struction is prevented bv other language of control another description of the same bene- the will. Hoppock v. Tucker, 59 N. Y. 202: fioiaries as "children of A.," unless this con- Ashling v. Knowles, 3 Drew. 593. 498 OR CONTRADICTION IN WILLS. *481 .degree to clash or interfere with the doctrine which teaches us to look for the intention of a testator in the general tenor of the in- strument, and to sacrifice to the scheme of disposition so disclosed any incongruous words and phrases which have found a place therein (/).^ Thus, in Boon v. Cornforth {g) , where a testator bequeathed the in- terest of 6,000^. stock to his daughter for life, and after her Passage at decease, upon trust to dispose of the principal and interest X?th*context to and between her husband and his (testator's) daughter's rejected. child and children, viz. her husband should have and enjoy one half of the interest thereof for and during his natural , life, if there should he no child or children (the words in italics were interlined (h)), and the child or children the other half; on his death his half should go to the child or children, but till the child or children attained twentj^-one the hus- band should have the whole interest, and on the death of their father, thej' should have the remaining 3,000Z. ; but if no such child or chil- dren at the time of her death, or they should die before twenty-one, then to go on further trust as he should thereafter mention, — Lord Hardwicke rejected the interlined words, as inconsistent and repugnant with the whole disposition ; holding that there was no alternative but to reject either these or the entire provision. So, in Coryton v. Helyar(«), where a testator devised lands to the use of his son for ninety-nine years, and, after the determination of that estate, to the use of trustees during the life of the son, to pre- serve contingent remainders ; and, after the decease of the son, to the use of his first and other sons in tail male, — Lord Hardwicke held, that the term was, with reference to the true construction of the sev- eral parts of the will, to be construed, not as an absolute term, but as determinable with the decease of the son. In several instances inconsistent words engrafted on a prior clear and express devise have been rejected. Ambiguous Thus where ( / ) the devise was to A. and her heirs. ^'"''^ ""=.""" . .7 . jt J. T T T-.11 1 . . sistent with for their * lives. Lord LUenborough rejected the latter *481 prior devise words ; which, he said, were merely the expression of rejected. (/) See per K. Bruce, L. J. 3 De G. & .T. 266, 267.] (^r) 2 Ves. 277; [Jones «. Price, 11 Sim. 557; Aspinall «. AnduS, 7 M. & Gr. 912; Hanburv V. Tyi-ell, 21 Beav. 322 (case on a deed); Campbell v. Bouskell, 27 Beav. 325, (" aforesai'd nephews," "aforesaid " rejected) ; Smith v. Crabtree, 6 Ch. D. 591 ( " living at the death or second marriage of my wife" rejected).] (A) Lunn «. Osborne, 7 Sim. 56, affords another instance of the rejection of words which had been interlined by a testator, and were at variance mth the general context. (») 2 Cox, 340. , [See, for other examples of powers or interests reduced within a limited period by force of the context, Watliugton v. Waldrou, 4 D. M. & G. 259 ; Chapman v. Gil- bert, ib. 366.] ' r U) Doe d. Elton v. Stenlake, 12 East, 515. [See also Towns v. Weutwortb, 11 Moo. P. C. C. 545 ; Hugo v. Williams, L. E. 14 Eq. 224. 1 See Bartlett v. King, 12 Mass. 537; Hovenden's note (4); Davis ». Boggs, 20 Brailsford v. Haywood, 2 Desaus. 32; Holmes Ohio St. 650. V. Cradock, 3 Ves. Jr. (Sumner's ed.) 321, Mr. 499 *482 EFFECT OP REPTTGNANCT a man ignorant of the manner of describing how the parties whom he meant to benefit would enjoy the propertj' ; for whatever estate of in- heritance the heirs might take, they could in fact only enjoy the benefit of it for their own lives. [And where (k) a testator gave to his wife, her heirs and assigns for ever, his house and other property, with the intention that she might enjo}' the same during her life, and bj' her will dispose of the same as she thought proper ; it was contended that the wife took only a life-interest with a testamentary power of appoint- ment ; but the court held, that the latter part of the clause did not cut down the clear gift of a fee-simple contained in the former part, and that the testator merely meant to mention all the incidents of a fee which occurred to him at the time.] ^ So, where (I) a testatrix bequeathed an annuity, to be equally divided between M. B., C. S., and C. A., "to them and their heirs, or the survivor of them, in the order they are now mentioned," Sir W. Grant rejected the latter words as repugnant. "The proposition," said he, " equalty to divide a fund between two persons in a given order is mere . nonsense, directly repugnant. ' There can be no division if there is an order in which thej' are to take. Suppose it stood simply a bequest to be equally divided between A. and B., in the order thej'are mentioned, the court could only say the first words are plain, importing" equal divi- sion, a benefit, and a personal benefit to both; and they do not know what meaning to put upon, the other words: they are insensible, as coupled with such preceding words. The only question therefore is, whether words having a plain meaning are to be rejected for the sake of words of which you do not see the sense or meaning. It is very proba- ble the testatrix might have had in her mind some vague, indefinite notion of preference, but that is not expressed in any manner, so that the court can act upon it ; not even by saying the words importing equal division are to be coupled with the original annuitants and not with the survivors. Those words must be equally applied to all the persons who are to take, or they must be equally rejected. It is to be equally divided among the three ; not a diflferent division among *482 the * sur\'ivors. In order to give effect to the latter words, I should be under the necessity of rejecting the words expressing an equal division, retaining the others with reference to one event, and of doing the reverse in reference to another event. In the event of all (k) Doe d. Herbert v. Thomas, 3 Ad. & Ell. 123, i Nev. &■ M. 696. See also Brocklebaiik J). Johnson, aOBeav. 205; Pasmore u. Huggins, 21Beav. 103.] , , (0 Smith V. Pybu3, 9 Tes. 566 ; see also .lesson v. Wright, 2 Bligh, 1, and other cases of the same class discussed. Ch. XXXVII. 8.2; and Reece r. Steel, 2 Sim. 233; Townley v. Bolton, 1 My. & K. 148; [Harvey o. Harvey, 5 Beav. 134. 1 In Raiidfield v. Eaiidfield, 8 H. L. Cas. parts of the will, is to be regarded. See fur- 225, it is declared that in applying the rule tlier Siegwakl «. , Siegwald, 37 111. 430; Mc- thatacleargiftinawillisnottobecntdowu Naughton v. McNaughton, 34 N. Y. 201 j by any subsequent provision unless the latter Wynne v. Waltliall, 37 Ala. 37; Rountree v. is equally clear, the intention of tlie testator, Talbot, 89 111. 246. and not the comparative cleaniesa of the two 600 OR CONTEADICTION IN WILLS. *483 living, I should have kept the former and rejected the latter words ; but in the event of two surviving, I am to reject the former and pre- serve the latter. There is no ground for such a capricious rejection of words to suit the event. The testatrix has not pointed out the specific event in her contemplation, or showed a different intention as to the accruing parts and the whole ; and this order to take place is so ob- scui'ely expressed, that it is utterly impossible for me to give any effect to it." [The embarrassment often caused bj' cases of this description is ex- emplified by Morrallv. Sutton (m), where a testator limited life-interests in his leasehold property charged with certain annuities, with remain- der to S. C, "her executors, administrators and assigns, subject to the said annuities charged thereon during her natural life." The general rules above mentioned were acknowledged on all hands ; but there was a difference of opinion upon the question, whether or not sufficient evi- dence of the testator's intention could be collected from the context to authorize the rejection of the words " during her natural life," so as to give S. C. the absolute interest ; for, in the absence of such evidence, those words being placed last must, according to the general rule, over- rule the preceding words "executors," &c., thereby limiting S. C.'s interest to a life-estate. Coleridge, J., in a valuable judgment, sup- ported the affirmative against the opinions of Parke, B. (who, with Coleridge, J. , assisted the L. C. upon the appeal) , and of Lord Lang- dale, M. R., from whom the appeal was brought. The case was ulti- mately compromised.] But words are not to be expunged upon mere conjecture, nor unless actually irreconcilable with the context of the will, though Words not to the retention of them may produce rather an absurd conse- unies^^jncln^ quence. sistent. Thus, where (n) a testator, after bequeathing certain property to Thomas Braiisford, son of his nephew Samuel Brailsford, devised his real estates " to the use of tfi^ said Thomas Brailsford and his assigns, for and during the term of his natural life, and after his decease, to the use of the said Thomas Brailsford, son of my nephew Samuel Brailsford, his heirs and assigns forever." The only Thomas Brailsford men- tioned in the will was the son * of Samuel, but the testator had *483 another nephew of that name (who was uncle of the legatee), to whom, therefore, it was contended that the devise to " the said Thomas Brailsford," applied, though he was not before named, according to the case in Hawkins (o), that father and son having the same name, the son, not the father, is distinguished by an addition {p). The words " The said," it was observed, might be considered surplusage ; and that the (m) 4 Beav. 478, 1 Phill. 533.] (») Chambers d. Brailsford, 18 Ves. 368 ; [and see Mellish ». Mellish, 4 Ves. 48.] (0) 2 Hawk. P. C. 271, s. 106. (p) See also Goodright d. Hall v. Hall, 1 Wils. 148. 501 *484 EFFECT OF EEPUGNANCY devise was either void for uncertainty, or, there must be an inquiry. But Sir W. Grant said, that it was impossible to contend that there was, prima fade, any ambiguity in the description ; by the words, " the said Thomas Brailsfoi-d," the Thomas Brailsford who had been before men- tioned was sufficiently described. " The argument on the other side," he said, ' ' rests chiefly on the inconsistency of giving to the same person, in the same sentence, an estate for life and also an estate in fee ; there is certainly a particularity in that ; hid the devise as it stands is not so in- sensible or contradictory as to drive the court to the necessity of expunging or adding words to give it a meaning; " and this decree was affirmed by Lord Eldon {q). And though repugnant expressions will yield to an intention and . purpose expressed or apparent upon the general context, yet controlled by it does uot appear that a bequest actually made, or a power reason as- given, can be controlled merely by the reason assigned. The assigned reason may aid the construction of doubtful words, but cannot warrant the rejection of words that are clear (r) . Thus, where (s) a testator expressed his conviction of the honor and justice of his trustees, and made that conviction the ground of his reposing in them the trust of distributing Ms property among his relations, au- thorizing them to fix both the objects and the proportions, but after- wards gave the power in express terms, to them, and the heirs, executors and administrators of the survivor of them — Sir W. Grant, M. R., ob- served: "Though it seems very incongruous and inconsequential to extend to unknown and unascertained persons the power which per- sonal knowledge and confidence had induced the testator to confide to his original trustees and executors, yet I am not authorized to strike these words out of the will, upon the supposition, though not *484 * improbable, that they were introduced in this part by inad- vertence or mistake." [Again, it is a general rule, that a devise in general terms shall not, Devise in ^'vea though Otherwise inoperative, be held to control another general terms devise made in distinct terms. Thus, in Borrell v. Haigh (t), trol aToth^r"" where a testatrix devised all her messuages, cottages, closes, distinct de- lands and hereditaments at H. to A., and afterwards gave all her copyhold estates and hereditaments at N. and T., and elsewhere; and it appeared that the only place besides N. and T., in which the testatrix had copyholds, was H. : Lord Langdale, M. R., held, nevertheless, that the prior devise, which per se clearly carried the copyholds at H., was not defeated by the vague expression which followed. (o) 19 Ves. 662, 2 Mer. 25; see also Roe v. Foster, 9 East, 405; [Ridgeway v. Munkittrick, 1 D. & War. 90, 91 ; Ridout v. Pain, 3 Atk. 493 ; Langlev v. Thomas, 6 D. M. & G. 645.1 (r) Per Sir W. Grant, 16 Vea. 46; [and see 4 Ves. 808; Thompson v. Wliitelock, 5 Jur. N.S.991.] («) Cole V. Wade, 16 Ves. 27. [(«) 2 Jut. 229. See also Sidebotham v. Watson, 11 Hare, 170 (4th question). 502 OK CONTEADICTION IN "WILLS. *485 So in Greenwood v. Snteliffe (m), where a testator devised his estate called S., in trust for his daughter Anna for life, and at her death the trustees were to stand seised thereof, ' ' and also of all accruing share and interest to which she might become entitled by survivorship under the trusts of his will or otherwise," to the use of her children as tenants in common in fee. And the testator devised another estate, called E., to trustees to hold in trust for his daughter Maria, for life ; and after her death (in the events which happened), to stand seised thereof to the use of the testator's son William and his said daughter Anna, or such of them as should be then living, their heirs and assigns in equal shares. Maria died before the testator ; and upon the death of Anna, who survived her father and sister, her children claimed the R. estate under the words contained in the former part of the will, " all accruing share," &c., on the ground that the effect of them was, in the events which had happened, to limit the R. estate, after the death of Anna, to her children. But it was held, that the direct and express limita- tion of the R. estate to WiUiam and Anna, and their heirs and assigns, as tenants in common, was not controlled b}'' the words in question, although no other operation could be attributed to them.] It is to be observed, too, that a devise of lands, in clear and technical terms, will not be controlled by expressions in a subsequent part of the will, inaccuratelj' referring to the devise, in terms notcontnilled which, had they been used in the devise itself, would have bysubsequent conferred a different estate, if the discordancy appear to have words of ref- sprung merely from a negligent want of adherence to the ^'^^<^- language of the preceding devise. *Thus, where (x) a testatrix devised lands to her eldest *485 daughter A. S., and the heirs of her body forever, with remain- der over, charged with a sum of money to be raised out of the yearly profits ; and the testatrix declared it to be her will that her executors (thereinafter named) should stand seised of the lands until they should have raised the said sum, or until the same should be discharged by A. S. and her heirs ; and after the raising or payment thereof by the said A. S. or her heirs, then that A. S. and her heirs should enjoy the said lands forever (y). It was held that the word " heirs" (of A. S.), thrice repeated referred to the special designation of heirs to whom the estate was devised in the beginning of the will, and were not intended to introduce a new and more general denomi- nation of heirs, and to revoke the express estate tail given in the beginning of the will. So, where (z) the devise was to A. and the heirs male of his body, («) 14 C. B. 226. (x) Doe d. Hanson v. Fyldes, Cowp. 833. (y) The words "for ever" were i^ot strictly repugnant, as an estate tail is capable of perpetuity of duration. (z) Tuck V. Frencham, Moore, 13, pi. 50, lAnd. 8 ; [see also EUicombe ». Gompertz, 3 My. & Or. 127 ; Hillersdon v. Lowe, 2 Hare, 355 ; Mortimer v. Hartley, 3 De G. & S. 332.] 503 *485 EFFECT OF REPUGNANCY OR CONTRADICTION IN WILLS. aud, in ease he should die without issue, then over, the words " without issue " were held to mean without issue male. Both the preceding cases exhibit deficiency, rather than repugnancy of expression, and will serve, therefore, not inaptly to conduct to the commencing subject of the next chapter. 504 SUPPLYING WORDS. *486 * CHAPTER XVI. *486 AS TO SUPPLYING, TRANSPOSING AND CHANGING "WORDS. I. As to supplying Words. — It is established that [where it is clear on the face of a will that the testator has not accurately or -^^roj^g j„^_ completely expressed his meaning by the words he has be supplied, used, and it is also clear what a,re the words which he has ^ ^°" omitted (a), those words] may be supplied, in order to effectuate the intention, ais collected from the context.^ Of this we have ,,„, . , ■ , . , , 1 ■ ^ "Without a very simple example m an early case, where a devise to issue" sup- A. and the heirs of his body, and, if he should die, then P''^"^- over, was read " and if he should die without issue {b)." ^ So, where (c) a man having three sons, John, Thomas, and William, devised lands to John, his eldest son, and the heirs of his body, after the death of Alice, the devisor's wife ; and declared that if John died, living Alice, WiUiam should be his heir. And the testator devised other lands to Thomas, and the heirs of his body, and, if he died without issue, then that John should be his heir ; and he devised other lands to William and the heirs of his body, and, if all his sons should die without heu's of their bodies, then that his lands should be to the chil- dren of his brother. John died in the lifetime of Alice, leaving a son ; and the court held, that, upon the whole context of the will, the con- struction should be "if John died without, issue, living Alice ; " and that this was the intent appeared, it was said, by other parts of the will, the other sons having other lands to them and the heirs of their bodies ; and that if they all died without issue, it should be to his brother's [(o) See Hope v. Potter, 3 K. & J. 206 ; per K. Bruce, L. J. 3 De G. & J. 266, 267.1 (*) Anon. 1 And. 33; see also Atkins ». Atkins, Oro. El. 248. (c) Spalding v. Spalding, Cro. Car. 185. 1 Words maj'be supplied when it is clear, lace, supra. Butwordscan never be supplied beyond a reasonable doubt, what the omitted to create an intent. Hill ». Downes, 125 words are. Aulick». Wallace, 12 Bush, 531; Mass. 609, 512. See Tamer's Appeal, 87 Covenhoven v. Shuler, 2 Paige, 122 ; Deakins Penn. St. 422. Nor against a manifest inten- V. Hollis, 7 Gill & J. 311 ; Cresswell v. Law- tion to omit them. Caldwell v. Willis, 57 son, lb. 227 ; Pickering v. Langdon, 22 Me. Miss. 555. 429; Geiger». Brown, 4McCord, 418; Lynch 2 Liston v. .Jenkins, 2 W. Va. 62. See ». Hill, 6 Munf. 114. And it is no objection McKeehan ». Wilson, 53 Penn. St. 74; But- to supplying the words that persons maj' dif- terfield v. Hamant, 105 Mass. 338, that the fer in regard to which of two or more words court will not do this by way of supplying of similar signification will more appropri- an intention. Hill v. Downes, supra, ately supply the omission. Aulick v. Wal- 505 *487 SUPPLYING -WOKDS. children, not meaning to disinherit any of his children. And it was declared not to be a contingent remainder or limitation to abridge the former express limitation. And in several instances where a testator, in a will made before the "Without is- year 1838, has used the phrase "without leaving is- '"wi'tilout **^^ ^"® " * ^^^ " ^i*^°"t is™® " indiflferently, in bequests Jeaving of personalty, in regard to which alone (as here-' issue." after shown) the difference of expression is material, the word " leaving" has been supplied, in order to produce uniformity, which, it was considered, must have been intended.' Thus, in Sheppard v. Lessingham (d) , where A., having two children, Word "leav- ^' ^°"^ ^' ' bequeathed certain stock, in trust as to one moiety, ing" sup- for F. for life, remainder to such child or children of F. as expression should be living at his decease ; and if he should not leave "without any child, or in case such children should die without issue, issue " then to M. for life, remainder to such child or childi-en of M. as she should have at the time of her death ; and in case M. should leave no issue hving at her death, or if such child or children as she should so leave should die without leaving any issue, then to J. S. ; and, as to the other moiety, the testatrix appointed the interest to be paid to M. for life, remainder to such child or children as she should leave at her decease ; and in case M. should leave no such child or children, or all such child or children as she should leave should die without issue, then to F. for life, remainder to his children living at his decease ; and in case F. should leave no child or children, or thej' should die without issue, then to J. S. the same as the other moiety — Lord Hardwicke was of opinion that the same construction was to be put on the words ' ' with- out issue " in the bequest over of the second moiety to F., as on the words " without leaving issue," in the other moiety (e) ; the only differ- ence intended in the disposition of the two moieties evidently being to prefer F. as to one moiety, and M. as to the other. The consequence was, that these words, being used in relation to personal estate, referred to-issue at the death (/) . Again, in Kirkpatrick v. Kilpatrick (g) , where a sum of money was (d) Amb. 122. See also Radford «. Radford, 1 Kee. 486, where freeholds and leaseholds were combined in the same devise. [Cf. Pye v. Linwood, 6 Jur. 618, stated post, Gh. XLI. s. 1, n.] (e) But the word "leaving" occurred in the ulterior bequest of the other moiety. (y) Even with this construction, the gift over, in the event of the children not leaving issue, was too remote, as M. might nave had children born after the death of the testator. (a) 13 Vea. 476 ; [see also Wheable v. Withers, 16 Sim. 505. But see Else v. Else, L. R. 13 jfq. 196. In Radley i). Lees, 3 M. & Gr. 327, the codicil showed that the testator's inten- tion would be defeated by supplying the words there proposed to be inserted in the will. 1 Newton v. Griffith, 1 Harr. & G. Ill ; be supplied, as evidently intended by the tea- Brown V. Brown, 1 Dana, 39. See Lynch v. tator, but not the word "leaving," which he Hill, 6 Munf. 114. The words of a contin- might not have linown to be necessary in gent limitation being " in case C. without law to give the limitation effect, and there- issues of body lawfully begotten, then," &c., fore might not have intended to use. lb. the word "die" and the word "her" may 606 SUPPLYING "WOEDS. *489 bequeathed to J. and S. to be equally divided; but in the Words event of the death of either of them, before he ctttained the twenty-one" age of twenty-one years, and without issue, his share to go to supplied. the survivor ; but in the event of both dying without issue, then over ; * Lord Erskine, on the authority of the last case, sup- *488 plied the words " under twenty-one," in the ulterior bequest. [The case of Lang v. Pugh (h) was of the same kind. A testator gave a sum of money, in trust for his son T. for life, and » on mar- after his death for his lawful issue if then of age or married, riage " read equaUj' if more than one, if Only one the whole to go to one or^^" ^' such only child ; or in case such child or children of his son marriage." should be under age at the death of the son, then "to be divided or paid to him, her, or them, in manner aforesaid, on their attaining their respective age or ages of twenty-one years, if sons, or if daughters, on their marriage respectively." Sir K. Bruce, V.-C, read the will as if it had been written, " or in the case of daughters marrying earlier, upon marriage; "he thought it improbable that the testator could "have meant a daughter of T. surviving her father, and having attained majority in her father's lifetime, to take the fund or a portion of it absolutely, though never married, but that he meant altogether to exclude any daughter, a minor at her father's death, if not then married, unless she should at some period of her life marry." Again, in the leading case of Abbott v. Middleton {i) a testator gave an annuity of 2,000Z. to his wife for hfe, and directed funds "Dying" to be set apart for securing it, " and on her decease the sums without iea"? provided and set apart for such payment to become the prop- '■>§ a child." ertj' of my son A. so far as he the said A. my son shall receive the interest on such sum during his life, and on his demise the principal sum to become the property of any child or children he may leave, and in such sums as my said son shall will and direct ; but in case of my son dying before his mother, then and in that case the principal sum to be divided between the children of my daughters" B., C. and D. The son A. having died before his mother, but leaving a child, the question was, whether the words " without leaving any child " could be supplied after the word " dying" in the final gift over, so as to leave the child of A. in possession of the property, and it was held by Sir J. Romilly, M. R., that those words miist be supplied. Referring to Spalding v. Spalding (k) , he said the principal ground of the decision there seemed to him to be the expression of the testator's intention that the heirs of the body of the first son should take, and it was * to be observed that they could take only by descent through *489 the father, whereas in the present case they took vested interests (h) 1 Y. & C. C. C. 718; see also King v. Cullen, 2 De G. & S. 252; Woodburne v. Wood- burne, 3 De G. & S. 643. 9 21 Beav. 143, 7 H. L. Ca. 68. And see Brotherton v. Bury, 18 Beav. 65. *) Ante, p. 486. 507 % *490 SUPPLYING WOEDS. directfrom the testator. The judgment of the M. R. was affirmed in D. P., principally on the same ground (l). A clear gift was not to be divested by an unmistakable provision to that effect (m) . In the foregoing cases the testator had used expressions that were, Elliptical ex- or were considered to be, plainly elliptical. Some contin- pifed'°butTn B'^^^'J' °^ ^*^*® °^ circumstances that was present to his mind event not was imperfectly described. But the court cannot provide for war'^Mt'be^'^ an event which appears to have been absent from the testa- provided for. tor's mind, however strange the omission may be. Thus in Eastwood V. Lock wood (n), where a testator disposed of all his prop- erty on trusts for the maintenance of his children until Hannah, the youngest, attained twenty-one ; and as soon as she attained that age he disposed of his personal estate among certain of his children ; and as to a specified part of his real estate, he devised it to his son A. in tail male, subject to a certain charge ; and as to other specified parts, he devised one to each of his other sons in tail male, with a gift over " in case any of his said sons should die during the minority of Hannah, or in the event of any of them dying without such lawful issue as aforesaid, and either before or after, their or his share should be divisible accord- ing to the provisions of the will " {i.e. before Hannah attained twenty- one) ; A. died before that time leaving issue, and it was argued on the authority of Spalding v. Spalding (o) , that his estate was not cut down. Sir W. P. Wood, V.-C, agreed that the words " in case of any son dying during the minority of Hannah " standing alone would have brought the case within that authority : but the words that followed made it different. The testator had put two classes of events together. He had said : "I point to a d3ing in the one case simpUciter during a given epoch. I point to a dying without issue in the other case gen- erally, either before or after Hannah attains twentj'-one." It was true that in one sense the second alternative might be included in the *490 first, yet still it was emphatic ; and though it seemed * strange to suppose that he meant it in this sense, yet, if he did, he could hardly have expressed himself more clearly. Notwithstanding the exist- ence of issue, therefore, the estate of A. was divested and went over.] The principle of supplying omitted words has been applied in numer- ous other eases, from which the following have been selected, as affording apt examples of its apphcation. Thus, where {p) a testator having two sisters, A. H. and M. J., and {I) By Lords Chelmsford and St. Leonards; Lords Cranworth and Wensleydale diss. Whether the words were supplied or not the will remained incomplete. If they were not sup- plied, the testator's bounty to his grandchildren would depend on their fathers surviving his mother, which appeared unreasonable. If they were supplied and the son survived his mother, and died leaving no child, the fund would not go to the children of the daughters, but would fall into the residue. (m) See Hope f. Potter, 3 K. & J. 206. (») L. R. 3 Eq. 487. (") Ante, p. 486.] (p) Doe d. Leach v. Micklem, 6 East, 486 ; see also Webb v. Hearing, Cro. Jac. 415 ; Anon. 2 Vent. 363 ; Pearsall e. Simpson, 15 Ves. 29 ; Lord Eldon's judgment iu Doe d. Planner o. Scudamore, 2 B. & P. 296. 508 SUPPLYING WOEDS. *49l also two cousins, F. and G., devised his esjtate at A. to his Words sup- sister A. H. for life, remainder to his sister M. J. for life, vide foran" remainder to another person for life, remainder to. F. in tail, alternative „..,., .1 , , event, obvi- remainder to G. m tail, with remainders over ; and then ous, tiiougU devised another estate at B. " to his sister M. J. for Ufe, or "jessed if she should survive his wife and sister A. If., so that she should come into possession Of the estate at A.," then to L. J. for life, towards the support of his cousins F. and G., remainder to the said G. in fee. M. J. survived the testator's widow, but not his sister A. H., and it was therefore contended that the remainder to L. J. and G. failed ; but the court decided, that, as the word or so placed was unin- telligible, being referable to no other alternative ; and as it was ap- parent from the whole context that the testator had in contemplation another alternative, namely, the death of his sister M. J., and that he meant to make a provision after the death of his sisters for his cousin G. as well as his cousin F., which was not satisfied by only giving G. a remainder in tail after a remainder in tail to his brother F. ; in order to render the sentence complete and sensible, and to give effect to the apparent intent of the, testator, the necessary words might be supplied to make the devise read as a gift to his sister M. J. for Ufe, and after HER DEATH, oT if she skould survive his wife {q) and sister A. H., so that she should come into possession of the estate at A., then over to L. J., who consequently took a vested remainder, and was entitled in the events that had happened. But no case, probably, has gone further in supplying words in com- pliance with the intention appearing by the context, than Doe d. Wick- ham V. Turner (r) , where the testator's deficiency of object sup- * expression left the devise without an obiect. The *491 pijedby rGi6r6nc6 tO' will was in these words : " I give unto H. W. a mes- preceding suage or tenement now in the possession of W. Item, I devise. give further unto m^^ nephew H. W. half part of my garden, and 1 00/^ stock in the 4 •per cent. Bank annuities. I give, further, my yard, stables,, cowhouse, and all other outhouses in the said yard, my sister M. W. to have the interest and profits during her life." The question was^ whether the nephew was entitled to the yard under this devise. The court (Best, J., diss.) decided in the affirmative; for as the testator had used the word " further " in the preceding part of his will, when he made an additional gift to the same devisee, and as the clause would otherwise have been senseless and inoperative, the words "to him'" might be supplied, and then it was a devise to M. W. for life, remainder to her son H. W. in fee (s). (q) It does not distinctly appear why the death of the wife is introduced; but probably .she' had a life-estate in the property at A. ; [or, perliaps, it was because the wife had a life-annuity of 50/. out of estate A. ; and that therefore M. J. was not intended to lose estate B. till after the cesser of that charge upon her interest in estate A.] (r) 2 D. & Ry. 398. (s) There must be a mistake in this, as the will was destitute of any ground for raising a 609 *492 SUPPLYING WOEDS. So, in Langston v. Pole (t) , where a testator, passing over the first son of A. (his son and devisee for life), proceeded to limit the estate to the second and other sons of A. in tail successively [according to seniority] , and then to the first and other daughters of A. in like man- ner : on a case from Chancery the court of C. B. supplied the vacancy in the series of limitations, by holding the first son to take an estate tail immediately expectant on his father's decease. [It appears that the court of B. R. had come to an opposite conclusion upon the same will. Neither court gave reasons. The decision of the court of C. B. was affirmed in D. P. Lord Brougham relied on the trusts of a term, which were, in case there should be only one son and one daughter, to raise a portion for the daughter ; an absurd provision, if the daughter herself took the estate, as she would, under the circumstances, unless the son did. However, he was of opinion that the phrase "other sons" in- cluded the first son, and therefore the decision of* the court below was right, without supplying any words (u). *492 * It is clear, however, that words, and even clauses, maj- be _, , supplied in a set or series of limitations or trusts, from which Words sup- '^'^ plied to make they have been omitted without apparent design, where those cons^stenT limitations or trusts as they stand are inconsistent with the with context, context, and the context shows what must be added to re- fee in the devisees, and it was not necessary for the court to determine the quantity of the dcvisGs's interest* / (() 2 M. & Pay. 490, [5 Bing. 228, Taml. 119, and in D. P. nom. Langston v. Langston, 8 Bli. 167, 2 CI. & Fin. 19i, Sugd. Law of Prop. 370. See also Newburg v. Newburg, Sugd. Law of Prop. 367; Parlter ». Tootal, 11 H. L. Ca. Ii3. (u) See also Clements v. Paske, 3 Dougl. 384, cit. 1 M. & Sel. 130, 2 CI. & Fin. 230, n. The devise was to trustees during the life of J. C, upon trust for J. C. for life, and after his, decease to the eldest son of J. C., and for default of such issue, then likewise to the second, third, and every other son of J. C. successively, according to seniority, and the several and respective heirs male of the body and bodies of sudi (omitting the first son) second, third, or other son or sons, the eldest of such sons and the heirs male of his body being always preferred to and take before any of the younger sons arid the heirs male of his body, and, in case of such issue male failing by J. C., then over. It was held in B. R. that the eldest son of J. C. took an estate tail, and not an estate for life. Lord Mansfield seems to have chieiiy relied on the word " likewise," as indicating an intention that the first son should have the same estate as the younger sons, and not on the word "other" as (according to Lord Brougham's judgment in Langston v. Langston) he might have done. In Owen v. Smyth, 2 H. Bl. 594, Eyre, C. J., doubted whether words such as those which afterwards occurred in Langston v. Lang- ston could, in a deed, be considered to give an estate tail to the eldest son. In Barnacle v. Nightingale, 14 Sim. 456, there was a devise to A. for life, and, after his decease, to his first son, and, for default of such issue, fo the second, third, &c., and all and every other son and sons of A., and the heirs of his or their bodies lawfully issuing, the elder always to be pre- ferred and to take before the younger of such sons and the heirs of his body : Sha^well, V.-C, decided that the limitation to the heirs of the body of the first son had been omitted, and could not be supplied, and that such son took only an estate for life. The Court of B. R. decided tlie direct contrary on the same will. Doe d. Harris v. Taylor, 10 Q. B. 718 ; and with the latter decision agi'ees Galley v. Barrington, 2 Bing. 387, in which, upon a settlement expressed in very similar words, the Court of C. B. held that the limitation " to the heirs of the body " included the heirs of the body of the first as well as of the second and younger sons ; and Owen V. Smyth, 2 H. Bl. 594, where the limitations in a deed were to the use of N. for life, remainder to the' use of the first son of N., and for default of such issue to the use of the second, third, and all and every other son and sons of N., successivelj', and of the several heirs male of the body and bodies of all and every mch son and sons, so that the elder of such sons and the heirs male of his and their bodies should always take before the younger of the same sons and the heirs male of his and their body and bodies; and it was teld that the words in italics included the first son as well as the others and gave him an estate tail. It must be observed that the authority of Doe v. Taylor is impaired by the reasons given for the decision, viz. that the words "for default of such issue " did not, as is the universal rule, mean for default of 510 SUPPLYING "WORDS. *493 move the inconsistency (a;) . Thus, in Greenwood v. Greenwood (a;) , where a testator bequeathed his real and personal estate to trustees on trust to sell and invest the sale moneys, and " pay the moneys and the investment for the time being representing the same to my wife during her life upon trust for all my children or any child who, being sons, shall attain twenty-one, or being daughters, shall attain that age or marry, in equal shares ; " with power for the trustees " after the death of my wife, or previously thereto if she shall so direct, to raise any part not exceed- ing one half of the then expectant presumptive or vested share of any child under the trusts hereinbefore declared," for the advancement of the child ; and ' ' after the death of my wife " to apply the whole or a part " of the income of the share to which any child shall for the time being be entitled in expectancy under the trusts hereinbefore de- clared " for maintenance of the child : and, in * default of chil- *493 dren, " then from and after the death of my said wife and such default of children," over. The question was whether the wife had a beneficial interest for her life in the fund, and it was held by the L. < that she had. Sir W. James observed that if the will had ended with the gift to the children in equal shares, it would have been difficult to alter the natural meaning of the words, which imported a gift to the wife during her life in trust for the children, giving the latter an estate par autre vie only. But when they read the powers of advancement and maintenance, which were powers dealing after the death of the wife with what the testator treated as already given to the children, it was evident that the natural meaning of the previous words could not be the true one, these powers being utterly inconsistent with the view that the pre- vious trust for children was one determining with the wife's life ; they were driven, therefore, to separate the words in the gift to the children from the gift to the wife for life, the words " after her death " being im- plied after the gift of her life-estate. So in Ee Daniel's Trusts (y) a postnuptial settlement, reciting an in- tention to make further provision for children, vested a fund in trustees for the wife for life, and after her death " for all and every the child and children of the marriage who, being a son or sons, have or hath already attained or shall hereafter attain the age of twenty-one years, and their respective executors and administrators ; and if there shall be but one such child the whole shall be in trust for such only child and his or her executors or administrators," with a direction " duving the minority of each of the said children" to apply the income of " the presumptive share of every such child for his or her maintenance until such his or her share should become vested, or until he or she should die," and a power to apply " all or any part of the expectant share of each of the said such issue as took under the previous limitation, that is, " for default of such first son," but meant " for default of issue of such first son," and that the first son, therefore, took an estate tail by implication. See post, Ch. XL. s. 3, and Re Arnold's Estate, 33 Beav. 163. (a;) 5 Ch. D. 954. (y) 1 Ch. D. 375. 511 ' *495 SUPPLYING "WOEDS. sons " for his preferment or advancement. There were several sons and daughters, all of whom had attained twenty-one. It was held by Sir G. Jessel, M. K., that sons only were entitled. But on appeal it was held that daughters also were by impUcation entitled to participate. The L.JJ. thought the recital and the use of the words " his or her" and "he or she" gave abundant evidence of an intention to provide for children both male and female. Sir W. James said: "These *494 words are part of a common form, and we * must deal with the ease as if the words had run ' for all and every the child and children who being a son or sons shall attain the age of twenty-one years, or being a daughter or daughters ; and if there shall be but one such child, then the whole shall be in trust for such one or only child.' The only question then would be what is to be supplied ; and as maintenance is given during minority, I should have no difficulty in supplying ' attain twenty-one.' " It is presumed that the L. J. did not mean that this was the only qualifi9ation intended as to daughters, for no one ever saw a " common form" of trust for " children who being sons attain twenty-one, or being daughters attain twenty-one." As all the daughters had attained twenty-one, and were thus entitled at all events, it was unnecessary to say what other qualification was intended. But this drops the common form theorJ^ Again, in Sweeting v. Prideaux {z) , where a testator bequeathed 16,0O0Z. in trust to pay the income of one moietj' to his daughter A. for life for her separate use, and after her death to divide that moiety among her children, or failing children among her statutory next of kin ; and to pay the income of the other moiety to his daughter B. for life " in the same manner in every respect, and subject to the same control, as he had before directed as to A., it being his intention that his said daughters' fortunes should not be subject to the control of their husbands." He then gave 6,000Z. in trust for his son C. for fife, and after his death for his children, and failing children to form part of his estate ; and he empowered the trustees to apply the income of the 16,O00Z. and 6,000^. for the maintenance of his said daughters' or son's children as they might think proper. B. died leaving children, and it was held by Sir C. Hall, V.-C, that they were by implication entitled to the moiety given to B. for life. He said: " The daughters were treated collectively, it 15eing his intention that their ' fortunes ' should be alike, and the income was not only given to them but there was a provision for maintenance of his ' said daughters' and son's children.' There was a separate provision for the heads of the three families." So where (a) a testator gave his real and personal estate (which he directed to be sold and converted) in trust as to one seventh for *495 one son, and as to another for the other son. And he * directed his trustees to hold the remaining five sevenths in trust to pay the (z) 2 Ch. D. 413. And see note on limitations by reference, Ch. XXII. s. 6. (o) Ke Kedfern, 6 Ch. D. 133. 512 SUPPLYING WORDS. *496 income to his daughters A., B., C, D. and E. in equal shares during their lives ; and after the death of A., in trust as to one fifth for the children of A. ; and after the death of B., in trust as to another fifth for the children of B. ; and after the death of C, in trust as to another fifth /or the children of D. ; and after the death of E., in trust as to another fifth for the children of E., with power for the trustees " until the share of the issue of any of his said daughters should become pay- able " to invest the same, and apply the income for the maintenance of such issue ; it was held by Sir J. Bacon, V.-C, that a trust must be implied after the death of C. for the children of C. He observed that the testator was making an equal division of his estate among his seven children, but that unless this trust was implied he would die intestate as to one seventh: could he impute such an intention- to the testator on reading the whole will, and looking especially to the provision for main- tenance of the issue — " that is to say (added the V.-C.) the issue of the five daughters ? "] But it is not to be inferred from any of the preceding cases, that words may be inserted upon mere conjecture, in order to ^o^^g (,f equalize estates created by several distinct and independent limitation devises, in favor of persons with respect to whom the testa- devise" not^o tor has expressed no uniformity of purpose, though it maj' be applied to reasonably be conjectured that he had the same intention as vise. to all. Thus, where (b) a testator having three sons, T., F., and H., de- vised lands to T. and the heirs male of his body, remainder to F. and his heirs. Mem, he devised his house in H. to F. and the male heirs of his body, remainder to H. and the heirs male of his body ; Item, he gave to H. and Ms heirs freely another house ; Item, he gave to his said son If. houses and land without any words of limitation. Also he willed that H. should enjoy certain other premises to him and his heirs for ever, and for want of heirs of his body, to F. for ever : it was held that H. had only an estate for life in those premises in reference to which no words of limitation were added. So, where (c) a testator gave unto his wife, her heirs and assigns for ever, all his lands in the parish of B., and then in the occu- Words of nation of S. And he gave and devised to his loving limitation not extended bv wife * aforesaid all his lands, tenements and houses *496 inference to lying in C. (to wit), the house he then lived in, &c. otherdevises. (describing them) ; it was held that the wife took onlj' an estate for life in the lands in C. So, where (d), as touching his " worldly and personal estate," a tes- (S), Spirt V. Bence, Cro. Car. 368; [see Hay v. Earl of Coventry, 3 T. R. 83.] (c) Right d. Mitchell v Sidebotham, Dougl. 759. See also Paice v. Archbp. of Canterbury, 14 Ves. 366; [Doe d. Crutchfield v. Pearce, 1 Pri. 353.] (d) Doe d. Child v. Wright, 8 T. R. 64 ; see also 1 B. & P. N. R. 335 ; where the same con- struction was adopted by three of the judges, with the reluctant concurrence of Sir Jamea Mansfield. VOL. I 33. 513 *497 SUPPLYESTG WORDS. tator gave the same in the following manner : He gave to his grandson James Wright, all his lands, freehold, copyhold, and leasehold, in Essex ; also, he gave to his grandson James Wright, all his estate, freehold and copyhold, in Ellington, in Huntingdonshire ; and also he gave to his grandson John Wright, all his estate, &c., called the Coal-yard, in the parish of St. Giles, London ; and he gave to his grandson James Cam- per (who was his heir at law), the house he lived in, and also his houses and land called Castle Yard, in Holborn, London : it was held that James Wright took only an estate for life in the lands in Essex, in respect of which the testator had not used the word " estate," which in two of the other devises was held to carry a fee.^ A striking instance of the application of the principle in question appears in Eight d. Compton v. Compton (e), where a testator devised to his son Thomas Compton (his heir-at-law) all his lands for life, and he gave to his grandson Thomas Compton, after the death of his father, all the north side of his Down Farm, being about 250 acres ; he gave to his granddaughter Frances, all the south part, being about 240 acres ; he gave unto his grandsons George and Edmund, and his grand- daughter Elizabeth, the upper part of the Lain Farm, being about 200 acres, equally between them as long as they should remain single ; but if either of them should marry, " then to have paid by the other two 101. a year for his or their life." He gave to Edward and John, and his granddaughters Mary and Ann, all that lower part of the Lain Farm, being about 240 acres, equally between them as long as they should live single ; but if either of them married, then 101. a year for his or their life (but not said to be paid by the others). The testator also gave unto his son's wife 51. a year out of each of the said farms, if she should survive him. It was contended that the words " to have paid by the other two," used in the clause respecting the upper part of the Lain Farm (and which had the effect of enlarging the estate of the devisees of that farm to a fee(/)), might be supplied in the *497 * devise of the lower farm, in which they were omitted ; as there could be no plausible reason assigned for supposing that the testator meant to make a different disposition of one part of the same farm to certain of his grandchildren, from that which he had made of another part of the same farm to other of his grandchildren. But the court decided that the devisees of the lower Lain Farm took an estate for life only. Lord Ellenborough said, "that the exposition of every will must be founded on the whole instrument and made ex antece- dentihus et consequentibus, is one of the most prominent canons of tes- Words not tamentary construction ; yet, where between the parts there order'to ren- ^^ °° connection by grammatical construction, or by some e) 9 East, 267. [See also Morris v. Lloyd, 3 H. & C. 141.1 /) Vide post, Ch. XXXIII. s. 2. 1 See Godfrey v. Humphrey, 18 Pick. 589 ; Turbett v. Turbett, 3 Yeates, 187 ; Bradstreet v. aarke, 12 Wend. 602. 514 SUPPLYI^TG WOEDS. *498 reference, express or implied, and where there is nothing in der uniform • scvGrftl d.6— the will declarative of some common purpose, from which it vises of dif- may be inferred that the testator meant a similar disposition fei«nt parts •' "^ of one farm, bj' such different parts, though he may have varied the to persons in phrase or expressed himself imperfectly, the court cannot yonghb'''" go into one part of the will to determine the meaning of another perfect in itself and without ambiguity, and not militating with any other provision respecting the same subject-matter, notwithstanding that a more probable disposition for the testator to have made may be collected from such assisted construction." And he subsequently said, that ' ' from a testator having given persons in a certain degree of rela- tionship to him a fee-simple in (part of) a certain farm, no conclusion, which can be relied upon, can be drawn, that his intention was to give to other persons, standing in the same rank of proximity, the same in- terest in another part of the- same farm, where the words of the two devises are different : the more natural conclusion is, that, as his ex- pressions are varied, they were altered because his intention in both cases was not the same." Again, in Doe d. Ellam v. "Westley(A), where a testatrix gave sev- eral pecuniary legacies, prefacing each request with the word yvor^g ^^. Item. " Item" she devised a messuage to J. E., and after his largingor decease to his son. She then proceeded as follows : '■'■Item, ^tateof'fev- I give and bequeath unto M. W. all that my messuage or isee not ex- dwelling-house wherein I now dwell, with the garden and other devises all the appurtenances thereunto belonging; and I also give '"thewul; unto the said M. W. all my household goods and chattels, and imple- ments of household within doors and without, all for her own disposing, free * will and pleasure, immediately after my de^ *498 cease ; " it was held, that the words in italics were confined to the last section of the clause, and consequently that the devisee took only an estate for life in the messuage. [And in De Windt v. De Windt (i), where a testator devised his estates in N. to his nephew A. for life, and after his death to his sons in tail lawfully begotten ; and in the event of his or their death without sons lawfully begotten, the tes- tator left the said estates to his cousin B., and after his death to his sons lawfully begotten, beginning with the elder. It was held that these four words applied to the latter limitation only, and not to the limita- tion to the sons of A., who consequently took as tenants in common. Again, in Walker v. Tipping (k) , where, amongst several legacies of (ft) 4 B. & C. E. 667; [see also Anon., Moo. 52; Gower v. Towers, 26 Beav. 81. But it is said a devise tljus, "I give Blackacre to C. and his heirs, and also Whiteacre " (not repeating the devisee's name and the verb of gift), gives C. the fee in Whiteacre ; per I^evinz, J., 1 Mod. 1.30. (i) L. R. 1 H. L. 87. (4) 9 Hare, 800. But it is difficult to ovei'come the impression that the bequests in question were elliptical. See Willis «. Curtois, 1 Beav. 189, where a testator gave to A. his "carriages, horses, &c., and chattels in and about his house at M. ; and also .his household goods and furniture, pictures, plate, &c., and likewise his watches and personal ornaments ; " Lord Lang- dale, M. fi., held that A. was entitled to all the testator's household goods, &c., and not those 615 *499 SUPPLYING WOEDS. —nor words 300?. each to the testator's grand-nephews, some of which it. were directed to be paid at particular ages, and others to be sunls in annuities for the lives of the respective legatees, there occurred two bequests as follows: '^ J. "W., 300/. annuity for life." " Martha—, 300/., an annuity for life." Sir G. Turner, V.-C, held, that he could ncjf read these bequests as if they were gifts of sums of 300Z. to be sunk in annuities for the lives of the legatees, but must understand them in their plain and obvious sense as giving annuities of 300/. The same principle is applicable to the objects of a devise. Thus, in Name of Clarke V. Clemmens (/), where a testator bequeathed legacies Sifed by to " ™y brother A.,'' " my sister B.," " the widow of my xoDjecture. late brother C.," and " the eight children of D.," and gave the residue of his estate to X. for life, and after her death "in trust for the said A., B., and. C, and the eight children of the said D.," it was held by Sir R. Malins, V.-C, that the testator never intended to give a share of the residue to C, for he had already referred to him as dead at the date of the will ; it was clear, therefore, that he had made ■some mistake, and it was ■ highty probable that he intended to have given the share to C.'s widow, but as this intention was not certain, the court could not make the addition needed to effectuate it (m). -*499 * Still less can the words of a devise contained in a will be extended to modify the effect of an independent devise contained in a codjcil (n).] But where a testator divides his will into sections, numerically Effect where arranged, and in some instances places the words of limita- ciausesof will tion at the end of each section, it seems, they will be consid- caiiy a?-^"" ered as applicable to the several devises contained in that ranged. section, and not be confined to those in immediate juxtapo- sition. As, in Fenny d. Ceilings v. Ewestace (o), where a testator de- vised, " first," to his wife, all his household goods, &c., to her and her heirs forever ; also, he gave to his wife 'three cow commons, to her and her heirs forever. " 2%." To his two nephews, J. and T. C, all that piece of land called P. ; also, he gave to his nephews, J. and T. C, all that piece of land called L., to be equally divided between them as tenants in common, and to their several heirs and assigns forever. "'Srf/y," as follows : " I give unto my nephew J. D. all that my house and prem- ises at P., in the occupation of R. ; I also give unto my nephew J. D. only which were at his hoase at M. As to the force of the word "item," or "also," see Hopewell w: Acland, 1 Salk. 239 : of the word " likewise," Paylor t). Pegg, 24 Beav. 105. (0 36 L. J. Ch. 171. ' (m) Note, however, that the words "the said" confined the choice to those previously mentioned, that C. was confessedly out of the question, that all the others were correctly re-named except O's widow and 5t.'(on whose death the disposition was to take effect), and that between these two there could scarcely exist a judicial doubt. (n) Biss V. Smith, 2 H. & N. 105 ; Grimson ii. Downing, 4 Drew. 132.] 4 M. & Sel. 58; [see also Child v. Elsworth, 2 D. M. & G. 679 ; Gordon w. Gordon, L. B. !2 (where several clauses began, each with the words " as to ").] 516 jo) 4: iH. L.S TEANSPOSING WORDS. *500 all that my land in the parishes of P. and A., in the occupation of J. T., to him my said nephew J. D,, his heirs and assigns forever." The ques- tion was, whether the words of limitation in the last devise appUed to the lands in the occupation of R., or were confined to those immediately preceding, i.e. in the occupation of J. T. ; and it was held that they applied to both. Lord EUenborough said : " If it had not been for the numerical arrangement, there might have been some difficulty, but that removes it. It seems clear, from the context, that both in the second and third clause the testator, by reserving to the close of the entire sentence the words of limitation, meant to accumulate and comprehend within those words all that he had disposed of in the preceding parts of the sentence." n. As to the Transposition of Words and Clauses. — It is quite clear that, where a clause or expression, otherwise senseless and -vyords may contradictory, can be rendered consistent with the context be trans- by being (p) transposed, the courts are warranted in making ^°^^ ' ^ ™' that transposition.^ * Thus, where {q) A. devised all that his messuage, dwelling- *500 house, or tenement, with all lands, hereditaments, and appurte- nances thereto belonging, situate in Blythbury, in the parish instances of of M. R., then in the occupation of T. W., except one meadow, transposition, called Floodgate Meadow ; and it appeared that T. W. was in posses- sion of the messuage, and a small part only of the lands in Blythbury, and not of Floodgate Meadow ; it was held, that the words " now in the occupation of T. W." might be transposed and applied to the dwelling- house according to the fact, which would render the whole consistent ; whereas, without this transposition, the exception of Floodgate Meadow was senseless and nugatory, as it had never been in the occupation of T. W. The effect consequently was, that the devise extended to all the lands in Blythbury, except Floodgate Meadow, whether in the occupa- tion of T. W. or not. So, where (r) the devise was in the following words : "I devise all my hereditaments in Standon unto my sister Elizabeth Thor- Words trans- ley and to her daughters Ann Shaw and Frances Thorley, ^Jfan^el^with" their heirs and assigns, equally to be divided between and context, amongst them, share and share alike, as tenants in common, and not as joint- tenants, for and during the life of my said sister Elizabeth Thorley ; and from and immediately after her decease, then I devise the said third part of the aforesaid hereditaments so devised to my said sister (p) See Green v. Hayman, 2 Ch. Cas. 10; Sparke v. Purnell, Hob. 75; Cole v. Rawlinson, 1 Salk. 236 ; East v. Cook, 2 Ves. 32 ; Duke of Marlborough v. Lord Godolphin, ib. 74 ; [Gibson V. Lord Montfort, 1 Ves. 490; Mohun v. Mohun, 1 Sw.201.] (n) Marshall v. Hopkins, 15 East, 309. (r) Doe d. Wolfe ». Allc6ck, 1 B. & Aid. 137. • 1 Chrystie v. Phyfe, 19 N. Y. 344; Lin- 17 Ala. 396; Covenhoven j). Shuler, 2 Paige, stuad ». Green, 2 Md. 82; Walker v. Walker, 122. 517 *501 TEANSPOSING WOEDS. for life as aforesaid, unto her said two daughters Ann Shaw and Frances Thorley, their heirs and assigns forever, equally to be divided between them, share and share alike, as tenants in common, and not as joint- tenants." It was contended, that under this devise the daughters of the testator's sister took estates pur autre vie for the life of their mother concurrently with her as tenants in common ; and as to one third with remainder in fee to the daughters, leaving the reversion in fee in the other two-thirds undisposed of; but it was held, that the daughters took estates in fee in the entirety expectant on the decease of their mother. Lord EUenborough said : " The testator has thrown to- gether a heap of words, the sense and meaning of which he did not clearly apprehend ; but although the language of this will is confused, and the words are scattered in such a way as, if taken in the order in which they stand, they do not convey any meaning ; yet, in favor of *501 common sense, we may take the liberty of transposing them, * ac- cording to that order which we may fairlj' suppose the testator would wish to have adopted, and by which we can best eflfectuate his intention. The labor of the argument has been, to make the testator dispose of only one third of his estate, and thereby to comjjel an intes- tacy as to the remainder ; whereas, his meaning evidently was to dispose of the whole." That this construction accorded with the intention of the testator, is Observations ^^S^^y probable ; and if, as suggested, the words taken in upon Doe v. the order in which they stood did not convey any meaning, """^ ■ the established rules of construction clearly authorized the transposition. But the difficulty was in sa}-ing that the words were un- meaning in their actual order ; for it is submitted, that the wUl, read in that order, contained a clear and express devise to the three devisees for the life of the mother, remainder as to one third to the two daugh- ters in fee ; and had the testator deliberately intended to confine his dis- positions to those estates, he could hardly have expressed himself in more technical or formal language. The construction indeed was ap- parently absurd, but let it be remembered that the absurdity of a dispo- sition, if unequivocalljr expressed, is no objection to its receiving a literal interpretation (s) . However, the case was professedly decided upon the principle before laid down, and may, therefore, properly be treated as an authority in favor of that principle {t) . Another case of transposition sometimes occurs, where a testator has Transpnsi- dcvised lands at A. to B., and lands at C. to D., and it ap- -'T t*/d - P^^^^ ^y ^^^ f*"^* "^^ ^^^ limitations of each devise being vise. exactly applicable to the testator's estate in the lands com- prised in the other, and other circumstances, that he has, in each in- (s) Mason v. Robinson, 2 S. & St. 295. [(() But Holroyd, J., while concurring in the decision, rested His judgment on the ground that the words " equally to be divided " down to " Elizabeth Thorley," might be read as in a parenthesis, and so made to refer only to the mode of enjoyment during the life of E. Thor- ley, without affecting the quantity of estate to be taken by the devisees.] 518 TEANSPOSING WORDS. *502 stance, placed the devised estate in the position intended to have been occupied by the other. As where (u) J. B., — having an estate in the county of Monmouth, of which he was seised in fee to his own use, and another estate in the county of Eadnor, of which he was also seised in fee subject to the trusts of his marriage settlement (by which he had covenanted to convey the lands to the use of himself, remainder to his wife for life, remainder to his first and other sons in tail), both which es- tates had formerly belonged to an uncle, * and came to him, the *502 one by descent, the other by purchase from another co-heir of his uncle, — by his will, reciting that he was seised in fee of a messuage and lands at L. , in the countj"^ of Radnor, and of a moiety of a mes- suage in the parish of O. E., in the county of Radnor, and that he was also seised of the reversion in fee, expectant on the death of his wife, and of his son without issue, of lands in the counties of Monmouth and Northumberland (whereas the settled lands were in Eadnorshire, and those in Monmouthshire and Northumberland were absolutely his own) , devised his said estate in the said county of Radnor to his wife for life, remainder to his only son for life, remainder to his (the son's) sons and daughters in tail, in strict settlement, remainder to his own daughter, &c., and devised the reversion of his said estates in the said county of Monmouth, after the deaths of his wife and only son without issue, to his daughter, &c. The will moreover referred to the lands devised as part of the estate of his late uncle. It was held that, comparing the devis- ing clause with the recital and the facts, sufficient appeared to ascertain, beyond a possibility of doubt, that the devisor had made a mistake in the local description, and that his intent was to pass the present inter- est of his estate in fee in possession, which was in the county of Mon- mouth, and the reversion of his settled estate in the county of Eadnor, although he had misdescribed their respective local situations. [It seems, therefore, that, although the words as they stand are not absolutely senseless or contradictory, transposition will be Transposi- made if it be required to effectuate an intention clearly ex- to°tit°thrgeu- pressed or indicated by the context. Eden v. Wilson (x) is eial intent. an instructive example of this doctrine. A testator devised his estates to his daughter for life, remainder to her first son E. for life, remainder to his first and other sons successively in tail, remainder to her second son J. for life, with like remainder to his sons in tail, with remainders to the daughter's third, fourth and other sons in tail ; and with a pro- viso shifting the estate from any son who might become entitled to the D. estates under the will of the late D. (by which those estates were entailed on the second and younger sons) ; "provided always that if my said daughter shall have no issue male of her body living at her death, or no such issue male as shall be entitled, by the true meaning (u) Moseley v, Massey, 8 East, 149; [conf. Doe d. Chevalier v. Utliwaite, 8 Taunt. 306, 3 B. & Aid. 632.] [(a:) 1 Ex. 772, 14 Q. B. 256, 4 H. L. Ca. 257. 519 *503 CHANGING WOKDS. of this my will, to my real estates hereby limited, thea and in either of those cases, I devise the said real estates to all the daughters of *503 * the body of my said daughter living at her death as tenants in common and their heirs respectively, with cross remainders amongst them in case of any one or more of them happening to die un- der twenty-one and without issue, and if there should be but one such daughter living at my said daughter's decease and no issue of any other daughter then in being, then to such only surviving daughter and her heirs, but if any such daughter shall die in her said mother's lifetime leaving issue" such issue to take their parents' share, "and in ease my said daughter shall have no issue of her body living at her death " then over. At the death of the testator's daughter her two sons R. and J. were living, besides several daughters ; but both sons afterwards died without issue, and it was contended that the second of the two cases "in either of" which the limitation to the daughters was to take effect had thus happened : but it was held in D. P. upon the whole proviso that the estates limited by it were not designed as a mere con- tinuation of the previous limitations (to which they did not fit on), but were intended to take effect, if at all, at the daughter's death in favor of persons then living, and that to eifect this the words " liv- ing at her death " in the introductory passage must be read in connec- tion with the verb "have," not with the words "issue male of her body," and so made to run through both branches of the proviso. In other words, the expression "living at her death" was transposed and read as if it came immediatel}'' after the verb "have." It was not, however, a limitation cutting down the previous devise, but a remainder contingent on the determination of that devise in a particular manner.] The same principle, too, is applicable to the objects of a devise : for Transposi- it has been held, that, where {y) a testatrix, having two tion of name, nieces, Mary v?ho had never been married, and Ann who had been married and was dead leaving two children, bequeathed one moiety in a certain portion of her property to the children of her niece Mary, and the other moiety to her niece Ann ; it being evident that the bequest to the children of Mary was intended for the children of Ann, and that to Ann for Mary, the court corrected the mistake. III. As to changing Words. — To alter the language of a testator is As to Chang- evidentlj' a strong measure, and one which, in general, is to ing words, ^g justified Only by a clear explanatory context.-' It often (y) Bradwin v. Harpiir, Amb. 374. 1 The court, in Keith v. Perry, 1 Desaus. Torr, 128 Mass. 38; Minot v. Tappan, 122 353, construed "her" into "their," to give Mass. 535. "Heir" may be construed to effect to the intent of the testator. SoinHor- mean " heir apparent." Morton r. Ban-ett, yiitzv. Norris, 60 Penn. St. 261. The word 22 Me. 257, 26i. "Children" may be con- " heirs " mav be read "children." Bowers strued "issue." See Clifford ». Koe, L. R. 5 «. Porter, 4 Pick. 198; Ellis v. Es.sex Merri- App. Cas.447i Castner's Appeal, 88 Penn. St. mack Bridge, 2 Pick. 243; Brailsfordv. Hey- 478. Merrymans i'. Merryman, 5 Munf. 440. ■ward, 2DesauB. 18. Or "issue," Gifford v. So it may be construed to include "grand- Choate, 100 Mass. 343, 345. See Dove v. children." Osgood t'. Lovering, 33 Me. 464. 5'20 CHANGING WORDS. *504 * happens, however, that the misuse of some word or phrase is *504: so palpable on the face of the will, as that no difflcultj' occurs in pronouncing the testator to have emplo3'ed an expression which does not accurately convej' his meaning. But this is not enough : it must be apparent, not only that he has used the wrong word or phrase, but also what is the right one (z) ; and, if this be clear, the alteration of lan- guage is warranted by the established principles of construction.' Doe V. Gallini (a) affords an apposite example of such a correction of phrase. The testator, after devising estates for life to his children, and, in case of the death of any of them, to their respective children living at their decease, for life, proceeded thus : " And from and after the Words decease of all the children of each of my said sons and daugh- sue "'read '^' ters without issue, I give and devise the estate or estates to leamnii issue. them respectively limited as aforesaid, unto and among all and every the lawful issue of such child or children during their lives as tenants in com- mon, and to descend in like manner to the issue of. my said sons and daughters respectively, so long as there shall be any stock or offspring remaining." It was contended that the word " all" was to be changed into " any," and the words " without issue " to be read " leaving issue," in order to render the language of the will sensible and consistent with the context ; and the court did not hesitate in adopting this construc- tion, though the point was not the main subject of discussion in the case. [So, in Hart v. Tulk (4) , where a testator's general intention appeared by the will to be to make an equal distribution of his prop- "Fourth" erty (which he described in seven different schedules), read '-fifth." amongst his seven children ; and he subjected the properties comprised in the seven schedules to mortgage debts in such a manner, that, if in a particular clause the words " fourth schedule " were read literallj^, not only would the entire plan of the will, as indicated above, be frustrated, but the paj'ment of the debts in the manner provided by the will would (z) Taylor v. Richardson, 2 Drew. 16.] (a) 5 B. & Ad. 621, 3 Ad. & Ell. 340, 2 Nev. & M. 619, i Nev. & M. 893. [And see Jarman v. Vye, L. R. 2 Eq. 784 ("all " admitted to mean "any "). (b) 2 D. iS. & G. 300 ; and see Philipps v. ChamberJaine, 4 Ves. 50 ; Dent v. Pepys, 6 Mad. 350; Bengough v. Eldridge, 1 Sim. 173; Pasmore «. Huggins, 21 Beav. 103 (where "fu- ture" might, it seems, have been read "former");' Re Bayliss's Trust, 17 Sim. 178 (where " are " was interpreted in a future sense) ; Tavlor v. Creagh, 8 Ir. Ch. Rep. 281 (400(. read 500/.); compare Thompson v. Whitelock, 5.Jur. N. S. 991.] "If he should die," construed "when he should Wise, 70 Penn. St. 147. Hortwitz v. Nor- die." Smart v. Clark, 3 Russ. 365. "May ris, 60 Penn. St. 261. They are not to be leave" construed "maj' have." Du Bois v. rejected on conjecture. Caldwell w. Willis, Ray, 35 N. Y. 162. Per other recent exam- 57 Miss. 555. A repugnancy which will pies, see Taylor v. Johnson, 63 N. C. 383 ; justify the rejection of a word or clause State , V. Joyce, 48 Ind. 310 ; Dow d. Dow, from a will must arise upon the face of the 36 Me. 211; Bates w. Dewson, 128 Mass. 334; will. Davis »: Boggs, 20 Ohio St. 650. But Missionary Soc. v. Chapman, ib. 285; Bow- such repugnancy need not arise between the ditch V. Andrew, 8 Allen, 339, 342. word or clause in question and some other 1 The italicized clause in the following word or clause, but may consist in a conflict bequest was rejected in Estate of Wood, with the general tenor and scope of the will. 36 Cal. 75: "I wish $5,000 to go to C. in the Ib. But it is only in case of irreconcilable event of my dying intest-fite.^^ But no words repugnancy that words or clauses can be re- in a will are to be rejected if any intelligible jected. Baxter v. Bowyer, 19 Ohio St. 490. meaning can ' be given them. Seibert v. 521 *505 CHANGING WORDS. become impossible ; Sir J. K. Brace and Lord Cranworth, L.JJ., held that they were warranted in reading the word ' ' fourth " as mean- *505 ing "fifth," * which the context showed was the change re- quired to render the will consistent.] ^ The changing of words, however, has most frequently occurred in regard to expressions which, in common parlance, are often used "Several" inaccurately; as the word " severally" for "respectively," used in sense of which we have an instance in Woodstock v. Shillito (c), resj>ecHv6. ^j^g^g g^ testator gave the interest of a fund to his wife for, life, and after her death to such of his four daughters as should be then living, in equal shares, during their respective lives ; and from and after the several deceases of his four daughters, he gave one fourth of the capital to their respective children. One of the daughters died before the widow, leaving a child. The surviving daughters claimed to be entitled to the entire fund, under the express gift to the daughters living at the decease of the testator's widow ; but Sir L. Shadwell, V.-C, held, that the words " from and after the several deceases of mj' said daughters," were to be construed " from and after the decease of my daughters respectively." "It was clear," he said, " the testator meant to give to the children the share of their mother on her death." But by far the most numerous class of cases, exhibiting the change II Or" of * testator's words, are those in which the disjunctive changed into "or" has been changed into the copulative and, and vice versd.^ It is obvious that these words are often used orally without a due regard to their respective import ; and it woul(^ not be difficult to adduce instances of the inaccuracy, even in written composi- tions of some note ; it is not surprising, therefore, that this inaccuracy should have found its way into wills. Accordingly we find that the courts have often been called upon to rectify blunders of this nature : (c) 6 Sim. 416. 1 It is a rule of construction that where a change the word. O'Brien v. Heeney, 2 gift to children spealts of them as a specified Edw. 242; Miles v. Dyer, 5 Sim. 435; Ray namber, which is less than the number in ex- v. Enslin, 2 Mass. 554 ;' Carpenter ». , Heard, istence at the date of the will, the specified 14 Pick. 449; Parkerr. Parker, 5 Met. 134, number will be rejected on the presumption 137; Hunt v. Hunt, 11 Met. 88; Sayward of a mistake, and all the children so in exist- v. Sayward, 7 Greenl. 210; Thackeray v. ence will be entitled unless it can be inferred Hampson, 2 Sim. & S. 214; Monkhouse v. who were the particular children intended. Monkhouse, 3 Sim. 126; Englefried v. Woel- Kall^eisch v. ICalbfleisch, 67 N. Y. 354; part, 1 Yeates, 41; Turner v. Wliitted, 2 Garvey (;. Hibbert, 19 Ves. 124; Spencer o. Hawkes, 613; Parrish v. Vaughan, 12 Bush. Ward, L. E. 9 Eq. 507. The rule that all in 97; Jackson v. Blanshan, 6 Johns. 54; Beall existence will talce does not prevail if the v. Deale, 7 GUI & J. 216 ; Den v. Mugway, particular ones be pointed out by some addi- 3 Green, 330 ; Ward v. Waller, 2 Speer's, tional description ; Wrightson v. Calvert, 786 ; Den v. English, 14 Penn. St. 280 ; Munro 1 Johns. & Hem. 250; or if some of a class r. Holmes, 1 Brev. 319; Bostick v. Law- have already been provided for, and the ton, 1 Speer, 258 ; Kelso v. Dickey, 7 Watts specified number corresponds with the num- & S. 279 ; Butterfield v. Haskins, 33 Me. ber of those not provided for, and there is a 393 ; Janney v. Sprigg, 7 Gill, 197 ; Tennell division into the same number of shares. ». Ford, 30 Ga. 707; Holcomb v. Lake, 1 Kalbfleisch v. Kalbfleisch, supra; Shepard v. Dutch. 603; s. c. 4 Zabr. 686. But this sub- Wright, 5 Jones, Eq. 22. stitution will not be made, unless it be neces- 2 Where it is clear, from the intention of sary to carry out the clear intention of the the testator, that the word "or" is used in- testator. Holcomb )j. Lake, supra; Robert- stead of " and," and e amverso, the court will son v. Johnston, 24 Ga. 102. 522 CHANGING "WOEDS. *506 SO often, indeed, as to have swelled the cases on the subject into a mass requiring much attention and discriminative arrangement, in order to deduce from them any intelligible and consistent principles ; and, in performing this task, the liberty must be taken of sometimes referring the cases to principles not distinctly recognized by the judges who decided them. It has been long settled that a devise of real estate to A. in the case of and his heirs, or, which would be the same in effect, to f,i"v|„t™f' A. indefinitely, and in case of his death under twentj'-one, death under or without issue, over, the word "or" is construed " and," orwit^Xt' and, eonsequentlj-, the estate does not go over to the ulterior issue. , devisee, unless both the specified events happen. * One of the earliest authorities for this construction is SouUe *606 V. Gerrard {d) ; where a testator, having four sons, devised lands to Richard, one of his sons, and his heirs, forever ; and if Richard died within the age of one-and-twenty years, or without issue, then, that the land should remain to his other three sons. Richard died under age, leaving issue a daughter. It was held that, in the event which had happened, the devise over to the three sons had failed ; for, that by the words and intent, it was not to commence unless hoth parts were performed, and that it was " all one as if the disjunctive or had been a copulative." The ground for changing the testator's expression in these cases is, that as, by making the event of the devisee leaving issue Principle of a condition of his retaining the estate, he evidently intends ^^ '"'^ ' that a benefit shall accrue to such issue through their parent, it is highly improbable that he should mean this benefit to depend upon the contingency of the devisee attaining majoritj' ; while, on the other hand, it is veiy probable that the testator should intend, in the event of the devisee dying under age leaving issue, to give him an estate which would devolve upon the issue ; but that, if he attained twenty- , one (the age at which he would acquire a disposing competency) , he should take the estate absolutelj-, i.e. whether he afterwards died leaving issue or not. The change of or into and, therefore, substitutes a reasonable for a most unreasonable scheme of disposition.^ And though it has generally happened that the subject to which this rule of construction has been applied is real estate, yet the _ applicable rule is equally applicable (as the reason of it evidently to bequests of is) to bequests of personalty ; and, therefore, in the case P'^'^^°"* ^^ Id) Cro. El. 525; S. C. nora. Sowell v. Garrett, Moore, 422, pi. 590; Price v. Hunt, Pollex, 645; Barker -c. Suretees, 2 Str. 1175; Walsh ». I'eterson, 3 Atk. 193 ; Doe d. Burnsall ti. Daw, 6 T. E. 34 ; Fairfield ». Morgan, 2 B. & P. N. R. 38 ; Eastman v. Baker, 1 Taunt. 174 ; Right ». Day, 16 East, 67; see also Doe d. Herbert v. Selby, 4 D. & Ry. 608, 2 B. & Cr.926; [Mor- rall V. Sutton, 1 Phill. 551.] 1 Sayward v. Sayward, 7 Greenl. 210; 5 Binn. 252; Carpenter v. Heard, 14 Pick. Jackson v. Blanshan, 6 Johns. 54; Jackson 449. V. Reeves, 1 Wend. 388; Holmes v. Holmes, 523 *607 CHANGING "WOEDS. of a legacy to A., and incase of his death under age or without issue, to B. , it is not to be doubted that A. would retain the legacy, unless he died under age and without leaving issue at his decease. And, of course, it would be immaterial that the original bequest was expressly made contingent on the legatee attaining majoritJ^ As in Mytton V. Boodle (e), where a testator bequeathed 5,0001. to A. if he attained twenty-one ; but if he should not attain that age, or die without leaving issue, then over. It was held, that A., on attaining twenty- one, was absolutely entitled. *507 * In this case (/) the expression which raised the question in the will was repeated in the codicil — a circumstance which was considered (and it is conceived rightly) not to indicate that it was used advisedly. And the same construction obtains where another event is associated _., ^ . with the dying under aige and without issue, as in the case case of death of a devise in fee or bequest to A., with a gift over, in during mi- gg^gg q^ . j^jg dying during minority unmarried, or without is- married or sue (g) ; and that, too, though the copulative " and " is found withoutissue. .jj company y^Hh the disjunctive "or" in the same will, indeed in this very sentence. As in MUes v. Dyer (h), where the bequest was to A. for life, and after her decease to her children on their attain- ing twenty-one ; in case thej' should die in the lifetime of A., or under twentj'-one, and without leaving issue, then over, it was held that the intei?- ests of the children were not divested unless the three events happened. It is obvious that the ground for changing or into and exists a fortiori where children or issue are the express objects of the prior *gift ; as where (i) there is a devise to a person when he attains twentj'-one, for life, remainder to his children (the devise, in the case referred to, was to the sons successively and the daughters concurrentl3') , in tail, with a devise over if he die under twenty-one or without children. It would seem that the principle in question appUes to every case where the gift over is to arise in the event of the preceding extension of devisee or legatee d3'ing under prescribed circumstances, or the rule. leaving an object who would, or at least who might, take a benefit derivatively through the devisee or legatee, if his interest remained undi vested, and to whom, therefore, it is probable the testa- tor intended indirectly a benefit, not dependent upon the circumstance of the devisee or legatee dying under the prescribed circumstances or not. In this point of view it would seem to be immaterial whether the dying is confined to minority, or is associated with any other contiu- (c) 6 Sim. 457. [(/) And in Framlingham v. Brand, infra.] (o) Framlingham v. Brand, 3 Atk. 390; [see Doe v. Coolie, 7 East, 269, post.] (7i) 6 Sim. 436, 8 Sim. 330. (j) Haslter «. Sutton, 9 J. B. Moo. 2, 1 Bing. 501. [But the only question there was whether the remainder was vested or not. The defendants could not succeed unless it was, and it could be so onlv by adopting Lord Hardwicke's "construction" in Brownsword v. Edwards (post, 509) : reading or as and was insufficient : and the court certified against them. And see now Cooke v. Mirehouse, 34 Beav. 27, post. 512.] 524 CHANGING -WOEDS. *509 gency, as in the case of a gift to A., and if he shall die in the lifetime of B. or without * issue {k) , [or die without issue ok *508 intestate (/),] then over ; or whether the event is leaving issue or leaving any other object who would derive an interest or benefit through the legatee, if his or her interest was held to be absolute, as a husband or wife. Thus, where (m) a testator bequeathed the residue of his personal estate to his daughter, her executors, &c., with a proviso. Gift over on that in case his daughter happened to die under twenty-one, death under or without leaving any husband living at her death, then he o^!™t'h^ut^' gave several legacies, all which he directed to be paid within leaving a twelve calendar months after his decease, in case of the death of his daughter under age as aforesaid ; and in such case- he gave the residue to other persons — ^ Sir W. Grant, M. E., held, that " or" was to be read "and," and that the expression "under age as aforesaid" meant not leaving a husband. The cases under consideration, perhaps, may seem to form an excep- tion to the rule that words, unambiguous in themselves, are not to be rejected or changed on account of their unreasonableness ; but as this construction has obtained so long, is confined to a particular expres- sion, and that expression one which is often used indiscriminately with the substituted word, there does not seem to be much danger in this seeming latitude of interpretation ; but it should, if possible, be made to rest upon some solid principle, fixing definite limits to its applica- tion. The cases, it is conceived, in efiect though not professedly, warrant us in stating that principle to be (as before suggested), that where the dj'ing under twentj'-one is associated with the event of the devisee leaving an object who would, if the devisee j-etained the estate, take an interest derivatively through him, the copulative construction prevails ; though it is by no means equally clear that the rule is confined to such cases. Lord Hardwicke, in Brownsword v. Edward^ («), expressed an opinion, tliat the construction in question was not apph- whether rule cable to estates tail, [on the ground that there was no occa- applies to es- sion for it ; since an estate tail was capable of a remainder, ^ ^* and the words might, by an " easy construction," be read as such; so as to secure the estate to the issue, if any, and yet give effect to the Hmainder in case the issue failed at any time. At the present day the * court follows Lord Hardwicke in declining to change " or " *509 into " and" (or the contrarj') where the prior estate is in tail, but rejects the ' ' construction " upon which alone his opinion was based. The course of decision deserves attention. In some of the cases, it (h) Wright V. Kemp, 3 T. E. 470, [a case on a transaction inter vims; Denn- v. Kemeys, 9 East, 366 ; Doe d. Knight v. Chai?ey, 16 M. & Wels. 656. {I) Green v. Harvey, 1 Hare, 428; Beachcroft v. Broome, 4 T. R. 441; and see Incorpo- rated Society v. Richards, 1 D. & War. 283 ; Greated v. Created, 26 Beav. 621.] (m.) Weddell v. Mundy, 6 Tes. 341. (m) 2 Ves. 249. 525 *510 CHANGING WOEDS. will be seen, the gift over was if the tenant in tail should die under twenty-one or without issue, in others the conjunction "and" was used.] In Brownsword v. Edwards (o) , the devise was to trustees and their Brownsword heirs to receive the rents until A. should attain twenty-one ; V. Edwards, ^nd if he should live to attain twentj--one or have issue, then to A. and the heirs of his bodj- ; but if A. should die before twentj'-one and without issue, then in trust for B. [in like manner, with gifts over in the like words to other branches • of testator's family ; and for want of such issue to his own right heirs]. A. and B. were the testator's illegitimate son and daughter [but for the purposes of the argument were taken to be legitimate] . A. attained twenty-one and died without issue [and it. was argued that the gift to B. had failed, only one of the two events upon which it was limited having happened. But Lord Hardwicke held B. to be entitled. He said : " There is no necessity in this case to transpose or supply material words ; but there is a plain natural construction upon these words, viz. if A. shall happen to die before twenty-one, and also shall happen to die without issue ; which construction plainlj' makes the dying without issue to go through the whole and fullj'^ answers the intent, which was in that manner. Had the first devise been to A. and his heirs, this construction, I believe, could not be made ; for where there is such a contingent limitation I do not know that the court has changed heirs into heirs of the body to make it so throughout. But much stronger constructions than this have been made in devises : as, in a devise to one and'his heirs, and if he should die before twenty-one or without issue, the court has said it was not the intent to disinherit the issue, and therefore or shall be construed and ; but if the first limitation had been in tail there would be no occasion to resort to that, but the court would make the construction I do now " (showing that, whether the word of the will was and or or, he thought some " construction " equally necessary), "viz. if he dies without issue before twenty-one then over by way of executory devise ; if he dies without issue after twenty-one, when the estate had vested in him, it would go by way of remainder : an estate tail is capable of a re- *510 mainder, and it is * natural to expect a remainder after it. It is contrary to his intent to let in this remainder to the right heirs to defeat all the intermediate limitations to his family." A stricter adherence to the letter was preserved in the earlier case Woodward v. of] Woodward v. Glasbrook (pa), where a testator devised a Glasbrook. house to his sons, James and Thomas, and the heirs of their Deviseoverif bodies, in equal moieties, and devised other houses to his 6h™M die'*' other children in like manner ; and pro-\aded that, if any of under his said children should die under twenty-one or unmar- unmarried.'"^ ried {p), the part or share of him or her so dying should go (o) 2 Ves. 249. (oa) 2 Vern. 388, (p) Not " without issue." But " unmarried " equally involves the extinction of the estate tail. 526 CHANGING -WORDS. *511 to the sun'ivors ; and it was held by Holt, C. J., that the shares of two of the children dj'ing unmarried, though they attained twenty-one, went to the devisees over. In Doe d. Usher v. Jessep (q), where A. devised to trustees and their heirs, in trust for his natural son J. and the heirs of his Doe u. Jessep. body, and if J. should die before he attained his age of twenty-one years, and without issue, then over. J. attained chaufe^ jn°o his majority, but died without issue. It was contended, on " or " in limi- [a mistaken view] of Brownsword v. Edwards, that " and" after ap was to be read or, which would, in the event that had hap- estate tail. pened, give effect to the devise over; but Lord Ellenborough, though he admitted the cases to be very similar (the only distinction being that the limitation over in the cited case was in favor of a daughter, who, without such a construction as was there put upon the word " and,'' would have been without a provision) [which is a distihction without a difference (r)] , decided that the word was to "be taken in its literal sense. ^ [Again, in Mortimer v. Hartley (s), where the testator devised lands to John and Ann successively in tail(<), and "if it should Mortitaert). please God to take away both Ann and John under age; or Hartley, without leaving lawful issue," then over to X. Ann died under age and without issue, and John died without issue, but not under age. On a case from Chancery the Court of Exchequer refused to read ' ' or " as " and," and held that the devise over took effect. Parke, B., in deliv- ering the judgment of the court, said : " If we abide by the words of the will, it is possible we may * disappoint what we may con- *511 jecture to have been one intention of the testator, because it is a reasonable intention to entertain, that is, to give a benefit to the issue if their parents should die under age, but we are sure of carrj'ing into effect a manifest and declared intention of the testator to give the re- mainder over to X. on the determination of the estate tail : on the other hand , if we change ' or ' into ' and ' for the purpose of effecting the conjec- tured intention to give a benefit to the issue on the death of their parents respectively under age, we defeat the clear and manifest intention to give the remainder to X. on failure of the issue of John and Ann, and cause an intestac3' as to that remainder, a circumstance which ought to be avoided." If the first devise. had been in fee-simple he admitted the authorities would have required the change ; " but as none of the authorities apply to an estate tail, and we have Lord Hardwicke's high authority for distinguishing such a case, we think we ought to do so, (j) 12 East, 288 ; see also Soulle v. Gerrard, Cro. El. 525 (stated, ante, p. 506), where it was considered (though, according to subsequent authorities, erroneously), that the first devisee had an estate tail. [()•) 6 H. L. Ca. 8i, 85, 96. (s) 6 Exch. 47, 3 De G. & S. 316. (<) The court of C. B. held upon the same will that the prior des'ise gave a fee, and then they read "or" as "and," 6 C. B. 819. 1 See Chrystie v. Phyfe, 19 N. Y. 344; Doe v. Watson, 8 How. 263. 627 *512 CHANGING WOEDS. and abide by the ordinarj' sense of the words. If any change should he made, the one which would be most likely to effectuate the intent of the testator would be to read the words as if they had been ' if it should please God to take away both John and Ann under age or at any time without issue.' Bj' so reading them tlie issue would take if their parents died under age, and X. succeed on the determination of the estate tail. But if this cannot he done we think we should make no change at all." But this was exactly the change which the court had " Lord Hard- wicke's high authority " to make. Whether it was made or not, the result, as it happened, was the same ; for in either case the gift over took effect without disappointing any issue. But if there had been any issue they would have been disappointed, and it seems strange to invoke Lord Hardwicke's authority for a conclusion which it was the declared object of his construction to avoid. When the case came back to Chancery, Sir K. Bruce, V.-C, virtually adopted that constraction, saying : "On the authority of Brownsword v. Edwards and Murray Vi Jones (m) and other cases I am of opinion that the testator has but in- accurately expressed that he disposed of everything after the failure of the limitations in the prior clauses, in whatever manner they might fail." Greys. Pear- ^^ ^^ evident, however, that this construction strikes out son. the words " under twenty-one ; " and in Grey v. Pearson {v), where the will was undistinguishable from the will in Doe v. Jessep^ *512 * the devisee in tail attained twenty-one, .but afterwards died without issue ; and it was held in D. P., following Doe v. Jessep, that the words must be taken literallj^ and that the gift over failed. It was admitted that where lands were devised to one and his heirs with a gift over if he died under twenty-one or without issue, "or" was to be read ' ' and ; " it was too late to question the authorities which had so decided : but, it was said, those decisions did not govern a case where the first devise was in tail, with a gift over if the devisee died under age arerf without issue. The House refused, therefore, to apply those authorities to the case before it ; and on the ground that Lord Hard- wicke's ' ' construction " had not been uniformly adopted it rejected that also, deeming it to be somewhat forced and very unusual (cc). Modern authoritj', therefore, while it still distinguishes the ease of an estate tail, deals with it on wholly different principles from those upon which the distinction was originally based. For (as we have seen) Lord Hardwicke never meant to read the words so as in any event to disap- point the issue ; whereas Mortimer v. Hartley and Grey v. Pearson will require both "or" and " and" to be strictly construed although the issue may be therebj- disappointed. The readiness with which Lords (u) 2 V. & B. 313, stated post, Ch. L. . ivy 6 H. 'L. Ca. 61, by Lords Cranworth and Wensleydale, diss. Lord St. Leonards. (a:) Lord St. Leonards, on the other hand, thought it "easy and natnral." As to Doe V. Jessep he said it was hastily decided, and that the judges of K. B. showed by their remarlis that they misunderstood the real nature of the case, 6 H. L. Ca. 97. 528 CHANGING WORDS. *513 Cranworth and "Wensleydale accepted the distinction of an estate tail, while rejecting the grounds for it, was plainly due to their disapproba- tion of the so-called speculative system of construction adopted in the old authorities ; and since Grey v. Pearson "or" has been strictly con- strued even in the case (already mentioned as furnishing an a fortiori argument for changing " or" into " and") where children or issue were express objects of the prior gift : as, where (y) the devise was to A. for life if he should attain thirtj'-one, with remainder to his eldest son in fee, with a gift over if A. should die under thirty-one or not have a son. A. attained thirty-one but died without having a son, and it was held that the gift over took effect, for that " or " could not be construed " and." Sir J. Eomilly, M. R., said he never knew of a case where the change had been made for the purpose of defeating the will and creating an intestacy. It will, however, be perceived that if A. had had a son and afterwards died under thirty-one the son would have been disappointed : for the construction could not properly depend on the * event. The hteral construction, however, has not 3"et *513 been tested by any case where such disappointment would have ensued. Of changing " and" into "or" in cases where the previous estate is not in tail more will be said hereafter.] To return for the pres- ent to the cases in which "or" has been construed and. „.,, . .. trift m either The argument for this construction is, of course, very strong of two events, where the effect of an adherence to the words of the will r''"!,f''u°I^'' on noii-nap- would be to deprive the legatee of what was previously given pening of one to him in ei'Mer of two alternate events, unless both, events "^ "* ° '^'' should happen, as in the case of a bequest to A. on his attaining thirtj'- one or marrj'ing ; and in case he should die under thirty-one or un- married, then over: in such a case "or" is necessarily construed andy in order to make the limitation over consistent with the terms of the prior gift (z) . [So where propertj^ is given to a person in either of two events, and afterwards given over in terms unless not only those two events but an additional event also happens. Sir L. Shadwell, V.-C, thought that, if it were necessary, the court would read the word or as and (a). These decisions depended on the inconsistency which, upon a literal construction, would have existed between the prior gifts and ,,,, ,. ' ^ ^ Where there the executory gifts over. Where there is no prior gift this is no prior ground fails : so that a bequest to A. after the death of tes- ^ tator's mother or the second marriage, death, or forfeiture of his wife,. (;/) Cooke v, Mirehouse, 34 Beav. 27. As to Hasker v. Sutton, 9 J. B. Moo. 2, 1 Bing; 501, vide supra, n. 507, n.] (2) Grant v. Over, 2 Dow, 87; [Thompson v. Teulon, 22 L. J. Ch. 243; CoUett v. Collett, 35 Beav. 312, stated Ch. XXVII. s. 1. (fi) Grimshawe v. Pickup. 9 Sim. 591 ; and Miles v. Dver, ante, p 507; Law v. Thorp. 25 L. J. Ch. 75, 1 Jur. N. S. 1083; Johnson v. Simcock, 6 H' & N. 6, 7 Jur. N. S. 344; Bentlejr l!. Meech, 25 Beav. 197; Hawkins v. Hawkins, 7 Sim. 173. VOL. I. 34 529 *514 CHANGING WOEDSi although the testator had made life-provisions for- both his mother and wife, upon whose death, therefore, a certain amount of the estate would be set free, was held to take eflfect immediately on the death of the mother without waiting for the second marriage, death, or forfeiture of the wife : in other words, the court refused to read " or " as " and " (J) . And a similar observation must be made with reference to the opposite change of " and " into " or "(c). Sometimes the general context or plan of the will calls for the con- "Or"read jui^'^tive Construction in cases not easily reducible to any and on gen- specific head. Thus, in Long t;. Dennis (rf) , where there was a devise to A. for life, upon condition that if he should marry with any woman not having a competent fortune, or without the * consent of trustees, the estate should not vest ; the Court *514 of K. B., considering that the testator meant to require the sanc- tion of the trustees only in case A. married a woman without a competent fortune, and also that conditions in restraint of marriage were odious, held that the estate vested upon performance of either part of the condition ; that is to say, they read the word "or" as and. And in another case, where a testator bequeathed (e) the produce of real estate, after the cesser of certain life-estates, to J. A. for life, and after his death to his eldest son for life, " and to remain entailed on the eldest son descended from J. A. and his posterity from one generation to another forever : but in case of death or want of issue from the said J. A.," then over: Sir L.Shadwell, V.-C, read the will as if it had been "in case of death and failure of issue," so as tg agree with the general intent collected from the context, that all the descendants of J. A. were to take in succession.] Where there is a gift to two objects or classes of objects alternativelj', p.,, J the ambiguous use of the disjunctive " or" occasions much erai objects perplexity. Sometimes, as we have seen, the gift has been alternatively, j^^j^j ^ ^^ ^^j^ ^^^ uncertainty (/) ; but more frequently, in such cases, the word has been changed into and. As in Eiehardson V. Spraag (g), where a testatrix bequeathed money in trust for such of her daughters or daughters' children as should be living at her son's death — it was held, that the children, as well of the living as of the deceased daughters, came in for their shares, the word "or" being read and. So, in Eccard v. Brooke (h), where the bequest was to L. for his life. Gift to A or ^"*^ ^^^ ^^® decease to the nephews and nieces who should his children, be then living, as well on the side of the testatrix's late hus- read and. i3an(j as of her own, to wit : A. or her children, and B. or his children, and C. or his children, and D. or his children, and E. or her (6) Hawksworth «. Hawksworth, 27 Beav. 1. (c) See Maiden v. Maine, 2 Jur. N. S. 206. (d) 4 Burr. 2052; see also Nicholls v. Tolley, 2 Tern. 388. (e) Monkhouse v. Monkhouse, 3 Sim. 119; see also Hawkes v. Baldwin, 9 Sim. 355.] (/) Ante, p. 372. iff) 1 P- W. 434. (A) 2 Cox, 213. 630 CHANGING WORDS. *515 children, share and share ahke. Of these five persons four died in the lifetime of L., three without issue and one leaving two children. The other was living and had no child. Sir L. Kenyon, M. R., was of opinion that the word " or" must be considered as if it had been and, for that otherwise he must either adopt the argument that it jneant to substitute the children of each nephew and niece who should happen to die, in the room of their father or mother, for which he saw nosufB- eient ground, or he must say that the clause was so uncertain * that he could give it to none. He held that the two children *515 of the deceased niece and the surviving niece took in equal thirds ; but that, if the latter had had any children hving, they would have taken equallj^ with her. Again, in Horridge v. Ferguson (j), where the testatrix directed the residue of her property to be divided among such of the ehil- ' dren of five persons (naming them) as should be born in ^l^ jsgue. lawful wedlock and living at her decease, or the issue of such of them as should be married — Sir T. Plumer, M. E., considered, that, in order to make sense of the passage, "or'' might be construed and. All the children and grandchildren, therefore, took equally. [And in Maude v. Maude {k) , where a testator bequeathed a sum of money to his four sons A., B., C. and D., in trust for.another .,„ ,, son E. during his fife, and after the death of E. without chil- '• and " to dren upon trust to divide the monej^ equally amongst the tes- H^^y^' tator's said sons A., B., C. and D., or to such other of his sons as should afterwards be, in succession, trustees for E. under the proviso thereinafter contained. Sir J. Eomilly, M. R., held that " or" must be read " and : " otherwise, if two of the four had died and two others had under the proviso become trustees in their place, and then E. had died without issue, would the two original or the two new trustees take the fund ? If they did not all take one class must be excluded.] "Or," too, has often been changed into araif where interposed between the name of the devisee and words of limitation introduced into the devise, as in the case of a devise of real estate to A. J". ■*■• '"' *"' ' heirs. or his heirs, or to A. or the heirs of his body (Z), [or to A. or his issue, where the word " issue" has been taken to be a word of limitation (m).] Whether the same construction would be applied to bequests of personalty to A. or his executors or administrators is not quite clear, for in such a case, as the words of limitation are not neces- sary to confer the absolute interest (a diflSerence, however, which no longer exists) , there may seem to be more reason for contending that (i) Jac. 583. [(h) 22 Beav. 290.] ' 0) Read v. Snell, 2 Atk. 642; Wright ». Wright, 1 Ves. 409; [Harris ». Davis, 1 Coll. 416: Greenway v. Greenway, 2 D. F. & J. 128; Adshead v. Willetts, 29 Beav. 358. (m) Parkiim. Knight, 15 Sim. 83; but of course not where substitution, and not succes- sion, is clearly intended, see Speakman v. Speakman, 8 Hare, 180.] 531 *516 CHANGING "WORDS. they are inserted diverso irduitu. The strong tendencj' of the modem "O " ad ^'^sfis certainly is to consider the word "or" as introducing introducinga a substituted gift in the event of the first legatee dying substituted *5ig j,j yjg testator's lifetime : in * other words, as in- serted in prospect of, and with a view to guard against, the failure of the gift by lapse. Thus, in Davenport v. Hambury (n), where the bequest was to A. or her issue, it seems to have been taken for granted that the issue. '^ ^^ word or was intended to substitute the issue in case of the death of A. in the testator's lifetime ; the question discussed being, not whether issue were entitled, but how, i.e. whether per stirpes To legatees, OY per capita. So, in Montagu w. Nucella (o), where legacies or to tiieir were bequeathed to the testator's nephews and nieces, " or to cWM V7chil- their respective child or children," Lord Gifford, M. K. , held dren. tjjg effect to be to vest the legacies absoliitelj- in the children surviving the testator, and that the children were let in only as sub- stitutes for their parent or parents dying in the testator's lifetime. Tothechii- -^"^^ ^"^ Gittings w. Mac Dermott (p) , where a testator be- drenof A., or queathed certain stock to the children of his sister, the late Elizabeth "Wall, or to their heirs, Sir J. Leach, M. R., con- sidered it to be clear that the word "or" implied a substitution, and that the next of kin (who in regard to personalty were considered to be designated by the word heirs) of such of the legatees as died in the testator's lifetime were entitled to their legacies ; and Lord Brougham, on appeal, affirmed the decree. These cases [which have been repeatedly followed (9)] are incon- sistent with, and therefore have overruled Newman v. Nightingale (r), where a sum of 500/. was bequeathed to the sole use of A. or of her children forever ; and Lord Thurlow held, that the true construction of the words was, to give A. an interest for life, and the children to take it amongst them at her death. Where, however, the words in question are applied to a bequest which _ , maj' not take effect in possession on the testator's decease, words refer to another point presents itself, namely, whether the word " or" in"life§m?of (^^Iniitting it to be introductory of a substituted gift) is meant testator, or to provide against the contingency of the first-named legatee afterwards. ^^.^^^ -^^ ^^^ testator's lifetime, or that of his dying in the interval between the death of the testator and the vesting in possession. (re) 3 "Ves. 257 ; see also Crooke v. De "V^andes, 9 Ves. 199 j [and see the same force at- tributed to the word and in Burrell v. Baskerfield, 11 Beav. 534 j Tucker v. Billing, 2 Jur. N. S. 483. Sed qu. as to the last case.] (0) 1 Russ. 165. {p) 2 My. & K. 69. [(7) Whitcher «. Penlev, 9 Beav. 477 ! Penlej- w. Penley, 12 Beav. "547 ; Chipchase v. Simp- son, 16 Sim. 485; Salisbury ». Petty, 3 Hare, 86; Doody K. Higgins, 9 Hare, App. 32; Jacobs V. Jacobs, 16 Beav. 557 ; Amson v. Harris, 19 Beav. 210 ; Sparks k. Restal, 24 Beav. 218; Re Craven, 23 Beav. 333; Timins ». Stackhouse, 27 Beav. 434 ; Re Porter's Trust, 4 K. & J. 188; Blundell t). Chapman, 33 Beav. 648; Margitson v. Hall, 10 Jur. N. S. 89; Finlason V. Tatlock, L. R. 9 Eq. 258; Holland v. "Wood, L. R. 11 Eq. 91.] (r) 1 Clox, 341. 532 CHANGING WOEDS. *ol8 *Sueh a question occurred in Girdlestone v. Doe(s), where a *517 testator bequeathed 40^. per annum to A. for life, and after her decease to B. or his heirs ; and it was held that B., who survived the testator, did not take the absolute interest, but that the latter words created a substitutional gift for his next of kin in the event of B. dying in the lifetime of A. {t). [But if the gift be to the specified persons " or their heirs or assigns," it is clear that the words are words of limitation only ; for Gift to '-as- the power of assigning implies an absolute and indefeasible pif "s an'abso- interest (m). lute interest. Here we may distinguish those cases where, under a power to ap- point in favor of A. or B. (A. and B. being either classes po^er to ap- or individuals), a gift in default of appointment is implied point to A. or between A. and B. (x). This is an apparent but not a real gift to"A. and change of "or" into"and"; the true reason that A. andB. B.indefault. both take being that both are objects of the power, and no selection having been made by the person empowered to select, the court divides the subject of gift equally between the objects of the power (y) . Again, a gift to A. for life, and after his death to a class of persons " or the issue of such of them as shall then be dead (2) , or to A. for life, and after his death to such of a class as shall be then living or their next of kin " (or " heirs "), will generally be construed to mean, such of the class as shall be living at the death of the tenant for life, and the issue or next of kin (or heirs) of such as shall then be dead (a)] . The word " and," too, is sometimes construed or. This change (being the converse of that which is exemplified by the pre- , , , ^ ° ^ •' "^ As to turning ceding cases [but, like it, generally made to favor the vest- "and" into- ing of a legac}', and not to devest it (6)], maj' be called for "''" by the general frame and context of the will, [as in Jackson v. Jackson (c) where a testator * bequeathed a leasehold bouse to *518 (s) 2 Sim. 225; see also Corbyn v. French, 4 Ves. 418; [Tidwell v. Ariel, 3 Mad. 403;] Hervey v. M'Laughlin, 1 Price, 264 ; [Price 1). Locliley, 6 Beav. 180 ; Salisbury 1;. Petty, 3 Hare, 86.] t,t) The further discussion of the point suggested by this case, however, will more properly find a place in Ch. XLIX. [(!t) Ke Walton's Estate, 8 D. M. & G. 173; Re Hopkins' Trust, 2 H. & M. 411. (x) Brown d. Higgs, 4 Ves. 708, 5 Ves. 495, 8 Ves. 561; Longmore «. Broom, 7 Ves. 124; Burrough v. Philcox, 5 My. & Cr. 73; White's Trust, Johns. 656; Penny v. Turner, 15 Sim. 368, 2 Phil. 493, overruling Jones ». Torin, 6 Sim. 255. {y) 7 Ves. 128; 2 Phil. 495. The power is exclusive, ib. and Re Veale's Trusts, 4 Ch. D. 61, 5 Ch. D. 622. (z) Shand v. Kidd, 19 Beav. 310. (a) King v. Cleaveland, 26 Beav. 26, 4 De G. & J. 477; Re Philp's Will, L. R. 7 Eq. 151; Burton «. Hillyar, L. R. 14 Eq. 160; Wingfield «. Wingtield, 9 Ch. D. 658. But in Lachlan S.Reynolds, 9 Hare, 796, "their" was strictly construed as referring to the "children then living," so that " heirs " must if anything necessarily be deemed a word of limitation, and or be read rarad, which was confirmed by another gift to the children living at another period and their heirs. (b) See per Wood, V.-C, Day v. Day, Kay, 708; Maddison v. Chapman, 3 De G. & J. 536. (c) 1 Ves. 217. This is an analogous case to Grant v. Dyer, 2 Dow, 87, ante, p. 513. The L. C. added, that if R. had survived the wife, but had no issue then living, he would have taken only a life interest, and that by the express words of the gift; so that it seems the Court, in effect, struck out of the clause introducing the bequest over the words " if he should be living at the time of my wife's death." 533 *519 CHANGING WOKDS. his wife for her life: "and after her death, if my son R. shall be living, then to him" for his life, "but if he should be living at the time of the death of my wife, and shall then or hereafter have any issue male of his body, then all the right therein to go to R. ; but Lf R. should die in the life of my wife without leaving issue male," then over : Lord Hardwicke thought it clear on the face of the wiU that the testator did not intend the property to go over unless R. died in the lifetime of the wife without issue male ; and to effect this end he construed " and " as " or" ; so that, although R. died in the Ufetime of the wife, yet, as he left issue male, he took the estate absolutely. So, in Hetherington v. Oakman (d ), where the ultimate bequest after the failure of certain prior interests under the will was to the testator's nephews and nieces and such of them as should be then living, it was impossible, upon any reasonable construction, to read the word " and " otherwise than as " or." So if a testator give a power to be exercised by A. a7id. his heu's and assigns, the words as they stand requiring the heirs to join with the ancestor, would prevent a sale being ever made at all ; for " nemo est hseres viventis : " " and" must therefore be read disjunctively (e). And where a testator made a bequest after a specified period ' ' to such of his grandchildren and their issue as should then stand to him in equal degree of consanguinity, and their heirs as tenants in common," the word " and" was read " or," it being impossible that grandchildren and their issue could be in equal degree of consanguinity to the tes- tator (/). , The change may also be called for] by the circumstance that a literal adherence to the testator's language occasions that one member of his apparently copulative sentence is included in, and, therefore, reduced to silence by, another. On this ground, probably, the construction has pre- vailed in several cases where an ulterior gift was to take effect on the death of the first devisee unmarried and without issue. Thus, in Wilson v. Bayly (g), where a testator devised certain lease- Unmarried ^^^^ lands to trustees, in trust for his son John until his mar- and without rfage, and then to make provision for his wife ; and if issue. j^gjg John should * have any issue, then to assign the prem- ises to him, to enable him to make provision for his children; and if John should happen to have no issue lawfully begotten, in trust for testator's son Mark in like manner ; it being his intention that, if his son should die before he was married, or, if he were married, and should have no issue lawfully begotten, then the lands should be en- joj'ed by Mark; and in case both his sons, Mark and John, should " happen to die unmarried, and neither of them should have any issue lawfully begotten," then over. Mark died unmarried. John married, (d) 2 Y. & C. C. C. 299; see also Haws v. Haws, 1 Ves. 13, 1 Wills. 165; Stubbs ». Sar- gon, 2 Kee. 265; Stapleton v. Stapleton, 2 Sim. N. S. 216; Davidson )i. Rook, 22 Beav. 206. (e) Jones v. Price. 11 Sim. 657 ; see ace. Sugd. Pow. 844, pi. 24, 8th ed. (/) Maynard v. Wright, 26 Beav. 285.] (s) 3 B. P. C.'Toml. 196. 534 CHANGING WOEDS. *520 but had no issue. The devise over was held to have taken effect, the clause being construed in the disjunctive. So, in Hepworth v. Taylor (A) , a bequest over, in case the legatees died unmanied and without issue, was held to take eflFect on the death of one married but without leaving issue. Again, in Maberley v. Strode (i) , where the bequest was in trust for the testator's son A. for life, and after his decease for his children ; but in case he should die unmarried •ararf without issue, or having issue they should all die, if sons, before they attained twenty-one, or, if daughters, before thej' attained twenty-one or were married, then over. A. mar- ried, but died without issue; and Sir R. P. Arden, M- E., held that the gift over took effect. So, in Bell t;. Phyn (i), where a residue was bequeathed equally be- tween the testator's three children, and in case of the death •< without of any of his children (without being married and having ''.™g ""- children), the share of the child so dying to be divided be- ing chil- tween the surviving children — Sir W. Grant, M. R. , on the "^r™." authority of the last case, held, that the word " and" was to be construed or, for as, legally speaking, there could be no children without a marriage, it was almost necessary, in order to give effect to all the words, to con- strue the copulative as disjunctive. [However, the daughter whose share was in question having married and also had a child, it was un- necessary to decide the point. And in Mackenzie v. King (T), where real and personal property was given in trust for A. for life, and after her death for her children ; but in the event of her not intermarrying nor having children, then the same property to be subject to her disposal by wiU or otherwise ; Sir K. Bruce, V.-C, held that "nor" (the component parts of which are " and not") must be read " or not," and .that the fund was at A.'s disposal, in the event either of her remaining single, or marrying and not having a child.] * But. though, by construing the contingency of djing un- *520 married and without issue eopulatively, the latter member of the sentence is rendered inoperative (since the fact of being unmarried includes the not having or leaving issue, which always means lawful issue), 3'et, on the other hand, the disjunctive construction reduces to silence the word " unmarried ; " for if the condition upon which the first taker retains the estate is his marrying and having issue, or, in other words, if the estate is to go over on the non-happening of either of these events, then, as the having issue includes the event of marriage, the result of the two events, placed disjunctively, is precisely the same as if the contingency of having issue stood alone. In these cases, it wiU be observed, the disjunctive construction can never operate to let in the devisee over to the exclusion of the children or issue of the first taker, ih) 1 Cox, 112. («■) 3 Ves. 450. (i) 7 Ves. 450. [(/) 12 Jur. 787, 17 L. J. Ch. 448. 535 *521 CHANGING WOEDS. as in the class of cases before noticed ; which accounts for the seeming anomaly of torturing the words in both instances to produce a contrary effect. [But since Grey v. Pearson (m) the cases last noticed have lost much of their weight as g,uthorities for applying to any given case the rule which would change " and " into " or " in order to prevent one mem- ber of a compound sentence being rendered inoperative. Though it be a canon of construction that effect is if possible to be given to every word used, it is one which must bend to circumstances (n) ; and where the reslilt of changing and into or would be only to render one member of the sentence inoperative instead of the other,~ the change certainly ought not to be made (o). It does not appear to have been made in any case since Grey v. Pearson ; which indeed was treated by Sir J. Eomilly ( jo) as having overruled Bell v. Phyn and Maberley v. Strode, as well as Brownsword v. Edwards. *521 * The decision in Grey v. Pearson is sometimes referred to as if the rule that words are prima facie to be taken in their ordinary and grammatical sense was new, and as if a more strict and GrevB. literal construction was now generally required than had AbbottV"* previously obtained. But the rule is an old one (q). The Middieton. application of it in that particular case was strict, and within its particular scope the decision is of course conclusive : but that no new principle of general application has been introduced by it is shown by the subsequent decision of D. P. in Abbott v. Middieton (r), and bj' other cases noticed above («).] The word unmarried means either never having been married, or, not Whether having a husband or wife at the time. The former is its ried ""means Ordinary signification ; ^ and it was considered as so used . not having in the cases stated above {t) , where, however, the effect of (m) 6 H. L. Ca. 61. (m) Per Lord Cranworth in Clarke v. Colls, 9 H. L. Ca. 612 ; and in Earle v. Barker, 11 H. L. Ca. 280, Lords Cranworth and Chelmsford (agreeing with Romillv, M. R., 33 Beav. 353) preferred (ionstruing an ambiguous clause, forming one member of a copulative sen- tence, in a way that rendered it inoperative, to changing *' and " into '* or." Lord Westbury would have preferred the latter course ; but both led to the same decision. (o) Ke Kirkbride's Trusts, L. E. 2 Eq. 400. (p) In Seccombe v. Edwards, 28 Beav. 440 : and see L. E. 1 Eq. 680.] Maberley v. Strode, and Bell v. Phyn, were much canvassed in Dillon v. Harris, 4 Bligh, N. S. 329 ; where Lord Brougham seemed very reluctant to consider them as general authorities for turning into or the word *'and," occurring in a limitation over, in case of the prior legatee dying unmarried and without leaving lawful issue; he thought Sir W. Grant, in deciding Bell' «. Phyn upon the authority of Maberley v. Strode, did not sufficiently advert to the special circumstances of the latter case. Dillon v. Harris, however, did not raise the point, as the prior bequest was to talie effect upon the legatee marrying with consent, and the bequest over was in case he should so die unmarried and without feavmg lawful issue ; which Lord Brougham thought referred to such a marriage as had been previously referred to, namelj', marriage with con- sent; and as the legatee had married without consent and had left no issue (so that, even according to the disjunctive construction, the bequest over failed), the question did not arise. [(?) See Ch. LI. (r) 7 H. L. Ca. 68, ante, p. 488 ; where Lords Cranworth and Wensleydale were again opposed to Lord St. Leonards, but were not on this occasion in a majority. («) Pp. 493, 494. (0 P. 519. So construed also in Radford v. Willis, L. R. 7 Ch. 7; where the devise was to an unmarried daughter for life, with remainder in fee to " her husband," and a gift over 1 See In Ke Thistlethwayte's Trust, 31 Eng. Law & Eq. 647. 536 CHANGING WORDS. *522 such construction was to render the word inoperative. But *««™ married, the sound rule in such cases would seem to be, to construe married at the expression as used in the latter, being its less accus- "^"^ '™®- tomed sense (h) , which has a twofold advantage, that it removes the necessity of changing the particle ' ' and "to " or," and gives effect to all the testator's words. Thus in Doe d. Everett v. Cooke (x), where the bequest was to B. and his assigns (after the death or marriage of A.) for his "Unmar- life, and after his decease then to the child or children of B. ""'^'j ™°' ' , strued to by any future wife, his, her, or their executors, adminis- mean not trators and assigns ; but the testator declared his will to be band'or wffe upon this further condition, that in case B. should die an at the time. infant unmarried and without issue, then over to C. and his children. B. attained his majority, and died, leaving a widow, but without having had issue ; and it was held, that in these events the gift over failed. Lord Ellenborough said : ' ' The most rational construction we can give this will is, to construe it as Lord Hardwicke did the devise in Fram- lingham v. Brand (y), as one contingency, namely, B.'s dying an infant, attended with two qualifications, viz. his dying * without *522 leaving a wife surviving him, or dying without children. Had he left a wife, and had died an infant, and no children, the testator might have intended that, in such event, the widow should be benefited by taking her share under the Statute of Distribution with the next of kin, or that B. should be able to make a testamentary disposition in her favor ; meaning, also, that if he left children, they should have the estate in preference to the wife ; and that if he left neither wife nor children at his death during his minority, C. and his children should have the estate ; but that if he arrived at the age of twenty-one, he should have a power to dispose of it, though he left neither wife nor children." So, in Doe d. Baldwin v. Eawding (z), where a testator devised his lands to his daughter and any other children he might leave, and to her or their heirs and assigns forever ; but in case his daughter and such other children as aforesaid should die under the age of twenty-one years unmarried and without lawful issue, then to his wife in fee. The daughter died under age. and without issue, but leaving a husband sur- viving ; and it was held, on the authority of the last case, that the devise over failed. [As B. in the former case left a wife and the daughter in the latter case left a husband surviving, neither of them were " un- ..^ married" in awy. sense, and it was therefore unnecessary to ried" ought if she died " unmarried " ; for the remainder which (it was held) vested in the husband on marriage (see above, p. 324), was not to be defeated by the accident of his dying first.] (u) The word " unmarried " is used in this sense in the stat. 3 W. & M. c. 11, s. 7, which provides, that, " if any unmarried person, not having a child or children, shall be lawfully hired," &c. ; as no one, not having been married can have children in the legal sense. (K) 7 East, 269. (;/) 3 Ati. 390. (z) 2 B. & Aid. 441. [See also Ke Sanders' Trusts, L. R. 1 Eq. 675. 637 ;*523 CHANGING -WOEDS. to be con' • decide upon the actual meaning of the word. The former cording to Case shows the opinion of Lord Ellenborough ; but in the the context, latter, Bayley and Holroyd, JJ., seem to have thought that either of the two=i meanings might be ascribed to it according to the context, and Lord Cottenham was of the same opinion (a). Where personal property is limited, in case of the death of a married T • -^ I- X woman in her husband's lifetime, to such persons as would Limitation to , .1,1 , ■ 1 ,,•■.■, . next of kin of have been entitled thereto m case she had died mtestate as^^iirhad ^^*^ unmarried, the word "unmarried" is always held to died"un- . mean, " not having a husband at the time of -her death" (6). marne ." ,j,^ ascribe to the word its other meaning would plainly exclude the children of the marriage ; and shght circumstances, such as an express provision made for the children in another part of *523 the * will, either out of the same (c) , or a different (d) fund will not control the rule. And this construction has been even extended to cases where the phrase used was "die without having been married " (e) . And, the mere circumstance that the woman is unmarried at the date of the will does not supply a reason for putting a different con- struction on the word, since when it occurs with such a context it is clear that her marriage at some future time is contemplated (/) . On &ift to per- the other hand, where a legacy is given to a person who at ried'at'd'are' ^^^ ^^*^ ^^ *^^ ^^^ ^^^ never been married, and the gift is of will on made conditional on the legatee being "unmarried," it may S.er being " '^^^^ ^^ ^^^^ ^^^ testator intends the legacy to be conditional unmarried, on the continuance of the legatee in the same status. And if the purpose of the legacy be to provide the testator's unmarried daughter with an outfit, and he speaks of her (though in a different part of the will) as " still unmarried," the intention is put beyond a doubt (g) . I The term "unmarried" is a designaiio personts ; and, if once a person is entitled to participate, in a fund by filling the character of an unmar- ried person, he will not lose that right if he subsequently marries (A). (o) Maagham v. Vincent, 9 L. J. N. S. Ch. 329, 4 Jur. 462. • (i) Maugham v. Vincent, supra; see also Hoare v. Barnes, 3 B. C. C. 317, ed. by Eden, a. (a);. Hardwick e. Thurston, 4 Russ. 380; Pratt v. Mathew, 22 Beav. 328, 8 D. M. & G. 522; Re Gratton's Trusts, 3 Jur. N. S. 684, 26 L. J. Ch. 648; Re Saunders' Trust, 3 K. & J. 152. In the last case the words occurred in a settlement on a first marriage and were made to include the event of .the wife surviving the husband. She survived him, married again, and died before her second husband. The children of the second marriage were held entitled. (c) Coventry ». Earl of Lauderdale, 10 Jur. 793 ; Pratt v. Mathew, supra; Clarke v. Colls, 9 H. L. Ca. 601, affirming Mitchell v. Colls, 9 .Johns. 674. Where the provision for children is m all events absolute, the question' dannot arise ; for they take under the express gift to them. (rf) Re Norman's Trust, 3 D. M. & G. 965. • (e) Wilson v. Atkinson, 4 D. J. & S. 455; Re Ball's Trust, 11 Ch. D. 270. (/) Day V. Barnard, 1 Dr. & Sm. 351. It is to be observed that all the cases on tliis point, except this and Re Gratton's Trusts, have arisen on marriage settlements. . (jf) Re 'Thistlethwayte's Trust, 24 L. J. Ch. 713; and seeHevwood «. Hey wood, 29 Bea'v. 9. (A) Jubber D. Jubber, 9 Sim. 503; see NiMock ». Garratt, ante, p. 324; Hall ii. Eobertson, 4 D. M. & G. 781. 638 CHANGING WOEDS. ^ *524 It has already been observed that In the majority of cases where "and" has been construed disjunctively, it has been in "And" not order to favor the vesting of a legacy, and not in order to fnstrued ^ ° "^ or where defeat a previously vested gift ; and generally it will not be a previous so construed where the latter consequence would follow ; |e tiiereby as, where the bequest is to A. for life, remainder to his divested. eldest son (or to his children) , with a gift over if A. should die under twentj'-one and without issue (or under twentj^-one and without chil- dren («')). Again, in Day v. Day (^), where a testator bequeathed the interest of his residuary personal estate to his wife for life, and after her * death to his brother for life, and after the death of *524 the survivor, the capital to A., subject to the paj'ment of 1,000?. each to B., C. and D., which the testator gave to them to be paid to each of them at the end of twelve months next after the decease of the survivor of his wife and brother ; provided, that if either of the said B., C. and D. should die " in the lifetime of my said wife and my said brother," his legacy should lapse. Sir "W. P. Wood, V.-C, refused to read " and" as " or," and thereby cause a lapse of B.'s legacy, who had survived the wife but died before the brother (Z) . And this is independent of Grey o. Pearson. J (i) Malcolm v. Malcolm, 21 Beav. 225; Key v. Key, 1 Jur. N. S. 372. See also Coates v. Hart, 32 Beav. 349, 3 D. J. & S. 504, 516. (4) Kay, 703. See also Re Kirkbride's Trusts, L. E. 2 Eq. 401; Eeed v. Braithwaite, L. E. 11 Eq. 514; W— ». B — , 11 Beav. 621. (/) It was held that "die in the lifetime of mv said wife and mj'said brother" meant "die in their joi»« lifetime : " and Brudnell'p case, 5 Co. 9, was cited.] 530 *526 ESTATES ARISING BY IMPLICATION. *525 * CHAPTER XVII. ESTATES ARISING BY IMPLICATION (a). I. Effect of Recitals. II. Implication from Devises and Bequests on Death of a person simply. III. — on Death combined with some Contingency, and under other varieties of Context. IV. As to implying Trust from Devise of Legal Estate. V. Implication from Powers of Selection and Distribution. VI. Implication of Estates Tail. VII. Implication of Gifts to Children. I. Sometimes a testator shows by the recitals in his will, that he Eecitals, erroneously supposes a title to subsist in a third person to Create a'n*^''' Property which, in fact, belongs to himself. Such recitals actual gift. do not in general amount to a devise ; for, as the testator evidently conceives that the person referred to possesses a title inde- pendently of any act of his own, he does not intend to make an actual disposition in favor of such person ; and though it may be probable, or even apparent, that the testator is influenced in the disposition of his property by this mistake, yet there is no necessarj^ implication that, in the event of the failure of the supposed title, he would give to the person that benefit to which it is assumed he is entitled. Thus, where (6) a testator bequeathed unto A., his wife, 600?., to be paid to W., saying it was for payment of lands lately purchased of W., and was already estated as part of a jointure to A. his wife during her life, being of the value of 67?. per annum; that of Wiskow, York, and Mal- ton, the lands there amounting to the yearly value of 63?., in all 130?., which, being also estated upon A. his wife, was in full of her jointure. It appeared that these lands had not been settled on the wife. And it was held by PoUexfen, C. J., Rokeby, and Ventris (Powell, J., dis- sentiente), that these expressions did not amount to a devise to the wife, for it appeared "that the testator did not intend to devise her any- thing by the will, for he mentions that she was estated in it *526 * before." Powell, J., relied upon a case(c) in which " I have made a lease to J. S., at 10s. rent," was held to be a good Ua) Nothing contrarj' to law can be implied, per Turner, L. J., 26 L. J. Bank. 83.] (b) Wright V. Wyvell, 2 Vent. 56. (c) Moore, 31. 540 ESTATES AEISING BY IMPLICATIOK — EECITALS. *527 devise ; but the other judges considered the ease to be of little authority. So, where (tf) J. S., tenant for life, with remainder to his wife for life, remainder to his own right heirs, expressed himself in his will as follows: "i?e?», my land atW. my wife Mary is to enjoy for her life, and after her death it of right goes to my daughter E. forever, pro- vided she has heirs." The court held that the first clause was not a devise to the wife, for the lands were settled upon her for life ; and What was said as to the daughter was only a declaration of the devisor what the condition of the estate was, and how she was to enjoy it ; and he could not say of right who was to enjoy them, if she claimed under the will. Again, where (e) B., by his will, reciting that he was entitled for life, under the will of A., to the advowson of the rectory of D., with remainders over, " subject to a direction in the said will, that my brother J. D. shall be presented to said rectory when it shall next be- come vacant, which it is my wish may be complied with ; now, I hereby declare it to be my desire and earnest wish, that in case upon the vacancj' of the said living the said J. D. shall not be then living, or in case the said rectory shall again become vacant after the said J. D. • shall have been presented to and accepted said presentation, then " A. P. was to be presented. The fact was, that, under the will of A., J. D. was only entitled to the presentation on a certain contingency which had not happened. The question then arose, whether the ex- pressions in the will of B. raised a gift in him by implication, so as to put the persons actually entitled under the will of A., who took benefits under the will of B., to their election. Lord Eildon decided in the negative, observing that he found no authority for holding mere recital, without more, to amount to gift, or demonstration of intention to give. [And in Adams v. Adams (/) , a devise and be- Adams v. quest to trustees * of real and personal estate, *527 -A^dams. subject to the dower and thirds at common law of the testator's wife in and out of his real estates (the testator's interest therein being an equity of redemption and not liable to dower), upon trust to receive the income, and pay the same or the overplus thereof after deducting the dower or thirds of his said wife for the maintenance of his children, was held not to give the wife by implication a rent-charge equal to what dower out of the whole estate would have amounted to.] ((Z) ■VViisht alias Eight v. Hammond, 1 Stra. 427, 1 Com. Rep. 231, 8 Vin. Abr. 110, Devise, L. 2, pi. 32, 2 tq. Ab. 338, pi. H. (e) Dashwood e. Peyton, 18 Ves. 27; and see Doe d. Vessey v. Willsinson, 2 T. R. 209, stated Ch. XXV. s. 3; [Lane v. "Wilkins, 10 East, 241, ante, p. 201. See also Smith v. Mait- land, 1 Ves. Jr. 362; I^ngslow ». Langslow, 21 Beav. 552; Circuitt ». Perry, 23 Beav. 616; Box V. Barrett, L. E. 3 Eq. 244.] But see also Poulson v. Wellington, 2 P. W. 5-33; Wilson V. Piggott, 2 Ves. Jr. 351; bo'th which, however, arose on dispositions by deed. [{/) IHare, 537; see also Doolan v. Smith, 3 J. & Lat. 547; Ralph v. Watson, 9 L. J. Chi 328 ; and cf . West v. Cnllitord, 3 Hare, 265, where the words were more properly words of original charge than of recital. 641 *528 ESTATES AEISING BY IMPLICATION — RECITALS, f It seems, however, that if a testator unequivocally refer to a disposi- Eeference by ^^°^ ^^ made in that his will, which, in fact, he has not made, testator to a the intention to make such a disposition, at all events, will nS^n that ^^ considered as sufficiently indicated. [In such cases, " the his will. court has taken the recital as conclusive evidence of an in- tention to give by the will, and, fastening upon it, has given to the erroneous recital the effect of an actual gift," differing, in this respect, from the cases in which " the testator says that onty which amounts to a declaration that he supposes that a party who is referred to has an interest independent of the will, and in which the recital is no evidence of an intention to give by the will, and cannot be treated as a gift by implication" {g)-2 Thus, where {h) a testator bequeathed one moiety of certain leasehold estates to E. ; and if she should die before twenty-one, to G-. ; and if he should die before a certain event, to another person ; and after her death to A. ; and provided that in case A. should die without issue, and E. or G. should be then living, or either of them, the said moiety of his leasehold messuages, before given to the said A., should go to E. and G. Sir T. Sewell, M. R., thought it quite clear that the second devise ■ related to the other moiety not before devised, as the manner in which it was given was inconsistent with the disposition of the first moiety, which A. was not to take until after the death of E. and G. He further held, that the court would implj' a gift of the second moiety to A. and her issue ([the issue taking, since there was no gift over except on the death of A. without issue]), with contingent limitations over. There could, he said, be no doubt of the intention, and the words of gift being omitted by mistake, the court would supply them. *528 * [" Impheation," said Lord Westbury in Parker v. Tootal (i), " may either arise from an elliptical form of expression, which Assumption involves and implies something else as contemplated by the by testator person using the expression, or the implication may be contains a' founded upon the form of gift, or upon a direction to do devise. something which cannot be carried into effect without of necessity involving something else in order to give effect to that direc- tion, or something else which is a consequence necessarily resulting from that direction!" The case in which this was said affords an ex- ample of the former kind of implication, a devise " to the first son of T. severally and successively in tail male " being read as a devise " to the first and every other son ; " otherwise the phrase " severallj' and successively " would have been without meaning. (o) Per Wigram, V.-C, Artams v. Adams, 1 Hare, 540 ; and per Lord Brougham, Tates B. Thomson, 3 CI. & Fin. 672. The difference appears to have been, overlooked in Hall i'. Lietch, L. R. 9 Eq. 376. A direction to pay debts, including one described as owing by the testator but overstating its amount, will generally belong to the latter category mentioned in the text, and not entitle the creditor to the larger amount. Wilson v. Morley, 6 Ch. D. ,776.1 (/i) Bibin ». Walker, Amb. 661. [As to Frederick ». Hall, 1 Vas. Jr. 396, ou. (0 11 II. L. Ca. 143, 161. 542 ESTATES ARISING BY IMPLICATION — EECITALS. *529 Implication of the latter kind described by Lord Westbury is seen when from a direction that certain persons shall deal with the rents of an estate in a particular manner, a devise of the estate to those persons has been implied (k) ; or when from a direction to invest real and per- sonal estate is implied a trust to sell the real estate (l). But a gift which is confined by unambiguous terms to a specific part of a testator's propertj-, as a bequest of " all his capital in ready money and bank billets," wiU not be extended so as to include the entire per- sonalty by a mere introductory clause declaring the testator's intention to dispose of all his property. It would be different if the testator him- self referred to the bequest as including all his property (m) . Again, in Jordan v. Forteseue (n), under a gift by codicil of " 500L, in addition to 1,500^. before bequeathed" to the same per- Jordan ». son, there having, in fact, been only two legacies of 600^. Forteseue. each bequeathed to him by will and first codicil, it was held that there was a gift by implication of 2,000Z. But it must be remembered, that though words such as those used ia the last case may by implication effect an increase in the amount of the first gift, yet the rule that a clear gift is not to be cut down by subsequent words of doubtful import prevents them from having * any operation where their *529 eflfect would be by implication to diminish the first gift (o) . And where a testator expresses an intention to make up a person's existing fortune, derived either under his own will or from intention to other sources, to a certain sum, and for that purpose gives g'/^ what a legacy which proves to be insufHcient, the legatee shall, rceiSL^ " nevertheless, have the sum specified and intended for him. '"™- Thus, in Ouseley v. Anstruther (p), where a testator, reciting that under a settlement his wife would have an income of 1,560Z., directed his trustees to add an annuity of 440/., so as to raise his wife's jointure to 2,000Z. ; the income under the settlement being less than was sup- posed, the wife was, nevertheless, held entitled to have it made up to 2,000Z. In the converse case of the income being more than the testa- tor supposed, the wife would have been entitled only to the 2,000/. (9). And in Ives v. Dodgson (r) , a testatrix, upon a contingency which (as she showed by her will) she expected not to be (and which was not) ascertained until after her own death, bequeathed a life-annuity of (h) See Ex parte Wynch, 5 D. M. G. 221, and cases there cited. See also Newburgh v. Newburgh, Sug Law of Prop. 367 : a devise of the estates in the omitted county (see aliove, p. 412) was implied from the name and arms clause, the leasing power, and other parts of the context. And see Langston v. Langston, 2 CI. & Fin. 194, and other cases, ante, p. 491 et seq. (I) AfHeck V. James, 17 Sim. 121. (m) Wylie v. Wylie, 1 D. F. & J. 410. See also cases cited Ch. XXXIII. s. 4, showing the inefficacy of the word " estate," occurring in the introductory clause of a will to pass the fee-simple. (re) 10 Beav. 259 ; see also Hayes d. Foorde v. Foorde, 2 W. Bl. 698 ; Edmunds v. Waugh, 4 Drew. 275; Farrer v. St. Catharine's College, L. R. 16 Eq. 24. (o) Mann v. Fuller, Kay, 624; Gordon v. Hoffman, 7 Sim. 29, ante, p. 181. (p) 10 Beav. 459. Compare Thompson v. Whitelock, 5 Jur. N. S. 991. (q) Milner i). Milner, 1 Ves. 106; Trevor v. Trevor, 5 Buss. 24. (r) L. R. 9 Eq. 401.] 543 *530 ESTATES AEISING BY IMPLICATION — EECITALS. iOl. to A. ; she then bequeathed to A. 30Z. free of duty, and afterwards bj' codicil said : "I increase the immediate annuity of 30^ left by my will to A. to an annuity of 50/. duty free." It was held by Sir W. James, V.-C, that the plain meaning of the words of the codicil was that A. was to have an annuity of 50Z. in addition to the contingent annuity of Ml. In these cases, it will be noticed, there were words of gift as well as of recital.] And even where the testator has evidently mistaken the law respect- ing the devolution of his property, yet, if he has bj"- his will shown very clearl}' an intention that it shall devolve according to such mistaken notion, the intention will prevail. An early case («) presents a very nice question of this nature. A testator having issue by C. three daughters, S., A. and E., devised Eeference to to C. for life all his freehold wherever, until S. his heir came he^r heia'to *° twenty- One, paying to the heir 10s. during the term, and to create a de- the rest, after fifteen years old, 20s. apiece, and the heir cat?o/t™hat ^o pay to A. and E. 100/. apiece, 40Z. at the decease of person. the wife, &c. ; and if S. his heir died without heir before twenty-one, so that the lands descended and fell to A., then A. *530 to pay to E., &c. * It was argued that S. took nothing under the will by implication, there being no express devise to her. But, on the other side, it was contended that S. was sole heir; for it was all one to devise to her as to make a stranger heir of his land ; and here the daughter S. was not sole heir unless made so by the intent of the will, which six times called the eldest daughter his heir ; otherwise A., the younger daughter, would have equal share in the land and also the legacies. Hale, C. J. — " The testator was mistaken in his intent that the eldest daughter was his heir, but intended his lands should go according to that mistake : also she that is called heir is to pay the por- tions to the younger daughters, and no provision is made for her. Therefore, albeit there is no express devise to S., yet, she being named his heir, this is sufficient to exclude the rest, and to make her sole heir"(/!). But the disposition of a will will not be disturbed by an erroneous recital of its contents in a codicil, unless a design to revoke or modify the disposition in the will can be fairlj' collected from the whole instru- ment. Thus, where (u) a testator, after bequeathing certain legacies to his Erroneous wife, devised to her for her life certain leasehold premises at reference in Northwood, and he gave his leasehold estate at Wrentnall, disposition of ^^^ his estate at Northwood, after his wife's death, and the the will. residue of his estate, to other persons. In a codicil, exe- (s) Tilley v. Collyer, 3 Keb. 589. (0 See Taylor ». Webb, Stv. 3.31, ante, p. 357, n. ; [Parker v. Nickson, 1 P. J. & S. 177. Compare Jackson ». Craig, 15'Jur. 811.] («) Skerratt v. Oaklev, 7 T. R. 492. 544 ESTATES ARISING BY IMPLICATION — RECITALS. *531 cuted on the same day, he directed that the bequest to his wife in his will should be in full of all her claims on his estate, except the estate for life of his " wife and her assigns, in the premises at Wrentnall, any thing in the foregoing will to the contrary notwithstanding." It was contended, that the widow was entitled to the Wrentnall estate, under her husband's codicil, it being manifest by the concluding clause that he intended to give her something to which she had no right by the will; but the court decided against the widow's claim. Lord Kenyon said, that the intention must be collected from the will and codicil taken together,' and it was impossible not to see that the word " Wrentnall" was written in the codicil instead of the word " North wood." [So in Vaughan v. Foakes (x), where a testatrix bequeathed *the residue of her estate to A., and by a codicil, reciting that *531 gift, and that A. might die before her, she in that case appointed B. and C. her residuary legatees ; and afterwards the testatrix made a second codicil to "her former one," as follows: "As the death of Mrs. W. (the mother of B. and C.) has taken place, and as her two children will ultimately become my residuary legatees, the Ibl. she was to have I give to D." It was held by Lord Langdale, M. E., that the first codicil was not disturbed by the second. " There is a misrecital," he said, " of what she had previously given : she recites that as an ab- solute which is only a contingent gift ; if the word may had been used, instead of will, the recital would have been in exact conformity with the prior gift." But this principle of construction is not confined to the case of a will and codicil ; it has also been applied to a misrecital oc- Misrecital of curring in the same instrument as the disposition sought to thFsame'ia-" be disturbed. Thus, in Smith v. Fitzgerald (y) , where a strument. testator bequeathed several legacies to be paid out of the debt owing to him from the Nabob of A., and if any of the legatees died before him he gave their legacies to S., and " after all the legacies are paid (except those mentioned from the Nabob's debt, as they may require time) all such balance as shall remain overplus (exclusive of the Nabob's, willed to S.) to be equally divided among the trustees," it was held by Sir W. Grant, M. R. , that the residue of the debt not exhausted by the lega- cies was not given to S. by implication. He said : " The language refers to something as alreadj' done, something that he had given or supposed he had given to (S.). If in the preceding part there was nothing that could in anj' way answer the description of what he here says he had willed to (S.), there would then be room for the application of the doc- trine, that a declaration by a testator that he had given something is l(x) 1 Kee. 5S; see also Bamfield v. Popham, 1 P. W. 54, 2d point; Re Smith, 2 J. & H. 594; Re Arnold's Estate, 33 Beav. 163; Richardson v. Power, 19 C. B., N. S. 780 (on same will) ; Mackenzie v. Bradbury, 35 Beav. 617. (y) 3 V. & B. 2 ; see also Phillips v. Chamberlaine, 4 Ves. 51. 1 Westcott V. Cady, 5 Johns. Ch/ 343. VOL. I. 35 545 *532 ESTATES ARISING BY IMPLICATION. sufficient evidence of an intention to give it, and amounts to'a gift ; but the question here is, whether he did not mean to describe, however in- accurately, that which he had before actually given. Without denying that the recital of a gift as antecedently made may amount to a gift, tlie court ought to see very clearly that there is nothing in the will to which the recital can refer, before it is turned into a distinct bequest." Ambiguity Where, however, the terms of the prior disposition in will con- *532 are * themselves ambiguous, their construction may citai^i cod^' properly be guided by a recital couched in more pre- "'■ else language in a codicil. Thus, in Darley v. Martin (a) , where a testator bequeathed leaseholds to A. for life, and after her death to her issue, and " in default of such issue," to B. ; and, by a codicil, recited that he had bequeathed the leaseholds to B. after the death of A. and " in default of her leaving lawful issue ; " it was held, that the gift over in the will being capable of importing a bequest over if no issue were living at the death, it ought to be inferred that the tes- tator employed it in that sense, because in the codicil he referred to it as if it were a gift over in default of A.'s leaving issue.] II. It is a well-known maxim, that an heir at law can only be disin- herited bv express devise or necessary implication,^ and that implication, implication has been defined to be such a strong probability what. j^jjg^^ g^jj intention to the contrary cannot be supposed {h).^ 1. As to real In the application of this principle one chief topic of contro- estate. versv has been, how far a devise to any person, in the event (a) 13 C. B. 683; see also per Lord Brougham, 10 CI. & Fin. 17; Grover v. Eaper, 5W. R. 134. (4) 1 V. & B. 4G6; "necessary implication is that which leaves no room to doubt," per Lord Manslield, in Jones i>. Morgan, Fearne, C. R. App. No. III.; and see 3 Ves. 113. J 1 See Hayden v. Stoughton, 5 Pick. 528, of express devise, aiid in opposition to a de- 636; Ker u'. Wauchope, 1 Bligh, 25, 26; vise it can never be raised." " But if," says Schauber*. Jackson, 2 Wend. 13; Van Kleeck Walworth, Ch.. in Rathbone ». Dyckman, t'. Ref . Dutch Cliurch, 6 Paige, 600 ; Jackson 3 Paige, 27, "the particular devise or request V. Scluuiber, 7 Cow. 187; Bender v^ Die- cannot be reasonably accounted for except trick, 7 Watts & S. 284. The intention to upon the supposition that the testator intended disinherit the heir is always necessary to raise to make the corresponding disposition of an estate by implication. Roosevelt ». Ful- other parts of his property, or of previous ton, 7 Cowen, 71; Jackson t'. Schauber, 7 estates therein, the court will carry into ef- Cow. 187. feet the intention of the testator by 'implying 2 Howard v. American Peace Soc, 49 Me. such corresponding disposition." " Thus, it is 288; Thomas i'. Thomas, 6 T. R. 671; Roose- well settled, that when there are trusts to be velt «. Fulton, 7 Cowen, 71 ; Jackson v, executed, which require for their effectual Schauber, 7 Wend. 187 ; S. C. 2 Wend. 13 ; execution an estate in fee, such an estate will Van Kleeck v. Reformed Dutch Church, be implied. Gates v. Cooke, 3 Burr. 1686; 6 Paige, 60(t; Bender i). Dietrick, 7 Watts & Deering v. Adams, 37 Me. 264. 273, 274. So, S. 784; Putnam, J., in Hayden v. Stoughton, too, implication niav be resorted to even in B Pick. 528, 536; Chinn c. Respass, 1 T. B. eases of an express devise if the nature of the Mon. 25; Wilde, J., in Grant v. Hapgood, estate devised be not stated. Thus, in the 13 Pick. 159, 164. When there is an express ease of a gift of an estate to A., another to B., devise there is no room, generally speaking, A. takes by implication a life-estate. Sisson forresorting to implicatinn. It is only when b. Seabury, 1 Sumn. 2-35 ; Hill ». Thomas, words of devise are wanting, that this neces- 11 S. Car. 346, 359. But it is said that this sitv arises. " Before an implication is raised," rule is not to be applied to gifts of person- observes Sir W. Grant in Patton i;. Randall, alty. White «. Green, 1 Ired. Eq. 45. 1 Jao. & W. 196, " there must be an absence 546 DEVISE TO ONE AFTER THE DEATH OP ANOTHER. *533 of the non-existence or on the decease of another, indicates an inten- tion to malte the last-named person a prior object of the testator's bounty. In such cases it is probable that the person, whose non-exist- ence is made the contingency on which the devise over is to fall into possession, is placed in this position for the purpose of taking the prop- ertj' in the first instance ; and this probability is, of course, greatly strengthened, if the devisee is the person on whom the law, in the ab- sence of disposition, would cast the property. Hence it has become a settled distinction, that a devise to the testator's heir after the death of A., will confer on A. an estate for life by implication ; but that, under a devise to B., a stranger^ after the death of A., no estate will arise to A. by implication (c) . This is an exact illustration of the difference between necessary implication and conjecture.^ In the former case, the inference that the testator intends to give an estate for life to A. is irre- sistible, as he cannot, without the grossest absurdity, be supposed to mean to devise real estate to his heir at the death of Devise to the A., and yet that the *heir should have it in the *533 heir after the meantime, which would be to render the devise nuga- ^jyes A. an tory. On the Ncontrarj-, where the devisee is not the heir, ■ estate by im- however plausible may be the conjecture, that-bj^ fixing the death of A. as the period when the devise to B. was to take effect in possession, the testator intended A. to be the prior tenant for life, yet it is possible to suppose that, intending the land to go to the heir dur- ing the life of A., he left it for that period undisposed of. In some cases, indeed, we find it laid down without any qualification, that a devise to B. upon the death of A., raises an implied estate in A. ; but such dicta, even if accurately reported (which is often doubtful), cannot weigh against the current of authorities, grounded on acknowledged principles of law (d). Of course, it is not essential to the doctrine that the will should describe the devisee as the heir apparent or heir presump- Devisee need tive of the testator. Thus, a devise "to my eldest son B. "c'ribed'^as' after the death of A. ," would raise an implied estate for life heir. . (c) Year Book, 13 Hen. 7, fol. 17; Bro. Ab. Dev. pi. 52; 8 Vin. 214, pi. 6; 2 Freem. 270; T. Jon. 98; Vaucrh. 263; 1 Eq. Ab. 197, pi. 6; 1 Vern. 22; 2 Vern. 672; 6 Ves. 804; 18 Ves. 40; 1 Mer. 414; 'l S. & St. 544; 5 B. & AM. 722; 9 B. & Cr. 218; but see contra, 1 P . W. 472; 2 Eq. .ib. 343, pi. 5, 363, pi. 14, which seems inconsistent with, and is overborne by, the mass of authorities. The point, indeed, was not definitively disposed of. (d) Ex parte Rogers, 2 Mad. 455 ; see also Den d. Franklin v. Trout, 15 East, 398, where, however, the person in whose favor it was said the implied gift would have been raised, was himself heir, and the point, therefore, could not have arisen. 1 Devises b}' implication are sustainable 159, 164; Person ». Dodge, 23 Pick. 293, 294; only upon the principle of carrying into ef- Deering v. Adams, 37 Me. 264. An implica- fect the intention of the testator; and unless tion may be rebutted by acontrarv implica- it appears upon an examination of the whole tion equally strong, Rathbone «. "Dyckman, will, that such must have been his intention, 3 Paige, 9. But courts are not permitted to there is no devise by implication. Rathbone give an eifect to the will of a testator con- V. Dyckman, 3 Paige, 9; Browne v. De Laet, trary to the plain and obvious import of the 4 Bro. C. C. 534, 535, and Mr. Eden's note terms used by him, upon a mere conjecture (n); Lvtton v. Lytton, lb. (Perkins's ed.) as to his intention. Manigault v. Deas, 460, 46i, notes; Grout v. Hapgood, 13 Pick. Bail. Eq. 298. 547 *534 ESTATES ARISING BY IMPLICATION. ia A., the fact being that B. is the heir apparent, though not designated as such. The authorities do not distinctly inform us, however, whether, in order to raise the implication, the devise must be to the person who, according to the state of events at the making of the will, would be the testator's heir, or the person who eventually becomes such. The former seems to be the preferable doctrine ; for to> treat it as applying to the eventual heir, would be to construe the, will according to subsequent events, in opposition to a fundamental principle of construction. If, Whether dev- therefore, a testator having two sons, A. and B., devise real heir^aule^ estate to B. (the younger son) after the decease of his (the death. testator's) wife, this would not, it is conceived, give to the wife an estate for life by implication, though it should happen that, by the decease of A., the elder son, without issue in the testator's life- time, the younger son (i. e. the devisee) had become his heir. On the other hand, if a testator, whose issue was an only daughter, devised real estate to such daughter after the death of his wife, and it happened that he had a son afterwards born, who survived him, the sound con- clusion would seem to be, that the wife would take an implied estate for life, though the ulterior devisee was not in event the testator's heir; the result, in short, being that the implication occurs wherever the express devise is to the person who is the testator's heir appar- *534 ent or presumptive at the * date of the will, and not other- wise (e). Perhaps, when the distinction between a devise to the heir and to a stranger was originally established, the difflculty attend- ing the application of the doctrine to an heir or heiress presumptive, who is liable to be^ superseded by the birth of a son of the testator, was not sufficiently considered. It has been said that the implication arises in the case of a devise as Tooneof sev- well to One of several coheirs, as to a sole heir ; and, there- erai coheirs, fg^g^ ^j-^g^^ where a man devises to one of his two daughters (his coheiresses) , after the. death of his wife, she (the wife) takes an estate for life by implication (/). This, it must be admitted, is a con- siderable extension of the doctrine, and carries it beyond the principle on which it is founded, since there seems to be not the same absurdity in supposing a testator to give to one of his coheiresses after the death of another person, intending it to descend to all in the meantime, as where the devisee is the same and the only individual upon whom the interme- diate interest would have descended. The point, too, rests rather on dictum than decision, for the case in which Lord Cowper advanced this position was decided upon another point, and it is not to be found in the contemporary reports of the same case ; but it was referred to arguendo as a settled rule of law in another case (g) . In cases, too, which are the converse of the last, viz., where there is [(e) See ace. per Cur. Ralph v. Carrick, infra.] (f) Hutton V. Simpson, 2 Vern. 723; S. C. nom. Simpson v. Hornby, Gilb. Eq. Rep. 115. (g) Willis V. Lucas, 1 P. W. 472. 548 DEVISE TO ONE AFTER THE DEATH OP ANOTHER. *535 a devise to the heir and other persons after the decease of Devise to heir A.,' the implication would seem, looking at the reason and after the principle of the doctrine, not to arise (as there is no incon- 'i^""' "^ •*■■ gruity in the supposition that the testator intended the heir to take a share at the period in question, and the entirety in the meantime) . [Accordingl}' in Ealph v. Carrick (/*) , where a testator gave Ralph ». all his real and personal property, in trust to be converted Carrick. and out of the proceeds to pay debts and legacies, and in the event (which happened) of his death without lawful issue, and after the death of his wife and payment of debts and legacies, the whole residue of his property real and personal to be divided in specified proportions among the children of his late aunts (naming them), the descendants of any child then dead taking the share of its deceased parent; and he di- rected the surplus proceeds of his real estate to be invested to provide for the jointure payable to his wife under their marriage settle- ment. It was held that, although * the testator's coheirs and *535 next of kin (i) were included among the children of his aunts, the wife did not take a life-estate by implication. Sir C. Hall, V.-C, relied on the circumstance of the gift being to an unascertained class, and also on the clause expressly providing for paj'ment of the wife's jointure out of the very fund in which she claimed a life-estate, as repelling the implication. But the L. JJ. proceeded entirely on the general principle that a devise to the heir and another after the death of A. will not raise a life-estate bj^ implication in A. : for as heir he takes the whole, while as devisee he takes a share only. The same principle must, it should seem, govern the case of a devise after the death of A. to one of several coheirs. Sir H. Cotton pointed out the fallacy of a proposition urged at the bar in this case, and which sometimes of late has been heard Theory of even from the bench — that, subject to the established rules, by""'™|j'na"v the duty of the court was to construe the will as a person intelligence." of ordinary intelligence would do, and that no such pe.rson would doubt that in this case the testator intended the widow to have a life-estate. " Of course," said the L. J., " we are bound by the rules which have been established by the courts to enable us to say what the words used do mean. Subject to that we are bound to construe the will as trained legal minds.- And that differs from the mind of an ordinary person in this way, that even persons of ordinary intelligence not so trained are accustomed <.o jump at the conclusion as to what a person means by the words he uses by fancying he must have done what they under similar circumstances think they would have done. That is conjecture only : and conjecture on an imperfect knowledge of the circumstances : [(A) 5 Ch. D. 981, 40 L. T. N. S. 505. (t) But on this question the widow must be reckoned among the next of kin.] 1 See Dashwood v. Peyton, 18 Ves. (Sumner's ed. 27, 49,) Mr. Hovenden's note (4); 4 Kent, 541, and note. 549 *536 ESTATES ARISING BY IMPLICATION. because although, if the facts before them and in evidence were all the facts, they may think that they would have taken a particular course, yet it does not follow that all the facts known to the testator are in their minds or in evidence before them, or that the testator's mind was in any way constituted as regards the attention he paid to the rights and claims of the different parties dependent on him, as their minds are constituted, or that he would have acted in the same way as thej'. Therefore as lawyers we must construe the will like any other docu- ment," with one difference only, namely, that technical words are un- necessary in a will. In the previous] case of Blackwell v. Bull (^), where a testator *536 * devised in the following words : " In the first place, my will and wish is, that my business of a cheesemonger be carried on by my wife and my son jointly, for the mutual benefit of m3- family ; and I likewise will and devise in trust all my property, for the following purpose, that is to say, that, at my wife's decease, the whole of my prop- erty, of whatever nature or description, as well freehold as personal, shall be equally divided amongst my children, J., E., W., M., and C, their executors or assigns." One of these children was the heir-at-law. Lord Langdale, M. R., [without adverting to this fact, said, "As to the property not engaged in the trade] , though the case as regards the real estate is not without difHcult3-, yet on the whole will, and what appears to me the evident intention, I think the widow is entitled to a life-interest in botli the real and personal estate." [It seems, therefore, that the M. R. did not intend to decide the general question ; upon which, at all events since Ralph v. Carrick, it cannot be deemed an authority. Referring to this and other cases Sir C. Hall, V.-C, said that in several of them the interest of " the widow was more or less connected with the carrying on of a business and supporting a family, which seemed to have been a sort of indication as to how the property was to be enjoyed during her life " (/).] Where, however, there is an anterior express devise for life of part Distinction of the lands to the person on whose decease the devise in isa"'expr?ss question is to take effect,, the implication has been some- anteiior de- times avoided, by having recourse to what may, for conven- the person on ience of distinction, be called the distributive construction, whose death jjy -vyhidi the words after the death are applied exclusively taiie effect, to the lands devised expresslj' for life ; and the words of devise, without these expressions of postponement, are applied to the rest of the property, which, therefore, passes immediateh' to the devisees : a construction which, doubtless, was adopted in the first (h) 1 Kee. 176. 1(1) 5 Ch. D. 995. The V.-C. gave a verj' similar explanation of Cockshott e. Cockshott, 2 Coll. 432, where the widow was held to take a life-estate by implication in estates upon which in a certain event a life-annuity in her favor was expressly charpred bv the will : and this, by virtue of a clause postponing " possession " by express devise* until the wife'sdeath. But as to a similar clause added by codicil, see Barnet v. Barnet, 29 Beav. 239.] 550 DEVISE TO ONE AFTEE THE DEATH OF AISTOTHEE. *537 instance on account of the improbability that a testator should intend a person, to whom he had expressly' given part, to take the rest by implication. But the rule seems not to have been restricted (as this reasoning would implj') to cases in which the devise over is to the heir, but has obtained where such devise was to a stranger, and in which, as the estate would, if the devise were postponed, * de- *537 volve to the heir in the meantime, and not belong to the devisee for life by implication, there would seem to be no reason for denj'ing to the words of postponement their full effect, in regard to all the s,ubjects of devise. Thus, in Cook v. Gerrard (m), where the testator Sir li. Kempe, be- ing seised of demesne lands in fee, and also of the reversion Cook». of other lands expectant on the death of A. , directed that Geiiard. his wife should have the demesne lands for one j'ear after his death ; and then, after stating that he was desirous to continue the capital mes- suage in the name and blood of the Kempes, he devised the demesnes and the reversion to Ji., habendum immediately from the expiration of one year next after his decease, and the decease of A., for the life of B., he doing no waste. The testator further directed that B. should, after the death of A., pay three annuities of '201. each by half-yearly payments. The testator died, and the year expired. It was contended that, in order to effect the intention of the testator, the words must be taken distributively : First, because if the lands descended to the tes- tator's daughter and heir, she might change her name by marriage, and then his intention that the demesne lands should remain in the name of the Kempes would be defeated. Secondly, if A. died within the j'ear after the testator, the annuities given by the will could not be paid, unless B. took the land immediately after the death of A., notwith- standing the year was not expired (n). And, thirdly', if the demesne lands should descend to the heir in the meantime, until the death of A. , then he might commit what waste he pleased, and there would be no means to prevent it, which would be directly against the true mean- ing of the testator. The court of K, B. held, that the words of the will' should be taken distributively, and that^ B. had good title to the demesne lands after the expiration of the year, and before the death of A. So, in Simpson v. Hornsby (o), where a testator devised to his wife for life all his lands in J., and after the death of his wife, he simnson v. devised all his lands in J., and certain other lands, and aU Hornsby. other his real estate whatsoever, to his daughter B. and the heirs of her body with remainder to his daughter J. for life, with remainder to his first and other sons in tail. Lord Cowper was of opinion that (m) 1 Saund. 183, [cited 9 B. & Cr. 225.] (n) This argument supposes, ttiat if both were postponed for the life of A., then both would be postponed for the year. (o) 1 Pre. Ch. 4.39, 452, 2 Vern. 723; stated from E. L. 9 B. & Cr. 228; see also Boon v. Cornforth, 2 Ves. 276, where, however, the construction was aided by the context. 551 *539 ESTATES AEISING BY IMPLICATION. *538 the wife took nothing by implication, and that she was * entitled to a life-estate in only those lands which were expressly devised to her ; and that tlie rest of the real estate was intended to pass by the wiU immediately to B. Again, in Doe d. Annandale v. Brazier (/>), where the testator gave Doe V. Bra- ^ ^- ^^^ rents of a messuage situate in A., for his life, and z'er. after the decease of the said J3., he gave the same rents, to- gether with the rents of all his other houses and lands in A. 'aforesaid, unto certain persons for their lives and the life of the survivor, with remainder over. The question was, whether these devisees wei'e enti- tled to the other lands at A. immediately on the testator's decease-, or not till after the death of B. ; and it was decided, that the words " from and after the decease of the said B." were to be confined to the lands devised to B. for his life, and did not postpone the interest of the devisees in question in the rest until that period (q). A different construction, however, prevailed in Aspinall v. Petvin (r) , Aspinail v. ■ where a testator devised his real estate to trustees, in trust to Petvin. pg^y Qjjg moiety of the rents to his wife E. for life, and the other moiety to his son "W. (who was his heir at law), and after the death of his said wife, UT^on trust to convey the said hereditaments unto W. in fee ; but if he died without issue in the lifetime of the wife, then, upon trust, after the death of the wife, to convey the same to testator's nephew J. in fee. W. died without issue in the lifetime of the wife ; and the question was, whether J. was entitled immediately to the moiety of the rents not expressly devised to the wife, and, if not, whether she did not take it by implication (s). Sir J. Leach, V.-C, after very clearly laying down the general rule as before stated, consid- ered this to be the common case of a devise to a stranger after the death of A. ; and that, accordingly, no estate was raised in E. by im- plication, but the moiety in question for her life descended to the testa- tor's heir at law. *539 * It is remarkable that the point suggested by the Kemarks on , „ . , . , Aspinall ». class of cases under consideration was not presented Petvin. ^ ^jjg view of the court in this case, namelj"^, that the words referring to the death of the wife applied exclusively to the moietj' be- fore devised to her, and did not prevent J. from taking the other moiety (p) 5 B. & AM. 64. [(}) See also Dyer v. Dj-er, 1 Mer. 414; Drew v. Killick, 1 De G. & S. 266, (where the words of the will seemed to point to the distributive construction) ; Simmons «. Kudall, 1 Sim. N. S.'115 (devise in fee with executory gift over to strangers of that "together with" the residue).] (?•) 1 S. & St. 544. It was ingeniously argued that, as J. was heir, as well to the testator as to W; in the event on which the estate was given to him, namely, the death of W. without issue, it came within the principle of the case of an estate given to the heir after the death of the widow; but the answer to this is, that in those events, the vacant interest did not neces- sarily Aevo\ve upon.!., as W. in his lifetime might have devised or otherwise aliened it; and, consequently, the argument founded on the absurdity of his taking both did not apply; [but see Doe d. Driver ». Bowling, 5 B. & Aid. 722.] («) No arguments appear to have been advanced in favor of the hypothesis, that if the widow did not take, it descended to the heir. 552 DEVISE TO ONE AFTER THE DEATH OP AKOTHEE. *540 immediatelj' ; but, perhaps the frame of the will scarcely admitted of such a construction. The words "after the death of my wife " had been just before used in reference to both moieties in the devise to the son, and the terms of the executory trust seemed to import that no con- veyance was to be made to J. until the death of the wife. This deci- sion, therefore, appears not to clash with the preceding eases, which might seem to have established the distributive construction Distributive as the ordinary rule ; but we are taught not so to consider nottJJe'een- them \iy a decision, in which all the cases in favor of this erai rule. construction were treated as standing on special grounds, and as con- stituting an exception to the general rule. The case here alluded to is King v. Inhabitants of Eingstead (<) , where a testator devised to the widow of his late son T. M. part of a messuage, to hold to her and her assigns for the term of her natural life, if she should so long continue a widow ; and from and after her decease or day of marriage, he gave the same and other real property therein men- tioned, unto the four children of his late son T. M. deceased, their heirs and assigns forever. It was contended on the authority of the preced- ing cases, that the words were to be construed distributively, and, con- sequently, that the children took an immediate estate in possession in the property not devised to the wife ; but the court, after taking an elaborate view of those cases, and showing that in each of them the intention of the testator, as collected from the context of the will, required such a construction, considered that they did not apply to the will under discussion, where the words must be construed in their ordi- nary grammatical sense. It was held, therefore, that, until the death or marriage of the son's widow, the estate not devised to her descended to the testator's heir at law. It will be perceived that, as in this case the widow took no implied estate (the express devise on her decease or marriage, not Remarks being to the heir of the testator), the construction adopted "pon King"- by the court did not involve the difficulty of giving by impli- , cation to a person, in the lands not expressly devised to her, an estate corresponding to that which she derived in the lands so devised, in opposition to the maxim, " expressio unius est exclusio * alte- *540 rius." Had it been attended with this result, the conclusion of the court might have been different. Possibly the distributive con- struction will, in future, be (as it ought originally to have been) restricted to such cases ; but, considering how extremely slight is the dif- ference of language in the will which was the subject of adjudication in King V. Eingstead, and in some of the preceding cases, particularly Simpson v. Hornsby, it must be confessed that King v. Eingstead does not place the doctrine on such a footing as to exclude future controversy. [The suggestion that the distributive construction will be restricted to cases where the postponed devise is to the heir at law finds (0 9 B. & Cr. 218. 553 *541 ESTATES ARISING BY IMPLICATION. k'"? "' d support in Attwater v. Attwater (u), where a testator gave to followed. his cousins A. and B. his freehold house and premises, for their use during the life of each ; and at the decease of both gave the same to C, a son of his niece, to be retained in the familj' forever, together with his copj'hold and leasehold propertj- at N. C. was not the testator's heir at law or next of kin, and Sir J. Eomilly, M. R., said that although there was considerable conflict between the authorities, he considered that the case was governed by the rule laid down and settled by King v. Ringstead ; thatC, therefore, took nothing in the copyholds and leaseholds until after the decease of both A. and B., and that the customary heir (who was also sole next of kin) took the inters mediate interest.] The position that a devise to the heir after the death of A. creates in Effect of -^^ ^^ implied estate for life, supposes that the will does residuary de- not contain a residuary devise ; for a clause of this nature , eluding the would, by disposing of such intermediate estate, and there- imphcatioti jjy intercepting the descent to the heir, clearly exclude all arising from •' ,„,.,.. _,, . devise to ground for the implication. Thus, if a testator devises heu-. Whiteacre to his heir apparent or heir presumptive after the death of his wife, and in the same will devises the residue of his real estate to A. (a stranger), since the estate for life, not included in the devise to the heir, would, if no implied gift were raised, pass to A. as real estate not otherwise disposed of, which might possibly be intended, the residuary devisee, and not the wife, would, it is conceived, take the estate during her life (a;) . Another remark is, that where the will contains a residuary dis- Application position of real estate, a devise of particular lands to of doctrine *54]^ ^]^q * residuary devisee, to take eflfect in possession devises. Oil the decease of another person, supplies exactly the same argument for irapl3'ing an estate for life in that person, as a similar devise, in the cases already discussed, to the heir ; for to suppose that the testator intends lands, which he has speeificall3' devised to the residuar}' devisee at the death of A., to go to him in the meantime under the residuary clause, involves precisely the same absurdity' as to suppose that an heir is intended to take immediatelj' what is expressly given to him at a future period ; and, therefore, in the case supposed, A. would, undoubtedlj', have an estate for life by implication. [It was decided in one case, that a devise by a testator, " in case his Whether a wife should be enceinte with one or more children at the after-born time of his death, to such child or children," implied a gift children im- to anj' children born after the date of the will though before to'posthu-^' the testator's death, on the ground that it was impossible mous chil- jq suppose the father would provide for a posthumous child, [(u) 18 Beav. 330. See also Davenport v. Coltnian, 9 M. &W. 481, 12 Sim. 588, where, however, the distributive construction was not sugfiested, and the income during the wife's life was not claimed by the daughters. But see Lill v. Lill, 23 Beav. 446. (x) I'er Kindersley, V.-C, Stevens v. Hale. 2 Dr. & Sm. 28, ace. 554 GIFTS TO POSTHTJMOUS CHILDREN' — TO SUEVIVOES. *542 leaving children in esse unprovided for(y). But in Doe d. Blakis- ton V. Haslewood (z) , the Court of C. P. unanimously overruled that decision, thinking that in such a case the testator never contemplated the birth of children in his lifetime, and never intended to provide for them by his will : the will was made in contemplation of a particular combination of circumstances, which not having happened, the will failed. However, in a subsequent case (a), Blackburne (L. C. Ir.), though not called upon to decide the point, expressed a preference for the elder authority.] As a devise to a stranger after the death of A. creates no estate in A. by implication in the meantime, it might seem to follow As to devises that a devise to the survivor of several persons would not gJa^ee^'to sir- raise an estate by implication in the whole during their joint vivors. lives ; but, in the actual state of the authorities, it would be hazardous to advance any such proposition, seeing that, in one instance at least, a different construction prevailed, though certainly not without some aid from the context. A testator (6) devised lands at T. to trustees, in trust to receive the rents and profits during the lives of his four daugh- ters and the survivor of them; and '■'■afterwards to pay such rents and profits to and * among such survivor, and the child or *542 children of such my daughters who shall first happen to die ; and from and immediately after the decease of my said four daughters, my will is, that they do sell the premises, and pay the moneys arising there- from, in four equal parts," to the children of his daughters. By a sub- sequent clause, he bequeathed his chattels among his children, except his daughter H. , who was only to receive in full satisfaction of what was before bequeathed to her three shillings a week during her life, or "until her distributory share was exhausted," out of his estate at T. and personal eflfects, for her separate use. The court was clearly of opinion that the testator never intended to leave all his daughters with- out any provision until three of them were dead ; and with reference to the subsequent clause, which showed that his daughter H. was in his opinion entitled for life, they held all the daughters to take. Cases the converse of the preceding have sometimes occurred, namely, where the income is expressly disposed of during the joint As to impli- lives only of several co-devisees or co-legatees, with a sift 5**"?" ?* ■' & 5 & devise to sur- over on the decease of the survivor, thus leaving unprovided vivors. for the destination of the intermediate interest accruing in the interval between the determination of the joint lives and the death of the survi- (y) Wliite V. Barber, 5 Burr. 2703. (z) 10 C. B. 544. (o) Ee Lindsay, 5 Irish .Jurist, 97; see also Alleyne v. Allevne, 2 Jo. & Lat. 558; Good- fellow V. Goodfellow, 18 Beav. 356.] (b) Saunders v. Lowe, 2 W. Bl. 1014. For other cases in which the implication arising from the whole will was held to be equivalent to, and to supply the place of a direct gift, see Brown v. De Laet, 4 B. C. C. 527; Crowder*. Clowes, 2 Vos. Jr. 449 ; Wainewright ». Waiue- wright, 3 Ves. 558. 555 *543 ESTATES ABISING BY IMPLICATION. vor. In several such cases (c), the interest in question lias been held' to belong to the survivors, either under an implied gift to them, or in virtue of the right of survivorship incident to a joint tenancy ; and the latter seems to have been the chosen ground of determination, though this result was only attainable by the rejection of words which, unless controlled by the context, would have had the effect of making the co-devisees or co-legatees tenants in common. In Townley v. Bolton {d), the bequest was in these words : "I give to my sister M. T. and her husband G. S. T. 501. per annum Long Annuities for their joint lives, and after their decease, to go to mj' own nephew, C. P." Sir J. Leach, M. E., held, that the gift over being after the decease of the husband and wife; it was plain that the testator intended that the survivor should be entitled. Here, too, it is doubtful whether the survivor became entitled *543 * by the effect of the implication of a gift in remainder for life, expectant on the determination of the joint lives, or as surviving joint-tenant for life, the words "for their joint lives" (which otherwise would have determined the interest of both on the death of either (e) ) being rejected. The latter appears to have been the ground taken in the arguments at the bar. Annuity to In Jones V. Randall (/), a testator bequeathed an annu- liveTof them ^^^i "po^i trust for A. for life, and after her death to pay and and survivor, divide the Same amongst the children of A. who should hap- pen to survive her, in equal shares if more than one child, and if but one child, then to such onty child ; such annuity to be paid during the lives of such children, and the, life of the survivor of them. It was con- tended that the survivors were entitled by implication ; but Sir T. Plumer, M. Ri, held that the argument, that because the annuity was for the life of the survivors, therefore the survivors were to take, amounted only to conjecture ; [that the words in question only de- scribed how long the annuitj' was to last ; they determined the subject- matter of the bequest, regulating the duration, but not the persons to participate in it : and] the children took as tenants in common an annuity for their lives and for the life of the survivor. [So in Bryan v. Twig {g), a bequest of an annuity to the children of J. B. equally share and share alike, for and during the term of their joint natural lives or the life of the survivor of them, was held bj' Sir J. Rolt, L. J., to make the children tenants in common to an annuit}' which was to endure until the death of the survivor ; so that on the (e) Tuckerman v. Jefteries, 3 Bae. Abr. 681, Gwillim's ed. 81; Armstrong v. Eldridge, 3 B. C. C. 215; Pearce «. Edmeades, 3 Y. & C. 246; all stated post, Ch. XXXII. ; [Crans- •wick 0. Pearson, 31 Beav. 624. But see Re Drakeley's Estate, 19 Beav. 395; Stevens v. Pyle, 28 Beav. 388 ; and other cases cited. Ch. XXXII.] (d) 1 My. & K. 148; [see also MoDermott v. Wallace, 5 Beav. 142; Moffatt v. Burnie, 23 L. J. Ch. 591; Day «. Day, Kay, 703. (e) Grant u. Wimbolt, 23 L. J. Ch. 282 ; but see Smith ». Oakes, 14 Sim. 122.] (/) 1 J. & W. 100. Y(o) L. R. 3 Ch. 183. See also L. E. 3 Eq. 433 (similar bequest iu the same will) ; Eales ti. Earl of Cardigan, 9 Sim. 384. 556 GIFT FOE LIVES OF SEVEKAL AND OF SUEVIVOE. *544 death of one his share went to his representatives. With reference to Armstrong v. Eldridge and similar cases (A), he said that where the du- ration of the annuity was not clearly defined a gift over on the death of the survivor was material, but was immaterial where the duration of the annuity had already been distinctly marked out as extending till the death of the survivor : and that it was important to observe that in none of those cases were the representatives of the deceased annuitants parties to the suit. Where, too, there is a gift to A., B. and C. for their Uves, and after the decease of A., B. and C, to their children, a gift of the whole to the survivors or survivor for his or their lives must not be too readily inferred, the court, in favor of the children, being *gen- *o44 erally inclined to lay hold of slight indications of an intention to give the share of each, on his death, to his children (*).] The general principles before stated, as governing the doctrine of im- plication in regard to real estate, it is conceived, are appli- 2. Doctrine cable' to bequests of personal estate,^ including terms for of implication years ; for though the terms in which the doctrine is [fre- personal quently stated as regards real estates], namely, that the heir ^^'**^- is not to be disinherited by any implication other than a necessarj' one, applies exclusively to real estate [yet it is equally true that the next of kin is not to be displaced by conjecture {k)'\. In an early case (Z) , it was held by three justices, that Lf a man gave a term to his son after the death of the wife of the testator, this shall not raise any estate in the wife, because it does not appear that his in- tent was so, inasmuch as the son ought not to have it by the law by the death of the testator without any devise, but the executor.''' But in Doe d. Beudale v. Summerset (m), where A. possessed of a term of ninety-nine years, determinable on the lives of his daughter B. and J. S., bequeathed the premises to his daughter M. after the death of his daughter B., during the life of J. S. ; Willes and Blackstone, JJ., held that B. took an estate for life by implication. A strong probable implication was, they said, sufficient : it need not be a necessary impli- cation. Willes, J. , it is said, spoke slightly of the case in Moore ; and Blackstone, J., still more slightly of the case in Croke, which, he ob- served, was not determined, but was onlj' upon a collateral point. K Doe V. Summerset is to be considered as identified with a proposi- Oi) Vide ante, n. (c). (i) Hawliins v. Hammerton, 16 Sim. 410; Doed. Patriclc v. Royle, 13 Q. B. 100; but see Pearce v. Kdmeades, 3 Y. & C. 246 ; and other cases noticed post, Ch. XXX. s. 5. (k) 3 Ves. 493; ante, p. 356.] [l) Horton v. Horton, Cro. Jac. 74; S. C. nom. Burton v. Horton, 8 Vin. Abr. 214, Dev. (Pa.) pi. 3; see also Rayman v. Gold, Moore, 635 (where, however, the point did not arise, as the wife, at whose death the property was devised, was appointed executrix, and became entitled qudcunque via). (m) 5 Burr. 2608. 1 In White v. Green, 1 Ired. Eq. 45, it is heritance. and is not to be applied to personal said that this rule, that a gift by will to A. estates. See ante, p. 532, note 2. after the death of B. is a gift to B. for life by 2 See Doughty v. Stillwell, 1 Bradf. 300; implication, is to be confined to estates of in- White v. Green, i Ired. Eq. 45. 557 *545 ESTATES AKISING BY IMPLICATION. Q. , ,. tion that the bequest of a term of years to B. after the death upon Doe v. of A. gives a life-interest to A. hy imphcation, it is as diffi- Summerset. p^jj. ^ reconcile it with Horton v. Horton as with sound principle [and must be considered as overruled by Ralph v. Car- *545 rick (n) , which shows that] the analogy between a devise of * real estate to the heir [and a gift of personal estate to the nest of kin] after the death of A. [is complete ; and that unless] the legatee of the future interest is the sole person entitled in the character of next of kin, residuary legatee, or executor [at the date of the will] , to the intermediate interest, not specifically disposed of, [A. will not take a life-interest bj' implication. Cases decided in the interval between Doe v. Summerset and Ralph Tendency to ^' Carrick, during which there was] an inclination to con- imply life-in- strue generall3- a bequest of personalty at the death of A. soimfbe-''^'' to S'^^ to A. a prior life-interest by implication, [must quests, \)Q carefuUj' examined before the3' are accepted as authori- Kalph V. (^r- ties upon the question, what kind of context will furnish ™''- sufficient special grounds for raising the implication in cases where the legatee of the future interest is not the sole person entitled as above mentioned. The implication was raised] in one instance where there was an express gift to the same legatee determinable dur- ing her life. Thus, in Bird v. Hunsdon (o), where a testator directed, after paj-ment of debts and legacies, the residue of his money to be put into government security, and the interest to be paid to bring up and educate M., adding, " the said M. to have the interest so long as she continues single and no child ; and when it shall please God to call her, that money shall come to my brother's and sister's children, all share alike.'' M. married and had a child ; nevertheless, she was held to be entitled to the income during the remainder of her Ufe. Sir T. Plumer, M. R., observed, that the testator contemplated three periods : " Plrst, he gives the interest for maintenance, that is, during minority ; and, again, for maintenance after minority, while she lives single and has no child. To the third period, the interval between her marriage and her death, there are no words expressly applicable ; but the interest being first given to a favored object, and the capital not given over till the death of that person, the court is driven to the necessity of saying, either that there is intestacy during the remainder of her life, or that [(«) 5 Ch. D. 984, 40 L. T. N. S. 505. This decision overrules Humphreys v. Humphreys, L. K. i Eq. 475, and renders it unnecessary to refer in detail to cases where special grounds were relied on to repel the implication, e.'o. Stevens «. Hale, 2 Dr. & Sm. 22 (A. otherwise provided for); Isaacson v. Van Goor, 42 L. J. Ch. 193 (express life-estate to A. in certain events); Cranley v. Dixon, 23 Beav. 512 (partial intestacy — often deemed strnnp; ground for raising the implication — obviated by residuary bequest) ; Henderson v. Constable, 5 lieav. 297 (gift under a power — interest during life of A. held to go as in default of appointment).] (o) 2 Sw. 342; see also Blackwell i). Bull, 1 Kee. 176, ante, p. 535; [Cock r. Cock, 21 W. R. 807, is but shortly reported ; Davies v. Hopkins, 2 Beav. 276, may perhaps be referred to another ground, post."Ch. XXH. s. 6, n. Re Betty Smith's Trusts.'L. R. 1 Eq. 79, and perhaps Re Blake's Trust, L. R. 3 Eq. 799, are not properly cases of implication, but of express gifts upon apparent (not real) contingencies.] 658 FROM GIFT OVEE ON DEATH "WITH CONTINGENCY. *546 she is to take during her whole life. The latter seems the more reason- able alternative.'-' [This case bears some resemblance to those cited in the next sec- tion, where a gift to A. during minority has been enlarged to * an absolute fee in A. on his attaining twenty-one, by virtue *546 of a gift over in case of his death under that age.] III. Hitherto the doctrine of implication has been viewed chiefly in its application to the simple ease of devise or bequest on the , ,. ^. ^ '^ ^ ... Implication decease of some person or persons ; but it is obvious that from express the principle may come under consideration in a somewhat Combined more complex form, as where the event, upon which the with some express devise is to take effect, is the death of a person, "''" agency. combined with some other contingency. For instance, in the case of a devise to B. in the event of A. dying under age ; in which case, as there is no devise to A. in the alternative event of his attaining his majority, the question arises, whether he can take the fee (jo) by im- plication in such event. If B. were the testator's heir apparent or presumptive, there would be no difficulty in arriving at the affirmative conclusion ; the ease then being evidently analogous to that of a devise to the heir, to take effect in possession on A.'s decease, which, we have seen, raises an estate for life in A. By paritj"^ of reason, it would seem that a devise to a stranger, in the event of A. dying under age, supplies no more valid ground for holding A. to take an estate in fee by implication, than is afforded for the implication of an estate for life to a person on whose decease the lands are devised to a stranger : for a testator may intend the fee to descend to the heir on the alternative contingencj- of A. attaining his majoritj'. And, perhaps, the authori- ties rightly considered, do not militate against this hypothesis ; for, though an estate in fee was held, in one instance, to arise by implica- tion, under such a devise, to a person who was not the testator's heir, yet the construction was founded on reasoning partly derived from the context. Thus, in Goodright d. Hoskins v. Hoskins (y), a testator bequeathed unto his son Richard certain leasehold premises called S. to „., . ,. , hold the same unto his said son Richard until his (R.'s) son from limita- Thomas should attain the age of twentj'-one years, and no IhToVect longer ; but in case his said son Thomas should die in his died under minority,^ then' the testator gave the said leasehold prem- '^'*"'y'°"^- ises under John and Richard, sons of the said Richard, or either of them, attaining the age of twenty-one years as aforesaid ; and he de- sired that his premises at S. might be quitted and delivered up as (p) Why, it may be asked, a fee? On this point vide Purefoy v. Rogers, 2 Saund. 388, and other cases discussed Ch. XXXIII. s. 3. " (q) 9 East, 306. 1 See 4 Kent, 541; Cassell v. Cooke, 8 Serg. &, R. 290. 559 *548 ESTATES AEISING BY XMPLICATION aforesaid by his said son Richard ; and the testator, in a certain *547 event, revoked, * but otherwise confirmed, the said bequest of S. and the other legacies given to his son Richard's family. Thomas attained twenty-one, and was held to be entitled : Lord Ellenborough rel}'ing much upon the direction that the premises should be quitted and delivered up as aforesaid by the testator's son Richard, that is, when Richard's son Thomas came of age, to Thomas ; "for to whom else " (said his Lordship) " could Richard deliver up the possession in that event?" But might not these words (which merel)' imported h/ -whom the Eemark upon pi'C™ises were to be deUvered up) have been satisfied by their Goodright v. delivery up to any person entitled under or dehors the will ? Ob ins. Unless Thomas were to become entitled at twenty-one, the limitation over, in case he died under that age, was certainly very absurd, and the case may be considered as somewhat analogous in principle to those in which a devise has been enlarged to a fee by such a devise over (r) . This case was much relied on in Da^is v. Davis (s) , in support of the Davis V. argument for raising an implied gift to the testator's daugh- Davis. tgj.^ from the following words: "It is my wish that my brother S. be my executor, to arrange, dispose of, and settle all my affairs ; and I appoint him guardian to my daughter." Sir J. Leach, M. R., decided in favor of the implication. He said, that it was plain it was not the intention of the testator that his brother should take a beneficial interest, but that he should only arrange and settle his affairs ; and, from his appointment as guardian to the daughter, it was to be implied that the arrangement and settlement was to be for her benefit ; but Lord Brougham reversed this decree, conceiving that there was nothing in the language or provisions of the will from which a bequest to the daughter could be safely and reasonably impUed. He observed, that Newland v. Shephard (t) and Goodright v. Hoskins (the former of ■which had been often questioned (u) , and the latter had been rested by Lord Ellenborough on special grounds) fell far short of this. *548^ * [The analogy suggested above is closer where there is in Absolute gift the first place an estate devised to be enlarged. Thus in Crop- &t tW6ntv- cj X one implied tou V. Davies («) , where a testator devised three houses to from limita- trustees upon trust, as to the first, for his daughter A., her (r) Vide Ch. XXXIII. s. 3. (s) 1 R. & My. 645. (0 2 P. W. 194. In tliis case (wliich is often cited) a testator gave the residue of his real and personal estate to trustees, upon trust, to apply the income for the maintenance of his grandchildren during minority, but went no furtlier. Lord iVIacclesfield — "The intention is most plain, that the grandchildren should have the surplus, botli of the real and personal estate, after their age of twenty-one." [In Atkinson v. Paice, 1 B. C. C. 91, a bequest in trust for R. L. until he should come of age, was held to be an absolute gift to R. L. ; and in Peat V. Powell, Amb. 387, 1 Ed. 479, a devise aud bequest in nearly the same words received the same construction.' See further Ch. XXXIII. s. 3, ad Jin.; Tunaley v. Roch, 3 Drew. 720. (u) 3 Atk. 316. " I say nothing as to whether it was rightly decided," per Wood, V.-C, 2 J. & H. 128. (x) L. E. 4 C. P. 159. 560 FROM GIFT OVEE ON DEATH "WITH CONTINGENCY. *349 heirs and assigns ; as to the second, for his daughter B., her tion, until heirs and assigns ; and as to the third, to apply the rents for ^^^glf^ly^,. the advancement and benefit of his granddaughter C. until under that she attained twenty-one, but, in case she should die under that '^^^' age, then he devised the same to A. and B. and their heirs as tenants in common : all the residue of his real and personal estate he devised to X., Y. and Z. C. attained twenty-one, and the Court of C. P., without saj-ing that the devise alone would have raised a fee by implication, thought, that, looking to it and to the other provisions together, the in- tention was clear to give C. the whole interest in the third house, to go over to A. and B. only in an event which had not happened. If this were not so, the strange consequence would follow that if C. died under twenty-one the house would go over to A. and B., whereas if she at- tained twenty-one it would go over to the residuarj' legatees, who were other persons. Such an intent the court thought could not be presumed from the structure and language of the will. In Tomkins v. Tomkins (y) there was nothing but a bare devise " to his brother in trust for his eldest son B. till he should attain twentj-- one, and, if he should die before twenty-one, then a devise over ; " yet it was held that on attaining twenty-one B. took the whole by implica- tion. So, in Gardiner «. Stevens (2;), where leaseholds were bequeathed " in trust for A. and B. till B. is twenty-flve years old, and in case they, A. and B. , should die before B. attains twenty-five," then over, it was held by "Wood, V.-C, that, on B. attaining twentj'-five, A. and B. became absolutely' entitled in equal moieties. And in Wilks v. "Williams (a) tlie same judge treated it as clear that upon a devise or bequest of real or personal estate, upon trust for the child or children of any person until thej' attain twenty-one, followed bj' a gift over to a third person in case the children do not live to attain twentj'-one, the children, if they live to attain twenty-one, take absolutely. The case itself went somewhat further. The testatrix desired her trustees to invest the residue, and gave the interest to A. and B. equallj', and at their decease the dividends were "to be * continued to their children till they * 549- come to the age of twentj'-one." There was no gift over, but the testatrix added, "I constitute and appoint C. and D. trustees for the said A. and B. and their children." The children were held to take absolutely on attaining twenty-one ; for the trust during minority was complete without the last clause, which therefore must be looked upon as indicating that, after the children attained twentj^-one, the trust for their benefit was still to continue. But, of course, the children will not take an absolute interest by im- plication if in the same event there is an express gift to them -yy^gn this of a less interest (5). And it has been held that the event implication upon which the gift over is to take effect must exactly- cor- *' "*■ (V) As cited bv Lord Mansfield, 1 Burr. 234. (a) 30 L. J. Ch. 199. (a) 2 J. & H.125. (A) Savage v. Tj-ers, L. R. 7 Ch. 356* . VOL. I. 36 561 *550 ESTATES ARISIKG BY IMPLICATION respond with that upon which the limited trust is to cease. If the' gift over depends on a further collateral event, as on death under twenty- one and unmarried, the implication does not arise (c) . And where (rf) the trust during minority was for the minor and his mother, with a gift over to her if he died under twentj'-one, Sir R. Kindersley, V.-C, held that there was not enough to show that the minor, if he attained twenty- one, was to be benefited exclusively of his mother. J IV. Where a testator gives several distinct subjects of disposition No impiica- to trustees, and then proceeds to dispose of the equitable or eouitaUe is beneficial interest in terms applicable to one of those sub- to be co-ex- jects Only, there is no neeessarj' implication that he intended h'gai iSposi- ^^^ ^^S^^ ^^^ equitable disposition to be co-extensive, though tion. it may be highly probable that he did so, and more espe- cially when the omitted subject is convenient (though not essential) to the enjoyment of the other. As in Stubbs v. Sargon (e), where a testatrix devised to trustees and their heirs her copyhold dwelling-house (wherein she prineipallj- re- sided), garden and ground, together with the furniture and effects therein, and the coach-house and stable thereto belonging, and also the ten cot- tages, and two new cottages built by her, with their appurtenances, at L., upon trust, that the trustees and the survivors, &c., and the heirs or assigns of the survivor, should pay the rents of the said hereditaments to her niece S. S., the wife of G. S., or permit and suffer her to use and occupy the said hereditaments during her life, to the intent that *550 the same * hereditaments, and the rents, issues, and profits thereof, might be for her separate use ; and after her decease to G. S. for his life; and after his decease, upon trust, that the trustees and the survivors and survivor of them, and the heirs or assigns of such survivor, should be possessed of and interested in the said here- ditaments, in trust for such of the testatrix's nephews and nieces, or grand-nephews and grand-nieces, as S. S. should appoint; and in de- fault of appointment, upon trust that the said trustees and the survivors and survivor of them, or the heirs or assigns of such survivor, should sell and dispose of the said hereditaments and premises (/) ; and the tes- tatrix directed that the produce of such sale should constitute part of her residuary personal estate. The will contained a general residuary clause (g). Lord Langdale, M. E., held, that the furniture and effects did not pass to S. S., but belonged to the residuary legatees, the testa- trix having, in the statement of the trusts, emploj-ed words only apph- cable to the real estate ; and Lord Cottenham, on appeal, was of the (c) Savage ». Tyers, h. R. 7 Ch. 356. (d) Fitzhenrv v. Bonner, 2 Drew. 36.] (e) 2 Kee. 255, 3 My. & Cr. 607; compare this case with Ackers v. Phipps, 9 Bli. 431, 3 CI. & Fill. 665. (/) The addition of the word "premises," in this instance, afforded ground for extending the ultimate trust, unless restricted by the preceding trusts to the furniture; but as the pro- ceeds under this trust were to form part of the residuary pei-sonal estate, the point was imma- terial. (?) This fact is to be assumed, but is not stated in the report. 562 FROM POWERS OP APPOINTMENT. *561 same opinion, observing, that it was probable the testatrix intended that the furniture and effects should accompany the copyholds, but she had omitted to declare such to be her intention. So, in Jackson v. Noble (Ji) , where a testator gave certain freehold, copyhold, and leasehold estates (particularly describing them) ^ ■ ■ and 1,000?. stools, to trustees, their heirs, executors, admin- dispose of istrators and assigns, to hold the last-mentioned /reeAoZrf and t^resTnot"^" leasehold estates, and stock, unto the trustees, their heirs, cured by im- executors, administrators and assigns, in trust for his daugh- ^ "=*'"'"■ ter A. for life, for her separate use ; and after her decease, upon trust, to convey and assign the several last-mentioned freehold and leasehold estates and 1,000?. stock unto the heirs, executors, administrators and assigns of A. And the testator empowered his daughter to grant leases of the freehold and leasehold estates so given to her. Lord Langdale held, that as the testator had omitted all mention of the copyhold estates after the devise to the trustees, he could not consider them as comprised in the trust.^ V. Implied gifts may be and often are created by powers of selection or distribution in favor of a defined class of objects ; gjftg implied * for, where property is given [or appointed under a *651 from powers general power (i) ] to a person for life, and after his and distribu- or her decease to such children, relations^ or other defined '^"'°" objects as he or she shall appoint, or among them in such shares as the donee shall appoint, and there is no express gift over to these objects in default of appointment, such a gift will be implied ; the presumption be- ing that the testator could not have intended the objects of the power to be disappointed of his bounty, by the neglect of the donee to exercise such power in their favor {h).^ A leading authority for this construction is the case of Brown v. Higgs (?), where the bequest was " to such children of my nephew S., ;*) 2 Kee. 590. ■(»■) Wliite V. Wilson, 1 Drew. 298. %) - ■ - - ■■ (k) The early cases of Crosslirigs. Crossling, 2 Cox, 396; and Duke, of Marlborouffh o. Godolphin, 2 Ves. 61, which are opposed to this construction, would probably be decided dif- ferently at the present day; see Sugd. Pow. 8th ed. 592.] (0 4 Ves. 708, 5 Ves. i95, 8 Ves. 561; see also Harding v. Glvn, 1 Atk. 469; Cruwvs v. Colman, 9 Ves. 319; Forbes V. Ball, 3 Mer. 437; f Witts «. Boddington, 3 B. C. C."95;] Walsh t>. Wallinger, 2 R. & My. 78; [Grieveson v. Kirsopp, 2 Kee. 653; .Tones v. Torin, 6 Sim. 255 (as to which see ante, p. 517, n. (x)); Martin v. Swannell, 2 Beav. 249; Fenwick». 1 A gift by implication must be founded Ex parte Kempton, 23 Pick. 163; Nickerson upon some expression in the will from which v. Bowly, supra. Pee also to the same effect an intention can be inferred. Silence alone Waugh'tt. Riley, 68 Ind. 482; Dale v. Bart- is not a safe ground to proceed upon by way ley, 68 Ind. 101 ; Lindsay ». Lindsay, 47 Ind. of inferring an intended gift. Nickerson ». 283; Rusing v. Rusing, 25 Ind. 63; Arm- Bowlv, 8 Met. 424. See Davers v. Dewes, 3 strong v. Berreman, 13 Ind. 422. P. Wms. 40 ; Dicks v. Lambert, 4 Ves. 725, 2 See In re Phene's Trusts, L. R. 5 Bq. 346. 732. When, for example, a bequest of per- A power of disposition is implied by the lan- sonal property is made to the testator's wife, euage " what shall remain at the time of her the part undisposed of will go to her and the [ihe donee's] decease." Glfford v, Choate, next of kin, according to the Statute of Dis- 100 Mass. 343. tributions. Briggs v. Hosford, 22 Pick. 288; 563 *552 ' ESTATES ARISING BY IMPLICATION as my nephew I. shall think most deserving, and that will make the best use of it, or to the children of my nephew W., if any such there are, or shall be." I. died in the lifetime of the testator. Sir R. P. Arden, M. R., and subsequently' Lord Eldon, after great consideration, held the children to be entitled under the implied trust : [and this decision was affirmed in D. P.] And the implication, it seems, is not repelled by the circumstance Imolied eift ^^^^ *^® testator has expressly given the property to tlie in one, not persons who are objects of the power, in the event of the express^gift'' donee dying before him (m) ; which event, it is to be ob- in another, served, would have prevented the power from arising; so that the express gift and the implied one are alternative and not inconsistent. An express gift over ih default of appointment, in favor of either the Implication objects of the power or any other person, of course pre- exOTess^eift^ cludes all impUcation (n). [But a gift over in default of in same event, objects of the power Strengthens the implication in their favor (o).J And there is, it seems, no necessary inference that the testator *552 * intends that a qualification, applied by him exclusivelj- to the objects of the power, should be extended to the objects of the gift expressly limited in default of appointment to a class of objects identical in other respects with that of the power. Thus, where ( p) the devise was to A. for life, with remainder to such child and children of A. and him surviving, who should be educated as a member of the Church of England, in such parts and proportions, &c., as A. should appoint, and, in default of such appointment, to the first son of A. who should be educated as aforesaid and the heirs of the body of such son, with divers remainders over : it was contended that as the power of appointment was restricted to " surviving " children, the gift over was to be construed with a like limitation ; but Sir J. Leach, M. R., held, that such a construction would be contrary to the force of the expres- sions used, and was not warranted \>j necessary or rational inference. A gift arising' hy impliccUion from a power of selection or distribu- Obiects of t'°"' however, applies to the persons who are objects of the power and power, and to them only ; and consequentlj', if the appoint- m'mi't te.^''' ment is to be testamentary, the gift takes effect in favor of identical. the objects living at the decease of the donee, to the exclusion Greenwell, 10 Beav. 412: Forrtvoe v. Bridges, 10 Beav. 90, 2 Phil. 497; Bnrrough v. Pliiloox, 5 Mv. & Cr. 73; Falkner ». Lord Wvnford, 15 L. J. Ch. 8, 9 .Jur. 1006; Penny ». Turner, 15 S'im. 368, 2 Phil. 493; Allnway?;. AUowav, 4 D. & War. 380; Salusbuvv v. Denton, 3 K. 6 J. 535; Joel v. Mills, ib. 474; Reid v. Reid, 25 Beav. 4fi9: Izod v. Izod, 32 Beav. 212; Re Caplin's will, 2 Dr. & Sm. 527. As to the sufficiency of precatory words to create a power from which a gift-may thus be implied, see Bernard v. MinshuU, Johns. 292. No gift can be implied where the donee has a discretion whether he will apnoint anything or not. Re Ed- dowes, 1 Dr. & Sm. 395. Compare Brook ». Brook, 3 Sm. & Gif. 280. (m) Kennedv i). Kingston, 2 J. & W. 431. Ytn) Pattisoii ». Pattison, 19 Beav. 638; Roddv ». Fitzgerald, 6 H. L. Ca. 823; Goldring 11. Inwood, 3 Gif. 139. Compare Re .lefferys' Trusts, L. R. 14 Eq. 136. (o) Butler v. Gray, L. K. 5 Ch. 30.] (p) Smith v. Death, 5 Mad. 371. 564 FROM POWERS OP APPOINTMENT — ESTATES TAIL. *55^ of any who may have died in his lifetime, and who of course could not have been made objects of an appointment by will (9). [Conse- quent!}', if all the objects die in the donee's lifetime, no gift at all can be implied. So, although the power be to appoint b}' deed or will, yet if upon the true construction of the instrument creating it the objects of it are required to be living at a deferred period, the implied gift in default will also be to those persons only (r) . Where the power is to appoint in favor of some one person to * be selected out of *553 a class, if any gift could be implied in default of appointment, it ought to be to one person only of the class ; but as no gift can be im- plied to one more than another, it seems that none of the class can take by implication («). J And it should seem, that a gift arising by implication from a power of selection or distribution in favor of relations, will apply exclusively to the relations living at the death of the donee, even though [they be not the donee's own relations, and though] the power is not in terms confined to an appointment by will (t). If the subject of the implied gift resulting from such a power be real estate of inheritance, the implication [confers] an estate in fee, even though the will be dated before 1838, if the power authorizes the \\m\- tation of estates in fee (u). Although a power of selection or distribution is usually preceded by the reservation of a life-interest to the donee, yet such a Ljfe.jnferest ' gift, where omitted, will not be implied. Thus, it was not implied ■ decided, that where a testatrix, after bequeathing her prop- pow^-'of di™ erty to her mother, requested her to leave 500Z. to each of tribution. her (the testatrix's) sister A.'s children (and some legacies to other persons), and the remainder to her sister B., " to dispose of among her children as she may think proper," B. herself took no interest {x) . {q) Walsh v. Wallinger, 2 R. & My. 78; see also Kennedy?). Kingston, 2 J. & W. 431; [Freeland v. Pearson, L. R. 3 Eq. 658. In Falkner v. Wynford, 15 L. J. Ch. 8, 9 Jur. 1009, the power was to appoint by deed or will, and, consequently, the gift by implication was not restricted to the objects living at the decease of the donee. An express gift in default of appointment applies to the same class of persons as a simple gift unconnected with any power, Pattison v. Pattison, 19 Beav. 638; Richards ». Davies, 13 C. B. N. S. 69, 861. And it is said that a gift to a class in such shares as A. shall by_ will appoint is to be distinguished from a mere power for A. to give among the class, and is for this purpose equivalent to an express gift in default, Lambert v. Thwaites, L. R. 2 Eq. 151; but in Woodcock v. Renneck, 1 Phill. 72, 4 Beav. 190, it was held by Lords Lyndhurst and Langdale that the question who were entitled under such a gift depended upon the construction of the whole clause, including the words importing power. (r) Halthead v. Shepherd, 28 L. J. Q. B. 248, 5 Jur. N. S. 1162; Re White's Trust, Johns. 656; Re Phene's Trusts, L. R. 5 Eq. 346; Winn v. Fenwick, 11 Beav. 438; Sfolwor- thy V. Sancroft, 33 L. J. Ch. 708, 10 Jur. N. S. 762. But it has been doubted whether (he Eoint of construction in the last two cases was rightly decided. L. R. 2 Eq. 159, 160, 4 Ch. >. 68. (s) Sugd. Pow. 8th ed. 593.] (0 Att.-Gen. o. Doyley, 4 Vin. Abr. Ch. Us. C. pi. 16, p. 485; Harding v. Glyn, 1 Atk, 469, cited 5 Ves. 501. The case of Pope v. Whitcombe, as reported 3 Mer. 689, is contra, in regard to a power of distribution; but, as corrected from R. L., Sudg. Pow. 8th ed. pp. 663, 953, is an authority on the same side. [And see Finch v. Hollings^Yorth, 21 Beav. 112. («) Bradley v. Cartwright, L. R. 2 C. P. 511. And see Casterton v. Sutherland, 9 Ves. 445 ; Crozier v. Crozier, 3D. & War. 383.] (x) Blakeney v. Blakeney, 6 Sim. 52; [but see Huddleston v. Gouldsbury, 10 Beav. 547; Ramsden v. Hassard, 3 B. C. 0. 236.] 565 *554 ESTATES ARISING BY IMPLICATION VI. It remains to consider the implication of estates tail. Accord- - .. . ing to the doctrine which has been the subject of discussion of estates in the second section, it. is not to be doubted, that if lands xf^t^f^^s^ were devised to the testator's heir apparent or heir pre- sumptive in fee in case A. should die without issue (which, if the will were made before 1838, would import a general failure of issue (j/)), this would make A. tenant in taU, with reversion in fee to the testator's heir, — the event described being precisely that which would involve the extinction of an estate tail ; and it being impos- sible to suppose that the testator could intend to make a *554 * devise to take effect at a future period, to the verj- person who would in the absence of disposition take the property by act of law, without intending that it should in the mean time devolve to some other person. The reports, however, do not present exactly such a case. It has been long settled, however, that a devise, in a will which is Whether an regulated by the old law, to a person and his heirs, or to express estate a person indefinitely, with a limitation over in case he die tor ill© cs.li oG .,. f, 'ii T»j.i enlarged to Without issue, confers an estate tail, on the ground, m the bv impUca- '' fo^^er case, that the testator has explained himself to have tion. used the word " heirs " in the qualified and restricted sense of heirs of the body (z) , and in the latter case on the ground that he has, by postponing the ulterior devise until the failure of the issue of the prior devisee, afforded an irresistible inference that he intended that the estate to be taken by the prior devisee under the indefinite devise should be of such a measure and duration as to fill up the chasm in the disposition, and prevent the failure of the ulterior devise, which, as an executory devise to take effect on a general failure of issue, would, of course, be void for remoteness.* According to some early cases, however, an express estate for life cannot be so enlarged into an estate tail by implication, on the ground that implication can only be admitted in the absence of, and never in contradiction to, an express limitation. But in Bamfield v. Popham (a) (which is the authority usually adduced for this doctrine), the conclusion at which the court arrived may be sustained upon other grounds ; if not, it has been over- ruled by numerous decisions (J) , in which an estate tail has been raised (y) The implication doctrine discussed in the text assumes that the words referring to " death without issue " import an indefinite failure of issue. What force of context is requi- site to explain them to be used in any other than this their ordinary sense (which is a subject of much intricacy, from the accumulation of authorities), will be considered Ch. XLI. f (z) For other cases where " heirs " has been so explained, see Ch. XL. s. 3.] (a) 1 P. W. 64, Salk. 2.3(i, 2 Vem. 427, 449; see 1 Ves. 26. r(ft) Per Parker. L. C, Blackborn r. Edgelev, 1 P. W. 605;] Langlev v. Baldwin, 1 P. W. 769; Stanley v. Lennard, 1 Ed. 87; Att.-Geu. v. Sutton. 1 P. W. 754, "3 B. P. C. 75; Doe d. Bean v. Hatlev, 8 T. R. 6: [Parr v. Swindels, 4 Russ. 283; Key v. Key, 4 D. M. & G. 73; Stanhouse v. Gaskell, 17 Jur. 167 ; Andi-ew v. Andrew, 1 Ch. D. 411.] I 4 Kent, 276 et seq. and notes; Fiak v. 134; Nightingale v. Burrill, 16 Pick. 104; Keene, 35 Maine, 349; Hansell v. Hubbell, Thomason v. Andersons, 4 Leigh, 118; Hox- 24 Penn. St. 244; Parker v. Parker, 5 Met. ton v. Archer, 3 Gill & J. 199. 566 FROM GIFT OVEE — ISSUE. *555 in the first taker, by implication from words devising the property over in case he die without issue, although the prior devise was expressly for life ; the intention of the testator being manifest, that the estate should not go over to the next devisee until the whole line of issue was extinct. And it is observable that this construction prevailed in a case, where the words in question were accompanied by expressions which might, if the court had been particularly anxious to escape from the rule, have afforded a plausible ground of dereliction. The case here referred to is Machell v. Weeding (c), where the tes- EXDFGSS GS— tator gave real and personal * estate to his wife for *555 tate for life life, and after her decease to his son J. for his life ; enlarged to ' . 7 . 7 .7 *" estate tail, but if his son should die without issue, not leaving any chil- dren, then his estates to be sold, and the money divided among his other children. It was contended that the words " not leaving any children" were explanatory of the preceding words "die with- out issue," and, consequently, that they did not make J. tenant in tail ; but Sir L. Shadwell, V.-C, considered that the words in question were included in the previous words ; a dying without leaving a child being one mode of dying without issue ; and he observed, that it was perfectly manifest that the testator did not intend the estate to go over so long as any issue of the first taker were in existence. " And I con- sider it," he said, " to be a settled point, that, whether an estate be given in fee, or for life, or generally, without any particular limit as to its duration, if it be followed bj' a devise over in case of the devisee dying without issue, the devisee will take an estate tail." It is to be observed, that where the devise over is to take effect on the event of the prior devisee dying without issue living atthe death, it has no effect in enlarging a prior estate for life to an estate tail {d) ; as the event described is not that by which an estate tail is necessarily extinguished, for such an estate determines on the failure of issue at any time. The only question, in such a case, would be, whether ^ . , , , 1 . ,,,.,.. ... Estate tail the words would raise an estate by implication in the issue not implied living at the death. Lord Hardwicke suggested a point of [.efen-hi'"'to this nature in LethieuUier v. Tracy (e), but the case did not issue at the require its determination. It is clear that, where the estate ''^°'*' previously devised is in fee, no such implication arises ; but this is not quite conclusive, inasmuch as the motive to imply an estate tail in such cases is much less cogent, since the alternative construction gives the prior devisee an estate in fee-simple in the event of his leaving issue ; whereby he is enabled to make a provision for such issue, if he leaves any : so that the scheme of disposition which is thus imputed to the testator is reasonable, and wholly free from the inconvenience and objection which attach to a similar construction where the devise is for (c) 8 Sim. 4. {d) See LethieuUier v. Tracy, 3 Atk. 774, 793. [See also 8 H. L. Ca. 593 ; L. E. 3 H. L. 132, 134, and {cmira) ib. 138.J (e) 3 Atk. 796. 667 *657 ESTATES ARISING BY IMPLICATION. life onlj', in which the effect of rejecting the implication is, that, in the event of the first taker leaving issue, the property is undisposed of, as it cannot go to either himself, his issue, or the ulterior devisee. *556 * And it is to be observed, that where the person, on whose general failure of issue a devise is expressly made expectant, ' person whose ^^ *^® ^®^'" ^^ ^^^ *^^ ^^^ testator, he becomes, by the applica- issue is re- tion of the rule under consideration, tenant in tail by impli- heiratiawof cation, in precisely the same manner as if there had been a testator. prior dcvise to him and his heirs in the will (/). [But it is not sufficient that the words used by the testator show that he contemplated the determination of the devisee's estate upon a general failure of issue, unless an actual devise over, either express or implied, to take effect in that event, be found in the will. Thus, in Doe d. Cape t'. Walker (g), where the testator in liis will said, " If my son W. (who was the testator's heir at law) should die, and having no heirs lawfully begotten, and my freehold messuage should fall by descent unto my granddaughter M.," and then directed his granddaughter to pay cer- tain legacies " within twelve months after she came into possession of the estate," the court held that there was no gift to the granddaugh- ter, and therefore that W.'s estate was not cut down to an estate tail ; and Newton v. Barnardine (A), where the words, "if K. die before he hath an J' issue of his bodj', so that the lands do descend to Gr.," were held to be a good gift by implication to G., and to raise an estate tail in E., was distinguished on the ground that, in the circumstances con- templated by the testator, G. was not heir of E., and " descend" was not used in its ordinary sense ; and they laid stress on the words ' ' so that," as denoting the consequence of an estate tail in E.] If, however, the person, in default of whose issue the estate is given Where he is ^"^^^ i"^^' *^^ person to whom it is so given), be not the heir neither heir at law of the testator, and if the former take no prior estate Fs'eefno'iin-^' under the will susceptible of enlargement or modification plication. fj-gm these words, an estate will not accrue to him by impli- cation ; and, consequently, the devise, to take effect on the contingency in question, is void for remoteness, as an executory devise limited to arise after an indefinite failure of issue (i). In Gardner v. Sheldon (k) (which is a leading authoritj' on this point), A., having a son and two daughters, devised in the fol- lowing words: "If it shall happen my son B. and my two *557 * daughters die without issue of their bodies lawfully' begotten, then all my lands shall remain to my nephew D. and his heirs." It was held, 1st, that no express estate was given to the children ; and, 2dly, that they took no estate by implication, because, then, it must be [(/) Goodriffht «. Goodridge, Willes, 369, 7 Mod. 453 ; Daintry v. Daintry, 6 T. R. 307. (q) 2 M. & Gr. 113. And see Scrape i). Rhodes, Com. Eep. 542. Oi) Moore, 127, Owen, 29.] (i) Ante, p. 254. \h) Vaugh. 259, 1 Eq. Ca. Ab. 197, pi. 6, 1 Freem. 11. 568 FROM GIFT OVEE — ISSUE. *558 either a joint estate for life, with several inheritances in tail, or several estates tail in succession, one after another. The latter it could not be, because it was uncertain which should take first ; nor the former, be- cause the heir at law could not be disinherited without a necessary implication, which in this case there was not, for it was only a desig- nation and appointment when the land should come to the nephew, as if he had devised thus : " I leave my land to descend, or give it, to my son and his heirs, till he and my two daughters die without issue, or so long as any heirs of the body of him and my two daughters shall be living," and then to his nephew (I). This doctrine, however, has sometimes been considered as shaken by two modern decisions. The first is Tenny d. Agar u. Tenny». Agar (m), where a testator devised certain lands to his only Agar, son A. and his heirs, upon condition that he paid to the testator's daughter B. 121. a year until twenty-one, and after that age to pay her 300Z. for her portion ; and, in default of payment, that she should enter and hold the lands to her and her heirs forever ; and in case his (the testator's) said son and daughter happen to die " without having (n) any children issue lawfully begotten or to be begotten," then he devised the lands to C. in fee. The son entered, and performed the condition. He afterwards suffered a recovery, declaring the uses to himself in fee. The son and daughter both died without issue, the former having de- vised the property. Against his devisees the heir at law of C. the remainder-man brought an action of ejectment, contending that the son and daughter took respectively an estate in fee, subject to an executory devise on their dying " without leaving any child or issue" at their decease (which, of course, would not have been affected bj^ the re- covery), and not estates tail. But the court held that nothing could be clearer than that the testator intended that C, the devisee in re- mainder, should not take until the extinction of the lines of issue of both his son and daughter ; and that to effectuate this intention the true construction was, that *A. should take an estate tail *558 only, with remainder in tail hy implication to B., with remainder in fee to C. The other seemingly opposing case is Eomilly v. James (o), where a testator devised to A., his brother, all his real estate, subject Romiiiy «. to the devises thereinafter expressed. He then devised to James, his brother's son, B., all his estate called M., to hold to him and his heirs forever ; and the testator afterwards provided, that in case his brother and his son should happen to die., having no issue of either of their bodies, then he devised all his real estate to his nephew J. and his heirs. (I) They also held, that this would be a good executory devise to the nephew; but it is clear that such a devise would be void for remoteness. (m) 12 East, 252. (n) From other parts of the case it seems the word was "leaving;" but, the subject being real estate, the variation is immaterial. (o) 6 Taunt. 263, 1 Marsh. 692. 569 t^SSG ESTATES ARISING BY IMPLICATION B. died without having had issue, and A. died without leaving issue. It was contended here, as in Tenny v. Agar, that B. took a fee, subject to an executory devise in the event of himself and his father both dying without leaving issue at their respective, decease. But the court held that B. was tenant in tail. "The will" (said Gibbs, C. J.) "gives the fee to A. in all which is not afterwards disposed of; the subsequent clause removes that estate in the premises before given to A., and gives a similar clear estate in fee in the premises to B., divesting the estate of the father (p) ; but if A. and B. die without having issue, then the estate is given over. This plainly cuts down his (i.e. B.'s) estate to an estate tail, and doing so, it leaves something behind which A. maj' take as part of the real estate of the testator ; but the same_ clause cuts down also the preceding estate in fee given to A. to an estate tail. B., therefore, takes an estate tail, with remainder in tail to his father, remainder in fee to J." It is observable that, in Tenny v. Agar, the only material question was, whether the woi-ds, "leaving any child or issue,'' im- npon Tenny ported an indefinite failure of issue (q) ; for the affirmative V- Agar; of that proposition being established, it was unnecessary to inquire whether the estate of the first taker was cut down to an estate tail, with remainder in tail by implication to the other person on failure of whose issue it was given over ; or whether the first taker had a fee, subject to an executory devise to arise on these events ; for, in the former case, the recovery suffered by the first devise,e in tail had acquired the fee-simple ; and in the latter, the devise over was void for remote- ness : so that the title derived from the first devisee qudcunque via was good. The opinion of the court, therefore, upon the question, whether an estate tail arose by implication, may be considered as extra- *559 judicial. It is * observable, too, that the words referring to the . ■'.:. failure of issue may have been intended to cut down the fee- simple, . Busit, 2 D. M. & G. 812: bvLord Romilly, Neighbour B. Thurlow, 28 Beav. 33. . ^ d (g) Dowliug V. Dowling; L. E. 1 Ch. 615.. (ft) Re Coleman and Jarrom, 4 Ch. D. 165.] 575 *565 EEStTLTING TEUST TO THE HEIR. *565 * CHAPTER XVIII. RESULTING TRUST TO THE HEIR. I. Resulting Trust to the Heir in Real Estate not beneficially disposed of. II. Effect where particular Estates are void in their Creation. I. If a will fails to make an effectual and complete disposition of the Effect when wliole of the testator's real and personal estate, of course ■will leaves property par- tially undis- posed of. Trust results to the heir, when. the undisposed-of interest, whether legal or equitable, de- volves to the person or persons on whom the law, in the absence of disposition, casts that species of propertj-. It is clear, therefore, that where real estate is devised in fee, upon trust for a person incapable of taking, or who is not sufficiently defined, or who dies in the testator's lifetime, or who disclaims the estate, the beneficial interest in the estate so devised results to the heir at law (a) . On the same principle, where lands are devised upon trust foi: par- ticular purposes, as for paj'ment of debts, or with a direction to paj- the rents to A. for life, and no further trust is declared, all the unexhausted beneficial interest results to the heir, as real estate undisposed of (i).^ (n) Hartop's case, 1 Leon. 253, Cro. El. 243; and other cases infra. [As to trusts for un- defined objects, see also ante, pp. 384 et seq.] In the case of the legal estate so circumstanced, the lands descend to the heir charged with the trust. (4) Culpepper v. Aston, 2 Ch. Ca. 116, 223; Roper v. Eatcliffe, 9 Mod. 171, 2 Eq. Ca. Ab. 508. In both the above propositions, however, it is assumed that the subject of disposition is the testator's general or residuary real estate, or that the will does not contain a residuary devise, the effect of which to pass the undisposed-of interest in particular lands is considered in Ch. XX. 1 If real estate be devised upon trust to sell for a particular purpose, and that purpose either wholly fails, or does not exhaust the proceeds, tlie part that remains unapplied, whether the estate has been actually sold or not, will result to the testator's heir, and not to his next of kin. Starkey v. IBrooks, 1 P. Wms. 390; Randall v. Bookcv, Tree. Ch. 162; Stonehouse v. Evelyn, 3 P. Wnis. 252; Robinson v. Taylor, 2 Bro. C. C. 589; Cruse V. Barley, 3 P.'Wms. 20; Watson v. Hayes, 5 My. & Or. 125; Davenport v. Coltman, 12 Sim. 610; Burnett v. Foster, 7 Beav. 540; Marriott v. Turner. 20 Beav. 557; Ex parte Pring, 4 Y. & Coll. 607 ; Eyre ii. Marsden, 2 Keen, 564; Wright v. Wright, 16 Ves. 188 ; Hooper v. Goodwin, 18 Ves. 156; Spink V. Lewjs, 3 Bro. C. C. 355 ; Chitty v. Parker, 4 Bro. C. C. 411 ; Lewin, Trusts (5th Eng. ed.), 124, and other cases in note (rr). See also Hawlevii. James, 7 Paifje, 213 ; S. C. 5 Paige, 318; \Vood V. Cone, 7 Paige, 471; Wright v. Methodist Ep. Church, 1 Hoff. 203 ; Bogert V. Hertell, 4 Hill, 492; Craig «. Beattv. 11 S. C. 375, 380; Estate of Tilghman; 5 Whart. 44; Snowhill v. Snowhill, 1 Green, Ch. 30; Hewitt v. Wright, 1 Brown, C. C. (Perkins) 83, 90 ; Robinson i-. Taylor, 2 Brown, C. C. (Perkins) 589, 535; Wheldale e. Par- tridge, 5 Ves. (Sumner) 397; Chambers v. Brailsford, 18 Ves. (Sumner) 368. And the whole or surplus will result in this manner, though the proceeds of the realty be blended with the personal estate in the formation of one common fund. Ackroyd v. Smithson, 1 Bro. C. C. 503 ; Jessopp v. Watson, 1 My. 676 RESULTING TRUST TO THE HEIR. *565 This doctrine is so well settled that if the character of trustee be plainly and unequivocally affixed to the devisee, no ques- Question tion can at this day be raised respecting its application ; ^ whether but the diffleulty in these cases generalh' is, to determine beneficially, whether it is intended that the interest in the land, ultra the °'' ""'• & K. 665 ; Salt r. Chattaway, 3 Beav. 576. And even an express declaration that the pro- ceeds of the sale shall be considered as part of the testator's personal estate will not pre- vent the operittioii of the rule. Collins v. Wakeman, 2 Ves. Jr. 68-3; Lewin Trusts (5th Eng. ed. ), 121. In a late case, where the testator even said, ''Nothing shall result to the heir at law," it was held that neverthe- less a bequest to the next of kin was not implied, but that the heir at law must take in spite of the intention ' to the contrarv. Lewin Trusts (5th Eng. ed.), 122; Fitch "«. Weber, 6 Hare, liS. 1 A trust results by operation of law where the intention not to benefit the devisee or leg- atee is expressed upon the instrument itself ; as if the devise or bequest be to a person " upon trust," and no trust declared. Lord Eldon in Dawson v. Clarke, 18 Ves. 254; Southouse V. Bate, 2 Ves. & B. 396; Morice f. Durham, 10 Ves. 537; WooUett v. Harris, 5 Madd. 452; Pratt v. Sladden, 14 Ves. 198; Dunnage «. White, 1 Jac. & VV. 583 ; Goodere V. Llovd, 3 Sim. 538 ; Pentold v. Bouoh, 4 Hare, 271: Gloucester B. Wood, 3 Hare, 131; S. C. 1 H. L. Cas. 272 ; Longley v. Long- lev, L. R. 13 Eq. 137; Att.-Gen. «. Wind- sor, 24 Beav. 679; S. C. 8 H. L. Cas. 369 ; Lewin, Trusts (5th Eng. ed.) 119. Or where the bequest is to a person named as executor " to enable him to carry into effect the trusts of the will," and no trust is de- clared. Barrs ». Fewkes, 2 Hem. & M. 60. Or where the devise or bequest is upon cer- tain trusts that are too vague to be executed. Fowler v. Garlike, 1 R. & Mv. 232; Morice V. Durham, 9 Ves. 399; S. C. 10 Ves. 522; Stubbs V. Sargon, 2 K-;-en, 255; S. C. 3 JVIylne & C. 507 ; Leslie v. Devonshire, 2 Bro. C. C. 187; Vezej' v. Jamson, 1 Sim. & S. 69; Williams v. Kershaw, 5 CI. & Fin. Ill; Lewin, Trusts (5th Eng. ed.), 119; Ellis V. Selby, 7 Sim. 352; S. C. 1 Mylne & G. 286 ; James V. Allen, 3 Meriv. 17; Sturtevant v. Jaques, 14 Allen, 526. Or where the gift is upon trusts to be thereafter declared, and no declaration is ever made. Emblyn v. Free- man, Pr. Ch. 541 ; London v. Ganvay, 2 Vern. 671; Collins «. Wakeman, 2 Ves. Jr. 683; Fitch ». Weber, 6 Hare, 145 ; Lewin, Trusts (5th Eng. ed.), 119; Brookman v. Hales, 2 Ves. & B. 45; Sidney ». Shellev, 19 Ves. 352; Taylor v. Haggarth, 14 Sim. 8 ; Flint v. Warren, 16 Sim. 124; Sturtevant ». Jaques, 14 Allen, 526. Or upon trusts that are void for unlawfulness. Carrick v. Errington, 2 P. Wms. 361 ; Arnold v. Chapman, 1 Ves. Sen. 108; Tregonwell v. Sydenham, 3 Daw, 194; Jones V. Slitchell, 1 Sim. & S. 290; Gibbs v. Eumsey, 2 Ves. & B. 294; Page v. Leaping- well, 18 Ves. 463 ; Pilkington v, Boughey, 12 Sim. 114 ; Lewin, Trusts (5th Eng. ed.), 120; Russell v. Jackson, 10 Hare, 204; Cook V. Stationers' Co., 3 Mv. & K. 262; Stevens V. Ely, 1 Dev. Eq. 493; Dashiel v. Att.- Gen., 6 Ilarr. & J. 1; Leonard v. People, 6 Ired. Eq. 137. Or upon trusts that fail by lapse, &c. Ackrovd v. Smithson. 1 Bro. C. C. 503 ; Spink ». Lewis, 3 Bro. C. C. 355 ; Wil- liams u. Coade, 10 Ves. 500 ; Digby v. Legard, cited Cruse v. Barley, 3 P. Wms. 22, note by Cox; Hutcheson v. Hammond, 3 Bro. C. C. 128; Davenport ». Coltman, 12 Sim. 610; Muckleston i'. Brown, 6 Ves. 63; Hawley v. James, 5 Paige, 318. For in these and the like cases, the trustee can have no pretence for claiming the beneficial ownership, when, by the express language of the instrument, the whole property has been impressed with a trust. Lewin, Trusts (5th Eng. ed.), 120. When property has been devised to a trustee for a specific purpose only, and the trust has failed by reason of the extinction of the cestui (^ue trust, as a corporation, the trustee holds the property, after such failure,, not for his own benefit, but for the devisor's heirs at law, as a resulting trust, and is answerable to them for it. Metcalf, J., in Easterbrooks v. Til- linghast, 5 Gray, 17, 21. Although the intro- duction of the words "upon trust" maybe strong evidence of the intention not to confer on the devisee a beneficial interest (see Hill V. London, 1 Atk. 620 ; Woollett v. Harris, 5 Madd. 452; Stm-tevant v. Jaques, 14 Allen, 526), yet that construction may be negatived by the context, or by the general scope- of the instrument. Dawson v, Clarke, 15 Ves. 409; S. C. 18 Ves. 247, 257 ; Ooningliam v. Mel- lish, Pr. Ch. 31 ; Cook v. Hutchinson, I'Keen, 42; Hughes v. Evans, 13 Sim. 496 ; Dillaye V. Greenough, 45 N. Y. 438. And in like manner the devisee may be designated as "trustee;" but the expression maybe ex- plained away; as, for instance, if the term be used with reference to one only of two funds, the devisee may still establish his title to the beneficial interest in the other. Batteley v. Windle, 2 Bro. C. C. 31; Pratt v. Sladden, 14 Ves. 193; Brigham v. Stewart, 13 Minn. 106; Lewin, Trusts (5th Eng.ed.), 120; Pratt V. Beaupre, 13 Minn. 187;' Dillave v. Green- ough, 45 N. Y. 438. On the other"hand, there may be a total absence of the word "trust," or "trustee," throughout the whole will, and yet the court may collect an intention that the devisee or legatee should be a trustee, as where there is a direction that the devisee or legatee shall be allowed all his costs and ex- penses, which would be without meaning if he took beneficiallv. Lewin, Trusts (5th Eng. ed.), 120; Saltmarsh v. Barrett, 29 Beav. 474; S. C. 3 De G., F. & J. 279. VOL. t 37 577 *566 RESULTING TETJST TO THE HEIK. puirpose to which it is devoted, shall belong to the devisees in a fiduciary character, or for their own benefit.^ The distinction between the two classes of cases was, in King v. ^ Denison(c), thus stated bj- Lord Eldon: " If I give to A. statement of arid his heirs all my real estate, charged with my the principle. *5(36 debts, that is a * devise for a particular purpose, but not for that purpose onlj- ; if the devise is upon trust to pay my debts, that is a devise for a particular purpose, and nothing rbore. And the effect of these two modes admits just this difference : the former is a devise of an estate of inheritance, for the purpose of giving the devisee the beneficial interest, subject to a particular pur- pose ; the latter is a devise /or a particular purpose, with no intention to give him anj' beneficial interest. Where, therefore, the whole legal estate is given for the purpose of satisfying trusts expressed, and those trusts do not, in their execution, exhaust the whole, so much of the beneficial interest as is not exhausted belongs to the heir.^ But where the whole legal interest is given for a particular purpose, with an intention to give to the devisee the beneficial interest, if the whole is not exhausted by that particular purpose, the surplus goes to the devisee, as it is intended to be given to him." ' In illustration of this subject, it is proposed to state a few of the leading cases, showing, first, where a trust has been held to result ; and, secondly, where not. , In Wj'ch V. Packington (rf), a testator, after appointing his wife S. (c) 1 V. & B. 272. {d) 3 B. P. C. Toml. 44. [See also Barrs o. Fewkes, 2 H. & M. 60.] 1 This intention is to be gathered from Pr. Ch. 162; Hopkins v. Hopkins, Cas. t. the general purpose and scope of the instru- Talb. 44; Starkey v. Brooks, 1 P. Wms. 390; ment under which the question arises. Lord overruling North v. Crompton, 1 Ch. Cas. 196; Hardwicke in Hill v. Bishop of London, 1 Atk. Salter ». Cavanagh, 1 Du. & Wal. 668. But 620; Sir W. Grant in Walton v. Walton, 14 joined to other cn-cumstances in favor of the ■yfes. 322 ; Lord Cowper in Starkey v. Brooks, devisee, it will not be without its effect. Eog- 1. P. Wms. 391; Lord Eldon in King ». ers «. Rogers, 3 P. Wms. 193; S. C. Sel. Ch. Denison, 1 Ves. & B. 279 ; Ellis v. Selbv, 1 Cas. 81 ; Dorksey v. Dorksev, 2 Eq. Cas. Ab. Mylne&C. 298; Lewin, Trusts (SthEng.ed.), 506; Mallahar «. Mallahar, fcas. t. Talb. 78. 118. The heir will not be excluded from a ^ If, upon a devise (Sherrard i;. Harbo- resulting trust upon bare conjecture. Halli- rough, Amb. 165; Hobart ». Suffolk, 2 Vern. day V. Hudson, 3 Ves. 211; Kollett»- Kellett, 644 ; Nash v. Smith, 17 Ves. 29; Davidson 3 Dow, 248; Amphlett v. Parlie, 2 E. & My. v. Toby, 2 Bro. C. C. 203; Kericke v. Brans- 227; Phillips v. Phillips, 1 Mvlne & K. 661; bey, 2Eq. Cas. Ab. 508; Levet v. Needham, Salter ». Cavanagh, 1 Dru.' & Wal. 668; 2 Hern. 138; Halliday ». Hudson, 3 Ves. 210; Hennersholz's Estate, 16 Penn. St. 435. And Kellett v. Kellett, 3 Dow, 248) or bequest, there must be positive evidence of a benefit (Robinson v. Taylor, 2 Bro. C. C. 589 ; Mapp intended to the devisee, and not merely neg- v. Ellcock, 2 Phill. 793 ; S. C. 3 H. L. Cas. 492 ; ative evidence that no benefit was intended Read «. Stedman, 26 Beav. 495 ; Lewin, Trusts to the heir; for the trust results to the real (5thEng. ed.), 117), a trust is declared of part representative, not on the ground of intention, of an estate, and nothing is said as to the res- but because the ancestor has declared no in- idue, there clearly the creation of the par- tention. See Lewin, Trusts (5th Eng. ed.), tial trust is regarded as the sole object in 118, 119; Hopkins v. Hopkins, Cas. t. Talb. view, and the equitable interest undisposed 44; Tregonwell V. Sydenham, 2 Dow, 194; of by the settlor will result to him or his Lloyd V. SpillettL2 Atk. 151; Habergham i). representative. Lewin, Trusts (5th Eng. ed.) Vincent, 2 Ves, Jr. 225. Thus, a legacy to 117, 118; Aston v. Wood, L. R. 6 Eq. 419; the heir will not prevent a trust fund result- Jones ». Bradley, L. R. 3 Eq. 635. ing. Bandall ». Bookey, 2 Vern. 425; S. C. 578 EESULTING TEUST TO THE HBIE. *567 sole executrix of his will, devised to his said dear wife, his Qj^^gg ^^ j.^_ ' executrix, a rent-charge of 200^. per annum, out of certain suiting trusts, lands, upon trust that she, her executors, &c., should be supplied witli moneys out of the rents and profits for the discharging his debts; legacies, and paj'ments ; to which end, he gave and bequeathed to her a lease for thirteen years of the said rent-charge, to comthence six months after his decease. And the testator devised to his wife certain lands for life, in augmentation of her jointure ; and the residue of his lands to his daughter (who was heir at law) in tail. The personal estate being found sufficient to satisfy the debts and legacies, it was not necessary to resort to this fund, the House of Lords, affirming a decree of the Court of Exchequer, held that the rent-charge resulted to tlie heir. So, in a case which arose on the wiU of Serjeant Maj-nard (e), who devised his lands to three persons, to the use of them and their heirs, upon the trusts after mentioned ; and then directed the trustees, upon the death of the countess, his wife, to convey the estate to certain persons for life ; but without disposing of the remainder in fee. It was contended that the devise, being * to them and *567 their heirs, upon the trusts after mentioned, imported that they should be trustees only for those purposes ; and when those estates were spent, the land was to remain to them to their own use. But the L. C. held, that the remainder in fee resulted to the heir, adverting to the circumstance that the devise was to three persons, and one of them no relation to the testator. i [And in Watson?). Ha3-es (/), the testator devised all his real estates to trustees ' ' in trust to and for the purposes hereinafter mentioned ; " lie then desired his estates to be sold, and out of the produce an annuity for life and a sum of money to be paid to his natural daughter, and also an annuity of 400/. to his wife for her life, and the residue of the income to be applied for the maintenance of his children till tliey attained twenty-one, "when it is mj' will that they shall respectively receive the principal, or one fifth part of such sum as may remain, after first reserving a sufficient capital, the interest arising from which shall' be sufficient to pay the above annuity of 400/. to m}- said wife and my legacj' to my natural child." The testator left five legitimate children. It was held that there was no gift of the monej's to be set apart to produce tlie annuity of 400/., but that those moneys resulted to the heir at law as part of the real estate undisposed of.] It is clear that where lands are devised upon trust for sale, the re- sulting trust in favor of the heir is not repelled by a mere bequest to him of a sum of money paj-able out of the proceeds. Thus (jr) , where a testator devised lands to his executors and their (e) Hobart v. Countess of Suffolk, 2 Vera. 644, 1 Eq. Ab. 272, pi. 7; [see also Collis «. Robins, 1 De G. & S. 131 ; VPills v. Wills, 1 D. & War. 439 : Bird v. Harris, L. R. 9 Eq. 204. (/) 5 My. & Cr. 125.] Q) Starlsey v. Brooks, 1 P. W. 390; see Randall v. Bookey, 2 Vem. 425. 579 *568 RESULTING TRUST TO THE HEIR. Legacy to heirs, in trust, to be sold by them, and the survivor of not excludr them, for the best price, and with the money to pay his b™. debts, legacies, and funeral, and among the legacies were two to his coheirs : it was contended, on the authorit}' of North v. Crompton (A), that, there being legacies to the heirs, and none to the executors, the latter must take for their own benefit ; but Lord Cowper, C, held, that the trust resulted to the coheirs, adverting to the direction to the executors to sell for the best price, which need not have been inserted if they were intended to be owners (i) ; and also the devising the estate to the survivor, which, he observed, was a further argument of its being rather a trust than an ownership. Eesuitiiiff *568 * Indeed, where the property is devised in trust to devised to be be sold, the point is so clear against the trustees, that '"'''• a claim by them is seldom advanced ; but the contest in such cases generally lies between the heir at law and the residuary legatee, or next of kin, whose respective claims are discussed in the next chapter. So, where Qc) a testator devised his manors, advowsons, &c., to trustees in trust, to pay his son 1,000Z. a year for his life, and the rest of the profits to be laid out in land, to be settled to certain uses ; Lord Hardwicke held, that the right of presentation arising from the advow- sons during the son's life was a fruit undisposed of, and devolved to the heir ; no other profits being given than such as might be accumu- lated ; though, he said, if the testator had devised all the surplus rents and profits, it would have carried the right of presentation (Z). As to chattel And here it might be observed, that where the portion of vohTnK upon ^^^^ estate left undisposed of is a chattel interest, it devolves tlie heir. upon the heir as personalty, and is transmissible to his per- sonal representative (?n) . Cases in We now proceed to the cases in which a trust has been ^'""^'h'^lT' ^^^^ not to result, there being an apparent intention to give to take bene- the devisee as well the beneficial interest as the legal ""^"y- estate. Oi) 1 Ch. Ca. 196 ; see also Halliday ». Hudson, 3 Ves. 210. \i) Why not, as theve was a trust for creditors, which might have absorbed all ? ?ft) Slierrard v. Lord Harborough, Amb. 165; see also Kcllett r. Kellett, 3 Dow, 248. \l) With this dictum agrees Earl of Albemarle v. Rogers, 2 Ves. Jr. 477, 7 B. P. C. Tom). 522, where a testator devised all his manors, messuages, lands and hereditaments to A. for eleven years from his death ; and'from the end, expiration, or sooner determination of ti" e paid term, and in the mean time subject thereto, to B. and his issue in strict settlement. The term was declared to be bequeathed to A., upon trust, to receive the rents, issues and pro( ts of the premises, and thereout to pay certain charges therein mentioned, ^jaymry the. overplus (ijr' such moneys to the testntor's daur/hter E. During the eleven years an avoidance occurred m an advowson fonning part of the property, and the next presentation was claimed by B., as the devisee of the estates subject to the term, the trusts of which, it was said, did not comprise aij interest of this description ; and also by E., either as the cestui que trust of the residuary rents, issues, and profits, during the term, or as heir at law; and it was held to belong to her in the former character, the entire beneficial interest during the term, not absorbed bv the charges, being given to her. [See also Johnstone ». Baber, C D. M. & G. 439 : But "see Martin ». Martin, 12 Sim. 579.] (m) Levet v. Needham, 2 Vern. 138; see also Wych v. Packington, 3 B. P. C. Tonil. 44, stated'ante, p. 566; [Hewitt t'. Wright, 1 B. 0.0.90; Sewollr. Denny 10 Beav. 316: Burley e. Evelyn 16 Siui. 290; Whitehead];. Bennett, 18 Jur. 140.] 580 EBStTLTING TRUST TO THE HEIR. *569 In Hill V. Bishop of London (n) a testator devised his perpetual advowson of B., in the count}' of H., to his honored mother- Effect of di- in-law G. S., willing and desiring her to sell and dispose Jo'^certafn '^" thereof to certain colleges. Upon the refusal of one, the persons. offer was to be made to another, in a prescribed order. Item, he gave to his said mother-in-law his freehold lands in the parish of O., and to her heirs and assigns forever. It was held, that the * beneficial interest in the advowson included in the first devise *569 did not result to the heir. "The general rule," said Lord Hardwicke, " that, where lands are devised for a particular purpose, what remains after that purpose is satisfied results, admits of several exceptions. If J. S. devise lands to H., to sell them to B. for the particular advantage of B. , that advantage is the only purpose to be served, according to the intent of the testator, and to be satisfied by the mere act of selling, let the money go where it will ; yet there is no precedent for a resulting trust in such a case. Nor is there any war- rant, from the words or intent of the testator, to say that this devise severs the beneficial interest : it is onl}' an injunction on the devisee to enjo}- the thing devised in a particular manner. If A. devises lands to J. S., to sell for the best price to B., or to lease for three years at such a fine, there is no resulting trust." There were in this case, he observed, two objects of the testator's benevolence, G. S. and the colleges. He also adverted to the circumstance that the word trust Word was not made use of; but this, though not immaterial, is necessary in' by no means conclusive ; for a trust may be created with- creating one. out that word, if such an intention can be collected from the whole will (o). Lord Hardwicke's statement of the general rule may seem to clash with Lord Eldon's, before cited. He appears to have con- . founded the distinction, so clearly marked by Lord Eldon, between a between a devise for (p), and a devise subject to, a partic- ^^"a^I-^",', ular purpose ; but, as the case before Lord Hardwicke a particular ' seems to belong to the latter class, it is in accordance with P""!"*^^- that distinction. The frame of the devise and the context (for it was immediately followed by a devise, clearly beneficial to the same person) certainly favored the construction adopted. The case suggested by his Lordship, of a devise to A. to sell for the best price to B., per- haps, is more open to doubt. He admitted, however, that, under a (re) lAtk.8]8. (o) Halliday w. Hudson, 3 Ves. 210; and see King D. Denison, 1 Ves. & B. 273; [Salt- marsli v. Barrett, 29 Beav. 474. 3 D. F. & ,T. 279 (on the word "charged"); Barrs v. Fewkes, 2 H. & M. 60 (" to enable "); Bird v. Harris, L. R. 9 Eq. 204 ("in consideration "). And a trust will not be created by the word "trust," it an intention not to do so appears by the whole will, Hughes v. Evans and Williams 0. Roberts, both stated post, pp. 571, 572j Clarke v. Hilton, L. R. 2 Eq. 810.] (p) See Abranis v. Winsliup, 3 Rass. 350, where the word "for" was read as "charged with." 581 *570 BEST7LTIN6 TRUST TO THE HEIR. devise of lands to be sold for paj-ment of debts, there was a clear resulting trust. lifFect of ex- The resulting trust for the heir in lands devised for a mfporting particular purpose is excluded, where the devise contains benefit to the expressions importing an intention, to confer on the devisee devisee. '■ * => a benefit. *570 *Thus {q), where a testator, having given 5Z. to his brother, (who was his heir,) made and constituted Ms dearly beloved wife his sole executrix and heiress of all Ms lands and real and personal estate, to sell and dispose thereof at pleasure, and to pay his debts and legacies, Lord King held, she was not, after payment of debts, a trustee for the heir. He said, that the devise that the wife should be sole heiress of the real estate, did, in every respect, place her in the stead „, of the heir, and not as a trustee for him ; that it was plainer Of expres- ' ' ^ sions of kind- by reason of the language of tenderness, his ' ' dearlj- be- "^^^' loved wife," which must have intended something beneficial to her, and not what would be a trouble only ; and what made it still stronger was, that the heir had a legacy. That neither of these two circumstances alone is sufficient, is quite clear. The former occurred in Wych v. Packington (r) , where the expression was " my dear wife," and yet the trust was held to result ; and the latter, in Randall v. Bookey («), where a legacy to the heir was decided not to rebut the inference of a resulting trust. Where tlie devisee is merely described bj^ the relationship, as "my Of describing cousin," "my brother," unaccompanied by any particular. devisee by expression of kindness, the argument is still less strong, the reiationsiiip. (designation being merely part of his description ; though certainlj'', in Coningham v. Mellish(<), the fact of the devisee being described as " my cousin," and that of his being as nearly related to the testator as the heir, seem to have formed the grounds of the determination. In the eases of that period, however, the doctrine of resulting trusts was not so invariably and steadily- maintained as it is now ; and many positions to be found in them are inconsistent with the rules at present established. Such a description of the devisee is certainly a circumstance to be attended to, and was so referred to by- Lord Eldon, in reference to Coningliam v. Mellish {li) ; but that it would now be allowed the weight which was given it in that case, is not probable.-' [Where the gift to the devisee was in the first instance expressly (?) Rogers «. Rogers, 3 P. W. 193, Cas. t. Talb. p. 530. ()■) Stated supra, p. 568. (s) 2 Vern. 425, 1 Eq. Ab. 272, pi. 4; [and see Hughes ». Evans, 13 Sim. 504.] (0 Pre. Ch. 31, 1 Eq. Ab. 273. pi. 8, 2 Vern. 247. (m) See King «. Denison, 1 V. & B. 274. [See also per Wood, V.-C, Barrs ». Fewkes, 2 H. & M. 67. 1 But if from the whole will the inten- are unavailing. Kiugn. Mitchell, 8 Pet. 349; tion is apparent that the donee shall not take King v. Denison, 1 Yes. & B. 275. the beneficial interest, all such circumstances 582 KESTTLTING TETJST TO THE HEIE. *571 upon truat, and the trust afterwards declared did not absorb the whole property, yet, on the whole, the testator having described the devisee as his most dutiful and respectful nephew, though word * and having expressly declared that the heir should *571 "trust" take nothing except a provision made for him by the will, it was held that the devisee took beneficially subject to the trusts declared (a;).] ^ In Rogers v. Rogers, the purpose expressed, namely, the payment of debts and legacies, was not beneficial to the devisee ; and. As to the ex- therefore, unless she had taken the surplus, she would ''ogfof the" haA'e derived no benefit from the devise. It has been devise being truly said that ' ' where the purpose expressed is something Jjot to'the "^ in favor of the party to whom the bequest is made, the pre- devisee, sumption is rather stronger that the benefit specified is the only benefit which he is intended to derive from the bequest" (y). In Dawson v. Clarke (z), a testator gave to his friends A. and B. all his real and personal estate, to hold to them, their heirs, executors, administrators, and assigns, upon trust in thci first place to pay and charged and chargeable with all' his just debts and funeral expenses and the legacies thereinafter bequeathed. The testator, after bequeath- ing several legacies, appointed A. and B. executors. Lord Eldon, — " The question is, whether, upon the whole will, this is to be taken as a devise and bequest to these executors with reference to their oflice, upon a trust to pay ; or as giving them the absolute property subject only to a charge ; and I think the latter was the intention." ^ Of this case Lord Langdale, M. R. (a), has observed that Lord Eldon gave eflTect to the words " charged and chargeable" (which Lord Lang- he had placed in opposition to the words "upon trust"), on'oawsOT* on some gi-ound which does not appear in the report. It Clarke. (x) Hughes V. Evans, 13 Sim. 496.] ly) Per Sir W. Grant, in Walton v. Walton, 14 Ves. 322. (s) 15 Ves. 409, 18 Ves. 247. This case was decided at the Kolls, in reference exclusively to the personal estate. [See also Clarke i;. Hilton, L. E. 2 Eq. 810. Executors by their mere appointment were fnmieriy entitled at law to the residue of personaltv not expressly disposed of: and equity followed the law unless the next of kin could show from the will an intention that the executors should be trustees. This burden of proof was shifted by 1 Will. 4; c 40j Juler v. Juler, 29 Beav. 34; Travers ». Travers, L. R. 14 Eq. 27^; and the question now seldom arises; but it arose in Harrison u. Harrison, 2 H. & M. 237, and was there decided in favor of the executor. Whether executors claiming, not merely virtute qficii, but by express gift, were entitled for their own benefit, was before the act treated as a separate question depending on the general principles discussed in the text. Mapp ». Elcock, 2 Phil. 793, 3 H. L. Ca. 492 ; Re Henshaw, 34 L. J. Ch. 98 ; and (notwithstanding Love v. Gaze, 8 Beav. 472) it has been decided that this question is not affected by the act. Williams v. Arkle, L. R. 7 H. L. 606. See also Saltmarsh v. Barrett, 29 Beav. 474, 3 D. F. & J. 279. Of course the act is inapplicable to a gift to one of several executors. Clarke v. Hilton, L. R. 2 Eq. 810. By sect. 2 the act is not ,to apply as between the executor and the crown, where tiiere is no next of kin. Cradock v. Owen, 2 Sm. & Gif. 241; Powell v. Merrett, 1 Sm. & Gif. 381; Read v. Stedman, 26 Beav. 495; Dacre v. Patrickson, 1 Dr. & Sm. 182.] («) 1 Kee. 324. 1 See Gibbs v. Rumsey, 2 Ves. & B. 294 ; Southouse v. Bate, 2 Ves. & B. 396 ; Mullen v. Cawood V. Thompson, 1 Smale & G. 409; Bowman, 1 Coll. Ch. 197; Wood v. Cox,-l Lomax v. Ripley, 3 Smale & 6. 48 ; Ralston Keen, 317 ; S. C. 2 Mylne & C. 684 ; Downer »'. ». Telfair, 2 Dev. Eq. 255. Church, 44 N.Y. 647; Irvine^. Sullivan, L. R. 2 See King v. Denison, 1 Ves. & B. 260; 8 Eq. 673; Clarke v. Hilton, L. R. 2 Eq. 810. 583 *572 EESULTING TETJST TO THE HEIR. might be that he considered the last words in the will as explanatory of the first. A devise sub- '^^^ general doctrine was much discussed in King ject to certain *572 v. Denison (5), * where a testatrix devised her real annuities. ^gj^^^^ ^^ j^^^, pQugjjj jjj3^j,y j^^ ^jfg ^f ^ j^^ j^^^j ^^ her cousin Arabella J., and their heirs and assigns for ever; subject, nevertheless, to, and chargeable with, the paj-ment of the annuities therein- after mentioned ; and she bequeathed her personal estate to three other persons, subject to, and chargeable with, her debts and legacies ; and gave such three persons equal legacies. Lord Eldon held, that the devisees of the real estate were not trustees, after paying the annuities, for the heir iit law ; he thought the intention was (according to the dis- tinction stated by him, alreadj' quoted), that they should not take vaevelyfor the purpose of payinff those annuities, but beneficially, subject to them. The Court of K. B. had made a similar decision upon the same wilL(c). It happened in this case that one of the devisees was a married Circumstance ''voman, and the other an infant of fifteen : persons, there- of devisees fore', ill adapted to be trustees. But, though Lord Eldoa ried woman' admitted these were circumstances to be attended to(rf), and an infant, yet, he observed, that, if they were trustees upon the whole context, he could not say that they were not so on that ground ; and —and not upon the singularity that the testatrix had given to these Dffijresfvela- cousins in preference to nearer relations, a sister and aunt, tives. he said the answer was, she had made the disposition. Another circumstance in the case was, that the testatrix had used Of their be- the same expression, "subject and chargeable," in the be- of^h™per-^ quest of the personal estate to her executors, of which it sonal estate, was contended the.y were trustees, in consequence of having equal legacies given them ; but Lord Eldon observed, that, admitting this construction as to the personalty, which he thought doubtful upon the cases, it did not follow that the same words, in different parts of the will, applied to a different subject, were to receive the same con- struction. It was only the same as if she had said that the executors should not take the personalty beneficiallj', but had made no such declaration as to the real estate (e) . [Lastly, in "Williams v. Roberts (/) , where a testator gave all his real and personal estate to his wife, her executors and administrators, upon trust to pay to his daughter an annuity during the life of his wife, and upon further trust that she, the said executrix, at the time of her decease, should cause her executors, administrators, or assigns, to pay (6) 1 V. & B. 261. (c) Smitli d. Denison v. Kinp;, 16 East, 283; see also Wood ». Cox, 2 My. & Cr. 684, ante, p. 389; [Briffpts v. Pennv, 3 Mac. & G. 546.] (d) See Blinlthorn ii. Fenst, 2 Ves. 27. (e) But see Countess of Bristol v. Hungerford, 2 Vern. 645. I [(/) i Jur. N, S. 18, 27 L. J. Ch. 177-1 I 584 RESULTING TRUST TO THE HEIE. *573 or cause to be paid to certain * persons, should they survive *573 his wife, certain legacies, wliicli did not exliaust the beneficial interest ; it was held, notwithstanding the express words of trust, that the undisposed-of interest belonged to the testator's wife and execu- trix, "the will being inconsistent with the notion that she was not to Lave a beneficial interest in the propertj'."] It should be noticed that an exception to the doctrine of resulting trusts exists in regard to gifts to charitj- ; -^ the rule being, As to result- that, where lands, or the rents of lands, are given to chari- lafdsgfven table purposes, which at the time exhaust, or are represented to chanty. to exhaust, the whole rents, and those rents increase in amount, the excess arising from such augmentation shall be appropriated to charity, and not go, by waj- of resulting trust, to the heir at law (j %i • o of a sum of trustees should have received 17,.500Z., which they should cer"^nmr- ^PP'y *" ^'^ '^®®® following: viz. when they should have poses not ac- received 2,500Z., to lay out the same, with the interest, in faifure^of t'he some real estate in certain parishes, and settle the estate so pmposes. purchased on such person for life as, by virtue of his said will, should then be in possession of his estate at S., or in case, by suf- fering a common recoverj', that estate should be in other hands, then on such person as would, in case no recovery had been suffered, have been in possession of the same ; and so, from time to time, as soon as the further sum of 2,500Z. should be raised, until the whole *577 * 17,500Z. should be so raised, should lay out the same in lands as thereinbefore directed, to be settled on the several persons as should be, or should have been, in case no such common recovery had been suffered at each of the said times, in possession of his S. estate, with such remainder on each of the said settlements as might continue the said estates in the blood and name of the St. Barbes ; and, after the said 17,500Z. should be so raised, then to raise the further sum of 2,500/., to be laid out in some real estates in some or one of the parishes of D., E., &c. and to settle the said estate so purchased on such person for (a.) 3 Ch. D. 703. (J) Lomas ». Wright, 2 My. & K. 769.] ■ (c) 3 Dow, 194. 588 DEVISE AFTER TRUSTS WHICH FAIL. *578 life as, by virtue of that his will, should then be in possession of the estate of D. ; or, in case of suffering a common recovery or otherwise, his said estate should be in other hands, then on such person as would, in ease no recovery had been sufi'ered, have been in possession of tlie same b}' virtue of his will, with such remainder as might continue the same in the name and blood of the Sydenhams. And after the said two sums, amounting to 20,000^. and expenses, should be raised for the said uses, or determination of the said term of sixty years, then to the use of the testator's brother B. for life, with remainder to his eldest and other sons in tail male ; and, after such other remainder as he had limited with respect to the first part of his D. estate, remainder to J. the elder plaintiff, for life ; remainder to his first and other sons in tail male, with the ultimate remainder in fee to the testator's right heirs. The testator died, leaving A., his onlj^ son, and two daughters. A. died in 1799, leaving his grandson T. , the only son of one of his daughters, his heir at law. A., B. and several of the intermediate devisees (rf), having died without issue male, the plaintiff J. the elder, became entitled to an estate for life in possession in the property at C, and plaintiff J., the younger (his eldest son), to an estate in remainder therein. T. was tenant in tail of the S. estate ; and, as to the second part of the D. estate, the trusts of the term had not been executed. On a bill filed by J. and J. the younger to have the trusts of the term declared void as tending to a perpetuity, and that the residue should be as- Term for signed for their benefit, the Court of Exchequer declared ra.'smscer- ° ' ^ tarn moneys the trusts to be void, and the term to attend the inheritance, tor voia pur- But the House of Lords, on appeal, reversed the decree ; Eel^ong'to'llie declaring, first, that the trusts of the term were not void in l>eir. their creation, but became so in event, the trusts for raising the monej' being valid ; but that * of settling the lands to uses being *578 void as too remote, in consequence of its happening that the per- son then in possession, and to whom, therefore, an estate for life was to be limited with remainder to his issue, was one who was not in existence at the testator's death (e). Secondly' (and this is the point material to the present discussion) , that the trusts of the term resulted for the benefit of the heir at law of the testator (/) . The argument of Lord Eedesdale and Lord Eldon, upon which this part of their decision turned, was, that the land, not being given over until " from and after" the raising of the mone}', the intermediate in- terest was evidently not included in the devise, and, therefore, went to the heir. The interest given to the devisee was exclusive of, and with a deduction of, that sum. " The testator, then," observed Lord Eldon, " has said that the devisees shall not take it. The policy of the law {d) It is stated in the report that they died in the testator's lifetime, but this appears to be a mistal and it will then be land, and the gift is to be treated as a devise his absolutely. of land. Eosst'. Drake, 37 Penn. St. 373. A 2 Holland ». Craft, 3 Gray, 162, 180. conversion is not prevented from taking place The doctrine of conversion by a direction to by reason of the fact that the legal estate has sell real estate must be taken with the quail- not been given in trust to the person in whom tication that the change does not take place the povver of salo is vested, or by reason of until the period arrives or the event occurs the fact that there was no devise of the lands when the conversion ought to be made and that they passed by descent to the heirs Hence, where the direction is to sell real es-' of the testator; Fisherv. Banta, 66 N. Y. 468; tate after the death of the testator's widow,. Posti). Hover, 33 N.Y. 593; Bogart v. Her- and not before, the conversion is postponed tell, 4 Hill, 492. until the happening of that event; but when 696 A CONSTEUCTIVE CONVERSION. *586 and hereditaments (e), in a will sufficiently attested to pass real estate ; [and will not pass under -« general bequest purporting to include per- sonal estate only (/).] On the same principle, where, under the old law, a person entitled to the fee-simple, in possession or reversion, of lands to be purchased, devised them by a will executed before the actual conveyance, the lands subsequently purchased were bound in equity by the devise (g) . So, in the converse case of real estate, whether freehold or copyhold, being directed to be sold, and the proceeds bequeathed to A., who, after surviving the testator, happens to die before the sale,- the property devolves to his personal, not his real, representative, with all the inci- dental qualities of personal estate (h) . It is true that, on one occasion (i). Lord Loughborough doubted whether, in such cases, there was any equity between the General doc- real and personal representatives ; suggesting that they were ^ " Lol-d"'^'^ rather to take according to the state in which the property Lough- was found. But this solitary dictum has been completely ""^""^ ' oveiTuled by subsequent judges, who, following the earlier jjjg dictum cases, have confirmed the rule before stated (k). overruled. The doctrine, of course, applies where the ultimate destination * of the property is to be reached by sev- *o86 I'""*''^ f^™- f I ■' J version. era! gradations. Thus, land directed to be sold, and the proceeds to be invested in land, will, though neither conversion has been actuallj- effected, be regarded as real estate (l). [In order to work a constructive conversion, an actual sale or purchase either immediately or in future, and either absolutely or Noconver- contingently at a specified time, must be directed expressly sale intend-* or impliedly. A direction that real estate shall not be sold ed. but shall be considered as personal, or vice versa, is insufficient (m), since the law does not allow property to be retained in one shape, and yet to devolve as if it were in another. But where a sale is not expresslj' ex- cluded, such a direction would generally amount to a trust for sale (n) .* (e) Lingen i). Sowray, 1 P. W. 172; Shorer v. Shorer, 10 Mod. 39; Harvevu. Aston, 1 Atk. 364; Guidot^ v. Guidot, 3 Atk. 254; Eashleigh v. Master, 1 Ves. Jr. 26l, 3 B. C. G. 99; Hickman v. Bacon, 4 B. C. C. 333; Green v. Stephens, 12 Ves. 419, 17 Ves. 64. [(/) Gillies V. Longlands, 4 De G. & S. 372;'and see Richards v. Att.-Gen/of Jamaica, 13 Jur. 197; Ee Pedder's Settlement, 5 D. M. & G. 890; Ee Skeggs, 2 D. J. & S. 533.] (a) See Lord Cowper's judpnent in Linton v. Sowray, as reported 1 Eq. Ca. Ab. 175, pi. 5. Such a Question can hardlv arise under a will made or republished since 1837. [(h) Elliott V. Fisher, i2 Sim. 505.] (J) Walker v. Denne, 2 Ves. Jr. 170. (k) Wheklale v. Partridge, 5 Ves. 388, 8 Ves. 227; Thornton v. Hawley, 10 Ves. 129; Biddulph B. Biddulph, 12 Ves. 161 ; Green v. Stephens, ib. 419, 17 Ves. 64 ; Kirkman v. Miles, 13 Ves. 338; Triquet v. Thornton, ib. 345; Van v. Barnett, 19 Ves. 102; Ashby v. Palmer, 1 Mer. 296, and staled post; Stead v. Newdigate, 2 Mer. 521. (Z) Sperling v. Toll, 1 Ves. 70 ; i Pearson v. Lane, 17 Ves. 101. [In such a case, where part of the land hiis been sold and the monej'- not yet re-invested, the money will not pass under a devise of all the testator's interest in the land, if there is any part unsold to answer the description. Re Pedder's Settlement, 5 D. M. & G. 890. (m) Att.-Gen. v. Mangles, 5 M. & Wels. 120. (m) Tait v. Lathbury, L. E. 1 Eq. 174; Johnson v. Arnold, 1 Ves. 169. 1 "I request my executor to sell" will implication, without anv express direction, work a conversion. Green v. Johnson, 4 Wurti). Page, 19 N. J. fiq. 365. Bush, 164. A sale may also be required by 697 *587 WHAT WORDS WOEK Where a trust is in form optional to invest money, either in the Effect of purchase of fee-simple lands or leaseholds, or on securities words giving jjgaring interest, there will be no constructive conversion of an option as =" ' to invests the money into land, unless the trusts or limitations declared ments. ^^ ^j^g fand are such as are applicable only to fee-simple property, and can be properly carried into effect only by the purchase of such property (o) ; where the trusts are applicable solelj- to person- altj', or may be adapted either to personalty or fee-simple lands, the money wiU be deemed unconverted. And first as to the cases where money has been held to be converted. ■ Cases where I^i Earlom v. Saunders (p) , lands were devised to trustees to money has ti^g use of the testator's wife for life, with remainder to his U66n nslcl converted. first and other sons in tail male, with remainder to his daugh- Eariom v. ters in tail, with remainder to two persons as tenants in Saunders. common in fee ; and money was bequeathed to trustees to be laid out in the purchase of lands or any other security or securities as they should think proper and convenient ; and the testator directed that the lands and securities should be made to and settled on the trustees, their heirs and assigns in trust and to the use of his wife for life, and after her decease to such uses and under such provisions, con- ditions and limitations as his lands before devised were limited ; Lord Hardwicke, on the ground that if the money was laid out on se- *587 curities which were personal, all the limitations * might not take place, considered the money to be constructively converted. In Cowley v. Hartstonge (q) , the point was much considered. The Cowley e. trust was to lay out moneys "either in the purchase of Hartstonge. lands of inheritance, or at interest, as my trustees shall think most fit and proper, and then upon this further trust, to pay the rents of the said lands of inheritance, or the interest of the money, &c., to H. for his life," and then followed a series of limitations of estates for life and in tail to the sons and daughters of H., and to other persons in strict settlement. It was held in D. P. that taking the whole will together, the testator contemplated an investment in land at some time or other, and there was therefore a constructive conversion. There was an ultimate limitation to the testator's right heirs, executors and administrators ; but Lord Eedesdale said the meaning of that was merely that if all the previous limitations failed before the death of H. there was no further cause for investing in land, and the personal estate might be left to go to the testator's next of kin, and the real estate to the heir. In Hereford v. Ravenhill (r) , fee-simple estates were devised in strict H • f rd « settlement, and money was bequeathed upon trust with con- Kavenhill. sent to be invested in the purchase of freehold, leasehold, or (o) See De Bcauvoir v. De Beauvoir, 3 H. L. Ca. 524. (p) Amb. 241; see also Johnson ». Arnold, 1 Ves. 169; Meure ». Meure, 2 Atk. 265. ll) 1 Dow, 361. (r) 5 Beav. 51. 598 A CONSTRUCTIVE CONVEESIOK. *588 copyhold messuages, lands, or hereditaments, which were to be conveyed, settled or assured to the like uses, &c., as the hereditaments thereinbe- fore devised stood limited. There was, also, a power to invest at inter- est till a purchase could be made. Lord Langdale, M. R., decided that this was a trust for conversion, and observed that the case before him differed from Walker v. Denne (presently noticed), in that the leaseholds to be purchased in that case were to be for very long terms of years. This difference is not very apparent ; but the limitations in the several cases were such as easily to lead to different conclusions. In Cookson v. Reay (s) , the testator directed a sum of money to be invested in land or other securities for his son John, the cookson v. interest of such money or produce of such lands to be paid '^^y- to him for his life, and if he married with consent, and made a proper settlement on his wife, that the remainder should go to such child or chil- dren as he might have lawfully begotten, and on failure of these to the testator's son Isaac and his heirs forever. Lord Langdale, without deciding the point, said that, upon the authorities of Earlom v. Saun- ders and Cowley v. Hartstonge, he was inclined to consider the money as directed to be laid out * in the purchase of land, and *588 that the direction to invest on some other securities had refer- ence only to the time which might elapse before a purchase of land could be procured. On appeal to D. P. (<), Lord Brougham inclined to the same opinion by reason of the words " remainder " and " heirs " in the limitations to the children and Isaac. It would seem that "heirs "alone would not have supported this conclusion (m) . How- ever, assuming that the will had converted the money, the decision was that the beneficiaries had reconverted it. In Simpson v. Ashworth (a;) , the testator gave to his daughter C. 4,000^. out of his personal estate, and directed his execu- gjmpson o. tors to pay her the interest of 2,000Z. till she attained the Ashworth. age of twenty-one years. He also directed his executors or the sur- vivor of them, as soon as convenient after his decease, to purchase an estate, not to exceed 2,000?., for her use and her lawful heirs, the daughter to come into possession, with the accumulations, at her age of twenty-one years. If the land was not bought before she attained that age, she was to receive the 4,000Z., and to give security for 2,000?., to be returned, if she died without lawful heirs, to the testator's son and daughters that should have heirs, share and shate alike, and pro- vided the land be purchased, to be returned in the same manner. Lord Langdale held that the 2,000?. was intended to be converted at all events, and that the daughter took an estate tail. Applied to personal estate the gift over on the death of the daughter without heirs {i.e. heirs of her body) would have been void for remoteness ; which of itself, («) 5 Beav. 22. (<) Cookson ». Cookson, 12 CI. & Fin. 121. (m) Attwell V. Attwell, L. R. 13 Eq. 23; Walker v. Denne, 2 Ves. Jr. 170. (a) 6 Beav. 412. 599 *589 WHAT "WOEDS WOBK according to Earlom v. . Saunders, was strong reason for deciding in favor of the conversion. Cases where Next, with respect to the cases, in which it was held that monev has there was no conversion. converted. ° Ii Curlings. May (y), the trust was to lay out money in Curling ». the purchase of lands, or put the same out on good securi- ^*J'- ties, upon trust for the. separate use of H., her heirs, execu- tors and administrators. The money never having been laid out. Lord Talbot decreed the administrator of H. to be entitled. In Van f. Barnett (z), lands were devised to trustees to be sold, and Van V. Bar- the produce, with the consent of certain persons, was directed nett. to be laid out in the purchase of lands or in government secu- rities, and the latter trust was held not to operate as a reconver- *589 sion, the trusts declared of the fund in its ultimate state * not being such as to show that a re-investment in land at some time or other was intended (a).] In Walker v. Denne (i), where money was directed to be laid out in Walkers. (freehold) lands, or long terms of years, in trust for A. for Denne. jjfe^ ^^^, afterwards for her children and their heirs, but if there should be no child or heirs of her body living at her death, then for the testator's right heirs. Lord Loughborough held that it was not converted into realty so as to escheat to the crosvn on failure of heirs, there being an option in the trustees to have it laid out in either species of property. Indeed he doubted whether, even if there had been no Doctrine of such Option, the crown could have claimed. But his doubt ^egarTto" '" ^PP^ars to have referred as well to the general doctrine, as escheat. to its effect in regard to escheat. There would seem to be considerable difficulty in supporting the claim of the crown to have the money laid out in such a case, escheat being a consequence of tenure, and, therefore (it should seem) inapplicable to equitable interests of every description (c) . I [Sometimes there is no express trust for conversion, but the accom- - ,. , panying directions are such" as lead to an implication that for conver- conversion was intended ; as, where real and personal estate °'™" was devised to trustees in trust to " invest" the same in the funds («?) ; and, again, where leaseholds were given upon the same trusts and subject to the same powers as those declared of the moneys to arise by sale of property previously given in trust for sale (e). But the same inference is not necessarily to be drawn from a trust to divide into several shares, even though the trustees have an express power of (!/) Cited 3 Atlt. 255. (s) 19 Ves. 102. (o) See also Biggs v. Andrews. 5 Sim. 424; Rich v. Whitfield, L. R. 2 Eq. 583, where however the point was rather assumed than decided.] (b) 2 Ves. .Tr. 170; see also Van «. Barnett, la Ves. 102. \{c) See 3 My. & K. 494; ante, p. 68, n. (y). (d) Affleck v James, 17 Sim. 121. (e) Murton i. Markby, 18 Benv. 196. The question arose upon a claim by tenant for life to enjoy leaseholds in specie. See also Tait v. Lathbury, L. R. 1 Eq. 174, ante, p. 686. 600 A CONSTEUCTIVB CONVERSION. *590 sale (/) : or though they are directed to " invest" srnne of the shares ; as in Cornick v. Pearce (g) , where a testator devised all his cornick v. real and personal estate to trustees upon trust to receive and i*earce. applj' the rents, issues and proceeds for the benefit of his two daugh- ters until the youngest should attain the age of twenty-one, and then to divide the whole of his estate and effects into two equal moieties, one moiety to be divided between his two daughters equally, and the other moietj' to be placed out by the trustees on government or real securities, the dividends and interest to be paid to the * daughters *590 during their lives, and upon the death of the daughters, "upon trust to divide the moneys and effects amongst the children equally." If either of the daughters should die leaving a husband surviving, the testator directed that the husband should enjoy her share for his hfe, and upon his decease that such share should come back to the surviving daughter, her executors, administrators and assigns. It was held by Sir J. Wigram, V.-C, that there was no direction which required a conversion, except as to the moiety to be settled ; as to that moiety alone was anything to be done which made a sale necessary ; and the words applied only to a moiety after a division had been made. But in Mower v. Orr (A) , where a testator, after stating that his property con- sisted of copyholds, leasehold houses, merchandise in Australia, cash at his banker's and in the public funds, and that as it was so scattered about and not realized he could not state what he should die worth, divided it into twenty shares, sixteen of which he disposed of by giving a certain number to each of his three sons absolutely, and, as to the remaining four, he gave two to his daughter absolutely and two to be invested in the funds for the use of her children ; and he appointed two of his sons executors, requesting them to get his property together and divide it according to his intention. It was held by the same judge that the testator must be understood as directing a conversion of his copyhold estate into personalty. The V.-C. said that the division of the entire property into a number of shares and the directions as to the investment and disposition of some of such shares precluded the suppo- sition that he intended the copyholds to remain unsold. In Cornick v. Pearce it appeared to him the purposes of the will would, in the circum- stances of that case, be effected without" a conversion of the whole estate : there was a direction that the estate should be enjoyed in specie until the division, and the literal construction of the will did not require a sale of the whole estate either for the purpose of the division or the settlement of a moiety. This distinction is not very tangible. The V.-C. did not expressly advert to the testator's request " to get his property together," though in other cases much reliance has justly been placed on similar direc- tions, coupled with an express power of sale, as indicating a desire to ( f) Greenway v. Greenway, 29 L. J. Ch. 601 , 606, 2 D. F. & J. 128 ; Lucas ». Brandreth,, 28 Beav. 273. ( Do ffhtr B *° ^PPly t^^ money for their benefit ; and it was held that Bull. only the time of the sale, and not the question whether there should be any sale, was left to the discretion of the trustees. Effect where ^^ ^^^ purchase is to be made with consent or ap- saleorpuT- *592 probation (;o) *or on or after request or direction, made upon the question whether or not a conversion is intended, request. must be answered from a consideration of the whole instru- (i) Burrell ». Baskerfield, 11 Beav. 525; Re Cookes' Contract, 4 Ch. D. 454.] (h) See Edwards «. Countess of Warwick. 2 P. W. 171. Ul) Wheldale v. Partridge, 5 Ves. 388, 8 Ves. 227. (m) Pearce i). Gardner, 10 Hare, 287; and see Cuff v. Hall, 1 Jur. N. S. 972. \n) 1 Coll. 434. (o) 2 P. W. 320. See also Robinson «. Robinson, 19 Beav. 494. (;)).The person whose approbation is required will not be allowed to delay the sale for his own advantage and to another's prejudice, Lord v. Wightwiok, 4 D. M. & G. 803, 6 H. L. Ca. 217. 602 A CONSTRUCTIVE CONVERSION. *593 ment, and especially of the trusts to which the property is subjected, and the persons by whom the request is to be made. Thus in Lechmere v. Earl of Carlisle (pa), L. covenanted within one year to lay out. a sum of money in the purchase of lands, Lechmere ». with the consent of trustees, and to settle them ; and it was Carlisle. held that the money thus agreed to be laid out should be taken as land. To the objection that the trustees must previously give their consent, Sir J. Jekyll, M. R., replied, that in his opinion they were not to do the first act ; L. ought to have proposed his purchase and settlement, upon which the trustees were to signify their agreement or disagree- ment.] Again, in Thornton v. Hawley (g), Sir W. Grant was of opinion, that the circumstance that a sum of stock was to be sold after Thornton v. request, and the produce laid out in the purchase of land at Hawiey. the request and with the consent of [husband and wife, or the survivor, or the executors or administrators of the survivor] , did not prevent the fund being immediately impressed with the qualitj- of real estate [be- cause to such property alone were the limitations applicable, and also because it was hardly possible to suppose an intention to give an option to any person who should be an executor or administrator whether it should be monej' or land, though it might be intended to give that op- tion to the husband and wife. From these considerations he inferred] that this requisition did not exclude the authoritj' of the trustees to con- vert the propertj' at their own discretion, without request ; but only rendered it imperative on them to act on the request, if made. If the M. R. was right in this construction of the deed, the conclusion at which he arrived respecting the nature of the property was inevitable. [On the other hand, in Re Taylor's Settlement (r) , houses held in fee- simple had been vested by marriage settlement in trustees in Re Tavlor's trust, upon request of the husband and wife, or the survivor, Settlement. to sell and invest the produce of the sale, and to pay the income of the money, or of the houses till a sale, to W. for life, and after his decease, to his wife for life, and after the decease of the *survi- *593 vor, to convey the houses unless sold, or to assign the money, to the issue of W. and his wife. The houses had been sold, not under the trust, but under compulsory powers in an act of parliament, which also provided that the purchase- money should be re-invested in land, to be settled to the same uses ; so that the money retained the character which the houses possessed under the settlement (s) . Upon the ques- tion what that character was, Sir G. Turner, V.-C, held that the set- (pa) 3 P. W. 211. And see Wrightson v. Macaulay, 4 Hare, 497.] (o) 10 Ves. 129 ; see also Triquet v. Thornton, 13 Ves. 345; [lohnson v. Arnold, 1 Ves. 169.] But see Lord Eldon's judgment, in Van v. Bamett, 19 Ves. 102; where, however, the direction was alternative to invest in personal security or land. [(r) 9 Hare, 596; and see Davies v. Goodhew,"6 Sim. 585; Huskisson v. Lefevre, 26 Beav. 157. (s) As to this, vide ante, pp, 162, 163.] 603 *594 WHAT WORDS WOKK tlement had not worked a conversion of the houses. He remarked that, in Thornton v.. Hawley, the sale was, after the death of the hus- band and wife, to be made at the request of the executors or adminis- trators of the survivor ; but, in the case before him, the sale was to be made onlj' on the request of the husband and wife or the survivor; so that no sale could be made after their deaths ; and that words of re- quest in eases of such nature must be construed as inserted for the pur- pose either of enforcing obligation or of giving discretion, as the context of the instrument might require. In this case, the general intent that the houses should be sold at some time or other was evidently wanting, the last proviso in the settlement directing that the property, if sold, was to be personal, if not sold, real.] It seems that the converting effect of a trust for sale, in regard to a Effect of ' legatee to whom the proceeds are bequeathed, is not pre- property di- vented by the fact, that in an alternative event, the testator sold being bas devised the property in terms adapted to its original devised in a gt^te ; as he may have contemplated the possibility of the certain con- . i.in, i-T -. tingencyas contmgency happening before a sale could be effected ; be- land. sides which, it seems to have been considered, that the prop- erty might be real estate as to one legatee, and personalty as to another, to whom it was given in an alternative event. , Thus, in Ashby v. Palmer (<), where a testatrix devised and be- Lands de- queathed her real and personal estates to trustees, upon ■''isedtobe trust, as soon as convenient after her decease, to sell, and proceeds with the monej^ thereby raised, and the rents until the sale, given to A. ; ^q p^y jier and her late husband's debts, and with the sur- *594 plus to educate and * bring up her daughter ; and when she should attain twenty-one, or marrj', "to pay the moneys which should be in the hands of the trustees, by virtue of the wOl, undisposed of for the uses aforesaid," to the daughter. And the testatrix went on to direct, _ .jj^ that if the daughter died under twenty-one or unmarried, the limitation moneys in the hands of the trustees, and such part of the real itaonevs or ^^'''^fi (.if '^^V) OS should remain unsold at the time of her de- the estate, if cease, and not be applied for the payment of her debts or for unso , to . ^jjg education of her daughter, should go to the testatrix's sister, her heirs, executors and assigns. The daughter attained twentji-- one but was a lunatic, and therefore incompetent to elect to take the estate as land or money. The question was, whether it went, at her death, to her heirs at law or next of kin ? For the heir, it was con- tended that the estate was not to be sold at all events, but only to (0 MS. ; also reported 1 Mer. 296, but with the omission of the very bequest on which the question arose, and to the particular language of which the M. R. adverted; [see also Tily v. Smith, 1 Coll. 434, supra; Ward v. Arch, 15 Sim. 389; and see Lord Redesdale's remarks in Cowley ». Hartstonge, 1 Dow, 381, cited supra. But the mere fact that conversion 'is less necessary for distribution in one alternative than in another will not prevent a trust for sale from being imperative in both, Wall v. Colshead, 2 De G. & J. 683. And see Wilsoa B. Coles, 6 Jur. N. S. 1003.] 604 A CONSTBUCTIVE CONVEESION. *595 answer a particular purpose ; that the testatrix did not mean it to go as money ; that she contemplated the possibility of its not being sold. For the next of kin, it was argued that the estate was to be sold out and out ; that the testatrix had no objection that her sister should take it as land, if by accident it should remain unsold ; and she might have contemplated the premature death of the daughter before a sale could be effected ; in which event, and in that only, she directs that the trustees shall not proceed in the accomplishment of her purpose. And it was contended that the words " pay to " supported this construction ; and it was said that, at all events, the daughter was to take it as money. ^-^^ ^^ ^^ Sir W. Grant, M. R. : "I think, that the construction of personal es- this will admits of no reasonable doubt : it is the settled rule of this court, that land once impressed with the character of money re- tains that impression till soipe act is done, by a person competent to do that act, to restore it to its primary character. The testatrix has di- rected the estate to be sold ; but the question is, not whether the estate shall be actually sold or not, but whether it is to be treated as personal estate ? There is no gift to the daughter in any other shape than that of money. I see nothing inconsistent in the subsequent clause, by which, in the event of the death of the daughter under twenty-one, such part of the estate as should remain unsold is given to the sister (u) . She might choose to give it to the daughter as money, and to the sister as land. There is no inconsistency in saying it shall be converted quoad the first taker, not quoad the second. The cases * which *595 have arisen between the heir and next of kin of a testator have no application to the present" (a;). And though a mere power, of sale or purchase, of course, does not change the nature of the property ; yet, the circumstance of j^ ^ the clause respecting the sale or purchase being framed in does not pro- the language of a power will not prevent its producing a con- sion^unies"" structive conversion, if the context of the will shows that ty force of it is meant to be imperative, or in the nature of a trust.' Thus, in Grieveson v. Kirsopp (y), where a testator gave to his widow, (m) As to this, see also Crabtree «. Bramble, 3 Atk. 680. \x) What is the effect of a direction to purchase land in a particular parish, in which it turns out that land cannot be obtained, is not settled. Lord Thurlow thought it could not be laid out elsewhere ; Lord Loughborough, that it might. Lord Eldon has alluded to these conflicting opinions without stating his own; see Broome v. Monck, 10 Ves. 610; also Haves' Introd. 5th e^. p. 95. («) 2 Keen, 653; [see also Burrell v. Baskerfield, 11 Beav. 525; Nickison «. Cockill, a D. J. & S. 622; Re Cookes' Contract, 4 Ch. D. 454.] ' Drayton's Appeal, 61 Penn. St. 172. It to administer some portion of the will, unless has, obiter, been laid down that it is suffi- there is a positive or at least a clearly im- cient to work a conversion of real estate that plied direction to sell. Neelj^ v. Grantham, the testator authorizes his executors to sell, 58 Penn. St. 433. A contingent direction to if it be apparent from the general provi- sell works no conversion. lb. If a testator sions of the will that he intended such estate authorize an executor, in his discretion, to to be sold, even though there be no impera- sell land, and then direct him to convert all tive direction in terms to sell. Dodge )). Pond, the rest of his estate into money, the latter 23 N. y. 69; Dodge v. Williams, 46 Wis. 70. provision does not include the real estate. Conversion, however, does not follow even in Graydon v. Graydon, 23 N. J. Eq. 229. case of an inevitable necessity to sell in order 605 *596 WHAT WORDS WOKK for the benefit and advantage of his children, power of selling his Woodfoot estate ; and by a codicil expressed himself (in effect) thus : " My mind and will is and I do empower mj' wife to sell all my estates whatsoever ; and the money arising from such sale, together with my personal estate, she, my said wife, shall and may divide and proportion among my said children, as she shall think fit and proper, or as she shall direct by will." The estate was neither sold nor appointed by the widow. It was held that a trust for the children was created by the will, and that they were entitled equally. It was held also, that the di- rection to sell operated as a conversion of the real estate, and that the shares of those children who were dead devolved on their representatives as personalty. But although, in general, the presumption is that a testator does not „ , intend the nature of the propertj'. to depend upon the option property of the person through whom the conversion is to be effected ; tiend'on tais- y®*' ^^' ^P^^ ^^^ whole wUl it appears to have been the inten- tee's option tion of the testator to give to such person an absolute disere- se or no . ^^^^ ^ ^^jj ^^ ^^^^ ^^^ property in the mean time will, as between the real and personal representatives of the persons beneficially entitled, devolve according to its actual state. Thus, in PoUey v. Sey- mour (z) , a testatrix devised the residue of her real and personal estate to W., his heirs, executors and administrators, according to the differ- ent qualities thereof, upon trust to retain and keep the same in the state it should be in at the time of her decease, as long as he should think proper, or to sell and dispose of the whole, or such part *596 thereof as and when he or they should * from time to time think expedient, and then, upon trust to invest the proceeds. The testatrix then directed that W., his heirs, executors or administrators, should stand possessed of all such the general residue of her real and personal estate, and after such sale, of the securities whereon the same should have been invested, in trust, out of the rents and profits, inter- est, dividends and proceeds, to pay several life-annuities ; and, after payment thereof, the testatrix directed W., his heirs, executors and ad- ministrators, to stand possessed of all the said residue of her said real and personal estate, and of the stocks, funds and securities whereon the same or any part thereof should have been invested, and the rents and profits, interest, dividends and produce thereof, in trust for five persons (including W. himself), in equal shares, and for their respective heirs, executors, administrators and assigns, according to the different quali- ties thereof. It was held, that upon the terms of this wiU, it was not the intention of the testatrix that the property should be converted out and out ; but that W. had a discretion to sell the whole or any part of it, when and as he might think expedient ; and that, until he exercised iz) 2 y. & C. 708 ; [see also Re Taylor's Settlement, 9 Hare, 59B, supra ; Harding ». Trot- ter, 21 L. T. 279, V.-C. S. ; Greenway ». Greenway, 2 D. F. & J. 128; Lucas v. Brandrcth, 28 Beav. 273; Be Ibbetson, L. E. 7 Eq. 229. 606 A CONSTRUCTIVE CONVBESION. *597 that discretion, the property must be considered to remain in the state it was in at the time of the death of the testatrix. [So in Yates v. Yates (b), where a testator devised lands to trustees in trust for his wife during her life, with remainders over ; and for car- rying into effect the purposes of his will, he ' ' authorized his trustees at such time or times as they should think proper, in case they should think it necessary so to do, but as to which they should have absolute discretion" to sell the lands or any part thereof: the land in question was nearly unproductive in its actual state, but was valuable for build- ing purposes ; it had not yet been sold by the trustees ; and the widow, the tenant for life, claimed interest at 4^1. per cent upon the value of the land from the death of the testator: but Sir J. Romilly, M. R., held that she was not entitled to this, the trustees having a discretionary power to sell when they thought fit. If there had been an absolute trust for conversion, though the time for exercising it had been left to the discretion of the trustees, the case would have been different.] The question whether real estate is absolutely Converted by a direc- tion or authority has often come under consideration on the Le™^,, ^uty claim of the crown to legacy duty under the General Stamp on proceeds Act (55 Geo. 3, c. 184, sched. part 3), which sub- otol-aTseT jects to the duty * " moneys to arise from the sale, *597 question mortgage, or other disposition of any real or heritable version is estate directed to be sold, mortgaged or otherwise disposed *''^°'"'e- of." On'this subject, the following points have been decided : — 1st, Where real estate is directed to be sold out and out, the duty attaches, though by reason of the legatee electing to take it Rule on this as real estate the property is not actually sold (c) . subject. 2dly, Where the trustees have an option to continue the property in its actual state or to sell [for the purpose of distributing the proceeds according to the will, and in the exercise of this discretion they sell, ihe legacy duty attaches (d) ; but not if they do not sell(e). If the power of sale is given only for the purpose of re-investment in land (/) or for the variation of securities (g) or (it seems), for the purpose of raising debts and legacies or other prior charges (k), the duty is not payable, whether the property is sold or not, and although, after a sale, the beneficial owners have elected to take the property as money (i) . 3dly, Where a sale is directed by the court in-order to raise a charge, dut}' will attach on the amount necessarj' to satisfy the charge, if the wiU contains a power of sale which the donees of the power are com- (i) 28 Beav. 637.1 (c) Att.-Gen. v. Holford, 1 Pri. 426 ; Adv.-Gen. v. Eamsay's Trustees, 2 C. M. & R. 224, n. : [WiUiamson v. Adv.-Gen., 10 CI. & Fin. 1. (d) Att.-Gen. v. Simcox, 1 Ex. 749^ (e) Att.-Gen. v. Mangles, 5 M. & W. 120; [Att.-Gen. v. Simcox, 1 Ex. 749. (/) Mules V. Jennings, 8 Ex. 8-30. (o) Ee Evans, 2 C, M. & R. 206; Adv.-Gen. v. Smith, 1 Macq. Sc. Ap. 760. (A) Per Lord Cranworth, Adv.-Gen. v. Smith, supra. (i) Mules V. Jennings, supra. 607 *598 ELECTION TO TAKE pelled by the court to exercise, but not (^) if the court acts upon its general jurisdiction in such cases.] And it is to be observed, that where trustees are authorized to sell or not, as they think proper^ and in virtue of this option they leave sairdoeTnot the property unconverted, the legacy duty is not attracted let in legacy ijy g, mere declaration in the will that the property shall be deemed to be personal estate, as it is not in the power of a testator to alter or regulate the nature of the subject of disposition by any such declaration (Z) . *598 * II. But although a new character may have been in plain Person abso- and unequivocal terms impressed upon property by means of titf/ ^% ^ trust for conversion ; yet such constructive quality is liable elect to take to be determined by the act of the person or persons bene- Ft™aotual"' flcially entitled, who may, at any time before its conversion state. de facto, elect to take the property in its actual state.'' And then comes the inquiry, Who are personally competent to make, and what amounts to, such an election ? It is clear that an in- (J) Hobson V. Neale, 8 Ex. 368, 17 Beav. 178; Harding v. Harding, 2 Gif. 597.] (0 Att.-Gen. »). Mangles, 5 M. & Wei. 120. \Le,gacy duty on proceeds of conversiotl. — Reference may here be made to some of the authorities on legacj- duty. An annuity charged on land is liable to duty, and so is a rent-charge limited under a power in a will, whether the power is to be exercised , by deed or will, and whether it be general or in favor of particular objects (Att.-Gen. v. Pickard, 3 M. & >Vel. 552, 6 M. & Wei. 348; Sweeting v. Sweeting, 1 Drew. 336) ; and it is immaterial that the appointee is put to an election, as in case of a wife, between the rent-charge and her dower (Att.-Gen. v. Henniker, 7 Exch. 331; Sweeting v. Sweeting, supra). On the other hand, wliere the power is given by deed to charge or appoint out of land " a specific sum," whether .generally or in favor of particular objects, duty does not attach (Att.-Gen. v. Hertford, 14 M. & Wei. 284); but the duty does attach on a sum of money not charged on land, appointed under a general power given by deed (Re Cholmondeley, 1 Cr. & Mees. 149); and money given by will, under a general power to appoint contained in a previous will, pays double duty, that is to say, under the iirst will as if it had been an absolute legacy to the donee of the power, and under the second will as if it had been an ordinary legacy out of the estate of such donee; but before 23 & 24 Vict. c. 15, s. 4 (ante, p. 3, n.), probate dutv was payable only under the first will (Piatt v. Routh, 6 M. & Wei. 756, 3 Beav. 257, 10 Cl. & Fin. 257). The last case also decides that a power to appoint to any one except specified individuals, must, at all events so far as regards the legacy duty acts, be considered as a general power of appointment. Nothing but what is generally a charge in favor of one person on the estate of another is within the act (Shirley v. Ferrers, 1 Phill. 167). But a charge originally in favor of a third person, but which by subsequent circumstances only has become a charge in favor of the owner of the estate, is within the act (Att.-Gen. v. Metcalfe, 6 Exch. 26; and see Swabey v. Swabey, 15 Sim. 502 ; Re Tavlor, 8 Exch. 384). As to money bequeathed to be laid out in land, see Re De Lancey, L. ft. 5 Ex. 102, 7 Ex. 140. The importance of these cases, and of those referred to in the text, is much diminished by the act 16 & 17 Vict. c. 51, imposing succession duty on real estate. The amount payable, however, and the mode of payment, are sometimes different, according as it is legacy or succession duty which attaches ; and the latter is a charge on the property, while the former is not. Probate duty on jjroceeds of land. — Probate duty is payable on whatever the executor recovers virtute officii ; it is therefore payable on the purchase-money of land contracted U> be sold, though the purchase is not completed until after the death of the vendor (Att.-Gen. V. Brunning, 8 H. L. Ca. 243); and on a share of the proceeds of real estate which at the time of the te.itator's or intestate's death has either by express trust (Att.-Gen. v. Lomas, L. R. 9 Ex. 29) or bv construction of equity — as in the case of a share of partnership realty (per James, V.-C, f'orbes o. Stevens, L. R. 10 Eq. 178) — been impressed with the character of personalty, though not actually sold. It is otherwise where the conversion is effected by, or is dependent on. the will of the deceased person, and where consequently the conver- sion takes effect only from and after his death (Matson v. Swift, 8 Beav. 369, Oustance v. Bradshaw, 4 Hare, 315, explained 8 H. L. Ca. 260).] 1 Smith V. Starr, 3 Whart. 62. See Leiper v. Irvine, 26 Penn. St. 54. 608 PEOPEKTY UNCONVERTED. *599 fant (m) , or lunatic (n) , is incompeteat, and also a feme 'WTio compe- w \ 1 1 \. ^ ^^ ■ ■ u ^ 'e»t to make covert (o) , unless under a power or trust authorizing her to election, deal with the property as a, feme sole (p). It was said by Lord Maccles- field in Edwards v. Countess ofWarwick (g), that the elec- „ , , ,. ^^ ' ^ Parol election tion might be made by parol. Lord Hardwicke, in Bradish whether V. Gee(r), said that he could not admit this proposition; ^°°^' but the affirmative appears to have been decided at the Rolls («), in Chaloner v. Butcher. The expressions or acts declaratory of such an intention, however, [though it is said they maj- be slight (<)] must be „.. * unequivocal (m) . Thus, where (y) a person was, *599 amounts to under a settlement, tenant in tail of lands, with a *" election, reversion in fee to himself, and was entitled under the same settlement to lands to be purchased with a certain sum of money and settled to the same uses ; it was held, that his levying a fine of the land limited by the settlement, to bar the issue, did not demonstrate an intention to take as money the fund not laid out (x) . And where a person entitled to the fee-simple in lands to be pur- chased with trust-money, called in [part of] the money, and Chanpngthe placed it out upon a fresh security, in the name of a trustee securities. for himself, his executors and administrators, it was held that he had by these acts elected to take [that part] as money (y) , [but that the rest of the monej', whether subsisting upon the securities upon which it was originally placed or any other securities where no new trusts had been declared, ought to be considered as real estate.] But, where («) the legatee of the proceeds of ah estate directed to be sold, entered upon the whole estate, and made a lease of part Demising the of it, reserving rent to her heirs and assigns, she was held to propertj'. have elected to take it as land. [And letting to a new tenant from year to year has been held to bring the case within the same principle, on the ground that if the tenant were lawfully evicted by a purchaser under the trust for sale, the lessor would be liable to an action by the tenant (a). Taking, and for nine years retaining, possession of the estate directed (m) Can- v. Ellison, 2 B. C. C. 56 ; Van v. Bamett, 19 Ves. 102. [Except under the direction of the court, Robinson t'. Robinson, 19 Beav. 494.] (n) Ashby v. Palmer, 1 Mer. 296. (o) Oldham v. Hughes, 2 Atk. 452; [Sisson v. Giles, 3 D. J. & S. 314. (b) Re Davidson, 11 Ch. D. 341.] (q) 2 P. W. 173. (r) Amb. 229. (jr) 8 March, 1736, cited 3 Atk. 685. [(«) Per Lord Eldon. 8 Ves. 236.] (u) Stead v. Newdigate, 2 Mer. 531 ; [Re Pedder's Settlement, 5 D. M. & G. 890.1 («) Edwards v. Countess of Warwick, 2 P. W. 171, 2 Eq. Ca. Ab. 42, pi. 3, 1 B. P. C. Toml. 207; [and see Biddulph v Biddulph, 12 Ves. 161; Dixon v. Gayfere, 17 Beav. 433; Griesbach «. Fremantle, 17 Beav. 314; Meredith v. Vick, 23 Beav. 559.] (x) As to barring entails in lands to be purchased, see Stat. 3 & 4 Will. 4, c. 74, ss. 70, 71; and 1 Haves's Introd. 5th ed. p. 204. (y) Lingen v. Sowray, 1 P. W. 172, Pre. Ch. 400, 1 Eq. Ca. Ab. 175, pi. 5. (2) Crabtree v. Bramble, 3 Atk. 680; [and see Mutlow v. Bigg, 1 Ch. D. 385. (a) Re Gordon, 6 Ch. D. 531. But see Meek v. Devenish, ib. 573. VOL. 1. 39 609 *600 ELECTION TO TAKE Taking pos- to be sold, have been held sufficient of themselves to prove —length of an intention to re-convert (6) . But possession for two or possession, three years by tenants in common (without more) has been held insufficient (c) . The circumstance that, where several are en- titled in common, a sale is required for convenient division of the property, would seem to diminish the probability of their intending to put an end to the trust. But where two tenants in common had been in possession for seven years, and it was clearly shown that one *600 of them, who was also the principal acting * trustee, desired to retain the estate for building purposes, slight evidence of the concurrence of the other satisfied the court that the latter also had elected to keep the estate unsold {d) . Again, in Davies v. Ashford(e), where a person made inquiry as to Takinff pos- ^^® interest in lands held upon trust for sale, and on finding session of that he was absolutely entitled to the money to arise from ^^ ^' the sale, took the title deeds into his own possession (from whom or by what means he had obtained them being held immaterial) , it was held that there was sufficient evidence of his election that the land should not be converted. A specific devise to the ordinary uses of a strict settlement of real Devising the estate, of the land directed to be sold, is clear evidence of an to"be soU^'as intention to retain it unsold (/).] And where (g') a per- land. son entitled to the absolute reversion in a fund of this g , . description, [who described himself in a memorandum at the as personalty foot of an account of the property as being entitled to the reeled t'obe /'""^ ^^ residuarj' legatee of the last owner, which he was,] invested in made his will, in which, after devising certain real estate, he bequeathed the residue of his personal estate in possession or reversion, Sir W. Grant decided, that as the testator [had so described himself, and] had no other reversionary interest to which this expression could be applied, it amounted to a demonstration of inten- tion to bequeath this fund as personal estate. There seems, however, to be some difficulty in drawing any such inference from the inaptitude of the terms of the bequest to any other existing property of the testator at the date of the will, seeing that a residuary disposition of this nature comprises after-acquired personalty (A). (6) Re Gordon, snpra. (c) Kirkman ». Miles, 13 Ves. 338; Brown v. Brown, 33 Beav. 399. (d) Re Davidson, 11 Ch. D. 341. (e) 15 Siin. 42. (/) Meek o. Devenish, 6 Ch. D. 5(i6.] \g\ Triquet v. Thornton, 13 Ves. 345 ; [compare Re Skeggs, 2 D. J. & S. 533.] («) It seems, that where a person covenants to purchase land, and eventuallv himself becomes solely entitled to it, so that the obligation to lay out, and the right to call for, the money centre' in the same person ; the covenant is, without any act on his part, considered as discharged. As in Chichester ». Bickerstaff, 2 Vern. 295, where A. on his marriage covenanted to lay out a sum of money in the purchase of land, to be settled to the use of himself for life; remainder to his intended wife for life; remainder to the first and other sons of the marriage in tail ; remainder to the daughters in tail ; remainder to his own right heirs. A. did not lay out the money, and survived his wife, who died without issue ; and it was decided, that the money, though once bound by the artiijles, became free again by the death 610 PROPERTY UNCONVERTED. *60l [* Again, in Cookson v. Eeay (i) , where a sum of money sub- •601 ject to a trust for investment in land, -which ultimately became liable to be settled upon one for life, with remainder to another in fee, was, by those two persons in a deed appointing new trustees, spoken of as moneys which they were then entitled to receive, and trusts for investment in securities were declared, it was held that there was suffi- cient evidence that they had elected that the money should not be con- verted, and this, although the trusts of the moneys and securities were declared by reference to a prior settlement, the trusts of which were also declared by reference to a former will, under which will it was assumed for the purpose of the decision that the money was construc- tivel3- converted ; this reference was held not sufficient to outweigh the direct words contained in the deed of appointment, as to the parties being entitled to the receipt of the money. ' In Harcourt v. Seymour (k) there were several circumstances, from which, taken together, election was presumed ; the principal Harcourt. v. one seems to have been, that the sum of money in question, Seymour, which was subject to a trust for investment in land (to which, when purchased, the testator would have been entitled in fee, subject only to a provision for his wife in bar of dower), was included in a statement of the testator's personal property found among his papers after his death.] And here it may be observed, that in order to amount to an election to take property in its actual, as distinguished from its ah persons eventual, or destined, state, the act must be such as to interested absolutely determine and extinguish the converting trust; inactofelec- and hence it would seem to follow, that where two or more *""'• persons are interested in the property, it is not in the power of any one co-proprietor to change its character, in regard even to his own share ; for, as the act of the whole would be requisite to put an end to the trust, nothing less will suffice to impress upon the property a trans- missible quality, foreign to that which it had received from the testator. Thus, if lands be devised to trustees upon trust for sale, and to pay the proceeds to A., B. and C, in equal shares, divided share and after the death of the testator, and before the sale is "* '^"? , ^ ' , cannot elect. effected, A. grants a lease of his one third, or does any of the wife without issue, and the consequent failure of the objects of the several limitations ; and was therefore, at the death of the settlor, his personal estate. This decision, indeed, was questioned by Lord Talbot, in Lechmere v. Lechmere, Cas. t. Talb. 90; and by Sir J. Jekyll, in Lechmere v. Earl of Carlisle, 3 P. W. 221; but Lord Thurlow, in the great case of Pulteney V. Darlington, 1 B. C. C. 238, 7 B. P. C. Toml. 530,* expressed a strong opinion that it was right; which case went. Lord Eldon has said, to this : " that if the property was at home, in the possession of the person under whom they claimed as heir and executor, the heir could not talie it; " and his lordship observed, the question, then, was not upon the equity between the heir and the executor, but whether the property was at home. [(0 5 Beav. 22, nom. Cookson v. Cookson, 12 C'l. & Fin. 125. (h) 2 Sim. N. S. 12. * The able and elaborate arguments of Sir John Scott (afterwards Lord Eldon), and Mr. Feame, the counsel for the appellants, display the deepest research into the subject, but they did not succeed in overturning the decree. ^ 611 *603 ELECTION TO TAKE other act unequivocally dealing with it as real estate, and then *602 * dies ; his share will, nevertheless, it is conceived, devolve to his personal representatives, as it would stiU be the duty of the trustees to pro'ceed to a sale, on account of the other shares, the con- verting trust having been created for the benefit of all (I) . [But if the whole of the proceeds are given to A. on a contin- Electionby gencj', and on failure of that contingency to others, the contingent primary donee may, pending the contingency, declare his ing the con- intention to keep the Iknd unsold, so as upon the happening tingency. ^f ^^le contingency to re-convert the land, if no sale has been (as, of course it may nevertheless have been) previously made (m). And of course, if money be directed to be laid out in land one tenant in for the benefit of A., B. and C. as tenants in common in common of fgg ^nv one or more of them may take their shares of the DlonSV to 06 ' »/ ^ laid out in money without the consent of the rest. " For," said Lord land. Cowper, "it is in vain to lay out this money in land for B. and C, when the next moment they may turn it into money, and equity, like nature, will do nothing in vain " («).] And although it is not in the power of the owner of an undivided Dispositions share, or any other partial interest in land which is directed by partial ^o be converted, by his single act to change its character, owner before , , .... ,._, . ., , actual con- and thereby impart to it a different transmissible quality, it version. ^o&& not foUow that every disposition by such partial owner adapted to the property in its actual state, is nugatory. On the con- trary, it is clear, that if a person entitled to a reversionary interest in money to be laid out in land, shows an in,tention to dispose thereof by will, or otherwise, as personal estate, it will pass b}' such disposition (o) ; though, on the death of the donee intestate, it would devolve on his real representative. So, if the legatee of the proceeds of real estate directed to be sold devise the land in its character of real estate, the devisee wiU be entitled to the fund in question, though it would, when acquired, be personal estate in the hands of such devisee (jo) . [Where property subject to a trust for conversion was settled by the , owner on her marriage, and a power to reconvert (or power by *603 retain * the property in its actual state) was reserved beneficiary. ^ ^j^g trustees, to be exercised with the consent of the tenants for life or the survivor, it was held bj' Sir "W. P. Wood, V.-C, that the power ceased as soon as the property had vested 7) SeelB.C.C.SOOi Elliott «. Fisher, 12 Sim. 505; Holloway ». Eadcliffe, 23 Beav. 163; ^li. D. 348. But this rule would not apply where the trust for sale of laud was for the 1 11 CI purpose of paying debts, legacies,- &c. ; the devisee (or legatee of the surplus proceeds) sub- let to the charges, might himself clear them off and retain the land unsold, Griesbach «. Fremantle, 17 Beav. 314. So if the legatees, though not paid, acquiesced in the retention, Mutlow i>. Bigg, 1 Ch. D. 385. And after lapse of time and where no prejudice accrues to them their acquiescence will be easily inferred, ib. (m) Meek «. Devenish, 6 Ch. D. 566, explaining Sisson v. Giles, 3 D. J. & S. 614. (re) Seeley v. Jago, 1 P. W. 389. And a small sum (A.'s share) might be as advan- tageously laid out in land for A. as a large sum (the entire fund) for A., B. and C] (o) Mquet 1). Thornton, 13 Yes. 346. (j>) See Hewitt v. Wright, 1 B. C. C. 86. 612 PROPERTY UNCONVERTED. *604 al)solutel3' in the children, although one of the tenants for life was still living (<7).] And here it maj be observed, that where (r) real estate was devised upon trust for sale, and the proceeds were to be divided „ ^ , ^ '^ '■ Husband and among several persons, one of whom was a married woman, wife mav who (the estate being unsold) joined with her husband in difected tobe lev3'ing a fine of her share therein ; it was held, that the sold as real wife was by this means barred of her equity to a settlement ®^'^'^- out of the fund. And the same effect, it is conceived, would now be produced by the husband and wife conveying the property by a deed acknowledged by her, according to the statute of 3 & 4 Will. 4, cap. 74, ss. 77, 79. III. Sometimes, the exercise of trustees' option to convert regulates not merely the devolution of property as between the real Trustees' and personal representatives respectivelj' of the beneficial option to sell objects, but also determines its destination under the will destination of itself; i.e. until conversion, it belongs to one, and when P™P'=''ty- actually converted, to another. Large and inconvenient as such a dis- cretion is, yet, if the intention to confer it be clearly manifested, the construction must prevail, in spite of any suspicion that the testator misapprehended the effect of the term he has emploj'ed. As in Brown v. Bigg (s), where a testator ordered and empowered his wife (in case she chose so to do) with the advice of W. G., to sell all his G. estates (stating that she would probably not choose to live there), with the crop, stock, and eflfects, with all convenient speed; and the money arising from such sale, to be placed out on security, the yearly interest of which, as well as the interest due to the testator on notes, bonds, mortgages or otherwise (except what was in the public funds), he gave to his wife for life, determinable as to one moiety on marriage again. * And after giving several legacies, the tes- *604 tator after his wife's death left the whole of his personal estate, principal and interest, of everj- kind, both on public and private secu- rity, before undisposed of, to several persons. The wife sold part of the G. estate, and died ; and Sir W. Grant, M. R., held, that the pro- ceeds of such part belonged to the residuary legatees, and that the unsold part of the estate remained the property of the testator's heir. So, if the fund arising from the sale be disposed of in such terms [(o) Doncaster ». Doncaster, 3 K. & J. 26. And see Rich v. Whitfield, L. R. 2 Eq. 583.] (r) May v. Roper, 4 Sim. 360. This doctrine is often found very convenient in practice, where a married woman has a reversionary interest in a fund of this description ; which, in its character of personalty, she is incompetent to deal with, so as to bar her contingent right by survivorship, but which may be effected by means of a deed (duly acknowledged as to the wile) assigning the property. [Briggs v. Ohamberlain, 11 Hare, 69, overruling Hobbv v. Allen, 15 Jur. 8-35, 20 L. J. Ch. 199, 4 De G. & S. 289 ; and see Tuer v. Turner, 20 Beav. 560; Franks v. BoUana, L. R. 3 Ch. 717. The Act 20 & 21 Vict. c. 67, enabling married women thenceforth to dispose of their reversionary interests in personalty, does not extend to in- j^rests under marriage settlements.] («) 7 Ves. 279; [and see Harding v. Trotter, 21 L. T. 279, V.-C. S.] 613 *605 EELATIVE EIGHTS OF SUCCESSIVE Vesting of as Unequivocally and explicitlj' to make the vesting depend poned'until '^^ *^® period of actual sale, the vesting will be postponed actual sale, accordingly. Thus, where (0^ testator devised certain real estates to his wife for life, and directed that A. should, as soon after her decease; on her refusing to release her dower, as conveniently might be, sell the estate ; and as to the moneys arising from the sale, together with the rents till sold, he gave the same to be equally divided between his five nephews (naming the'jn), at such time as the sale should be completed, in case they should be then living ; but, in case any of them should die in his lifetime, or before the sale' of his said estate should be completed, leaving issue, his part should be paid to his children ; but in case any of them should die in his lifetime, or before the sale should be completed, without leaving issue, to the survivors. Sir "W. Grant held, that the share of a nephew surviving the testator, but dying before the sale, did not vest; observing, that to adopt the eontrarj' construction would. deny to the testator the power,' by any express form of words, or clear manifestation of intention, to make the vesting depend on the actual sale. ' In all such cases, however, the courts, ever anxious to avoid imputing to a testator a mode of disposition at variance with what is usual and convenient, will diligently seek in the context of the wiU for means of escape ; and in one class of cases, of very frequent occurrence, the literal' force of the language of the will has, even without any such aid Doctrine asto from the Context, been moulded into conformity with proba- enjoyment of y^-^^ intention. The cases here alluded to are those in which property , ■which is sub- a will. Creating a trust for conversion, is so framed as that for'conve'r-"'' the eiijoyment of ih^ cestui que trust is apparently made to sion. -wait until ' actual conversion. The inconvenience of such a postponement is obvious ; it seems hardly supposable that *605 the * testator could mean that the actual enjoyment by the object of his bountj' should be liable to be deferred for an indefi- nite period, by diflEtculties attending the executiqn of the trust, or the want of activity in the trustees in effecting a conversion. To prevent such consequence, a liberal construction has obtained in these cases, and the legatee, until the execution of the trust, takes an interest in the unconverted property, corresponding to that which he would have been entitled to in the proceeds, if the conversion had taken place. Thus, where (m) lands were conveyed upon trust to be sold, and out of the raonej' arising from the sale other lands were to be purchased, to be settled to certain uses, and a person, who would have been tenant in tail under those uses with reversion in fee to himself, levied a fine of the estate conveyed to be sold ; Sir W. Grant held, that though no (t) Elwin V. Elwin, 8 Ves. 547. See also Faulkener v. HoUingsworth, cit. 8 Vea. 558. (m) Pearson v. Lane, 17 Ves. 101. 614 TAKEBS UNDER TEITSTS FOE CONVERSION. *G06 estate was in terms limited to him in that property, yet he was tenant in tail in equitj'; and, by the fine, acquired an equitable fee. [So, where by will trustees were directed to sell an advowson when full, and invest the proceeds for the benefit of A. during her life, and afterwards for other persons, a sale of the advowson not having been effected while the advowson was full, it was held that the right to nominate a clerk was in A. (a^).] But though the general principle is well settled, yet many questions have arisen in the course of its application, especially re- j{„]„f™ specting the precise point of time at which the enjoyment rights of ten- of the legatee for life commences ; the effect of an express ^nd remafn- direction to accumulate the income until conversion ; and, der-man. above all, as to whether the legateij for life of the proceeds is, until the conversion of the propertj', to take the actual income, or the assumed income ; in other words, whether he is entitled to the income accruing from the property in its actual condition, or the income which, if duly converted and invested, it would have yielded. Points of this nature have most commonly occurred under general residuary clauses containing trusts for sale and conversion, in which the principle has to be applied to the various species of property of which a residue is composed. The followiilg positions will be found to embody the chief Kules de- doctrines to be deduced from the authorities : — cases. 1 . In the ordinary case of residuary personal estate being directed to be sold or otherwise converted into money, and the as to income * produce (either with or without a prior express trust *606 during first ^ ^ r r- ygaj of prop- for payment of debts and legacies) laid out in govern- erty duly in- ment or real securities for the benefit of a person for life, at ^^^'^"^s whose decease the capital is given over, without any express appropria- tion of the income accruing before conversion, the income arising from such part of the residue as, at the testator's decease, was actually invested in government or real securities, [or other] securities of the nature contemplated by the investment trust, belongs to the residuary legatee for life from the period of the testator's decease {y).^ 2. In the case alreadj' described, namely, that of a residuarj' bequest [(x) Briggs «. Sharp, L. R. 20 Eq. 31T. And see Hawkins v. Chappel, 1 Atk. 621; John- stone V. Baber, 6 D. M. & G. 439 ; O'Shea v. Howley, IJ. & Lat. 391J (y) Hewitt v. Morris, T. & R. 241 ; Angerstein v. Martin, ib. 232; Dimes v. Scott, 4 Russ. 209 ; La Terriere v. Bulmer, 2 Sim. 18 ; Douglas v. Congreve, 1 Kce. 410; [Taylor v. Clark, 1 Hare, 161 ; Macpherson v. Mac^herson, 16 Jur. 847, 1 Macq. H. L. 243 ; Hume v. Richard- son, 4 D. F. & J. 29; Brown v. Gellatly, L. R. 2 Ch. 7B1. But income arising within the first year from so much of the testator's estate (say consols), as is required for payment of debts and legacies, is not income arising from residue; it falls into and increases the capital of the residue, Holgate v. Jennings, 24 Beav. 623. In other words, there is no residue till those payments have been made, and tenant for life must keep down the interest of debts as well during the first as during subsequent years, AUhusen «. Whittell, L. R. 4 Eq. 295; Marshall «. Crowther, 2 Ch. D. 199 (real estate), and cases there cited. Greislej' v. Earl of Chesterfield, 1 3 Beav. 288, therefore does not furnish a general rule. The income of a fund set apart to answer a contingent claim, arising until the contingency happens or becomes impossible, is income, not capital, AUhusen u.- Whittell, supra, and cases there cited. But see Tucker v. Boswell, 6 Beav. 607.] 1 See post, p. 612, note. 615 *607 RELATIVE EIGHTS OF SUCCESSIVE ■— of prop- containing a trust for sale and conversion, without any ex- erty not duly press appropriation of the annual income until conversion, invested. ^j^^ destination of such income arising within the first .j-ear from the unconverted property (comprising all which does not consist of such investments as the proceeds are directed to be converted into) was long doubtful. In La Terriere i-. Bulmer (z), Sir A. Hart, V.-C, de- cided, that the first year's income formed part of the capital. In Dimes V. Scott (a), Lord Lyndhurst held the legatee for life to be entitled dur- ing the year, in lieu of the actual income, to dividends on so much Three per Cent stock as the proceeds of the property, if converted, would have purchased at the end of the year. In Douglas v. Con- greve (b), Lord Langdale, M. R. (after noticing these conflicting opinions) , gave the legatee for life the actual income arising from un- converted funds, from the testator's death until the end of the year, or until conversion, which should first happen (c) ; a rule which certainly seems to be more just than the first, and more convenient than the second, of the others which have been referred to, [and was *607 * apparently adhered to by the same judge in Mehrtens v. An- drews (rf). However, the rule laid down in Dimes «. Scott has since been repeatedly followed, and must be considered as now set- tled (e).] The ground, however, for the construction which gives the income to the legatee for life of the proceeds from the testator's death, is strengthened, where he has bequeathed out of the fund pecuniary legacies, which are expressly made to carry interest from that period (/) ; and it should seem that such is the invariable rule, where the subject of disposition is a specific property', and the execution of the trust for conversion is not involved in the administration of the general per- sonal estate ; in which case (there being no analog}' to the case of general pecuniary legacies which are payable at the end of a year) the legatee of the dividends or interest would be entitled to the rents from the period of the testator's death (g). [Where the words of the will are sufficiently clear upon the point, the tenant for life will of course be entitled to the income of the property in specie until conversion, however long that may be deferred (h) . The question what words are suflBcient for this purpose, will be discussed presently. 3. The rule that a conversion is to be deemed as having been made (2) 2 Sim. 18. (n) i Euss. 195. (6) 1 Kee. 427. (c) See Angerstein v. Martin, T. & K. 232, [ace. Bat Lord St. Leonards lias said (16 Jur. 847, 1 Macq. H. L. Ca. 243), that when Lord Eldon there decreed tlie dividends on Russia fitoclc to the tenant for life his attention could not have been called to the point. See also per K. Bruce, V.-C, 1 Y. & C. C. C. 318. (d) 3 Beav. 72. (e) Taylor)). Clark, 1 Hare, 161 ; Morgan v. Morgan, 14 Beav. 77 ; Brown v. Gellath-, L. R. 2 Oh. 751; Allhusen v. Whittell, L. E. 4 Eq. 295.] (/■) Fitzgerald ». Jervnise, 5 Mad. 25. The marginal abstract of this case is very inac- curate. ((/) See Hiitcheonw. Mannington, 1 Ves. Jr. 366; Sitwell v. Bernard, 6 Ves. 541. [(A) Sparling v. Parker, 9 Beav. 524; Mackie v. Mackie, 5 Hare, 70; Wrev?'. Smith, 14 Sim. 202; .Johnstone v. Moore, 27 L. J. Ch. 453; Scholefield v. Redfem, 2 Dr. & Sm. 173; Stroud B. Gwver, 28 Beav. 130; Straker v. Wilson, L. R. 6 Ch. 503. In the last two casea executors had. power to determine how much of trade profits should go as income and how much as capital.] 616 TAKERS UNDER TRUSTS EOR CONVERSION. *608 t?ithin a year from the testator's death, is applied in favor of, as well as against, the tenant for life. Thus,] where trustees are di- g^^^j ^f ^j. rected to convert the property (whether it be land into rectionto . , 1 T^ , ,.j . ,7 • accumulate money, or money into land) , and until conversion the, income until couver- is directed to he accumulated and added to the capital ; and it ^'t'"- happens that the conversion is deferred beyond the period of a year from the testator's decease, the process of accumulation ceases, and the title of the legatee for life to the income commences, at the end of such year ; this being considered to afford a reasonable time for the conversion of the property (i) ; and it is * immaterial, in such *608 case, that the clause directing the accumulation of the imme- diate income goes on to provide for its investment {k). Arid it is to be observed, that where the purchase of land is to be made with a pecun- iar}- legacy, which is to come out of the testator's general estate (and payment of which, therefore, may, under the general rule, be made at any time within a year), the twelve months, at which the income becomes receivable by the tenant for life, is computed from the time of the receipt of the legacy (?) . 4. With respect to such portion of the property as is, in point of fact, converted before the end of the year following the testa- ^s to income tor's decease, the legatee for life takes the actual income of °* property , „ . converted the fund constituted of the proceeds from the time of its within the actual investment ; and that too, of course, without regard y'^"' to the fact of there being an express direction to accumulate the profits until conversion or not {m) . 5. If the property [can he, but] is not, actuallj' converted at the end of a j^ear from the testator's decease, it must be computed As to income what would have been the result, if the conversion had taken ,° iiiehcan"be place at such year's end, and the proceeds had been then bat is not invested in Three per Cent stock ; the dividends of which ^thfn fhe stock will form the income to which the legatee for life will y**''- be entitled either from the testator's decease, or from the end of the 3'ear, according to the fact, whether there is not, or is, an inter- mediate trust for accumulation (n). And this rule applies as well where the unconverted fund or property is of a permanent nature, as where it is limited in its duration, as leaseholds, &c. (o).^ [It (i) Sitwell 1). Bernard, 6 Ves. 520; and cases there cited; Kilvington v. Grav, 2 S. & St. 33li; Noel v. Henley, 7 Pri. 241 ; [Stair v. McGill, 1 Bli. N. S. 6fi2;] Vicbers ?■ ."Scott, 3 My. & K. 500; [Tucker o. Boswell, 5 Beav. 607; see alfo \''i,2;or v. Harwood, 12 Sim. 172, where an implied direction to accumulate was altogether disregarded, so that the tenant for life got the income from the testator's death.] (i) Entwistle v. Markland, 6 Ves. 528. (I) Parry ■(!. Warrington, 6 Mad. 154. (m) La Terriere u. Bulmer, 2 Sim. 18; see also Dimes v. Scott, 4 Russ. 209; Gibson a. Bott, 7 Ves. 89. (m) But the stock might happen to be lower at the actual investment at the year's end ; and then, it should seem, a portion of the income would be undisposed of during the life. (o) See Dimes v. Scott, 4 Russ. 209; Mills v. Mills, 7 Sim. 501; [Mehrtens ji. Andrews, 1 See 2 Stor}-, Eq. § 790, and note at the (Smnner's ed.) 839. n. {a); Stapleton ». end. Sitwell v. Bernard, 6 Ves. (Sumner's Palmer, 4 Bro. G. C. {Perkins's ed.) 493, ed.), 520, n. (o) ; Powell ». Evans, 5 Ves. n. (a). 617 *610 EBLATIVB RIGHTS OF SUCCESSIVE *609 * also applies in favor of the tenant for life to moneys recovered after a long interval, and to reversionary interests from which he might derive no benefit, precisely as it is applied against him to property of a wasting nature, from which he would derive more than his proper share of income (/>) ; and the value of such interests is to be calculated, not at what they would sell for at the testator's death, but on their falling into possession it is to be ascertained what would have been the value at the end of a year from the testator's death of a sum of money which, as the event has turned out, was to become payable at the end of so many years, calculated at 4Z. per cent simple interest. On the value so ascertained, the tenant for life will be entitled to his proper number of years' interest, at 4J,. per cent, and the residue of the amount actually received, after deducting the amount of such *610 interest, will form the capital of the fund ; but the tenant for * life 3 Beav. 72; Hume «. Eichardson, 4 D. F. & J. 29 ; Brown v. Gellatly, L. E. 2 Ch. 751.] In Dimes v. Scott, a testator bequeathed the residue of his personal estate to trustees, upon trust, to convert the same into money, and thereout to pay debts, and invest the surplus in ffovern^ ment or re-al security^ for the benefit of A. for life; at whose decease the capital was given to other persons absolutelv. When the testator died, part of his property was invested in an East India security yielding 10^. per cent, on which the executors permitted it to remain for several years, anA dnrmg this period paid over the whole interest to the legatee for life ; Lord Lyndhurst decided that they cauld only be allowed, as a proper' application of income, a sum equal to the dividend on so much Three per Cent Consols as the proceeds of the security, if turned into money at the end of a year from the testator's decease, would have purchased; such dividends to be computed from the decease of the testator; and though it appeared that the fund had actually yielded more than it would have produced if sold at the end of a year, yet the trustees were held not to be entitled to the benefit of this gain, by way of set-off against the claim of the ulterior legatees for excess of income paid to the legatee for life; but were bound to account for both such excess, and also the entire sum actually received on the conversion of the security. [In Kobinson «. Robinson, 1 D. M. & G. 247, where trustees had an option to invest in government or real securities, and had neglected to convert improper investments and a loss had ensued, they were charged, not with so much government stock, (tor they were not bound to choose that mode of investment), but with the money value of the fund at the year's end, and 4i. per cent interest on such value; and it was held to follow that the income of the tenant for life who had acquiesced in the default must also be U. per cent on the same value. But where the only question is what are the relative rights of tenant for life and remainder-man in an improper investment forming part of the testator's estate, the rule in Dimes ». Scott and Taylor v. Clark applies, and whether the will does or does not give an option to invest in government or other securities, the tenant for life is entitled only to dividends on so much consols. Brown v. Gellatly, L. R. 2 Ch. 751. Anderson v. Read, 22 W. R. 527 (cor. Hall, V.-C), where the trust for investment is stated to have been "com- prehensive," appears to be to the same effect. G. 0. 1st Feb. 1861. — The General Order of 1st February, 1E61, does not appear to affect rule in the case of improper securities left unconverted. But securities authorized by it, or by the statutes on which it is founded, are proper investments for a testator's estate, although not expresslj' authorized by the will; and the tenant for life will be entitled as income to the annual proceeds of such investments, when actually found, or made, part of the testator's estate. Hume V. Richardson, 4 D. F. & J. 29. {p) Pickering v. Pickering, 4 My. & Cr. 303 ; Turner v. Newport, 2 Phil. 14, 14 Sim. 32; Hinves v. Hinves, 3 Hare, 6li ; Lord Eldon's observation in Howe v. Lord Dartmouth, 7 Ves. 148; Wilkinson v. Duncan, 2-3 Beav. 469 (where the interest of the tenant for life was held to be the difference between the value at the year's end and the amount actually recovered', which is in fact equivalent to giving the tenant for life il. per cent on the value at the year's end) ; Johnson «. Routh, 27 L. J. Ch. 305, and Countess of Harrington v. Atherton, 2 D. J. & S. 352 (where the tenants for life of the reversion were alread v tenants for life in possession of the fund) ; Cox i). Cox, L. R. 8 Eq. 343 ; Wright v. Lambert. 6 Ch. D. 649. The principle seems not to have been applied^ where the income of a fund set apart for a pai'ticular purpose, becomes during a period undisposed of, and falls into the residue. In such cases the tenant for life of the residue is held entitled only to the income arising from the investments as they are made of the undisposed-of income, and not to the dividends on a sum representing the capitalized value of the undis'posed-of income. See Tucker v. Boswell, 5 Beav. 607; Crawley v. Crawley, 7 Sim. 427; and the oases ante, p. 312, as to the persons entitled to the interest of income directed to be accumulated beyond the period allowed by the Thellusson Act. 618 TAKERS TJNDEE TEXTSTS FOE CONVEESION. *611 will not be entitled to any paj'ment till the fund actually becomes productive (q), and in case of his death before that time his personal representative will of course become entitled. In a case where there were both wasting and reversionary interests, the court, for the benefit of all parties, adjusted the payments to tlie tenant for life out of the wasting interests, so as to compensate for his loss of income under the reversionarj- interests (r) . 6. Where property ought to be, but frOm its nature cannot be, imme- diately converted, at least without great loss to the estate, As to income the authorities are not quite uniform. Thus, in Gibson v. ^^hi'ch cannot Bott(s), where leaseholds directed to be converted could not be converted. be sold for want of a good title. Lord Eldon gave the tenant for life il. per cent from the testator's death on a sum to be ascertained as the value at the testator's death (t). Lord Langdale, in Mehrtens v. Andrews (i«), after the leases had expired, directed a value to be put upon them having reference to the enjoyment had thereunder, and that the income of the tenant for life should be taken as the dividends of the sum of consols which could have been purchased for that value ; and in Mej'er v. Simonsen (j;), where conversion could not, from the nature of the property, be immediately made, Sir J. Parker, V.-C, decided, that interest at 41. per cents hould be allowed. He said there were three distinct classes of cases : ' ' First, where the subject-matter of the bequest is either invested in the funds, or in some security of which the court approves, there conversion is not necessary, and the tenant for life takes the interest of the fund as it is, and the corpus belongs to those in remainder. The second class is where part of the estate can be sold and converted so as not to sacrifice the interest of the tenant for life or of the remainder-man, such a case is one of partial conversion, and the proceeds of the part converted must be laid out on the perma- nent securities approved of bj' the court, of which the tenant for life will take the interest, and the remainder-man the corpus. The tliird class is where the propert}' is so laid out as to be secure and to produce a large annual income, but is not capable of immediate conversion without loss and damage to the estate, as in Gibson v. Bott, and Caldecott v. Calde- cott ( y) . There the rule is not to convert the property, but to set a value upon it, and give to the tenant for life il. per cent on such value, and the residue of the income must then be * invested, *611 and the income of the investment paid to the tenant for life, but the corpus must be secured for the remainder-man (z).] It remains to be considered, how far the preceding rules apply to (o) Taylor v. Clark, 1 Hare, 170. (r) Glengall v. Barnard, 5 Beav. 245. (s) 7 Ves. 89. (0 1 T. & C. C. 0. 320, u. (a). (!i) 3 Beav. 72. (s) 5 De G. & S. 723; see Caulfield v. Maguire, 2 J. & Lat. 162. (y) 1 Y. & C. C. C. 312. (3) And see Featns v. Young, 9 Ves. 549; Walker v. Shore, 19 Ves. 387, 1 Y. &. C. C. C. 321j n. , Amold v. Ennis, 2 Ir. CH. Eep. 601 ; Ee Llewellyn's Trust, 29 Beav. 171; Brown ». Gellatly, L. R. 2Ch. 751 (as to the ships). But see Crawley v. Crawley, 7 Sim. 427, confra. 619 *612 RELATIVE EIGHTS OF STJCCESSIVE How far pre- cases, in which the residuary clause contains no express trust trines^pph- ^^^ Conversion : as where a testator simplj' bequeaths all the to residuary residue of his personal estate in trust for A. for life, and without a after his decease, for B. absolutely. In such cases [the trust for con- general rule of the court is, that all property of whatever version. ° ^ t- l j kind, whether perishable or permanent, except what is in- vested on permanent government (a), or real securities, must be con- verted and invested in SI. per cent Consols (h) . It follows] that as to property, which at the testator's death is invested upon permanent government or even real securities, the legatee for life is entitled to the actual income, i.e. the dividends or interest, from the period of the testator's decease (c).'' But as to propertj- which has a temporary dura- tion onlj-, as leaseholds, or annuities for lives or years, the actual in- come of which, it is obvious, partakes to some extent of the nature of capital, the same rule could not justlj' be applied, as it would evidently have the effect of conferring an undue advantage on the person entitled for life, at the expense of the ulterior taker. The fair course, [and at the present clay the settled rule,] in such cases seems to be, to carrj- to account, as capital, the income accruing from the time of the testator's decease ; and, in lieu of such income, to paj' to the legatee for life from that period, a sum equal to the dividends which the produce of the sale would have j-ielded , if invested in Three per Cent stock ; such invest- ment, however, not being supposed to be made until the period of the actual sale (if within the year), though it regulates the income retrospec- tivel}' from the testator's death. But if the sale does not take place within a j'ear after the testator's decease, the amount must, it should seem, be regulated bj' the presumed proceeds, i.e. the value at, *612 the end of such * j'ear, together, in either case, with dividends on the interim income of the terminable unconverted propertj- (rf).^ (a) Including tliose authorized bv G. 0. 1st Feb. 1861.' (i) Howe i:. Lord Dartmouth, 7 V*es. 1.37 ; Thornton y. Ellis, 15 Beav. 193. Tliis rule applies in favor of one liaving a liEe-annuitv charged on a wasting fund or on I'csidue. Fi'yer v. JBut- tar, 8 Sim. 442; Wightwick v. Lorcl, 6 H. L. Ca. 217. It also applies to reversionary inter- ests in favor of the tenant foi' life, Hinves v. Hinves, 3 Hare, 611: and also where trustees have an express option to convert or retain existing securities, and they decline to exercise it. Prendergast v. Prendergast, 3 H L. Ca. 195; see also Baud i: Fardell, 7 D. M. & G. 633, 634.] (c) Mills «. Mills, 7 Sim. 501 ; and see Howe r. Earl of Dartmouth, 7 Ves. 137. [d) Fearns v. Young, 9 Ves. 549; Howe v. Earl of Dartmouth, 7 Ves. 137; Mills v. Mills, 7 Sim. 601; [Morgan ». Morgan, 14 Beav. 72; Frver r. Buttar, 8 Sim. 442 ; Benn r. Dixon, 10 Sim. 636; Chambers v. Chambers, 16 Sim. 183; Smith e. Pugh, 6 Jur. 701; Lichfield «. Baiter, 2 Beav. 4S1, 13 Beav. 447. But see Sutherland «. Cooke, 1 Coll. 503, and] Crawley ». Crawley, 7 Sim. 427, where il. per cent was allowed, and a remark on the last case, Hayes & ,Iarm. Con. Wills, 3d ed. p. 227. [The rule that the tenant for life is only entitled to" so much for income as the property would have produced if sold and invested m consols, does not apply where the testator dies, and his property and the persons entitled under his will reside out of the jurisdiction of the Court of Chancery, but it attaches as soon as the persons entitled arrive in this country. Holland v. Hughes, 16 Ves. 111.] 1 Lovering v. Minot, 9 Cusli. 151. See Hewett v. Morris, 1 Turn. & R. 241 ; Wil- 2 The decisions generally declare that the liamson v. Williamsnii, 6 Paige, 298 ; Lover- person taking a residue for" life is ordinarily ing v. Minot, 9 Cush. 151. But as to the rule in entitled to the proceeds from the death of the New York, see Wheeler v. Euth\-en, 74 N. Y. testator, and not merely after the expiration 428; Campbell v. Cowdrev, 31 How. Pr. 172, of a year, when the execJutor is not prohibited reversing 1 Tuck. 122, aiid 19 Abb. Pr. 210. from paying the principal within that time. These cases hold that interest begins one year 620 TAKERS UNDER TRUSTS FOR CONVERSION. *613 What would be the destination of income arising from a fund, which, though not wasting or fluctuating, is precariously secured, is more doubtful. It would clearly be the duty of any execu- of afundpre- tor or trustee to call in the money as soon as possible (e) ; ^Q"^a^^y^'''■ but in the mean time, if the fund should happen to yield a larger amount of income than a proper investment (as in the case of a loan on personal security at 10/. per cent), the trustee or executor could not, it is conceived, with safety pay the legatee for life the actual income, though no loss of principal were eventually sustained ; having regard to the severe lesson taught to trustees by the case of Dimes y. Scott (/), in which, however, it is to be remembered, there was an express trust for conversion. Every well-drawn will, of course, precludes all such questions by explicit declaration ; and this remark will serve to conduct to the next point for inquiry, namely, — What amounts to an indication of intention that the legatee for life shall, in exclusion of the general doctrin,e, enjoy in specie the property which is the subject of disposition? This, of course, like all others, is a question of construction, to be elicited from the whole will ; and on which a right conclusion can be formed only by an attentive examina- tion of the cases ; some of which will be found to turn upon rather nice distinctions. It is clear, that where a testator gives the income of a specific fund to a person for life, in terms exclusively applicable to de- scribe the income in the then state of the property, the ulte- ^ns'pre?"^^*' rior legatee cannot call for its conversion, even though it be scribe an of a wasting nature. As in Vincent v. Neweombe (y), ^n''s"pede? where a testatrix who was possessed of long annuities, and no other stock, bequeathed certain annual sums to be paid out of her " funded property," and then gave to A. of a specific the whole of the remainder of her dividends * during *613 bequest; her natural life ; and at A.'s decease, the testatrix (e) Thornton «. Ellis, 15 Beav. 193. But see Johnson t). Johnson, 2 Coll. 441. (/) See [Caldecott ». Caldecott, 1 Y. & C. C. C. 737: but] cmtra Douglas v. Congreve, 1 Keen, 410; [aud Mehrtens v. Andrews, 3 Beav. 72: where the fund was Doth wasting and precarious.] (g) 1 You. 599 ; [and see Cockran v. Cockran, 14 Sim. 248.] after the testator's death, though the statute of it has lately been held in Pennsylvania that that state prohibits payment of legacies until interest cannot be claimed while such refusal a year after the grant of letters to the execu- continued and until demand for the gift. tor. In the recent case of State v. Adams, Vandergrift's Appeal, 80 Penn. St. 116. That before the Supreme Court of Missouri (to is, interest begins from the time of acceptance, appear in 70 Mo.), it was held that where suit, Hamilton ». Porter, 63 Penn. St. 332. See which was dismissed, had been instituted to further as to interest, Weldi). Putnam, 70 Me. contest the validity of a will probated, inter- 209; Ayer d. Aver, 128 Mass. 575; Brown est could not be demanded of the executrix v. Knapp, 79 N. Y. 136 ; 2 Kent, 354, and n. ; until the dismissal of that suit. This pro- Evans i). Eglehart, 6 Gill & J. 171; De Pey- ceeds upon the ground that the executor is not ster v. Clendining, 8 Paige, 295. As to the deemed to be in default so long as he cannot securitj' that may be required by remainder- carry out the provisions of the will. See Val- man of tenant for life, see Howe v. Dart- entine ». Euste, 93 111. 585. Again, a party's mouth, 7 Ves. (Sumner's ed.) 151 ; Homer contest of the will is a refusal of the gift ; and v. Shelton, 2 Met. 194. 621 *614 SUCCESSIVE TAKERS gave sums of stock to various persons, using in such bequests terms applicable not to long annuities, but rather to capital, as 1,000/. stock, &c. The ulterior legatees claimed to have the long annuities con- verted into Three per Cents, on the ground, that, as the long annuities were a decreasing fund, the ulterior legatees might, by the progress of such decrease, be disappointed of their legacies : but Lord Lj'ndhurst decided, that A. was entitled to the residue of the long annuities during her life, under the words " the whole of the remainder of my dividends." A fortiori are trustees not justified in converting into a permanent stock long annuities [passing by a specific bequest of " ail stocks and funds standing in " the testator's name] in trust for a person for life, and then to other persons absolutely {%) ? [But according to the doctrine of the present day, the question does —of anon- iio* c^epend on the legacy being specific or not (A;). j The specific be- same principle applies, even to a residuary clause, if an in- '*"^° ■ tention that the property shall be enjoyed in specie can be collected from the terms in which either the life-interest, or the ulterior subject of disposition, or both these interests, is or are bequeathed. [For the general rule stated above as to the conversion of perishable into permanent securities, did not originally ascribe to testators the in- tention to effect such conversions except in so far as a testator may be supposed to intend that which the law will do : but the court, finding the intention of the testator to be that the objects of his bounty shall ■ take successive interests in one and the same thing, converts the property as the only means of giving effect to that intention. But if the will ex- press an intention that the property as it existed at the death of the testator shall be enjoyed in specie, although tlie property be not, in a technical sense, specifically bequeathed, to such a case the rule does not apply (Z) . It has been said that the effect of the later cases is to allow small indications of intention to prevent its application {m) : but it must be done by a fair construction of the will, the burden being always on those who would exclude the rule (n) . *614 * A direction to renew or keep in repair (o) or to de- Exnressiona ™'®® (i") or discharge incumbrances on {q) leaseholds (r), which pre- points to enjoj'meut in specie ; and where after a bequest menUn"''°^' of a residue for life there is an express trust for conversion specie. at a specified period, it will be inferred that no conversion (i) Lord 9. Godfrey, 4 Mad. 455 ; [see also Milne ». Parker, 12 Jur. 171 ; D'Aglie v. Fryer, 12 Sim. 1; Bethune «. Kennedy, 1 M. & Cr. 117; Hubbard v. Young, 10 Beav. 203 (gilt of *' my property," "my property is in the India House"); Boys w. Boys, 28 Beav. 436 (" property yielding income at my decease " ). And see Mills ». Brown, 21 Beav. 1. (A) Per Lord Langdale, 10 Beav. 205 ; and see 4 Mv. & Cr. 299, 1 Drew. 181, overruling dictum of Shadwell, T.-C, in Mills ». Mills, 7 Sim. 508, 509. (I) Per Wigram, V.-C, in Hinves v. Hinves, 3 Hare, 611. (m) 14 Beav. 82; and see 3 Hare, 612, 613. (») Macdonald v. Irvine, 8 Ch. D. 101. (o) Crowe u.'Crisford, 17 Beav. 507. (p) Hind V. Selbv, 22 Beav. 373 ; Thursby ». Thursby, L. R. 19 Eq. 395. \q) Re Sewell's listate, L. R. 11 Eq. 80. (r) If specifically devised leaseholds are sold compulsorily, and the purchase-money is invested in consols, the tenant for life is entitled to have his income made up out of "the 622 ■WHEN ENTITLED IN SPECIE. *615 is to take place previously to that period, and the tenant for life, there- fore, takes the income in specie («) ; so where there there is a power to sell generally (f) , and a fortiori where there is a direction not to sell without consent (u) , or for a definite term of seven years (x) , or a direction is given either to sell or not (y) . And an express trust to convert all " except government stock" entitles the to convert all tenant for life to specific enjoyment of long annuities (z) . except speci- And this was so held, even though in the same will the trus- tees were directed to invest the proceeds of conversion in " government stock," a direction which admittedly did not authorize them to invest in long annuities : the reason why it did not do so being not that long annuities did not come within the words of the direction as well as within the words of the exception, but because the court would not permit the trustees to select perishable securities (a). From ^o! power to this latter position it is no long step to hold that a power retain sped- to retain ' ' government stock " following a trust to sell ' all (without exception) does not authorize trustees to retain long annuities (&). f^ Still less could long annuities be properly *615 retained (even though there were no express trust for sale), if the power were in general terms for the trustees to leave the testa- tor's moneys invested as thej' should find them (c), or a power to retain n" undoubted real or personal securities "(rf). Again, a power to sail the testator's ships for the benefit of his estate tUl they can be satisfactorily sold (e), or a direction to sell — ofdirec- a horse if a stated sum should be offered, if not, to let him, ferim man"' and if a sale should be made, to invest the money (/), — a agement; corpus, Jeffreys ». Conner, 28 Beav. 328 : and see Re Pfleger, L. R. 6 Eq. 426, and cases cited. But where leaseholds renewable by usage but not by law (as church lands) are thus specifically bequeathed, with a positive' trust" to renew and to pay the fine out of the rents, the testator thus shows an intention to treat the property as permanent: so that if it be compulsorily sold, the tenant for life has no such right. Re Vf'ood's Estate, L. R. 10 Eq. 572. So if renewal is refused by the lessor, the unexpired leasehold ought to be convei'ted into a permanent fund. This, together with the renewal fund, if any, formed out of rents, will be corpns,to the income onl}' of which the tenant for life will be entitled, HoUier v. Burne, L. R. 16 Eq. 163 (where, p. 167, Lord Selborne's statement of "the general law of the court ' is not true if applied to specific gifts, though unless so applied is irrelevant); Maddy ». Hale, 3 Ch. D. 327; distin- guishing Tardiff ». Robinson, 27 Beav. 629, n. ; Morres v. Hodges, ib. 627: Hay ward v. Pile, L. R. 5 Ch. 214; in which there was no absolute trust to renew, and the tenants for life were held entitled to the rents in specie. (s) Alcock V. Sloper, 2 My. & K. 699 ; Hunt ». Scott, 1 De G. & S. 219 ; Daniel «. War- ren, 2 Y. & C. C. C. 290; Harvey V. Harvey, 5 Beav. 134; Rowe v. Rowe, 29 Beav. 276. In Mills V. Mills, 7 Sim. 508, the direction to convert had reference to a conversion into actual money for the purpose of making loans, and did not therefore exclude by implication a previ- ous conversion into other investments. (t) Burton v. Mount, 2 De G. & S. 383; Bowden r. Bowden, 17 Sim. 65; Skirving ». Williams, 24 Beav. 275; Re Llewellvn's Trust, 29 Beav. 171. But see Jebb v. Tugwell, 20 Beav. 84. (u) HinVes v. Hinves, 3 Hare, 609; Ellis v. Eden. 23 Beav. 543. (x) Green «. Britten, 1 D. J. & S. 649. (;/) Simpson «. Lester, 4 Jur. N. S. 1269. (z) Howard ». Kay, 27 L. J. Ch. 448; Wilday v. Sandys, L. R. 7 Eq. 455. See also Grant 11. Mussett, 8 W. R. 330. (a) Per Lord Romillv, L. R. 7 Eq. 457. (6) Tickner ». Old, L. R. 18 Eq. 422. (c) Porter v. Baddeley, 5 Ch. D. 542. And see Re Llewellyn's Trust, 29 Beav. 171 (express trust to convert). {d) Preston v. Melville, 15 Sim. 35 (express trust to convert). (e) Brown v. Gellatly, L. R. 2 Ch. 751. Cf. Thursbv v. Thursby, L. R. 19 Eq. 395. (/) Arnold v. Ennis, 2 Ir. Ch. Rep. 601. See Gibson v. Bott, ante, p. 610. 623 *616 SUCCESSIVE TAKEES sale upon the first good opportunity being in each case evidently contem- plated — shows no intention to alter equities between successive takers, but onlj' to regulate the discretion of the trustees in conducting the sale,' and will not give the tenant for life the actual profits made before sale. So a direction to convert certain specific parts of the personal estate does not imply that the residuary estate is not to be — of trust to , . . . , , ,. . •' „ ,, . , convert spe- Converted (ff) ; neither does a direction to sell the residuary ciiicpart, &c. personal estate for payment of debts and legacies implj' that it is to be sold for no other purpose ; since a sale for the purpose of making those payments is no more than the law itself would order in the common course of administration without an express direction (h) . A power to var^' securities, though an insufficient ground for conversion in the case of a specific gift (*') , yet affords a strong argument in favor of a sale when it has reference to a residuary bequest (j) . Where various items of property are dealt with together, the fact that ^, , some of them are clearlj' to be enjoyed in specie (and more several items especially if these be of a kind which, according to the soine^f/' general rule, ought to be converted), affords an argument clearly sub- in favor of the remaining items having been also intended ]ect sa e. ^^ ^^ ^^ enjoyed (k) ; an argument, however, which requires other corroborative circumstances to render it conclusive (Z). *616 * An intention that the tenant for life shall enjoy the propertj' in specie is sometimes collected from the circum- gTftlrTr*^ stance that the terms of the gift over point to the very mainder property as it existed at the testator's death. Thus, in] very proper- Collins V. CoUins (m), where the words of the bequest were ty. Collins II. u J give to my wife, all and every part of my property, in every shape, and without any reserve, and in whatever man- ner it is situated, for her natural hfe ; and at her death the property so left to be divided in the following manner." Part of the testator's property consisted of a leasehold messuage, held for a term of twentj'- eight j-ears ; and Sir J. Leach, M. E., considered that the ulterior legatees were not entitled to have the lease sold, but that it was the intention of the testator, that his widow should enjoj' the leasehold property for her life. Again, in Pickering v. Pickering (n), where a testator gave to his (ff) Cafe V. Bent, 5 Hare, 34 ; Morgan v. Morgan, 14 Beav. 85, 86 ; Hood v. Claphani, 19 Beav. 90. Stcus where all is directed to be sold except specific parts, see cases cited ante, p. 614. (A) Caklecott v. Caldecott, 1 Y. & C. C. C. 312 ; Sutherland v. Cooke, 1 Coll. 498; John- son V, Johnson, 2 Coll. 441. (/) Lord y. Godfrey. 4 Mad. 455. (j) Morgan v. Morgan, 14 Beav. 85. (k) Bethuiie v. Kennedv, 1 My. & Cr. 114: Burton v. Mount, 2 De G. & S. 383; Simpson V. Earls, 11 Jur. 921, V.-C3. Wigi-am; House v. Wav, 12 Jur. 958, 18 L. J. Ch. 22, V.-C. Wigram; Howe v. Howe, 14 Jut. 359 (K. Bruce, V.-C); Cotton v. Cotton, ib. 950; Booth o. Coulton, 7 Jur. N. S. 207 (freehold distillery with utensils, &c., lot together at one rent); Holgate V. Jennings, 24 Beav. 623, where it was said that though' investments wore to be enjoyed in specie, debts, as turnpike bonds, must be got in, (/) Howe V. Earl of Dartmouth, 7 Yes. 138; Blanii v. Bell, 5 De G. & S. 658, 2 D. M. & G. 775.] (m) 2 My & K. 703. (n) 2 Beav. 31. 624 WHEN ENTITLED IN SPECIE. *617 wife, subject to the payment of his debts and legacies, and Kckering v. such annuities and assurances as he was liable to pay, all the interest, rents, dividends, annual produce and profits, use and enjoy- ment, of his real and personal estate, for life ; and at her decease, the testator gave all the rest and residue of his estate, real and personal, to his son-in-law ; but, in case of his dying before the testator's wife, then he directed the residue to be divided in manner therein mentioned. Part of the testator's property consisted of a leasehold house and a life- annuity ; and the charges thereon also comprised annual payments. Lord Langdale, M. R., decided, that in this case the testator had indi- cated an intention that the property should be specificallj- enjoyed by his wife during her life ; and Lord Cottenham, on appeal (o) , was of the same opinion ; grounding his judgment especially on Collins v. Collins, to which he thought the direction to divide the property on a certain event pi'ecisely assimilated the case before him. He remarked that in Collins V. Collins there were expressions only applicable to the actual condition of the property. [In Harris v. Poj'ner(p), the testator devised and bequeathed all the residue of his real and personal estate, " and all his Harris v. estate, term and interest therein," to trustees in trust for Pojner. his wife for life, and after her death, he devised "<^« same, and all his estate, term and interest therein " to his son ; Sir E. Kindersley, V.-C, thought *that the testator intended the son to take the *617 identical property, and, therefore, that there was to be, no con- version during the life of the widow. In Pickup t?. Atkinson(9), the ground on which the conversion was opposed was, that there was a gift to the tenant for life of j.^^^^.^ ^j ^^ the rents, profits, dividends and interest of all the residue, of rents to &c., and that if leaseholds comprised in the residue were to '«"a°'*<""'>f«- be converted, the word "rents" would, in effect, be struck out of the will. In support of this Goodenough v. Tremamondo (r) was cited, where Lord Langdale, M. R., relying on the use of that word in the gift for life, and gift over, held that there was to be no conversion ; but Sir J. Wigram, V.-C, in deciding that there must be a conversion in the case before him, said, that according to that argument, the use of the words " dividends" («)," interest," would prevent the conversion of any property yielding income denominated by those words. How- [(o) 4 Mj'. & Cr. 289. ( p) 1 Drew. 174 ; but see Lichfield t). Baker, 2 Beav. 481, 13 Beav. 447 ; Thornton v. Ellis, 15 Beav. 193 ; Bowden v. Bowden, 17 Sim. 65. (q) 4 Hare, 624. (r) 2 Beav. 512; and see Marshall v. Bremner, 2 Sm. & Gif. 237; Crowe )). Crisford, 17 Beav. 507; Skirving v. Williams. 24 Beav. 275. And apparently its effect is not impaired by the circumstance of the leaseholds being included in the same gift with freeholds : i. e. the word is not applied exclusively to the latter, Hood v. Clapham, 19 Beav. 90; Wearing v. Wearing, 23 Beav. 99 ; Vafhell v. Koberts, 32 Beav. 140; but see Craig v. Wheeler, 29 L. J. Ch. 374. (s) Some stress was laid unon this word b v Sir .T. Leach, in Alcock v. Sloper ; and see Blann o. Bell, 5 De G. & S. 658; Bowden v. Bowden, 17 Sim. 65. VOL. I. 40 625 *618 STJCCESSIVB TAKEKS ever, in Cafe v. Bent (t) , where a testator directed a percentage on the receipt of the " rents " of the residue, after satisfying " all ground rents and other outgoings," to be paid to his son, and none of the property included in the residue except leaseholds produced "rents," the same judge held that the leaseholds were to be enjoyed in specie. This con- clusion was probably fortified by a different percentage being given on the " dividends " arising from the residue.] Sometimes, a testator combines with the general words of a residuary Effect where ''l^use, an enumeration of certain species of property, thus there is an raising the question, whether the enumeration is to be con- of "pedHc"" sidered as taking the specified property out of the rule appU- items com- cable to a general residue. [There is great authority for binedwith . ° !- „ ,. ^, , .. . general saymg that such enumeration of particulars, unless it is residue. enough to make the bequest of those particulars properly " specific," is insufficient of itself to exclude the rule (m).] *618 *In Bethune v. Kennedy (a;) , [the bequest was held to be Bethimeti. specific] There a testatrix, after bequeathing lOOZ. long Kennedy. annuities to A. and B., added, " the residue of my property, all I do or may possess in the funds, copy or leasehold estates, to my dear sisters M. and H., during their lives; at the decease of both of them to be equally divided, share and share alike, between mj- cousins " (naming them). Part of the residue consisted of 150/. long annuities ; and the question was, whether the legatees for life were entitled to re- ceive the annuities, or whether they ought to be turned into a permanent fund. Sir C. C. Pepys, M. R., decided in favor of the former construc- tion, on the ground, that it was not a mere residuary clause, but a spe- cific bequest of the sum belonging to the testatrix in the long annuities ; and was to be enjoj-ed bj' the legatee for life, in the state in which the testatrix left it. As to the copj-hold or leasehold estates, he said, it was not disputed that the gift was specific ; and if so, wh3' should it not also be specific with respect to the funds ? The intention, it was reasonable and natural to presume, must have been the same with respect to both descriptions of property ; and there could be no doubt, he observed, that a bequest of all that a testator may possess in the funds, would be a specific bequest of all funded property ; the rule being, that the leg- acy is not the less specific for being general. The M. R. considered, that the case was distinguishable from Alcock v. Sloper, where the argument in favor of the non-conversion was founded on the terms in which the income was given, and not (as here) on the mode of bequeath- ing the capital. [The decision in the last case was followed by Lord Lyndhurst, C, in (() 5 Hare, 24; see Neville v. Fortescue, 16 Sim. 333. (m) Stirling v. Lydiard, 3 Atk. 199; Mills v. Mills, 7 Sim. 508; House v. Wav, 18 L. J. Ch. 22, 12 Jur. 969; Cotton v. Cotton, 14 Jur. 960; James v. Gammon, 15 L.J. Ch."217; Simp- son ». Earles, 11 Jur. 921; Pickup v. Atkinson, 4 Hare, 628; and see Sutherland v. Cooke, 1 Coll. 604; Morgan v. Morgan, 14 Beav. 72; Craig v. Wheeler, 29 L. J. Ch. 374; Re Tootal'a Estate, 2 Ch. D. 628.] (a) 1 My. & Cr. 114. 626 "WHEN ENTITLED IN SPECIE. *619 Vaughan v. Buck(y), on a will of doubtful construction, "Vaughani;. which the L. C. said might for the purpose now in question ''■ be read thus: "I give the whole of my property, viz., my house, 21 North Street, 1,000Z. New 4Z. per cents, 1,500Z. in the 3/. per cent Consols, 6Aol. in the SI. per cent Reduced, and 201. per annum long annuities with the residue and interest, if there should be any, to my wife for life, and after to be divided equally between my surviving chil- dren : " it was held that the widow was entitled to enjoy the house, which was leasehold, and the long annuities, in specie. " With respect to the house," Lord Lj^ndhurst said, "the bequest is clearly specific, and as to the long annuities they constitute one of the items in the * testator's property existing at the date of the will, and which *619 by this description he bequeathed to his wife. . . . Bethune v. Kennedy is similar in principle, and corresponds nearly in its circum- stances with the present." In Oakes v. Strachey (z) , there were two gifts to the testator's wife during widowhood, first, of the interest of all the money the oakes v. testator had or might possess in the funds or on other securi- Strachey. ties ; and, secondly, of the interest of all his other propertj', for the maintenance of herself, and the maintenance and education of the tes- tator's children by her: the V.-C. thought the testator had drawn a distinction between the two sorts of property, and that the former was to be enjoyed in specie, and the latter not. If wasting property (as leaseholds) bequeathed in specie be converted into a permanent fund, with the consent of the tenant for life, and he survives the period when the leaseholds would version of have expired, the capital of the permanent fund will become ■wasting prop- the absolute property of the tenant for life (a) . But a lease, consent of in which the tenant for life is cestui que' vie, would practically f?,"""' *°'" not become his absolute property immediately, at least not so as to enable him to assign or surrender it ; for the chance of renewal for the benefit of the remainder-man would be thereby lost, and it seems that on this account a sale or surrender by him would be set aside (J) . It may be here added, that a tenant for life in specie of a share in a partnership has been held not entitled to the increase of the capital made during his life (c).] IV. It is clear, that, where a testator directs real estate to be converted into money, for certain purposes, and the trusts of the will Destination directing the application of the money, either as originally posed-of in- created, or as subsisting at the death of the testator, do not t«''ests in exhaust the whole beneficial interest, such unexhausted inter- rected to be converted. [(j) 1 Pliill. 75; see also Hubbard v. Young, 10 Beav. 203; Mills v. Brown, 21 Beav. 1. (2) 13 Sim. 414. . (a) Phillips V. Serjent, 7 Hare, 33; Re Beaufoy's Estate, 1 Sm. & Gif. 20. (i) Harvey v. Harvey, 5 Beav. 134, where, however, under the peculiar circumstances, the sale was not held bad. (c) Mousley v. Carr, 4 Beav. 49.] 627 *620 DESTINATION OF INTEEESTS UNDISPOSED OF est, wliether the. estate be eventually sold or not (d), belonigs to the heir as real. estate undisposed of (e). The heir is ex- *620 eluded, not by the * direction to convert, but by the disposition of the converted property, and so far only as, that disposition ex- tends. Thus, in Wilson v. Major (/), where lands were given by a testator to his wife upon trust to sell and invest the money upon secur- ity at interest ; and he gave and bequeathed the interest and dividends of the same to the use of his said wife, without making any ulterior disposition of the fund. Sir W. Grant, M. R., held, that, there being no declaration of the trust of the money beyond the life of the wife, it resulted to the testator's heir. And the same principle, it is now settled, applies in the converse case of money being directed to be laid out in land, which is same, then devised for a limited estate Onl^- ;, the fund «/fra that OT mone 'is*^ interest, though eventually turned into land, goes as personal the object of estate undisposed of to the residuar}' legatee or next of coaversion. j^^^^ ^^ ^j^^ testator, on the ground that the will operates to convert the fund so far only as it disposes of it.^ , Thus, in Cogan v. Stephens (g), where the testator directed his executors immediately to lay out the sum of 30,000^. ini the purchase of an estate, the income of which he settled on one for life, with remainder to others in tail, subject to which the estate (which was to be purchased and always run in the testator's name) was given to a charity. The monej' was not laid out, and the gift to the charity being void under the Statute of Mortmain, and the prior limitations having determined, it was held by Sir C. Pepys, M. R., that the next of kin, and not the heir at law of the testator, was entitled to the fund. So, in Hereford v. Ravenhill (A) , where a testator gave his ready money and the money which should be owing to him, to trustees, upon trust, as soon after his decease as a convenient purchase could be found, to invest it in the purchase of freehold, copyhold, or leasehold heredita- ments to be settled to certain uses. These limitations having failed (some of them in the lifetime of the testator, and the rest subsequently). Lord Langdale, M. R., in a suit for ascertaining who was entitled to the fund, which had not been laid out, held, that the heir was not a neces- sary party ; observing, that it had been decided in Cogan v. Stephens that where a testator directed his personal estate to be converted into (d) See Hill v. Cock, 1 V. & B. 173. (e) 2 Veen. 571; ib. 645; 3 P. W. 20; 2 Dick. 500; 1 B. C. C. 503; 2 B. C. C. 589; 3 B. C. C. 355; 4 B. C. C. 411 ; 2 Ves. Jr.. 271; ib. 683; 3 Ves. 210 ; 4 Ves. 542; ib. 803; 10 Ves. 500; 11 Ves. 87; ib. 205; 12 Ves. 413; 16 Ves. 188; 18 Ves. 156; 1 V. & B. 173; ib. 410; 2 V. & B. 294; 2 Kee. 564; [1 R. & M.v. 752; 5 My. & Cr. 125 ; 4 T. & C. 507.] The case of Ogle v. Cook, cited 1 B. C. C. 512, had been considered as a solitary exception to this class of cases ; but it was afterwards discovered that the very point which "was alleged to have'made it so was left undecided. See R. I., cited 2 Ves. Jr. 686. (/) 11 Ves. 205; see also Robinson ». Tavlor, 2 B. C. C. 389. (g) 1 Beav. 483, n. [5 L. J. N. S. Ch. 17.] (h) 1 Beav. 481. 1 See Fletcher v. Aahburner, 1 Bro. 0. C. (Perkins's ed.) 497, 503, n. (o) ; 2 Story, Eq. Jur. § 790, and notes. 628 UNDER TEtrSTS FOR CONVERSION. *622 real estate for several purposes, some of which failed, his heir was not, after satisfying the purposes which would take effect, entitled to the * personalty, as being impressed with the character of real *621 estate ; [and he subsequently decreed the residuary legatee to be entitled (i)-] And the same rule obtains, where the testator's disposition of the converted property, though originally complete, has partially Lapsed failed in event by the decease of any one of the obiects in ^l"*™^ "/ P™- C66QS 01 r6Ri the testator's lifetime ; in which case the interest comprised estate de- in the lapsed gift devolves to the person who would have "^"^^^ '° ^^"'' been entitled to the entire property, if the testator had died wholly intestate in regard thereto. The title of the heir, under such circumstances^ to a lapsed share of, real estate directed to be sold, was established in Acfcroyd v. Smith- son {k), well known as containing the celebrated argument of Lord Eldon (then Mr. Scott) , which Lord Thurlow admitted to have changed his opinion. The testator devised all his real and personal estate in trust to be sold and converted into money, to pay debts, legacies, and funeral expenses ; and the overplus to be paid to certain persons (to whom he had bequeathed pecuniary legacies), in proportion to their respective legacies. Some of these legatees died in the testator's life- time ; and, on a question whether their lapsed shares belonged to the heir at law or next of kin of the testator. Lord Thurlow at first in- clined to the opinion that the next of kin were entitled', but, upon further argument, he decided in favor of the heir. He said, that he used to think, when it was necessary for any of the purposes of the testator's disposition, to convert land into money, that the undisposed- of money would be personalty ; but the cases fully proved the contrary. It would be too much, he observed, to say, that if all the legatees had died, the heir could, as he certainly might, prevent a sale ; and yet that, because a sale was necessary, the heir should not take the undis- posed part of the produce. So, if the produce of real estate directed to be sold be disposed of in a certain event which does not happen, or for a purpose Effect of fail- which is illegal, the beneficial interest comprised in the "f® °f <'.^™« • contingent or illegal gift which- thus fails ^devolves to the gen™°o°" heir. illegality. And it is, of course, immaterial that the testator has combined his personal estate in the same gift with the proceeds of the real Faille of estate ; the effect in such case being, that, by the fail- • disposition of lire * of the intended disposition, the real estate de- *622 sonal estate scends to the heir, and the personalty devolves to the respectively. [(i) Hereford i). Eavenhill, 5 Beav. 51.] Fletcher v. Chapman, 3 B. P. C. Toml. 1 [where, however, no claim appears to have been made by the next of kin], and a dictum of Lord Kedesdale, 3 Dow, 207 (see also 4 B. C. C. 527) are thus virtually overruled. (k) 1 B. C. C. 503. [But where the court ora trustee sells" more than necessary of the estate of a liviny owner, there is no equity to reconvert for his heir. L. E. 18 Eq. 197 •, ante, 162.] 629 *6-23 DESTINATIOK OP INTEEESTS UNDISPOSED OF next of kin of the testator. Thus, in Jessopp v. Watson (/), where a testator directed a mixed fund, composed of the produce of his real and personal estate, to be applied to certain specified purposes, and the residue to be divided equally among his children or child at twenty- one, if sons, and twenty-one or marriage, if daughters ; and if no such child, to such person or persons as he should by his codicil appoint. The testator died without having made a codicil, leaving an only daughter his heir, who died under twenty-one, intestate and unmarried. Sir J. Leach, M. R., held, that so much of the residuar}- fund as was constituted of real estate, descended to the daughter as heir at law ; and that so much as was constituted of personalty devolved to and was divisible among the persons entitled under the Statute of Distribution to the personal estate of the testator. So, in Ej're v. Marsden (m), where a testator gave his real and per- sonal estate to trustees upon trust, at any time after his decease to sell and convert the propertj^ and during the lives of his children to accu- mulate the annual income ; and, after the decease of his surviving child, he gave the produce of the real and personal estate (directing such part as had not been previously converted, to be then converted) to his grandchildren. One of the children having survived the testator more than twenty-one years, the trust for accumulation became void for the excess under the Thellusson Act(w), and the income, being held to be thenceforth undisposed, of during the life of the surviving child, was claimed by the next of kin of the testator, as well of the proceeds of the real as the personal estate, on the ground that there was an abso- lute conversion. But Lord Langdale, M. R., decided that it belonged to the heir, observing that the sale was directed for the purposes of the will, and for the benefit of the legatees, not for the benefit of the next of kin, whose claim was therefore confined to the income of the per- sonal estate. The position that the heir is not excluded by any conversion, how- ever absolute, may seem, indeed, to be indirectly encountered by those cases in which a distinction has been carefully drawn between absolute and qualified conversion (o). The learned Editor of Peere Wil- *623 liams's Reports, in a note which has often * been referred to with commendation (/>), states the question in those cases to be, " whether the testator meant to give to the produce of the real estate the quality of personalt^"^ to all intents, or only so far as respected tiie Conversion particular purposes of his will." ' There seems to be no oTwiil— ^^* ground to except to this statement of the doctrine, pro- what. vided that, by an indication of intention to give to real (0 1 Mv. & K. 665; [see also Roberts v. "Walker, 1 R. & My. 752; Edwards v. Tuck, 23 Beav. 268; Bedford v. Bedford, 35 Beav. 584.] (?n) 2 Kee. 574. (») Ante, p. 302. (o) Wright v. Wright, 16 Ves. 188. Ip) Criise V. Barley, 3 P. W. 20, Mr. Cox's n. 1 See Wheldale «. Partridge, 5 Ves. (Sum- Ves. (Sumner's ed.) 279 6, n. (6); 2 Story, ner's ed.) 397, n. (a); Brown v. Bigg, 7 Eq. § 793. 630 UKDEE TRUSTS FOE CONVEESION. *624 estate the quality- of personalty "to all intents," we are allowed to understand something verj' special and unequivocal, amounting, in effect, not merely to a disposition of the fund as personalty to the legatees named in the will, but to an alternative gift to the persons entitled by law to the personal estate, in the event of the failure of the intended disposition. Unless such an interpretation be given to the terms of this proposition, it must, however respectable the authority from which it proceeded, be pronounced to be not strictly accurate ; at all events, it is not an explicit statement of the rule, and requires, it is conceived, in order to be a safe guide in its application, the following explanatory addition : "But that every conversion, however absolute in its terms, will be deemed to be a conversion for the purposes of the will only, unless the testator distinctly indicates an intention that it is, on the failure of those purposes, to prevail as between the persons on whom the law casts the real and personal property of an intestate, namely, the heir and next of kin." The respective claims of his own representatives, it may be confidently affirmed, are, in such cases, not in the contemplation of the testator, who always calculates on his lega- tees surviving him. [Accordingly, it is now settled, that neither a direction that the proceeds of the sale of land shall be deemed per- sonal estate {q), nor such a direction joined with an express declaration that the heir at law shall not take in case of lapse (r), will exclude the claims of the heir at law.] Upon the principle that real estate directed to be sold is converted onlj- for the purposes of the will, it was held by Sir W. Grant (s), that such a devise in trust to pay certain legacies ^\an subject-" did not throw open the fund to simple contract credi- '^S f""* to tors, though he * said that a substantive and inde- *624 tract debts, pendent intention to turn real estate into personalty, at all events, would have that effect.' Such a conversion, however, as that referred to by his Honor, must be of a special kind. It must have no specified object, for a specification of the object, we see, will con- fine it; or it must contain some expression showing that it is not so confined. In short, it must be manifest that the property is to be con- sidered as personalty quoad this purpose, or, in other words, that the fund is intended to be subjected to the claims of simple contract credi- tors. In Kidney v. Coussmaker {t) , it had been held, that where a testator had devised real estate in trust to be sold, and directed the [(?) Taylor jj. Taylor, 3 D. M. & G. 19n, overruling Phillips v. Phillips, 1 My. & K. 649; and see Robinson v. London Hospital, 10 Hare, 19; Gordon v. Atkinson, 1 De &. & S. 478; Flint V. Warren, 16 Sim. 124; Shallcross v. Wright, 12 Beav. 505; Hopkinson v. Ellis, 10 Beav. 169; Williams V. Williams, 5 L. J. N. S. Ch. 84; Collins v. Wakeman, 2 Ves. Jr. 683 (as to the 1,000(.). But Jessel, M. R., though he admitted it was so settled, yet thought such a direction might well have been held to mean that the next of kin should take. 1 Ch. D. 610. (!■) Fitch V. Weber, 6 Hare, 145 ; Sykes v. Sykes, L. E. 4 Eq. 200.] (s) Gibbs ». Ougier, 12 Ves. 413. («) 1 Ves. Jr. 436. 1 See on this point Kidney v. Coussmaker, 1 Ves. Jr. (Sumner's ed.) 436, n. (»). 631 *625 DESTINATION OF INTEBESTS UNDISPOSED OP produce [to be applied in payment of the incumbrances ou the estate, and the remainder] to be considered as part of [the residue of his] personal estate, and then bequeathed the [residue of his] personalty after payment of his debts, the fund was subjected to the debts. Sir W. Grant, in the last case, expressed his doubt of the soundness of the decision, [but more recently it has been approved (m). Again, where a testator, having devised lands to trustees upon trust _ for sale, did not dispose of the surplus proceeds, and died titled where Without heir or next of kin, it was held that the crown had no heir. j^q ^^^^e to the surplus proceeds (as it would have had if they had been personalty) , but that the trustees were entitled to retain them for their own benefit (x).] In farther confirmation of the principle in question, it is now set- A to Dr ^^^^ ^^^^ ^^^ undisposed-of residue of money to arise from ceeds of real the sale of real estate will not pass under a general bequest ing unil^a °*" personalty in the same will, unless the testator expressly residuary be- declare that it shall be considered as part of his personal estate, [or mnless such an intention can be collected from the force and meaning of the expressions used by the testator through the whole will (y). Thus, in Berry v. Usher (z), the appointment of two persons as joint Berry v. residuary executrix and executor was held not to give them Usher. ^jje proceeds of real estate directed to be sold. And in] Maugham v. Mason (a), where A. devised freehold chambers to trustees Real fund ^^^ their heirs, upon trust to sell, and apply the money will not pass arising by such sale towards paj-ment of the legacies quest *f per- *625 by Ms will * bequeathed ; and the rents, until sold, sonalty. ^o be applied to the same uses ; and after giving cer- tain legacies, the testator then, as to all the residue of his personal estate, after payment of his debts, &c., bequeathed the same to trus- tees, upon trust to convert the said residue into money, and lay the same out as therein mentioned. Sir W. Grant held that the produce of the sale of the real estate, after payment of the legacies, resulted to the heir, and did not pass under the residuary bequest. This construction, it will be observed, was somewhat aided by the circumstance of the trust being to convert the residue into money, which could not strictly apply to the money produced by the real estate ; but the M. R., though he adverted to this circumstance, decided the case upon the general principle, that where there was a direction to sell land for a particular purpose, the surplus did not form " part of the personal estate, so as to pass by the residuary bequest." [So, in Dixon v. Dawson (b) , the testatrix devised and bequeathed t(u) Bright V. Larcher, 3 De G. & J. 156; Field v. Peckett, 29 Beav. 568. (i) Tavlor v. Haygarth, 14 Sim. 8. See also Cradock v. Owen, 2 Sm. & Gif. 244, 245. («) See per Sir /leach, in Phillips v. Phillips, 1 My. & K. 661. ni 11 Ves. 87.] . (a) 1 V. & B. 410. [(i) 2 S. & St. 327. 632 tnSTDEE TRUSTS FOE CONVERSION. *626 her real and personal estate upon trust to sell and convert, Dixon ». and out of the proceeds of the real estate to pay her debts O^^^""- and testamentary expenses, and also certain legacies and annuities, and in case the proceeds should be insufficient then to pay the same out of the personal estate, and she also bequeathed legacies to charities to be paid out of her personal estate, and then proceeded thus : ' * Should any part of my personal estate and effects still remain undisposed of, after satisfying all my just debts and personal and other incidental ex- penses, and providing for the said charities herein mentioned, and pay- ing the several legacies or sums of mone}' herein bequeathed or directed to be paid thereout, then upon trust that my said trustees shall pay and transfer the residue and remainder of my said estate and effects not hereby otherwise disposed q/unto, &c." It was decided by Sir J. Leach, V.-C, that the last gift did not include the residue of the proceeds of the real estate, and that the heir at law was entitled. And in Collis v. Robins (c), where the testator devised real estate upon trust for sale, and out of the proceeds and the rents in Cojijg ^. the mean time to pay the testator's debts and the trustees' Robins, costs and certain legacies, and the will then proceeded, " and as to all and singular my ready moneys and securities for money to * me belonging, and all other my personal estate and effects *626 whatsoever and wheresoever the same may be at the time of my decease, I give and bequeath, &c." Sir J. K. Bruce, V.-C. , held that the surplus of the proceeds of the real estate belonged to the heir at law.] • But it is clear that if there be a declaration that the money arising from the sale shall be considered as part of the testator's Effect of dec- personal estate, it will pass under a general bequest of per- laration that sonalty in the same will. [For although there is no clear shall be per- authority in the affirmative («?), yet the argument adopted sonalty. with reference to such a declaration in cases of intestacy as to part of the produce of land directed to be sold, viz., that the testator has adapted his language to a case of testacy but not to a case of intes- tacy (e) , while it excludes the next of kin admits the claim of the residuary legatee.] And it seems, that where the testator has blended the proceeds of the real and personal estates in regard to one legatee taking a inference temporary interest, it is to be inferred that he does not in- that real and tend them to be subsequently severed ; and accordingly, in fate once such a case, very slight circumstances will suffice to extend '''Y'^'k "^ a bequest applicable in terms to the personalty only, to the afterwards produce of the real estate, in order to avoid such severance, s^^^"^^"!- (c) 1 De G. & S. 131. See also Brown v. Bigg, 7 Ves. 279, stated ante, p. 603.1 1(d) The point was mcluded in the decision of Collins v. Wakeman, 2 Ves. Jr. 683, but was not argned for the heir. It seems to have been assumed, Robinson e. London Hospital, 10 Hare, 27. (f ) See per Turner, V.-C., Robinson «. London Hospital, 10 Hare, 19, and other oases cited above.l 633 *627 DESTINATION OP INTERESTS UNDISPOSED OF Thus, where (/) a testator gave his real estate and the residue of his personalty to trustees, to sell and convert the same, and invest the pro- ceeds, and then gave the interest, dividends and produce of the whole of his real estate, and of the residue of his personalty, to his wife for life, and after her decease he gave one moiety of the interest, dividends and produce of the residue of his personal estate and effects, or the securi- ties on which the same should be invested, to his brother M. , his execu- tors, administrators and assigns, and he gave the other moiety of the interest, dividends and produce of the residue of his •personal estate and effects, or the securities on which the same should be invested, to his sister-in-law B. for life ; and, after her decease, he gave the whole of the principal of such moieties, or the whole residue of his estate whatso- ever and wheresoever, and the securities on which the same should be invested, to his said brother M., his heirs, executors, administra- *627 tors and assigns ; and the question being, * whether the sister- in-law was entitled to a moiety of the income arising from the proceeds of the real estate, Sir J. Leach, M. R., decided in the affirma- tive ; he said, that the testator had made one mixed fund of the residue of the personalty and the proceeds of the sale of the real estate ; that the whole was to be invested in government stocks, or on real securi- ties, and the interest was to be paid to the widow during her life ; that there was no intention that upon her death a division should take place of the personalty from the produce of the realty ; and, in fact, such a division could not be made ; that, therefore, the testator, in the moiety given to B. during her life, meant to include the real estate ; and that this conclusion was strengthened by the clause immediatel3' following, in which the testator used the phrase, " the whole of the principal of such moieties," as synonj'mous with, and equivalent to, "the whole residue of my estate, whatsoever and wheresoever " (g) , and which was, consequent!}', a declaration that the moieties of which he spoke were moieties of the whole residue of his estate. [The blending of the proceeds of the two estates for any purpose not exhausting the whole is always taken as rendering probable an inten- tion that they shall be kept together throughout, and as inviting such a construction of subsequent words of gift as will carry that intention into effect. Thus, in Court v. Buckland (A) , where a testator devised and bequeathed his real and the residue of his personal estate in trust to sell, and to dispose of the net moneys to arise from such real and resid- uary personal estate (after paj'ment of debts and legacies) according to the trusts thereinafter declared concerning the same. He then declared that until sale the real and personal estate should be subject to the trusts thereinafter declared concerning the said net moneys, and that the rents and annual produce thereof should be deemed income for the pwposes of the same trusts, and that the real estate should be transmis- ( f ) Byarn v. Muiiton, 1 R. & My. 503. [{g) See Wall v. GoUUead, 2 De. G. & J. 683. (Ji) i. Ch. D. 605. See also Spencer v. Wilson, L. E. 16 Eq. 501. 634 TJNDBK TRUSTS FOE CONVEESION. *628 sible as personal estate. The testator then directed a sum to be set apart out of the said net moneys to answer a Ufe-annuity, subject to which it was to form part of his residuary personal estate : and, subject to the annuity and to legacies and debts, the testator directed his trustees to stand possessed of his residuary personal estate in trust as to one moiety for his son, and, as to the other, for his daughter and her chil- dren. Sir G. Jessel, M. R., held that the net * proceeds of the *628 real estate were included in the trusts of the " residuary per- sonal estate." He adverted, among other points, to the blending of the two estates, for the payment of debts and legacies and of an annuity, as warranting the inference alluded to above. .He also noticed that the direction to treat the rents until sale as income " for the purposes of the same trusts" (i.e. the trusts of the net moneys) was unmeaning unless it referred to beneficial trusts of the income, and was intended to exclude the rule of the court, which gives the beneficiaries not the actual income but the dividends of so much consols. But, he observed, there were no trusts at all to which this direction, or to which the words "trusts hereinafter declared concerning the same" could apply, unless they applied, to the trusts of "the residuary personal estate;" which trusts, moreover, were declared "subject to the annuity and to the debts and legacies," which the testator had before said were to come out of the " net moneys." Again, in Singleton v. Tomhnson («) , a testator directed his execu- tors to pay his funeral expenses and debts " out of the pro- Effect, after ceeds of his property." He then recited that he was pos- blending, of ,-.1.1 i )■ 11. 1 1 . appointing a sessed of "landed and chattel property, and directed his "residuary executors to sell his "landed estates" for the best price. ^^S^'^e." He gave certain legacies ; he specifically devised a certain estate ; and specifically bequeathed his plate and furniture ; and concluded, " I constitute A. my residuary legatee." It was held in D. P., that A. was entitled to the surplus proceeds of the real estate, as well as of the per- sonal estate, after payment of the funeral expenses, debts and legacies. Lord Cairns said it was a complete scheme of disposition of the whole of the testator's propertj' of every kind, his intention being that his ' ' property " (which clearly included real as well as personal property) should be turned into money, that his debts and his legacies should be paid, that the furniture and plate should be delivered to the person to whom it was bequeathed, and that he who was described as the " resid- uary legatee " should be entitled to the whole of the surplus. The term "residuary legatee" standing alone, or (above all) in a will which ap- peared to make a division between real property and personal property, meant prima facie the person taking what the law calls the resi- (t) 3 App. Ca. 404. See also Wildes v. Davies, 1 Sm. & Gif. 482, and other eases post, Ch. XXII. s. 6. In Griffiths v. Pruen, 11 Sim. 202, the gift was of " any sum appearing after fulfilling " the will, an expression as properly applicable to the proceeds of real estate as to personalty. And see Bromley v. Wright, 7 Ilare, 334.], 635 *630 DESTINATION OP INTEEBSTS UKDISPOSED OF *629 due of the personal property ; but it was a term * which" must be fashioned and moulded by the context^ and where you had a eon- text in which the testator was found looking at his landed property, not as land, but as something which was all tp be sold and turned into money, then the term became as applicable to the proceeds of landed property as it would have been in the first instance to personal property. In the last case, the heir at law relied oh] Kellett v. Kellett {k) , Keiiettv. ' where a testator bequeathed legacies to several children ; he Kellett. bequeathed his interest in certain lands to A., and then pro- ceeded as follows : " The remainder of mj' properties I devise to my exec- utors to make good the above sums and the following sums, that is to say : " and then, after enumerating other legacies, he concluded thus : "And I ailso ordain, appoint and devise the said W. G. and H. executors to this my last wiU and testament ; also my residuary legatees, share and share alike." It was contended by the executors that the real estates were by the will, and for the purposes of it, turned into personal estate, to the residue of which they were entitled ; or that if there was no such conversion, yet, by the manifest intention of the testator, they were legally and beneficially entitled to such parts of the estates as shbuld remain after payment of the debts, legacies, &c., except the estates specificaU3' devised to A. But [Lord Manners held that the intention was not made plain enough to disinherit the heir] . The exec- utors appealed to D. P., relying principally on the argument, that by constituting them residuary legatees the testator intended them to take the residue of all that was included under the word ' ' properties " in the preceding devise : but the House refused to disturb the decree. Lord Eldon said : "I should very much misrepresent the state of my mind with respect to this question^, if I did not say that it is a state of infinite doubt, whether, according to the rules of law, and as collecting the intention of the testator from the whole of the will, the residue was intended by the testator to include the real estate. It is a whimsical way of putting it ; but I feel a strong bias towards the opinion that he did nlean to include it. I cannot say that the decision in this case is wrong, and I cannot say that it is right; but as I cannot say that it is wrong, it appears to me that the decree ought to be affirmed." Lord Redesdale expressed himself nearly to the same eifect. Although the trust clearly authorized a sale to pay legacies, there *G30 was no express direction to sell ; [a fact upon which Lord * Man- ners laid great stress. But although the land was thus less clearly treated as " something that was all to be turned into money," it is reasonably plain that neither Lord Eldon nor Lord Redesdale, if the case had come originallj' before him, would have held that any part of the testator's " properties " was undisposed of. At the present day, (H) 1 Bai & Be. 633, 3 Dow, 248. 636 ITNDBE TRUSTS FOE CONVEESIOK. *631 the question must be treated as one purely of Gonstruction, unaffected by any special indulgence to the heir. No case, indeed, has gone fur- ther against the heir than the early one of] ' Mallabar v. Mallabar {V) , where a testator devised and bequeathed all his lands in certain coun- ties to his sister C, her heirs and assigns, upon trust that the same should be sold, and out of the moneys arising therefrom his just debts paid ; and out of the remainder of the money he bequeathed certain legacies including one to the heir at law ; and then, after his debts and legacies paid as aforesaid, and subject to the same, the testator gave the residue of his personal estate to his said sister, whom he appointed sole executrix. The produce of the real estate, after paying debts, was claimed by the heir. Lord Talbot admitted parol evidence against him ; but afterwards decreed, upon the will itself, tMt there was no resulting trust, and that the executrix should have the whole residue including the produce of the real estate. The giving of the residue "after debts and legacies paid as afore- said," certainly afforded an argument that it was intended to include the fund in question which had been expressly subjected to those charges. The case has alwaj's been considered as governed by its particular circumstances (m). It is observable, that where a partial undisposed-of interest in real estate directed to be sold results to the heir at law of the tt • ^ i Heir tabes as testator, it becomes personalty m his bands. Thus, in p-^rsonalty — Wright V. Wright (w), where A. devised his real estate in ^"^'^^• trust to be sold to pay his debts, &c., and the residue in trust for his -daughter, but if she died in the lifetime of his wife, to his wife for life, and, at her decease, to go as he (the testator) should by a codicil direct. He left no codicil. The daughter died in the widow's life- time. The reversionary interest in the fund expectant on the widow's decease, which descended to the daughter as the heir at law of * the testator, was, at her death, claimed by her administratrix *631 as personalt3', and by her heir at law as real estate. Sir W. Grant held, on the authority of Hewitt v. Wright (o), (in which the same principle was applied to a disposition by deed), that it was per- sonal estate in the daughter, and accordingly belonged to her adminis- tratrix.. According to the doctrine already stated (/>), it is clear that no act on the part of the heir electing to take such partial interest as real estate would avail to change its character. But if the purposes of the will wholly fail, as if all the legatees of the (0 Ca. t. Talb. 78. (m) 1 V. & B. 416. (n) 16 Ves. 188; see also Smith «. Claxton, 4 Mad. 484; Jessop d. Watson, 1 My. & K. 665; [Dixon II. Dawson, 2 S. & St. 327: Carr ». Collins, 7 Jur. 165; Tily «. Smith," 1 Coll. 434; Hatfield v. Prj'me, 2 Coll. 204; White!). Smith, 15 Jur. i096; Bagster d. Fackerell, 26 Bear. 469; Wilson v. Coles, 28 Beav. 215.] (o) 1 B. C. C. 86. [See also Clarke v. Franklin, 4 K. & J. 257.] {p) Ante, p. 601. 637 *632 DESTINATION OF INTERESTS UNDISPOSED OF Where the iDonej's to be produced by the sale die in the testator's life- objects of the time SQ tiiat there is a total failure of the objects for which conversion ' ■' whoiij' fail, the conversion was to be made, the property will devolve upon the heir as real estate {q) , [and in such a case it is immaterial that a sale has by mistake taken place on the supposition that the trusts have not wholly failed (r) : but the question whether the will causes a conver- sion or not is to be determined by the circumstances as they exist at the testator's death, and therefore where it is uncertain at that period whether a conversion will be required for the purposes of the will, the heir will take the property as personalty, although those purposes may have failed before a sale takes place {s) . In the converse case, i.e. where personal estate is directed to be laid Next of kin out in land, which is to be held on trusts which (either origi- reaUy — "^% ^^ ^V lapse) leave part of the interest undisposed of, where. this partial interest results to the testator's next of kin or residuarj' legatee as real estate, in case of whose death it passes to his heir at law, or devisee (t). On the same principle, when land is devised charged with a sum of money, which is given on trusts which do not exhaust the entire prop- erty in the money, and the undisposed-of interest sinks for the benefit of the devisee (w), the devisee takes it as he finds it, viz. as personalty. This, of course, assumes him to be absolutely entitled to the land (x).] *632 * V. It remains to examine the claim of the heir to undis- Specific posed-of sums of money constituting part of the produce of ou"of''Se' ^ '■^al estate devised to be sold.^ (y) [Chitty v. Parker, 2 Ves. Jr. 271. And] see Sir J. Leach's judgment in Smith v. Claxton, 4 Madd. 493. [(/■) Davenport v. Cnltraan, 12 Sim. 610. Cf. Bowra v. Rhodes, 31 L. J. Ch. 676. (s) Can- 11. Collins, 7 Jur. 165, per Shadwell, V.-C. (() Curteia v. Wormald. 10 Ch. D. 172; overruling Reynolds v. Godlee, Johns. 536, 582, wliere Wood, V.-C., held that it resulted to the executor, and through him to the next of kin, as personal estate. The V.-C. put the case of the liberated fund being wanted to make good abated legacies under the will, *' in which case the land purchased must certainly be dealt with as the estate of the testator which the executors must apply as personal estate m payment of the legacies." But the case is scarcely relevant. Nothing" of course results to the next of kin until all the purposes of the will which ought to be satisfied have been satisfied. (m) See as to this, ante, p. 348. (x) Re Newberry's Trusts, 5 Ch. D. 746.] 1 It is established doctrine that when a under the intestate laws. Given v. Hilton, will directs the conversion of realty for certain 95 U. S. 691, Strong, J. There are certain purposes only, and these are limited, for ex- things which are considered indicative of an ample, for the payment of particular legacies, intent to cause a complete conversion. It has and follows the direction by a bequest of the been held that a general direction to sell and residue of the pers(mal estate, the conversion apply the proceeds indiscriminately to the takes place only so far as the proceeds of the payments of debts and legacies operates as a sale are needei to pay the legacies prior to conversion out and out. lb. ; King v. Wood- the residuary one ; and the gift of the person- hull, 3 Edw. 79;, Durour v. Motteux, 1 Ves. ally will not carry the produce of the sale of 320. Blending the proceeds of realty and the lands in the absence of a contrary intent personalty in one fund for the payment of flainly manifested. Richards ». Miller, 02 debts and legacies is generally regarded evi- 11. 417. The surplus retains the quality of deuce of an intention to give "to the proceeds realty, and is transmitted either by a devise of a sale ordered the character of personalty (rf the realty, if there be one, or descends throughout; though this is not a conclusive 638 UNDEE TETTSTS FOE CONVEESION. *632 It is clear, that a sum expressly excepted out of the prod- produce of uce of the sale, but not attempted to be disposed of, be- belong to the longs to the heir {y) . •"='■• - «'l"=n- Nor is it to be doubted, that where a legacy is payable out eeptedTut of a fund of this description upon a contingency which does "ot disposed not happen, the residuary devisee of the fund has the bene- fit of such failure, on the principle that, in the event which ^"""8 S'Y?" ^ ^ on a contm- has happened, there is no actual disposition in favor of the gency; .^legatee (z) . Where, however, a sum of money, part of the proceeds of real estate, is in terms given to an object incapable bj' law of taking, —given to the authorities respecting its destination are conflicting, capaWe'of though here, also, there seems to be a preponderance in tailing. favor of the heir. The cases of Cruse v. Barley (a) , Collins v. Wake- man (6), and Gibbs v. Eumsey(c), are all in favor of the heir; but it will be more convenient to bring these authorities distinctly before the reader in the discussion of a subordinate question connected with the doctrine. This chain of authority, however, in favor of the heir, is in- terrupted by Page v. Leapingwell {d), where a testator deviged certain real estate to trustees upon trust to sell, and out of the moneys arising therefrom to pay certain legacies, including two sums of 200?. to the poor of two parishes ; and after paj-ment of the legacies, to apply the overplus for the benefit of certain persons. There was also a general disposition of the residue of his real and personal estate, not thereinbefore disposed of. Sir W. Grant, M. R. , observed that the dis- position as to the 200^. wa,s void as a devise to charity, and therefore lapsed. According to the decree, however, his Honor appears to have de- cided, that the 200/. went, not to the heir (as might have ^ , been inferred from the observations in his judgment), but to upon Page v. the general residuar}' devisee ; a conclusion which it seems ^-^^P'^sweil. difficult to reconcile with the principle discussed in the next chapter, and repeatedly laid down by Lord Eldon and other judges, that a resid- (y) Collins v. Wakeman, 2 Ves. Jr. 683, stated post, 638 ; [Watson v. Haves, 5- My. & Cr. 125 ;J and as to trusts for conversion in deeds, see Emblyn «. freeman, Pr. Ch. 541 ; [Griffith ». Rickets, 7 Hare, 311; Matson i). Swift, 8 Beav. 368 ] («) Ante, p. 345. (a) 3 P. W. 20. (A) 2 Ves. Jr. 683. (c) 2 V. & B. 294. (d) 18 Ves. 463. indication. Given v. Hilton, supra. When in such case the heir will be entitled to the land must be sold and converted into money use of the rents and profits uf the land in his for a particular purpose, and more is sold o\vn right, or must hold them as trustee, will than is necessary for the object, the excess depend upon the terms of the disposition of received from the sale is treated as land. the estate to be converted. If the heir be not Cook V. Cook, 20 N. J. Eq. 375 ; Oberle ». expressly or by clear implication a trustee, it Lerch, 18 N. J. Eq. 346; ib 575. In case of would seem that he would be entitled to the a direction by a testator for the conversion of income. If the testator order real estate to be his lands into money for a specified purpose, converted into money for some special purpose the heir is entitled to the possession of them other than the payment of debts, as to pay a until the time for the conversion arrives, unless legacy, the executor cannot claim the fund they are otherwise disposed of. Current v. as personalty to be used in paying debts. Current, UN. J. Eq. 186. 8ee also Brad- Winants ». Terhune, 15 N. J . Eq.' 185. shaw V. Ellis, 2 Dev. & B. Eq. 20. Whether 639 *634 DESTINATION OP INTEEESTS UNDISPOSED OP uary devise is, under the old law; in effect, a specific devise of the lands not included in the particular devises contained in the will. *633 It is enough, however, for our present purpose to * show that in Page V. LeapingweU, the void legacies bequeathed out of the real fund did not go to the residuary devisee of that fund. In this respect it agrees with, and is confirmed by, Jones «. Mitchell (e), where A. de- vised his real estate, after certain limitations, to trustees in trust to be sold, and out of the moneys to be produced by the sale, to pay certain legacies, and then a legacy of 800/. to charities, and to paj- the residue to B. ;, Sir J. Leach, V.-C, held that the void legacy of 800Z. belonged to the heir, on the principle that the residuary devisee of real estate, or of the price of real estate, could take nothing but what was at the time intended for him. . The principle of the two preceding classes of cases seems to apply, Destination with exactly the same force, to the case of lapse ; and, un- sums'specifi- doubtedly, at one period, the established rule as to these caliy given cases also was, that the heir was entitled on failure of the produce of devise ; unless, according to. the doctrine of some cases (/), real estate, the produce of the sale was blended with the personal estate in one general residuary disposition. The ground upon which this rule was established (and the principle Principle ^® equally applicable to every class of cases before noticed) , governing is this : that where a testator devises real estate to be sold, and out of the produce gives a specific sum, say 1,000/., to A., and the residue to B., the residue is to be considered as a gift of the specific sum which the purchase-mone}', after deducting 1,000/., shall happen to amount to ; the gift being the same in effect as if the testator had said, I give to B. the purchase-money minus 1,000/. which I give to A. It is a mere distribution of the purchase-monej- among them, the one taking' a certain and the other an uncertain share ; and B. has no more right, in any event, to take the share of A., than A. has to take the share of B. Thus, in Hutcheson v. Hammond (j'), A. devised certain lands to Claim of the trustees to Sell, and invest the money produced by the sale heir sup- in the funds, in trust for H. for his life, and after his decease Flutchesbn i: to pay certain sums of monej', including 1,000/., to G. P. ; Hammond. WxQn in trust to paj' all the residue of the said principal money and interest to B. and C. ; and she gave the residue of her personal estate to H. G. P. died in the lifetime of the testatrix ; and Buller, J., sitting for Lord Thurlow, held, after much argument, *634 * that the lapsed sum did not fall into the particular or the gen- eral residue, but went to the heir. He said, here there was no (e) 1 S. & St. 290. (/') See Lord Thurlow's judgment in Hutcheson v. Hammond, 3 B. C. C. 148 ; Kennell v. Abbott, 4 Ves. 802; but as to which see post. (n regard to question, whether the share of one of several tenants in lapsed common in fee, dying in the testator's lifetime, belonged to '^''vises; the heir or residuarj' devisee. The point was. afterwards settled in favor of the heir, in the cases of Wright v. Hall(e), and Eoe v. Fludd (/) ; in the latter of which the two judges who had been of a contrary opinion in Goodright v. Opie, concurred (g).^ The principle, however, as applied to devises void ab initio, seems to be encountered by some observations which fell from the „„ , „„ .^ — and spe- Court of K. B. in Doe d. Stewart v. Sheffield (h). The testa- cific devises tor devised certain premises to the sisters of H. , as tenants in ^°' " *"*'"'■ common in fee ; and, by a subsequent clause, he devised to S. certain other real estates, and all his other lands and hereditaments, whatsoever and wheresoever the same might be, which he was in any manner entitled to or interested in, and not thereinbefore disposed of, to hold to him, his heirs, &c. There had been three sisters of H., but, at Dictum in the date of the will, only one was living, who, therefore, was |^"| exam- clearly entitled to the whole, she being the sole representa- ined. tive of the class, and the court so decided ; but, in delivering his judg- ment. Lord Ellenborough said: "But even if S. (i.e. the surviving (c) Goodrigbts Opie, 8 Mod. 123; Wright v. Hall, Fortesc. 182; S. C. nom. Wright v. Home, 8. Mod. 224; Eoe v. Fludd, Fort. 184; Sprig v. Sprig, 2 Vern. 394; Doe d. Morris v. Underdown, Willes, 293; Watson v. Earl of Lincoln, Amb. .325; Oke v. Heath. 1 Ves. 141; Cambridge v. Rous, 8 Ves. 25; Jones v. Mitchell, 1 S. & St. 290. id) 8 Mod. 123. (e) Fort. 182; S. C. nom. Wright t). Home, 8 Mod. 224. (/) Fort. 184. (ff) Willes, 299. (h) 13 East, 627. 1 Deford v. Deford, 36 Md. 168; Rea v. or void legacies and devises fall into the Twilley, 35 Md. 409 ; Yeaton v. Roberts, 28 residue. lb. ; Thaver v. Wellington, 9 Allen, N. H. 459 ; Yard v. Murray, 86 Fenn. St. 113 ; 283 ; Blaney v. Blaney, 1 Cush. 107. Void Massey's Appeal, 88 Perm. St. 470. So at and lapsed devises stand upon the same foot- common law in Massachusetts, Prescott v. ing as to the rights of the heir. Tongue v. Prescott, 7 Met. 141, 145. But the rule has Nutwell, 13 Md. 415. been changed by statute; and both lapsed 651 *647 OPEKATION OF A GENEEAL sister) were not entitled to take the whole, the heir at law could not be entitled to any part of the residue undisposed of; for this is not the case of a lapsed legacy, but the residuarj' devisee is to take all other his lands, hereditaments, and premises, whatsoever and wheresoever, not thereinbefore disposed of, ^c, and all other his real and personal estate whatsoever, in the most comprehensive terms. Then, admitting the law to be as stated in the cases cited on the part of the heir at law, with respect to lapsed legacies, this is not alapsed \ega,cj." Le Blanc, *647 and Bayley, JJ., both concurred in this * doctrine ; the former, however, appearing to think the case stronger in favor of the residuary devisee, without the words " not before disposed of," though he thought him entitled either way (i). It is clear, therefore, that, had all the. devisees been dead at the time Oneration of °^ making the will, the court would have held the residuary a residuary devisee to be entitled. Such a doctrine seems to be irrec- Bidered-""' oncilable with the principle already adverted to, which teaches that a residuary devise is a specific disposition of whatever the will does not purport to dispose of, as exemplilied in the case of lapsed devises, between which and the case of a void devise there seems to be no substantial distinction ; for the testator conceives himself to have disposed of the property comprised in the void devise, and, therefore, does not intend the residuary devise to extend to it. It is moreover inconsistent with the decisions discussed in the last chapter, in which specific sums given out of real estate devised to be sold, and which were void ah initio, have been held to belong to the heir, and not to the residuary devisee of the fund (k). But it must be observed, that, if the specific devise comprise only _. • a partial or contingent interest in the lands, leaving an to partial and ulterior or alternate interest undisposed of, which would, pontingeut j^ jjjg absence of disposition, descend to the heir, such undisposed-of interest will, even in a will made before 1838, pass by a general residuary devise. Thus, where a person, by such a will, devised certain .lands to A. for , . , life or in tail, and the residue of his lands to B. and his — devises of -r, \ , ■ -, ■ , partial inter- heu's ; B., under this devise, took the reversion in fee not ests; included in the devise to A. (Z) ; and, consequently, if A. [(j) Williams v. Goodtitle d. David, as reported 10 B. & Cr. 895, seemed to favor this doctrine; but that report is incorrect, see ante, p. 201, n.] (k) Jones v. Mitchell, 1 S. & St. 233; see also Cruse v. Barley, 3 P. W. 20; Collins v. Wakeman, 2 Ves. Jr. 683; Gibbs p. Rumsey, 2 V. & B. 294, all stated ante. [" The rule is, •where the intention of the testator is to devise the residue exclusive of a part given awav, the residuarv devisee shall not take that part in any event; " per Lord Camden, Gravenor"». Hallum, Anib. 6+5, ante, p. 347. Wood, V.-C, felt " some difficulty in reconciling Doe ». Sheffield " with this rule. Smith i). Lomas, 33 L. J. Ch. 582, and gave "no countenance to the distinction suggested by Romill.y, M. R., in Garner it. Hannyngton, 22 Beav. 627, between a devise (as in that case) of "all other my real and personal estate " and one (as in Doe v. Sheifield) of " propertv not hereinbefore disposed of."] (/) Wheeler v. Wal'dron, Allen, 28, 3 P. W. 63, n. ; Cooke v. Gerrard, ILev. 212; Rooke V. Rooke, 2 Vern. 461, 1 Kq. Ca. Ab. 210, pi. 17; Willows v. Lydcot, 2 Vent. 285, 3 Mod. 229; see also Doe d. Briscoe v. Clarke, 2 B. & P. N. R. 343; Bennett i;. Lowe, 7 Bing. 635, 5 Moo. & P. 485; [Saumarez v. Saumarez, 4 My. & C. 331.] 652 DEVISE ON LAPSED, ETC., DEVISES. *649 died in the lifetime of the testator, he became, at the testator's death, tenant in fee in possession. So, where a testator devised that A. and his heirs should sell * his lands for payment of debts or other purposes, not exhaust- *648 ing the whole beneficial interest, and devised the residue of his real estate to B. ; the latten devise carried the beneficial interest not comprised in the former (»«). The same doctrine, it is clear, applied to executory and contingent devises in fee; for if an estate in fee were devised to a _ executory person on the happening of a certain event, it is obvious devises in that the alternative fee depending on the converse event is ^* ' undisposed of, and, therefore, is an interest on which the residuary clause will operate. Thus, if a testator devised, in case his personal estate should be insufficient to paj' his debts (n) , certain lands to A. and his heirs, in trust to sell and pay them, and devised the residue of his estate to B. ; the devise to B. carried the legal fee, in the event of the personal estate being sufficient to pay the debts (o). So (p) , if a testator devised real estate to A. for life, remainder to A.'s children living at his decease in fee, and the residue of !_,(.ontingefit his lands to B., it is clear, that, if A. died, either in the tes- devisesiufee. tator's lifetime or after his decease, without leaving a child surviving him, B. would be entitled under the residuary devise. In Doe d. Wells «. Scott (y), a testator devised certain lands to A. and. his heirs, provided that he or his heirs did, within six months after his the testator's death, convey a certain copj^- fee nndis-^ hold estate to B. and his children ; and, in default, he gave po^ed of ia event the said lands to B. for life, remainder to his cMldren living at his decease, and their heirs, as tenants in common ; and the testator devised all the residue of his lands to C. and D., their heirs and assigns as tenants in common. A. and B. both died unmarried in the testator's lifetime. It was held, that the specific devise was incomplete as a- dis- position of the whole absolute fee, inasmuch as it did not dispose of the interest which remained to he disposed of if A. should not assure the copy- hold estate to B.^ and B. should die without children ; and the necessary consequence was, * that the interest depending on *649 those contingencies passed, by the general residuary clause (f). (m) White v. Vitty, 2 Russ. 484, 4 Eiiss. 584; see also Goodtitle d. Hart v. Knott, Cowp. 43. (re) But the validity of such a devise may be questioned, [unless it is to be presumed that the sufficiency or insufficiency will be ascertained within such a time as to preclude the operation of the rule against perpetuities. In Eimington ». Cannon, 12 C. B. 18, a devise depending on the insufficiency of a real estate devised to executors in trust for payment of debts, was held good, the presumption being that the question of sufficiency would be ascer- tained within one year after the testator's death. It is scarcely necessary to observe that this is a different question from that mentioned post, Ch. XXV. sect. 2, ad fin. and discussed Lewis, Perpet. 622 — 638, namely, whether a devise after payment of debts is good.] (o) Goodtitle d. Harti). Knott, Cowp. 43. I (p) Willes, 300 ; Doe d. Moreton v. Fossick, 1 B. & Ad. 186. (}) 3 M. & Sel. 300; [see also Vick v. Sueter, 3 Ell. & Bl. 219.] (r) Lord Ellenborough, in deciding Doe )•. Scott, fully recognized the principle stated by Willes, C. J., in Doe v. Underdown, that, in regard to devises, the intent of a testator is to 653 *650 OPERATION OP A GENERAL It is clear, according to the authorities, and was so assumed by the Remark on court, that, in the events which had happened, the children Doe 11. Scott, of B_^ to whom the lands were specifically devised in fee, on breach of the condition by A., would, surviving the testator and their parent, have taken the fee. If, therefore, B. had left children, whether they had died in the testator's lifetime or not, inasmuch as the devise to them had become absolute in event, the residuar3- devisees would clearly have been excluded, precisely' in the same manner as if the devise to the children had been absolute in its creation. Upon the same principle, the contrary event having happened, the residuary devisees were entitled, as they would have been under a specific alter- native devise expressly applied to that event. [And a contingent remainder being an interest which has, or had («) , „ . an inherent liability to'fail, as well through the event upon remainder which it is limited not happening before the determination structfon'^of^" ^^ *^® prior particular estate, as through its not happening particular es- at all, the interest, which upon a failure of the former kind ^' is left undisposed of by the specific devise, has been held to pass \>y a residuary devise in the same will (<).] But if, after carving out a partial or contingent interest, the testator Effect of de- limit the reversion in fee, or the alternative fee, to his own vise to the heirs, such devise, though inoperative in law to break the testator's i . . , , own heirs in descent, until the recent enactment on this pomt(a;), is rfverfioif ^ Considered to indicate an intention to exclude this property from a ^en- from the residuary clause ; and, accordinglj% such reversion evise. (jgyoives to the heir (y) . The mere fact, however, that the devisee of the partial or contingent interest specifically devised, is also the general residuary devisee, will not exclude him from taking the remaining interest in such lands in the latter character (z). *650 * [If the will contains alternative contingent remainders in fee, the reversion, if not otherwise disposed of, vests in the heir Destination pending the contingencj', and if the will contains a resid- during sus- uarj' devise will pass by it during the same period. Thus be taken as things stood at the time of making his mil; and that the residuary devise must be taken to mean the residue of the lands then undevised. Us) Before 8 & 9 Vict. c. 106, s. 8, and 40 & 41 Vict. c. 33. (() Perceval v. Perceval, L. R. 5 Eq. 386. Upjohn v. Upjohn, 7 Beav. 59, is difficult to reconcile with the general ciirrent of authority. In that case there were three contingencies: first, if a certain purchase could be and was completed ; secondly, if it could not; thirdly, if it could but was not; of these the first and second were provided for; but in the opinion of the M. R. the third, which actually happened, was not: yet he held the property did not pass by ■ the residuary devise.] ^ (a;) 3 & 4 Will. 4, c. 106, s. 12. (y) Amesbury v. Hrown, cited 2 W. Bl. 739; Robinson v. Knight, 2 Ed. 155; Smith d. Davis V. Saunders, 2 W. Bl. 736, Cowp. 420. (z) Morgan v. Surman, 1 Taunt. 289 : The position in the text is rather an inference from, than a point expressly decided in, this case; [see also Williams v. Goodtitle d. David, 10 B. & Cr. 895; Saumarez v. Saiimarez, 4 My. & C. 331; Kidgeway v. Munkittrick, 1 D. & War. 90; Egerton v. Massey, 3 C. B. N. S. 338. 654 DEVISE ON LAPSED, ETC., DEVISES. *651 in Egerton v. Massey (m) , where a testatrix devised estate P^nse of to her niece A. for life, with remainder to her niece's chil- contingen- dren living at her death in fee, and for want of such child "''^■ then to P. in fee ; and gave all the residue of her estate and effects not thereinbefore disposed of to her said niece in fee : it was held that the reversion in fee which, but for the residuary devise, would have vested in the heir at law pending the contingency, passed by that devise to A.] The points embraced by the preceding positions can scarcely arise under wills which are subject to the act 1 Vict. c. 26, s. 25, which expressly provides, that, unless a contrary intention g^eral de- shall appear bj' the will, real estate, or the interest in real vise under estate, comprised in any void or lapsed devise, shall be included in the residuary devise, if any ; and as such act (s. 3) extends generally the devising power of a testator to all the real estates to which he shall be entitled at his decease ; and, moreover (s. 24), makes the will, with reference to the real and personal estate comprised in it, speak from that period, the result of the whole is, that any testator who dies leaving a will made or republished since 1837, containing a gen- eral or residuary devise of real estate, which takes effect, must be com- pletely testate in regard to everj^ portion of his real estate to which he is entitled at his decease, whensoever acquired, and whether originally intended to have been otherwise specifically disposed of or not, if such intention should, for any reason whatever, fail of effect. [A gift of "all other land "(a), or "all land not hereinbefore devised" (5), is a mere gift of residue, and shows no in-» What will not tention, within the act, to exclude lapsed specific gifts, limit a gen- although it gives an estate for life to the same person as is uaiy devise ; named specific devisee in fee (c). * On the other hand, where a testator erroneously stated that a *651 specified part of his property belonged to A., and therefore gave all his property to B. and nothing to A., the specified part was held to be undisposed of {d). And where A. was entitled as heir at law to freehold houses, of which wrongful possession was taken by another ; A. then died without having ever been in possession, having devised " all real estate (if any) of which she might die seised." It was held that "seised" was a purely technical word, and had no sec- ondary or popular meaning ; consequently, as A. had never been (m) 3 C B. N. S. 338. (A. who never had a child) executed a conveyance of the estate which, as the reversion was vested in her by the residuary devise, destroyed the contingent remainders. {a) Cogswell v. Armstrong, 2 K. & J. 227. (A) Green «. Dunn, 20 Beav. 6. See also Culsha v. Cheese, 7 Hare, 236 ; Carter v. Has- well, 28 L. J. Ch. 578 ; Burton v. Newbery, 1 Ch. D. 241. (c) Green v. Dunn, supra. {d) (Jircuitt v. Perry, 23 Beav. 275. Cf. Doe d. Howell v. Thomas, 1 M. & Gr. 335, 344, post, 655. And see analogous cases on exclusion from general or residuary bequests of per- sonalty, Ch. xxni. 655 *662 OPERATION OP A GENERAL seised of the houses in the technical sense, they did not pass by the devise (e). And the devise of a particular residue, as of the rest of a testator's Particular lands in a particular parish, following a gift of a certain part residue. jjj ^j^g^^ parish, is not within sect. 25, which requires a proper , residuarj' devise, i.e. so worded as to apply to all land of the testa- tor that is not otherwise disposed of, and assumes that there can be only one " residuarj- devise " in a will (/). A particular residue maj' indeed, upon failure of the gift of a part, include that part, if the testa- tor has used language showing an intention to that effect. But such intention must be shown : whereas in the, case of a proper residuary devise the act says it shall be presumed {g). If a general residuary devise itself fails to take complete effect, the Effect of re- property will, to that extent, be undisposed of.i As where siduary de- ^ testator devised land to several in certain shares, as tenants to aliquot in common, and devised the residue of his real estates to the share. same persons in the same proportions : some of the- specific devisees died in the testator's lifetime, whereupon tlieir shares fell into the residue ; but so much of the same shares as came back to them (so to speak) , under the residuarj' devise lapsed to the heir (A) .] And here, it may be observed, that, where a specific devise is to take effect m/M. Bective, 1 H. & M. 376, 10 H. L. Ca. 656 (but not appealed on this point).] 1 Burnet v. Burnet, 30 N. J. Eq. 595. 2 But see Brailsford ». Heyward, 2 Desaus. 32. 656 DEVISE ON LAPSED, ETC., DEVISES. *653 (though contingent in its terms) carry the prior income (m) .' [And the distinction between real and personal estate has been said to flow from the very nature (under the old law) of a residuary devise ; for being confined to what the testator had when he made his will, it was as specific as if the property was particularly described (ra) . It is still more clearly deducible from the rule of law that the freehold cannot be in abeyance (o). And the profits necessarily go with the estate (p). It is impossible, in the absence of any words clearly leading to what the court considers judicially to imply a gift of the intermediate rents (9), that any such gift can be introduced into. the testator's will. Neither the persons waiting until the executory devise shall take effect, nor the person who shall first come into esse when the executory devise has taken effect, nor all the persons who may be interested under the series of devises following that executory devise, by way of accumulation (of the rents) can establish their claim (r). And the rule is the same with regard to trusts (s) . * But if] the real and personal estates are blended in one gift, it *653 is considered to denote an intention that both species of property shall be subject to the rule applicable to personalty.. Thus otherwise if in Genery v. Fitzgerald (t) , Lord Eldon decided that a gift real and per- of all the residue of the real and personal estate to the eldest are Wended of three persons who should attain twenty-one, charged with j" same a sum of money to the others if they should attain that age, comprised the rents accruing between the testator's decease and the attainment by the devisee of the prescribed age. He said : " The gen- eral principles are these : "When personal estate is given to A. at (m) Green v, Ekins, 2 Atk. 472; Trevanion v. Vivian, 2 Ves. 430; [i.e. until accumula- tion is stopped by til e law: thenceforth it goes to the next of itin. Bective v. Hodgson, 10 H. L. Ca. 656, 671 ; Wade-Gery v. Handley, 1 Ch. D. 653, 3 ib. 374. And it makes no dif- ference that the personalty or an aliquot share of it is to be laid out in realty: the interim income is still income of personalty, and follows the trust of the corpus. Bective v. Hodgson, supra.] But a fixture specific bequest does not carry income. Wyndham v. Wyndham, 3 B. C. C. 57: Shaw v. Cunliffe, 4 B. C. C. 144; 2 Rop. Leg. bv Wh. 276. [(re) By Wood, V.-C, 1 H. & M. 396. (o) See ace. per Lord Westbury, 10 H. L. Ca. 665. (p) 1 Atk. 424, 2 Atk. 476, Co. Lit. 55 b. n. (8). (q) For examples of such a gift in a shifting clause, see Turton o. Lambarde, 1 D. F. & J. 495; D'Eyncourt v. Gregory, 34 Beav. 36. (r) Per Wood, V.-C, 1 H. & M. 392; and see Sir E. Sugden's remarks in Wills v. Wills, 1 D & War. 451, 452, upon Duffieldw. Elwes, 2 S. & St. 544; and ante, p. 575. Sidney v. Wilmer, 4 D. J. & S. 84, contra, is not law, 3 Ch. D. 374. (s) Per Lord Talbot, Hopkins v. Hopkins, supra, cited by Sugden, C, 1 D. & War. 455; Re Eddel's Trust. L. R. 11 Eq. 559 ; Wade-Gery v. Handler," 1 Ch. D. 653, 3 Ch. D. 374.] (t) Jac. 468; see also Gibson v. Montfort, 1 Ves. 490; Cllanville v. Glanville, 2 Mer. 38; Ackers v. Phipps, 5 Sim. 44, 9 Bli. N. S. 4.31, 3 CI. & Fin. 665; [Lachlan v. Reynolds, 9 Hare, 796. But in acting upon this rule care must be taken to see that there is in fact a blending of the real and personal estate and not merely a gift of one, by reference to some of the trusts declared of the other. Hodgson v. Bective, 1 H. & M. 397. Distinguish also be- tween a postponed or contingent gift of the residue, and a particular interest to commence in futuTo in a fund already constituted, which latter does not carry intermediate income even of personalty. Talbot v. Jevers, L. R. 20 Eq. 255; Weatherall «. Thornburgh, 8 Ch. D. 261. See also Re Drakelev's Estate, 19 Beav. 395; Marriott t). Turner, 20 Beav. 557; Re Sander., son's Trust, 3 K. & J. 510. 1 Shelton v. Shelton, 1 Wash. 53; Fleming v. Boiling, 3 Call, 75. VOL. I. 42 657 •654 OPBEATION OF A, GENERAL twenty-one, that will carry the mtermediate Interest. If a testator gives his estate, Blackacre, at a future period, that will not carry the intermediate rents and profits ; but where he mixes up real and per- sonal estate in one clause, the question must be whether he does not show an intention that the same rule must operate on both." It should be observed that this question regarding intermediate income of residuary real estate is not affected bj' the act 1 Vict. c. 26, s. 24 (u). II. It remains to be considered whether reversions will pass under a Operation of general devise of lands. ^ In regard to this question, an un- devlseon disposed-of interest which, on his decease, would become a reversions, reversion' left in the testator after other dispositions of his own will, is obviously distinguishable from a reversion of which he is the owner at the time of his will (x) ; but they have been generally treated as belonging to the same class and sufficiently approximate in principle to warrant at least their juxtaposition. Reversions in fee, then, will pass under a general devise of *654 lands or hereditaments (j/), although the testator be seised of * real estates in possession to satisfy the words of the devise (a fact, however, which, in regard to wills made since 1837, would be imma- terial) ; and although he maj' have been ignorant when he made his will of his having such a disposable interest (z) ; or it may have been unlikely, from its remoteness or liability to be defeated hy the act of another, ever to fall into possession, as in the case of a reversion expec- tant on an estate tail (a). It has been even held that a testator's reversion in fee in settled lands Devise of -vyiH pass under a devise of his " lands not settled (b)," or of ls.nQS not \ / ' settled," in- his lands and hereditaments "out of settlement {c) ," or " «'« (M) Hodgson V. Bective, 1 H. & M. 396 (will dated 1853). . Standen, 2 Ves. Jr. 589. And as to the subject generally, see further Sugd. Pow. 8th ed. 289, 2 Chance on Powei-s, 83. T(rf) Gainsford v. Dunn, L. R. 17 Eq. 405. This case seems inconsistent with, but would probablv be preferred to, Lowe v. Peuniugton, 10 L. J. Ch. 83 (cor. Cotteuhain, 0.) (e) Ch. XLV. B. 1. 682 DEVISE ON POWERS. *681 which she had the power being alone made (by the gift of the specific parts) applicable to satisfy some of those legacies (/). But the V.-C. thought that if it had been a gift of all the residue simpty, the power would not have been an exercise of the power {g) . A general devise of ' ' all my real and personal estate . and * effects whatsoever whereof I have power to dis- *681 that testator pose," or the like, will generally be taken not as a dlsnosTof *" mere superfluous mention of the ordinary powers which, as executes a owner, the testator has of disposing of his own property, but P""'^''' as a reference to any power which he may possess of appointing prop- erty not strictly his own. Real (h) and personal (i) property here stand on the same footing, and the power is held to be executed whether the gift would or would not otherwise be inoperative. A contrary intention (which will of course prevail if shown by the will) is not inferred from the circumstance of the testator having in some respects exceeded his power, as (where the power is special) by directing his debts to be paid out of the subject of disposition (k) ; or by giving to non-objects (/) ; or by giving the object an absolute interest, the power, authorizing the gift of a life-estate only (m) . Whether the testator had or had not another power, which the pro- visions in question do not exceed, is of little moment. If he had not, the exceeded power, being the onty one, is necessarily pointed at (re) ; if he had, the provisions which are excessive as to one may be referred exclusively to the other, and so both powers may be held well executed. An example of the latter kind is found in Thornton v. Thornton (o), where a testator, having distinct powers over separate funds, one to appoint among his children subject to an interest in his wife during widowhood, the other to appoint to his wife a hfe-interest in a fund which, subject thereto, was held in trust for his children equall}' at twenty-one, " gave, devised and bequeathed all his property over which he had any disposing power " in trust for his wife for life for her sepa- rate use, remainder to his children equallj'^ at twentj'-one, and on failure of such children over ; and it was held, by Sir E. Malins, V.-C, that reddendo singula singulis both powers were well executed. But a devise of " all my real estate over which I have any disposing power" hy a testator who had real estate of his own, was unless a con- held not to be an exercise of a special power, where, if it had tiary inten- been, it would have defeated certain interests under the settle- ''"" appears. V. Reid, ! Elliott ». Elliott, 15 Sim. 321. And see Re Comber's Trusts, 14 W. R. 172; and Reid d, 25 Beav. 469, whei-e the subject of a power was held to pass by a general bequest by virtue of an exception therefrom of a specific part of the subject. (0) See ace. Butler v. Gray, L. R. 5 Ch. 26. 01) Bailey v. Lloyd, 5 Russ. 330 ; Cowx «. Foster, IJ. & H. 31. (i) Ferrier v. Jay, L. R. 10 Eq. 550. (h) Bailey v. Lloyd, Cowx v. Foster, Ferrier v. Jav, supra. (1) Pidg^ V. Pidgelr, 1 Coll. 255 (m) Re Tfeape's Trusts, L. R. 16 Eq. 442. Clogstoun v. Walcott, 13 Sim. 523, and the dicta in Hope v. Hope, 5 6if. 13, contra, are overruled. (n) Re Teape's Trusts, Cowx ». Foster, supra. (o) L. R. 20 Eq. 599. 683 *683 OPERATION OF A GENERAL ment creating the power, which interests the testator treated as *682 to take effect after his death (p) . And where a testatrix, * after specifically devising an estate of her own] devised ' ' all other the lands which she had power to dispose of," it was held, that a share of money to arise by sale of lands, over which money she had merely a power of appointment, did not pass (q) . [And a power of revocation and new appointment requires some stronger evidence of an intention to exercise it than is required reference to by a power of appointment. Thus, in Pomfret v. Perring (r) , ^Tin^iud^' where a testatrix having a power under her marriage settle- power of ment, and another under her father's will, executed the latter revocation. |^y j^^^j reserving a power of revocation and new appoint- ment ; and then by will gave and appointed all the real and personal estate which she might at her death be entitled to, or by virtue of the power contained in the settlement or otherwise have power to appoint ; it was held that the power of revocation and new appointment was not exercised, though if the will had shown an intention to exist, which, without so construing the words, could not be effectuated, they might have been so construed.] The preceding doctrines, however, [so far as they relate to general What powers, J do not apply to wills made or republished since 1837, a"r"o1nt- *^® ^^^ ^ ^^^*" ^" ^^' ®" ^^' "i^^i^g provided, that a general ment in wills devise of the real estate of the testator, or of the real estate pifblished^" '^^ ^^ testator in any place, or in the occupation of any per- since 1837. son mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or an}' real estate to which such description shall extend (as the case may be), which he ma}' 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 ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a gen- eral 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 ihanner he may think proper, and shall operate as an execution of such power, unless a con- trary intention shall appear by the will.' [A power is not the less general within the meaning of this section. Power gen- because it is to be executed by will only, and not by deed. erai though 'pjjg words "in any manner he may think proper" mentary. *683 refer * to the extent of the power in regard to the {p) Cooke V. Cunliffe, 17 Q. B. 245.] Iq) Adams v. Austen, 3 Russ. 461. [But the lands were still unsold at the date of the will ! see Sfanden v. Standen, 2 Ves. Jr. 589. ()■) 5 D. M. & G 775. 1 As to the object of the statute, see In re distinction between "power" and" prop- Wilkinson, L. R. i Ch. 588, 590. On the erty," see Amory v. Meredith, 7 Allen, 397. 684 DEVISE ON POWERS. *684 objects, and not to the mode in which it is to be exercised (s) . But a general gift will not be deemed an exercise of a power of revocation and new appointment, unless the gift would otherwise be wholly inop- erative (<). General pecuniary legacies are " bequests of personal propertj' de- scribed in a general manner," and operate under this section Pecuniary as appointments, so far as the subject of the power is re- jfm^ntm'ents quired in aid of the testator's own estate for paj-ment of the within s. 27; legacies (m). To the same extent a direction to pay the testator's debts will operate as an appointment (a;). And although in anddirections the cases where these points were decided executors had '° P^y iebta. also been appointed, that circumstance does not appear to be essential (y). " It seems not unreasonable to hold that a testator having a general power and directing a certain application of his property must be taken in all cases to exercise the power to the extent to which the direction is effectual" (2;). But " it has not yet been decided that an appointment of an executor without more would make the fund assets : and so to hold would appear to give a very unnatural construction to the section" (a). The effect of this section is to reverse the old rule and to throw on those who deny that a general devise or bequest executes a How a con- general power the burthen of proving by what appears on the Jj'*,''^ '"'^"" face of the will the testator's intention that it shall not do appear, so (b). The fact that an appointment has been actually made, will not show an intention to exclude the appointed property from a general residuary gift, where the appointment fails by lapse (c), or through uncertainty (d) . And where the property was overridden by a power to sell and re-invest to the same uses, and, after the execution of the will, the property was sold accordingly : it was held, that the express appointment was adeemed, but that the substituted propertj' passed by the residuary de\'ise in the will (e) . The effect of the residuary gift upon the void or imperfect particular appointment is analogous to its effect upon a * void or imperfect particular bequest : and the *684 suggestion of a learned judge (/), that the gift of a partial in- terest (as a life-estate) in the subject of a power is so absolutely incon- (s) Hawthorn v. Shedden, 3 Sm. & Gif . 303 ; Leferre ». Freeland, 24 Beav. 403 : Re Powell's Trusts, 39 L. J. Ch. 188. (0 Palmer v. Newell, 20 Beav. 38. (m) Hawthorn v. Shedden, 3 Sm. & Gif. 293; Wilday i). Barnett, L R. 6 Eq. 193; Re Wilkinson, L. R. 8 Eq. 487, 4Ch. 587; notwithstanding Hurlstone». Ashton, 11 Jur. N. S. 725. (x) Att.-Gen. v. Brackenburv, 1 H. & C. 782; Laing v. Cowan, 24 Beav. 112. (y) Per Wickens, V.-C, ReDavies' Trusts, L. R. 13 Eq. 166. (z) lb. (a) lb. Stuart, V.-G., thought otherwise, 3 Sm. & Gif. 304. (b) Walker v. Banks, 1 Jur. N. S. 606. ((•) Re Spooner, 2 Sim. N. S. 129. (d) Bernard v. Minshull, Johns. 276. See also Hickson ». Wolfe, 9 Ir. Ch. Rep. 144. (c) Gale V. Gale, 21 Beav. 349. But as to the ademption, vide ante, p. 163. (/) Wood, V.-C, Scriven v. Sandom, 2 J. & H. 745. See Hopewell v. Ackland, Scott v. Alberry, Roe v. Gilbert, Day v. Daveron, all stated in next chapter, where remainders in fee were held to pass by general residuary devises to the same persons to whom life-estates in the same property were specifically devised in a former part of the will- See also ante, p. 649, n. {«) ; p. 650, n. (e); and Bush v. Cowan, 32 Beav. 228. 685 *685 OPEEATION OF A GBNBRAIi sistent with an appointment of the entire interest to the same person as to show an intention to exclude it from a residuary bequest to that person, would probably not be followed. And in Hutchins v. Osborne (ff), where leaseholds were settled on the testator's wife for life, and after her death as he should appoint, and in default of appointment for (in effect) his next of kin by statute, it was held that a general residuary gift of the testator's property " subject, as to such parts thereof as are comprised in my marriage settlement, to the ' said settlement and the trusts thereby declared, and which settlement I hereby ratify and confirm in all respects," operated as an execution of the power notwithstanding the reference to the settlement, which was explained by the wife having a life-interest in the property. On the other hand, in Moss v. Barter (h) , where by voluntary settle- Moss V. ment personalty was settled as the settlor should appoint Efl' r h generally, and in default on himself for life, and after on appointment Several named persons. The settlor then under his power testafoi's^own executed a deed appointing part of the fund ; and afterwards eettlement. made a wiU by which he bequeathed his residue " not other- wise effectually disposed of." It was held by Sir J. Stuart, V.-C, that this bequest did not include the unappointed portion of the settled fund, on the ground that the whole fund was in fact ' ' effeetuallj' disposed of" by the partial appointment, and, so far as that did not extend, by the limitation in default contained in the settlement. It was argued stronglj' against this construction that the words ' ' not otherwise effec- tually disposed of " must be read " not otherwise by the will effectually disposed of: " but the V.-C. thought that this would be to violate the express language of the will. He added that it was probably the in- tention of the legislature that s. 27 should apply only to eases *685 like Cox v. Chamberlain (i), * where the power was in such ample terms as to amount to absolute property. The terms of the sec- tion, however, are certainly of more extensive import. With reference to this decision, Lord St. Leonards says (i) : "The case is not without difficulty ; but where the property is, as in Remarks on this case, settled bj' the testator himself upon others in de- Harter. fault of appointment by him under his power, it would seem to require some indication of an intention by him to defeat his settle- ment in order to hold a general gift in his will which can be satisfied by other property, to be an execution of the power." Although the act requires that, to be effectual, the intention not to execute the power shall appear hy the will, that cannot mean to the exclusion of the instru- ment creating the power. The will, if it is to exercise the power, (g) 4 K. & J. 252, 3 De G. & J. 142 ; see also, as to the confirmation of the settlement, Lake «. Currie, 2 D. M. & G. 536. And see Atherton v. Langford, 25 Beav. 5, where an ex- pressed intention that lands over which the testator had a power should not be included in his will, but should go according to the settlement, was held not to prevent a share in the lands vested in the testator in default of the exercise by him of the power from passing under the residuarv gift in his will. (A) 2"Sm. & Gif. 458. (i) i Ves. 631. (i) Sug. Pow. p. 305, 8th ed. 686 DEVISE ON POWERS. becomes part of the instrument creating the power, and both must be read together to collect the intention truly. This must be borne in mind when the question (noticed in a former page (I)) is, whether by the combined operation of ss. 24, 27 a general power is exercised by a previously executed wiU. Thus, where (m) a testator specifically devised certain freehold, copy- hold, and leasehold estates, and gave all other the real and Settlement personal estate which he should be entitled to at his death, "fi^'' ^'"• or over which he had or should have any power to dispose on certain trusts ;• then, by voluntary settlement, dated August, 1862, he conveyed the specified freehold estates and all other his freehold estate to C. and A. and their heirs in trust for himself for hfe, remainder to E. for life, remainder as he " by his last will or any codicil thereto should appoint," and in default for E. in fee ; and he assigned his leasehold and personal estate on trusts for the benefit of E. In November, 1862, by testa- mentary instrument commencing "This is my last will," he, in pursu- ance of the power in the settlement, charged the freeholds with an annuity, and devised all his copj'holds to C, and appointed C. and A. executors, but made no other disposition. Both wills had been proved. It was held bj- Lord Eomilty, M. R.^ that he must look at the settlement and the testamentary instrument together to understand the matter properly ; and seeing that the testator had made a " last will" after the date of the settlement, he held that the previous will had no operation under * the power; though if there had been no such *686 subsequent will he would have held that the former will was an execution of the power — meaning, apparently, that this would, in that event, have been de facto the " last will." Where, by marriage settlement, a testatrix had power to appoint estates A. and B. , and made her will reciting the power and „ .. , giving A. to one person, and " all other the hereditaments residue is not comprised in the settlement not hereinbefore disposed of" ^'""° ^- ^^■ to another; she then bj* codicil' revoked the appointment of estate A. and appointed it on charitable trusts, which were void. It was held that estate A. did not pass by the appointment of " all other hereditaments," &c., for that this was not a general or residuary gift, but clearly speciflc(»). And a gift by a married woman of the " residue of her separate prop- erty " was, of course, held not to include a lapsed share of a fund over which she had a general power (o). If the residuarj' gift itself fail either whollj' or partially, and either through lapse, or through an original incompleteness of dis- „ position, it would seem on principle that the property in- residuary gift eluded under the power ought to go as if there had been ^^''*- (0 P. 336. (m) Pettinger v. Ambler, L. R. 1 Eq. 510. See also Ee Euding'a Settlement, L. E. 14 Eq. 266, the authoritv of which, however, is impaired by the admission of parol evidence of intention, (n) Re Brown, 1 K. & J. 622. And see Springett v. Jennings, ante, p. 651. (o) Wilkinson v. Schneider, L. K. 9 Eq. 423, 429. 687 *687 OPERATION OF A 6ENEEAL no appointment, or (as the case may be) an incomplete appointment (/>) . And the point was so decided by Sir J. Wickens, V.-C, iu a case where the residue was given direct to the beneficiary', without the interven- tion of a trustee {q). But where the residue is given (and the sub- ject of the power is thus appointed) to the donee's executors (r) , or to other persons (s) as trustees, it has been held that the sub- ject of the power is thus taken completely' out of the instrument creating the power, and made part of the &,ppointor's own estate, that the trusts take effect as simple bequests out of that estate, and that if any of them fail, the undisposed-of interest belongs to the next of kin of the appointor. Sir E. Kindersley thought the case of a married woman appointor was distinguishable ; since, as part of her estate, she would be incompetent to dispose of it, and he could not impute to her an inten- tion of so dealing with the fund as to make all the trusts declared *687 by her nugatory ; the trusts must * have been intended to take effect under the power, and consequently whatever was ill- appointed went as in default of appointment (<) . But Sir W. James, V.-C, disregarded the distinction (m) . He said it was not a question of intention at all, it was a question of resulting trust, if anj'thing, and the fund resulted for the benefit of those who would be entitled if it were the appointor's propertj', — which assumes that the fund has by the appointment become part of the appointor's estate. The applicability of this section to the construction of the wills of 1 Vict. 0. 26 married women has been disputed, but without success. s. 27, applies Their testamentary capacity is not enlarged by the statute, married l^ut their wills, when made, have the benefit of the more lib- women, eral rules of interpretation laid down bj- it (x). In Lake v. Currie (y), it was contended that s. 24 of the Wills Act, Effect of the which makes the will speak with regard to the real as well as eral"powers ^^ personal property comprised in it from the date of the over realty, testator's death, prevents a general devise of real estate from Lakei). Cur- operating under s. 27 as an exercise of a general power over "®" lands, although the te.stator has no other lands when he makes his will, on the ground that any lands which he may 'afterwards acquire and hold at his death will pass hy such a devise, and that so this case is assimilated to a general bequest of personalty- before the act. But to this Lord St. Leonards answered: " So far from operat- ing in that waj', the statute evidentlj' meant to enlarge and give greater effect to dispositions bj' will. To hold that the old law is restricted and (p) Per Wickens, V.-C, L. K. 13 Eq. 166. (}) Re Davies' Trusts, L. R. 13 Eq. 163. The testatrix appointed an executor. (r) Chamberlain v. Hutchinson, 22 Beav. 444. See also Brickenden v. Williams, L. R. 7 Eq. 310; Wilkinson v. Schneider, L. R. 9 Eq. 423. Cf. Bristow v. Skirrow, L. R. 10 Eq. 1. (8) Lefevre v. Freeland, 24 Beav. 403. \t) Hoare v. Osborne, 33 L. J. Ch. 686. (m) Wilkinson i). Schneider and Brickenden v. Williams, supra. (x) Bernard v. Minshull, Johns. 276; Thomas v. Joues, 2 J. & H. 476, 1 D. J. & S. 63: Noble V. Willock, L. R. 8 Ch. 778, 7 H. L. 681. (y) 2 D. M. & G. 536. 688 DEVISE ON POWEBS. *688 that cases, which before the late act -would be considered a due execu- tion of the power, are not so now, would, I think, be utterly incompati- ble with the whole scope of the act. The statute sajs, that the devise shall operate as an execution of the power ' unless a contrary- intention shall appear bj' the will : ' it is absolutely necessary, therefore, now to show a contrary intention to exclude the execution of the power, where under the old law you must, to give effect to the will, have shown an intention to exercise the power ; the new law is therefore stronger for the appointees than the old law." The same reasoning will obviously appl}- in cases where the testator has lands of his own besides those which are subject to the power. * Special powers to appoint in favor of a particular class, as *688 children (a), or kindred (J), are not within this section, and the question whether such powers are executed by a general de- -^^^ ^^^ vise or bequest still depends on the old law ; ' but with this ply to special exception, that if the question arises with regard to a special P""'^''^- power over realty, an argument against its execution fciunded on s. 24, as in Lake v. Currie, will not be amenable to the answer furnished in that case by s. 27, for the latter section does not apply to such a power.] It will be remembered that all peculiarities in the execution of testa- mentary appointments are abolished by s. 10, which makes Execution of a will attested according to the statutes sufficient for, as well testamentarj' as requisite to, the validity of all such appointments, with- Siente" under out distinction. new 'aw- (a) Cloves 1). Awdry, 12 Beav. 604; Pidgelv •/. Pidgely, 1 Coll. 255; Elliott v. Elliot, 15 Sim. 321 ; Cronin v. Roche, 8 Ir. Ch. Eep. 103. (6) Hawthorn v. Shedden, 3 Sm. & Gif . 306 ; Re Caplin's Will, 2 Dr. & Sm. 527.] 1 Ke Gratwick, 35 Beav. 15. 44 689 DEVISES BY *689 * CHAPTER XXI. DEVISES BY MOBTGAGEES AND TRUSTEES. I. In regard to Hie henejicial Interest in Mortgages. As to the Extinction of the Charge by Union of Character of Mortgagor and Mortgagee. II. Operation of General Devise on the Legal Estate of Mortgagee or Trustee. III. Whether Devisee of Trustee can exercise Hie Powers given to the Trustee. As mortgages are of a complex nature, involving on the one hand a Devises by personal debt, with all the claims and obligations incident mortgagees, to the relation of creditor and debtor, and on the other an interest in real estate for the purpose of securing the debt absolute at law after forfeiture, but redeemable in equity, it follows that the testa- mentary disposition of a mortgagee presents two distinct subjects for consideration.^ I. With respect to the heneficial interest in the mortgage, it is clear Whether that a general devise of lands will not commonly have the jjeneficial in- g^ggt of including it (a). The contrary, indeed, is laid down mortgage by a respectable writer (6), but his position js not wan-anted de'i'dTvfs™} ^J either authority or principle. The case of Ex parte Ser- lands. gison (c), cited by him, does not support it ; for the devisee was executor and residuary legatee, and cousequentlj' entitled, in that Princi le character, to the beneficial interest in the mortgage ; besides, governing the only question in the case related to the legal estate in the the cases. jg^j^^jg ^^^y rpj^^ position is opposed, too, by the established principle of equity, which considers the mortgagee as holding the land (a) Strode v. Eussell, 2 Vern. 621, 3 Ch. Rep. 169. 2 Vent. 851, 3 P. W. 61; [Casborne v. Scarfe, 1 Atk. 605 and n. bv Sanders, 2 J. & W. 194.1 (6) 1 Rob. on Wills, 3d ed. 403. (c)'4 Ves. 147, stated post, p. 693. (rf) Mr. Roberts evidently confounds the two questions ; his positions are applicable to neither. 1 Lands held by the testator as mortga- 494 ; Galliers v. Moss, 9 Barn. & C. 267 ; gee or trustee will pass by the usual general Braybroke «. Inskip, 8 Ves. 417; Lindscll words in a will, unless it can be collected v. "fhacker, 12 Sim. 178 ; Heath v. Knapp, from the language of the will, or the pur- 4 Barr, 228. See Cogdell v. Cogdell, 3 poses and objects of the testator, that the Desaus. 346. But a gift of all the testator's mtention was otherwise. Ram on Assets, right, title and interest in land held by him c 4, § 7. pp. 68, 69; Duke of Leeds v. Mun- as mortgagee is a gift of personalty only, dav, 3 Ves. (Sumner's ed.) 348, note (a); passing no title in the land. Martini;. 4 kent, 538, 539 ; Jackson i). Delancy, 13 Smith, 124 Mass. 111. Johns. 637; Wall i). Bright, 1 Jac. & W. 690 MORTGAGEES AND TRtTSTEES. *691 in a fiduciary character only, and the estate as still substantially be- longing to the mortgagor. The person taking the mortgaged lands therefore by devise or descent, from the deceased mortgagee, it is obvious, is a trustee for the person * entitled to the money or *690 debt, by virtue of the wUl or otherwise (e) , unless, of course, both these interests happen to unite in the same person. Nor is it, I apprehend, universallj^ true, that an express devise of the lands, or (which seems to be the same in effect) a devise of Effect of de- all the testator's lands in a particular place, he having no ■'i*« ^*,™°r*" other than mortgaged lands there, will carry the beneficial on beneficial interest to the devisee, though the affirmative has been some- ™terest. times laid down in very unqualified terms (/). It is observable that in the cases cited in support of the doctrine re- ferred to, the testator was in possession at the time (ff), and in Fact of the most of them the operation of the devise was not called in j^^nglf^Lg. question, the cnlj"- point being as to the right of redemption, session. The fact of such possession, particularly where it has been of long con- tinuance, and accompanied with acts of ownership, certainly strongly favors the supposition that the testator, in expressly devising the prop- erty, means to give the beneficial interest. Having himself enjoyed the property beneficially, he can hardly but intend that his devisee's enjoy- ment should be of the same nature, especially where it is given not to the devisee simply in fee, but to several persons consecutively for lim- ited estates (h). The testator, too, may be ignorant whether the right of redemption,- on which the nature of the propertj- depends, be barred or not, and maj' therefore choose to avoid using any expressions which might be construed into a recognition of it (j). Indeed, in such cases there would be strong ground to contend that the beneficial interest would pass, even under a general devise of lands, especially if. there were no other lands to satisfy the devise, a circumstance, however, which would be immaterial, in regard to a will which is governed by the existing law. In Martin d. "Weston v. Mowlin(^), Lord Mansfield held that a copy- hold estate, of which the testator was in possession as mortgagee, did not pass under a devise of all his " lands, tenements and hereditaments, within and parcel of the manor of W.," the suri'ender to the use of the will referring to the property as Subject to a condition of redemption and resurrender ; and the wUl containing a recital that the viort- gagor stood indebted to him, * and giving her time for paj'ment of *691 the debt. It appeared, moreover, that the testator was seised of other lands, also surrendered to the use of his will, in the manor of "W. (e) Att.-Gen. v. Mqyrick, 2 Ves. 44. (/) 1 Pow. Mortg. Gov. Ed. 409. (y) Clarice v. Abbott, 2 Eq. Ca. Ab. 606, Barn. Ch. Rep. 457. In How ». Vigures, 1 Ch. Rep. 32, this fact, though not stated, seems very probable, as the object of the suit was to foreclose. (A) Woodhouse v. Meredith, 1 Mer. 450. ' (i) But now see Stat. 37 & 38 Vict. c. 57, s. 7. (A) 2 Burr. 977. 691 *692 . DEVISES BY ■ In Woodhoiise v. Meredith {I) , Sir W. Grant held that the testator's L (. . , . beneficial interest in leasehold property at K., of which he terest in was in possession as mortgagee, and of which an assignment held fo^ass ^^ trust for sale had been executed to him, passed under a under devise devise of all his freehold, copyhold and leasehold messuages, o andsinK. fgj.jjjg^ lands and tenements whatsoever and wheresoever, in i the count}' of 11. and the town of K., to various limitations, the testator having no other than the mortgaged lands at K., though the will con- tained a subsequent devise of all estates vested in him as mortgagee or trustee, but which was satisfied by other lands of which the testator was seised as mortgagee. The same observation apphed to the bequest of securities for money, which also occurred (m). It is observable that the M. R. considered, from the nature of the limitations and provisions in the will (which consisted of successive es- tates for life, with an estate interposed in trustees to preserve contin- gent remainders) , that, if the property passed at all, it was the beneficial interest, and not the mere legal estate, which was disposed of. But cases might be suggested in which an express devise of lands, Cases suff- even by a mortgagee in possession, would not carry .the bene- gested in ficial interest ; for instance, if the will contained a specific of mortgage bequest of the mortgage debt, which would show that the estate would (jevisee of the land was intended to be a trustee for the lega- not carry i i /. beneficial in- tee. But it IS clear that a general bequest of mortgages or terest. securities for money would not have such effect (w), for, as such a bequest would pass after-acquired property of this description, the testator is not necessarily presumed to have any specific subject in his contemplation when he makes his will. [In Bowen v. Barlow (o) an owner in fee demised a piece of land for a term of years to B., who assigned the term bj' way of mortgage to the lessor, and afterwards built four houses on the land. The lessor then made his will, and thereby devised his four freehold houses specifically on one set of trusts, and bequeathed his personal estate on another set ; at his death he was in possession as mortgagee ; and it was held *692 that the mortgage * debt was a distinct subject from the rever- sion, and did not pass by the devise, but by the bequest of per- sonal estate : that the debt was charged on the term, that the term was merged at law, and that the testator had entered into possession, were immaterial facts, the equity of redemption remaining unbarred.] Devise of And here it may be observed, that a devise by a testator frMted"tobe ^'^ ^^^ '^^^^ °^ ^^ estate which he had "lately contracted to sold, held not sell to A." has been held to be a mere devise of the legal es- fit of Uiecon- tate, to enable her to carrj' the contract into execution, and tract. clid not entitle the devisee to the purchase-money {pj. (I) 1 Mer. 450. (m) But as to which see next note, (re) See iudgment of Lawrence, J., in Doe d. Freestone v. Parratt, 5 T. R. 652; and Lord Eldon's in Thompson v. Lawley, 2 B. & P. 314. [(o) L. K. 11 Eq. 464, 8 Ch. 171.] (/)) Knollys v. Shepherd, cited IJ. & W. 499, ante, p. 56. 692 MORTGAGEES AND TRUSTEES. *698 Upon the wKole, it is clear that the proposition which states an ex- press devise of mortgaged lands will carry the beneiicial interest in the mortgage, must be received with some qualification. That the benefit of a mortgage will pass by the word Passes by " mortgages," collocated with other personal chattels, is per- gages." fectlj' clear (17) . In conclusion of this branch of the subject, it ma}- be observed, that where a person having a mortgage or other charge upon charge when lands becomes himself entitled to the inheritance of the lands extinguished by union of SO charged, a question frequently arises between his repre- character of sentatives, whether the charge is to be considered as subsist- Xf mor^ ing for the benefit of his personal representatives, or is gagee. merged for the benefit of the person taking the land. The rule in these eases is, that if it be indifferent to the party in whom this union of interest occurs, whether the charge be kept on foot or not, it will be ex- tinguished in equity by force of the presumed intention, unless an act declaratory of a contrary intention, and consequentlj' repelling such presumption, be done by him (»•). But if a purpose beneficial to the owner can be answered by keeping the charge on foot, as if he be an infant, so that the charge would (under the old law allowing infants to bequeath personal estate) be disposable by him, though the land would not (s) , or a beneficial use might have been made of it against a * subsequent incumbrancer (<), or the other creditors of the per- *693 son from whom the party derived the onerated estate (m) ; in these and similar cases, equity will consider the charge as subsisting, although it may have become merged by mere operation of law (x) } (q) Att.-Gen. v. Bowj-er, 3 Yes. 714 ; Dicks v. Lambert, 4 Ves. 730. (r) Price v. Gibson, 2 Ed. 115; Donisthorpe w, Porter, ib. 162, Amb. 600; Lord Compton V. Oxenden, 2 Ves. Jr. 261 ; [Johnson v. Webster, 4 D. M. & G. 474. Tlie union of interest must happen in the lifetime of the party, and no other person must at that time have anv interest in the charge. Tucker v. Loverid'ge, 1 Gif. 377, 2 De G. & J. 650: Wilkes v. Collin, L. R. 8 Eq. 338. General powers to appoint the land and the charge, which (in default) are respectively limited to the heirs and next of kin of the donee, do not produce the required union, Clirford v. Cliilord, 9 Hare, 675.] (s) Thomas v. Keniish, 2 Vern. 348, 1 Eq. Ca. Ab. 269, pi. 9. (0 Gwillim 1). Holland, Julv 29, 1741, cit. 2 Ves. Jr. 263. (a) Forbes v. Moffatt, 18 Ves. 384; [Lord Clarendon v. Barham, 1 Y. & C. C. C. 688; Davis 1!., Barrett, 14 Beav. 542; see Wig.sell ». Wigsell, 2 S. & St. 364. The relative values of the estate and such other charges will not generally be inquired into; but semb. the charges must be substantial, per Wood, V.-C, Richards v. Richards, Johns. 767.] (,x) See Sir W. Grant's judgment in Forbes v. Moffatt. [Those cases, where the charge and the inheritance become united by descent or devise, are to be distinguished from Gres- wold V. Marshall!, 2 Oh. Ca. 170; Mocatta v. Murgatroyd, 1 P. W. 393; Touhnin v. Steere, 3 Mer. 210, as to which, see 1 LI. & Go. 251, 1 D. M. & G. 244.] 1 See- 4 Kent, 102; James v. Johnson, B.J.apham, 3 Gush. 551, said that those cases 6 Johns. Ch. 417; James v. Morey, 2 Cowen, fully sustained the right of the owner of the 246 ; Gardner v, Astor, 3 Johns. Ch. 53 ; Starr equity' of redemption to be the assignee of the V. Ellis, 6 Johns. Ch. 393; Freeman v. Paul, mortgage; that it may be transferred by a 3 Greenl. 260; Gibson i;. Crehore, 3 Pick. deed of quitclaim, and that such assignment, 475. In Savage v. Hall, 12 Gray, 363, 365, when thus taken, did not extinguish the Mr. Justice Dewey, having cited Gibson v. mortgage. Merger was considered not to Crehore, supra; Hunts. Hunt, 14 Pick. 374; take effect where the manifest interest of Freeman v. M'Gaw, 15 Pick. 82; and Brown the party taking such conveyance was to ac- 693 *694 DEVISES BT And the same rule obtains in favor of the creditors of the person in ■whom these interests centre (y) . So, if mesne estates intervene be- tween the charge and the estate of inheritance of the person entitled to it, the charge will subsist (z). II. We now proceed to consider the operation of a general devise on Operation of real estate vested in the testator as mortgagee or trustee, a general de- rpj^ j.^^^ ^^ length established, after much fluctuation of vise on legal '^ ' estate. authority, is, that such property loj'W pass under a general devise of lands, unless a contrary intention can be collected from the testator's expressions, or from the purposes or limitations to which he has devoted the subject of disposition.^ And it is clear that the circum- stance of there being other property to which the devise is applicable, is no ground of exclusion. Thus, in an early case (a), it is laid down, that if a man had but the Legal estate trust of a mortgage of lands in D. and had other lands in held to pass. D., by a devise of all his lands in D. the trust would pass. In Ex parte Sergison (b), a mortgagee in fee devised all the rest* Ex parte residue and remainder of his estate, both real and personal,- Sergison. and of what nature or kind soever and wheresoever, not thereinbefore specifically given, devised and bequeathed, to A., his heirs, executors, administrators and. assigns, forever,' on the side of his mother, and appointed A. executor. A. was an infant. On petition for an order for him to convey under stat. 7 Anne, c. 19, Sir R. P. Ar- den, M. R., was of opinion that the legal estate in the i mortgaged lands passed by the devise, though, as the infant was executor, *694 and thei'efore entitled to the money, * he could not compel him to convey. Lord Loughborough also inclined to think that the estate passed by the devise ; and it was stated at the bar that this cor- Opinions of responded with the opinion of Lord Northington and Lord Lord North- Thurlow, who had overruled Lord Hardwicke's dictum in ington, Lord (y) Powell V. Morgan, cit. 2 Vern. 208. See also Lord Northington's judgment in Donis- thor'pe V. Porter, 2 Ed. 162; [Pears v. Weiglitman, 2 Jar. N. S. 686.] (2) Wyndl)am v. Earl of Egremont, Amb. 753. As to the evidence required to rebut the presuiiiptibn of extinguishment, see TjTwhitt v. TS-rwhitt, 32 Beav. 214, and cases there- cited. (a) Littleton's case, 2 Vent. 351. See also Marlow v. Smith, 2 P. W. 198. (6) 4 Ves. 147. quire the mortgage interest. Especially was 1 See Jadtson v. Delancy, 13 Johns. 537; me merger not to take effect when the interest Heath v. Knapp, 4 Penn. St. 228 ; Cogdell v. of the party required that he should continue Cogdell, 3 Desaus. 340; 4 Kent, 638, 639; In to hold his two different titles distinct to re Packman, L. R. 1 Ch. D. 214; In re protect him against some other interest Brown, L. R. 3 Ch. D. 156 ; Martin v. Lav- which might affect the two estates in case erton, L. R. 9 Eq. 563. It was held in Gibbes they were held to be merged. See New Eng- v. Holmes, 10 Rich. Eq. 484j that under a de- land Jewelry Company ». Merriam, 2 Allen, vise by a mortgagee, not m possession, of 390; Strong v. Converse, 8 Allen, 567; mortgaged premises, the devisee takes the McCabe v. Swap, 14 Allen, 188, and the re- mortgage and all the securities bv which the marks of Mr. .lustice Wells concerning mer- title to the premises is to be sustained. See< ger on p. 191 of that case. Woods v. Moore, 4 Sandf. 679. 694 MORTGAGEES AND TRUSTEES. *695 Casbome v. Scarfe (c). In the principal case, however, the '^'M'^P^a p heir, under the circumstances, was ordered to convey; the Arden. L. C. observing, that the infant devisee, when he was of age, might join, which would give a title quacunque via. In Att.-Gen. v. BuUer (rf) , lands of which the testator was trustee were held not to pass under a devise wherebj' the testator, Att.-Geu. v. after devising for the payment of his debts and other moneys, Bu'ler. his lands and heraditaments in very general terms, unto his sons J. B. and F. B. and their heirs, forever, added: "And all the Decisions rest and residue of my goods, chattels, rights, credits, and against tiie , 7 7 7,?. 1 • T operation of all my real and personal estate not hereby bejore given, devised general de- and bequeathed, and all my right, property and interest '*''^^- therein, by law or equity, I do give, devise, and bequeath unto my sons J. B. and F. B." (e), whom also he appointed executors. Lord Lough- borough assented to the statement at the bar, that the rule was that general words would not pass trust estates, unless there appeared to be an intention that they should pass : in allusion to which Lord Eldon, in Lord Braybroke v. Inskip (/), observed that he did not know, in his experience, of any case in which the proposition was laid down so strong one waj' or the others The language of Lord Thurlow, in Pickering v. Vowles {g) , notwithstanding what is said in Ex parte Sergison of his opinion, certainly seemed to favor the same doctrine. In Ex parte BretteU (A) , too. Lord Eldon was of opinion, that an es- tate of which the testator was mortgagee in fee in trust for e^ parte another person, did not pass under a devise of all the rest of Bretteil. his estate and effects whatsoever and wheresoever, and of what * nature or kind soever, unto G. H., his heirs, executors, ad- *695 ministrators and assigns, forever, to and for his a,nd their own proper use and behoof. Of this case, however, it is sufficient to observe, that the very learned judge by whom it was decided warrants us in regarding it as no author- ity on the general question, his Lordship having, on a subsequent occa- sion (i), remarked that " it came on on petition, and perhaps was not so attentively considered as the importance of the point required." The preceding cases had left the subject in some degree of doubt. (c) 1 Atk. 605. But it has been suggested that his Lordship may have referred to the beneficial interest (see Mr. Sanders's note); and, perhaps, in regard even to the legal estate, the position is not erroneous, as a devise, in the terms supposed, would confer only a lite estate ; and it has never been held that a general devise confen'ing less than a fee would operate to pass estates vested in the testator as mortgagee or trustee. Such a question, of course, is less likely to arise now that under a will made or republished since 1837, an unre- stricted devise wilfcarry the fee. [In Greenwood v. Wakeford, 1 Beav. 576, it was held that the legal estate of lands vested in a surviving trustee during the life of a married woman, passed by a devise of "all the lands and hereditaments vested in him as trustee or mortga- gee in fee," the question apparently being whether the words, " in fee " referred as well to "trustee " as to " mortgagee."] (d) 5 Ves. 340. (f) The direction to pay debts, &c., it will be observed, does not extend to the latter devise. ( /•) 8 Ves. 435, stated infra. (n) 1 B. C. C. 197. (h) 6 Ves. 577. ' (i) 8 Ves. 434. 695 *696 • DEVISES BY Eule finally But the present doctrine was finally established by Lord lord'BrEfv '" Braybroke v. Inskip(^), where real estate having been de- broke V. In- vised to trustees, upon trust to pay debts, and settle the ^"^' estates to certain uses ; the question was, whether the estate passed by the will of the heir of the surviving trustee, who gave and devised all his reed estates whatsoever and wheresoever, unto his wife G., her heirs and assigns, forever, and gave all his personal estate to her ; and appointed his said wife and B. executrix and executor. The heirs at law were two infants and a married woman. Lord Eldon held that the legal estate passed by the will. After reviewing the cases, he Trust estates stated the rule to be, that trust estates would pass under a der a^^eneral S'*™*'"''' devise, unless it could be collected, from expressions devise con- in the will, or purposes or ohjects of the testator, that he did ing"incon°ist- '"'' mean that they should pass. ^ In this case he observed ent. there was no one circumstance to cut down the efiect of the devise. It seems that Lord Loughborough, notwithstanding the opinion ex- pressed by him in Att.-Gen. v. BuUer, concurred in the rule laid down in the last case (I) . It should be noticed that Lord Eldon, in the course of his judgment Lord Brav- "^ Lord Braybroke v. Inskip, frequently adverts to, and even broke v. Jin- lays some stress upon, the circumstance of the heirs at law ^ '''■ being under a disability to convej', and the consequent in- convenience of permitting the legal estate to descend to them ; and more than once observes, that the quantum of convenience is to be esti- mated on each will. This ingredient, it is submitted, would render the tule most difficult of general application. If the " weighing of incon- veniences " were to be made on everj- particular will (the relative situa- tion of the heir and devisee being thrown into the scale) , it would be impossible in an}' case to ascertain the effect of such a general *696 devise witliout evidence of these facts, and * where such evidence was inaccessible (as it inevitably must be in regard to wills oc- curring in the earl}' period of a title), the operation of tlie devise must always be uncertain ; and, moreover, the facts, when discovered, might present such an apparent balance of inconveniences, as to render it difficult to say on which side thej' preponderated. Besides, if the in- quirj' as to the relative situation of the devisee and heir refer, as it necessarily must, to the period of the making of the will, it is obvious that such an alteration may have taken place in that situation, between the period in question and the death of the testator, as would render the application of such a test not only not beneficial, but actually mis- chievous, even in the particular cases for the sake of which the general inconvenience attendant on a fluctuating and uncertain rule is to be (4) 8 Ves. 417. {I) 8 Ves. 437. 1 4 Kent, 538, 539 i Jackson v. Delancy, 13 Johns. 63T. 696 MORTGAGEES AND TRUSTEES. *697 incurred. But such a principle of construction, it is conceived, is inconsistent with authority, no less than with general convenience ; since all the cases which state the rule to be that trust estates will pass under a general devise, unless the purposes be inconsistent, decisively negative the introduction of any additional circumstances into the sub- ject of consideration. To engraft such a qualification is to change the rule. It is at variance, also, with the principle on which Lord Eldon, in one instance (m), disclaimed making the coverture and infancy of devisees a ground for holding that they took beneficiallj^, and not as trustees. In fine, his observations in Braybroke v. Insklp seem to be merely thrown in to give additional weight to a judgment which, inde- pendently of any such reasoning, stands upon irrefragable grounds, and has (we shall see) governed the subsequent decisions upon this subject. Thus, in Bainbridge w. Lord Ashburton (w), where the surviving trustee under a will, after devising certain specific real Bainbridee » estates to various persons, gave and devised all his real Lord Ashlur- estates, not thereinbefore otherwise disposed of, unto his ''°' godson, his heirs, executors, administrators and assigns, according to the tenure and nature thereof respectivelj', to and for his and their own use and benefit. It was held that the trust estate passed under the devise: Alderson, B., remarked (in reference to Lord Eldon's reason- ing in Ex parte Brettell) that it would be a very minute distinction to draw any line between the words " benefit " and "behoof." * It is clear that the fact of the testator having reserved to the *697 devisee a power of appointment does not constitute a ground for excluding trust estates. Thus, in Ex parte Shaw (o), where _ the devise was in the following words : " I give, devise and of power rf bequeath unto my dear wife Ann, to hold to her my said wife, appo">"nent. her heirs, executors, administrators and assigns, according to the na- ture and quality thereof respectively, for all my estate and interest therein, to and for her own absolute use and benefit, arid to he disponed of hy her, by deed, will or otherwise, as she my said wife may think ft ; " and the testator appointed his wife sole executrix : Sir L. Shadwell, V.-C, held that an estate vested in the testator as trustee passed by this devise. The converse of the rule established by the preceding cases is equally clear; namely, that if the property comprised in the general whatwiii ex- devise be subjected to the payment of debts, legacies, annul- '^''^''^ *™*' •' . „ , / ^ , .,, . estates from a ties, or any other species of charge (p), or the will contain general de- an^- limitations or provisions to which it cannot be supposed "^*" (m) King v. Denison, 1 V. & B. 275, supra pp. 571, 572. («) 2 Y. & C. Sil; [and see Sharpe v. Sharpe, 17 L. J. Ch. 384, 12 Jur. 598; Langford t;. Auger, 4 Hare, 313.] (0)8 Sim. 159; [but ?«. was any power created?] (p) Wynne v. Littleton, 2 Ch. Rep. 51, 1 Vern. 3. (but as to this see 1 CoV. Pow. Mortg. 414); Roe d. Reade.«. Reade, 8 T. R. 118; Ex parte Morgan, 10 Ves. 101; [Rackham v. Sid- dall, 16 Sim. 297, 1 Mac. & G. 607; Hope v. Liddell, 21 Beav. 183; Re Bellis' Trusts, 6 Ch.- 697- *698 DEVISES BY Charges of that the testator intended to subject property not beneficially tory I'imita- his own, as uses in strict settlement (g) , or executory limita- wiH^ex'T 'd ti^ns (r) ; or a trust for sale (s), [or for a charity (t), or for trust estates, the separate use of a married woman (m) , or for an unascer- tained class (y) ; or words of severance making the devisees tenants in common, with a clause of accruer amongst them (a;), J the mortgage or trust lands will not pass. [And considering the inconvenience *698 arising from the devolution of a trust estate in shares * it would seem that the words of severance alone are sufficient to exclude it from a general devise (y). J And it is wholly immaterial whether the testator has other lands to •which the devise can be applied or not ; for in these cases the courts have not adopted the principle applicable to reversions, that, where there are other lands, to which the inconsistent limitations can be referred, they apply exclusively to those lands, reddendo singula singulis {z). In Ex parte Morgan (a) , Lord Eldon held, that lands of which the Devise con- testator had merely the legal estate, as heir at law of the gaeea'in™'"^ preceding mortgagee, did not pass under a devise to trus^ which the de- tees of " all Such real estates as are now vested in me bj' toeficki tn- ^^J °^ mortgage, the better to enable them my said trus- terest. tees, and the survivor of them, and the executors and ad- ministrators of such survivor, to recover, get in and receive the principal moneys and interest, which may be due thereon." The rule under iconsideration, of course, does not, deny the power of a testator to limit estates vested in him as mortgagee or trustee to uses in strict settlement or in any other manner equally inconsistent with a due regard to the testator's duty as mortgage creditor or trustee : it merely refuses to see an intention so to do in a general devise. Should a testator unequivocally devise an estate vested in him as mort- D. 504. The foresoinp: are cases of trust estates. The following , are cases of mortgage], Duke of Leeds v. Mundav, 3 Ves. 348; Re Horstall, M'Clel. & Y. 292; [Doe d. Roylance v. Lightfoot, 8 M. & Wels. 553 ; Re Packman and Moss, 1 Ch. D. 214. As to Re Stevens' Will, L. R. 6 Eq. 597, vide post, p. 70X.] (y) Thompson v. Grant, 4 Mad. 438; Att.-Gen. ■». Vigor, 8 Ves. 276; overruling Ex parte Bowes, cited 1 Afk. 605; n., hy Sanders, where Lord Hardwiuke held that a general devise of real estate in S. K. and M. an(l elsewhere in England to certain uses, under which an infant was then entitled to an estate tail, passed the legal estate in lands of which the devisor was mortgagee in fee; [but see Burdus v. Dixon, 4 Jur. N. S. 967, where the testator had at- tempted to make the mortgaged property his own, bv a pretended sale to another, who was a trustee for the testator, and the legal estate was held to pass notwithstandina; the uses and trusts. (>') Per Lord Eldon, Bravbroke v. Inskip, 8 ves. 434.] (s) Re Marshall, 9 Sim. 555. [(() Att.-Gen. v. Vigor, 8 Ves. 276. (m) Lindsell «. Thacker, 12 Sim. 178. See, however, per Kinderslev, V.-C, Lewis v. Ma- thews, L. R. 2 Eq. 181. (v) Re Finnev's Estate, 3 Gif 465. (x) Thirtle ».' Vaughan, 2 "W. R. 632, 24 ,L. T. 5; Martin v. Laverton, L. R. 9 Eq. 563. (;/) Martin v. Laverton, L. R. 9 Eq. 668, per Malins, V.-C. Ex parte Whiteacre, 1 Sand. Use's, 359, n. is sorrietimes cited contra, but the devise contained the words "mortgages and securities," as to which rirfe infm. (z) 5 Ch. D. 608, notwithstanding 3 Ch. D. 156.] (a) 10 Ves. 101. [And see Re Smith's Estate, 4 Ch. D. 70; Re Morley's Will, 10 Hare, 293. 698 MORTGAGEES AND TRUSTEES. gagee or trustee in the manner suggested, the intention must prevail ; * and it would be left to the persons who may become damnified by such, a proceeding to obtain satisfaction out of the estate of the deceased testator (6).* Whether lands held by a testator- as mortgagee will pass by the words "mortgages" or "securities for money "has Words been the * subject of much controversy. The affirm- *699 aiX'Sri" ative was supposed to have been decided in the early ties for case of Cryps v. Grysil (c) ; and although on an examina- ™a°s^the'legal tion of the record (rf), it appeared that the will contained, estate. in addition to the word " mortgages," 'Other expressioDS more une- quivocally applying to the land, [yet- the ratio decidendi -was \h.3.t the word "mortgages" made a good devise of the lands. And it is now settled] that the words " mortgages," " securities for money," and similar expressions, will comprise the ■ entire benefit of the nJortgage security (including the inheritance in the lands (e)), unless a contrary intention appears by the context; [and that the fact of those words being found among terms descriptive exclusively' of personal estate (/) and followed by a limitation to executors and administrators only, and not to heirs, or bj' a charge of debts and legacies (^), or a trust for sale (h), or for several as tenants in common (i) , will not affect the con- struction. The broad principle is, that the testator meant to substitute the object of his bounty in his own place as mortgagee, and to enable him to enforce payment of-the mortgage- money by giving him the legal estate in the mortgaged lands {j)? But further, in Doe d. Guest v. Bennett {¥) , where a- testator made (i) If, after a contract for sale, but before completion, the vendor dies leaving an infant heir, or having by will, executed before the date of the contract, devised the estate to a per- son incompetent toconvey, the vendor's estate will not have to bear the costs- of the suit ren- dered necessary to complete the convevance, Hanson ». Lake, 2 Y. & C. C. C. 328 ; Hinder «. Sti-eeton, 10 Hare, 18, 16 Jur. 650; fte Manchester and Southport Railway Cornpany, 19 Beav. 365; Bannerman v. Clarke, 3 Drew. 632: overruling Prytharch ». Havard, 6 Sim. 9; Midland Counties Railway Company ». Westcomb, 11 Sim. 57; Eastern Counties Railwaj' Company v. TufEnell, 3 Rail. Ci 133;. But if after contract to sell the vendor execute such a will, the" costs of suit will be thrown on his estate, Wortham ». Lord Dacre, 2 K. & J. 437; Purser «. Darby, 4 K. & J. 41.] (c) Cro. Car. 37. . (d) See 9 B. & Or. 282. [(e) Before as well since the stat. 1 Vict. c. 26, see Eenvoize v. Cooper, 6 Mad. 371 ; Sil- berschildt ». Schiott, 3 V. & B. 49, per Sir W. Grant; Re Walker's Estate, 21 L. J. Ch. 674; Knight ». Robinson, 2 K. & J. 503; Rippen v. Priest, 13 C, B. N. S. 308 ; but the old case of: Wilkinson v. Merryland, Cro. Car. 449, is contra. (/) Renvoize v. Cooper, 6 Mad. 371; Re King's Mortgage, 5 De G. & S. 644. {g) Re Field, 9 Hare, 414; Re King's Mortgage,' 5 I)e G. & S. 644; Rippen «. Priest, 13 C B. N. S. 308 ; Knight v. Robinson, 2 K. & J. 503. {h) Ex parte Barber, 5 Sim. 451. (i) Ex parte Whiteacre, Rolls, 22 .July, 1807, 1 Sand. 'Uses and Trusts, 359, n. (j) The special grounds relied on in Ex parte Barber, 5 Sim. 451, and Mather v. Thomas, 6 Sim. 115, were therefore not essential. Sylvester r. Jarman, 10 Pri. 78, and Galliers v. Moss, 9 B. & Cr. 267, are overruled : so is Ex parte Gorfett, 19 L. J. Ch. 173, 14 Jur. 53, un- less it can be distinguished on the ground that the security was In the form of a trust for sale, sed qu. (k) 6 Exch'. 892. 1 Jackson v. Delancy, 13 Johns. 537. 2 lb. 8 See Mather v. Thomas, 10 Bing. 44. 699 *700 DEVISES BY Devise "that his will as follows : "I leave my wife to receive all monies A. shall re- upon mortgages and on notes out at interest, and at her de- ceive money i o o ~ ^ on moit- cease I leave my niece to paj' my wife's debts and to take all ^"m'securi- ^^^ remains of raj property, land or personal property ; " ties." the Court of Exchequer held that the wife took the legal estate in the mortgaged property. Parke, B., said : " The words ' to receive all moneys upon mortgage,' in my opinion, pass the securitj-, that is, the legal estate on which the money was secured. It must be assumed that the testator intended the wife to receive the money and to possess all the powers necessary for the purpose of re- *700 * covering it ; and therefore she is entitled to bring ejectment for that purpose." Aiderson, B., was of the same opinion, adverting also to the devise to the niece of all that remained of the> property, land or personal property, as implying that the wife was to have the whole of that which was devised to the niece in remainder. And in Re Arrowsmith's Trusts (J) , a mortgagee in fee devised to a trustee all his real and personal estate in trust, after paj'ment of his, debts and funeral expenses, to permit his wife to receive .the rents of his real estate and the interest of all sums due on mortgage, bond, note or other security, for her life, and at her death to get in all debts owipg to him on any security and to pay a legacy to his son A. ; and on the death of the wife, the testator gave a certain house and the residue of his real and personal estate to his son B. ; it was held bj' K. Bruce and Turner, L. JJ., that the legal estate in the mortgaged property passed to the trustee, that construction being necessary to give full dominion over the mortgaged estate for the purpose of carrying into execution- the trusts of the will. K. Bruce, L. J., said : " I take occasion to express my entire concurrence in the judgment of Parke, B. , in Doe v. Bennett." Sir R. Kindersley, however, held that the legal estate did not pass p.. . bj' a gift of " money in the funds and on securities.'' He "money on thought Doe D. Bennett was distinguishable; but if it was securities. jueant that a legatee who was to receive the money was also to take the legal estate, he could not concur (m). If that principle were to be carried out it would apply to a case where a testator merelj' left his personal estate to his executors, it being obviouslj- his intention in that case that they should receive the mortgage money (n). But hitherto the principle has been confined to cases where the intention has been expressed. As alreadj' stated, a general devise of real estate on trust for sale Gift of real will not include the legal estate in mortgaged propertj' (o) . and personal But where the real and personal estates are devised and be- trust^to sell queathed together, expressly in trust to sell and get in, the and get in. trustees cannot execute these trusts as regards the personalty (0 27 L. J. Ch..704, i 3m. N. S. 1123. (m) But see per Grant, M. R., Silberschildt ». Schiott, 3 V. & B. 49. (») Re Cantley (or Cautley), 17 Jur. 124, 22 L. J. Ch. 391. (o) Ante, p. 697. 700 MOETGAGEBS AND TRUSTEES. *702 ■Without having dominion over the mortgaged estate ; and, though it has never been so held, there is a strong inclination to say that the ex- press trust to sell and get in the personalty neutralizes the * restrictive effect which the trust for sale would otherwise *701 have upon the devise of real estate, and to hold that thus the latter devise carries the mortgaged estate (p) . But a gift of the real and personal estate charged (as in Ee Arrow- smith's Trusts) with debts, or charged with debts and lega- ^., , ,.,',, °. „,, , „ Gift of real cies, but not aided by express mention of " mortgages, or and personal " securities," nor by express trust to sell and get in the per- j^'^'^jj^"^^^"' sonalty, will not include the mortgaged estate. Thus, in Doe d. Roylance v. Lightfoot (q), where a mortgagee devised all his real and personal estates after payment of his debts and legacies to A. and B. as tenants in common in fee ; it was held, that the legal estate did not pass by the will, on the ground that the testator could not have intended that estates should pass of which lie was seised only as mort- gagee, but only those which he had power to subject to his debts and legacies, namelj', those which were equitably as well as legally his own. A decision which at first sight seems opposed to this was made in Re Stevens' Will (r) , where a mortgagee in fee directed all Re Stevens' ber debts to be paid : she then gave several pecuniary lega- ^'"■ cies, and as to all the rest and residue of her real and personal estate and effects, she gave the same to J. for her own absolute use and benefit ; and appointed other persons executors. The course which the case took deserves notice. On one side it was argued that the charge of debts and legacies affected the testator's own estates and no others (s), and therefore did not prevent the legal estate in the mort- gaged property passing to J. On the other side this was not disputed, so far as concerned the charge of debts ; but it was contended that the charge of legacies, being in a different form (<), was enough to prevent the legal estate passing ; and for this Doe v. Lightfoot was cited. But Sir G. Giffard, V.-C, fastening on the admission respecting the charge of debts, decided that the legal estate passed to J. He said: "The charge of legacies is the point insisted on as being a reason why the legal estate should not pass. I quite agree that in this will there is enough to charge both the debts and legacies * on the testa- *702 trix's own real estate, but if the charge of debts would not pre- vent the legal estate in the mortgaged property passing, so neither would the charge of legacies. The modern authorities have extended the cases in which the legal estate in a mortgage has been held to pass. (p) See per Jessel, M. R., Lvsaght v. Edwards, 2 Ch. D. 515, and Re Smith's Estate, 4 Ch. D. 72 ("whatever might have been the case if the mortgage money had belonged to the testator in his own right"); and per Shadwell, V.-C, Kx parte Barber, 5 Sim. 455, where however the word " securities " occurred. (?) 8 M. & W. 553. The statement of the devise is talcen verbatim from the report. The tenanev in common was not adverted to. (r) L. R. 6 Eq. 597. (») The contrary is settled, ante, p. 698. («) Ex rel. 701 *703 DEVISES BY Here, subject to the charge of debts and legacies, there is an absolute gift to J. I am not precluded by authority, from holding that the .legal estate passed in this case ; and I do not hesitate to say that in a case such as this good sense and convenience require that a beneficial gift should carry the legal estate in a mortgage as an incident and a useful and necessary incident to the beneficial ownership. There may be cases ■where a.- trust- estate would not pass, and yet there would be a plain intention that the legal estate in- a mortgage should pass. I am of opinion that on this wiU there was an intention that the legal estate in the mortgage should pass, and. there is nothing to rebut this intention." The V.-C. recognized no distinction between one form of charge and another i so that, it being admitted that the charge of debts did not prevent the legal estate paasingy it followed that the charge of legacies had not that effect. / In a case such as that, Doe v. Lightfootdid not preclude him from holding I that the legal, estate passed., The decision depends on the word " if." ; Since Re Stevens' Willithe authority of Doe v. laightfoot has been fully recognized («),;- and in BeEackman and Moss (x), where a mortr gagee gave and bequeathed all his property, .real and personal, to trus- tees (whom, he appointed executors) upon trust, first, to pay debts, and as to the residue on certain trusts for his wife andi children. Sir G-. Jessel decided that the. legal estate did not. pass, on this,, among other grounds, .that the testator's, debts could only be paid out of his own property.] Mortgage Hitherto the point of construction under consideration has terms, when been viewed in reference to mortgages in fee. With respect general de- to- mortgages for terms of years, it is conceived they fall vise. under the principle established by Ross v. Bartlett (j/), that ■leaseholds for years will not, under the old law, pass by a general de- vise of lands, unless the testator have no freeholds on which it might •operate. If there be no such lands, or the will be subject to the new 'law, and if the devise contain nothing inconsistent, and there be no specific bequest . which will carry the legal interest in the *^703 * mortgage tei-m, it is, clear that such interest will pass under a general devise. The question, however, could hardly arise on -the mere legal interest, since it would vest primarilj- in the ex- ecutor, or the administrator cum testamento annexo, as part of the tes- tator's personal estate, and it is unlikely that the legatee would claim bis assent to the bequest, unless there was ground to contend, that the bequest included the beneficial interest. Estates of copyhold tenure, held by the testator in the character of Kule as to mortgagee or trustee, are not distinguishable from freeholds, copyholds, in regard to the efiect of a general devise, whether the wUl , (m) By Jessel, M. E., Ee Bellis' Trusts, 5 Ch. D. 509, (x) 1 Ch. D. 214. See also Re Horsfall, M'Cl. & Y. 292.1 (J) See ante, p. 668. 702 MOETGAGEES AND TETJSTEES. *704 is subject to the old or new law; supposing, of course, that its antiq- uity is not such as to exclude it from the operation of the act of 55 Geo. 3, c. 192, which first dispensed with the necessity of a surrender to the use of the will, in regard to testators dying after the passing of the act. It has been sometimes a question, how far the principle which governs the construction of devises of lands, vested in a testator as ^g ^Q jevisea mortgagee or trustee, applies to property which, belonging ?^ '?"?^j '^?"" to him beneficially, he has contracted to sell. In such cases sold by tes- [it is argued], the testator is, in the event of the contract **""'• being carried into effect, a trustee for. the purchaser : but as this may not happen, and consequently the property may remain unconverted, the trust is of a qualified and contingent nature.^ It has been decided (z), however, that if a testator, after having contracted for the sale of an estate, devises it a,s. All that Ms estate called A., which he had con- tracted to sell, the effect is to vest in the devisee the legal estate only, for the purpose of enabling him to carry the contract into effect for the benefit of the executor, and does not entitle the devisee to the purchase- money. It is conceived, however (though the point did not arise in the case referred to) , that if from anj- circumstances the contract had proved not to be binding on or had been rescinded by the testator, the devisee would have been entitled to the land, and this (as already hinted) con- stitutes a difference between the case, and that of a dry Difference mortgage and trust estate, which renders the construction ''^'^^^'^ * that has been applied to the latter, to a certain extent, in- mere trustee. applicable to the former. Thus, in Wall v. Bright (a) , where a testa- tor, after having contracted for the sale of an estate, devised aU his freehold and other his real and leasehold hereditaments and all his personal estate to trustees, upon trust to * sell and dispose *704 of his said hereditaments and personal estate, with the usual powers to give discharges to purchasers, and to invest the purchase- mortey and hold the funds on certain trusts. Sir T. Plumer, M. E., held, that the contracted-for property passed by the devise : " Though there is a great analogy," he said, " in the reasoning with respect to the will of a naked trustee and that of a constructive trustee, on the ground of the impropriety of their attempting to dispose of the estate ; j'et for many purposes they stand in different situations. , A mere trustee is a person who not only has no beneficial ownership in the property, but never had anj-, and could, therefore, never have contemplated a dispo- sition of it as his own.^ In tiat respect he does not resemble one who (z) Knollys v. Shepherd, cited IJ. & "W. 499, [Sug. Law of Prop. 223.] (a) IJ. (& W. 494. 1 See 1 Sudden, Vend, and Purch. c. 4. " Land of which the testator is seised as a § 1, subsec. 38, e( seq. ; Laws ». Bennett, naked trustee will not pass by a devise of 1 Cox, 167; 14 Ves. 596; Ripley D. Water- " all his real estate, whatsoever and whereso- worth, 7 Ves. 436 ; Seton t>. Slade, ib. 265, ever," if the purposes of the devise, as to sell and note; Craig!;, Scobie, 3 Wheat. 563, 677; and distribute the proceeds, are inconsistent Postal! V, Postell, 1 Desans. 173. with the trust. Merrit v. Farmers' Eire Ins. 703 *705 DEVISES BY has agreed to sell an estate, that, up to the time of the contract, was his. There is this difference at the outset, that the one never had more than the legal estate, while the other was, at one time, both the legal and beneficial owner, and may again become the beneficial owner, if anj'thing should happen to prevent the execution of the contract: and, in the interim between the contract and convej-ance, it is possible that much ma}' happen to prevent it. Before it is known whether the agree- ment will be performed, he is not even in the situation of a constructive trustee ; he is only a trustee sub modo, and provided nothing happens to prevent it. It may turn out that the title is not good, or the pur- chaser may be unable to pay ; he may become bankrupt, then the con- tract is not performed, and the vendor again becomes the absolute owner ; here he differs from a naked trustee, who can never be bene- ficially entitled. We must not, therefore, pursue the analogy between them too far." ..." The safest way is to hold that the estate passes, adhering to the words, there not being enough to take it out of them." In this case, the construction adopted by the court was very con- Eemarks venient, as it enabled the devisees, in performance of the upon Wall V. testator's contract, to convej' the estate to the purchaser, "^ ■ which otherwise would have descended to an infant, who, in the then state of the law, could not, even with the aid of the Court of Chancery, have made an effectual conveyance to the purchaser. Still, it is to be remembered, that a trust for sale was no less inappropriate to property which had been actually sold, than a devise in strict settle- ment, or any other such limitations would have been, though, as it con- fers on the trustees an estate in fee, it happened to be more *705 convenient ; and much of the reasoning of * the M. R. would have applied, if the devise had been such as to have rendered it impossible for the devisees, without the aid of the court, to make an effectual conveyance to the purchaser. He does, however, more than once advert to the convenience attending the construction in the par- ticular case ; and the prudent practitioner, knowing the influence w;hich such considerations, whether acknowledged or not, do often exert in questions of this nature, will hesitate too readily to assume the applica- tion of the same doctrine to cases in which a different result would follow. Nor, indeed, does it seem to be altogether inconsistent with sound principles of construction, especially that rule which has been the subject of discussion in the present chapter, that the fact of the devise being such as to enable the devisee to carry the testator's contract into effect or not, should have some weight in determining whether it was intended to apply to the property (6) . (J) But in such case the purchase-money would be payable not to the trustees by virtue of the devise, but to the executors as part of t&e personal estate of the testator, [Eaton i. Sanxter, Co., 2 Edw. Ch. 547. But a devise of all nothing in the will, or in the circumstances the residue of the testator's estate is compe- of the case, from which a contrary intent can tent to pass a naked trust, of which there is be inferred. Den d. Wills v. Cooper, 25 N. J. no disposition in the will, and where there is 137. 704 MOETGAGEES AND TKTTSTEES. *706 [But, as pointed out by Sir G. Jessel (c) , if the contract is a valid one, binding on both parties, and continues such at the time „ .. J, , P , ^ If the con- 01 the vendor s death, no subsequent event can affect the tract is valid question ; the property is converted, and the vendor is a dor't''dIa°h constructive trustee ; not a bare trustee, for he has a benefi- he is a trus- cial interest left in him, viz. a lien or charge on the estate ^^' for the security of the purchase-money (rf), but still a trustee. There- fore, where (e) a testator by his will, dated 1873, devised all Lysaght®. his real estate to A. and B. on trust to sell, and devised the Edwards, real estate which at his death might be vested in him as trustee to A., and afterwards * entered into a valid contract to sell part *706 of his real estate, it was held by Sir G. Jessel, M. E., that this part passed by the devise of trust estates. He acquiesced in the deci- sion in Wall V. Bright, because, viewing the testator as b^ing entitled to the estate simply as a securitj' for his purchase-money, he thought the trustees could not execute the trusts expressly annexed to the per- sonal estate unless thej' had the legal estate ; but he dissented from Sir T. Plumer's definition of the position of a vendor pending the com- pletion of the contract. The sole question was, did a valid contract exist at the testator's death ; if the title proved bad, he agreed there was no conversion and no trust ; but that was because in contemplation of equity there was in that case no valid contract (/) ; but whether the purchaser was able to paj' or not was immaterial ; if a contract valid at the vendor's death was cancelled for non-payment of the purchase- money after his death, or for any other cause not affecting the original validity of the contract, the conversion was not therefore undone or the consequent trusteeship annulled. But where the purchase has been completed by payment of the pur- chase-money and delivery of possession, though the deed of Distinctioa convej-ance has not passed the legal estate, the vendor is in '"^^^'^ P"'- the position of a bare trustee, and there is no difficulty paid and in holding that a general devise of lands by the vendor in a riven!^'"" 6 Sim. 517; so that this construction (as was observed by .Tessel, M. R., 2 Ch. D. 520) could not be maintained where the proceeds of the real estate and the personal estate were given beneticiallv to different persons. (c) 2 Ch. D. 507. id) In dtoold V. Teague, 5 Jur. N. S. 116, it was held that such a lien did not pass by a bequest of securities for money. But the case is questioned. Sug. V.'& P. p. 68-t. (e) 2 Ch. D. 499. Purser v. Darby. — In Purser v. Darby, 4 K. & J. 41, the testator, after contracting to sell an estate, specifically devised it, so that, of course, it could not pass by a devise of his mortgage and trust estates contained in another part of the will. But it was said by Wood, V.-C., that he had held — and the decision had been since affirmed — "that where there is merely a constructive and not an express trust, a devise of trust estates does not supersede the necessity of a decree." The decision referred to by the V.-C. appears not to be reported. The meaning of the dictum is supposed by Jessel, iVI. R., to be only that where a person under disability would take the estate if the contract were not established in a court of equity, there the purchaser cannot safely complete without establishing the validity of the contract by decree, 2 Ch D. 511. And generally a vesting order will not be made under the trustee acts without suit. Re Carpenter, Kay," 418. But it is otherwise where the purchase-money has been paid. Re Cuming, L. R. 5 "Ch. 72; Re Crowe's Mortgage, L. E. 1.3 Eq. 26; Re Russell, 12 Jur. N. S. 224. In the last case reliance was also placed on the sale being compulsory ; srd qu. (.f) But assuming the purchaser to know this, he might very well be in doubt whether hft had an enforceable title, and might therefore make his will with a dubious aspect. VOL. I. 45 705 *707 DEVISES BY manner indonsistent with his duties as trustee (charged, for instance, with the payment of his debts) will not include the legal estate (cf).^ ' Where a mortgage in fee is foreclosed subsequently to the making of Effect on de- ^ ^i'^') i* i^ clear that the equity of redemption so acquired vise by mort- ^iu not pass by a will made before and not republished on Bubsequeat Or since the 1st of January, 1838 ; and it has been deter- fureciosure. niined, that the period of foreclosure is the date of the final order of the court, following default of payment on the day appointed, and not the date of the decree (A).' But though the equity of redemp- tion subsequently acquired by foreclosure will not pass by the will, it is clear that the devise of the legal estate takes effect, notwithstanding the mere acquisition of the equity of redemption, by this or any other' means. Where, however, such equity is purchased bj' the mortgagee, and he and the mortgagor in the usual manner join in conveying *707 the property to a releasee * to uses to prevent dower, for the benefit of the former, the devise, being in a will which is subject to the old law,' will be revoked (i). In one instance (j) Sir W. Grant held, that an estate devised after foreclosure passed by a description applicable to it onlj- as a mortgage ; on the ground that the intention, though inaccurately expressed, ap- peared upon the whole will to give the interest in the land. And Sir L. Shadwell, V.-C, came to the same conclusion, upon the same devise. (^). This was simply a question of intention, as the testator might of course, if he chose, continue to describe it as mortgaged property ; and it would pass, unless an intention appeared that the devisee should be entitled only in case it retained its mortgage char- acter. [But a mere general devise of " all estates whereof he is seised as mortgagee," by a testator, who afterwards purchases the equity of redemption, shows no such intention. The result here is ademp- tion (Z).] It is obvious that the question, whether lands are comprised in a Inouirv-whe- S^"®'^! devise, must frequently depend on the fact, whether therequity of the testator had or had not at the time acquired the equity be barred" ^^ redemption by length of possession and non-recogui- material, tion of any adverse title (m). A question of this kind ^ ^°' occurred on the will of Sir George Downing (n) ; and it was (o) Dimes v. Grand Junction Canal Company, 9 Q. B. 490, 3 H. L. Ca. 794.] (ft) Thompson v. Grant, 4 Mad. 438. (t) Ante, p. 155. 0') Silberschildt v. Schiott, 3 V. & B. 45. (A) Le Gros v. Cookerell, 5 Sim. 384. [(I) Yardiey V. Holland, L. R. 20 Eq. 428.] (m) Now see stat. 3 & 4 Will. 4, c. 27, s. 28, and 1 Vict. c. 28; 2 Hayes's Introd., 5th ed. 275 and 282; [37 and 38 Vict. c. 57, s. 7.] (n) Att.-Gen. u. Bowyer, 3 Ves. 714, 5 Ves. 300; Att.-Gen. v. Vigor, 8 Ves. 256. [See also Burdus V. Dixon, 4 Jur. N. S. 967, ante, p. 697, n.] 1 See Brigham v. Wincheater, 1 Met. 390 ; 19 ; Swift v. Edson, 5 Conn. 531 ; Van Wag- Ballard «. Carter, 5 Pick. 115; Fay «. Cheney, eneu v. Brown, 26 N. J. 196. 14 Pick. 399 ; Dewey v. Van Deusen, 4 Pick. 706 MOETGAGEBS AND TETTSTEES. *708 held, that lands comprised in a certain old mortgage in fee, As tomott- ' purchased bj' the testator, passed under a general devise; gages m tee it being considered, that from the length of possession, Vict. c. 26); under the circumstances, a release of the equity of redemption was to be presumed.'' With respect to mortgages for jxars the question would be some- what dilferent ; the point, if material at all, being, whether _ mortgages the equity of redemption was acquired, not at the date of for years; the will, but at the testator's decease ; since they would pass under a bequest of property of that denomination to which they belonged at the latter period. Thus, suppose a will to contain a bequest of mort- gages to A., and of leasehold generally to B., a mortgage for 3'ears, which was redeemable at the date of the wiU, and which would at that period have passed under the former bequest, having become, by con- tinued possession in the lifetime of the testator^ or by express con- tract, irredeemable, * would, by this change in the nature of the *708 propertj', pass under the bequest of the leaseholds. Such, it may be collected, was the opinion of Lord Eldon, in Att.-Gen. v. Vigor (0) ; and it seems necessarilj' to result from the acknowledged principle, that a general bequest of chattels of a particular species, carries all the chattels of that kind, which the testator is possessed of at the time of his decease. And the same principle, of _ in fee course, would apply even to mortgages in fee, if the will (^'"'^e l Vict, containing the devise in question were made or republished ' ' on or since the 1st of January, 1838. [By the Vendor and Purchaser Act, 1874, it is enacted (s. 4) that the legal personal representative of a mortgagee of freeholds 37 & 33 vict. or of cop3'holds to which the mortgagee has been admitted, <=■ '^8, ss. 4, 5, may, on paj^ment of all sums secured by the mortgage, convej^ or sur- render the mortgaged estate, whether the mortgage be in form an assurance subject to redemption or an assurance upon trust ; and by s. 5 (as amended by the Land Transfer Act, 1875, s. 48), upon „„,„ „. „. the death of a bare trustee, intestate as to any corporeal or c. 87, s. 48. (0) 8 Ves. 276. 1 It was held in Dexter v. Arnold, 3 ». Manhattan Co., 1 Paige, 48; Lamar ». Jones, Sumn. 152, that the general rule in equity is, ' -3 Harr. & M' H. 328; Elmendorf o. Tavlor, 10 that twenty years' exclusive possession by a Wheat. 168; Hughes i'. Edwards, 9 "Wheat, mortgagee is a bar to the equity of redeinp- 497, 498 ; Crittenden t). Brainard, 2 Root, 485; tion. But courts of equity will allow the Martin v. Bowker, 19 Vt. 526; Gunn v. Brant- redemption of a mortgage, under peculiar cir- ley, 21 Ala. 633; Richmond v. Aiken, 25 Vt. cumstances, even after the lapse of more than 324 ; Haskill v. Bailey, 22 Conn. 569 ; Robinson twenty years. The actA of a mortgagee with- v. Fife, 3 Ohio St. 557: Coates v. Woodworth, in twenty years, admitting the title to be a 13 111. 654; Field v. Wilson; 6 B. Mon. 479; mortgage, are sufficient to keep open the Shadwell N. C. 6 Sim. 378; 2 Story Eq. Jur; equity. So, also, are solemn recitals and § 1028, a. b.\ Ayres v. Waite, 10 Cush. 72; acknowledgments of the mortgage, in deeds Phillips v. Sinclair, 20 Me. 269; Blethen w, and other written transactions with third per- Dwinal, 35 Me. 556 ; Hurd v. Coleman, 42 Me. sons. See upon th« general subject 4 Kent, 182; Gates v. Jacob, 1 B. Mon. 306; Crom- 188, 187 ; Demarest ». Wvnkoop, 3 Johns. Ch. well v. Banks &c., 2 Wall. Jr. S69. 129; Kane v. Bloodgood, 7 John. Ch. 90; Slee 707 *709 DEVISES BY incorporeal hereditament of wliich he was seised in fee-simple, such hereditament shall vest like a chattel real in the legal personal repre- sentative from time to time of such trustee. As regards a mortgagee, this act is confined to the single case of pay- Effect of the ment of the debt ; it does not enable the legal personal rep- ^'^'^' resentative to convey or surrender in case of a transfer (») . gageea; The effect of the mortgagee's will on the legal estate will therefore still come frequently in question. As regards trust as to trustees, estates, the act applies only wheii a bare trustee dies intes- tate. His legal personal representative takes his estate, and not merely (like the representative of a mortgagee) power to convey it. If there is no representative, the estate descends in the mean time to the heir (q). Who is a " Bare trustee " is not a term of art, but it has been decided "bare" to mean one who has no beneficial interest in the trust estate, and, therefore, to exclude a vendor before payment of the purchase-money (r) . It would also seem to exclude a trustee with active duties which have not been performed, and the performance of which has not been effectually dispensed with («).] *709 *IIT. A devise of estates vested in the testator as trustee or mortgagee is [commonly] found in [modern] wills. The inser- Whether tion of such devises evidently supposes that the trusteeship trcsteeship relating to the estate vested in the testator will commonly devisees of pass with that estate to the devisee ; for the severance of trust estates, ^jjg ggtate and the fiduciary duty could not be a proper act on the part of the trustee (f) . [But the reasons given for the supposi- tion are not entirely satisfactory. They are, first, that there are many cases in which it would be highly inconvenient that the trust estate should be permitted to descend to the heir, as where he is infant, luna- tic or bankrupt. Secondlj', it is said that if the heir (or hteres naius) is trusted to perform the fiduciary duties, whj- should not the devisee (or hcer^s foetus («)) be equallj' trusted ; both being equally' unknown to the author of the trust, and the one being by no possibility the object of personal confidence anj' more than the other? An argument of this nature was urged without success in the leacJing Cole 9 Wade ^^^ '^^ ^°^^ "■ ^*de (a;) , where a testator gave his real and personal estate to A. and B. (whom he appointed his exec- utors), their executors, administrators and assigns, in trust for such of his relations as they should think proper ; and declared that, resting [(p) Re Brooks' mortgage, 46 L. J. Ch. 865. (7) Christie v. Ovington, 1 Ch. D. 2T9. M Morgan v. Swansea, 9 Ch. D. 582. (s) Per Hall, V.-C, 1 Ch. D. 281; but Jessel, M. R., doubted whether a trustee without interest was not a bare trustee, although he had active duties to perform, Ch. D. 583. (/) It is also said that the rule in Braybrolte v. Inpkip, ante, p. 695, supposes the same thing; and that if it is wrong for a trustee to devise his trust estate, the courts were wrong in readinga general devise, nncontrolled by the context, as including such an estate. (a) But this term is unknown to the English law. Hogan v. Jackson, Cowp. 305. (x) 16 Ves. 27, affirmed 19 Ves. 424; see also Att.-Gen. v. Doylev, 2 Eq. Ca. Ab. 194; Fordyce v. Bridges, 2 Phill. 497. 708 MORTGAGEES AND TBTJSTEES. *710 perfectly satisfied with the honor and justice of his said trustees and executors, he wished everything relative to that disposition, as well who were his relations as in what proportions they should take, should be entirely in the discretion of the said trustees and executors, and the heirs, executors and administrators of the survivor of them ; and for the better division of his estate he directed his trustees and executors and the survivor of them, and the heirs, executors and administrators of such survivor, if they should think proper, to sell or mortgage the estates or such parts thereof as they in their discretion should think proper: and the testator further directed the said A. and B., or the survivor of them, or the heirs, executors or administrators of such sur- vivor, to convey and paj' the whole to his relations in manner aforesaid within a stated time. The surviving trustee devised and bequeathed the real and personal estates of the first testator to C. and D. upon the existing * trusts. Sir W. Grant, M. R., held that C. *710 and D. were not competent to exercise the discretionary power of selection and distribution given by the first will : that the power did not pass with the estate ; and that it was only quasi personm designatce that it could go to the heir. He observed that it was said the words were to be understood in the same sense as in the limitation of an estate, and imported that the person taking the estate should also exer- cise the discretionary power : but the testator had not said so. The question has generally arisen upon trusts or powers of sale which, though to some extent discretionary (y) , partake largely of a ministerial character. Thus] in Cooke v. Crawford (z), where a testator devised all his real and personal estates to A., B. and C, upon trust that they, Cooke ». or the survivors or survivor of them, or the heirs of such sur- Crawford. vivor, should as soon as conveniently might be after his decease, but at their discretion, sell all the real estates ; and he authorized the trustees and their heirs to enter into contracts, and make conveyances, and declared that the receipt or receipts of the said A., B. and C, or of the survivor or survivors of them, or the heirs, executors or ad- , ministrators of such survivor, should be good discharges to trust estate the purchasers. And the testator directed his said trustees, 1'®''^ unable ^ 1 • . to make a their heirs, executors or administrators, to stand possessed of title to a the proceeds of the sale of the real estate, and the conversion P"'''''"'^^''- of his personal estate, which he therebj' directed, upon certain trusts. Two of the trustee^ declined the trusteeship, and the third (who was also the heir at law of the testator) accepted the trust, but died before the sale of the estates, having made his will, whereb}- he devised and bequeathed all estates vested in him as a trustee, unto D. and E., their heirs, executors, administrators and assigns, upon the trusts affecting the same respectively, and appointed D. and E. executors of his will. ly) See Clarke v. The Panopticon, 4 Drew. 29; Lewin, on Trusts, Ch. II., where Feanie, P. W. 313, is cited contra.] , (z) 13 Sim. 91. 709 *711 DEVISES BY D. and E. entered into a contract to sell part of the trust estate, when •the question arose, whether they, as devisees and executors of the sur- viving trustee, ^ could make a title to tliC' purchaser. Sir L. Shadwell, V.-C, held that they could not, and that the devise of trust estates by the vendor's testator was an unauthorized act. [" It is plain," he said, " that the persons whom the surviving trustee has thought proper to appoint to execute the trusts of the testator's will, are persons *711 to whom no authority was given * for that purpose by the testa- tor ; and there is no case in which a person not mentioned by the party creating the trust has been held entitled to execute it." He observed, that the testator had not used the word " assigns " in the clause creating the trust for sale, and concluded by saying that he saw no difference between a conveyance by act inter vivos and a devise, and that his own decision In Bradford w. Belfield (a), if acquiesced in, and if not, then the authority of Townsend v. Wilson (6) was binding on the point.] ■ This case contradicts previous opinions and practice, and goes to establish a rule most inconvenient in its operation. [But its operation is narrowed bj' the- distinction* pointed out by the V.-C, and since generally adopted, between cases where the testator has expressly em- powered the " assigns " of the trustee to perform the trusts, and those Titleyw.Wol- where he has not. Thus in Titley i;. Wolstenholme (c) , stenholme. , where real and personal estate was devised to A., B. and C, their heirs, executors, administrators and assigns, upon certain Devisee held trusts ; and it was declared that the trusts should be per- wh^ve h-'usts f'^r'^isd by the said trustees, and the survivors and survivor to be executed of them, his or her heirs and assigns. The surviving trustee and his"^"^ ^^ devised the trust estates : and upon the distinction furnished asdgm. by the word "assigns," Lord Langdale, M. R., held, that the trust estates were well vested in the devisee upon the trusts of the original will, and therefore refused to appoint new trustees in their place. In Mortimer v. Ireland (d), a, testator appointed A. and B. executors Mortimer ». and trustees of his property (which appears to have been Ireland. entirely personal) ; B. survived A., and by will gave to C. all the trust property, upon the trusts declared by the first testator, and appointed C. and D. his executors. Sir J. Wigram, V.-C, and upon appeal (e), Lord Cottenham, decided that the appointment of C as trustee was unauthorized,, and, upon the application of the eestuis que trustent, ordered the appointment of new trustees. The L. C said: (a) 2 Sim. 264, where it was held that a trust for sale vested in A. and his heirs could not be executed by an assignee of the heir of A., i.e. a pei-son to whom the heir in his lifetime had conveyed the estate, i [But Lord Langdale, M. E., drew a distinction between such au assignment and a devise, infra p. 715.] (J) 1 B. & Aid. 608, 3 Mad. 261; this case decided that a power of sale reserved to three persons and their heirs was not well executed by two survivors. [{c) 7 Beav. 425. (d) 6 Hare, 196. (e) 11 Jur. 721, 16 L. J. Ch. 416. 710 MOETGAGEES AND TRUSTEES. *713 " Whether the propert}' is real or personal estate is no matter ; for suppose a man appoints * a trustee of real and personal estate *712 simpliciter, adding nothing more, this cannot make his repre- sentative a trustee. The case before the M. R. was quite different, for there the court proceeded on the intention manifested, that the ti'usts should be performed by the assigns of the survivor. The property may vest in the representative, but that is quite another question from his being trustee. The testator may select the heir to succeed to the trust, but he only can do so. Here, then, are two persons appointed trustees ; both die ; thus there is no trustee, and it is for the court to appoint new ones. The testator having given no indication, the court must refer it to the Master." In Ockleston v. Heap (/), a testator appointed A. and B. executors and trustees, and gave all his real and personal estate to his Ockiestoa v. said trustees, their heirs, executors, administrators and as- Heap, signs, upon trust, to sell and dispose thereof at their discretion ; and he declared that " the receipts of his trustees or their survivor should be sufficient," and declared the trusts of the proceeds. A. renounced and disclaimed ; and B. by will devised all trust estates vested in him to C. and D. ; and the cestui que trusts took proceedings for the appointment of new trustees on the ground that it was doubtful under Cooke v. Crawford whether the devisees of B. could act in the trusts. Sir J. K. Bruce, V.-C, said : " What I should have done if Titley v. Wolstenholme had come before me, I need not say," nor am I sure. I think that in the present case there must be a decree for the appointment of new trustees in the usual form." No reasons for this opinion are reported. The devise being to the trustees, " their heirs and assigns " followed immediately by Remark on the words "upon trust to sell" seemed to authorize a sale Ockleston «. by the same persons, including the assigns, as were named ^'^^' in the devise. The power of giving receipts, it is true, was confined to the trustees or the survivor ; but although powers or trusts for sale, given to heirs, have not been extended to assigns by the mention of assigns in the receipt clause {g), it has never been held that the princi- pal trust or power is to be restricted by the accessory. The V.-C.'s disparaging allusion to Titley v. Wolstenholme is neutralized by his own question respecting the word ' ' assigns " in the case next stated, and is outweighed by the decision in Hall v. May Qi), where Sir W. P. Wood, V.-C, decreed * specific performance against a *713 purchaser from the devisee, the original trust containing the word " assigns." (/) 1 De G. & S. 640. Ig) Townsend v. Wilson, 1 B. & Aid. 608; Hall ». Dewes, Jac. 190; Bradford v. Belfield, 2 Sim. 264. (A) 3 K. & J. 585. See also Ashton v. Wood, 3 Sm. & Gif. 436. In Hall ». May, there was a power to appoint new trustees, which the V.-C. thought strengthened the conclusion drawn from the word " assigns "that the devisee was competent to execute the trust for sale. On the word " assigns," see further, Salowar v. Strawbridge, 1 K. & J. 371, 7 D. M. & G. 594. 711 *714 DEVISES BY In Wilson v. Bennett (i), the devise was to A., B. and C, their Wilson B. heirs, executors and administrators, upon certain trusts ; and Bennett. u ^j^g gg^j^j trustees and the survivors or survivor of them, his heirs, executors or administrators," were empowered to sell. C. sur- vived his co-trustees, and devised the property to D. and E., who con- tracted to sell : but Sir J. K. Bruce, V.-C. , held, that their title was too doubtful to force upon a purchaser, and asked whether there was anj' case deciding that " heirs" included " assigns." It was afterwards discovered that D. was the heir at law of C, and the case was then brought before Sir J. Parker, V.-C., who held that the title was still bad, on the ground that the testator intended the power or trust to be executed by the person who had the estate, whereas this had been devised away from D. the heir, to D. and E. He said Cooke v. Craw- ford stood upon the ground that a trust cannot be delegated to persons not contemplated in its original creation (k) . This was followed in Macdonaid v. Macdonald V. "Walker (?) bj' Sir J. Romilly, M. R., who said Walker. however that the doctrine of Cooke v. Crawford was a most inconvenient one, and involved this consequence, that, if since the Wills Act (m) the surviving trustee devised the trust estate to his heir, though he was the very person contemplated, and had the estate, yet he could not exercise the trust because he took the estate by devise and not by descent. In Re Burtt (re), where leaseholds were bequeathed to A. and B., their executors and administrators, upon trust to dispose of the rents and profits as directed by the will, and after the death of A. the surviving trustee bequeathed all estates vested in him as trustee to M. and N. to hold upon the same trusts, and appointed his wife and M. and N. executors : it was held by Sir R. Kindersley, V.-C, that neither M. and N. alone as trustees, nor M. and N. jointly with the wife executrix, could exercise the trusts. He said the testator had himself declared that his executors as such should not be trustees, and by the bequest had taken away the legal estate from those who ought otherwise to have been the trustees. *714 * With respect to this case it will be noticed that until assent the trust estate vested in the executors and executrix. Being, Remark on then, the persons contemplated by the founder of the trust. Re Burtt. aj,(j having the estate duly vested in them, were they not competent to act as trustees ? Could it rest with the surviving trustee to say that, although thus qualified, they should not act? However, executors could not generally be advised to answer these questions themselves, and to withhold their assent, without the direction of the court. In Stevens v. Austen (o), the will was a close counterpart of the will (i) 20 L. J. Ch. 379, 15 Jur. 912. (h) 6 De G. & S. 475. {I) 14 Beav. 556. (m) Qii. Inheritance Act? ante, p. 75. (re) 1 Drew. 319. (o) 30 L. J. Q. B. 212, dub. Blackburn, J., who observed that all the cases in Chancery liad been attempts to force the title on a purchaser. 712 MORTGAGEES AND TRUSTEES. "TIS in Cooke v. Crawford, and the surviving trustee having de- Stevens v. vised the trust estate, the devisee contracted to sell it. In ■^"^'^''■ an action by the purchaser to recover his deposit, it was held in Q. B. that the court was bound by previous decisions, and that the word " assigns" being omitted from the original trust, the devisee could not make a good title. The cases therefore support, but certainly do not extend, the doctrine of Cooke V. Crawford; and, though it was suggested in the Result of the last case that a Court of Error might take a different view, '=*^^*- the lapse of time since the doctrine was first admitted would be a serious objection to reversing it now. In modern wills, the trust is generallj' made exercisable by the assigns as well as by the heir of the trustee ; a course which . Whether it be obviates the somewhat delicate question whether a devise by a breach of a trustee whose assigns are not so authorized is a breach of '"ist to de- visft trust 6S* trust. In Cooke v. Crawford, Sir L. Shadwell said: " It is tates where plain that when C. (who had become the sole trustee), ^annotTxer- thought fit to devise the legal estate that was vested in him, cise the he did an act which he was not authorized to do. And here "^ ' I must enter my protest against the proposition, which was stated in the course of the argument, that it is a beneficial thing for a trustee to devise an estate which is vested in him in that character. My opinion is, that it is not beneficial to the testator's estate that he should be allowed to dispose of it to whomsoever he may think proper ; nor is it lawful for him to make any disposition of it. He ought to permit it to descend ; for in so doing he acts in accordance with the devise made to him. If he devises the estate, I am inclined to think that the court, if it were urged so to do, would order the costs of getting the legal estate out of the devisee to be borne by * the assets of the *715 trustee (jo) . I see no substantial distinction between a convey- ance by act inter vivos and a devise ; for the latter is nothing but a post-mortem conveyance ; and if the one is unlawful, the other must be unlawful." But Lord Langdale thought otherwise. In his opinion, there was a clear distinction between a trustee conveying away the trust estate and relieving himself of the trust of his own authority during his own life, and assigning it by way of devise, which took effect only when there must be a transmission of the estate to some one not personally trusted by the author of the trust, and when, but for the devise, it might vest in infants, married women, bankrupts or persons out of the jurisdiction. He could not see his way to the conclusion that, in the case contemplated (q) , a devise by the trustee was a breach of trust (r). Sir J. Parker, V.-C, propounded (s) a narrower and (jo) Qu. whether this would set matters right, see dictum of Eomilly, M. E., Macdonald v. Walker, cited ante, p. 713. (o) I.e. the case of a trust to be executed by A "or his heirs." (r) 7 Beav. 435. (s) 5 De G. & S. 479. 713 "^IIH DEVISES BY MORTGAGEES AND TRUSTEES. more difficult rule, viz. that the question in' every case was whether the' devise was in accordance with the title under which the trustee held ; it might often be the duty of a man in such circumstances, having the legal estate, to take care that it did not vest in a lunatic, or in a person out of the jurisdiction, or in any other person who ought not to be a trustee, and for that purpose to devise it. The safest course for the trustee would be that taken in Beasley v, Wilkinson (f), where the de- vise was of all trust estates " which he could devise without breach of trust."] - ■(*) 13 Jur. 649; but the original trusts are not reported, except, ahortlj-, that they were for sale.] 714 "WHAT GENERAL , WOEDS CAREY REAL ESTATE. *716 ♦CHAPTER XXII. *716 WHAT GENEEAL WORDS CARRY REAL ESTATE. I. Words " Estate " and " Property," and other such Terms — where restrained by As- sociation with more limited Expressions to Articles ejusdem generis. II. Where not restrained by such Association. III. Whether restrained by Collocation with Executorship. IV. Whetlier restrained by the Nature of Limitations. V. General uniechnical Words held to pass Lands. VI. Words descriptive of Personalty only, held, by force of Context, to include Real Estate. I. It is obvious that the question, whether real estate passes under a devise, cannot occur, unless the testator has either used ^„rds "es- terms not properly and technically descriptive of such tate," "prop- property, or else, though using terms properly applicable capable of' thereto, has created doubt by their position, or their im- carrying real proper use in other parts of the will. General expressions, when collocated with words descriptive of personal estate, are some- times restrained by that association to subjects of the same p j. . , species, agreeably to the maxim noscitur a sociis ; and ac- by assooia- cordingly we find manj' instances, especially among the early ''"" JT'"? P^''" authorities., in which the word estate, and other such terms following clearly capable, viribus suis, of comprehending real es- '''^^''^' tate (a), have been restrained by the context to personalty.^ (a) Barnes v. Patch, 8 Ves. 604. 1 See BuUard v. Goffe, 20 Pick. 257; Birds- the will. Priester v. Priester, 13 Rich. 361; all V. Applegate, 1 Spencer, 244; Clark v. Turbett v. Turbett, 3 Yeates, 187; Jackson Hyman, 1 Dev. 382 ; McCheaney v. Bruce, v. Delancev, 11 Johns. 365 ; Jackson v. Mer- 1 Md. 347. The word "estate" is generally rill, 6 Johns. 191; Godfrey v. Humphrey. 18 sufficient to pass land. Deering v. Tucker, Pick. 539. Thus, it appeared in a recent 55 Me. 284 ; Godfrey v. Humphrey, 18 Pick. case that a lady had died seised of personal 537 ; Putnam v. Emerson, 7 Met. 333. But and real estate. Some of the realty she had where a testator made a will in which per- bought, and the rest thereof with personalty sonal property only was mentioned, and there she had received under a will of her brother, remained some not specifically bequeathed. She made a will, in which she constituted A. and there were no words showing an intention her "residuary legatee," and proceeded as to devise all his estate, it was held that a de- follows: Of "the property bequeathed me vise giving to B. " all the residue of his fur- by my brother, and the property I have in niture and estate, whatever and wherever it expectation fi'om my sister, and any other was," did not give the real estate. Bullard property that may come into my possession, V. Goffe, 20 Pick. 2.52. See Dole v. Johnson, I will and bequeath " to A. one fourth, and 3 Allen, 364; Ingell v. Nooney, 2 Pick. 362. the rest to others. The court decided that it However, the term "property" or "estate" was the intention of the testatrix to dispose will in general embrace both realty and per- of both her real and personal estate, notwith- sonalty, and will be construed to describe the standing the fact that she had mentioned the quantity of interest, or the subject of it, or property received from her brother as "be- both, as may be required by the context of queathed," and had made A. her " residuary 715 *717 WHAT GENERAL WORDS Thus, in Wilkinson v. Merryland (b), one having lands in A., B. "Goods ^^^ *-'•' *'^® latter being a forfeited mortgage in fee, devised chattels, the lands in A. and B. to several persons and their heirs, mlTmurt- and legacies to other persons ; and then devised all the rest yages," &c. of his goods, chattels, leases, estates, mortgages, debts, read^- money, plate and other goods whereof he was possessed, unto his wife, after his debts and legacies were paid, and made her exec- utrix. It was urged, that the fee-simple in the lands in C. passed by the words "estates" and " mortgages." But the court (Croke, Jones and Berkeley) were of opinion, [without deciding the point,] that these words, being coupled with personal things, must have *717 meant estates and mortgages for years, and rather by * reason of the words " whereof I am possessed" (c), which were appli- cable more properly to personal than to real estate. So, in Cliffe v. Gibbons {d), Lord Cowper expressed an opinion, that "Estate * devise of all the testator's " estate, goods and chattels," goods and did not pass land where there had been no mention of land c atteis. before ; but that it did where land had been devised in a preceding part of the will. The former proposition is clearly inconsis- tent with several decisions, particularly Tanner v. Morse (e) , and Doe d. "Wall V. Langlands (/), stated in the sequel. In Marchant v. Twisden(5'), a testator, after bequeathing several pecuniary legacies, devised thus: "All the rest and residue of my "Estate and estate and chattels, real and personal, I give and devise to chattels, real jjjy -^jfe, whom I make to be my executrix." The Lord sonal." Keeper held that the lands did not pass ; for, in the first part of the will, the testator having given only legacies, and not lands, by the residue of his "estate" must be intended estate of the same nature as that before devised. The devise was, as if he had said, " all the rest of my estate, whether chattels real or personal." No case has gone so far as this in restraining the word estate. Noth- ing was more obvious than to consider the word " real" as Mardmnt". applying to " estate," and "personal" to " chattels," eorre- Twisden. sponding as they respectively do in local order ; and such, (h) Cro. Car. 447, 449, Sir W. .Tones, 380. (c) But, as to these words, see Hogan ». Jackson, Cowp. 299 ; Pitman v. Stevens, 15 East, 605; Noel v. Hov, 5 Mad. 38; [Davenport ». Coltman, 12 Sim. 588; Evans v. Jones, 46 L. J. Ex. 280 (all stated post); Warner u. Warner, 15 Jur. 141; Stokes v. Salomons, 9 Hare, 81.] (d) 2 Ld. Raym. 1326 [2 Eq. Ca. Ab. 301, pi. 17.] (c) Cas. t. Talb. 284. post, s. 2. (/) 14 East, 370, post, s. 2. \g) Gilb. Eq. Ca. 30, [1 Eq. Ca. Ab. 211, pi. 22.] legatee." Laing v. Barbonr, 119 Mass. 523. been where there were qualifying words, or See also Doe n. Lainchburg, 11 East, 290; where these general terms were so connected Doe t'. Morgan, Barn & C. 612 ; Edwards or mixed with words expressing only things 17. Barnes, 2 King. N. C. 252; Hardacre «. personal as to limit their meaning. "Hunt i). Nash, 5 T. R. 716; Day i). Daveson, 12 Sim. Hunt, 4 Gray, 190, 193. See further as to 200; Evans f. Crosbie, 15 Sijn. 600; Daven- the word "estate," Ewin v. Parli, 3 Head, port V. Coltman, 9 Mees. & W. 481. When 713; Terry ». Wiggins, 47 N. Y. 512; Taylor the words "property" and "estate" have v. Dodd, 58 N. i. 335; Archer v. Deueale, been held to be limited to personalty, it has 1 Pet. 585. 716 CARET EEAL ESTATE. *718 it is confidently apprehended, would be the construction of the devise at this day. Indeed, in subsequent cases, the real estate, we shall see, has been held to pass by words of far inferior force (h). The next authority for the restricted construction is Doe d. Bunny v. Rout (i), where the words of the will were as follows : "I "stock in devise my just debts of every sort, with my funeral ex- trade, &o. penses, to be paid and properly discharged by my executrix other thing, hereinafter named ; and subject thereto I give and bequeath ^^^^"f'^'"'^' unto my sister A. R. all my stock in trade, household goods, ture or kind wearing apparel, ready money, securities for money, and =°^''«''-" every other thing, my property, of what nature or kind soever, to and for her own proper use and disposal ; " and the testator appointed A. R. * executrix. The Court of C. P. held, that an intention *718 to pass land could not be clearly collected from these words. It deserves notice, that in the three last cases, in which the words " estate," and "property," were confined to personal estate, as to fact of in consequence of the society in which they were found, wiiicontain- ,. , . . 1. 1 t i '"S "° other there was no precedmg devise or mention oi real estate ; a mention of circumstance which, though not conclusive, was in each ^^^^ ''^'^'^• instance adverted to, and has generally been considered as having weight in the exiclusion of real estate, by demonstrating that the tes- tator had not property of that species in his contemplation when he made his will. In Woollam v. Kenworthy (/c), however, the word "estate" in a residuary clause was restricted to personal property, by the -^ofj, ugg. controlling effect of the context, although the will contained tate and a specific devise of lands. The testator, after devising a stHoted to*' fee-farm rent to trustees, upon formal trusts for sale, and personaltyby directing his household furniture, &c., to be sold, declared, as to the money to arise from the sale of the rent thereinbefore devised in trust to be sold, as also the monej's to arise from the sale of his household furniture, &c., ^'^ and from all other his estate and effects, of what nature or kind soever, and wheresoever," that the same should be chargeable with his legacies ; and the residue divided into shares, which the testator bequeathed to various persons. There was the usual authority to the trustees to give receipts to the purchasers of the fee- farm rent. [It will be observed that there was no actual devise or direction for sale of the "estate," and] Lord Eldon, after premising that the question whether the words "all my estate and effects" will include real estate or not, depends, first, on the immediate context of the will, secondly, on the general form and scheme of the will as {h) Hogan v. Jackson, Cowp. 299; Hopewell v. Ackland, ICom. 164; Huxtep ». Brooman, 1 B. C. C. +37 ; Pitman ». Stephens, 16 East, 505, all stated post. (i) 7 Taunt. 79. (i) 9 Ves. 137. [In Sanderson •«. Dobson, 1 Ex. 141, the word "estate" was held to be restricted bv the context ; but the Court of C. P. held contra, 7 C. B. 81, and this was fol- lowed by Wood, V.-C, Dobson v. Bowness, L. E. 6 Eq. 404, same will.] 717 *719 WHAT GENBEAL WOEDS demonstrating the intention, held, that the testator whojiad actnallj' devised certain real estate to trustees' upon particular trusts for sale, could not be understood to mean that another estate should be clothed with the same trusts in the hands of the heir, by the mere insertion of the word "estate." ' In Bebb v. Penoyre (Z), real estate was held not to be included in a devise of the rest and residue, on the ground of the restraining *719 effect of the immediate context, although there was a * previous devise of land in the same will. The testator, after various devises and bequests, concluded his will in the following words : "I "R t nd order the lease of my house, with all the furniture (except residue" the eight worked chairs), to be sold, and all the rest and include real '■«**'^"® to be divided among the four daughters of A., share estate, not^ arid share alike ; and I appoint C. and D. executors." It ^^'vbus**'"^ was contended, that the reversion in fee (m) of a moiety of devise of certain houses devised by the will for the life of the devisee, l£ind passed by the words " rest and residue." But Lord Ellen- borough thought that these words, in the place in which they stood, and so accompanied, must mean property of a similar nature to the lease of the house and furniture before mentioned, that is, his personal estate. He considered the division ordered was to be made by the executors immediately afterwards named. ^ In the two next cases the general words were followed by an enumer- "Estate" ation of particulars, which were held to be explanatorj' and followed by restrictive of the prior expressions. Thus, in TimeweU u. tion of par-' Perkins, Where {n) a testator devised in these words : " AU ticulars ex- those my freehold lands, with the messuages, &c., now in andrestfic- the occupation of L., and all other the rest and residue and tive of It, remainder of my estate, consisting in ready money, plate, jewels!, leases, judgments, mortgages, or in any other thing whatsoever or wheresoever, I give unto A. H. and her assigns forever." In the pre- amble of the will occurred the clause, " as touching the [temporal (o)3 estate with which it hath pleased God to bless me, I dispose thereof as follows." The question was, whether land not described in the will passed under the residuary clause. Fortescue, J., held that it did not, relying on the' analogy of the case to Wilkinson v. Merryland. In the case just stated, there was a preceding specific devise of land ; (V) 11 East, 160. [But see now Attree !). Attree, L. E. 11 Eq. 280; Smyth «. Smyth, 8 Ch. D. 561.] (m) As to the operation of these words to carry a fee, see Ch. XXXIII. s. 4. («) 2 Atk. 102 ; see also Doe v. Rout. 7 Taunt. 79, ante, p. 717. [(o) As to this word see Tanner v. Wise, 3 P. W. 295.] 1 See Birdsall v. Appleptate, 1 Spencer, 244. was held that the premises in question, being 2 But in a case where the testator used the a four-acre lot not specifically disposed o^ following words: "I direct that all the re- passed to the devisees. Den ». Drew, 2 Green, niainder of the rents, profits, and residue of my 68. estate, be divided between A., B., and C," it 718 CAEKY REAL ESTATE. *720 but theintention to confine the word "estate" to personalty Remark on was inferred from the subsequent explanatory words of Timeweii v. description ; which, however, were themselves followed by expressions scarcely less strong than many which have been held suffi- cient to include real estate ( p) . Timewell v. Perkins is unquestionably a strong case, and has generally been much relied upon as an authority for the restricted construction on subsequent occasions.-' * So, in Roe d. Helling v. Yeud {q), where a testator, after *720 giving certain legacies [added " Item, I give to A., B., C, "Property" D. and E., whom I appoint my executors], and to whom I restrained by give all the remainder of my property whatever and whereso- explanatory ever, to be equally divided amongst them, share and share particulars. alike, after their paying and discharging the before-mentioned annui- ties, legacies, debts, and demands, or any I may hereafter make by codicil to this my will, all my goods, stock, bills, bonds, book debts and securities in the Witliam Drainage, in Lincolnshire, and funded property." The question was whether real estate passed. The court held that it did not; considering that the enumeration at the end of the clause was explanatory of the words "remainder of my property" (r).^ Timewell v. Perkins, and Eoe v. Yeud, were much relied upon by Gibbs, C. J., in Doe v. Rout (s), already stated. [It is a wholly different question, where a will contains two distinct devises, either of which would alone be sufficient to carry copyhoids the property, under which of the two it shall be held to pass, excluded Thus in Chapman?;. Prickett(<), where a testator entitled of "prop- to copyholds, which he had surrendered to the use of his erty"by will, devised his " freehold messuages stock in the funds disposition of money and debts and all shares or projoer/y of which he might "op-^holds." die possessed or entitled to " to trustees in trust to pay the rents of his freeholds and leaseholds and the dividends of his stock and shares to his wife for life, and afterwards to make division by sale or otherwise of his said freeholds, and to transfer all stock or shares his property estate and effects equally among his children. By codicil he devised his copyhold estate to his wife for a term, and afterwards directed it to be sold " for the benefit of his children as directed by the wUl," but did not actually devise the copyhold to the trustees. It was held that no estate in the copyholds passed to the trustees by (p) See Hopewell v. Ackland, 1 Com. 164 [and Wilce v. Wilce, 7 Bing- 664], stated post. (ji) 2 B. & P. N. R. 214. ["It seems that the words beginning 'whom I appoint,' and endmg with ' this my will,' are to be construed as included in a parenthesis." lb. 215, n. (r) But observe the tone of Eord Ellenborough's remarks on this case in Doe v. Lang- lands, 14 East, 373.] (s) 7 Taunt. 79, ante, p. 717. Ut) 6 Bing. 602. See also Acheson ». Fair, 3 D. & War. 512, which is analogous to Wilde 0. Holtzmeyer, 5 Ves. 811. 1 See Bollard v. Goffe, 20 Pick. 262, 257. 2 See Godfrey i>. Humphrey, 18 Pick. 539; Jackson i). Housel, 17 John. 281. 719 *721 -WHAT GENEEAL WOEDS the word "property" in the will.^ Tindal, C. J., observed that the general effect of the disposition of the copyhold by the codicil was the same as that of the freehold which had already passed by the will, viz., that the wife of the testator should receive the rents and profits during her life, and after her death a sale should take place and a *721 division be * made among the children. So that the disposition of the copyhold made by the codicil was unnecessary, except upon the supposition that the testator thought he had not disposed of it by the will. And it has been elsewhere noticed as an established rule that a gift Clear gift of once clearly expressed in a will shall not be cut down by "f cut"down ambiguous expressions contained in a codicil. It was mainly by gift of on this principle that in Molyneux v. Eowe (u) , a devise of niture!" &o?, " ''^^ estate" to A. was held not to be effected by a codicil in codicil. by which the testator gave " all his estate, household furni- ture, linen, china, and all other his personal property" to B.] II. But it is not to be inferred from the preceding cases, that the Eatnte, prop- words estate and 'property, and others of the like import, when «'■'», #<:•, accompanied by words descriptive of personal estate merely, strictedto are bj' that association invariably restricted to property personalty, ejusdem generis.^ On the contrary, the presumption gen- erally is against such a construction, as it supposes the testator to use words in another sense than that which judicial construction has given to them, and frequently in a sense which is fully expressed in the con- text, and therefore renders them inoperative. It should be observed, however, that the circumstance of there being other words adequate to carry the whole personal estate, always affords an argument for making the words under consideration include land, since the contrary construc- tion reduces them to silence ; an argument upon which, it will be seen, great stress was laid by Lord Hardwicke, in Tillej- v. Simpson (a;) , stated in the sequel. But it must be remembered that the fact of the word being wanted to give completeness to the disposition of the personal estate, does not raise so strong an argument in favor of the restrictive construction : since there is no reason why a testator should not have used the words for both purposes (y) . («) 8 D. M. & G. 368, diss. Turner, L. J.] (x) 2 T. R. 659, n., post, p. 722. [(;/) Kindersley, V.-C, laid down the rule generally, that it the other words were not suffi- cient to comprise the whole personal estate the word " estate " would not embrace realty, D'AImaine «. Moseley, 1 Drew. 632; but although Lord Hardwicke's remarks in Tilley v. Simpson certainly favor this doctrine, the modern cases are founded on a principle which is inconsistent with'it; see particularly Lord Brougham's judgment in Mavor of Hamilton v. Hodsdon, 6 iWoo. P C. C. 76, H Jur,' 193; and Scott v. Alberry, Com. 337, stated p. 722, is an express decision to the contrary.] 1 See Brown v. Dysinger, 1 Rawle, 408. 17 Johns. 281. See Den v. Paj'ne, 5 Hayw. 2 Clark V. Hyman, 1 Dev. 382. The 104. "All my property of e'very descVip- words "my propert.v," where there are no tion," carries money, clioses in action, and other word's to explain or control them, are everything of which the testator has a right sufficient to pass all the real and personal to dispose. Hurdle v. Outlaw, 2 .Jones, Eg. estate of the testator. Jackson v. Housel, 75. See Rowland v. Howland, 100 Mass. 223. 720 CAEEY EEAL ESTATE. *722 The following eases seem fully to sustain the position, that to warrant the confining of the word ' ' estate '' and other such expres- ^^^^^ ^ sions to personal estate, there must be a clear indica- which gen- tion of * an intention in the will so to confine them ; *722 haveTeen for where this indication has been wanting, or has held to be been less clear than in the preceding cases, the words have been held to be used in their proper, i.e. their unrestricted sense. '^ Thus, in Terrell v. Page (z), where the testator bequeathed certain legacies, and devised some lands, and then devised as follows: "All the rest and residue of my money, goods, and chattels, and "Money other estate whatsoever,^ I give to J. S., whom I make my goods, and executor ; " it was held that the lands not previousl3' devised other estate." passed under the latter clause. So, in Scott V. Alberry (a), where the testator, "as touching the worldly estate it had pleased God to bestow" upon him, devised in these words : " I give to my cousin T. S., all that my parcel of land lying in W. A. Item, I give to my said cousin T. S., my "Wearing wearing apparel, linen, books, with all other my estate whatso- ^^''ali ^er ever and wheresoever, not hereinbefore given and bequeathed ; my estate." and him, the said T. S., I make the sole executor of this my will for performing the same." The question was, whether the reversion in fee in the lands in W. A., before devised to T. S. (S), which were copyhold surrendered to the use of testator's wUl, passed under the latter devise ; and it was held that it did. Again, in Tilley v. Simpson (c), where a testator, after declaring his intention to dispose of all his worldly estate, and making ,i gggj^yg ^f several devises to different persons, devised all the rest and money, residue of his money, goods, chattels and estate whatsoever ; Lord ^°° |'„^ * Hardwicke held that the fee passed : he said, where the ««*«'« what- court had restrained the word "estate "to personal estate only, it had been where the intention of the testator that it should be so used had appeared ; as where it had stood coupled with a particular description of part of the personal estate, as a bequest of all mortgages, household goods, and estate, in which the preceding words were not a full description of the personal estate ; that if the testator had said, ' ' All the rest and residue of my personal estate and estates whatsoever," (z) 1 Ch. Cas. 262, 1 Eq. Ca. Ab. 209, c. 11. (a) Com. 337, 8 Tin. Ab. 229, pi. 14; [see also Awbrev ». Middleton, 4 Vin. Ab. 460, pi. 15, 2 Eq. Ab. 497, pi. 16.] (b) As to indefinite devises, see Ch. XXXIII. (c) In Chancery, 1746, before Lord Hardwicke, stated 2 T. E. 659, n. ; and see 1 Cox, 362. 1 Hunt V. Hunt, 4 Grav, 190, 193; Bui- 281; Wheeler i>. Dunlap, 13 B. Mon. 293; lard 1). Goffe, 20 Pick. 252; Laing v. Bar- Harper e. Blean, 3 Watts, 471; Turbett v. hour, 119 Mass. 523, 525; ante, p. 716, note. Turbett, 3 Yeates, 187; Morrison v. Semple, See also Smith i). Smith, 17 Gratt. 276; Ros- 6 Binn. 97; Godfrey ti. Humphrey, 18 Pick, setter v. Simmons, 6 Serg. & R. 456; An- 539; Korn ». Cutler, 26 Conn. 4. drews ». Brumfield, 32 Miss. 117 ; Morris v. " See Midland Counties E. Co. v. Oswin, Henderson, 37 Miss. 505; Sutton v. Wood, 1 Colly. Ch. 74. Cam. & N. 205; Jackson v. Housel, 17 Johns. VOL. I. 46 721 *724 WHAT GENERAL WOEDS a real estate would have passed (rf) ; that this bequest amounted to the same, for the word " chattels " is as full a description of the *723 personal estate as the * words '■'■personal estate;" that therefore, Lord Hard- wAew he had used words comprehending all his personal estate, wicke's re- jj^j^ ^f^g^ made use of the loord " estate," that word would carru liancG upon •^ ' ^ the fact, that a real estate. That the word " whatsoever" was used here, words were which was the same as if he had said of whatever kind it be ; adequate to and, if that had been the case, it would most certainly have personal * Carried the real estate. He observed that Terrell v. Page was estate. very material to the present question, and he thought could not be distinguished : the only difference was, in that case there was the word " other," which he did not think could distinguish it. If the devise had been, and all the rest and residue of my household goods, mortgages and all other estate, he did not think the words would have extended to the testator's real estate. So, in Jongsma v. Jongsma (e), where a testator gave to his execu- " Goods es- ^^^ " ^^ ^^® goods, estates, bonds, debts, to be sold." The tates, bonds, question was, whether this would pass a copyhold estate sur- debts." rendered to the use of the will. Su- Lloyd Kenj'on, M. R., said that, according to the ease of Tilley v. Simpson (/), wherever the word " estate" or " estates" was restrained to personalty, it was done upon the ground of the testator's showing his intention by joining it with words which related to personalty onlj' ; but, on the other hand, wlnere such other words were in themselves sufficient to pass all the personal estate, then, in order to give some effect to the word " estate" it was holden to pass realty. In this case, the word " goods" seemed to be sufficiently comprehensive ; and the copj'hold, therefore, passed by the word " es^ tates." In Hogan v. Jackson {g),.a, testator, after commencing his will with Residue of the Words "as to my worldly substance," devised certain and^per^' '^^^^ lands to his mother M. for life : and, after giving certain sonai," after legacies, to be raised out of those lands, concluded as fol- devlS'o?^ lows : "I give, and bequeath unto my dearly beloved lands. mother M. all the remainder and residue of all the effects, both real and personal^ which I shall die possessed of." It was contended that the words " real effects" meant real chattels, and that the words " be- queath," " effects" and " possessed," were applicable rather to personal than real property ; but the court held that the clause amounted to a disposition of the whole of the testator's real and personal estate. *724 * This is a strong decision, and has been much cited in subse- Ud) As to this, see Jones v. Robinson, 3 C. P. D. 344.] (6) 1 Cox, 362; see also Smith v. Coffin, 2 H. Bl. 445; Roe d. Penwarden v. Gilbert, 3 Br. & B. 85; Churchill v. Dibben, 9 Sim. 447, n.; [King e. Shrives, 4 Moo. & Sc. 149, 5 Sim. 461.] (/) Which he denominated Tiddy ii. Simms. (y) Cowp. 299, 3 B. P. C. Toml. 388; [see also Lord Torrington v. Bowman, 22 L. J. Ch. 238, where there was no previous devise of land.] 722 CAREY EEAL ESTATE. *725 quent cases. [Then, Etnd long after, it^as held to be] clear Remark on that the word effects, without real, would not, propria vigore, jacTcson. comprehend land, though followed by the words, " of what nature, kind or qualitj' soever " Qi) . In Graj'son v. Atkinson (i), a testator, prefacing his will with the ex- pression, " as to all ray temporal estate," gave certain legacies, and di- rected A. to sell any part of his real and personal estate for the pay- ment of his debts and legacies ; and, as to all the rest of his "Goods and " qoods and chattels, real and personal, moveable and immove- d'attels, real 7 , 7 7 , . , rt *"'! personal; able, as nouses, gardens, tenements, share in the Copperas as houses," Works," &c., he gave the same to A. Lord Hard wicke held ^'^' that this devise carried a fee, though he did not think that the words " goods and chattels, real and personal," would have included the lands, if the devisor had not gone on to ex;^lain himself by the subsequent words, " as houses," &c. (Jc) ; [" all the rest," &c., he thought plainly related to something mentioned before, and that mentioned before which he was about to dispose of was, " all his temporal estate," which passed a fee when the testator had one.] ' In Fletcher v. Smiton {l), a testator, after directing all his debts to be paid, gave to M., his wife, all his household goods, &c., and a legacy and annuity; and then proceeded as follows: "The profits of my four shares in the Corn Market during her life ; also the income and profit of my estate as follows, during her life, as follows, my lands Ijing, &c. (enumerating them) , as also the residue of my personal estate to be laid out in bank annuities ; and then my wife to have the income, during her life only, of this and the estates before mentioned ; and after her de- cease, as follows : I give to W. the income of my four sha,res Realty in the Corn Market for his natural life ; and all the rest of passei by the word es- my estates, with all monej's in securities, to be divided in equal tates," al- shares, to" B. C, &c. The question was, whether the re- though the ' ' ^ ' word was ue- versionary interest in the shares of the Corn Market, which fore used ex- were freehold of inheritance, passed to B. C, &c. It was therartKiular contended that it did not ; for that the word ' ' estates " in the subject. last clause * must have the same signification with the same *725 word in the first clause, where it could not possibly extend to the Corn Market ; but the court, relying much on Tilley v. Simpson, held that the reversion in fee passed.^ In Smith v. Coffin (m) , a testator, after prefacing his will with the {h) Camfield v. Gilbert, 3 East, 516; Doe d. Chillcott v. White, 1 East, 33; Macnamara ». Lord Whitworth, Coop. 241; [Doe d. Hick v. Dring, 2 M. & Sel. 448; Doe d. Haw. v. Earles, 15 M. & VVels. 450. But see cases post, s. 6.] (J) 1 Wils. 333. (k) If, without the words houses, &c., the devise would not have carried real estate, it is difficult to find a satisfactory ground for giving to the devisee the fee. His Lordship seems to have relied more upon the introductory words for this purpose than is consistent with later authorities. See infra. (i) 2 T. R. 656. (m) 2 H. Bl. 445. 1 See Furguson ». Zepp, 4, Wash. C. C. 645. 2 See Godfrey «. Humphrey, 18 Pick. 539; Barnes v. Patch, 8 Ves. (Sumner, 604.) 723 *726 WHAT GENERAL WOEDS "Goods and words, " as to my worldly estate," &c., and devising certain chattels, freehold lands, gave and bequeathed all the residue of his its, personal, " goods and chattels, rights, credits, personal and testamen- mmtar^es- *««''2/ ^^^'^'^ whatsoever," to his wife, for her own use and dis- «ate,"heldto posal. The real estate was held to pass. And where (n) pass an . ^{jgj,g -^^gj-g again the prefatory expressions, "as to my temporal estates and effects," and a devise of all the testator's lands to J. Gr., the reversion in fee in those lands was held to pass to him under these words : "And aU the rest and residue of my goods and chattels personal and testamentary estate and effects whatsoever, I give and bequeath unto the said J. Gr., whom I make whole and sole executor." Bv confining the devise to personal estate, in the two preceding cases, the words " and testamentary" would have been rendered inoperative. So, in Doe d. Andrew v. Lainchbury (o) , where a testator said, — "As to the little money and effects with which the Almighty has in- Residue of trusted me, I dispose thereof as follows ; " and, after several '■money, devises of land, concluded thus: "And as to all the rest, stock, prop- ' ' erty, and residue and remainder of mj' money^, stock, properly and w carry a^^'^ effects, of what kind or nature soever, at the time of my de- fee, cease, I leave and bequeath the same, and everj' part there- of, unto my nephew J. and my niece S., for to be equally divided between them, share and share alike ; and I do hereby also appoint my said nephew J., and my said niece S., executor and executrix, and likewise joint and equal residuary legatees," &c. ; it was held that real estate passed, which construction Lord EUenborough considered to be strengthened by the circumstance of the testator having, in a preceding part of his will, directed money to be laid out in the purchase of land, "to be added to his other adjoining property," which he said gave a standard of his meaning of the word " property," and showed that he meant by it real estate.'' [Much reliance was placed on this decision in Edwards v. Barnes {p) , "Freehold where a testator " gave, devised and bequeathed to and lease- *726 * his wife all his freehold and leasehold, and all his hold, money, . . ' stock, money, securities for monej', stock in government tels^and fuiK^s, goods, chattels and all other his property whatsoever other prop- and wheresoever, to hold the same unto and for the use of his to pass copy- ^aid wife, her heirs, executors," &c. The Court of C. B. holds. -jyere of opinion that copyholds, which had been surrendered to the use of the will, passed by the expression " all other his propertj\'' A valuable judgment was delivered by Lord Brougham in a case {q) , (re) Roe d. Penwarden ». Gilbert, 3 Br. & B. 85 (the marginal note omits the material word); [see also Doe d. Evans v. Walker, 15 Q. B. 28] (0) 11 East, 290. [(jo) 2 Bing. N. C. 252. (q) Mayor, &o. of Hamilton v. Hodsdon, 6 Moo. P. C. C. 76, 11 Jur. 193.] 1 See Jackson v. Housel, 17 John. 281; "property" was construed to mean real es- Howland v. Howland, 100 Mass. 222, where tate alone. 724 CAEEY REAL ESTATE. *727 where a testator directed anj^ shares he might have in a ves- "Estate" sel to be sold "for the benefit of his estate." And after held to pass . „ , . realty not- making some specific devises of "houses and lands," in withstanding some of which the fee was not exhausted, and bequeathing ■=""'"=''■ to his wife certain specific chattels ' ' which she had from her father's estate," he gave " all the remainder of his estate that was then in his possession or might thereafter be his " to his wife ; and directed " his estate," after payment of debts and legacies, to be "kept together" until the tim« thereby appointed for ' ' dividing " it ; and declared his wife entitled, in a certain event, to one third of "his personal estate." It was argued that the trusts and purposes of the will showed the tes- tator's mind to be directed to personal estate only, and that he had himself supplied a vocabulary for the interpretation of the term estate. Lord Brougham observed (in effect) that ' ' estate " meant both realty and personalty, and that the realty was not to be excluded merely be- cause there was personalty upon which the term could operate ; that, when realty was meant to be excluded, the expression personal estate was used ; and that the will was to be construed reddendo singula singulis, by which method all parts of it became consistent ; so that there was not that clear intent on the will to restrict the meaning of the term es- tate which was necessary to prevent its natural operation in comprising realty as well as personalty. The unexhausted reversion was therefore held to pass.] ^ In most of the preceding cases the will contained specific devises of land ; a circumstance which, as before observed, always ciroum- favors the extension of the subsequent general words to stance of property of the same description ; but the cases do not war- prior devise rant the considering the absence of the circumstance as con- °^ ^*'"'^- clusively establishing the exclusion of real estate from such terms, though associated with words descriptive of personal property only. On * the contrary, real estate has sometimes been held to *727 pass in cases of this nature. Thus, in Tanner v. Morse (r), real estate was held to pass under the following words: "As to my temporal estate, I bequeath Although no to my nephew T. (who was the heir at law) the sum of fi^h devise, 50/. ;" then follow several legacies: "And all the rest and in following residue of my estate, goods and chattels whatsoever, I give and '=*^*^* bequeath to my beloved wife M. C, whom I make my full and sole executrix." Lords King and Talbot laid much "estate, stress upon the words " temporal estate," in the introduc- S,""?!^,^"* tory clause [to which it was said the words ' ' rest and resi- due" must have relation]. So, in Doe. d. Wall v. Langlands (s), where a testator after giving (r) Cas. t. Talb. 284, [3 P. W. 295; see also Lumley ». May, Pre. Ch. 37.] («) 14 East, 370. 1 See Blagge v. Miles, 1 Story, 426, 455. 725 *728 WHAT GENEEAL WORDS Residue of Several pecuniary legacies, bequeathed as follows: "To ertTgooSs ^' •'-'■' ^"'^ E. W., I give and bequeath the residue of my and ciiau property, goods and chattels, to be divided equally between ^^' them, share and share alike;" it was contended, that the word " property" was restrained by the subsequent words, the clause being read videlicet, " my goods and chattels ; " but Lord EUenborough held that the more obvious and natural sense was, that they are to be taken cumulatively, that is, as property and goods and chattels, and, con- sequentlj-, that the real estate passed under the former word. Again, in Doe d. Morgan v. Morgan {t), where a testator, after uaiimy bequeathing two pecuniary legacies, devised as follows: property and " All my property and effects of all claims that I shall have, effects." J gjyg ^g ^jy brother J. M., but my mother is at liberty to give 1,000Z. of my property where she please." It was contended, that the gift of the pecuniary legacies, the use of the word " effects" conjunctively with " property," and the clause respecting the 1,000Z., showed that the testator, by the latter term, intended to denote per- sonal estate only ; but the court held that the real estate passed.-' A similar construction prevailed in Doe d. Evans v. Evans {u), where a testator, after bequeathing certain articles of personal estate, *7-28 gave, bequeathed and devised to his wife A., all his * money, securities for money, goods, chattels, estate and effects, of what nature or kind soever, and wheresoever the same might or should be at the time of his death. [In Attree v. Attree («) , a testatrix gave a certain house and garden "All the (which were leasehold) to A., then bequeathed several rest." pecuniary legacies, and proceeded, " And all the rest to be divided between the daughters of B." It was held by Sir. J. RomUly, that " rest" included the rest of all the property, real as well as per- sonal. And in Smyth v. Smyth {y), where a testator made his will thus, " I give to A. 100?., also to B. 50Z. ; and lastly, I give my sheep and all the rest, residue, moneys, chattels and all other my effects to be equally divided among my four brothers (naming them), whom I appoint executors ; " it was held by Sir R. Malins, V.-C, that " rest and residue " were suflflcient to carry real estate, and were not cut down by the sub- sequent enumeration. Indeed, he thought the realty would pass under the word " effects" alone.] (0 6 B. & Cr. 512, 9 D. & Ev. 633; see also Bradford ». Belfield, 2 Sim. 264. (m) 9 Ad. & Ell. 720, 1 fer/fe D. 472; [and in D'Almaine v. Moseley, 1 Drew. 633; Kin- dersley, V.-C, said he thought no indication of intention was afforded hv the absence of a Erevions gift of real estate. It seems also, from the case in the text, and Dobson y. Bowness, I. R. 5 Eq. 404, that such words as " wheresoever the same might be," &c., are not (asi some- times argued) to be understood as showing that the testator contemplated shifting or change- able property only. (X) L. E. 11 l!q. 280. (y) 8 Ch. D. 561. As to the word "effects," vide post, s. 6. 1 See Hurdle v. Outlaw, 2 Jones, Eq. T5> 726 CAREY EEAL ESTATE. *729 The last five cases are certainly Important authorities, and [with others since decided (z),j they demonstrate the inclination n ■, , of the courts at the present da}-, to hold lands to pass under nmrk on pre- words capable per se of comprehending them , notwithstand- "^'^'"■^ •"^^^• ing their association with terms applicable to personalty onlj'.^ To reconcile all the cases would require the adoption of some very subtle and unsubstantial distinctions ; but the preceding review will convince the reader of the necessity of withholding implicit reliance from some of the early decisions in which the restricted construction prevailed. [The old rule is in fact reversed ; for it is now settled that words such as "property" and " estate," capable of including real with personal estate, will not be deprived of their full force without evidence that they were intended to be used in a more confined sense (a) , whereas formerly the burden of proof was on the other side (b) .] III. Sometimes words adequate to comprise land ^ . Dgviss flSSO— have been * confined to personal estate, from their *729 ciated with association with the legatee's nomination to the nominationto 6X6CUti0rSillD> executorship, which has been considered as explanatory and restrictive of the general expressions to that species of propertj^ which was connected with the character of executor. As in Shaw v. Bull(c), where one seised in fee of five messuages, by will devised two to his wife for life, remainder to his two daughters in fee ; the third messuage to his wife and her heirs ; the fourth to his wife and her heirs, she paying his legacies, in case his goods and chat- tels did not answer them all ; and, if she did not make provision for the payment of his legacies in her lifetime, that it should be lawful for the legatee, after her death, to sell the said messuage, to satisfy the legacies out of the value thereof. Then followed this clause, on which the question arose: "And all the overplus of my estate ^o i t to be at mj- wife's disposal, and make her my executrix." myestate" Blencowe, J., said, if he had at first devised to his wife all '■«^t"<='«'i to (z) Midland Counties Railway Company v. Oswin, 1 Coll. 74; O'Toole v. Browne, 3 Ell. & Bl. 572 (in which it was decided that under 1 Vict, c- 26, after-purchased lands passed by similar woi-ds); Patterson v. Huddart, 17 Beav. 210; Re Greenwich Hospital, 20 Beav. 458; Gyett V. Williams, 2 J. & H. 429; Hamilton v. Buckmaster, L. R. 3 Eq. 323 (in none of which was there a devise of lands specifically); Footner ». Cooper, 2 Drew. 7; Meeds v. Wood, 19 Beav. 210; Hawksworth v. Hawksworth, 27 Beav. 1 ; Dobson v. Bowness, L. E. 5 lEq. 404. (a) See per Baylej', J., Doe v. Morgan, 6 B. & Cr. 512; Patterson v. Huddart, 17 Beav. 212. (b) See per Trevor, C. J., Shaw v. Bull, 2 Eq. Ca. Ab. 320, 321.] (c) 12 Mod. 592, 2 Eq. Ca. Ab. 320, pi. 8. 1 In Dobson v. Bowness, L. E. 5 Eq. 404, istrators, and assigns," upon trust for sale, it appeared that a testator by will, in 1805, He then made a bequest of his ready money after making specific bequests of freehold and arising from sale of lands, securities for household estate, gave certain specific chat- money, and all sums due to him at his de- tels, and bequeathed as follows : " I give all cease. The testator was, at the date of his the rest of my household furniture, books, will and at the time of his decease, seised linen, and china, except as hereinafter men- of certain freehold estate, which he did not tioned, goods, chattels, estate, and effects, of mention in his will. It was held that such what nature or kind soever, and whereso- freehold estate passed by the words, "all the ever the same shall be at the time of my rest of my estate." See Sanderson v. Dob- death," to trustees, " their executors, admin- son, 1 Ex. 141 ; Harper v. Blean, 3 Watts, 474. 727 *730 WHAT GENERAL "WORDS personalty by hjs estate, this (the fifth) house would have passed to her; tion. but compare this clause with the subsequent words, " and I make her my executrix," it shows that his intent was to grant her such estate as she was capable of as executrix. He considered '* overplus " to refer to the price of the house, after payment of legacies. It is to be observed, however, that this construction renders the Remark on words In question nugatory, since the appointment of the Shaw B. Bull. Ynfe to be executrix was itself, in the then state of the law, a disposition of the whole personal estate ; a species of argument to which great attention is paid at this day, for in modern cases no prin- ciple is more conspicuous than an anxiety to give effect to every word of the will. It is impossible to reconcile this case with the general current of authorities (d) . Although it is indisputably clear that the word lands will caiTy real estate, notwithstanding it be collocated with words descriptive of per- sonal property only (e) ; j'et in several early cases (/) it has been decided, that where a testator appoints another executor of all his goods, lands, &c., he refers to such lands as the person may take as executor, namely, leaseholds ; and accordingly real estate does not "Executrix pass. Thus, in Piggot V. Penrice (g), freehold lands of all my *730 were held not to pass under the * words, "I make and ciiat- ^Y niece executrix of all my goods, lands and chattels," tels." » although the testator had no leaseholds {h). JEt was said that by this construction the word lands was not (as objected) useless, and to be rejected ; for that, in all probability, there might be rents in arrear of those lands, which would pass to the niece by her being made executrix. This explanation, however, fails to show that any efficient signification was given to the word " lands," since it is clear the executorship would have entitled the niece to the arrear of rent. The word " chattels" too, was sufficient to pass anj- leasehold lands of which the testator might have been possessed at his death. In Doe d. Gillard v. Gillard (a), real estate was held to pass under "Executor of the words, "I do make, constitute and appoint R. G. my all my lands -^ijole and sole executor of all mv lands forever, and leasehold forever and •' „,, . . . ,, leasehold property here or at Beeston." The question principally not'so^re-" agitated was, whether the restrictive words " here or at stricted. Beeston," applied to both freehold and leasehold, or to leasehold lands only ; and it was held that they were confined to the (d) See Noel «. Hov, 5 Mad. 38, stated next page. (e) Roe d. Walker i). Walker, 3 B. & P. 375, stated post, p. 748. {/) 1 Roll. Ab. 613, 1 Eq. Ca. Ab. 209, pi. 12; see also Clements ». Cassj-B, Nov, 48. {.V) Pre. Ch. 471, 1 Eq. Ca. Ab. 209, pi. l3. {i) This circumstance does not seem to be \-ery materia! ; for, as such a bequest operates upon all the lea.seholds of the testator at his death, the fact of his having or not having any such at that period, does not mark his intention at the. making of the will. See Lord Eldon's judg- ment in Wright v. Atkvns, as reported Coop. 111. see p. 123; but as to which see Ch. XXIX, (t) 5 B. & Aid. 785"; and see Marret u. Sly, 2 Sid. 75, ante, p. 357, u. 728 CAEEY REAL ESTATE. *731 latter, and that the devise of the freehold lands was general, without any local restriction. Whatever opinion maj- he formed of the case of Piggot v. Penrice, it is not necessarily overruled by this case, where the will contained additional expressions, strongly aiding the construction adopted. So, in Noel v. Hoy (k) , a copj'hold estate surrendered to the use of the will was held to pass under the following disposition : "In respect of worldly affairs, I cannot better manifest my love and attachment to my family, than in nominating (which I hereby do) mj' dearly beloved and most amiable wife A. F. M., the sole executrix of this my wUl, ihexfiby bequeathing tohsi all the property of whatever description or sort that I may die possessed of, to be by her appropriated property I in any manner she may think proper, for the maintenance of "^^g^i'^f??^" herself and such of my children," &c. Sir J. Leach, V.-C, held to in- thought that the criticism upon the words " possessed of," '' " ^ *° • and " appropriated," on which had been founded the argument for excluding the copj-holds was too nice. * Again, in Thomas v. Phelps (l), where the testator, as to his *731 worldly estate, gave, devised and disposed of the same as fol- lows : and then, after giving some pecuniary legacies, proeeded in these words : "I also give and bequeath the lease of the coUierj'- aj^yi t^at I of L. to my son J. P. ; him and my daughter E. P. I do possess in make, constitute and appoint my joint executor and execu- roli^bg''to ^' trix of this my last will and testament, of all that I possess in ™®-" any way belonging to me, by them freely to be enjoyed or possessed of what- soever liature or manner it may be, onlj' my household furniture, which I give to my daughter who lives the longest single, and after her decease or marriage to be sold and equally divided between my remaining chil- dren," &c. Sir J. Leach, M. R., held, that the real estate passed by this devise, the words being equivalent to a gift of all the testator's property. He observed, that the exception of the household furniture was of Kttle weight ; for where the prior words imported real as well as personal estate, it mattered not that the exception to the gift happened to be of personal chattels onlj' (w) . So, in Doe d. Pratt v. Pratt (ii) , where a testator directed that his debts and funeral expenses should be paid by his executor thereinafter named ; and after giving two life-annuities of 2/. 10s. each, and a legacy of hs. to J. P., his heir at law, he appointed W. P. whole and sole execu- tor of all his houses and lands situate at F.: it was held, after an exteu- (S) 5 Mad. 38. (I) 4 Riiss. 348. l(m) See also Steignes v. Steignes, Mos. 296; such an exception, though of little weight to show what is excluded (see however Camfield v. Gilhert, 3 East, 516, 2 M. & Sel. 454), ia strong to prove what is intended to be included in the gift from which the exception is made; see Davenports). Coltman, 12 Sim. 588, 598, 603; and see Hotham «. Sutton, 15 Ves. 319, and other cases cited therewith, post, Ch. XXIII.; Marshall v. Hopkins, 15 East, 309.] (n) 6 Ad. & El. 180; [and see Doe d. Hickman v. Hazlewood, ib. 16T; Day u. Daveron, 12 Sim. 200, stated post, p. 740.] 729 *732 What general words sive review of the authorities, that the houses and land at F. passed to W. P., and that he took an estate in fee. These cases evince that little attention is now to be paid to the cir- General re- cumstance of the association of the devise with the appoint- maik on pie- ment of the devisee to the executorship, as confining it to ce mg cases. pgj.go„al estate, if the words of the devise will fairly bear a wider construction,^ and Thomas v. Phelps also shows that an ex- ception of articles of personalty affords no ground for cutting down the general words of the devise. IV. The introduction of limitations and expressions inapplicable to Inappiica- real estate has sometimes been made a ground for biiity of limi- *732 * excluding such estate from words of general descrip- where re- tion, capable, ex vi terminorum, of comprehending stnctive. property of that species. In Doe d. Spearing v. Buckner (o) , a testator prefaced his will with the words, " As to my estate ^nd effects, both real and personal, I dis- " Estate," pose thereof in manner following." Then, after giving some restrained to pecuniary legacies, and an annuity, which he charged on a bv the nature freehold messuage in W., he concluded as foljows : " All the of the trusts. j,gg^;^ residue and remainder of my estate and effects of any and what nature or kind soever or wheresoever, I give and bequeath the same unto C. B., and J. R., their executors or administrators, in ti'ust that they shall from time to time add the interest thereof to the principal, so as to accumulate the same, as it is my will that the said residue shall not be paid or payable, but at the time and in the manner and to the several persons, as the said principal sum of 4,000^. (which was a legacy before given) is before directed to be paid." It was held, notwith- standing the introductorj' words, that the real estate of the testator did not pass under this clause. Lord Kenj'on observed, that the limitation to executors and administrators, and particularly the direction to add the interest thereof to the principal, were whoUy inapplicable to a real estate. So, in Doe d. Hurrell v. Hurrell {p), a testator gave certain pecun- iarj' legacies ; and after payment thereof, and of his just debts, funeral, testamentary and incidental expenses, gave and bequeathed all the rest and residue of his estate and effects whatsoever and wheresoever unto A. and B., their executors, administrators and assigns, upon trust that they should out of such residue of the moneys and effects that he should die possessed of, carry on, manage and cultivate the farm then in his possession, for the remainder of his term, for the joint advantage of his children (naming them), and at the expiration of the said term, upon further trust to sell such residue of his estate and effects, or such effects as (o) 6 T. E. 610. (p) 5 B. & Aid. 18. 1 Kellogg V. Blair, 6 Met. 322; Godfrey v. Humphrey, 18 Pick. 537; Tracey v. Kilborn, 3 Cash. 657. 780 CAEEY REAL ESTATE. *733 should then be upon his farm, and divide the money among his five chil- dren. It was held that, notwithstanding the generality of the words, the nature of the trust clearly showed that the testator meant to be- queath his personal property only. It was said, that by directing the trustee at the expiration of his term, to sell such residue of his estate and effects, or such effects as should be upon his said farm, the testator had himself furnished a comment upon the words, "the residue of his estate and * effects," and manifested that by those words *733 he meant only such estate and effects as constituted personal property. [The case of Pogson v. Thomas (q) , is probably referable to this principle. A testatrix, after making some specific devises to Residue of certain persons, " their heirs, executors, administrators, and "estate and 6J^6CtS to assigns," according to the different tenures, and bequeath- trustees, their ing a sum of money to trustees, "their executors," &c., T^'^y^Ta" declared that " as to all the residue of her estate and effects to include wheresoever and whatsoever, she gave and bequeathed the ''^*' estate, same" to the said trustees, " their executors, administrators and as- signs," in trust for her sons equally ; or if but one son, then in trust for him, " his executors and administrators." The Court of C. P. (r), on a case from Chancety, certified (in effect) that real estate was not in- cluded in the residuary gift. In Doe V. Hurrell (s). Lord Tenterden said, that the circumstance of the limitation being to executors and administrators and not ^j^^iark ou to heirs, though not to be altogether rejected in construing Pogson v. a will, was not very strongly to be relied on. In Pogson v. *°'"*^- Thomas, the testator had used the word "heirs" in previous devises, unequivocally relating to real estate ; and the contrast deserves no- tice (t) ; but it appears insufficient of itself to support the decision. At all events] the mere introduction into some of the clauses relating to the subject-lnatter of disposition, of expressions inappli- "Egtate" cable to real property, will not in all cases confine the word not so re- " estate" to personal estate. As in Doe d. Burkitt v. Chapman (u) , where a testator devised spe- cifically certain parts of his real and personal property, and . then devised and bequeathed all the rest and residue of his es- expressions tate, of what nature or kind soever, to C. for life ; and, after her "yg ^f ^^ords decease, directed that the same should be divided between "residue of certain persons ; providing that, in case of their dj'ing before ""? ^^ * • [(?) 6 Bing. N. C. 337 ; see per Shadwell, V.-C, 12 Sim. 204. A gift of land to A., Iiis executors, &c., will give A. the fee. Rose d. Vere v. Hill, 3 Burr. 1881, Fearne, Posth. 144. (i) Absente Tindal, C. J. (s) 5 B. & Aid. 18; see also O'Toole v. Brown, 3 Ell. & Bl. 572; Patterson v. Huddart, 17 Beav. 210. So a limitation to " heirs and assigns " will not prevent a gift of " property," including personal estate. Robinson v. Webb, 17 Beav. 260. (0 Buchanan v. Harrison, 31 L. J. Ch. 74; 8 Jur. N. S. 965; Longleyi). Longley, L. R. 13 Eq. 133.1 (u) 1 H. BI. 223. 731 *735 WHAT GENERAL WOEDS their being entitled "to have and receive" their shares, their children should stand in the place of his or her parent ; and that the share, *734 on a certain event, should be paid to their guardians / it was * con- tended that these provisions being applicable to personal estate only, the devise must be restrained to such estate ; but Lord Lough- borough and the Court of C. P. held that they could not so restrain the general and comprehensive terms used, and therefore that the real es- tate passed. The expressions in this case were similar to some of those on which Remark on *^® argument for the restricted construction was founded in Doe V. Chap- Doe V. Buckner ; but it wanted others. Another diflference '"^" between the cases is, that there aE the preceding gifts re- lated to personal estate, except, indeed, an annuity, which was charged on a freehold messuage ; but, in Doe v. Chapman, there were devises of As to clause land in a prior part of the will. In Doe v. Buckner, how- intimatingan ever, the testator, in the exordium to his will, intimated an dispose of the intention to dispose of all his real estate, which did not whole estate, ocgm- jn jjoe v. Chapman. This circumstance, it will be ob- served, has had various degrees of importance assigned to it. Most of the judges who have held the real estate to pass, have thrown it into the argument. It certainly shows that the testator commenced his will with the intention not to die intestate with respect to any portion of his property ; but does not supersede the necessity of that intention being subsequently carried into efiect by an actual disposition (x). The cases under consideration often present questions extremely em- barrassing to a judge or practitioner, and different minds will almost unavoidably form different opinions as to the weight to be ascribed to particular expressions or circumstances of inapplicability as excluding the real estate (y) ; of which we have an instance in the next case, where two judges came to opposite conclusions on the same will. In Newland v. Majoribanks (z) , a testator having real estate in Diversity of Jamaica, by his will, after charging his debts upon his real judicial estate, bequeathed certain pecuniary legacies ; and, the exclud- *735 as to all the * rest, residue and remainder of his es- '"^reTions* *«<«5 "/ what nature or kind the same might be; and of applying wMch he might be possessed or interested in at the time sonaity.^^'^' °^ ^^^ decease, he gave, devised and bequeathed the same to Ux) See 2 Ed. 145, n. (a); Gulliver v. Poyntz, 3 Wils. 141, 2 W. Bl. 726; Smith v. Coffin, 2 H. Bl. 450; Gvaysnn i). Atkinson, 1 Wils. 333; Pocock v. Bishop of Lincoln, 3 Br. & B. 41; Doe V. Gilbert; ib. 85; Saddler v. Turner, 8 Ves. 617; Doe v. Dring, 2 M. & Sel. 448, 458; Bradford v. Belfield, 2 Sim. 272; Sutton v. Sharp, 1 Russ, 149; Wilce v. Wilce, 7 Biiig. 664; and particularly Hughes v. Pritchard, 6 Ch. D. 24. The absence of such a clause was relied on in Roe v. Yeud, 2 B. & P. N. R. 214; Doe v. Rout, 7 Taunt. 79, 84; but stated by Lord Hardwicke in Crichton v. Symes, 3 Atk. 61, t« afford no indication of intention.] (y) The present chapter exhibits the necessity of perspicuity in this particular. If the tes- tator intend the will to be confined to personal property, it should be clearly so expressed; and, if not, as is more generally the case, words technically adapted to describe the real estate should be employed; and in every case general equivocal expressions are to be avoided. («) 5 Taunt. 268. 732 CAEEY REAL ESTATE. *736 A., B. and C, their heirs and assigns, forever, upon trust to place the same in some public or private fund upon good security, and to re- ceive the annual interest or produce thereof for ten years, in trust to place the same out again annuallj", so that the interest might become a principal ; and that, at the expiration of such ten j'ears, then that his trustees, their heirs or assigns, or the major part of them, should pay and apply the annual interest of the whole of the principal money in the erection of a free-school. Sir James Mansfield, C. J., was of opinion, that though the words used were sufficient to comprehend the realty, yet that they were restrained to personal estate by the subsequent part which referred to personalty only. " Land (he said) could not be placed out, nor securities changed." Heath, J., on the contrary, thought that the words were insufficient to control the preceding devise ; but as the learned judge was of opinion, that the trustees took a term of ten j-ears only, which were expired, it was unnecessary to decide the point. [Modern decisions have placed this question on a surer footing. Thus, in Saumarez v. Saumarez (a), a testator, after giving Realtv held certain directions about his dwelling-house, gave to his son to pass not- E. his freehold land in D. (without words of limitation), trusts in and directed that the residue of his property, which he might 'abl^oTl'^'t' leave at his death, might be divided between him and his personalty, two sisters in equal proportions, subject to the following Saumarez v. restrictions. The testator then directed his son's portion Saumarez. to be placed in the names of trustees, and the interest to be paid to him (he being already tenant for life of the land) . After his death his share to be divided between his children, and placed in the names of trustees, with a power to employ the interest for their maintenance and part of the capital for their advancement ; and at their age of twentj'-five to transfer the whole to them : with certain ulterior limitations in case R. died without issue. Lord Cottenham, notwithstanding the inapplica- bility of the trusts to real estate, held that the reversion of the estate in D. passed by the residuary * clause, and that the trusts *736 and limitations must be applied distributively to the real and personal estate. " In considering gifts of residue," he said, " whether of real or personal estate, it is not necessary to ascertain whether the testator had any particular property in contemplation at the moment. Indeed, such gifts may be introduced to guard against the testator hav- ing overlooked some property or interest in the gifts particularly de- scribed. If he meant to give the residue of his property, he it what it may, it is immaterial whether he did or did not know what would be included in it ; and if so, it cannot make any difference that such igno- [(a) 4 My. & C. 331. See also Morrison v. Hoppe, 4 De G. & S. 234; Stokes v. Salomons, 9 Hare, 75; Hunter v. Pugh, 4 Jur. 571 ; Mayor, &c. of Hamilton v. Hodsdon, 6 Moo. P. C. C. 7G, 11 Jur. 193, stated ante, p. 726; D'Almaine v. Moselev, 1 Drew. 629; FuUerton v. Martin, 22 L. J. Ch. 893, 17 Jur. 778; Streatfield v. Cooper, 27 Bear. 338 ; Morris v. Lloyd, 3 H. & C. 141; Hamilton v. Bnckmaster, L. E. 3 Eq. 327; Lloyd ». Lloyd, L. R. 7 Eq. 458. 733 *737 WHAT GENERAL ■WOEDS ranee is manifested upon the face of the will, unless the expressions manifesting it are sufficient to prove that the testator did not intend to use the words of gift in their ordinarj', extended, and technical sense." And, applying himself to the particular will before him, he said : " The circumstance of the testator using expressions and giving directions applicable only to the personal estate may prove that he did not at the time consider or was not aware that this fee would be part of the residue ; but if such knowledge be not necessar}"^, as it certainly is not, to give validity to the devise, the absence of it, though so manifested, cannot, destroy the operation of the general intent of passing all the residue of his propertj'." Nevertheless, in Coard v. Holderness (5) , where a testator, after Trusts appii- bequeathing some legacies, "gave, bequeathed, and dis- cable exclu- posed of all estate, effects and property whatsoever and sonaity heM" T^heresoever, which he was then or should at his decease be to prevent possessed of or entitled to, or over which he had any right realty pass- j. -,■ ... ..t. ■• r~, i • ing. or power oi disposition, to A., B., and C, their^ executors Coard v. and administrators, on trust to divide into five eqnal parts Holderness. qj. shares ; " and then gave directions respecting the income and principal of the respective parts or shares or legacies, and the balance, after deducting certain specified sums ; and as to one share (intended for a son who was absent), he provided that he should claim it of the testator's executors, or the survivors, &c., or other his legal personal representative for the time being within a given period, with directions to accumulate the share in the mean time. Sir J. Romilly, M. R., admitted that the words "estate, effects, and propertj'" taken alone were sufficient to include real estate, and that it laj^ on the heir to show that they were cut down ; but he held that this was shown by the whole context, and that only personal estate *737 * was included. He relied on the absence of any word pecu- liarly applicable to real estate, as "heir," "devise," "rent," or the like ; on the limitation to executors and administrators (c) ; on the use of other terms, stated above, especially adapted to personal estate ; and on the authority of Doe v. Buckner(rf) ; and notwithstand- ing Lord Cottenham's clear statement of the ground of his own de- Sir J. Romil- cision in Saumarez v. Saumarez, the M. R. referred it to ly'sviewof ^^ preceding gift for life of the D. estate, as showing that Saumarez. ' the testator actually intended to include the reversion in the residue (e).] (J) 20 Beav. 147. (c) But see per Lord Tenderden in Doe 9. Hurrell, 5 B. & Aid. 18, ante, p. 732. (d) 6 T. R. 610. But of tliis case it was said by Sir R. Kindersley, in Fullerton v. Martin, 22 L. J. Cli. 894, that it would be decided differently at the present day, and that the grounds of Lord Kenyon's decision would not now be sufficient to warrant such a conclusion. (e) In support of this view of Lord Cottenham's decision the M. R. cites Turner, V.-C, in Stokes D. Salomons, 9 Have, 83, where the V.-C. says that the prior gift showed that the tes- tator had " real estate " in his mind. This is translated by the M. R. into "^Aa« estate." If this is the true view of Saumarez v. Saumarez the decision was of course ; yet on another oc- 734 CARRY REAL ESTATE. *738 In some cases where the words , of the devise to trustees have been sufficiently ample to include real estate, but the trusts have applied to personalty onl3', the legal estate in the realty has been held to pass by the devise, with a resulting trust to the heir. As in Dunnage v. White (/), where the testator, after devising certain real estate, and bequeathing some pecuniary lega- "Estate or cies, proceeded as follows: "And all the rest, residue and heu'to'in- remainder of my estate or ejects, whatsoever and wheresoever, elude land, of what nature or kind soever, I give, devise (g) , and bequeath ^yj confined unto my said trustees and executors after named and ap- topersoualty. pointed upon the trusts following : that is to say, that they my said executors do and shall, as soon as may be conveniently after my de- cease, make sale and absolutely dispose of my household goods and stock in trade, by public auction, for the most money that can be * had or gotten for the same ; and also do and shall, with all *738 convenient speed, collect in all debts due and owing to me at the time of my decease, together with all moneys owing or belonging to me upon mortgage, bond, bill, note, specialties, simple contract, or other- wise howsoever ; and when the same shall be so collected E„„„i,ij,_ and got in, to divide the same into six parts or shares, and trust for the to pay the same, when so divided, in manner following : that ^"' is to say, four equal sixth parts thereof to certain persons named, and the remaining two sixth parts thereof to invest in the public stocks or funds," &c. Sir T. Plumer, M. R., held it impossible not to construe the devise as comprising the real estate ; but that the testator having given both the real and personal property to the trustees, and having only said what was to be done with the personalty (for not a word of the disposition of the beneficial interest referred to real estate), the consequence was the trust of the realty resulted to the heir at law (h) . V. In some cases, real estate has been held to pass under words, even more vague and informal than any which have yet ^^^^ ^^^^^ been the subject of consideration. Thus, in Hopewell v. held to pass casion the M. R. said it was a "very strong" one, 19 Beav. 224. Other judges have not agreed with the M. E. in his view of the decision. It was relied upon by Turner, V.-C. in Stokes V. Salomons (where there was no prior gift of land or real estate) ; and was thus referred to by Wood, V.-C, Buchanan v. HaiTison, 31 L. J. Ch. 82; "Lord Cottenham saj's, and I entirely follow the reasoning, that where the testator used the word property he only meant personal estate, but he did mean to dispose of all his property whatever it was. He believed he was passing the whole of his estate, but believed it was personal propertv."] (/) IJ. & W. 583. [See also Longley ». Longley, L. E. 13 Eq. 133; with which cf. Hamilton v. Buckmaster, L. R. 3 Eq. 327.] ((/) That this word, when applied fo ejects alone, will not carry real estates, see Camfield V. Gilbert, 3 East, 516; [Wt see Phillips v. Bcal, 25 Beav. 25. Conversely, tlie word "be- queath " will not be sufficient to confine the effect of a gift otherwise capable of including real estate. Whicker v. Hume, 14 Beav. 518; Gyett w. Williams, 2 J. & H. 43fi.] (/j) It seems to have been overlooked in this case, that the freehold farm, in respect to wliich the question arose, had been contracted to be purchased by tlie testator before he made liis will, but had never been conveyed to him ; so that there was no legal estate in the testator upon which that part of the decision which gave the estate to the trustees could operate. 735 *739 WHAT GENERAL "WOEDS by vague Ackland(i), where the testator devised as foHows : "I v«)rds?^°™°'^ devise all my lands, tenements, and hereditaments to A. "Whatso- Ite™5 I devise all my goods and chattels, monej^s, debts, ever else I and whatsoever eke I have (in the world (k)) not before dis- fo?e''(Usposed P°^^^ "/' *° *^® ^^'^'^ ^•' ^^ Paying my debts and legacies ; of." and make him executor." Trevor, C. J., held, that by these words an estate in fee passed ; for it could not have any effect upon the personal estate, because that was given away as fully as pos- sible by the words precedent; therefore it must extend to the re- mainders in the real estate. The reasoning of the C. J. deserves attention, though the point seems not to have been necessary to the construction that the devisee took a fee ; for the prior devise was clearly adequate to carry all the lands, and the charge upon the devisee would enlarge his estate in- those lands to a fee (I). "All I am ^°' ^ Huxtep v. Brooman (?n), the words "all I worth" held *739 am'worth" *were held to comprise land in the wiU to carry an . ^^ ^ ^^^ illiterate testator in these terms : " This being my last will and testament, I give and bequeath to Mary, daugh- ter of M. H., and likewise to the son and daughter of S. T., all the overplus of my monej' ; and likewise beg of my executor that he will pay into the hands of the above children's friends aU the money that is due to me on settling my father's account. Friday : I give and be- queath to them all lam worth, except 20^. which I give to my executor, M. T. B." This case may be considered as exhibiting the extreme point to which the decisions have gone, in applying general informal Huxtep V. words to real estate. Nothing could be more comprehensive Brooman. ^j. jjjQjg untechnical than the expression here used. The case was cited with approbation by Gibbs, C. J., in Doe v. Rout (re), [and bj' the Court of Exchequer in Davenport v. Coltman(o), where it was said never to have been doubted. The only apparent exception is a dictum of Sir E. Sugden, to the effect that it might be a little difficult to support it {p)-] In Pitman t). Stevens (g), the testator devised as follows: "I give , and bequeath aZZ that I shall die possessed of, real and personal, shall die pos- of what nature and kind soever, after my just debts are paid : sessed of, real j ^q hereby appoint P. my residuary legatee and executor: " soual," held and, in a subsequent part of his will, he desired his legatee to pass realty, g^^^ executor to let his sister be interred in a certain vault, and recommended him to do something handsome for the testator's (t) Salk. 2-39, 1 Com. 164. (h) These words do not occur in Salkeld. (/) See post, Chap. XXXIII. (m) 1 B. C. C. 4.37. So, as to the words "I make A. my sole heir; " Taylor v. Webb, Stv. 301, 307, 319 ; 2 Sid. 75, ante, p. 357, n. ■(m) 7 Taunt. 81. ante, p. 717. Uo) 9 M. & Wels. 481. (iP) 1 D. & War. 439.] (2) 15 East, 506. 736 CAEEY KEAL ESTATE. *740 brother-in-law at his death, or when he should want anji;hing to live on : it was held that P. took a fee in the real estate. In Barclay v. CoUett (r), it was held, that a devise to trustees of the residue of the testator's real and personal estate comprised a freehold messuage, not included in the specific devises of the will, though the trusts expressed were so indefinite and uncertain as to render it impos- sible for the trustees to act without the aid of a Court of Equity. So, in Wilce v. Wilce («), where a testator commenced his will as follows: "As touching such worldlj' property, wherewith "Uverythinff it hath pleased God to bless me in this world, I give, devise else! die pos- CpCCpQ fix '' and dispose of the same in the following manner and form." He then proceeded to make several dispositions of land and goods, and concluded with the following residuary clause: "All the * rest of my worldly goods, bills, bonds, notes, book debts and *740 ready money, and everything else I die possessed of, I give to my son George, whom I make my whole and sole executor." It was held, on the authority of the preceding cases, especially Smith v. CoflSn (<), that certain real estate, not included in the specific de^dses, passed by this clause to the testator's son George, and that he took the fee. [Seeing what was the testator's intention, as disclosed by the preamble, the court could not but say he had employed sufficient words to carry it into effect (m). And in Evans v. Jones (x), where a testator appointed his wife execu- trix, and continued: " First, I give and bequeath to my said wife all my household furniture, linen, glass, china, plate, farming stock, and all my personal estate and effects whatsoever and wheresoever, and of what nature or kind soever, or whatever I may be possessed of at the time of my decease." It was held that the testator's real estate passed to the wife. The court (Cleasby and Pollock, BB.) observed that the words whatever ' ' I may be possessed of at my decease " taken by themselves would carry the real estate, and were not to be read as the concluding portion of an enumeration of the particulars of the personal estate, but as introducing a new subject of gift. The previous words being sufficient to pass the whole personal estate, the words which followed would be inoperative unless they carried real estate. In Day v. Daveron(y), a testator gave his house M. to his wife (without words of limitation), and his house N. to his wife for life, together with his household goods, &c. ; but if she married again, (which she did not do), "the above property was to become the prop- erty " of his daughter for life, remainder to her children : but if his wife remained unmarried, then, after her death, he gave house N. to the (r) 6 Scott, 408, 4 Bing. N. C. 658. (s) 5 M. & Pay. 682, 7 Bing. 664. (t) Ante, p. 725. , ' [{m) But as to its carrying the fee, see Ch. XXXIII. ix) 46 L. J. Ex. 28(). See also Warner v. Warner, 15 Jur. 141 ; Phillips v. Deal, 25 Beav. 25. (y) 12 Sim. 200 ; Warren v. Newton, Dru. 464. VOL. 1. 47 737 *741 "WHAT GENERAL WORDS daughter for her life and her children. The testator then went on : "I appoint " I appoint mj' wife sole executrix and residuary- legatee to executrix all Other property I ma}' possess at my decease. . . . andresiduarv ]>Jow Concerning my funded property, I hereby " give one otherprop- moiety to the wife and the other to the daughter, oir L. ^^iL^c"!.^™,. Shadwell held that the wife, under the residuarj' clause, decease." took the remainder in house M. He thought it clear, that *741 this clause did not refer to personal property ; for * the testator almost immediately afterwards spoke of his funded propertj- in a distinct sentence. In Davenport v. Coltman (z), a testator, after certain pecuniary legacies, bequeathed to his wife for her life his freehold house atC, together with the use of plate, &c., and of interest of stock; and de- clared that, " at her decease, it was his will that A. and B. should divide equally between them, as residuary legatees, whatever to take a§ re- he might die possessed of, except what was already mentioned siduary lega- j^ favor of others." And after appointing executors, he tees whatever , x x o / I may die authorized them to sell certain leaseholds immediately ; " but possessed ^^xe house at C. must not be sold as long as my wife lives." On a case from Chancery, the Court of Exchequer certified their opinion that A. and B. were entitled in fee-simple to the whole real estate of the testator at the death of the wife, subject, as to the house at C, to the wife's life-estate. They relied parti j' on the gener- ality of the expression, " whatever I maj' die possessed of," which they thought was not to be limited to personal estate, being, in their opinion, equivalent to " all I am worth" (a) , or, " all I have " (b) ; but they also relied on the direction to postpone the sale of the house at C, which could only refer to a sale for convenience of division between A. and B. according to the terms of the residuarj' clause, and that if any real property was included in that clause, all must be so. Sir L. Shadwell, V.-C. , confirmed the certificate ; observing that besides the terms ' ' what- ever I shall die possessed of" (which he thought would comprehend estates in fee-simple) , there was an exception of " what was already mentioned in favor of others," and that one of the things alreadj^ men- tioned was the possession of the freehold house for the life of the wife.] On the other hand, in Monk v. Mawdsley (c), where a testatrix, in a will made under a power, after bequeathing several pecuniary legacies, proceeded thus : " I give, devise and bequeath to mj' husband P. M. my two fields and house in the township of Great Neston, likewise the " All I may remainder of my personalty, and all I may die possessed of at die possessed ^^g fi/^g gf j^y death, after the above bequests are fully dis- of," held not i . i , i_i ■ ■, j, to pass realty, charged, my just debts paid, funeral expenses, and proving (2) 9 M. & Wels. 481, 12 Sim. 888. (n) Huxtep ». Brooman, 1 B. C. C. 437. (b) See per Baylev, J., Doe v. Morgan, 6 B. & Cr. 518, 9 D. & Ry. 633.] (c) 1 Sim. 286. fCompare remarks by, the same Judge upon the word 'possessed" in Noel V. Hoy, and Thomas v. Phelps, ante p. 730. The concluding distinction between real and personal estate is removed by 1 Vict. c. 26, s. 3. 738 CAEKY KEAL ESTATE. *743 this my last will and testament. I nominate and appoint A. K., and my husband P. M., trustees and * executors of this my *742 last will and testament." Sir J. Leach, V.-C, held' that the fee in the Neston estate did not pass by these words. The argument for the husband, he observed, was, that these words would have no effect, unless they operated to carry the fee of the Neston estate, the whole personaltj' passing by the prior expression ; but he knew of no ease in which words had been held to carry a fee-simple, because they would otherwise be mere surplusage and repetition. He relied much on the words " possessed of," as being applicable exclusively to personal estate, especially when coupled with the words " at the time of my decease," which could not refer to real estate (d). So, in Henderson v. Farbridge (e), it was contended, that the equity of redemption in a copyhold estate passed under the following words, in a letter from the deceased (who was abroad in a military capacitj-) to his mother. After giving some directions respecting the rents of the property- in question, he said: "Provided I should die, "Aiimyef- or be slain in the wars, or by any other means before my f^cts." return, I give and bequeath all my effects (after paying of every due demand) to j'ou for life, and then to go to mj' younger sister Ann." In another letter to his mother, he made very affectionate mention of his sister Ann, and added these words : " If anything should u vriiat little happen to me in this country, what little I have left to call my I have to call own maj' be useful to her." Lord Gifford, M. E., was of opinion that, treating these papers as testamentary, the words were in- adequate to pass property of the nature of real estate. [In Maitland v. Adair (/), a testator devised his estate at T. to his nephew A., and bequeathed money legacies to several other "Myfor- relations ; and by a codicil directed his undisposed-of money *""« " ^on- to be divided among his said relations in the proportion he sonaity by had 5e9Mea^^^- property, which the larger term was intended to comprise ; and this upon a principle, evidentlj'^ analogous to that on which (as we have seen) the words " estate" and " property" have been confined to per- sonalty by their juxtaposition with words descriptive of that species of property'." As in Cook v. Oakley (d), where the testator (who was a sailor on ship-board) gave to his mother if alive his gold rings, but- y^„^.f^^ u^nd tons and chest of clothes, and to his loving fiiend F. (a all things " shipmate) , his red box, arrack and all things not before be- priorte™s''of queathed, and made him sole executor. Sir J. Trevor, M. R., description. held, that the testator's share in a leasehold estate did not pass by these words. The circumstance of a specific or pecuniary legacy being given to (a) Cowp. 299, 15 "V^es. 507. (6) See Portman v. Willis, Cro. El. 386, where it was held that leaseholds passed under a bequest of "the residue of my goods." See also Anon., 1 P. W. 267. (c) Co. Lit. 118, a.; [Tilley v. Simpson, 2 T. E. 659, n., per Lord Hardwicke. In Gower V. Gower. Amb. 612, 2 Ed. 201, running horses were held to pass as " goods and chattels."! (d) 1 P. W. .302; see also Boon v. Cornforth, 2 Ves. 278; Cavendish v. Cavendish, 1 B. C. C. 467; Porter v. Toumay, 3 Ves. 311; [HuntB. Hort, 3 B. C. C. 311; Re Ludlow, 1 Sw. &Tr. 29.] /. . L 1 A most industrious collection of au- (Sumner) 310, note (a) ; Kawlings v. Jen- thorities upon this subject will be found in nings, 13 Ves. (Sumner) 857, note (a): 2 Williams, Ex. c. 2, § 34. Stuckey v. Stuckey, 1 Hill, Ch. 309. 2 See Stuart v. Bute, 3 Ves. (Sumner) s Ante, p. 716, note. 212, note (a); Porter v. Toumay, 3 Ves. 747 *753 WHAT "WOKIXS WILL ICCaaPEISB the same legatee (e), or of the general bequest being followed *752 *by dispositions of particular portions of the personal property to other persons, has commonly been eoasidered to favor the sup- position, that such bequest was not to comprise the general residue. Thus, in Eawlings v. Jennings (/), where the testator gave to his ^ , wife certain bank stock, together with all his ' ' household M" ord ''■ effects" furniture and effects, of what nature or kind soever," ^ that he restraiiied by jujoryit jjg possessed ,of at the time of his decease ; and then subsequent or, > bequest to bequeathed certain stock and money legacies to other per- same person. ^^^^^ g-^ y^ Grant, M. R., held, that the bequest to the wife was confined to articles of the nature of those specifledy and did not comprise the general residue ; observing, that part of the property being given to her afterwards (^r) , the word "effects" must receive a more limited interpretation. The words here were very general, but the manner in which thetes- Eemark on tator, after making the bequest in question, had gone on to Eawlings v. give specific and pecuniary legacies (though he did not com- Jennings. piete the disposition of his personal estate by a residuary clause), seemed hardly reconcilable with the supposition, that the prior gift to the wife was intended to embrace the general residue, as it is more natural, though certainly not invariable, for a testator to reserve his residuary disposition until the end of his will {h) . Had the decision rested solely on the bequest of the bank stock to the wife, its soundness would have been questionable ; for the argument, that the express gift of part shows that a legatee is not to take the remainder, admits of this answer, that the testator may have intended to place him in the favored position of a specific legatee pro tanto (i). [Again, in Wrench v. Jutting (i), where a testator bequeathed " all ■yfo^i^ his household furniture, plate, linen, china, books, "goods" *753 pictures *and all other goods of whatever kind to subsequent -A.-," and then proceeded to direct that certain speci- gifts. f;e(3 particulars of his property should be divided, after pay- («) See p. 718, note to Strafford v. Berridge. (/) 13 Ves. 39. {g\ But, according to the statement of the will in the report, the only other bequest to the wife is of the bank stock, which is anterior. [In Parker u. Marchanf, 1 Y. & C. C. C. 304, K. Bruce, V.-C, observed upon this case, that perhaps the word '•household" belonged to the word "effects" as much as to the word "furniture;" which would of course have a restrictive effect, Marshall v. Bentley, 1 Jur. N. S. 260; Ne-Wmanj). Newman, 26 Beav. 220, and compare Michell v. Michell, stated post.] (h) See 1 Buss. 149; [1 Y. & C. C. C. 301.] (s) And, accordingly, see Leighton v. Bailie, 3 My. & K. 26T, post; [Hearne ». Wiggin- ton, 6 Mad. 119, post; Brooke v. Turner, T Sim. 671; Rose ». Rose, 17 Ves. 351. (A) 3 Beav. 521. In Collier v. Squire, 3 Russ. 467, it was held that stock did not pass un- der a bequest of the testator's house, with all his household furniture, plate, china, books, linen and every other article belonging to him, both in and out of his house, and which might not be in his will mentioned ; the M. R. remarking that the testator could scarcely say of stock that it might not be mentioned or included in the articles specified. 1 Richardson v. Hall, 124 Mass. 228; 189; Fitzgerald v. Field, 1 RusS. 427j' Field Kelly ». Powlet, Ambl. 605; Cremorne v. «■ Peckett, 29 Beav. 576; TefEt i'. Tilling- Antrobus, 5 Russ. 312, 319 ; Birch v. Daw- hast, 7 R. I. 434; Hoopes's Estate, 1 Brewst. son, 2 Ad. &E. 37; Paton v. Sheppard, 10 " 462; Bunn v. Winthrop, 1 Jolms. Ch. 329; Sim. 186; Cole v. Fitzgerald, 1 Sim. & S. Hoopes's Appeal, 60 Penn. St. 220. 748 THE GENERAL PERSONAL ESTATE. *754 ment of his debts, as " follows : 50?. to B. ; 100?. to C, &c. ; 3,000Z. to 4,000?., or whatever remaining sum or sums, to A." Lord Lang- dale, M. E., said, that if the first clause had been the only one in the will, there would .have been strong reason for extending the operation of the words " all other goods," &e. ; but that the testator did not in- tend all his estate to pass was shown by his subsequently stating what were his intentions as to a particular part of it. Those words must, therefore, be restricted to goods ejusdem generis. In each of the two last cases, the dispositions of particular portions of the personal property, which followed the disputed clause, -^^^^^^^ comprised a gift to the same person who was entitled under preceding the first clause ; that, at least, was the ground (however *^''^'^' unsupported by the actual fact) upon which SirW. Grant expressly went in the case before him ; and where other persons are alone con- templated in the subsequent dispositions, the argument in favor of the restrictive construction is much weakened: for, as before observed, though the residuary clause is usually, it need not necessarily be, the last in the will : and any particular bequest which follows that clause may, if made to different legatees, reasonably be read as an exception out of the property comprised in it (/).] A more forcible argument in favor of the restricted construction, however, occurs where the testator has added to the equivo- Subsequent cal words in question terms descriptive of a particular species rSrict?™'^''' of property, which those words in their larger sense would expressions. comprehend (m). In such case, the adoption of the more comprehen- sive meaning would have the effect of rendering the superadded expres- sion nugatory ; and make the testator employ additional language, without any additional meaning. Thus, in Timewell v. Perkins (ra), where the will was in the fol- lowing words : " I give to M. T. all mortgages, ground * rents, *754 judgments, &c., whatever I have or shall have at my death^ as plate, jewels, Unen, household goods, coach and horses, for her use." For- tescue, J., held, that goldsmiths' notes and bank bills did not pass under the bequest : for though there was no doubt but the general words, whatever , / have or shall have at my death, would have passed them ; yet the particular words which followed, " as plate, jewels," &c., confined and restrained them to things of the same nature ; he said it was so laid down in Strafford v. Berridge (o). (I) See Rogers v. Thomas, 2 Kee. 8 ; Martin v. Glover, 1 Poll. 269; Arnold ». Arnold, 2 My. & K. 365. "A well established rule of construction," per .Jessel, M. R. 2 Ch. D. 513. (m) An assignment of "all household goods, &c., and other estate and effects, of or to which" the assignor is ^'' now possessed or entitled," or "belonging or due " to him, wag held not to pass a contingent interest under a will. Pope v. "Whitcombe, 3 Russ. 124; Re Wright's Trusts, 15 Beav. 367; but the ground of these decisions is distinct from that treated of in the text; see, too, Ivison ». Gassiot, 3 D. M. & G. 958.] (n) 2 Atk: 103. [But was not " as " (plate, &c.) equivalent merely to " exempli grntia," and less restrictive even than subsequent enumeration, as to which see Bridge v. Bridge, stated post, p. 759? (o) Mos. 208,] 1 Eq. Ca. Ab. 201, pi. 14. A. bequeathed all his goods, chattels, household 749 *755 "WHAT ■WOKDS WILL COMPRISE So, in Crichton v. Symes (p), where a testatrix bequeathed to A. and "Goods I^-) ^U. her goods, wearing apparel, of what nature and kind wearing ap- soever, except her gold watch. ^ Lord Hardwicke was of Tdiat'iiature Opinion, that the words were not intended to be a residuary and kind so- clause ; observing, that the testatrix afterwards gave a leg- my gold acy of 501. to her executor, and that there was not the word •watoli.;' residue. It had been insisted, he said, that the words " wear- ing apparel" explained the testatrix's meaning, as if she had said, " all my goods, (to wit) my wearing apparel ; " but wearing apparel must be construed the same as and wearing apparel, for there was no occasion to introduce wearing apparel, in order to except the gold watch, for if she had said " all my goods, except rnj' gold watch," it would have done as well ; and it was his opinion, that, as the words stood in the will, she in- tended to give only her wearing apparel, ornaments of her person, house- hold goods and furniture, and no other parts of her personal estate ; the testatrix here meant to give, not only what was properly clothes, *755 *but the ornaments of her person, and the exception of the gold watch showed the latitude of the expression. [So, in Stcignes v. Steignes (q), where the testator gave to his wife, "Movables, "besides all movables, plate, jewels, pictures, linen, &c. S!c* S ''s™' (except three books of miniatures and his whole library) , stock.'" ■ &,000L South Sea stock:" Sir J. Jekyll, M. R., said, that by the bequest of 6,0001. stock," besides all the movables, the testator had shown, that, in his understanding of the word, "movables" would not comprehend stock.' The consequence was, that though the word, if unrestrained by the context, would take in the whole purely personal estate, j-et here it must be confined to corporeal movables, to the exclusion of all matters of a like nature with the stock. Moreover, the testator had given away his debts in another clause (r).] stuff, furniture, and otlier things, TvhicH were then, or should be, in his house at the time of his death. Decreed, tliat money in the house did not pass; for, by the words other things, should be intended things of like nature and species with those before mentioned; see also [Sanders v. Earle, 2 Ch; Rep. 98, cited in] Anon., Finch, 8, where a bequest of all the goods and chattels, plate, jewels, household stuff and stock upon the ground, in and belonging to the testator's house in N., was held not to include a sum of money found in the house; Roberts e. Kuffin, 2 Atk. 113, where a bequest of all goods and things of every kind and sort whatever, which should be found in a certain closet, was held not to comprise a sum of money found in the closet : [and Gibbs «. Lawrence, 7 Jur. N. S. 134, 30 L. J. Ch. 170.J In San- ders V. Earle, and Rooerts v. Kuffin, some stress was laid on the fact of a pecuniarj' legacy being bequeathed to the same legatee; [as to which, however, see ante, p. 752, n. (t).] The several preceding cases illustrate the application of the principle stated in the text, to bequests of personal movable property answering to a certain locality. [Swinfen v. Swin- fen, 29 Beav. 207, where money and live and dead stock passed under a gift of "furniture and other movable goods here; " and Kennedy ». Keily, 28 Beav. 223, where horses and car- riages kept in the stable passed under a gift of a " house and all buildings belonging to me, furniture and what the said buildings maj' contain;" illustrates the modern tendency to reject a restricted construction. A gift of all in a certain locality " or elsewhere "' includes the general personal estate, Re Scarborough, 30 L. J. Prob. 85, 6 Jur. N. S. 1166.1 (p) 3 Atk. 61. [(?) Mos. 296. ()•) The M. R. also said that the words, "plate, jewels, pictures, linen," would not con- 1 See Kendall v. Kendall, 4 Russ. 360; Hurdle v. Outlaw. 2 Jones Eq. 75; Adams Gooch ». Gooch, 33 Me. 535. v. Jones, 6 Jones Eq. 221. 2 See Emery v. Wason, 107 Mass. 607 ; ^ See Penniman v. French, 17 Pick. 404; Wood V. George, 6 Dana, 343. 750 THE GENERAL PERSONAL ESTATE. *756 In some instances, however, the argument in favor of the restricted constniction, founded on subsequent expressions, descriptive of a particular species of property, has not been allowed to prevail against the force of the previous general words. Thus, in Bennett v. Bachelor (s), where a testator bequeathed unto P. (to whom he had before devised real estates, and had also Subsequent given specific legacies) all his household goods, books, heKoUobe linen, wearing apparel, and all other, not before bequeathed, restrictive. goods and chattels that he should be in possession of at the day of his decease, except the plate and legacies before and thereafter given and be- queathed ; and he also bequeathed to the said P. all monej"s due fi-om his (the testator's) tenants, and other persons. Lord Thurlow held, that the whole residue passed by the bequest ; observing, in i-eference to the latter words, that the testator might not know that the debts would pass by the words " goods and chattels." A conclusive ground for giving to equivocal words their larger signification, occurs where the bequest contains an Exception, exception of * certain things, which such bequest, *756 where ex- according to its restricted construction, would not doubtful' comprise ; the testator having in such a case afforded a key '>™''<'s. or explanation to his own ambiguous language, by showing that he considered that the bequest would, without the exception, have in- cluded the excepted articles. This question has generallj' arisen^ under gifts of goods and chattels, restricted to a certain locality ; but the principle, it is obvious, is equallj^ applicable to bequests not so restricted. Thus, in Hotham v. Sutton (<), where A. having two sons and a daughter, B., C. and D., after bequeathing for their benefit a sum of 12,700Z. Consols, gave all the residue of her personal estate and effects to her youngest children, C. and D., as therein mentioned. A. on the day of making her will executed a codicil, and revoked so much of her will as related to the bequest to her son C, of a share of her " plate, fine the generality of the word " movables," though they were onlj' corporeal things, for "&c." must signify, tt ccetera mobilia. Nor was the sense of it restrained by the exception. ^' Ei ccBtera^'' having no substantive expressed, is more dependent for its meaning on tlie context than " otiier effects." In Chapman v. Chapman, 4 Ch. D. 800, where a testator di- rected his widow to pay his debts, and then bequeathed to her " all his money, cattle, farm- ing implements, &c., she paying" certain legacies, it was held by Jessel, M. R., that she took everything; see also GoVer v. Davis,- 29 Beav. 225. In Newnian v. Newman, 26 Beav. 220, and Barnaov v. Tassell, L. E. 11 Eq. 363, " etc." was held to mean otlier things ejusdem (jeneris^ and in IVining u. Powell, 2 Coll. 266, other things before mentioned.] (s) 3 B. C. C. 29, 1 Ves. Jr. 63; see also Flemming t). Burrows, 1 Russ. 276, post, p. 758. (0 15 Ves. 319. Cf. Flemming v. Brook, 1 Sch. & Lef. 318, where Lord Eedesdale, on the authority of Moore v. Moore, 1 B. C. C. 127, held, that a bequest of " all my property, of whatever nature or kind the same may be, that may be found in A.'s house, except a bond of B. in my writing-box," did not pass a mortgage security, and another bond and certain bankers' receipts, which were in the house, on the ground, that choses in action had no local- ity for this purpose (a doctrine which is now well settled, 1 Ves. 273, 1 B. C. C. 127, 129, n.; J|7 Beav. 1 ; but see 29 L. J. Ch. 486]) ; and his Lordship being of opinion that an exception m the will of one security was not sufficient evidence of the testator's intention to pass all the other choses in action. 751 *758 -WHAT WOEDS WILL COMPEISE "Household linen, household goods, and other ^ects (money excepted)" o"hCT effects ^"*^ S^^^ ^^ whole thereof to her daughter. The question money ex- ' was,' whether the revocation extended to the general resid- '^^^^ ' uary personal estate, or whether the words "and other effects" were not restrained by the prior terms to articles ejusdem generis. Lord Eldon decided in favor of the former construction. He observed:. "The doctrine appears now to be settled, that the words ' other effects ' in general, mean effects ejusdem generis. I cannot help entertaining a strong doubt, whether this testatrix, it asked whether she meant effects ejusdem generis, or contemplated the share of all which she had considered her effects in the will; would not have answered that the latter was her meaning. Her expression is conclu- sive upon that. Money cannot be represented, as ejusdem generis with plate, linen and household goods. The express exception, of money out of the other effects shows her understanding, that it would have passed by those words; ; that express words were required to exclude it, and by force of that exclusion of the excepted article, she saj's, she thought the words of her bequest would carry things nan ejusdem *757 generis. This disposition must, * therefore, be taken to compre- hend all that she has not excluded, which is money only " (m). • It will be observed,- that Lord Eldon, in the last case, laj's it down, L rdKldon's *^^* ^^^ words " other effects," in general, mean effects statement cif ejusdem. generis (x) ; but such a - position seems scarcely to general rule. g^g^Qj,^ yf[^^ some subsequent decisions about to be stated ; one of which;, it will be seen, was determined by the same judge who decided Rawlings v. Jennings (y), which case certainly carried the restricted construction to its extreme point ; and probahly was in Lord Eldon's view, when he advanced the above dictum. Thus, in Campbell v. Prescott (z), where a testator gave to his sons " And all -^' ^^^ '^' ^'^ '^''^ sugar-house, cupola and merchandise stock, effects what- with jewels, plate, household goods, furniture,. and all effects ?estTicted°by whatsoever, and appointed them executors ; Sir W. Grant, association M. E., held, that the whole personalty passed under this li'miteT'^^ clause ; remarking,. that there was no case for the restrictive terms. sense attempted to be put upon the words " all my effects whatsoever.'.' So, in Michell v. MichelUa), Sir J. Leach, V.-C, held, that the personal estate of a testator passed under a bequest of all and singular " Plate, &c., his plate, linen, china, household goods, and furni- thatlshall *758 ture (6), * and effects that he should die possessed of. die possessed He considered that this construction of the word of." [(m) See also Bland v. Lamb, 2 J. & W. 399, 409; Re Crawhall's Trusts, 2 Jur. N. S. 892, 895, 8 D. M. & G. 480; Reid v. Reid, 25 Beav. 469; cf. Re Hull's Estate, 21 Beav. 314. (k) So per Lord Redesdale, Stuart v. M. of Bute, 1 Dow, 84, 87.] (;/) Ante, p. 752. (z) 15 Ves. 503. (a) 5 Mad. 69. (b) The words "household goods," or "furniture," will include pictures hung up, and plate and house linen; [Amb. 605, 2 P. W. 419, 5 Russ. 312;] unless these words are used 752 THE GENERAL PERSONAL ESTATE. *758 "effects" was aided by the subsequent words, "that I shal-l die pos- sessed of," and observed, that the expression was not household goods, furniture and effects ; but household goods and furniture and effects," which imported a distinct sense in the word " effects." [And in Hearue v. Wigginton (c) , before the same judge, where, after giving several pecuniary* legacies, a testator bequeathed "Spoons, his wearing apparel to A. ; and to B. and C. two large and' ail other, silver spoons, one silver cream jug, six tea-spoons, one pair effects to B." silver buckles ; and all his other effects he willed to D. to be sold for his benefit : D. was held to be clearly entitled to the general residue, although some of the particulars comprehended in it were not strictly speaking the subject of sale.] Again, in Flemming v. Burrows (d), where a testator, after com- mencing his will with the words "As for such temporal estate as God in his mercy hath bestowed upon me, I give and dispose of the same as followeth ; " devised certain lands to his natural son D., adding, "likewise my furniture, plate, books, and live stock, or "Orwhat- whatever else I may then be possessed of at my decease, also my ever else I shipping and ropery concerns at W. and H," he paying the Assessed debts. It was contended that these words were to be con- °*-" » flned to articles ejusdem generis with those specified before, i.e. furni- ture, &c., with which they stood immediately associated, and also on the ground of their being followed by the mention of specific articles, which were already included, if the previous words amounted to a elsewhere in the will in contradistinction thereto; Pre. Ch. 251; [also prize medals, coins and trinkets, if framed and hung, or otherwise disposed for ornament, 2i L. T. 40, 5 Russ. 321, 29 Beav. 573;] but not boolis, 3 Atk. 201, Amb. 605, [JMos. 112, 5 Russ. 321; (unless an intention to include them appear by the context, 10 Beav. 462, 3 Russ. 301, 11 W. R. 417; and they have been held to pass as articles of domestic use or ornament, 12 Sim. 303, which brings them within the definition of "furniture," Amb. 610, serf^.);] nor wines [or otlier con- sumable articles ;] 3 Ves. 311, [3 P. W. 334;] nor floods belongmg to the testator in the war of, [or used in carrying on] trade; 2 P. W. 302, 1 Ves. 97, Anib. 611, [7 D. M. & G._55; no'r farming stock, 3 Jo. & Lat. 727, 29 L. J. Ch. 875; nor, in general, tenants' fixtures, i.e. they will generally pass with the testator's interest in the house, Mos. 112, 10 Ch. D. 13. In Paton V. Sheppard, 10 Sim. 186. the house had been settled without the tenant's fixtures, and these were held to pass to the legatee of the furniture as against the residuarv legatees. Under the terms " household furniture, implements of household and articles of vertu," telescopes have been held to pass, 2 De G. & S. 425; as to a bust, qucere. 1 Beav. 189.] The words " household furniture and other household effects," it seems, extend to all that is in the house for use, consumption or ornament, and have been held to comprise pistols, apparatus for turn- ing, models, pictures, organ, parrot, books, wines and liquors, but not a pony or cow, or a fowling-piece, unless used for domestic defence; [Colew. Fitzgerald, 1 S. & St. 189, 3 Russ. 301, and n.; Stone v. Parker, 29 L. J. Ch. 874; nor articles exclusively of personal ornament, 2 K. & J. 635. But the circumstance that the article has been sent awaj' for repair or sale, will not exclude it, 2 .lur. N. S. 514 J As to the words "live and dead stock," see 3 Ves. 311, 3 iWer. 190, [12 Beav. 357, 11 W. R. 417 (where books and wine were held included.)] Growing crops, it seems, will pass under a bequest of stock of a farm, 6 East, 604, n. ; or stock upon a farm, 8 East, 339; [but see 5 Russ. 12;] and see 1 Roper on Leg., by White, 249. ["IMovables," unrestrained, will take in all pure personaltv, Mos. 296; and articles tempornrily removed from a place will pass as articles in that place, 4 B. C. C. 537, 2 Jur. N. S 514; but not articles permanently removed, 3 Mad. 276, 21 Beav. 648, 1 Jur. N. S. 2.50; nor articles intended to be, but never yet, taken thither, 2 Dc G. & S. 425; (but see 3 Ch. D. 302). " My freehold house and property situate in W. road," was held not to carrv chat- tels temporarily on ground near the house, 2 Gif. 277. Under a gift of " plant and goodwill," the house of business held at rack-rent was decided to pass, Blake v. Shaw, Johns. 732. (c) 6 Mad. 119.] (a) 1 Russ. 276; see also Sutton v. Sharp, ib. 145. VOL. I. 48 753 ! *759 WHAT WORDS WILL CjOMPEISE general residuary gift; but Lord Gifford, M. R.jheld, on the authority of and' the reasoning in Bennett v. Bachelor (e), that these circum- stances were inadequate to restrain the generalitj'^ of the bequest. [In Arnold v. Arnold (/), the testator, who was in India and made his will there, "bequeathed to his wife 1,000L ; also his wines and " Wines and property in England," and gave other legacies. Lord property." «759 * Cottenham, then M. R., held that all the testator's Lord Gotten- property in England (which consisted of wines, stock, ment of the cash at his banker's, and other particulars), went to the wife, general rule, j^ ^g^g obvious, he said, that the mere enumeration of par- ticular articles, followed by a general bequest, did not of necessity restrict the general bequest, because a testator often threw in such specific words, and then wound up the catalogue with some compre- hensive expression for the very purpose of preventing the bequest from being so restricted. Lord Cottenham's statement of the general rule is the exact con- trary of that cited from Hotham v. Sutton, and is now generally accepted. "The mere enumeration of some items before the words ' other effects ' does not alter the proper meaning of those words " (g) . In Parker v. Marchant (h), it was noticed by Sir J. K. Bruce, V.-C, as a circumstance favoring the unrestricted construction that the gen- eral terms there followed the specific. But, as already shown (i), a con- 5 ci 1 terms ^^^U o^dcr does not necessarily lead to a contrary result : foUowing the and in Fisher v. Hepburn (k) , where a testator expressed fece^ikry' li™self as follows : " As to all the rest, residue and remain- restrictire. der of my estate and effects whatsoever and wheresoever, canal shares, plate, linen, china and furniture, I give, devise and bequeath the same to my wife, for her own use and benefit ; " Sir J. Eomilly, M. R., held the wife entitled to the general residue. "The Defective latter words," he said0, "are not words of restriction ; enumeration, t^jgy are rather words of enlargement. The object was to exclude nothing. Such an enumeration under a videlicet, a much more restrictive expression, has been held only a defective enumeration, not a restriction to the specific articles." The case here referred to (e) Ante, p. 755. [(/) 2 My. & K. 365. (g) Per Jessel, M. R., Hodgson ». Jex, 2 Ch. D. 122. See also Parker v. Marchant, 1 T. 6 C. C. C. 290. 1 Phil. 356; Read v. Hodgens, 7 Ir. Eq. Eep. 17; Baker v. Mason, 2 Jur. N. S. 539; Re Gadge, L-. E; 1 P. & D. 5i3; Harris v. James, 12 W. E. 509; Stvatton v. Hil- las, 2 D. & War. 51, a very special case. Where the expression which follows the specific enumeration is unambiguous, as "all other the rest of my personal estate," there is still greater difficultv in limiting its meaning, Martin v. Glover, 1 Coll. 269; Nugee r. Chapman, 29 Beav. 290. (h) 1 Y. & C. C. G..295, 301. See also by the same judge 1 D. F. & J. 416 ; and by Eo- milly, M. E., Re Kendall, 14 Beav. 611. It is singular that this circumstance which these learned judges thought was in favor of the larger construction was stated by Lord Lynd- hurst to be essential to the restricted construction; see Lewis v. Rogers, 1 G. M. & R. 52 (deed). (i) Bennett v. Bachelor, ante, p. 755. (/c) 14 Beav. 627. See also Kendall v. Kendall, 4 Euss. 360 ; Avisou v. Simpson, Johns. 43. (i) Citing Sir W. Grant, Cambridge ». Eous, 8 Ves. 26. 754 THE GENEEAL PERSONAL ESTATE. *761 by the M. R. was probably that of Bridge v. Bridge (m), *wtere *760 a testator, after bequeathing certain legacies, gave the remainder of his estate, viz., his Bank stock, India stock, and S. S. stock and S. S. annuities, to A., and made him sole executor. Lord King held that, the words under the videlicet did not restrain the general words, " but were added by waj- of enumeration or description of the main particulars whereof the estate consisted ; and the rather, because im- mediately after follow the words, ' and I do hereby make him sole exec- utor.'" And in a similar case (w), SirW.P. Wood, V.-C, said, "The strong presumption is that the testator did not mean to do only what he might have effectually done by giving^ the enumerated articles sim- ply." It scarcely need be added that it is immaterial that the enumer- ation comprises trivial things only, and omits all the important items of the personal estate. To hold the contrary would involve the admissio'n of evidence to prove what the testator's personal estate consists of at the date of the will ; which we have before seen is inadmissible (p).'\ These cases indicate the disposition of the judges of the present day to adhere to the sound rule, which gives to words of a com- General re- prehensive import their full extent of operation, unless ^^i^J"* ^"^^ some very distinct ground can be collected from the context cases. for considering them as used in a special and restricted sense. It is to be observed, however, that in all the preceding cases, there was no other bequest capable of operating on the general residue of the testator's personal estate, if the clause in question did not. Where there is such a bequest, it supplies an argument of no inconsiderable weight in favor of the restricted construction, which is then recom- mended by the anxiety always felt to give to a, will such a construction as will render every part of it sensible, consistent and effective. To this ground may be referred the ease of Woolcomb v. Woolcomb(p), where the testator gave to his wife all the furniture of VMect where * his parsonage house, and all his plate, household *761 ^i" ^'^° ™"" goods and other goods (except books and papers), and all residuary his stock within doors and without, and all his corn, wood, '='^''^^' and other goods, belonging to his parsonage house ; and gave the residue of his personal estate to J. The question was, whether ready monej^, cash, and bonds, should pass to the wife. It was contended, that the (m) 8 Vin. Abr. Devise, 0. b., pi. 13; and see Chalmers v. Storil, 2 V. & B. 222; Nicholas V. Nicholas, Taml. 269; Ellis v. Selbv, 7 Sim. 352; Everall ». Browne, 1 Sm. & Gif. 368; Chovee v. Ottey, 10 Hare, 443; Banks v. Thornton, 11 Hare, 176; Re Goodvar, 1 Sw. & Tr. 127,"4 Jur. N. S. 1243; Gover v. Davis, 29 Beav. 222; Dean r. Gibson, L. E^ 3 Eq. 713 ; King V. George, 4 Ch. D. 435, 5 Ch. D. 627. See also Reeves v. Baker, 18 Beav. 372; Armstrongs. Buckland. ib. 204. In Att.-Gen. v. Wiltshere, 16 Sim. 36, the general terms, " all the property of which I am possessed," were held to be lesti-icted to property in a particular place by force of the context, especially by the sentence " the property above referred to is at A." And in Enohin v. Wylie, 1 D. F. &; J. 410, 10 H. L. Ca. 1, " all m^- capital in ready money and bank billets " was held a description of a limited part of the testator's capital, not a case of enmneration. See also Stooke v. Stooke, 35 Beav. 396. And see Slingsby v. Grainger, 7 H. L. Ca. 273. (re ) Dean v. Gibson, L. R. 3 Eq. 717. (o) King v. George, 5 Ch. D. 627.] (p) 3 P. Wms. 112, Cox's ed. ; [see Marks «. Solomons, 19 L. J. Ch. 555. 755 *762 WHAT WOEDS WILL COMPRISE devise of all the testator's goods should carry all his personal estate ; omnia bona being words of the largest .extent and signification, with regard to personals. To which it was answered, that if the devise of all the testator's goods were to be taken in so large a sense it would disappoint the bequest of the residue ; that the words " other goods" should be understood to signif}- things ejusdem generis with household goods, in order that the whole will might take effect. And of that opinion was Lord King. [So in Lamphier v. Despard {q) , where a testator, after devising cer- tain real estates to his wife, bequeathed to her " all his household furniture, plate, house-linen, and all other chattel property that he might die seised or possessed of; " and after giving various legacies, he appointed A. his executor and residuary legatee ; Sir E. Sugden held that all other chattel property meant all ejusdem generis; relying partly on the subsequent residuarj' gift. He thought, however, that the words would clearly not pass money ; so that the clause could not be a general bequest of the entire personal estate. A residuary gift of personal estate (r) carries not only everj"thing Effect of a not in terms disposed of, but everj-thing that in the event Request of turns out to be not well disposed of. A presumption arises residue. for the residuary legatee against every one except the par- ticular legatee : for a testator is supposed to give his personalty away from the former only for the sake of the latter («). It has been said, that, to take a bequest of the residue out of the general rule, very special words are required (<)i and accordingly a residuary bequest of propertj' "not specifically given," following various specific and gen- eral legacies, will include lapsed specific legacies (m). And a *762 gift of all a testator's personal estate, except certain * specific sums of stock and money, followed by a bequest of those par- ticulars, was held, in Evans v. Jones (x), to include some of the specific legacies which had failed. And in James v. Irving (y), where the bequest was of " everj'thing real and personal, &c., except the S. shares, which were not to be sold until after the death of A. : " Lord Lang- dale, M. R., held, that the exception of the shares was only for the purpose of postponing the sale, and that they passed by the bequest. So, in Markham v. Ivatt(2), a gift of " all the residue of ray free- hold and leasehold hereditaments, estate and premises, whatsoever and (o) 2D. & War. 59; see also Stuart w. Marquis of Bute, 1 Dow, 73; Barrett, v. Wliite, 24 L. J. Ch. 724, 1 Jur. N. S. 652; Mullins ». Smith, 1 Dr. & Sm. 204; Gibbs v. Lawrence, 7 Jur. N. S. 134, 30 L. J. Ch. 170. ()■) As to real estate see ante, p. 645. (s) Per Sir W. Grant, Cambridge v. Kous, 8 Ves. 25 ; see also Leake i). Robinson, 2 Mer. 393 ; Reynolds v. Kortwright, 18 Beav. 427. (t) Per Lord Eldon, Bland i'. Lamb, 2 J. & W. 406 ; see also Cunningham v. Murray, 1 De G & S. 366, rev. on app. 12 Jur. 547.' (m) Roberts v. Cooke, 16 Ves. 451; see also CIpwes i). Clowes, 9 Sim. 403. (x) 2 Coll. 516. («) 10 Beav. 276; see also Dobson ». Banks, 32 Beav. 259; Read v. Hodgens, 7 Jr. Eq. Kep. 17; Sheffield ». Lord Orrery, 3 Atk. 286; Thompson v. Whitelock, 4 De G. & J. 490. (z) 20 Beav. 579. 756 THE GENERAL PERSONAL ESTATE. *763 wheresoever, not hereinbefore otherwise disposed of," was held not to be confined by a previous direction, that a reversionary interest in cer- tain specified leaseholds should ' ' form the residue of her leasehold es- tates," but that other leasehold property also passed therebj'. And in Bei'nard v. Minshull(a), where under a general power of appoint- ment (6), a married woman bequeathed the whole fund to her husband, but requested him after reserving a specified part for his own use, to dispose of tlie rest as would best carry out her wishes often expressed to him ; and then bequeathed all other her property to her husband. The trust having failed for uncertainty, it was held that the husband was entitled not only to the sum which he was specially allowed to reserve, but also under the residuary clause (which, under s. 27 of the Wills Act, operated as an appointment) to the entire remainder of the fund. However, if the words of the will show that the testator intended the residuary bequest to have a limited effect, the presumption What will in favor of the residuary legatee will, of course, be effectually ^I'lSeVnv'^" rebutted; the difficulty in these, as in most other cases, portionof the being not in discovering the principle but in appl^'ing it to |',om°a''resid- ' particular wills. "aiy gift. In Davers v. Dewes (c) a testator gave part of his plate to A., and declared that he intended to dispose of the residue thereof, and of the goods and furniture in C. house, by a codicil ; he then bequeathed the residue of his personal estate whatsoever not before disposed of, or reserved to be disposed of by his codicil, to A. He made two codicils without disposing of the reserved * articles ; but Lord *763 King held, that being expressly reserved to be disposed of bj' a codicil, those articles could not pass by the devise of the residuum by the will. Again, in Att.-Gen. v. Johnston (i), where, after giving legacies to a considerable amount, the testator gave to a hospital lOOZ., " that is, if there remained enough of his personal estate to satisfy it ; but if not, or in case there remained but little, then the 100/. to the hospital should not be paid ; and the small remainder of his personal estate should be left to his executor,'' in trust for charitj' schools ; " so as it was like- wise his will, that if his personal estate should suflBciently reach towards satisfying all the legacies b}"^ him bequeathed and above mentioned, that his said executor should also dispose of the remainder in favor of" the charity schools. Lord Camden held that legacies to a large amount which had lapsed did not pass b^^ the residuary bequest. He looked upon the bequest to be specific, contingent, and conditional ; that is, " In case my estate turns out to pay all my other legacies, and there should be a little more, then I give that little." (a) Johns. 27fi. (6) Vide ante, p. 682. (c) 3 P. W. 40. See al.«o Ludlow v. Stevenson, 1 De G. & J. 496 (gift of " property not otherwise disposed of " restricted by context). (d) Amb 677. 757 *764 WHAT WOBDS WILL COMPEISE And in Wainman v. Field (e) (whieh on account of the similarity of the /o»v» of the bequest to that in Evans w. Jones (/), well illustrates the rule) , a testator bequeathed to trustees all his personal estate (except such parts as were particularly disposed of, " and also except such leasehold estates as he should be entitled to at his decease ; which leasehold estates he declared it to be his intention to exonerate from the paj'ment of his debts and legacies"), upon trust to pay debts, funeral expenses, and legacies ; " and in case there should be any residue of his said personal estate (except as aforesaid) beyond what should be sufficient for the pa^-ment of his said debts and legacies," he gave the same to A. The will then contained a devise of the testator's freehold estates, and a bequest of his leaseholds, which was void for remoteness : and the question being whetlier the leaseholds passed by the residuary bequest, Sir W. P. Wood, V.-C, held that they did not. " The testator excepts the leaseholds, "he said, "for the reason that he wishes to exonerate them from the payment of his debts and legacies, and not for the pur- pose of making a particular bequest of them." And again, "The testa- torh^d both an intention to bequeath those leaseholds for other purposes, and ^ negative intention not to give them for those particular pur- poses " (i.e. for payment of debts and legacies) . *764 * To hold that the negative intention was independent of the intention to bequeath, maj' seem a rigid construction. But, being made, it marks the distinction in principle between this case and Evans V. Jones, and James v. Irving (.9). When the disposition of an aliquot part of the residue itself fails from Effect of fail- any Cause, that part will not go in augmentation of the ureotbe- remaining parts, as a residue of residue, but will devolve as aliquot part Undisposed of. In illustration of this well-settled rule it of residue. -^-^ suffice to mention the case of Skrymsher v. North- cote (K) , where a testator gave his residuary estate equaU}' between his two daughters ; but in the event (which happened) of either of them dj-ing and leaving no children, then out of the moiety of the one so dying he gave 500/. to H., and " the remainder of that moiety "'to the other sister. The testator revoked the gift of 500Z. without making any fresh disposition of it, and Sir T. Plumer, M. R., held that it went to the next of kin. " Residue," he said, " means all of whieh no effectual disposition is made by the will, other than the residuary clause. In the instance, of a residue given in moieties, to hold that one moiety lapsing shall accrue to the other, would be to hold that a gift of a moiety shall eventually carry the whole." And this rule has been held to prevail, though the testator directed that in a certain event (which happened) the aliquot part should sink (c) Kay, 507; see also Eussell r.Clowes, 2 Coll. 648. If) 2 Coll. 516, ante, p. 762. (;/) Ante, p. 762. (A) 1 Sw. 666; see also Lloj'il «. Lloyd, 4 Beav. 231; Green v. Pertwee, 5 Hare, 249; Gib- son V. Hale, 17 Sim. 129; Simmons v. Kudall, 1 Sim. N. S. 115. 758 THE GENERAL PERSONAL ESTATE. *765 into the residue and be disposed of accordingly ; this not being equiv- alent to saying it should belong to the other residuary legatees (i). But it is a mere question of intention, and in Evans v. Field {k), where a testatrix directed her executors to stand possessed of her residuary personal estate, after satisfying legacies, and also of so much of her personal estate the trusts whereof should fail, upon trust for division in elevenths, one share being separately given to each one of eleven named persons. One of these died before the testatrix, and it was held \>y Sir L. Shad- well, V.-C, that the whole residue went to the other ten. He said the gift of the residue was in the first place among the eleven ; but then the testatrix directed that so much of her personal estate, the trusts whereof should fail, should be disposed of according to the same trusts ; and one share having lapsed, he thought the necessary efl'ect of that direc- tion w^as to make the residue divisible into ten paits instead of eleven {I). * It has already been observed (ni) that a general bequest of *765 chattels of a particular species carries all the chattels of that General be- kind which the testator is possessed of at the time of his partfcular death ; as, mortgages, stocks or furniture. Thus, a gift residue. of " any small sum remaining in the bank after my funeral expenses have been paid," was held to carrj- the testatrix's balance at her banker's at the time of her death, although, in the mean time, it had increased from 480/. to 1,370/., and notwithstanding the word "small" (w). In the fluctuating character of the property comprised in it such a bequest resembles a general bequest of all the personal estate, and, by analogy to a bequest of the latter kind, a bequest of a particular residue is held to include all the particular kind which in event is not otherwise dis- posed of. Thus, in De Trafford v. Tempest (o), where a testator gave to his widow certain chattels which, at his decease, might be in or about his house at T., and bequeathed to his son all his household and other furniture, plate and chattels, not thereinbefore Otherwise disposed of, which at his decease might be in or about his said house ; and after- wards bequeathed his residuary estate to other persons : the widow died before the testator, and it was held by Sir J. Romilly, M. E., that the chattels, whereof the bequest to the widow had lapsed, fell into the particular residue and passed to the son. But where a testator is dealing with a fund which he estimates at a certain amount, it is indifferent whether, after disposing of Eff^<=' °^ » ^■1 -^ ., . -, , ^ . . gift of the certam portions, he specifies the remainder by stating its "residue" amount or by comprising it under the term " residue." In <>** definite (0 Humble v. Shore, 7 Hare, 247; Lightfoot v. Burstall, 1 H. & M. 546. (it) 8 L. J. N. S. 264. (/) Semb. by the lapsed share being divided into elevenths, and one of those elevenths again subdivided, ad infin. as in Atkinson v. Jones, Jo'hns. 246. (m) Ante, p. 691. (n) Page v. Young, L. R. 19 Eq. 501. (o) 21 Beav. 564, and see Mitchell v. M'Isaac, 18 Jur. 672. 759 "WHAT WOEDS WILL COMPBISE either case, if the disposition of any portion fails, it will lapse, and not pass as part of the " residue " (p). This construction depends on the fund being ascertained, or rather — of a fund on its being so treated by the testator. Where this is not tained^'^^'^" ^^^ ease, the general rule as to the comprehensiveness of a amount. particular residue prevails. Thus, in Falkner v. Butler (q), where a testatrix, having under her deceased husband's will special power to appoint the residue of his personal estate, appointed several legacies, including one to a stranger, and then appointed " the *766 * residue of her husband's estate after payment of the legacies ; " it was held that the residue carried the ill-appointed legacy. It is to be observed that here, although when the testatrix made her will her husband's estate may have consisted of an ascertained sum (r), she did not so refer to it. The material circumstance was, therefore, want- ing to show that she was parcelling out a fixed sum in definite proportions. And in Petre v. Petre (s), where a testator, having a general power T^. over a sum of 7,100Z. stock, gavQ certain money legacies tained fund thereout, and the residue, after deductmg the legacies, to his unascer-' ^ ^^^ ' ^^^ ^""*^ having by the appointment become subject to tained debts, and the amount it would produce by a sale being arges. uncertain till it was sold. Sir ■ J. Romilly held the gift of the residue to be not specific, but merelj- residuary, and subject to all the incidents of a common residue (t). After adverting to the rule in Page V. Leapingwell, he continued: " In this case, so far from knowing the amount of the fund, the testator could have no conception of it ; for it was impossible to ascertain the amount until the fund had been realized by a sale and the charges on it known. If, in this case, the testator thought he was dealing with 7,100/. sterling, and he had divided it into difierent proportions, the loss would then fall on all the persons inter- ested in proportion to their shares, although the last portion was called ' the residue,' but that is not the case here." An express charge of debts on the fund shows that a testator does not mean the legatee of " residue" to take a definite proportion of the fund, the debts being of altogether uncertain amount (m). But it does (p) Easum v. Appleford, 5 My. & Cr. 56; Page v. Leapingwell, 18 Ves. 463; Wright o. Weston, 26 Beav. 429; Re .Teaffreson'a Trusts, L. E. 2 Eq. 276 (part appointed to a stranger to power). According to Hunt v. Berlieley, Mos. 47, tlie lapsed legacy would pass by a gen- eral residuary bequest in the same will. (o) Amb. 514. ()•) Vide'-per Wood, V.-C, Johns. 206. (s) 14 Beav. 197. (() If the fund falls short of the estimated amovmt, all must abate ratably. Page v. Leap- ingwell, supra; Haslewood v. Green, 28 Beav. 1; Elwes ». Causton. 30 Beav. '554 ; Walpole v. Apthorp, L. R. 4 Eq. 37; Miller v. Huddlestone, L. R. 6 Eq. 65. If the remainder is not given at all, the case is different, and the specific portions are payable in full, Booth v. Aling- ton, 6 D. M. & G. 613. Where, as often happens, the question a'rises upon an appointment, and the fund is insufficient for all the particular gifts, but one of them lapses — here, as be- tween the appointees and those entitled in default, the lapsed appointment goes to augment the others and to prevent abatement, Eales v. Drake, 1 Ch. D. 217. (m) Harlevt). Moon, 1 Dr. &Sm. 623; Baiters. Farmer, L. R. 3 Ch. 537. So of any other indefinite charge or payment, as, for restoring a church, Champney v. Daw, 11 Ch. D". 949. 760 THE GENERAL PERSONAL ESTATE. *767 not appear that the charge of debts which, hy a rule of law only, and not by express provision, attached to the fund in Petre v. Petre, was essential to the decision in that case, even if it could properly be per- mitted to weigh. In the case put by the M. R. at the close of the remarks cited above from his judgment, the debts would still have been a * charge on the fund; yet, he said, in that case the *767 residue would have borne only a proportion of the loss. Hence it would seem that wherever there is a gift of money legacies out of a specified sum of stoclt, followed by a gift of ,the " residue," this will be a true residue, the amount of it being necessarily uncertain until the stock is actuall}' sold (x) . The intention is placed beyond doubt if, to a proper description of the fund, the testator adds " or other the stocks or securities in whicli the same maj' hereafter be invested" (y). Again, in Oke v. Heath (z), where a testatrix had power to appoint 4,000?., and she appointed the whole sum to A., and "the "Residue," residue of what she had power to dispose of" to B., the gift J'^j^g^'^fy^^ of residue had nothing to operate upon, except what might explained by fail to take effect under the previous appointment. A. died '^''"''''''• before the testatrix : B. therefore took the 4,000Z. So where the testa- tor provided that if a particular gift should fail in a specified manner, it should fall into the residue of the fund, and then bequeathed the residue of the fund, he was held bj' Sir J. Bacon, V.-C, to have shown that he used the word " 1-esidue " in its proper sense, so as to include another particular gift which had failed in a manner different from that specified (a). And, in Ee Harries' Trust (b), where a testatrix having a power to appoint 2,000/. secured by policj', and all bonuses and other monej-s payable thereunder, appointed 1,000/. to A., 1,000/. to B., and the residue, after payment of the said sums, to be divided among the testator's j'ounger sons, with subsidiarj'^ clauses regarding " the said residuary monej's and premises ; " A. died before the testator, and it was held by Sir W. Wood, V.-C, upon the whole of the will, that the lapsed sum, as well as the bonuses, passed under the gift of " resi- due."] Sometimes it has been a question, whether the word "residue" comprises the general personal estate. Or is confined to the "Eesidue" undisposed-of portion of a certain property or fund, which fl„ed to par-" the testator had just before made applicable to specific and ticuiarfund. partial purposes. As in Boys v. Morgan (c), where the testator, after bequeathing (x) See ace. Vivian v. Moi-tlock, 21 Beav. 252; Carter ji. Tagfi;art, 16 Sim. 423. (y) De Li. White, 1 J'ur. N. S. 652, 24' L. J. Ch. 724; and consider Chapman v. Reynolds, 28 Beav. 221, especially with reference to the weight there attributed to the fact that the testatrix had no " money " in the strict sense. (o) 5 De G. & S. 676. As to the weight allowed to the fact that nt the time of his death the testator had little besides the consols, qu. : and see Gosden ti. DotteriU, 1 My. & K. 56j which on this point is good law. If the gift is specific such evidence is admissible, Galliai 1). Noble, 3 Mer. 631. 765 *773 WHAT WOEDS WILL COMPBISE to be by them placed in the British funds or otherwise laid out" upon security and held in trust: Sir J. Parker, V.-C, thought the whole will pointed to a complete disposition of the personal estate, and that, at all events, a sum of consols passed under the word " monej's." It was argued that the direction " to place in the British funds " proved that the testator could not have meant to include the consols in the bequest of " moneys," that direction being wholly inapplicable to them; but the V.-C. thought, that to consider that this direction destroj'ed the gen- eralty of the word " moneys," as applicable to the stock, would be to take advantage of a slip of the testator in wording his will, while his meaning was obvious ; that if he intended his executors to invest moneys not then invested, a fortiori he must have intended moneys which he had himself invested to pass by the will, if the words were sufficient to carry them, as he (the V.-C.) thought they were (p). Residue in- -^"*^ i" Prichard V. Prichard (q) , where a testator eluding tense- *773 appointed an * executor and declared that the income pass as arising from his principal monej' should be paid to his 'monej'." -wife, while unmarried, for the support of herself and the education of his children, and at her death or marriage to be divided among them; it was held by Sir R. Malins, V.-C, that the declared purpose of the gift showed that the whole personal estate was intended to pass, including leaseholds. Where the context shows that the testator means, by " money" his general personal estate, special words should be found to exclude any part of it (r) . But if the context shows that the word is used in its strict sense, it Uni f ^^'' "°* receive the more popular construction, merely on the bidden by the strength of even an expressed intention to dispose of aU the context. estate.] Thus, in Ommanney f. Butcher (s), where a testa- tor, after commencing his will in the following form: "I, A. B., considering in what manner I should have mj' fortune disposed of, in case of my death, do make this ray will : " — bequeathed numerous stock and a few money legacies ; and after disposing of some books and other specific articles, he directed the remainder of his books, and his jewels, plate and household furniture to be sold ; and desired that his clothes and linen might be divided between his servants : he then gave a small pecuniary legacy to his executors, and added, " in case there is any money remaining, I should wish it to be given in private charity." Sir T. Plumer, M. R., was of opinion that the concluding clause did not com- prehend the general residue ; but was to be considered as applying to the residue of the produce of those articles which the testator had (p) But tlie mere fact of "money" being so disposed of {e.g. to one for lite, with limi- tations over), as to necessitate an investment, will not suffice to extend the natural import of the word, Lowe v. Thomas, Kay, 369, 5 D. M. & G. 315; Lai-ner v. Larner, 3 Drew. 704; Williams v. Williams, 8 Ch. D.'789. (?) L. R. 11 Eq. 232. (r) See per Kindersley, V.-C. Barrel* v. White, 1 Jur. N. S. 652, 24 L. J. Ch. 724.] («) T. & R. 260. 766 THE GENEEAL PERSONAL ESTATE. *774 directed to be sold, after providing for the paj-ments which were ordered to be made. It will be seen that the clause directing the sale and the clause disposing of the "mone3r" did not stand in immediate connec- tion ; [and the M. R. owned there was difficulty in knowing what the testator meant : but he relied on the circumstance, that, up to a certain extent, all the dispositions in the will were legacies of stock ; the testa- tor therefore had distinguished where he meant stock to be the subject of his disposition, and the context showed that in the clause in question he was not adverting to the stock. To construe the word " money" to mean stock would be to alter the words of the will contrary to the context. The modes in which, a testator may attach a partic- Other cases ular * meaning to the word " money " are, of course, *774 "endeVuse of various. In Glendening i-. Glendening(i!), a testator ''money." bequeathed to his wife ' ' the interest of his money and the use of his goods (u) for her life : " at her death he gave various pecuniary legacies, " and the remainder of his property to be equally divided between his brothers and sisters ; his wardrobe to be equally divided between his brothers : " Lord Langdale, M. R., held that the wife was entitled to a life-interest in the general residue (consisting of money in the funds, a small sum of cash, and a few chattels), except the wardrobe. " He gives the interest of the money, and the use of his goods to his wife for life ; and at her death he gives certain pecuniary legacies, and the remainder of his property to his brothers and sisters. What is the time to which he here refers ? I think that, looking at the structure of this will, it refers to the wife's death." The word " mone}- " ma}' of course receive from the context a mean- ing larger than that which property belongs to it, but short "Money" of comprehending the general residue. Thus, where a tes- a°qudified° tator bequeathed stock specifically to one for life, and after- extent, wards left " this money" to B. in trust to pay certain portions of the stock to B. and others (not exhausting the stock), and gave " any surplus money" to B. : it was held, that B. took the undisposed-of stock (x).] So, in Hastings v. Hane (y) , where a testator, after bequeathing certain specific and pecuniary legacies, directed A. and B. to " divide equally any moneys which may remain to my account after payment of the aforesaid sums and my debts." It appeared that the testator had certain accounts with his bankers and other persons ; and Sir L. Shad- well, V.-C, held that the bequest was confined to the balances owing to the testator on these accounts, and did not comprise the general res- idue, observing that he was bound to give a meaning to the words " to my account." [And in Stooke v. Stooke (z) , where a testator gave a house and [(0 9 Beav. 324. See also Whateley « Spooner, 3 K. & J. 546. («) No reliance appears to have been placed by the court on this word. {x) Newman v. Newman, 26 Beav. 218.] (j) 6 Sim. 67. [(«) 35 Beav. 396. 767 *775 WHAT "WORDS "WILL COMPEISB 300?. of lawful money to his daughter E., and " the remainder of all his moneys," in whatever it maj' be — in bonds or consols or anj-thing else, to his wife. Sir J. Romilly held that the wife took all sums secured by anj' species of security, including a life poUcy, but not leaseholds, nor furniture, plate, &c. The M. R. said: " If a testator gives *775 matters which are not monej^, in the * ordinary acceptation of the term, and afterwards gives ' all other my monej's,' he applies that expression to things which are not strictly money, and conse- quentlj- things not of that character pass under the gift. Thus, if a testator gives ' Whiteacre and all the rest of his monej',' he means all his propertj', for he treats Whiteacre as money " (a) . So, anj' nar- rower term than ^^ money,'' e.g., "my money in the S. bonds " may comprehend more than would be signified by that expression alone, if it is given as the " remainder" of something else, no part of which was in the S. bonds (6).- The degree of comprehensiveness must in each case be decided by the context (c).] Other cases may be adduced, in which the general residue of a testa- tor's personal estate has been held to pass under very informal words. Informal As in Leigh ton v. Bailie (rf), where a testatrix made the fol- paJs^general" lo^i^g indorsement on one of her testamentar}- papers : " I residue. think there will be something left after funeral expenses, &c. paid, to give to W. B., now at school, towards equipping him to any profession." By another testamentary paper she bequeathed the sum of 500Z. to W. B. It was held by Sir J. Leach, M. R., that under the indorsed memorandum, "W. B. was the general residuary legatee.^ [Again, in Hodgkinson v. Barrow (e) , a testator having several chil- dren by different marriages, gave his real and personal estate to trus- tees upon trusts that did not exhaust the whole interest, but " confiding in them to fulfil any memorandum he might attach" to his will: bj' a codicil, after reciting the settlement made on his second marriage, " he directed that whatever sums might come to the children of that mar- riage, or the children of his former marriage, with the exception of such sums as might come in right of their respective mothers, that his trus- tees would take the whole of his real and personal property into their (t ) See also Montagu v. Earl of Sandwich, 33 Beav. 324 ; and per Lord Eldon, Gaskell v. Havman, 11 Ves. 504. The word "other," or the like, is the essential word, Collins v. Collins, L. R. 12 Eq. 455. (4) Patrick v. Yeatherd, 33 L. J. Ch. 286. "In S. bonds " might here be read as fcUsa demonstrnlio. (c) Langdale v. Whitfield, 4 K. & J. 43B.] (d) 3 Mv. & K. 267; [see Surtees v. Hopkinson, 18 L. J. Ch. 188; Wiggins v. Wiggins, 2 Sun. N. fe. 229; Duhamel v. Ardovin, 2 Ves. 162. (e) 2 Phill. 578.] 1 In case of the devise of a residuum to a be postponed until after the death of the life tenant for life with remainders, the presump- tenant. That would show a desiie that the tinn is thatthe testator intended that tlie whole life tenant should have the specific enjoy- residue should at his death be converted into ment of the property itsflf. lb. ; Calhoun v. monev and enjoyed, after payment of claims, Fnrgeson, 3 Kich. Eq. 160; Glover v. Hearst, according to the terms of limitation, as a fund. 10 Rich. Eq. 329. See also Finlev v. Hunter, Brooks V. Brooks, 12 S. Car. 422, 444. But this 3 Strob. Eq. 78 ; Robertson v. CoiUer, 1 Hill, presumption would tje rebutted by the ex- Ch. 370. press-iun of an intention that the sale should 768 THE GENEEAL PEKSONAL ESTATE. *776 consideration, and have an estimate made " — " and his will was to divide to every child its due share and proportion, also taking into con- sideration " mone^-s received by the children by way of advance- ment. Lord Cottenham held, reversing the decision of *the *776 V.-C, that the reversionary interest in the real and personal property passed by the codicil. And in Re Bassett's Estate (/), where legacies were given, and the will then went on, " after these legacies and my funeral expenses are paid, I leave to my sister A. without any power or control of her hus- band ; in case of her death to be equally divided amongst her children or grandchildren : " it was held that this was a good gift of the residue. ]• i (/) L. R. 14Eq. 54. VOL. I. 49 769 *T78 FOEOE AND EXTENT OF *777 * CHAPTER XXIV. FOECE AND EXTENT OF PAETICULAR WOEDS OF DESCEIPTION. The most comprehensive words of description applicable to real es- „_ tate are tenements and hereditaments ; as they include every and heredita- species of realty, as well corporeal as incorporeal (a).^ Sud^wha". '^^^ ^"^'^ " ^*"*^^ " " ^® "°'' equally extensive ; for though, generally, it includes as well the surface of the ground as "■^ ^' every thing that is on and under it, as houses and other buildings (J) , mines, &e., j-et it seems that the term will not, propria vigore, comprehend incorporeal hereditaments, as advowsons, tithes, &c., unless there is no other real estate to satisfy the words of the de- vise (a circumstance, however, which in regard to wills made or rejjub- lished since 1837, would be immaterial). Thus, it seems that if a man devised all his lands in A. and he has no other real estate there than tithes, they will pass (c). So if he devises a certain manor, and has only a fee farm rent issuing out of it, such rent will pass {d) . But though a devise of lands will, unaided by the context, carry Whether it ^""*«* («) ) Of rather the land on which the houses are built ; includes j'ct of course this does not hold where the testator evidently ouses. ^ggg ^jjg j.gj,jjj jj^ contradistinction to house. As where (/) A. having a messuage at L. and a messuage and lands at W. devised his house at L. with all other his lands, meadows, pas- tures, with their appurtenances, lying in W., the house at W. was held not to pass. The observation is equalty applicable to other words of description, any of which may be diverted from their ordinary signification, by being placed in contrast or opposition to others {g) . f 778 * The word premises properly denotes that which is before men- r(n.) Co. Lit. 6 a, 19 b, 20 a, 154 a-l (i) Ewer v. Heydon, Moore, 369, pi. 491. (c) See Ritch v. Sanders, Styles, 261. Id) Inchley i). Robinson, 2 Leon. 41, T>1. 57. [That a rent-charge or rent-seek will not gerierallv pas's bv devise of " lands," see West v. Lawday, 11 H. L. Ca. 375, pei- cur. (e) Co. Lit. 4"a.l ( f) Hevdon's Will, 2 And. 123; Cro. El. 476, 658 (Ewer v. Heydon). (g) See Hockley v. Mawbey, 1 Ves. Jr. 143; and Doe d. Ryall v. Bell, 8 T. R. 579, sUted post. 1 See 3 Kent, Com. 401. 2 lb. 770 PAETICULAK WORDS OF DESCRIPTION. *779 tioned, and in this view, its comprehensiveness is of course "Premises." measured by that of the expression to which it refers (A). Thus (i), where a testator devised a certain messuage and the furniture in it to A. for life, and after A. 's decease, gave the said messuage and 'prem- ises toB., the latter devise was held to carry the furniture as well as the messuage to B., on the ground that the word premises included all that went before. [But the word is vulgarly used, without reference to what is before mentioned, in the general sense of houses, land and the like ; and it was said by "Wilde, C. J. (i), that a gift of premises at A. would pass land there.] The word messuage has been variouslj' construed ; some- "Messuage" times a greater and sometimes a less degree of comprehen- includes cur- siveness having been attributed to it. dent and In an early case {I) it is laid down, that the grant of a orchard, messuage did not include a garden, but was confined to the house, " and the circuit thereof," and it was thought that the words " messuage or tenement" must receive the same construction, the word "tenement" being in such case used as s3'nonymous with messuage ; it was said, however, that it would have been otherwise if the expression had been messuage and tenement : indeed, one of the judges (Weston) expressed an opinion, that a garden would pass by the name of a messuage or tenement, if they had been held together ; [and in Garden v. Tuck (m) , a devise of a messuage was held to include the garden as well as the cur- tilage (ra), the garden being, as was said, as well for necessity as pleasure. So, in Smith v. Martin (o), it was held that a * garden *779 might be said to be parcel of a house, and bj' that name would pass in a convej-ance.] {h) Doe d. Biddulph v. Meakin, 1 East, 4B6. This doctrine was advanced in the judgment, and is indeed unquestionable ; but the case did not turn precisely on the question. A. devised a messuage or tenement, lands, buildings and premises, then in his own possession, and all other his real estate whatsoever, to his wife for lite. And after her decease, he devised the said messuage or tenements, buildings, lauds arid premises, to his son W. in fee. The question was, whether the devise to W. included all that was given to the wife, or only the premises in his own occupation ; and it was held, that it included all. The point, therefore, was not so much, whether the word "premises " included the whole antecedent subject, as whether the testator, having used precisely the same words as those by which he had described the prop- erty in his own occupation, was not to be understood to mean to confine the devise in question to that property. If the devise were not so restrained, there were other words sufficient to carry the reversion in dispute, without calling in aid the vford premises. (i) Sandford v. Irbv, [4 L. J. Ch. O. S". 23,] cor. Lord Gifford, M. R. ; [see Doe d. Bailey V. Sloggett, 5 Exch. 107. (Ic) Doe d. Heming v. Willetts, 7 C. B. 709; and see Ross v. Veal, 1 Jur.N. S. 751; Leth- bridffe v. Lethbridge, .3 D. F. & J. 523; Hibon v. Hibon, 32 L. J. Ch. 374, 9 Jur. N. S. 511.] (0 Moore, 24, pi. 82, [Dal. 29. (m) Cro. El. 89, 3 Leon, 214, pi. 283 (Chard v. Tuck). (n) As to what is a curtilage, see Marson ». London, Chatham and Dover Rail. Co., L. R. 6 Eq. 101. (o) 2 Saund. 400; see also Hill v. Grange, Plowd. 170 a; Bettisworth's Case, 2 Rep. 32 a. It has been held that "house " in s. 92 of the L. C. Act includes all that would pass by the f rant of a "house" — includes therefore a garden, though partly used for trade purposes, alter V. Metropolitan Rail. Co., L. R. 9 Eq. 432 (nursery garden), but not if wholly so used, Falkner v. Somerset and Dorset Rail. Co., L. R. 16 Eq . 458 (market garden). See also Grosve- nor V. Hampstead Junction Rail. Co., 1 De G. & J. 446; Fergusson v. Brighton Bail. Co., 33 Beav. 105, aff. 33 L. J. Ch. 29 ; Steele v. Midland Rail. Co., L. R. 1 Ch. 276 ; Richards v. nor V. 33 Be; Swansea Improvement Com., 9 Ch. D. 425. 771 *780 FORCE AJSB EXTENT OP ' In Heam v. Allen (p), two acres of land [occupied with the mes- suage, but distant four miles from it,] were held not to pass unds-r a devise of a messuage cum pertinentiis.' On the other hand, in Gulliver d. Jefferies v. Poyntz(9), two closes of meadow and six acres of arable land were held to pass under a devise of " three, messuages, with all houses, barns, stables, stalls, &c. , that stand upon or belong to the said messuages." The property had, it seems, been conveyed to the testa- tor by the description of " a messuage or tenement with the appurte- nances ; " but it is clear, that extrinsic evidence of this nature was inad- missible to enlarge the established import of the words of the devise {r). The influence which this circumstance appears to have had in the deter- miuation certainly weakens its-iauthoritj', and it is probable that the same construction would not now be adbpted. At this daj', indeed, the distinction suggested in the early cases (s) between messuage and house, in regard to the greater comprehensiveness of the former, is not „„ to be relied on (t) :^ and it is clear, that even the word messuage would not now be held to carry land bej'ond a homestead or orchard, though contiguous to, or enjoyed with it (m). In Doe d. Clements v. CoUins {v), it was held, that under a devise „„ . of " the house I live in and garden,"" stables and a j'ard, live in and which were in ia ring fence that enclosed the whole, and a garden." ^^^^ ^^^^ which was On the opposite side of the road near the house, and both which were in the testator's own occupation, were in- cluded. The coal pen was used in his trade, as well as for the *780 * purposes of his familj'. It was admitted, that the question as to the coal pen was doubtful ; but, considering that it was in the testator's own occupation, was used by him partlj'- for domestic pur- poses, and was annexed to no other tenement, the court thought it passed.' There is indeed a case («;), in which a devise of, the testator's house (jo) Cro. Car. 57 ; S. C. Litt. Eep. 5 nom. Kene «. AHen. (g) 2 W. Bl. 726, 3 VFils. 141. (r) Doe d. Brown v. Brown, 11 East, 441, ante, p. 417. («) Tliomas v. Lane, 2 Cli. Ca. 26, Keilw. 57, where it is said that messuage extends to the curtilage, though not to the garden ; but that damns comprises onlv buildings. (t) Sec Mr. Justice Ashurst's judgment in Doe d. Clements v. Collins, 2 T. E. 502 ; and Co. Lit. 5 b, where Lord Coke says, " By the grant of a messuage or house, messuagium^ the orchard, garden and curtilage do pass; and so an acre or more may pass by the name of a house." See also King v. Wvcombe Rail. Co., 28 Beav. 104.] lu) See Roe d. Walfccr ». IValker, 3 B. & P. 375; also Shepp. Touchst. 94. («) 2 T. K. 498 ; [Ashurst, J., seems to treat the case as if the word "appurtenances " had been in the will, ib. p. 502. See observations on the case by Turner, L. J., L. R. 1 Ch. 291.1 (x) Blaekbom v. Edgley, 1 P. W. 600, 2 Eq. Ca. Ab. 324, pi. 27. 1 Beniiet v. Bittle, 4 Eawle, 339 j Rogers pied by me." It was held that M. took none V. Smith, 4 Penn. St. 93. of the land or buildings occupied by tenants 2 A testatrix Who owned a house in S., at the date of the will. Brown v. Saltonstall, with a yard and a garden, and also owned 3 Met, 423. several lots of land adjacent to the house and s The word "house" in awill has been garden, with buildings on them, which were held synonymous with "messuage," and to eld by tenants, made this devise: "I give , convey all within the curtilage, without the unto li. my house and land in S., now oecu- words cum;pertiBen(t4«s superadded. Beunet 772 PAETICULAE WOEDS OF DESCEIPTION. *78l at C. was held to include land ; on the ground, it should Case in which seem, that the devisee was directed to be at the chargfe of ^'ewTo^i'n^*' housekeeping, servants' wages and coach-horses, to the elude land, number that the testator had maintained ; and it appearing that he had a small piece of land, which he had employed to raise hay and corn for the house, and which was ploughed with the coach-horses (j?) . Th6 court, therefore, thought that as everything was to be carried on as it was in his lifetime, and the same style of living observed, the lands, the profits whereof had been used to-be applied to the maintenance of the house, should continue to be so applied. However strong these circumstances may be as affording conjecture^ they seem not to amount to that species of evidence on which to found a judicial exposition of the testator's intention (2). ["House" will include whatever is necessary for the convenient occupation of it, but not all that the occupier finds it convenient to occupy with it (a). But where a testator directed his trustees to erect a mansion house, and suitable offices fit for the residence of the owner of his Direction to estates (which were worth about 15,000?. per annum), on ^"^'^"ouse some convenient spot, the question being whether this will held to in- authorized the formation of a garden and pleasure grounds ; tion of'suTt> ' Sir L. Shadwell, V.-C, said that, knowing something, as he abiegroundsi did, of what the residence of a country gentleman ought to be, it would be the grossest of all possible absurdities if it were to be held that a bare mansion house and offices, erected out of a muddj' field, should be con- sidered a fit residence for the owner of such an estate. And he thought there must of necessity be accommodation in the way of pleasure grounds, and a pretty approach in which every English eye took a delight (6). So much for the comprehensiveness of the word house. The con- verse question is, what kind of tenement will satisfy "House," this and * other similar terms. In Doe d. Hubbard *781 ^hat"*^''" V. Hubbard (c) , it was held, that the word "cottage " amounts to. (defined by Lord Coke (d) to be a little house without land to it) was satisfied by a tenement partitioned oflf from a larger cottage and having a separate entrance, though not including an upper room under the same roof.] It has been sometimes a question what will pass under the denomina- tion of appurtenances to a messuage or house. [Strictly "Appurte- speaking, land cannot be appurtenant to a house (e) or to nances." («) The court assumed that there was a direction that the horses should continue to plough tjie lands ; but the will, as stated in the report, contains no such clause. (z) See 2 B. & P. 308. [(a) Steele v. Midland Rail. Co., L. E. 1 Ch. 275. (h) Lombe v. Stoughton, 18 L. J. Ch. 400. (c) 15 Q. B. 227. (rf) Co. Lit. 56 b. " A cottage is a small dwelling-house," Doe v. Sotheron, 2 B. & Ad. 638. (e) Plowd. 169 a, 170. A fortiori if one be freehold, the other copj'hold, Yates v. Cliucard, Cro. El. 704. V. Bittle, 4 Rawle, 339 ; Rogers v. Smith, 4 the factory stood, and the water privilege Barr, 93. Where land was conveyed, by a appurtenant thereto, did not pass by the deed, deed, with all the buildings standing thereon, Allen v. Scott, 21 Pick. 25. except the brick factory, the laud on which 773 *782 POECB AND EXTENT OF other land(/).^ But in Boocher v. Samford (ji) , where a testator devised " the tenement with the appurtenances in which H. B. dwelleth in Ebley,'' it was held, that lands that had been held at one rent with the house sixty j-ears passed, though not strictly appurtenant.] ^ And ■in Doe d. Lempriere v. Martin (A), a devise of the testator's copy- hold messuage, with all outhouses, gardens, and appurtenances to the same belonging, situate at F. , and then in his own possession, was held to include a small piece of land, being the site of several cottages pulled down by the testator, who had laid the ground open to his court-3-ard, and then occupied it with the house, though his estate in the two was different. But in a subsequent case (i) , a direction by the testator that his Gardens &c. Steward should eijjoy his mansion house with the appurte- held to pass nances, for one year after his death, was held to extend to nances" to Orchards, but not to fifty or sixty acres of land„ which the a house. testator had kept in his own hands with the house. And this construction was corroborated by the fact of there being, in another part of the same will, a devise of this property "with the lands and grounds," also "with the appurtenances," showing that the testator had the distinction in view. E^tc, C. J., said if this had not been so, and if they had found a house situated in a park, which had been always occupied with it, being, as it were, an integral part of the thing, it might have proved the intention of the testator to pass the whole together. This would be carrying the construction of the word very far; [and seems to have been put onlj' for the sake of argument.] *782 * It is not to be doubted, that whatever is necessarj- to the com- modious enjoyment of the house will in general pass under the word " appurtenances" (k) ; a fortiori, if then actually enjoyed with it hy the person in whose occupation the house is described to be ; though in some of the cases more weight has been given to this circumstance than it seems fairly entitled to. It is not likely that at this day the word would be carried bej^ond its ordinary acceptation.' [It has a defi- nite meaning, and though it may be enlarged by the context, the bur- den of proof lies on those who so contend (I) . (f) Co. Lit. 121 b; 8 B. & Cr. 141 ; 6 Bing. 161. (g) Cro. El. 113.] (h) 2 W. BI. 1148: but see Heara ». Allen, Cro. Car. 57, 708. (i) Buck d. Whalley v. Nurton, 1 B. & P. 53; see also Harwood v. Higham, Godb. 40. (i) See Nicholas v. Chamberlain. Cro. Jac. 121 ; Hobson «. Blackburn, 1 My. & K. 571 ; [for this purpose, however, the word is generally unnecessary, Steele v. Midland Eail. Co., L. R. 1 Ch. 275. (I) See ace. Evans v. Angell, 26 Beav. 202; Li.ste.r v. Pickford, 34 Beav. 576 (in both of which "appurtenances" was construed strictly); Smith v. Kidgway, L. E. 1 Ex. 46, 331; also per Parke, B., Pheysey ». Vicary, 16 M. &"W. 494. 1 Lansing D.Wiswall, 5 Denio, 213. As to 2 Otis ». Smith, 9 Pick. 293. See Leonard the effect of a devise of a mill site, and what d. White, 7 Mass. 6 ; Eliot v. Carter, 12 Pick. passes witli it, see Matter of Water Communi- 436, 441. cation, 4 Edw. Ch. 645; Lee v. Woodward, 2 8 See Otis r. Smith. 9 Pick. 295: Jackson Tavlor, 100;Nitzell«. Paschall, 3 Rawle, 76; v. White, 8 Johns. 89; Eliot «. Carter, 12 Blaine v. Chambers, 1 Serg. & R. 169. Pick. 436, 441. 774 PAETICTJLAR WORDS OF DESCEIPTIOK. *783 There is, however, a difference between the devise of a house and the appurtenances, and of a house with the lands appertaining "Lands thereto. It is clear, that by the latter expression some lands joK^'a hou"f are intended, and therefore the primarj' sense of the word &c. appertaining is excluded. Thus in Hill v. Grange (m), it was held that the demise of a messtiage "with all lands appertaining thereto," com- prised all lands usually occupied with or lying near to the messuage ; for when " appertaining" was placed with the said other words, it could not be taken in any other sense, and therefore it should there be taken, not according to the true definition of it, because that did not stand with the matter, but in such sense as the party intended it. And in Hearn v. Allen (m), the court, while holding that the lands there in dis- pute were not included by the term " cum pertinentiis," said it would have been otherwise if it had been " cum terris pertinentibus."~\ The construction of the words "thereunto belonging," "Thereunto which are not words of art (o), has often come under dis- belonging." cussion. Thus, in Ongley t>. Chambers (p), where a testator devised the * rectory or parsonage of Minster, with the messuages, lands, *783 tenements, tithes, hereditaments and all and singular other the premises thereunto belonging, with the appurtenances ; it was held that, by the effect of these words, the devise operated on certain lands which had been purchased by the owners of the rectory between the years 1607 and 1632, and had been since uninterruptedly occupied with it, and had been in various leases described as belonging to the rectory ; for though not, strictly speaking, appurtenant to the rectory, they had become, by unity of title and concurrent occupation, joined to the rec- tory, and might be taken in popular acceptation as belonging thereto. Lord Gifford, C. J., referred to several old cases and text books in which it was laid down that lands, which had been occupied with a house for ten or twelve or even five or six years, might pass as parcel of or as belonging to such house. So, in Doe d. Gore v. Langton {q), where a testa);or, in 1801, devised all his " manor or reputed manor of Barrow Minehin, in the Devise of countj'' of Sornerset, together with the mansion-house, called manor and BaiTow Court, thereto belonging, and the park ; and also all „„to beloug- and singular his freehold messuages, lands, tenements and '»s- (m) Plowd. iro a. (n) Cro. Car. 57, ante, p. 779; see also Genningss. Lake, Cro. Car. 168; Highamu. Baker, Cro. El. 16, per Anderson, C. J. (o) Per Pollock, C. B., Maitland «. Mackinnon, 1 H. & C. 607.] (p) 8 J. B. Moo. 665, 1 Bing. 483 ; see also Doe v. Holtom, 5 Nev. & M. 391, 4 Ad. & Ell. 76; [Bodenham «. Pritchard, 1 B. & Cr. 350 ("lands thereto belonging as now enjoj-ed by me "); with which cf. Polden «. Bastard, L. R. 1 Q. B. 156, where a discontinuous easement over other property of the testator was held not to pass by devise of a cottage as now in the occupation of A. In Marshall v. Hopkins, 15 East, 309, a house and nineteen acres of land, all held bv the testator under one title, and which at a former period of his ownership had been, but at the date of the will were not, in one and the same occupation, were held to pass by a devise of "all that my messuage, dwelling-house or tenement, with all lands, lieredita- ments and appurtenances thereto belonging."] (S) 2 B. & Ad. 680. 775 *784 FOECE AND EXTENT OF hereditaments thereunto belonging, situate in the parish of Barrow Min- chin and Barrow Gurnei^," to certain usesi The testator gave to his executors all arrears of rent which should be due from any tenant or tenants of Ms estate in the parish of Barrow, upon trust :to lay out the same . in, repairing the farm-houses and buildings appurtenant thereto, and in draining the lands. The testator also charged two small annui- ties on his estate, at Barrow. The question was, whether the devise comprised a farm, which had been purchased by the testator in 1800, and which was situate in the parish of Barrow Minchin and Barrow Gurney, and adjoined to and was in some parts intermixed with the an- cient Barrow estate. Lord Tenterden, C. J., considered that the words "thereunto belonging" were to be referred to the manor, and not to the park. These words are, he observed^ in common speech, of differ- ent import, according, to the subject of which they are spoken. If we speak of a farm or a field with reference to the ownership, we say it belongs to such a one, meaning thereby that it is the property of that person (r) ; if with reference to any estate of a particular name, *784 we say it belongs to such an estate, *as to the Britton Ferry estate, meaning that it is parcel of that estate ; if with reference to its locality, we saj^ it belongs to such a parish or township, meaning that it is situa,te in and a part of that parish or township ; and so with reference to a manor, we say it belongs to such a manor, meaning that it is situate in or part of that manor, in the ordinary and popular sense of the word " part," and not in the strictly legal sense, as part of the demesnes of the manor, or as holden of the manor or of the lord thereof. He adverted to the fact (which had been proved in evidence), that the gamekeeper of the manor had, both before and after the purchase of the lands in question, been in the habit of shooting over them. Having regard to tliis circumstance (which he considered important, as showing that the lands belonged to the manor in the popular sense to which he had alluded), and having regard also to the circumstance, that the be- quest of the rents in arrear to be expended in repairing and improving any part of the estate, and the charge of the annuities, would clearly comprise the lauds in question (which the testator could not intend to be united to the rest of the property for some purposes, and not for all), the court came to the conclusion that the farm, in question passed. [In Josh V. Josh (s), the question was what passed hj the description "Thereto of " the piece of land adjoining" a house and premises pre- adjpining." viously described ; whether it comprised several contiguous fields, each one situated beyond the other, and forming with the house and premises the whole of the testator's real property, or was limited to the single field next to the house and premises : and it was held to comprise the whole. Cockburn, C. J., observed that the testator did [()•) In Kennedy ». Keily, 28 Beav. 223, a bequest of tlielease of a house with all build- ings belonghigto me was held to pass stables occupied with the house bv the testator though under a different title. (s) 5" C. li. N. S. 454. 776 PAETICTJLAK "WOKDS OF DESCRIPTION. *785 not say. the piece of my land, but simply the piece of land ; and that the words "thereto adjoining" were as consistent with the larger construc- tion as with the other ; for the whole of the land was in the strictest sense adjoining, for It was all contiguous.] The word farm ' is construed according to its obvious meaning [as including houses, lands and tenements (<), of every ten- "Farm." ure(?i). In determining what property is comprehended in the terms used to describe the subject of devise, frequent recourse is had to p^j^^ demon- two rules of construction, one of which is expressed by the stratio rum maxim " Falsa demonstratio non nocet cum de corpore con- """^^ ' Stat," the other by the maxim " Non accipi debent verba in demonstra- tionem falsam quoe competunt in limitationem veram." *The first rule means that where the description is made up of *785 more than one part, and one part is true, but the other false, there, if the part which, is true describe the subject with suf- Meaning of flcient legal certaintj^ the untrue part will be rejected and *-^^ ■'"'<'• wUl not vitiate the devise. "The characteristic of cases within the rule is, that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only" (a;). Devise of Thus, in Day v. Trig. (y), where one devised " all his free- houses''i'n^A. hold houses in Aldersgate-street, London," having in fact street, Lon- only leasehold houses there, it was held that the word " free- .j^ork free- hold" should rather be rejected than the will be wholly void, hold rejected, and that the leasehold houses should pass. So, in Blague v. Gold (z), where a testator, having two houses in A., one called'" The Corner House," in the tenure of B. and N., "House the other adjoining thereto and in the tenure of H., devised '^^"^'^ '*^ , •' " ' corner'house' " his house called ' The Corner House m A., in the tenure in A., in the of B. and H. : " the testator having no house in the joint xhe tenlr^"" tenure of B. and H., it was held that the description by ten- rejected. ure was mere surplusage and might be rejected. Again, in Doe d. Dunning v. Lord Cranstoun (a), where a testator («) Co. Lit. 5 a. (m) Doe d. Belasyse v. Lucan, 9 East, 448. (x) Per Alderson, B., Morrell v. Fisher, 4.Exch. 591j see also Wigram, Wills, pi. 67. (J) 1 P. W. 286; and see Cox v. Bennett, L. E. 6 Eq. 422. (2) Cro. Car. 447, 473. (a) 7 M. & Wels. 1 ; see also Welhy ». Welby, 2 V. & B. 187; Denn d. Wilking v. Kemevs, 9 East, 366; Vicars Choral of Lichfield v. Eyres, SirW. Jo. 435, Cro. Car. 546, 2 Roll. Ab. 52, pi. 26. So in England v. Downs, 2 Bear. 523, 536, where there was an assignment of all the household goods, and all other the effects of the assignor, the particulars whereof were stated to be set forth in an inventory thereunto annexed, and there was in fact no inventory, it was held, the deed was not void for want of it, and that the chattels might be ascertained aliunde. See also Whateley v. Spooner, 3 K. & J. 542. 1 "The word 'farm' is one of large import meadow, pasture, wood, common, &c. In both in England and in America, though, this country, a man is generally the owner of perhaps, somewhat different in the two coun- his farm, and it is a parcel of land used, oc- tries. In the former, it commonly implies cupied, managed, and controlled by one pro- estate leased; but as to the term, it is said to prietor." Shaw, C. J., in Aldrich o. Gaskill, be a collective word, consisting of' divers 10 Gush. 155. See note 1, next page, things gathered into one, as a messuage, land, 777 *786 FOECB AND EXTENT OP Leaseholds recited that one part of his freehold lands, namely, those Ts'SoM* l^n'^s ^'lich he held in the parishes of A., B. and C, were held to pass, held for a considerable period of time by his father's ances- tors in the male line, bearing the name and arms of D., as hereditary proprietors of the same; he therefore devised "the freehold lands, which he held in the three parishes aforesaid," to M. The testator had lands in each of the three parishes named, answering to the given de- scription in every respect except that in the parishes of B. and C. there were leaseholds only. Upon the principle stated above, the Court of Exchequer held that the leaseholds passed by the will. In the application, however, of the principle contained in this rule, the courts have not confined themselves to cases which are strictly Extension of within its terms. It is often found, on a disclosure t erue. *786 of the * facts of the case, that of two particulars of Question which the description is composed, each separately of the d^e* flnds somc Corresponding subject, but] the one is applicable scription are |q ^ larger portion of the testator's property than the other, not C0~6Xt6Q~ o i I. I. ^ ■ ' sive. thereby raising the question whether the more limited term be restrictive of the other, [or expressive only of a suggestion or aflflrma- tion. It is a mere question of construction ; for it is clear that, if the answer be that the more limited term is merely suggestive or aflfirma- tive, it will be disregarded in deciding upon the quantity to be consid- ered as covered by the description. Now if the testator describe the subject of the devise as an entire Limited term subject, and in terms of sufficient certainty as his /arm called rejected ^ A., or his house in a particular place, or his B. estate, or the erty is de- like, then, although he adds a clause to the effect that the enUre sub-™ farm, house or estate is in the occupation of a particular ten- ject; ant, or is situate in a particular count}', and it turns out that such clause is true only of a part of the farm, or house, or estate, the entire subject may well pass, unrestricted by the additional clause, if such a construction be in accordance with the general intent of the testator (J).]^ Thus in Goodtitle d. Eadford v. Southern (c), where a testator devised (4) See per Lord Ellenborough, Roe d. ConoHv v. Vernon, 5 East, 80.] (c) 1 M. & Sel. 299; see also Paul v. Paul, 2 fiurr. 1089, 1 W. Bl. 255; [Whitfield ii. Lang- dale, 1 Ch. D. 61, as to "Hookland " and " Ticlceridge." In the same case it was held that a devise of a "messuage and lands called Clajjgetts and Sievelands" carried the wliole of Claggetts farm, upon evidence that this farm included Claggetts and Sievelands aiid a good deal more, sed qu. Qu. also as to the exclusion of the "wood from Tickeridge.] 1 Hammond ». Ridgely, 5 Harr. & J. 245; on which the testator lived, although the two Dorsey v. Hammond, 1 llarr. & J. 190. Two exceeded one hundred and thirty acres, and separa'te tracts of land owned by the testator, although tliere were soine buildings on the and occupied together by him, were held to said tract of land; and portions of it, as of pass under a devise of 'his plantation in Brad- other parts of the farm, were occasionally let shaw V. Ellis, 2 Dev. & B. Eq. 20. See to tenants, for years or at will, and rent re- Hampton V. Cowles, 4 Dev. & B. 16. A de- ceived from them ; the evidence showing that •vise of '"the farm whereon I now live, con- said tract was once a part of the testator's farm, sisting of about one hundred and thirty acres, and not showing that it had ever been sev- with all the buildings thereon,V may pass a ered from it. Aldrioh v. Gaskill, 10 Cush. tract of land not immediately adjacent to that 155. 778 PAETICULAR WOEDS OF DESCKIPTION. *787 all that his farm, called Trogues Farm, situate in the parish —as "my of D., now in the occupation of A. G. The question was, **""■" whether two closes, part of Trogiies Farm, but not in the occupation of A. C, passed by this devise. It was held that the devise compre- hended the whole of Trogues Farm, which was a plain and certain description, and was not affected by the defective description of the occupation. So, in Down v. Down {d), where A. devised all his farm and lands, called Colt's-foot Farm, situate in or near the parishes of D., W. and T., now on lease to Mary Field, at the yearly rent of IbQl. It was held that a close of seven acres, called William-spring, which was a part of CoU'sfoot Farm, but was excepted out of Mary Field's lease, as well as out of a subsequent lease granted by the testator to another per- son, passed (e)' the court * being of opinion that it was the inten- *787 tion of the testator to pass the whole of the farm, and not that only which was in the occupation of Mary Field.^ But though a devise of " my farm called A. in the occupation of B." is not, under these circumstances, limited to that part of the Distinction farm which is in the occupation of B., yet perhaps it does where the not follow that the same construction would be given to a the occu- devise of " all my farm in the occupation of B. called A." ^edeTthlt'to In this case, the reference to the occupancy forms the pri- the name (?). mary substantive part of the description, and the name is merely an addition. Thus, in the early case of Woodden v. Osbourn (/), where A., having lands called Bayes Lands, which extended into two vills, Gokefield and Cranfield, devised all his lands in Gokefield called Hayes Lands, to J. S., it seems to have been held that the part which was in Cranfield did not pass. Unless a reference to locality be more restric- tive than a reference to occupation {g) , this case seems to warrant the distinction suggested. [It is to be observed, however, that Popham, C. J., and Gawdy and Yelverton, JJ., went on to say, that if the words had been ' ' all his lands called Hayes Lands in Gokefield " (thus reversing the order), nothing had passed but the land in Gokefield (h). (d) 1 J. B. Moo. 80, 7 Taunt. 343. (e) The fann consisted of about 172 acres. (/) Cro. El. 674; S. C. nom. Tuttesliam ». Roberts, Cro. Jac. 22; and Lord Ellenborough's iudp:ment in Roe d. Conolly v. Vernon, 5 East, 78. The principal point in the case in Croke seems to have been whether the Hayes Lands, being so restricted in the devise to J. S., was subject to the same restriction in a subsequent devise of it as Hayes Lands generally ; and the decision, of course, was in the affirmative. As to words of description being narrowed by the effect of the general context, see Doe d. Harris v. Greathed, 8 East, 91. (,(/) See Doe d. Beach v. Earl of Jersey, 1 B. & Aid. 550, stated infra. [(A) In Stukeley v. Butler, Hob. 17i, it is said, "It is vain to imagine one part before another ; for though words can neither be written nor spoken at once, yet the mind of the author comprehends them at once, which gives vitam et modum to the sentence ; " see also Doe V. Galloway, 5 B. & Ad. 60. 1 Undera devise of "a lot of about one acre acres, in Bear i: Bear, 13 Penn. St. 529. See of land, be it more or less, adjoining land of B. M'Clanahan v. Kennedy, IJ. J. Marsh. 332. and lands of W," it was held that the devisee 2 See A'ldrich v. Gaskill, 10 Gush. 155. took the whole lot, although it was nearly ten 779 *788 POECB AND EXTENT OF And, on the other hand,.a,distinction for this purpose between a. refer- ence to locality; and a reference to occupation is discountenanced l?y the, case of Doe d. Beach v. Earl of Jersey {%). Next, with regard to the devise of a. "house," it was decided in Where sub-' Chamberlaine w. Turner (A), where a testator devised " the, ject;of devjae house -or, tenement wherein W. N. dwelt, called the White, "Thou^se"^ Swan, in Old-street," and it appeared that W. N. occupied, followed by onlyithe entry, or alley- of the, said house and three cable to^part *788 upper rooms in the * same, divers other persons occu-. °°'y- pying other parts, that, the whole house passed (/). An instance of the similar use and effect of the word "estate" is S, presented by Doe di Beach w. Earl of Jersej' (m), where A. " ■ ' devised all that hst^ ':'■ Britton Ferry estate, with all the, manors, advowsons, messuages, buildings, lands, tenements and hered- itaments thereunto :belonging, and of which the same consists." In a subsequent part of the will, after describing another estate, she added,> "which, as well as my B. F^ estate, is situate, lying and being in the countyof Glamorgan." .It. turned out that part of the B. F. estate was situate in the: county of Brecon ; but it was found by special ver- dict that the whole had been known by the name of the Britton Ferry estate for fifty years; before, the death of the testatrix ; and it was held that the whole passed (re). The same principle., is illustrated by Hardwick v. Hardwick (o), "Messuagfes -where the devise was of " the messuages, lands and prem- caUea™" i®^s c&W^A The Dyffrydd, situate in the parish of K., now D-" in the occupation of E. ; " although part of " The Dyffrydd" was not in the parish of K., and other part was not in the occupation of E., yet the whole was held to pass : and by Travers v. Blundell (p), where a testator, having had under his father's wiU power to appoint ''AH that "all that part of R.'s estate purchased by me, situate at P., scribea'i/the Consisting of" six specified closes, appointed " all that part will of A." of the property comprised in mj^ late father's will as is therein, described as that part of R.'s estate purchased bj- my father, situate at P., consisting of," and then specifying four onty of the six closes ; it was held that all six were well appointed. ■ The appointment was of a certain coj^jM* or subject as described by the father's will, and (i) 1 B. & Aid. 550, 3 B. & Cr. 870. (k) Cro. Car. 129. The court seems to have treated the case as if the words had been " in the occupation of W. N.,", which might perhaps be restrictive, where the terms actually used would not ; see per Lord Hardwicke, 3 Atk. 9; see also Doe d. Hubbard v. Hubbard, 15 Q. B'. 227 ; per Erie, J., and Lord Campbell, C. J. ■ (0 See also Re Midland Rail. Co., 34 Beav. 525, stated ante, p. 33i; Hibon v. Hibou, 32 L. J. Ch. 374, 9 Jur. N. S. 511 (" house and premises "). (m) 1 B. & Aid. 550.] (n) Observe the agreement between the principle of these cases and that of those which are cited in connection with the subject of uncertainty, as illustrative of the rule that a/o&e ad- 1 ditioa does not vitiate a devise ; ; see also Doe v. Nickless, 4 Jur. 660. [(o) L. R. 16 Eq. 168, ejcplaining Pedley v. Dodds, L. R. 2 Eq. 819. Xp) 6 Chi D. 436. . See also Cunningham v. Butler, 3 Gif. 37 ; and cf. West o. Lawdav. 11 if. L. Ca. 375. ■" 780 PAETICTTLAK WORDS OE DESCEaPTIOK. *789 representing; that description- to be in certain .specified terms ; one of the terms specified differed from, the corresponding term of the descrip- tion actually contained in the father's will, and, not being needed for the ascertainment of the subject, was rejected as /ci&a demonstratio. A different construction, however, prevailed in Hall .Different V. Fisher(9), * where a testator, by will dated 1841^ *789 ,?™Haiit'°" devised ''all that freehold farm called. .the Wick Fisher. Farm, in Headington, containing 200 acres or thereabouts j occupied by William Eeley as tenant thereof to me." It appeared- that the person from whom the testator claimed the Wick Farm, which was all free- hold, had sold a small portion of it; but had continued; to occupy it as part, of the Wick Farm, under; a demise from the purchasers,- and to treat it as such,' and that the testator had let the whole to W. Eeley. There was therefore a sufHcientLy, certain ' description, in, accordance with the testator's undoubted intention, and corresponding in every particular but the word freehold with the actual state of the propertj' ; but Sir J. K. Bruce, V.-C, said he could not view the case as one of falsa demonstratio; that if the, word "freehold" had been omitted,; the probability was, the leasehold in question would have been held to pass; but that there was a i subject here which properly answered the description given, in the will. This case goes, to show that words descriptive of tenure, and forming the primary part of the description, are more restrictive than those which describe locality or occupation. But the ease has been questioned (?•).] As a subsequent reference to th6 occupancy does not limit a devise of a farm bj- name to the lands so occupied,, it is clear that g ^ j , it would not, under such, circumstances,, enlarge a devise in reference to which the occupancy extended to lands not included in the does'SfotTx- name. Consequently, under a devise of "my Trogues tend dmae... Farm, in the occupation of A.," lands of another farm in the occupation of A. would unquestionably not pass ; and this hypothesis agrees with the principle of a class of decisions stated in the sequel (s) . [Parts of a description which, if the will contained no other, devise than that to which they belong, would be rejected as falsa Words not demonstratio, sometimes derive a restrictive force from an- S^u^red to other devise in the same will, with which thej- would other- prevent the . wise stand in contradiction. Thus, in Higham v. Baker {t) , conti-ad^ictofy where a testator devised his farm called Whiteacre, and the to another. lands to the same belonging, then in the tenure of W., to A., and devised his farm called Blackacre, and the lands to the same belonging, to B. ; and it appeared that there were 100 acres of land belonging to (?) 1 Coll. 47. See al.so Emuss v. Smith, 2 De G. & S. 722, stated ante, p. 328, n. (r) By I.ovd Selborne, L. R. 16 Eq. 177, who also (ib.) 'questions Stone v. Greening, 13 Sim. 390, which is shortly stated ante, p. 676, n.] («) See.Doe d. Tyrrell" ». Lyford, 4 M. & Sel. 550; [Hall v. Fisher, 1 Coll..47; Doe d. Ee- now I). Ashley, 10 Q,. B. 663. ". . (<) Cro. El. 16.] 781 *791 FORCE AND EXTENT OP Whiteacre, and no land belonging to Blackacre, but that the •790 * testator had let Whiteacre with 60 acres of the land belonging to it, and the remaining 40 acres with Blackacre : it was clear that only so much of the land belonging to "Whiteacre as was in the tenure of W. was devised to A. So in] Press v. Parker (m) , where a testator devised to A. his mes- suage in the parish of H., wherein he then lived, with the yard, back estate and premises thereunto belonging, part of which was in his (the testator's) own occupation, and other part whereof was in the occupation of C. and M. ; and he devised to B. his front messuage in K. street, in the parish of H. aforesaid, with the appurtenances, then in the occupa- tion of E., with a right of way to the yard adjoining, and the use of the pump, &c., in the yard. The question was whether a coal- vise passed cellar passed to A. or B. It was within the range of the all that was house devised to B., but was in the occupation of the tes- occupied by ' ^ the person tator, who had put up a partition between it and B.'s prem- descnbed. jg^g^ ^.j^g entrance being from his own house. It was held that the cellar, being in the testator's occupation, passed to A. ; the intention, it was thought, being manifest to give to A. whatever was so occupied. [But Best, C. J., said if the latter devise had stood alone, the words in the occupation of E. might have been deemed mere words of description.] In connection with the subject of the construction of words referring to occupancy, it may be here observed, that in Doe d. Templeman v. Martin (x), where a testator devised all his messuage, the Ark Cottage, gardens and lands at S., rented to Mrs. S., and others; and it was at- tempted to confine the devise to a particular property at S., forming a distinct purchase made by the testator, of which Mrs. S. was the princi- pal occupant ; the devise was held to comprise all the land situate at S., by whomsoever rented, including a considerable farm, in the occupa- tion of a tenant, not Mrs. S. ; the suggestion, that the testator could scarcely mean to describe a large property in such terms (omitting the name of the tenant) , not being allowed to prevail against the clear import of the words of the will. It is to be observed that in the foregoing cases where terms of occu- pancy [or locality] were not allowed by reason of their inapplicability to particular portions of the subject to exclude them from the devise, Limited term those portions bore but a small proportion to the whole, rejected [But in "Whitfield v. Langdale {y), an erroneous cablfto^iarge *791 Statement * of the acreage as being " by estima- proportion. tiou 80 acres, more or less," was not permitted to exclude any portion of the "farm" devised, although the real quantity («) 10 J. B. Moo. 158, 2 Bing. 456. \x) 4 B. & Ad. 770; [conf. Chester v. Chester, 3 P. W. 65, where an attempt was made to limit the sense of "elsewhere" by reference to previously specified places. (y) 1 Ch. D. 61. 782 PAETICXJLAE WORDS OF DESCRIPTION. *792 was 175 acres, and as to a small part of the disputed lands there was a mistake also made in the locality. But, secondly, if] the property is not described by a name compre- hending the whole (2) , a different rule seems to prevail : [for it is a well-settled canon of construction,] that where a property not given subiect is devised, and there are found two species of described as . • 11 1 .1 1. , ^ whole IS property, the one technically and precisely corresponding to coniined to the description in the devise, and the other not so completely ^'itL!!!^?,'^''''^ answering thereto, the latter will be excluded ; though, had there been no other property on which the devise could have operated, it might have been held to comprise the less appropriate subject. As in Roe d. Ryall v. Bell (a) , where a testator devised all his copy- hold estates situate at G. , which he became entitled to on the decease of his father. The fact was, that on the death of his father, the testator had taken possession of two copyhold estates at G. ; one which his father had in his lifetime surrendered to him in fee, but of which he (the father) had retained possession until his death, and another which descended to the testator as heir. It was held, that as the latter estate was sufiB- cient to satisfy the words, the former did not pass (5). Again, it has been held (c), that a devise of lands at W., in the parish of C, " which I purchased of S." did not include lands not atW., though purchased of S. in the parish of C. And in Eoe d. Conolly v. Vernon (d), a surrender to the use of the * testator's will of all *792 the lands, &c., situate in certain specified places, which he held of the manor of W. , being of the yearly rent to the lord in the whole of 41. 10«. SJc?., and compounded for, was held to be confined to copyholds compounded for, though the rent specified exceeded the amount of rent paid for the compounded copj-holds, but did not correspond with the amount paid for the whole. So, in Doe d. Parkin v. Parkin (e) , where a testator, seised of a house and five acres of land in his own occupation, and of an inn and nine acres of land in the same place, not so occupied, devised all his mes- suages, tenements, lands, grounds, hereditaments and premises situate (z) That this circumstance, however, is not absolutely essential, but that, the same result may follow from a precise description of the property, either by the names of the closes or by their metes and bounds, appears from Doe d. Smith" w. Galloway, 5 B. & Ad. 43. E conr. a particular description of parcels will restrict general terms, Griffiths v. Penson, 9 Jur. 385; Maitland ». Mackinnon, 1 H. & C. 607.] (o) 8 T. R. 579; see also Wills v. Sayers, 4 Mad. 409; [Doe d. Gillard v. Gillard, 5 B. & Aid. 785; and see the rule exemplified in cases treated of ante, p. 423; but see Doe d. Newton ». Taylor, 7 B. & C. 384, where a devise by A. of her moiety of all her late father'* messuages, &c., .situate, &c., was held to extend as well to lands which had been the property of the father, and had been devised by liim to a granddaughter, from whom they had descended to the testatrix, as to those which had descended to her immediately from him. In this case, the terms used were equally applicable to both properties. (4) See also Wilkinson ». IJewicke, 1 Eq. Rep. 12] But a devise of lands, which the tes- tator had from time to time "purchased," has been held to apply to lands which he had re- ceived in exchange, and not (as contended) to be confined to those which he had bought witli money ; the word " purchase " admitting, it was considered, of application to what was purchased for money or lands, Doe d. Mevrick v. Mevrick, 1 Cr. & M. 820. (c) Doe d. Tyrrell v. Lyford, 4 M. & Sel. 550. (d) 5 East, 51. (c> 5 Taunt. 321; [doubted in White v. Birch, 36 L. J. Ch. 174, sed qu.] 783 *793 FORCE AND EXTENT OF at or in the township of A., in the parish "of B., and then in his own occupation, with the appurtenances, to certain uses, the court held that these words were clearly restrictive, and, consequently, that the inn did not pass.^ In PuUin v. Pullin (/), a testator, reciting that he was seised in fee of divers frieehold lands in the parish of St. Mary, Islington, and of cer- tain copyholds within and holden of the manor of the Prebendary of Islington, and all which lands, SfC. were subject to a mortgage thereof made hy him to E. (minutely referring to the mortgage) , gave and devised all his said freehold and copyhold lands and hereditaments ; it was held that twenty-one acres of freehold land in Islington, not in mortgage to H., did not pass under this devise, but were included in a general devise in a subsequent part lof the wiU of the residue of his freehold, copyhold and leasehold estate ; the court being of opinion that the testator intended to confine the former devise to the propert}' in mortgage to R. It seems that a contrary construction would have left the residuary clause nothing to operate upon ; but this circumstance was not relied on, and seems indeed entitled to little weight, as the clause embraces copyholds as well as freeholds, and the testator had no copyholds except those in mortg^e. The testator's expressions certainly indicated that he considered ' the mortgage- as extending over the whole subject devised. ' ' [And in Morrell v. Fisher (g) , where a testator devised ' ' all his lease- hold farm-house, homestead', lands and tenements at Headingtoh, held under Magdalen College, Oxford, and then in the possession of T. B. as tenant to him," it was contended, that two pieces of land at *793 Headington, containing together twelve * acres and being lease- hold, held of the College, but not in the possession- of T. B.y passed by this devise. But the Court of Exchequer were of a con- trary opinion, there being other lands which fully answered the de- scription.] This principle is applicable [to descriptions of propertj' by its' tenure, as freehold, copyhold or leasehold (h) ; and generally to all terms of the description of property^ personal (i) as well as real, but it] has most fre- quently been applied to terms of local description. Thus, if a testator (/) 10 J. B. Moo. 464, 3 Bing. 47; see also Wilson v. Mount, 3 Ves. 191. Ug) 4 Exch. 591; and see Homer «. Homer, 8 Ch. D. 758 (land at Stock Green). (ft) Doe 1). Brown, 11 East, 441; Qiiennell v. Turner, 13 Beav. 240. But where besides a fee-simple estate in one part and a leasehold interest in a second part of a block of buildings in A. street and B. court, a testator had in a third part of the same block a leasehold interest in possession, and (subject to an intermediate reversionary term) the ultimate revereion in fee ; and devised his " freehold messuages in A. street and B. court ; " it was held that everything passed in which he had the fee, and that as he had the fee in the third part, although he had another sort of interest in it besides, vet it passed, being sufficiently denoted as the thing in- tended, Mathew v. Mathew, L. R. 4 fo]. 278. (i) Ridge ». Newton, 2 D. & War. 239 ; Quennell v. Turner, 13 Beav. 240 ; Oakes v. Cakes, 9 Hare, 686 (but as to " shares " in a company being identical with •' stock," see now Mon-ice «. Aylnier, L. R. 10 Ch. 148, 7H. L. 717); Mavberv v. Brooking, 7 D. M. & G. 673; Slings- bv V. Grainger, 7 H. L. Ca.. 273; Gilliat v. Gilliat, 28 Beav. 481; Ex parte Kirk, 5 Ch. D. 880.] ' 1 Jackson v. Moyer, 13 Johns. 531 ; Brown 5 Pick. 512; Hampton v. Cowles, 4 Dev. & B. V. Saltonstall, 3 Met. 423 ; Allen v. Richards, 16 ; Jackson v. Sill, 11 Johns. 211. 784 PARTICTJUAR WORDS OF DESCEIPTION. *794 have property m, and property contiguous to a particular street, parish or count}', it is clear that a devise of houses or buildings in that street, parish or county will carry the former to the exclusion of the Webber v. latter {j) . [So in Webber v. Stanlej- (k) , where a testatrix Stanley. first charged her Welsh estates with a sum of money as "an addition to her Tedworth estates thereinafter devised," then gave her mansion- house at Tedworth, in the county of Hants, and all, her manors, farms, lands, &c., in the countj' of Hants, devised to her by her husband (sub- ject to the annuities charged thereon by his will), and all, other her hereditaments in the county of Hants, " aU which hereditaments in the county of Hants were thereinafter described as her Tedworth estates," to uses in strict settlement, and she subsequentlj' referred to " her said Tedworth estates : " it appeared that the husband, being owner of prop- erty in Hants and Wilts, together known as "the Tedworth Estate," had devised to the testatrix all his estates at or near Tedworth, charged with certain annuities : it also appeared that there was only one manor in Hants, but several in Wilts, that some of the farms of " the Tedworth Estate " lay partly in one county and * partly in another, *794 and that the charges thrown on the devised propertj^ were or might become out of all proportion to the value of the Hants property. It was held in C. P. that the words " in the county of Hants " were not falsa demonstratio, but confined the devise to lands in that county. Erie, C. J., delivered judgmentand " laid down the law with a clearness and authority which cannot be strengthened or added to " (ka) : there was a property which every part of the description fitted, and on which every word of it had full effect : if the testatrix had devised " her Ted- worth estates " simplj"-, that would have sufficed ; but that phrase was never used by her without referring to the definition (her " said " Tedworth estates), which confined it to property in Hants. As to the word " manors " (in the plural), it occurred only in a sweeping general clause ; and as to the charges, a similar disproportion had been disregarded in Doe d. Templeman v. Martin (/) ; and such considerations could not outweigh the clear words of the devise.] So, in Doe d. Ashforth v. Bower (m), where a testator devised all his messuages, tenements or dwelling-houses, and buildings, „ . . situate at, m or near Snig Hill, in Sheffield, which he had near,'" how lately purchased from the Duke of Norfolk. The testator construed. (./) See Doe d. Browne v. Greening, 3 M. & Sel. 171; [Poison r. Thomas. 6 Bing. N. C. 337; Smith!). Ridgway, L. R. 1 Ex. i6, 3.31: Evans v. Angell, 26 Beav. 202; Listen). Pick- ford, 34 Beav. 576. fiut where a house, with the appurtenances, is described to be in a certain place, lands quasi appurtenant to the house may pass, though not in that place, Boocher v. Samford, Cro. El. 113; and see Moser f. Piatt, 14 Sim. 95. (i-) 16 C. B. N. S. 698, virtually overruling Stanley v. Stanlev. 2 J. & H. 491, on same will. (ha) Per Willes, J., in Smith v. Ridgway, L. R. 1 Ex. 332. (0 iB.& Ad. 771.1 (m) 3 B. &-Ad. 453. [See also Attwater ». Attwater, 18 Beav. 330. The case of Newton p. Lucas, 6 Sim. 54, is generally cited in support of the same position; but the final decision was given, under tlie particular circumstances, in favor of the greater eompreheasiveness of the devise, 1 My. & Cr. 391.] VOL. I. 50 785 *795 FORCE AND EXTENT OF had six houses at SheflSeld, all purchased from the Duke, and comprised in one eonvej-ance, four of which houses were distant about twenty yards from Snig Hill, and the remaining two about four hundred yards therefrom. The testator had redeemed the land tax for all the houses by one contract. It was held, that the devise did not comprise the two latter houses, part only of the description applying to them, and there being other houses to which the whole of the description did apply. But if the testator had no property in the street named, a contiguous Description property may pass. Thus, in Doe d. Humphreys v. applied to a Eoberts (»i), where a testator devised all that his messuage subiectnot , ,,.^ , -^1,1 . . tt. T strictly fall- or dwelling-house, with the appurtenances, situate in High- fof^nt'of'a st'i'^et) ii ^^^ town of Holywell, wherein his mother in- more appro- habited, and nearly opposite to the White-horse inn, together priateone. ^j(.jj ^j^g gj^^p adjoining the said messuage, and all and *795 every his buildings smd * hereditaments in the same street to A. It appeared that the testator had onlj* one house in High-street, and that was occupied by his mother ; but he had two cottages in the lane called Bakehouse-lane, behind the house, from which it was sepa- rated by a road wide enough to admit carriages ; but there was no thoroughfare in the lane, and the only entrance to it was out of High- street, under an arch a little below the testator's house. It was held that these cottages passed under the devise, the court relj-ing much on the fact that the testator had no other property which could answer to that part of the description ; and there being, it was thought, a clear intention to pass some property in the street in addition to the liouse ; and as there was no access to them but from the street, it was considered that the cottages might, without much impropriety, be described as situate in the street. It is observable, that if the cottages in question had not passed under this devise, there was a general clause which would have comprised them, so that the construction was not induced bj- an anxiety to avoid intestacy. It is clear however that where a testator having lands in a certain Devise of county, devises all his estates in another county, in which lands in one he has actually no property, the lands in the former county appl^dw^ will not pass ;"though the result be (the will being subject to lands in an- t]ie old law) to suppose the testator to make a devise which other county. , ' ce 1- /■ \ could have no effect (o) . And though a testator may show bj- the context of his will, that he uses a local appellation in a peculiar and extraordinary sense, j-et this hypothesis will not be adopted upon slight and equivocal grounds. Thus, where (p) the devise was of a testator's lands, " in Leverington," (re) 5 B. & Aid. 407; [Baddeley ». Gingell, 1 Exch. 319; Goodright d. Lamb v. Pears, 11 East, 58; Niglitingall v. Smith, 1 Kxch. 879; Doe d. Campton v. Carpenter, 16 Q. B. 181.] (0) Miller D. Tvavers, 1 Moo. & Sc 342, [8 Bing. 244; Pogson «. Thomas, 6 Biug. N. C. 337 ; Moser v. Piatt, 14 Sim. 95.] (p) Doe d. Edwards v. Johnson, 6 Nev. & M. 281. 786 PAKTICULAR WOEDS OF DESCEIPTION". *796 and it appeared that there was within the parish of this name a district called Leverington's Parson's Drove, for which a chapel of ease had long ago been endowed, and that the testator had lands in the parish which were within the chapehy, and lands in the parish which were not ; it was contended, that this devise was to be confined to the latter, on the ground that the testator had himself distinguished the parish and the chapelry by describing himself to be " of Leverington," and one of his devisees as being of " Leverington's Parson's Drove : " but the court held, that the lands in the parish, whether in the chapelry or not, passed by the devise ; * Lord Denman observing, that *796 though if the description of locality had been " Leverington's Parson's Drove," that would have been exclusive of every other part of the parish ; yet the use of the larger term did not exclude the less. [But in a case (9) where a man was seised of land in a vill and in two hamlets of the same vill, and devised all his lands being in the vill, and in one of the two hamlets by name, it was held that nothing of the land in the other hamlet should pass ; for the naming of the one hamlet argued his intent fuUj-.] In regard to proximitj-, it has been decided that a devise of estates, situate "in or raear Latchingdon, near Majdon," did not .ijjjtatesin include a close which was situate four or six miles from or near L., Latchingdoh, and in the town of Maldon (/■). "^*' [Some minute but not unserviceable criticism was devoted to the words " at or within " in Homer v. Homer (s) , where, among u Lands at or other devises of distinct properties, one "in the parish of" within D." A., another "in the parish of" B., and a third "in the parish of" C, a testator devised " his manor of D., and all his messuages, tene- ments and lands at or within D. then in the occupation of J. S." The testator had two farms, the greater part of which was in the parish (which was co-extensive with the manor) of D., but a small part of each was in an adjoining parish, separated from the bulk, in the one case by a hedge (which was close to the church of D.), in the other by a high road. It was held by Frj', J., that the outlying portions did not pass by the devise. The true meaning of " at," when applied to a place which might include a farm, was, in his opinion, " within," i.e. in the present case within the parish of D., and " at or within " meant " at," that is to say, " within." But his decision was reversed by the L. JJ., who held that D. meant the place so called, not the parish of D. They thought it would be an inaccuracy in language to speak of houses or lands "at" a place the bounds of which were at the same time expressly or impliedly indicated, e.g. " at " a county, or " at " a parish : [(y) Anon., 3 Dy. 261, pi. 27. In the parish of Street were two vills, viz. Street and Wal- ton; by fine levied "of "all his lands in Street," land in Walton did not pass, Stock v. Fox, Cro. Jac. 120. But this is explained to have been because the law then took notice only of civil, not (unless named) of ecclesiastical, divisions, 4 Crui. Dig. p. 265.] {)•) Doe d. Dell v. Pigott, 1 J. B. Moo. 274, 7 Taunt. 552 ; see also Doe v. Bower, 3 B. & Ad. 453. [(s) 8 Ch. D. 758. 787 *798 FOECET AND EXTENT OP but that "at" was the appropriate preposition when speaking of lands with reference to localities as to which no such bounds were indicated, e.g. " at " a town, or " at " a village ; hence in the present case the *797 proper* meaning of the words was at or within, not' the parish, but a more indefinite district taking its name from the church of D. (there being in the parish no village, but only scattered houses) ; and that this was made plainer by the almost pointed absence from this particular devise of the word "parish." Thus "at or within " meant " whether at or within," and each word had its proper meaning.] ' Sometimes the application of the principle in question is embarrassed '' by the cireumsta,nce, that the terms of description, though Effect where •' ,.,-,. n , • i there is prop- not applicable to any property of the testator^ precisely erty of aiioth- answer to the property of some other person. For instance, ing to the a testator having a manor, called North Dale, in A. , devises description, j^jg ^^^^^^ QslledL South Dale, in A. Now, supposing that there was in A. no manor of South Dale, the authorities would author- ize the application of the devise to the manor of North Dale ; but if it should turn out that there was in A. a manor called South Dale, belong- ing to some other pei'soh, it might be contended that the testator con- ceived himself to have some devisable interest in the manor of South Dale, and intended to devise that interest, or in respect of wills oper- ating under the present law, he might have contemplated the subsequent acquisition of a devisable interest in such manor. [A devise of the rents and profits (i) or of the income {w) of lands Devise of passes the land itself both at law and in equitj' ; a rule, it is " wits and ssM., founded on the feudal law, according to which the whole passes the beneficial interest in the land consisted in the right to take land. ^jjg i-ents and profits {x). And since the act 1 Vict. c. 26, such a devise carries the fee-simple iy) ; but before that act it carried no more than an estate for life unless words of inheritance were added (z). "Ground But] where a testator, seised or possessed of a reversion to"incliide'^ in fee or for years, to which rent was incident, devised or ireversion. bequeathed his " ground rent," not only the rent, but the reversion would pass (a) ;'■ as he was considered, when speaking *798 of the ground * rent, to mean by that term all the reversionary interest, of which the rent was. the immediate fruit. (0 Co. Lit. 4 b; Parlcer v. Plummer, Cro. El. 190 ; South v. Alleine, 1 Sallt . 228 ; Doe d. Goldin V. Lalceman, 2 B. & Ad. 42 ; Johnson «. Arnold, 1 Ves. 171 ; Baines v. Dixon, ib. 42. (w) Mannox v. Greener, L. R. 14 Eq. 456. (x) Per Lord Cranworth, Blann i). Bell, 2 D. M. & 6. 781. ly) Plenty v. West, 6 C. B. 201; Mannox v. Greener, L. R. 14 Eq. 456. So an indefinite bequest of the income of personal estate passes the absolute inteT-est, Huninhrcy v. Humphrey, 1 Sim. N. S. 5.36 ; Watkins i'. Weston, 32 Beav. 238, 3 D. J. & S. 434 (leaseholds) ; Buchanan V. Harrison, 8 Jur. N. S. 965, 31 L. J. Ch. 74 (indefinite gift of income cut down by context); Re Andrew's Will, 27 Beav. 608 (gift of intei-est to A., and if he dies without issue, over). (0) J-Iodson V, Ball, 14 Sim. 571, and see Belt v. Mitchelson, Belt's Suppl. to Vesey, son. 227.] ((I) Kerry v. Derrick, Moore, 771, Cro. Jac. 104: Maundv v. Maundv, 2 Stra. 1020, 2 Bam. K. B. 202, Ca. temp. Hard. 142, Fitz. 70, 288; Kay ti.Laxon, 1 B. C. C. 76; [and see Ashton 1;. Adamson, 1 Dr. & War. 198. 1 See Den v. Drew, 14 N. J. 68. 788 PARTICULAR WORDS OP DBSCRIPTIOK. *798 [A devise of rents and profits ' includes an advowson (5) ; and with it of course tlie right of presentation in case the living is vacant: unless the will devotes the "rents and profits" will pass wholly to purposes which can be answered only by money ""'J'^'" "^^"^? or money's worth, as the augmentation of poor livings (c), investment in lands (d), or the maintenance of children, and accumu- lation of surplus (e) ; in which case the right of presentation, not being the subject of profit, will result to the heir. If the living is full the future right of presentation may be sold for the purposes of the wUl, like any other fruit of property (/) . A devise of the "free use" (g), or of the "use and occupation " (A) of land, passes an estate in the land, and consequently a Qg^j^g „f right to let or assign it, and is not confined to the personal "use and oc- use or occupation of the property, unless the context clearly '^"^^ '°°' calls for the more limited construction («').] It is clear that customary estates, held by copy of court roll, although not at the will of the lord as in the case of proper copy- customary holds, will pass under the denomination of copyholds, and freeholds not, unless from special circumstances, under that of free- Lids. holds (fc). Where (I) a testator, having a fee-simple in possession in one moiety, of lands called H., and the reversion in fee in the other. Question devised "All that my part, purpart and portion of and in whether one Ti -. Vt .. .1 1 1 ■» , / 1 .11 moietv or the tenement called H.," with other lands j " and the rever- both moieties sion and'reversions, remainder and remainders, rents, issues passed, and profits thereof/' it was held, that both moieties passed. (5) Earl of Albemarle «. Rogers, 2 Ves. Jr. 4T7i 7 B. P. C. Toml. 522; Sherrard v. Lord Harborough, Amb. 167, per L. C. (c) Kensey v. Langham, Ca. temp. Talb. 143. (d) Sherrard ». Lord Harborough, Amb. 165. (e) Martin ». Martin, 12 Sim. 579. (/) Cooke V. Oholmondeley, 3 , Drew. 1; Oust ». Middleton, 11 W. E. 456.9 Jur. N. S. 709. iff) Cook V. «errard, 1 Saund. 181, 186, e. (A) Whittonie v. Lamb, 12 M. & Wels. 813 ; Kabbeth v. Squire, 19 Beav. 70, 4 De G. & J. 406; Mannox v. Greener, L. R. 14 Eq. 456. " Occupation is not living and residing: " per Lord Eldon, Filliiigham«. Bromlev, T. & R. 536. (i) Maclaren r. Stainton, 4 Jur. N. S. 199, 27 L. J. Ch. 442; Stone v. Parker, 29 ib. 874.] (k) Roe d. Conolly I!. Vernon, 5 East, 83; Doe d. Cook v. Dauvers, 7 East, 299. (0 Doe d. Phillips v. Phillips, 1 T. R. 105, 1 Upon the effect of a gift of rents and Wend. 260; Thompson v. Schenck, 16 Ind. profits, or income and interest, whether of 194; Jones u. Stites, 19 N. J.Eq. 324; Den r. realty or of personalty, see Frances's Estate, Manners, Spencer, 142; Mason v. Tuckerton 75 Penn. St. 220; Drusadow ». Wilde, 63 Church, 12 C. E. Green, 47; Earl o. Rowe, Penn. St. 170; Van Rensselaer «. Dnnkin, 24 35 Me. 414; Ayer v. Ayer, 128 Mass. 575; Penn. St. 252; Garret o. Rex, 6 Watts, 14; Bowers «. Porter, 4 Pick. 198,204; Reed e. Parker's Appeal, 61 Penn. St. 478; Hatch v. Reed, 9 Mass, 372. Bassett, 52 N. Y, 359; Patterson v. Ellis, 11 789 *799 DEVISES AND BEQUESTS, •799 * CHAPTER XXV. DEVISES AND BEQUESTS, WHETHER VESTED OB CONTINGENT. I. General Rule in regard to Vesting. II. Devises construed to be vested, notwithstanding Expressions of a contrary aspecL III. Devises contingent by express Terms, notwithstanding absurd consequences. IV. Question, whether Contingency applies to one or all ojf several Limitations. V, Vesting oJ'Legacies charged on Land. VI. Personal Legacies. VII. Residuary Bequests. I. The law is said to favor the vesting of estates (a) ^ ; the effect of General rule ^^hi'^li principle seems to be, that property which is the sub- as to vesting, ject of any disposition, whether testamentar}' or otherwise, will belong to the object of gift immediately on the instrument taking effect, or so soon afterwards as such object comes into existence, or the terms thereof will permit. As, therefore, a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply {i.e. without any intimation of a desire to sus- pend or postpone its operation) , confers an immediatel}- vested interest. If words of futurity are introduced into the gift, the question arises whether the expressions are inserted for the purpose of postponing the vesting or point merely- to the deferred possession or enjoyment.^ [(a) The same principle prevails in the law of Scotland, Carlton v. Thompson, L. K. 1 So. Ap. 232; Taylor v. Graham, 3 App. Ca. 1287.] 1 See, among the manv cases to this effect, come of the property. Toms v. Williams, 41 Pjke )). Stephenson, 99 Mass. 188; Olnev v. Mich. 552, 565; Rogers v. Rogers, 11 R. I. 38; Hull 21 Pick. 311, 314; Shattuck v. Stedman, Dale v. White, S3 Conn. 294; and many otlier 2 Pick. 468, 469; Ferson v. Dodge, 23 Pick. cases. A contingent niterest m real and pei-- 287- 4 Kent, 202-206; Moore v. Lyons, 25 sonal estate may so vest that it will go to the Wend. 119; Toms v. Williams, ■il Mich. real and'personal representative of the person 552; Collier's Will. 40 Mo. 287; Watkins v. interested, if he dies before the happening of Quarles, 23 Ark. 179; McCall's Appeal, 86 the contingency. Winslow v. Goodwin, 7 Penn. St. 254; King v. King, 1 Watts & S. Met. 363. Where, however, the existence of 205. But the favor shown to vested interests is the donee at a particular time makes part of rot to he so far pressed as to defeat the intent the contingenov, the interest cannot descend, of the testator. Richardson v. Wheatland, lb. p. 379. See post, p. 866, jiote 1. 7 Met. 171. And while there has been some 2 Of course it matters not that the estate variance among the authorities concerning .given is "to be set apart," or pavment made, the legal distinctions between vested and con- to the donee at a future time. The estate is tingeiit estates, thev chiefly agree, first, in still vested. Higgins ». Waller, 57 Ala. 396; favoring the vesting of interests, and, second- Dale®. White, 33 Conn. 294. But see Joues ly, in treating future interests as vested where v. Massey, 9 Rich. N. S. 376. tiiere is any present vested interest in the in- 790 ■WHETHER VESTED OK CONTINGENT. *800 It may be stated as a general rule, that where a testator creates a particular estate, and then goes on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such event, occurring in the latter devise, will be con- strued as referring merel}' to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting. Thus, where a testator devises lands to A. for life, and after his decease to B. in fee, the respective estates of A. and B. (between whom the entire fee-simple is parcelled out) are both vested at the instant of the death of the testator, the only differ- ence * between the devisees being, that the estate of the one is *800 in possession, and that of the other is in remainder.^ On the same principle, where a person who is entitled to a reversion or remainder in. fee, expectant on an estate tail in himself. Devises of or in any other person, by his will devises the property in and remain- question, in the event of the person who is tenant in tail ders. dying without issue, this is construed as an immediate disposition of the testator's reversion or remainder; though, upon the face of the will, the devise presents the aspect of an executory gift, to arise on a general failure of issue, which would clearly be void (i) , unless, indeed, the will were made or republished since 1837, in which case the words would refer to issue living at the death. If the contingencj'^ described corresponds precisely with the event which determines the existing, estate tail, no difficulty exists in applying this rule of construction ; but it frequently happens, that the terms used bj' the testator do not com- pletel3- answer to the event in question ; as, for instance, where the reference is to issue generally, and the subsisting estate is restricted to issue of a particular marriage or sex. In such cases, the reasonable conclusion would seem to be that the discrepancy arises mei'ely from an inaccuracy in the description of the reversion or remainder, and that it does not show a different interest to have been in the testator's con- templation ; and such, accordingly, seems to have been the prevailing doctrine of the eases (c).'' It is to be observed, also, that where a remainder is limited in (b) Ante, p. 254. (c) Welling-ton v. Wellington, 1 W. Bl. 645, 4 Burr. 2165, post; French v. Caddell, 3 B. P. C. Toiml. 257, post; Jones v. Morgan, Fea. C. R. 329 ; Lvtton v. Lvtton, 4 B. C. C. 441; Egerton ». Jones, 3 Sim. 409. The case of Banks v. Holme,' 1 Russ. 394, n., indeed, favors a more rigid construction ; but I.onl Eldon's strictures upon this case, in Morse v. Lord Ormonde, 1 Rnss. 405, aiford ground to infer that it did not coincide with his own opinion. The strict rule there adopted certainly exacts from testators more of technical correctness than it has been usual to require, Slni clearly would not now be followed; [see further as to the above cases, Ch. XL., s. 3, pt. 5, and Ch. XLI.] 1 Kings. King, 1 Watts & S. 207; Ross v. 188; Brown v. Lawrence, 3 Cush. 390; Wight Drake, 37 Penn. .St. 373 ; Lantz D. Trusles, 37 v. Shaw, 5 Cush. 56; White v. Curtis, 12 Penn. St. 482; Womrath v. McCormicU, 51 Gray, 54; Doe v. Considiue, 6 Wall. 458 f Penn. St. 504 ; Throop ». Williams, 5 Conn. 98 ; Smith, d. Bell, 6 Peters, 69. See Weston ». Fay 1). Svlvester, 2 Gray, 171 ; Bartow v. Bige- Weston, 125 Mass. 268. low, 4 Gray, 353 ; Pike v. Stephenson, 99 Ma.ss. 2 See Hall v. Chaffee, 14 K. H. 216. 791 *801 DEVISES AND BEQUESTS, default or for want of the object or objects of the preceding limita- Woi-ds in de- tion, these words mean, on the failure or determination of want of ob- the prior estate or estates, and do not, (as literally construed ject of prior they would) render the ulterior estate contineent on the estates how •/ / o construed. event of such prior object or objects not coming into exist- ence. In short, they signify all that is comprehended in the word " remainder," being merely an expression employed by the testator in carrying on the series of limitations (rf) . The ulterior estate, *801 tl^erefore, is *a vested remainder, absolutely expectant on the failure or determination of the prior estate. . Thus, it has been decided (e) that, where lands are devised to the first and other sons of A. successively in tail, and, in defavU of such sons, to the daughters of A. in tail, although it should happen that A. has a son or sons, yet on his or their subsequentlj* dj'ing without issue, the devise in remainder to the daughters takes effect. So, where (/) a testator devised to E. for life, and, after her decease, to the first and everj' other son of her body lawfullj- to be begotten, the elder to be preferred to the younger, and, for want of such sons, to the daughter pr daughters of E., share and share alike, and in default of such issue of E., then to M. ; it was held, that the devise to M. was a vested remainder, expectant on the determination of the prior succes- sive life-estates of E. and her sons and daughters (the will being sub- ject to the old law), and those estates having e-s.^vce.A hy the death of JE.'s only daughter, M.'s remainder fell into possession. Again, where {g) A. devised certain lands to D. for life ; remainder to a trustee, to preserve contingent remainders ; remainder to the first and other sons of D. and their heirs, and for want of such, issue, to J. for life with remainders over ; it was held that the sons of D. took suc- cessive estates tail, with a vested remainder. It is clear too, that where real estate is devised to A. in tail, and, in case he shall die without issue, then to B. in fee, and it happens that A. dies in the testator's lifetime, leaving issue, the ulterior devise to B. is held to take effect, although, literally-, the contingencj' on which such devise is made dependent has not occurred ; the intention being, it is considered,, that the ulterior devise shall confer a vested remainder on (of) Whether Words importing Failure of Issue refer to Detenninniion of subsistlnt/ Estates tail. — In a former publication, ttie writer contented himself with simply stating this position, and a single case in support and illustration of it, conceiving: that the rule of construction was too well established to be called in question; but subsequent experience taught him that it has not obtained so ready and unanimous an assent in the profession as, from the state of the authorities, was to have bean expected. Indeed, even so recently as Ashlev v. Ashley, 6 Sim. 358, the master reported that, under a devise to A. for life, with remainder to her children, and, for want of such issue to B., the devise to B. failed on A. having a child, — a conclusion which the V.-C. appears to have regarded as too plainly untenable for serious refutation. The reluc- tance to acquiesce in a construction at once so reasonable, and so well sustained by authority, is remarkable, but probably is to bo ascribed to the yet lingering influence of the long-exploded case of Keeue ». Dickson,! B. & P. 254, n., where a contrary construction prevailed; and serves to show that the uncertainty produced bv contradictorv decisions is not easily dispelled. (c) Doe«. Dacre, 1 B. & P. 260, 8 T. R. 112, [Hayes' Principles, p. 35.] (/) Goodright v. Jones, 4 M. & Sel. 88. • Ig) Lewis v. VS^aters, 6 East, 336. [See also Hennessey v. Bray, 33 Beaw. 96. 792 WHETHER VESTED OR CONTINGENT. *803 B., which is absolutely to take effect in possession on any event which removes the prior * estate out of the way {Ii). The case just sug- *802 gested, however, eannot now arise under a will made or repub- lished since 1837, as a devise in tail contained in such a will does not lapse by the death of the devisee in the testator's lifetime, leaving issue. Where, however, the ulterior estate is expressed to arise on a contin- gent determination of the preceding interest, and the prior Paiie where gift does in event take effect, but is afterwards determined P™'^^^^^® in a mode different from that which is so expressed by the but is deter- testator, the ulterior gift fails. , differerJt' * As where (i) the devise was to A. for life, remainder to mauuer. his first and other sons in tail, on condition that he and his issue male should assume a particular name, and in case he or they refused, then that devise to be void, and in such case the testator devised the lands over. A. survived the testator, complied with the condition, and then died without issue : and it was held in B. R., on a case from Chan- cery, and ultimately, in D. P., that the limitation over did not arise (i). An exception to this rule, however, maj^ seem to exist in a case which deserves especial attention, on account of the fre- pevise dur- quency of its occurrence, namely, where a testator makes a j"g widow- devise to his widow for life, if she shall so long continue a devise over widow, and if she shall marry, then over ; in which the estab- °" maipage. lished construction is, that the devise over is not dependent on the con- tingency of the widow's marrying again, but takes effect, at all events^ on the determination of her estate, whether bj' marriage or death.' In Luxford v. Cheeke (J) , which is a leading authority for this doc- trine, the testator devised to his wife for life, if she should v^ . ' D6V1S6 over not marry again, but if she did, then that his son H. should extended by presently after his mother's marriage enjoy the premises to }™S'tf ''""a him and the heirs of his body, with remainders over. The tion by . widow died without marrying again ; but it was held, that '*''**■ the remainder took effect. * Gordon v. Adolphus {m) was a case of the same kind. The *803 bequest was to the testator's wife " during her natural life, that {h) Hutfon «. Simpson, 2 Vern. 722; Hodgson v. Ambrose, Doug. 337.] {»") Amliurst v. Donelly, 8 Vin. Ab. 221, pi. 21, 5 B. P. C. Tom). 254 ; see also Sheffield v. Jjord Orrery, 3 Atk. 282, po.it, p. 803. (4) Com'pare tliis case with Avelyn v. Ward, 1 Ves. 420, and Doe v. Scott, ,3 M. & Sel. 300, stated ante, p. 648, in which the lapse of a prior estate, on whose contingent determina- tion the subsequent estate was to arise, was held not to defeat the subsequent estate. In or- der to reconcile these cases with Amhurst v. Donelly, we must infer that, in the latter case, had the estate of A. and his sons failed by lapse, the devise over would have tnken effect. fan rations, it must be concluded, that had the prior devisee in those cases survived the testa- tor and performed the condition, the devise over (if the whole interest had not been absorbed as it was by the first devisee) would not have taken effect. ■ [1) 3 Lev. 125. (m) 3 B. P. C. Toml. 306 ; [see also Brown «. Cutter, T. Raym. 427.] 1 See Green v. Davidson, 4 Baxter, 488 ; Bates i\ Webb, 8 Mass. 458 ; Whitney v\ Hughes «. Boyd, 2 Sneed, 512 ; Thomson v. Whitnev, 14 Mass. 88 ; Parsons v. Winslow, Ludington, 104 Mass. 193 ; Olnev v. Hull. 21 6 Mass."l69 ; Chappel v. Avery, 6 Conn. 31. Pick. 311; Ffirson ». Dodge, 23 Pick. 287; 793 *804 DEVISES AND BEQTTESTS, is to say, so long as she shall continue unmarried ; but in case she shaU choose to marry, then and in that case " it was to be for the immediate use of the testator's daughter, and in case she should die without leav- ing issue, then over ; and it was held by Lord Camden, and afterwards in D. P., that the bequest over was not contingent on the event of the marriage of the wife. In these cases, therefore, the widow takes an estate durante viduitate, and the gifts over are vested remainders absolutely expectant on that estate, being to take eflfect at all events on its determination, and not conditional limitations dependent on the contingent determination of a prior estate for life. In Lady Fry's case (ji) , Lord Hale said, it was all one as if the estate had been devised to the widow for life, and if she married, then to re- main, which had been but an estate quamdiu sola vixerit. If, however, the devise had been framed in the manner suggested by this eminent and excellent judge, the case would have been brought into very close Devise over resemblance to Sheffield v. Lord Orrery (o), where a different affah"stvict- Construction prevailed. There A. devised his house, &e., ly construed, to his wife for life, upon this express condition onl}-, that if she should marry again, then the house, &c., should go forthwith to his eldest son and his issue. Lord Hardwiclie held, that it was a contin- gent limitation to the son, to take effect only on the wife's marrj'ing again. In Luxford v. Cheeke, he said, the penning was different; there, after tlie devise, were added these words, "if she do not marry again," which restrained the original limitation, and were the same as if they had been to the wife for life, " if she so long continued a widow." Here there were no such words in the original limitation ; and though he added, " but I do not lay much weight on this," and proceeded to comment on other grounds for the construction, yet the remarlts above quoted have alwaj's been considered as pointing out the true principle of the decision. On the whole, then, the distinction would seem to be, that where the circumstance of not marrying again is interwoven into the G6n6r3.l con- •/ c c? elusion from Original gift, the testator, having thus, in the first instance, the cases. created an estate durante viduitate, must generally be con- sidered, when he subsequently refers to the mariiage, to describe *804 the * determination hy any means of that estate, and, conse- quently, the gift over is a vested remainder expectant thereon (p). On the other hand, where a testator first gives an absolute estate for life, and then engrafts thereon a devise over to take effect on the mar- riage of such devisee for life, the conclusion is, that the devise over is not to take effect unless the contingency happens {q) . [And the con- {»») 1 Vent. 203 ; sec also Jordan i). Holliham, Amb. 20S, where Lord Hardwicke took a distinction between a devise during widowhood, and it she married again within a limited time. {") 3 Atk- 282. [(») See ace. Browne ». Hammond,, Johns. 210, 218; Underbill v. Roden, 2 Ch. D. 494. (j) The question whether the event of not marrying is or is not interwoven in the original 794 WHETHEE VESTED OB CONTINGENT. *805 struction being that the limitations over take effect, at all events, on the determination of the widow's estate, whether by marriage or death, it is not displaced b}' the circumstance that some of those limitations {e.g. a provision for tlie widow during the remainder of her life, expressly in case she marries) , can only take effect in the event of her manying : although she should not marry, the other limitations will still take etttect as vested remainders expectant upon her death (r) . A similar construction prevails where the prior gift is to Devise over a spinster until marriage (s) , or to a person until he be- °" &"."x?'' comes bankrupt {t) , with a gift over in case of marriage or tended by bankruptcy. In these cases also the remainder will gener- "o'ca'se'o™ ally take effect at all events on the determination of the prior death, estate.] * * II. The construction which reads words that are seemingly *805 creative of a future interest, as referring merely to the futurity p^^.j^gg of possession occasioned by the carving out of a prior inter- vested, not- est, and as pointing to the determination of that interest, and ^Irest^on"^ not as designed to postpone the vesting, has obtained, in of seeming some instances, where the terms in which the posterior gift ''*'" "^° is framed import contingencj', and would, unconnected with and unex- plained by the prior gift, clearlj^ postpone the vesting. Thus, where a testator devises lands to trustees until A. shall attain the age of twenty- one years, and if or when he shall attain that age, then to him in fee, this is construed as conferring on A. a vested estate in fee-simple, sub- ject to the prior chattel interest given to the trustees, and, consequently, gift, may be difficult of solution. In Meeds «. Wood, 19 Beav. 215, a testator gave real estate to his executor in trust for E. for her life, and directed the executor to pay her the rents every six months, "provided that if E. should marry," then over. The M.R. admitted the dis- tinction taken in the text, but thought the direction to the executor to pay E. the rents limited the previous gift to so long as she remained a spinster, since " it was obvious the testator in- tended the rents to be paid to her lierself," and if she married, she would no longer be enti- tled to receive them, except by the intervention of a trust for her separate use, which was in- consistent with the intention ; he therefore held that the gift over took effect on the death of E., though she had never been married. In Bainbridge ». Cream, 16 Beav. 25, where a testator gave lands to his wife for life, but if she married again he revoked them, and at her death or second marriage gave the lands to trustees for sale, the produce to be divided among certain persons (naming them), *' or such of them as should be living at the death ni his wife ; " the wife married again, and the trustees sold ; and it was held by the M. R. that the proceeds were divisible nnmediately, notwithstanding the widow was still living.] In one case a devise which, in express terms, extended to widowhood only, was held to be enlarged bj- implication to the period of the vesting in possession of a remainder limited thereon. The devise was to tlie testator's wife for her life, provided she remained a widow; but if she married a second husband, to I., when he should attain his ni/e of twenty-three years; and it was held, that the widow had an estate till I. attained twenty-three, though she married again, Doe d. Dean and Chapter of Westminster v. Freeman, 1 T. R. 389, 2 Chitty's Cas. temp. Lord Mansfield, 498. [()■) Underbill v. Roden, 2 Ch. D. 494. See also Eaton v. Hewitt, 2 Dr. & Sm. 184; Wardroper®. Outfield, 33 L. J. Ch. 605. In Pile v. Salter, 5 Sim. 411, it was held that a gift to the widow of one third of the corpus "if she married again " (following a life-interest in the whole during widowhood) was necessarily contingent, "it would be absurd to give her one third of the property in the event of her death." But this was disapproved and the absurdity denied by Jessel, M. R., in Underbill v. Roden. (8) Eaton V. Hewitt, 2 Dr. & Sm. 184 ; Wardroper v. Outfield, 33 L. J. 605. (t) Etches V. Etches, 3 Drew. 441. 795 DEVISES AND BEQUESTS, . ' ' on A.'s deathj under the. prescribed age, the propeirtj' descends to- his heir at law ; though it is quite clear (m) that a devise to A., if or when he shall attain the age of twenty-one years, standing isolated and de- tached from the context, would confer a contingent interest only. A leading authority for this construction is Boraston's case {x) ^ which Borastou's was as foUows : A testator devised land to A. and B. for case. eigijt years, and after the said term, the land to remain to his executors, for the performance of his will, till such time as H. should Word accompHsh his age of twenty-one years ; and when the said "when "re- H. should come toi Ws age of twentj'-one, then to him, his teraifnitioii" '^^'^"'^ ^"^ assigns forever. H. died under twenty-one. It of prior es- was contended, that the remainder was not to vest in him, unless he attained the prescribed age ; but the court held it to be vested immediately, the case being, it was said, nothing else in feffect than a devise to the executors, till H. attained the age of twenty- one, remainder to H. in fee ; and that the adverbs of time, when^ &c., did not make any thing necessary to precede the settling *806 * {i.e. the vesting) of the remainder, but merely expressed the time when it should take effect in possession.^ So in Doe d. Cadogan v. Ewart (y), where a testator devised his real estate to trustees, upon trust for his wife during widowhood, and after her decease or marriage again, upon trust to apply the rents towards the maintenance of his daughter, until she should attain the age of twenty- Words .fi^^ years, and from and after attaining thai age, then upon "/™'i? ^•"''- trust for his said daughter, her heirs and assigns forever ; larly con- but in case his said daughter should depart this life without strued. ^ leaving issue, then the testator devised the said real estate (m) Grant's case, cited 10 Co. 50;,Sugd. Law of Prop. 291; Alexander ». Alexander, 16 C. B. 59 ; and per James, L. J., Andrew e. Andrew, 1 Ch. D. 417. However, the decision of this last point was expressly avoided by the judges in Phipps v. Ackers, 9 CI. & F. 583 ; and see Tapscdtt v. Newcombe, 6 Jur. 755; and Simmonds ». Cock, 29 Beav. 455 (stated below.)] (x) 3 Rep. 19; see also Manfleld ». Dugard, 1 Eq. Ca. Ab. 195, pi. 4 Gilb. Eq. Rep. 36; tDoe d. Morris f. Underdown, Willes, 293:] Goodtitle d. Hay ward "• Whitby, 1 iSurr. 228; )enn d. Satterthwaite d. Satterthwaite, 1 W. BI. 519 ; Doe d.Weedon r. Lea, 3 't. R. 41 ; Doe d. Wight V. Cundall, 9 East, 400 ; Edwards «. Svmonds, C Taunt. 213 ; [Farmer «. Francis, 2 Bing. 151]; Goodriffht d. Eevell v. Parker, 1 M. iS; Sel. 692 (leaseholds) ; Warter «. Hutchinson, 5 Moore.143, 2 B. & Bing. 349, 3 D. & Ry. 58, 1 B. & C. R. 721 ; [Jackson v. Majoribanks, 12 Sim. 93;Milroy« Milroy, 14 Sim. 48; Parkin ;). Knight, 15 Sim. 83; James «. Lord Wvnford, 1 Sm. & Gif. 40; Smith v. Spencer, 6 D. M. & G. 631; but see Bastin «. Watts, 3 BeaV. 97, where, however, the point was not argued ; and Blagrove v. Hancock, 16 Sim. 371, where the V.-C. did not notice the question-] {y) 7 Ad. & EI. 636, 3 Nev. & P. 197. 1 See Scott V. Logan, 23 Ark. 352 ; Roome the mean time, he will be a trustee of the rents V. Phillips, 24 N. Y. 465; Mever w. Eisler, 29 and profits for the devisee. Rogers v. Ross, Md. 32; Rivera v. Fripp, 4 'Rich. Eq. 276; 4 John. Ch. 388. See Hobson v. Yancev, 2 Collier's Will, 40 Mo. 287; Cowdin w. Perry, Graft. 73. It is said that the words "as," 11 Pick. 50.3, 508; Livingston v. Greene, 52 "when," "if," "provided," or "at," refer- N. Y. 118; S. C. 6 Lans. 50. ring to aparticnlar time for the bestowal of a 2 A devise of all the residue of the tes- gift, are in England words of contingency, in tator's real estate, "where the devisee shall the absence of language indicating a diijer- have attained" certain age, will pass the ent intention. Colt ». Hubbard, 33 Conn, rents and profits from the death of the testa- 281. But this rule of construction is not fully tor, till the time when the devisee comes into axicepted in this country. lb. possession : if the estate vests in the heir in 796 WHETHER VESTED OB CONTINGENT. *807 over. The daughter, after the decease of the widow, and before she attained the age of twenty-five years, suffered a common recovery ; and it was held, that such recovery was eflfectual to acquire the equitable fee- simple, she having a vested estate tail in equity at the time. It is observable, that in the greater number of the cited cases, the prior interest was created for the benefit of the ulterior devi- „ , see ; but this circumstance does not seem to vary the prin- preceding ciple, for the material fact, and that which constitutes the "'^^^' special characteristic of this class of cases, is, that there is a prior interest extending over the whole period for which the devise in ques- tion is postponed. It is therefore in effect a devise of the whole estate instanter to B., with the exception of a partial interest carved out for some (no matter what) purpose.^ Another exemplification of the principle in question occurs in those cases where a testator, after giving an estate or interest for wordsof ap- life, proceeds to dispose of the ulterior interest in terms parent con- which, literall}' construed, would seem to make such ulterior fermTu) die interest depend on the fact of the prior interest taking effect ; possissipa in such cases it is considered that the testator merely uses these expressions of apparent contingency as descriptive of the state of events under which he conceives the ulterior gift will fall into posses- sion (the supposition being, that the successive interests will take effect in the order in which they are expressed) , and not with the de- sign of making the vesting of the posterior gift depend on the fact of the prior tenant for life happening to live to become entitled in posses- sion. Thus, in Webb v. Hearing (z), where a testator devised to his son F. after the death of his wife ; and if his three daughters, or * either of them, should overlive their mother and F., their brother, *807 and his heirs (which was construed to mean heirs of his ,„ . . ^ , Words 01 ap- body), thej' to enjoy the same houses for the term of their parent con- lives, remainder to R. and J. ; it was held, that the remain- furred to ™" der to R. and J. was not contingent on the event of the possession daughters surviving their mother and brother; the words ™'''^y* only showed when it should commence.^ (0) Cro. Jac. 415. According to the facts represented, it does not appear that the remain- der, if contingent, was defeated, as only two of the daughters are stated to have died in the lifetime of their brotlier. 1 See Tavloe v. Mosher, 29 Md. 443 ; Min- len, 517 ; Howe v. Pillans, 2 Mrlne & K.20, 21. ing V. Batdbrff, 6 Barr, 503; Collier's Will, So, too, it is held that the words "after," and 40 Mo. 287 ; Rciome v. Phillips, 24 N. Y. 463 ; " upon the death of," and like words, do not Ackerman B. Gorton, 67 N. Y. 63; Danforth make a contingency, but merely indicate V. Talbot, 7 B. Mon. 623; Rogers v. Rogers, when an estate shall take effect in possession. 11 R. I. 38 : Thrasher D. Ingram, 32 Ala. 646; Livingston v. Greene, 52 N. Y. 118; Moore Rivers v. Fripp, 4 Rich. Eq. 276;. Watkins v. v. Lyons, 25 Wend. 119; Chew's Appeal, 37 Quarles, 23 Ark. 179; Harris v. Alderson, Penn. St. 23; Womrath v. McCormick, 51 4 Snecd, 250 ; Hancock i\ Titus, 39 Miss. 224; Penn. St. 604; Doe v. Considine, 6 Wall. 458 ; Linton «. Laycook, 33 Ohio St. 128. Pike v. Stephenson, 99 Mass. 188; Brown v. 2 A gift to A. in fee " and in case of his Lawrence, 3 Cush. 390; White v. Curtis, 13 death " to B. refers to A.'s death in the, life- Gray, 54. time of the testator. Brigga ■». Shaw, 9 Al- 797 *808 DEVISES AND BEQUESTS, So, in an early case (a), where the devise was to K. in tail, remain- der to J. for life, and in another clause it was declared, that "if K. died without issue, and J. be then deceased," then, and not otherwise, the testator gave the land to N. and his heirs ; the Lord Keeper, it is said, decreed it for N., although J. survived K., because the words " if J. be then deceased," seemed to be put in to express the testator's meaning, that J. should be sure to have it for her life, and that N. should not have it till she was dead ; and also to show when N. should have it in possession. So, in Pearsall v. Simpson (6), where a legacy was given in trust for the testatrix's sisters and their children ; and after the deaths of both her said sisters and their children, if any, to pay the interest to her brother-in-law, S., during his life, and from and after his decease, in case he should become entitled to such interest, then over to some cousins. Though S. died in the lifetime of the testatrix's sisters, it was held that the gift to the cousins took effect. Sir W. Grant, M. R., being of opinion that it was not contingent on the event of the sister's husband becoming entitled to the interest. " It was doubtful (he said) whether S. would live to become entitled to the interest. The testatrix, giving the capital over after his death, recollects that he maj-^ not live to take the interest ; but if he does, she makes his death the period at which the cousins are to take. It is not a condition precedent, but fixing the period at which the legatees over shall take, if he ever takes." Here no violence was done to the obvious meaning of the words, as it is impossible to read the whole sentence continuously, " from Pearsall «. and after his decease, in case he should become entitled to Simpson. such interest," without seeing that the words of contingencj', " in case," &c., refer merely to the period of possession, denoting that that should take place at his death, if he happened to live to become entitled. So, in Massey v. Hudson (c), where a testator devised to his *808 * wife for life, charged with an annuity, to E. , subject also to 300?. to be paid to V. , her executors, administrators or assigns, within twelve months after the decease of E. , in ease the said E. should happen to survive testator's wife, with interest from the death of E. E. died in the testator's lifetime, and in the lifetime of his wife. Sir W. Grant, M. R., thought it too clear for argument, that the words, " in case E. shall survive my wife," did not constitute the condition on which the legacy was to become payable, but onl\- related to the time of payment, which was, in that event, to be postponed to the end of a twelvemonth after the death of E. (a) iVnon., 2 Vent. 363. (6) 15 Ves. 29. (c) 2 Mor. 130. [Seealso Key «. Key, 4 D. M. &. (i. 73 ; Wright u. Wright, 21 L. J. Ch. 775; Walmsley)). Vaughan, I De G. & J. 124; Tuer s. Turner, 18 Beav. 185; Ko Bettv Smith's Trusts, i;. R. 1 Eq. 79; Bolton v. Bolton, L. R. 6 Ex. 145; Edgworth v. Edgwoi-th, L. R. 4 H. L. 35; Leadbeater v. Cross, 2 Q. B. D. 18.] Campare these and the preceding cases with Holmes v. Cradock, 3 Ves. 317, stated post; [and see Davis v. Norton, 2 P. W. 390, ttrst point. 798 •WHETHER VESTED OE CONTINGENT. *809 [The case of Franks v. Price (d) presents an instance both of an ap- parent and of a real contingencj' in the same will. There a testator devised to A., B., &c., for their lives, with remainder to M. and N. for their lives, share and share alike ; " and in case either of them should, after the deaths of A., B., &c:, die without issue," then to the survivor for life ; ^nd if M. " should, after the deaths of A., B., &c., die before N; leaving issue male of his body" then one moiety of the estates was to go as therein mentioned ; " and in case of such death in manner afore- said of M. before N., and M.'s leaving issue male," the testator gave one moiety of his personal estate to be laid out in land, to be conveyed and settled to the uses thereinbefore directed of his real estates, " on the issue of M., on the contingency aforesaid." The testator made a similar disposition, mutatis mutandis, of the other moiety in case of the death of N. after the deaths of A., B., &c., leaving issue male. Lord Langdale thought that the words " after the deaths of A., B., &c.," did not import contingencj', but were merely words of reference, showing that the gifts then in course of expression were subject to the prior gifts, and were not to have effect in possession till those prior gifts became satisfied or inoperative ; but from the words used with reference to the event of M. dying before N., leaving issue male, and with refer- ence to the event of N. dying before M., leaving issue male, and even from the care taken to repeat the words as applied to the case of M. and N. respectively, it appeared to him that the words must have their natural meaning, and be taken to provide only for the precise cases which were expressly described. * The result of the authorities is thus summed up by Sir W. P. *809 Wood, V.-C. (e). " The true way of testing limitations of girW. p. that nature is this : can the words, which in form import con- Wood's state- , . ment of the tingency, be read as equivalent to ' subject to the interests result of the previously limited ' ? Take the simplest case : a limitation a^'hcnties. to A. for life, remainder to B. for life, and upon the decease of B. if A. he dead, then to C. in fee. There the limitation to C. is apparently made contingent on the event of A.'s dying in the lifetime of B. Never- theless, inasmuch as the condition of A.'s death is an event essential to the determination of the interest previously limited to him, the court reads the devise as if it were to A. for life, remainder to B. for life, and on B.'s death, subject to A.'s life-interest {if any), to C. in fee. That is an intelligible principle of construction ; but in order to its application, the condition upon which the limitation over is made dependent must involve no incident but what is essential to the determination of the interests previously limited. For instance, if the limitation be to A. for life, remainder to B. for life, ' and if, at the death of B., A. shall have died under the age of twenty-one,' or ' without children,' then to C. in fee, here in either case room is left for contingency. The condi- (d) 3 Beav. 182, 5 Bing. N. C. 37, 6 Scott, 710. (e) Maddison v. Chapman, 4K. & J. 719.] 799 *810 DEVISES AND BEQTTESTS, tion of A.'s dying in the first case tinder twenty-one, and in the second, without children, is an event which may or may not have happened when the life-estates in A. and B. are determined ; and until it has happened, the limiitation over is contingent, not merely in appearance but actually. To these cases, therefore, the principle of construction I have referred to would obviously not apply."] ■ And although (as already hinted) there is no doubt that a devise to a . person, [when, or] if he shall live to attain, [or at,] a par- shall attain ticular age, standing alone, would be contingent ; yet if it twenty-one ^^ followed by a limitation over in case he die under such contingent; -^ age, the devise over is considered as explanatory of the iFa''iimitTHon sensc in which the testator intended the devisee's interest over in alter- jn the property to depend on his attaining the specified age, namely, that at the age it should become absolute and inde- feasible ; the interest in question, therefore, is construed to vest in- stanter (/) .^ *810 * Thus, in Edwards v. Hammond {g) , where A. surrendered the reversion in fee in customary lands to the use of himself for life, and, after his decease, to the use of his son H. and his heirs and assigns forever, if it should happen that he should live until he attained the age of twenty-one years^ provided alvyays, and under the condition, never- theless, that if H. died before he attained that age, then the premises to remain to A. in fee ; it was held, that though upon the first words this seemed to be a condition precedent, yet upon all the words taken to- gether it was an immediate devise to H., subject to be defeated upon a condition subsequent, if he did not attain the age of twenty-one years. ^ The same construction prevailed in Doe d. Hunt v. Moore (Ji), where the devise was to M. " when he attains the age of twenty-one he attains j'cars," to hold to him, his heirs and assigns forever ; hut twenty-one, j-^ ^^^ ^g should die before he attained the age of twenty-one and ]i he die -^ o ^? before, then years, then over ; Lord EUenborough observed, that this °™'" being an immediate devise, and not, as in some of the other cases, a remainder, formed no substantial ground of distinction. The (/) Even independently of this particular rule, it is obvious that a limitation over dispos- ing of the property to another, in case of the prior devisee dying under certain circumstances, always supplies an argument in favnr of the prior devisee taking an immediatelv vested in- terest, Smithem. Willock, 9 Vcs. 233; Peyton v. Bury, 2 P. W. 626; Murkin «." Phillipson, 3 My. & K. 257; [per Wood, V.-C, L. ll. 3 Eq. 322;] though the contrary is sometimes contended. (a) 3 Lev. 132, 2 Show. 398, and stated from the record, 1 B. & P. N. R. 324, n. (k) 14 East, 601. 1 A gift in trust for children who being where the trust was for sons "as and when" sons or a son attain the age of twenty-five they attained a certain age. And it was in- years, or being daughters or a daughter attain timated that Fox v. Fox was in conflict with the age of twenty-one or marry, gives a con- In re Ashmore, L. R. 9 Eq. 99. tingent estate to an only son, dependent upon 2 jjughes «. Hughes, 12 B. Mon. 117; his attaining the age 'of twentv-flve years. Raney ». Heath, 2 Pat. & H. 219 ; Koome V. Dewar «. Brooke, L. R. 14 Ch. D. 529, dis- Phillips, 24 N. Y. 465. tinguishing Fox v. Fox, L. R. 19 Eq. 286, 800 "WHETHER VESTED OR CONTINGENT. *811 estate vested immediately, wlietlier there was any particular interest carved out of it to take effect in possession in the mean time or not. Again, in Doe d. Roake v. Nowell (i) , where the devise was to the testator's nephew R. for life, and on his death to and t, ,., , .,1 11 7 /- 1 To children at amongst his children equally at the age of twenty-one, and twenty-one, their heirs, as tenants in common ; but if only one child ^veroli death S'hould live to attain such age, to him or her, and his or her under heirs, at his or her age of twenty-one ; and in case R. should ■^^°*J-°"8- die without issue, or such issue should die before twenty-one, then over. R. levied a fine during the minority of his children, which raised the question whether their shares were contingent or vested, or, in other words, whether they were destructible bj' the act of R. or not. It was held in B. R., and ultimately in D. P., that the remainders were vested in the children on their births. [This case shows that the rule applies where the devise is to a class.] The rule, it seems, applies not only where the devise over is limited so as to take effect simply and exclusively on the Kffect where failure *of the event on which the prior devise is *811 another event apparently made contingent, but also where some other event is associated. Thus, in Bromfield v. Crowder (j) , the devise was to certain persons for life, and at the decease of them or the longer liver of them to J. if he should live to attain the age of twenty-one years ; and in case he died before he attained that age, and his brother G. should survive him, then over. On a case from the RoUs, the Court of C. P. certified that J. took a vested fee. Sir J. Mansfield, C. J., relied much on the authoritj' of Edwards v. Hammond, which he said was on all fours with this. [So that if either event happens, the prior devise becomes abso- lute (^).] The construction also obtains where the lands are devised to trustees, upon trust to convey to limitations of the nature of those Doctrine of under consideration. preceding Thus, in Phipps u. Williams (Z) , where a testator devised cable tcfexec- his real estates to trustees, upon trust to convej' certain "tory trusts. lands to his godson A. when and so soon as he should attain his age of twenty-one 3'ears ; but in case he should depart this life before he should attain the said age of twenty-one years, without leaving issue of his body, then the lands in question were to go according to the disposition Of his (i) 1 M. & Sel. 327, 5 Dow, 202; see also Doe d. Dolley v. Ward, 9 Ad. & El. 582, 1 P. & Dav. 568; [Greene d. Potter, 2 Y. & C. C. C. 517.] ( ;') 1 B. & P. N. R. 31.3; [affirmed in D. P., see 14 East, 604, Sugd. Law of Prop. 286. See also'Whitter v. Bremridge, L. R. 2 Eq. 7.36; Finch v. Lane, L. R. 10 Eq. 501. ' (h) Re Thomson's Trusts, L. R. 11 Eq. 146 (legacy). Cf. Malcolm v. O'Callaghan, 2 Mad. 349 ] , (I) 5 Sim. 44 [9 CI. & F. 583 (Phipps v. Ackers); Stanley v. Stanley, 16 Ves. 491. So where personal estate is directed to be invested in the purchase of land, Jackson v. Majori- banks, 12 Sim. 93. VOL. I. 51 801 *812 DEVISES AND BEQUESTS, residuary estate. Sir L. Shad well, V.-C, on the authority Of the pre- ceding cases, held that A. took an immediate interest under tliis devise, observing that tlie onlj"^ distinction here was that the( legal estate was vested in trustees, which made no substantial difference. [In Finch v. Lane (m), the rule was applied to a case where the Whether it apparent contingency was, not the devisee attaining a par- is applica- ticular age, but his surviving the person to whom a prior the event is life-estate was devised. The devise was to the testator's unconnected ^ife for life, with remainder, as to part, to his brother for with the diTB ' 1. ' of the devi- life, and from and immediately after the death of the wife, ^^- subject to the brother's interest in the part, to M. in fee if she should be living at the death of the wife, but if M. should die before the wife without leaving issue, then to other persons : M. died before the widow, but left issue ; and it was held by Lord Romilly, that the case was governed by Phipps v. Ackers, and that M. took a vested remainder. *812 * On the other hand, in Doe d. Planner v. Scudamore (ra), where a testator devised to his brother A. for life, and after the death of A., to B. in fee, in case she should survive A., but not otherwise, and in case B. should die before A., then to A. in fee; it was held in C. P. that the remainder to B. was contingent, and that it had been destroj-ed by a fine levied by A. Edwards v. Hammond (which was the only case of this class then decided) was held not to be applicable, on the ground, stated by Lord Eldon, C. J., that it was there " matter of necessary implication that the estate should vest in the eldest son during his infanc}-, for whatever might be the construc- tion of the prior words it was clearly expressed that, unless the son died before twenty-one, the estate should not remain to the surrenderor" (o). But in Bromfield v. Crowder it was expresslj' declared that the cir- cumstance of the devise over being in that case to a stranger made no difference (p) ; for it was clear that the testator meant no one to take his estate unless in the event of J. dying under twentj'-one. And this opinion is borne out by the other decisions. At all events the distinction taken by Lord Eldon was independent of the nature of the contiugencj' ; and the rule of construction appears to be as reasonably applicable where the contingency is that of the devisee being alive when the remainder naturallj' falls into possession, as where it is the attain- ment by him of the age which presumably in the testator's mind qualifies him for the possession and legal control. It will have been seen, however, that in Finch v. Lane the devisee was an ascertained individual. Where this is not the case, and the con- tingency does not exactly fit on to the prior interest, there is greater diflSculty in applying the rule. Thus in Price v. Hall (q) , where after a, (m) L. R. 10 Eq. 501. (re) 2 B. & P. 289. (o) Vide ante, p. 533. But this ground, or a nearly identical one, would have existed also in Doet). Scudamore if A., who was the testator's heir, was heir presumptive at the date of the will. (/)) 1 B. & P. N. E. 325. {g) h. K. 5 Eq. 399.] 802 ■WHETHER VESTED OE CONTINGEKT. *813 life-estate to A. the remainder was to the children of B. if he (B.) should leave any, and if he left none, over : A. died before B. ; and it was held by Sir W. P. Wood, V.-C, that the case was not within the rule. He observed that in Edwards v. Hammond and that class of cases, " the gift was to children on attaining a particular age, and the only words of contingency were that if the particular age was not attained, the estate was to go over, the effect of which was that although the estate vested immediatelj' it did not vest indefeasibly until the partic- ular age had been attained. But in * this case the contingency *813 which is introduced does not fit in with the prior interest. In Doe V. Nowell all the class was distinctly ascertained and indicated. . . . It is not here a gift to ascertained persons with a gift over, but there was a clear intention that the class should not be ascertained until the death of B., and that all those children who survived B., and those onlj', should take. By treating it as a remainder vesting immediatelj^ in the children living at the death of the tenant for life, it might happen that those children might all die in the lifetime of B., and yet be absolutely entitled, to the exclusion of after-born children who survived B. This was the very class of events not intended by the testator. He meant to give to any children of B. whom B. might leave living at his death. That was the particular period pointed out for ascertaining the class." The result was that the remainder was contingent, and failed for want of a particular estate to support it.] And it is impossible to hold the devise to vest immediately, by the application of the doctrine in question, in opposition to an express declaration that the devisees shall not take vested interests until a certain age, especially if even the devise over, which supplies the argument for neutralizing this clause, is itself not without expressions which favor the suspension of the vesting. Thus, where (r) a testator devised a certain estate to his wife during her widowhood, remainder to A. (his nephew) for life, construction remainder to the children of A. in fee, as tenants in com- controlled by mon, and if there should be no child of A. living at his declaration wife's death or second marriage, then over: and, by a codi- that devisees ^ ' T 1 J shall not take cil of even date, the testator directed that neither A. nor vested inter- any issue of A., should, bt/ virtue of his will, take or he consid- ^^'^" ered as entitled to a vested interest, unless they should respectively attain the age of twenty-one years ; and that, in case of the death of any of such children under such age, then the share of such child or children so dying should go to the surviving brothers and sisters, or brother or sister, their, his, or her heirs and assigns, upon their respectively attain- ing the age of twenty-one years. It was contended that the testator, by the clause respecting the vesting, intended not to postpone the vesting, but merely to declare when the shares should become absolute and (r) Russel v. Buchanan, 7 Sim. 628, 2 Cr. & Mee. 56X ; compare. Bland v. Williams, 3 My. & K. 411, stated post. 803 *814 DEVISES AND BEQUESTS, indefeasible, as was shown by the survivorship clause, which otherwise was superfluous, and, accordingly, that the children took vested *814 interests, subject to be divested on their * dying under twenty- one. The Court of Exchequer, however (on a case from Chan- cery) , certified an opinion that the vesting was postponed until the age of twenty-one.^ Sir L. Shadwell, V.-C, on confirming the certifi- cate, observed that the concluding words showed that the testator had the same intention at the end as at the beginning of the instrument. The rule of construction under consideration is also excluded by a Declaration declaration thatthe devisee shall take a vested interest at the SriSrveft- ^"*"® period, as such a declaration obviously cames with it ing, b3' fix- an implied negation of an earlier period of vesting (s) . pefiod."'"^ Nor, it seems, does the rule apply where the attainment Euie of pre- °^ ^^^ prescribed age is not the only circumstance by which ceding cases the testator marks the time at which it shall be determined We'wherT" whether the estate shall vest or finally become liable to be condition is divested ; but there is a preliminary act to be done by the formed by devisee, in the nature of a condition precedent, before his devisee. title accrues. Thus, in Phipps v. Williams (0, the residue of the real estate was devised to trustees, upon trust to accumulate the rents until C. should attain the age of twenty-four years, and then to convey unto C, upon Ms securing certain annuities (therein bequeathed) to the satisfaction of the trustees, the legal estate in the testator's free- hold, copyhold, and leasehold hereditaments ; but in case the said C. should depart this life before he attained the age of twenty-four years, without leaving issue, then upon certain other trusts. Sir L. Shadwell, V.-C, held, upon the principle above suggested, that the devisee de- rived no interest under the trust, until the attainment of the prescribed age, and the performance of the condition. [Upon appeal, Lord Brougham held, that as the terms of the devise -involved no more than the law would have implied, nameljs that the devisee must take subject to the annuities, there was no condition precedent, or indeed subse- quent either : he admitted, however, that, if there had been, it would have made a great difference in the argument (i!) .] But though the devise over has been generally considered as the Wliether characteristic of these cases, 3'et the construction was there need be adopted in Snow v. Poulden (m), where there was no such gift over. devise, the words of the will being, " The rest of my prop- Glanvill «. Glanvill, 2 Mer. 38; [but see further on this point, s. 6 of this Ch. ad fin.'] 5 Sim. 44, [3 CI. & Fin. 665, 9 Bli. N. S. 430 (Acliers v. Pliipps).] (u) X Kee. 186. 1 InThomsonw.Ludington, 104 Mass. 193, survived the testator, but died before the it appeared that a testator by his will gave death or marriage of the widow, and left a his estate to his widow during her life or wid- child born in the testator's lifetime, and it owhood, and at her decease or marriage "to was held that the child had no interest in the such of my children as shall then be living, estate. 'I'ue same was decided in Olney v. share and share alike; the names of my said- Hull, 21 Pick. 311 ; Leighton v. Leightori, 58 children are A., B., C, D., and E., to them Me. 63 ; Emereon v. Cutler, 14 Pick. 108. See and to their heirs and assigns forever." B. Nash v. Nash, 12 Allen, 345. 804 WHETHER VESTED OE CONTINGENT. *816 erty to be invested in land, and given to my grandson ; wlien of age, to have a commission in the army regulars at twenty-one ; to remain in * the army seven years, and not to be of age to receive this *815 until he attains his twenty-fifth year, and to be entitled to him and his male heirs, bearing the name of F. forever." Lord Langdale, M. R., held, that the grandson took an immediate vested interest as tenant in tail in the land to be purchased, subject to be divested if he should not attain twenty-five ; and, consequently, that the rents were applicable to his benefit during his minority. [No reasons are reported ; but the express direction that the property should be " given to" the grandson may well have been taken to con- stitute an immediate devise independently of the subsequent clause postponing the right of "receipt." But in the two cases next stated there was no such independent gift, nor any express gift over on death before the prescribed age (a:). Thus, in Simmouds v. Cock(y) the tes- tator gave the rents and income of his real and personal simmonda estate to his wife for life, and after her death he gave all his "• ^°''^- real and personal estate unto and to the use of his sons A., B., and C, and his granddaughter D., provided she lived to attain the age of twenty-one years, their respective heirs, &c., absolutely. It was held that the share of D. vested in her immediately, to be divested if she died under age. A devise to A. " provided she marries my nephew on or before attaining twenty-one," or " provided she goes to Rome before she attains twent3--one," would, said the M. R. , give a vested interest, subject to a condition subsequent: why a devise to A. "provided she lived to attain twenty-one " should not also be a condition subsequent he could not understand. Again, in Andrew v. Andrew (z), where a testator devised lands to his son T. for life, " and from and after his decease unto his Andrewo. eldest son if he shall have arrived at the age of twenty-one, Andrew. or so soon as he shall arrive at that age ; and in default of his having a son, then to the eldest son of testator's son H. forever ; " it was held by Sir C. Hall, V.-C, that nothing vested in the eldest son of T. until he attained the prescribed age, because there was no express gift over on his dying under that age. The intermediate rents therefore were un- disposed of. But this was reversed by the L. JJ. Sir W. James observed that it must be conceded that the words of gift to T.'s, eldest son standing alone would have been a mere gift of a future contingent interest. But they were preceded by the life-estate to T. and ♦followed by the words " and in default of his having a son I *816 give and bequeath the same to the eldest son of H. forever ; " words which had uniformly been held to mean that the estate was not to go over as long as there was any issue male, and which therefore conferred an estate tail male on T., subject to the previous estate to his [{x) And see Peard v. Kekewich, 15 Beav. 166 ; Attwater v. Attwater, 18 Beav. 330. (y) 29 Beav. 155. {z) 1 Ch. D. ilO. See also Jul! v. Jacobs, 3 Ch. D. 703, 713. 803 *817 DEVISES AND BEQUESTS, eldest son (J). "There is a long category of cases, from verj' early times, down to a very recent decision of the M. E. (c), in which the words ' if,' ' when,' ' so soon as,' have been held from the context not to import contingency in the sense of a condition precedent to the vest- ing, but to mean a proviso or condition subsequent, operating as a de- feasance of an estate vested, and we should be well warranted by the authorities in so dealing with this case, inasmuch as the limitations were plainly intended to make a complete settlement of the property to one for life, then to his eldest son on his attaining twenty-one, with a remainder {qu.) over to the other descendants (which would necessarily take effect on that son's dying under the prescribed age) with an ultimate re- mainder over to another branch of the family. But all doubt and diffi- culty are removed b^' the fact that the gift is actually' expressed to be what without the express words we should have implied it to be, vi?., that the gift is expressed to be 'from and after' the death of T. A man cannot have an estate ' from the death ' if he is not to have it for several years after the death, and possibly not at all ; and to construe the words as contingent we should have to strilte out the word ' from,' and that in order to make for the testator a most unreasonable wUl. But taking the word ' from ' in its natural meaning, and taking the words apparently contingent to have the meaning which has been so often given to them in so many cases, the whole thing becomes sensible and intelligible. The limitations, therefore, have to be read thus : ' To T. for life, remainder to T.'s eldest son in fee (rf), with an executory devise in tail to T. if that son should die under twenty-one.' " The decision thus turned on the force attributed to the expression "from and after the death;" an expression generally regarded as being equivalent merely to " remainder." The authorities to which the Jl,. J. alluded were probably those which had been cited in argument, viz., Bromfleld v. Crowder, and others of that class. But save *817 for the principle that words * apparently contingent may be con- trolled by the context, they are not very closely in point. In them (e) the vesting was inferred from the gift over : in Andrew v. An- drew the gift over was inferred from the pre-supposed vesting (/) . Alexander v. Alexander (g) was not cited. There, a testator by will, in 1813, devised his "freehold estate at V." to his son T. for life, " and from and immediately after his decease" the testator devised "the (i) See Ch. XXXVIII. (c) Semb. Simmonds v. Cock ; Musfcett v. Eaton, 1 Ch. D. 435, stated post, was not then re- ported. (d) The will bore date 1832, but the fee was held to pass by virtue of the implied gift over on death under afte. See Ch. XXXIII. (e) Except in Simmonds v. Cock. (./ ) Referring'to an argument at the bar, the L. .J. added: " Tt assumes that the estate to the son fW mo^ »es( on the father's death. But we hold that it did so vest." This impliedly asserts that the estate was contingent on the son surviving the father; and some other parts of the judgment, particularly where the words " liave an estate " are applied to the two dif- ferent events of T.'s death and the son attainingtwenty-one, would suggest the same construc- tion. But the expressions in question must probably be regarded as mere inaccuracies ; as also must the expression " remainder " when used of an estate coming after the son's fee-simple. ig) 16 C. B. 59. 806 WHETHER VESTED OB CONTINGENT. *818 same unto the second son of the body of my son T. on his attaining the age of twenty-one years, but in default of there being a second son of the body of my son T., then I devise them to the second son of the body of mj son C. on his attaining twenty-one, but in default of there being a second son of the body of my son C. then I devise the same to the second daughter of my son C. on her attaining the age of twenty- one, but in default of there being a second daughter of my sou C, then to the right heirs of my son T." Here the limitations appear as plainly as in Andrew ?'. Andrew to have been intended to make a complete set- tlement of the property, and the gift to the second son was expressed to be, " from and after" the death of the tenant for life. But it was held that the devise to the second son of T. was a contingent remainder, not a vested estate in fee defeasible on his death under the prescribed age. Thus the most recent cases show little of the indisposition to extend the doctrine of Doe v, Moore which has sometimes been pro- Bistjnetion fessed (h), and which had in the mean time led to the estab- between gift lishment of a very material distinction between a devise to „; twentv- an individual or to a class, if or when he or they attain one, .-indone twenty-one, with a gift over on death under that age, and a who attain devise to " such of a class as shall attain twenty-one," with 'wenty-one. a corresponding gift over. Thus in Festing v. Allen (i), where there was a devise to the use of the testator's granddaughter for Festing v. life, and from and after her decease to the use of her chil- Allen. dren who should attain the age of twenty-one years, if more than one, in equal shares as tenants in common in fee, and if but one, then to that one in * fee ; and for want of such issue, over. It was *818 contended, on the authority of Phipps v. Ackers, that the chil- dren took vested estates in fee, subject only to be divested partially in ease of other children coming into being, or wholly in case of death under twenty-one. But Eolfe, B., who delivered the judgment of the court, said that in Phipps v. Ackers, and the cases there referred to, there was an absolute gift to some ascertained person or persons, and the courts held that words accompanying the gift, though apparently importing a contingency or contingencies, did in reality only indicate certain circumstances on the happening or not happening of which the estate previously vested should be divested, and pass from the first devisee into some other channel ; but that here there was no gift to any person who did not answer the whole of the requisite description, and no one who had not attained twenty-one was an object of the testator's bounty an}- more than a person who was not a child of the grand- daughter. Even if there were no authority establishing this to be a substantial distinction the court would not feel inclined to extend the doctrine of Doe v. Moore, and Phipps v. Ackers to cases not precisely (h) 9 CI. & Fin. 692. (i) 12 M. & Wels. 279, 5 Hare, 573. 807 *819 DEVISES AND BEQUESTS, similar. But in fact this distinction in a great measure formed the ground of the decision of Duffleld v. Duffleld(i) in D. P., and Eus- sel V. Buchanan. It was therefore decided that, as no child of the granddaughter had attained tw6nty-one when her estate determined, the remainder was defeated for want of a particular estate to support it(^). Again, in Bull v. Pritchard (I), where a testator devised his freehold estates to trustees, in trust for his daughter M. during her life, for her separate use, and after her decease, he directed his trustees to convey the said estates ' ' unto and equally between and among all and every the child and children of his said daughter M. who should live to *819 attain the age of twenty-three * years," in fee as tenants in com- mon ; " and, if there should be but one such child, then to such one child " in fee ; " but, in case there should be no such child or chil- dren, or, being such, all of them should die under the age of twenty- three years without lawful issue, then upon trust " to convey to the persons therein named. Sir J. Wigram, V.-C, said there were two classes of cases ; one, where the devise was to a part}"^ at a given age, and the property was given over if he died under that age ; the other, where the description of the devisee was such as to make the given age part of that description ; and he held that this case fell under the second class. It was not, he added, necessary for him to say whether greater violence would be done to the language of the will in that case than was done in some of the cases of the first class, as, for example, in Doe v. Moore (m) : the two cases were in principle widely different from each other. The V.-C. also held, that a clause contained in the will, direct- ing the trustees to apply each child's share, or so much thereof as they might deem necessary, towards their maintenance, did not vary the case. But there are no words so plain but they may be controlled bj' the context (n) : and in Muskett v. Eaton (o), where a testatrix devised a farm to A. for life, and in the event of his leaving a lawful son born, or to be born in due time after his decease, who should live to attain the age of twenty-one j-ears, unto such son and his heirs if he should live to attain the age of twenty-one years ; but if A. should die without leaving (i) 1 D. & CI. 268, 314, 3 Bli. N. S. 260. See also Newman v. Newman, 10 Sim. 51 ; Wills V. Wills, 1 D. & War. 439. (k) But as there were infant children who might attain twenty-one, the event on which the alternative remainder was limited had not happened, so that this remainder also failed. See now 40 & 41 Vict. c. 33, stated post, Ch. XXVI. (/) 5 Hare, 567. See also Stead v. Piatt, 18 Beav. 50 ; Holmes v. Prescott, 33 L. 3. Ch. 264, 10 Jur. N. S. 507 (in which Wood V.-C. examined the authorities) ; Perceval ». Perceval L. R. 9 Eq. 386 (same will); Rhodes ». Whitehead, 2 Dr. & Sm. 532; Re Eddel's Trusts, L. R. 11 Eq. 559; Braclcenburj' v. Gibbons, 2 Ch. D. 417 (wliere, however, there was no gift over). These oases have virtually overruled Browne i). Browne, 3 Sm. & Gif. 568; Riley v. Garnett, 3 De G. & S. 629 ; Doe d. Bills v. Hopkinson, 5 Q. B. 223, as to which see per Wood, V.-C., in ex parte Styan, Johns. 387, and in Holmes «. Prescott, supra, and post Ch. XL. s. 3. (m) See also, per "Sir W. Grant, M. R., Leake ». Robinson, 2 Mer. 386. (n) Per Wood, V.-C, Holmes v. Prescott, 33 L. J. Ch. 271. (0) 1 Ch. D. 435. 808 WHETHER VESTED OE CONTINGENT. *820 a son who should live to attain the age of twentj'-one years, then after the death of A., to B. and his heirs. A. died, leaving an infant son ; and Sir G. Jessel, M. E., held that the case was not within the i-ule in Festing v. Allen. He said : " The testatrix must be taken to have known the course of nature, and if the child had been born within nine months after the death of the tenant for life, he could not have been twentj'-one at the time when the particular estate determined. It is quite impossi- ble that she could have intended the attainment of the age of twenty-one to be part of the description of the person to take. Therefore, in my opinion, the son takes a vested estate subject to be divested in the event of his dj'ing under twenty-one." * It will be observed that the actual words of gift (p) are "to *820 such son if he shall live to attain twenty-one," and that " such son " must, here mean " son of A. born or to be born," exclusive of the qualification " who shall live to attain twenty-one," because the testator goes on to add that very qualification, so far as he intends it to be one — " if he shall attain twenty-one." So that on this ground alone the case was not within Festing v. Allen. The intention was made by the M. R. to depend on the rule of law which requires a continuing particular estate to support a contingent remainder : there was nothing else to suggest tliat the testatrix intended that the devisee should be twenty-one at the time when the particular estate determined. Generally, it is only when the words of the will are ambiguous that the construction of them can properly be governed by such considerations. The rule itself is now abolished by' statute (9).] It was at one period doubted whether a devise to a person after pay- ment of debts was not contingent until the debts were paid ; but it is now well established that such a devise confers an pa^ymento/'' immediately vested interest, the words of apparent postpone- "J«i"s- ment being considered only as creating a charge {r) . The several preceding classes of cases clearly demonstrate that the courts will not construe a remainder to be contingent, merely Qg^eral re- on account of the inaccurate and inartificial use of expres- mark on pre- sions importing contingency, if the nature of the limitations °'"^™^ ^^^^^' affords ground for concluding that they were not used with a view to suspend the vesting. Such cases may be considered, however, as ex- ceptions to the general rule ; and, agreeably to the maxim, exceptio prohat regulam^ they confirm, rather than oppose, the doctrine that de- vises limited in clear and express terms of contingency do not take effect, unless the events upon which they are made dependent happen, which cases we now proceed to consider. (p) See also Bradley 1;. Barlow, 5 Hare, 589, where the clear ternjs of contingency occurred in the maintenance clause, not in the gift of the legacy. (}) 40 & 41 Vict. c. 33. See Ch. XXVI.] (r) Bamardiston v. Carter, 1 P. W. 505, 509, 3 B. P. C. Toml. 64; see also Bagshaw v. Spencer, 1 Ves. 142; and some very able opinions stated 1 Coll. Jur. 214. Those of Lord Eldon (then Sir John Scott) and Mr. Fearne, are particularly worthy of attention. 809 *821 DEVISES AND BEQUESTS, III. The first remark suggested by this class of cases is, that an estate will be construed to be contingent, if clearly so ex- limM in pressed, however absurd and inconvenient may be the conse- cieai; terms of quences to whlch such a construction may lead, and "' *821 however * inconsistent with what it may be coTi/ectorerf would have been the testator's actual meaning, if his attention had been drawn to those consequences.^ Thus, in Denn d. Eadcliffe v. Bagshaw (s) , where the devise was to the testator's onl}' daughter M. for life, and after her decease to the first son of her bod}^ if living at the time of her deaths and the heirs male of such first son, remainder to the other sons successively in tail, in like manner, remainder to testator's nephew in tail. M. had issue an only son, who died in her lifetime, leaving issue. Whether such issue Was entitled under the devise in tail (<) to'this first son, was the question. It was contended for him, that the testator must have intended that the nephew, who was otherwise amply provided for by him, should not take until failure of all the descendants of his daughter ; and that, to accom- plish this intention, the court would either construe the estate of the daughter to be an estate tail, or hold that an estate tail vested in the son on his birth ; and that the words, " if living at the time of her death," merely marked the period when the remainder should commence in possession, as in the cases before discussed. But the court (reluctantly, on account of the hardship of the case(M)), decided, that the son not having survived his mother, his estate never arose. Lord Kenj-on ob- served, that the cases cited for him proceeded on informal words ; whereas here correct and technical expressions were used throughout {x). So, in Holmes v. Cradock (j/) , wliere a testator devised freehold, „ . , ,, copyhold, and leasehold estates to F., his heirs, &c., upon Devises held i ., ' ... . , to be contin- trust to paj' testator s wife an annuity of lOOZ. for her life, wTthstandiiK' ^"^ ''° P'''^ ^^^ residue of the annual profits to testator's son absurd conse- W. during the life ot his mother ; and if his son should quence. happen to die before his mother, without leaving a widow or (s) 6 T. R. 512; see also Wingrave «. Palgrare, 1 P. W. 401 (arising on the limitation of a term in a settlement). {f) For such it clearly would have been. See infra. {u) Sugfjesti(ms to Persons taking Instructions ^for Wills as to suspendiny thu Vestintj. — Per- sons taking instructions for wills, in which the vesting is to depend on the devisee or legatee attaining a particular age or living to a given period, sliould carefully ascertain that the pos- sibility of his dying in the mean time, Umini/ issue, is in the testator's contemplation. It is probable that in general this event is overloolced; and that if the testator's attention were drawn to the circumstance, he would either malte the interest vest in the legatee, in case of his dving leavhig issue before the prescribed age or period, or else substitute the issue m such event. [(x) Cf. Jenkins v. Hughes, 8 H. L. Ca. 671, an informal will.l (S) 3 Ves. 317; [see also Vick ». Sueter, 3 Ell. & Bl. 219.] 1 See ante, p. 814, note 1. In Nash v. Krumbaar v. Burt, 2 Wash. C C. 406. On Nash, 12 Allen, 345, the question arose the other hand, sucli an interest would go to whether a contingent gift of land to such of tlie assignee under the English bankrupt act the testator's children as should be living at and under the Massachusetts statute ofjnsol- the death of their mother would pass to an vency. Higden v. Williamson, 3 P. Wins, assignee in bankruptcy under the United 132, Gardner ». Hooper, 3 Gray, 398; Wins- Stafea bankrupt law of 1841. It had been de- low ». Goodwin, 7 Met. 363. And it was de- cided that such an interest would not pass to cided tliat the assignee might take under the the assignee under the bankrupt law of 1800. law of 1841. Nash v. Nash, supra. 810 WHETHER VESTED OR CONTINGENT. *823 child, then in trust to pay all such profits to her for life, and subject to the said trusts, that the said F. should stand seised to the use of the testator's said son, his heirs and assigns, forever, subject and chargeable with * the legacies thereinafter given. In a subse- *822 quent clause he proceeded thus: "And if my son shall die, leaving my wife, without leaving a wife or any child, after his death and my wife's, I give and bequeath," certain legacies, " which I charge upon mj' real estate, hereinbefore limited to my son and his heirs." The son survived his mother, and died without leaving wife or child ; and Sir R. P. Arden, M. R., held, that the legacies did not arise, on the ground that he was not warranted in totally rejecting words, unless they were repugnant to the clear intention manifested in other parts of the will (e). So, in Shuldam v. Smith, lessee of Matthews (n) , where a testator de- vised to certain persons for life, and after the death of the survivor unto all and ever}' the children of his late sister C, b}' her three several hus- bands (naming them) , that should be then living, and to their lieirs and assigns, equally to be divided between them as tenants in common, and not as joint-tenants : and if there should be but one such child, and no issue of any of the other children then living, then, and in that case, he devised his real estate unto such surviving child, his or her heirs and assigns forever. At the death of the surviving tenant for life, one child of C. only was living, but there was issue of several of the other chil- dren. It was held in D. P. that in this event the remainder in fee was undisposed of. Lord Eldon said, you cannot, by implication or supply- ing words, give the whole to one child, in an event in which the testator has said, that such one child shall not have it (5), nor devise the estate into different aliquot parts between one child and the issue of the others, where the testator has not told 3'ou what aliquot part is to be given to one, and what to the issue of the others. Lord Redesdale observed, that the testator had provided for the event of there being more than one child, and that of there being only one and no issue of the others then living. The third event, however, was that which had happened, and in that event there was no disposition. * [And in Madison v. Chapman (c) , where a testator directed *823 that, when the j'oungest of his two daughters . had attained (z) Remarh on Holmes v. Cradoch. — But- was there not fjronnd to contend, on the principle of Pearsall «. Simpson, and that class of cases (ante, p. 807), that the devise miffht be read " if my son shall die without leaving a wife or child, then after liis decease, and nfter my wife's decease, if he shall die leaving my wife " 1 There can be little doubt that Sir W. Grant would so have construed it. It is observable that neither Webb v. Hearin;;, nor the anony- mous case in Ventris, 363, was cited to Sir R. P. Arden, wlio reiied much on Calthorpe v. Gough, cit. 3 B. C. C. 395, and Do? «. Brabrant, 3 B. C. C. 393, 4 T. R. 703. (a) 6 Dow, 22, [Sug. Law of Prop. 416 ; see also Parsons v. Parsons, 5 Ves. 578 ; Dicken f. Clarke, 2 Y. & C. 672; Clarke v Butler, 13 Sim. 401; Lenox v. Lenox, 10 Sim. 400.] (i) That is, not expressly, but constructively by giving to one, if there should be no issue of the others; for it is observable that, if it had stood upon the former part of the devise alone, tlie sole surviving child would clearly have taken. [{<-) 4 K. & J. 709. See also Coulthurst v. Carter, 15 Beav. 421, fourth point; Pride v. Fooks, 3 De G. & J. 252. 811 *824 DEVISES AND BEQUESTS, Limitation twenty-one, his real and personal estate should be divided stnied''st"rici> ^"^^^ three equal parts, one part to be for his- wife, and l,v and held to one of the remaining two for each daughter; at his wife's iK)t' leaving decease her share to be equally divided between his two happened. daughters ; provided, that if either of his two daughters should die before a division of his property should have been made, and having no surviving issue, then the part of the deceased should go to the surviving sister. By a codicil, the testator provided that if both his children should die in their minority (d) , and leave no issue, then in such case, and in such case only, he gave the whole of his property to his wife for life with remainder over. The elder daughter attained twenty-one, but both died before the jounger attained that age, and without having been married. It was held by Sir W. P. Wood, V.-C, that whether the interests under the will were vested or not(e), and whether a reasonable motive could or could not be assigned for the condition upon which the testator had made the limitation over in the codicil to depend, that condition must be construed strictly, anji that, this event not having happened, the limitation over failed. " The condition," said the V.-C. (viz. the death of the elder daughter during minority), " is not merely an event essential to the determination of the interest previously' given to her, but involves a further incident, which may or may not have happened when that estate is deter- mined (/) . "When I find a testator expressing this varied contingency, by his will giving an interest which may be determined by a death after minority, and by his codicil making a limitation over which is only to talte effect in the event of death during minority, it is impossible to know what he intended, or to foresee what he would have said had it been called to his attention that the two limitations did not coin- cide."] Where testa- The same rigid rule of construction prevails, where a tes- lor QGV1S6S upon con- tator has disposed of an estate in a certain event onlj-, under tingency. ^jjg erroneous impression, that his power of disposition is Tnisconceiv- f t ir tr ing the ex- confined to such contingency. powefo'f'dis- Thus, in Doe d. Vessey v. Wilkinson (y), where position. *824 lands had been * settled on A. for life, remainder to trustees, to raise, in case W. or any of his issue should be living at her (A.'s) death, 1,000?. for such persons as A. should appoint, remainder to W. for his life, remainder to his children in tail, remainder to A. in fee. A. by will, reciting the settlement, gave the 1,000?. in case W. or any of his issue should be living at the time of her death, to B. She then proceeded to declare, that " in case neither the said W. , nor any issue of his, should be living of the time of her (d) "Minority" was construed in its ordinary sense; not, as contended for, the period until the youngest daughter attained twenty-one. le) The court, however, thought they were vested. (/) See ante, p. 809.] (g) 2 T. E. 209. 812 WHETHER VESTED OR CONTINGENT. *825 decease, by which event the premises would devolve upon her and her heirs," then she gave the same to trustees for 500 years, to raise certain sums of monej- within six months after her decease ; and from and after the expiration or other sooner determination of the said term, and subject thereto, the testatrix gave the premises to her brother for life, with remainder to lier (testatrix's) daugliter C. in fee ; but if slie died before twentj'-one and without issue, to her son-in-law B. in fee, he paying certain legacies. W. survived the testatrix, and afterwards died without issue ; and the question was, whether in that event the devises took effect. The court agreed that the limitation of the term was void in event; and Grose, J., and Ashurst, J., held that the devise of the inheritance was dependent on the same contingency. Bnller, J., did not deny effect to the words of contingency, but confined them to the term, holding it to be a vested devise of the inheritance, subject to a contingent term (/;) . The argument that the testatrix might not be aware of her power to dispose of the estate, in case of the death of W. without issue after her death, and that, had she been so, the whole of the will showed that she would have given it to W., was conclusively answered bj' Grose, J., who said that, "if she was not aware of her power to give, she did not intend to give ; and then the law gives it to the heir, and we cannot take it from him. If she had known her power to dispose of it, she possibly would have given it, and probablj- might, but she has not said so ; and if we were to say so, it would be our will, and not hers." Still, however, where the construing of the devise to be ytere hold- contingent, in accordance with the letter of the will, would vise to be con- have the effect of rendering nugatory a pm-pose clearlj' 'i^f^^t'lu^'J' expressed hj the testator, the court will struggle to avoid ckved object such a construction. fj^" '^''*- Thus, in Bradford v. Folc}' (i), where the devise was in trust * for the testator's son for life, and after his decease unto *825 the first and everj^ other son which he (the son) should have by any future wife in tail ; remainder to the daughters of such future marriage in fee ; with a proviso, that if his son should thereafter marry with any woman related in blood to M. his then wife, all the above uses, so far as they related to the issue of such future marriage, should cease and determine, it being the testator's steadfast resolution, to hinder that no person any ways of kin to her in blood, or born or descended from anj' such person, should inherit any part of his said estate ; and in svch case, notwithstanding there should be issue of his said son by such future marriage, living at the time of his (testator's) decease, it was his will that neither thej', nor either of ttjfm, should take any thing under his wiU ; hut that the trustees should stand seised to (A) As to this point, see infra, s. 4. (i) Doug. 63. This case seems to be exacth' the converse of Driver d. Frank v. Frank, 3 M. & Sel. 25. 813 *826 DEVISES AND BEQUESTS, the use of his (the testator's) brother's children, living at his decease, and their heirs ; and in case they should all die in his lifetime, or after his decease, without issue, then he devised his said real estate to his own right heirs : he meant such heirs only as should be in no waj-s related in blood to the said M. , all of whom he thereby excluded from any right, title, or benefit, from his estate (k). The son died without marrying again. It was contended, that in this event the ulterior estates never arose ; but the court held, that the testator's brother's children were tenants in tail. Lord Mansfield said nothing could be clearer than that the testator meant that no child of M. should take in any event ; and yet, according to that argument, such child, if there had been one, must have taken (as heir at law). The words in this case were certainly very strong, and to a judge less disposed than Lord Mansfield to relax the strict rules Bradford o. of Construction, they probably would have appeared to Foley. present an insuperable difficulty to holding the testator's brother's children to take in any other event than that of the son's future marriage, especially as this construction extended the devise beyond what was absolutely necessar3' to effectuate the testator's pro- fessed object, namely, the exclusion of the obnoxious persons. He might have intended the devise in question to take effect only in case such pel-sons, came in esse. The case, however, stands distin- *826 guished from the others before noticed, in the fact, * that the devise in its literal terms was inconsistent with a scheme, not merelj' conjectured, but avowed bj' the testator {I). [So in Quicke v. Leach (m) , a testator devised lands to his wife until his son J. attained the age of twenty-five, " and in case his said son should attain his age of twenty-five and he (testator) should have any other child or children of his body living at the time of his death or that should be afterwards born alive," he devised his lands to trustees for 1,000 years upon the trusts thereinafter expressed ; and subject thereto, to his son J. for life with remainders over in strict settlement. The trusts of the term were declared to be for raising 5,000/. as por- tions for the testator's children, other than the eldest, that he might happen- to leave at his death; but if all his children except an eldest should die before their respective ages of twenty-five and twenty-one, then the sum of 5,000/. was not to be raised ; " provided always, that in case I shall leave no j^ounger child or children, or being such, all of them shall die before the said respective ages of twentj'-five or twentj'- one years, or in case the said sum of 5,000/. be raised, then the said (k) It seems that these words would not have amounted to a devise to the persons next in descent. Goodtitle J. Bailey v, Pugh, 3 B. P. C. Toml. 454. Consequently, a son or other relation of M., being the testatoi''s heir, would have taken the reversion bv" descent, notwith- standing this clause. Nothing will exclude the heir, but an actual disposition to some other personjante, p. 62;^]. (!) This case is given by Fearno (C R. 234), as an example of a limitation after a preced- ing estate, which preceding estate depends on a contingency which never happens, taking effect notwithstanding. (m) 13 M. & W. 218. 814 WHETHER VESTED OR CONTINGENT. *827 term of 1 ,000 years shall cease, determine and be utterliy void." J. attained the age of twenty-five, and was the only child whom the testa- tor left surviving him. The question was whether the devise of the term had failed. It was held that it had not ; for there were two circumstances by which the testator had satisfactorily shown that he intended the term to take effect at his death in all events ; first, the clause of cesser provided that the term should cease on certain contin- gencies, one of which was the testator's not leaving any younger child. Such a proviso would be useless and unmeaning if, unless he left a 3'ounger child, the term was never to come into existence. A terra which never existed could not possiblj- cease (n). The other circum- stance was this : One of the trusts of the term was, that if the testator's wife should die before J. attained twenty-five, the trustees should allow him a sum not exceeding 400Z. per annum for maintenance. This trust could only be performed by means of the term, and therefore necessa- rily pre-supposed its existence : and it was a trust not made to depend bj- any * necessary or reasonable construction of the *827 words used on the event of there being a younger child.] As a devise expressly made to take effect on a contingency will not arise unless such contingency happen, it follows a fortiori Vested gift that an estate once vested will not be divested, unless all unless ail ' the events which are to precede the vesting of a substituted 5,''° events ^ , ^ happen. devise happen (o). And this, it is to be observed, applies as well in regard to events which respect the personal qualification of the substituted devisee, as those which are collateral to him. In every case the original devise remains in force, until the title of the substi- tuted devisee is complete. Thus, if a devise be made to A., to be divested on a given event in favor of persons unborn or unascertained, it will not be affected by the happening of the event described, unless, also, the object of the substituted gift come in esse, and answer the qualification which the testator has annexed thereto. Thus, in Harrison v. Foreman (p), where a fund was bequeathed to A. for life, and after her decease to P. and S. in equal moieties ; and in case of the death of either of them in the lifetime of A. , then the whole to the survivor Uvinff at her decease. Both died in her lifetime ; and Sir R. P. Arden, M. E., held, that the original gift was not defeated. So, in Sturgess v. Pearson (q), it was held, that a gift to a person for (n) Bat the term was to " cease, determine and be void" upon any one of three events ; 1, there being no younger children ; 2, their dying under age ; or, 3,' the money having been raised. Might not the words have been read distributively ? [(o) Co. Lit. 219 b] ; Doe v. Coolte. 7 East, 2G9, ante, p. 521 ; Doe v. Rawding, 2 B. & Aid. 441, ante. p. 622 ; see also Doe d. Usher v. Jessep, 12 East. 288 : [Wall v. Tomlinson, 16 Ves. 41.3; Vulliamv v. Huskisson. 3 Y. & C. 80.1 (;)) 5 Ves. 207. (?) 4 Mad. 411; [Kimberley i). Tew, 4 D. & War. 139; Masters v. Scales, 13 Beav. 60; Peters v. Dipple, 12 Sim. 101; Clarke v. Lubbock, 1 Y. & C. C. C. 492; Eaton v. Barker, 2 Coll. 124; Benn v. Dixon, 16 Sim. 21; Walker v. Simpson, 1 K. & J. 719;] and see Hulme o. Hulme, 9 Sim. 644, stated post, Ch. XXVI. 815 *828 DEVISES AND BEQUESTS, life, and after Ms death to Ms tKree cMldren, or such of them as should he living at the time of his death, conferred a vested interest on the children, subject to be divested only in favor of those (r) who should be living at the prescribed period ; so that if all the children died in the lifetime of the tenant for life, the shares of the whole devolved to their respective representatives. And the same construction has sometimes been applied in cases, where the intention that the survivors (in whose favor the original gift was divested) should be living at the time of distribution, was less clearly marked. As, in Browne v. Lord Kenyon (s), where the testatrix gave *828 * 1,000Z. to which she was entitled by virtue of a deed of settle- Devise not ment (and which it seems was charged upon land), upon divested by trust for several persons successively for life, and after the clause^hich death of the survivor, upon trust to pay the principal to C. ; fails. ]3ut " if he be then dead" (which event happened), then to his two brothers in equal shares, or the whole to the survivor of them. Both the brothers survived the testator, and died pending, the prior life- interests. Sir J. Leach, V.-C, held, that they took vested interests at the death of the testator, subject to be divested if one only should sur- vive the tenants for life ; though he intimated a doubt whether the testa- trix did mean that either brother should take any interest without snrviving the tenants for life ; but his Honor said, the force of the expression was otherwise. So, in Belk v. Slack {t), where a testator gave the residue of his real and personal estate to trustees, upon trust for A. for life, and after the decease of A. and B. he gave the same to C. and D., to be equally divided between them, share and share alike, or to the survivor or sur- vivors of them. C. and D. both died in the lifetime of A. and B. ; and it was held that their respective representatives were entitled to the several moieties of the residue. [Where by the word ' ' survivor " is denoted, not one who shall be living at a defined point of time, but only one of several devisees who outlives the other or others, the construction is of course inapplicable. Thus, in White v. Baker (m) , where the gift was to A. for life, and. after his death to B. and C. equally, and in case of the death of either of them in the lifetime of A., the whole to the survivor of them ; it was held that the word ' ' survivor " referred to the event of one of the two persons, B. and C, surviving the other, and consequently that on the death of B. in the lifetime of A., the whole vested indefeasiblj' in C, although the latter also died before A. [(r) Re Clarlt's Trusts, L. R. 9 Eq. 378.1 (s) 3 Mad. 410. (0 ] Kee. 2.38; see also Jackson v. Noble, 2 Kee. 590; [Aspinall v. Audus, 7 M. & Gr. 912; Littlejohns v. Household, 21 Beav. 29; Page v. May, 24 Beav. 323 (correctiiip; Macdon- ald ». Brvce, Ki Beav. 581); Cambridge v. Rous, 25 Beav. 415; and see and consider Gibson «. Hale, i,7 Sim. 12!). (m) 2 D. I'. & J. 55. See this case cited again, Ch. XLVII. B. 3, where gifts to " surviv- ors " are treated at large. 816 •WHETHBE VESTED OB CONTINGENT. *829 The strictness of construction put upon a gift divesting a previous vested interest is further exemplified by Templeman v. Warrington (x), where a testatrix bequeathed her residue in trust for A. for life, and after her death in trust for her children ; but * in case there *829 should be but one child at A.'s death then to go to that one, and on failure of issue, as A. should appoint. A. had eleven children, three of whom died in her lifetime ; and it was held that as there were more children than one living at A.'s death, the deceased children were not divested of the interests which they took under the primar}' gift. And in Strother v. Button (y), where a testator gave to his daughter R. 1,000^. to be invested and the interest to be paid to her for her life, and at her death to be called in and distributed equally amongst her children ; "in case any lawful children are living from son or daughter being dead, the issue of their marriage, that such child or children shall be equally entitled to the part or share their parent would be entitled to if they had been living." R. had several children, of whom four died in her lifetime without issue ; and it was held that the shares which vested in them on their births, were not divested ; for the gift in favor of the issue of the children who had issue, did not afiect the shares of the children who died without leaving issue. The principle of the foregoing authorities prevails not only where the original gift is vested, but also where it is contingent, provided the contingency be not such as to prevent the contingent interest from being transmissible (z) . It will be observed that if a prior devise creates an estate tail, the owner of it, if it be vested, may, by executing a disentailing deed, defeat the gift over ; but this is no reason for importing the contingency into the prior gift in order to preserve the gift over (a).] Where a gift to several persons or such of them as shall be living at a certain time, is followed by limitations over in case of their dying under alternative circumstances (for instance, under twenty-one leaving issue, and under twenty-one without issue) , these executorj' gifts are held to apply only to the shares of objects who are living at the pre- scribed period ; to decide otherwise would be to reduce the words, " or such of them as shall be then living," to silence (b) . (x) 13 Sim. 267; see also Bromhead «, Hunt, 2 J. & W. 459; Gordon v. Hope, 3 De G. & S. 351 ; and Terrell ». Cooke, 5 L. J. Ch. N.S. 68 ; Re Minor's Trust, 28 Beav. 50 (settlement) ; Corneck «. Wadman, L. E. 7 Eq. 80. See also Sliey v. Barnes, 3 Mer. 334; Hope v. Potter, 3 K. & J. 212; Malcolm v. Malcolm, 21 Beav. 225. (y) 1 De G. & J. 675. See also Baldwin v. Rogers, 3 D. M. &; G. 649 ; Etches v. Etclies, 3 Drew, 447, 2d point; Re Bennett's Trusts, 3 K. & J. 280; but cf. Stuart v. Cookerell, L. K. 6 Cli. 713; Read». Gooding, 21 Beav. 478. (z) Wagstaffw. Crosby, 2 Coll. 746; Re Sanders' Trusts. L. R. 1 Eq. 675 (dissenting from Willis V. Plaskett, 4 Beav. 208). When contingent interests are transmissible, and when not, is pointed out at the close of this chapter. (a) DaviesD. Richards, 13 C. B. N. S. 69, 861.] (6) Howes V. Herring, 1 M'Cl. & Y. 295. The rule, that estates vested are not to be di- vested unless all the events upon which the property is given over happen, seems to have beea generally adhered to, although an absurd and whimsical intention be thereby imputed to the testator. See Graves v. Bainbridge, 1 Ves. Jr. 562. [But where the original gift is in am- biguous terms which may import contingency, the conclusion that this is their true import is. VOL. I. 52 817 *831 DEA7ISES AND BEQUESTS, *830 * rv. When a contingent particular estate is followed bj» other _ . limitations, a question frequently arises, whether the con- whethercon- tingency affects such estate only, or extends to the whole tinSuo'par"' Series. The rule in these cases seems to be, that if the ticuiar estate, ulterior limitations be immediately consecutive on the par- "serieTof " ticular contingent estate in unbroken continuity, and no limitations, intention or purpose is expressed with reference to that estate, in contradistinction to the others, the whole will be considered to hinge on the same contingencj' ; and that, too, althougfi the con- tingency relate personally to the object of the particular estate, and therefore appear not reasonably applied to the ulterior limitations. .Thus, where an estate for life is made to depend on the contingency of the object of it being alive at the period when the preceding estates determine, limitations consecutive on that estate have been held to be contingent on the same event, for want of something in the will to authorize a distinction between them (c). In Moody v. Walters, the limitations in a marriage settlement were Contingency ^ *^® husband and wife successively for life, remainder to held to ex- the first and other sons in tail male ; with remainder, in case line of limita- he (the husband) should die without leaving any issue male then tions. born, and alive, and leaving his wife with. child, to such after- born child or children, if a son or sons : remainder to the brother of the settlor for 120 years, if he should so long live ; remainder to trustees for preserving contingent remainders ; remainder to his first and other sons in tail male, with reversion to the settlor in fee. Lord Eldon expressed a strong opinion (though the case was not decided on thei point) , that the husband having died, leaving a son, the limitation to the posthumous son would not (if there had been one) have arisen, and that the ulterior hmitations failed with it. Such, he thought, would have been the construction, had it been a will. Instances in which a contingency has been restricted to the immediate Contingency estate are of two kinds. First, where the words of confined to *831 * contingency are referable to, and evidently spring estate. from, an intention which the testator has expressed in regard to that estate, by way of distinction from the others. As, in Horton v. Whittaker (rf) , where A., by his will, declared his Where the desire to provide for his sisters ; but considering that his referable to sister M., wife of W.-, was already well provided for during aided by the improbability of the testator intending to make the vesting or indefeasibility of a legacy to a class, depend on whether one or two only of the class survive a given period. Shum V. Hobbs, 3 Drew. 101 ; Daniel v. Gossett, 1& Beav. 478 (as to whicli, however, see L. R. 7 Eq. 82) ; Selby t>. Whittalier, 6 Oh. D. 239.] (r) Davis v. Norton, 2 P. W. 390; Dne d. Watson v. Shipphard, Doug. 75, stated Fea. C. E. 236; Moody v. Walters, IG Ves. 283: [Toldervy v. Colt, 1 Y. & C. 240, 627. 1 M. & Wels. 250; the same rule applies to personalty, Lett v. Randall, 10 Sim. 112; Fitzhenryw. Bonner, 2 Drew. 36; Cattley v. Vincent, 16 Beav. 198; Gray v. Golding, 6 Jur. N. S. 474.] (rf) 1 T. R. 346; see also Napper v. Sanders, Hutt. 119; Bradford v. Foley, Doug. 63, stated ante, p. 824; [Doe d. Lees ». Ford, 2 Ell. & Bl. 970; Doutty ». Laver, 14 Jur. 188: Darby v. Darby, 18 Beav. 412; Eaton v. Hewitt, 2 Dr. & Sm. 184.], 818 "WHETHBK VESTED OB CONTINGENT. *832'' the life of her husband, and therefore would not, unless she particular happened to survive him, want any assistance to enable her to estate only. live in the world, he devised his estates to trustees, in trust during the life of M., to pay the rents to his (the testator's) sisters T. and B. ; and after the decease of W. , in case his (the testator's) sister M. should be then living, in trust as to one third, to the use of the said M. for life ; and as to the other two thirds, to the other two sisters respectively for life ; remainder, as to each third, to the respective sons of each succes- sively in tail, with remainders over. M, died in the lifetime of her husband ; and the question was, whether the remainders did not fail by this event ; but it was held, that the contingency affected her own life estate only, and did not extend to the ulterior limitations. Secondly. The contingency is restricted to the particular estate with which it stands associated, where the ulterior limitations do „, , not follow such contingent estate in one uninterrupted limitations series, in the nature of remainders, but assume the form eftaterstand of substantive independent gifts. As, in Lethieullier v. asindepen- Traey(e), where A. devised land to his daughter for life, ""S'ts. remainder to her first and other sons in tail ; and, if she should depart this life without issue of her bod}'' living at her death, then he devised the land to trustees and their heirs., until N. should attain twenty-one, upon certain trusts. Item — the testator gave and devised the land in question to N. , after he should have attained his age of twenty-one years, for his life, with remainders over. Lord Hardwicke held, that the contingency of the daughter djang without issue living at her death . affected only the estate limited to the trustees until N. attained twenty- one, and not the subsequent limitations. He took tlie words, ','Item — I give and devise," &c., as a substantive devise, and not at all relative to the former devise to the trustees, on the contingency of the daughter dying without issue at her death. *So, in Pearson v. Eutter(/), where a testator devised his *832 messuage and farm at S. to trustees in trust for his grandson Robert in tail, and if he should die under age and without issue, then in trust for the testator's son Richard for his life, and after his decease, in trust for M. during widowhood, " and subject to the trusts herein- before thereof declared," in trust for A. and B. ; Robert died without issue, but having attained twenty-one, so that the trusts in favor of Richard and M. failed {g) ; but Lord Cranworth held, that the ultimate trust was to be read independently of the former clause, upon the same principle that, in the case of Lethieullier v. Tracy, the " item" clause was treated as a fresh departure, and a start upon a new disposition. (e) 3 Atk. 774, Amb. 204; and see Aislabie v. Rice. 3 Mad. 256. 3 J. B. Moo. 358, 8 Taunt. 459, stated infra; but see Doe v. Wilkinson, 2 T. R. 209, ante, p. 823. ■ [(/) 3 D. M. & G. 398 ; approved by Lord St. Leonards, and not appealed on this point. Grey v. Pearson, 6 H. L. Ca. 61, 103. (g) Vide ante, p. 511. 819 *833 DEVISES AND BEQUESTS, And in Boosey v. Gardener (A) , where a testator bequeathed to his two sisters the interest of his Long Annuities for their lives, and in case of one or both of their deaths before his, he gave the whole interest in Long Annuities to his brother for life ; at his death the testator gave half of the capital to his niece A., his brother's daughter, to help to bring her up, till she attained the age of twenty-one, then to receive" half the capital; likewise the testator bequeathed to his nephew S., his brother's son, if not further family-, the other half; in case of further familj-, to be divided between them, not dividing the half left to A. : it was held that the bequest to the niece and nephew, was not contingent upon the deaths of the sisters in the testator's lifetime. Turner, L. J., was not prepared to sa}', that if the question had depended only on the disposition in favor of the niece immediately following on the disposi- tion in favor of the testator's brother, the interest of A. might not properly have been held to depend on the contingencj^ but that the disposition in favor of the nephew could not, upon a sound construction of the will, and having regard to the foregoing authorities, be held to be governed by the words of contingencj', so far as the nephew was concerned ; and if not as to him, neither could the disposition in favor of the niece ; for the two dispositions were connected together, and formed part of one scheme. It is not, however, to be assumed that whenever the word "item," or " likewise," begins a sentence, it creates a complete severance ^, . of all that follows from the previously expressed on woid *833 * contingency. It cannot be put higher than this, '''"■ that such expressions make a prima facie case for the disconnection, which the context of the will may either maintain or rebut. In LethieulUer v. Tracy, Lord Hardwicke said that if the legal estate had been given to the daughter and her issue, and then after these words the whole had been given to trustees, and all the subse- quent limitations had been only declarations of that trust, in such case these words (of contingency) would have extendcfd to the whole. And in Pay lor v. Pegg (i), where a testator gave to trustees in trust Effect of word for his son until he attained twenty-one, or was able to "likewise." make a will himself, all his estate, lands, &c., and after a specific bequest of furniture to his wife, the testator bequeathed to her 20Z. a year so long as she should continue his widow if his son were living, and if his son should die before twenty-one, he empowered his wife to hold his estate for her life, if she continued his widow, but if she should intermarry, he gave her only lOZ. a j^ear for her life, if his son should be then living. Likewise he empowered two other trustees at the death of his wife to sell his real and personal estate, and distribute the proceeds to his wife, his nephews and nieces, and others. It was (h) 5 D. M. & G. 122. See also QuickC v. Leach, 13 M. & Wels. 218; Slieffield v. Earl of CoveutryL2 D. M. & (J. 551. (t) 24 Beav. 105. 820 ■WHETHER VESTED OR CONTINGENT, *834 held by the M. R., notwithstanding the word "likewise," that the power of sale was governed by the same contingency as the gift to the widow, viz. the death of the son under twenty-one. He was satis- fied it was not the intention of the L. JJ., in Boosey v. Gardener, to decide that wherever the word "liltewise" occurred, the contingency which governed the 'previous gift was not to govern that which fol- lowed, if the subject-matter was clearly connected.] V. The same general principles which regulate the vesting of devises of real estate apply, to a considerable extent, to gifts of Vesting of personalty.^ Wliatever difference exists between them, has pers"''nal °* arisen from the application to the latter of certain doctrines estate. borrowed from the civU law, which have not obtained in regard to real estate,'' having been introduced by the Ecclesiastical Courts, who [formerl}' {k)J possessed, in common with Courts of Equity, a jurisdic- tion for the recovery of legacies and distributive shares of personal estate. Pecuniarj- legacies charged on land(/) are. Pecuniary so * far as they come out of the real estate, to be *834 legacies considered as dispositions pro tanto of that species of landf property' (jn).^ A pecuniary legacy, whether charged on land or not, given to a person in esse simplj', i.e. without any postponement of paj'ment, is, of course, vested immediately on the testator's decease. In regard to sums payable out of land in futuro, the old rule was, that, whether charged on the real estate primarily, or in aid of the personalty, they could not be raised out of the land if the devisee died before the time of payment (n) ; but this doctrine has undergone some modification ; and the established distinction now is, that, if the payment j,. . . be postponed with reference to. the circumstances of the devisee where pay- of the money, as in the case of a legaej^ to A. , to be paid to ^n™ed wmf' him at his age of twenty-one years, the charge fails, as reference to formerly, unless the devisee lives to the time of payment (o) ; stances per- and that too, though interest in the mean time be given for ^onai to (S) This jurisdiction was abolished by 20 & 21 Vict. c. 77, s. 23. (/) Leaseholds are not land for this purpose, Re Hudsons, 1 Dru. 6 ; nor is money to arise from the sale of land, Re Hart's Trusts, 3 De G. & 3. 195; Turner v. Bucic, L. R. 18 Ea 301. (m) Duke of Chandos v. Talbot, 2 P. W. 602; Jennings «. Looks, ib. 276; Prowse v. Abingdon, 1 Atk. 482; Re Hudsons, 1 Dru. 6.] (n) 2 Vern. 439; Pre. Ch. 195; 1 E3. Ca. Ab. 267, pi. 2; [Pre. Ch. 290;] 3 Atk. 112; 1 Atk. 482. The ground of this rule, it should seem, was that the inheritance might not be unnecessarilv burthened. (0) Gawler ». Standerwicke, 1 B. C. C. 105 n., 2 Cox, 15; Harrison v. Naylor, 3 B. C. C 108, 2 Cox, 247; Phipps ». Lord Mulgrave, 3 Ves. 613; but see Jackson «. Farrand, 2 Vern, 424, [1 Eq. Ca. Ab. 268, pi. 8; this case is said to have been termed anomalous by Lord Hardwicke. Cotton v. Cotton, ib. n., 1 Atk. 486.] 1 See Ferson ». Dodge, 23 Pick. 287. show that the testator so intended. Foster v. The law favors the vestmg of legacies as Holland, 56 Ala. 474, 480. well as of devises, and will not declare them 2 gee May v. Wood, 3 Bro. C. C. (Perkins) contingent unless the provisions of the will 474, note (A). 3 See Brown v. Grimes, 60 Ala. 647. 821 *835 DEVISES AND BEQUESTS, ■devisee, and maintenance (p). Bnt, on the other hand, if the postpone- convenience ^^nt of payment appear to have reference to the situation or of the estate, convenience of the estate, as, if land be devised to A. for life, remainder to B. in fee, charged with a legacy to C, payable at the death of A., the legacy will vest instanter ; and, consequently, if C. die before' the day of payment, his representatives will be entitled ; the raising of the money being evidently deferred until the decease of A., in order that he may in the mean time enjoy the land fi-ee from *835 the bCirthen (9) .* But either of these * rules of construction, of course, will yield to an expression of a contrary intention. Thus, even where the payment is made to depend on a contingency, (.p) Peai-ce v. Loman, 3 VeS. 135; [Gawler ». Standerwicke, nh supra; Parker v. Hodgson, 30 L. J. Ch. 590.] (o) 3 P. W. 414; Cas. t. Talb. 117; 1 Eq. Ca. Ab. 112, pi. 10; Com. Eep.'716; 2 Atk. 127, 807; 3 Atk. 319; 1 Ves. 44; Amb. 167,230, 266, 575; 1 B. C. C. 119, n., 124, n., 192, n. ; Dick. 529; 1 B. C. C. 119; ib. 191; 9 Ves. 6: 4 Sim. 294; 2 Y. & C. 539; [2 Y. & C. C. C. 134; 3 Hare, 8fi; 7 Hare, 334; 1 M. D. & D. 418; 2 M. D. & D. 177; 1 H. L. Ca. 43, 57; and see Remnant v. Hood, 2 D. F. & J. 396.] ■ In Oakeley v. Kitchener, in Chancery, March 1827 (with a MS. note of which tlie writer has been favored), a testator devised to his wife an an- nuity for her life out of his real estate, and, subject thereto, devised his real estate to trusteed for 500 years to raise his debts and legacies. He gave a legacy of 1,000^ to each of his fou^ younger children, payable at twenty-one, as to sons, and twenty-one or marriage, as to a (laughter, with interest in the mean time, to be applied for their maintenance. He also gave them'ta further legacy of 1,000/. each to-be. paid within six months after the. death of the wife^ payable at twentv-one, or marriage, as before, with interest from her death. There was (tliough the fact does not appear to be very material) a gift over of the respective legacies on the death of the sons before twenty-one, without issue, or the daughters unmarried, to the survivors. It was held, that the vesting of the second series of legacies was not postponed until the decease of the wife, and, therefore, did not fail by the decease of (he children during her life. This' case, it will be perceived, agrees with the general distinction stated in the text, as the charge was evidently postponed until tiie death of the annuitant for the convenience of the estate. [See also Brown v. Wooler, 2 Y. & C. C. C. 134. Of course it makes no difference in the construction, that the reiriainder-man, whose interest is charged' with the legacy, dies before the tenant for life. The interest passes cum onere to the heir. Morgan v. Gardiner, 1 B. C. C. 193, n. But in Taylor v. Lambert, 2 Ch. D. 177, a legacy, charged on land devised to A. in fee, but not to be raised "until A. come into actual possession of the M. estate " (of which he was then tenant for life in remainder), failed through A. dying before the tenant for life in possession of that estate. The "convenient" time was always -uncertain and never arrived. See analogous rule as to personalty, Atkins v. Hiccocks, 1 Atk. 500, post, p. 839.] 1 Birdsall v. Hewlett, 1 Paige, 32 ; Harris Killet, 1 Bro. C. C. (Perkins's ed.) 124, note V. Flv, 7 Paige, 421; Loder v. Hatfield, of Mr. Eden; Furness v. Fox, 1 Cush. 134; 71 N.Y. 92, 102; Fuller v. Winthrop, 3 Allen, Eldridge v. Eldridgc, 9 Cush. 518. As to the 51; Bowker !J. Bowker, 9 Cush. 519; Port v. distinction upon the point between the he- Herbert, 12 C. E. Green, 540; S. C. 11 C. E. quest of a residue and the bequest of a par- Green, 278; Collier's Wili, 40 Mo. 287 ; Stone ticular legacy, see Monkhouse v. Holme, e. Massey, 2 Yeates, 363. Where payment is 1 Bro. C. C. (Perkins's ed.) 298. As to the deferred, either on account of some interest effect when interest is given before the time in the subject being given to a person on of payment, see Walcott v. Hall, 2 Bro. C. C. whose death the gift is to take effect, or some (Perkins's ed.) 305, and note (b) ; when main- difficultj' attending the collecting the testa- tenance, Pulsford ». Hunter, 3 Bro. C. C. tor's effects, the bequest is considered as in- (Perkins's ed.) 416, and notes; Hoath v. dependent of the time named, and the legacy Hoath, 2 Bro. C. C. (Perkins's ed.) 3, and is vested at the death of the testator. Daw- notes. A legacy will be considered as vested son V. Killet, 1 Bro. C. C. (Perkins's ed.) 124, where the interest of the legacy is directed to noteof Mr. Eden; ICibleri). Whiteman, 2Har- be paid to the legatee until Ae receives the ring. 401 ; Donner's Appeal, 2 Watts & S. 372 ; principal. Giftord v. Thorn, 1 Stockt. 702. Birdsall v. Hewlett, 1 Paige, 32; Eldridge v. A legacy to be paid when the legatee attains Eldridge, 9 Cush. 516; Childs v. Kussell, majority is vested, and should be paid to a ' 11 Met. 16. But where time is annexed to trustee designated bv the will. Caldwell o. the substance of the legacy, it does not vest Kinkead, 1 B. Mon.'231 ; Lister ». Bradley, before the period mentioned. Dawson v. 1 Hare, 10. See post, p. 837, note. 822 WHETHER VESTED OK CONTINGENT. *836 which might, abstractedly viewed, appear to spring from considerations personal to the legatee, as in the ease of a sum of money directed to be raised for a person at the age of twenty-one ;' yet the vesting will take place immediately on the testator's decease, if such be the declared intention (r) . And if such intention, though not expressly intimated, can be collected from the context, the exclusion of either rule will be no less complete. And- here it may be observed, that it is a circumstance always in favor of the immediate vesting, that the testator has ex- Gift over in pressly given over the legacy to another in the event of the °"^ event fa- legatee dying under certain circumstances ; the inference in all other being, in such case, that the legacy is meant to be raised events. out of the land for the benefit of the original legatee, in every event, except that on which it was expressly given to the substituted lega- tee (s) . On the same principle, where a testator provides that, in the event of his legatee, or one of the legatees, if more than one, dying in his own lifetime, the legacies should not sink into the land, but be raised for the benefit of some other persons, — a * strong argument is *836 naturally suggested, that the testator must intend the legacies to be raised for the benefit of the legatee absolutely, or, in other words, •that he should take a vested interest in case he does survive the tes- tator (t) . [And, on the other hand, although the time of payment ma}'' appear to be fixed with a view to the convenience of the estate, for instance, six months after the death of an annuitant, yet, if the direction be to pay at that time to the legatees, " or such of them as shall be then liv- ing," it is clear that the representatives of one who dies before the an- nuitant cannot claim a share in the fund(ie). And a gift thus, "I bequeath from and after the death of" an annuitant (annexing the time to the gift itself) , is not a present gift with postponed payment, but a postponed gift {v).'\ Sometimes a difficulty occurs in determining at what period a sum of (r) Watkins v. Cheek, 2 S. & St. 199. (s) Mwrkin v. Phillipson. Mui-kin ». Phillipson, 3 My & K. 257, where A. bequeathed to his six grandcliildren the flum of 50^. each, when the youngest should come of age, they to receive the interest in the mean time, when a certain estate should be sold, adding, " if either of those children should not live to come of age, nor have an heir bom in wedlock, the said 50/. to be equally divided among the surviving children." One of the grandchildren attained twenty-one, married, and afterwards died, during the minority of the youngest grandchild, leaving a child. Sir J. Leach, M. R., thought that though there was, in terms, no gift until the youngest grandchild attained twenty-one, vet as interest was given in the meantime, and payment was postponed for the convenience of the estate, the interests were vested ; and his Honor assented to the argument (which had been strongly urged at the bar), that as the ulte- rior gift showed that the legacy was intended not to sink into the land, if the legatee died under age, leaving a child, a fortiori it could not be meant that the legacy should sink into the land in the event of the legatee attaining-twenty-one, and afterwards dying, leaving a child. («) Lowther ». Condon, 2 Atk. 127, 130. Uu) Goodman v Drury, 21 L. J. Ch. 680; see Bruce v. Charlton, 13 Sim. 65. Xv) Be Cartledge, 29 Beav. 583.] 823 *837 DEVISES AND BEQUESTS, When pay- money charged on land is to be raised, from the absence of of pavmen™^ expressions fixing the time of payment.^ The cases on this being fixed, subject are not all reconcilable (x) , but it seems that, gen- erally, in such a case, the devisee would be entitled to have the money raised iramediatelj'. In Cowper v. Scott (y), 1,500Z. was to be raised, within six years after the testator's decease, out of the rents and profits, and interest at 4Z. per cent in the mean time, for his two j-oungest daughters, one of whom dying under age, and within the six years, it was held to belong to her representative, on the ground that there was no precise appointment when it should be paid ; the six years being mentioned as the ultimate time, and it was to be paid as much sooner Charges on as it could. But, if the testator have only a reversion in the reversions. lands charged, it is probable that the money would be held not to be raisable until the reversion fell into possession. This prin- ciple has prevailed in several cases in regard to annuities (z) . VI. "We now proceed to consider the rules which regulate the vesting Vesting of of personal legacies (a) , the pa3-ment of which is nersonal *837 * postponed to a period subsequent to the decease of Distinction *^® testator. A leading distinction is, that if futurity where time is is annexed to the substance of the gift, the vesting is sus- substance*of pended ; but if it appears to relate to the time of payment gift, and onl}^ the legacy vests instanter.^ Thus, where a sum of (x) See Cox's note to Duke of Chandos v. Talbot, 2 P. W. 612; but it is observable, that the cases there cited as decided on the principle that portions " do not vest, if the children die before they want them," arose in reference to portions under settlements, where the effect of holding the portions to vest insianter would have been to give them to the father, in the event of the children dying at a very early age, contrary to the obvious spirit and design of such provisions. [And see Butler's note IV. to Fearne, C R. 557.] (y) 3 P. W. 119; see also Wilson v. Spencer, 3 P. W. 172; [Emes v. Hancock, 2 Atk. 507; Hodgson V. Rawson, 1 Ves. 44.1 Norfolk v. Gifford, 2 Vern. 208, [as explained in Kaithby's note, went on a different ground.] (z) Ager V. Pool, Dyer, 371 b ; Turner v. Probyn, 1 Anstr. 66. [(a) Including bequests of money to arise by sale of land. Ke Hart's Trusts, 3 De G. & J. 195.] 1 A testator devised to his son M. B. the transmissibility to his executors or repre- farm on which said M. B. lived, and the sentatives, in the absence of evidence show- stock, &c., " by his paving " to D. B., another ing a different intention, on his being alive at son, one hundred dollars a year for seven the period .specified. See Bunch v. Hurst, 3 vears, without interest, the first payment to Desaus. 286; Perry n. Rhodes, 2 Murph. 140; be made in one year from the decease of the Mar.sh v. Wheeler, 2 Edw. Ch. 156; Caldwell' testator. It was held that upon the accept- v. Kinkead, 1 B. Mon. 231; Lister v. Bradley, ance by M. B. of the devise to him, the leg- 1 Hare, 10; Vize i'. Stoney, 2 Dru. & Walsh, acv to'D. B. vested, so that, on the death of 659; Watson v. Hayes, 9' Sim. 500; Chesnut D.' B. before the expiration of the seven ». Strong,lHill,Chri23;Kibleri!. Whiteman, years, his administrator could receive the 2 Harring. 401 ; Breedon v. Tuginan, 3 Mylne payment for the years that remained. Bow- & If. 289; Clapp v. Stoughton, 10 Pick. 463; ke'r V. Bowker, -9 "Cush. 519. See Furness v. Booth v. Booth, 4 Ves. (Sumner's ed.) 399, n. Fox, 1 Cush. 134. ("); Mackell v. Winter, 3 Ves. (Sumner's 1 Loder ». Hatfield, 71 N.Y. 92; Gifford ed.) 236; Batsford v. Kebbell, ib. 363; V. Thorn, 1 Stockt. 702. If the words " pay- Shattuck v. Stedman, 2 Pick. 468. A man by able" or "to be paid" are omitted, and the his will devised real estate to three iUegiti- .legacy is given at twentv-one, or if, token, mate sons, "if they should live to come of in case, or provided, tlie legatee attains age." It was held that during their minority twenty-one, or at anj' other future definite pe- it went to the heir at law. Jackson ». Winne, riod, this confers on him a contingent inter- 7 Wend. 47. See Butcher v. Leach, 5 Beav. est, which depends for its vesting, and its 392. A legacy, when the legatee shall attain 824 WHETHER VESTED OR CONTINGENT. *837 money is bequeathed to a person at the age of twenty-one 'where to /7^ i.i -A /. T r- 'J ■ ■, / J timeof pay- 5-ears (o), or at the expiration of a deflnite period (saj' ten ment only. j-ears) from the decease of the testator (c), the vesting, not the pay- ment merelj-, is deferred ; and, consequently, if the legatee dies before the period in question, the legacj- fails. But if the legacy is, in the first instance, given to the legatee, and is then directed to be paid at the age of twenty-one years, or at the end of ten j-ears after the testator's decease, the legacy vests immediately, so that, in the event of the lega- tee dying before the time of payment, it devolves to his representa- tive (d). As, in Sidnej- v. Vaughaii (e), where a testatrix bequeathed to A. 1001. , to be paid to him within six months after he should have served his apprenticeship to which he was then bound. A. did not serve out his apprenticeship, but ran away from his master, and, after the ex- piration of the term, died intestate. It was held in D. P. that A.'s ad- ministratrix was entitled to the legacy, with interest from the expiration of six months. So, in Chaffers v. Abell(/), where a testator bequeathed certain sums of stock to trustees, to pay 40Z. per annum to his daughter M. for life, and, after her decease, " to paj', assign and transfer the sum of 1,000/. stock equall}' amongst all and every the chUd and children of M., share and share alike, to be paid and transferred to them when and so soon as the (J) Onslow V. South, 1 Eq. Ca. Ab. 295, pi. 6; Cruse ». Barley, 3 P. "W. 20; [Re Wrang- ham's Trust, 1 Dr. & Sm. 358.] (c) Smell r. Dee, 2 Salk. -415; [see also Bruce v. Charlton, 13 Sim. 65. Compare Bromlev ». Wright, 7 Hare, 339, post, p. 841.] (d) Cloberry v. Lampen, 2 Ch. Cas. 155, 2 Freem. 2-t; Sfapleton v. Cheales, 2 Vern. 673, Pre. Ch. 317; Harvey ii. Harvey, 2 P. W. 21; Jackson v. Jacksoil, 1 Ves. 217. [(c) 2 B. P. C. Toral. 251.] It seems that if no interest were made payable on the legacy, the representative must wait until the legatee, if living, would have attained his majority; but if it carried interest, he would be entitled immediately. See Crickett v. Dolby. 3 Ves. 13; Feltham v. Feltham, 2 P. W. 271. (/) 3 Jur. 577 ; [see also Wadloy v. North, 3 Ves. 364; Williams v. Clark, 4 De G. & S. 472; Edmunds v. Waugh, 4 Drew. 275; Brocklebank v. Johnson, 20 Beav. 205; whence it appears that the court is always anxious lo find a gift independent of the direction to pay, or a direction to set apart a fund for payment of the legacy. But see Shuni v. Hobbs, 3 Drew. 93. twenty-one, may, in like manner, be controlled Brinker, 4 Dana, 570. A legacy to one, "if by the apparent intention to postpone tlie pos- he shall arrive at the age of twenty-one session only, not the vesting. Branstroin v. years, then to be paid over to him by my Wilkinson," 7 Ves. (Sumner's ed.) 421, and e.xecutor," is not a contingent but a vested note(«). See Chaworth e. Hooper, 1 Bro. C. C. legacy. Fumess v. Fox, 1 Cush. 134. But (Perkins's ed.) 82, n. ; Green v. Pigot, ib. 103, this rule of construction may be controlled by and notes; Walcott v. Hall, 2 Bro. C- C. (Per- evidence of a different intent of the testator kins's ed.) 305, and notes; Benvon v. Mad- appearing in other parts of the will. Eldridge dison, 2 Bro. C. C. C. (Perlcins'.s ed.) 75-78, v. Eldridge, 9 Cush. 516. A testator be- notes; Shattuck e. Stedman, 2 Pick. 468; queathed $1,000 to one of his granddaughters Scott V. Hrice, 2 Serg & R. 59; Bunch v. "at twenty-one years of age," and further Hurst, 3 Desaus. 283; Fonbl. Eq. b. 4, pt. 1, provided for her support out of this legacy c. 2, § 4, n. (A); O'Driscoll v. Roger, 2 during her minority, and by a subsequent Desaus. 295; Kerlin v. Bull, 1 Dall 175. clause in the will the testator bequeathed the Generally speaking, mdeed, a legac}^ to be same sum to this granddaughter, " when she paid when the legatee attains majority is becomes of age," excepting what might be vested. Caldwell v. Rinkead, 1 B. Slon. necessary for her support during her minority. 231; Lister v. Bradley, 1 Hare, 10: Rofe The granddaughter died underage. It was I'. Sowerby, Tanil. 376; Dawson v. Killet, held that her administrator was entitled to 1 Bro. C. C. (Perkins's ed.) 123. n. (n); maintain an action for snch portion of her Barnes v. Allen, ib. 182, n.(b); Corbin v. legacy, with interest, as had not been paid Wilson, 2 Ash. 178 ; Gregg v. Bethea , 6 Por- over for hev use during her lifetime. El- ter, 9; Reed v. Buckley, 5 Watts & S. 517; dridge v. Eldridge, supra. Johnson v. Baker, 3 Murph. 318; Roberts v. 825 *839 DEVISES AND BEQUESTS, youngest should attain Ms or her age of twenty-one years (g) ; and directed that, after the decease of his daughter, the dividends should be *838 applied for the maintenance of the children. At the death of * the testator, M. had four children, one of whom died before the youngest attained twenty-one. The j^oungest alone survived M. Sir L. Shadwell, V.-C, held that the four children took vested interests in the stock. There was, he observed, in the first place, a clear gift to all the children in the shape of a direction to pay and transfer, followed by another direction to pay and transfer, " when and so soon as ike youngest of such children should attain his or her age of twenty-one years." Words directing division or distribution between two or more objects Superadded at a future time, fall under the same consideration as a direc- dv'^f n*or ''^°'^ ^ P^^ ' ^^^i therefore, where the}- are engrafted on a distribution, gift, which would, without these superadded expressions^ confer an immediate interest, thej' do not postpone the vesting. Thus, a bequest to A. and B. of 3,000^., Navy 51. per cents, and all dividends and proceeds arising therefrom, to be equally divided between them, when they should arrive at twenty-four years of age, has been held to vest the stock immediately in the legatees (h). [The same rule prevails where payment is in terms postponed until the testator's debts are satisfied (i). or his assets realized (A), or an out- standing security is got in (I), or until certain real estate is sold (m), or monejf directed by the will to be laid out in the purchase of land is so laid out (ra). And an immediate gift to several is not made contingent by a superadded direction for distribution between them equally as three barristers should think fit, the discretion not extending, to authorize any alteration in the extent of the interests given to the legatees (o). It is of course immaterial whether the gift precedes or follows the direction to pay. Therefore, where a testator bequeathed a that the sum of money to trustees, in trust for his daughter for life^ words of di- g^jj^ after her death in trust to pay the same unto or between vision pre- ^ ^ cede those of or amongst all and every the children of his daughter, as and ^ when they should respectively attain the age of twentj^-one, *839 share and share alike, " to whom I give and bequeath the * same accordingly," Lord Cottenham held the legacy vested in the children on their birth (p). (9) This is said to mean "when the roungest child that lives to the age of twentv-one attains that age." Ford v. Rawlins, 1 S."& St. .328; Evans v. Pilkington, 10 Sim. 412; see Castle V. Bate, 7 Beav. 296.] (A) May v. Wood, 3 B. C. C. 471. [(0 Small v. Win^, 5 B. P. C. Tom!. 66. (k) Gaskell v. Harman, 6 Ves. 169, 11 Ves. 489. The position in the text seems to be warranted \>y Lord Eldon's observations in this case. The case itself was an extremely special one. (0 Wood v. Penovre, 13 Ves. 325. a. (m) Stuart v. Bruere, 6 Ves. 529, n. ; and see Tily v' Smith, 1 Coll. 434. ) fie Bartholomew, 1 Mac. & &. 354; and see Livesey v. Livesey, 3 Euss. 287, 542; King V. Isaacson, 1 Sm. & G. 371. 826 "WHETHER VESTED OR CONTINGENT. *840 But if it is clear from the language of the will that the attainment of a certain age is made a condition precedent to the vesting of The rule a legacy, such legacy will be contingent notwithstanding a ^.'^''J^ *" * gift of the legacy distinct from the direction to pay ; so that trary inten- a gift to A., to be paid in case he attained the age of twenty- ''""■ one and not otherwise, is contingent upon A. 's attaining that age(5'). So, where a testator clearly expressed his intention that the benefits given by his will should i;iot vest till his debts were paid (r), or until a sale directed thereby should be completed («), or until assets in a foreign country should be actually remitted to the legatee (<),'the intention was carried into execution, and the vesting as well as payment was held to be postponed («). And in all cases where] the payment or distribution is deferred not merely (as in the cases noticed above) until the lapse of a Legacy in un- deflnite interval of time, which w^ill [or ought to] certainly certain event. arrive, but until an event which may or may not happen, the effect, it should seem, is to render the legacy itself contingent. This distinction was recognized in Atkins v. Hiccocks (a;), where a sum of 200/. was be- queathed to A., to be paid at her marriage, or three months afterwards, provided she married with consent ; and Lord Hardwicke held that A. having died unmarried, her representative was not entitled to the legacy. It should seem, too, that, where the only gift is in the direction to pay or distribute at a future age, the case is not to be ranked jjuie where with those in which the pa3'ment or distribution only is de- '''? °"'y S.'^' ferred, but is one in which time is of the essence of the rection to gift. P'ly' *'«• * Thus in a leading case (y), where a testator gave certain real *840 (g) Knight ti. Cameron, 14 Ves 389 ; Lister v. Bradley, 1 Hare, 10 ; Heath v. Perry, 3 Atk. 101. See also Hunter v. Judd, 4 Sim. 455. ^ (r) Bprnard v. Mountague, 1 Mer. 422. m Elwin v. Elwiii, 8 Ves. 546; Faulkeneru. Hollingsworth, cit. ib. 558. \t) Law V. Thompson, 4 Russ. 92. (u) But not necessarily to the time when the debts have been actually ^aii, or the sale completed; for the court will inquire when these purposes might, in a due course of adminis- tration, have been effected, and consider the legacies vested from that period. See the cases cited above, and se6 Small v. Wing, 5 B. P. C. roral. 74; Astley v. E. of Essex, L. R. 6 Ch. 898. In Birds v. Askey, 24 Beav. 615, where there was a residuary gift, "after satisfying the trusts " of the win, to A. ■;/' then living^ — one of the trusts being in favor of A. himself for life, — and it was decided that this meant if A. was living after provision had been made for the due execution of the will, the M. R. held that this was a duty which fell on the executors immediatelv on the testator's decease, and that the residue vested in A. at that time.] (x) 1 Atk. 500; [and see Ellis v. Ellis. 1 Sch. & Lef. 1; Morgan ». Morgan, 4 De G. & S. 164. Compare] Booth ii. Booth, 4 Ves. 399, post, s. 7 ; [and West v. West, 4 Gif. 198 (legacy on marriage with consent of ffuardians was construed to require consent only to marriage under age).] (a) Leake v. Robinson, 2 Mer. 363; [Meredith i'. Tooke, Hov. Sup. Ves. Jr. 324; Murrav V. 'I'ancred, 10 Sim. 465; Mair v. Quilter, 2 Y. & C. C. C. 465; Boughton v. James, 1 Coll. 26; Walker v. Mower, 16 Beav. 365; Gardiner v. Slater, 25 Beav. 509'; Locke v. Lamb, L. R. 4 Eq. 37^. By the position in the text it is not to be understood, that the gift of a legacy under the form" of a direction to pay at a future time, or upon a given event, is less favorable to vesting than a simple and direct bequest of a legacy at a like future time, or upon a like events but that a distinction is to be taken between these two cases on the one hand, and the case, men- tioned above, of a gift of a legacy, with a superadded direction to pay at a future time, or 827 *841 DEVISES AND BEQUESTS, and personal property to trustees, upon trust, in a certain event, to paj-, apply, and transfer the same unto and amongst all and every the brothers and sisters of R., share and share alike, wpon his, her or their attaining twenty-Jive, if a brother or brothers, and if a sister or sisters, at such age or marriage with consent ; and the trustees were authorized to apply the rents, profits, and interest, or so much as they should think proper, for the maintenance of such brothers and sisters in the mean time. Sir W. Grant, M. R., held that this was not a case in which the enjoj^ment only was postponed ; the direction to pay was the gift, and that gift was only to attach to children that should attain twenty- five. So, where (z) a testator left for his wife's use certain furniture, &c., adding, ' ' which I desire may be distributed amongst our children, on the 3-oungest attaining twenty-one years, at her and my executor's dis- cretion ; such part being nevertheless reserved foi' her own use as may be thought convenient, and at her death to be distributed as above directed;" Sir J. Leach, V.-C, on the principle above stated, held, that children who died [infants (a)] before the j-oungest attained twentj-- one, took no interest. But even though there be no other gift than in the direction to pay Effect where ^r distribute infaturo; yet if such payment or distribution ap- payment is pear to be postponed for the convenience of the fund or prop- postponed for . , ., . .„ , , „ - ., , . -1 . coiueiiience erty,' the vesting will not be deferred until the period in of fund. question. Thus, where a sum of stock is bequeathed to A. for life ; and, after his decease, to trustees, upon trust to sell (6) and pay and divide the proceeds to and between C. and D., or to paj- certain legacies thereout to C. and D. ; as the payment or distribution *841 is evidently deferred until the decease of A., for * the purpose of giving precedence to his life-interest, the ulterior legatees take a vested interest at the decease of the testator (c) . [This doctrine pre- vails as well in gifts to a class (rf) as to individuals. Thus, in Blamire v. Geldart(e), a testator bequeathed to his nephew „, , A. 200Z. consols at his (the testator's) wife's decease, and Words seem- '' ' ' inglycontin- made her his residuary legatee; and Sir W. Grant, M. R., upon a given event, on the other hand. Per Wisram, V.-C, 2 Have, 17, 18. Still a direction to pay may help with other indications to show that the legacy is intended not to vest till payment, per .Tessel, M. R., fi Ch. D. 246.] \z) Ford ». Rawlins, 1 S. & St. 328. f( n) See Leeming r. Sherratt, 2 Hare, 14, stated post. h) Such sale is generallv intended only to facilitate the distribution. Bromley v. Wright, 7 Hare, 225; Dav t). Dav,'l Drew. 569;" Bavley v. Bishop, 9 Ves. 6; Parker v. Sowerby, I Drew. 488, 17 J'ur 752;' Hodges v. Grant, L' R. 4 Eq. 140. (c) Halifax i). Wilson, 16 Ves. 171; Chaffers v. Abell, 3 Jur. 578; Watson v. Watson, II Sim. 73; Bavnes v. Prevost, 8 Jur. 606; Packham v. Gregory, 4 Hare, 396; Re Wilson, 14 Jur. 263; Salmon v. Green. llBeav. 453; Homer ». Gnuld, 1 Sim. N. S. 541; Marshall v. Bentley, 1 Jur. N. S. 786; Strother ». Dutton, 1 De G. & J. 675 : Re Bright's Trust, 21 Beav. 67; M'Lachlan v. Taitt, 28 Beav. 402. {d) Smith v. Palmer, 7 Hare, 225. (e) 16 Ves. 314: see also Medlicott v. Bowes, 1 Ves. 207. 1 Ante, p. 835, note 1. 828 WHETHER VESTED OR COKTINGENT. *842 held that A.'s legacy vested immediately on the testator's gent referred death, the wife, as residuary legatee, taking a life-interest in mination'ofa that stock, so given to A. prior gift. So, in Cousins v. Schroder (/), where a testator gave his real and personal property to his wife, for her life, and directed that, at the end of twelve months next after his death, 1 ,000/. should be invested in the names of trustees, in trust to pay the dividends to his daughter for life, and upon her decease to divide the capital amongst all the children of his daughter as they should attain the age of twenty-one ; and he directed, that at the end of twelve months next after the decease of his wife, the further sum of 1,000/. should be laid out for the benefit of his daughter and her children upon the hke trusts as the first 1,000/. ; Sir L. Shadwell, V.-C, held that if the children hved to attain twenty-one they were capable of taking both sums of 1,000/., although they died before the time of paj'ment. Again, in Bromlej- v. Wright {g)^ a testator devised his real and per- sonal estate to trustees, in trust for his wife for life, and after her decease, in trust within or at the expiration of ten years from her decease, or from his own decease if he survived her, to sell and convert, and to invest the proceeds ; the income of the fund so produced, and the rents and profits until the sale, to be held on the after-mentioned trusts. The testator then gave to A. an annuity of 100/., for the term of ten years after the decease of the survivor of himself and his wife, for the use of A. and B., and in case of * the decease of *842 either of them, then for the survivor ; and at the expiration of the term often years, he gave to A., if then living, 2,000/., but if she should be then dead, to B., and the will contained a gift of the residue. A. and B. survived the testator, and both died before the expiration of the ten years ; it was held by Sir J. Wigram, V.-C, that the legacies of A. and B. were vested ; observing that the words of contingency were obviously introduced with a view to provide for a case between A. and B., and not between them and the estate: the postponement of the legacy was for the convenience of the estate, and was not personal to the legatees (K) . A gift over in case of the legatee's death before the period of distri- bution will not generallj^ prevent the application of this doctrine (i).] On the same principle, the mere introduction into an ulterior gift of new words of disposition has no effect in postponing the Occurrence of vesting. Thus, where a testator bequeaths personalty to gift. (/) 4 Sim. 23 (//) 7 Hare, 334. But see Beck v. Bum, 7 Beav. 492 : Clievaux v. Aislabie, 13 Sim. 71 ; Davidson v. Procter, 19 L. J. Cli. 395, which appear to be iindistinguishahle from, and incon- sistent with, the other cases. Beck ». Burn was doubted by Kiiidersley, V.-C, in Parker w. Sowerby, 17 Jur. 752; and by Romilly, JM. R., in Adams v. Eobarts, 25 Beav. 658; and though constantly cited, appears never to have been followed. (A) Compare Parr v. Parr, 1 My. & K. 647, where, on a bequest of residue to be settled on A., so as to " devolve " in case of her death on her children, and if she should have none, then that she should bequeath it as she thought fit, it was held, that only those children who sur- vived A. were entitled. (i) Shrimpton v. Shrimpton, 31 Beav. 425.] 829 *843 DEVISES AND BEQUESTS, trustees, in trust for A. for life, adding, " and after her decease, tlien I give," &c., these words do not postpone the gift to the posterior legatee until the decease of A. , but merelj' show that that is the period at which it will take effect in possession (k). So, where a legacy is given to a person if, or provided, or in case, or when (for it matters not which of these words is used (/)), he ii]gly«mtin- attains the age of. twenty-one years (m), or marries (n), gent vested though such legacy standing alone and unexplained would iiiteiMiediate clearlj' be contingent, i.e. would be liable to failure in case interest. ^f ^jjg legatee djing before the prescribed age or event ; yet if the interest accruing in the interval between the death of the testator and the future period in question is appropriated to the benefit of the legatee, it is held, in analogy to the doctrine of Boraston's case (o) , that the words of futurity and contingencj' refer to the possession only, and that the gift amounts, in substance, to an absolute vested legacy, divided into two distinct, portions or interests for the purpose of post- poning, not the vesting, but the possession only.^ Thus, in *843 Hanson t?. Graham (^), where A. gave to his * grandchildren B., C, and D., 500Z. 4Z. per cent anns. apiece, w^ere they should respectively attain their ages of twenty-one years, or day or days of marriage, which should first happen with consent, and directed that the interest of the said bank anns. should be laid out for the benefit of the grandchildren till they should attain their respective ages of twenty- one years, or day or daj's of marriage ; Sir W. Grant, M. R., after a full and able examination of the authorities, held, on the principle above stated, that the legacies vested at the death of the testator. So, in Lane v. Goudge (q) , where A. bequeathed certain 31. per cent consols to L. for his (L.'s) second daughter, that he should have born, for her education till she should attain the age of twenty-one j'ears ; and, after she should attain to the said age of twenty-one years, the testator gave the said interest to her and her heirs forever, she being christened Z. The second daughter was christened Z., and was held to be absolutely entitled, though she died at the age of seventeen (»•). {h) Benyon v. Maddison, 2 B. C. C. 75. (I) 6 Ves. 243. (m) Atliinson v. Turner, 2 Atk. 41; Knight v. Cameron, 14 Ves. 389. (n) Elton V. Elton, 3 Atk. 504. (o) Ante, p. 805. (p) 6 Ves. 239. (o) 9 Ves. 225 ; see also 7 Ves. 421 ; [2 Freem. 24 ; Pre. Ch. 317 ; 13 Sim. 418 ; 1 Coll. 281 : 2Sm. &Gif. 212; 2 J. &H. 122.] (r) See also Love ». L'Estrange, 5 B. P. C. Toml. 59; [Boulton v. Pilcher, 29 Beav. 633 ; Bird V. Maj'burv, 33 Beav. 351; Hardcastle v. Haidcastle, 1 H. & M. 405; Re Peek's Trusts, L. R. 16 Eq. 221.] Compare these cases with Batsford v. Kebbell. 3 Ves. 363, where A. be- queathed to E. the dividends, which should become due after her death, upon 5001. 31. per cents, until he should arrive at the full age of thirty-two years, at which time she directed her executors to transfer to him the principal sum for his own use. Lord Loughborough held, that the legacy 1 It is laid down that the fact that interest v. Hoath, 2 Brown, C. C. 3; Hanson v. is given until a legacy becomes payable ia Graham, 6 Ves. 239; Stapleton v. Chule, one of the strongest marks of a vested legacy. 2 Vern. 673. Fuller V. Winthrop, 3 Allen, 51, 60 ; Hoath 830 WHETHER VESTED OK CONTINGENT. *844 [So, where (s) a testator bequeathed to each of his daughters 1,800^. to be paid upon- their respective daj-s of marriage, subject to certain conditions in the will mentioned, together with interest from the time of his decease; Lord Clare, C. Ir., held that the legacies were vested. And, in Vize v. Stoney (<), Sir E. Sugden, *C. Ir., so *844 decided the same point, — "A legacy," he said, "cannot be more or less contingent : the law recognizes nothing between a con- tingent and a vested legacy." Therefore, whatever the nature of the event, a gift of the intermediate interest has always the same eifect.] A gift of interest, eo nomine, obviously is difficult to be reconciled with the suspension of the vesting,' because interest is a Gift of the premium or compensation for the forbearance of principal, f^vore'veTt^^' to which it supposes a title ; and it makes no difference that- ing. it is directed to be applied for maintenance (m). But a mere allowance for maintenance out of, and of less amount than the interest, has, it seems, no such influence on the construction (cc)j [And a discretionary trust to apply for maintenance the whole of the interest, or so much as the trustees think fit, has generally been considered and held to be equally ineffectual (y) . It is still only a gift of so much as is required for maintenance ; and the unapplied surplus, if any, will not belong to the legatee, but will follow the fate of the principal (z). It would be {ailed by the death of E. under thirty-two ; observing, that the testatrix had drawn a clear dis- tinction between the dividends and the capital. See also [Billingsley v. Wills, 3 Atk. 219;] Sansbury r. Read, 12 Yes. 75; Ford v. Eawlins, 1 S. & St. 328, ante, p. 840. These cases have been commonly considered as decided on the principle, that, where the interest or divi- dends alone are the subject of bequest until a particular time, and the principal is then, for ihe first time, to be taken out of it, the intermediate gift of tlie interest or dividends will not vest the capital: 1 Rop. Leg. p. 581, "White's ed. ; [Spencer ». Wilson, L. R. 16 Eq. 501-] It must not too readily be assumed, however, that any given case falls within the principle, as the courts have evinced no great inclination to extend it ; and, in truth, in some of the cases of this class, the difference of expression was very slight. [And in Westwood o. Southey, 2 Sim. N. S. 192, Kindersley, v .-C, denied the existence of any such principle. It was suggested by Arden, M. R., 3 Ves. 367, that Batsford ». Kebbell was to be referred to the circumstance that the gift of principal was postponed to a more advanced age than that at which the law would put the legatee in possession. Such a postponement is of course ineffec- tual after twenty-one, if the legacy is vested. But this distinction has not been recognized. Wood, V.-C., lays it down as clear, that a gift of income Until twenty-five, with a gift of prin- cipal at that age, vests at once, L. R. 3 Eq. 320. (s) Keily ». Monck, 3 Ridg. P. C. 205. (0 2 D. & Wal. 659, 1 D. & War. 337.] (a) Fonnereau ». Fonnereau, 3 Atk. 646; Hoath ». Hoath, 2 B. C. C. 3. See also 1 Rusg. 220; 1 Taml. 18; [1 Hare, 10; 3 De G. & J. 195 ; 3 K. & J. 503; 1 H. & M. 411; 29 Beav. 604 ; 31 Beav. 425 ; L. R. 19 Eq. 286. Taylor v. Bacon, 8 Sim. 100, and Re Ashmore's Trusts, L. R. 9 Eq. 99, are contra. In the latter case, James, V.-C, relied on Pulsford v. Hunter, 3 B. C. C. 416, which has generally (see 2 Mer. 386) been considered an authority only for the position for which it is cited below, n. (x). The report is obscure; but it is veiy improbable that Lord Thurlow (whose decision it is, but of which there seems to be no entry in R. L.) in- tended to overrule his own previous decision in Hoath v, Ifoath, 2 B. C. C. 3, where he held that _" giving the interest for maintenance was precisely the same thing " as giving the Inter- est dmpliciter. The previously established rule was recognized in Fox v. Fox, L. R. 19 Eq. 286.] (x) Pulsford o. Hunter, 3 B. C. C. 416: see Leake e. Robmson, 2 Mer. 387. liy) Leake v. Robinson, 2 Mer. 363, 381, 384. (z) See judgment of Wood, V.-G., Re Sanderson's Trusts, 3 K. & J. 507, 508, 509. 1 See Walcott ti. Hall, 2 Bro. C. C. (Perkins's ed.) 305, and note (6); Hoath v. Hoath, ib. 3. 831 *845 DEVISES AND BEQUESTS, otherwise if the trust could be construed as a gift of the whole interest, at all events : and in Fox v. Fox (a) , Sir G. Jessel did so construe it, and consequently held the legacy to be vested, " and not the less so because there was a discretion to apply less." But, whatever may be thought of this construction, it is inapplicable where the *845 * surplus is directed to be accumulated and is then blended in one gift with the principal (4) .] An annual allowance for main- tenance, [although equal in amount to the interest, will not, unless given as interest upon the legacy, make the legacj" vested : the gifts are perfectly distinct, and the title to the annual allowance actually given could not be affected by the interest on the legacy not amounting to so large a sum (c) . In Davies v. Fisher (rf) , where a testatrix bequeathed her residuary Gift of in- personal estate in trust for A. for life, and after his death in thefwMeof *'^"®*' ^^^ ^^^ children, as they severally attained the age of tlie intenne- twenty-flve years, the income to be applied bt/ their guardians impUed^from during their respective minorities for their maintenance ; Lord diiectinn how Langdale, M. R., thought that although there was no dis- duri'ng'part tinct gift of the interest yet that such a gift was to be oi the time, implied from the direction to apply it during minorities. " The inference or implication," he said, " arises from the direction to apply the interest ; and, although the direction is limited to the minori- ties, it is not necessarj', or I think reasonable, to limit the inference or implication in like manner, or to the mere time to which the direction applies. At that time the mode of enjoyment expressl3' directed will cease, but I do not think that it is therefore to be concluded that there is to be no enjoyment." He therefore held that on this ground alone the children would have taken vested interests. But the case did not rest entirely on this ground (c) ; and even if it did, it would not be an authority that a gift of interest arising during a part only of the interval before the time of payment vests the legacy. There are dicta opposed to such a doctrine (/) ; and in the case itself a gift of interest during the whole interval was (as will have been seen) supplied bj- implica- (n) L. R. 19 Eq. 286, relying on Harrison v. Grimwood, 12 Beav. 192, where, however, the trust for maintenance (dar'mfi part of the interval) was only one of several combined grounds for the decision. Eccles v. Birkett, 4 De G. & S. 105, is open to a similar observation^having rep:ard especially to the contrast between the clearly contingent words " children wAo. &c." and the more equivocal "as and when," and to the exception of two children by name — as to which last point see 1 Drew. 496 ; but no reasons are reported. A' dictum of Turner, V.-C, in Re Rouse's Estate, 9 Hare, 649, has also been sometimes cited to the same effect; but it proceeds on a questionable interpretation of what Lord Kenyon said in Wynch v. Wynch, 1 Cox, 433,' imputing to the latter the doctrine that a gift out of income for maintenance vests a legacv. The V.-C.'s decision is referable to other grounds, post, p. 848. (b) ke Grimshaw's Trusts, 11 Ch. D. 406. See Knight ». Knight, post, p. 847. Secus if the case comes within Saunders v. Vautier, Or. &Ph. 240, post. (r) Watson v. Hayes, 5 My. & C. 125; and see Livesey v. Livesey, 3 Russ. 287. {d) 5 Beav. 201. In Milroy V. Milroy. 14 Sim. 48, the word " minority " was held to mean the whole'interval until the voungest child attained twenty-five. See Maddisou v. Chapman, 4 K. & J. 709, 3 De G. & J. 636; Lloyds. Lloyd, stated next page. (e) See S. C, post, s. 7. (/) Per Wood, V.-C, L. K. 3 Eq. 321; per Romilly, M. R., 31 Beav. 302. 832 WHETHER VESTED OK CONTINGENT. *846 tion (g) , a construction which might often be found convenient to fill up a gap in such cases. A gift of the interest operates as well where the legacy is to a class, as where it is to an individual (A), provided that each mem- ber of the class has a distinct title to the interest of est operates ' his own * share. But where the interest is given *846 »" legacy to as a common fund for the maintenance of all the members of the class, until all have attained the prescribed age, it does not vest the legacy. Thus, in Llo3-d v. Lloj'd (i), the testator devised lands to trustees upon trust for hi& daughter for her life, and after her death upon trust to apply the rents " for and towards the maintenance, education and benefit of all and every the child and children of his said daughter during their minorit3', and when and as soon as all such children, if more than one, should have attained the age of twenty- one years, upon trust p3 sell the lands, and pay the money arising there- from to and amongst all and every such child or children, share and share alike, if more than one, and if but one then the whole to such only child." Sir W. P. Wood, V.-C, treated it as settled that a gift in that form, without the gift of income, vested only in such as attained twent^'- one (j) . Then, did the gift of income vest it sooner ? He thought not. The V.-C. appears to have read the words " during their minority," as meaning while anj' child was under age, so that a child having attained twenty-one still continued entitled to a share of income ; and he thought it was plain the testator never intended that on a child dying under twenty- one, its representatives should receive its share of income until all attained twenty-one, and that this view took it out of the rule in Han- son V. Graham, that shares were vested when all intermediate interest and profits wer6 given to the legatees. But although the gift of corpus be in this form, yet if the intermediate income be given direct to the children until the j'oungest attains twenty- one, no common fund is created ; each child is entitled to the income of his own share of corpus, the gift of which is consequently vested (k). However, a testator is not to be denied the power of giving interest without vesting the legacy, if such be his intention. Thus, Gift of in- tei'est will in Re BuUej-'s Estate (/), where residue was bequeathed in not vest the trust for A. for life, and after her death, " to be paid to her '«sa<=y ^^ere , ., , . , , ^ ^ , „ a contrary surviving children in equal shares, as soon as they shall intention'ap- come to the ages of twentj'-two j'ears respectively, and not v^^^^- ( (?) In Tathani v. Vernon, 29 Beav. 604, this was so expressed, viz. a gift to children at twenty-five, with gift of interest " in the mean time," for their maintenance "during minor- ity." ' (A) See references, p. 844, n. (a). ■ (i) 3 K. & J. 20 ; and see Vorley v. Richardson, 8 D. M. & G. 126, 129, 130: Re Hunter's Trusts, L. R. 3 Eq. 298; Davenhill v. Davenhill, 5 W. R. 18; Bickford v. Chalker, 2 Drew. 327 ; and per Sir J. Eomilly, Sanders v. Miller, 25 Beav. 156. A fortiori if the trustees have power to exclude some of ithe class from all maintenance, Re Barnshaw's Trusts, 15 W. R. 378. (;■) See Leeming v. Sherratt, 1 Drew. 488, at the end of this chapter. (i) Re Grove's Trusts, 3 Gif. 575. (/) 11 Jur. N. S. 847.] VOL. I. 53 833 *848 DEVISES AND BEQUESTS, to go to their heirs or assigns or to any other person or persons *847 on any pretence * whatsoever ; that is to saj', the share of each child which may die after the death of A. and before it arrives at the age of twentj--two years shall go among the others who may arrive " at that age ; " and if any of the said children shall be under twenty-two after the death of A. then my will is that only the interest of the share of such child shall be paid to it or for its benefit until it arrives at the age of twenty-two ; " it washeld by Stuart, V.-C, and on appeal by K. Bruce and Turner, L.JJ., that only those children who attained twenty-two were intended to share.] Where (m) the principal and interest are so undistinguishably blended Where vest- in the bequest that both must vest, or both be contingent, esfa/weiras "^ course no argument in favor of the vesting of the prin- principai Is cipal Can be drawn from the gift of the interest. Thus, Fegacy'con- where a testator gave to each of the daughters of K. , as soon tingent. as they attained the age of twenty-one years, the sum of 2001., with interest at the rate of 5^. per cent per annum, Sir J. Leach, V.-C, held that there was no gift either of prmcipal or interest until the daughter attained twenty-one. But the construction which suspends the vesting of the interest as well as theprincipal,"inconvenient as it evidently is, will not be adopted, unless the intention be very clear. Thus, in Breedon v. Tugman (n), where a testator bequeathed one third of his personal property to his wife ; another third to his son, to be laid out in an annuity ; and the other third to his daughter, adding, " and in case of my decease, to have the interest therein and principal when she arrives at the age of twenty-five years ; " it was contended that the words "in case of my decease," im^ ported contingency, and which, as in Knight v. Knight, extended to the interest as well as the principal, and that neither of them was vested until the age of twenty-five ; but Sir J. Leach, M. R., said that this was plainly an absolute gift to the daughter, and that the payment onl}^ was postponed ; the testator meant not to qualify or restrict the nature of the previous gift, but to distinguish between the time when she was to re- ceive the interest, and the time when she was to receive the principal. . So a direction subjoined to a simple bequest of stock, that the *848 " interest " shall be added to the " principal " [or * accumulated] till the legatee attains twenty-one, has been held not to suspend the vesting, though there were vague expressions in the residuary clause of the testator's expectation that the annuities (which term, it was con- tended, pointed to the interest on the legacies) might fall in (o) . (m) Knight v. Knight, 2 S. & St. 490; [Re Thruston, 17 Sim. 21; Chance v. Chance, 16 Beav. B72; Morgan v. Morgan, 4 De G. & S. 164. Butcher v. Leach, 5 Beav. 392, is, per- haps, referable to this principle : sed gu.'] (n) 3 jMj'. & K. 289. This is the case of a residue, and therefore may seem to belong to the next section ; but as the ground of decision seemed to connect it with Knight v. Knight, it has been stated here. (o) Stretch «. Watkina, 1 Mad. 253. [See also Blease v. Burgh, 2 Beav. 226 ; Josselyn v. Josselyn, 9 Sim. 63; Bull v. Johns, Taml. 513; Oppenheim v. Henry, 10 Hare, 441. 834 "WHETHER VESTED OE CONTINGENT. *849 Again, a legacy to be severed from the general estate inUanter, for the use and benefit of a legatee, is a verj' difterent thing from Effect where a legacy to be severed from the estate only on the happening cratTmient of a particular event. Therefore, in Saunders v. Vautier (p), gift must be where a testator bequeathed his E. I. stock to trustees upon thetstate'h™ trust to accumulate the dividends until A. should attain his mediately. age of twentj--five years, and then to transfer the principal with the accumulated dividend to A., his executors, administrators and assigns, absolutely ; it was contended on the authority of Knight v. Knight, that the legacy was contingent on A. attaining the specified age ; but Lord Cottenham, on the principle stated above, held it vested, and decreed payment to A. when he was twenty-one jxars of age. It has also been held that a bequest to a person, if or wlien he attains a particular age, will be vested, if the whole intermediate Kule in Bo- interest, though not given to the legatee himself, is expressly applies to per- disposed of in the mean time for the immediate benefit or spnalty. furtherance . of some other person or object. It is onl3' an exception out of the whole property meant to vest in the legatee, whose interest is, therefore, in the nature of a remainder which vests immediately, and its actual enjojanent only is postponed. This is in conformitj' with the principle of Boraston's case (§■), which, according to Sir "W. Grant, M. Rv(r),. there was no ground to say ought to have been diflerently decided if it had occurred as to a pecuniary legacy. Thus, in Lane v. Goudge (s), where one of the bequests was to L. till his (L.'s) second daughter should attain the age of twenty-one j'ears, and after she should attain that age to her absolutely ; the same judge held that, supposing the^ gift to L. was for his *own and *849 not for his daughter's benefit (and there was nothing but con- jecture for a contrary supposition) , yet that the daughter took a vested interest. If the testator has himself subjoined to the gift a declaration that it shall vest at a stated period, and if there be nothing in the Effect of an context to show that the word " vest" is to be taken other- express di- wise than in its strictly legal sense, all discussion is of the legacy is course precluded ; for a legacy cannot vest at two different '° " vest." periods {t) . But a question generally arises in these cases as to the real meaning to be attributed to the word. If the testator has in other (p) Cr. & Ph. 240. See also Greet v. Greet, 5 Beav. 123 ; Lister t. Bradley, 1 Hare, 10; Love V. L'Estrange, 5 B. P. C. Toml. 59, cit. 6 Ves. 248 ; Thrustoii v. Anstev, 27 Beav. 335; Oddie ». Brown, 4 De G. & J. 185, 194; Re Rouse's Estate, 9 Hare, 649 ; Dundas v. Wolfe- MiuTay, 1 H. & M. 425. So, although in one event the legacy is expressly given back to residue, Pearson v. Dolman, L. R. 3 Eq. 315. But compare Festing v. Allen, 5 Hare, 577, and Gotch v. Foster, L. R. 5 Eq. 311, suggesting the limits of the doctrine. • (q) 3 Co. 16, ante, p. 805. (>■) 6 Ves. 247. In Laxton «. Eedle, 19 Beav. 323, there is a contrary dictum of the M. R., which, however, appears unnecessary to the decision of that case. {») 9 Ves. 225. (t) Glanvilli). Glanvill, 2Mer. 38; Comport ». Austen, 12 Sim. 246; Wakefield o. Dyott, 4 Jut. N. S. 1098. 835 *850 DEVISES AND BEQUESTS, In what cases parts of the will treated the fund bequeathed as belonging to mJaiis'^'iii- ^^^ legatee and spoken of his share therein before the speci- defeasible." fled period (u) , or if he has given over the fund in case the legatee dies before the time named without issue, from which it is to be inferred that the legatee is to retain it in every other case (x) , the nat- ural conclusion is, that the word is to be read as meaning " payable" or " indefeasible," and that the gift is vested, liable only to be divested on a particular contingency. A gift over before the time named, or before attaining "a vested interest," simplidter, although indecisive perhaps by itself (y) , tends strongly to the same conclusion {z) . The possibil- ity of the legatee so dj-ing, and of his leaving issue, who, if the legacy is strictl}' contingent and does not devolve to them from their parent, are otherwise altogether (a) or in some probable event (6) 'unprovided for by the will, has in these, as in many other cases, furnished a powerful r h t es i^otive for adopting a more liberal interpretation. Where, literally con- upon the parent so dying, the legacy is expressly given to strued. j^jg issue, this motive is wanting, and the court will be slow to depart from the primary meaning of the word " vest," and of •850 associated expressions the natural import of which is * contin- gencj- (c) . So, if the will gives the issue the chance of taking through their parent, as if the legacy is directed to vest in the legatee on his attaining a specified age, or dying leaving issue {d). A gift of the interest until the arrival of the time named also favors the less stirict construction upon principles already explained (e). But if the interest is to be accumulated and paid at the same time as the principal fund (/) ; [or if by the context a distinction is drawn between the terms " vested" and " paj'able" (§'), the word " vest" must have its proper meaning. (m) Berkeley v. Swinburne, 16 Sim. 27.5 (residue); Poole ». Bott, H Hare, 33 (real estate); Walkers. Snnpson, 1 K. & J. 713; Bamet v. Barnet, 29 Beav. 239; Armytage v. Wilkinson, 3 App. (3a. 355 ("absolute vesting"). (a:) Taylor «. Frobisher, SDe Q. & S. 191. Lord Hardwicke seems to have used the word in this sense in Ilaughton v. Harrison, 2 Atk. 330. (y) Glanvill i;. Glanvill, 2 Mer. 38; Re Blakemore's Settlement, 20 Beav. 214; Re Morse's Settlement, 21 Beav. 174. The last two cases were upon deeds, and moreover proceeded >ipon the questionable distinction drawn by Leach, M. R., 3 My. & K. 411. between a gift over under age, and a gift over under age and without issue. See post, p. 857, n. ( q). (z) Re Baxter's Trusts, 10 Jur. N. S. 845. Cf . Pickford v. Brown, 2 K. & J. 426, where the gift over itself contained expressions favoring the suspension of vesting, as in Russel v. Bu- chanan, ante, p. 813. (a) Taylor v. Frobisher, 5 De G. & S. 191. (6) Re'Edmondson's Estate, L. R. 5 Eq. 389. (c) Rowland v. Tawney, 26 Beav. 67; and see Comport v. Austen, 12 Sim. 246; Selby ». Whittaker, 6 Ch. D. 249. id) Re Thatcher's Trusts, 26 Beav. 365. (c) Simpson v. Peach, L. R. 16 Eq. 208 ("payable" and "vested" exchanged mean- ings). If) Re Thruston, 17 Sim. 21; see also Griffith v. Blnnt, 4 Beav. 248. ['((•/) Ellis D. Maxwell, 12 Beav. 104; see also Parkin j'.Hodgkinson, 15 Sim 293; Re Thatch- er's 'frusts, 26 Beav. 365; Re CoUev's Trusts, L. R. 1 Eq. 496, where the strict construction was assumed. In Sillick v. Booth, 1 Y. & C. C. C. 121, and King v. CuUen, 2 De. G. & S. 252, the context gave to the word "vested" in a gift over upon death before vesting a sense cor- responding to the word "payable" used in the primary gift. "Paid " was held to mean " vested "in Martineau v. Rogers, 8 D. M. & G. 328. And sometimes where both words occur, they are held to be used indiscriminately. Re Baxter's Trusts, 10 Jur. N. S. 845. ■ See further on the meaning of " vested " in gifts over in case of the legatee dying before retaining a "vested " interest, Ch. XLIX. 836 "WHETHEK VESTED OR CONTIiirGENT. *851 Where the bequest is in the first instance to a restricted class, as to children who shall survive A., a direction that the legacy shall vest, say, at the age of twenty-one, will not generally enlarge the class,' but only impose a farther condition of enjoyment on the class already defined {h) . But where the direction was that the legacj' should vest in " the chil- dren," thus giving a new description without the previous restriction, the restriction was held to be neutralized (*') . So, where the bequest was to such of the children as should attain twenty-five, and it was de- clared that if any child attained twenty-one and died before twenty-five his share should vest at his death, the shares were held to vest at twenty-one (A).] VII. It has been generally thought that a very clear intention must be indicated, in order to postpone the vesting under a resid- ^ uar}' bequest,^ since intestacy is often the consequence of residuary be- holding it to be contingent, or, at least (and this is the ma- l'^^^'^- terial consideration), such may be its effect; for, in constru- ^eUa^'actual ing wills, we must look indiflerently at actual and possible events to be . regarded. events. " Among the numerous cases which may be cited as illustrative *of the leaning of the courts towards the vesting of residuary *851 bequests, is Booth v. Booth (m), where A. bequeathed the resi- (A) Re Payne, 25 Beav. 556; Re Parr's Trusts, 41 L. J. Ch. 170; Bickford v. Chalker, 2 Drew. 327 ; Williams v. Haythorne, L. R. 6 Ch. 782 (though it was residue and another clause became surplusage). (i) Jackson k. Dover, 2 H. & M. 209 (residue). (h) Mappin v. Mappin, W. N. 1877, p 207 (residue).] \ \m) 4 Ves. 399. [See also West v. West, 4 Gif. 193; and] compare Atkins ». Hiccocks,' ante, p. 839; observing that there the bequest was pecuniary, and there was no gift of the in- terest in the meantime, [nor any gift over.] The disinclination so to construe a will as to make a testator die partially intestate, was also admitted in Lett v. Randall, 10 Sim. 112, where, however, the V.-C. considered himself forced into this undesirable conclusion by the ambiguity of the will; the testator having, in a certain event, made a bequest of the share of a deceased daughter to children tlien living in such a manner as to leave it doubtful whether he referred to the period of his o*n death, the death of his wif5, or the happening of the contingency. [And see per Romilly, M. R. 33 Beav. 396, which may be set against 14 Beav. 461.1 Word "then," to what period it refers. — Here it may be noticed, that where (as often occurs) life-interests are bequeathed to several persons in succession, terminating with a gift to children, or an}"- other class of objfects then living, the word " then " is held to point to the period of the death oi the person last named (whether he is or is not the survivor ofthe several legatees for life), and is not considered as referring to the period of the determination of the several prior interests ; Archer v. .Jegon, 8 Sim. 448; [Wollaston's Settlement, 27 Beav. 642; and the construction is the same thougTi the person last named die in the testator's lifetime, Olney «. Bates, 3 Drew. 319 ; and see Hetherington v. Oakman, 2 Y. & C. C. C. 299; Harvey V. Harvey, 3 Jur. 949; Cain v. Teare, 7 Jur. 567; Widdicombe ';. Muller, 1 Drew. 443; Cormackr. Copous, 17 Beav. 397; Gill '). Barrett, 29 Beav. 372. Compare Gaskell «: Holmes, 3 Hare, 438; Coulthurst v. Carter, 15 Beav. 421; Re Edgington's Trusts, 3 Drew. 202; Re Deighton's Settled Estates, 2 Ch. Ik 783 (where, if " then " had been referred to the last ante- cedent, a life-estate just before given to the widow would have been defeated). In Heasman V. Pearse, L. R. 7 Ch. 275. the words "then living" occurred in two distinct gifts to Children of A., one of an original share, the other of an accruing share, and followed in the one case the mention of one event, in the other the mention of another event; but the same class of children were held by James, L. J., entitled to both gifts on the ground that "it would be unreasonable to give the words a different meaning " in the two clauses.] 1 See Monkhouse v. Holme, 1 Bro. C. C. (Perkins's ed.) 300, 301, and note (s); Hanson V. Graham, 6 Ves. 248. 837 *852 DEVISES AND BEQUESTS, due of his estate to trustees, upon trust to pay the dividends equally between his great-nieces B. iand C, until their respective marriages, and ■ from and after their respective marriages, to transfer their respec- tive moieties. Sir R. P. Arden, M. R., held that B. acquired a vested interest, although she died without having been married ; his Honor relying much on the circumstance that it was the bequest of a residue. So, in Jones v. Maekilwain (n), where a testatoi: gave to trustees all liis real and personal estate, upon trust for sale, and as to one mbiety of the produce for the benefit of his daughter A. during her life, and after her decease, upon trust to pay to her husband' B. an annuity of 1001. during his life, and to apply the remainder of the annual income of the said moiety for and towards the maintenance of all and ever^' the child and children of A;, until they should severally attain his and their ages or age of twenty-one years, and as to all the said principal moneys or produce of the testator's said real and personal estate as and when they and each and every of them should attain his, her, and their re- *852 spective * age or ages of twenty-one years, in trust to pay and dis- pose of the same unto and amongst all and every such child and children. A. had two sons, both of whom died under twenty-one, and Lord Gifford, M. R., held that thej- respectively acquired vested inter- ests ; adverting to the fact of its being a residuary bequest, and that the j'early income was given to the children until the prescribed age. It seems that where the testator first gives the residue in terms which After clear would, bej^ond all question, confer a vested interest, the ad- eTfr^vestfne dition of equivocal expressions of a contrary tendency will not 'post- not suspend the vesting.' Thus, where (o) A. by his will Equivocal E^^^ ""^o the children of his sister the whole of his real and terms. personal estate (subject to certain legacies) , and afterwards expressed his desire that the children should be educated with the yearly interest of whatever portion of his estate might fall to each child's lot or share, and such portion not to be otherwise claimed or inherited, directly or indirectly, until the children arrived at the age of twenty-two years, whether married or single — Sir R. P. Arden, M. R., held that the subsequent vague words were not sufficient to control the prior clear words ; but the meaning was, that the legacy should be absolute, and that the lega- tees should not have the command of the principal till the age of twenty- two ; and he laid some stress on the fact of the interest being given for maintenance. So, where (p) a testator, after disposing of his real and personal estate in strict settlement, added that none of the devisees should take (n) 1 Rnss. 220. (o) Dodson V. Hay, 3 B. C. C. 404-409. See also Stretch v. Watldns, 1 Mad. 253; [Brocklebank «. Johnson, 20 Beav. 205; but see Shum v. Hobbs, 3 Drew. 93.] (n) Montgomerie v. Woodley, 5 Ves. 522.' [It ia not competent for a testator to deter the receipt by the legatee of a legacy absolutely vested in him beyond the age of legal majority ; Ee Jacob's Will, 29 Beav. 402; 'Gosling v. Gosling, Johns. 265.] 1 Eldridge v. Eldridge, 9 Ciish. 516. 838 WHETHER VESTED OR CONTINGENT. *853 or come into possession before the age of twentj--five, this was held to refer to the actual possession onl}', and not to postpone the vesting. But where the terms of the original gift in favor of a class are am- biguous in regard to the period of vesting, a clear intention But subse- to suspend the vesting, manifested in carrying on the gift to queat words the class in the event of its consisting of a single object, will pianatoiy be decisive of the construction; as it is hardly supposable preceding are tliat the testator could mean to create a difference of this ambiguous. nature between a pluralitj'^ of objects and an individual object. Thus, where (9) *A. gave the residue of his estate, real and *853 personal, to trustees, as to one third, in trust for his daughter S. for life, and after her decease for the child or children of his said daughter, if more than one share and share alike, to be paid, assigned and transferred to them by his trustees upon their respectivelj' attaining the age of twentj'-five years ; but in case S. should leave but one child her surviving, then the whole of such one third part should become the property of such only child upon his or her aftaining the age of twenty five years, and be transmissible to his or her heirs, executors or administra- tors ; and in case his said daughter should leave no child her surviving, or in case she should leave a child or children who should not attain the age of twenty-five years, then over. Sir L. Shadwell, V.-C, held that the gift, in case the daughter should leave one child only her surviving, was clearly contingent on that child attaining the age of twenty-five ; and the same construction, he observed, must be put on the gift, in case she should leave more than one. [The same argument would, without doubt, apply to a case where the ambiguity existed in the gift to the single object, the original gift in favor of the class being clearly conditional. But where no such ambi- guity exists, it is of course not allowable, by inference from the collective gift, to import a contingency into the gift to the individual. This were to add words to the will, not to explain terms already existing in it ; a course not warranted by the apparent singularitj' of the distinction made by the testator (r) . King V. Isaacson (s) was the converse of Judd v. Judd ; the question being, whether a clearly' vested bequest to the single object imparted its own nature to ambiguous exipressions contained in the prior gift to the class, when consisting of manj'. The testator gave the residue of his real and personal estate to trustees, in trust, as to two thirds of the annual proceeds, for A. for life, and as to the remaining one third, in trust for B. for her life ; and in trust, after the decease of A. and B., or either of them, to convej-, pay, assign, transfer and make overall the residue, in the shares following, i.e. upon the decease of A., to convey, (q) Judd V. Judd, 3 Sim. 525; [see also Tracey J). Butclier, 24 Beav. 438; Knox w. Wells, 2 H. & M. 674 (as to the children surviving their father James) ; Madden v. Ikin, 2 Ur. & Sim. 207; MerrvK. Hill, L. R. 8 Eq. 619: per Lord Selborne, L. R. 16 Eq. 271, 272. (r1 Walker v. Mower, 16 Beav. 365; Johnson v. Foulds, L. R. 5 Eq. 268. («) 1 Sm. & Oif. 371. 839 *855 DEVISES AND BEQUESTS, &c., two thirds unto and among all and every the child or children of A. as and when they should severally attain twenty-one, as *854 tenants in common ; and if there should be but one child * of A., then to such only child, and to whom he gave the same accordinglj' : with similar trusts of the remaining third, mutatis mutandis, for the chil- dren of B. Sir J. Stuart, V.-C, considering the general indisposition to hold a bequest contingent, and looking to the absolute gift to an only child (which was clearlj^ vested (i)), and to the direction to convej', which, he thought, was to be observed immediately on the decease of a tenant for life, held that the children took vested interests on the testator's death. ] The vesting is obviously postponed where the attainment to a particular Attainment ^o^ i^ introduced into and made a constituent part of the of particular description or character of the objects of the gift ; as where of the de- the bequest is to the children who shall attain, or to such scription of children as shall attain the age of twentj'-one years ; there being in such case no gift, except to the persons who answer the qualification which the testator has annexed to the enjoyment of his bounty (m). [So, where the bequest is to the children if or when they attain the particular age.] So clear, indeed, is this point, that anj' diffi- culty can scarcely occur under a gift framed in the terms suggested, unless it is occasioned by and grows out of the context, which not un- frequently explains away and neutralizes the expressions which standing alone would clearly suspend the vesting. [But here a distinction, anal- ogous to that which exists in devises of real estate, must be observed be- tween the former terms of bequest noticed above and the latter, as regards the explicitness of context required to control them. J For instance, if a testator, after giving to [" the children," or to " all the children," " if" or " when" they] attain a certain age, goes on to dispose of the property in case there is no child who does attain the prescribed age, he affords a plausible ground for the argument (founded on Edwards v. Hammond and that class of cases (a;)), that the subsequent words explain the sense in which he intended the prior words to be under- stood, namely, that the interest of the legatees was merely liable to be divested in the event described ; in other words, was to become absolute at, not to be postponed until, the prescribed age. [But a gift to " such of the children as" or to " the children who " attain the age, is a gift to a restricted class ; and, to admit children who do not attain the age, the context must be one capable not onlj^ of explaining *855 * an ambiguity regarding the interests intended for the members of the described class, but also of enlarging the class itself.] ' (() See Re Bartholomew^ 1 Mac. & G. 354, ante, p. 839.1 \u) See Newman ». Newman, 10 Sim. 51 ; [Hatfield v. Pryme, 2 Coll. 20i.] (x) Ante, p. 810. 1 As to the words '"when," "as," "if," Leeds v. Wakefield, 10 Gray, B14: Moore v. and "provided," see Colt v. Hubbard, 33 Smith, 9 Watts, 403; Clayton v. Somers, 13 Conn. 281. And see further as to this para- C. E. Green, 230. graph of the text, Snow v. Snow, 49 Mo. 159 ; 8d0 WHETHER VESTED OR CONTINGENT. *856 We have an example of [the latter] species of disposition in Bull v. Pritchard (y.) , where a testator bequeathed the residue of Bull v. his personal estate to trustees, in trust for his daughter M. Pritchard. for life, and after her decease to pay or transfer the same unto and among all and every the child and children of M. who should live to atlai'n the age of twenty-three years, with benefit of survivorship in case of the death of any of them under the age of twentj'-three years, as tenants in common ; and if there should be but one such child, then to such only child ; and in case there should be no such child, or, being such, all should die under the age of twenty-three, then over to the testator's brothers and sisters. The trustees were empowered to lay out and apply the interest of each child's respective share, or so much thereof as thej"- might think necessary towards their maintenance, notwithstanding such child's share should not be then absolutely vested. Lord Gifford, M. R., was of opinion that those children alone who attained the age of twenty-three were to take, and therefore the gift was void for remoteness ; observing, that the attainment of the age of twenty- three j'ears was made a condition precedent to the vesting of any interest in the children, [and distin- guishing the case from those where the gift was to children when or if they attained a certain age.] The propriety of this determination has been questioned {z) ; and perhaps looking at the gift over in connection ynt\\ the direction to apply the interest of the children's shares for their maintenance until they be- came absolutely vested, there was ground to contend that the children took immediately subject to be divested on their respectively dying under the prescribed age. [But the case is to be referred to the distinction noted by the M. R. in his judgment (a).] Another case in which the vesting was held to be postponed, notwith- standing some expressions in the context apparently favor- Gift on at- able to the immediate vesting,^ is Vawdr}' v. Geddes (6) , tain'age'^ii'eld where A. gave the residue of her estate and eflfects equally contingent. between her four sisters, and directed that, on the death of her * sisters, the interest of their respective shares should, at the dis- *856 cretion of her executors, be applied in the maintenance or ac- cumulate for the benefit of the children of each of her sisters so dying, until they should severally attain the age of twent5'-two years, and, upon any of their attainment to that age, they should be entitled to their proportion (y) 1 Russ. 21.3. . • (2) 3 M. & K. 417. _ \(a) The author does not refer, and appears to have attached little value to this distinction ; which, however, has since been fully recognized. He goes on (1st ed. p. 772) to suggest that the case cannot be treated as an adjudication as to the period of vesting: sed qu. : for the de- cree declared tlie next of kin entitled; whereas M. was living, and might have had children, who, if the gift was vested and consequently not remote, would have been entitled.] (b) 1 R. & My. 203. 1 If on construing the whole will it clearly the words "to be paid" or "payable at," or appears, that the testator meant the time of other terms of immediate gift be employed in paymenttobethetimewhen thelegacvshould the will. Howes w. Herring, 1 M'Clel."& Y. vest, no interest will be transmissible to the 295; Hunter v. Jndd, 4 Sim. 455. See also executors or administrators, if the legatee Mackie v. Alston, 2 Desaus. 362; Jones v. dies before the period of payment; although Price, 3 Desaus. 165. 841 *857 DEVISES AND BEQUESTS, of their mother's share of the principal, and in case of anj-^ of their decease under tliat age, leaving flawfiil issue, such issue should be entitled to their respective parent's share at such time as such parent would have been entitled, if living, thereto. There was also a bequest in favor of the other children of the testator's sisters, in case of the death of any under twenty-two, without issue, or, being such, they should die before the principal of their respective shares should become payable. Sir J. Leach, M. R., held that the vesting was postponed until the age of twentj'-two, ' and therefore that the gift was too remote. He thought that the case was governed by Leake v. Eobinson {d) ; and that, even if the income had been expressly given to the children until they attained twenty-two, the shares would not have vested. He observed, that where interim interest is given, it is presumed that the testator meant an immediate gift, because, for the purpose of interest, the particular legacy is to be immediately separated from- the bulk of the propertj- ; but that presumption fails entirely when the testator has expressly given the legacy over in the event of the death of the legatee before a particular period. But did not the gift over, to which his Honor here refers, suggest a T, , strong argument for the immediate vesting ? "Where a testator Kemarks on ° " " Vawdrys. directs that, on a given event, the "shares of persons before named shall go in a certain manner, there seems ground to infer that, in the alternative event, the property is to be retained by the legatees ; a fortiori, where there are cross executory gifts disposing of the " shares" of dying objects in an event in which, if the vesting be postponed, they would have no shares for the clause to operate upon. The construction adopted in the case just stated rendered the terms of the elatise of substitution (for such it clearly was) inaccurate throughout (e) . *857 * More weight, in favor of the immediate vesting, seems to have been ascribed to the argument derived from the gift over, „, , in Bland W.Williams (/), where the testator bequeathed the Williams. residue of his estate and effects to trastees, upon trust to Vesting im» receive the annual income thereof, and thereout pa}' unto his explanatory daughter an annuity, and, after her decease, upon trust to effect of gift apply the income, or a sufficient part thereof, for the main- tenance of the children of his daughter until thej' should (d) Ante, pp. 265, 840. (f) See also Mackell n. Winter, 3 Ves. 236, and Barker v. Lea, T. & R. 413, in both which residuary bequests to children, on their attaining a particular age, were held to be contingent in the interim, though, in each case, there was a bequest over in the event of the legatee's dying before the prescribed age; and in the former, the postponement seemed to refer to the time of payment rather than tn the gift itself; [while in the latter there was a gift of the whole income for" the maintenance of the legatees.] In these cases, the leaning, often avowed, to the vesting of residuary bequests, was but very famtlv discernible; and one connot help suspect- ing that the judgment of the court was somewhat biassed bvthe actual event, which rendered the adopted construction convenient. If intestacy had happened to be produced by the postponement of the vesting in each instance, the adjudication probablv would have" been different. (/) 3My. & K. 411. 842 "WHETHER VESTED OR CONTINGENT. *858 severally attain their ages of twenty-four j-ears ; and when and as they should respectively attain that age, then upon trust to pay, trans- fer, and convey all the said residue of his estate, with the interest, divi- dends, and proceeds thereof, as should not have been applied for their maintenance, equally unto and amongst all her said children, when and as they should severally and respectively attain their said age of twenty-four years ; and in case any or either of her said children should happen to die before having attained that age, and without leaving lawful issue of his or her body, then in trust to paj', assign, transfer, and convey all the said residue of his estate unto such of her said children as should live to attain his, her, or their respective ages of twenty-four years, share and share alikej if more than one, and if but one, then the whole to that one child ; but in case all and every of her said children should happen to die under that age, and without leaving lawful issue, as aforesaid, then upon trust to pay the annual income there&f unto certain persons. It was contended, that, under the trusts in favor of the daughter's chil- dren, the vesting was postponed until the age of twentj'-four, and, con- sequently, the gift was too remote. Sir J. Leach, M. R., however, held that the legatees acquired immediate vested interests : " Whether, in a gift of this nature," he said, " the time of vesting is postponed, or only the time of payment, depends altogether upon the wholes context of the will. If the gift over is simply upon the death under twenty- four, then the gift could not vest before that age {g). In this * case, the gift over is not simply upon the death under twenty- *858 four, but upon the death under twenty-four without leaving issue. If, upon a death under twentj'-four, at whatever age, issue was left, then the gift over is not to take place. It is in effect, therefore, a vested interest, with an executory devise over, in case of death under twenty-four without leaving issue : all the cases upon the subject, ex- cept the one before Lord Gifford {i.e. Bull v. Pritchard) are reconcilable with this distinction." It is submitted, however, that [even if Bull v. Pritchard were not otherwise distinguishable] his Honor's own decision in Vaw- jjg^j;,.]^ ^^ dry V. Geddes (h), as well as that of his predecessor in Bar- Bland v. Wil- ker V. Lea,(i), if brought to the test of tlie principle of ''*"^^' (g) Whj' not V A gift over to take effect simply on the event alternative to that on which the prior gift was apparent! v made to vest, may surely have the effect (if such be the intention collected from the whole will) of explaining that the original gift was to be divested in favor of the ulterior substituted legatee on the happening of the prescribed event. This, we may venture to affirm, would, with very little aid from the context, be generally the construction. No such distinction as the M. R. suggests is discoverable in the cases cited ante (p. 810), in which, under a devise to A., if he shall attain the age of twenty-one years, with a devise over, in case he shall die under that, age, the devise over is (we have seen) held to denote that the prior words (instead of suspending the ^'esting ab initw) point merely at the period when it becomes absolute. The principle of these cases obviously applies to residuary bequests framed in such terms. [Where real and personal estates are included in the same gift, and the real estate is held to be vested, the personal property follows the same construction, Farmer v. Francis, 2 S. & St.' 505; Tapscott v. Newcombe, (J Jur. 755; James ». Lord Wvnford, 1 Sm. & Gif. 40. And Parker, V.-C, 5 De G. & S. 200, said that the M. R.'s distinction was not meant to be. of general application, but referred onlv to the will then before him.] (A) Ante, p. 855. " (i) Ante, p. 856, a. 843 *859 DEVISES AND BEQUESTS, construction here propounded, would be found no less difficult to sus- tain than Bull v. Pritchard, for the reasons already suggested. It would certainl}' be a convenient rule of construction to sa^', that when- ever, under a residuary bequest to children as a class, the vesting is, in the first instance, postponed to a given age, and this is accompanied by a direction that the intermediate interest' [or a sufficient part of it] shall be applied for their maintenance ; after which the testator pro- ceeds to dispose of the shares of children dying under the age in ques- tion, either absolutely or upon some contingency, to the survivors, or to children, or any other person ; the gift over is to be considered as explaining the testator's intention to be, that, under the preceding words, the absolute ownersiiip only should be suspended until the pre- scribed age, and that, in the mean time, the legatees should take vested interests, with a liability to be divested on the happening of the pre- scribed event ; [and the tendencj' of the modern decisions on bequests in this form, whether residuary or not, is almost uniformly in favor of such a rule. Thus in Taj-lor v. Frobisher (h) , a testatrix directed held to favor *859 1,000/. to * be held in trust to invest until the same ■*"'^''"S- should be payable as thereinafter mentioned, and to pay the income to A. for life, and from and after her decease to pay tlie principal unto, between or amongst all and every the child and children of A. in equal shares, or if but one such child then to such one, to be a vested interest or vested interests on their respectively attaining the age of thirty 3-ears ; and if any child should die under that age without lawful issue, his or her share, as well original as accruing, to go to the • survivors, and become vested at the same age as the original shares ; there was a trust, after A.'s death until the shares of such child or chil- dren should become vested and payable, out of the income of the t,OOOZ. to apply for their maintenance so much as to the trustees seemed meet, not exceeding the interest of the expectant share of such child or chil- dren in the principal ; and if all the children of A. should die under the age of thirty years without issue, then over. It was held by Sir J. Parker, V.-C., that "vested" must be read "indefeasible," and that the children took vested interests liable to be divested on death under thirty. He thought the conclusion to be drawn from the clause of accruer and from what followed it was irresistible, that a child dying under thirty retained his share in every event except where it was ex- presslj- given over. He added that Bull v. Pritchard was no exception to the rule as stated by Sir J. Leach, for in that case the gift was not to all the children, but only to a particular class, those, namelj-, who should attain twenty- three. Uh) 5 De G. & S. 191. See also Ridgway v. Ridgwaj-, 4 De G. & S. 271, better rep. 21 L. J. Ch. 256; Carver v. Burgess. 18 Beav. 541, 551, 7 D. M. & G. 96; Pearman v. Pear- man, 33 Beav. 394; Knox v. Wels. 2 H. &; M. 674; Wetherell i'. Wetherell, 1 D. J. & S. 134; Whitter v. Bremridge, L. R. 2 Eq. 736. 844 WHETHEK VESTED OB CONTINGENT. *860 So ia Davies v. Fisher (J) , where a testatrix gave the residue of her personal estate to trustees, in trust for W. D. for life, and after his decease, in trust for the children of the said W". D. as they severally attained the age of twenty-five jears, equally to be divided between them if more than one, and if but one then the whole to such one child, the income to be applied during their respective minorities b}' the guar- dian for the time being of such children for their maintenance ; and in case no child of the said W. D. should live to attain the age of twenty- five j-ears, then in trust as therein mentioned. Lord Langdale, M. R., held that the children of W. D. took an immediate vested interest in the residue. The decision was, indeed, in a great measure, founded on the gift of the intermediate interest (/») ; * but as to *860 the argument resting on the dicta of Sir J. Leach in Vawdry v. Geddes and Bland v. Williams, that the gift over prevented the residue from vesting in the mean time, he cited authorities to show that such a proposition was untenable (n) ; and observed that, on the contrarj', the gift over afforded some evidence of an intention to divest after a previous vesting. But a gift over limited to take effect on an event different from that upon which the primary gift depends, will not generally „., be construed as of itself indicating such an intention (o) , event differ- though it is sometimes called in aid of other arguments in eyentltien- favor of that construction (p) ; for a gift over in ani/ one tioned in event always helps the construction that until that event P"'"'"^ S' happens, the legacy is vested (q). The distinction drawn in Bull v. Pritchard between a gift to a class if or when they attain a specified age, and a gift to such of a, pigHn^.jon class as attain a specified age, has been fully recognized in where the subsequent cases ; and gifts over (r), and gifts of intermedi- fj'a ciass'as ate interest {s) , which have been held to vest a bequest of attain given the first kind in all the members of the class immediately, ^^^' will generally, where the bequest is in the latter form, be treated not as enlarging the class, but only as regulating the mode or conditions in or upon which the members of it are to enjoy the bequest (<). But, as already noticed, there are no words that may not be explained away bj' (I) S Beav. 201; see also Harrison w. Grimwood, 12Beav. 192; Thomas ». Wilberforce, 31 Beav. 299 ; Fox v. Fox, L. R. 19 F.q. 286, 291; Re Baxter's Trusts, 10 Jur. N. S. 845. (m) See ante, p. 845. («) Sltey V. Barnes. 3 Mer. 340; see also Davidson v. Dallas, 14 Ves. 576 ; Heron v. Stokes, 2 D. & War. 116, per Sugden, C. (0) Re Wrangham's Trust. 1 Dr. & Sm. 358 ; Chadwick i;. Greenall 3 Gif. 221. ( p) Bree ». Perfect, 1 Coll. 128 ; Lang v. Pugh, 1 Y. & C. C. C. 718, 724, 725 ; Ingram v. Suckling, 7 W. R. 386. ((/) Pearson v. Dolman, L. R. 3 Eq. 322. (r) Bute V. Harman, 16 Beav. 168, n., correcting 9 Beav. 320. (s) Southern v. Wollaston, 16 Beav. 166. (t) See also cases cited ante, p. 850, n. (A). In Bradley ». Barlow, 5 Hare, 589, the interest was given to '*such children as," &c., and the principal to "all the children when and as," &c., and there being no necessary intendment that principal and interest were to go to the same persons, the gift of principal was held vested. 845 *861 . DEVISES AND BEQUESTS, the context, and the restrictive effect of a gift to suah q/"the children as attain a given age will be obviated by a direction that the legacy shall vest in a larger class or at an earlier age(M).]. Here it may be observed that a contingent interest will or will not be Contingent transmissible to the personal representatives of the legatee, transmissible according to the nature of the contingency on which it is — when. dependent.' If the gift is to children who shall live to attain a certain age, or shall survive a given period or event, the *861 death * of any child pending the contingency has obviously the effect of striking the name of such deceased child out of the class of presumptive objects (cc) ; and, consequently, such an interest can never devolve to representatives, as it becomes vested and trans- missible at the same instant of time. Where, however, the con- tingency' on which the vesting depends is a collateral event, irrespec- tive of attainment to a given age and surviving a given period, the death of any child pending the contingency works no such ex- clusion ; but simply substitutes and lets in the legatee's representative for himself. Thus, where {y) a testator bequeaths his personal estate to A., and if he shall die without leaving issue, then over to B. ; in the event of B. surviving the testator, and afterwards dying in the lifetime of A., tes- tate or intestate, his contingent or executory interest will devolve to his executor or administrator (as the case may be). [So, in Leeming v. Sherratt(2), where a testator gave his freehold and the residue of his personal property to trustees, upon trust to sell the freehold and get in the personal property, and to paj' and divide the money arising therefrom, so soon as his youngest child should attain the age of twenty-one, unto and equally amongst his children, and in case of the death of any of the children leaving issue, such issue were to take the share which the parent so d3'ing' would have been entitled to have ; Sir J. Wigram, V.-C, held that a child who attained his major- ity, but died before the youngest attained twentj'-one, was, never- theless, entitled to a share of the fund. The trustees, he said, are trustees of the residue for all the testator's children upon the happening of an event, which in fact has happened, namely, the youngest child attaining twentj--one. He added, that if there was any case which decided as an abstract proposition, that a, gift of a residue to a testator's children, upon an event which afterwards hap- («) Jackson v. Dover, 2 H. & M. 209; Mappin «. Mappin, W. N. 1877, p. 207; both cited ante, p. 850. (X) Read v. Gooding, 21 Bear. 478 ; Sheffield v. Kennett, 27 Beav. 207, 4 De G. & J. 593 ; Re Watson's Trusts, L R. 10 Eq. 36; and see Re Heath's Settlement, 23 Beav. 193.] to) Pinbury «. Elliin, 2 Vera. 758, 766 ; King v. Withers, Cas. t. Talb. 117, 3 B. P. C. Toml. 135; Wilson ». Bavly, ib. 195; Barnes i;. Allen. 1 B. C. C. 181. 1(2) 2 Hare. 14" "See also Boulton «. Beard, 3 D. M. & G. 608; Brocklebank v. Johnson, 20 Beav. 205; Re Smith's Will, ib. 197; McLachlan v. Taitt, 28 Beav. 407, 2 D. F. & J. 449. 1 See Winslow o. Goodwin, 7 Met. 363 ; post, p. 866, note 1. 846 -WHETHER VESTED OK CONTINGENT. *863 pened, did not confer upon those children an interest transmissible to their representatives, merely because they died before the event happened, he was satisfied that case must be at variance with other authorities. *The child whose share was in question in the last case had *862 attained the age of twenty-one, and the V.-C. thought that as the testator had postponed the division of the residue until his youngest child attained that age, no child who did not attain that age could have been intended to take a share therein (a). But if the bequest be not to a class but to named individuals, it seems the rule is diflferent. Thus, in Cooper v. Cooper (6), a testator devised his real estate to trustees upon trust to raise out of the rents and profits an annuity of 100/. for his wife, and to apply the remainder for the maintenance of his said children (the testator had previously named them) till the youngest should attain twenty-one ; then upon trust to sell subject to the annuity, and pay the monej-s arising therefrom unto and between his said chil- dren in manner following, that is to say, unto his said eldest son two fifth parts, and one fifth part to each of his other children (naming them). One of the children died under twenty -one. It was held by Sir J. Eomilly, M. E., that the children's shares were vested at the testator's death, and were not contingent on their attaining twenty-one. He distinguished Leeming v. Sherratt on the ground that the class who were there to take were the children who had attained twenty-one ; that this was clear by the circumstance that the gift of the residue was not to take effect until the whole of the class had attained twenty-one, and therefore the class was to be ascertained at that time. Here if the devise had stopped at the word children, the case would have been gov- erned by Leeming i'. Sherratt, but the testator went on to say " in the shares and proportions following, that is to saj-." It was not, there- fore, a gift to a class, but on the happening of a particular event, the residue was to be divided into four unequal shares to be given to four named individuals ; and he observed that (unlike what would have been the case if the gift had been to a class) the share of the deceased child, if not vested in her, was undisposed of by the will ; and he considered it to be a gift, on the youngest attaining twenty-one, to four specified persons, and that the circumstance * that they consti- *863 tuted a class for whose maintenance the income of the fimd was to be devoted before the happening of the event did not convert them into a fresh and distinct class. If, however, after such a bequest (a) See also Parker v. Sowerbj, 1 Drew. 488, 496, fuller 17 Jur. 752 ; Lloyd v. Lloyd, 3 K. & J. 20, stated ante, p. 846. In the last case the V.-C. is reported to have said, "The dis- tribution is to be amonff those who shall be receiving the rents and profits when the youngest attains twenty-one," wnich would have excluded those who attained twenty-one but" died be- fore the youngest attained that ago : but he had just before said, " the testator must be under- stood as saying, 'I intend this for the benefit of all those children who attain twenty-one,' which is in conformity with Leeming v. Sherratt." (6) 29 Beav. 229; Ke Smith's Will, 20 Beav. 197. 847 *863 DEVISES AND BEQUESTS, VESTED OK CONTINGENT. nominatim, the shares of any of the legatees who die before the j-oung- est attains twenty -one are given over in everj' event, as, to issue if there are any, but if none to survivors, it is clear nothing is intended to vest until the period of distribution even in a legatee who attains twenty-one (c) .]^ (c) Ee Hunter's Trusts, L. E. 1 Eq. 295.] 1 When an estate devised is defeasible and no time is fixed at wliich it is to become ab- solute, and the prope^'ty iiself is' given, and not merely the use, if there be any intermedi- ate period between the death of the testator and the death of the donee, at which the es- tate may fairly be considered absolute, that time is adopted. For example, in case of a gift to A. it he arrives at age, but if he dies without leaving a child, the property to go to B., the intermediate period is adopted, and the gift becomes absolute in A. at his - major- ity. Hilliard v. Kearney, Bush. Eq. 221 ; Burton v. Conigland, 82 N. Car. 99 ; Home v. PiUans, 2 Mylne & K. 15, 22. If there be no intermediate period, and the alternative is either to adopt the time of the testator's death or the death of the donee, whenever it may happen, as the period at which the estate is to become absolute, the former period will be adopted unless there be words to forbid, or some consideration to turn the scale in favor of the death of the donee. For example, in case of a gift to A., but in case of his death to B., the time of the testator's death is adopted as the period at which the gift to A. becomes absolute. lb. And this principle ap- plies alike to personal and to real estate. Burton v. Conigland, supra; Davis v. Parker, 69 N. Car. 271. 848 EXECUTORY DEVISES AND BEQUESTS. *864 * CHAPTER XXVI. *864 EXECUTORY DEVISES AND BEQUESTS. An executory devise is a limitation b}^ will of a future estate or inter- est in land, which cannot, consistently with the rules of law, take effect as a remainder;^ for it is well settled (and, devise — indeed, has been remarked as a rule without an exception) , ^'^*'" that when a devise is capable, according to the state of the objects at the death of the testator, of taking effect as a remainder, it shall not be construed to be an executory devise (a). It is necessary, therefore, in treating of this species of estate, first, to ascertain what constitutes a remainder. A remainder may be described to be an estate which is so limited as to be immediately expectant on the natural determination of a particular estate of freehold, limited by the same instrument.^ It follows, that every devise of a future interest, which is not preceded by an estate of freehold, created by the same wUl (5) (whether consist- ing of one or more testamentar}' papers), or which, being so preceded, is limited to take effect before or after, and not at the expiration of such prior estate or freehold, is an executory devise.* The first mentioned species of executory estate occurs, as well where the devise is future in its operation, from the non-existence of the object at the death of the testator, as where it is future in the express (n) Purefoy v. Rogers, 2 Lev. 39, 2 Saimd. 380; Reeve v. Long, Garth, 310; Goodright v. Cornish, 4 Mod. 258. [But this rule is now qualified by stat. 40 & 41 Vict. c. 33, pi'eseutly noticed.] (b) See ICev v. Gamble, 2 Jones, 123 : Moore v. Parker, 1 Ld. Raym. 37, Skinn. 558 ; Doe V. Earl of Scarborough, 3 Ad. & El. 2, 89T. i 4 Kent, 263; Heath v. Heath. 1 Bro. Delancv, 13 Johns. 6.37; Ide v. Ide, 5 Mass. C. C. (Perkins's ed.) 148, and note (re); 500,502; Annable «. Patch, 3 Pick. 360. Nightingale v. Burrell, 15 Pick. 110-115; 2 A remainder may be limited upon a Holm V. Low, 4 Met., 190; Vedder v. Evert- possibility, but the possibility must he poten- Hon, 3 Paige, 281 ; Ferson v. Dodge, 23 Pick. tiapropinqufi, such as death, or death without 287; Jackson v. Christman, 4 Wend. 277; issue, or coverture, or the like. Therefore, a Jackson v. Thompson, 6 Cowen, 178; Wilkes remainder to a corporation which is not in V. Lion, 2 Cowen, 333 ; Jackson v Staats, 11 being at the time of the limitation is void, Johns. 337; Fosdick v. Cornell, 1 Johns. though it be erected during the particular 440; Anderson v. Jackson, 16 Johns. 382; estate. Anshutz 'v. Miller, 81 Pcnn. St. Moffatti;. Strong, 10 Johns. 12; Jackson v. 212, 216; Fearne, Conting. Rem. 250, 251. Bull, 10 Johns. 19; Jackson ». Robins, 16 " See Wells ». Ritter, « Whart. 208 ; Moore Johns. 537 ; S. C. 15 Johns. 169 ; Jackson v. v. Howe, 4 T. B. Mon. 199; Beard v. Rowan, 1 M'Lean, 136. 849 *865 BXECUTOEY DEVISES Devise exec- terms of its limitation.^ Thus, a devise to the children waiuof a ^^ -^•' ^^'^ happens to have no child at the death of the preceding testator (c), or to the heirs of the body of A:, a person then free . living, is executory (rf) , for the reason suggested. The creation of a term of years, determinable with the life of the ancestor, to whose heirs the subsequent limitation is made, of course does *865 * not vary the principle ; a chattel interest being inadequate to support a contingent remainder (e) . Thus, if lands are devised to Ai for ninety-nine years, if he shall so long live, remainder to the heirs of the bodj"^ of A., the fee-simple, subject to the term, descends to the heir at law of the testator during the life of A., at whose decease an estate tail vests in the heir of his body by executory devise. So, a devise to a person or persons, whether in esse or not, to take effect at a given period after the death of the testator, as to A. at the death of B. (a stranger), or at six months from the testator's decease, obviously belongs to the class of limitations under consideration (/ ) . With respect to the cases in which the devise is executory, notwith- Devise exec- standing the creation of a prior estate of freehold, it is to utoiy, not^ be observed, that to constitute the ulterior limitation an prior^free-"^ executory devise in such a case, the precedent estate must hold. jjQt be merely liable to be determined before the ulterior limitation takes effect (as such liability only renders the remainder con- ' tingent), but it must be necessarily determinable before the taking effect of the ulterior devise. Thus, a devise to A. for life, and, after his decease, to the unborn children of B.,is a contingent remainder in such children, because as A. may live until B. has a child, there is not necessarilj' any interval between the two estates ; but, under a devise to A. for life, and after his decease, and one day, to the children of B., the children would take by executory devise, and the interval of a day, which would be undisposed of, would belong to the residuary devi- see (g), if any, or if not, to the heir.^ It is an obvious consequence of the general principle before laid down, that where the event which gives birth to the ulterior limitation, abruptly determines and breaks off the preceding estate, the limitation is executory, inasmuch as it is essential to the constitution of a remain- (c) Hopkins «. Hopkins, Cas. t. Talb. 44; Stepliens v. Stephens, ib. 228; Gore «. Gore, 2 P. W. 28, 2 Stra. 958; Bullock v. Stones, 2 Ves. 521. (d) Snowe v. Cutler, 1 Lev. 135, T. Eaym. 162; Doe v. Carletpn, 1 Wills. 225; Harris v. Barnes, 4 Burr. 2157 ; Doe d. Fonnereau v. Fonnereau, Dougl. 487 ; Doe d. Mussell v. Morgan, 3 T. R. 763. (c) FtVe supra, n. (rf). (/) Reding v. Stone, 8 Vin. Ab. 216, pi. 5; and see Clarke ». Smith, 1 Lutw. 798. (g) Supra, p. 645. 1 Wells V. Ritter, 3 Whart. 208; Moore v. years after they hear of his death, of certain Howe, 4 T. B. Mon. 199 ; Beard v. Rowan, 1 lands, otherwise to their heirs, is an execu- McLean, 135; Miller i). Chittenden, 4 Iowa, tory devise, and the freehold descends to the 252. heirs of the heirs of the devisor until the con- ^ See Miller v. Chittenden, 4 Iowa, 252. dition is fulfilled. Chambers v. Wilson, 9 A devise to the testator's brothers' and sisters' Watts, 495; Miller v. Chittenden, 4 Iowa, children abroad that may first come to this 252 ; Morton v. Funk, 6 Penn. St. 483. country, provided they came within six 850 AND BEQUESTS. *866 der, that it wait for the regular expiration of such estate.^ Thus, in the case of a devise to A. for life, or in tail, with a limitation over to B., in case A. shall become entitled in possession to a certain estate, or shall omit to assume a certain name, this is an executory devise to B. (A). It will 'be apparent from what has been stated, that every * devise to a person in derogation of, or substitution for, a pre- *866 ceding estate in fee-simple, is an executory limitatibn. Thus, in the case of a devise to A. and his heirs, and if he shall Executory die under twenty-one and without issue (i.e. without issue ^|.^j-o„'"f'^a' living at his death), or if he shall die without issue. living preceding B., then to B. ; in each of these cases the devise to B. is ^^• executory (i) ,^ in the same manner as if the fee, instead of being lim- ited to A., had been suffered to descend to the heir at law of the testa- tor, and the property had been simply devised to B. on either of such (h) Nicholl V. Nichcll, 2 W. Bl. 1159; NicoIIs v. Sheffield, 2 B. C. C. 215; Doe d. Hen- eage v. Heneage, 4, T. R. 13; Carr v. Earl of ErroU, 6 East, 58; Stanley v. Stanley, 16 Ves. 491 ; Doe d. Kenrick v. Beauclerk, 11 East, 657. (i) Cro. Jac. 592; Palm. 131; Gilb. 393; 2 Mod. 289; Pre. Ch. 67; ib. 486; 10 Mod. 419; Cas. t. Talb. 228 ; 8 Vin. Ab. 112, pi. 38; 1 B. C. C. 147; 3 T. E. 143; 2 B. & P. 324; 10 East, 460; 1 B. & Aid. 5-30; ib. 713; 2 B. & Aid. 441; [1 Eq. Ca. Ab. 186, pi. 1; 1 Wils. 105 ; Fea. C. E. 396 ; 10 B. & Or. 201.] Manv of these cases are stated supra. 1 Brattle Square Church v. Grant, 3 Grav, 150; Nightingale v. Burrell, 15 Pick. 110. One of the essential diiferences between the legal effect of a remainder and an executory devise may be seen in the factthat a remainder consequent upon an estate tail may be barred bv the tenant in tail, wliile an executory de- vise in a similar case would be beyond the control of the prior taker. That operates to determine the prior estate and to substitute another in its place.- Nightingale v. Burrell, supra; Southerland v. Cox, 3 Dev. 394; Smith V. Hunter, 23 Ind. 580; McRee v. Means, 34 Ala. 349 ; Moffat v. Strong, 10 Johns. 12; Jackson v. Bull, 10 Johns. 19. As to the mode of distinguishing between such estates, see Nightingale v. Burrell; Hail v. Priest, 6 Gray, 18, 20, 21; Idei'.Ide, 5Mass. 500; Parker ■«. Parker, 5 Met. 134; Haw- ley V. Northampton, 8 Mass. 41; Fisk v. Keene, 35 Me. 349; Holm v. Low, 4 Met. 190-; Ferson v. Dodge, 23 Pick. 287 ; Miller V. Chittenden, 4 Iowa, 252 ; Ramsdell v. Ramsdell, 21 Me. 293; Van Vechten v. Pearson, 5 Paige, 512; Lorillard v. Coster, 5 Paige, 172; Hawlej' v. James, 5 Paige, 318; Van Vechten u. Van Veghten,'8 Paige, 104; Anderson v. Jackson,- 16 Johns. 388; Willis V. Bucher, 3 Wash. 369. That a fu- ture interest in lands, which can take effect as a remainder, shall not take effect as an executory devise, see Wolfe v. Van Nos- trand, 2 Comst. 436; Johnson v. Valentine, 4 Sandf. 36 ; Leslie v. Marshall, 31 Barb. 560; Stehman v. Stehman, 1 Watts, 466 ; Waddell t). Kattew, 5 Rawle, 231; Manderson v. Lukens, 23 Penn. St. 31> Taylor s.Tavlor, 63 Penn. St. 481; Parker ». Parker, 5 'Met. 134; Randolph v. Wendel, 4 Sneed, 646; Fisk ». Keene, 35 Me. 349, 354, 355; Arnold V. Brown, 7 R. I. 188; Burleigh v. Clough, 52 N. H. 267. A limitation over on the event of the devisee dying without leaving a child living at the time of her death, or any other definite failure of issue, is good as an executory devise. Att.-Gen. v. Wallace,i 7 B. Moii. 611 ; Burfoot v. Burfoots, 2 Leigh, 119; Moore v. Howe, 4 T. B. Mon. 199; Trumbull v. Gibbons, 22 N. J. 117; Eby v. Eby, 5 Barr, 461 ; McRee v. Means, 34 Ala. 349; Hart ». Thompson, 3 B. Mon. 482. So a devise to N., " his heirs and assigns for- ever; but in' case he should die before he arrives to lawful age, or have lawful issue, then" over, &c., creates an estate in fee, with a limitiition over by way of executorj"- devise. Den v. Taylor, 2 South. 413. As to the transmissible- rights of an executory de- visee before the happening of the contingency on which his estate is dependent, see Kean v. Roe, 2 Harr. (Del.) 103; Lewis v. Smith, 1 Ired. 145; ante, p. 837, note 2, p. 861. And see further consideration of executory devises in Mitchell «. Long, 80 Penn. St. 516; Rupp V. Eberly, 79 Penn. St. 141 ; Smith v. Hunter, 23 Ind. 580; Dunn v. Bank of Mobile, 2 Ala. 152 ; Holm D. Low, 4 Met. 190 : Booker i>. Booker, 5 Humph. 505; Norris v, John- ston, 17 Graft. 8; Hilleary v. HiUeary, 26 Md. 275; Jackson v. Chew, 12 Wheat. 153; Heard v. Horton, 1 Denio, 165 ; Guernsey v. Guernsey, 36 N. Y.267; ante, p. 837, note 2. 2 Den V. Taylor, 2 South. 413; Barnitz ». Casey, 7 Cranoh, 456; Vedder v. Evert- son, 3 Paige, 281. ' ' 851 *867 EXECUTOET DEVISES events ; the only difference being, that in one ease the property shifts, on the happening of the contingencj', from the prior devisee, and in the other, from the heir of the testator to the devisee of the executory interest. No species of executory limitation is of such frequent occur- rence as those which are limited in defeasance of a prior estate in fee.i The short but comprehensive definition of an executory devise before given, will be found to comprise every class of limitations of this nature, and, perhaps, will be more easily understood and remembered by the student, than the more elaborate classification which has been generally presented to him. A learned writer, whose labors on this subject are well known to the profession (k), has added to the distribution of the cases adopted by Mr. Fearne (l) , several classes, two of which, though thej' clearly fall within the terms by which this species of interest has been before described, are sufficiently peculiar to entitle them to distinct notice. First, Where an estate tail, or an estate in fee-simple, is in *867 * some event reduced to an estate for life. As where (mi) a tes- tator devised real estate to his two daughters, their heirs and assigns ; but if either of them should marry without the or in tail re- consent of his cxecutors, the daughter so marrying should duced to an jj^yg j^jj estate for life therein ; if either of them should die CSl^fP lOl' Ill3 unmarried, then R. to take it, paying the other daughter 5001. It was held, that on one of the daughters marrying without con- sent, her estate was cut down to an estate for life. Secondly, Where an estate is limited in derogation of a preceding Kstate par- estate, and in partial exclusion of the same. As where (n) tiaiiy defeat- ^ testator devised certain lands to his son B. in fee, and ed by execu- , . , ^ . « i . tory limita- Other lands to his son C. in fee, subject to a proviso, that if ''°''' either of his sons should die before marriage, or before twen- ty-one, and without issue of their bodies, then he gave all the lands of such of his sons as should so die, &c., unto such of his said two sons as (k) 2 Prest. Treat, on Abstracts, 139. ll) For which see Doe ». Carleton, 1 Wils. 225 j [Fea. C. R. 400.] These two classes of cases show that Mr. Fearne's position (C. R. 251 and 530, 8th ed.), " that a condition or limi- tation must determine or avoid the whole of the estate to which it is annexed, and not deter- mine it in part only, and leave it good for the remainder," must be received with some qualifi- cation. A condition properly so called, namely, which descends upon the heir, necessarily determines the whole estate, which is subject "to it; but it is difficult to perceive upon what principle any objection can be advanced to an executory devise, to take effect in partial dero- gation of a preceding estate, on the ground that it defeats that estate in part only; and it is observable, that, in all tlie cases cited by this able writer in illustration of his doctrine, the limitation over was either defective in the terms of its creation (on which, however, some remarlts' will be found in the sequel (see Corbet's case, 1 Rep. 83 b ; and other cases observed upon, Ch. XXVII. R. 2)), or was repugnant to the nature aiid incidents of the estate on which it was engrafted ; or was contrary to the rule of law fixing the period within which such inter- ests must be limited to arise. (m) Wright v. Wright, 1 Ves. 409, Fea. C. R. 500. (re) Hanbury v. Cocljrell, 1 Roll. Ab. 835, Fea. C. R. 396. 1 See Eaton 1). Straw, 18 N.H. 330; Hills, a gift over in these cases, see McNeely o. Hill, 4 Barb. 419; Buist v. Dawes, 4 Strobh. McNeely, 82 N. Car. 183 j Nunnery v. Carter, Eq. 37. As to the efiect of the absence of 5 Jones Eq. 370. 852 AND BEQUESTS. *868 should the other survive. It was held, that the sons took in fee, sub- ject to a limitation to the survivor for life, in case of either d3'ing unmarried, or under twenty-one, and without issue ; and that, as one of them had attained twenty-one, and died unmarried, the survivor was entitled to his moiety for life. As this case simpty affirmed the validity of the devise over for life, leaving untouched the destination of the ulterior interest, it _ , c' Jiemark on cannot, perhaps, be treated as a direct adjudication on the Hanbury v. point for which it is here cited, [namely, that the estate ^"'=''''"'"- originally devised was affected onlj- to the extent necessary for the in- troduction of the life-interest, and subject thereto remained in the prior devisee :] yet, upon principle, there can be, it is conceived, no doubt as to the doctrine in question ; and which, indeed, has now the support of [an express decision in its favor (o) ; as well as of another] case which appears to have decided, that where a devise in fee is fol- Effect where lowed by an executory limitation in fee, in favor of an ^xecutovy .' -^ ^ gift never object or class of objects not in esse, and who, in event, never takes effect. come into existence, the first devise remains absolute. The case last alluded to is Jackson ij. Noble (jo), where a testator gave real a personal estate to his daughter A., and to two other persons, upon trust to permit A. to receive the rents and devisefaiiing interest for life, for her separate use, and, after her {i''^t devise decease, in * trust to convey to her heirs, executors, *868 absolute. &c. ; but in case A. should marry, and have no child or children, then the propertj' to belong to B. ; or in ease of his decease before A., then to his children. A. married, but had no child : B. died in her lifetitne, without issue. Lord Langdale, M. R., held, that A. took an absolute equitable estate, with an executory gift over to B. and his children, and that B., having died in the lifetime of A., leaving no child, ..ue title of A. remained undefeated. [This case has indeed been referred to the narrower ground that the contingency there contemplated on which the gift over was to take effect had not happened (q) ; and it seems that however reasonable the rule above suggested as being deducible from it, the case cannot with certainty be relied on to that extent ; while the more general inference that in all cases where the executory devise is void from any cause what- ever the prior devise is absolute, is contradicted by Doe d. Blomfleld v. EjTC (r), where M. S. having an exclusive power of appoint- _ ing lands by will amongst her children, appointed them to rule settled [(o) Gatenby v. Morgan, 1 Q. B. D. 685.] (p) 2 Kee. 590. [((/) By Kindersley, V.-C, Robinson «. Wood, post. Lord Langdale thus expressed him- self: " The question is whether the particular event on which the vested estate was to be devested can now happen ; and having regard to the intention of the testator, and the words in which the gift over is expressed, I am of opinion that the gift over was to take effect only in the event of A. marrving and dying without issue in the lifetime of B. or of such child or chil- dren as he might happen to leave; and as B. died iji A.'s lifetime and had no child, I think that the contingent executory gift cannot take effect, and that the estate already vested in A. cannot now be devested." (»') 5 C. B, 713. 853 *869 EXECUTOEY DEVISES by Doe d. her eldest son, J. B., in fee; but if J. B. and his brother Blomfield ».,,,.,,„, , , , , . , , Eyre. both died before her husband, then she appointed the estate to her father-in-law. (a stranger to the power) in fee.' J. B. and his brother both died in their father's lifetime, and it was held in. the Ex- chequer Chamber, that although thefather could not take, yet the son lost the estate. Parke, B., delivered the judgment of the court, and after premising that the question was the same, whether it arose upon an ordinary devise or upon an appointment under a power, he said : " If a testator seised in fee were to devise a real estate to A. B. in fee, and to direct that, in the event of A. B. dying in the lifetime of J. S., the, estate should go over to a charity, it surely was perfectly clear that if A. B. should die in the lifetime of J. S. he,' or rather his heirs., would lose the estate. The testator could not give to the charity without tak- ing awaj' from the devisee. The testator, therefore, in such a case, by his will said, ' If A. B. dies in the lifetime of J. S., I do not mean that he or his heirs should any longer have the estate.' That which *869 defeated * the estate of J. B. was the death of himself and his brother in his father's lifetime, not the giving over the estate to strangers." The case put by Parke, B., of a devise over to a charity, after- wards came before Sir R. Kindersley, V.-C. , who felt himself bound to decide it in conformity with Doe v. Eyre, though not lapproving of the doctrine of that case. He thought a . starong argument against it might have been found in the statute (s), which , declared all gifts to charity, not made as therein provided, void to all intents and purposes ; he also thought it very difiBcult to reconcile Jackson «. Noble with Doe v. Eyre, but concluded that the ground of the decision in the former was that the contemplated contingency had not happened {t) . But to the rule thus laid down in Doe v. Eyre, the case of a gift over Exception which is to defeat a prior devise in a too remote event forms T\^^d ^fr "' ^^ exception (m) , since the law refuses permission to await void for re- that event for any purpose ; so that the prior gift must, of. moteness. necessity, remain absolute.] ^ On the same principle as that which governs devises of realty it would Same rules as seem to follow, that, if personal estate were bequeathed in to personal- terms which, standing alone, would confer the absolute in- ecutory gift terest, and there followed a bequest over in a certain event is for life to a person for life, the first legatee would, subject to such . ' executorj' gift for life, be absolutely entitled. It might appear to be a further deduction from this doctrine, that if the second (s) 9 Geo. 2, c. 36, s. 3. (() Kobinson v. Wood, 4 Jur. N. S. 625, 27 h. J. Oh. 726. See Sug. Pow. 514, 8th ed., where Doe ». Eyre is approved. But see Ridgway v. Woodhouse, 7 Beav. 437. («) Sug. Pow. 514, 8th ed.] 1 Brattle Square Church v. Grant, 3 Gray, 150. 854 AND BEQUESTS.-. *870 gift were a contingent bequest of the entire interest in the property, and not for life only, and such contingent and substituted bequest — w.here ex- failed in event, the prior legacy, in derogation of which n™e°r tales the same was to take effect, would remain absolute ; and effect. Taylor v. Langford (x) seems to lend some countenance to the * hypothesis. [Even where there was in the first place a distinct *870 clause declaring that in a certain event the previous gift should be forfeited, and then followed a gift over in the same event, which gift failed for remoteness, SirC. Hall. V.-C, said: " When you find a for- feiture clause associated with a gift over, is it not reasonable to read them together? " and he refused to read one separately from the other (y) . However, in O'Mahoney v. Burdett («), where a legacy was bequeathed to A. for. life, remainder to her daughter ; but if the daughter should die unmarried or without children, then to B. ; B. died in the testator's lifetime, and afterwards the daughter died without ever having a child. Doe v. Eyre and Jackson v. Noble, were cited, and it was held in D. P. that the gift to the daughter was defeated, although the gift over had failed by lapse. Lord Selborne said "he had doubted whether, under the circumstances, the effect of the divesting clause was not wholly evacuated, in the same way as if there had been a blank in the will for the name of the substituted: legatee ; but that the argument on. that point and the authority cited by the respondent (qu. appellant) had satisfied him that the lapse of a contingent gift, by way of substi- tution, to a person named who might have survived the testator, oper- ated (when the contingency had happened on which the gift to the person was made to depend) for the benefit of the residuary legatee or next of kin." It seems, therefore, that Doe v. Eyre furnishes, the rule as well for personal as for real estate. {x) 3 Ves. 119. See also Harrison ». Foreman, 5 Tes. 207, and other cases stated ante, 827 et seq. But Joslin v. Hammond, 3 My. & K. 110, shows that too much caution can- not be exercised in forming any such conclusion. In that case, a testator bequeathed to his wife A., whom he appointed executrix, the whole of his property, on condition of her paying to his mother 130(. per annum during her life, and added, "at the death of my dear wife A., the whole of the propertj' to be equally divided amongst those of my chil- dren who may survive her; ".and should his wife marry again, thq testator directed that each of his children at the age of twenty-four be paid 400/. ; should she not marry, he left them implicitlv to her kind and indulgent care. No child of the testator survived tlie widow. It was contended, therefore, that the widow was absolutely entitled, on the ground that the absolute interest which she would have taken under the first words of the will, was cut down to a life-interest only in a cei'tain event which had not happened; but Sir J. Leach considered that, upon the whole context of the will, it was the intention of the testator that in no event the wife should have other than a life-estate. "If," said his Honor, "at her death, a child or children survived her, thev were to take the property between them ; but he has not provided for the case of all the children dying during the life of his wife, and that event having hap- pened, he has so far died intestate. It is not a probable intention to be imputed to the testa- tor, that, if his children died in the lifetime of his wife, leaving families, his widow, on her second marriage, should enjoy the whole property." His Honor did not advert to the annuity to the mother. [See Lassence v. Tierney, 1 Mac. & G. 551. (y) Hodgson v. Halford, 11 Ch. D. 959, 963. Though this was a case of remoteness (which is an exception to the rule founded on Doe v. Eyre'; see Courtier v. Oram, 21 Beav. 91; Webster v. Parr, 26 Beav. 236), the V.-C.'s observation was in answer to an argument (for which, however, there appears to have been insufficient ground) that though the gift over wa& remote the clause of forfeiture was not, and that the latter might operate alone. («) L. li. 7 H. L. 388, 407. 855 *872 EXECUTOEY DEVISES An exception exists however in those cases (which are of frequent Exception occurrence) where personalty is bequeathed to individuals ■where chil- or to a class, to coine into possession at a future period (as, tuiedon after a life-estate to A.), and in case any of them should death of orig- (jjg before the period of distribution, then to their children ; in£il i6iir^tG6s> here, the original gift is divested only in the case of those *871 who have * children. Thus in Smither v. Willock(a), where there was a bequest to the testator's wife for her life, and after her death to his brothers and sisters, named in the will,, in equal shares ; but in case of the death of any of them in the lifetime of the wife, the shares of him or her so dying were to be divided between his or her children : one of the testator's brothers died in the widow's lifetime, without having ever had a child ; and Sir W. Grant declared his share to be vested, subject to be devested onlj' in the event of his death in the lifetime of the widow, leaving children : and consequently, that event not having happened, Ms representative was entitled.] It seems too, that, where a testator, in the first instance, divides his property among his children, and then proceeds to declare absolute in- Certain trusts of his daughters' shares in favor of themselves terestsave g^^jj their children, these trusts are considered as defeating first given, ' *=* and then only pro tanto the absolute interests antecedently given to dared of ^^^ daughters in common with the other children, shares of cer- As, in Whittell V. Dudin (J), where the testator directed tain jec s. ^^ residue of his property to be equally divided between his wife, and sons and daughters, subject, as to the shares of the daughters, to certain trusts for the benefit of themselves, and their children ; Sir T. Plumer, M. R., held that a daughter dying without a child was entitled absolutely under the original bequest, from which it was to be collected that the testator's design was to make an equal division among his children, which would be frustrated if the shares of daughters were to go to the testator's next of kin as undisposed-of property, on their dying without children. And the same construction prevailed in Hulme v. Hulme (e) , where a testator, in the first instance, made an absolute gift to all trusts operate ^is children by his second wife, who should be living pro tanto *872 when * the youngest should attain twenty-one. He °" ^' then superadded a direction for settling the shares of (ra) 9 Ves. 223. See also Hervey t>. M'Laughlin, 1 Pri. 264; Salisbury v. Petty, 3 Pri. 86.1 (b) 2 J. & W. 279. (c) 9 Sim. 6i4. See also Billing!). Billing. 6 Sim. 232; [Ring v. Hardwick, 2 Beav. 352; Maver v. Townsend, 3 Beav. 443 ; Winckworth ». Wiuck worth, 8 Beav. 576 ; Re Forster, \ M. D. & 1). 418, 2 Beav. 177; Arnold v. Arnold, 16 Sim. 404 ; Eaton w. Barker, 2 Coll. 124: Dawson V. Bourne, 16 Beav. 29; Re Young's Settlement, 18 Beav. 199; Lyddon ». Ellison, 19 Beav. 565; Gurney 1). Goggs, 25 Beav. 334; Re Corbett's Trust, Joh. 591; Norman w.Kvnaston, 3 D. F. & .T. 29. In Maver » Townsend, where the primary gift was absolute to a daugfiter, followed by a direction to invest in trust for her, for her separate use for life, and after her death to her children, mthpmeer to her to appoint a life-interest to her husband. It was contended, that the intention could not have been to give her an absolute interest, even if there were no chil- dren, because a husband surviving her might take the property absolutely. Lord Langdale apprehended there would b? a great deal to say on that point ; but it did not arise. 866 AND BEQUESTS. *873 the daughters, upon trust for them for life, and then for their children. One of the daughters having died childless, it was held that her share belonged absolutely to her representatives. Sir L. Shadwell, V.-C, observed: "The absolute gift remains, except so far as the direction for settling the shares of the daughters has taken it away, and it is not taken away in the case of a daughter dying without having children." [The rule (which applies to shares of males as well as to shares of females (d)) is thus stated bj' Lord Cottenham: " If a testator leave legacy absolutely as regards his estate, but restricts the mode of the legatee's enjoyment of it to secure certain objects for the benefit of the legatee, upon failure of such objects the absolute gift prevails ; but if there be no absolute gift as between the legatee and the estate, but particular modes of enjoyment are prescribed, and those modes of enjoyment fail, the legacy forms part of the testator's estate, as not having in such event been given away from it. In the latter case, the gift is only for a particular purpose ; in the former, the purpose is the benefit of the legatee, as to the whole amount of the legacy, and the directions and restrictions are to be considered as appUcable to a sum no longer part of the testator's estate, but already the property of the legatee " (e). It is in the determination of this previous question, whether, namely, the gift to the primary legatee is absolute or qualified, that p , f ^ ' the real difficulty of these cases generally lies. The inten- ciding wheth- tion is, of course, to be collected from the whole will. Sup- ^n 'absolute pose, for instance, that after the gift to the primary legatee gift in the there are gifts over in alternative contingencies exhausting "' '' ***■ every possible event : this is wholly inconsistent with an intention that there should, in any event, be an absolute gift to the primarj' legatee. But the point can only be material when the first expressions are am- biguous, for if there is a distinct positive gift, and the intention is express, nothing that afterwards follows can affect the construction of the positive gift ; but where the first gift is capable of two constructions, other parts of the will are to be looked at to see what the intention was ; and no doubt a disposition of the whole property, under all cir- cumstances that can arise, is an important consideration in put- ting a construction on ambiguous * expressions. It does not *873 seem possible that the two intentions could exist together : if they are both found in the same will, the court may have to decide which is to prevail (/) ; but if the first is ambiguous and the other is not, the unambiguous expression must have great effect in controlling that which is ambiguous (g) . (,d) Norman v. Kynaston, 3 D. F. & J. 29. (e) Lassence v. Tierney. 1 Mac. & G. 561. (/) See Fiiidon v. Findon, 1 De G. & J. 380; Re Lord Sondes'' Will, 2 Sm. & G. 416; Salmon v. Salmon, 29 Beav. 27. ((/) Per Lord Cottenham, Lassence ». Tierney, 1 Mac. & G. 562, 567 ; Reid v. Reid, 25 Beav. 469 ; Butler v. Gray, L. R. 5 Ch. 26. Other cases where the primary gift has beeu 857 *874 EXECUTOKY DEVISES Gift subject Where there is a legacy subject to be defeated by the whicK ex- exercise of a discretionary power, and that power is extin- tinguished. guished, the legacy of course becomes a.bsolute (A).] The essential quality in executory devises, which gave to the distinc- Ex utorv ^^^^ between them and contingent remainders its chief im- interestsnot portance [wag] this, — that such interests [were and still] Mts°of''^owiier ^^^ "^* ^ general liable to be affected by any alteration in of precedent the preceding estate (i) : ^ while, on the other hand, as the pofafp rule was that a contingent remainder must take effect, if at aU, at the instant of the determination of the preceding estate, it fol- pesiructibjl- lowed that any act by the owner of the prior estate of free^ tineent re- bold, which amounted to a forfeiture of it, produced thei maindersi destruction of the dependent contingent remainders, the effect being to place them in the same situation as if the preceding estate had regularly expired before the period of vesting. [But their cured by destructibUity by such an act is now a doctrine of little statute. practical importance, since, bj'stat. 8 &'9 Vict. c. 106, s. 8, contingent remainders are made "capable of taking effect notwith- standing the determination by forfeiture, surrender, or merger of any preceding estate of freehold in the same manner in. all respects as if such determination had not happened."] But it is obvious that a contingent remainder may be of such a nature as to admit the possibility of its continuing in suspense or contingency after the regular determination of the previous *874 * estate of freehold. For instance, suppose freehold lands to be limited to A. for life, with remainder to such of the children of A. as shall attain the age of twenty-one years, it is evident, that if, all the children of A. happen to be under age at the time of A.'s decease, the remainder to the children would, according to the rule b.efore referred to, wholly fail [unless preserved by an estate limited to trustees] dur- ing the life of A., and the further period of the possible minority of one, at least of the children (k) .^ held not absolute are Eucker v. Scholefield, 1 H. & M. 36 ; Scawin ». Watson, 10 Beav. 200 ; Gompertz v. Gompertz, 2 Phil. 107; Wliitehead v. Bennett, 22 L. J. Ch. 1020; Waters v. Waters, 28 L. J. Ch. 624; Fullerton v. Martin, 1 Dr. & Sm. 31; Savage v. Tyers, L. K. 7 Ch. 356 ; Nevill v. Boddam, 28 Beav. 654. (revocation by codicil of absolute gift by will and sub- stitution of qualified gift). In the following eases the first gift was held absolute: Campbell v. Brownrigg, 1 Phil. 301; Lord v. Lord, 3 Jur. N. S. 485; Watkins v. Weston, 3 D. J. & S. 434 (indefinite gift of , rents of leasehollls); McCuUoch v. McCulloch, 3 Gif. 606; Combe v. Hughes, 2 D. J. & S. 667 ! Martin 0. Martin, L. R. 2 Eq. 404 ; Kellett v. Kellett, L. R. 3 H. L. 160. ' (h) Keates v. Burton, 14 Ves. 434.] (i) Pells V. Brown. Cro. Jac. 590. [(*) Festing v. Allen, 12 M. & W. 279; Holmes v. Prescott, 33 L. J. Ch. 264; CunlifEe v. Brancker, 3 Ch. D. 393.] 1 Ante, p. 866, note 1. life-tenant, when there is nothing to indicate 2 A remainder to the children of the ten- an intent to make the interest of the children ant for life will not be held to be contingent contingent. Moore v. Dimond, 6,R. 1. 121. upon theisurvivorship by .the children of the 858 AND BEQUESTS. *876 But eveiy devise operates according to the .state of the objects at the death of the testator ; so that,- if (in the case put), A. died j^^ture of in the lifetime of the testator, the devise to his children imitation would become executory, precisely as if it had been origi- dependent on nally limited to them without any preceding freehold (J) , ®™?5* ^nles- [and would take effect accordingly. tator's life- The total failure to which such a limitation was liable as '™^' a remainder is now prevented by stat. 40 & 41 Vict. c. 33 Stat. 40 & 41 (2d Aug. 1877), which enacts that " every contingent , re- '•='•''•33. mainder created by any instrument executed after the passing of this act, or by any will or codicil revived or republished by any will or codicQ executed after that date, in tenements or hereditaments of any tenure, which would have been valid as a ispringing or shifting use or executory devise or other limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use, or executory devise or other executory limitation." But suppose that A. (in the case already, put) survives the testator, and afterwards dies leaving several children, some of whom have already attained the prescribed age, and others not. Here the rule before the act was (jw) , that > those children alone took who attained, twenty-one before the particular estate determined,' to the exclusion oi others who might afterwards attain that age. Now what happens in such a case is this : either the contingent remainder in ;the entirety vests in the child who first attains the age in the. lifetime of A. , with a liability to open and let in such others as afterwards attain the age in A.'s lifetime — * and this is the commonly received opin- *875 ion (ra) ; or, at latest, the entirety vests, eo instanti that the par- ticular estate determines, in all those children who h?tve then attained the age, to the exclusion of those who; have not. In icither case the particular estate does not determine before the ' contingent remainder vests, and thus the event in which alone the act operates has not happened. It has been suggested that as every infant child a'w es«« during the particular estate might by possibility have become entitled to a share by attaining twenty-one during the continuance of the particular estate, such share was a contingent remainder at the time of the determination of the estate, and is consequently saved by the act. But this view seems inconsistent with the nature of a gift to a class : since, under (V) See Hopkins r. Hopkins, Cas. t. Talb. 228, 1 Atfc. 581, 1 Ves. 268; Doe d. Scott v. Roach, 5 M. & Sel. 481. (m) Ante, p. 264. [(«) Fea. C. R. 312; Mogg ». Mogg, 1 Mer. 654; 1 Preston Conv. 52, 63; 3 Preston Conv. 555. And see Solicitor's Journ. 1878, pp. 544, 563, 601, 622, 640, 661.] 859 *876 EXECTTTOEr DEVISES such a gift, those only are objects of the gift who have attained the required qualification when the time for ascertaining the class arrives, — viz. (in the present case) the determination of the particular estate, — and they take the whole.] Where the limitation of a future interest, by way of executory devise. Nature of is followed by other limitations expectant thereon, in the i)™sibh°° nature of remainders (which, of course, can only happen dependent where the first executory estate is less than the fee-simple) , sequent ^^ ' such subsequent limitations may, it is evident, according to events. events happening as well after as before the death of the testator, take effect either as remainders or as executory devises. If, by the removal out of the way of the preceding limitation or limita- tions, by the death of the object or objects, or otherwise, before the happening of the contingency on which the whole line of limitations depends, a subsequent devisee is placed at the head of the train ; his estate will, on the happening of such contingency, take efiect as an executory devise, though had it retained its original position, such estate would have vested as a remainder. Thus, in Doe d. Fonnereau v. Fonnereau (o) , where A. devised to the heirs male of the bodj' of T. , Ms eldest son (who had an estate for life by deed) , and in default of such issue to his (testator's) second, third, fourth, and fifth sons successively, in tail male ; it was held, that, if T. died leaving an heir male of his body, the Umitation to A.'s next son took effect as a remainder expectant on the estate tail of such heir male ; and that if he died leaving no male issue who survived the testator, it took effect immediately as an executory devise. *876 * Sometimes a limitation is so framed, as to take effect as a contingent remainder in fee in one event, and as an executory limitation engrafted on an alternative contingent remainder one of the in fee in another event. Thus, in Doe d. Herbert v. several con- Selby(»), where the devise was to A. for life, and after current con- , . , tingent re- his decease to his children in fee as tenants m common ; Rubie'cuo an ^""^ ^^ ^' should die without issue, or leaving such issue executory and Such child or children should die under twenty-one or «"5®- (which was read and (q)) without issue, then over to B. in fee. A. suffered a common recovery, and died without issue; and it was held that, in the event which had happened, the limitation to B. would have taken effect as a contingent remainder, and consequently was destroyed by the recovery. It is not quite accurate to say in such a case as Doe v. Selby, that Observations *^® limitation is a contingent remainder in one event, and upon Doe v. an executory devise in the other. There were, in fact, two ^^^^y- alternative contingent remainders in fee : one of which was (o) Doug. 487; [Hopkins v. Hopkins, Fea. C. E. BIO.] (p) 4 D. & Ry. 608, 2 B. & Cr. 92B. (j) Ante, p. 505; [and see Doe d. Evers v. Challis, 18 Q. B. 244. 860 AND BEQUESTS. *877 subject to an executory limitation in favor of the same person, who would have been the object of the alternative remainder. Such a case is clearly distinguishable from that of a devise to A. for life ; and if he shall die on the 1st of January, then, from one year afterwards, to B. in fee ; but if A. shall die on any other day, then, immediately from the decease of A., to B. in fee. In the first event, the limitation to B. would take effect as an executory devise ; and in the second, as a remainder : so that his interest would be desti-uctible or not by the act of A. , according to the event. [Again, in Doe d. Harris v. Howell (r), where a testator devised real estates to his daughter for life, remainder to her son Executory J. in fee ; but in case J. should die before her, and she devise may should have no other child living at her death, then as into a r? she should appoint. The daughter and her son both sur- mainde'' by events suusfi*" vived the testator, and then the son died before his mother, quent to tes- who afterwards had another son who survived her. It was ^^"'^'^ death, decided that though the limitation (which, for argument's sake, was supplied by implication (s)) , to the children of the daughter other than J. could operate only as an executory devise at the time of the testa- tor's death, yet that by J.'s death in his mother's lifetime that limita- tion was converted into a remainder, and was barred by a fine which had been levied by her. *But a limitation which has once operated as a *877 But not a re- contingent remainder can never, after the death of mamder into =" ' / \ T *" executory the testator, be changed into an executory devise (t) .] devise. If, in Doe v. Selby, the tenant for life had had children, i.e. born after the recovery, who had died under twenty-one, and without issue, the case would have raised a question, not, I think, ecutory limi- hitherto decided, namely, whether an executory devise en- '*"<"! '""'^^ ... ..,,., o"t 01 a con- grafted on a contmgent remamder na fee, is involved in the tingent re- destruction of such remainder. If an executory devise were I^Jy^ved'hi derived out of the estate in defeasance of which it is limited' its destruc- to take effect, it is clear that, in such a case, it would be held to share the fate of the parent limitation out of which it is to spring, and to all the accidents of which it would seem, therefore, to be necessarily subject. Accessorium sequitur naturam sui principalis {u). It would then present an exception to Mr. Fearne's position, that " an executory devise cannot be prevented or destroyed b3' any alteration whatsoever in the estate out of which., or after which, it is limited (a-) ; " (to which, indeed, the case of an executory devise, being preceded by an estate tail, does [as he remarks himself] clearly form an exception (y). But it is conceived, that the notion above suggested, though seemingly (r) 10 B. & Cr. 191. (s) But see ante, p. 661. (0 2Prest. Abst. 172; Hopkins ». Hopkins, 1 Atk. 581; Mogg v. Mogg, 1 Mer. 703, 704, arff., and the decree as to the High Littleton estate.l (u) :i Inst. 139. (a;) Tea. C. R. 418. (y) See ante, p. 254 ; [Fea. C. K. 423, 424. 861 *8T8 EXBCUTOKT DEVISES countenaneed'by the I t^nns of this position, is not correct in point of law. An executory > devise is not derived out of, or dependent upon-, the estate which it supersedes. It is a future substantive, independent limitation to arise on a given event ; and the circumstance, that that event involves the faUiireof the objects of a preceding estate, is merely accidental (z). Here it may be observed, that; where the defeasible estate in fee, and Effect-where the executorj' fee to :arise out of it on a given event, become and execu- vested in the same person, the latter is not merged or tory feesi be.-, extinguished in the former, the two interests being succes- iDTame^^ ^ sive, atid not concurrent. Thus, in Goodtitle d. Vincent v. person. "White (a), where a testator devised all his estate to his wife, in case his daughter (who became his heir), died under the age of twentj'-one j'ears. The wife died intestate ; sd that the daughter to whom, the estate had descended from her father, subject to the executory devisej became also entitled, by descent from her *878 * mother j to the executory interest so created. The. daughter I . died a' minor, upon which the heir ea; parte wiaieJTia; claimed the property under the executory limitation, which claim was resisted by the (heir ex parte patemd, on the ground that the executory fee had :been extinguished • by the union of both interests in the person of the daughter. But it was held, that no extinguishment had taken place, and that.the maternal-heir was entitled (b). An immediate estate; in- fee, defeasible on the taking effect of an Curtesy at- executory limitation, has generally all the incidents of an ^frasiWe" actual estate in fee-simple in possession, such as curtesy, fee.. dower, &0.'; the devisee having the inheritance in fee, sub- ject only to a possibility.^ Therefore, in Buckworth v. Thirkell(c), where a testator devised laoids to- trustees and their heirs, in trust for his granddaughter M. until she arrived . at the age of twenty-one, or was married; and after she attained her age of twenty-one, or was married, then he gave the lands toM., and her heirS and assigns, for- ever; but in case M. should die before the age of twenty-one years, and without leaving lawful issue of, her body, then over. M. died under age, without leaving issue living at her decease^ hut having had a •child born alive ; and it was held, that the husband (the father of such child), was entitled to an estate for life as tenant by the curtesy.^ (z) Cf. Vincent Lee's case. Moor, 269.1 ' (a) 15 Bast, 1T4;' Same ■». Same, 2 B. & P. (N-. R.) 383. See also Goodright d. Larmera. Searle, 2 Wils. 29; Doe d. Andrew v. Button, 3 B. & P. 643. (b) The arguments in this case are rei)lete with instructive learning. ' (c) 1 Collect. Jur. 332, 3 B. & P.- 652, n. [The same rule exists with regard to dower out of an estate tail, after failure of issue. Seats of an estate defennined bv condition at common law, Payae v. Samms, 1 Leo. 167, Goulds. 81; Paine'scase, 8 Rep. 34, 5 Vin. 315. 1 Brattle Square Church v. Grant, 3 Gray, the testator that the devisee shall have an 150. . ', absolute property in the estate devised, a 2 Whenever it is clearly the intention of limitation over must be void, because it is 862 AND BEQUESTS. *879 [But an exception exists where. the prior estate is determined by executory devise over in case of the birth or existence „ , Unless cs— of children who, but for such devise over, would have in- tate be such herited the; parent's estate: and the circumstance of the ?s 'ssue could ^ in no case executory devise being in favor of the children themselves have in- does not alter the case. Since the}"^ would not, nor ever ™'^ ' could, take by inheritance, but by purchase (d) . The general right to dower in similar cases is equally well estab- lished (e) , and the same exception must exist here as in Samfe rule as regard to curtesy ; "it being equally necessary in support of '" <^°^''^'^- either claim that children of the marriage, if any such there, be, may by possibility inherit (/) . J * No remainders can be limited in real and personal chattels ; *879 every future bequest of which, therefore, whether preceded by a partial gift or not, is in its nature executory (y), An ulterior Executory bequest of a term for years, after a prior limitation for life, bequest, owes its validity to this doctrine ; the rule formerly being that, in such a case, the whole interest vested indefeasibly in the first legatee (h).^ (d) Sumner v. Partridge, 2 Atk. 47 ; Barker v. Barker, 2 Sim. 249. (e) Moody v. King, 2 Biiig. 447 j Goodenough v. Goodeiiough, 3 Prest. Abs. 372 ; Smith v. Spencer, 2 Jur. N. S. 778. (/) Litt. s. 53.] (17) Fea. C. R. 402. (h) Horton v. Horton, Cro. Jac. 74; Woodcock v. Woodcock, Cro. El. 795. inconsistent with the absolute property sup- posed in the first devisee. And a right in the first devisee to dispose of the estate de- vised at his pleasure, and not a mere power of specifying who may take, amounts to an unqualified gift. Thus a devise was made to the testator's son P. and his heirs and assigns forever of certain lands, and also of personal estaite, with this clause,' "and further, it is my will that if my son P. shall die, and leave ho lawful heirs, what estate he shall leave to be equally divided between my son J. and my grandson N., to them and their heirs for- ever," and it Was held that the devise over to J. and N. was void, as inconsistent with the absolute unqualified interest in the first devi- see, [de B. Ide, 5 Mass. 500 ; and in Kamsdell V. Ramsdell, 21 Me. 288, 293, Shepley, J., said that it had become the settled rule of law that if the devisee or legatee had the absolute right to dispose of the property at pleasure, the devise over was inoperative. See Time- well V. Perkins, 2 Atk. 102; Burbank v. Whitney, 24 Pick. 146; Jackson r; Coleman, 2 Johns. 391: Jackson v. Bull, 10 Johns. 19 ; Jacksoil ». Robbins, 16 Johns. 586; Melson V. Cooper, 4 Leigh, 408 ; Barnard ». Bailey, 2 Harring. 56; Burbank v. Whitney, 24 Pick. 146; Jackson v. Delancy, 13 Johns. 537. But in a case where the testator made a bequest of the residue of his personal prop- erty to his wife, with full power to do with it as she pleased, but whatever she might die possessed of, unless she should otherwise or- der, to be equally divided among certain societies ; the wife, having died before the testator, the bequest over was allowed to take effect. Burbank v. Whitney, 24 Pick. 146. The result would have been different in case she had survived the testator ; ib. See Smith V. Bell, Mart. & Y. 302. 1 At common law there formerly could be. no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property, and it was held that the use might be given to one for life, and the prop- erty afterwards to another, though the devise over of the chattel would be void. That dis- tinction has, however, been discarded, and it is now settled that a gift ipr life of. a chattel is a gift of the use only, and the remainder over is good as an executory devise. This limitation over in remainder is good as to every species of chattels; and there is no difference in that respect between- money and any other chattel interest. The gen- eral doctrine is well established in England, and it has been verj' extensively recog- nized and adopted in this country. See 2 Kent, 352, 353 ; Moffatt v. Strong, 10 Johns. 12; Westcott v. Cady, 5 Johns. Ch. 334; Griggs V. Dodge, 2 Day, 28; Scott v. Price, 2 Serg. & R. 59 ; Delhi ii. King, 6 Serg. & R. 29 ; Rovall v. Eppes, 2 Munf. 479; Mortimer v. Btoffatt, 4 Hen. & M. 503; Goiger v. Brown, 4 M'Cord, 427; Brummet v. Barber, 2 Hill, S. C. 543; Rogers «. Ross, 4 Johns. Ch, 388; Kelso v. Dickey, 7 Watts & S. 279 ; Marston v. Car- ter, 12 N. H. 159; Robards v. Jones, 4 Ired. 53; State «. Norcom, 4 Ired.' 255; Swain v. Rascoe, 3 Ired. 200 ; French ». Hatch, 8 Fos- ter, 331 ; Dow V. Jewell, 1 Foster, 470 ; post, 863 *879 EXECUTOEY DEVISES Thus, in Manning's Case (i) , where a man possessed of a term of years, devised it to B., after the death of A., the testator's wife, and directed that, in the mean time, she should have the use and occupation during her life : it was contended, that the devise to A. during her life gave her the whole term, and that, therefore, the devise over was void ; but after much argument, three-judges held that B. took not by waj' of remainder, but by way of executory devise. And it was ruled that there was no difference between a gift of the land itself, and of the use or occupation or profits of the land.^ Both courts of Law and courts of Equity have been constantly in the habit of entertaining suits, at the instance of an executory legatee, for the recovery of chattels, real as well as personal, and the latter, of pecun- iary legacies, after a prior disposition for life or other partial interest. In Hoare v. Parker {k) , an ulterior legatee recovered, by action of Successive trover, certain chattels which the legatee cestui qUe trust for '"rsmai"' ■^'^'^' ^^^^^ dead, ^ had pledged to a pawnbroker, who had chattels. given a valuable consideration without notice ; the rule being, that the property does not, unless sold in market overt, follow the possession of chattels capable of being identified (I) J' (i) 8 Rep. 95. See also Doswell v. Eavle, 12 Ves. 473; Theobalds r. Duffoy, 9 Mod. 101; Mallett B. Sacktord, 8 Vin. Ab. 39, pi. 5. See also Lampett's case, 10 Rep. 47 ; Catchmay ». Nicholas, Finch, 116 ; Roe d. Bendale v. Summerset, 5 Burr. 2608. That personalty may be Bubjected to the same modifications of ownership, by way of executory gifts, as land, see Martin v. Long, 2 Veru. 151; Johnson r. Castle, Winch, 116, 8 Vin. Ab. 104, pi. 2. (k) 2 T. R. 376. (0 See Hartop v. Hoare, 3 Atk. 44. Ch. XLVI. A bequest of money for life, and 353, and notes. Personal property cannot be then over, gives only the interest. Field v. given to one in tail, with remainder over, nor Hitchcock, 17 Pick. 182. See also Lang- can an executory bequest be made to take worthy d. Chadwick, 13 Conn. 42 ; Powell v. effect upon the termination of an estate tail, Brown, 1 Bailey, 100; Betty ». Moore, 1 because it is too remote. It will be found in Dana, 237; Morrow v. Williams, 3 Dev. 263; all cases, it is said, that where a gift over of 'Rathbone v. Dyckman, 3 Pai^e, 1; Mazyck personal estate has been maintained, it is 0. Vandevhorst, Bailey, 48; Postell v. Pos- where the gift to the first taker, by the terms tell, ib. 390; Jones v. Sothoron, 10 Gill & J. of the bequest, does not exceed a gift for 187; Dashiell.li. Dashiell, 2 Harr. & G. life. Albee ». Carpenter, 12 Cush. 387, 127 ; EiChelberger D. Barnetz, 17 Serg. & R. Shaw, C. J.; Ellis v. Merrimack Bridge, 293; Newton ». Griffith, 1 Harr. & G. Ill; 2 Pick. 243; Homer v. Shelton, 2 Met. 194. Hannau v. Osborn, 4 Paige, 336 ; Henry ». See Smith «. Bell, 6 Peters, 68 ; Hall v. Felder, 2 M'Cord, 323; Matthews ». Daniel, Priest, 6 Gray, 18, 22; ante, " Perpetuities." 2 Hayw. 346 ; Cudworth v. Hall, 3 Desaus. 1 See Dunn v. Sargent, 101 Mass. 336 ; 258 ; Clifton v. Haig, 4 Desaus. 330 ; Homer Gardner ». Hooper, 3 Gray, 398 ; Winslow v. e. Shelton, 2 Met. 194; Rawlins v. Goldfrap, Goodwin, 7 Met. 363; Pike v. Stephenson, 5 Ves. (Sumner's ed.) 440, Perkins's note 99 Mass. 188,2 Kent, 352, 353; Moffatt v. (rt); Cox v. Marks, 5 Ired. 361; post, Ch. Strong, 10 Johns. 12; Westcott v. Cady, XLVL There is an exception to the rule in 5 Johns. Ch. 334; Rogers i'. Ross, 4 Johns, case of the bequest for life of specific things, 388; French v. Hatch, 28 N. H. 33], 352; such as corn, hay, and fruits, of which the use Gillespie v. Miller, 5 Johns. Ch. 21 ; Marston consists in the consumption. Such a gift v. Carter, 12 N. H. 150 ; Ladd v. Harvev, is in most cases, of necessity, a gift of the 21 N. H. 514; Robards v. Jones, 4 Ired. 5S; absolute property. See Randall i). Russell, Griggs «. Dodge, 2 Day, 28 ; Taber v. Pack- 3 Meriv. 194; Evans ».' Iglehart, 6 Gill & J. wood, ib. 52; Scott ». Price, 2 Serg. & R. 171; Hendersons. Vaulx, 10 Yerg.30; Mer- 59; Kelso v. Dickev, 7 Watts & S. 279; rill t). Emery, 10 Pick. S12; German v. Ger- Dcihl v. King, 6 Serg, & R. 29; Royall v. man, 27 Penn. St. 116. If not specifically Eppes, 2 Munf. 479; Logan v. Ladson", 1 De- given, but generally as goods and chattels, saus. 271; Geiger t'. Brown, 4 M'Cord, 427. with remainder over, the tenant for life is 2 Xhe estate of a legatee for life of per- bound to convert them into money, and save sonal property is chargeable, after his death, the principal for the remainder-man. Patter- for such property. French v. Hatch, 8 Fos- son ». Devlin, 1 M'Mul. 459. See 2 Kent, ter, 331. 864 AND BEQUESTS. *880 Courts of Equity, too, -will enforce the actual delivery of specific chattels, ■which are of such a nature as that the loss cannot Equitable be compensated in damages ; the value arising from con- remedy for siderations personal to the owner, as plate bearing family tection and inscriptions, &c. (»»).* They will also, during the contin- recovery; uance of the prior interest, protect the rights of the ulterior legatee ; but this protection is now confined to compelling the legatee for life * to give an inventory ; which, as observed by Lord Thurlow, *880 is more equal justice than requiring security, which was the old rule ; as there ought to be danger to require that (n).^ Where the legal title is in trustees, [the creditors of the person bene- ficially entitled for life cannot seize the chattels even in case _against of bankruptcy (o) ;] and if they have been taken in execu- bankruptcy, tion, the trustees may maintain trover for them (p). But When trover where the first taker was clothed with the legal title, and "^'^ ^'^" his creditor had taken the chattels (which consisted of plate) in execu- tion ; on a bill by the legatee caUing for their restoration to the house with which they were bequeathed, and for security and an inventory. Lord Thurlow felt much difficulty. On the one hand, if the court could take away the articles, it was entithng the ulterior legatee to take from him the use, contrary to the testator's intention'; and, on the other, if the creditors obtained the plate, they must succeed in applying it differently from the testator's intention ; and there was a strong principle of justice for preserving the goods for the benefit of the person entitled, if the court could so secure them. The point, however, was not decided, the case being disposed of on another ground (q). It is clear, at all events, that the ulterior legatee might, on his inter- ' est falling into possession, have maintained an action of trover for the plate in question ; or, if incapable of being compensated in damages, a suit in equity for its delivery. These cases suggest, that, wherever temporary interests are created in chattels personal, the whole legal property should be vested in trustees. (m) Pusey». Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. W. 389; Fells ». Read, 3 Ves. 70; Lloyd v. Loarnig, 6 Ves. 773; Lowther v. Lowther, 13 Ves. 94; Earl of Macclesfield ». Davis, 3 V. & B. 16. (n) 1 B. C. C. 279. [(o) Earl of Shaftesbury v. Russell, 1 B. & Cr. 666.1 (p) Cadogau v. Kennett, Cowp. 432. (j) Foley v. Bumell, 1 B. C. C. 274. 1 See 2 Story, 2 Eq. Jur. §§ 789, 906; property may be wasted, secreted, or re- Osborn v. Bank of U. S., 9 Wheat. 845. moved. See Mortimer v. Moffatt, 4 Hen. & 2 Homer ». Shelton, 2 Met. 194; 1 Story M. 503; Gardner v. Harden, 2 M'Cord,' Eq. § 604; Foley v. Bumell, 1 Bro. C. C. 32; Smith v. Daniel, ib. 143; Merril v. (Perkins's ed.) 279 and notes; Covenhoven Johnson, 1 Yerg. 71; Henderson v. Vaulx, ». Shuler, 2 Paige, 122, 123; Sutton v. Crad- 10 Yerg. 30; Hudson v. Wad.'iworth, 8 Conn, dock, 1 Ired. Eq. 134; Evans v. Iglehart, .348; Langworthy i>. Ohadwick, ISConn. 42: 6 Gill & J. 171; De Pevster v. Clendining, Homer v. Shelton, 2 Met. 194; 2 Kent, 353, 8 Paige, 295; French v. Hatch, 8 Foster, 354. See Judge of Probate ». Hardy, 3 N. H. 353; 3 Williams, Ex. (6th Am. ed.) 2005, 160, 151, 152; Saunderson j). Stearns, 6 Mass. 1000. But it seems, that security may still 37; Clark v. Clark, 8 Paige, 152. be required in a case of real danger that the VOL. I. 55 865 *881 EXECUTOKY DEVISES AND BEQUESTS. As personal property of this nature is thus presei-ved through any number of successive takers, for the benefit of the person entitled to the ulterior and absolute interest, it is evident that bequests of such property are within the dangers of, and are consequently subject to, the rule directed against perpetuities (r) . ■ [But -there can be no Umitations of things the proper use of which lies in their consumption : under a specific («) gift of such things for „ ., life or other limited interest the first taker gets the abso- articles can- lute property («). This rule, however, is not gener- fted!"^ '''"' *S81 ^lly * applicable to such things where they are the testator's stock in trade (m), or where personal use by the tenant for life was not contranplated («) .] (r) Vide ante, p. 250. [(s) If included in a res proceeds enjoyed by the tenant icr life, 3 Mer. 195. [(s) If included in a residuary bequest they would of course be sold, and the interest of the iceeds enjoyed by the tenant for life, 3 Mer. 195. (t) RandaU ». Eussell, 3 Mer. 194; Andrews. Andrew, 1 Coll. 690; Twining v. Powell, 2 Coll. 262. This was formerly doubted, see Porter v. Tournay, 3 Ves. 314. (») Phillips V. Beal, 32 Beav. 25 (wine); Groves v. Wright, 2 K. & J. 347 (fanning); Cockayne v. Harrison, , L. R. 13 Eq. 432 (farming). But in Breton v. Mockett, 9 Ch. D. 95, the tenant for life, being expressly exempted from liability on account of diminution, was held to be absolutely entitled ; and as to hay, roots and cattle on a stock-feeding farm, see Bryant v. Easterson, 5 Jur. N. S. 166. (x) Re Hall's Will, 1 Jur. N. S. 974 (bequest of testator's wearing apparel to his widow for life).] 866 INDEX. [the numeeals refer to the top paging.] A. ACCELERATION, of remainders when particular estate void or lapses, it is revoked, 574. of remainders of equitable estates after estates taU, 574. of interests ui personalty in the nature of remainders, 576. of reversion upon satisfied term for years, 579. term becoming attendant upon temi void for years, 579. none, where estates limited subject to term for raising moneys to be held on void trusts, 578. none, where remainders are created under powers of appointment, 581. by death of minor where remainder limited after estate during minority, 581. distinction where estate during minority is created for particular purpose, and where uot, 583. ACCIDENT, destruction by, no revocation, 130. ACCUMULATION, old rule as to, 302. rule in different states, 302, note 1. Stat. 39 and 40, Geo. 3, c. 98, 303. when restrained, 303. period to be calculated exclusively of day of death, 304. one period only can be taken, 304. as to, during the minority of an unborn person entitled under the trusts, 804. trust for, exceeding statutory limit, good pro tanto, 306. exceeding the period allowed by rule against perpetuities, void, 306. payment of testator's debts, good, 306. good, to accumulate till a certain sum be reached, 306. but if for the payment of another's debts, good only if within that limit, 308. rule not affected by the act, 308. construction of the exception as to, for children's portions, 309. gift of general estate augmented by, is not a portion, 309. whether same rule applies to legacy so augmented, 310. legacy to accumulate in trust for one for life, and aftei-wards for his children, not a portion, 311. valid or not, according to the purpose whereto in event it is applicable, 311. what interest parent must take under devise, 311. destination of income released from, 312. nature of interest devolving to the heir, 313. 868 INDEX. ACCUMULATION, —continued. trusts whose effect is to produce, held to be within the statute, 313. as to, under residuary bequest in favor of unborn persons at, majority, 314. whether insurances form a mode of, within the act, 314. ACKNOWLEDGMENT, under 29 Car. 2, what amounted to, 81. might be before each witness separately, 82. wukr 1 Vict. c. 26, must be of the signature, not of the wUl, 108. what amounts to, 108, 110, 111. must be before both witnesses simultaneously, 110. must be before witnesses sign, 110. may be made by gestures, 108. of former signature is a sufficient re-execution, 110. ACTION AND ENTRY, rights of, formerly regarded as not devisable, 50. entry devisable, 50, 51. actual service, as to soldiers and sailors, 98 and note 1. ACTION, CHOSE IN, cannot at law be devised away from executor, 51. ADEMPTION, rule of, does not apply to demonstrative legacies, 147, note 1. ADDITIONAL LEGACY, construction of gift of, 186, 187. ADMINISTRATION OF ASSETS, {See Assets ; Chaege ; Exoneration ; Marshalling.) ADMINISTRATORS. {See Executors.) ADMISSION OF TRUST, by trustees, where no trust declared by the will, 93, 94. "AFORESAID," effect of expression "as aforesaid," 509. AFTER -ACQUIRED PROPERTY, formerly did not pass by will, 51. statutes of different states, 326, note 3. mortgagee foreclosing or taking absolute deed, after his will, 51, note 1. AGE, mode of computing, 45. of testator under old and new law, 33, 34. AGENT, effect of direction to devisee to employ particular person, 406. AGREEMENT, held testamentary, 19. ALABAMA STATUTES. {See Statutes OF the Different States.) INDEX. ALIEN, may take land by grant, 68, note 1. he takes a defeasible estate good against all but the state, 68, note 1. may take the proceeds of real estate directed to be sold, 69. may take and hold a legacy of personal estate for his own benefit, 68, note 1. afterwards naturalized, may hold against the state, 69, note 1. husband, becoming naturalized after death of wife, not to hold by curtesy, 69, note 1. "ALL," gift of "all," insufficient to pass land, 357, 358. ALTERATION, in will with pencil or ink, 77, note 1. in pencil, presumed to be deliberative, 77, note 1. in ink, final, 77, note 1. by scrivener interlining a legacy after will executed, 136, note 2. made by person interested, 143, note 1. immaterial by stranger, 143, note 1. made by testator, if ineffectual for want of due attestation, does not destroy will, 143, note 1. what is a sufficient execution, 85, 113. presumed to be after execution, where no evidence, 137, 143. if not noticed in codicil, presumed to be after date of codicil, 143, 144. by obliteration, when conditional, 135. effect of, in one of two duplicates, 138. effect of, when made once of expressions occurring twice, 138. by recent enactments, 107. to be signed and attested, 112. unexecuted where rendered valid by subsequent codicil, 124. {See Obliteration.) ALTERNATIVE CONTINGENCIES, when gift on, good or not in event, one being remote, the other not, 286. need not be separately e!q>ressed to render the one not remote valid, 287. ALTERNATIVELY, gift to several, 372. AMBIGUITY, patent and latent, 429, 430, 431. , (See Paeol Evidence.) AMBIGUOUS WORDS, revocation not implied from, 182. inconsistent with prior devise rejected, 481, 482. in one part of the wUl, explained by precise terms in another part, 532, 852, 853. AMBULATORY NATURE OF WILLS, 17. " AND," changed into "or," 518. (See Changing Words.) ANIMUS REVOCANDI, 130, note 2, 131. - ANIMUS TESTANDL 85. what amounts to, in case of nuncupative wills, 98, note 2, 870 INDEX. ANNUITY, gift to purchase, legatee may take the value iu money, 397. to several for their joint lives, and after their decease over, 542, 643. to several for their lives and the life of the survivor, 543. when free from legacy duty,. 187. ANTICIPATION, clause restrictive of, 296. APPERTAINING, what will pass as things, 783. APPOINTEE, under special power, must be competent to have taken immediately from donor, 290. APPOINTMENT, by will, as to probate, 30. power of, to be executed by "writing," not within 1 Viet. c. 26 . . 31, note (m). under a power, where it raises an election, 449. no acceleration of remainders created under, 581. power of, in favor of issue, good, but nlust be exercised in favor of objects not remote, 291. sect. 33 of 1 Vict. c. 26, as to lapse, does not apply to gifts under particular power, 355. contra, as to gifts under general power, 355. in what cases general devise or bequest operates, 676. {See Appointee, Election, General Devise, Power.) APPOINTMENT (TESTAMENTARy), probate of, 30, 31, note 1. APPORTIONMENT of charity legacy, at what time values of realty and personalty to be ascertained, 236, note (a:). "APPURTENANCES," what will pass by gift of. In a will, 782. ARKANSAS STATUTES. {See Statutes of the Different States.) ASSENT, of husband that wife may will, 41, note 1. must be particular, 41, note 1. may be implied, 41, note 1. if the will in handwriting of the husband, evidences of, 41, note 1. ASSETS, not marshalled in favor of charity, 235, 236. what amounts to direction to marshal by testator himself, 237, 238. ASSIGNMENT, held testamentary, 24. "AT, IN, OR NEAR," how construed, 794 et seq. attainted persons, when competent to devise, 44. ATTESTATION, wider 29 Oar. 2, what a sufficient, 82 et seq. INDEX. 871 ATTESTATION, —continued. form of, not necessary, 86. one memorandum of, may apply to distinct clauses or to distinct sheets, 84. could not be dispensed with by testator, 91. ■when applies to previous unattested testamentary instruments, 114, 115. under 1 Vict. c. 26, ' form of, not necessary, 108. what constitutes, 108, 111. ' when applied to previous unattested testamentary instruments, 114, 115. (See Witness ; Signature ; Acknowledgment ; Presenoe.) ATTESTING means more than barely subscribing, 82, note 3. ATTESTING WITNESSES, legacies and devises to, 70 to 74 and notes. how regarded in law, in reference to proof of wills, 31, note 1. may testify as to their opinions of testator's sanity, 38, note 1. will may be proved against evidence of, 38, note 1, 86. need not know the instrument to be the testator's will, 82. one of the, signing for both, 82, note 1. not necessary in Pennsylvania, 77. not required to be credible, 112. ATTORNEY, power of, held testamentary, 26, 27. AUDITOR appointed by testator not removable, 406 et seq. AUTHENTICATION, distinction where the testator is prevented from performing the concluding act of, 103, note 2. what an adequate preventing cause of, 103, note 3. AUTRE VIE, freeholds for, 62. power of devising, 62. devise by qtiosi tenant in tail of, 64. what a good will of, 99. passed under old law by general devise of " lands," 672. though limitations inapplicable, 672. B. BANISHMENT of husband, effect of, on tesbementary power of wife, 40. BANKER, money in hands of, passes as "ready money," 769, note (c). is a debt, 769, note (e). BANKRUPTCY not a revocation of will, 153. assignees in, of cestui que trust for tenant for life of chattels cannot seize the chattels, 880. but where the life-tenant is clothed with the legal title, gumre, 880. BANK STOCK, whether bequests of, security for money, passes, 769, note (s). 872 INDEX. BAPTIST ministers, tequest for benefit of, 207. " BELONGING THEREUNTO," what passes by bequest of things, 421, 783. BENEVOLENT purposes not charitable, 211, 212, 216. BIRTH OF CHILD, CHILDREN, revocation by, 123 and note 2. BLANKS do not invalidate a will, 18. presumption as to, when filled up, 144. left in a will, cannot be supplied by parol, 441. {See Ukcertaintt.) BLIND TESTATOR, validity of will of, 34. will of, need not be read over to him, 35. what constitutes presence of, 87. BOND, assignment of, held testamentary, 24. BOOKS, medical, not admissible as evidence on question of sanity, 38, note 1. BURNING, revocation of will by, 129. {See Obliteration; Revocation.) C. CALIFORNIA STATUTES. {See Statutes of the Different States.) CANCELLING a will, or clause therein, a revocation under Statute of Frauds, 129. though made in pencil, 134. effect of partial, 134, 136. effect of, where connected with new disposition, 135, 136. not an effectual revocation under 1 Vict. c. 26, unless amounting to destnic- tion, 142. in what case may be of use, though not a revocation, 145, 146. CAPACITY, as to infants, 33. testamentary appointment of guardians by infants, 34. as to idiots, 34. of persons deaf and blind, 34. of lunatics, 35. influence of fraud, 35. when to be proved, 36. part of the will may be good, the rest void, 86. in what soundness of mind consists, 87. INDEX. 873 CAPACITY, — continued. a disposing mind sufficient, 38. " testamentary capacity, " 38, note 1. as to coverture, 38. subsequent confirmation of will originally void, 41. of aliens, 42. of traitors, 42. of felons, 42. of persons attainted, 44. (See Devise.) CAPITAL, of residue, income of money wanted to pay legacies, falls into, until legacies are payable, 606, note {y). CASH, bequest of, what it includes, 769, note (e). {See Money.) CATHOLIC RELIGION, what bequests connected with, are valid, 208. CESTUI QUE TRUST, of freeholds, devise by, 51. of copyholds, devise by, 57, 101. {See Equitable Interest.) CHANGING WORDS, 503 and note 1. must bo clear, not only that a testator has used wrong word, but what is the right one, 504 and note 1. "if he should die " construed "when he should die," 503, note 1. " without issue " read " leaving issue," 504. "fourth" read "fifth," 504 and note 1. " several " used in sense of respective, 505. " or " changed into and, 505, and note 2. in case of devise over in event of death under twenty-one or without issue, 506. gift over in case of death during minority, unmarried or without issue, 507. gift over on death under twenty-one or without leaving a husband, 509. devise over, if devisee in tail should die under twenty-one or unmarried, 510. " and " not changed into " or " in limitation over after an estate tail, 511. gift in either of two events, with gift over on non-happening of one or the other, 513. where there is no prior gift, 513. " or" read and in general context, 514. gift to several objects alternatively, 514. gift to A. or his children, read and, 514. gift to A. or his issue, 515. " or " read " and," to prevent uncertainty, 515. to A. or his heirs, 515. "or " read as introducing a substituted gift, 516. to A. or his issue, 516. to legatees or to their respective children, 516. to the children of A. or to their heirs, 516. whether words refer to contingency in lifetime of testator or afterwards, 516. gift to "assigns" implies an absolute interest, 618. "and " turned into m; 518. unmarried and without issue, 519. 874 INDEX. CHANGING 'WOm)S,— continued. " without being married and having children," 520. whether "unmarried " means not having been married, or not being married at the time, 522. "unmarried " construed Jto mean not having husband or wife at t^e time, 522. " unmarried " ought to be construed according to the context, 523. limitation to next of kin of feme coverte as if she had died " unmarried," 523. " and " not construed " or " where a previous gift would be thereby divested, 524. CHARACTERISTICS of wills, 17. CHARGE, on land, when could be made by unattested codicil, 95. of legacies, extends to those given by unattested codicil, 95. specific and exclusively upon land, could not be revoked by unattested codicil, 96, 97. on mixed fund, might be revoked by unattested codicil as to proportion on per- sonalty, 97. auxiliary, on land, becomes exclusive by a disposition of the entire personalty, 96. of legacies " hereinafter " given, does not include legacies by codicil, 96. on an estate, not affected by new disposition in favor of another devisee, 177. CHARITABLE TRUST, vitiates devise of legal estate, 227. except where other valid trusts, 227. forms exception to general rules as to resulting trusts, 573. secret, discovery of, may be compelled, 207, 233. or proved aliunde, 233. but declared by separate unattested paper has no eflect on devise, 233. contra if devisee promised to perform trust, 234. CHARITY, what is, 209-211. what is not, 211, 212. poor need not be objects of,' 211. gift for private, void, 212. bequest to keep testator's tomb in repair is not, 211, contra if tomb be for family, 211. bequest for specified families is not, 211, note (k). object must be public in its nature, 212. bequest to found museum is not, 212. is not implied from the character of devisee or legatee, 213. bequest for, and for other purposes, void in toto, 215. but not where other purpose is definite, 217. policy of the law with respect to gifts to, 219. what species of property may or may not be given, 220. right to lay chains, 222. money secured on turnpike tolls or poor rates, 222. leaseholds and money on mortgage, 221. judgment debts, 221. money secured by lien on land, 221. as to shares in joint-stock companies, 223. mining companies, 225. railway debentures, 225. scrip, 226. INDEX. 875 CHARITY, — contimied. tenant's fixtures, 227. money to arise from sale of leaseholds, 227. arrears of rent, 226. growing crops, 226. proceeds of sale of land held on trast for sale, 227. money to be laid out in land, 227. charge on land fails pro tanto, 239. trust for, avoids devise of legal estate, 227. devise upon condition to convey to, the condition void, 227. recommendation to purchase land for, avoids gift, 227. where an option to purchase land or not, for gift, good, 227, 228. direction to invest on mortgage, as trustees think fit, avoids gift, 228. where purchase of land the ultimate object, gift bad, 228. where purchase of land not essential, gift good, 229. otherwise bad, 229. legacy for, on condition that another provides land, void, 231. legacy for, in expectation that another will provide land, whether good, 231, 232. legacy for, to be applied in building on land devoted to charity, good, 232. legacy for, to be applied in paying off incumbrance on lands already devoted to charity, bad, 232. legacy depending for mode of application on void gifts to, bad, 232. when legacy paid, court will not execute trust, 233. contra, after lapse of time, 233. secret trust for discovery of, may be compelled, 233. may be proved aliunde, 233. effect where trust declared by unattested paper, 233. assets not marshalled for, 234, 236. but testator may marshal his own assets, 237. legacy charged on land as auxiliary fund fails to extent of charge, 239. devise to college for, bad, 239, 240. what devises to colleges good, 240. devises to colleges good in equity only, 240. gift of money to be laid out in land in Scotland for, good, 240. also in Ireland, 240. also in colonies, 242. also in London for resident freeman, 242. exceptions by statute in favor of particular objects, 242. power given by, to any charity corporation to take and hdd, does not include power to take by devise, 242. charitable corporation cannot in any case take legal estate, 242, gifts for, not void for uncertainty, 209, 210, 244, 376. but applied ey-pris, 244. except where particular objects in view, 250. ' when administered by crown and when in chancery, 250. legacy to charitable corporation will be paid without scheme, 250. contra, where not to be applied as part of the general funds of corporation, 250, legacy for foreign, will not be applied by court, 250. cy-pris doctrine not applied to gifts void under 9 Geo. 2, 250. gift over, in case gift for held void, is good, 250. CHATTEL INTEREST in lands, devise of, 61. 876 ' INDEX. CHATTELS, will pass personal estate, 751. when trover lies for recovery of, 880. limitation over in remainder after life-estate, good, 878, note 2. otherwise of com, hay, etc., which perish in the use, 879, note 1. unless given generally as " goods and chattels," where should be converted into money, 879, note 1. interest of ulterior legatee or remainder-man in, will be secured by court of equity, 880, note 1. equitable remedy for the protection and recovery of, 879. CHEQUES held to be testamentary, 24. CHILD OR CHILDKEN, as to, omitted in a will, 129, note 2. unprovided for by will, take as if testator had died intestate, 129, note 2. implication of gifts to, 563. CHOSES IN ACTION, cannot be devised away from executor under 1 Vict. c. 44 . . 51. as bonds or other securities, will not pass under gift of property in a certain place, 756, note (<). CLASS, gift of contingent remainders to, how operates, 265. difference of effect between gifts of legal and equitable interests to, 265. gift to, of equitable interest, which may comprise objects too remote, void as to all, 265, 266. what constitutes a gift to, in law, 269. as a gift to, combined with designated persons, 266. cy-prh doctrine applied to gift to some only of, 301. under gift to, there is no lapse by death of one object, 341, 342. whether gift to executors is a gift to a, 342 and note (y). of persons to be ascertained in testator's lifetime, under gift to, no lapse by death of one, 343. whether gift to next of kin or relations is a gift to, 344. gift to children as a, whether operated upon by 1 Vict. c. 26, s. 32 . . 354. gift to, with exception of tmascertained person, good to the whole class, and exceptions ineffectual, 371. may fluctuate by diminution only, 344. CODICIL, unattested, invalidity of disposition by will by reference to, 92. exception in ease of charge by will of legacies to be bequeathed by, 95, 96. whether exceptions include legacies primarily charged on lands, 96. could not revoke specific charge on land, 96. might revoke pro tanto legacy charged on mixed fund, 97. might withdraw personalty and leave legacy charged on land, 97. since 1 Vict, does not come under term "codicil," where there are other duly attested codicils, 118. attested, where refers to previous unattested will so as to set it up, 114, 115. effect of, where it refers to will, but not to unattested codicil, 117. distinction since 1 Vict. 118. INDEX. 877 CODICIL, — continued. written on same paper as unattested will, effect of, 115, 116. generally, does not render valid alterations in a will if it does not notice them, 121. effect upon, of destruction of will, 139. expressions in, construed to mean same as in will, 178. or to explain expressions in will, 532. when legacy by, is upon same terms as legacy by will, 186. not revoked, because other codicils only are referred to in subsequent cod- icil, 190. ratified by ratification of will, 191. revival by, of revoked will, 191. cannot revive will destroyed, 191. reference in, to destroyed wiU. revokes posterior will, 191. COLLEGES, excepted from 9 Geo. 2, e. 36, 221. whether those founded since are also, 240. devise to, in trust for other charitable objects, bad, 240. COLONIES, not within 9 Geo. 2, c. 36, 242. COLORADO STATUTES. {See Statutes op the Diffeebnt States.) COMPENSATION, or forfeiture, which applies in case of election, 446. CONDITIONAL REVOCATION, under Statute of Frauds, 135. 1 Vict. c. 26, 142. doctrine of, does not apply to revocation of later will by ineffectual attempts to revive a destroyed will, 191. CONFIDING effect of, in creating trust, 388. CONFIRMATION of wills made during disability, necessary, 41, 42. CONNECTICUT STATUTES. {See Statutes of the Diffebent States.) CONSEQUENCES of adopting any construction, not to be attended to, where terms are clear, 82. or where the result would be intestacy, how far considered with reference to perpetuity, 292. CONSTRUCTION OF WILL, according to foreign law, how ascertained, 516. original will may be looked at to determine, 29. CONSTRUCTIVE CONVERSION. {See CoNVEBSioN.) CONSUMABLE ARTICLES cannot be limited in succession to several persons, 881. 878 INDEX. CONTINGENCY, words seemingly contingent to be referred to deterrnination of prior interest, 724 etseq., 841, 842. devise "from and Sfter," "when,"' so construed, 806. prior interest need not be for benefit of ulterior devisee or legatee, 806, 849. devise clearly ini;^orting, so held, notwithstanding expressions of seeming contin- gency, 805. whether confined to particular estate or extended to a series of limitations, 831. CONTINGENT INTEREST not forfeited when felony not capital, 13, note (c). nor when conditional free pardon granted, 13, note (c). undisposed of in event passed by residuary devise even before 1 Viet. c. 26, 647. when transmissible to representatives, 861. CONTINGENT REMAINDEES, foi-merly destructible by owner of preceding freehold, 874. but by 8 and 9 Vict. c. 106, s. 8, they are made independent of the forfeiture, surrender, or merger of the preceding freehold, 874, 255, 263. in copyholds fails .as in freeholds, except by destruction of particular estate, 262, 263. CONTINGENT WILL, may be made, 17. if event does noi happen, will not be proved, 17. unless will recognized by some act, 18. probate of, granted where event in suspense at testator's death, 18. CONTRACT, parol, by devisee to hold upon trust enforced, 31, note (<). for sale or purchase, effect of, on prior will, 51 et seq. where vendor alone bound, 52, note (a), liability of testator under, governs rights of his devisees, 55. testator not presumed to have made a valid, of lands conveyed to him after the date of will, 51, note (2). where there is an option to complete or not, 56, 57. where will revoked by, 162. for sale, how far one who has entered into, is trusted for purchaser, 704. effect of, upon general devise in will of vendor, 704. where purchase-money paid and possession given, 704, 705. CONTRADICTION between clauses in will. {See Repugnancy, and see 472 et seq.) CONVERSION, under decree for sale, effect of, 16S. power in an Act of Parliament, 163. general doctrine of, 584. whether or not any, is determined at testator's death, 632. money directed to be laid out in land considered as land for all purposes, 585, 586. becjuest of money liable to be laid out in land, passed land afterwards pui'chased, 586. land directed to, sold, considered as money for all pui-poses, 586. same rule applies where trust for conversion and reconversion, 586. what words sufficient to create, 587. cases where money has been held to be converted; 587, 588. cases where held not to be converted, 589. INDEX. 879 CONVERSION, —co««7iMerf. effect of option as to investments, 587. effect of form of limitations, 588. doctrine of, as regards escheat, 589, 625. what amounts to implied trust for, 589, 590. effect of trust to divide land into shares, 590. not prevented by power to invest in meantime on security, 592. whether any, where purchase or sale is to be made with consent, 592. where purchase or sale is to be made on request only, 592. in one alternative and not in another, 694. may take place quoad a particular interest only, 693 note (t). effect of direction to pui-chase land in pai1;ioular locality, where land cannot be obtained, 595 note {x). mere power. to sell does not work, 595, 596. nature of property may depend on option of trustee, 596. ELECTION to take property unconverted, 598. persons absolutely entitled may elect, 598. infant, lunatic, feme coverte, incompetent to elect, 599. whether can be made by parol, 699. what amounts to election, 699. levying a fine, 599. changing securities, 599. demising lands, 599. bequeathing as personalty moneys to be laid out in land, 600. taking possession of deeds, 600. all persons interested must concur in, 601. owner of undivided share cannot elect, 601, 603. effect where person bound to lay out money in land becomes entitled to such land, 600, note (A). . devise of land subject to trust for, carries the proceeds, 603, and see 585. gift of money subject to trust for, carries the land, 603. husband and wife may assign moneys to arise under trust for, 604. destination of property under trust for, may depend on option of trustee, 604. vesting may be postponed until, 604, 605, and see 821. but in the meantime the enjoyment of the unconverted property is the same as if converted, 605, 606. AS TO PKOPEKTY COMPEISED IN EESIDTTAKT GIFTS, 1. where there is a trust for, at what period to be deemed as made, 606. destination of income until, 606. during first year, 606. effect of direction to accumulate until, 608. when made within a year, destination of income till, 608. where can be but is not made, destination of income till, 608. where cannot be made, mode of dealing with income tUl, 611. how trustees not making proper investments are to be charged, 608, note (o). 2. where there is no trust for, general rule, 612, note (6). as to property wasting or precarious, 613. what expressions prevent, 613, 614. direction to repair, 614. to let, 614. 880 INDBX. CONVERSION, —conimMeti. to renew leases, 614. to convert at specific period, 614, 615. power to sell, 615. direction not to sell except with consent, 615. discj^etion given to sell or not, 616. power to vary securities, 616. intention that specific items shall not be converted, 616, gift over of property itself, 616. what expressions do not prevent, 616, 617. direction to convert specific parts, 617. to convert for specified purpose, 617. whether gift of "rents" prevents, 617. whether enumeration of specific items prevents, 618. effect of conversion with consent of tenant for life, 619. AS TO UNDISPOSBD-OF INTEEEST UNDER TKUST FOE, in real estate belongs to heir, 619, 620. heir never excluded by trust for, except by actual gift to another, 620. in personal estate belongs to residuary legatee or next of kin, 620. lapsed share of proceeds of real -estate devolves to heir, 622. also share illegally disposed of, 622. proceeds of mixed fund not disposed of devolve proportionably to heir and personal representatives, 623. to all intents cannot be, unless expressly directed to prevail, as between heir and next of kin, 623. direction that heir shall not take does not exclude him, 623. trust for, did not let in simple contract creditors, 624. proceeds of, do not fall to Crown in default of heir, 625. (See Escheat.) will not pass under residuary bequest of personalty in same will, 625. how affected by direction to be considered as personalty, 626. when blended with personalty, what will carry, 626. partial interest in, goes to heir as personalty, 631. otherwise where whole becomes undisposed of, 631, 632. even though sale lias been made by mistake, 632. sum excepted out of, belongs to heir, 632, 638, 639. but sum out of, given on contingency belongs, if eventually undisposed of, to devisee, 632. given to incapable objects, to whom belongs, 632. when lapsed, to whom belongs, 634. when proceeds of realty and personalty blended, to whom belongs, 637, 638. when void, held to fall into residue, 639. rule since 1 Vict. c. 26, 644. whether partial interest in land directed to be bought devolves on next of kin as realty or personalty, 631, 632. (,See Assets ; Election; Escheat; Heie; Lapse.) CONVEYANCE, right to set aside, is a devisable interest, 51. COPARCENERS, may devise, 48. devise to, broke the descent, 75. INDEX. 881 COPYHOLDS, power of feme coverte to devise, 39, note (ib). could not formerly be devised, except by custom, 57. not within statute of Hen. 8, as to wills, 57. must have been surrenderedto use of will, 57. joint-tenant of, before 1 Vict. c. 26, could sever joint tenancy by will, 56. and bar freebench, 58. semis since 1 Vict. c. 26 . . 58, note («)• surrender of, to use of will, supplied by statj 55 Geo. S, c. 1 92 . .58. formal, only supplied, 58. by feme coverte not supplied, 58. custom not to, whether good, 58. equitable interest in, devisable without surrender, 58. acquired after date of will, did not pass by, 59. except expressly surrendered to use of will, 59. passed under devise of manor, though acquired by the lord after date of his will, 59. devisee or surrenderee of, could not formerly de-vise before admittance, 59. contra, under 1 Vict. c. 26 . . 60. heir before admittance always could devise, 59. devise of, to witness, not void before 1 Vict. u. 26 . .71. contra since, 72. Statute of Frauds regulating execution of wills did not apply to, IDO, 101. nor to equitable interests in, 101. contingent remainder in, when fails, 237. devise of, not extended to freeholds by parol Evidence, 262, 263. effect of general devise by mortgagee or trustee of, 703, 704. devise of, includes customary freeholds, 798. effect upon, of general devise, 664 et seq. {Sec General Devise.) (&e:SUEBENDEK.) CORPORATIONS, devises to, void, 65. bequest to, by incorrect description, when void, 378, 379. charitable, when empowered by Parliament merely to "hold" lands cannot take by devise, 242. {See Charity.) CORRECTION of words clearly erroneous may bemade where it is clear what was intended, 500. COSTS of suit to complete conveyance, where caused by vendor's will made after con- tract, payable by vendor's estate, 699, note (5). contra if will made before contract, 699, note (6). "COTTAGE," meaning of the term, 781. COVENANT, to convey, when will is revoked by, 159. COVERTURE, disability of, with reference to testamentary matters; 38 et seq. disability of common-law doctrine of, 41, note 1. (See Feme Covekte ; Wife.) VOL. I. 66 882 INDEX. CREDIBILITY of witnesses, under 29 Car. 2, 70-73, 90. period at which, must exist, 67, 71, note (5). under 1 Vict. o. 26 . . 72, 73, 112. as affected by their personal qualifications, 90. CREDITORS, may be witnesses to the will of their debtor, 71, 73, note 1. bequests for payment of, do not lapse, 339, note (c). doctrine of election not extended to, 451. bequest to A. for payment of his debts creates no trust for, iOL surrender of copyholds supplied in favor of, 664, 666. (/See Assets ; Chakge ; Debts.) CROWJT, when entitled in right of an alien, 68, 69. in what cases administration of charitable funds devolves upon, 245, 250. right of, to personal estate, as against executors where no next of kin, 571, note (s). {See CsXRTTY ; Escheat; FonrEiTUKE.) CURTESY, tenant by, not bound to elect, 444. money to be laid out in land, is liable to, 585. husband entitled to, out of fee determinable by executory devise, 878, 879. except where his issue never could have inherited, 879. CUSTOM, not to surrender to use of will, whether good, 58. not presumed, 58. CtrSTOMARY FREEHOLDS, alienable by surrender and admittance, are devisable, 58. Statute of Frauds regulating execution of wills did not apply to, 100, 101. may pass under devise of copyholds, 798. CY-PR4;S, doctrine of, applied to charitable gifts, 244. except where particular object in view, 245. when disposal of gift under, devolves ou the crown or the court, 245. gifts void under 9 Geo. 2, e. 36, not applied, 250. applied to limitations contravening rule against perpetuities, 298 et seq. may be applied so as to carry estate to same persons in different manner, 300. but not so as to carry estate to persons not mentioned, 300. may be applied so as to give estate tail to some only of a class, 301. not confined to first set of limitations requiring modification, 301, 802. does not apply to personalty, 302. nor a mixed fund, 302. nor where intention is clearly only to create successive life-estates, 802. nor to limitations in fee to children of unborn persons, 302. D. DAKOTA STATUTES. {See Statutes or the Different States.) DATE of will, where not same as day of execution, 318, note (a). INDEX. 883 DAY, fractions of, not recognized, 45. (See AGS ; AcctrMULAnoN. ) DKAF person, validity of will of, 84. DEBENTURES, railway, when within the Act 9 Geo. 2 (Charities), 205. meaning of, or what included in, 731, note. DEBT, bequest of, to debtor, whether lapses by his death, 314, note. DEBTS, bequest of includes money at banker's, 730, note, charge oi, on land by unattested codicil, 88. devise after payment of, gives a vested interest, subject to charge, 778. legacy payable after payment of, whether vested or contingent, 797. in case of a general devise for payment of, if freeholds insufficient, surrender of copyholds supplied under old law, 632. DECLARATI9NS of testator's intention, when admissible, 429, 430. (See Parol Evidence.) DECREE for sale, how far revokes will, 163. DEED, held testamentary, 18-20. (See Election to taxb Propbktt unconverted.) DELAWARE STATUTES. (See Statutes of the Different States.) DEMONSTRATIVE LEGACY, 237. DENIZATION, effect of, 69, 70. DESCRIPTION, parol evidence admitted to explain what is comprised in, 427. when parts of a, may be rejected, 785 et seq. by words "house," "farm," "estate," &c., favors rejection of inconsistent terms of tenure, 785 et seq. of occupancy, 787. of locality, 787. where one part makes another part restrictive by contradistinction, 789, 791. where property not described as a whole, no part of description to be rejected, 792. applied to subject not strictly answering it, where none more appropriate, 795. devise of lands in one county not applied to lands in another county, 795. effect where it applies to property belonging to another person, 798. DESTRUCTION OF WILL, Before 1 Vict. c. 26. revocation by, 129. mere attempt at, ineffectual, 131. partial, effect of, 132, 134. 884 INDEX. DESTRUCTION OF WILL, — cmtinued. of one of two duplicate wills, effect of, 137. of will without codicil, effect of, on codicil, 139i Since 1 Fia. c. 26. what is, 139 et seg. must be in presence and by direction of testator, 147. where unauthorized, contents may be proved aliunde, 147. once completed, whether will can be revived, 191, 192. reference by codicil to destroyed will revokes posterior will, 190. {See Kevocation.) of contingent remainders. (iSee Contingent Kbmainbee.) DEVISABLE, what is, 46 et seq., 46, note 1. what will descend to heir, 46. what will descend to heir of ancestor, 46, note (a). joint estate, 46. estate in common, 48. estate in coparcenery, 48. executory interest, 48. transmissible interests, 48. rights of action, SO. rights of entry, 50, 51. freeholds acquired after date of will, 51. equitable interests, 51. interest acquired by preclosure after date of will, 51. in case of copyholds, 51, note («). interest under contract for purchase, 52. when testator bound and vendor not, 56. where there is an option to purchase, 66, 57. copyholds, 57. acquired after date of will, 59. ' equitable interest in, 59. customary freeholds, 59. right of unadmitted devisee of copyholds before 1 Vict. c. 26 . . 59. since 1 Vict. c. 26 . . 60. right of unadmitted heir of copyholds, 59, 60. chattel interests, 61, 62. freeholds pur autre vie, 62. when limited to heir of body, 64. "DEVISE," effect of use of word, in determining whether real estate is included, 738, note (ci]. DEVISE, who may, 32 et seq. persons having sole estate, 32, 46. femes emeries, 32, 38, 40. distinction in respect to capacity in making will of real and personal property, 38, note 1. femes covertes, where husband transported, 40. an exile, 40. a felon convict, 40, 41. infants, 32. lunatics, 32, 35. INDEX. 885 DEVISE, — continued. idiots, 82. deaf persons, 34. blind persons, 34. aliens, 42. traitors, 42, 43. felons, 42, 43. DEVISEES, who may be, corporations, 65. how limited in some states, 65, note 1. when constituted trustees, 66. aliens, 67, 68, and note 1. witness to the will, 70, 71. witness to codicil to will, 70, 71. husband or wife of witness, 72. heir before 3 & 4 "Will. 4, c. 106 . . 75. since 3 & 4 Will 4, o. 106 . . 76. infants, 76. , en ventre, 76. ferms covertes, 76. lunatics, 76. DISABILITY, common-law doctrine respecting coverture, 41,, notei 1. will made under, not good, unless confirmed after disability removed, 41, 42. DISCRETION, as to investments, effect of trustee's refusal to exercise, 612, note (J), confided to trustee, not e^ercisible by his devisee, ,709. , DISSEISIN, will made during, invalid, 50. when works a revocation of will, 150. DISSENTEES, PROTESTANT, bequest for, 207. DOMICILE, does not affect devolution of lands, 2. how affects legacy duty, 3, note {I). probate duty, 3, note (l). succession duty, 8; note (l). regulates devolution of movables, 2. validity and construction of will of movables, 2, 3, 4. even where probate granted in error, 5. change of, how affects validity of will, 4, 5, note 1. in itinere from one domicile to another, 9, note 1. does not regulate validity of will under power, 11, 12. nor any will where special treaty with this country, 12. expressed intention to retain of no effect against facts to contrary, 9v how acquired, 12. how ascertained, 12. remains till another acquired, 12. original, when it revertsj 12. que,stion of, one of fact, 12, note 1. 886 INDEX. DOMICILE, —continued. residence divided, 12. not changed by residence as ambassador, 14. original, restored by appointment as, 14. residence of wife, may be material as to, 14. is changed by residence as consul, 14, 15. or for commercial purposes, 14, 15. residence in a niilitary or naval capacity, how affects, 14. residence for health, how affects, 15. of infant, whether follows that of mother, 15. of minor, whether can gain new, by consent of father, 15, note 1. DOWER, widow entitled to, out of fee determinable by execntoiy devise, 878. except where her issue never coald have inherited, 879. same rule as to estate taU where issue has failed, 878, note (c). excluded by declaration in settlement, 467, note {p). DOWRESS, when bound to elect. (iS'ee Election.) DUMB PERSON, validity of will of, 34. may acknowledge will by gestures, 108. DUPLICATE WILLS, when destruction of one, revokes the other, 137. effect of alteration in one, 138. both together form but one will, 138. DUTY. {See Peobate Duty ; Legacy Duty.) E. ECCLESIASTICAL COURTS, their authority over testamentary instruments, 88. have concurrent jurisdiction as to legacies, 834. consequent modification in rules of construing bequests (see Vesting), 834. EDUCATION of children, gift to mother for, what interest the children have, 400, 401. " EFFECTS," will not carry real estate prqprio vigore, 725. but may do so by force of context, 745, 746. carries the general personal estate, 761. ELECTION, TO TAKE UNDER OR AGAINST WILL, doctrine of, stated, 443. applies where will shows intention to, but does not expressly dispose, 443, 444. does not apply to persons entitled derivatively, as tenant by curtesy, &c., 444. INDEX. 887 ELECTION, — continued. nor prevent acceptance of gift, and rejection of another burdensome gift, 444. does apply to reversionary, remote, and contingent interests, 445. in order to raise, testator need not be acquainted with want, of title, 445, 446. whether forfeiture or compensation governs doctrine of, 446. in order to raise, testator must be personally competent, 447. will of minor and/cm« coverte, in what cases they raise, 447. heir not put to election by unattested will, 447, 448. except where legacy bequeathed on express condition, 448. this question cannot arise since 1 Vict. c. 26 . . 448. heir put to election where will purports to devise after-acquired property, 448. heir not bound to elect where will revoked by alteration of estate, 448. Scotch heir not put to, by general devise, 448. contra where express devise of lands in Scotland, 448. same rule applies by law of Scotland to English heir, 448, 449. applies to appointments under powers, 449. whether applies in case of condition in favor of a stranger annexed to ap- pointment under a special power, 449. or in aid of a perpetuity, 450. there must be an actual gift to raise, not merely recital of supposed interest, 450. the gift which raises must be of the testator's own property, not of property subject to special power, 450, 451. does not apply to creditors, 451. parol evidence not admissible to raise, 451, 452. expressions must be clear in order to raise, 454. general devise does not raise, 454. when devise of lands in particular locality raises, 455. distinction as to general devises and devises of lands in particular locality, 456. devise of lands by one having only a share raises, 456, 457. whether raised by devise of testator having only reversion as against person having particular estate, 457, 458. not raised by devise of incumbered property, as against an incumbrance, 458. dowress not put to, by general devise, 458. cases where dowress put to her election, 458 et seq. by direction not to let, 460. to carry on farming business, 460. by power to lease, 461. not by power of sale, 461. not confined to particular gifts under will inconsistent with dower, but extends to all, 462. whether raised by devise to dowress and another in equal shares, 462. by trust for sale, 465, 466. dowress not put to election by devise to her of rent-charge or annuity, 466, 467. dower when barred by, enures for benefit of estate, not of devisee solely, 467. widow, when excluded by, from her share of personalty, 467, 468, 469. 888 INDEX. ELECTION, —continued. from what acts presumed, 471. made under mistake may be made again, 471. knowledge of rights essential to valid election, 471. TO TAKE IN EXISTING STATE PHOPEETY SUBJECT TO TKUST FOR OONVEESION. by whom may be made, 598, 599. whether may be made by parol, 699. what amounts to, 599. levying a fine, 599. changing secuiities, 599. demising lands, 599. bequeathing lands as personalty, 599. taking possession of deeds, 600. all persons interested must concur in, 603. a part owner, without consent of others, cannot make, 601, 603. ENTEEATY. (See Pkecatoky Tjbust.) ENTEY (EIGHT OF), not formerly devisable, 50. in different states, 50, note 1. ENUMERATION, DEFECTIVE, not generally restrictive of general gift, 759. EQUITABLE INTEREST, . passes to the heir when, 53, note 1. operation of devise upon, under old law, 51, and note 1, 58. in copyholds, will of, how to be executed, 101. in copyholds, whether included in general devise of lands under old law, 665. EQUITY OF REDEMPTION, acquired by foreclosure, subsequent to will, did not pass under old law, 707. if barred, when a material question in deciding whethet mortgaged lands pass by a devise, 707, 708. ERASURE. (See Obliteration.) ESCHEAT, • consequences of, when remitted, 43. of money to arise under trust for sale, 68, 69, 589, 625. inapplicable to equitable interests in realtyi 625. {See Forfeiture.) "ESTATE," 530, 531, 788. will carry real property, unless restrained by the context, 716 et seq. ESTATE FOR LIFE, ' may be given to an unborn person, 280. gift of, on remote event, whether good, 282. implied to A. from gift to heir after death of A. , 532 et seq. implied to A. from gift to residuary devisee after death of A., 541. (See Implication.) ESTATE TAIL, lapse of, before stat. 1 Vict. c. 26 . . 338. since, 361. INDEX. 889 ESTATE TAIL,— ccm(iniied. implied to A. from gift to heir on death of A. without issue, 554, 555. to A. for life, and if he die without issue over, 555. implied to heir from gift over on death of heir without issue, 557. but not from gift over on death without issue of stranger taking no previous estate, 557. whether, can be implied in devisee who takes no express estate, 557. may be implied, notwithstanding express contingent devise in tail, 560, Effect of 1 Vict. c. 26 is to prevent raising of estates tail by, 560, 561. where devise is in fee, with gift over in default of issue, 561. where devise is for life, with like gift over, 561. in such case no estate by purchase can be implied in issue, 561, 563. whether estate tail may not still be raised in heir, by gift over on his death without issue, 562. advantages and disadvantages of new statute, 662. "ET CETERA," construction of, 755, note {r). EXCEPTION, of no force to show what is excluded from gift, 755, 765, and note (<). contra as to what is included, 731, note (m), 741. its effect upon the comprehensiveness of a class from which some members are excepted, 855. EXCHANGE, bill of, held testamentary, 24, will, when revoked by, 151. EXECUTION OF "WILL, Before 1 Vict. c. 26. three witnesses required in case of real estate, 77. signing by testator, what constituted, 78, 79. publication, whether requisite, 80, 81. acknowledgment of signature before witnesses, whether sufficient, 81. before each separately, 81. what sufficient acknowledgment, 82. "subscription" by witnesses, what constituted, 82, 83, 84, 85. due, when presumed, 86. "presence " of testator, what is, 87, 88, 89. whether alterations presumed to be made before or after, 99, note (g). of freeholds of inheritance, 77 et seq. of personalty, 97 et seq. of freeholds, pur autre vie, 99, of copyholds, 100, 104. Simee 1 Vict. of property of all kinds, 105 et seq. defective, when supplied by reference, 114. when applies to previous unexecuted testamentary instruments, 114. (See Ac- knowledgment ; Attestation; Presence; Signature; Witness;) of testamentary appointments since 1 Vict. c. 26, same as of wills, 688, and sei 32, note (a). 890 INDEX. EXECUTOE, when can hold estates -pwe autre vie against the crown, 61. may be a witness to the will, 73, 74. not entitled to undisposed of personalty, 74. right of, to personal estate as against crown where no next of kin, 571, note (a). EXECUTORS, what they can perform, 31, note 1. when to commence acting, 31, note 1. when excluded from taking ben^eficially before 1 WiU. 4 . . 571, note (?). and since, where no next of kin, 571, note (z). whether gift to, is a gift to a class, 342. competency of, as witnesses, 73, note 2. EXECUTORSHIP, devise associated with nomination to, how far restrictive of subject devised, 729. EXECUTORY DEVISE, after contingent gift to minor at twenty-one, takes effect immediately on death of minor under twenty-one, 583. what is, 864. limitation capable of operating as a remainder, never construed as, 864. future interest not preceded by freehold created by same instrument, is, 864. where preceding estate must determine before ulterior limitation takes effect, the latter is, 865. limitation which determines preceding estate before its natural expiration is, 865, 866. estate limited in derogation of preceding interest defeats it only pro tanto, 866, 867. if substituted gift fails, prior interest remains absolute, 866, 867, 870. distinction where substituted gift fails by matter dehors the will, 868, 869. same rules as to executory bequests of personalty, 869, 870. where absolute interest first given, and trusts thereof afterwards declared, if the trusts fail, prior interests are absolute, 870. so where prior absolute gift is defeasible by a power which does not arise, 870. or which is extinguished, 872. rule for determining whether the prior gift be in first place absolute, 873. not affected by acts of the owner of prior estate, 874. distinguished therein from remainders {see Contingent Remainders), 874. limitation in terms a contingent remainder may, by events in testator's lifetime, become, 874. may possibly, by events subsequent to testator's death, become a contingent re- mainder, 877. even where at testator's death it could have taken effect only as an executory devise, 877. but contingent remainder cannot become an executory devise by such matter sub'sequent, 877. effect where one of several concurrent contingent remainders is subject to execu- tory devise, 877. executory limitation which is to supersede a contingent remainder is not involved in its destruction, senib., 877, 878. where the defeasible estate in fee and the executory devise coalesce in the same person, there is no merger, 878. estate in fee defeasible by executory devise is subject to dower and curtesy, 878. unless the estate be such as the issue of wife could in no case have inherited, 879. INDEX. 891 EXECUTOEY VE.yiSE,—c(mtinued. all future gifts of personal estate are executory bequests, 263, 879. executory legatee may maintain suit at law or in equity for recovery of subject of bequest, 880. equity will decree actual deliyery of specific chattels to executory legatee, 880. and compel prior legatee to give an inventory of the matters bequeathed, 880. but not to give security, unless danger of loss, 880. assignees in bankruptcy of cestui que trust for life cannot seize the chattels where legal estate is in trustees, 880. but where the life tenant is clothed with the legal title, qucere, 880. when, however, life-interest ceases, ulterior legatee may recover, 880. executory limitations of personalty are subject to the rules against perpetuities, 881. there can be no limitations of consumable articles, 881. but this rule does not apply to farming implements, 881, note {u). nor to wearing apparel, 881, note (x). EXECUTOEY INTEEEST, when devisable, 48, 49. not accelerated by failure, lapse, or revocation of previous interest, 577, 683. EXECUTOEY LIMITATIONS, construction of, whether precedent or subsequeht to estate tail, 260. may be void, where a remainder would be good, 265. EXILE, wife of, may dispose by wUl, 40. EXPLANATOEY WOEDS may vary the effect of a previous ambiguous gift, 532, 853. EXTINGUISHMENT, of charge by union of character of mortgagor and mortgagee, presumed where indifferent to the mortgagee, 693. EXTEINSIC DOCUMENTS. {See Incorporation.) EXTEINSIC EVIDENCE. (See Parol Evidence.) FALSA DEMONSTEATIO NON NOCET, meaning and application of the maxim (see DESCRIPTION), 785 ei seq, FAMILIES, bequest for specific poor, not charitable, 212. "FARM," held to pass both freeholds and leasehold, 671. what will pass under a devise of a, 785. FELO DE SE cannot make a will of personalty, 43. but may of realty, 43. 892 INDEX. FELON cannot make a will, 43. cimtra so far as lie is executor, 43, note (c). whether wife of, can, 40, 41. may be witness to a will since 1 Vict. c. 26 . . 112. FEME COVERTE, probate of will of, 31. incapacity to make a will, 38. capacity in the different states, 38, note 1. can only dispose of legal estate in lands by appointment of the use, 39. may dispose of the equity under contract before man-iage, 39. of personal estate under contract before marriage, 39. by assent of husband, 39. may make a wiU of her separate estate, 39. and of accumulations of separate estate, 40. whether when invested in land, 40. cannot bequeath savings of pin-modey, 40. comira as to maintenance money, 40. may make a will when husband banished, 40. when husband a felon convict transported for life, 40. for years, 41. surrender of copyholds to use of will of, not supplied by 55 Geo. c. 192 . . 58. may take under will of her husband, 76. capability of, to elect, 447, note (5). when can elect not to have property converted, 599. will of, may raise election, 447. (See Husband and Wife ; WiFis. ) FEOFFMENT without livery, revocation of will, 165. FIXED PROPERTY, by what law governed, 1. FIXTURES, tenant's, not within 9 Geo. 2, c. 36 (Charities), 227. FLORIDA STATUTES. {Su Statutes of the Different States.) FORECLOSURE, subsequent to will, legal estate in mortgage lands passed by old law notwith- standing, 707, 708. notwithstanding, estate held under the. circumstances J;o pass as mortgaged lands, 708. FOREIGN CHARITY, Court of Chancery will not frame a scheme for application of gift to, 250. FOREIGN LAW, how ascertained, 5, 6. construction of, 6. concerning proof of, 6, note 1. " FOREVER," not inconsistent with an estate tail, 435. INDEX. 893 FORFEITUEE, or compensation, whether applied in cases of election, 446.. {See Escheat.) FOEM OF WILL, ambulatory, 17. may be contingent, 17. made jointly by two persons, 18. in pencil, 18. with blanks, 18. in form of deed, 18, 20, 21. agreement, 19. assignment of bond, 24. receipt, 24. letter, 24. marriage articles, 24. promissory note, 24. cheque, 24. bill of exchange, 24. power of attorney, 26. original will may be looked at to ascertain, 29, 30. "FORTUNE," gift of, what passes by, 743. "FOR WANT OF," prior objects, effect of devise, 801. FRANCE, law of, as to acquiring domicile, 4. testamentary power in, 5, liote {y). FRAUD, in obtaining a wiU of personalty, only cognizable in ecclesiastical courts, 28. nature of, necessary to invalidate a will, 35, 36, note (/). conveyance void at law for, no revocation, 167. contra if void only in equity, 167. parol evidence admissible to support or repel a charge of, 415. FEEEBENCH, whether barred by surrender and devise previous to 1 Vict. c. 26 . . 58. FREEHOLDS, pur autre vie. {See Autre Vie.) "FROM AND AFTER," whether they import contingency, or refer to possession merely, 806. "FUNDS," meaning of, 770, note (/). "FURNITURE," what passes by gift of, 758, note (6). "FURTHER," eifect of the word, in connecting several devises, 491. FUTURE ESTATE, devise of, in particular lands, does not include intermediate rents, 652. general or residuary devise of, whether it earned intermediate rents, 652, 633. 894 INDEX. G. GEITERAL BEQUEST, effect of, 645. did not operate as an appointment under a power before 1 Vict. c. 26 . . 678, 679. distinction in the case of a married woman, 679. what denotes intention to exercise power, 679, 680. (See Residuary Bequest.) GENERAL DEVISE, of real estate, 645 et seq. not sufficient to raise a case of election, 454. BBFOKE STATUTE, 1 VICT. 0. 26. in its nature specific, 645. did not include lapsed specific devise, 646. nor one void ab initio, 646. did include contingent interest undisposed of in specific devise, 647. also a partial interest undisposed of, as a reversion, 647, 649. or an alternative fee, 649. where remainders contingent, general devise carried reversion in mean- time, 650. contra where expressly devised to testator's heir, 650. devisee of partial iijterest not excluded from taking further interest as resid- uary devisee, 650. intermediate rents of land specifically devised infuturo of, included in resid- uary devise, 652. whether residuary devise infuturo carried intermediate rents, quaere, 652, 653. if joined with personalty, did carry such rents, Genery v. Fitzgerald, 653. Bevergims, general devise of lands and hereditaments included, 654. of lands " not settled," includes reversion in settled lands, 654, 655. of lands not "before disposed of," carries reversion in lands before devised for particular estate, 656. force of general devise not restrained by ambiguous expressions, 656. reversion not excluded, though limitations are inapt, 656, 657. same rule where the reversion in the only property, 658, 661. whether passes by, when none of the limitations applicable, 664. when surrendered to use of will passed under general devise of lands, 664, and see 669, 670. unsurrendered, did not pass by, before stat. 55 Geo. 3, u. 192 . . 664. although will not duly attested to pass freeholds, 665. but if no freeholds, surrender supplied in equity in favor of creditors, or wife, or children otherwise unprovided for, 664. but not in favor of grandchildren, unless testator m loco parentis, 664. pass since stat. 55 Geo. 8, c. 192 . . 665. although some of the limitations inapplicable, 665. equitable interests in, did not pass by, before same statute, 665. contra after the statute, setni., 665. passed though unsurrendered for payment of debts, where freeholds insuf- ficient, 666. INDEX. 895 GENERAL D'EVlS^.—contimied. in what order applicable to pnyment of debts under, 666. expressly mentioned, passed though unsurrendered, before stat. Geo. 3 . . 666. unless expressly restrained to surrendered, 666, 668. restrictive force of words "which I have surrendered," etc., 668. no restrictive effect, where no copyholds actually surrendered, 668. Leaseholds of "lands" or "estates" did not pass, where there were freeholds at the date of the will (634) to answer the description, 668, 669. although will not duly executed to pass freeholds, 669. nor copyholds distributable by custom as personalty, 669^ 670. words of limitation adapted to chattels did not vary the rule, qucere, 670. rule yielded to intention, 670. effect of charge exceeding value of freeholds, 670. farm composed of freeholds and leaseholds held to pass by devise of "farm," 671. effect of words " possessed of," 671. "interested in or entitled to," 671. leasehold tithes held to pass along with freeholds, 672. leaseholds held to pass by devise of mines and rents, 671, 672. would pass leaseholds for lives, 672. whether term of years would pass with copyholds of inheritance, qumre, 672. passed leaseholds where no other lands to answer the description, 672. leaseholds passed as ' ' freeholds " where no freeholds, as well since as before 1 Vict. c. 26, s. 24 . . 673. Poioers, operates as an execution of, over lands where no other real estate at date of will, 676, 677. secus if there were other real estate, 677. although description too extensive, 677. as to devise of all lands which testator has power to dispose of, 678. where the power and the devise extended to two sets of lands, but testator had an estate in one set, the devise was an appointment only as to the other set, 678. general devise which would operate on real estate, not necessarily sufficient to exercise a power, 678. general bequest of personalty did not operate as an exercise of a power over personalty, 678. contra in case of a married woman, where the will would otherwise have no effect, 679. nor in case of a bequest of a sum of money corresponding to the sum subject to the power, and although testator had no other property at the date of his will, 680. secus where bequest WB,a primd fade specific, 680. there is an exception of specific part of property subject to power, 680, note (a). SINCE STATUTE 1 ViCT. C. 26, includes all lands which testator has at his death, 326, 651. and lapsed and void devises, 651. but not share of residue which becomes undisposed of, 651. leaseholds and copyholds as well as freeholds (s. 26), 664, 672. leaseholds held to pass under devise of, " lands at A." and other " real estates," 673, 674. INDEX. GENERAL DEVISE, — continued. tut not under devise of "real estates" or "freeholds," 676. operates as execution of a general power (s. 27), 683. though the power he testamentary only, 683, 684. appointment which fails does not exclude operation of residuary hequest, 684. partial appointment does not prevent surplus passing under residuary bequest, 684. and if both fail, next of kin entitled, 685. "not otherwise disposed of," whether means by will or in default of appointment, 685. statute applies to wills of married women, 687. operation of s. 27, extending the effect of general devise under old law on powers, not affected by s. 24, 687. devise of all other lands comprised in instrument creating power and not before disposed of is specific, 687, 688. testamentary appointment must be executed as a will, but need not comply with any other requisition, 688. effect of, on copyholds, 664. (See Copyholds.) on mortgage or trust estates, see Moetqagee AND Trustee, and 694, will not pass the mortgage money, 689. GENERAL PERSONAL ESTATE, held to pass by the words, "effects," "goods," "chattels," 751' " goods and chattels, except plate and legacies," 756. "all my property in A.'s house does "not include chose in action, 756, note (r). "other effects, money excepted," 758. "other effects," 758. " wines and property," 759. held not to pass by the words, " and all things not before bequeathed," 751. "effects" restrained by the context, 753. "goods" restrained by the context, 753. " whatever I have or shall have at my death," restrained by context, 754. "goods and wearing apparel, except gold watch," 755. instances of restrictive effect caused by the context, 759, 761, note {m), construction of gifts of, generally, effect of pecuniary or specific legacy to same person, 751, 753. of particular bequests following the general one, 753. general words when restrained by additional gift of articles otherwise in- cluded therein, 754. general words, when not, 756. force of exception, to give words their most comprehensive sense, 756. effect of bequest of goods, etc., in a specified place, 754, note (o). "other effects," when it means effects ejusdem generis, 758. when not, 758. distinction between general terms preceding or following particular terms, 758, 759, 761. effect of a "viz." on preceding general terms, 755, 759, 761. of a residuary gift in same will, 761, 762. passes by bequest of "residue" {see Residue), 762. when it passes by bequest of " money" (see Money), 769 etseg. by other informal words, 775. INDEX. 897 GENERAL WORDS, what, cany real estate, 716 et seq. {See Real Estate.) GEORGIA STATUTES. (Sec Statutes of the Different States.) " GOODS," carries general personal estate, 751. "GROUND RENT," held to include reversion in fee, 798. (Sec Rents.) GUARDIANS, power of infant to appoint by will, 34. GUARDIANSHIP, not detenniiied by marriage of infant, 34. of infant copyholder, lord's right to, 34. H. HEIR, according to Scotch law, not excluded from share of personalty under English intestacy, 9. before admittance could devise copyholds, 59, 60. effect of devise to, 75. when descent broken, 76. surplus proceeds of sale under decree devolve on, 163. rents released from accumulation by Thellusson Act devolve to, as personalty, 313. resulting trust for, 565 ct seq. (Sea Resulting Trust.) estate of, pending contingent gift to minor at twenty-one, ceases by death of minor under twenty-one where there is a gift over, 683. not put to election by unattested will, 447. except where legacy given on express condition, 448. not bound to elect where will revoked by alteration of estate, 448. Scotch, not put to his election by general devise, 448. contra where laiids in Scotland specially devised, 448, 449. undisposed of interest in proceeds of sale of land belongs to, 619, 620. never excluded except by gift to another, 623. even where express direction that he shall not take, 623, 624. lapsed shares of proceeds of land devised to be sold belongs to, 622. share of proceeds illegally disposed of belongs to, 622. entitled to proportional part of proceeds of mixed fund undisposed of, 622. takes as personalty a partial interest undisposed of under trust for conversion, 631. otherwise where entire interest undisposed of, 632. even though sale has been made by mistake, 632. when entitled to void legacy charged on land, 347 ct seq., 632 et seq., 640. or sum excepted out of proceeds of conversion, 638, 639. VOL. I. 57 898 INDEX. HEIR-AT-LAW of testator, promise by, enforced, 415. HEIRLOOMS, gift of, to go along with estate, revoked by revocation of devise of estate, 180. "HEIRS OF THE BODY," limitation of estates pur avtre vie to, effect of, 64. " HEREDITAMENTS," includes every species of realty, 778. devise of, without words of limitation, did not carry fee, 263. " HEREIN," 187, note (p). "HEREINAFTER," how construed, 96. HERITABLE BOND does not pass by English will, 11, note (x). whether payable in iirst instance out of Scotch land or English personalty, 11. " HOPE," expressions intimating how far they create a trust, 388. HORSES pass under the words "goods and chattels," 757, note (c). "HOUSE," what passes by devise of, 780, 781. is synonymous with "messuage," semK, 780. "HOUSEHOLD FURNITURE," what passes by gift of, 758, note (b). "HOUSEHOLD GOODS," what passes by gift of, 758, note (6). > HUSBAND AND "WIFE may assign moneys to arise under trust for conversion, 604. IDIOT, will of, void, 34. whether he may be witness to a will, since 1 Vict. o. 26, 112 . . 113, "IF," in a devise or bequest, creates a contingency, 807-810, 842. unless controlled by context, 807-810. ILLINOIS STATUTES. (See Statutes of the Different States.) IMBECILITY, what is sufficient to invalidate will, 34, and note 1. INDEX. 899 IMMOVABLE PROPERTY, by what law goveraed, 1. IMPLICATION, power authorizing appointment to A. or B., gift in default is implied to A. aiid B., 518. nothing contrary to law can be implied, 525, note (a). necessary, what is, 532, 533. OF GIFT, from recital, 526 et seq. not from recital of supposed existing interest, 527. from recital of supposed gift made by same will, 528. from bequest of what it is supposed will make up a certain sum, 529, 530. from mistaken idea of devolution of property by law, 530. or EEVOCATION OF GIFT, not implied by codicil misreciting gift by will, 530, 531. nor from will itself misreciting gift, 531. ESTATE TAIL RAISED BY, 554 et Seq. {See Estate Tail.) ESTATE FOR LIFE RAISED BY, in A., from devise to heir after death of A., 533. fi'om devise to residuary devisee, after death of A., 541. whether from devise to one of several co-heirs after death of A., qvAxre, 534. whether from devise to heir and others after, death of A., qucere, 535. distinction where part of the lands expressly devised to A. for life, 536, 537. ESTATE FOR LIFE JfOT RAISED BY, in A. (not being the heir), from gift of lands to A. for life, and after his decease those lands and others to B., 539, 540. nor from gift to heir after death of A., where there is a residuary devise, 541. nor from power to appoint by will, 553. of gift to children, from gift to posthumous children, 541, 542. from gift to survivors, 542. from gift over on death of the survivor, 542, 543. in favor of survivors where annuity is to several for the lives of them and the survivors, 543. doctrine of, as affecting personal estate, 544, 545, 546. GENERALLY, from gift on death combined with contingency, 546 et seq. from gift over on death under certain age, 546, 548, and see Fee-Simple. that equitable is to be co-extensive with legal disposition, 550, 551. from powers of appointment, in favor of objects of power, 551. though there is an express gift in another event, 652. but not where there is an express gift in default of appointment, 552. the construction of which is not affected by the terms of the power, 552. and not where there is a power to appoint to one only of a class, 652. only arises in favor of those to whom an appointment might have been made, 652, 553. gift by, from power to appoint to relations takes effect in favor of relations at death, 553. whether in case of real property the estate implied is a fee, 553. issue take nothing by, from gift over if A. die without issue at his death, 561. 900 INDEX. IMPLICATION, — continued. nor fi-orn gift over if A. die without issue generally, since 1 Vict. c. 26 . . 562. gift to children not implied from gift over on death without children, 563. direction for accumulation of residuary estate by, disregarded, 608, note (i). (See Resulting Trust.) • INCOME TAX, gift free of taxes is not free from, 188, note (p). INCONSISTENCY of dispositions in will and codicils, revocation by, 173, 174. between two wills of uncertain date, 175. INCONSISTENT EXPRESSIONS, how reconciled, 478. {Sec Repugnancy.) INCORPORATION of documents in a will, what is, 90 et seq. documents must be clearly identified, 91. must be in existence at time of execution of will, 91. necessity of probate of documents incorporated, 92, 93. documents to be afterwards executed cannot be incorporated, 91. distinction where document is signed by legatee undertaking to apply legacy, 94, note (i). of documents in existence at time of will by reference, 19, note 1. "IN DEFAULT" of prior objects, effect of devise, 801. INDEFINITE TRUSTS, not void, when for charity, 215. {See Uncertainty.) INDIA, law regulating wills in, 14, note (j). INDIANA STATUTES. [See Statutes of the Different States.) INDORSEMENT on a bond held testamentary, 24. on a note, 24, note 1, INFANT, domicile of, whether follows that of mother, 15. power of, to make a will, 33, 34. to appoint guardians, 34. copyholder, lord's right to guardianship of, 34. guardianship of, not determined by marriage, 34. disability of, to make a will cannot be dispensed with, 38. may exercise power simply collateral, 39, note {t). cannot appoint guardian by will, since 1 Vict. c. 26 . . 45. may take under will, 76. cannot elect to take property unconverted, 599. INDEX. 901 INFLUENCE, UNDUE, what necessary to invalidate will, 35, note 1, 36, note (/). particular gifts obtained by, may be declared void, 86. INFORMAL documents, when admitted, to probate, 104, 105. INITIALS, signature of testator may be by, 78. of witness may be by, 82. " IN LIKE MANNEE," 747, note (y). "IN MANNER AFORESAID," 747, note (g). IOWA STATUTES. {See Statutes of the Different States.) INQUISITION, finding on, is primd facie, but not complete evidence of testamentary incapa- city, 37. INSANITY, what amounts to, 37, 38. INSTRUCTIONS FOR WILL, oral or written, not admissible in evidence tcinfluence construction of will, 411. INSTRUMENTS, what, have been held to be testamentary, IS et seq., 25, notes 1, 2. INSURANCE, whether trusts for effecting policies of, an accumulation within the Thellusson Act, 314 el seq. INTENTION, parol evidence of, as distinguished from surrounding circumstances, not admis- sible, i. 400. except in cases where two subjects or objects equally answer the descrip- tion, 401. INTEREST, legatee refunding legacy not liable to pay, 203, note (h). when it begins, 612, note 2. gift of, vests an'otherwise contingent legacy (see Vesting), 843, 844. INTERLINEATION in will, presumed to be made after execution, 1 43. and also after execution of codicil if not mentioned in codicil, 143. INTERMEDIATE RENTS, where lands devised infuturo, who entitled to, 652. {See Genekal Devise.) income of personal estate, in case of contingent residuary bequest, pass by such bequest, 653. INTESTACY, inclination of courts to construe will so as not to create, 851, note (m). INTRODUCTORY WORDS in a will, how far they influence question whether risal estate passes, 735. 902 INDEX. INVENTORY, legatee for life of chattels compellable to give, to ulterior legatee, 880. INVESTMENTS, liability of trustees for not making proper, 608, note (o) . IRELAND, lands in, not within 9 Geo. 2 c. 36 . . 240. Thellusson Act does not extend to, 304. IRVINGITE ministers, bequest for the benefit of, good, 207 . ISSUE, no estate implied to, from gift over if no issue living at death, 554. nor from gift over on death without issue since 1 Vict. o. 26 . . 561. "ITEM," force of word, in a will, 498. J. JEWISH RELIGION, bequest for propagating, how far good, 208. "JOINT LIVES," construction of, 543. JOINT-TENANT, of freeholds of inheritance, will of, was void if made during joint estate, 46. conira, since 1 Vict. c. 26, if he survive his co-tenant, 46, 48. contra also as to personalty, 46, 48. could devise copyholds so as to bar survivorship of his co-tenant, 58. devise to alien and another as, effect of, 68. no lapse by death of one, 341. JOINT WILL, may be made by two persons, 18. may be treated as a separate will, 18. may not be admissible to probate during life of either, 18. difficulties in consideration of, 18, note 1. K. KANSAS STATUTES. {See Statutes op the Different States.) KENTUCKY STATUTES. (See Statutes of the Dipfekbnt States.) KIN. {See Next of Kin.) INDEX. 903 L. devise of, includes houses thereon, 778. unless used in oontvadistinction to " house," 778. did not include chattel leaseholds before stat. 1 Vict. c. 26 . . 668, 669. secus as to leaseholds for lives, 672. "LANDS NOT SETTLED," 654, 655. LAPSE, what is, 338. general doctrine of, 338. not varied by gift being accompanied by words of limitation, 338. even where an estate tail is devised, 338. or where legatee dead at date of will, 338. applies both to realty and personalty, 338, 339. of bequest of debt to debtor, 339, note (c). of bequest to pay debts, where a creditor dies, 339, note (c). of bequest to creditor in that character, 839, note (c). effect of declaration that legacy shall not, 340. exception where gift to representatives by substitution, 340. holds as to gift in contingency, 340. of gift by A. to uses of B. 's will, unless devisee survive both A. and B., 341. does not take place by death of one joint-tenant, 341. nor by death of one of a class, 341, 342. though class be ascertained in testator's lifetime, 342. gift to executors when construed as a gift to a class, 342. of gifts to next of kin or relations as a class, 344. of legal estate, does not affect the beneficial devisee, 344, 345. of trust estate does not affect devise of legal estate, 344, 345. of devised estate does not affect legacy charged on it, 345. of contingent charge, causes the estate to devolve discharged, 345, 346. so where chai'ge on land fails by death of legatee before time of payment, 346. destination of legacy payable out of land in case of, where legacy is an exception out of gift of the land, 346 et seq. where legacy is a charge on the land, 346 et seq. whether any, under gift of personal estate to A. and the heirs of his body re- maii)der to B., by death of A., 351. Since 1 Fict. c. 26. lapsed sum forming exception out of land devised passes under residuary gift, 351. so where gift of sum void, 351. estate tail does not lapse by death of donee, but goes to issue in tail, 353. gift to child or other issue of testator does not lapse, provided issue of donee be living at death of testator, 353. statute does not apply where the donee only takes if surviving the tes- tator, 354. nor to gifts to joint-tenants, 354.' nor to gifts to classes, 354. how subject of gift devolves, 354. statute does not apply to gifts under power to appoint to particular ob- jects where there is a gift in default of appointment, 355. 904 INDEX. LAPSE, — conUmted. contra where the power is general, though there is a gift in default, 355. of part of proceeds under trust for conversion, for whose benefit enures, 622 et seq. how affected by 1 Vict. c. 26 . . 644. LAPSED DEVISE not included in general residuary devise before stat. 1 Vict. c. 26 . . 647. secus since that statute, 187, 203, 351. LEASEHOLDS, will of, whether governed by lex loci, 4, note {p). gift of, to go along with freeholds, but so as not to vest till some tenant in tail attains twenty-one, void, 274, 275. effect of general devise of lands on (see General Devise), 668. held to pass as "freehold," where no freehold, 673. observations on limitations of, to go along with settled estates, 548. {See Chattels. ) held to pass by the words "residue of my goods," 751, note (6). but not by the words "all things not before bequeathed," 751. LEASING, power of, or restriction on, puts dowress to her election, 458. " LEFT," gift of what shall be, 363. LEGACIES, additional, construction of gift of, 186, 187. substitutional, 186. charge of, on land by unattested codicil, 95. {See Charge; Codicil.) "LEGACY," held upon context to include real estate, 744. LEGACY DUTY, how affected by domicile, 3, note (1). what expressions give legacy free of, 187, note {p). on proceeds of lands directed to be sold, when attaches, 597, 598. on rent charges and charges on land generally, 698, note (I). LEGAL ESTATE vests in A. under devise to use of A. in trust for B., 268, 269. LEGATEE. (See Devisees.) LEGATEES, who may be. (See Devisees.) LETTER, held testamentary, 24, 26, note 1. LIFE-ESTATE, gift for life of two persons, 542, 543. {See Lakd.) "LIKEWISE," force of the word, 498, note (k). INDEX. 905 LIMITATIONS ulterior to remote gifts void, 283, 284. but when limited in the alternative of remote gifts, good, 285, 286. even though alternative contingencies be not separately expressed, 287. over, in case gift to charity held void, whether good, 250, {See Perpetuity.) " LIVE AND DEAD STOCK," what passes by gift of, 758, note (6). LOCAL LAW, by what, wills are regulated, 1. LOCALITV, direction to purchase lands in a particular, effect of, when lands cannot be ob- tained there, 595, note (x). betjuest of goods in a certain, effect of, 754, note (o). includes things temporarily removed, 758, note (6). choses in action have none, for this purpose, 756, note {t), LONDON, by custom of, freeman may devise land in, to charity, 242. LOST WILLS, when, and on what evidence, probate granted of, 86, 87. LUCID INTERVAL, what constitutes, 37. LUNATIC, validity of will of, 35 et seq. will may be valid, notwithstanding found so by inquisition, 37. test as to when a person is, 37, 38. whether a good witness to a will, 112. cannot elect to take property unconverted, 599. M. MAINE STATUTE. (See Statutes of the Diffekent States.) MAINTENANCE, allowance for, by husband to wife, is separate estate, and may be bequeathed by her, 40. gift for, of infant or adult without specifying amount, not void for uncertainty, but court vdll determine the amount, 359. trust for, whether confined to minority, 400, note (<). whether ceases on marriage of daughter, 400, note (t). of children, bequest to mother for, when creates a trust, 400. (See Vesting.) MANOR, devise of, included copyholds acquired by lord after date of will, 59. (See Copyholds.) MARK, signature of testator may be by, 78 and note 2. witness may be by, 82. 906 INDEX. MARINER, at sea, 98. MARRIED WOMAN, general tequest in will of, whether exercises a power over personalty, 679, 687. {See Feme Covektb ; "Wife.) MARRIAGE, when a revocation of will under old law, 122 et seq. when under 1 Vict. c. 26 . . 129. (See Revocation.) trust for maintenance, whether ceases on, 400, note {t). legacy payable on, does not vest till event happens, 840. unless the intermediate interest is given,. 843, 844. MARRIAGE ARTICLES held testamentary, 24. MARSHALLING ASSETS, for the purpose of, heir under express devise to him hefore 1 Vict. c. 26, had rights of a devisee, 75, note («). none in favor of charity, 234, 236. what amounts to a direction for, by testator himself, 237, 238. MARYLAND STATUTES. {See Statutes of the Different States.) MASSACHUSETTS STATUTES. {See Statutes of the Different States.) MERGER does not take place by coalition of defeasible fee and the executory devise over in same person, 878. {See Extinguishment. ) "MESSUAGE," what passes by devise of, 779. is synonymous with "house," semb., 780. MICHIGAN STATUTES. (See Statutes of the Different States.) MINNESOTA STATUTES. {See Statutes of the Different States.) MINORITY, devise in trust for child during, without further gift, whether gives him fee, 549, 550. what period denoted by the word, 824. MISCONCEPTION by testator of the extent of his disposing power, no reason for construing a clearly contingent gift as vested, 824. person electing under, not bound by election, 471. {See Mistake.) MISDESCRIPTION not fatal to gift, where the object or subject of devise is sufficiently identified, 787 et seq. of reversion or remainder, 801 et seq. INDEX. 907 MISNOMER of legatee, when it avoids a legacy for uncertainty, 370 et seq. MISSISSIPPI STATUTES. (See Statutes of the Different States.) MISSOURI STATUTES. (See Statutes of the Different States.) MISTAKE, effect of revocation of will founded on a, 183. person electing under, not bound, 471. in description of locality of lands, effect of, 377, 678, 794, 795. in description of objects of gift, 370 et seq. cannot be rectified by parol evidence, 410. unless removable by striking out clause, 413. made by testator in his view of circumstances and appearing on the will must govern the construction, 423, note (e). by testator of the extent of his disposing power no reason for construing a clearly contingent devise as vested, 824. MIXED FUND. (See Conversion ; Lapse ; Charge. ) "MONEY," what passes under gift of, 769, note («). when it comprises the general personal estate, 769 et seq. effect for this purpose of charge of funeral expenses and debts thereon, 771. of gift of legacies followed by gift of residue of, 772. of declared intention to dispose of whole estate, 773. instances of extended use of word, 774. effect of nature of residuary property as to what passes under, 774. (^Sfee "Ready Money"; "Securities for Money"; "Cash.") " MONEY ON MORTGAGE," gift of, whether passes legal estate in mortgaged property, 700. MONUMENT, bequest for erection or repair of, whether charitable, 210. MORTGAGE, no revocation of will in equity, 152. unless new limitations created on a reconveyance, 153. what expressions amount to a new limitation, 154. gift of, passes mortgage debt, 692. and legal inheritance in the mortgaged lands, 699, 700. See Mortsagee.) "MORTGAGES," devise of, passes legal estate, 699. MORTGAGE DEBT, bequest to pay off, takes effect, though mortgage foreclosed in testator's lifetime, . 397, note (y). MORTGAGEE AND TRUSTEE, devises by, 689. general devise of lands does not include beneficial interest in mortgage, 689. 908 INDEX. MOETGAGEE AND TRUSTEE, — continued. special devise of mortgaged lands held to pass the money in some cases where mortgagee in possession, 691. seciiyS where specilio bequest of the mortgaged debt, 691. where there is a general bequest of mortgage debts, 691. devise of estate contracted to be sold does not pass the purchase money, 692. mortgage debt passes by word "mortgage," 693. charge, when extinguished by union of character of mortgagor and mortgagee, 693. general devise passes legal estate in mortgaged lands, although testator has other lands, 694, 696. otherwise when devise confers less than a fee, 695, note (c). whether general devise passes legal estate where testator is mortgagee in trust for another, 696. but legal estate passes notwithstanding reservation of power, 697. legal estate does not pass where the devise is subject to debts, legacies, &c., 698. or to uses in strict settlement, 698, note (q). or subject to executory limitations over, 698. or clause of accruer among tenants in common, 698. or a trust for sale, 698. * or for a charity, 698. or for separate use, 698. immaterial that limitations are applicable to other lands, 698. but devise to enable the executors to get in the money does not pass legal estates where testator is mortgagee in trust, 698. charge of debts, &c., will not exclude mortgage lands where intention clear to include them, 698, 699. as where the devise is of " securities for money," 699. words "mortgages," "securities," sufficient to pass legal estate, 699. but not the words "money on mortgage," semb., 700. general devise of "lands" would not pass legal estate in mortgaged leaseholds before stat. 1 Vict. c. 26 . . 704. secus as to copyholds, 703. foreclosure subsequent to will, beneficial interest did not pass under old law, 707. but legal estate did, 707. if equity of redemption purchased by mortgagee and conveyed to uses to bar dower, will was revoked, 707, 708. will after foreclosure devising lands as in mortgage held to pass them, 672. whether equity of redemption barred, when a material question, as to mortgages in fee, 708. as to mortgages for years, 708. a ti'ustee and one who has contracted to sell lands are not in the same position, 704. contra where purchase-money paid and possession given, 706, 707. devise by vendor on trust for sale held to pass lands, contracted to be sold, 706, 707. question how far determined by convenience, 705. case of cdnstructive trust different from one of direct trust, semi., 706. {See Thustee.) .MORTMAIN, gifts in. {See Chaeity ; London.) MOTIVE of gift, words expressing, do not raise a trust, 899. INDEX. MOVABLES, by what law governed, 234. MULTIPLICATION of charges, devise by reference does not produce, 373. MUSEUM, bequest to found, not charitable, 212. N. NAME of legatee, cutting out of will is a revocation of legacy, 142. NATURALIZATION, effect of, 69, 70. enables alien to hold against the state, 69, note 1. NEBEASKA STATUTES. (See Statutes of the Diffekent States.) NEGATIVE WORDS, not sufficient to exclude heir or next of kin, 340, 620. NEW HAMPSHIRE STATUTES. (See Statutes of the Different States.) NEW JERSEY STATUTES. (See Statutes of the Different States.) NEW YORK STATUTES. (See Statutes of the Different States.) NEXT OF KIN take as a class, 344. whether they take as realty an undisposed of interest in land directed to be pur- chased, 632. NICKNAMES, parol evidence admissible as to, 422. NORTH CAROLINA STATUTES. (See Statutes of the Different States.) "NOT THEREINBEFORE DISPOSED OF," 646, 656, 685. "NOW," construction of, 318, 335. "NOW BORN," construction of, 424. NUMERICAL arrangement of clauses, effect of, 499, 500. NUNCUPATIVE wills, 97, 98. 910 INDEX. 0. OBJECTS of gift, will speaks at its date as to, 324, 337. OBLITERATION, ' in will, presumed to be made after execution, 143, 144. and also after execution of codicil, if not noticed in codicil, 143, 144. in pencil, 134. effect of partial, 134, 135. where connected with new disposition only conditional, 136, 142. in will under 1 Vict. c. 26, must be signed and attested, 139, 140. unless obliteration prevents words as originally written from being deci- phered, 142. glasses and other scientific means may be used to discover words obliterated, 142. but parol evidence inadmissible, except where obliteration was for purpose of altering and not of revoking, 142, and see 191. whether the same rule applies where the alteration is not in the amount but of the object of gift, 142. is evidence of satisfaction of legacy by gift from testator in his lifetime, 143. (See Destruction ; Ebvooation.) OCCUPANCY, whether reference to, restrictive of description of lands or not, 787 et seq. OCCUPATION by tenants, direction to devisee to permit, whether obligatory, 406. " OCCUPATION " (USE AND), devise of, gives estate in land, not conditional on personal occupation, 798. OHIO STATUTES. (See Statutes of the Different States.) OMISSION in will cannot be supplied by parol evidence, 412, 413, 442. (See Supplying 'Words.) "ONE OF MY SONS," construction of, 434, note {s). OPTION to purchase, effect of, as between devisee and executor, 56, 57. "OR" read as "and." {See Changing Words.) sometimes read as introducing a substitutional gift (instead of "in case of the death"), 514. OREGON STATUTES. (See Statutes of the Different States.) ORIGINAL WILL may be looked at to determine construction, 29. "OTHER," "survivors," when construed. (See Survivor.) construction of, 491. INDEX. 911 "OTHER EFFECTS," where it means effects ejusdem generis, 758. " OTHER PROPERTY," 680, note (a). OTTOMAN EMPIRE, subjects of, cannot make a will, 12. English persons in, may by special treaties, 12. how validity of wills of such persons regulated, 12. PAROL, whether election not to have property converted can be made by, 599. PAROL EVIDENCE, when admissible, to show what were the words obliterated in a will, 142, 191. admitted to show how revival of revoked will is to operate, 143. but not to vary, add to, or subtract from will, 409. e.g. oral declarations of testator, 410. or of the person who drew the will as to the instructions he received, 410. nor to correct mistaken reference to a former will contained in a clause of revoca. tion, 411, 412. distinction, where the revocation consists in an act done, 412. nor to supply omissions, 412, 413. admissible to show that a clause was improperly introduced, 414. to show that a document duly executed as a wUl was not, 415. in cases of fraud to support or repel the charge, 415. or to enforce heir's or devisee's undertaking, 415, 416. to rebut a resulting trust, 417. or the executor's claim to the residue (before 1 Will. 4, c. 40), 417. or the presumption against double portions, 417. to support a presumption impugned by similar evidence, 417. to prove that testator placed himself in loco parentis, 417. satisfaction of legacy, 417. inadmissible to influence construction, 417. - to explain words of tenure, 418. locality, 418, 419. relative pronoun, 419. unless primary construction is impossible, or inconsistent, 420. to what extent revoked will can be looked at, 418, note (i). admissible to explain foreign language, 421. or to decipher strange characters, 421. or to prove custom in certain cases, 421, 422. to explain nicknames, 422. to prove " surrounding circumstances " at the date of the will, 422, 423. of price of stocks for purpose of construing will, not admissible, 423, note (e). of the state or amount of testator's property, in what cases admissible, 423, 424. state of facts at date of will, when not to influence construction, 424. effect, on admissibility of such evidence, of stat. 1 Vict. o. 26 . . 425. admissible to prove "parcel or no parcel," 427. how far will may depend on subsequent events, 429. patent and latent ambiguities, practical bearing of the distinction, 429, 430. 912 INDEX. PAROL EVIDENCE,— conimMcd. parol declarations of intention, when admissibje to explain latent ambiguity, 430. e.g. where description applies equally to two objects or subjects, 431. where part applies to both, and part to neither, 435. unless context affords reason for preferring either, 434. not admissible where part of description applies to one person and part to another, 438. if admissible need not be contemporaneous with will, 438. of circumstances in favor of a claimant, the will correctly describing another, inadmissible, 439, 440. so where no part of description applies to claimant, 441. same nile as to subject of gift, 441. inadmissible for supplying blanks, 441. secus in case of partial or imperfect descriptions, 442. sometimes admitted before it is proved to be material, 442. not admissible to raise an election, 451. PARENTHESIS not attended to- in wills, 29. PARTICULAR ESTATES, destination of, when void in creation, 574. PARTITION, did not cause revocation of will, 151. unless new limitations created, 153. or lands allotted on partition did not answer description of devised land, 151. PARTNERSHIP, tenant for life of share in, not entitled to increase of capital made during his life, 6I9! PENCIL, will may be in, 18, 77, note 1. will before 1 Vict. t. 26, might be revoked by cancellation in, 134. such cancellation primd facie deliberative, 134. {See Revocation.) PENNSYLVANIA STATUTES. {See Statutes of the Different States.) JPERIOD at which value of realty and personalty to be ascertained for apportioning charity legacy, 236, note (x). from which will to be considered as speaking in judging of remoteness of gift, 254. from which a will speaks generallj', 318 et seq. Before 1 Vict. o. 26. as to construction put on words " now," &c., 318. on words " am possessed of," &c., 319. on specific bequests, 320. bequest of lease does not pass renewed lease, 321. contra where words suffice to include future estate, 321. or where there is a covenant for renewal, 321. distinction between revoking effect of conveyances of leaseholds and free- holds, 323, 324. as to objects of gift, 324. INDEX. 918 PERIOD, — continued. " son " means son at date of will, 324. " wife " means wife at date of will, 324, 325. contra If there is then no wife, 325. same rule applies to remainders as to immediate gifts, 325, 326. same rule applies to gifts to servants, 326. as to general devises and beijuests, 326. as to gifts to classes, 326. Since 1 Vict. c. 26. general devise now extends to property within the description at testator's death, 326. contra where property within the description is specifically disposed of, 328. specific or general gift of stock includes stock standing in testator's name at death, 328. devise of lands in specified place includes after-acquired lands coming under same description, 328. difficulties in iiew rule of construction where more than one subject at death, 330. what amounts to contrary intention mentioned in the Act, 331. where words expressly refer to present time, contrary intention shown, 334, 335. effect of word "now," 318, 335. general po^er created after will, is executed, supposing it would have been executed if then in existence, 337. consequently general residuary gift executes all powers of appointment, 337. but not powers of revocation, 337. even where instrument expressly referred to, 337. unless a power of revocation be the only power, 337. no alteration made as to when will speaks as to objects of gift, 337. PERPETUITY (RULE AGAINST), origin of, 251. • how regarded by the early judges, 252. period for suspension of vesting allowed by, 252, 254. allowed by statutes in some states, 250, note 1. executory devise on indefinite failure of issue void, 255. unless collateral or subsequent to an estate tail, 255. distinction between executory limitation precedent, and one subsequent to estate tail, 260. whether destructible remainder can be void for remoteness, 260. effect of 8 & 9 Vict. c. 106 . . 262. gift to unborn class to vest after majority void, 264. remainder of legal estate good, though limited on remote event, 256. remainder of legal estate may be good though limited to person too remote, 260. as to devises of reversions, 262. contingent remainder of copyholds governed by same rule as freeholds, 263. different rule applies to contingent remainders of equitable interests, 263. effect of 8 & 9 Vict. c. 106, on foregoing rules, 263, 264. construction of devise of legal remainder to a class, 265. distinction where remainder is equitable, 265. gift to a class which may comprise remote objects, void as to all, 265, 266. what mixture of remote objects is sufficient to render a gift void, 266 el seq. doctrine of Greenwood v. Roberts discussed, 268, 269. legal definition of a gift to a class, 269. VOL. I. 68 914 INDEX. PERPETUITY {RULE AG XmST), — cmtinued. gift to a living person combined with a remote class void, 266. except where they toe joint-tenants, 267. in applying, possible, not actual, events looked to, 273, 274, 266, note 2. in trusts of leaseholds to go along with freeholds, non -vesting clause must be confined to minority of tenant in tail by purchase, 274, 275. all trusts of management must be confined in like manner, 275. trusts for accumulation for payment of debts may be without limit as to time, 276. how far a trust can be divided into two parts, one remote, the other not, 275, note (g). applies to the ascertainment of the interest as well as of the person and event, 267. whether remoteness to be judged of by circumstances as existing at date of will or death, 254, 255. when provisions for grandchildren are too remote, 276. will may mould disposition according to subsequent events so as to avoid, 276, 277. devise to a person who may not answer description within proper time void, 277. gift to unborn person for life valid, 280. as to successive limitations to unborn persons who must come m esse within prescribed time, 280. as to gift in remainder on life-estate to unborn persons, 281, 282. avoids all limitations ulterior to remote gift, 283. though object of such gift never comes into existence, 283, 284. but limitation on alternative contingency may be good or not in event,. 285, 286. alternative contingencies need not be separately expressed, 287, 288. rule cannot be evaded by indirect means as by power to revoke and reappoint, 288. how appointments under powers affected by, 290, 291. how indefinite powers of sale affected by, 291. does not hold where reason of rule does not apply, 292. does not invalidate gift where possession only postponed, 293. does not apply to charitable trusts, 293, note (s). no reason for modifying constraction of will, 294. avoids clauses illegally modifying absolute gift, and leaves gift absolute, 295, 296. estate not implied contrary to, 296. how doctrine of aj-pris applied in cases contravening, 297. successive estates for life to unborn issue held to create estate tail in first unborn person, 298, 299. cy-pris doctrine applied to give some of a class estate tail, while others only take for life, 301. several series of limitations may be modified cy-pris, 301, 302. doctrine not to be extended, 302. does not apply to pei-sonal estate, 302. nor to minted fund, 302. nor when the intention is clearly only to create life-estates, 302. nor where children of unborn persons would take in fee, 302. device in case personalty insufficient for payment of debts, good, 649, note (7i). whether devise after payment of debts void for, 649, note (n). {See Accumulation ; Consequences ; CY-PKi:s. ) PERSONALTY, what a good will of, 98, 99. (See CoNVEKsioN.) INDEX. 915 PERSONAL ESTATE. {See General Personal Estate.) PIN-MONEY, wife cannot bequeath savings of, 40. "PLANT AND GOODWILL," what included in, 758, note (6). POLICY OF ASSUEANCE, whether trasts for effecting, an accumulation within the Thellnsson Act, 314 et seq. POOR, not necessarily the object of a charitable gift, 211. "PORTION," what is, within meaning of exception in Thellusson Act, 309. "POSSESSED OF," 67, 767, note (c). gift of aU of which testator is, whether it extends to real estate, 741. {See Real Estate.) POSTERIOR of two inconsistent clauses to be preferred, 473. (See Repugnancy.) POSTHUMOUS CHILDREN, whether gift to, implies a gift to children bom, 641, 542. statutes in favor of, 129, note 2. POWER, validity of will under, not regulated by domicile, 11. will intended to take effect under, may operate on testator's estate, 18. , of attorney held testamentary, 26. execution of will under, whether valid not determined by ecclesiastical courts, 30. to appoint by any "writing," must, even since 1 Vict. c. 26, be executed as required by power, 31, note (it), will of a woman under, not necessarily revoked by marriage, 122. nor by death of husband, 123. in act of Parliament, compulsory sale under, when will is revoked by, 163. of appointment not exercised by will made after creation of, 200. appointment imder, how affected by rules against perpetuity, 290, 291. of sale to continue during unlimited period, whether valid, 291. of appointment general, created after date of will, whether exercised by residuary devise, 337. of revocation reducing back absolute ownership is not so exercised, 337. of appointment to issue, gift made imder lapses, notwithstanding 1 Vict. c. 26 . . , 355. of leasing puts dowress to election, 458, 461. of sale does not, 461. of appointment, remainder limited under not accelerated by failure of particular estate, 581. not exercised by general devise before 1 Vict. c. 26 . . 676. except in special cases where will could operate on nothing else, 676, 677, 678. or intention to exercise power shown, 678. same rule as to general bequests of personalty, 678. distinction in case of will of married woman, 679. 916 INDfiX. VOWER, —cmtinued. what denotes intentiott to exercise power ty residuary bequest, 680. rule since 1 Vict. c. 26 . . 683. may be general within that statute though merely testamentary, 684. what is a general, within the statute, 688. what shows the contrary intention mentioned in statute, 688. the statute applies to wUls of married women, 688. but does not touch powers to appoint to particular persons, 688. all peculiar formalities in exercise of, by will now abolished, 688. (&e GkNEKAL Devise ; Leasing; Sale; Tkustee;) POWER SIMPLY COLLATERAL, may be exercised by infant by will, 39, note (i). PRECARIOUS SECURITIES, when to be converted, 608, note (o), 613 et seq. (See Con VERSION.) PRECATORY "WORDS, when they create a trust, 385 et seq. do not cut down a gift to A. " for his own use," 388 et seq, "PREMISES," what included in, 779. PRESENCE of testator, what amounts to, 87. mental consciousness essential, 87. sufficient that he might see, 87 and note 3. must be possible that he could see, 87. where be is unable to move, and his face is turned away, 90. where he is blind, 90. presumption as to, where no evidence of, 90. (See Acknowledgment ; Attestation ; Signatuke ; "Witness.) PRESENT TENSE, verbs in, how construed, 319. PRESUMPTION that a will was duly executed, 86 and note 2. as to time when alterations were made in a will, 143. as to time of filling in of blanks, 144. that unattested alterations in a will made before 1838 were made before 1838, 143, note (I). parol evidence admissible to rebut, 417. in favor of comprehensiveness of general expressions, 417, 727, 728, 736. PRIVATE CHARITY, trust for, void, 212. PROBATE, in case of personal estate conclusive as to testamentary character, 27. and as to contents, 27, 28. of real estate conclusive in most of the states, 27, note 2. what questions it determines, 27, note 2. immaterial so far as regards realty, 28. effect in case of testamentary appointments, 30. of will oifcme coverte, in what form gi-anted, 31 and note 2. INDEX. 917 PROBATE DUTY, not afifected by domicile, S, note {I). on what property it attaches, 3, note (I). not on money to arise from sale of lands, held in trust for sale, 598, note (I). nor on purchase-money of property contracted to be sold, 598, note (Z). PROMISE made to testator by his heir at law, or devisee, parol evidence admissible to enforce, 233, 415. ' PROMISSORY NOTE, held testamentary, 24. "PROPERTY," will carry real estate unless restrained by the context, 716 et seq. when held not to include copyholds, 720. when restrained by subsequent words, 720. when not restricted, 721. (See Real Estate.) PUBLICATION. of will not necessary, 80, note 1, 81. PUNCTUATION, how far attended to in wills, 29. PURCHASE-MONEY, of estate contracted to be sold by testator to whom belongs, 160, 161, 162. of estate contracted by testator to be sold, and afterwards sold, does not pass by devise of the estate, 704. {See. Option ; Revocation. ) PURPOSE, legacy of money to be laid out for a particular, when laying out obligatory, 397 et sej. QUASI TENANT IN TAIL, devise by, 57, 58. "READY MONEY," what it includes, 7S9> not? (e) " REAL EFFECTS," will carry land, 724. E. {See Monet.) REAL ESTATE, what general words carry, 716 et seq, effect of there being no preceding or other mention of real estate, 718. but the absence of such mention not conclusive, 727. sometimes restrained, where followed by enumeration of particulars, 719., the presumption is in favor of the comprehensiveness of general words, 721, 729. clear indication necessary to confine them, 721. effect of clause intimating intention to dispose of whole estate, 726. 918 INDEX. KEAL ESTATE, —c(TO«mMecZ. 1. FOEOB OF PAKTICULAE WORDS APPLIOABLK TO. "tenements" "hereditaments" carries all realty, 778. extent of word "lands," 778. "premises," 779. "messuage,"' 779. "house," 780. " house I live in and garden," 780. " cottage," 781, note {d). "appurtenances," 781. " lands appertaining to," 788. thereunto belonging," 783. adjoining," 781. "farm," 785. " rents and profits," includes the land, 798. when includes advowson, 798. "ground rent" includes the reversion, 798. " use," or " use and occupation," passes the land, 798. leaseholds held to pass under description of freeholds, 785. customary freeholds under description of copyholds, 798. a moiety in possession and the other in reversion held to pass under words " part and portion," 798. cases of limiting terms heing rejected, 786. efiect of reference to occupancy, 787, 789. " my B. estate in the county of C," may include lands not in county of C, 788. devise not extended by subsequent reference to occupancy, 789. one devise how far affected by another, 789. subject only nearly answering description not included where there is a sub- ject exactly answering, 791. contra, if there is no subject exactly answering, 793. " lands which I purchased," includes lands taken in exchange, 792. "at, in, ornear," how construed, 794, 795. 2. WHBEE ASSOCIATION OF ■WOKDS DESCKIPTIVE OF PERSONALTY HAS A KESTRIOTIVE EFFECT. "goods, chattels, leases, estates, mortgages," 7l7. " estate, goods and chattels," 717. estate and chattels, real and personal, 717. " stock in trade and other property," 717. " estate and effects," with context, 718. " rest and residue," with context, 719. " property " held not to include copyholds, 720, 726. "estate consisting of money, mortgages, etc.," 719. "property," with context, 720. "estate," 721, note (y). clear expression in wiU not cut down by doubtful expression in codicil, 721. 3. WHEKB NO EESTRICTIVE EFFECT. "money, goods, chattels, and other estate," 722. "wearing apparel, &c., with all my other estate," 722. "residue of money, goods, chattels, and estate," 722. "goods, estates, bonds, debts," 724. " effects real and personal," 724. goods and chattels real and personal, as houses, &c., 725. INDEX, 919 EEAL ESTATE, — C(m of subject of specific gift, 613, 614. of subject of residuary bequest where no trust for conversion, 612, 616. where property wasting or precarious, 613. what expressions point to, 614. direction to renew leases, 614. express trust to convert at specified period, 614. power to sell, 616. direction not to sell except with consent, 615. power to vary securities, 613. intention that specific items not to be converted, 616. gift over of property itself, 616. what expressions do not point to, direction to convert specific parts, 616, to convert for particular purposes, 616. direction not to sell under a given sum, 623. whether gift of " rents " " dividends " points to, 617. whether enumeration of specific items points to, 618. nature of, in share in a partnership, 619. ( 304. 13 & 14 Vict. c. 94 (Tithes), 242. 15 & 16 Vict. c. 24 (Wills), 106. 22 & 23 Vict. c. 63 (Reserved Opinions), 6. 23 & 24 Viet. c. 15, s. 4 (Probate Duty on Personalty, appointed under general power), 3. 23 & 24 Vict. c. 5 (Probate Duty on Certain Indian Securities), 3. 24 Vict. c. 11 (Foreign Law), 6. 24 & 25 Vict. c. 114 (Lord Kingsdown's Act), 2, 4, 7, 11, 12. 31 & 32 Vict. u. 44 (Religious Sites), 242. 31 & 32 Vict. c. 101 (Scotch Lands), 9. 33 Vict. c. 14 (Aliens), 42, 67. 33 & 34 Vict. c. 23 (Attainder), 44. 38 & 39 Vict. u. 68, 242. 40 & 41 Vict. c. 33 (Contingent Remainders), 264. STEWARD, effect of direction to devisee to employ particular person as, 406 et seq. STOCK in public funds is considered movable property, 3. how wills of, must be executed, 99. what words pass, 753, note (g). what passes by, gift of, 758, note (6). 932 INDEX. SUBSTITUTIONAL legacy, construction put on gift of, 186. SUCCESSIVELY, gift to several, 374. SUPERSTITIOUS USES, what are, 209. devisees may be compelled to disclose whether they take for, 207. SUPPLYING WOKDS, rule as to, 486. " die," read as " die without issue," 486. words when supplied to produce uniformity in separate devises, 487 et seg. e.g. " without issue," read, " without leaving issue," 487. " under twenty-one " supplied, 489. "on marriage," read, "at twenty-one or marriage," 489. " dying," read " dying without leaving a child," 489. to provide for an alternative event obvious, though not expressed, 491. object of " further " devise supplied by reference to preceding devise, 491. devise to "second and other sons successively" held to include first son, 492. words of limitation in one devise not to be applied to a distinct devise, 496, 497, 498. where clauses are numbered, words of limitation at the end of clause applied to several devises in the clause, 499, 600. SURRENDER of copyholds to use of mil, necessary before 55 Geo. 3, o. 192 . . 57, 664, 666, 668. was the operative conveyance not the will, 57. notwithstanding, legal estate descended to the heir, 57. necessary notwithstanding previous surrender by way of mortgage, 57. made will operate as severance of joint tenancy, 58. bar of freebench, 58. of another person surviving testator, whether a severance, 68, note (a), omission of, supplied by 55 Geo. 3, c. 102, 58. formal only, supplied by that statute, 58. hy feme coverte, not supplied by that statute, 58. custom not to, bad, qu., 68. not presumed, 58. brought them within devise in previous will, 59. notwithstanding use of the word " shall," 59. not necessary since 1 Vict. c. 26, 60. whether equitable interest in copyholds passed by general devise of real estate without, 665. (See Copyholds; General Devise.) SURVIVOR, gift to, for life, whether implies a gift to those dying first for life, 542. gift over on death of, when creates estate by implication, 642, 643. INDEX. 933 T. TEARING, revocation of will by, 129, 139, 140. includes cutting, 141. (-See Oblitekation ; Retocation.) " TEMPORAL," 719, note (o). TENANT AT WILL, direction to devisee to permit occupation by, whether obligatory, 406. TENANT FOR LIFE, OF EESIDUART PERSONAL ESTATE, 1. Where there is a trust for conversion. to what income entitled during first year after testator's death, 606. not entitled to income of fund required for legacies till payment is made, 606, note (»/). to what income entitled where there is a direction to accumulate till conversion, 608. where there is a conversion within the year, 608. where conversion is omitted to be made, 608. where the property is reversionary, 608, 610. where conversion cannot be made for defect in title, &c., 611. when bound to refund excess of income received through non-conver- sion, 608, note (o). what income entitled to from reversionary interest, 610, 611. 2. When there is no express trust for conversion, general rule, 612. income payable to, during first year after testator's death, 612. subsequently to first year, 612. in case of reversionary interest, 612, note (6). effect of testator dying and his property being situated out of juris- diction, and afterwards property coming within jurisdiction, 612, note (rf). income payable to, in case of precariously situated but not wasting property, 613. when entitled to enjoyment in specie, 613 et seq. entitled to whole produce of wasting property bequeathed in specie, and sold with his consent if it would have expired in his lifetime, 619. contra where tenant for life is himself cestui que vie, 619. of share in partnership not entitled to increase of capital made during his life, 619. TENANTS IN COMMON may devise, 48. {See Estate Tail). " TENEMENTS " includes every species of realty, 778. TENNESSEE STATUTES. {See Statutes of the Difpekent States.) •934 INDEX„ TEEM OF YBAES becomes attendant where trusts fail or are satisfied, 579. or where no trusts declared, 580. {See Leaseholds.) TESTAMENT AEY, what instruments have been held to be, 17 et seg. words of present gift do not make an instrument, 25, 26. testamentary capacity, use of the term, 38, note 1. TEXAS STATUTES. {See Statutes op the Diepebekt States.) "THEEEITNTO ADJOINING," what included in, 784. "THEEEUNTO BELONGING," what included in, 783, and see 421. " THINGS " will pass personal estate, 751. TIME at which a will speaks, generally, 818 et seq. {See Period.) as regards the rule in Eose v. Bartlett, 672. (See Accumulation ;. Age ; I) at; Period.) TOMB, bequest for repair of testator's, not charitable, 211. TEAITOE cannot make a will, 42. TEANSPOSITION of words and clauses, 500 et seq. clauses otherwise senseless, when rendered consistent by, 500, 501. of names of two subjects of devise, to suit the circumstances, 501, 502. same as to objects of devise, 503. TEEATY WITH FOEEIGN COUNTET, how testamentary power affected by, 12. TEUST, paper signed by trustee operative as admission of, 31, note ((), 94, note (i). secret, for charity, devisees may be compelled to disclose, 207, 233. enforced against heir or devisee by parol evidence, 81, note (i), 414, 415. what words sufficient to create, 383 et seq. precatory words, when they create, 385 et seq. doubtful expressions which create, 387, 388. precatory words added to gift for donee's " own use " do not create, 388, 389, 890. doubtful expressions which do not create, 392, 393. when gift for a purpbse creates obligatory trust for that particular purpose, 397. where purpose is not for benefit of donee alone, three constructions, 897 et seq. 1st, complete trust, 399. 2d, discretion liable to be controlled, 400. 3d, no trust, 402. gift to H. to dispose of among her children, or for benefit or maintenance, &c., of her childiien, when it creates, 899, 400.' INDEX. 935 TRUST, — continued. gift to A. to enable him to bring up his own or B.'a children does not create, 400, 401. distinction between gift to A. to provide for his children and gift upon trust for his children, 402, 404. direction to permit tenants to continue in occupation, whether it creates, 406. direction to employ particular steward or receiver, whether it creates, 406, 407. parol evidence admissible to repel resulting, 417. distinction between devise/or and devise subject to particular purpose, 566, 569, to sell to certain persons, effect of, 569. effect of expressions of kindness on question whether devisee is to hold as trustee, 570. effect of describing devisee by relationship, 570. effect of devisee being infant or married woman, 572. word " trust " not necessary to create, 569. (See Charity; Heibj Resulting Trust.) TRUSTEE, legacy to, as a mark of respect not revoked by substitution of another trustee, 179. devises by. (5cc Mortgagee.) devisee of, cannot exercise purely discretionary powers given to trustee, 709, 710. as to powers of sale, quaere, 710 et seq, devisee can exercise power, when given' to the trustee and his assigns, 711. the power can be exercised only by him who has the estate, 713. where the power is given to the trustee and his heirs, the heir and devisee can- not together exercise the power, 714. nor can the heir unless he takes the estate as heir, 714. whether the rule applies to leaseholds, 714. whether a devise by a trustee, where the devisee cannot exercise the powers of the trust, is a breach of trust, 715. {See Trustees.) TRUSTEES, liability of, where there has been neglect or omission to make proper invest- ments, 608, note (o). paper signed by operating, as admission of trust, &1, note {t), 94, note (i). TRUSTEES TO PRESERVE, contingent remainders, when necessary notwithstanding 8 & 9 Vict. c. 106, s. 8, 874. TRUST ESTATES, usual course as to devolution of, by devise, 48, note {d). (See Mortgage ; Trustee.) TURKEY. (See Ottoman Empire.) 936 ISDBX U. ULTERIOR ESTATES. {See AoCELEBATIOlf.) UNATTESTED CODICIL, when made valid by subsequent attested codicil, 114, 115. since 1 Vict. c. 26, does properly come under description of codicil, 118. (See Charge ; Revocation.) UNBORN PERSON, gift to, for life, when valid, 280. UNCEBTAINTy, OP SUBJECT, in case of gift of " all," 358. of indefinite part, void, 358. of an indefinite sum to executors for their trouble, amount will be ascertained, 358. so also in case of gift for maintenance of children, 359. "of 3000/. or thereabouts," to be raised by accumulation, 359. where amount is stated differently in different places, 359. of share of land resulting in opinion and not in fact, 361. of shares to be determined by person not named, 363. of definite amount to be selected by donee, 863. of indefinite part to be selected by donee, 363. of " a close W.," there being two, 363. of " a sum not exceeding 100/.," 359. of " 50/. or 100/.," 359. of what shall not be disposed of by a prior legatee, 363. of what a prior legatee does not want, 363. of gift over on death of a prior legatee intestate, 363. of what shall be left at death of A., a tenant for life, 864. of what shall be left at decease of A., the tenant for life, 364. of what shall be left, preceded by a power of appointment, 365. of the whole except an uncertain part, 865. of what remains after deducting uncertain part, 365. of what remains after providing for object illegal or un- ascertainable, 867-370. of certain sum, togetlier with further uncertain sum, good as to the former, 370. OF OBJECT, ' in case of gift to one of the sons of A., 370, 371. to poorest of kindred, 371. to several, blank being left for one name, 371. to class, with exception of unascertained person, 871. to A. or B., 372, 373. by incomplete or uncertain reference to other uses, 873, 874. to person to be ascertained by future act of testator, 374. to several successively, 874, 875. to one child of A., 875, 876. INDEX, 937* UNCERTAINTY, —confmuerf. to an object of which more than one answer the description, 376. to each of two objects where there is only one to answer the description, 376. to uncertain charitable object, 376. (See Charity; CT-PRi;s.) OF DESCKIPTION OP SUBJECT OK OBJECT, all particulars need not be correct, 376, 377. mistake in locality, 377. leasehold described as freehold, 377. misnomer of corporation, 379. correct name generally overrules incorrect description, 879. but description may be such as to overrule name, 382. or may be such as to explain mistake, 381. cases of mistakes in gifts to children, 380, 381. reference to locality must refer to or define boundary, 383. cases where only one claimant and where two, 383. OP INTERESTS CREATED. case of trust created but no objects defined, 383, 384, 385. gift subject to further disposition, 385. precatory words will in general create a trust, 385, 386. so words of confidence, 388. mere expressions of kindness not sufficient, 388. where gift is to "absolute use," "own use," &c., no trust created by pre- catory words, 388, 389. instances of words too indefinite to create a trust, 392, 393, 394. where the property referred to by precatory words is not clear, 395. difference in result between trust not being created or being created for uncertain objects, 396. gift being for a purpose for benefit of donee, purpose is not obligatory, 397. where quantum of interest is left to discretion of trustees, 398. where purpose is not for benefit of donee alone, three constructions, 897 et seq. 1st, complete trust created, 399. 2d, discretion liable to be controlled, 400. 3d, no trust, 402. gift to A. to bring up and maintain B. no trust, 405. what words render it obligatory to employ a particular steward or bailiff, 406, 407. (See Heir; Resulting Trust; Trust.) UNDISPOSED-OF INTERESTS, destination of, in property directed to be converted, 619, 620, 631. operation of residuary devise on, 626, 627, 643. , of residuary bequest, in regard to personalty, 626, 627, 761, 762. (5e« General Devise; "Residue"; Residuary Bequest.) UNITARIAN CHAPEL, . bequest for, good, 207. "UNMARRIED," whether it means "never haying been married " or "unmarried at the time," 521, 522, 523. 938 , INDEX. " UNSETTLED LANDS," devise of, what passes by, 654, 655. USE. {See Legal Estate ; TRtrsTEES.) "USE AND OCCUPATION," devise of, gives an estate in the lands not conditional on personal occupation, 798. UTAH STATUTES. {See Statutes op the Different States.) V. VAULT. (See Tomb.) VENDOR, difference tetween, and a trustee, as regards devise of legal estate, 704. VERMONT STATUTES. {See Statutes of the Different States.) "VEST," effect of declaration that devise or bequest shall " vest " at a particular time, 813, 849, 850, note {g). in what cases "vested" means "payable" or "indefeasible," 850. VESTING of leaseholds devised with freeholds in strict settlement must be in first tenant in tail by purchase, 274, 275. general rule as to, 799. of estates at earliest possible period, favored, 768. devise or bequest to one, simply, vests in him at testator's death, 799, 841, 842. to A. for life, and at his decease to B., vests in B. immediately, 800. of a remainder or reversion after determination of a pre-existing estate, vests immediately, 800, 805. effect of misdescribing the event on which it depends, 800. gift "in default" or "for want" of prior objects is equivalent to gift "in re- mainder," 801. remainder after death of A. without issue, vests immediately if A. die before testator, though he leave issue, 801, 803. gift over on contingent determination of prior estate is contingent, if prior estate takes effect, 803. gift to widow during widowhood, and if she marry over, gift over takes effect on widow's death unmarried, 803. qumre where the prior gift is for life of widow, 804. gift until bankruptcy and on bankruptcy over, gift over held to take effect on death without bankruptcy, 805. devise or bequest "if" or "when" devisee or legatee attains a particular age standing alone is contingent, 805, 806. otherwise'if there be a gift till he attain that age, and if or when he attain it to him, 806. and words of apparent contingency will be referred to possession merely, 807. if the words of contingency can be read as meaning "subject to the interests previously limited " they will be so read, 809. INDEX. 939 VESTIKG, —continued. devise to " A." if he attain twenty-one is made vested by gift over in alternative event, 810. same rule holds whether the devise he to an individual or to a class, 811. and though another event be associated with dying under twenty-one, 811. and in the case of executory trusts, 811. but not if the will expressly declares that the interest shall not vest, 813. (See Vest.) or that they shall vest at another specified time, 813. or if devisee has a condition precedent to perform, semb., 814. but such condition not implied in a devise to one upon "his securing an annuity " on the devised lands, 814. nor does the rule apply if the prior gift be to persons " who shall attain " a given age, 816 et seq. devise after payment of debts confers a vested interest, subject to the charge, 820. devise clearly contingent, so held notwithstanding absurd consequences, 821 et seq., 829, note (6). limitation over construed strictly, and to fail event not having happened, 824. and though the contingent terms arise from testator's misconception of his in- terest, 824. exception, where holding devise contingent would defeat the expressed intention, 825, 826. previously vested gift not divested without clear intention so to do, 826. all the events upon which substituted gift depends must happen, 827 et seq. gift to several, and if any die in A.'s lifetime to the survivors, if none sui-vive, prior gift remains absolute, 827, 828. to several, and if only one at stated time, to that one, prior gift untouched if more than one at the time, 829. contingency not confined to one limitation, where the whole series is eonsecutive, 831. secus where the contingency is owing to an intention expressed as to the partic- ular estate, 831, 832. or where the series of limitations is not< consecutive, one. in remainder on another, 832. same principles apply to personal leoaoies except where distinctions intro- duced by ecclesiastical courts, 834. legacies payable out of land follow the rules applicable to real estate, 834. leaseholds or money to arise from sale of land not land for this purpose, 834, note (I). LEGACY PAYABLE OUT OE LAND in futuTo does not vest till the event happens, 834, 835. unless the postponement has reference to the convenience of the estate only, 835. or the testator declares it shall vest immediately, 835, 836. gift over on contingent death of legatee favors vesting, 836. provision for event of legatee's death in testator's lifetime has like effect, 836. legacy contingent if such be the intention, though payment apparently post- poned for convenience of estate, 837. where no time fixed, legacy generally payable immediately, 837. legacy payable within a stated time not contingent on legatees surviving that time, 837. distinction where legacy charged on a reversion, 837. legacy collaterally charged on land is subject pro tanto to rules applicable to each species of property, 837. 940 INDEX. VESTING, —continued. PEESONAL LEQAOT payable infuturo vests instanter, 837. secus where futurity annexed to substance of gift, 837. unless the payment only as distinguished from the gift is future, 837. direction to distribute at a given age or time does not suspend the vesting, 837, 839. so of a direction to pay after certain acts, not personal to legatee, have been per- formed, 839. unless contrary intention appear by the will, 839, 840. immaterial whether direction to pay precede the gift, or vice versa, 839. direction to pay in an uncertain event (as maniage) suspends the vesting, 840. where gift is contained only in direction to pay at a future time, the legacy is contingent, 840. unless the payment be postponed for the convenience of the fund only, as where there is a previous life-interest, 841. whether gift of principal for the first time at a future period, the preceding gift being of the income only, is contingent, 843, note (r). new words of disposition in ulterior gift do not postpone vesting, 842, 843. gift of intermediate interest to legatee vests an otherwise contingent legacy, 843. gift of intermediate interest vests a legacy payable in an uncertain event, 843. allowance for maintenance of legatee out of interest does not make legacy vested, 844. secus if whole interest devoted to maintenance of legatee, 844. gift of a yearly sum equal to the interest, but not given as interest, does not vest legacy, 845. whether gift of whole interest during part of intermediate time vests the legacy, 845. where principal and interest blended in future gift, the whole is contingent, 848. but the blending must be clear, 848. simple bequest not made contingent by direction to accumulate interest during minority, 848. SEVERANCE of a legacy from general estate favors vesting, though gift be in di- rection to pay, 849. legacy at a given age vests if intermediate interest be disposed of to another per- son (Boraston's Case applied to personalty), 849. legacy at a future time not vested by direction to accumulate interest and pay it at the same time, 849. effect of express direction when legacy shall vest, 849, 850. (See "Vest.") of EESIDITART BEQUESTS, courts favor the, 851. residue vested under clear gift not made contingent by subsequent equivocal terms, 851, 862. but where prior gift is equivocal, subsequent terms may be explanatory, 852. equivocal gift to class when consisting of several made contingent by clearly con- tingent gift to class when consisting of one, 853. equivocal gift vested by analogous context, 853. equivocal teims made to constitute a vested bequest by use of clearly contingent terms in same will, 853. effect of exception of designated individuals from apparently contingent bequest, 853. bequest is contingent where the event is involved in the description of the leg- atee, 856. INDEX. 941 VESTITSG,— continued. but a bequest " as and when '' legatees attain a certain age may be explained by context, 855. gift on attaining certain age may be contingent, 856. effect of a gift over in the alternative event, 857, 858. where the gift over is in the alternative qualified by an additional contingency, 860. where real and personal estate included in same gift and real estate is held vested, the personal estate is also held vested, 858, note (g). contingent interest may be transmissible, 861. bequest to A. if B. die without children vests in A.'s representatives if the event happen after A.'s death, 861. ^ so a bequest to children when youngest attains twenty-one vests in each child as he attains twenty-one, though he die before period of division, 861, 862. contra if the bequest is of shares to each child nominatim, 863. {See Contingency.) VIDELICET, 759 et seq. VIRGINIA STATUTES. {See Statutes of the Different States.) VOID, part of will may be, and part not, 36. DEVISES AND BEQUESTS out of proceeds of trust for conversion, who entitled to, 634 et seq. how affected by 1 Vict. c. 26 . . 644. not included in general residuary devise before that statute, 646. seous since that statute, 651. (See Acceleration ; Lapse ; Uncertainty. ) W. WASTING, interests when to be converted, 613. right of tenant for life to income or corpus of, 619. {See Conversion ; Specie. ) WEST VIRGINIA STATUTES. {See Statutes of the Different States.) "WHEN," effect of, in a devise, 806, 810. WIDOW, what bars or puts her to election in respect of distributive share of personalty, 467. when put to election in respect of her dower, 458 el seq. (See Election.) when and how far excluded by terms of declaration in will or settlement, 467, note {p), 468. (See Dower ; Election ; Feme Coverte ; Freebench ; Wife.) 942 INDEX. WIDOWHOOD, construction of gift over after devise during, 803. (See Vesting.) WIFE, of alien enemy may make a will, 42. of felon, 40. gift to, refers to wife at date of will if there be one, 324, 325. if there be none, what wife it refers to, 325. surrender of copyholds supplied in favor of, 664. (See Feme Covekte; Separate Use ; Widow.) WILL, form of, 17 et seg. in form of deed, 18-21. of articles of agreement, 19. and deed together testamentary, 19. whether it includes codicil added thereto, 117. WISCONSIIT STATUTES. {See Statutes of the Different States.) WISH, words expressing, when they create a trust, 385 et seg. WITNESS TO WILL, effect of gifts to, in a will of freeholds, 71. in a wiU of personalty, 72. of copyholds, 72. where the witness is supernumerary, 72. gift to husband or wife of, 73. may take under codicil and vice versa, .72. may sign wiQ for testator, 79. need not be in same house or room as testator, 88. credibility of, 90. felon may be, 112. whether lunatic or idiot may be, 112, 113. what a good signature of, 82, 83. to will under 1 Vict. c. 26, need not be credible, 73, 112. {See Acknowledgment ; Attestation ; Credibility ; Presence ; Sisnatuee. ) WOEDS, what, carry real estate, 716. (See Real Estate; also the Particular Word in Question.) "WORLDLY GOODS," 748. WRITINGS not testamentary, in what way they may affect will, 31 note (t). END OF VOL. I.