#: V OJnntpU ICaui i>rl|nnl IGibtary I Cornell University Library KD 1509.P26 A treatise on the law of wills embod' 3 1924 022 208 122 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022208122 TREATISE THE LAW OF WILLS, EMEODTINQ THE LATEST DECISIONS IN RELATION THERETO ; %\\ Jl^^kH^, CONTAINING THE SUCCESSION DUTY ACT. BY AETHUR PARSONS, (ST. JAMES'S STREET, NOTTINGHAM,) OKE OF THE ATTORNEYS OF HEK MAJESTY'S COITRT OF QTJEEn's BENCH, ETC., ETC. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, No. 197 CHESTNUT STREET. 185 5. KITE i TTALTON. CONTENTS, The pages referred to are those within brackets [ CHAPTER I. OF WILLS AND TESTAMENTS GEifEEALLT. Definition of term Will, What 1 Vic, c. 96, repeals, Infants, .... Married Women, .... How a Power is well executed since 1 Vic, c 26, Traitors and Felons, .... Lunatics, .... Felo-de-se, .... Fear and Compulsion, What persons may dispose of their estates by Will, Copyholds, how devised. Special Occupancy, How general devise construed, How Wills require executing, . Acknowledgment of signature by Testator, Construction of words "foot or end thereof," and effect of 15 and 16 Vic c. 24, Practice where no attesting clause. Where attesting witnesses cannot be found, Publication, .... Who may be witnesses. 9 11 11 12 14 2,16 17 18 18 19 CHAPTER 11. WILLS OF SEAMEN AND SOLDIERS, NUNCUPATIVE WILLS, AND WILLS OF FOREIGNERS. How Soldiers and Seamen may dispose of their personal estate. Statutes relating thereto, .... How Petty Officer or Seaman's Will requires executing, Wills made by prisoners of war. Requirements before acting on Seaman's Will, Executors obtaining Probate of Seaman's Will, Of obtaining Administration to intestate Petty Officer or Sea Nuncupative Will, ..... Informal Wills by Seamen, . . . Terms Mariner and Seamen, .... Foreigner, Will of . Domicile, ...... How proved, ..... Domicile of the parent, .... ite, . . 20 n. 20 , . 21 23 , . 24 25 a-an, . 26 27 . 28 28 , . 29 29 . . 29 30 PAB80NS ON THE LAW OF WILLS. CHAPTER III. THE CONSTK0OTION OF WILLS GENEEALLT. General Rules applicable to the construction of Wills, Extrinsic Evidence, when admissible to remove Ambiguities, Parol Evidence, when admissible to explain Ambiguities, " Contrary intention," with reference to 24th section of 1 Vic, c. Estate by Implication, ..... Terms "legal representatives," .... Doctrine of Cypres, ..... Construction of words "die without issue," What words generally create a Trust in a Will, Estates Tail, ....... . 32 35 . 39 20, 40 . 40 43 . 44 45 . il , 48 CHAPTER IV. Meaning of the word, .... Must refer to former will, What the term "Will" includes, when so referred to, Construction given to technical words, . Different instruments written on the same paper, . As to the effect of revocation by a Codicil, How far re-execution of a Will extends, . Effect of re-publication of a Codicil, . How informal Codicil may be rendered valid, . 50 50 . 50 50 . 52 53 . 55 55 . 55 CHAPTER V. THE REVOCATION OF WILLS. The Power, ..... Presumption of Law where Will is not forthcoming, Implied Revocation, .... As to alteration made in Will after it is executed. Implied revival of another Will, . How revoked Will revived, Revocation by cancelling, .... 58 58 59 59 60 63 66 CHAPTER VI. DONATIO MORTIS CAUSA AND LEGACIES. How a donatio mortis causa differs from other Legacies, Will not prevail as against Creditors, . As to Cheques and Bonds, .... Legacies, ...... As to Lapsed Legacies, As to Vested and Contingent, . Conditions annexed to Bequests, . Accumulative Legacies, Thellusson Act, .... Ademption of Legacies, Within what period Legacy is recoverable. When Interest is payable on Legacies, Who are incapable of taking Legacies, 68 70 VO 71 73 74 76 78 79 82 86 CONTENTS. CHAPTER VII. EXECUTORS. Appointment of Executors, His duties, ...... Actions by, .... . Actions against, ..... As to tlie order of the payment of a Testator's debts, Executor de son tort, .... Devastavit, ..... Eelief afforded Executors and Trustees, As to the Residue of a Testator's effects, Statute and Table of Distributions, Meaning of ^er capita and per stirpes, . Customs of London and York, CHAPTER VIII. ADMIKISTRATION". When deceased dies wholly intestate, "When Administrator's claim accrues. Mode of taking out Administration, Administration Bond, Special Administration, Administration durante minorUate, " durante absentia, " pendente lite, " ad colligenda bona, " to a creditor, " to the Crown, . " de bonis non, 81 87 91 95 96 101 102 102 105 107 109 110 111 113 114 114 115 117 117 119 119 119 120 121 CHAPTER IX. ASSETS AND CHATTELS REAL. Legal Assets, ....... Equity of Redemption, how considered, Executors may convert Assets, . . . . Operation of 11 Geo. and 1 Wm. IV., c. 47, Executor paying money upon erroneous construction of Will, Advowsons, ...... Jugment of Assets quando acdderint, . . . . Marshalling Assets, ..... Several funds and several claimants, . . . . Operation of 3 and 4 Wm. IV., c. 106, with regard to Assets, Chattels Real, ....... How descend, ...... Heir Looms, ....... Not devisable from the inheritance, 122 122 123 124 126 126 126 127 127 128 130 130 130 131 CHAPTER X. CHARITABLE AND VOID BEQUESTS, AND THE ADMINISTRATION OF CHARITABLE TRUSTS. 133 . 134 135 . 135 Statutes of Mortmain, ..... Exceptions therefrom, ..... Secret trust to avoid Statutes, .... Interest in land, whether devisable for charitable purposes, PARSONS ON THE LAW OP WILLI Shares in Incorporated Companies, Directions in Will as to payment of charitable legaqies, Bequest to Attorney preparing Testator's Will, " for improvement of real estate belonging to charity, " contrary to Christian religion, " Monastic, ...... As to the abatement of Charitable Legacies, . Charity Estates leased, ..... Administration of Charitable Trusts, . Proceedings under Sir J. Romilly's Act, . Abstract of 16 & 17 Vic, for the better administration of Charities, 136 136 isr 138 139 140 140 140 141 141 143 TABLE OF CASES CITED. The pages referred to are those within brackets [ J. A. Ayrey r. Hill, Attridge in re, Austen in re, Arnold t. Arnold, Adams y. Wilkinson, Allen V. Callow, Augustain v. Martin, Angelo Major's case, Ashton T. L. Langdale, Att'y Gen. v. Gains, Att'y Gen. v. Napier, Att'y Gen. v. Laws, Att'y Gen. v. Pilgrim, Att'y Gen. v. Robins, Att'y Gen. v. Stewart, B. Bransby v. Haynes, Brice in re. Brown in re, Bailey in re, Beadle in re, Brown v. Doe, Biddies t. Biddies, Briggs T. Penny, Blacket v. Lamb, Barley v. Portarlington E., Banbury t. Banbury, BurtenshawT. Gilbert, Burrell t. Baskerfield, Bartholomew's Trust case. Brown t. Peck, Beech v. Vincent L. St. Banbury v. Hewson, Buckley t. Barber, Bangham Exparte, Bangley in re, Butler in re, Brown v. Farndell, Brenchley v. Lynn, 112 1 15 Briggs V. Hartley, 139 C. 28 Church's Will re. 5 41 Casement v. Fulton, 18 52 Cooper y. Bocketi, 18 82 Campbell t. Brownrigg, 33 84 Cole V. Scott, 40 104 Coppin T. Dillon, 54 136 Collyer t. Ashburner, 85 140 Crickett t. Dolby, 85 30 Charlesworth t. Manners, 88 139 Caton T. Rideout, 90 140 Collins T. Crouch, 100 140 Croyden's Trust, 105 141 Chapel V. Chapel, 116 Clark T. Bates, 126 Carberry t. Cox, 140 3 D. 12 Donaldson in re. 28 14 16 16 Davidson v. Proctor, 44 De Bouneval v. De Bouneval, 30 Dorset y. L. Hawardees, 37 38 41 47 48 Draper v. Hitch, 38 Doe T. Ellis, 49 Dyke v. Walford, 120 56 B. 57 66 Evans v. Davis, 42 75 Edwards v. Edwards, 45 76 Early v. Middleton, 52 76 Ennes v. Smith, 56 81 Evans v. Saunders, 60 93 Evers v. Ward, 62 101 Edwards v. Jones, 69 105 Ellis V. Maxwell, 75 105 Edwards v. Tooke, 81 105 Earle v. Wilson, 86 107 Evelyn v. Evelyn, 108 PARSONS ON THE LAW OF WILLS. Frere t. Peacock, 6 Farquhar in re, 28 Ford v. Ford, 34 Fawcett t. Jones, 3T Ford V. Ossulstons, 49 Ferraris t. Hertford, 50 Freakley v. Fox, 96 Fowler in re, 120 G. Gout v. Zimmerman, 30 Gompertz t. Gompertz, 33 Gordon t. Atkinson, 43 Godfrey V. Hughes, 11 Graves in re, 119 H. Harris in re, 13 Hudson T. Parker, 15 Helling in re, 16 Harrison v. EMn, 16 Hannam in re, 19 Hayes in re, 29 Harrison v. Grimwood, 34 Huthwaite v. Doe, 35 Horae v. Colman, 43 Hincliffe v. Westwood, 44 Haynes v. Hill, BO Halliwell in re, 54 Hook y. Laslett, 54 Hale y. Tokeloye, 61 Eooton y. Head, 63 Hedges v. Hedges, 10 Hudleston y. Gouldsbury, 72 Hodges V. Peacock, 82 Harrison v. Asher, 83 Hewitt y. Morris, 84 Hopwood y. Whaley, 88 Hodgkinson y. Gilbert, 90 Hay y. Willonghby, 115 Harris in re, 104 Hand in re, 116 Howell y. Metcalf, 119 Haynes v. Forshaw, 128 I. Ingoldby y. Ingoldby, 55 J. Jennings y. Bally, 40 Jowitt y. Beard, 64 Jackson y. Hamilton, IS K. Knight y. Richards, 57 Kirkenbright y. Kirkenbright, 67 Kelly y. Murphy, 101 Keilway v. Keilway, Kemp in re, Kendall y. Grainger, L. Long y. Aldred, 108 121 137 4 Luifenun in re, 18 Littledale in re. 52 Lewis in re. 53 Leigh y. Norbury, Lomax v. Lomax, 64 124 Loyed y. Loyed, Longstaff y. Remington, 138 139 M. Munro y. Munro, 30 Maltus V. Maltus, 30 Mounsey y. Blamire, Mainwaring y. Beeyor, Mapp y. Elcock, Moneypenny y. Veering, Medleycott y. Assheton, Matson y. Magratb, Miller y. Miller, 37 43 43 44 54 65 69 Meyrick y. Anderson, 101 Morgan y. Thomas, Maskeline y. Harrison, 113 119 Morgan y. Earl of Abergayenny, Miers v. Perigal, Merchant Tailors' Company, Magdalen Charity case. 130 136 140 142 N. Nash y. Morley, 137 0. Owen y. Penny, Offley y. Best, Ousley V. Anstrusther, 43 112 124 P. Playne y. Scriven, Philips v. Barker, Perry in re, Plenty y. West, Payne v. Trapps, Pennefather v. Bury, Plucknett v. Kirk, 16 38 53 60 6/ 72 122 Q- Quennel y. Turner, Queen The v. Fox, 11 91 E. Roddy. Lewis, Began in re, Ryder in re, 7 15 ■ 19 TABLE OF CASES OITED. Richardson v. Watson, Reeve in re, Ryall \. Hamane, Roe d. Snape v. Nevill, Ravenscroft in re, Reddel t. Dobree, Russell V. Dixon, Ratcliff V. Winch, Robinson t. Bell, Robinson t. Geldard, S. Steadmen v. Powell, Smee v. Bryer, Selwood T. Midway, Stride v. Sanford, Skinner v. Ogle, Smith T. Oliver, Salmon v. Green, Sawrey v. Rumriey, Stuart V. Westby, Stiles V. Guy, Smith T. Smith, Sharp T. Sherman, Stiles ¥. Guy, Stanley v. Stanley, Spencer in re, Sawley v. Gower, Sturge v. Dimsdale, Shadbolt v. Thornton, T. Temple v. Wallser, Tribe v. Tribe, Tompson re, Thorne v. Rooke, Targart t. Hooper, Thyane v. Stanhope, Tate v. Hibbert, Thyne v. Glengall, Thornton in re. 37 39 42 61 6T 70 79 93 119 140 3 16 34 53 55 137, 74 75 78 84 88 94 94 102 108 112 122 137 139 3 17 17 13 54 66 71, 69 83 115 Turner v. Maule, Tong V. Robinson, Vangh in re, W. Welby V. Ponlton, Wright V. Shelton, Wilson V. Eden, Walker v. Tipping, Winter t. Winter, Walker v. Camden, Wilson T. Eden, Webb v. Woolly, Wilkinson v. Adams, Wells T. Wells, Wade T. Nazer, Welch V. Phillips, Wakott V. Ochterlony, Williams t. Williams, Wilson V. Wilson, Ward V. Turner, Williams T. Powell, Waring in re. Wise V. Metcalf, West in re, WooUey v. Clark, Wood in re, West T. Wilby, Wilmot in re, Westfaling v. Westfaling, Way T. East, Walker v. Milne, Williams v. Kershaw, Y. Young V. Skelton, Young V. Brown, 121 126 65 117 33 33 34 40 43 56, 47 47 50 64 65 68 59 61 63 69 90 90 93 104 114 115 117 119 126 135 136 137 115 119 May, 1S55— 21. WILLS AND TESTAMENTARY DISPOSITIONS. *CHAPTEK I. OF WILLS AND TESTAMENTS GENERALLV. Definition of term Will. What 1 Vic, c. 26, repeals. Infants. Married Women. How power is well executed since 1 Vic. c. 26. Collard v. Sampson. Traitors and Felons. Lunatics. Fear and Compulsion. What persons may dispose of their Es- tates by Will. Copyholds, how devised. Special Occupancy. How general devise to be constructed. How Wills require executing. Acknowledgment of Signature by Tes- tator. Construction of words foot or end thereof, and effect of 15 and 16 Vic, c. 24. Practice where no attesting clause. Where attesting witnesses cannot be found. Publication. Who may be witnesses. A WILL or testament is the legal declaration of a person's intentions, which he directs to be performed after his decease. The word will, how- ever is more strictly applicable to an instrument for the disposition of a person's real estate, although it is synonymously used with the word testament, which is properly applicable to an instrument for the dispo- sition of personal estate. The passing of the 1 Vic, c. 26, made a great alteration in the law relating to wills, more especially as regards the formalities to be observed in their execution; and the cases that have been decided upon the construction or wording of the Act, tend to *show that it is ■- ,5^ -i imperative to comply strictly with its provisions : the rigidness L J of which, however, so far as relates to the position or part of the will where the testator was required to place his name, have been ameliorated by the 15 and 16 Vic, c 24, which has a retrospective effect with regard to those wills already made, where administration or probate has not been already granted or ordered by a Court of competent jurisdiction. 12 PARSONS ON THE LAW or WILLS. It not unfrequently occurs that persons delay giving instructions for their wills until they are too seriously indisposed to be troubled with the suggestions of their legal advisers; thus it is that ill-matured testa- mentary dispositions are executed which lead to litigation and expense, besides causing endless dissatisfaction amongst the parties interested therein. It is well known that no document is more difficult to draw in a proper technical manner and clear of ambiguities than a will, the proof of which is evinced by their construction occupying so great a portion of the time of our judicial tribunals. And it must be observed that now written instructions for a will is not a testamentary paper whereon probate can be obtained, although the testator die before there is time to prepare a regular will, unless such instructions are ezecuted in the form prescribed by the Statute. The 1 Vic, c. 26, has greatly simplified the law relating to wills, but it does not extend to wills made prior to the 1st of January, 1838, consequently the old law is still in force vr'ith regard to those made prior to that date — it repeals the 32 Henry VIII., c. 1; 84 & 35 Henry VIIL, c. 5; 10 Car. I., s. 2, c. 2; (1) 29 Car., c. 3, s. 5, 6, 12, & 19 to 22; of the Statute of Frauds, 29, c. 2 & 3 ; 7 William III., c. 12 (1) s. 14 of 4 & 5 Ann, c. 16; 6 Anne, c. 10; (1) s. 9 of 14 Geo. II. c. 20; 25 Geo. II., c. 6, except so far as relates to Her Majesty's Colo nies and Plantations in America; 25 Geo. II., c. 11; (1) and 55 Geo III., 0. 192. As a general rule all person may make a will, but nevertheless there are certain persons precluded therefrom ; or whose wills are inoperative r*Q n ^y virtue of some statute, or in consequence of *their having dis- •- -I possessed themselves of their former inherent power by some act of their own — of the former may be included infants, of which it is pro- posed shortly to refer to — of the latter may be considered traitors, &c., and women who have married without reserving any power, which they might have done. Thus wills made by persons under twenty-one years of age are invalid, and such persons are declared incompetent to make a will by the 1 Vic, c. 26. The law has thus fixed upon that age as being the proper time for a person to be empowered to dispose of his estates and chattels, however irreconcileable it may appear to be to the other prefixed periods whereby persons are made responsible for more serious acts, as in criminal cases, where it hath been held and is established as law that some persons may have as much cunning at the age of nine years as others have at fifteen, and they are just as amenable to the laws of the country accordingly. Married women, as regards their ability to make a will, are left ex- pressly to the operation of the old law. The Queen Consort may dispose of her chattels as if she were a feme sole,(a^ but primd, facie a married woman has no title to make a will, and if she claims a right she must show her title, because such right is contrary to the general tenor of the law ;(6) but a title or right for a (a) 2 B. C. 498. (J) Temple v. Walker; 3 Phill., 403 WILLS GENERALLY. 13 married womari to make a will may be reserved to her by a settlement or otherwise, as executrix of another, and in such cases she is empowered to make a Will without the consent of her husband, (c) All wills executed in pursuance of a power require to be executed in conformity with the 1 Vic, e. 26 — and this must be observed although it may not be in the form required by the donor of the power — thus the additional or other form of execution or solemnity required by the creator of the power will be inoperative. A testament made during coverture is void, though the wife outlive the husband, but not if she confirm the same after her *husband's rj^. -i decease — which should be by a re-exeeution according to the Wills L J Act ; and the will of a married woman, made when a feme sole, does per se revive on the death of her husband. (- J he perfectly comprehended the contents thereof. (t) Redd V. Lewis; 2 Lee, 177. [k) Ayrey t. Hill; 2 Add., 209. 16 PARSONS ON THE LAW OF WILLS. FELO-DE-SE. If a man wittingly and willingly kill himself, his testament is void both as regards the appointment of any executor and as to any legacy of his goods or personalty, for they are forfeited to the Crown. A joint tenant of land cannot make a will of his part, for upon his death his share goes to the survivor. FEAR AND COMPULSION. There is another cause that will preclude validity attaching to a will under certain circumstances, namely, when a person makes a will under compulsion or fear, for in both cases it would be anything hut the voluntary intention of the testator, which is the very essence of a will ; but a will made under such circumstances, being afterwards confirmed by a voluntary re-execution in compliance with the statute would be valid, and wills obtained by importunity and fraud are also void. WHO MAY DISPOSE OF HIS ESTATE BY WILL. With the exceptions above mentioned, it is now lawful for any person to dispose of his real and personal estate by will, whether he shall be entitled to the same at law or in equity at the time of his death, and which if not so disposed of would devolve upon the heir-at-law or customary heir of him, or if he became entitled by descent of his ancestor or upon his executor or administrator; and the power of disposition extends to all real estates of the nature of customary freehold or tenant-right, or customary or copyhold, notwithstanding the testator may not have sur- rendered the same to the use of his will, or notwithstanding that being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of r*QT 3. will, or otherwise could not *at law have been disposed of by L -I will, if the 1 Vic, c. 26 had not been passed, or notwithstanding that the same in consequence of there being a custom, that a will or a surrender to the use of a will should continue in force for a limited time only or any other special custom, could not have been disposed of by will according to the power contained in the last-mentioned act — if the act had not been made — and also to estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant-right, customary or copy- hold or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament, and also to all contingent executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same may become vested, and whether he may be entitled thereto under the instrument by which the same were created, or under any disposition thereof by deed or will — and also to all rights of entry for conditions broken and other rights of entry, and also to such of the WILLS GENEEALLT. 17 same estates, interests and rights respectively, and other real and per- sonal estate as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of the will. So that a will executed after the 1st of January, 1838, takes effect from the death of the testator, and will pass property acquired after the date of the will, and copyhold land is devisable in the same manner as freehold. Where any real estate, of the nature of customary freehold or tenant- right, or customary or copyhold, might, by custom of the manor of which the same is holden, have been surrendered to the use of a will, and the testator has not surrendered the same to the use of his will, no person entitled or claiming to be entitled thereto by virtue of such will shall be entitled to be admitted, except upon payment of all such stamp duties as would have been due in respect of the surrendering of such real estate to the use of the will — or in respect of presenting, registering, or enroling such surrender, if the same real estate had been surrendered *to the use of the will of such testator, and where the testator r-n^-tn-, was entitled to have been admitted to such real estate, and might, L J if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate, in consequence of such will, shall be entitled to be admitted to the same real estate by virtue thereof, except on payment of all such stamp duties and fees as would have been due in respect of the admittance of such testator to such real estate, and also of all such stamp duties and fees as would have been lawfully due in respect of surrendering such real estate to the use of the will, or of presenting, registering, or enroling such surrender, had the testator been duly admitted to such real estate and afterwards surrendered the same to the use of his will; all which stamp duties and fees are to paid in addition to the stamp duties and fees, fine or sums of money payable on the admittance of such person so entitled, or claiming to be entitled to the same real estate as aforesaid. Where any real estate, of the nature of customary freehold or tenant- right, or copyhold, is disposed of by will, so much thereof as relates to the disposition of the estate shall be entered on the court rolls of the manor — and when any trusts are declared by the will, it is not necessary to enter the declaration of such trusts, but to state in the entry in the court rolls that such real estate is subject to the trusts declared by such will.(?) And in those cases where real estate could not have been dis- posed of by will, the same fine is to be paid and rendered by the devisee as would have been due from the customary heir in case of the descent of the same real estate — and the lord has the same remedy for recovering such fine, heriot and services, as he is entitled to for recovering the same from the customary heir in case of a descent, (m) If no disposition by will is made of any estate j)ur autre uie of a free- hold nature, the same is chargeable in the hands of the heir as if it [l) 1 Vic, c. 26, s. 5. (m) Ibid. 18 PARSONS ON THE LAW OF WILLS, shall come to him by reason of special occupancy, as assets by descent, as in case of freehold land in fee simple. P ^- , -. *Special occupancy, be it observed, is where an estate is granted L J to a man and his heirs during the life of cestui que vie, and the grantee die without alienation, and while the life for which he held continues, the heir will succeed and is called in law the special occupant. In those cases where there is no special occupant of any estate pur autre vie, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant, and if the same shall come to the executor or administrator, either by reason of a special occupancy or otherwise, it shall be assets in his hands, and must be applied in the same manner as the personal estate of the testator or intestate. A general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in his will or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary 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 general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (^as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.(«) And where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dis- pose of by will in such real estate, unless a contrary intention shall appear by the will.(o) But copyholds will not pass under a devise " of all my freehold here- ditaments and estates in S.," though the freeholds and copyholds were to some extent intermixed and usually let together. (^) r *i 9 T *Where any real estate (other than or not being a presentation L J to a church) shall be devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold shall thereby be given to him expressly by impli- cation. (§■) And where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate or in the surplus rents and profits thereof shall not be given to any person for life, or such beneficial inte- rest shall be given to any person for life, but the purposes of the trust (n) 1 Yic, c. 26, s. 27. (o) Sec. 28. (p) Queuael v. Turner; 13 Beav. (q) 1 Vic, c. 26, s. 31. WILLSGENERALLY. 19 may continue beyond the life of such person, such devise shall be con- strued to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. v HOW WILLS REQUIRE TO BE EXECUTED AND ATTESTED. All wills (with the exception of soldiers in actual service and sea- men at sea) must be in writing, and "signed at the foot or end thereof by the testator or some other person in his presence and by his direction ; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses must attest and subscribe the will in the presence of the tes- tator, but no form of attestation is necessary. The statute does not say that the name of the testator shall appear at the foot of the will, and therefore, where a will was executed by the mark of the deceased, although her name did not appear on the face of the instrument it was determined that this was sufficient, there being affidavits to account for the will having been signed in that manner, (r) *And where the testator signed his name immediately below i- *-i o -i the attestation clause, which was written close to the end of the L J will, it was determined to have been duly signed at the foot or end thereof ;fs) but it having been found that in construing the words " foot or end" thereof strictly, many hardships were likely to arise by the defective execution of wills, it was deemed advisable to introduce the 15 & 16 Vic, c. 24, whereby after reciting the 9th section of the Wills Act, that no will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; enacts that 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 the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be afiected 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 con- cluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow, or be after or under the clause- of attestation, either with or without a blank space intervening, or shall follow, or be after or under, or beside the names, or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page, or other portion of the paper or papers containing the will, whereon no clause, or paragraph, or disposing part of the will shall be written above the signature, or by the ciroum- (r) In re goods of E. Brj-ce ; 2 Curt., 325. [s] In re Harris; 13 Jur., 285. 20 PARSONS ON THK LAW OP WILLS. stance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper on which the will is written, to contain the signature ; and the enumeration _ of the above circumstances shall *not restrict the generality of L J the above enactment ; but no signature under the said act, or this act, shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. 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 consequence of the defective execution of such will, or where the property, not being within the jurisdiction of the Ecclesiastical Courts, has not been pos- sessed 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 com- petent jurisdiction, in consequence of the defective execution of such will. The first case decided under the provisions of the above was in the goods of Mary Brown, 16 Jur., 602 — in which the deceased left a will in her own handwriting, dated May, 1850, and written on six pages of letter paper, concluding nearly at the end of the sixth page, where, as well as at the bottom of each preceding page, she had written her name, but there not being room on the sixth page for an attestation clause, that clause was written on the top of the seventh page, and the testatrix again wrote her name there — the signature on the sixth side was made before the execution, but that on the seventh side was the only one made in the presence of or seen by the attesting and subscribing witnesses — motion for probate was rejected on 4th Dec., 1851 — it was, however, determined to come within the meaning of the 15 & 16 Vic, c. 21, and probate was accordingly decreed. (<) The signature to a will must be made or acknowledged by the testator ^^^. -. in the presence of two or more witnesses present at the *same L J time, and such witnesses shall attest and subscribe the will in the presence of the testator, (m) There are cases which show that an acknowledgment of the signature have been considered as a sufficient attestation under peculiar circum- stances — thus it has been held sufficient where a will was signed in the presence of one witness only, but the signature afterwards acknowledged in the presence of three attesting witnesses. (■«) The acknowledgment may be expressed in any words which will ade- quately convey the idea;(tfi) if the signature be proved to be then existent, no particular form of expression is required either by the word " acknow- ledge" or by the exigency of the act to be done. It would be quite suf- (() It thus appears, the mere rejection of a motion for probate does not amount to a decree against the paper, which might be pronounced and propounded for afterwards. (m) 1 Vic, c. 26, s. 9. («) Re C. Regan ; 1 Curt. 909. {w) Hudson T. Parker; 1 Robert, 25. WILLS GENERALLY. 21 ficient to say " That is my Will" — the signature being there and seen at the time — for such words do import an owning thereof; indeed it may be done by any other words which naturally include within their true meaning, acknowledgment and approbation. The Court, in construing whether the acknowledgment of the signa- ture is sufficient, is governed in a great measure by the conduct of the deceased and the circumstances of the case — for where the court is satis- fied, from the conduct of the deceased and the circumstances of the case that the signature was written previous to the witnesses signing their names, the deceased having read aloud the words " This is the last Will and Testament of me, C. B.," and having himself produced the will and told the witnesses that it was all in his own hand-writing, the whole transaction being in the most open manner the will was pronounced for, and the party opposing it not allowed costs, (x) So the statute does not require the testator to sign the will, it requires it to be signed by the testator or by some other person in his presence and by his direction ; and where some other person signs a will for a testator, the signature should be preceded by the words " Signed on behalf of the testator, in his presence and by his direction;" and such signature being made *by one of the attesting witnesses, by the direction p *-| p -j of the testator and in his presence and that of the other attesting L -I witness, was determined valid and not repugnant to anything contained in the 1 Vic, c. 26.(j/) INTERPRETATION OF THE WORDS FOOT OR END THEREOF. The words at "the foot or end thereof" are to be construed strictly and previously to the Wills Amendment Act — where the will terminated within an inch of the bottom of the third page, but the signature was on the fourth page, it was determined that the will was invalid, although the testatrix, at the time of the execution, explained to the witnesses why she so signed(z) — but it was held to be a good execution where the attesta- tion clause was written close to the end of the will and across the paper, and the testatrix signed her name on the same side but at some distance below the attestation clause(a) — but where the deceased was blind, and had signed her name some distance down the third side of a sheet of paper, the will itself being written on the first two sides, the court considered it under the circumstances, a compliance with the words signing at the foot or end. (6) The witnesses must actually subscribe their names as witnesses to the will, and also actually subscribe their names on the re-exeeution thereof, for the mere tracing the name over with a dry pen is not a subscribing within the act, but is a mere acknowledgment by the witness, and an insufficient attestation; re) but where a will made after the 7 Wm. IV. [x) In re J. Attridge ; 12 Law Times, 381. (y) Re J. Bailey; 1 Curt., 915. (z) Smee y. Bryer ; 13 Jur., 289 P. C. (a) In re Beadle ; 13 Jur., 4V8 P. C. (6) In re Helling; 13 Jur., 568 P. C. (c) Playne v.Scriven ; 13 Jur., 712 P. C. 22 PARSONS ON THE LAW OF WILLS. and 1 Vic, c. 26, came into operation, was attested by one witness in his own hand-writing, and he also held and guided the hand of the second witness who could not write or read ; and in this way the second wit- ness's name was written as attesting witness — the testator having desired the two to attest it, was held a sufficient attestation. (d) r *1 7 1 *The witnesses must subscribe their names in the presence of L J the testator and in each other's presence, and by the direction of the testator : which direction, it is presumed, may be considered com- plied with if the will is strictly otherwise executed according to the sta- tute, although the testator does not expressly desire the witnesses to attest his will if that intention can be collected from his conduct, and they do attest accordingly. It is advisable, however, in all cases, for the testator to expressly request the witnesses to subscribe their names as witnesses. The paper writing purporting to be the will of a person, must be duly executed as the will of such person — thus, where verbal instructions for a will were obtained from F. T., who was dying, by the personal sug- gestion and importunity of M. T., who directly afterwards wrote out the will and procured its execution, F. T. never spoke after the execution, but the evidence proved a certain degree of capacity at the time of exe- cution. M. T. and her near relatives took a large benefit under the will, and it was attested in the same room in which the deceased was. M. T. deposed that the deceased could see the witnesses sign their names, the witnesses deposed that she could not. It was held that the paper for which instructions had been obtained was not entitled to probate, and that the balance of evidence showed that it was not duly executed as a will.(e) Although no form of attestation is necessary, it is always advisable to insert a proper clause embodying such words as show that the will was executed by the testator in the presence of the persons who subscribed their names as witnesses, and that such persons were present at the same time, and that they subscribed their names as witnesses at the request of the testator and in his presence. And where there is not a full attestation clause, the court requires an affidavit from both of the attesting witnesses, to the effect that the requi- sites of the statute have been complied with//") r *i Q -I *The attesting witnesses must both be present, as well as the L J testator, when they subscribe ; and where a will signed in the presence of one witness, who thereupon subscribed his name as such, but some hours afterwards another witness was introduced, when the tes- tator, in the presence of both witnesses acknowledged his signature, and the second witness signed his name, and the first witness acknowledged his signature previously made, it was not deemed to be a due execution with the 9 sec. of 1 Vic. c. 26. (gr) Where the attesting witnesses are required and cannot be found, the court will grant a probate where it is shown that means have been taken (d) Harrison v. Elvin, 3 A. and Ellis, 117. (e) Tribe v. Tribe ; 13 Jur. 793 P. C. (/) Ee Gr. Tompaon, 1 Notes of Cases, 211 ; and see Waddilove, E. L. 345. Iff) Casement T. Fulton ; 5 Moore, P. C. C. 140. WILLSGENERALLY. 23 to find them, as by advertisement or otherwise ; thus a will, signed by the deceased with merely the words " signed in my presence," under which were the names of two witnesses, was admitted to probate without an affidavit as to the due execution ; neither of the witnesses being to be found, although means had been taken to discover them by ads'er- tisement.(A) A will will be pronounced for where the attesting witnesses difi'er as to whether the testator sign in their presence, where it can be gathered from their evidence that the testator acknowledged his signature in their joint presence. (i) AS TO THE PUBLICATION OP A WILL. Every will executed according to the provisions of the 1 Vic, c. 26, is valid without any further publication thereof; and if any person "irho 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 wit- ness to prove the execution thereof, the will will not be invalid on that account. And any person attesting the execution of a will, to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment (except directions for payment of debts) shall be given or made, such devise, legacy, estate, gift or *appointment, is, so far p jiq -i as concerns such persons attesting the execution, or the wife L J or husband of such person, or any person claiming under such person, or wife, or husband, utterly void, and the person so attesting is to be admitted as a witness to prove the execution of the will or the validity thereof, notwithstanding such devise, gift, or appointment. Thus the attesting witness to a will is deprived of taking any legacy or beneficial interest under the will — it must be a strictly beneficial interest that he takes under the will to come within the meaning of the above section ; and it has been held(A;) that the universal legatee in trust was not barred from taking administration with the will annexed, since the interest he took was merely of an equitable nature. It thus appears that any person of sound mind may be a good witness to a will ; and a will, once duly executed and attested in compliance with the statute, will not be invalid in consequence of anything subsequently done in error and by mistake. (Z) A creditor is specially mentioned to be a good witness, and it has been held that a felon is not precluded. Executors of a will are also admissible to prove the execution thereof on a suit instituted as to its validity. (h) In re M. E.LuffeQun ; 5 Notes of Cases, 183 P. C. (i) Cooper v. Bocketi ; 4 Moore, P. C. C. 419. {k) In re J. Ryder ; 2 Notes of Cases, 462 P. 0. [1) Re Hannam ; 14 Jur., 558, P. C. 24 PARSONS ON THE LAW OF TTILLS. [*20] CHAPTER II.* WILLS OF SEA5IEX AND SOLDIERS, NUNCUPATIVE WILLS, AND WILLS OF FOREIGNERS. How Soldiers and Seamen may dispose of their personal estate. Statutes relating tliereto. Nuncupative Will, when valid. Informal Codicil by Seaman. Will of Minor, a Soldier in East India Company's Service. Term " Mariner and Seaman." Foreigner. Will of Foreigner made in a foreign country, disposing of property here. Domicile. How proved. Children's Domicile. The old law, that is, the law as it existed prior to the 1 Vic, c. 26, is still in operation with regard to the wills of soldiers in actual military service and seamen at sea, and such persons may dispose of their per- sonal property accordingly. The old law, however, was regulated by several enactments,(o) which also consolidates the laws relating to the pay of the royal navy : by which no will made by any petty officer, or seaman, or non-commissioned officer of marines, before his entry into his majesty's service, is valid to pass any wages or other moneys payable in respect of service in the navy, nor is any letter of attorney made by any such person, who shall be or shall have been in the said service, or by the widow, next of kin, executors or administrators of any such person, valid or sufficient to entitle any person to receive any such wages or other moneys, unless such letter of attorney is therein expressed to be revocable. To validate any will or letter of attorney made or to be made by any petty officer or seaman, non commissioned officer of marines, who is or has been in the naval service, it must contain the name of the ship to which the person executing such will belonged at the time, or to which r/tni -1 he last belonged; and such "letter must also, if made by an exe- L J cutor or administrator, contain the name of the ship to which his or her testator or intestate last belonged, and also, in every case, a full description of the degree of relationship or residence of the person or persons to whom or in whose favour, either as attorney or attorneys, executor or executors, the same shall be made, and also the day of the month and year, and the name of the place when and where the same shall have been executed. HOW SUCH PETTY OFFICER OR SEAMAn'S WILL IS TO BE EXECUTED. The will or letter of attorney, to be valid, requires to be executed and attested in manner following, viz. : in case any such letter of attorney, or will, shall be made by any petty officer, or seaman, or non-commis- sioned officer of marines, while belonging to and on board of any of his majesty's ships, as part of her complement, or borne on the books thereof (a) 11 Geo. lY., and 1 Wm. IV., c. 20, s. 48. WILLS OFSEAMEN, ETC. 25 as a supernumerary, or as an invalid, or for victuals only, the same must be executed in the presence of the captain, who must also attest the same, (or in his absence) by the commanding officer for the time being ; and who, in that case, must state, at the foot of the attestation, the absence of the captain at the time and the occasion thereof ; and in case of the inability of the captain, by reason of wounds or sickness, to attest any such will or letter of attorney, then the same must be executed in the presence of and attested by the officer next in command, who must state at the foot of such attestation the inability of the captain to attest the same, and the cause thereof j and if made in any hospital ship, or naval or other hospital, or at any sick quarters either at home or abroad, the same must be executed in the presence of and attested by the governor, physician, surgeon, assistant surgeon, agent, or chaplain of any such hospital, or by the commanding officer, agent, physician, surgeon, assistant surgeon, chaplain, or chief officer for the time being of any such hospital ship, or by the like officers of any military or merchant hospital or sick quarters. *And where any such will or letter of attorney is made on ^ ^„n -. board of any vessel in the transport service, or in any other L J merchant ship or vessel, the same is to be executed in the presence of and attested by some commission or warrant officer or chaplain in the navy, or some commission officer or chaplain to the land forces or royal marines, or the governor, physician, surgeon, or agent of any hospital in the navy or military service, if any such shall be then on board, or by the master or first mate thereof, and if made after he shall have been discharged from the service ; or if such letter of attorney be made by the executor or administrator of any such petty officer or seaman, non-com- missioned officer of marines, if the party making the same shall then reside in London, or within the bills of mortality, the same must be executed in the presence of and attested by the inspector for the time being of seamen's wills and powers of attorney, or his assistant or clerk ; and if the party making the same shall then reside at or within the dis- tance of seven miles from any port or place where the wages of seamen in his majesty's service are paid, the same shall be executed in the pre- sence of and attested by one of the clerks of the treasurer of the navy resident at such port or place ; or if the party making such letter of attorney, or will, resides at any other place in Great Britain or Ireland, or in the islands of Guernsey, Jersey, Alderney, Sark, or Man, the same must be executed in the presence of and attested by a justice of the peace, or by the minister or curate of the parish or place in which the same shall be executed ; or if the party making the same shall then reside in any other part of his majesty's dominions, or in any colony, plantation, settlement, fort, factory, or any other foreign possession of the Crown, or any settlement within the charter of the East India Com- pany, the same is to be executed in the presence of and attested by some commission or warrant officer, or chaplain of the navy, or commission officer of royal marines, or the commissioner of the navy, or naval store- keeper at one of the naval yards, or a minister of the Church of England or Scotland, or a magistrate or principal officer residing in any of such May, 1855.— 22 26 PARSONS ON THE LAW OF WILLS. r *oQ -I places ^respectively ; and where the party making the same shall L J then reside at any place not within his majesty's dominions, or any of the places last mentioned, the same are to be executed in the presence of and attested by the British consul or vice consul, or some ofiSoer having a public appointment or commission, civil, naval, or mili- tary, under government, or by a magistrate or notary public of or near the place where such letter of attorney or will is executed ; nor is any will of any petty officer, seaman, non-commissioned officer of marines or marine, good or valid in law to any intent or purpose which shall be contained in the same instrument with a power of attorney. WHERE THE CAPTAIN S SIGNATURE HATH BEEN OMITTED IN THE ATTESTATION. If it appears, to the satisfaction of the Treasurer of the Navy, that in the attestation clause of any will or letter of attorney, the captain's signa- ture hath been omitted by accident or inadvertence, but that in other respects the execution is conformable to the provisions and meaning of the act, he is empowered to pass the same as sufficient. EXCEPTION AS TO WILLS MADE BY PRISONERS OP WAR. Every letter of attorney or will which shall be made by any petty officer or seaman, or non-commissioned officer of marines, while any such person is a prisoner of war, will be valid to all intents and purposes, provided it is executed in the presence of and attested by some commis- sioner, officer of the army, navy, or royal marines, or by some warrant officer of the navy, or by a physician, surgeon, or assistant surgeon in the army or navy, agent to some naval hospital, or chaplain of the army or navy, or by some notary public, but so as not to invalidate any payment which hath been already made under any letter of administration, certi- ficate or otherwise, in consequence of the rejection of any such wills by the inspector of seamen's wills, for want of the due attestation thereof according to the directions of any former act of Parliament. [*24] *DmECTIONS TO OFFICERS COMMANDING SHIPS. The officers commanding ships must distinguish, upon their monthly muster books, which of the persons therein named have made any letter of attorney or will during that month, or other space of time from the preceding return, by inserting the date of such letter of attorney or will opposite the parties' name, under the heading of " Letters of Attorney or Wills," or both, as the case may be or require ; and they must like- wise transmit to the treasurer of the navy office, a list of all such persons. REQUIREMENTS BEFORE ACTING ON SEAMAn's WILL. Before any letter of attorney or will is attempted to be acted upon, the same must be sent to the treasurer of the navy, at the navy pay WILLSOFSEAMEN, ETC. 27 office, London, in order that it may be examined by tbe inspector of seamen's wills and letters of attorney, who will, on its receipt, register it, and take due means to ascertain its authenticity ; and in case he doubts its authenticity, he will give notice in writing to the attorney or executor, as the case may be, that the same is stopped, and the reason thereof, and also report the same to the treasurer of the navy, and more- over enter his caveat against such letter of attorney or will, which will prevent any money from being received thereon until it is authenticated to the satisfaction of the treasurer ; but if, upon examination, it is found there is no reason to doubt its authenticity, the inspector will sign his name thereto, and put a stamp thereon in token of his approbation — and as to such letters of attorney, forthwith send to the person therein named as attorney a cheque, specifying the number of the letter of attorney, the name and description of the person granting the same, also the name and description of the person in whose favour the same is granted, the date and place when and where executed, and the names of the witnesses attesting the same, which cheque will be a sufficient authority for the attorney to demand and receive payment of, and to give acquittances for, all such wages, pay, or *other allowances of money to which the p^^p. -. person granting the same was entitled ; and no letter of attorney L I of any petty officer or seaman, or non-commissioned officer of marines, which has not been executed on board the ship to which the party belonged, in the manner before prescribed, is to be allowed by the inspector until a certificate has been produced to him, signed by the captain, specifying the period the party has served on board, unless reasonable cause be shown to the inspector for dispensing with the same. The treasurer of the navy is not bound to pay regard to any power of attorney, or cheque of any power, unless the same is actually produced at the time payment is claimed. MODE BY WHICH EXECUTORS ARE TO OBTAIN PROBATE. The will having been transmitted and registered, as before pointed out, the inspector causes to be issued to the person therein named as executor a cheque in lieu thereof, containing directions to return the same, with his signature thereto, upon the testator's death, to the treasurer of the navy — and in the event of the testator's death, the minister or curate of the parish in which the party named as executor shall then reside, shall, upon application of the executor, examine him and two such inhabitant householders of the parish as may be disposed to certify their personal knowledge of the holder of the cheque touching his claim, and that they are satisfied of his being the person therein described as executor; and the said executor is to subscribe his name to the application, and the two householders their names to the certificate for that purpose subjoined to the cheque (the blanks therein being first filled up agreeable to truth,) in the presence of the minister or curate, for which respective purposes the said executor and householders must attend at such time and place as the minister or curate appoints : who being, upon examination of the several parties, satisfied with their :;8 PAKSONSONTHELAWOFWlIiLS. answers, and that the person holding the cheque is the executor therein named, and that the persons certifying are inhabitant householders of r *0R 1 ^^^ parish, and having seen the said *parties sign the applioa- L -I tion and certificate, shall add a description of the person claim- ing as executor, and certify to the several particulars by subscribing his signature thereto — the executor must pay to the minister or curate a fee of two shillings and sixpence. The application and certificate being completed, they require to be transmitted by the minister or curate by the post, addressed to the trea- surer of the navy, London — and the original will having been passed, the inspector notes thereon the amount of wages due to the deceased, and then forwards the will to a proctor for him to obtain probate thereof — and in case the executor does not reside within the bills of mortality, the inspector will forward to the proctor a letter addressed to the minister, and the proctor having received the will and the letter of the inspector, will sue out the previous commission or requisition and take the proper steps to enable the executor to obtain probate, and will enclose in the said letter a copy of the will and the commission, with instructions for executing the same — and forward the same to the minister, by the general post, agreeably to the address put thereon by the inspector of seamen's wills. MANNER OF OBTAINING ADMINISTRATION OF INTESTATE PETTY OFFICER OR seaman's EFFECTS. The person claiming administration sends a letter to the inspector; stating his place of abode, the parish in which the same is situate, hi^ degree of relationship to the deceased, the name of the deceased, and the ship to which he belonged — that he has been informed of the intestate's death, and requesting the inspector to give such directions as may enable him to procure letters of administration to the deceased's efi'ects ; upon receipt of this letter the inspector sends by post to the minister of the parish wherein the claimant resides a petition, together with the requi- site certificates, and pointing out the steps to be taken therein, in like P^.-,„ , manner as has been before observed with regard to executors '- ~ -J obtaining probate. (See ante.) The minister or *curate may reject any petition for want of satisfactory proof or claim. And every minister to whom such letter with a commission is trans- mitted, must immediately take the necessary steps for procuring the exe- cution of the same, and transmit the same to the Treasurer of the Navy, London ; and upon receipt of the commission at the Navy Pay-office the same is to be forwarded to the Proctor, who will forthwith procure the requisite probate or letters of administration, and transmit the same to the Inspector at the Navy Pay-office. When these have been obtained, and the proctor employed therein has forwarded them to the Treasurer of the Navy, with a copy of the will (in case of probate) and an account of his charges, the inspector will issue a cheque in the manner prescribed; and as soon as the wages and the amount of the prize money is noted on the cheque, and after abating the WILIiSOFSEAMBN, ETC. 29 proctor's charges, the balance will be paid to the party personally, and the cheque delivered to the party to stand instead of the probate or letters of administration, and enable him to receive whatever other gums may become payable to the deceased's estate. NUNCUPATIVE WILL. A nuncupative will is an oral testament, declared by a testator in ex- tremis before a sufficient number of witnesses, and afterwards reduced to writing. The 29 Car. II., c. 3, restricted nuncupative wills, except when made by mariners at sea and soldiers in actual service ; it moreover enacts that no written will shall be revoked or altered by a subsequent nuncupative one, except the same shall be, in the lifetime of the testator, reduced to writing and read over to him and approved, and unless the same be proved to have been so done by the oaths of three witnesses at the least, who by 4 & 5 Anne, c. 16, must be such as are admissible upon trials at common law. No nuncupative will shall in anywise be good where the estate be- queathed exceeds £?0, unless proved by three such witnesses p ^„r, -, ^present at the making thereof, and unless they or some of them L J were specially required to bear "witness thereto by the testator himself, and unless it was made in his last sickness, in his own habitation or dwelling house, or where he had been previously resident ten days at least, except he be surprised with sickness on a journey or from home, and dies without returning to his dwelling. No nuncupative will shall be proved by the witnesses after six months from the making unless it were put in writing within six days, nor shall it be proved till fourteen days after the death of the testator, nor till process has first issued to call in the widow or next of kin to contest it, if they think proper. INFORMAL VyiLLS, UNDER PECULIAR CIRCUMSTANCES. An informal Codicil made by a seamen engaged with the enemy on board ship, but in a river beyond the flux and reflux of the tide, is valid under the 1 Vic, e. 26, s. 11.(6) So where a minor in the military service of the East India Company, being mortally wounded in action, wrote a will in pencil, which was attested but by one witness, it was held to come within the exception of the Statute of Frauds, and was treated as a will.(c) And where a surgeon in the same company's service returned from this country to join his regiment in India, in medical charge of recruits, and in July, 1838, when on board ship at Portsmouth, he wrote a paper of a testamentary nature, but appointing no executor or residuary legatee and which was moreover unattested, it was determined that administra- tion with the paper annexed, passed to the mother of the deceased. W) (6) Be Austen, 17 Jur., 284. (c) In re S. Farquhar, P. C, 4 July, 1846. \d) In re H. D. Donaldson, 2 Curt., 386. 30 PARSONS ON THE LAW OF WILLS. TERMS MARINER OR SEAMAN. It appears that the terms " mariner or seaman" do not exclude any r asoQ -\ person in Her Majesty's Navy from the benefit of the exception L J *of the 11th sec. of 1 Yic, c. 26, although superior officers "at sea" — thus, an unattested Codicil, dated 18th January, 1838, to a will duly executed, dated April, 1833, made at sea by the purser of a man- of-war, has been admitted to probate. (e) FOREIGNER DOMICILED IN ENGLAND. A foreigner domiciled in England may, of course, make a will or tes- tamentary disposition of his personal property, and the distribution of his personal property in England will be subject to the same laws as any other natural-born subject, and when naturalized he may also devise his real estate here, and his will will be construed according to the law of England in all respects as an Englishman's — but a will made in a foreign country, disposing of personal property in this country, must be proved here, notwithstanding it is also proved there ; and the practice is to trans- mit an exemplified or authenticated copy here, which is proved in the Ecclesiastical Court and lodged in the registry as if it were an original will. As to the authentication of the copy, see Raymond v. De Watte- ville; 2 Lee, 358. " That place is properly (says Mr. Justice Storer) the domicil of a person in which his habitation is fixed, without any present intention of removing therefrom." This definition of the learned Judge is open to explanation ; for " the present intention of a person's removing" cannot possibly be known but by that person himself, and where a definition of a word or a rule of law is to be expounded on such a frailty, it argueth of its unsoundness. The mode of ascertaining the domicil of a person may be collected from the cases decided on that question — thus, it being prima facie evidence only that where a person resides there he is domiciled, it is necessary when the question of legal domicil is raised to see what was the domicil of origin, that being ascertained it prevails till the party shall have acquired another, with an intention of abandoning the original domi- cil. (/) Secondly, the fact of residence must be accompanied by an intention of permanently residing in the new domicil and of abandoning r *qn -I ^^^ *former; the change of domicil must be manifested aniino et L -■ facto by the fact of residence and the intention to abandon — thirdly, that the domicil of origin having been abandoned and a new domicil acquired, that new domicil may in turn be abandoned and a third domicil acquired — fourthly, the presumption of law being that the domi- cil of origin subsists until a change of domicil is proved, the onus of proving the change is on the party alleging it ; and this onus is not dis- charged by merely proving residence in another place, which is not in- (e) In re Hayes, 2 Curt. 338. (/) 5 Ver. Jur., '750. OONSXEUOTION OF WILLS. 31 consistent with an intention to return to the original domicil, but the change must be demonstrated by fact and intention. ((;) The domicil of the parent is that also of their children until the con- trary is proved. Thus, if a person is born of parents who are British subjects, although he were born abroad he would be a British subject, and this whatever might be the domicil of his parents or himself.(A) So also the wife acquires the domicil of her husband, which continues after his death. (t) And the domicil of the husband is also that of the wife, although they may be living apart under a deed of separation. (^) And an Officer in the service of the East India Company, and residing in the East Indies, does not thereby acquire a domicil in that country,(^) but a man may obtain a new domicil in a country where he is only a lodger, and without repudiating his nationality ; for where a testator was a native of Scotland, and domiciled there, and afterwards came to London, where he continued to reside chiefly in lodgings, for many years making London the central place of his affairs and business, it was determined that he acquired a new domicil in London, (to) *CHAPTEK IIL THE CONSTRUCTION OF WILLS GENERALLY. [*31] General rules applicable to the construc- tion of wills. Extrinsic Evidence, when admissible to remove ambiguities. Parol Evidence, when admissible to ex- plain ambiguities. Meaning of " contrary intention," with reference to 24 sec. 1 Vic, c. 26. Estate by Implication. Terms " Legal Representatives." Doctrine of Cypress. Words " Die without issue," how con- strued. What words create a Trust in a will generally. Estates Tail. To guard against a will being misconstrued, the intention of the testa- tor should be set forth in clear and unambiguous legal phraseology, and where words are used that import or will bear a double meaning or con- struction, they should be followed by some explanatory phrase, clearly defining which construction is to be put upon them. The names and description of the legatees should be definitely set forth and in describing sons and wives and other relations, where there is any doubt of their being legally such, they should be described as the reputed relations, and it is also always advisable to state that the personal estate of the testator shall be the primary fund for the payment of debts j and (g) De Bouueval r. De Bouneval ; 1 Curt., 863. Munro v. Munro ; Y Clark and Finn, 881. Law Times 9, Vol. 161. Waddilove's Dig. Ecc. Law, 169. (h) Maltus V. Maltus ; 1 Robt., 71. {«■) Gout T. Zimmerman ; 5 Notes of Cases, 440. Law T., 9 — 412. (k) Wad., B. D. 170. (l) Atty. Gen., t. Napier; 15 Jur., 253. (m) 15 Jur., 567. 32 PARSONS ON THE LAW OF WILLS, in creating life estates only, care should be taken not to give a greater estate in the premises. A will cannot be too concise, providing the intention of the testator is fully expressed in the manner before observed, and the necessary clauses r «q9 -T relating to the trustsfa) properly set forth ; *for it not unfrequently L J occurs that unnecessary clauses in a will are found to qualify the whole instrument and interfere materially with its otherwise easy con- struction. The courts, in construing wills, endeavour to construe favour- able, and as near the minds and apparent intentions of the parties as the rules of law will admit; for as Sir Edward Coke hath it, " verha inten- tioni, non i contra, debeni inservire," and the courts have even con- sidered the ignorance of testators as a sufficient cause for their establish- ing the doctrine of giving liberal constructions to wills, rather than of enshrouding them with the observance of technicalities which might render them inoperative ; thus we find the rule that " Benigne faciendae sunt interpretationes, propter slmpUcitatem laicorum, ut res magis valeat, quam pereat," therefore the construction must be agreeable to common understanding, and the law will dispense with want of words in devises which are absolutely necessary in other written instruments. And in a recent case, (6) where the question arose whether the expression " worldly goods," made use of in a will, and taken in connection with the whole instrument, passed the testator's real estate, or was to be confined only to personalty. Sir William Page Wood, V. C, decided, that without vio- lating the rules applicable to the construction of testamentary dispositions, and considering the.whole clauses together the words sufficiently indicated an intention to pass the real as well as personal estate. The courts will use their utmost endeavours to arrive at the intention of the testator, and where the intention appears they will not lay too minute a stress on the precise signification of words ; and where the words will bear two senses, one agreeable to and the other against law, that sense will be preferred which is most agreeable thereto. If there be two clauses in a will totally repugnant and irreconcilable to each other, the first will be rejected and the latter will stand; and where the words of a gift are of themselves plain, distinct, and capable of having a legal effisct, effect must be given to them notwithstanding any P ^oQ -I improbability which may arise from *looking at other parts of the L -I will. On the other hand, if the words are ambiguous in expres- sion or efl'ect, they will not be rejected for uncertainty ; but from the other parts of the will must be collected an indication of what the testa- (a) Where a will creates a trust for sale or mortgage of an estate, the inatru- ment should empower the trustee to give a receipt, which receipt should be de- clared to exonerate the purchaser or mortgagee from seeing to the application of his money; without such exonerating clause, equity holds it obligatory for the purchaser or mortgagee to see to the application of the money according to the trust with some few exceptions — but a purchaser from an executor or adminis- trator will not be bound to inquire after debts or legacies, where he purchases honafide and without notice that there are no debts, but it is otherwise if he has notice. (6) Wright V. Shelton, 16 Dec. 1853. CONSTRUCTION OP WILLS. 33 tor meant hy those words whicli by themselves appear to he ambiguoug(c) — so where it is dubious on the face of a will whether a specific or general legacy is given, the court will lean to the construction in favour of the legacy being a general one ;(cZ) and if it is doubtful whether or not an absolute interest is given by a will, the subsequent disposition of the subject-matter of the gift, in every possible event which can arise, must be considered, in putting a construction on those ambiguous terms, such a disposition being apparently inconsistent with the intention of giving an absolute interest in the first instance, the above wag laid down in Lassence v. Tierney, 14 Jur., 183 ; the court observing, if a testator leaves a legacy absolutely as regards his estate, but restrains the mode of the legatee's enjoyment, adopted to secure certain objects for the benefit of the legatee, on 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 enjoy- ment fail, the legacy forms part of the testator's estate, as not having in such event been given away from it — it is, however, obvious, that the intention that the gift should be absolute as between the legatee and the estate, is in all oases of construction to be collected from the terms of the will, and not from their being words which, standing alone, would constitute an absolute gift. So where words which, standing alone, would have amounted to an absolute gift, but special provisions followed, which failing it was held the fund was undisposed of ;(e) and where there was a direct pecuniary gift, to be employed for the use of the legatee in a particular manner, and the manner of employment having failed, the legatee's title was considered absolute. (/) Upon a question arising as to whether, upon the construction j- ^„. -. *of a will, the gift to the children of the testator's daughter was <- J void for remoteness, or whether they took a vested interest, Lord Lang- dale, M. E,., observed, " where there was a gift to such a class or description of persons who should attain a certain age, those who did not attain that age must be excluded from the benefit of the legacy by the testator's description jTc^) but a direction to pay to an indefinite class when and as they shall attain a certain age, does not necessarily point to the exclusion of any, the words might be only intended to postpone payment, without postponing the vesting. There being such an ambi- guity as to the testator's meaning, it was necessary to look to the other parts of the will for an indication of the intention. It may be collected from the modern decisions upon the construction of wills generally, that it has become an established rule, in arriving at the true intention of the testator, where ambiguities arise, to read the different clauses of the same will referentially to each other, unless they are clearly independent ;(/i) and to arrive at the meaning of a testator, the words of a clause in a will must not be added to or transposed, pro- (c) Wilson y. Eden; 11 Beav., 289. (d) 1 Hare, 382. (e) Gompertz v. Gompertz ; 2 Pli., 107. (/) Campbell v. Brownrigg; 1 Ph., 301. Iff) Harrison v. Grimwood; 18 L. J. 0. 485. (k) Ford t. Ford ; 6 Hare, 492. 34 PARSONS ON THE LAW OF WILLS. viding they are susceptible of a reasonable construction as they stand ;(i) but where it is evident that the intention of the testator is clear, but wrong words have been made use of which will not admit of a reasonable construction, the court will remedy the defect ; for where a testator gave a sum in bank annuities to his wife, and it turned out he had no other stock at the date of the will than long annuities, the court directed the legacy to be paid out of the latter, and moreover admitted evidence to show that the testator had no such stock at the dite of the will, having previously sold it and invested the proceeds in long annuities. (/u) An instrument executed under peculiar circumstances will be construed to take effect as a will in the event of a parties' death, before which it would have been looked upon as a different instrument; thus, P. being in India in 1840, executed the following instrument, attested by two _ ^„^ _ witnesses : — Know all men, &c., *that I make, &o., E. my lawful L J attorney, for me and in my name and to my use, to ask, demand, &c., or receive the possession of or produce of the rent of the freehold of, &o. And I do empower her, the said E., to hold and retain all pro- ceeds of the said property for her own use, until I may return to England and claim possession in person ; or in the event of my death, I do hereby, in my name, assign and deliver to the said E. the sole claim to the before-mentioned property, to be held by her during her life, and dis- posed of by her as she may deem proper at the time of her death ; at the same time I wish it to be understood that I claim all right and title to the said property on my arrival in Great Britain, when the term of the said E.'s occupancy shall be considered as at an end. In witness, &o. The instrument was acted upon as a power of attorney ; afterwards P. died in India without returning to Great Britain, and left E. sur- viving; it was determined it would operate as a will — "Williams J. observing, " The power of attorney operates in one event only, and for a certain time, but it by no means follows that the instrument may not take effect as a will in the event of the parties' death." WHEN EXTRINSIC EVIDENCE IS ADMISSIBLE TO REMOVE AMBIGUITIES. Extrinsic evidence is admissible to remove ambiguities which arise upon the application of the terms of a will to the persons and subject- matter to which they relate. (Z) Thus, where an interest was given by the express terms of the will to A. B., the second son of C. D., and A. B. was in fact the third son and E. F. the second son of C. D., the court of King's Bench determined that evidence of the state of the testator's family and other circumstances were admissible, and that on such evidence it was for the jury to find whether the testator had made a mistake in the name of the devisee or not : that if no such evidence were given on the trial, it would be a mere question of law as to the intention of the testator, to be collected only from the will itself, upon which the judge might direct the jury, and it would be open to neither party to tender a bill of exceptions. (m) (i) Walker v. Tipping. (k) Selwood t. Midway ; 3 Ves., 306. (l) 3 Stark ; L. E. 1269. (m) Doe t. Huthwaite ; 3 B. and A. 632. OONSTEUCTION or WILLS. 35 ^Evidence of the facts and circumstances in respect of wbich ^ ^t)„ -i the terms of a will are to be applied, are necessarily admissible L J for the purpose of applying them in the strict and primary sense ;(m) and Lord Kenyon has laid it down, 6 T. R. 352, "that it is an universal rule, that where words are used which have acquired a precise and tech- nical meaning, no other meaning can be applied to them — for that, in the language of the courts, would be to remove land-marks." So where the terms of the instrument are capable of application in their strict and primary acceptation, they must be applied in that sense and no other — but where it appears, from evidence of the material facts, that the terms of a win are incapable of application in their strict primary acceptation, evidence is admissible to show that they are still capable of application in a secondary sense in order to apply them. It is also a general rule that not only material facts, but also declara- tions made by the testator, are under certain circumstances admissible, when necessary in order to ascertain the person or thing intended — that is, the object of the testator's bounty, or the subject of disposition, where the terms are applicable indifferently to more than one person or thing J (o) and where terms of art are used in a will, extrinsic evidence will be admitted for their explanation, as well also for the explanation of foreign expressions. If, on the face of the will, its terms be so ambiguous as to be incapable of any certain application, it is void in point of law : for in such a case, to admit evidence to give it one meaning rather than another, when it was equally capable of both, or incapable of expressing either, would be not to construe or apply, but to make a will;(p) so also the devise will be void for uncertainty, notwithstanding the ambiguity is a latent ambi- guity, capable of being explained by parol evidence, where that evidence does not explain what the testator actually meant — thus, where A., having two separate closes in Dale in the occupation of B., devised to C. the close in Dale in the occupation of B. — C. cannot entitle himself to both closes by showing that A. supposed the property *ooou- r*q7T pied by B. consisted of one close, nor is it a case for election. (g) L J The Ecclesiastical courts hold that, when there is an ambiguity on the face of a will, parol evidence is admissible. There are two sorts of ambiguities of words, observes Lord Brougham ; the one is ambiguitas patens and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument — Latens is that where the intention seemeth certain and without ambiguity ; for anything that appeareth upon the deed or instrument, but there is some collateral matter out of the deed, that breedeth the ambiguity. Amhiguitas patens is never holpen by averments, and the reason is because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law, for that were to make all deeds hollow and subject to {n) 3 Stark. 771. (o) Ibid. 769. {p) Ibid. 1272. \q) Eichardson v. Watson ; 1 Nev. and Man. 567. 36 PARSONS ON TH£ LAW OP WILLS. averments, and so, in fact, to pass without deed that which the law appointeth shall not pass but by deedYr) The courts endeavour to ascertain and are guided by the intention of the testator, gathered from the circumstances of each case in construing what shall operate as a will, and therefore will receive parol evidence where there is an ambiguity on the face of the instrument, but not otherwise ;(s) and to admit parol evidence in the court of probate there must be some ambiguity, not upon the construction but upon the facbtm of the instrument — not whether a particular clause will have a particular effect, but whether the testator meant that particular clause to be a part of the instrument. "Whether a codicil was intended as a republication of a former or a subsequent will — whether the residuary clause was fraudulently introduced without the knowledge of the testator,(<) as where a party nearly blind made a will, and the attorney who drew it inserted a clause giving the residue to himself, parol evidence was admitted to show that this was contrary to the intention of the testatrix. r*SS 1 ^° ^^^ court will allow "parol evidence to prove the testator was L -I ignorant of a certain particular fact, as that he was ignorant that an attorney had inserted in a will the words " for his own use and bene- fit" instead of " as trustee," and will order the words to be expunged — it will also admit parol evidence to show what was the intention of the revocatory clause, when it operated as a general revocation but was not intended so to do;(M) and it will also be admitted to prove facts and circumstances within the knowledge of the testator at the time of making the will, to explain a patent ambiguity, and to make the description of a person perfect ;((') but if the testator leaves property corresponding with the description in the will, evidence is not admissible to show that he intended other property to pass — thus it has been accordingly held that extrinsic evidence could not be given that the settlement on testa- tor's wife included a certain freehold close, mistakenly there enumerated as one of several copyhold closes settled, and which was, in fact, inter- mingled with the copyholds (as were also some other freehold closes, the hounds of which were no longer distinguishable from the copyhold, and all of which freeholds were included in the settlement) for the purpose of showing that, by the devise of " all his copyhold estates in North and South Collingham 'after his loife's decease,' in trust, to be divided, &c.," the freehold close in question passed. (w) Lord Ellenborough, C. J., observes that the above case involved a general question of extreme importance. There is no ambiguity on the face of the will, the testator having copyhold estates in North and South Collingham to answer the description in it ; nor is there any reference from the devise in question to the settlement, but by connecting it with the antecedent devise to the wife ; and there is no such necessary con- nection. Nor does it follow that the testator meant to devise the same (r) Wigram on Evidence, 170. (s) D. Dorset t. L. Hawardees; 3 Cart., 83. Mounsey t. Blamire; 4 Russ, 384. (t) Fawcett t. Jones ; 3 Phill., 478. Thorae v. Eooke ; 2 Curt., 815. (u) Draper t. Hitch ; 1 Hagg, 677. (t)) Pliilips v. Barker; 17 Jur., 1146. {ill) Doe d. Brown and Bland v. Brown ; 11 Bast, 441. CONSTRUCTION 01' WILLS. 37 premises under the name of copyhold, to the trustees, as were settled on the wife ; or that he was under the same mistake that the close in ques- tion was copyhold when he made his will as when he made *the ^ ^gg -, settlement, consequently there is nothing appearing on the will L J to warrant a construction of the word copyhold so contrary to its ordinary acceptation, as to include the freehold in question. WHEN PAEOL EVIDENCE IS ADMITTED TO EXPLAIN A WILL. In Bernasconi v. Atkinson,(a;) which turned upon the uncertainty of the description of a person mentioned in the will, to whom there was a gift — Sir J. P. Wood, V. C, in the course of his judgment observed, that an intestacy is the very last resort which the court will be driven to adopt. That there is only one case in which parol evidence can be admitted to explain or aid in the construction of a will, and that is, where the description of the will is applicable to two different subject matters of devise, or two different objects of the testator's bounty : in other words, where the ambiguity is caused by extrinsic evidence, and the words of the will stand well on the will itself. A most important rule was also laid down in the above case, viz. ; that in deciding cases of this description, the language of the will must be assumed to be the language of the testator himself; because that, in the above case, the solicitor who drew the will said, in his afSdavit, that the language was his rather than that of the testator, nevertheless such statements must be disregarded. In all cases the words are rather the expressions of the adviser than of the testator himself, but the testator must be taken to have read over and adopted the expressions used. So where words were erased from a will and others substituted,!!?/) but ■which could not take effect in consequence of their substitution not being made in conformity with the 21 sec. of 1 Vic, o. 26, and a ques- tion arose as to whether the probate should go out with the original words supplied by parol evidence or with the erasures in blank. Sir H. J. Fust appeared to rely on the case of Brooke v. Kent, where one word was substituted for another, and parol evidence was received to show what the original word Avas, and in this case allowed probate to pass with the original words. *A will must now be construed with reference to the real and - ^ , „ ., personal estate comprised in it to take effect, as if it had been L J executed immediately before the death of the testator, unless a contrary intention shall appear by the will — but it appears it is not necessary that such contrary intention should be expressed in so many words or quite free from doubt, if it is found, upon the fair construction of the will, adopting those rules in that construction which are usually adopted in construing wills, that the contrary intention does appear — and a devise of " all the estates of which I am now possessed or seised of," with an indication of the word now having been used as alluding to the period at which the testator was making his will, was considered to be (x) IT Jur., 128. [y) Goods ofW. Reeve; 13 Jur., 370. 38 PARSONS ON THE LAW OP WILLS. such a contrary intention as to take the case out of the general rule that, after acquired, property passes by a will.(z) The time of the legatee's death is unimportant, provided he dies after the wills act came into operation, and the bequest to him by will is made after that time;(a) and it may be observable throughout the decisions as to the construction of clauses in wills, that the courts anxiously avoid construing anything into an intestacy. (6) ESTATES BY IMPLICATION. It has been before observed that a fee will pass without any words of inheritance, unless a contrary intention shall appear ;(c) and by will an estate may pass by implication, as where there is a devise over of land to a third person, after the death of his wife, in such cases the apparent intention is carried out by giving an estate for life by implication, and avoiding the estate being in abeyance ; and where a certain sum of money was bequeathed to a person, a nephew of the testator's, to maintain and bring up a natural child of the testator's, with direction that the interest of one-fourth of the testator's residue should be applied for the mainte- nance and education of the child during his infancy, and the capital to r »il 1 ^^ P^''^ *° ^^^ °° ^^^ attaining twenty-one, it was *declared that L J the nephew was not a trustee of the money firstly bequeathed for the natural son, but was entitled to it for his own benefit ;(c?) and so where a testator bequeathed to his daughter fifteen thousand pounds, to be kept in trust by his executors till she should attain twenty-one, or marry with the consent of her mother and half of his executors then living, whichever might happen first, when the sum with the accumulated interest was to be settled on her — upon her attaining twenty-one without being married, it was determined that, as the legacy was not directed to be settled except in the event of her marrying under age, with the con- sent of her mother and half of the testator's executors, and as the legacy was given to her absolutely she was entitled to it absolutely. fe) The omission of clearly stating in testamentary dispositions the description of the legatees, so that no doubt at any future time can arise as to the applicability of their taking under the peculiar devise, has occa- sioned many important questions to arise, from which it may be collected that the courts lean in favour of the bequest taking effect, nevertheless it is always advisable to guard as much as possible against the rights of the legatee being questioned, and in obtaining instructions for wills it is advisable to ascertain from the testator not only the names of the legatees but the position in life which they occupy, and whether they are legiti- mate children ; for where specific legacies and the residue of personal estate were given to a testator's children nominatim, payable to them at twenty-one, or on marriage, and the residue of his real estate subject to to the payment of an annuity to his wife and other trusts, between all his said children (but did not name them,) share and share alike, and (2) Cole v. Scott ; 14 Jur., 25. (a) Winter v. Winter ; 5 Hare, 313. (6) Jennings t. Baily ; 17 Jnr., 433. (c) 1 Vic, c. 26, s. 28. (d) Biddies v. Biddies ; 16 Sim. 1. (e) Arnold v. Arnold; 18 L. J. C. 90. OONSTRUOTION or WILLS. 39 directed that in ease any of his children by his second wife should die without issue before he or she should attain twenty-one, that the interest of each, in his the testator's last-mentioned real and personal estate, together with the therein before mentioned legacies bequeathed to them respectively, should go between his said wife and such of his children by her as should *be living, one of the legatees, who was an illegi- ^ ^ .„ -, timate daughter by the second wife, was declared to be entitled L J to share with their legitimate children in the residue of the testator's property.(/) So a bequest to each person as a servant in testator's domestic establishment, at the time of his decease, of a year's wages, " beyond what should be due to him or her for wages," was held to in- clude a head gardener who lived in a garden-house until it was pulled down, and subsequently resided in a house provided by the testator, and whose house was attended by the servants of the testator ; and even where a testator devised to A. B. (a natural daughter of A. B., of G., single woman, and who formerly lived in his service) an estate " for life," remainder to her children — at the date of the will no person answered this description ; although A. B. had formerly lived in the testator's service and had a natural child, which was a son, and was named John Abbott, and moreover was not then herself a single woman, but was married and had a legitimate daughter, yet upon the death of John Abbott it was determined his children were entitled. (<;) Never- theless a person will take under a devise where the entire description is not thoroughly applicable, where it can be collected that such is the in- tention of the testator, evidenced by the particular circumstances of the case ; for where the testator, who had a wife, Mary, to whom he was mar- ried in 1834, and who survived him in 184.0, butnevertheless went through the marriage ceremony with a woman whose christian name was Caroline, and who continued to reside with him until the time of his death, shortly before which he devised certain property to his wife Caroline, her heirs, &c., absolutely, Caroline took under this devise, notwithstanding the entire description was not applicable. In some cases, where a testator is found to have given two inconsistent directions, and has said that the children or all the children shall parti- cipate in the fund, and .then directs that there shall be a division when and so soon as each attains twenty-one, the court must necessarily either sacrifice the direction that gives *a right to distribution at twenty- ^ ^.^ . one, or sacrifice the intention that all the children shall take. (A) L J The word " family " will not be construed as to create a joint tenancy where there is a bequest for life, with a direction for the property after- wards to remain in the devisee's family, but the devisee's children will take as tenants in common ;(i) so a bequest of personal estate upon trust, to assign the same to four persons, " and to each of their respective heirs, executors, administrators and assigns," will create a tenancy in common only ;(/<;) and where the words of the devise are intended to create a joint tenancy, such intention should be direct and positive. (/) Evans t. Davis, 18 L. J. C, 180. (ff) Ryall v. Hamane, 10 Beav. 536. (A) Per Wigram, V. C. llainwaring v. Beevor, 14 Jur. 59. (i) Owen v. Penny, 14 Jur. 359. [k) Gordon v. Atkinson, 1 De G. and S. 478. 40 PARSONS ON THE LAW OF WILLS. TERMS LEGAL REPRESENTATIVES. The terms legal representatives, when made use of in a will, do not mean executors or administrators, according to the general acceptation of the terms,(Z) but next of kin ; and where a will, not aflFected by the 11 Geo. IV. and 1 Wm. IV., c. 40, commenced, "I give, devise and bequeath all my estate, real and personal, to W. E., his heirs, executors or administrators, to and for the uses, intents and purposes following ;" then followed certain declarations of trust, but applicable only to parti- cular portions of the personal estate, and the will concluded by appoint- ing W. E. sole executor, W. E. took the residue as trustee for the next of kin.(m) So a gift of property in trust for one for life, and then to such person or persons as should then be entitled thereto as the testator's next of kin, under the statute made for distribution of the effects of intestates, the next of kin of the testator, at the death of the tenant for life, took as tenants in common, the Statute 22 Car. II., c. 10, deter- mining the mode of taking as well as the persons entitled, and that the wife was not one of the next of kin under the statute ;(m) and where there was a reversionary bequest to the testator's sons, by name, and in r *11 1 *<'^^® °^ ^^^^ decease of all or any of them in the tenant for life's L J lifetime, to their legal personal representatives, the executors were held to be entitled in exclusion of the next of kin ;(o) but the words " mother's relations " being used in a will in pursuance of a power, were construed to mean nest of kin of the testator's mother, according to the Statute of Distributions. (^j) DOCTRINE OF CYPRES. The doctrine of cypres is an equitable doctrine, and is applied where there is an excess in an appointment under a power executed by will affecting real estate, by the court carrying out the power as near (cypres'^ the testator's intention as practicable, and prevent such excess disappoint- ing the general design. The doctrine does not apply to personalty, it is also expressly confined to wills; it does not extend to limitations by deed of either real or per- sonal estate, and in Brudenell v. Elwes,(2') Lord Kenyon refused to extend the doctrine to a limitation in a deed executing a power — and in those cases where a literal execution of a power under a will becomes inexpedient or impracticable, the court will execute it as nearly as it can, according to the original purpose or cypres. The doctrine, as applied to the construction of a will, cannot be used to carry an estate to a class or part of a class of persons for whom the testator never intended to provide, and contrary to the express limita- tions ;(?•) and there must be an actual necessity in the construction of a (?) Walker v. Camden ; L. J. C. 488. (m) Mapp t. Elcock; 13 Jur., 290. (n) Home v. Colman ; 11 Jar., 408. (o) Hinclifife t. Westwood; 17 L. J. C. 167. (p) Davidson v. Proctor ; 14 Jur., 31. (j) 1 East, 451. (r) Moneypenny v. Veering. CONSTRUCTION OF WILLS. 41 will to warrant the court in even sacrificing a particular intent to a gen- eral intent. Lord Cranworth, in adjudicating upon the case of Grundy v. Pinni- ger,(s) said, " The view I take of the principle to be guided by is this — that whatever the dificulty may be of reconciling the cases upon this subject, and cases upon analogous subjects, the great cardinal rule to which to bring questions of this sort, is that which is pointed out by Mr. Justice Burton, namely, to adhere as closely as possible to the literal meaning of the words; *when once you depart from that canon ^ ^.. , of construction, you are let into a sea of difficulties which it is L J hard to fathom." It must be observed, in alluding to contingencies created by testamen- tary dispositions, that the contingency or the event which the testator speaks of as a contingency, is always referable to the period of payment or distribution, except in the single case where there is a simple gift to A., and if he should die without having issue then to B., in which case it cannot be referred to any period of distribution, but must be a general contingency to go over. Thus, where a testator gave all his freehold and leasehold property to trustees, upon trust, to pay the rents to his wife for her life, if she should so long continue his widow, and directed that, in case of her marrying again, she should receive an annuity — and he then disposed of the pro- perty among his three children, the gift to take effect in possession imme- diately on the decease or marriage of the widow — and there was also a direction for his trustees to make over the shares of the children to them immediately upon the widow's death as soon as they arrived at the age of twenty-one years; and further, that if one of his children should die, leaving no children, his or her share should be equally divided between the other two and for their heirs for ever; and if two of his children should die, leaving no children, their shares should go to the surviving one and his or her heirs for ever. The share of a child who attained twenty-one, and survived the widow, it was determined did not go over on his subsequently dying without leaving children. (rt MEANING OP "die WITHOUT ISSUE." The 1 Vic. c. 26, s. 29, expressly declares how the words <' die with- out issue" or " die without leaving issue" shall be construed, and unless a contrary intention appears by the will, the real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime *of the testator, or by reason of such de- p ^.„ _ vise being contrary to law or otherwise incapable of taking effect, L J shall be included in the residuary devise, if any contained in such will. (it) So a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will or (s) 16 Jur., 488. {t) Edwards v. Edwards; 16 Ju., 259. (u) 25 Sec. 1 Vic, e. 26. June, 1865.— 23 42 PARSONS ON THE LAW OF WILLS. Otherwise described in a general manner, and any other general devise which would describe a customary copyhold or leasehold estate, if the testator had no freehold estate which could be described by it, will be construed to include the customary copyhold and leasehold estates of the testator, or his customary copyhold and leasehold estates or any of them to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention appears by the will ;(u) and the word " estate," in the operative part of a will, passes the corpus of the property and all the interest of the testator in it, unless controlled by the context ; but where the word is not used in the operative clause of the devise, but is introduced into another part of the will referring to it, such word will not be construed as having the effect of extending the meaning of the operative clause, whether prior or subsequent.(i«) And where a testator having, by his will, made a marked distinction between his real and personal estate, gave the residue " of his personal estate, goods and chattels, to his brother absolutely," and he devised " all and singular his manors, lordships, rectories, advowsons, messuages, lands, tenements, tithes and hereditaments," situate at or near W., " and all other his real estates in W. and elsewhere in Great Britain" to trus- tees for his brother for life, with remainder to his first and other sons, &c. It was determined first, upon the context of the will, that the tes- tator's leaseholds for years passed under the residuary bequest to A. absolutely, and not in strict settlement with the real estate; and secondly, that although the wills act (1 Vic, c. 26) was applicable to this case, still that the 26th sec. (which enacts that a devise of the land of a testa- tor, &o., shall be construed to include leasehold estates to which such P j^ , „ -, description shall extend, unless *a contrary intention shall appear) L -I did not afiect the above construction. (a) AS TO WHAT WORDS WILL CREATE A TRUST IN A WILL GENERALLY. It appears{^) words accompanying a gift or by bequest expressive of confidence, or belief, or desire, or hope, that a particular application will be made of it, will be deemed to impart a trust, if so used as to ex- clude all option or discretion in the donee or devisee, and the subject and the object of the gift be certain and definite. Moreover, it is enough if it appear that a trust was intended, and it is not necessary that it should be effective or valid in order to exclude the legatee from a beneficial interest. A general bequest to A. B., "well knowing that he will make good use and disposition of it in accordance with my views and wishes," has been held to create a trust; but the words "I give all my property to my wife, in the fullest confidence that she will dispose of it for the joint benefit of herself and my children," are of themselves insufficient to create a trust, (z) (v) 26 Sec. 1 Vic. o. 26. (w) 18 L. J. 59. (x) Wilson v. Eden ; 12 Jnr., 488. 17 L. J. C. 459. (V) Briggs T. Penny; 21 L. J. C. 265. 18 Jnr., 93. (z) Webb V. Woolly ; 19 L. J. C. 153. OONSTaUOTIONOE WILLS. 43 A bequest made to A. B., " to the uses of a letter signed by them and the testator," there being then no such letter, but subsequently a note being addressed by him to the executors, stating his wishes as to the dis- position of the money, is no trust, but forms part of the residue. So a condition annexed to an appointment, and inconsistent with the power, is void ; for where a testator, having power to appoint by will a sum of £3000., made his will, giving his general estate to his children for life, with remainder to their issue, and after referring to the above power, appointed the fund amongst his children, and requested them not " to spend the shares thereof, but to leave the same for the benefit of their children," these words did not constitute a trust for the grandchildren, so as to put the children to their election, but amounted to a condition annexed to the appointment *in favour of children, and the con- ^ ^ , „ -. dition was void, as being inconsistent with the power.(a) L J ESTATE TAIL. It has been before observed under what circumstances the legal words of inheritance, usually applicable to the passing of a fee simple, are in the construction of devises dispended with, and the Courts have been guided in a great measure by the same doctrine of intention in regard to the construction of wills where the necessary legal words to create an estate tail have been omitted, but where it can be collected from the ex- pressions used that an estate tail was intended to be created. Estates tail are either general or special — general where lands are given to one and the heirs of his body hegotten ; and in this case it matters not how often the donee is married, for his issue in general, by each marriage, are capable of inheriting the estate ia,\\ per formam doni. Tail special differs from the above, inasmuch as the gift is restrained to some particular heirs of the donee's body, as where the gift is to the donee and the heirs of his body, on some particular person to be begotten ; so again the estate may be given in tail male or tail female — and it is a rule that, upon the creation of an estate tail male, the females cannot inherit, and so e con- verso the heirs male, where the gift is in tail female. The latitude which the law will afford in carrying out the intention of a testator, where it is apparent that an estate tail was intended to be created, but the words are not the legal words of inheritance, is observed upon by Littleton, (i) who says, " If a man give done (which signifies by deed) land or tenements to another, to hold to him and to his heirs males, or to his heirs females, he to whom such gift is made hath a fee simple ;" but Coke says, " If a man, by his last Will, devise lands or tenements to a man and his heirs male, this, by construction of law, is an estate tail, the law supplying those words (of his body.) So a devise to one et heredibus legitime procreatis is tail, in Naufan v. Leach,(c) where the devise was to the testator's wife of a cottage for life, and r • aq.-, *after her death or marriage to the testator's son, as soon as he L J should attain twenty-one, and to his heirs for ever. To whom also he (as) Blacket T. Lamb. (6) Co. Litt. 27 a., s. 31. (c) 1 Taunt, 85. 44 PARSONS ON THE LAW OF WILLS. devised his land and estate in fee simple where he then lived (except the former bequest to his wife) upon his attaining twenty-one, and to his heirs lawfully begotten for ever, this was held to give an estate tail to the son in the land, and an estate in fee simple where the testator lived; so in a will, the words " his own right, heirs male for ever," have been con- strued to mean heirs issuing from a particular body, and indicative that the fee was not intended to pass, but only an estate tail;((Z) and the words " heirs male" in a will are always intended of the body, and imply an estate tail ; so under a devise of land to the testator's son, his heirs and assigns for ever, but in case his son should die without issue, then to go to the child of which his second wife was enceinte, passed an estate tail to the son.(e) On the other hand, in Abraham v. Twigg, it was held that a feoffment to A. and his heirs " lawfully engendered" would not carry an estate tail. It is thus presumed, that where in a will a suflSoient intention of giving over can be collected from the face of the instrument, it will be looked upon as indicatory that special heirs only were intended to take, and will be sufficient to warrant an entail being created. [*50] CHAPTER IV.* CODICILS. Meaning of the word Codicil. Must refer to former Will. AVbat term Will includes when so re- ferred to. Construction given to technical words. Different Instruments written on the same paper. As to the effect of Revocation by a Codicil. How far Re-execution of Will extends. Effect of Ke- publication of a Codicil. How Informal Codicil may be rendered Valid. It often happens that, after a person has made his will, he wishes to make some alteration in it, either as to the disposal of his property or otherwise; when such is the case there is no necessity for a fresh will, as his intentions may be carried into effect by a codicil, which is looked upon as a supplement to his will, and may contain anything which he wishes to add thereto, or any explanation or revocation of what the will contains, or the appointment of additional trustees or executors. It must be observed, in making such codicil, that it should clearly refer to the former will, and be executed and attested in all respects in the same manner as a will ; for it has been held that a codicil, duly exe- cuted in 1847, and commencing " by this codicil to my will," did not include under the term " will" unattested additions written subsequently to the operation of the wills aot.(a) The construction to be given to technical words, when used in testa- [d] Ford V. Ossulstons, 2 Mod. 119. (tt) Haynes v. Hill, 13 Jur. 1058. (e) Doe d. Ellis v. Ellis, 9 East, 382. CODICILS. 45 mentarj papers, is that which they hear in their technical sense,(5) and that construction cannot be put upon the word " will" so as to include those papers which are not executed according to the provisions of the law.(c) In Haynes v. Hill, the testator left a *duly executed p ^r , -. will and two codicils signed but unattested, all dated previous to L J the 1st of January, 1838 — and subsequently he wrote several other codicils, signed and unattested, on the same sheet of paper as the will — and first two codicils ; and subsequently to this, by a further codicil duly executed, he referred to his will by the words " By this codicil to my will I bequeath," &c., "independently of all other bequests in my said will." This last codicil was found separate from the other instruments, and had never been placed with them; it was determined that by the word " loill" the codicils subsequent in date to the 1st of January, 1838, were not sufficiently identified to be ratified by the last codicil, there being other papers to which the word was legally applicable. As there is no restriction as to the number of codicils a person may make, it is advisable for each codicil to refer to the preceding one, thus showing whether it is the first, second third, fourth, and so on — to avoid also any questions of identity, it is advisable that the codicil, if not written on the same paper as the will, be attached to it, as it may operate as a re-execution of the former will and remedy any defect in its execution ; for where a testatrix having made a will, but which was not executed according to the 1 Vic, c. 26, made also a codicil to her " last will" on a separate sheet of paper, but did not refer to her will by date — after the testatrix's death, the paper purporting to be a will and the codicil were found loose in a box and unattached, but wafer-marks on the papers were strongly indicatory of their having been annexed, there being no other testamentary paper, and the codicil referring to two bequests in the paper purporting to be the will, the court considered that the paper purporting to be the will must be considered as such, being republished by the codicil, which was duly executed. (c^) But where, before the wills amendment act, the testator left a will and four codicils, the will and first codicil being duly executed, the second codicil was pro- perly witnessed, but signed by the deceased in the body of the attesta- tion clause and not elsewhere, the third and fourth were duly executed and numbered 3 and 4, not referring otherwise *to the second ^ ^.^ . codicil, the second codicil was not entitled to probate. (e) Nor <- ' was a book in the testator's handwriting, although referred to by a will and proved in the Ecclesiastical court, but not attested so as to pass real estate, admissible in explanation of a will.(/) Children, born between the making of the will and a codicil, will be excluded from taking under the will, in the absence of a clear intention that they should not be so excluded ; this was determined in Early v. Benbow (2 Coll., 342), where there was a bill filed by the four children of Mrs. Early, claiming a legacy of £.500 each — not merely those which (b) Wilkinson v. Adams, 1 Ves. & B. 422. (c) Ferraris t. Hertford, 3 Curt. 468. {d) 2 Robertson, 298. (e) In goods Littledale, 13 Jur. 478. (/) Adams v. Wilkinson, 12 Price, 4Y1. 46 PARSONS ON THE LAW OF WILLS. were expressly given, but also further legacies under the words of the codicil, " to each child that may be born to either of my brothers' children ;" Knight Bruce, Y. C, deciding that the word " may" could not be read in so unrestricted a sense as to allow all those children of Mrs. Early as should be living at the death of the testator, including the four who had already gifts to them, to participate in the bequest in those words. Subsequently, upon the same codicil. Sir John Eomilly ob- served,(^) " The question before me really amounts to this, whether I can read the word ' may' to the extent of letting in children who, being alive when the codicil was executed, are not mentioned in it — the words must be looked upon as prospective, and that they were descriptive of the persons to be born subsequently to the date of the codicil, and descriptive also of persons who were to be born subsequently to the date of the codicil but previous to the death of the testator." •WHERE DIFFERENT INSTRUMENTS ARE WRITTEN ON THE SAME PAPER. Where different instruments are written on the same paper, and it appears to be the intention of the testator that all should constitute one instrument, the execution of the last will will be considered as an exeou- r *cq -I tio'i of the whole, even although the testator term the prior L J instrument a will and the latter a codicil, *and whether the sub- scription belonged to both instruments would be a question of fact for the jury. AS TO REVOCATION BY A CODICIL. The 22d section of the wills act enacts, " that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revoked otherwise than by the re-execution thereof, or by a codicil duly executed, and showing an intention to revive the same." Where there were circumstances raising a fair presumption that the testator did not intend to revoke the whole codicil, administration was decreed with the will and all the codicils annexed ;(7i) and under certain special circumstances, a paper will be admitted to probate as a codicil, although it does not primQ, facie appear testamentary. Thus, where a person on his death-bed gave directions for the writing a paper in the form of a bill of exchange upon his agents, and the paper was signed in the presence of two witnesses who attested and subscribed the same, it was declared to be entitled to probate; Sir H. J. Fust, in the course of his judgment, observing — if the court should be satisfied that it was the intention of the deceased that it should operate as part of his will, and if the paper was duly executed in conformity with the provisions of the statute, the court would be bound to grant probate of it. Now looking at the paper it is certainly not primd facie testamentary; the sum for which the bill is drawn is made payable to a trustee, but on the other hand it appears to have been signed in the presence of two witnesses, and it remained in the possession of the deceased until his death. [g) Early v. Middleton, 15 Jur. 867. [h) In re Lewis, 14 Jur. 514. CODICILS. 47 The rc-execution of a memorandum dated 9th July, 1844, under cer- tain circumstances, has been held to amount to a revocation of a codicil of 1843, being the revocation of a codicil by a codicil of a subsequent date;(i) and the court will grant probate of such part of the will as is not revoked by the codicil, where it is admitted that parts of the will are revoked. (/c) *A testator gave the use, income, and enjoyment of certain rs|;c4^-| personal property to his brother F., and after his death to the L J eldest son then living of C, C. had three sons, of whom W. was the eldest, and the testator afterwards made a codicil containing the follow- ing clause: — "I revoke so much of my will as relates to W., and I leave my brother F. in full enjoyment of all my property." This was a revocation of the gift to the eldest son of C., and a gift of the corpus of the property to F.(Z) Previous to the 1 Vic, c. 26, the revocation of a will was considered to operate as a revocation of a codicil, inasmuch as every codicil was considered as part of a will, and where the will was revoked it was primd facie a revocation of the codicils ;(ot) but there have been cases in which the codicil has appeared so independent and unconnected with the will that it has been established, although the will was invalid ; it nevertheless is a question of intention, to be collected from the circum- stances of each case.(ji) And a codicil may be admitted to proof, although the will, of which it purports to be a part, is not forthcoming. (o) For where a testator, two days before his death, executed a testamentary paper, commencing, "This is a codicil to the will of me," &o. — but it related solely to accounts between himself and the person with whom he was in partnership as a solicitor, and after his decease no will could be found, and the codicil being from the nature of its contents, wholly inde- pendent of any will, it was treated as a valid subsisting instrument, and administration with that paper annexed was granted to the widow, there being no executor or residuary legatee named in it.(jp) And a codicil, merely revoking all former wills, is of a testamentary nature, and if proved will be entitled to probate. (j) So a codicil may operate so as not to revoke the beneficial devise in favour of a person, but only that in trust, (r) *RE-EXECUTION OP AVILL EXTENDS TO CODICIL. [ *55 ] A testator, in 1843, executed his will, in which was contained a clause revoking all former willSj and afterwards duly made and executed a co- dicil confirming his will save as altered by his codicil; and subsequently he revoked the will, on the supposition that the attestation clause of the («•) In goods of S. Perry, 4 N. C. 402 P. 0. (k) Stride v. Sanford, 17 Jur. 263. (l) Wells v. Wells, Nov. 9, 1853, bef. M. R. (m) Coppiu T. Dillon, 4 Hagg. 369. (n) Medleycott v. Assheton, 2 Add. 230. 12 Jur. 422. (o) Tagart v. Hooper, 1 Curt. 292. (p) In goods of E. Halliwell, P. C. 23d June, 1846. (j) 2 Robt. 162. (r) Hook v. Laslett, 2 B. 1st June, 1852. 48 PARSONS ON THE LAW OP WILLS. will was defective, but did not re-exeoute the codicil or refer to it, but it was decided that the re-execution of a will extends to and re-publishes, notwithstanding the clause of revocation, a codicil, unless an intention to the contrary appear.(s) EFFECT OF RE-PTJBLICATION OP A CODICIL. The re-publication of a codicil is looked upon as the re-publication of the will of which it forms a part, and a codicil made in 1839, duly exe- cuted according to the provisions of the 1st & 2nd Vic, c. 26, to a will dated 1838, was held to revive such will; for every codicil to a will must be taken to re-publish that will, unless a contrary intention be shown from the contents of the paper, and this notwithstanding the pro- visions of section 22 of 1 Vic, c 26.{t) So an informal codicil may be rendered valid by a subsequent paper duly executed, and it was accordingly determined that a paper, termed a codicil, dated in 1845, but not duly attested, was rendered operative by a subsequent duly-executed codicil ; there being under the circum- stances of the case, sufficient to satisfy the court that the first codicil was sufficiently referred to and described, so as to be incorporated in the second.(M) And where a testator, by his will, dated in 1815, gave all the rest, residue and remainder of his personal estate, goods and chattels whatsoever and wheresoever (subject to the payment of his debts,) and all the estate and interest therein, to his brother M. D., to and for his own use and benefit, whom he also appointed sole executor — the will con- P ^.„ . tained a devise of " all and singular his *manors or lordships, L -1 rectories, advowsons, messuages, lands, tenements, tithes and here- ditaments, and all other his real estate in Great Britain and all his estate and interest therein, unto E. E. — in 1841 M. D. died, whereupon the testator made a codicil in July, in that year, whereby he appointed another executor, and then ratified, confirmed and republished his will, when it was determined that the re-publication of the will, by the codi- cil of 1841, being in compliance with the provisions of the 1 Vic, c. 26, s. 34, must be looked upon as being made at that date, and would come within the meaning of the 26th section, whereby a general devise of lands will include leaseholds as well as freehold, and consequently the leaseholds passed. (w) On the other hand, where a testator devised all his freehold estate which he purchased of C, by a will dated before, and re-published by a codicil dated after the 1 Vic, c 26 — -and there was a small piece of leasehold land purchased with the estate by the tes- tator of C. — and after making the codicil the testator purchased the fee in the leasehold ; the codicil did not pass the after-acquired fee,(w) and was not, consequently, within the meaning of the 24th section of the wills act. The observations with regard to the framing of a will apply also to a (s) Wade r. Nazer, 1 Eobt. E. 627. 12 Jur. 188. (() Skinner v. Ogle, 1 Eobt. 363. (u) Ingoldbv V. Ingoldby, P. C. 7 Mar. 1846. (v) Wilson V. Eden, 16 L. T. 152. (w) Ennes v. Smith, 2 De G. & S. 722. REVOCATION OF WILLS. 49 codicil, as its validity is subject to be impeached in like manner as a will — but a codicil written by the sole legatee therein named and inac- curately worded, and not produced until some time after the will, which had also been in the possession of the legatee, was pronounced for in the absence of evidence directly impeaching its validity. {x) And where a testator, by his will, gave the residue of his real and personal estate to his wife absolutely, and by a codicil he bequeathed some slave compensa- tion money to his wife upon certain trusts as to half; and as to the resi- due thereof, " together with all sum and sums of money, estate and effects" which he might die possessed of or interested in, save and except the other moiety of the compensation money thereinafter mentioned, upon trust, to receive the ^dividends arising from the investment there- ^ ^r„ -, of for her life; and after her decease he bequeathed the said L J moneys and securities in or upon which the same should be invested to other parties. It was determined, that it was not clear that the testator did not intend by the codicil to take away the rights conferred on the wife by the will, it was reasonably doubtful that he did so intend, and that therefore she was entitled, as residuary legatee, absolutely, and not for life. (3/) Where a person of unsound mind made a codicil to his will — on evi- dence of the subscribing witnesses to such codicil, which was not pro- pounded, probate of the will alone was decreed. (2) *CHAPTEE V. THE REVOCATION OF WILLS. [*58] Power of Revocation. Presumption of Law where Will is not forthcoming. Implied Revocation. As to alteration made in a Will after it is executed. Implied revival of another Will — a re- vocation. How revoked Will revived. Revocation by cancelling Will. The power of revocation being an inherent power attendant upon an individual and remaining in the person, it naturally follows that it may be exercised at any period that person may think proper in deeds where it has been reserved, and in testamentary dispositions without any reserva- tion being made ; and in considering the subject of revocation by a testa- tor, reference will unavoidably be made to the law as it existed prior to the 1st of January, 18.38, more especially as the courts are careful of disturbing judgments which may have been acted upon prior to that period, and whereon many titles may have been founded, or in some measure depend. In all cases where a testator makes a will irrevocable (x\ Barley v. Earl of Portarlington, 13 Jur. 18 P. C. (y) Banbury v. Banbury, 13 Jur. 1091. (z) Knight V. Richards, \1 Jur. 216, P. C. 50 PARSONS ON THE LAW OF WILLS, in the strongest terms, he is at liberty to revoke it, for he shall not, by his own act or expressions, alter the dispositions of law so as to make that irrevocable which is of an opposite nature.(a) Where a testamentary paper is not forthcoming at a testator's death and it can be traced to have been in his possession, the presumption is that he has destroyed it, and such presumption may be acted upon unless there be evidence to repel such presumption by raising a greater proba- bility to the contrary, and the onus lies on the party propounding the revoked will. (6) r *W 1 *Marrying, and the birth of a child, was considered a con- L -1 structive revocation of a will made by a person previous to his marriage, and now marriage alone is an absolute revocation ; for by the 18th section of the 1 Vic, every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her customary heir, executor, or administrator, or the person entitled as his or her next of kin under the statute of distributions. Implied revocations depended on the supposed intentions of the par- ties, collected from the circumstances of the case, but the revocation by marriage, and the birth of a child, was decided to take place in conse- quence of a principle of law, independent of any intention of the testator himself ;(c) and where the animus revocandi was clear, it was determined to be immaterial that a writing, authorising the will to be destroyed, did not arrive (to the person in whose custody it was) until after the death of the testator ;(c?) but since the passing of the 1 Vic, c 26, no will will be revoked by any presumption of an intention, on the ground of an alteration in circumstances. And no will or codicil, or any part thereof, will be revoked, except in accordance with the wills act, or by another will or codicil executed in the manner required by the said act, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same. Any alteration made in a will after it has been executed, to be of any effect, must be made strictly in accordance with the provisions of the 1 Vic, c. 26, whether such alteration is merely an obliteration, or addi- tion, or otherwise — for no alteration, interlineation, or other alteration made in any will after the execution thereof will be valid, or have any r #60 n 6flFeot, except so far as the *words or effect of the will, before L J such alteration shall not be apparent, unless such alteration shall be executed in like manner as is required for the execution of the will ; but the will, with such alteration as part thereof, will 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 (a) 8 Co. 82. (b) Welch v. Phillips, 1 Moore, 299. (c) Marstou t. Eoe, 2 Nev. and P. 504. {d) Walcott T. Ochterlony, 1 Curt. 580. REVOCATIOi;^ OF WILLS. 51 some 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 on some other part of the will ;(e) and it has been before observed that the term will, when referred to by a codicil, does not include unattested additions in a will. In practice, when any interlineation is made in any will before execu- tion, it is proper to make reference thereto in the attestation clause, showing that such interlineation was made before the will was executed, and by so doing the addition or interlineation becomes attested as being a portion of the will. Notwithstanding the leaning the courts have to construe against intestacies, it has been held that prior wills of real estate are revoked by a subsequent will, although the latter contains no express clause of revo- cation, and the result of the decision caused a partial intestaoy.(/) A. having, under a settlement, a general power of appointment either by deed or will, appointed by several successive deeds, in each deed revoking former appointments and reserving powers of revocation and new appointment by deed only — by a deed poll she afterwards revoked the last deed of appointment ; by her will she made a devise, purporting to be in exercise of her original power of appointment; it was held that, after the execution of the first deed of appointment, the original power was gone, and therefore the will of A. was inoperative. (^) A will may be revoked by the implied revival of another will ; thus, where a person loft a will dated in 1845, and two codicils dated in 1846, and the unexecuted draft of a will dated in 1842, and this last will having been destroyed ammo revocandi, and the *first codicil ^ ^„, -. clearly referred to the contents of the will of 1842, but did not L J describe that will by date, speaking of it merely as the "last will" — upon an allegation being offered, propounding the will of 1845 and the two codicils, it was determined the codicils alone were entitled to pro- bate, the will being revoked by the implied revival of the will of 1842. (A) But where a testator, being seised of freehold and copyhold property, made his will, ordering first that his debts should be paid, and then devising to his wife, for her life, his dwelling-house, croft, and garden, part of the freehold, with remainder over, and the will then proceeded — " Also I give, &c., unto my said wife, her heirs and assigns for ever, all my real and personal estate whatsoever and wheresoever unto me belonging, both freehold and copyhold, and now surrendered to uses of my will, and to have the same at my decease ; but if my personal estate should not be sufficient to discharge my debts, then I charge my copy- hold estate with the payment of the same," his wife and others were appointed executors; it was determined that the latter clause of the will did not revoke the former, but gave the wife, in addition to her life estate in the freehold house, croft, and garden, an estate in fee in the copyholds and the other freehold property, leaving untouched the remainder created by the first clause. (i^ (e) Sect. 21. (/) Plenty v. West, 17 Jur. 9. \g) Evans v. Saunders, 11 Jur. 338. (A) Hale y. Tokelove, 14 Jur. 817. (i) Roe d. Snape v. Neyill, 11 Q. B. 466. 52 PARSONS ON THE LAW OP WILLS. In Evans v. Evans, 17 Sim. 86, Sir L. Shadwell, V. C, decided that the devise of " real estates" in the fourth codicil passed the tithes, and therefore revoked the devise of tithes in the will — but Lord Campbell, in a very recent case, (A) alluding to the above, observed, that he felt himself obliged to adhere to a contrary opinion, and that the gift of the tithes in question to the plaintiffs remained unrevoked, — their right to life estates in succession under the will being clear and undisputed, it lay on the defendants to show that the devise in their favour in the will had been revoked ; there is no express revocation, and reliance can only be placed upon a subsequent inconsistent disposition by codicil of the r «co -| previously-disposed property. The leading case upon this *sub- L ° J ject is Doe d. Hearle v. Hicks (1 CI. & Fin. 20 ; 6 Bligh, N. S. 37, Sugd. Law of Property as administered by the House of Lords, 214,) in which it was decided that a life estate, clearly given by a will to a testator's wife in a portion of his real estate, which was copyhold, was not revoked by a codicil by which he revoked several of the dispositions in his will, of all his freehold, copyhold, and personal estate and effects of all and every kind and description, and in the place of such devise, disposition and bequest, he devised and bequeathed all and every his freehold, copyhold, and personal estate and effects of every kind and description whatsoever, and wheresoever situated, unto his daughter, and afterwards to his grandson. Tindal, Chief Justice in that case, delivering the opinion of the judges, on which the House of Lords acted, said, " The general principle upon which their opinion proceeded might be stated thus : — the testator does, by his will, show a clear and manifest intention to devise the estate in question to his wife, for her widowhood — if such devise in the will is clear, it is incumbent on those who contend it is not to take effect, by reason of a revocation in the codicil, to show that the intention to revoke is equally clear and free from doubt as the original intention to devise ; for if there is only a reasonable doubt whether the clause of a revocation was intended to include the particular devise, then such devise ought, un- doubtedly, to stand. Whether, therefore, this devise was revoked, must be determined not by any express words to that effect, but by the con- sideration whether, upon the construction of the codicil, the devise and disposition therein contained must of necessity be held inconsistent with the devise to the wife." The principle may now be considered esta- blished, that a revocation by a subsequent codicil, whether by express words of revocation or by a devise inconsistent with the former devise, will operate so far only as is necessary to effectuate the intention of the testator. (Z) Thus, there are four modes of revoking a will, viz. : — by marriage — by burning, or other act of the same nature — by another inconsistent r *fi^ n ^'^^> ^^ writing, executed in the same manner as *the original L J will — and by the disposition of the property by the testator in his lifetime. (m) A will may be either entirely or only partially revoked by the second (i) Williams v. Williams, 11 Jur. 1093. (l) Evers v. Ward, 16 Jur. 709. (m) Sug. V. P. REVOCATION OF WILLS. 53 method pointed out, and it may also be only partially revoked by the testator disposing of only a portion of his property in his lifetime, but by the other modes of revocation it is absolute. HOW REVOKED WILL REVIVED. No will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner before required, and showing an inten- tion 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 con- trary shall be shown. (ra) And no conveyance or other act, made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as afore- said, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. (o) The mere fact of a testator having destroyed his last will and preserved , the first, has been held not sufficient jjer se to revive the first,(p) for it must be ascertained whether it was or was not the intention of the deceased that the first will should stand — the presumption of the courts inclining against rather than in favour of the revival of a former instru- ment.(j) Where one entire part of a will, in duplicate, in the possession of the testator, was undestroyed, but the other part, in the possession of his solicitor, was destroyed by the testator on the *executing of a j- ^„. , subsequent will made in 1838, in terms revoking the prior will, L J the first was held to be revived by a codicil made subsequently to the second will, though referring to the first will merely by date ; and that such reference was sufficiently indicatory of the intention to revive, as required by the 22nd section of the 1 Vic, o. 26, and that moreover parol evidence was not admissible to establish a mistake in the date.(r) And where a married lady, having under her settlement freehold pro- perty settled to her separate use, with power to dispose of it by will, exercised that power by devising a certain part of the property to A. for life, with remainder to her nephew, and gave all the other freehold ten- ements which she had in anywise power to dispose of, to her nephew for life, with remainder to his children. She afterwards purchased some leasehold tenements out of her separate property, and had them assigned to M. in trust, as she should by deed, will, or codicil appoint; and in exercise of that power, she by a codicil bequeathed the leasehold to her nephew, and confirmed her will. Some time afterwards she purchased the reversion in fee of the leaseholds, and had it conveyed to A. in (n) 1 Vic. 0. 26, sect. 22. (o) Sect. 23. (p) Hooton t. Head, Phill. 31. {q) Wilson y. Wilson, 3 Phill. 554. (r) Payue v. Trapps, 11 Jur. 155. 54: PARSONS ON THE LAW OF WILLS. trust, as she should by deed or will appoint. She then made another codicil, in exercise expressly of the power reserved to her by the settle- ment and of all other power, and thereby, after reciting the specific devise made by her will, she gave the property which was the subject of that devise to A. in fee. The second codicil was not deemed a republi- cation of the will, and therefore the reversion did not pass by the resi- duary devise in the will, but the testatrix died intestate as to it.(s) So where a man, having children by a first marriage, made his will, and then upon his second marriage settled his personal estate on himself for life, then to raise £100 for his wife, and then to apply the personalty as he by deed or will should appoint, and in default thereof unto his issue — it was determined, upon the apparent intention, that the prior r *R'^ 1 ^^^^ ^^^ wholly revoked. (<) *And where a person who was L J dangerously ill made a will in favour of his intended wife, but afterwards recovered and was married, and had four children, who with the wife survived him, and the testator had carefully preserved the will and recognised it, but never re-executed it, it was determined to be a revocation. (m) It is necessary to observe, that in the above case there appeared a tacit condition annexed to the will, at its execution, by which the court was guided in making its decision. A will made under 1 Vic, o. 26, s. 11, remains operative unless expressly revoked, although the maker of such will lives in England several years after the date of that will. Thus, John Vaux Leese died in England in 1852, having made his will whilst in active military ser- vice in the East Indies, agreeably to the 11th section of the wills act, in the words following : — "I am just recovered from a rather severe bilious attack ; lest another may leave me unable to will my goods away, or lest I am knocked over by a bullet, as we go against Gwalior to-morrow, this is my will and testament, made in gratitude for my late recovery. I have funds amounting to some 500 rupees in Government Savings Bank. This I will bequeath to my brother R. V. Leese, also the whole proceeds from the sale of my horses, buggy and furniture. My old Arab horse Nick is not to be sold, but to be given to Captain Siddons, of the First Light Cavalry, as a memo of my love and esteem. I am not indebted to any man except current expenses for housekeeping and clothes, to no great account; my clothes, therefore, I wish to be burnt. — J. V. Leese, Camp Lahore, near Gwalior, Dec. 23, 1843." Codicil. — " My horse Nick was shot under me at the Battle of Maharajpoor, May 28th, 1844." The deceased returned to this country in April, 1845, and remained here ever since. Nothing passed under the will, as the property thereby bequeathed was disposed of, upon the question arising as to whether letters of administration should pass with the will annexed or without it. The court decreed administration with the will annexed. (v) (s) Jowitt V. Beard, 12 Jur. 933. 18 L. J. 53 C. h) Leigh V. Norbury, 13 Ves. Junr. 340. (m) Matson T. Magrath, 13 Jur. 350, P. C. («) In re, Taugh. J., 17 Jur. 216. REYOCATIONOrWILLS. 55 *AS TO THE CANCELLING A WILL. [ *66 ] In legal consideration, a will may be cancelled without being revoked ; the cancelling itself is an equivocal act, and in order to operate as a revocation it must be done animo revocandi a will therefore cancelled by accident or mistake is no revocation ;(to) and the general position is, that the cancellation of a will does not necessarily infer any intentional abandonment of the dispositions contained in, nor consequently any revocation of it. In order to bar the application of this rule to any par- ticular case, two things are at least requisite; first, it must have been proved by indisputable evidence that the cancelled paper once existed as a finished will. Secondly, it must have been shown by evidence equally indisputable, that the testator adhered to it throughout, in mind and intention, notwithstanding its cancellation. In the absence of either of these indisputable requisites, the ordinary presumption upon which a court of probate is bound to act is that the cancellation does not amount to a re vocation, (a) In deciding a question whether, by the destruction of a latter will, a prior one thereby became operative, Sir John Nioholl ruled, that it was not quite settled whether the principle was, that on the revocation of a latter will, a former uncancelled will was presumed to revive or not. The presumption may depend prima facie on the nature and the contents of the will itself, exclusive of circumstances dehors the will. If the latter will contains a disposition quite of a different character, the law may presume such a complete departure from the former intention, that the mere cancellation of the latter instrument may not lead to a revival of the former, but intestacy may be inferred. If, however, the two wills are of the same character, with a mere trifiing alteration, it may be presumed, because it is the rational probability, that when the testa- tor destroyed the latter he departed from the alteration and p ^„_ -, reverted to the former disposition, *the latter presumption pre- L J vailing, the first was held to have been revived. (y) Where a testator gave his residuary estate in certain portions between his granddaughter and his four grandsons, and he afterwards drew a line through a material part of the bequest, and by a marginal note stated that one grandson being dead, and the other three being provided for, he intended to bequeath one thousand pounds to each of his grandsons and the residue between his two granddaughters, it was determined that this was a cancellation of the first bequest, and that the granddaughters were entitled to the whole fund, subject to the three legacies of one thous- and eacb.(«) {w) Burtenshaw v. Gilbert, Cowp. 52. (x) Thyane t. Stanhope, 1 Add. 54. Waddilove, E. L. 350. {y) Kirkenbright v. Kirkenbright, 1 Hagg. E. R. 326. Waddilove, E. L. 358. (z) Ravenscroft In re, 10 L. J. 501. 56 PARSONS ON THE LAW OP WILLS. [*68] *CH AFTER VI. DONATIO MORTIS CAUSA AND LEGACIES. How a donatio mortis causa differs from other Legacies. Will not prevail as against Creditors. As to Checks and Bonds. Legacies, General and Specific. Lapsed, Vested, and Contingent. Conditions annexed to Bequests. AccnmulatiTe Legacies. Thellusson Act. Ademption of Legacies. Within what period Legacy is recover- ahle. When Interest is Payable on Legacies. Who are incapable of taking Legacies. A donatio mortis causa is another method whereby, under peculiar circumstances, a person is empowered to dispose of any of his personal effects ; thus, when in his last illness, or, as it is termed, in extremi.^, and apprehensive of the approach of death, he delivers, or causes to be delivered to or for a party, the possession of any of his personal effects, to keep in the event of his decease, such gift or donation is called a donatio mortis causii. This gift, if the donor dies, does not, like other legacies, require the assent of the executor, but the interest of the donee is complete on the donor's death, and is accompanied with the implied trust, that, if the donor lives, the property so disposed of shall revert to himself, being only given in contemplation of death, or mortis causii ; and this, although the donor does not when he so gives it declare to be given in contemplation of death, the law construing such to be the case. It differs most materially from other legacies, inasmuch as there must be an actual delivery of the thing disposed of, in those oases where the subject will admit of such delivery; but if it will not admit of actual delivery, if the party go so far as he can by transferring the possession, as intentio mea imponit nomen operi meo, the gift will be complete — thus the deli- very of the key of a warehouse in which goods were deposited, has been r *RQ n ^^^^ *'° ^^ * 2°°*^ delivery of the goods for *such a purpose, (a) L ' It appears also to be established, that the delivery of the key of a trunk amounts not only to a delivery of the contents of a trunk, but also of the trunk itself, and that a bond will also pass to the donee, but it is otherwise with bills of exchange, promissory notes, and cheques. (6) But in Bonts v. Ellis, 17 Ju., 585, where a testator, four days before his death, gave to his wife a cheque for £1000., made payable to herself or bearer, this cheque being crossed was exchanged by the wife, by the testator's direction, with a Mr. Billiter, for an uncrossed cheque upon the bankers of the latter, and made payable to Mrs. Ellis (the wife,) but which cheque was post dated, and therefore void ; Mr. Billiter received the proceeds of the cheque of the testator shortly before the death of the latter, and after that event gave to Mrs. Ellis another cheque for £1000. (a) Ward t. Turner, 2 Ves. Jur. 431. (6) Miller v. Miller. Tate v. Hibbert, 4 Bro. C. R. 291. DONATIO MORTIS CAUSA. 57 in exchange for the one he had first given her, and this cheque was shortly afterwards paid to Mrs. Ellis by Mr. BiUiter's bankers. Upon the question arising whether, under these circumstances, the proceeds of the cheque for £1000, given to his wife by the testator, was a good donatio mortis causd to her, or whether it still formed part of the testa- tor's estate, for which Mr. Billiter was responsible to the executors, it was held, aifirming the decision of Sir J. Komilly, M. E., that this trans- action was, in effect, a good donatio mortis causd from the testator to his wife. Where the obligee of a bond, five days before his death gave it to a niece, and signed a memorandum amounting to an immediate and abso- lute assignment of it, it was held, in the absence of evidence of how it came into the donee's possession (the assignment being unconditional, and not importing that it was to be restored if the donor should recover,) to be a donatio mortis causd. (c) A gift by a man in his lifetime cannot be construed as a donatio mortis causd. Thus, Sir William Hedges gave by will, to two *of his ^ ^„„ -. children, a specific legacy of a bond for three thousand pounds, L J but being advised to give it to them by act in his life time, a line was drawn over those words in the will which gave the three thousand pounds, and the bond was altered, and a new security taken in trust for those children, and the will new published — the court decided that this could not be construed a legacy causd mortis; but in this case the testator. Sir William, acted deliberately, and made his election that they should take a gift in his lifetime, and not by will.(c?) There should be no control stipulated to be exercised by the donor over the particular thing given, where the gift is intended as a donatio mortis causd — for where the donor delivered a cash-box to another, desir- ing him to go, after his death, to his son for the key, and stating that the box contained money, to be entirely at the donee's disposal, but that he should want it every three months as long as he lived, and it was twice delivered back, but was in the donee's possession at the time of .the death of the donor, the key being in the son's possession, ticketed in the name of the donee, it was held not to be a sufiicient donatio mortis causd, nor such a trust for the donee as the court would execute ;(e) but a mere re- quest or injunction by the donor will not make the gift inoperative as a donatio mortis causd, for where a father had lent j£950 to his son, who secured the money with a bond and a deposit of deeds, and the deeds were given up and deposited on another loan, returned, and again depo- sited on a further advance, the father then, in contemplation of death, delivered the bond to his son, in the presence of witnesses, accompanied with words "Take this, but don't wrong your children, and don't mort- gage your property" — the son became a bankrupt, and upon a bill filed by the assignees it was held to be a valid donatio mortis causd. This species of gift will not prevail as against creditors. A gift of a cheque on a banker, pay self, or bearer two hundred pounds, and also of (c) Edwards v. Jones, 1 Sim. 325. , (d) Mic. 1 Anne. Hedges v. Hedges, Gilbert, E. 12. (e) Reddel v. Dobree, 10 Sim. 244. June, 1856.— 24 58 PARSONS ON THE LAW or WILLS. r *-i -1 ^ promissory note, being absolute and *immediate, was deter- L J mined, on that ground, to be no donatio mortis causa.(f\ And where a testator, being upon his death-bed, had delivered to his wife a purse of gold, containing about 100 guineas, and bid her apply it to no other use but her own, and likewise drew a bill upon a goldsmith to pay £100 to his wife to buy her mourning and to maintain her until her life-rent, meaning her jointure, should become due, and about seven- teen days after died, the Master of the Rolls held the delivery of the purse was good, and must operate as a donatio causd mortis ut res magis valeat, (tc, because otherwise one could not give to his own wife, and this was in the nature of a legacy to the wife. The bill of £100 is good, and operates as an appointment; if the wife had received it during his lifetime it would have been liable to some dispute, but that he appre- hended this amounted to a direction to his executors that the ^6100 should be appropriated to his wife's use, and he inclined to think, even if the wife had received it in the husband's lifetime, she should have kept it j that being for mourning, it might operate like a direction touching his funeral ; the gifts were not extravagant (for then he admitted, equity ought not to make them good), the gifts were but £200, and the perso- nal estate amounted to £8000. (gr) LEGACIES. A legacy is a gift left by the deceased, to be paid or performed by the executor or administrator; and as it is a gift, it argueth that it proceeds from the mere good-will of the testator. Legacies are distinguishable into such as are general and such as are specific — the former are pecuni- ary, and the latter may consist of any particular article not being money. It is a rule that no legacy is considered specific unless it is clearly so intended, and specific legatees have certain advantages over those that are pecuniary only, inasmuch as they will not be called upon to abate, P _„ ., upon a deficiency of assets, in common with the pecuniary "lega- L -I tees. A specific legacy vests immediately upon the testator's death ; and where specific legacies are intended to be given, the words of the bequest should clearly state such intention, and a bequest of property vested in " bonds or securities" has been held not to pass canal shares which the testator had.(/i) So under a devise to A. of the testator's house, with the lands thereunto adjoining, as then used and occupied by himself, and also all the household and other furniture, pictures, plate, books, and all other things whatsoever usually therein, or considered as belonging thereto, except only cash, bank notes, and securities for money — it was determined that neither carriages, carriage or riding horses used by the testator, nor farming stock and implements used by him in the cultivation of the land, passed, although on the land at the time of his decease. (i) It has been before observed that a legacy requires the consent of the (/) Tate T. Hibbert, 2 V. Junr. 4 Bro. C. E. 286. (g) 1 Williams, 441. (A) Hudleston v. Gouldsbury, 11 Jur. 464. (i) Pennefather v. Bury, 3 J. & L. 121. DONATIO MORTIS OAUS A. 59 executor or administrator, and it is therefore illegal for the legatee to appropriate the legacy to his own use of his own sole authority, for the executor is the only person who can legally take possession of the testa- tor's goods and chattels ; but where there is no executor, or he is unable to act, or where the executor renounces, the legacies are payable by the administrator — where however, there are several executors, the assent of one to a legacy is sufficient. The whole of the testator's debts should be satisfied before any legacies are paid ; for if the legacies are paid, and a deficiency appears after the residium has been exhausted, the legatees must be called upon to refund. As to the mode of executors ascertaining what claims there are against the estate, see post, chap. 7. A legacy given to a charity, to be raised and paid out of such part of the personalty as could legally be charged with the payment of the same will also abate where the general personal estate is more than sufficient for payment of debts, funeral and testamentary expenses and legacies — but the pure personalty is insufficient. (A:) *It appears established that where legacies are payable out of ^ ^„„ -, the general personal estate, and the residue only, after payment L J of them, is directed to be laid out in the purchase of land, the legacies will not abate in favour of the devisee of the land to be purchased.fA AS TO LAPSED LEGACIES. If a legatee die in the testator's lifetime the legacy is said to be lapsed, that is, merged in the residue — but since the wills act,(«i) where any person being a child or other issue of the testator, to whom any real or personal estate shall be devised or bequeathed, for any estate or interest not determinable at or before the death of such person, shall die in the lifetime of the testator, leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such per- son had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. Devises of estates tail will not lapse, for where any person to whom any real estate shall be devised for an estate tail, or an eslate in quasi entail, shall die in the lifetime of the testator, leaving issue who would be in- heritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.(ra) The above exceptions however, it would appear, are only applicable where the bequest is to the issue of the testator, and where the interest or estate is not determinable before the death of the person to whom the bequest is made; for unless a contrary intention shall appear by the will, (k) 18 L. J. 454. [l) Jackson v. Hamilton, 3 L. J. 702. (m) 1 Vic. c. 26, sect. 33. (n) Sect. 32. 60 PARSONS ON THE LAW OF WILLS. such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, r »7d. 1 '^^ ^y *reason of such devise being contrary to law, or otherwise L J incapable of taking effect, shall be included in the residuary de- vise contained in the will.(o) It has been established that where money is given, to be paid at a future time out of a real estate, and the legatee die before the time, it sinks into the estate ; so also the like rule prevails where a legacy is charged on real estate to be purchased with the residue of personalty — and where a testator gave pecuniary legacies to several persons, with a direction that the legacies should be paid with six months after his de- cease ; and that, in case any or either of the legatees should die, not having received their respective legacies, and leaving any child or chil- dren, such child or children was to be entitled to their parent's share in equal proportions ; and some of the legatees died in the testator's life- time, leaving children — it was determined such children did not take their parent's legacy. (p) It has been before observed, that a legacy may lapse where the gift is void, as being a charitable bequest, and so it appears in compliance with the old maxim, accessorium non ducit sed seqicitur suum principale, a bequest was held void where a testator gave two thousand pounds stock to certain churchwardens, upon trust, to apply eight hundred pounds in erecting Almshouses, and directed the dividends of the residue, after the houses should have become fit for habitation, to be applied for the main- tenance of poor persons residing therein, for as the trust for the erection of Almshouses was void, the trust as to the residue of two thousand pounds also failed, and the wholly legacy fell into the residue as undis- posed of. VESTED AND CONTINGENT LEGACIES. If a legacy is bequeathed to one, to he paid or payable when he attains the age of twenty-one years, and he die before attaining that age, it is nevertheless a vested legacy, and will go to his executor or administrator, and is payable at the period when he would have attained the age the i-j,_r , legacy was directed to be paid *to him had he have lived. It is L J an interest commencing ra prsesenti, though solvendum m futuro — the time, be it observed, being annexed to the payment and not to the legacy. Blackstone, in referring to the above, observes, this distinction is borrowed from the civil law, and its adoption in our courts is not so much owing to its intrinsic equity as to its having been before adopted by the ecclesiastical courts. For since the chancery has a concurrent juris- diction with them in regard to the recovery of legacies, it was reasonable there should be a conformity in their determinations, and that the subject should have the same measure of justice in whatever court he sued. Where, however, such legacies are charged upon real estate, in both cases they lapse for the benefit of the heir. (o) 1 Yio. c. 26, sect. 25. {p) Smith v. Oliver, 13 Jur. 159. DONATIO MOETISOATJS A. 61 A bequest of residue of personal estate to trustees, to pay one-third of the income to testator's son for life, another third to his daughter R. for life, and the remaining third to his daughter M. and his grand- daughter E. equally for their lives ; and from and after the decease of his said children and grandchild, or either of them, there was a direction for the trustees to transfer the share or shares of him, her, or them so dying, of and in the principal stocks, unto, between, and amongst all and every the child and children of the testator's son, and daughters, and grandchild respectively, so dying, lawfully begotten, share and share alike, if more than one ; and if but one child, to such only child — was construed to mean that each of the children of the son, living at the testator's death, took vested interests immediately/ on the testator's death, (j) So vested interests may be taken under a will, on the death of a testa- tor, subject to be divested, on their deaths, in the widow's life.(r) So also vested interests may be acquired subject to the rights of future-born children ;(s) and where a sum of money was directed to be invested, and the payment of the interest to a daughter for life — the fund then to be held by the trustees to pay the same, or assign the securities whereon the same might *be then placed, unto, between, and amongst all j- ^_„ -. and every the child and children of his said daughter, as and j- -• when they should severally attain the respective ages of twenty-one years, in equal shares — "to whom I give and bequeath the same accord- ingly," with benefit of survivorship in case of death before the legacy should become payable, with a direction for maintenance, it was held the child of the testator's daughter, dying under twenty-one years of age,-took a vested interest in the legacy. (<) " I think the expressions in this will clearly bring the case within the principle which has been well established and fully recognized in the case of Leake v. Robin- son ;(m) that is, that if there be a direct gift to legatees, a direction for payment when they shall attain a certain age shall not prevent the vest- ing of the legacy, and therefore the personal representative of the legatee so dying under the given age shall be entitled" (per Lord Grain- worth) — but a legacy to the children of husband and wife has been held to mean only such children as were born at the testator's death. CONDITIONS ANNEXED TO BEQUESTS. A condition may be such as the law will not countenance, or render its assistance to have carried into effect, and such condition, where it is annexed to a gift, will be void, but the donee, by his non-performance of it, will not be prejudiced — it therefore is incumbent on the practi- tioner, in those cases where a testator may, either through selfishness or ignorance, wish such a condition to be annexed to a gift, to inform him of the consequences. An allowance bequeathed to a feme covert, on condition that she lived (?) Salmon v. Green, 13 Jur. 2T2. H Beav. 453. (r) Burrell t. Baskerfield. («) Ellis v. Maxwell, 12 Beav. 104. (i) Bartholomew's Trust, 14 Jur. 181. {u) 2 Mer. 363. 62 PARSONS ON THE LAW OF WILLS. apart from her husband, has been held good, but the condition being contra honos mores, yolA-hy Where there is a condition annexed to a bequest of personal property tantamount to a prohibition of marriage, it is void — but on devises of the inheritance there may be such a condition, restraining the. right of marriage, not amounting to an absolute prohibition. In the case of Stock- r*77-i pol^ '^- Beaumont, 3 Ves., 98, *in the course of the judgment it L J was observed that, in deciding questions that arose upon legacies out of land, the court very properly followed the rule that the common law prescribes and common sense supports, to hold the condition binding where it is not illegal — where it is illegal, the condition would be rejected and the gift pure. When the rule came to be applied to per- sonal estate the court felt the difficulty, upon the supposition that the ecclesiastical court had adopted a positive rule from the civil law upon legatory questions, and the inconvenience of proceeding by a different rule in the concurrent jurisdiction, in the resort to this court instead of the ecclesiastical court, upon legatory questions, which after the restora- tion was very frequent, and in the beginning embarrassed the court. Distinction upon distinction was taken to get out of the supposed diffi- culty. How it should ever have come to be a rule of decision in the ecclesiastical court is impossible to be accounted for but upon this cir- cumstance, that in the unenlightened ages soon after the revival of letters, there was a blind superstitious adherence to the text of the civil law. They never reasoned, but only looked into the books and trans- ferred the rules, without weighing the circumstances, as positive rules to guide them. The words, " and at the death of my sister BI., I give and bequeath all the property I die possessed of in remainder to my own dearest niece B., subject to the annuity of one hundred pounds, as before named, to my sister P., but if my niece B. should be married at the time of my sister M.'s death (which event took place), I in that event bequeath my pro- perty, at the decease of my sister M., to my sister P. for life," were held to be not in general restraint of marriage, but until marriage ;(w) and where a person has once accepted a legacy in accordance with the terms in a will, preventing him from questioning the acts of the exe- cutors, he waves his right of afterwards proceeding against the executors for profits realised by them by the employment of a portion of the trust fund, (a;) l-^»Q , A condition inconsistent with the gift is void, and so a'condi- L ' tion that a tenant in fee shall not alien is repugnant, but the gift itself, as before observed, will be good, and the condition rejected. ACCUMULATIVE LEGACIES. Where, in the same will, a sum of money is given for the same cause, {v) BrowQ v. Peck, 1 Eden's Reports, (w) Godfrey v. Hughes, 1 Rob. E. R. 593. [x) H Jar. 1023, 16 L. J. 509. DONATIOMORTISOATJSA. 63 in the same act and totidem verbis, or with only a slight difFerenoe, a single and not a double or accumulative legacy passes. The courts, however, are guided, in considering this doctrine, as to whether or not the legacy is accumulative, by the circumstance of the case, and in particular by the intention of the testator, collected from the face of the instrument. A distinction is observable in those oases where the words import only a substitutionary and not an accumulative mean- ing — and the courts will, unless the intention to substitute is clearly defined, consider the gift cumulative. In a case where a person be- queathed one thousand pounds to trustees, to apply the dividends for the maintenance of C. L. till twenty-two, then in trust for her absolutely, and by a codicil reciting this bequest the testator revoked the trusts of the one thousand pounds, and in lieu thereof declared trusts for the maintenance of C. L. till twenty-two, then for C. L. for life, for her separate use; and if she died leaving issue, in trust for her child or children, as tenants in common equally — but if without leaving issue, gift over. Another codicil, the last, contained these words, " I have altered my views respecting C. L., respecting the one thousand pounds as left in my will, and which I now think might prove a snare for her ; I now leave five hundred pounds for her education and board." What- ever might have been the effect of the gift of five hundred pounds by the latter codicil upon the gift of the one thousand pounds in the will, it was held not nibstitutionary for the gift in the former codicil ;(;y) but where S. D. gave, by his will, to his natural or reputed daughter, BI. S., two thousand pounds for her separate use, and by a codicil he said, " I add three thousand *pounds to the two thousand to which M. S. is p ^_q , entitled under my will ;" and by a codicil made a few days before L J his death, and which in the attestation clause was published as his will, he said, "not having time to alter my will, and to guard against any risk, I hereby charge the whole of my estates and property in the funds with the sum of twenty thousand pounds, for my daughter M. D." &c., calling her by her own name, and not, as he had previously styled her, " M. S." The last legacy of twenty thousand pounds was considered substitutional and not cumulative. (2) To prevent questions of perpetuity arising with regard to devises by will, and to check in some measure the prejudicial results that would naturally arise by testators directing their estates to be retained to accumulate for lengthened periods, it was found advisable to introduce the 39 & 40 Geo. III., c. 98, commonly called Thellusson's Act, whereby persons are prohibited, by deed or will, to dispose of any real or personal property in such manner that the rents and profits or produce thereof shall be wholly or partially accumulated for any longer term than the life of the grantor or settler, or the term of twenty-one years from the death of any such grantor, settler, devisor or testator, or .during the minority or respective minorities of any person or persons who shall be living or in ventre sa mere at the time of the death of such grantor, devisor or testator : or during the minority or respective minorities only {y) Sawrey v. Rumney, IT Jur. 83. (2) Russell v. Dickson, 17 Jur. 30Y. 64 PARSONS ON THE LAW OF WILLS. of any person or persons who, under the uses or trusts of the deed, sur- render, will, or other assurances directing such accumulations, would, for the time being, if of full age, be entitled unto the rents, issues and profits, or the interest, dividends, or annual produce so directed to be accumulated ; and in every case where any 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 accumulated, shall, so long as the same shall be directed to be acou- P,n/^-| mulated contrary to the provisions of this act, go to and be L J received by such person or *persons as would have been entitled thereto if such accumulation had not been directed. This does not extend to any provision for payment of debts of any grantor, settler, or devisor, or other person, or to any provision for raising portions for any child or children, or any grantor, settler, 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 pro- duce of timber or wood upon any lands or tenements, but all such pro- visions and directions are to be made and given as if the act had not passed. The restrictions are to take effect with respect to wills made and executed before the passing of the act, in cases where the devisor or testator shall be living, and of sound mind, after the expiration of twelve calendar months from the passing of the act. A devise of real and personal estate to trustees, to pay the rent and profits thereof to a granddaughter F. E., during her life, for her separate use, and after her death to sell and dispose of the same, and divide the proceeds between her children, upon their respectively attaining the age of twenty-one years, with remainder over to the children of testator's nephew, in like manner as he had bequeathed unto them a moiety of the residue of his estate and effects — with a power to the trustees to sell and convert the residue of his real and personal estates, and subject to the payment of his debts and legacies, he directed them to invest the pro- ceeds and to accumulate the income, and to divide the principal and accumulations into two equal parts, and transfer one of such parts unto and amongst the children of his granddaughter P. E., the share of each child to be paid at the age of twenty-one or marriage, or to the executors of such child, if dying under that age and leaving issue; the shares of the sons to be considered as vested at twenty-one, or dying under that age and leaving issue, and of the daughters at twenty-one or marriage — the testator dying in 1826, E. P., the granddaughter, being living and unmarried, the period for accumulating the rent and profits of the moiety r*Qi T °f '^° residue intended for her *children, it was held, expired L -! in 1847, and that the direction to accumulate for a longer period was void under the provisions of Thellusson's Act (a) Lord St. Leonard, in delivering his judgment in Lord Barrington v. Liddell, observes, "there is no magic in the word devise (in alluding to the 39 & 40 Geo. III., c. 98), it clearly means a disposition by will — (a) Ed-wards t. Tooke, 17 Jur. 311. DONATIO MORTIS OAUS A. 65 under any conveyance, settlement, or devise. I suppose a conveyance is clear enough. If, then, a man takes under a conveyance, does it signify under what part of the deed he finds it ? — it cannot. A settle- ment — can it matter where it is found, so long as he has an interest in that settlement ? A devise — can it possibly matter in what part of the instrument is found the particular interest which is created ? — it cannot matter. So a devise of real estate, upon trust, to raise a sum of two thousand pounds annually, for so much of the life of A. B. as should fall within twenty-one years from the time of the testator's death, and also during such other time of the life of A. B. as there should be in existence and actually born any child, entitled under the trusts to the accumulated fund — with a direction to the trustees to invest and accumulate the two thousand pounds at compound interest during the life of A. B., and the trusts of the accumulated fund to be for the younger children of A. B., and in default of younger children, for the executors, administrators, or assigns of A. B., subject to the ninety-nine years term — the testator devised the estates in strict settlement. A. 13. was the testator's only child, and had himself only one son, who after the fund had accumulated for twenty-one years after the testator's decease, claimed the interest of the accumulated fund, and prayed the court would declare the annual sum should no longer be raised — when it was determined the gifts to the younger children were portions within the meaning of Thellusson's Act, but that the trust for accumulation was valid. (6) So where the rents of Irish estates were directed to be accumulated *and become part j- ^^n -i of the personal estate, it was determined, that although Thellus- L J son's Act did not apply to Irish estates, nevertheless it applied to the rents, as invested from time to time;(c) and that although the rents, which ought to be considered as corpus, might be invested for more than twenty-one years from the testator's death, yet that the income thereof could not. It is a general rule that where two difierent instruments, as a will and a codicil, give separate legacies, whether of the same or of a larger amount, unless a clear contrary intention is apparent on the face of the instruments they will be looked upon as cumulative — but this may be repelled where there is internal evidence of an intended substitution ;(cZ) but where the same sum is given to the same person by two instruments, but the latter upon a contingency, it will not be accumulative but an additional legacy.(e) In claiming an interest under a deed or will, it has been before observed that full effect must be given to the instrument. So that where a testator believes he has property which really does not belong to him, and gives it to another, and gives to the real owner of the estate an interest by his will, the owner of the estate will not be permitted to take under the will, and also defeat the testator's disposition of his estate. (5) Beech v. Lord St. Vincent, 14 Jur. 731. 19 L. J. 0. 130. (c) 12 Bear. 104. [d) Allen t. Callow, 3 Ves. 289. (e) Hodges r. Peacock, 3 Ves. 735. 66 PARSONS ON THB LAW OT WILLS. AS TO THE ADEMPTION OF LEGACIES. The ademption of a legacy is the taking of it away by the testator during his life, by an alienation of the subject of it or otherwise, or by it being even paid to the testator himself, which may be where a creditor pays a debt to a person who has bequeathed the same to him. The ademption need not necessarily be in express terms, if by an indi- cation of the facts and circumstances of the case the intention is clear, for the ademption may be by implication j so a legacy may be adeemed where a parent makes a provision for his child by his will, and subse- P^oq -| ' ^^ ^^^ executor is incapacitated from *fulfilling the office, L J it is the same as if he had not been appointed, and administration will be granted accordingly ; and a bequest by a person of the remainder of her money (after the payment of her debts, funeral expenses, and legacies to her three nieces and nephew) are words sufficient to entitle one of the nieces to administration with the will annexed, as residuary legatee, (j) The misconduct of a testator's wife, in contracting a second marriage during her husband's lifetime, where infants are entitled to participate in the fund, is a sufficient ground to warrant the court in refusing to grant her administration, and in granting it to the brother.(r) When three children of a testator take vested interests' in the residue, subject to the life estate of their surviving parent, and two die, and the only child surviving the mother renounces, the court will grant adminis- (l) Hay T. Willoaghby, 14 Jur. 750. (m) Young v. Skelton, 3 Hagg. 789. (n) 3 Add. 78. (o) In re goods R. Wood, 14 Jur. 558. 4 Hagg. 387. (p) In re goods Thornton, 13 Jur. 1084. (q) In re goods Hand, 13 Jur. 663. (r) Chapel v. Chapel, 3 Curt. 431. ADMINISTRATION. 89 tration witli the will annexed of the testator to one of the children of the deceased's daughter. Administration with the will annexed will be granted in those eases where no executor has been appointed, or where through his incompe- tency, or death before probate, his appointment becomes inoperative, or he refuses to act, or where he dies when he has only partly administered, or where the estate remains unadministered through the chain of repre- sentation being severed by the death of the administrators, and in those cases where the executors are precluded from executing the office, or decline to interfere therein. A limited administration will also be granted where the will is lost, there being nothing to raise the supposition that it has been intentionally suppressed, (s) An administrator de bonis non is merely an administration of the goods of the deceased as are left unadministered by the former executor or administrator, and by such grant the administrator de bonis non becomes the only personal representative of the person originally deceased. ^ADMINISTRATION DURANTE MINORITATE. [*117] A distinction exists in the Spiritual Court between an infant and a minor — the former is so denominated if under seven years of age, the latter from seven to twenty-one. The ordinary ex officio assigns a guardian to the infant. The minor himself nominates a guardian, and the guardianship in either case is granted to the next of kin of the child, unless sufficient objection to him be shown, and administration is committed to such appointed for the benefit of the infant or minor.(?) In those cases where administration is granted during the minority of two persons, it ceases when one of them comes of age, and Admin- istration will be granted to him.(M) Where a person under age is entitled to administration in the case of an intestacy, administration will be granted durante minoritate to another for him, and the Ecclesiastical Judge may exercise a discretionary power in nominating whom he pleases,(t!) but such administration is generally granted to the next of kin of the infant. — In Eieh v. Cham- berlayne, where the child was between the ages of seven and twenty-one, it was determined that he might nominate a guardian himself, but the court will reject such nominee where he is an improper person. The 38 Geo. III., c. 87, s. 6, recites that inconveniences arose from granting probate to infants under the age of twenty, and enacts that where an infant is sole executor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the Spiritual Court shall think fit, until such infant shall have attained the full age of twenty-one years, at which period, and not before, probate of the will shall be granted to him. (s) 2 Hagg. N. E. 555. (0 Toller's Exors. 99. \u) Welby v. Poulton, Mosely, 99. [v) West v. Wilby, 3 Phill. 379. June, 1855.— 26 90 PARSONS ON THE LAW or WILLS. ADMINISTRATION DURANTE ABSENTIA. By the 38 Geo. III., c. 87, after reciting that the existing law was r#lisi ii'S'ifficient to enforce a speedy distribution of the assets of L J *deceased persons, where the executor to whom probate had been granted was out of the jurisdiction of the courts of law and equity, declares, that at the expiration of twelve calendar months from the death of any testator, if the executors or executor to whom pro- bate has been granted are residing out of the jurisdiction as aforesaid, it shall be lawful for the Ecclesiastical Court, which had granted probate of the will upon the application of any creditor, next of kin, or legatee, grounded on an affidavit, to grant administration. The affidavit above alluded to should state that there is due, and to the person making the application, upon bond or simple contract, or upon account unsettled, as the case may be (in which latter case he swears to the best of his belief only,) from the estate and eifects of the deceased the amount due, or he believes to be due, as the case may be, and that (the person named executor) the only executor capable of acting, and to whom probate hath been granted, has departed this king- dom, and is out of the jurisdiction of her majesty's courts of law and equity, and that the deponent is desirous of exhibiting a bill in equity, for the purpose of being paid his demand out of the assets of the testator. And the Court of Equity, in which the suit is depending, may appoint any person or persons to collect in any outstanding debts or effects due to such estate, and give discharges for the same, such persons giving security in the usual manner to account for the same ; and it has been determined that the provisions of this act are applicable where an executor is out of the jurisdiction of the courts here, although not out of the realm ;(;«) and where such limited administration has been granted, it is determined upon the person returning ;(a;) and it may be collected from the authorities, that for the benefit of a deceased's estate, the court will exercise its inherent power of granting administration to some third person until the executor presents himself within the juris- diction of our courts. [*119] *AD MINISTRATION PENDENTE LITE. When there is a suit pending, whether it is concerning the executor- ship or the right to administration, the Ecclesiastical Court may grant administration pendente lite,M but neither of the parties to the suit will be selected. (z) An administrator pendente lite is merely an officer of the court, and holds the property only until the suit is terminated, when he will have to pay over all he has received to the persons entitled to it. (a) (w) 2 Add. 504. [x) 1 Will. Exors. [y] Maskeline t. Harrison, 2 Lee. (2) Young v. Brown, 1 Hagg. {a) In goods of D. S. Graves, 1 Hall, 315, and see Waddilove, E. D. ADMINISTRATION. 91 It appears questionable whether the fact of an administrator ad litem being made defendant in an administration suit, is sufficient to satisfy the court that there are no personal assets, and to warrant a decree being made against the real estate without the usual preliminary accounts of the personal estate ; but if the plaintiffs in the suit could obtain general administration, the personal estate would not be sufficiently represented by an administration ad lilem.{h) ADMINISTRATION AD COLLIJSENDA BONA. Where a person dies in this country, and leaves the instrument dis- posing of his effects in another, the court will not allow the estate of the deceased to be prejudiced thereby, but will grant administration to a person to collect the assets and protect the property until the instru- ment is forwarded. (c) So likewise the court will grant probate to an individual as substituted executor, under particular circumstances. (dJ) This limited administration does not constitute the person either executor or administrator, as it is merely to keep the goods in safe custody, and to do other necessary acts for the benefit of the estate. ADMINISTRATION GRANTED TO A CREDITOR. It is said the right of a creditor to take out administration is warranted by custom, and not by express law. Preparatory to a *creditor _^.,-„^ taking out administration, the ordinary must issue a citation L J for the next of kin in special, and all others in general, to accept or refuse letters of administration, or show cause why they should not be granted to a creditor ;fe) but the court will not sanction an application on the part of a creditor to revoke the administration, as it would be tending to establish the right of a creditor to contest an administration already granted. (/) But it has very properly been determined, that administration to an undertaker for the expenses of the funeral, on a mere affidavit of debt, will be refused, notwithstanding there is no known relation to the deceased, and the person ordering the funeral will be held responsible for the expenses thereof. (£/') And by the 33 Geo. III., c. 87, if after the expiration of twelve calendar months from the testator's death, the executor to whom probate had been granted shall continue to reside out of the jurisdiction of his majesty's courts, a creditor may, on application in the manner before referred to being made, obtain administration. ADMINISTRATION TO THE CROWN. The right to goods belonging to persons dying intestate, without leaving husband or widow, and without kindred, as bona vacantia, has (J) Eobinson t. Bell, 17 L. J., De G. & S. 630. (c) Howell T. Metcalf, and see Waddilove, B. D. [d) In re goods E. Wilmot, 16 Jur. 1026. («) Burn, Eccl. L. (/) Waddilove E., Di. 30. {g) In goods M. Fowler, 16 Jur. 894. 92 PARSONS ON THE LAW OF WILLS. from the earliest times been vested in the king, in right of Lis crown /^) By the 15 Vic, c. 3, administration of the personal estate of intestates and others, where her majesty is entitled, may be granted to the solicitor of the treasury for the time being, and his successors (as nominee of the crown,) and moneys not claimed by the grantees of the crown, are to be carried to the consolidated fund, and claims after- wards established are to be paid out of such fund. "Where a bastard dies intestate, and without wife or child, the goods belong to the crown, although it is usual to transfer the claim of the r=i<19n <'^°^'^ ^° some appointee, to whom the ordinary *grants adminis- L J tration;(i) and administration to the eifects of a bastard, have, under particular circumstances, been granted to a creditor, there being no wife or child, (/c) The queen, as being entitled to the Duchy of Lancaster separate from the crown of England, is entitled to the goods of a bastard intestate, dying without next of kin, in right of her Duchy of Lancaster. (Z) Where no next of kin appears to claim administration, and administra- tion is taken out by the solicitor to the treasury, and subsequently the next of kin appears, and proves his claim, the administrator will be called upon for interest, at four per cent., on stock sold out by him, from the time when it was sold out.(m) ADMINISTRATION DE BONIS NON. This administration is granted when the first administrator dies before he has fully administered. The death of the first administrator will be presumed where he has been long absent, and not heard of; for where administration had been granted in 1832, and the administrator, before he had wholly adminis- tered, left his home, and had never since been heard of, notwithstanding advertisements had been published and inquiry made, the court upon application of one of the residuary legatees, allowed administration de bonis non of the testator to pass, with justifying security. (») So the court will grant administration de bonis non with a will annexed, to the representative of the next of kin entitled to a fractional part of the residuary estate, such representative being entitled in the distribu- tion, (o) (h) Djke V. Walford, 5 E. F. M. 434 ; 12 Jur. 839. (i) Vin. Abr. and see Toller's Exors. (Jc) Hagg. R. (l) 5 Moor's Ee. 434. (m) Turner v. Maule, 3 De G. & S. idl. [n) In re goods J. Kemp, P. C, 17 February, 1853. (o) 2 Hagg. 60. ASSETS AND CHATTELS REAL.. 93 *CHAPTEK IX. ASSETS AND CHATTELS REAL. [*122] Legal Assets. Equity of Redemption, how considered. Foster v. Haudley. Executors may convert Assets. Operation of 11 Geo. and 1 Wm. IV., ^. 4T. Executor paying money upon erroneous construction of Will. Advowsons. Judgment of Assets quando acciderint. Marshalling Assets. Several Funds and several Claimants. Operation of 3 & 4 Wm. IV., c. 106, with regard to Assets. Chattels Real. How descend. Heir Looms. Not devisable from the Inheritance. Assets here alluded to (as distinguished from the same term made use of in trade, when speaking of a persons effects) include real and per- sonal property in the hands of an heir, executor or administrator, enough to satisfy the debts, liabilities and legacies of the testator. They may be distinguished by their being either legal or equitable : the former are recoverable through the instrumentality of a court of law, by the heir or executor — the latter, through the intervention of a court of equity. Legal assets, therefore, are such as constitute the fund for the payment of debts according to their legal priority; equitable being subject to dis- tribution on equitable principles, according to which, as equity follows equality, they are divided j3a?-ij)assM amongst all creditors, (a) An equity of redemption was, until recently, considered (notwithstand- ing the 3 & 4 Wm. IV., c. 104) as merely an equitable interest, and accordingly decided to be equitable assets. (6) Various, however, were the opinions upon the question, and notwithstanding it could be collected from the authorities, that *mortgaged hereditaments belonging to i-jicinq-i a testator, and redeemed by the executor, although only recover- <- J able in equity, were assets at law — yet the contrary opinion prevailed with regard to an equity of redemption, in other cases; the doctrine appears, however, to have been finally settled in Foster v. Handley,(c) which was a creditors's suit, under which the equity of redemption in fee, in an estate subject to the mortgage, had been sold, and it was contend- that the residue became legal assets under the 3 & 4 Wm. IV., c. 104. Lord Cranworth observed, that a specialty creditor must be paid in full, and that there was nothing to guide as to the meaning of the Act of Parliament except the language — " When any person shall die seized of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal, or incorporeal or other real estate, whether freehold, customary hold, or copy-hold, which he shall not, by his last will, have charged with or [a) B. Ab. Fonbl. ; Burn's E. L. (6) 1 Vern. 410. Pluckuet v. Kirk. Perryor. (c) 15 Jur. 73. Sawley V. Gower. 2 Vern. SI. Tre v. 94 PARSONS ON THE LAW OP WILLS, devised subject to the payment of his debts, the same shall be assets, to be administered in Courts of Equity for the payment of the just debts of such person, as well debts due on simple contract as on specialty." Then comes this proviso — " Provided always, that in the administration of assets by Courts of Equity, under and by virtue of this act, all creditors in specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands." That is to say, in every suit in which freeholds and copyholds, not having been devised for the payment of debts, are to be administered, all specialty creditors shall be paid in full before the simple contract creditors. This was not assets at all, legal or equitable, before the act passed ; and the act says, " it shall be legal assets in a particular mode." In the absence of any particular direction or trust as to the appropria- tion of assets coming into an executor or administrator's hands, he may convert them into ready money to answer the demands made upon him r*194-l ^° ^^^ capacity which he has *assumed, satisfying those demands L -I according to their strict legal priorities. (c?) It is said that those assets that are clearly legal shall not assume, by being recoverable only in equity, an equitable nature; and that if a mere trust estate descend on the heir at law, notwithstanding the necessity of resorting to a Court of Equity to reduce it into possession, yet it shall be legal assets, since a trust estate is made assets by the statute of frauds. (e) Previous to the 3 & 4 Wm. IV., c. 104, where lands were devised to be sold for the payment of debts, they were assets merely for that pur- pose ; and if they had been given for the payment of legacies, and not for debts, they must be appropriated only for the particular purpose of paying legacies; but the operation of that act expressly makes them liable for the payment of debts, but does not interfere with their being mar- shalled. The 3 Wm. & Mary, c. 14, made freehold lands in the hands of an hseres factum bound by specialty debts, although an hxres naius was liable to specialty debts in respect of lands descended ;(/) it must, how- ever, be remembered, that in the absence of a direct trust to sell and convert land, and appropriate for the payment of debts, the personalty must be first exhausted. And the 11 Geo. and 1 Wm. IV., c. 47, s. 2, for remedying frauds committed on creditors by wills, declares all wills and testamentary limitations, dispositions or appointments, already made by persons, or to be made by any person or persons whomsoever, of or concerning any manors, messuages, lands, tenements, or hereditaments, or any rent, profit, term or charge out of the same, whereof any person or persons at the time of his, her, or their decease, shall be seized in fee simple, in possession, reversion, or remainder, or have power to dispose of the same by his, her, or their last will or testaments, are to be deemed (d) See ante, p. 96, and Ousley v. Anstrusther, 10 Beav. Lomax v. LomaXj 13 Jur. 1064. (c) Toller's Exors. (/) 3 Sug. V. & P. 151. ASSETS AND CHATTELS EEAL. 95 or taken (only as against such person or persons, bodies politic or corpo- rate, and his and their heirs, successors, executors, administrators, and *assigns, and every of them with whom the person or persons r^-inr-i making such wills or testaments, limitations, dispositions or ap- L J pointments, shall have entered into any bond, covenant, or other specialty binding his, her, or their heirs) to be fraudulent and utterly void, and of none effect — any pretence, colour, feigned or presumed consideration, or any other matter or thing to the contrary notwithstanding. Creditors are empowered to maintain actions of debt or covenant upon the bonds, covenants, and specialties, against the heir at law of such obligor and such devisee, or the devisee of such first-mentioned devisee. (§') If there is no heir at law, actions may be maintained against the devisee. And an exception is made in favour of limitations for just debts, or por- tions for children ;(7i) and in those cases where the heir at law is liable to pay the debts of the ancestor, in regard of any lands descended to him, and sells or makes over the same before any action brought, he is answerable for such debts to the value of the lands sold; in which cases creditors are to be preferred as in actions against executors and adminis- trators, and execution taken out to the value of the land as if the same were his own proper debt, but lands hona fide aliened before action brought are not liable to such execution. (?) Devisees are placed in the same position as heirs at law with regard to lands devised to them and aliened before action brought, — and traders' estates are to be considered as as.sets to be administered in courts of equity ; but all creditors by specialty, in which the heirs are bound, are to be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty, in which the heirs are not bound, are to be paid any part of their demands. (^) The 5 Geo. II., c. 7, s. 4, declares negroes, and other real estate within the British plantations in America, belonging to any person indebted, to be liable and to be chargeable with all debts, duties and demands, of whatever nature or kind, owing by any such person to his majesty and any of his subjects, and are considered assets for the satis- faction thereof, in the same manner *as real estates are liable, r^-iof.-, by the law of England, to the satisfaction of debts due on bond, L J or other specialty, and are to be subject to the like remedies, proceedings, and process, in any court of law or equity, in any of such plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, hereditaments and real estate, towards the satis- faction of such debts, and in like manner as personal estates, in any of the said plantations respectively, are sold or disposed of for the satisfac- tion of debts. An executor will not be charged with having assets through his having paid a legacy upon an erroneous construction of the will.(Z) Lord Coke observes, that an advowson is assets to satisfy a warranty, but that an advowson in gross is not extendable upon writ of elegit, {g) Sect. 3. (h) Sect. 5. {i) Sect. 6. (/c) Sect. 9. {I) Clark V. Bates, 2 De G. & S. 203. 96 PAESONSONTHELAWOFWILLS. because no annual value can be set upon it ; but it has since been settled that an advowson in gross, whether the owner's interest therein is legal or merely equitable, is assets for the payment of debts, and the court of chancery will direct a sale accordingly. (m) In a subsequent case, n) Lord Ardwick remarked that it had been said, the authorities went no further than where there had been a trust of an advowson, and did not extend to a legal interest, but that this argument was quite cut up by the roots by the determination in the house of lords of Tong v. Robinson. The operation of the 3 & 4 Wm. IV., c. 104, has effectually removed these distinctions, and makes an advowson assets on the same footing as real estate. A judgment of assets quando acciderint, was held to include, as well the assets received by the executor after that judgment was signed, as also the assets that came or ought to have come into his possession, between the issuing of the writ or the plea, and the judgment, in the due course of administration. (o) [*127] *MARSHALLIXG ASSETS. Marshalling of assets, signify an arrangement of the funds according to their different classes, for the purpose of enabling all persons having an equitable or beneficial interest, or who claim an equitable or beneficial interest therein, to have the same apportioned to them accordingly, not- withstanding there are intervening claims. Where there are several funds, and several claimants against them, and at law, one of the claimants may resort to either fund for satisfac- tion, but the others can resort only to one ; equity will interpose and marshall the funds, and allow the party whose remedy at law is confined to one fund, to receive his proper portion. If, at the death of a testator, there are ample funds to satisfy simple con- tract and specialty creditors, but the executors commit a devastavit of a part of the personal assets, and expend the residue in payment of specialty debts, the simple contract creditors will not, by the devastavit having been committed, be prevented from marshalling. (p) A testator devised his leaseholds, subject to his debts and legacies, and to the estate for life of his wife, to fall into the residue which he gave to J. H. and five others, and appointed J. H. an executor, and died in 1834, leaving his widow and six residuary legatees, and also certain debts; J. H. bought the shares of four of his co-residuary legatees, and in 1845 deposited with the plaintiff, as security for a sum borrowed, the title deeds of certain of the leaseholds and freeholds, which passed under the will, with a memorandum referring to a note of hand for the amount, and stating it to be a deposit of his house and premises at E., under- taking to execute a conveyance of the property, when required. Many of the debts of the testator remained unsatisfied in 1843 and 1845, and under these circumstances it was determined first that this was a good (m) Tong T. Robinson, 3 Tin. Abr. 144. (n) "ffestfaling t. Westfaling, 3 Atk. 460. (o) 5 Dowl. & L. 732. (p) You. and Col. N. C. 211. ASSETS AND CHATTELS KEAL. 97 equitable mortgage, and *was extended to include the beneficial r^ino-i interest in the five-sixths of the premises referred to at E., and L J not a mortgage as executor, that the plaintiff might, if the security proved inadequate, marshall the assets.(g) It was also laid down in the above case, that purchasers from execu- tors or other persons having power to deal with real estate, in the absence of anything tending to create a supposition, that the executors are selling for payment of debts, are discharged from seeing to the appli- cation of the purchase money?. The 3 & 4 Wm. IV., c. 106, appears to favour the doctrine of mar- shalling assets J it effects a material change with regard to land to be applied as assets, declaring the word "land" shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, and whether freehold or copyhold, or of any other tenure, and whether descendable according to the common law, or according to the custom of gavelkind, or borough English, or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and to any possibility, right, or title of entry, or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles and interests, or any of them, shall be in possession, reversion, remainder, or contingency. The " purchaser" is to mean the person who last acquired the land otherwise than by descent, escheat, partition or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent. The word " descent" is extended to mean the title to inherit land by reason of consanguinity, as well where the heir is an ancestor or collateral relation, as where he is a child or other issue. The word " descendants" of any ancestor, extends to all persons who must trace their descent through such ancestor ; and the expression " the person last entitled to land," extends to the last person *who had a right thereto, whether he obtained the posses- ^^^„„^ sion or receipt of the rents and profits or not; and the word <- -I " assurance" is to mean any deed or instrument (other than a will) used for the conveyance of any land, at law or in equity. Descent is to be traced from the purchaser, and the person last entitled to the land is considered to be the purchaser thereof, unless it is proved he inherited the same; and in tracing the descent, the last person from whom the land shall be proved to have been inherited, is in every case considered to have been the purchaser, unless it is proved that he inherited the same.(r) In those cases where land shall have been devised by any testator, who shall die after the 31st day of December, 1833, to the heir, such heir will be considered to have acquired the land as a devisee, and not by descent ; so where any land shall have been limited by any assurance (g) Haynes v. Forshaw, 17 Jur. 930. (r) Sect. 2. 98 PARSONS ON THE LAW OF WILLS. executed after the 31st of December, 1833, to the person or the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof.(s) Where any person has acquired any land by purchase, under a limi- tation to the heirs, or to the heirs of the body of any of his ancestors, contained in an assurance executed after the 31st of December, 1833, or under a limitation to the heirs, or to the heirs of the body of any of his ancestors, or under any limitation having the same eiFect, contained in a will of any testator, who shall die after the 31st day of December, 1833, such land shall descend, and the descent traced as if the ancestor named in the limitation had been the purchaser.^*) Brothers and sisters are considered to inherit not immediately from his or her brother or sister, but the descent must be traced through the parent.(«) The lineal ancestor may be heir to any of his issue, and where there r*mfn ^^■'•^1 ^^ "^^ issue of the purchaser his nearest lineal ancestor L J *shall be his heir ; so that the father will be preferred to a brother or sister, and a more remote lineal ancestor, to any of his issue other than a nearer lineal ancestor. The alterations in the law of inheritance, by these recent enactments, extend to copyholds. But the customs prevailing in copyhold manors, as to the parties entitled in cases of intestacy, are not interfered with. CHATTELS EEAL. Chattels real, saith Sir Edward Coke, are such as concern or savour of the realty, as terms for years of land, wardships in chivalry (while the military tenures subsisted,) the next presentation to a church, estates by statutes merchant, statute staple, elegit, and the like. They are interests issuing out of land, or annexed to real estate, and are not equal to the lowest estate of freehold. Chattels real being, as it were, so inseparably attached to the freehold, that their severance therefrom would, in many instances, be a dispoliation of the inheritance — the law allows them to accompany it wherever it descends. It is the immobility of a chattel which renders it real,{v) and it is not transferable by those species of assurances, for the perfecting of which, livery of seizin was essentially requisite. Chattels real necessarily descend to the heir at law with the inherl- (s) Sect. 3. (t) Sect 4. (u) Sect. 5. (v) Where a person is seized of an advowson, and the Church becomes vacant in his lifetime, if he dies before he has presented, the right of presentation de- Tolves to his executors or administrators, because it is considered as a chattel real; but if the incumbent of a church be also seized in fee of the advowson of the same church, and dies, the right to present will devolve to his heir, and not to his executor; for the avoidance and descent to the heir, happening at the same instant, the title of the heir shall be preferred, as the most ancient and worthy. Cru. Dig. 3—14. ASSETS AND CHATTELS REAL. 99 tance, as well also as heir looms, which are personal chattels, as pictures, deer, and the like, which by some particular custom have descended, and gone along with the inheritance to the heir. In Morgan v. Earl of Abergavenny, 14 L. T., 328 C. P., it was laid down, that by the general law, deer go to heir at *law, but if tame and reclaimed, they _jj,.„.-. become personal property, and go to the personal representatives, L J and not to the heir — that whether the deer are tame and reclaimed, must be determined with reference to the nature of the place where they are kept, and the mode in which they are treated. An estate in fee in our American plantations, was considered a chattel real until creditors were satisfied, when the land then descended in its usual course to the heir ;(i«) but since the 3 & 4 Wm. IV., c. 104, and c. 106, it is apprehended it would be considered in all respects as other land, and liable to the payment of a testator's debts in the same manner. It may be collected from the authorities, that heir looms cannot be devised away from the inheritance by will — for the law does not invest the owner with the power of devising that away from the estate, which special custom declares unseverable by such means. In the case of Evans v. Evans,(a;) there was a direction for certain chattels to be con- sidered heir looms, and to pass with the house which the testator devised — but by a codicil the house was given to another person, and a residuary bequest was made; the court, however, determined that the chattels must pass with the house, the object of the testator being, that the chattels should pass as heir looms. The owner, however, may of course dispose of them during his life, as he might of any other portion of the freehold ; but at his death, being vested instanter in the heir by the special custom, the devise which does not take effect until after his death, is postponed to the custom by virtue whereof they have already descended. (y) This nice distinction, upon consideration, cannot really exist (for the same instant the heir takes, the devise must operate, and nemo est hseres ■viventis,) but may have been used as a pretext on which to give the heir, in former times, the priority over the devisee, until it became looked upon and established as a custom. *It is a general rule that trees, standing on the land at the -^..nn- ancestor's death, descend to the heir, as well as growing grass ; L J but corn, and every other vegetable produced annually by labour and cultivation, goes to the executor or administrator of the ancestor, as a compensation for the expenses of raising them. (w) 3 Ves. Junr. 118; Toller's Exors. 415. (x) 14 Jur. 383. [y) Bl. Com. 100 PARSONS ON THB LAW OF WILLS. [*133] *CHAPTER X. CHARITABLE AND VOID BEQUESTS, AND THE ADMINISTRATION OF CHARITABLE TRUSTS. Statutes of Mortmain. Exceptions. Way T. East. Interest in Land, whether devisable for Charitable purposes. Shares in Incorporated Companies. Direction in Will as to Payment of Charitable Legacies. Nash V. Morley. Bequest for improvement of Real Estate belonging to Charity. Bequest contrary to Christian Religion. Abatement of Charitable Legacies. Charitable Estates leased. Longstaff v. Rennison. Administration of Charitable Trusts. Proceedings under Sir J. Romilly's Act. Abstract of 16 & 11 Vic. c. 137. The uncontrolled power the subject had to dispose of Lis lands to re- ligious uses, it was found in some measure necessary to check, notwith- standing it had become established (at the period the feudal restraints of alienation had ceased to be noticed,) that any person might dispose of his lands, for what purpose he pleased ; but the circulation of landed pro- perty becoming gradually stagnated, in consequence of large estates being devised to religious houses, whereby they became incapable of being alienated, the 7 Edward I. was enacted for the purpose of preventing lands being so devised in mortmain; it expressly provides against persons, religious or otherwise, buying or selling, or receiving under pretence of gift, or for a term of years, any lands or tenements in mortmain, on pain of forfeiture to the immediate lord of the fee, and the king. By the subtle devises and ingenuities of the ecclesiastics to avoid those restraining enactments, uses, and trusts, were first introduced, when to guard against those operating as an evasion of the statutes, the 15th Richard II. was passed, declaring, c. 5, that the lands which had been so purchased to ..^..„ ... uses, should be amortized by license from the crown, *or else be L -I sold to private persons; and that for the future, uses should be subject to the statutes of mortmain, and forfeitable like the lands them- selves. The 23 Henry VIIL, c. 10, made future grants of lands, for purposes which were thus in vogue for eluding the last-named statute, void, if granted for any longer term than 21 years. The 18 Edward III., St. 3, 0. 3, and the 7 & 8 Wm. III., c. 37, confirmed the prerogative the crown had to grant licenses in mortmain, and to enable spiritual or other corporations to hold lands in perpetuity; since which, many salutary laws have been enacted, for the better regulation of bequests made for charitable purposes — the non-compliance with which, renders the bequest inoperative. The 9 G-eo. II., c. 36, declares that no lands, or tenements, or money to be laid out thereon, shall be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months after its a. 7./t7Sa^ CHARITABLE BEQUESTS AND TRUSTS. 101 execution (except stocks in the public funds, which may be transferred •within six months previous to the donor's death,) and unless such gift be made to take effect immediately, and be without power of revocation, and that all other gifts be void. The act excepts the two Universities, their Colleges, and the scholars upon the foundation of the Colleges of Eton, Winchester, and Westminster; the British Museum is also excepted by the 3rd section of the 5 Geo., IV., c. 39 ; and by the 3 & 4 Vic, c. 60, it is enacted that any endowment, grant or conveyance for a site for any church or chapel, or church-yard, or parsonage house, or glebe, or for the use or benefit of any church or chapel of the incumbent or minister thereof, or for the repairs thereof, shall be valid without any license or writ of ad quod damnum, the statute of mortmain, or any other statute or law to the contrary notwithstanding. The exemption from the mort- main acts, by the above statute, does not extend to any case where the endowment in the whole exceeds the clear annual value of three hundred pounds ; and by the 6 & 7 Vic, c. 37, s. 12, the ecclesiastical commis- sioners and their successors, for and towards the *endowment r:)ciqK-| or augmentation of the income of the minister or perpetual curate L J of the district, or for or towards providing any church or chapel, are em- powered to hold and enjoy for the purposes aforesaid, any lands, tithes, tenements, or other hereditaments, goods, or chattels, without any license or writ of quod damnum, notwithstanding the statutes of mortmain. The terras of the act must be imperatively complied with, to validate a gift of land for a charitable purpose ; and moreover, the spirit of its clauses must not be subverted by secondary stipulations violating its general tenor. In Way v. East,(a) a rent charge had been granted out of leaseholds to trustees, on charitable trusts, by deed, enrolled in com- pliance with the act, but there was a private understanding that nothing was to be received until the grantor's death, which did not occur until eleven years afterwards — it was argued, that as the deed was made twelve months before the testator's death, and duly enrolled, it was a sufficient compliance with the statute, and that parol evidence ought not to be ad- mitted to prove any secret understanding contrary thereto. Kindersley, V. C, concurred in the opinion, that, apparently, all the requisitions of the statute had been complied with — but the plaintiffs insisted, that there was an agreement or understanding, or design amongst the parties, that payment of the annuity was not to be enforced under the deed during the life of the grantor, and on this ground contended that the whole ought to be declared void. Therefore the court had no hesitation in saying, that if there was such understanding or design of the grantor, at the time of the execution of the deed, and that was acquiesced in, and known to the other parties, it was not necessary that it should appear on the face of the instrument, to bring it within the operation of the statute of mort- main, the onus rested on the plaintiffs who alleged such design. It therefore follows that land cannot be devised for a charitable pur- pose, whether it is freehold, copyhold, or leasehold, nor can money charged upon or arising from such property, nor money to be laid out in the pur- [a) W. E. 114, 1854. 102 PAKSONS ON THB LAW OT WILLS. r*1361 '^^^^^ °^ ^^'^^ property, or in paying off *any incumbrances there- •- J on, or to be invested by way of mortgage upon such property, nor can shares in a joint stock bank, the property of which consists of freehold and copyhold estates, and mortgages for terms of years ; but shares in a joint stock canal and dock companies, are not within the sta- tute of mortmain, nor are moneys,(6) due upon bonds given by such com- panies, under the powers of their acts for raising money on mortgage.(c) Shares in incorporated companies, although having interests in lands, where constituted by Act of Parliament, whereby the shares are declared to be personal estate, are exempted from the operation of the mortmain Act— 9 Geo. II., c. SQ.(d) So shares in an incorporated banking company, which was authorized to hold land by way of mortgage, and which had been constituted by deed of settlement, by which the shares were declared to be personal estate, were held not within the operation of the statute. (e) DIRECTION AS TO PAT3IENT OP CHARITABLE LEGACIES. It is not suflScient for a testator to declare that charitable legacies shall be paid out of his personal estate, because under this denomination are comprised many species of property, which the law does not allow to be given to a charity. The direction should be, to pay the charitable lega- cies out of such part of the personal estate, as does not consist of chattels real, or real securities (which would be equivalent,) out of such part as may be legally devoted by will to charitable purposes. A declaration to this effect is rendered necessary by the doctrine well established, that equity will not arrange the several species of property of which a residue is composed, in such a manner as to throw charitable legacies exclusively upon the funds legally applicable to the payment of them, but applies the whole residue in satisfaction of all the legacies, pro rata.{/\ Thus, if a testator has bequeathed pecuniary legacies to charities, out of his r«iq7n personal estate, and such *estate consists of one-third of real L -I securities or leaseholds, and two-thirds of stock in the funds, or other personal property, not savouring of the realty, the charitable lega- cies would be invalid to the e.xtent of one-third, being the proportion which the real securities and leaseholds, bore to the whole fund.((/) So a simple declaration that charity legacies are to be paid out of pure personalty, will not give to such legacies a priority upon the pure personalty over other legacies and charges, nor exempt any part of the estate from the ordinary rules of applying and distributing the assets. (/i) A bequest to trustees, to apply a sum of money in building six alms- houses, and to pay the income of the residue to the six almsmen residing therein, was declared void;(i) and similarly has been treated a bequest (i) Walker v. Milne, 13 Jur. 233. (f) Jliers V. Perigal, 18 L. J. 185. {d) 9 Beav. 450; 16 L. J. 5Y. (<;) Ashton v. L. Langdale, 20 L. J. 234. (/) Hay & Jarm. on Wills, 329. (g) Williams v. Kershaw, 1 K. 274, n. (A) Stnrge v. Dimsdale. (i) Smith V. Oliver, H Beav. 481. CHARITABLE BEQUESTS AND TRUSTS. 103 of personalty to trustees, to be applied for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility. (/i;) The dictum of Lord Eldon, that " an attorney shall not take from his client a gift or reward, while standing in that relation, the connexion between them subsisting with the influence attending it, though the transaction may be as righteous as ever was carried on," was carried out in the case of Hindson v. Weatherill,(/) and a gift of personalty, and interest in real estate, by a client to his solicitor, who prepared the will, was declared void. The court, in its judgment, relied on the observa- tions used by Lord Eldon in Hatch v. Hatch, and observed, that this was a case entirely within the application of the general principle, never to be departed from except upon adequate grounds, that so long as the relation of solicitor and client subsists, on any matter of bounty, there must be that done which shall show that all infirmity arising from that relation has been substantially cured. A gift, to be divided amongst poor persons, male or female, old or infirm, as the executors see fit, " not omitting large and sick families, if of good character," is a valid charitable bequest.(m) *The court, in alluding to the doctrine upon which such gifts i-^-ioq-i will be supported, observed, upon the case of James v. Allen, (re) L J where it was said, '< if the words made use of in the devise were such as to preclude the court from compelling the trustees to apply the funds to purposes strictly charitable, the trust could not be maintained." The question in all such cases is, whether it is not only the duty of the trustee, but a duty the performance of which will be enforced by the court of chancery, to apply the whole fund to purposes charitable. If there be any opti(ft in the trustee to apply the funds to purposes which, though liberal or benevolent, are not such as the court understand to be charitable, the trust cannot be executed. And where it is expressly declared that the fund is to be distributed in private charity, the court will not execute such a trust. A bequest of money for the repair or improvement of real estate, already belonging to a charity, is good(o) — as is likewise an annual bequest for the repair of a tomb : and if it proceeds out of a life interest, is not void as a perpetuity — but if the devise had been of rents to a minister and churchwardens, for the purpose first of taking a specific sum for themselves, and then repairing a tombj-it would be void ; because such devise would be a devise of the fee or inheritance, upon trust to cause a tomb to be repaired every year, and is a perpetuity. (js) A testator may bequeath a certain sum, upon trust, to apply the annual proceeds thereof to certain indigent or poor persons, from year to year, in perpetuity — and it must be observed, that in case of the failure of the objects, the court of chancery would see to the due administration of the fund. Thus, where a testatrix, by her will, dated in 1836, directed her exe- (k) Kendall v. Grainger, 5 Beav. 300. {I) 22 L. T. 250. (m) Nash v. Morley, 5 Beav. 177. (n) 3 Mer. 19. (o) 8 Yes. 186. {p) Loyed v. Loyed, 16 Ju. 306. 104 PARSONS ON THE LAW OT WILLS. cutors to pay a clear yearly sum of £100, " for the sole use acd benefit of any of the ministers and members of the churches now forming upon the apostioal doctrines, brought forward originally by the late Edward Irving, who may be persecuted, aggrieved, or in poverty, for preaching or upholding those doctrines, or half the sum may be appropriated for r*l ^QT ^^^ *benefit of the church founded by the late Edward Irving, in L J Newman Street," and died in 1845, an information was filed to have the fund applied under the direction of the court. The master found that there was a class of persons existing answering the descrip- tion of members and ministers, &c., who were persecuted, &c., contained in the will; and that there also existed a church in Newman Street, which was intended to be described by the testatrix, whereupon it was held that the bequest was a valid charitable bequest.C^) But a bequest of the residue of personal estate to trustees, to apply the same towards establishing a school, is void.(?-) So a bequest will be void if it is contrary to the christian religion — as where it is for a prize essay, showing " the adequacy and sufficiency of natural theology, when so taught as a science, to constitute a true, perfect, and philosophical system."(s) So likewise a bequest of a prize for an essay on the subject of emigration to the United States, is void for uncertainty. The court cannot, without violating the statutes of mortmain, approve of a scheme embracing a proposition by a testator to give a piece of land for the purpose of having almshouses built upon it.(<) But where a testatrix, possessed of leaseholds and pure personalty, left the whole of her property to her brother, and her pure personalty was more than sufficient to pay her debts and funeral and testamentary expenses, and her brother died nine days after her, and' left the whole of his property to charities, and his executors took out administration to the testatrix, and sold the leaseholds, it was determined that the charities were entitled to the proceeds under the will.(M) The doctrine of Cypres has been held to extend to cases of bequests for charitable purposes ; for where there was a bequest for the benefit of r*l/im poor persons, whose debts did not exceed £5, "which was ren- L -I dered inoperative by the passing of the 1 Vic, c. 110, a scheme was approved of extending the charity to cases where the debts did not exceed £30.(1)) ABATEMENT OF CHARITABLE LEGACIES. Charitable legacies are liable to abatement in those cases where a tes- tator, by his will, gives various sums to individuals, and certain legacies to charities, and the general personalty is found sufficient to pay all the debts, funeral and testamentary expenses and legacies, but the pure per- (q) Att.-Gen. v. Laws, L. J. 300 C. (r) Longstaff T. Remington, 16 Jur. 559. (s) Briggs T. Hartley, 14 Jur. 683. (t) Att.-Gen. v. Eoake, before M. E., 1850. («) Shadbolt v. Thornton, 13 Jur. 597. 17 Sim. 49. (v) In Merchant Tailors' Company, and see ante, p. 44. CHARITABLE BEQUESTS AND TRUSTS. 105 sonalty insufficient for those purposes, and they will abate in the propor- tion which the pure personalty bears to the whole personalty. (w) But where a sum of money was given to the poor of three parishes, and was considered doles of the funeral, the court considered it was not a case for abatement of the legacies. (»;] Where charity estates are leased, and the consideration is inadequate, the court has power to set aside such lease.(y) So where a tenant has expended a considerable amount on the lands belonging to the charity, and is willing to take a lease at an improved rent in consequence, but is outbid by another person offering to give more, the claims of the old tenant will be disregarded for the benefit of the charity, and the largest offer accepted, provided the excess offered, exceeds the amount of com- pensation the old tenant would be entitled to on being compelled to quit the premises. (2) MONASTIC BEQUEST. A bequest of annuities to a monastic institution, for the benefit of the children attending the schools, has been held good ; but a similar bequest of annuities for the support of the chapel of the monastery and its lands, was declared void.(a) *In Longstaff v. Kennison(6) it was laid down, that where r:):-!^!-. money is given upon trust, if the proper execution of the trust L J would be to bring fresh lands into mortmain, the legacy would come within the purview of the Statute of Mortmain. But the statute does not extend to the proceeds to arise from the sale of real estate in New South Wales, to be appropriated for the advance- ment of education throughout the world.(c) ADMINISTRATION OF CHARITABLE TRUSTS. Amongst the many salutary laws that have been enacted for the administration of charitable trusts, will be found the 52 Geo. III., c. 101, (Sir Samuel Romilly's Act) which provides a summary remedy in cases of abuse of trusts created for charitable purposes ; it enables two or more persons, in case of a breach of trust, or supposed breach of trust, created for charitable purposes, (or whenever the direction of a Court of Equity shall deem necessary) to present a petition to the lord chancellor, or master of the rolls, or to the Court of Exchequer, stating the complaint, and praying such relief as the nature of the case may require — who are to hear such petition in a summary way, and upon affidavits, or such other evidences, as shall be produced upon such hearing, to determine the same, and make such order thereon, and with respect to the costs of such application, as seem just. (w) Eobinson t. Geldard, 14 Jar. 1 43. 18 L. J. 454. (x) Att.-Gen. v. Robins, 2 P. Wms. 25. (y) Att.-Gen. v. Pilgrim. (2) Att.-Gen. v. Gains, 11 Beav. 63. (a) Carberry v. Cox, L. C. ir. (6) 16 Jur. 559. (c) Att.-Gen. v. Stewart, 2 lilerv. 143. June, 1855.— 27 106 PARSONS ON THE LAW OP WILLS. The order so made will be final and conclusive, unless the party who thinks himself aggrieved thereby, within two years from the time when the order has been passed and entered by the proper officer, prefers an appeal to the house of lords. The petition requires to be signed by the persons preferring the same, in the presence of the solicitor concerned for such petitioners; and every such petition must be submitted to and allowed by the attorney or solicitor-general, who has to certify before the petition can be presented. The 7 and 8 Vict., c. 97, applies to charitable donations and bequests in Ireland. r«ia.9i Under Sir Samuel Romilly's Act, the court has jurisdiction to L J ^declare the proportions in which the charitable objects are enti- tled, but not to repair a previous misapplication of the funds.(<^) So it has jurisdiction not only in those cases where trustees of charity estates require directions to carry out a trust, but where, notwithstanding the application of future surplus moneys have been provided for by act of parliament, the trustees pray for a reference as to the expediency of applying for another act, to authorise the application of the surplus in a different manner. (c) On the other hand, where an adverse claim is set up, claiming charity funds that for a lengthened period have been duly appropriated, such claim should come before the court by way of infor- mation, and not by petition, under the 52 Geo. III., o. 101. (/) The act for the better .administration of charities(c/) coming into operation on the 20th day of August, 1853, provides means for securing the due administration of charitable trusts, and for the more beneficial application of charitable funds. It empowers her majesty to appoint four commissioners, one secretary, and two inspectors — three of the commissioners to hold oflSce quamdiu bene se gesserint, and the fourth, and secretary and inspector, durante bene placito.{h\ It precludes the commissioners, secretary, or inspector, from being members of the House of Commons. Two of the commissioners are to form a board, (i) who are, by general minutes from time to time, to prescribe regulations for their proceedings, but those minutes are to be signed by three of the commissioners, and copies laid before both houses of parliament.(A;) And the board are, at their discretion, empowered to inquire into all charities in England or Wales, and the nature and objects, administra- tion, management, and results thereof, and the value, condition, manage- ment, and application of the estates, funds, property, and income belong- ing thereto — and such inquiry the commissioners may order to be made by their inspectors. (?) And all trustees, or any person having any _ . .„, concern in the management *of any charity, must render to the L J Board, if required, the accounts and statements, in writing, in relation to the charity, and also return answers to any questions or [d] 1 it. N. & Gor. 324; 1 H. & T. 401. (e) H. & S. 401. (/) Magdalen Charity, 9 Hare, 624. [g) 16 & 17 Vic. e. 137. (A) Sect. 1. (i; Sect. 5. (k) Sect. 7. (I) Sect. 9. CHARITABLE BEQUESTS AND TRUSTS. 107 inquiries addressed to them by the board relating thereto ;(m) and copies may be taken by the direction of the commissioners, and search made of registers and records in every Court of Law and Equity, and Ecclesias- tical Court, and public registry, and office of records, without payment of any fee.(?i) The inspector may, by precept under his hand, require any person in any way connected with a charity, or the funds thereof,' to appear before him, at any time and place, and to produce any paper, writing, or document, being in the custody or power of such person, and relating to a charity, and moreover examine such persons upon oath, as well as all persons voluntarily attending before him ; but no person is to be com- pelled to travel .more than ten miles, in obedience to such precept, from his place of abode,(o) and persons giving false evidence are guilty of a misdemeanor. Persons refusing to attend before the board of inspector, or to ren- der an account or statement, or to make answers to questions, or to give evidence, or wilfully altering or destroying, or refusing to produce any writing or other document, are guilty of a contempt of the Court of Chancery, and may be committed on summary application by the commissioners, (p) The act provides against the board requiring persons claiming pro- perty adversely to any charity to be called upon for information, or to produce deeds or other documents, and persons may apply to the board for their opinion and advice concerning any charity, wherein such per- sons are trustees, or have anything to do with the same, or in case of any dispute. The board may give advice accordingly, which neverthe- less is subject to any judicial order which may be afterwards given by any court. The persons acting under such advice are to be considered to be complying with their trust.(j) So that a trustee under any charity may now, with facility, clear himself from any responsibility that *would otherwise attach in the administration of the funds of a r^i ^ j-i charity; but in obtaining such advice, there must be no conceal- L J ment of any facts, for such concealment might operate as a fraud in obtaining the advice, which the act expressly discountenances. Before any suit or proceedings (not being an application in any suit or matter actually pending)(r) for obtaining any relief, order, or direc- tion, concerning or relating to any charity, is commenced, there must be transmitted to the board notice explaining the nature thereof, and the board may order such proceeding to be commenced, subject to stipulations for securing the charity against costs, or may order the pro- ceedings to be delayed ; and no suit will be entertained for obtaining relief, order, or direction, by the Court of Chancery, or by any court or judge, except it is in conformity with a certificate of the said board. The above provision does not extend or affect any petition or proceed- (m) Sect. 10. [n) Sect. 11. (o) Sect. 12, 13. (p) Sect. 14. (?) Sect. 16. (r) This exception does not apply to a petition with respect to a fund which has been paid into court, under the Trustee Relief Act. W. R. 217, 1854. 108 PARSONS ON THE LAW OP WILLS. ing in which any person claims any property, or seeks relief adversely to any charity. Where it appears to the board that legal proceedings are requisite, and it is desirable such proceedings should be instituted by the attorney- general, they must certify the case to the attorney-general, who will thereupon prosecute if he thinks it advisible. The board are to consider proposals made by trustees of charities, for leases and improvements, who are empowered to grant orders under seal for such leases or improve- ments, although the leases or improvements are not authorized by the trust ; and the board may also authorize the trustees to raise money by mortgage on the charity estates. But in every mortgage must be com- pulsory provisions for payment of the principal money borrowed, by annual instalments, and for redemption and re-conveyance within thirty years. The board may empower trustees to dismiss any officer of a charity, but where there is any special visitor of the charity, the consent of such visitor, in writing, is necessary to such removal. _^. ,^-. *Persons acting in the administration of any charity, or suit L ' J against any person, may submit to the board a proposal for a compromise, and the board may make such order thereon as they may think proper ; and upon performance of the terms and conditions there- of, the agreement will be a final bar to all actions, suits, claims, and de- mands, in respect to which such compromise shall have been made. And under the direction of the board, a sale or exchange of land may be effected — who have also authority to authorize the sale to the owners of the land charged therewith of any rent, charge, annuity, or other pe- riodical payment, charged upon land and payable to any charity. The leases, sales, and exchanges, will be valid, as if they had been authorized or directed by the trust; and where any land is required for the erection of any building, for any charity, and the owner cannot give a good title in the ordinary manner, the trustee, with the sanction of the board, may purchase the same, according to the provisions of the Lands Clauses Consolidation Act, 1845. Where the appointment or removal of any trustee, or other relief re- lating to any charity, of which the gross annual income for the time being exceeds £30, is considered desirable, and such removal might formerly have been given by the Court of Chancery, in respect of its ordinary or special jurisdiction, or by the lord chancellor, entrusted with the care of lunatics, any person obtaining the certificate of the board, or the attorney-general, may make application to the master of the rolls, or one of the vice-chancellors sitting at chambers, for such order or relief, who are to proceed upon and dispose of such application, unless he shall think fit to direct otherwise ; and may give such directions in relation to the matter of such application as might have been exercised by the court of chancery or lord chancellor, in a regular suit instituted upon petition. And the master of the rolls and vice-chancellor respectively, in relation to such applications (subject to any rules which may be made by the lord chancellor, with the advice and consent of them or any two of them,) CHARITABLE BEQUESTS AND TRUSTS. 109 may direct matters to be heard in open court, and of *ordering p^, , p -, what matters are to be heard and investigated by themselves and L J their chief clerks, and have the same powers as are invested in them by the 15 and 16 Vic, c. 80, at chambers; and the provisions of the said act, applicable to orders made by the master of the rolls, or any of the vice-chancellors, at chambers, are to extend to all orders so made ; but the determinations so made, in relation to such applications, are not subject to appeal in those cases where the gross annual income of the charity does not exceed JIOO. JURISDICTION GIVEN BY ACT. The jurisdiction given to the master of the rolls, and vice-chancellors sitting in chambers, upon any application to them, is to extend concur- rently to, and may be exercised by, the chancellor of the duchy and County Palatine of Lancaster, and the vice-chancellor of the same county, as to every charity within the jurisdiction of the court of chancery, whose gross annual income exceeds thirty pounds, upon application being made made to the cancellor or vice-chancellor respectively — and the chancellor of the said duchy and county palatine, with the concurrence of the vice-chancellor of the county palatine, may make rules and orders for regulating the modes of proceeding, and the fees to be taken. The act applies also to any charity where the gross annual income exceeds thirty pounds, established or administered, or applicable for objects or purposes within the city of London, where the gross annual income does not exceed thirty pounds, in like manner as if such income exceed- ed that amount. JURISDICTION OP COUNTY COURTS. Where any charity, of which the gross annual income does not ex- ceed thirty pounds, shall be applicable, wholly or partially, for objects within the district, and the appointment or removal of any trustee or other relief shall be considered desirable, and such relief may be made or given by the court of chancery, any person authorized by the certificate of the said board, or the attorney-general, may make application to such dis- trict or *county courts for such order or relief — and the same is rati < 7-1 to be heard in open court, which is to make such orders and di- L J reetions as might have been made or given by the Court of Chancery or the Lord Chancellor, in a suit regularly instituted or upon petition — and the clerk of such county court is to transmit a copy of such order or di- rection to the office in London of the Registrar of County Courts judg- ments, to be there enrolled. It is not, however, in the power of the judge of any district to vary any decree, order, or direction of the Court of Chancery, or of any judge thereof, or to give any order or direction conflicting with any such decree or order. 110 PARSONS ON THE LAW OF WILLS. COUNTY COURTS HAVING CONCURRENT JURISDICTION. Where two or more district or county courts have concurrent juris- diction with respect to any charity, no application in respect to such charity, is to be made or entertained by more than one of such district or county courts at the same time, and the board may order to which of Buch courts application with respect to the charity is to be made. The jurisdiction conferred on the county courts does not extend to per- sons presiding as deputy judges. DIRECTIONS AS TO ORDERS MADE BY COUNTY COURTS. Copies of orders and decisions made by any district court of bankrupt- cy, or county court, for the appointment or removal of any trustee of any charity, or approving of any scheme relating thereto, are to be forthwith transmitted by the deputy register of such district court, or by the clerk of the county court, to the board, for the purpose of being considered by them ; and no order or decision will be valid unless it is approved by the board, who are not to signify their approval until one calendar month has elapsed. In case the decision is not approved by the board, the same must be remitted by them for re-consideration by the district or county court ; or it may direct the subject-matter to which the decision relates, together r*ia.sn ^^'^ *^® decision to be submitted, to *the consideration and de- L J cision of a judge of the Court of Chancery; and if such latter course is taken, no further proceedings are to be taken, in the district or county court, with respect to the matter in question. In those cases where a decision has been re-considered by the district or county court, and then disapproved by the board, it must be referred by the board, to the Court of Chancery ; or where the charity is within the jurisdiction of the Court of Chancery of the county palatine, to the chancellor or vice-chancellor of the same, or to a judge of the High Court of Chancery, who are respectively empowered to exercise all such jurisdiction and power in relation thereto, as in the case of a charity the gross annual value whereof exceeds thirty pounds. The proceedings taken by the district or county court may be en- forced in the same manner as the other proceedings are enforced under its ordinary jurisdiction, and may exercise such powers as they are invested with by the 9 and 10 Vic, c. 95. POWER OP APPEAL. In case persons aggrieved or dissatisfied with any order made by the District Court of Bankruptcy, or County Court, intend to appeal, they must, within one calendar month, give notice in writing to the court, and also to the board, of their intention — and the board is empowered, if it think proper, to give a certificate that it is reasonable such appeal should be entertained — whereupon the district or county court are to suspend proceedings upon the order appealed against, during such period as the circumstances may require. The board may also require the person ap- CHAKITABLE BEQUESTS AND TRUSTS. Ill pealing to give security for costs, and indemnify the charity against the costs of the appeal. The attorney-general is allowed three calendar months to appeal, after the making of any order, and without giving notice or security for cost. WHERE ANT ORDER ALLOWING AN APPEAL HAS BEEN MADE. The person allowed to appeal, in pursuance of any order, must, within three calendar months, present a petition to the court of *chan- i-^-i ^q-i eery, which must set forth the order appealed against — ther orde L J allowing such appeal, and praying such relief as the case may require — and upon the hearing of the petition, the court will either confirm, vary, or reverse the order appealed against, or remit it to the district Court of bankruptcy or county court, or may proceed as in case of an appli- cation under this act, to a judge at chambers ; and unless the party al- lowed to appeal does not present, within three calendar months, such petition of appeal, the order against which such appeal was allowed will be final. POWERS OP ACT DO NOT EXTEND TO TRY TITLES. No judge of the court of chancery, nor any district court of bank- ruptcy, or county court, have jurisdiction to try or determine the title at law or in equity, to any real or personal property, or any term or interest therein, between any charity or the trustee thereof, and any per- son holding or claiming such real or personal property, term, or interest, adversely to such charity, or to try or determine any question as to the existence or extent of any charge or trust. HOW NOTICE OP ALTERATION OP A SCHEME, OR REMOVAL OP TRUSTEE, IS TO BE GIVEN. It is necessary, before any application is made for the alteration of any scheme, or appointment or removal of any trustee, to give notice in writing, in the manner the board shall have directed ; and if the order be, that the notice is to be af&xed to or near the church door, the in- cumbent and churchwardens must allow it to remain not less than fifteen days — and evidence of the notice being aflSxed, is to be taken as prima facie evidence that it remained during the period prescribed by the board. WHERE NO TRUSTEES, OR THEY ARE INCAPACITATED PROM ACTING. Where any land, or estate therein, holden upon trust for any charity, is vested in any persons other than those acting in the *adminis- r-^-. p/^-, tration of the rents — or where there is no trustee, or they are L -I unwilling to act, or it is doubtful in whom such land or estate therein is vested — or they cannot be found, or are under age, lunatic (whether so found by inquisition or not), or are otherwise incapable of acting, or are out of the jurisdiction, or not amenable to the process of the court of 112 PARSONS ON THE LAW OP WILLS. chancery — or where, by reason of the reduced number of trustees, a valid appointment cannot be made — or where, by reason of the expenses incident to the appointment of new trustees, and the conveyance of the estate, it appears desirable, any court having jurisdiction, as aforesaid, may order such land and estate to be vested in the treasurer and his successors, in trust for the charity, without any conveyance. Where, however, the vesting order is made in respect of any land of a corporation, it must be with the corporation's consent — and if made in respect of copyholds, it must be with the lord's consent — and the court may direct periodical or other payments to be made to the lord of the manor, in compensation for fines or profits, which would have become due upon death or admittance of tenants. The court or judge may also, by order, divest the treasurer of any land, term, or estate, or order the same to be vested in the acting trus- tees of the charity. One month before any new scheme relating to a charity is provi- sionally approved, notice thereof must be given for insuring its due publicity, containing such particulars thereof as the board considers sufficient ; and where the nature of the scheme cannot be conveniently shown in the notice, a copy of the proposed scheme must be deposited in registry of county judgments ofBce, London, for inspection — objec- tions to which must be transmitted to the board within one month from the time when the notice shall have been given. Where there are no objections received by the board, they may approve of the scheme, and certify the same. Upon the requisition of any person interested in any charity (upon _j|.^.^_ the board considering there is sufficient grounds), the *matter of L -I the scheme may be referred to one of the inspectors, for exami- nation and local inquiry, who is empowered to hold sittings to hear evidence. The inspector is to give fourteen days' public notice of his sitting. The inspector will report to the board the result of his inquiry, with his report thereon, and if found satisfactory, may be approved by the board. The certificate of the board is to be under seal, and a copy deposited in the parish in which the charity is situated, and at the office of the registrar of county courts judgments, London. Direction is given for the board making their annual report, to be laid before parliament, and for entering accounts, and preparing balance sheet, which, when registered by the registrar of county courts judg- ments, or at the county court of the county, is open to be inspected on payment of one shilling. There are certain exceptions to which the act does not extend, as the universities of Oxford, Cambridge, London, or Durham, buildings regis- tered as a place of meeting for religious worship. Queen Ann's Bounty and the British Museum, or to any friendly or benefit society, or savings' bank, or any institution for religious purposes, wholly maintained by voluntary contributions — and where any charity is maintained partly by voluntary subscriptions, and partly by income from any endowment, it extends to the income from endowment only — the funds of missionary CHARITABLE BEQUESTS AND TRUSTS. 113 societies, not within England or Wales, are exempted from being within the jurisdiction, but the exemption does not extend to any cathedral, collegiate, chapter, or other schools. Charities exempted may apply, by petition, to the commissioners, to have the benefit of the act ; and in case of dispute arising, two-thirds of the members, present at any special meeting, may refer the dispute to the arbitration of the commissioners, whose decision is to be final, and their award made a rule of the court of chancery. The legal estate in all lands, which, at the passing of the 5 & 6 Wm. IV., c. 76, was vested in the body corporate of any borough which became subject to the provisions of that act, or *in any one or p^,p.„-. more of the members of such body, and which legal estate shall L J not have been conveyed to and vested in the trustees, appointed by the Lord Chancellor under that act, are, from the passing of this act, with- out any actual conveyance, to be vested in the trustees so appointed, subject to the same trusts as they were subject to previously to such vesting ; and upon the death or removal of any of the trustees, the legal estate in the same lands shall vest in the persons who, after such death or removal, shall continue to be the trustee for the time being, without any conveyance whatsoever. On the 8th of December, 1853, the following orders were pro- mulgated : — 1. The clerk of every county court shall keep a book, in the form in the schedule hereunto annexed, to be called " The Charitable Trusts Book," in which a record shall be kept of all proceedings taken in that court in matters of charitable trusts. 2. When any person has obtained the required order or certificate from the charity commissioners, and he is desirous of taking proceedings in the county court, he shall produce such order or certificate to the clerk, who shall retain and file the same in numerical order in his office ; and the party producing such order or certificate shall be deemed the plaintiflf in such proceedings, and the person served with a summons under order 4, shall be deemed the defendant. 3. When the attorney-general shall propose to take proceedings in the county court, he shall cause to be delivered or transmitted to the clerk a written statement, showing the nature and object of the proposed pro- ceedings, and the clerk shall retain and file such statement in numerical order in his office ; and the attorney -general shall, in such proceedings, be deemed the plaintifi', and the person served with a summons under order 4, shall be deemed the defendant. 4. Upon the production of any order, certificate, or statement herein- before mentioned, the clerk shall, at the instance of the plaintifij prepare a summons thereon, in the form set forth in the schedule hereunto annexed, in which shall be stated the substance *of the order, p^, ro-i certificate, or statement, and he shall make as many copies •- -' thereof as there are parties required by the plaintifi' to be summoned, and two additional copies, the one to be filed in the clerk's office, and the other to be transmitted to the charity commissioners. 5. The clerk, if required by the plaintiff, shall prepare a notice to 114 PARSONS ON THE LAW OF WILLS. attend proceedings, in the form set forth in the said schedule, to be served on any persons indicated by the plaintiff, besides those summoned under the last preceding order, and the said clerk shall make as many copies thereof as there are persons to whom such notice is to be given, and two additional copies, one to be filed in his office, and the other to be trans- mitted to the charity commissioners. 6. The clerk shall forthwith transmit, by pre-paid post letter, a copy of the summons to each of the parties required to appear, and a copy of the notice to attend proceedings to each of the persons indicated by the plaintiff, and such transmission shall be suflSoient service, unless the judge shall otherwise direct. 7. Where the plaintiff does not require any summons or notice to attend proceedings to be issued, the clerk shall prepare a notice of hearing, in the form set forth in the said schedule, and two additional copies thereof, one to be filed in his office, and the other to be transmitted to the charity commissioners, and shall either deliver such notice to the plaintiff, or cause it to be served on him by pre-paid post letter, unless the judge shall otherwise direct. 8. In all cases it shall be competent for the clerk, if required by the plaintiff, to summon some persons, and to serve others with either or both of the said notices, or to serve a notice of hearing on the plaintiff, and a notice to attend proceedings on any other person. 9. In all cases it shall be competent for the Judge to direct what per- sons, or additional persons, shall be served with a summons or notice to attend proceedings, or notice of hearing. 10. Upon the requisition of the charity commissioners, a copy of the r*l Ml J'^'^S®'® ''°''® °^ ^^^ evidence taken at the hearing, or such *part L -I thereof as may be required by the commissioners, shall be trans- mitted by the judge to them, at their office, by post or otherwise. 11. Upon the requisition of the attorney-general, in proceedings insti- tuted by him, a copy of the judge's note of the evidence taken at the hearing, or such part thereof as may be required by the attorney-gene- ral, shall be transmitted to him by post or otherwise. 12. A copy of the summons, notice to attend proceedings, notice to appear, together with a copy of the order made by the court, shall in all cases be transmitted by the clerk forthwith, after the hearing, by post or otherwise, as the judge shall direct, to the office of the commissioners. 13. Where the annual income of the charity exceeds £10, the court fees shall be payable as in cases within the ordinary jurisdiction of the court, without prejudice to the privilege of the attorney-general as to costs, and the charitable funds may be made liable to the payment there- of, at the discretion of the Judge. 14. Where the annual income of the charity does not exceed the sum of £10, no fees of court shall be payable out of the funds of the charity ; nor shall any fees be paid by any party to the proceeding, unless the Judge shall, in his discretion, order any of the parties to the proceeding before him to pay such fees of court as he shall think fit, without preju- dice to the privilege of the Attorney-General as to costs. 15. Where court fees are payable, they shall be calculated according CHARITABLE BEQUESTS AND TRUSTS. 115 to the scale of fees applicable to proceedings, for the recovery of tene- ments under the 9 & 10 Vic, c. 95, s. 122 ; the annual income of the charity, like the annual rent of the tenement, being treated as the basis of calculation. 16. The order or certificate of the commissioners, or statement of the attorney-general, as to the amount of the annual income, shall be con- clusive on the court. 17. The enactments, secretary of state's orders, practice, and forma in force and used in the county courts, shall, subject to the foregoing orders, be adopted with reference to proceedings *in matters of charitable p^, , --, trusts, so far as the same are applicable, mutatis mutandis. L J 18. The above orders shall be in force until further orders shall be made under the Charitable Trust Act, 1853, for regulating proceedings in the county courts relating to charitable trusts. APPENDIX. THE SUCCESSION DUTY ACT, 1853. INTERPRETATION OF TERMS IN THE CONSTRUCTION AND FOR THE PURPOSES OF THIS ACT. The term "real property" shall include all freehold, copyhold, customary leasehold, and other hereditaments and heritable property, whether corporeal or incorporeal in Great Britain and Ireland, except money secured on heritable property in Scotland, and all estates in any such hereditaments. The term " personal property" shall not include leaseholds, but shall include money payable under any engagement, and money secured on heritable property in Scotland, and all other property not comprised in the preceding definition of real property. The term "property" alone shall include real property and personal property. The term "succession" shall denote any property chargeable with duty under this act. The term " trustee" shall include an executor or administrator, and any person having or taking on himself the administration of property affected by any express or implied trust. The term "person" shall include a body corporate company and society. The term "legacy duty acts" shall denote the acts now in force for charging duties on legacies, and shares of the personal estates of deceased persons. [*158] *WHAT SHALL CONFER SUCCESSIONS. 2. Every past or future disposition of property, by reason whereof any person has or shall become beneficially entitled to any property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this act, either immediately or after any interval, either certainly or contingently, and either originally or by APPENDIX. 117 way of substitutive limitation, and every devolution by law of any beneficial interest in property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this act, to any other person, in possession or expectancy, shall be deemed to have conferred, or to confer, on the person entitled by reason of any such disposition or devolution, a " succession," and the term "successor" shall denote the person so entitled, and the term "pre- decessor" shall denote the settlor, disponor, testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived, (ci) JOINT TENANTS TAKING BT SURVIVORSHIP CHARGEABLY WITH DUTY. 3. Where any persons shall, at or after the time appointed for the commencement of this act, have any property vested in them jointly, by any title not conferring on them a succession, any beneficial interest in such property accruing to any of them by survivorship shall be deemed to be a succession; and every person to whom any such interest shall accrue shall be deemed to be the successor; and the person upon whose death such accruer shall take place shall be deemed to be the predecessor ; and where any persons after the time appointed for the commencement of this act shall take any succession jointly, they shall pay the duty, if any chargeable thereon by this act, in proportion to their respective interests in the succession ; and any *benefioial interest in such ^-^^ _„-. succession, accruing to any of them by survivorship, shall be L J deemed to be a new succession, derived from the predecessor from whom the joint title shall have been derived. (J) GENERAL POWERS OE APPOINTMENT TO CONFER SUCCESSIONS. 4. Where any person shall have a general power of appointment under any disposition of property, taking effect upon the death of any person dying after the time appointed for the commencement of this act, over property, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to the property or interest thereby appointed, as a succession derived from the donor of the power; and where any person shall have a limited power of appointment, under a disposition taking effect upon any such death, over property, any person taking any property by the exercise of such power, shall be deemed to take the same as a succession, derived from the person creating the power as predecessor. (a) It will be perceived by this section, and sections 8 and 10, that any bene- ficial interest, whether contingent or otherwise, accruing by the death of any person after 18th of May, 1853, whether consisting of a freehold or less estate, or even personalty, will be considered a snccession within the meaning of the Act, and chargeable with the same rate of duties as the legacy duties. (6) The first part of the above section speaks of property already vested at the time of the passing of the Act — and whereon no duty is payable — the latter part makes the succession duty payable by the surviving tenant, on the value of the share accruing by survivorship. 118 PARSONS ON THE LAW OF WILLS. EXTINCTION OF DETERMINABLE CHARGES TO CONFER SUCCESSIONS. 5. Where any property shall, at or after the time appointed for the commencement of this act, be subject to any charge, estate, or interest, determinable by the death of any person, or at any period ascertainable only by reference to death, the increase of benefit accruing to any per- son or persons, upon the extinction or determination of such charge, estate, or interest, shall be deemed to be a succession accruing to the person or the persons, if more than one, then entitled beneficially to the property or the income thereof, according to his or their respective estates or interests therein, or beneficial enjoyment thereof; and the person or persons from whom such successor or successors respectively L J *shall have derived title to the property so charged, si deemed to be the predecessor or predecessors, as the case may be. SUBJECT TO LEASES FOR LIFE. 6. Provided that no person entitled at the time appointed for the commencement of this act, to the immediate reversion in any real pro- perty expectant upon the determination of any lease for life, or for years, determinable on life, shall be chargeable with duty in respect of such determination, in the event of the same occurring in his lifetime. DISPOSITIONS ACCOMPANIED BY RESERVATION OP A BENEFIT TO GRANTOR TO CONFER SUCCESSIONS. 7. Where any disposition of property, not being a bona fide sale, and not conferring an interest expectant on death on the person in whose favour the same shall be made, shall be accompanied by the reservation, or assurance of, or contract for any benefit to the grantor, or any other person for any term of life, or for any period ascertainable only by reference to death, such disposition shall be deemed to confer at the time appointed for the determination of such benefit, an increase of beneficial interest in such property, as a succession equal in annual value to the yearly amount or yearly value of the benefit so reserved, assured, or contracted for, on the person in whose favour such disposition shall be made. DISPOSITtONS TO TAKE EFFECT AT PERIODS DEPENDING ON DEATH, OR FOE EVADING DUTY. 8. Where any disposition of property shall be made to take efi'ect at a period ascertainable only by reference to the date of the death of any person dying after the time appointed for the commencement of this act, such disposition shall be deemed to confer a succession on the person in whose favour the same shall be made ; and where any disposition of r«1fin P''ops''''y shall purport to *take effect presently, or under such l- J circumstances as not to confer a succession, but by the effect or APPENDIX. 119 in consequence of any engagement, secret trust, or arrangement capable of being enforced in a court of law or equity, the beneficial ownership of such property shall not hona fide pass according to such disposition, but shall in fact devolve to any person on death, or at some period ascertainable only by reference to death, then such last-mentioned person shall be deemed to acquire the property so passing as a succession derived from the person making the disposition as the predecessor ; and where any court of competent jurisdiction shall declare any disposition to have been fraudulent, and made for the purpose of evading the duty imposed by this act, it shall be lawful for such court to declare a succes- sion to have been conferred on such person at such time and to such an extent as such court shall think just; and such last-mentioned person shall be deemed to have taken a succession accordingly, derived from the person making such disposition as predeeossor.(c) MANAGEMENT OF DUTIES. 9. The duties herein-after imposed- shall be considered as stamp duties, and shall be under the care and management of the commissioners of inland revenue, herein-after called " the commissioners ;" who, by them- selves and their officers, shall have the same powers and authorities for the collection, recovery, and management thereof, as are by an act passed in the session holden in the twelfth and thirteenth years of the reign of her present majesty, chapter 1, or by any other act or acts, vested in them for the collection, recovery, and management of any stamp duties ; and shall provide proper stamps for denoting the r&te per centum of the duties payable under this act ; and shall *have all other powers ^^-. „„-, and authorities requisite for carrying this act into execution. L J DUTIES ON SUCCESSIONS. 10. There shall be levied and paid to her majesty, in respect of every such succession as aforesaid, according to the value thereof, the following duties (tiat is to say) — Where the successor shall be the lineal issue or lineal ancestor of the predecessor, a duty at the rate of one pound per centum upon such value. Where the successor shall be a brother or sister, or a descendant of a brother or sister of the predecessor, a duty at the rate of three pounds per centum upon such value. Where the successor shall be a brother or sister of the father or mother, or a descendant of a brother or sister of the father or mother of the (c) Many questions, it is presumed, will arise, upon this and the preceding sec- tion, where there has been a disposition of real estate by a father, in his lifetime, to and as a provision for a son, by deed of gift, to take effect immediately, but there is, in reality, a secret understanding. Notwithstanding the words in the above section, " capable of being enforced in a Court of Law," &c. Upon a sub- sequent disposition by the son, a purchaser should inquire whether any secret understanding had existed, in consequence of which a succession duty could have become payable. 120 PAR.SONS ON THE LAW OP WILLS. predecessor, a duty at the rate of five pounds per centum upon such value. Where the successor shall he a brother or sister of the grandfather or grandmother, or a descendant of the brother or sister of the grand- father or grandmother of the predecessor, a duty at the rate of six pounds per centum upon such value. Where the successor shall be in any other degree of collateral consan- guinity to the predecessor than is herein-before described, or shall be a stranger in blood to him, a duty at the rate of ten pounds per cen- tum upon such value. (