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 * j5f 'ecjlon of authorities on descent w 
 
 3 1924 018 846 372 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018846372 
 
A SELECTION OF AUTHORITIES 
 
 ON 
 
 DESCENT, WILLS, AND ADMINISTRATION 
 
 BY 
 NATHAN ABBOTT 
 
 Professor of Law in Northwestern University, Chicago 
 
 TEXT, CASES, AND STATUTES 
 
 ST. PAUL 
 
 WEST PUBLISHING CO. 
 
 1894 
 
COPTKIGHT, 1894, 
 BY 
 
 WEST PUBLISHING COMPANY. 
 
INTRODUCTION. 
 
 The main purpose of this collection of authorities, as indicated in its title, is to 
 cover the subject of the devolution of property after the death of the owner. 
 The selection is from three sources: First, extracts from standard works; second, 
 selected cases; third, statutes. Accordingly, the volume comprises three parts: 
 First, the Text, divided (or convenience into sections, accompanied by references to 
 the relevant Cases and Statutes in Parts II. and III.; second, the Cases, numbered, 
 with references to the several sections of the Text with which they are to be read; 
 and, third, the Statutes, also numbered and with references to the sections of Text. 
 
 The extracts from standard works are given with the hope that the connected 
 Text will in a measure fill the gaps in the development of a subject by cases alone, 
 no matter how judicious the selection of cases may be. The selection of cases has 
 not been hastily made, but is the residuum from a much larger and a carefully made 
 collection of authorities, in preparing which,! have been guided in part by Professor 
 Gray's work in Volume IV. of his collection of Authorities on Property, and by 
 Professor Chaplin's Cases on Wills, and in part by a study of many citations in 
 Jarman on Wills, Williams on Executors, Woerner on Administration, and Wigram 
 on the Interpretation of Wills. Indeed, in many respects I have literally followed 
 the conclusions of Jarman and Williams as to what cases are leading cases. The 
 propriety of including a full collection of statutes on this subject is apparent. 
 
 Another and less obvious purpose of the work here done is that perhaps, from 
 this and similar work on the part of others, a body of selected authorities may be 
 made, from which the ideal collection ultimately may come. It frequently is said 
 that one instructor's selection of authorities is not likely to be useful to another in- 
 structor. In so far as a selection deals with the history of a subject and the com- 
 mon law, this ought not to be so. The number of authorities to be studied may vary 
 with the length of time given to a subject, but there ought not to be any substantial 
 difference of opinion as to those cases which mark the stages in the growth of the 
 subject. When the historical treatment of a subject reaches the United States, es- 
 pecially if the subject be statutory, there may be local preferences as to authorities 
 to be studied. But the selection of good cases illustrative of legal principles, in 
 view of the great wealth of authorities and the material to be turned over, is quite 
 like hunting for nuggets of gold. And in this quarter the research of the conscien- 
 tious instructor, if put in print for the use of his fellows, ought to prove, not only of 
 great service to them and their classes, but in time, from consensus of opinion, lead 
 to the choice of an ultimate selection of authorities, back of which one need not feel 
 obliged to go. 
 
 This volume differs somewhat, both in form and arrangement, from other 
 works of the same character. The form, doable columns and large pages, was 
 chosen by the publishers for practical reasons, enabling them to put into a single 
 volume matter that would easily make two in the ordinary larger type and smaller 
 pages. 
 
 The arrangement of the different classes of material in the volume is also un- 
 usual. The fact that many of the cases and statutes illustrate two or more sections of 
 the text, seemed to make it impracticable to group text, cases, and statutes together 
 ABB. WILLS. (iii) 
 
iv INTEODUCTION. 
 
 ill any topical arrangement ; so, instead of attempting to place the cases and statutes 
 in juxtaposition to the sections of the text with which they are connected, they have 
 been put into separate Parts or Appendices to the Text, and their relation to the 
 several sections is indicated bj' numerous cross references. 
 
 I wish to express my gratification at the pains the publishers have taken to 
 have the work accurately done. This leads me also to express my obligation to his 
 Honor, Judge J. G. Woerner, for permission to use an extract from his work on 
 Administration. Besides this, his work has been of material assistance in the order 
 of arrangement of authorities here selected. Much to my regret, this book will be 
 published with a substantial extract from Mr. Digby's History of Real Property 
 without his permission having been asked. My excuse for this is that, when 
 making the selections from texts, I so naturally went to Mr. Digby's History as one of 
 the storehouses from which Americans draw that it did not occur to me to ask leave 
 to use his book any more than I would have in the case of the older authorities. 
 
 i feel like saying in conclusion that, if the spirit of sound legal scholarship is 
 lacking in this book, it is not for want of constant impulse in that direction by reason 
 of my association in Northwestern University Law School with my friends J. H. 
 Wigmore, Blewett Lee, and E. A. Harriman, and I take this occasion to thank them 
 for many suggestions wittingly and unwittingly given me from time to time. 
 
 July 30, 1894. NATHAN ABBOTT. 
 
Part 1.— TEXT. 
 Part 2.— CASES. 
 Part 3.— STATUTES. 
 
 ABB.WILLS. (V)* 
 
TABLE OF CONTENTS. 
 
 Part 1 .— TEXT. 
 
 
 CHAPTER I. 
 
 
 DEVOLUTION OF PROPERTY BY OPERATION OP LAW. 
 
 Sec. 
 
 1. 
 
 2. 
 
 3. 
 . 4. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 
 Descent In General. 
 The Posthumous Heir. 
 The Heir also Devisee. 
 The Adopted Child as Heir. 
 The Estate by the Entirety. 
 Partnership Property. 
 Trust Estates. 
 
 Covenants Running with the Land. 
 Estates pur Autre Vie. 
 
 Sec. 
 
 10. Advancements. 
 
 11. Breaking Descent. 
 
 12. Conversion. 
 
 13. Escheat. 
 
 14. Of Dower, Curtesy, and Homestead— In 
 
 General. 
 
 15. Dower. 
 
 16. Curtesy. 
 
 17. Homestead. 
 
 
 CHAPI 
 
 'ER II. 
 
 DEVOLUTION OP PROPERTY BY ACT OP OWNER- 
 
 MORTIS. 
 
 -DONATIO CAUSA 
 
 Sec. 
 
 18. Donatio Causa Mortis — In General. 
 
 19. Apprehension of Death. 
 
 20. Delivery. 
 
 21. Revocation. 
 
 Sec. 
 
 22. Gifts by Husband and Wife. 
 
 23. Rights of Creditors. 
 
 24. Whether Gifts are Subject to Adminis- 
 
 tration. 
 
 CHAPTER III. 
 
 DEVOLUTION OP PROPERTY BY ACT OP OWNER— WILLS. 
 
 Sec. 
 
 25. History of Wills. 
 
 26. Form of Wills— In General. 
 
 27. Oral Wills— Before Statute of Frauds, 
 
 29 Car. II. 
 
 28. After Statute of Frauds, 29 Car. II. 
 
 29. Written Wills — Personal Property. 
 
 30. Real Property— After Statute of 
 
 Wills, 32 Hen. VIII. 
 
 Sec. 
 
 31. After Statute of Frauds, 29 Car. U. 
 
 32. Holographic Wills. 
 
 33. Ambiguous Writing. 
 
 34. Conditional Wills. 
 
 35. Incorporation by Reference. 
 
 36. Joint and Mutual Wills. 
 
 37. Contracts to Make Wills. 
 
 CHAPTER IV. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER— WILLS, (Continued.) 
 
 Sec. 
 
 38. Capacity to Make a Will— In General. 
 
 39. Infants. 
 
 40. Married Women — ^Under Power. 
 ABB. WILLS. (vii) 
 
 Sec. 
 
 41. Of Separate Property. 
 
 42. With Consent of Husband. 
 42a. Aliens. 
 
VUl 
 
 TA.I3LE OF CONTENTS. 
 
 Sec. 
 
 
 Sec. 
 
 42b. 
 
 Criminnls. 
 
 49. 
 
 43. 
 
 Incapacity from Mental or Physical 
 
 50. 
 
 
 Infirmity— Relation of the Infirmi- 
 
 51. 
 
 
 ty to the Will. 
 
 52. 
 
 44. 
 
 Partial Insanity. 
 
 
 45. 
 
 Delusions. 
 
 53. 
 
 46. 
 
 Test of Mental Incapacity. 
 
 54. 
 
 47. 
 
 Lucid Intervals. 
 
 55. 
 
 48. 
 
 Drunkenness. 
 
 
 Old Age.' 
 
 Deaf and Dumb Persons. 
 Blind Persons. 
 Undue Influence, Fraud, and Mis- 
 take — In General. 
 Undue Influence. 
 Fraud. 
 Mistake. 
 
 CHAPTER V. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER— M^ILLS, (Continued.) 
 
 Sec. 
 
 56. The Making of a Will— Formalities 
 
 Regulated by Statute. 
 
 57. What Law Governs. 
 
 58. The Animus Testandi. 
 
 59. Nuncupative Wills — ^In General. 
 
 60. Of Soldiers and Mariners. 
 
 61. Of Those not Soldiers or Mariners 
 
 — ^The Making in Extremis. 
 C2. The Animus Testandi and Ro- 
 
 gatio Testium. 
 
 63. The Reduction to Writing. 
 
 64. Written Wills— In General. 
 
 65. The Signing of the Will— Knowl- 
 
 edge of Contents. 
 
 66. Signing by the Testator. 
 
 67. Signing by Another at Testator's 
 
 Request. 
 
 68. Acknovrledging the Signature and 
 
 Publishing the Will. 
 
 69. The Attestation of the Will— In 
 
 General. 
 
 70. Competency and Credibility of the 
 
 Witnesses. 
 
 71. The Number of the Witnesses. 
 
 72. The Request to the Witnesses. 
 
 73. The Animus Testificandi. 
 
 74. The Signing by the Witnesses. 
 
 See. 
 
 75. The Signing by Another for the 
 
 Witnesses. 
 
 76. The Position of the Witnesses' 
 
 Signatures. 
 
 77. The Signing in the Presence of 
 
 the Testator. 
 
 78. The Effect of Valid Testamentary 
 
 Writing on Previous Defective One. 
 
 79. Revocation of W Us — In General. 
 
 80. Capacity to Revoke. 
 
 81. Intent to Revoke. 
 
 82. Undue Influence in Effecting Revo- 
 
 cation. 
 
 83. Fraud in Effecting or preventing 
 
 Revocation. 
 
 84. Oral Revocation. 
 
 85. Written Revocation. 
 
 86. Revocation by Change in Testator's 
 
 Circumstances. 
 
 87. Revocation by Destruction. 
 
 88. By Sale of Property Devised. 
 
 89. By Marriage — Marriage and Birth 
 
 of Child. 
 
 90. Dependent Relative Revocation. 
 
 91. Revival of Prior Will by Revocation 
 
 of Later One. 
 
 92. Revival by Incorporation. 
 
 93. Republication. 
 
 CHAPTER VI. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. 
 
 Sec. 
 
 i)4. In General. 
 
 95. The Courts. 
 
 ■96. Jurisdiction of the Courts. 
 
 m. Facts Necessary to Give Jurisdiction 
 
 — Death of Person Whose Estate 
 
 is to be Administered. 
 
 Sec. 
 
 98. 
 
 99. 
 
 100. 
 
 Domicile of the Decedent. 
 Locality of Assets. 
 The Law Applicable to the Adminis- 
 tration of Assets. 
 
 CHAPTER VH. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 Sec. 
 
 101. Personal Representation of the Deceased 
 
 — In General. 
 
 102. The Executor de Son Tort. 
 
 103. Ofiiciating without Appointment. 
 
 104. The Executor. 
 
 Sec. 
 105. 
 106. 
 107. 
 108. 
 
 Who may be an Executor. 
 Appointment. 
 The Administrator. 
 Who may be an Administrator — In 
 
TABLE OF CONTENTS. 
 
 IX 
 
 ■Sec. 
 
 
 Sec. 
 
 T.09. 
 
 Husband or Wife. 
 
 120. 
 
 110. 
 
 Where the Court Has Discretion 
 
 
 
 in Appointing. 
 
 121. 
 
 111. 
 
 Where the Statute Prescribes Who 
 
 122. 
 
 
 shall Administer. 
 
 123. 
 
 112. 
 
 Renunciation of Office by the Person- 
 
 
 
 al Representative. 
 
 124. 
 
 113. 
 
 Duties of the Personal Representa- 
 
 125. 
 
 
 tive. 
 
 126. 
 
 114. 
 
 Of the Executor— Before Appoint- 
 
 127. 
 
 
 ment. 
 
 128. 
 
 115. 
 
 Duty to Probate the Will. 
 
 
 116. 
 
 Of the Probate of the Will. 
 
 129. 
 
 117. 
 
 When a Will may be Probated. 
 
 130. 
 
 118. 
 
 Questions Which Arise at Pro- 
 
 131. 
 
 
 bate. 
 
 132. 
 
 119. 
 
 Competency and Credibility of 
 
 Witnesses. 
 
 133. 
 
 Contradictory 
 cesses. 
 
 Attesting Wit- 
 
 Burden of Proof as to Insanity. 
 Who may Testify as to Insanity. 
 Burden of Proof as to Undue In- 
 fluence. 
 Lost Wills. 
 Partial Probate. 
 Effect of Probate. 
 Revocation of Probate. 
 Duties of Personal Representative, 
 (Continued.) 
 The Griving of a Bond. 
 The Notice of Appointment. 
 The Making of an Inventory. 
 What the Inventory should Contain 
 Collection of the Effects of the De 
 ceased. 
 
 CHAPTER VIII. 
 
 AGENCIES EFFECTING THE DEVOLUTION OP PROPERTY, (Continued.) 
 
 Sec. 
 
 
 Sec. 
 
 134. 
 
 Of the Estate of the Personal Repre- 
 sentative. 
 
 142 
 
 135. 
 
 The Time When it Vests. 
 
 143 
 
 136. 
 
 The Quality of the Estate. 
 
 144. 
 
 137. 
 
 The Interest in the Estate. 
 
 145. 
 
 138. 
 
 Choses in Action — Those Which the 
 
 146 
 
 
 Deceased might have Put in 
 
 147. 
 
 
 Suit — Contract 
 
 148. 
 
 139. 
 
 Tort. 
 
 149. 
 
 140. 
 
 Apportionment. 
 
 
 14L 
 
 Partnership Interests. 
 
 150. 
 
 Those Where the Cause of Action 
 Accrued after Decedent's Death. 
 Rights of Action for Trespass. 
 Chattel Interests in Real Property. 
 Emblements. 
 Fixtures. 
 
 Real Estate — In General. 
 Under Power in the Will. 
 Property Conveyed in Fraud of 
 
 Creditors. 
 Conversion. 
 
 CHAPTEB, IX. 
 
 .AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 151. Duties of the Personal Representative 
 (Continued) — Payment of Debts. 
 Presentation of Claims by Creditors. 
 Performing Contracts of the Deceased. 
 Joint Obligations not Those of a 
 
 Partner. 
 Partnership's Obligations, and the 
 Carrying on of the Business of a 
 Firm of which the Deceased was 
 a Member. 
 Of the Survival of Claims against the 
 Estate of the Decedent. 
 
 152. 
 153. 
 154. 
 
 155. 
 
 156. 
 
 Sec. 
 
 157. Submission to Arbitration. 
 
 158. Priority of Payment of Claims. 
 
 159. Payment of Legacies. 
 
 160. General and Specific Legacies, 
 
 Ademption. 
 
 161. Abatement of Legacies. 
 
 162. Lapsed Legacies and Devises. 
 
 163. Compromising Legacies. 
 
 164. Equitable Assets and Marshaling. 
 
 165. Distribution. 
 
 166. The Residue. 
 
 167. Accounting. 
 
 and 
 
 CHAPTER X. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 168. Liability of the Personal Representative for His Own Acts and for the Acts of His Co- 
 Representative. 
 
TABLE or CONTENTcJ. 
 
 CHAPTER XI. 
 
 AGENCIES EFFECTING THE DEVOLUTION OP PROPERTY, (Continued.) 
 
 Sec. 
 
 1C9. Construction and Interpretation of Wills. 
 
 170. First Kule. 
 
 171. Second Rule. 
 
 172. Third Kule. 
 
 173. Fourth Kule. 
 
 . Sec. 
 
 174. Fifth Kule. 
 
 175. Sixth Kule. 
 
 176. Seventh Rule. 
 
 177. Admission of Parol Evidence. 
 
Part 2.— CASES. 
 
 TABLE OF CASES REPORTED. 
 
 121 
 500 
 200 
 
 611 
 136 
 
 655 
 
 Page. 
 Ackroyd v. Smithson (1 Brown, CTi ">03). 142 
 
 Adams v. Field (21 Vt. 256) 292 
 
 Allen V. Dundas (3 Term R. 125) 489 
 
 Allen V. Elliott (67 Ala. 432) 572 
 
 Allen V. Heber (1 W. Bl. 22; 2 Strange, 
 
 1270) 
 
 Ames T. Armstrong (106 Mass. 15) 
 
 «. Arnold V. Earle (2 Lee, Ecc. 380) 
 
 Ashburner v. Macguire (2 Brown, Ch. 
 
 108) 
 
 Atkinson v. Baker (4 Term R. 229) 
 
 Attorney G-eneral v. Hooker (2 P. Wms. 
 
 338) 
 
 Aubuchon v. Lory (23 Mo. 99) 133 
 
 Ayers v. Dixon (78 N. Y. 318) 134 
 
 Baewell v. Dry (1 P. Wms. 700) 622 
 
 Banks v. Goodfellow (L. R. 5 Q. B. 549) . . 211 
 
 Barry v. Lambert (98 N. T. 300) 685 
 
 Bartholomew v. Henley (3 Phillim. Ecc. 
 
 317) 177 
 
 Bassett v. Miller (39 Mich. 133) 544 
 
 Bates V. Brown (5 Wall. 710) 115 
 
 Beaumont v. Fell (2 P. Wms. 141) 692 
 
 Behrens v. Behrens (25 N. E. 209, 47 Ohio 
 
 St. 323) 483 
 
 Bennett v. Jackson (2 Phillim. Ecc. 190) . . 288 
 
 Betts V. Harper (39 Ohio St. 639) 193 
 
 Bibb ex dem. Mole v. Thomas (2 W. Bl. 
 
 1043) 354 
 
 Billings' Estate, In re (1 Pac. 701, 64 Cal. 
 
 ■^ 427) 184 
 
 Birmingham v. Kirwan (2 Schoales & L. 
 
 ^j^j^) 255 
 
 Blackborough v. Davis (1 P. Wins. 41) ." .' . 432 
 • Bohler, Huse & Co. v. Tappan (1 Fed. 
 
 469) 545 
 
 Bomf ord y. Grimes (17 Ark. 567) 419 
 
 Boughton V. Knight (L. R. 3 Prob. & Div. 
 
 64) 221 
 
 Boyse v. Rossborough (6 H. L. Gas. 2) . . . 247 
 Bradshaw v. Bradshaw (2 Younge & O. 
 
 72) 695 
 
 Brook V. Turner (2 Mod. 170) 203 
 
 Brook V. Warde (3 Over, 310b) 343 
 
 Brooks V. Jackson (125 Mass. 307) 660 
 
 Brown v. Sackville (1 Dyei% 72a) 181 
 
 Brown v. Wood (Aleyn, 36; Style, 74)... 435 
 Brunt V. Brunt (L. R. 3 Prob. & Div. 37) . 335 
 Burnham v. Comfort (15 N. B. 710, 108 
 
 N. T. 535) 615 
 
 Carleton ex dem. Griffin v. Griffin (1 Bur- 
 rows, 549) 333 
 
 Casey v. Gardiner (4 Bradf. Surr. 13) 444 
 
 Casson v. Dade (1 Brown, Ch. 99) 328 
 
 Chadbourn v. Chadbourn (9 Allen, 173) ... 598 
 Chamberlain v. Williamson (2 Maule & 
 
 . S. 408) 528 
 
 Chambers v. Minchin (7 Ves. 186) 664 
 
 Channel v. Capen (46 III. App. 234) 405 
 
 Chase v. Kittredge (11 Allen, 49) 316 
 
 Chase v. Redding (13 Gray, 418) 173 
 
 Cheyney's Case (5 Coke, 68) 703 
 
 Chittenden v. Knight (2 Lee, Ecc. 559) ... 436 
 Christopher v. Christopher (2 Dickens, 
 445) 365 
 
 Page. 
 
 Clarke v. Clarke (2 H. Bl. 399) 119 
 
 Clementson v. Gandy (1 Keen, 309) 701 
 
 Clifton V. Burt (1 P. Wms. 679) 631 
 
 Cole V. Mordaunt (4 Ves. 196. note) 344 
 
 Coope V. Lowerre (1 Barb. Ch. 45) 439 
 
 Cover V. Stem (10 Atl. 231. 67 Md. 449). . 187 
 
 Crew V. King (2 W. Bl. 1211) 124 
 
 Crooke v. Watt (2 Vern. 124) 429 
 
 Crowninshield v. Crowninshield (2 Gray, 
 
 524) 450 
 
 Cullen V. O'Hara (4 Mich. 132) 516 
 
 Damon v. Damon (8 Allen, 192) 189 
 
 Davy V. Smith (3 Salk. 395) 327 
 
 Den ex dem. Stevens v. Vancleve (Fed. 
 
 Cas. No. 13,412, 4 Wash. C. C. 262) .... 231 
 
 Dent V. Pepys (6 Madd. 350) 691 
 
 Devon v. Pawlett (11 Vin. Abr. 133, pi. 
 
 27) 527 
 
 Dexter v. Phillips (121 Mass. 178) 539 
 
 Dickey v. Vann (8 South. 195, 81 Ala. 425) 400 
 
 Dister v. Dister (3 Lev. 108) 358 
 
 Doe d. Clarke v. Clarke (2 H. Bl. 399) ... 119 
 Doe ex dem. Hampton v. Shotter (8 Adol. 
 
 & E. 905) 562 
 
 Doe ex dem. Hiscocks v. Hiscocks (5 Mees. 
 
 & W. 363) 704 
 
 Doe ex dem. Perkes v. Perkes (3 Barn. & 
 
 Aid. 489) 355 
 
 Doe ex dem. Reed v. Harris (6 Adol. & E. 
 
 209) 356 
 
 Donaldson, Goods of, In re (2 Curt. Ecc. 
 
 386) 272 
 
 Dorrance, Appeal of (26 Atl. 614, 154 Pa. 
 
 St. 523) 711 
 
 Duane, Goods of. In re (2 Swab. & T. 590) 265 
 Duncan v. Inhabitants of Township of 
 
 Franklin (10 Atl. 546, 43 N. J. Eq. 143) 619 
 
 Dyke v. Walford (5 Moore, P. C. 434) 881 i 
 
 Earl of Warwick v. Greville (1 Phillim. 
 
 Ecc. 123) 430 
 
 Emerson v. Emerson (1 Vent. 187) 547 
 
 Emerson v. Inchbird (1 Ld. Raym. 728).. ]20 
 
 Emery, Appellant (17 Atl. 68, 81 Me. 275) . 364 
 
 Fargo V. Miller (22 N. E. 1003, 150 Mass. 
 
 225) 652 
 
 Fawtry v. Fawtry (1 Salk. 36) 437 
 
 Fettiplace v. Gorges (1 Ves. Jr. 46) 201 
 
 Finch V. Finch (14 Ga. 362) 445 
 
 Pinlay v. Chirney (20 Q. B. Div. 494) 593 
 
 Fletcher v. Ashburner (1 Brown, Ch. 497) . 564 
 Forse and Hembling's Case (4 Coke, 60b). S62 
 
 Forsyth v. Burr (37 Barb. 540) 507 
 
 Frayne v. Taylor (33 Law J. Ch. 228) ... 507 
 
 Gardiner's Estate, In re (4 Bradf. Surr. 
 
 13) 444 
 
 Gardner v. Gardner (22 Wend. 526) 136 
 
 Garland, Ex parte (10 Ves. 110) 581 
 
 Geale, Goods of. In re (3 Swab. & T. 431) 245 
 Gilbert's Adm'r v. Little's Adm'r (2 Ohio 
 
 St. 156) 503 
 
 Giles V. Warren (L. R. 2 Prob. & Div. 
 
 401) 336 
 
 Gill v.- Shelley (2 Russ. & M. 336) 693 
 
 ABB. WILLS. 
 
 (Xi) 
 
xu 
 
 TABLE OF CONTENTS. 
 
 Page. 
 Gilmor's Estate, In re (26 Atl. 614, 154 
 
 Pa. St. 523) 711 
 
 Goods of Donaldson, In re (2 Curt. Bcc. 386) 272 
 
 Goods of Duane, In re (2 Swab. & T. 590) 265 
 
 Goods of Geale, In re (3 Swab. & T. 431) 245 
 
 Goods of Hunt, In re (3 Prob. Div. 250). . 264 
 Goods of Jordan, In re (L. R. 1 Prob. 
 
 & Div. 555) 180 
 
 Goods of Maddock, In re (L. R. 3 Prob. & 
 
 Div. 169.) 322 
 
 •Goods of Moresby, In re (1 Hagg. Ecc. 378) 367 
 
 Goods of Perry, In re (2 Curt. Ece. 655) . . 443 
 
 Goods of Piercy, In re (1 Rob. Eoc. 278). . 330 
 
 Goods of Ryder, In re (2 Swab. & T. 127) 427 
 Goods of Wilson, In re (L. R. 1 Prob. & 
 
 Div. 269) 312 
 
 Goodtitle v. Clayton (4 Burrows, 2224) ... 449 
 
 •Goodtitle v. Welf ord (1 Doug. 139) 308 
 
 Goodtitle ex dem. Woodhouse v. Meredith, 
 
 (2 Maule & S. 5) 373 
 
 Gourley v. Linsenbieler (51 Pa. St. 345) . . 167 
 Graham v. Burch (49 N. W. 697, 47 Minn. 
 
 171) 341 
 
 Orattan v. Grattan (18 111. 167) 138 
 
 Gray v. Hawkins' Adm'x (8 Ohio St. 449) 574 
 
 Green d. Crew v. King (2 W. Bl. 1211). . 124 
 
 ■Griffin v. Griffin (1 Burrows, 549) 333 
 
 Hackman v. Black (2 Lee, Ece. 251) 504 
 
 Haddock v. Boston & M. R. (15 N. E. 495, 
 
 146 Mass. 155) 447 
 
 Hall V. GroTier (25 Mich. 428) 656 
 
 Hall V. Hall (L. R. 1 Prob. & Div. 481). . 255 
 
 Hambly v. Trott (Cowp. 371) 591 
 
 Hamersley v. Lambert (2 Johns. Ch. 508) 585 
 
 Hampton v. Shotter (8 Adol. & E. 905).. 562 
 
 Hardy v. Merrill (56 N. H. 227) 455 
 
 Hargthorpe v. Milf orth (Cro. Eliz. 318) . . 661 
 
 Harris v. Knight (15 Prob. Div. 170) 479 
 
 Harrison v. Rowan (Fed. Cas. No. 6,141, 3 
 
 Wash. C. C. 580) 227 
 
 Hastilow V. Stobie (L. R. 1 Prob. & Div. 
 
 64) 290 
 
 Hatch V. Proctor (102 Mass. 351) 421 
 
 Hays V. Jackson (6 Mass. 149) 632 
 
 --Hensloe's Case (9 Coke, 36a) 376 
 
 Hills V. Mills (1 SaiK. a6) 422 
 
 Hiudmarsh v. Carlton (8 H. L. Cas. 160) 313 
 
 Hhiton v. Pinke (1 P. Wms. 539) 610 
 
 Hiscocks V. Hiscocks (5 Mees. & W. 363) 704 
 
 Hodgson V. Ambrose (1 Doug. 337) 688 
 
 Holdfast V. Dowsing (2 Strange, 1253) . . 302 
 
 HoUis V. Smith (10 East, 293) 546 
 
 Holman v. Perry (4 Mete. [Mass.] 492).. 486 
 
 Hoover v. Hoover (5 Pa. St. 351) 556 
 
 Howell V. Troutman (8 Jones. [N. C] 304) 263 
 
 -Hubbard v. Hubbard (8 N. Y. 196) 273 
 
 Humphreys v. Humphreys (3 P. Wms. 349) 412 
 
 Hunt, Goods of. In re (3 Prob. Div. 250) . . 264 
 
 Hurst V. Earl of Winchelsea (1 W. Bl. 187) 122 
 
 Jochumsen v. Suffolk Sav. Bank (3 Allen, 
 
 87) 386 
 
 Johnson v. Haines' Lessee (4 Dall. 64) .... 114 
 Jordan, Goods of, In re (L. R. 1 Prob. & 
 
 Div. 555) 180 
 
 Kehoe, In re (L. R. 13 Ir. 13) 191 
 
 Kennell v. Abbott (4 Ves. 802) 258 
 
 Kenny v. Jackson (1 Hagg. Ecc. 105) .... 506 
 
 Kerr v. Moon (9 Wheat. 565) 396 
 
 King V. Jones (5 Taunt 418) 182 
 
 Kingdon v. Nettle (1 Maule & S. 355) 131 
 
 Kite V. Kite (44 N. W. 716, 79 Iowa, 491) 160 
 
 Knights V. Quarles (2 Brod. & B. 102) 530 
 
 Lane, Appeal of (17 Atl. 926, 57 Conn. 
 
 182) 267 
 
 Langf ord v. Gascoyne (11 Ves. 833) 668 
 
 Lawton v. Lawton (3 Atk. 13) 552 
 
 Lawton v. Salmon (1 H. Bl. 260, note) . . 554 
 
 Lea V. Libb (3 Salk. 395) 311 
 
 Lemage v. Goodban (L. R. 1 Prob. & Div. 
 
 57) a51 
 
 Linginfelter v. Linginfelter (Hardin, 127) 371 
 
 Littleton v. Hibbins (Cro. Eliz. 793) 599 
 
 Page. 
 Livingston v. Livingston (3 Johns. Ch. 148) 635 
 Livingston v. Newkirk (3 Johns. Ch. 312). . 639 
 
 Long V. Symes (3 Hagg. Ecc. 771) 441 
 
 Loxley's Estate, In re (88 Pa. St. 470) . . 623 
 Luscomb V. Ballard (5 Gray, 403) 418 
 
 McCune's Devisees v. House (8 Ohio, 144) 
 
 McKim V. Aulbach (130 Mass. 481) 
 
 McLeod V. Drummond (17 Ves. 152) 
 
 McMahon v. Ryan (20 Pa. St. 329) 
 
 Maddock, Goods of. In re (L. R. 3 Prob. & 
 
 Div. 169) 
 
 Manning v. Spooner (3 Ves. 114) 
 
 Marshall v. Berry (13 Allen, 43) 
 
 345 
 
 683 
 520 
 257 
 
 322 
 600 
 17.-) 
 548 
 580 
 623 
 350 
 162 
 170 
 398 
 
 423 
 354 
 413 
 
 428 
 
 367 
 209 
 548 
 512 
 670 
 
 875 
 505 
 
 Martin v. Crump (2 Salk. 444). 
 
 Mason v. Tiffany (45 111. 892) 
 
 Massey, Appeal of (88 Pa. St. 470) 
 
 Matheson's Will, In re (2 Bradf. Sur. 210) 
 
 Meach v. Meach (24 Vt. 591) 
 
 Merchant v. Merchant (2 Bradf. Sur. 432) 
 
 Metcalf V. Clark (41 Barb. 45) 
 
 Minnesota Loan & Trust Co. v. Beebe (41 
 
 N. W. 232, 40 Minn. 7) 
 
 Mole V. Thomas (2 W. Bl. 1043) 
 
 Monroe v. James (4 Munf . 194) 
 
 Moor V. Barham (Cited in 1 P. Wms. 53) 
 Moresby, Goods of, In re (1 Hagg. Ecc. 
 
 378) 
 
 Morse v. Scott (4 Dem. Sur. 507) 
 
 Mosher v. Yost (33 Barb. 277) 
 
 Moss V. Sandefur (15 Ark. 381) 
 
 Murray v. Blatohf ord (1 Wend. 583) 
 
 Musser, Lessee of, v. Curry (Fed. Cas. 
 
 No. 9,973, 3 Wash. C. C. 481) 
 
 Myddleton v. Rushout (1 Phillim. Ecc. 244) 
 
 Nanson v. Barnes (L. R. 7 Eq. 250) 140 
 
 Nanz v. Oakley (24 N. E. 306, 120 N. Y. 
 
 84) 501 
 
 Nash V. Edmunds (Cro. Eliz. 100) 182 
 
 Nathan v. Morse (8 Phillim. Ecc. 529) ... 179 
 
 Natt, In re (87 Ch. Div. 517) 647 
 
 Nelson v. Potter (15 Atl. 375, 50 N. J. 
 
 Law, 324) 402 
 
 Nelson v. Pxiblic Administrator (2 Bradf. 
 
 Sur. 210) 350 
 
 Newton v. Clarke (2 Curt. Ecc. 320) 329 
 
 Nichols V. Nichols (2 Phillim. Ecc. 180) . . 270 
 
 Norman y. Morrell (4 Ves. 769) 700 
 
 O'Neall V. Farr (1 Rich. Law, 80) 337 
 
 Osborne v. Moss (7 Johns. 161) 563 
 
 Oxenham v. Clapp (2 Barn. & Adol. 309) 409 
 
 Parfitt V. Lawless (L. R. 2 Prob. & Div. 
 
 462) 
 
 Paske v. OUat (2 Phillim. Ecc. 323) 
 
 Pattison v. Pattison (1 Mylne & K. 12) . . 
 
 Pendock v. Mackender (2 Wils. 18) 
 
 Perkes V. Perkes (3 Barn. & Aid. 489) . . . 
 Perkins v. Micklethwaite (1 P. Wms. 274) 
 
 Perry v. Wooton (5 Humph. 524) 
 
 Perry, Goods of. In re (2 Curt. Ecc. 655) . . 
 
 Petit V. Smith (1 P. Wms. 7) 
 
 Pickersgill v. Lahens (15 Wall. 144) 
 
 Piercy, Goods of, In re (1 Rob. Ecc. 278) . . 
 Plunkett V. Sharpe (1 Lee, Ecc. 623) 
 " " " - - - (i/- 
 
 Pollard V. Pollard (1 Allen, 490) 
 
 Poole V. Munday (103 Mass. 174) 
 
 Potwine, Appeal of (31 Co-m. 381) 
 
 Powell V. Evans (5 Ves. 839) 
 
 Powell V. Powell (L. R. 1 Prob. & Div. 
 
 ^09) 
 
 ,ki<Prince v. Hazleton (20 Johns. 502)."!.'!! 
 
 Ratcliff's Case (3 Coke, 37a) 
 
 Raymond v. Fitch (2 Cromp., M. & R. 588) 
 
 Read's Case (5 Coke, 67) 
 
 Reed v. Harris (6 Adol. & E. 209). 
 Reiff V. Reiff (64 Pa. St. 134) ....... ' " " 
 
 Rex V. Raines (1 Ld. Raym. 361) 
 
 Richardson v. New York Cent. R. Co (98 
 
 Mass. 85) 
 
 Ricketts v. Weaver (12 Mees. & W 718) 
 Riggs V. Riggs (135 Mass. 238) ...... 
 
 Riley v. Riley (36 Ala. 496) ! ! 
 
 468 
 467 
 614 
 304 
 355 
 872 
 510 
 443 
 646 
 579 
 830 
 508 
 620 
 577 
 884 
 662 
 
 870 
 
 275 , 
 
 111 
 531 
 408 
 356 
 550 
 425 
 
 537 
 534 
 331 
 
 298 
 
TABLE or CONTENTS. 
 
 Page. 
 
 Rishton v. Cobb (5 Mylne & C. 145) 261 
 
 Bobinson v. Brewster (30 N. E. 683, 140 
 
 111. 649) 295 
 
 Rogers v. Hand (39 N. J. Eq. 270) 026 
 
 Ryder, Goods of, In re (2 Swab. & T. 127) 427 
 
 Sammon's Will, In re (4 Dem. Sur. 507) . . 209 
 
 Schumaker v. Schmidt (44 Ala. 454) 194 
 
 Semmes v. Semmes (7 Har. & .T. 388) 368 
 
 Senior v. Ward (1 EI. & El. 385) 535 
 
 Sewell V. SlinglufE (57 Md. 537) 707 
 
 Shailer v. Bumstead (99 Mass. 112) 473 
 
 Shelly's Case (1 Salk. 296) 411 
 
 Shires v. Glascock (2 Salk. 688) 326 
 
 Silk V. Prime (1 Brown, Ch. 138, note) ... 628 
 
 Sisk V. Smith (6 111. 503t 148 
 
 Smee v. Smee (5 Prob. Div. 84) 205 
 
 '=!oraner v. Hooker (2 P. Wms. 338) 655 
 
 Stanwood v. Owen (14 Gray, 195) 587 
 
 State V. Probate Court Ramsey County (25 
 
 Minn. 22) 559 
 
 Stevens v. Vancleve (Fed. Cas. No. 13,412, 
 
 4 Wash. C. C. 262) 231 
 
 Stodden v. Harvey (Cro. Jac. 204) 509 
 
 Stonehouse v. Evelyn (3 P. Wms. 252) . . . 183 
 Strong's Will, In re (16 N. Y. Supp. 104), 
 
 2 Con. Sur. 574) 324 
 
 Sullivan v. Sullivan (106 Mass. 474) 309 
 
 Suydam v. Owen (14 Gray, 195) 587 
 
 Taylor's Appeal (47 Pa. St. 31) 289 
 
 Thorold v. Thoroid (1 Phillim. Ecc. 1) . . . 185 
 Tomlinson v. Bury (14 N. E. 137, 145 Mass. 
 
 346) •..: 617 
 
 Irustees of Western Maryland College y. 
 
 McKinstry (23 Atl. 471, 75 Md. 188). . . 266 
 
 Tucker v. Westgarth (2 Addams, Ecc. 352) 438 
 
 Turner v. Cox (8 Moore, P. 0. 288) 602 
 
 Pngfi 
 United States v. Crosby (7 Cranch, 115) ... 395 
 
 Van Alst v. Hunter (5 Johns. Ch. 148 240 
 
 Vaughn v. Barret (5 Vt. 333) 391 
 
 Wagner v. Varner (50 Iowa, 532) 123 
 
 Walcott V. Oehterlouy (1 Curt. Ecc. 580). . 347 
 
 Walker v. Gammage (37 Ch. Div. 517) ... 647 
 
 Walton V. Walton (7 Johns. Ch. 258) 359 
 
 Ward V. Turner (1 Dickens, 170, 2 Ves. Sr. 
 
 431; 1 White & T. Lead. Cas. Eq. 905). . 169 
 
 Washburn v. Hale (10 Pick. 429) 570 
 
 Waters v. Stickney (12 Allen, 1) 492 
 
 Watson V. Watson (13 Conn. S3) 159 
 
 Wellington v. Apthorp (13 N. E. 10, 145 
 
 Mass. 69) 197 
 
 Wetter v. Walker (62 Ga. 142) 650 
 
 Whale V. Booth (4 Term B. 625, note) . . 519 
 
 White T. Driver (1 Phillim. Ecc. 84) 235 
 
 White V. Nelson (2 Dem. Sur. 265) 393 
 
 White V. Trustees of British Museum (6 
 
 Bing. 310) 300 
 
 Wilcox V. Wilcox (13 Allen, 252) 125 
 
 Wilson V. Frazier (2 Humph. 30) 390 
 
 Wilson, Goods of. In re (L. R. 1 Prob. & 
 
 Div. 269) 312 
 
 Wingrove v. Wiugrove (11 Prob. Div. 81) 256 
 
 Woodhouse v. Meredith (2 Maule & S. 5) . . 373 
 
 WooUey v. Clark (5 Barn. & Aid. 744). .. 515 
 
 Wright V. Home (8 Mod. 222) 621 
 
 Wyndham v. Chetwynd (1 W. Bl. 95) 305 
 
 Younge v. Skelton (3 Hagg. Ecc. 780) 49S- 
 
 Zabriskie v. Morris & E. R. Co. (33 N. J. 
 Eq. 22) 12s 
 
 I*) 
 
Part 3 —STATUTES. 
 
 LIST OF STATUTES. 
 
 Page. 
 
 Leg. Reg. (Hen. I.), I. (Stat. No. 1) 717 
 
 Magna Carta Reg. (John), c. 27 (Stat. No. 2) 717 
 Magna Carta (9 Hen. III.) cc. 7, 32, 36 
 
 (Stat. No. 3) 717 
 
 Stat. Merton (20 Hen. HI.), cc. 2, 9 (Stat. 
 
 No. 4) 717 
 
 13 Edw. I.(Westm. II.), cc. 19, 23 (Stat. 
 
 No. 5) 718 
 
 4 Edw. III., e. 7 (Stat. No. 6) 718 
 
 25 Edw. III., Stat. 5, c. 5 (Stat. No. 7) 718 
 
 31 Edw. III^ c. 11 (Stat. No. 8) 718 
 
 21 Hen. VIII., cc. 4, 5 (Stat. No. 9) 718 
 
 27 Hen. VIII., c. 10 (Stat. No. 10) 720 
 
 32 Hen. VIII., c. 1 (Stat. No. 11) 722 
 
 34 & 35 Hen. VIII., c. 5 (Stat. No. 12) ... . 723 
 
 PaRe. 
 
 12 Car. II., c. 24 (Stat. No. 13) 723 
 
 22 & 23 Car. II., c. 10 (Stat. No. 14) 725 
 
 29 Car. II., c. 3 (Stat. No. 15) 726 
 
 30 Car. II., c. 7 (Stat. No. 16) 728 
 
 I Jac. II., c. 17 (Stat. No. 17) 728 
 
 3 & 4 W. & M., c. 14 (Stat. No. 18) 729 
 
 4 Anne, c. 16 (Stat. No. 19) 730 
 
 14 Geo. II., c. 20 (Stat. No. 20) 730 
 
 25 Geo. II., c. 6 (Stat. No. 21) 730 
 
 40 Geo. III., c. 98 (Stat. No. 22) 732 
 
 II Geo. IV. & 1 Wm. IV., c. 40 (Stat. 
 No. 23) 733 
 
 7 Wm. IV. & 1 Vict., c. 26 (Stat. No. 24). . . 733 
 
 9 & 10 Vict., c. 93 (Stat. No. 25) 736 
 
 15 § 16 Vict., c. 24 (Stat. No. 26) 737 
 
 ABB. WILLS. 
 
 (xv)f 
 
Part I —TEXT, 
 
 ABB. WILLS— 1 
 
Ch. 1) 
 
 DEVOLUTIOK OF PROPERTY BY OPERATION OP LAW. 
 
 § 1 
 
 CHAPTER I. 
 
 DEVOLUTION OF PROPERTY BY OPERATION OP LAW. 
 
 I 1. Descent In General. 
 
 2. The Posthumous Heir. 
 
 3. The Heir also Devisee. 
 
 4. The Adopted Child as Heir. 
 
 5. The Estate by the Entirety. 
 
 6. Partnership Property. 
 
 7. Trust Estates. 
 
 8. Covenants Rnnnins with the Land. 
 % Estates pur Autre Vie. 
 
 10. Advancements. 
 
 11. Breaking Descent. 
 
 12. Conversion. 
 
 13. Escheat. 
 
 14. Of Dower, Curtesy, and Homestead — In 
 
 General. 
 
 15. Dower. 
 
 16. Curtesy. 
 
 17. Homestead. 
 
 § 1. Descent — In General. 
 
 Glanv. bk. 7, c. 3, (translation taken from 
 Digby, Real Prop.)— Of heirs some are next of 
 ■blood, some are more remote. Heirs next of 
 blood are those who are begotten of the body 
 of the ancestor, as a son or a daughter. On 
 failure of these the remoter heirs are called 
 to the inheritance; for instance the grandson 
 or grand-daughter descending in a direct line 
 from a son or a daughter without limit. 
 Next the brother and sister and their de- 
 scendants. Next the tmcle both on the fa- 
 ther's and the mother's side, and the aimt 
 in like manner and their descendants. When 
 therefore any one who holds an inheritance 
 dies, if he has an only son, it is without re- 
 serve true that that son is the successor of 
 his father in the whole inheritance. If he 
 has left more sons than one, then there is a 
 distinction whether he was a knight, or a 
 tenant of a knight's fee, or a free socman. 
 Because if he were a knight or a tenant by 
 knight service, then according to the law of 
 England the first-born son succeeds his fa- 
 ther in the whole inheritance, so that none 
 of his brothers can demand of right any 
 share therein. If however he be a free soc- 
 age tenant, then the inheritance shall be di- 
 vided between all the song, however many 
 they be, in equal shares, if that socage-land 
 has been subject by ancient custom to 
 division, saving however to the eldest son 
 the chief messuage in consideration of the 
 •dignity due to his seniority. He must how- 
 ever make its value good to the others out of 
 other property. But if there is no ancient 
 custom of division, then the first-born son ac- 
 cording to the custom of some places will 
 get the whole inheritance, while according 
 to the custom of other places the youngest 
 son is the heir. Further if any one leaves 
 an only daughter his heiress, then what has 
 
 ABB.WILLS 
 
 been said above as to an only son applies to 
 the daughter without any distinction. But 
 if he has left more daughters than one, then 
 the inheritance shall be divided equally 
 among them, whether their father was a 
 knight or a socman, saving liowever to the 
 eldest daughter the chief messuage according 
 to the above-mentioned rule. And it should 
 be observed that if any one of the brothers 
 or sisters, amongst whom the inheritance is 
 divided, dies without an heir of the body, 
 then the share which belonged to the de- 
 ceased shall be divided amongst the other sur- 
 vivors. Further the husband of the eldest 
 daughter shall do homage to the chief lord 
 for the whole fee. And the younger daugh- 
 ters or their husbands are bound to render 
 to the chief lord their service for their tene- 
 ment by the hand of the eldest daughter or 
 her husband. Yet the husbands of the 
 younger daughters are not bound to render 
 any homage or even any fealty to the hus- 
 band of the eldest daughter in respect of the 
 land during their lives, neither are their 
 heirs in the first or second generation bound 
 to do so; but the heirs of the third generation, 
 the issue of the younger daughters, are by the 
 laws of the realm bound to render homage 
 and reasonable relief to the heir of the eld- 
 est daughter. Further it is to be observed 
 that the husband of any woman cannot 
 make a gift of any portion of the inheritance 
 of his wife without the consent of her heirs, 
 nor can he release any portion belonging to 
 the heirs except only for his own life. If 
 moreover any one has a son and heir, and 
 besides a daughter or daughters, the son suc- 
 ceeds to the whole; hence it follows that if 
 any one has had more wives than one, and a 
 daughter or daughters by each of them, and 
 at last by the latest wife an only son, that 
 son alone takes the inheritance of his father, 
 because speaking generally it is true that a 
 woman never shares with a man in any in- 
 heritance, unless there may be some special 
 practice in a particular borough existing by 
 virtue of long usage in that borough. If how- 
 ever any one has had several wives, and by 
 each of them a daughter or daughters, all 
 the daughters shall share equally in the fa- 
 ther's inheritance, in the same way as if 
 they had all been by the same mother. And 
 when any one dies without a son or daughter 
 as heir, if he has grandsons or grand-daugh- 
 ters, children of a son or a daughter, then 
 there is no question but that the grandchil- 
 dren succeed in the same way as has been 
 before laid down concerning the succession 
 of a son or daughter, and that the same rules 
 apply. For lineal descendants are always 
 preferred to collaterals. But when any one 
 
 3 
 
§ 1 
 
 DEVOLUTION OF PiiOPEilTY BY OPERATIOK OF LAW. (Ch. 1 
 
 dies leaving a younger son and a grandson, the 
 son of a pre-deceased eldest son, there often 
 arises a gi-eat question as to the law, which 
 of the two should be preferred to the succes- 
 sion, that is to say whether the younger son 
 or the grandson. For some used to be of 
 opinion that the younger son was the right- 
 ful heir rather than the gi-andson, apparently 
 on the ground that the first-born son, not 
 having survived his father, never actually 
 became his heir, and so the younger son hav- 
 ing survived both his father and his brother 
 rightly In their view succeeds his father. 
 Others however think that the grandson 
 ought of right to be preferred to his uncle. 
 For since the grandson is the issue of the 
 eldest son, and is the heir of his body, he 
 ought to succeed to aU the rights which his 
 father would have had if he had been stiU 
 alive. This is my opinion, unless the father 
 has been portioned by the grandfather, etc. 
 
 Glanv. bk. 7, c. 4, (ti-anslation taken from 
 Dlgby, Real Prop.)— On the failure of lineal 
 descendants the brother or brothers wiU suc- 
 ceed, or, if there are no brothers, then the 
 sisters come in; if these are pre-deceased, 
 their children are next in order, and after 
 these the uncles and their children, and in 
 the last place aunts and their children, bear- 
 ing in mind the distinction above explained 
 between the sons of a knight and the sons of 
 a socman, and the grandsons in like manner, 
 observing also the distinction between males 
 and females. 
 
 Glanv. bk. 7, c. 16, (translation taken from 
 Digby, Real Prop.) — A doubt may arise as to 
 the case of a bastard, who cannot have any 
 heir unless he have an heir of his body. 
 
 2 Bl. Comm. c. 14, p. 201.— The methods 
 of acquiring on the one hand, and of losing 
 on the other, a title to estates in things real, 
 are reduced by om* law to two: descent, 
 where the title is vested in a man by the 
 single operation of law; and purchase, where 
 the title is vested in him by his own act or 
 agi-eement. 
 
 Descent, or hereditary succession, is the 
 title whereby a man on the death of his 
 ancestor acquires his estate by right of rep- 
 resentation, as his heir at law. An heir, 
 therefore, is he upon whom the law casts the 
 estate immediately on the death of the an- 
 cestor; and an estate, so descending to the 
 heir, is in law called the inheritance. 
 
 Consanguinity, or kindred, is defined by the 
 writers on these subjects to be "vinculum 
 personarum ab eodem stipite descenden- 
 tlum:" the connexion or relation of persons 
 descended from the same stock or common 
 ancestor. 
 
 This consanguinity is either lineal, or col- 
 lateral. 
 
 Lineal consanguinity is that which subsists 
 between persons, of whom one is descended 
 in a direct line from the other, as between 
 John Stiles (the propositus in the table of 
 consanguinity) and his father, grandfather, 
 gi-eat-grandfather, and so upwards in the di- 
 4 
 
 rect ascending line; or between John Stiles 
 and his son, grandson, great-grandson, and 
 so downwards in the direct descending line. 
 Every generation, in this lineal direct con- 
 sanguinity, constitutes a different degree, 
 reckoning either upwards or downwards: the 
 father of John Stiles is related to him in the 
 first degi-ee, and so likewise is his son; 
 his grandslre and grandson In the second; 
 his great-grandsire and great-grandson in the 
 third. This is the only natural way of reck- 
 oning the degrees in the direct line, and 
 therefore universally obtains, as well in the 
 civil, and canon, as in the common law. 
 
 The doctrine of lineal consanguinity is suffi- 
 ciently plain and obvious; but it is at the 
 first view astonishing to consider the num- 
 ber of lineal ancestors which every man has, 
 within no very great number of degrees; and 
 so many different bloods is a man said to 
 contain in his veins, as he hath lineal an- 
 cestors. Of these he hath two in the first 
 ascending degree, his own parents; he hath 
 four In the second, the parents of his father 
 and the parents of his mother; he hath eight 
 in the third, the parents of his two grand- 
 fathers and two grandmothers; and by the 
 same rule of progression, he hath an hundred 
 and twenty-eight in the seventh; a thousand 
 and twenty-four in the tenth: and at the 
 twentieth degi-ee, or the distance of twenty 
 generations, every man hath above a million 
 of ancestors, as common arithmetic will dem- 
 onstrate. This lineal consanguinity, we may 
 observe, falls strictly within the definition of 
 "vinculum personarum ab eodem stipite de- 
 scendentium;" since lineal relations are such 
 as descend one from the other, and both of 
 course from the same common ancestor. 
 
 2 Bl. Comm. c. 14, p. 203.— Collateral kin- 
 dred answers to the same description: col- 
 lateral relations agreeing with the lineal in 
 this, that they descend from the same stock 
 or ancestor, but differing in this, that they 
 do not descend one from the other. Col- 
 lateral kinsmen are such, then, as lineally 
 spring from one and the same ancestor, who 
 Is the "stirps," or root, the "stipes," trunk, or 
 common stock, from whence these relations 
 are branched out. As if John Stiles hath 
 two sons, who have each a numerous issue; 
 both these issues are lineally descended from 
 John Stiles as their common ancestor; and 
 they are collateral kinsmen to each other, 
 because they are all descended from this 
 common ancestor, and all have a portion of 
 his blood in their veins, which denominates 
 them "consanguineos." 
 
 2 Bl. Comm. c. 14, p. 207.— L The first rale is, 
 that inheritances shall lineally descend to 
 the issue of the person who last died actual- 
 ly seised In infinitum; but shall never lineal- 
 ly ascend. 
 
 To explain the more clearly both this and 
 the subsequent rules, it must first be ob- 
 served, that by law no inheritance can vest^ 
 nor can any person be the actual complete 
 heir of another, till the ancestor is previously 
 
Ch. 1) 
 
 DEVOLUTION OF PllOPEUTY BY OPERATION OF LAW. 
 
 1 
 
 dead. "Nemo est haeres viveutis." Before 
 that time the person who is next in the line 
 of succession is called an ''heu- apparent," or 
 "heir presumptive." Heirs apparent are 
 such, whose right of inheritance is indefea- . 
 sible, provided they outlive the ancestor; as 
 the eldest son or his issue, who must by the 
 course of the common law be heir to the 
 father whenever he happens to die. Heirs 
 presumptive are such who, if the ancestor 
 should die immediately, would in the present 
 circumstances of things be his heirs; but 
 whose right of inheritance may be defeated 
 by the contingency of some nearer heir being 
 bom: as a brother, or nephew, whose pre- 
 sumptive succession may be destroyed by 
 the birth of a child, or a daughter, whose 
 present hopes may be hereafter cut off by 
 the birth of a son. Nay, even if the estate 
 hath descended, by the death of the owner, 
 to such brother, or nephew, or daughter, in 
 the former cases, the estate shall be divested 
 and taken away by the birth of a post- 
 humous child; and, in the latter, it shall al- 
 so be totally devested by the birth of a post- 
 humous son. 
 
 2 Bl. Comm. c. 14, p. 208.— We must also 
 remember, that no person can be properly 
 such an ancestor, as that an inheritance of 
 lands or tenements can be derived from him, 
 Tinless he hath had actual seisin of such 
 lands, either by his own entry, or by the 
 possession of his own or his ancestor's lessee 
 for years, or by receiving rent from a lessee 
 of a freehold: or unless he hath had what 
 is equivalent to corporal seisin in heredita- 
 ments that are incorporeal; such as the re- 
 ceipt of rent, a presentation to the chiu-ch in 
 case of an advowson, and the like. But he 
 shall not be accounted an ancestor, who hath 
 had only a bare right or title to enter or be 
 otherwise seised. And therefore all the cases 
 which win be mentioned in the present chap- 
 ter, are upon the supposition that the de- 
 ceased (whose inheritance is now claimed) 
 was the last person actually seised thereof. 
 For the law requires this notoriety of posses- 
 sion, as evidence that the ancestor had that 
 property in himself, which is now to be 
 transmitted to his heir. Which notoriety 
 had succeeded in the place of the ancient 
 feudal investiture, whereby, while feuds 
 were precarious, the vassal on the descent 
 of lands was formerly admitted in the lord's 
 court (as is stiU the practice in Scotland), and 
 there received his seisin, in the nature of a 
 renewal of his ancestor's grant, in the pres- 
 ence of the feudal peers ; till at length, when 
 the right of succession became indefeasible, 
 an entry on any part of the lands within the 
 coimty (which if disputed was afterwards 
 to be tried by those peers), or other notorious 
 possession, was admitted as equivalent to the 
 formal grant of seisin, and made the tenant 
 capable of transmitting his estate by descent. 
 The seisin therefore of any person, thus un- 
 derstood, makes him the root or stock, from 
 which aU future inheritance by right of blood 
 
 must be derived: which is very briefly ex- 
 pressed in this maxim, "seisimifacitstipitem." 
 
 When therefore a person dies so seised, the 
 inheritance first goes to his issue: as if 
 there be Geoffrey, John, and Matthew, grand- 
 father, father, and son; and John purchases 
 lands, and dies; his son Matthew shall suc- 
 ceed him as heir, and not the grandfather, 
 Geoffrey; to whom the land shall never as- 
 cend, but shall rather escheat to the lord. 
 
 2 Bl. Comm. c. 14, p. 211.— II. A second gen- 
 eral rule or canon is, that the male issue shall 
 be admitted before the female. 
 
 Thus, sons shall be admitted before daugh- 
 ters; or, as om* male lawgivers have some- 
 what uncomplaisantly expressed it, the wor- 
 thiest of blood shall be preferred. As if John 
 Stiles hath two sons, Matthew and Gilbert, 
 and two daughters, Margaret and Charlotte, 
 and dies; first Matthew, and (in case of his 
 death without issue) then Gilbert shall be ad- 
 mitted to the succession in preference to both 
 the daughters. 
 
 2 Bl. Comm. c. 14, p. 213.— III. A third rule 
 or canon of descent is this: that where there 
 are two or more males, in equal degree, the 
 eldest only shall inlierit; but the females all 
 together. 
 
 As if a man hath two sons, Matthew and 
 Gilbert, and two daughters, Margaret and 
 Charlotte, and dies; Matthew, his eldest 
 son, shall alone succeed to his estate, in ex- 
 clusion of Gilbert, the second son, and both 
 the daughters; but, if both the sons die with- 
 out issue before the father, the daughters 
 Margaret and Charlotte shall both inherit 
 the estate as coparceners. 
 
 2 Bl. Comm. c. 14, p. 215.— IV. A fourth 
 rule or canon of descent is this: that the 
 lineal descendants in infinitum, of any per- 
 son deceased, shall represent their ancestor; 
 that is, shall stand in the same place as the 
 person himself would have done, had he been 
 living. 
 
 Thus the child, grandchild, or great-grand- 
 child (either male or female) of the eldest son 
 succeeds before the younger son, and so in 
 infinitum. And these representatives shall 
 take neither more nor less, but just so much 
 as their principals would have done. As if 
 there be two sisters, Margaret and Charlotte, 
 and Margaret dies, leaving six daughters, and 
 then John Stiles, the father of the two sisters, 
 dies without other issue: these six daughters 
 shall take among them exactly the same as 
 their mother Margaret would have done, had 
 she been living; that is, a moiety of the lands 
 of John Stiles in coparcenary: so that, upon 
 partition made, if the land be divided into 
 twelve parts, thereof Charlotte the surviving 
 sister shall have six, and her six nieces, the 
 daughters of Margaret, one apiece. 
 
 2 Bl. Comm. c. 14, p. 219.— V. A fifth rule 
 is, that on failure of lineal descendants, or 
 issue, of the person last • seised, the inher- 
 itance shall descend to his collateral relations, 
 being of the blood of the first purchaser; sub- 
 ject to the three preceding rules. 
 
DEVOLUTION OF PHOPERTY BY OPERATION OF LAW. 
 
 (Ch. I 
 
 Thus, if Geoffrey Stiles purchases land, 
 and it descends to John Stiles his son, and 
 John dies seised thereof, without issue; who- 
 ever succeeds to this inheritance must be of 
 the blood of Geoffrey, the first purchaser of 
 this family. The first purchaser, "perquisitor," 
 is he who first acquired the estate to his fam- 
 ily, whether the same was transferred to him 
 by sale or by gift, or by any other method, 
 except only that of descent. 
 
 2 Bl. Gomm. c. 14, p. 223.— VI. A sixth 
 rule or canon therefore is, that the collateral 
 heir of the person last seised must be his 
 next collateral kinsman, of the whole blood. 
 
 First, he must be his next collateral kins- 
 man, either personally or jure representatio- 
 nis; which proximity is reckoned according to 
 the canonical degrees of consanguinity be- 
 fore mentioned. Therefore, the brother be- 
 ing in the first degree, he and his descend- 
 ants shall exclude the uncle and his issue, 
 who is only in the second. 
 
 2 Bl. Comm. c. 14, p. 226.— But, secondly, 
 the heir need not be the nearest kinsman 
 absolutely, but only sub modo; that is, he 
 must be the nearest kinsman of the whole 
 blood; for if there be a much nearer kins- 
 man of the half blood, a distant kinsman of 
 the whole blood shall be admitted, and the 
 other entirely excluded; nay, the estate shaU 
 escheat to the loi"d, sooner than the half 
 blood shall inherit. 
 
 A kinsman at the whole blood is he that is 
 derived, not only from the same ancestor, 
 but from the same couple of ancestors. 
 
 2 Bl. Comm. c. 14, p. 233.— VII. The sev- 
 enth and last rule or canon is, that in col- 
 lateral inheritances the male stocks shall 
 be preferred to the female (that is, kindred 
 derived from the blood of the male ances- 
 tors, however remote, shall be admitted be- 
 fore those from the blood of the female, 
 however near'),— unless where the lands have, 
 in fact, descended from a female. 
 
 4 Kent, Comm. 374.— Descent, or hereditary 
 possession, is the title whereby a person, on 
 the death of his ancestor, acquires his es- 
 tate by right of representation as his heir.' 
 The English law of descent is governed by 
 a number of rules, or canons of inheritance, 
 which have been established for ages, and 
 have regulated the transmission of the es- 
 tate from the ancestor to the heir, in so clear 
 and decided a manner, as to preclude all 
 uncertainty as to the course which the de- 
 scent is to take. But, in the United States, 
 the English common law of descents, in its 
 most essential features, has been universally 
 rejected, and each state has established a law 
 of descent for itself. The laws of the in- 
 dividual states may agree in their great out- 
 lines, but they differ exceedingly in the de- 
 tails. There is no entire, though there is 
 an essential uniformity on this subject; and 
 the observation of a great master of this 
 title in American law ' is rather too strong, 
 
 ' 2 Bl. Gomm. 201. ' Reeve, Des. Pref . 
 
 when he says, that "this nation: may be said 
 to have no general law of descents, which 
 probably has not fallen to the lot of any 
 other civilized country." I shall not attempt 
 , to define and explain all the variations and 
 shades of differences between the regula- 
 tions of descent in the different states. This: 
 has been already done to our hand, with 
 great fulness of illustration, in the work of 
 Chief Justice Reeve, to which I have alluded; 
 and it will be sufficient for the pxirpose of the 
 present essay, to state those leading princi- 
 ples of the law of descent in the United 
 States, which are of the most general applica- 
 tion. 
 
 4 Kent, Gomm. 375.— I. The first rule of 
 inheritances is, that if a person owning real 
 estate dies seised, or as owner, vrithout devis- 
 ing the same, the estate shall descend to his 
 lawfiil descendants in the direct line of lineal 
 descent; and if there be but one person, then 
 to him or her alone; and if more than one 
 person, and all of equal degree of con- 
 sanguinity to the ancestor, then the inher- 
 itance shall descend to the several persons 
 as tenants in common, in equal parts, how- 
 ever remote from the intestate the coimmon 
 degree of consanguinity may be. 
 
 4 Kent, Comm. 390.— II. The second rule 
 of descent is, that if a person dying seised, 
 or as owner of land, leaves lawful issue of 
 different degrees of consanguinity, the inher- 
 itance shall descend to the children and 
 grandchildren of the ancestor, if any be liv- 
 ing, and to the issue of such children or 
 grandchildren as shall be dead, and so on to 
 the remotest degree, as tenants in common. 
 But such grandchildren, and their descend- 
 ants, shall inherit only such share as their 
 parents respectively would have inherited if 
 living. 
 
 4 Kent, Comm. 892— III. A third canon of 
 inheritance, which prevails to a considerable 
 extent in this country, is, that if the owner 
 of lands dies without lawful descendants, 
 leaving parents, the inheritance shall ascend 
 to them, either first to the father and next 
 to the mother, or jointly, under certain quali- 
 fications. 
 
 4 Kent, Comm. 400.— IV. If the intestate 
 dies without issue, or parents, the estate 
 goes to his brothers and sisters, and their 
 representatives. If there be several such 
 relatives, and all of equal degree of con- 
 sanguinity to the intestate, the inheritance 
 descends to them in equal parts, however 
 remote from the intestate the common de- 
 gree of consanguinity may be. If they all 
 be brothers and sisters, or nephews and 
 nieces, they inherit equally; but if some be 
 dead leaving issue, and others living, then 
 those who are living take the share they 
 would have taken if all had been living, and 
 the descendants of those who are dead in- 
 herit only the share which their parents 
 would have received if living. The rule ap- 
 plies to other direct lineal descendants of 
 brothers and sisters, and the taking per 
 
Cli. ]) DEVOLUTION OF PliOPERTY BY OPERATION OF LAW. 
 
 1-3 
 
 capita when tbey stand in equal degi'ee, and 
 taking per stirpes when they stand In differ- 
 ent degrees of consanguinity to the common 
 ancestor, prevails as to collaterals, to the re- 
 motest degree, equally as in the descent to 
 lineal heirs. 
 
 4 Kent, Comm. 407.— V. In default of lineal 
 descendants, and parents, and brothers and 
 sisters, and their descendants, the inherit- 
 ance ascends to the grandparents of the in- 
 testate, or to the survivor of them. 
 
 4 Kent, Comm. 408— VI. In default of lin- 
 eal descendants, and parents, and brothers 
 and sisters, and their descendants, and grand- 
 parents, the inheritance goes to the brothers 
 and sisters, equally, of both the parents of 
 the intestate, and to their descendants. If 
 all stand in equal degree of consanguinity 
 to the intestate, they take per capita; and if 
 in unequal degrees, they take per stirpes. 
 
 4 Kent, Comm. 409.— VII. If the inherit- 
 ance came to the Intestate on the part of his 
 father, then the brothers and sisters of the 
 father, and their descendants, shall have 
 preference; and, in default of them, the es- 
 tate shall descend to the br-others and sis- 
 ters of the mother, and their descendants. 
 But if the inheritance came to the intestate 
 on the part of his mother, then her brothers 
 and sisters, and their descendants, have the 
 preference; and, in default of them, the 
 brothers and sisters on the father's side, and 
 their descendants, take. 
 
 VIII. On failure of heirs, under the pre- 
 ceding rules, the inheritance descends to the 
 remaining next of kin to the intestate, ac- 
 cording to the rules in the English statute of 
 distribution of the personal estate, subject 
 to the doctrine In the preceding rules in the 
 different states, as to the half blood, and as 
 to ancestral estates, and as to the equality 
 of distribution. 
 
 4 Kent, Comm. 412.— In the mode of com- 
 puting the degrees of consanguinity, the civil 
 law, which is generally followed in this 
 country upon that point, begins with the in- 
 testate, and ascends from him to a common 
 ancestor, and descends from that ancestor 
 to the next heir; reckoning a degree for each 
 person, as well in the ascending as descend- 
 ing lines. According to this rule of compu- 
 tation, the father of the intestate stands in 
 the first degree, his brother in the second, 
 and his brother's children in the third. Or, 
 the grandfather stands in the second de- 
 gree, the uncle in the third, the cousins m 
 the fourth, and so on in a series of genealog- 
 ical order. In the canon law, and which is 
 the rule of the common law, in tracing title 
 by descent, the common ancestor is the ter- 
 minus a quo. The several degrees of kin- 
 dred are deduced from him. By this meth- 
 od of computation, the brother of A. is re- 
 lated to him in the first degree, instead of 
 being in the second, according to the civil 
 law; for he is but one degree removed from 
 the common ancestor. The uncle is related 
 to A. in the second degree; for though the 
 
 uncle be but one degree from the common 
 ancestor, yet A. is removed two degrees 
 from the grandfather, who is the commoD 
 ancestor. 
 
 Under the English law, illegitimate chil- 
 dren cannot take by descent, for they have 
 not, in contemplation of law, inheritable 
 blood. Nor can they transmit by descent 
 except to their own offspring, for they have 
 no other heh-s. 
 
 RATCLIFF'S CASE, Case No. 1, post. 
 JOHNSON V. HAINES, Case No. 2, post. 
 BATES V. BROWN, Case No. 3, post. 
 
 § 2. The Posthumous Heir. 
 
 4 Kent, Comm. 389.— Though posthumous 
 descendants Inherit equally as if they had 
 been born in the lifetime of the intestate, 
 and had survived him, yet the inheritance 
 descends, in the mean time, to the heir in 
 esse at the death of the intestate. It was 
 declared, by Lord Ch. J. De Grey, in the case 
 of Goodtitle v. Newman, 3 Wils. 516, on the- 
 authority of a case in the Year Books, of 9" 
 Hen. VI. 25a, that the posthumous heir was 
 not entitled to the profits of the estate be- 
 fore his birth, because the entry of the pre- 
 sumptive heir was lawful. This rule does: 
 not apply to posthumous children who take 
 remainders, under the statute of 10 & 11 
 Wm. III. They must take the intermediate 
 profits, says Lord Hardwicke; for they are 
 to take in the same manner as if born in the 
 lifetime of the father. 
 
 4 Kent, Comm. 412.— Posthumous children,, 
 as has been aU'eady mentioned, inherit, in all 
 cases, in like manner as if they were born in 
 the lifetime of the intestate, and had sur- 
 vived him. This is the universal rule in 
 this country. It is equally the acknowledged' 
 principle in the English law; and, for all the- 
 beneficial purposes of heirship, a child in; 
 ventre sa mere is considered as absolutely 
 born. 
 
 St. Merton, 20 Hen. III. (1235) c. 9. (Stat- 
 ute No. 4, post.) 
 
 Cf. St. 22 & 23 Car. II. c. 10, for analogies 
 between English law of distribution of personal 
 estate and law of descent in the United States. 
 (Statute No. 14, post.) 
 
 CLARKE V. CLARKE, Case No. 4, post. 
 
 § 3. The Heir also Devisee. 
 
 4 Kent, Comm. 506, 507.— A devise to the 
 heir at law is void, if it gives precisely the 
 same estate that the heir would take by de- 
 scent if the particular devise to him was 
 omitted out of the will. The title by descent 
 ^as, in that case, precedence to the title by 
 devise.' The test of the rule, says Mr. Cros- 
 ley, is to stiike out of the will the particular 
 devise, to the heir, and then, if without that 
 he would take by descent exactly the same 
 
 ' Hurst V. Earl of Winchelsea, 1 W. Bl. 187. 
 
 T 
 
§§3-8 
 
 DE^'OLUTION or PKOPEliTY BY OPERATION OF LAAV. 
 
 (C!i. 1 
 
 estate which the devise purports to give him, 
 lie is in by descent, and not by pui-chase. 
 Even if the lands be devised to the heir 
 charged with debts, he still takes by descent; 
 for the charge does not operate as an altera- 
 tion of the estate.^ 
 
 EMERSON V. INCHBIRD, Case No. 5, post. 
 ALLEN V. HEBER, Case No. 6, post 
 HURST V. EARL OF WINCHELSEA, 
 Case No. 7, post. 
 
 § 4. The Adopted Child as Heir. 
 
 WAGNER V. VARNER, Case No. 8, post. 
 
 § 5. The Estate by the Entirety. 
 
 2 Ifent, Comm. 132.— If an estate in land 
 be given to the husband and wife, or a joint 
 purchase be made by them dm-ing coverture, 
 they are not properly joint tenants, nor ten- 
 ants in common, for they are but one per- 
 son in law, and cannot take by moieties. 
 They are both seised of the entirety, and 
 neither can sell without the consent of the 
 other, and the survivor takes the whole. 
 This species of tenancy arises from the 
 unity of husband and wife, and it applies 
 to an estate in fee, for life, or for years. If 
 the grant be made to the husband and wife 
 and B., or to the husband and wife and B. 
 and C, the grantees are all joint tenants as 
 between themselves, but the husband and 
 wife are tenants by entireties, as between 
 each other; and as for all the purposes of 
 ownership, the husband and wife are but 
 one person in law, they take only a moiety 
 of the land in the one case, and only a third 
 of it in the other. If they are tenants by 
 entireties of a term for years, the husband 
 may alien the entirety so as to bind the 
 wife. The same woi-ds of conveyance, which 
 would make two other persons joint tenants, 
 will make the husband and wife tenants of 
 the entirety. This is a nice distinction laid 
 down in the old books, and it continues to 
 this day to be the law. 
 
 GREEN V. KING, Case No. 9, post. 
 
 § 6. Partnership Property. 
 
 Woerner, Adm'n, p. 288, § 126.— It is now 
 well recognized, that as between copartners 
 there is in reality no difeerence whether the 
 partnership property held for the purposes of 
 trade or business consists of personal real 
 estate or both, so far as their ultimate 
 rights and interests are concerned. How- 
 ever the title may stand at law, real estate 
 belonging to a partnership will In equity be 
 treated like its personal funds, disposable 
 and distributable accordingly; and the par- 
 ties In whose name it stands, as owners of 
 
 "^AUam V. Heber, 2 Strange, 1270: Hurst v 
 Earl of Wiuchelsea, 1 W. Bl. 187. 
 
 the legal title, will be held to be trustees of 
 the partnership, accountable accordingly. 
 Hence in equity, in case of the death of one 
 partner, there is no survivorship in the real 
 estate of the partnership, but his share will 
 go, after payment of partnership debts, to 
 his proper representatives; but all real es- 
 tate pm-chased with partnership funds for 
 the use of the firm, and employed in the part- 
 nership business, is in equity regarded as 
 assets of the partnership, and wlU be ap- 
 plied to the liquidation of partnership debts 
 in preference to the debts of individual 
 members of the firm. The dower interest of 
 the wadow of a deceased partner depends up- 
 on tlie contingency whether any portion of 
 the proceeds of sale of partnership real es- 
 tate remains to the share of her deceased 
 husband after the payment of all the part- 
 nership debts, and advances made by the 
 other partners; hence she has no claim to 
 dower in the lands sold or mortgaged by the 
 firm, although she did not join in the sale, 
 but may have a dower interest in the balance 
 of the purchase money so remaining, which 
 is then treated as real estate. So each part- 
 ner has an equitable interest in that por- 
 tion of the legal estate held by the other, un- 
 til all the debts obligatory on the firm, in- 
 cluding advances by any of the partners to 
 the firm, are paid, and the rights of the de- 
 ceased partner's widow, legal representatives, 
 heirs, and creditors are postponed to such 
 payment. But such partnership real estate 
 as may not be required for the payment of 
 partnership debts or the adjustment of bal- 
 ances between the partners is, in the settle- 
 ment of the estate of a deceased partner, 
 generally, at least in cases where the part- 
 ners have not by either an express or im- 
 plied agreement indicated an intention to 
 convert the land into personal estate, treated 
 as realty; although in some cases, both in 
 England and America, the character of per- 
 sonalty, once attaching to such property by 
 reason of having been purchased with part- 
 nership funds or used for partnership pur- 
 poses, is held to continue until final dis- 
 tribution. Whether an agreement to buy 
 and seU lands and share in the profits of the 
 sale converts the land absolutely into per- 
 sonalty, has been held both ways. 
 
 WILCOX v. WILCOX, Case No. 10, post. 
 
 § 7. Trust Estates. 
 
 29 Car. II. o. 3, § 11. (Statute No. 15, post.) 
 ZABRTSKIE v. MORRIS, Case No. 11, post. 
 
 § 8. Covenants Running with the 
 Land. 
 
 2 Bl. Comm. 304.-After warranty usually 
 follow covenants, or conventions, which are 
 clauses of agreement contained in a deed 
 whereby either party may stipulate for the 
 
Ch 1) 
 
 DEVOLUTION OF PHOPERTY BY OPERATION OF LAW. 
 
 §§8-9 
 
 truth of certain facts, or may bind himself 
 to perform, or give, something to the other. 
 Thus the grantor may covenant that he hath 
 a right to convey; or for the grantee's quiet 
 ■enjoyment; or the lilce; the grantee may 
 covenant to pay his rent, or keep the prem- 
 ises in repair, &c. If the covenantor cove- 
 nants for himself and his heirs, it is then 
 ■a. covenant real, and descends upon the heirs ; 
 who are bound to perform it, provided they 
 have assets by descent, but not" otherv?ise; 
 if he covenants also for his executors and 
 administrators, his personal assets, as well 
 as his real, are likewise pledged for the 
 performance of the covenant; which makes 
 such covenant a better security than any 
 warranty. 
 
 KINGDON V. NOTTLE, Case No. 12, post. 
 KING V. JOXBS, Case No. 13, post. 
 AUBUCHON v. LORY, Case No. 14, post. 
 AYERS V. DIXON, Case No. 15, post. 
 
 § 9. Estates pur Autre Vie. 
 
 2 Bl. Comm. 257.— Occupancy is the taking 
 possession of those things which before be- 
 longed to nobody. This, as we have seen, is 
 the true ground and foundation of all proper- 
 ty, or of holding those things in severalty, 
 which by the law of nature, unqualified by 
 that of society, were common to all mankind. 
 But when once it was agreed that every 
 thing capable of ownership should have an 
 •owner, natural reason suggested, that he who 
 could first declare his intention of appropri- 
 ating any thing to his own use, and, in conse- 
 •quence of such intention, actually took it in- 
 to possession, should thereby gain the abso- 
 lute property of it; according to that rule of 
 the law of nations, recognized by the laws 
 of Rome, "quod nuUius est, id ratione na- 
 turali occupanti conceditur." 
 
 This right of occupancy, so far as it con- 
 cerns real property (for of personal chattels 
 I am not in this place to speak), hath been 
 confined by the laws of England within a 
 vei"y nazTow compass; and was extended 
 only to a single instance: namely, where a 
 man was tenant piu* auter vie, or had an 
 estate granted to himself only (without men- 
 tioning his heirs) for the life of another man, 
 and died during the life of cestuy que vie, 
 or him by whose life it was holden; in this 
 case he that could first enter on the land 
 might lawfully retain the possession, so long 
 :as cestuy que vie lived, by right of occu- 
 pancy. 
 
 2 Bl. Comm. 259.— This seems to have been 
 recurring to first principles, and calling in the 
 law of nature to ascertain the property of the 
 land, when left without a legal owner. For 
 it did not revert to the grantor, though it 
 formerly was supposed so to do; for he had 
 -parted with all his interest, so long as cestuy 
 ■que vie lived: it did not escheat to the lord 
 ■ot the fee, for all escheats must be of the ab- 
 solute entire fee, and not of any particular 
 
 estate carved out of it; much less of so mi- 
 nute a remnant as this: it did not belong to 
 the grantee; for he was dead: it did not de- 
 scend to his heirs; for there were no words 
 of inheritance in the grant: nor could it vest 
 In his executors; for no executors could suc- 
 ceed to a freehold. Belonging therefore to 
 nobody, like the "haereditas jacens" of the 
 Romans, the law left it open to be seized and 
 appropriated by the first person that could 
 enter upon it, during the life of cestuy que 
 vie, under the name of an occupant. But 
 there was no right of occupancy allowed, 
 where the king had he reversion of the lands: 
 for the reversioner hath an equal right with 
 any other man to enter upon the vacant pos- 
 session, and where the king's title and a sub- 
 ject's conciu', the king's shall be always pre- 
 ferred: against the king therefore there could 
 be no prior occupant, because "nullum tempus 
 occurrit regl." And, even in the case of a sub- 
 ject, had the estate pm- auter vie been grant- 
 ed to a man and his heirs during the life of 
 cestuy que vie, there the heir might, and still 
 may, enter and hold possession, and is called 
 in law a special occupant: as having a spe- 
 cial exclusive right, by the terms of the orig- 
 inal grant, to enter upon and occupy this 
 haereditas jacens, during the residue of the 
 estate granted; though some have thought 
 him so called with no very great propriety; 
 and that such estate is rather a descendible 
 freehold. But the title of common occupancy 
 is now reduced almost to nothing by two stat- 
 utes: the one 29 Car. II. c. 3, which enacts 
 (according to the ancient rule of law) that 
 where there is no special occupant, in whom 
 the estate may vest, the tenant piir auter vie 
 may devise it by will, or it shall go to the ex- 
 ecutors or administrators, and be assets in 
 their hand for payment of debts: the other, 
 that of, 14 Geo. II. c. 20, which enacts, that 
 the surplus of such estate pur auter vie, after 
 payment of debts, shall go in a course of 
 distribution like a chattel interest. 
 
 2 Bl. Comm. 260.— By these two statutes 
 the title of common occupancy is utterly 
 extinct and abolished; though that of spe- 
 cial occupancy by the heir at law continues 
 to this day; such heir being held to succeed 
 to the ancestor's estate, not by descent, for 
 then he must take an estate of inheritance, 
 but as an occupant specially marked out and 
 appointed by the original grant. But, as be- 
 fore the statutes there could no common oc- 
 cupancy be had of incorporeal hereditaments, 
 as of rents, tithes, advowsons, commons, or 
 the like, (because, with respect to them, there 
 could be no actual entry made, or corporal 
 seisin had; and therefore by the death of the 
 grantee pur auter vie a grant of such here- 
 ditaments was entirely determined,) so now, 
 I apprehend, notwithstanding these statutes, 
 such grant would be determined likewise; 
 and the hereditaments would not be devis- 
 able, nor vest in the executors, nor go in a 
 course of distribution. For these statutes 
 must not be Construed so as to create any 
 
 9 
 
§§ 9-17 DEVOLUTION OF PHOPERTY BY OPERATION OE LAW. (Ch. 1 
 
 new estate, or keep that alive which by the 
 common law was determined, and thereby to 
 defer the grantor's reversion, but merely to 
 dispose of an interest in being, to which by 
 law there was no owner, and which there- 
 fore was left open to the first occupant. 
 When there is a residue left, the statutes 
 give it to the executors and administrators, 
 Instead of the first occupant; but they will 
 not create a residue, on purpose to give it to 
 either. They only meant to provide an ap- 
 pointed^ instead of a casual, a certain instead 
 of an uncertain, owner of lands which be- 
 fore were nobody's; and thereby to supply 
 this casus omissus, and render the disposition 
 of law in all respects entirely uniform; this 
 being the only instance wherein a title to a 
 real estate could ever be acquired by occu- 
 pancy. 
 
 29 Car. II. c. 3, § 12. (Statute No. 15, post.) 
 14 Geo. II. c. 20, § 9. (Statute No. 20, post.) 
 1 Vict. 0. 26, §§ 2, 3, 6. (Statute No. 24, 
 post.) 
 
 ATKINSON v. BAKER, Case No. 16, post. 
 
 § 10. Advancements. 
 
 4 Kent, Comm. 417, 418.— There is, general- 
 ly, in the statute laws of the several states, 
 a provision relative to real and personal es- 
 tates, simUar to that which exists in the 
 English statute of distribution, concerning 
 an advancement to a child. If any child of 
 the intestate has been advanced by him by 
 settlement, either out of the real or personal 
 estate, or both, equal or superior to the 
 amoimt in value of the share of such chUd 
 which would be due from the real and per- 
 sonal estate, if no such advancement had 
 been made, then such chUd, and his descend- 
 ants, are excluded from any share in the 
 real or personal estate of the intestate. But 
 if such advancement be not equal, then the 
 child, and his descendants, are entitled to 
 receive, from the real and personal estate, 
 sufficient to malje up the deficiency, and no 
 10 
 
 more. The maintenance and education of a 
 chUd, or the gift of money, without a view to 
 a portion, or settlement in life, is not deemed 
 an advancement. 
 
 GRATTAN v. GRATTAN, Case No. 17, post. 
 
 § 11. Breaking Descent. 
 
 NANSON V. BARNES, Case No. 18, post. 
 
 § 12. Conversion. 
 
 ACKROYD V. SMITHSON, Case No. 19, 
 post. 
 
 § 13. Escheat. 
 
 See Co. Litt. 13a, 18b, and Hargrave's notej 
 2 Bl. Comm. 244, 251; Crane v. Reeder, 21 
 Mich. 24; Burgess v. Wheate, 1 W. Bl. 123? 
 and Matthews v. Ward. 10 Gill & J. 443. 
 
 § 14. Of Dower, Curtesy, and 
 Homestead — In General. 
 
 As to the propriety of these titles under de- 
 scent, see Pemberton v. H*cl£s, 1 Bin. 1. 
 
 § 15. Dower. 
 
 SISK V. SMITH, Case No. 20, post. 
 BIRMINGHAM v. KTRWAN, Case No. 21, 
 post. 
 
 § 16. Curtesy. 
 
 WATSON V. WATSON, Case No. 22, post 
 
 § 17. Homestead. 
 
 Magna Carta, 9 Hen. III. c. 7. (Statute No. 
 
 3, post.) 
 
 St. Merton, 20 Hen. III. c. 2. (Statute No. 
 
 4, post.) 
 
 27 Hen. VIII. c. 10, § 6. (Statute No. 10, 
 post.) 
 
 KITE V. KITE, Case No. 23, post. 
 
Ch. 2) 
 
 DONATIO CAUSA MOKTIS. 
 
 § 18 
 
 CHAPTER II. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER- 
 
 MORTIS. 
 
 -DONATIO CAUSA 
 
 § 18. Donatio Causa Mortis — In General. 
 
 19. Appreliension of Death. 
 
 20. Delivery. 
 
 21. Revocation. 
 
 22. Gifts by Husband and Wife. 
 
 23. Rights of Creditors. 
 
 24. Whether Gifts are Subject to Adminis- 
 
 tration. 
 
 § 18. Donatio Causa Mortis — In 
 General. 
 
 2 Bl. Comm. 514.— Besides these formal 
 legacies, contained in a man's will and testa- 
 ment, there is also permitted another death- 
 bed disposition of property; which is called 
 a donation causa mortis. And that is, when 
 a person in his last sickness, apprehending 
 his dissolution near, delivers or causes to be 
 delivered, to another the possession of any 
 personal goods, (under which have been in- 
 cluded bonds, and bills drawn by the de- 
 ceased upon his banker,) to keep in case of 
 his decease. This gift, if the donor dies, 
 needs not the assent of his executor: yet it 
 shall not prevail against creditors; and Is 
 accompanied with this implied trust, that, if 
 the donor lives, the property thereof shall re- 
 vert to himself, being only given in contem- 
 plation of death, or mortis causa.' This 
 method of donation might have subsisted in 
 a state of nature, being always accompanied 
 with delivery of actual possession; and so 
 far differs from a testamentary disposition, 
 but seems to have been handed to us from 
 the civil lawyers, who themselves borrowed 
 it from the Greeks. 
 
 2 Kent, Comm. 444.— Gifts causa mortis 
 have been a subject of very frequent and ex- 
 tensive discussion, in the English courts of 
 equity. Such gifts are conditional, like lega- 
 cies; and it is essential to them that the 
 donor make them iu his last illness, or in 
 contemplation and expectation of death; and 
 with reference to their effect after his death, 
 they are good notwithstanding previous will, 
 and if he recovers, the gift becomes void.^ 
 The apprehension of death may arise from 
 infirmity, or old age, or from external and 
 anticipated danger. 
 
 The English law on the subject of this 
 species of gift, is derived wholly from the 
 civil law. Justinian was justly apprehen- 
 sive of fraud in these gifts, and jealous of 
 the abuse of them, and he required them to 
 be executed In the presence of five witnesses. 
 
 •Finch, Prec. 269; 1 P. Wms. 406, 441; 3 
 P. Wms. 357. 
 
 'Swinb. Wills, 18; Drury v. Smith, 1 P. 
 Wms. 404. 
 
 We have not adopted such precautions; 
 though it has been truly declared, that such 
 donations amount to a revocation pro tanto 
 of written wills; and, not being subject to 
 the forms prescribed for nuncupative wills, 
 they were of a dangerous natm'e. By the 
 civil law, they were reduced to the similitude 
 of legacies, and made liable to debts, and to 
 pass for nothing, and to be returned, if the 
 donor recovered, or revoked the gift, or If 
 the donee died first It was a disputed point 
 with the Roman civilians, whether donations 
 causa mortis resembled a proper gift, or a 
 legacy. The final and correct opinion was 
 established, that a gift inter vivos was irrev- 
 ocable; but that a gift causa mortis was 
 conditional, and revocable, and of a testa- 
 mentary character, and made in apprehen- 
 sion of death. The first case in the English 
 law on the subject of gifts causa mortis, 
 was that of Jones v. Shelby, In 1710,' in 
 which the lord chancellor rvded, that a do- 
 natio causa mortis was substantially a wiU 
 with a like revocable character during the 
 life of the donor. Afterwards, In Drury v. 
 Smith,* a person, in his last sickness, gave 
 a one hundred pound bill to a third person, 
 to be delivered to the donee if he died: and 
 this was held to be a good gift, and Ix)rd 
 Hardwicke subsequently" approved of that 
 decision. In Lawson v. Lawson," and In 
 MiUer v. MUler,' a delivery to the wife as 
 donee was held good; but in the last case it 
 was held, that a note of hand not payable 
 to bearer, and being a mere chose in action, 
 to be sued in the name of the executor, did 
 not pass by delivery, or talie effect as a gift 
 causa mortis. The delivery of bank notes, 
 which circulated as cash, was held at the 
 same time to be a valid donation; and the 
 same point has been since established.' 
 
 2 Kent, Comm. 44.5.— But the case of Ward 
 V. Turner," was that in which the whole doc- 
 trine was, for the first time, fully and pro- 
 foundly examined in the English court of 
 chancery; and Lord Hardwicke gave to the 
 subject one of his most elaborate and learned 
 investigations. He held, that actual deliv- 
 ery was indispensable to the validity of a 
 gift causa mortis, and that a delivery to the 
 donee of receipts for south sea annuities, 
 was not sufficient to pass the property, 
 
 •Finch, Prec. 300. 
 
 * 1 P. Wms. 404. 
 
 "3 Atk. 214. 
 
 '1 P. Wms. 441. 
 
 ' 3 P. Wms. 356. 
 
 ' Hill V. Chapman, 2 Brown, Ch. 391. 
 
 » 2 Ves. Sr. 431. 
 
 11 
 
§§ 18-24 
 
 DONATIO CAUSA MOKTIS. 
 
 (Ch. 2 
 
 though it was strong evidence of the intent. 
 The delivery of the receipt was not the de- 
 livery of the thing. He examined very ac- 
 curately the leading texts of the civil law, 
 and the commentators on the point, and 
 concluded, that though the civil law did not 
 require absolute delivery of possession in 
 every kind of donation causa mortis, that 
 law had not been received and adopted in 
 England in respect to those donations, only 
 •so far as the donations wore accompanied 
 with actual delivery. The English law re- 
 quired delivery throughout, and in every 
 case. In all the chancery cases, delivery of 
 the thing was required, and not a delivery 
 in the name of tlie thing. In Jones v. Shel- 
 by, a symbol was held good; but that was 
 in substance the same as delivery of the ar- 
 ticle, and it was the only case in which such 
 a symbol had been admitted. BeUvery of a 
 syimbol in the name of the article was not 
 sufficient. The delivery of the receipts was 
 merely legatory, and amounted to a nun- 
 cupative wiU, and was a breach of the stat- 
 ute of frauds. 
 
 2 Kent, Comm. 446.— Symbolical delivery 
 is very much disclaimed by Lord Hardwicke 
 in this case, and yet he admits it to be good 
 when it is tantamount to actual delivery; 
 and in Smith v. Smith,'" it was ruled, that 
 the delivery of the key of a room, contain- 
 ing furniture, was such a delivery of pos- 
 session of the fm-niture, as to render the gift 
 causa mortis valid. Oh. J. Gibbs said, that 
 was a confused case; but the efficacy of de- 
 livery, by means of the key, was not a 
 questionable fact. 
 
 The doatrlne of this species of gift, was 
 afterwards discussed with abiUty and learn- 
 ing, in Tate v. Hilbert." Lord Loughbor- 
 ough pressed the necessity of actual deliv- 
 ery to the efficacy of such gift, except in the 
 case of a transfer by deed or writing. He 
 held, that where a person, in his last sick- 
 ness, gave the donee his check on his bank- 
 er, for a sum of money, payable to bearer, 
 and he died before it was realized, it was 
 not good as a donatio causa mortis; for It 
 was to take effect presently, and the au- 
 thority was revoked by his death. He like- 
 wise held, that where the same person, at 
 the same time, gave to another donee his 
 promissory note for a sum of money, that 
 was not good as such a gift, for it was no 
 transfer of property. So, where a person, 
 supposing himself to be in his last sickness, 
 caused India bonds, bank notes and guineas! 
 to be sealed up and mai'ked with the name 
 of the donee, with directions to have them 
 delivered after his death, and still retained 
 possession of them, it was held.'^^ that there 
 was no delivery; and the act was void as a 
 
 " 2 Strange, 955. 
 
 " 2 Ves. Jr. Ill, 4 Brown, Ch. 286. 
 
 "Buna V. Markham, 7 Taunt. 224. 
 
 12 
 
 gift causa mortis; for there must be a con- 
 tinuing right of possession in the donee un- 
 til the death of the donor, and he may re- 
 voke the donation any time before his 
 death." 
 
 2 Kent, Comm. 447.— The cases do not 
 seem to be entirely reconcilable on the sub- 
 ject of donations of choses in action. A de- 
 livery of a note, as we have seen, was not 
 good, because it was a mere chose in action; 
 and yet in Snellgrove v. Baily," the gift of a 
 bond causa mortis was held good, and 
 passed the equitable interest; and Lord 
 Hardwicke afterwards, in the great case of 
 Ward V. Turner, said he adhered to that de- 
 cision; and the same kind of gift, as well as 
 the gift of a promissory note causa mortis, 
 has been held in this country to be valid. 
 The distinction made by Lord Hardwicke, 
 between bonds and bills of exchange, prom- 
 issory notes and other choses in action seems 
 now to be exploded, and they are all con- 
 sidered proper subjects of a vaUd donation 
 causa mortis as well as inter vivos. 
 
 2 Kent, Comm. 448.— By the admirable eq- 
 uity of the civil law, donations causa mortis 
 were not allowed to defeat the just claims 
 of creditors; and they were void as against 
 them even without a fraudulent intent It 
 is equally the language of the modem civil- 
 ians, and of the English law, that donations 
 cannot be sustained to the prejudice of ex- 
 isting creditors. 
 
 MEACH V. MEACH, Case No. 24, post. 
 
 § 19. Apprehension of Death. 
 
 GOURLEY V. LINSENBIGLEB, Case No. 
 25, post. 
 
 § 20. Delivery. 
 WAED V. TURNER, Case No. 26, post. 
 
 § 31. Revocation. 
 
 MERCHANT v. MERCHANT, Case No. 
 27, post. 
 
 § 22. Gifts by Husband and Wife. 
 
 CHASE V. REDDING, Case No. 28, post. 
 MARSHALL v. BERRY, Case No. 29, post. 
 
 I 23. Eights of Creditors. 
 
 CHASE V. REDDING, Case No. 28, post. 
 
 § 24. Whether Gifts are Subject 
 to Administration. 
 
 MARSHALL v. BERRY, Case No. 29, post. 
 
 " Hawkins v. Blewitt, 2 Esp. 663 
 "3 Atk. 214. 
 
Ch. 3) 
 
 WILLS. 
 
 §25 
 
 CHAPTER III. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER— WILLS. 
 
 § 25. History of Wills. 
 
 26. Form of Wills— In General. 
 
 27. Oral Wills— Before Statute of Frauds, 
 
 29 Car. 11. 
 
 28. After Statute of Frauds, 29 Car. II. 
 
 29. Written Wills — Personal Property. 
 
 30. Eeal Property— After Statute of 
 
 Wills, 32 Hen. VIII. 
 
 31. After Statute of Frauds, 29 Car. H. 
 
 32. Holographic Wills. 
 
 33. Ambiguous Writing. 
 
 34. Conditional Wills. 
 
 35. Incorporation by Reference. 
 
 36. Joint and Mutual Wills. 
 
 37. Contracts to Make Wills. 
 
 § 25. History of Wills. 
 
 Maine, Anc. Law, c. 6, p. 166.— If an at- 
 tempt were made to demonstrate in Eng- 
 land the superiority of the historical method 
 of investigation to the modes of inquiry con- 
 cerning jurisprudence which are in fashion 
 among us, no department of law would bet- 
 ter serve as an example than testaments or 
 wills. Its capabilities it owes to its great 
 length and great continuity. At the be- 
 ginning of its history we find ourselves in 
 the very infancy of the social state, sur- 
 rounded by conceptions which it requires 
 some effort of mind to realise in their an- 
 cient form; while here, at the other ex- 
 tremity of its line of progress, we are in the 
 midst of legal notions which are nothing 
 more than those same conceptions disguised 
 by the phraseology and by the habits of 
 thought which belong to modern times, and 
 exhibiting therefore a difficulty of another 
 kind, the difficulty of believing that ideas 
 which form part of our every-day mental 
 stock can really stand in need of analysis 
 and examination. The growth of the law 
 of wills between these extreme points can 
 be traced with remarkable distinctness. It 
 was much less interrupted at the epoch of 
 the birth of feudalism, than the history of 
 most other branches of law. It is, indeed, 
 true that as regards all provinces of juris- 
 prudence, the break caused by the division 
 between ancient and modern history, or in 
 other words by the dissolution of the Ro- 
 man empire, has been very greatly exagger- 
 ated. Indolence has disinclined many writ- 
 ers to be at the pains of looking for threads 
 of connexion entangled and obscured by the 
 confusions of six troubled centuries, while 
 other inquirers, not naturally deficient in pa- 
 tience and industry, ha^e been misled by 
 idle pride in the legal system of their coun- 
 try, and by consequent imwillingness to con- 
 fess its obligations to the jurisprudence of 
 Rome. But these unfavorable influences 
 have had comparatively little effect on the 
 
 province of testamentary law. The bar- 
 barians were confessedly strangers to any 
 such conception as that of a will. The best 
 authorities agree that there is no trace of 
 it in those parts of their written codes which 
 comprise the customs practised by them in. 
 their original seats and in their subsequent 
 settlements on the edge of the Roman em- 
 pire. But soon after they became mixed 
 with the population of the Roman provinces 
 they appropriated from the imperial juris- 
 prudence the conception of a will, at first in 
 part, and afterwards in all its Integrity. 
 The influence of the church had much to do 
 with this rapid assimilation. The ecclesi- 
 astical power had very early succeeded to 
 those privileges of custody and registration 
 of testaments which several of the heathen 
 temples had enjoyed; and even thus early 
 it was almost exclusively to private bequests 
 that the religious foundations owed their 
 temjporal possessions. Hence it is that the 
 decrees of the earliest provincial councils 
 perpetually contain anathemas against those 
 who deny the sanctity of wills. Here, in 
 England, church Influence was certainly- 
 chief among the causes which by universal 
 acknowledgment have prevented that dis- 
 continuity in the history of testamentary 
 law which is sometimes believed to exist in 
 the history of other provinces of jurispru- 
 dence. The jurisdiction over one class of 
 wills was delegated to the ecclesiastical 
 com-ts, which applied to them, though not 
 always intelligently, the principles of Ro- 
 man jurisprudence; and, though neither the 
 com-ts of common law nor the court of chan- 
 cery owned any positive obligation to fol- 
 low the ecclesiastical tribunals, they could 
 not escape the potent influence of a system 
 of settled rules in course of application by 
 their side. The English law of testamen- 
 tary succession to personalty has become a 
 modified form of the dispensation under 
 which the inheritances of Roman citizens 
 were administered. 
 
 Maine, Anc. Law, c. 6, p. 168. — It is not 
 difficult to point out the extreme difference 
 of the conclusions forced on us by the his- 
 torical treatment of the subject, from those 
 to which, we are conducted, when, without 
 the help of history, we merely strive to an- 
 alyse our prima facie impressions. I sup- 
 pose there is nobody who, starting from the 
 popular or even the legal conception of a 
 will, would not imagine that certain quali- 
 ties are necessarily attached to it. He- 
 would say, for example, that a will neces- 
 sarily takes effect at death only,— that it is 
 secret, not known as a matter of course to 
 persons taking interests under its provisions, 
 —that it is revocable, i. e. always capable 
 
 13. 
 
§ 25 
 
 WILLS. 
 
 (Ch. 3 
 
 of being superseded by a new act of testa- 
 tion. Yet I shall be able to sbow that there 
 was a time when none of these character- 
 istics belonged to a will. The testaments 
 from which our wills are directly descend- 
 ed at first took effect immediately on their 
 execution; they were not secret; they were 
 not revocable. Few legal agencies are, in 
 fact, the fruit of more complex historical 
 agencies than that by which a man's writ- 
 ten intentions control the posthumous dis- 
 position of his goods. Testaments very 
 slowly and gradually gathered around them 
 the qualities I have mentioned; and they did 
 this from causes and under pressure of 
 events which may be called casual, or which 
 &t any rate have no interest for us at pres- 
 ent, except so far as they have affected the 
 history of law. 
 
 Maine, Anc. Law, c. 6, p. 169.— At a time 
 when legal theories were more abundant than 
 at present,— theories which, it is true, were 
 for the most part gratuitous and premature 
 enough, but which nevertheless rescued ju- 
 risprudence from that worse ana more ig- 
 noble condition, not unknown to ourselves, 
 in which nothing like a generalisation is 
 aspii'ed to, and law is regarded as a mere 
 empirical pursuit — it was the fashion to ex- 
 plain the ready and apparently intuitive per- 
 eeption which we have of certain qualities in 
 a wiU, by saying that they were natural 
 to it, or, as the phrase would run in full, 
 attached to it by the law of nature. Nobody, 
 I imagine, would affect to maintain such a 
 doctrine, when once It was ascertained that 
 all these characteristics had their origin with- 
 in historical memory; at the same time, 
 vestiges of the theory of which the doctrine 
 is an offshoot, linger in forms of expression 
 wMch we all of us use and perhaps scarce- 
 ly known how to dispense with. I may illus- 
 trate this by mentioning a position com- 
 mon in the legal literature of the seventeenth 
 centm-y. The .im'ists of that period very com- 
 monly assert that the power of testation It- 
 self is of natural law, that it is a right con- 
 ferred by the law of nature. Their teaching, 
 though all persons may not at once see the 
 connexion, is in substance followed by those 
 who affirm that the right of dictating or 
 controlUng the posthumous disposal of prop- 
 erty is a necessary or natiural consequence 
 ■of the proprietary rights themselves. And 
 every student of technical jurisprudence must 
 have come across the same view, clothed 
 in the language of a rather different school, 
 which, in its rationale of this department 
 of law, treats succession ex testamento as 
 the mode of devolution which the property 
 of deceased persons ought primarily to fol- 
 low, and then proceeds to account for suc- 
 cession ab intestato as the Incidental provi- 
 sion of the lawgiver for the discharge of a 
 function which was only left unperformed 
 through the neglect or misfortune of the de- 
 ceased proprietor. These opinions are only 
 expanded forms of the more compendious 
 14 
 
 doctrine that testamentary disposition is an 
 institution of the law of nature. It is cer- 
 tainly never quite safe to pronounce dog- 
 matically as to the range of association em- 
 braced by modem minds', when they reflect 
 on nature and her law; but I believe that 
 most persons, who affirm that the testamen- 
 tary power is of natural law, may be taken 
 to imply either that, as a matter of fact, 
 it is universal, or that nations are prompted 
 to sanction it by an original instinct and im- 
 pulse. With respect to the first of these po- 
 sitions, I think that, when explicitly set 
 forth, it can never be seriously contended 
 for in an age which has seen the severe re- 
 straints imposed on the testamentary power 
 by the Code Napoleon, and has witnessed 
 the steady multiplication of systems for 
 which the French codes have served as a 
 model. To the second assertion we must ob- 
 ject that it is contrary to the best-ascertain- 
 ed facts in the early history of law, and I 
 venture to aflirm generally that, in all in- 
 digenous societies, a condition of jurispni- 
 dence in which testamentary privileges are 
 not allowed, or rather not contemplated, has 
 preceded that later stage of legal develop- 
 ment in which the mere wiU of the proprie- 
 tor is permitted under more or less of re- 
 striction to override the claims of his kindred 
 in blood. 
 
 Maine, Anc. Law, c. 6, p. 172.— The concep- 
 tion of a will or testament cannot be con- 
 sidered by itself. It is a member, and not 
 the first, of a series of conceptions. In it- 
 self a will is simply the instrument by which 
 the Intention of the testator is declared. It 
 must be clear, I think, that before such an 
 instrument takes its turn for discussion, 
 there are several preliminary points to be ex- 
 amined—as for example, what is it, what 
 sort of right or interest, which passes from 
 a dead man on his decease? to whom and 
 in what form does it pass? and how came it 
 that the dead were allowed to control the 
 posthumous disposition of their property? 
 Thrown into technical language, the depend- 
 ence of the various conceptions which con- 
 tribute to the notion of a wUl is thus ex- 
 pressed. A win or testament is an instrument 
 by which the devolution of an inheritance 
 Is prescribed. Inheritance is a form of uni- 
 versal succession. A universal succession 
 is a succession to a universitas juris, or uni- 
 versity of rights and duties. Inverting this 
 order we have therefore to inquire what is 
 a universitas jm-is; what is a universal suc- 
 cession; what is the form of universal suc- 
 cession which is called an inheritance? And 
 there are also two further questions, inde- 
 pendent to some extent of the points I have 
 mooted, but demanding solution before the 
 subject of wills can be exhausted. These 
 are, how came an inheritance to be controlled 
 in any case by the testator's volition, and 
 what is the nature of the instrument by 
 which it came to be controlled? 
 
 Maine, Anc. Law, c. 6, p. 173.— The first 
 
■Ch. 3) 
 
 WILLS. 
 
 25 
 
 question relates to the universitas juris; 
 ttiat is, a university (or bundle) of rights and 
 duties. A universitas juris is a collection of 
 rights and duties united by the single cir- 
 cumstance of their having belonged at one 
 time to some one person. It is, as it were, 
 the legal clothing of some given individual. 
 It is not formed by grouping together any 
 rights and any duties. It can only be con- 
 stituted by taking all the rights and all the 
 duties of a particular person. The tie which 
 connects a number of rights of property, 
 rights of way, rights to legacies, duties of 
 specific performance, debts, obligations 1o 
 compensate wrongs— which so connects all 
 these legal privileges and duties together as 
 to constitute them a universitas juris, is the 
 fact of their having attached to some indi- 
 vidual capable of exercising them. Without 
 this fact' there is no university of rights and 
 duties. The expression "universitas juris" 
 is not classical, but for the notion jurispru- 
 dence is exclusively indebted to Roman law; 
 nor is it at all difficult to seize. We must 
 endeavom: to collect under one conception the 
 whole set of legal relations in which each 
 one of us stands to the rest of the world. 
 These, whatever be their character and com- 
 position, make up together a universitas 
 juris; and there is but little danger of mis- 
 take in forming the notion, if we are only 
 careful to remember that duties enter into 
 it quite as much as rights. Om- duties may 
 overbalance our rights. A man may owe 
 more than he is worth, and therefore if a 
 money value is set on his collective legal 
 relations he may be what is called insolvent. 
 But for all that, the entire group of rights 
 and duties which centres in him is not the 
 less a "juris universitas." 
 
 Maine, Anc. Law, c. 6, p. 174.— We come 
 next to a "universal succession." A uni- 
 versal succession is a succession to a uni- 
 versitas juris. It occurs when one man is 
 invested with the legal clothing of another, 
 becoming at the same moment subject to 
 all his liabilities and entitled to all his rights. 
 In order that the universal succession may 
 be true and perfect, the devolution must 
 take place "uno ictu," as the jurists phrase it. 
 It is of course possible to conceive one man 
 acquiring the whole of the rights and duties 
 of another at different periods, as for ex- 
 ample by successive purchases; or he might 
 acquire them in different capacities, part as 
 heir, part as purchaser, part as legatee. But 
 though the group of rights and duties thus 
 made up should in fact amount to the whole 
 legal personality of a particular individual, 
 the acquisition would not be a universal 
 succession. In order that there may be a 
 true universal succession, the transmission 
 must be such as to pass the whole aggre- 
 gate of rights and duties at the same mo- 
 ment and in virtue of the same legal capa- 
 city in the recipient. The notion of a uni- 
 versal succession, like that of a juris uni- 
 versitas, is permanent in jm-isprudence, 
 
 though in the English legal system it is ob- 
 scured by the great variety of capacities in 
 which rights are acquired, and, above all, 
 by the distinction between the two great 
 provinces of English property, "realty" and 
 "personalty." The succession of an assignee 
 in bankruptcy to the entire property of the 
 bankrupt is, however, a universal succes- 
 sion, though as the assignee only pays debts 
 to the extent of the assets this is only a 
 modified form of the primary notion. Were 
 it common among us for persons to take as- 
 signments of all a man's property on con- 
 dition of paying all his debts, such transfers 
 would exactly resemble the. universal suc- 
 cessions known to the oldest Roman law. 
 When a Roman citizen adrogated a son, i. e. 
 took a man, not already under patria potes- 
 tas, as his adopted child, he succeeded uni- 
 versally to the adoptive child's estate, 1. e. 
 he took all the property and became liable 
 for all the obligations. Several other forms 
 of universal succession appear in the primi- 
 tive Roman law, but infinitely the most im- 
 portant and the most diu-able of all was that 
 one with which we are more immediately 
 concerned, haereditas or inheritance. Inher- 
 itance was a imiversal succession occurring 
 at a death. The universal successor was 
 haeres or heir. He stepped at once into all 
 the rights and all the duties of the dead 
 man. He was instantly clothed with his en- 
 tire legal person, and I need scarcely add 
 that the special character of the haeres re- 
 mained the same, whether he was named 
 by a will or whether he took on an intes- 
 tacy. The term haeres is no more emphati- 
 cally used of the intestate than of the tes- 
 tamentary heir, for the manner in which a 
 man became haeres had nothing to do with 
 the legal character he sustained. The dead 
 man's universal successor, however he be- 
 came so, whether by wiU or by intestacy, 
 was his heir. But the heir was not neces- 
 sarily a single person. A group of persons, 
 considered in law as a single unit, might 
 succeed as co-heirs to the inheritance. 
 
 Maine, Anc. Law, c. 6, p. 176.— Let me 
 now quote the usual Roman definition of an 
 inheritance. The reader will be in a posi- 
 tion to appreciate the full force of the sepa- 
 rate terms. "Haereditas est successio in uni- 
 versum jus quod defunctus habuit" (an in- 
 heritance is a succession to the entire legal 
 position of a deceased man). The notion 
 was that, though the physical person of the 
 deceased had perished, his legal personality 
 survived and descended unimpaired on his 
 heir or co-heirs, in whom his identity (so far 
 as the law was concerned) was continued. 
 Our own law, in constituting the executor 
 or administrator the representative of the 
 deceased to the extent of his personal assets, 
 may serve as an illustration of the theory 
 from which it emanated; but, although it 
 illustrates, it does not explain it. The view 
 of even the later Roman law required a 
 closeness of correspondence between the 
 
 15 
 
§ 25 
 
 WILI.S. 
 
 (Ch. S 
 
 position of the cleceased and of his heir 
 which is no feature of an English represen- 
 tation; and in the primitive Jui-isprudence 
 everything turned on the continuity , of suc- 
 cession. Unless provision was made in the 
 will for the Instant devolution of the testa- 
 tor's rights and duties on the heir or co- 
 heirs, the testament lost all its efEect. 
 
 Maine, Anc. Law, c. 6, p. 177.— In modern 
 testamentary jurisprudence, as in the later 
 Roman law, the object of first importance 
 Is the execution of the testator's Intentions. 
 In the ancient law of Rome the subject of 
 corresponding carefulness was the bestowal 
 of the universal succession. One of these 
 rules seems to our eyes a principle dictated 
 by common sense, while the other looks 
 very much like an idle crotchet. Yet that 
 without the second of them the first would 
 never have come into being is as certain 
 as any proposition of the kind can be. 
 
 In order to solve this apparent paradox, 
 and to bring into greater clearness the train 
 of ideas which I have been endeavouring to 
 Indicate, I must borrow the results of the in- 
 quiry which was attempted in the earlier 
 portion of the preceding chapter. We saw 
 one peculiarity invariably distinguishing the 
 infancy of society. Men are regarded and 
 treated, not as individuals, but always as 
 members of a particular group. Everybody 
 is first a citizen, and then, as a citizen, he is 
 a member of his order — of an aristocracy or 
 a democracy, of an order of patricians or 
 plebeians; or in those societies which an un- 
 happy fate has afflicted with a special per- 
 version in their course of development, of a 
 caste. Next, he is a member of a gens, 
 house, or clan; and lastly, he is a member 
 of his family. This last was the narrowest 
 and most personal relation in which 'he 
 stood; nor, paradoxical as It may seem, was 
 he ever regarded as himself, as a distinct 
 individual. His individuality was swal- 
 lowed up in his family. I repeat the defini- 
 tion of a primitive society given before. It 
 has for its units, not individuals, but groups 
 of men united by the reality or the fiction of 
 blood-relationship. 
 
 Maine, Anc. Law, c. 6, p. 178.— It is in the 
 peculiarities of an undeveloped society that 
 we seize the first trace of a universal suc- 
 cession. Contrasted with the organisation 
 of a modern state, the commonwealths of 
 primitive times may be fairly described as 
 consisting of a number of little despotic 
 governments, each perfectly distinct from 
 the rest, each absolutely controlled by the 
 prerogative of a single monarch. But 
 though the patriarch, for we must not yet 
 call him the pater-familias, had rights thus 
 extensive, it is impossible to doubt that he 
 lay under an equal amplitude of obligations. 
 If he governed the family, it was for its be- 
 hoof. If he was lord of its possessions, he 
 held them as trustee for his children and 
 kindred. He had no privilege or position 
 distinct from that conferred on him by his 
 16 
 
 relation to the petty commonwealth which 
 he governed. The family, in fact, was a cor- 
 poration ; and he was its representative or, we 
 might almost say, its public officer. He en- 
 joyed rights and stood under duties, but the 
 rights and duties were, in the contemplation 
 of his fellow-citizens and in the eye of the 
 law, quite as much those of the collective 
 body as his own. Let us consider for a mo- 
 ment, the effect which would be produced 
 by the death of such a representative. In 
 the eye of the law, in the view of the civil 
 magistrate, the demise of the domestic au- 
 thority would be a perfectly immaterial 
 event. The person representing the col- 
 lective body of the family and primarily re- 
 sponsible to municipal jTurisdiction would 
 bear a different name; and that would be 
 aU. The rights and obligations which at- 
 tached to the deceased head of the house 
 would attach, without breach of continuity, 
 to his successor; for, in point of fact, they 
 would be the rights and obligations of the 
 family, and the family had the distinctive 
 characteristic of a corporation— that it never 
 died. Creditors would have the same rem- 
 edies against the new chieftain as against 
 the old, for the liability being that of the 
 still existing family would be absolutely un- 
 changed. AU rights available to the family 
 would be as available after the demise of 
 the headship as before it— except that the 
 corporation would be obliged— if indeed lan- 
 guage so precise and technical can be prop- 
 erly used of these early times— would be 
 obliged to sue under slightly modified name. 
 Maine, Anc. Law, c. 6, p. 179.— The history 
 of jm-isprudence must be followed in its 
 whole course, if we are to understand how 
 gi-adually and tardily society dissolved itself 
 into the component atoms of which it is 
 now constituted— by what insensible grada- 
 tions the relation of man to man substituted 
 itself for the relation of the individual to 
 his family and of families to each other. 
 The point now to be attended to is that 
 even when the revolution had apparently 
 quite accomplished itself, even when the 
 magistrate had in great measure assumed the 
 place of the pater-familias, and the civil 
 tribunal substituted Itself for the domestic 
 forum, nevertheless the whole scheme of 
 rights and duties administered by the judi- 
 cial authorities remained shaped by the in- 
 fluence of the obsolete privileges and col- 
 oured In every part by their reflection. There 
 seems little question that the devolution of 
 the universitas juris, so strenuously insisted 
 upon by the Roman law as the flrst condi- 
 tion of a testamentary or intestate succes- 
 sion, was a feature of the older form of 
 society which men's minds had been unable 
 to dissociate from the new, though with that 
 newer phase it had no true or proper con- 
 nection. It seems, in truth, that the pro- 
 longation of a man's legal existence in his 
 heir, or in a group of co-heirs, is neither 
 more nor less than a characteristic of the 
 
Cli. 3) 
 
 WILLS. 
 
 §25 
 
 family transferred by a fiction to the indi- 
 vidual. Succession in corporations is neces- 
 sarily universal, and the family was a cor- 
 poration. Corporations never die. The de- 
 cease of individual members makes no dif- 
 ference to the collective existence of the ag- 
 gregate body, and does not in any way affect 
 its legal incidents, its faculties or liabilities. 
 Now in the idea of a Roman universal suc- 
 cession aU these qualities of a corporation 
 seem to have been transferred to the indi- 
 vidual citizen. His physical death is al- 
 lowed to exercise no effect on the legal posi- 
 tion which he filled, apparently on the prin- 
 ciple that that position is to be adjusted as 
 closely as possible to the analogies of a fam- 
 ily, which in its corporate character was not 
 of course liable to physical extinction. 
 
 Maine, Anc. Law, c. 6, p. 181.— I observe 
 that not a few continental jurists have much 
 difficulty in comprehending the nature of the 
 connection between the conceptions blended 
 in a universal succession, and there is per- 
 haps no topic in the philosophy of jm-ispru- 
 dence on which their speculations, as a gen- 
 eral rule, possess so little value. But the 
 student of English law ought to be in no 
 danger of stumbling at the analysis of the 
 idea which we are examining. Much light is 
 cast upon it by a fiction in our own system 
 with which all lawyers are familiar. Eng- 
 lish lawyers classify corporations as cor- 
 porations aggregate and corporations sole. 
 A corporation aggregate is a true corpora- 
 tion, but a corporation sole is an individual, 
 being a member of a series of individuals, 
 who is invested by a fiction with the quali- 
 ties of a corporation. I need hardly cite 
 the king or the parson of a parish as in- 
 stances of corporations sole. The capacity 
 or ofBce is here considered apart from the 
 particular person who from time to time 
 may occupy it, and, this capacity being per- 
 petual, the series of individuals who fill it 
 are clothed with the leading atti-ibute of 
 corporations— perpetuity. Now in the older 
 theory of Roman law the individual bore to 
 the family precisely the same relation which 
 in the rationale of English jurisprudence a 
 corporation sole bears to a corporation ag- 
 gregate. The derivation and association of 
 ideas are exactly the same. In fact, if we 
 say to oui-selves that for purposes of Ro- 
 man testamentary jurisprudence each indi- 
 vidual citizen was a corporation sole, we 
 shall not only realize the full conception of 
 an inheritance, but have constantly at com- 
 mand the clue to the assumption in which 
 it originated. It is an axiom with us that 
 the king never dies, being a corporation sole. 
 His capacities are instantly filled by his suc- 
 cessor, and the continuity of dominion is not 
 deemed to have been interrupted. With the 
 Romans it seemed an equally simple and 
 natural process, to eliminate the fact of 
 death from the devolution of rights and ob- 
 ligations. The testator lived on in his heir 
 or in the group of his co-heirs. He was in 
 
 law the same person with them, and If any 
 one in his testamentary dispositions had 
 even constructively violated the principle 
 which iinited his actual and his posthumous- 
 existence, the law rejected the defective in- 
 strument, and gave the inheritance to the 
 kindred in blood, whose capacity to fulfil 
 the conditions of heirship was conferred on. 
 them by the law itself, and not by any docu- 
 ment which by possibility might be errone- 
 ously framed. 
 
 Maine, Anc. Law, c. 6, p. 182.— When a 
 Roman citizen died intestate or leaving no- 
 valid will, his descendants or kindred be- 
 came his heirs according to a scale which 
 will be presently described. The person or 
 class of persons who succeeded did not 
 simply represent the deceased, but, in con- 
 formity with the theory just delineated, they 
 continued his civil life, his legal existence. 
 The same results followed when the order 
 of succession was determined by a will, but 
 the theory of the identity between the dead 
 man and his heirs was certainly much older 
 than any form of testament or phase of tes-* 
 tamentary jurisprudence. This indeed is 
 the proper moment for suggesting a doubt 
 which win press on us with greater force 
 the further we plumb the depths of this sub- 
 ject — whether wills would ever have come 
 into being at all if it had not been for these 
 remarkable ideas connected with universal 
 succession. Testamentary law is the appli- 
 cation of a principle which may be explained 
 on a variety of philosophical hypotheses as 
 plausible as they are gratuitous; it is in- 
 terwoven with every part of modern so- 
 ciety, and it is defensible on the broadest 
 grounds of general expediency. But the 
 warning can never be too often repeated, 
 that the grand soiu-ce of mistake in ques- 
 tions of jtirisprudence is the impression that 
 those reasons which actuate us at the pres- 
 ent moment, in the maintenance of an ex- 
 isting institution, have necessarily anything 
 in common with the sentiment in which the 
 institution originated. It is certain that, in 
 the old Roman law of inheritance, the no- 
 tion of a will or testament is inextricably 
 mixed up, I might almost say confounded, 
 with the theory of a man's posthumous ex- 
 istence in the person of his heir. 
 
 Maine, Anc. Law, c. 6, p. 184.— The con- 
 ception of a universal succession, firmly as 
 It has taken root in jurisprudence, has not 
 occurred "spontaneously to the framers of 
 every body of laws. Wherever it is now 
 found, it may be shown to have descended 
 from Roman law; and with it have come 
 down a host of legal rules on the subject of 
 testaments and testamentary gifts, which 
 modern practitioners apply without discern- 
 ing their relation to the parent theory. But, 
 in the pm-e Roman jurisprudence, the prin- 
 ciple that a man lives on in his heir— the 
 eUmination, if we may so speak, of the fact 
 of death — is too obviously for mistake the 
 centre round which the whole law of testa- 
 
 17 
 
§ 25 
 
 WILLS. 
 
 (th. 3 
 
 mentary and intestate Succession is circling. 
 The unflinching sternness of the Roman law 
 in enforcing compliance with the gOTerning 
 theory would in itself suggest that the the- 
 ory grew out of something in the primitive 
 constitution of Roman society; but we may 
 Ijush the proof a good way beyond the pre- 
 sumption. It happens that several tech- 
 nical expressions, dating from the earliest 
 institutions of wills at Rome, have been ac- 
 cidentally preserved to us. We have in 
 Gains the formula of investiture by which 
 the universal successor was created. We 
 have the ancient name by which the person 
 •afterwards called heir was at first designat- 
 ed. We have further the text of the cele- 
 brated clause in the Twelve Tables by which 
 the testamentary power was expressly rec- 
 ognised, and the clauses regulating intes- 
 tate succession have also been preserved. 
 All these archaic phrases have one salient 
 peculiarity. They Indicate that what pass- 
 ed from the testator to the heir was the fam- 
 ily, that is the aggregate of rights and du- 
 ties contained in the patria potestas and 
 growing out of it. The material property is 
 in three instances not mentioned at all; in 
 two others, it is visibly named as an adjunct 
 or appendage of the family. The original 
 will or testament was therefore an instru- 
 ment, or (for it was probably not at first in 
 writing) a proceeding by which the devolu- 
 tion of the family was regulated. It was a 
 mode of declaring who was to have the 
 chieftainship, in succession to the testator. 
 When wills are understood to have this for 
 their original object, we see at once how it 
 is that they came to be connected with one 
 of the most curious relics of ancient religion 
 and law, the sacra, or family rites. These 
 sacra were the Roman form of an institu- 
 tion which shows itself wherever society 
 has not wholly shaken Itself free from its 
 primitive clothing. They are the sacrifices 
 and ceremonies by which the brotherhood of 
 the family is commemorated, the pledge and 
 the witness of its perpetuity. Whatever 
 be their nature,— whether it be true or not 
 that in all cases they are the worship of 
 some mythical ancestor,— they are every- 
 where employed to attest the sacredness of 
 the family relation; and therefore they ac- 
 quire prominent significance and importance, 
 whenever the continuous existence of the 
 family is endangered by a change in the 
 person of its chief. Accordingly, we hear 
 most about them in connection with de- 
 mises of domestic sovereignty. Among the 
 Hindoos, the right to inherit a dead man's 
 property is exactly co-extensive with the 
 duty of performing his obseqmes. If the 
 rites are not properly performed or not per- 
 formed by the proper person, no relation 
 is considered as established between the de- 
 ceased and anybody surviving him; the 
 law of succession does not apply, and no- 
 body can inherit the property. EJvery great 
 event in the life of a Hindoo seems to be 
 18 
 
 regarded as leading up to and bearing upon 
 these solemnities. If he marries, it is to 
 have children who may celebrate them after 
 his death; if he has no children, he lies un- 
 der the strongest obligation to adopt them 
 from another family, "with a view," writes 
 the Hindoo doctor, "to the funeral cake, the 
 water, and the solemn sacrifice." The 
 sphere preserved to the Roman sacra in the 
 time of Cicero, was not less in extent. It 
 embraced inheritances and adoptions. No 
 adoption was allowed to take place with- 
 out due provision for the sacra of the fam- 
 ily from which the adoptive son was trans- 
 ferred, and no testament was allowed to 
 distribute an inheritance without' a strict 
 apportionment of the expenses of these cere- 
 monies among the different co-heirs. The 
 differences between the Roman law at this 
 epoch, when we obtain our last glimpse of 
 the sacra, and the existing Hindoo system, 
 are most instructive. Among the Hindoos, 
 the religious element in law has acquired a 
 complete predominance. Family sacrifices 
 have become the keystone of all the law of 
 persons and much of the law of things. 
 They have even received a monstrous exten- 
 sion, for it is a plausible opinion that the 
 self-immolation of the widow at her hus- 
 band's funeral, a practice continued to his- 
 torical times by the Hindoos, and commem- 
 orated in the traditions of several Indo-Eu- 
 ropean races, was an addition grafted on 
 the primitive sacra under the infiuence of 
 the impression, which always accompanies 
 the idea of sacrifice, that human blood is the 
 most precious of all oblations. With the 
 Romans, on the contrary, the legal obligation 
 and the religious duty have ceased to be 
 blended. The necessity of solemnising the 
 sacra forms no part of the theory of civil 
 law, but they are under the separate juris- 
 diction of the college of pontiffs. The let- 
 ters of Cicero to Atticus, which are full of 
 allusions to them, leave no doubt that they 
 constituted an intolerable burden on inher- 
 itances; but the point of development at 
 which law breaks away from religion has 
 been passed, and we are prepared for their 
 entire disappearance from the later juris- 
 prudence. 
 
 Maine, Anc. Law, c. 6, p. 187.— In Hindoo 
 law there is no such thing as a true will. 
 The place filled by wills is occupied by adop- 
 tions. We can now see the relation of the 
 testamentary power to the faculty of adop- 
 tion, and the reason why the exercise of ei- 
 ther of them could call up a peculiar solici- 
 tude' for the performance of the sacra. Both 
 a will and an adoption threaten a distortion 
 of the ordinary course of family descent, but 
 they are obviously contrivances for prevent- 
 ing the descent being wholly interrupted 
 when there is no succession of kindred to 
 carry it on. Of the two expedients adop- 
 tion, the factitious creation of blood-relation- 
 ship, is the only one which has suggested It- 
 seK to the greater part of archaic societies. 
 
Ch. 3) 
 
 WILLS. 
 
 § 25 
 
 The Hindoos have indeed advanced one point 
 ■on what vcas doubtless the antique practice, 
 hy allowing the widow to adopt when the 
 father has neglected to do so, and there are 
 in the local customs of Bengal some faint 
 traces of the testamentary powers. But to 
 the Romans belongs pre-eminently the cred- 
 it of Inventing the will, the Institution which, 
 next to the contract, has exercised the great- 
 est influence in transforming human society. 
 We must be careful not to attribute to it in 
 its earUest shape the functions which have 
 attended it in more recent times. It was at 
 first not a mode of distributing a dead man's 
 goods, but one among several ways of trans- 
 ferring the representation of the household 
 to a new chief. The goods descend no doubt 
 to the heir, but that is only because the gov- 
 •ernment of the family carries with it in its 
 devolution the power of disposing of the 
 •common stock. We are very far as yet from 
 that stage in the history of wills, in which 
 they become powerful instruments in modi- 
 fying society through the stimulus they give 
 to the circulation of property and the plas- 
 ticity they produce in proprietary rights. No 
 such consequences as these appear in fact to 
 have been associated with the testamentary 
 power even by the latest Roman lawyers. 
 It wiU be found that wills were never looked 
 "upon in the Roman community as a contriv- 
 ance for parting property and the family, 
 or for creating a variety of miscellaneous in- 
 terests, but rather as a means of making a 
 "better provision for the members of a house- 
 hold than could be secured through the rules 
 of intestate succession. We may suspect in- 
 deed that the associations of a Roman with 
 the practice of will-making were extremely 
 different from those familiar to us nowa- 
 idays. The habit of regarding adoption and 
 testation as modes of continuing the family 
 cannot but have had something to do with 
 the singular laxity of Roman notions as to 
 the tnheritance of sovereignty. It is im- 
 possible not to see that the succession of the 
 early Roman emperors to each other was con- 
 sidered reasonably regular, and that, in spite 
 of all that had occurred, no absurdity at- 
 tached to the pretension of such princes as 
 Theodosius or Justinian to style themselves 
 Caesar and Augustus. 
 
 Maine, Anc. Law, c. 6, p. 189.— When the 
 phenomena of primitive societies emerge into 
 light, it seems impossible to dispute a propo- 
 sition which the jurists of the seventeenth 
 century considered doubtful, that intestate 
 inheritance is a more ancient institution than 
 testamentary succession. As soon as this Is 
 settled, a question of much interest suggests 
 itself, how and under what conditions were 
 the directions of a will first allowed to regu- 
 late the devolution of authority over the 
 household, and consequently the posthumous 
 distribution of property. The difficulty of 
 deciding the point arises from the rarity of 
 testamentary power in archaic communities. 
 It is doubtful whether a true power of testa- 
 
 tion was known to any original society ex- 
 cept the Roman. Rudimentary forms of it 
 occur here and there, but most of thom are 
 not exempt from the suspicion of a Roman 
 origin. The Athenian will was, no doubt, 
 indigenous, but then, as will appear pres- 
 ently, it was only an inchoate testament. As 
 to the wills which are sanctioned by the 
 bodies of law which have descended to us as 
 the codes of the barbarian conquerors of im- 
 perial Rome, they are almost certainly Ro- 
 man. The most penetrating German criti- 
 cism has recently been dii-ected to these 
 leges barbarorum, the great object of inves- 
 tigation being to detach those portions of 
 each system which formed the customs of the 
 tribe in its original home from the adventi- 
 tious ingredients which were borrowed from 
 the laws of the Romans. In the course of 
 this process, one result has invariably dis- 
 closed itself, that the ancient nucleus of the 
 code contains no trace of a will. Whatever 
 testamentary law exists, has been taken from 
 Roman jurisprudence. Similarly, the rudi- 
 mentary testament which (as 1 am informed) 
 the rabbinical Jewish law provides for, has 
 been attributed to contact with the Romans. 
 The only form of testament, not belonging to 
 a Roman or Hellenic society, which can rea- 
 sonably be supposed indigenous, is that rec- 
 ognised by the usages of the province of 
 Bengal; and the testament of Bengal is only 
 a rudimentary wUl. 
 
 Maine, Anc. Law, c. 6, p. 191. — The evi- 
 dence, however, such as it is, seems to point 
 to the conclusion that testaments are at first 
 only allowed to take effect on failure of the 
 persons entitled to have the inheritance by 
 right of blood genuine or fictitious. Thus, 
 when Athenian citizens were empowered for 
 the first time by the laws of Solon to execute 
 testaments, they were forbidden to disinherit 
 their direct male descendants. So, too, the 
 will of Bengal is only permitted to govern 
 the succession so far as it is consistent with 
 certain overriding claims of the family. 
 Again, the original institutions of the Jews 
 having provided nowhere for the privileges 
 of testatorship, the later rabbinical juris- 
 prudence, which pretends to supply the ca- 
 sus omissi of the Mosaic law, allows the 
 power of testation to attach when all the 
 kindred entitled under the Mosaic system to 
 succeed have failed or are undiscoverable. 
 The limitations by which the ancient Ger- 
 man codes hedge in the testamentary juris- 
 prudence which has been incorporated with 
 them are also significant, and point in the 
 same direction. It is the peculiarity of 
 most of these German laws, in the only 
 shape in which we know them, that, besides 
 the allod or domain of each household, they 
 recognise several subordinate kinds or orders 
 of property, each of which probably repre- 
 sents a separate transfusion of Roman prin- 
 ciples into the primitive body of Teutonic 
 usage. The primitive German or allodial 
 property is strictly reserved to the kindred. 
 
 19 
 
§ 25 
 
 WILLS. 
 
 (Ch. 3 
 
 Not only is it incapable of being disposed of 
 by testament, but it is scarcely capable of 
 being alienated by conveyance inter vivos. 
 The ancient German law, like the Hindoo 
 jm-isprudence, malies the male children co- 
 proprietors with their father, and the en- 
 dowment of the family cannot be parted 
 with except by the consent of all its mem- 
 bers. But the other sorts of property, of 
 more modem origin and lower dignity than 
 the allodial possessions, are much more 
 easily alienated than they, and follow much 
 more lenient rules of devolution. Women 
 and the descendants of women succeed to 
 them, obviously on the principle that they 
 lie outside the sacred precinct of the Ag- 
 natic brotherhood. Now, it Is on these last 
 descriptions of property, and on these only, 
 that the testaments borrowed from Rome 
 were at first allowed to operate. 
 
 Maine, Anc. Law, c. 6, p. 192.— These few 
 indications may serve to lend additional 
 plausibility to that which In Itself appears to 
 be the most probable explanation of an as- 
 certained fact in the early history of Roman 
 wills. We have it stated on abundant au- 
 thority that testaments during the primitive 
 period of the Roman state, were executed 
 in the comitia calata, that is. In the comitia 
 curiata, or parliament of the patrician 
 burghers of Rome, when assembled for pri- 
 vate business. This mode of execution has 
 been the source of the assertion, handed 
 down by one generation of civilians to an- 
 other, that every will at one era of Ro- 
 man history was a solemn legislative en- 
 actment. But there is no necessity what- 
 ever for resorting to an explanation which 
 has the defect of attributing far too much 
 precision to the proceedings of the ancient 
 assembly. The proper key to the story con- 
 cerning the execution of wills in the comitia 
 calata must no doubt be sought in the oldest 
 Roman law of intestate succession. The 
 canons of primitive Roman jurisprudence 
 regulating the inheritance of relations from 
 each other were, so long as they remained 
 unmodified by the edictal law of the praetor, 
 to the following effect:— First, the sui or di- 
 rect descendants who had never been eman- 
 cipated succeeded. On the failure of the 
 sui, the nearest agnate came into their place, 
 that is, the nearest person or class of the 
 kindred who was or might have been under 
 the same patria potestas with the deceased. 
 The third and last degree came next, in 
 which the inheritance devolved on the gen- 
 tiles, that is, on the collective members of 
 the dead man's gens or house. The house, I 
 have explained already, was a fictitious ex- 
 tension of the family, consisting of all Ro- 
 man patrician citizens who bore the same 
 name, and who on the ground of bearing the 
 same name, were supposed to be descended 
 from a common ancestor. Now the patrician 
 assembly called the "comitia curiata" was 
 a legislature in which gentes or houses were- 
 exclusively represented. It was a represen- 
 20 
 
 tative assembly of the Roman people, con- 
 stituted on the assumption that the con- 
 stituent unit of the state was the gens. This 
 being so, the inference seems inevitable, that 
 the cognisance of wills by the comitia was 
 connected with the rights of the gentiles, 
 and was intended to secure them in their 
 privilege of ultimate inheritance. The whole 
 apparent anomaly is removed, if we suppose 
 that a testament could only be made when 
 the testator had no gentiles discoverable, or 
 when they waived their claims, and that 
 every testament was submitted to the gen- 
 eral assembly of the Roman gentes, in order 
 that those aggrieved by its dispositions 
 might put their veto upon it if they pleased, 
 or by allowing it to pass might be presumed 
 to have renounced their reversion. It is 
 possible that on the eve of the publication of 
 the Twelve Tables this vetoing power may 
 have been greatly curtailed or only occa- 
 sionally and capriciously exercised. It is 
 much easier, however, to indicate the mean- 
 ing and origin of the jurisdiction confided to 
 the comitia calata, than to trace its gradual 
 development or progressive decay. 
 
 Maine, Anc. Law, c. 6, p. 194.— The testa- 
 ment to which the pedigree of all modern 
 wills may be traced is not, however, the tes- 
 tament executed in the calata comitia, but 
 another testament designed to compete with 
 it and destined to supersede it. The his- 
 torical importance of this early Roman will, 
 and the light it casts on much of ancient 
 thought, will excuse me for describing it at 
 some length. 
 
 Maine, Anc. Law, c. 6, p. 195. — When the 
 testamentary power first discloses itself to 
 us in legal history, there are signs that, 
 like almost all the great Roman Institutions, 
 it was the subject of contention between the 
 patricians and the plebeians. The effect of 
 the political maxim, "Plebs gentem non ha- 
 bet,"— a plebeian cannot be a member of a 
 house, — was entirely to exclude the plebeians 
 from the comitia curiata. Some critics have 
 accordingly supposed that a plebeian could 
 not have his will read or recited to the 
 patrician assembly, and was thus deprived of 
 testamentary privileges altogether. Others 
 have been satisfied to point out the hard- 
 ships of having to submit a proposed will to 
 the unfriendly jurisdiction of an assembly 
 in which the testator was not represented. 
 Whatever be the true view, a form of tes- 
 tament came into use, which has all the 
 characteristics of a contrivance intended to 
 evade some distasteful obligation. The will 
 in question was a conveyance inter vivos, a 
 complete and irrevocable alienation of the 
 testator's family and substance to the per- 
 son whom he meant to be his heir. The 
 strict rules of Roman law must always have 
 permitted such an alienation, but when the 
 transaction was intended to have a posthu- 
 mous effect, there may have been disputes 
 whether it was valid for testamentary pur- 
 poses without the formal assent of the pa- 
 
Ch. 3) 
 
 WILLS. 
 
 § 25 
 
 trician parliament. If a difference of opin- 
 ion existed on the point between the two 
 classes of the Roman population, it was ex- 
 tinguished, with many other sources of heart- 
 burning, by the great decemviral compromise. 
 The text of the Twelve Tables is still extant 
 which says, "Pater familias uti de pecunia 
 tutelare rei suae legassit, Ita jus esto"— a 
 law which can hardly have had any other 
 object than the legalisation of the plebeian 
 will. 
 
 Maine, Anc. Law, c. 6, p. 196.— It is well 
 known to scholars that, centuries after the 
 patrician assembly had ceased to be the leg- 
 islature of the Roman state, it still contin- 
 ued to hold formal sittings for the conveni- 
 ence of private business. Consequently, at 
 a period long subsequent to the publication of 
 the decemviral law, there is reason to be- 
 lieve that the comitia calata still assembled 
 for the validation of testaments. Its proba- 
 ble functions may be best indicated by say- 
 ing that it was a court of registration, with 
 the understanding, however, that the wills 
 exhibited were not enrolled, but simply re- 
 cited to the members, who were supposed to 
 take note of their tenor and to commit them 
 to memory. It is very likely that this form 
 of testament was never reduced to writing 
 at all, but at all events if the will had been 
 originally written, the office of the comitia 
 was certainly confined to hearing it read 
 aloud, the document being retained after- 
 wards in the custody of the testator, or de- 
 posited under the safeguard of some religious 
 corporation. This publicity may have been 
 one of the incidents of the testament ex- 
 ecuted in the comitia calata which brought 
 it into popular disfavour. In the early years 
 of the empire the comitia still held its meet- 
 ings, but they seem to have lapsed into the 
 merest form, and few wills, or none, were 
 probably presented at the periodical sitting. 
 
 Maine, Anc. Law, c. 6, p. 197.— It is the 
 ancient plebeian will— the alternative of the 
 testament just described — which in its remote 
 €£Eects has deeply modified the civilisation 
 of the modern world. It acquired at Rome 
 all the popularity which the testament sub- 
 mitted to the calata comitia appears to have 
 lost. The key to all its characteristics lies 
 in its descent from the mancipium, or an- 
 cient Roman conveyance, a proceeding to 
 which we may unhesitatingly assign the par- 
 entage of two great institutions without 
 which modern society can scarcely be sup- 
 posed capable of holding together, the con- 
 tract and the wiU. The mancipium, or, as 
 the word would exhibit itself in later Latini- 
 ty, the mancipation, carries us back by its 
 incidents to the infancy of civil society. As 
 it sprang from times long anterior, if not to 
 the invention, at aU events to the popularisa- 
 tion, of the art of writing, gestures, symbolic- 
 al acts, and solemn phrases take the place 
 of documentary forms, and a lengthy and in- 
 tricate ceremonial is intended to call the at- 
 tention of the parties to the importance of 
 
 the transaction, and to Impress It on the 
 memory of the witnesses. The imperfection, 
 too, of oral, as compared witi. written, tes- 
 timony necessitates the multiplication of the 
 witnesses and assistants beyond what in 
 later times would be reasonable or intelligi- 
 ble limits. 
 
 Maine, Anc. Law, c. 6, p. 198.— The Roman 
 mancipation required the presence first of all 
 the parties, the vendor and vendee, or we 
 should perhaps rather say, if we are to use 
 modern legal language, the gi-antor and 
 grantee. There were also no less than five 
 witnesses; and an anomalous personage, 
 the libripens, who brought with him a pair 
 of scales to weigh the uncoined copper money 
 of ancient Rome. The testament we are con- 
 sidering—the testament per aes et libram, 
 "with the copper and the scales," as it long 
 continued to be technically called — was an 
 ordinary mancipation with no change in the 
 form and hardly any in words. The tes- 
 tator was the grantor; the five witnesses and 
 the libripens were present; and the place of 
 grsintee was taken by a person known techni- 
 cally as the familiae emptor, the purchaser 
 of the family. The ordinary ceremony of a 
 mancipation was then proceeded with. Cer- 
 tain formal gestures were made and sen- 
 tences pronounced. The emptor familiae 
 simulated the payment of a price by striking 
 the scales with a piece of money, and finally 
 the testator ratified what liad been done in a 
 set form of words called the "nuncupatio" 
 or publication of the transaction, a phrase 
 which, I need scarcely remind the lawyer, 
 has had a long history in testamentary juris- 
 prudence. It is necessary to attend partic- 
 ularly to the character of the person called 
 "familiae emptor." There is no doubtthatat 
 first he was the heir himself. The testator 
 conveyed to him outright his whole "familia," 
 that is, all the rights he enjoyed over and 
 through the family; his property, his slaves, 
 and all his ancestral privileges, together, on 
 the other hand, with all his duties and obli- 
 gations. 
 
 Maine, Anc. Law, c. 6, p. 199.— With these 
 data before us, we are able to note several 
 remarkable points in which the mancipatory 
 testament, as it may be called, differed in 
 its primitive form from a modern will. As 
 it amounted to a conveyance out-and-out of 
 the testator's estate, it was not revocable. 
 There could be no new exercise of a power 
 which had been exhausted. 
 
 Again, it was not secret. The familiae 
 emptor, being himself the heir, knew exactly 
 what his rights were, and was aware that 
 he was irreversibly entitled to the inherit- 
 ance; a knowledge which the violences in- 
 separable from the best-ordered ancient so- 
 ciety rendered extremely dangerous. But 
 perhaps the most surprising consequence of 
 this relation of testaments to conveyances 
 was the immediate vesting of the inheritance 
 in the heir. This has seemed so incredible 
 to not a few civilians, that they have spoken 
 
 21 
 
§25 
 
 WILLS. 
 
 (Ch. 3 
 
 of the testator's estate as vesting condition- 
 ally on the testator's death, or as granted to 
 him from a time uncertain, 1. e. the death of 
 the grantor. But down to the latest period 
 of Roman jurispn.idence there were a certain 
 class of transactions which never admitted 
 of being directly modified by a condition, or 
 of being limited to or from a point of time. 
 In technical language they did not admit 
 conditio or dies. Mancipation was one of 
 them, and therefore, sti-ange as it may seem, 
 we are forced to conclude that the primi- 
 tive Roman will took effect at once, even 
 though the testator survived his act of tes- 
 tation. It is indeed likely that Roman citi- 
 zens originally made their wills only in the 
 article of death, and that a provision for the 
 continuance of the family effected by a man 
 in the flower of life would take the form 
 rather of an adoption than of a will. Still 
 we must believe that, if the testator did re- 
 cover, he could only continue to govern his 
 household by the sufferance of his. heir. 
 
 Maine, Anc. Law, c. 6, p. 200.— Two or 
 three remarks should be made before I ex- 
 plain how these inconveniences were reme- 
 died, and how testaments came to be invest- 
 ed with the characteristics now universally 
 associated with them. The testament was 
 not necessarily written: at first, it seems to 
 have been invariably oral, and even in later 
 times, the instrument declaratory of the be- 
 quests was only incidentally connected with 
 the will and formed no essential part of it. 
 It bore in fact exactly the same relation to 
 the testament, which the deed leading the 
 uses bore to the fines and recoveries of old 
 English law, or which the charter of feoff- 
 ment bore to the feoffment itself. Previ- 
 ously, indeed, to the Twelve Tables, no writ- 
 ing would have been of the slightest use, for 
 the testator had no power of giving legacies, 
 and the only persons who could be advan- 
 taged by a will were the heir or co-heirs. But 
 the extreme generality of the clause in the 
 Twelve Tables soon produced the doctrine 
 that the heir must take the inheritance bur- 
 dened by any directions which the testator 
 might give him, or in other words, take it 
 subject to legacies. Written testamentary 
 instruments assumed thereupon a new value, 
 as a security against the fraudulent refusal 
 of the heir to satisfy the legatees; but to the 
 last it was at the testator's pleasure to rely 
 exclusively on the testimony of the witnesses, 
 and to declare by word of mouth the legacies 
 which the familiae emptor was commission- 
 ed to pay. 
 
 Maine, Anc. Law, c. 6, p. 201.— The terms of 
 the expression "emptor familiae" demand 
 notice. "Emptor" indicates that the will 
 was literally a sale, and the word "familiae," 
 when compared with the phraseology in the 
 testamentary clause in the Twelve Tables, 
 leads us to some instructive conclusions. 
 "Familia," in classical Latinity, means al- 
 ways a man's slaves. Here, however, and 
 generally in the language of ancient Roman 
 22 
 
 law, it Includes all persons under his potes- 
 tas, and the testator's material property or 
 substance is understood to pass as an ad- 
 junct or appendage of his household. Turn- 
 ing to the law of the Twelve Tables, it will 
 be seen that it speaks of "tutela rel suae," 
 "the guardianship of his substance," a form of 
 expression which is the exact' reverse of the 
 phrase just examined. There does not there- 
 fore appear to be any mode of escaping from 
 the conclusion, that even at an era so com- 
 paratively recent as that of the decemviral 
 compromise, terms denoting "household" and 
 "property" were blended in the current 
 phraseology. If a man's household had been 
 spoken of as his property we might have 
 explained the expression as pointing to the 
 extent of the patria potestas, but, as the in- 
 terchange is reciprocal, we must allow that 
 the form of speech carries us back to that 
 primeval period in which property is owned 
 by the family, and the family is governed 
 by the citizen, so that the members of the 
 community do not own their property and 
 their family, but rather own their property 
 through their family. 
 
 Maine, Anc. Law, c. 6, p. 202.— At an epoch 
 not easy to settle with precision, the Roman 
 praetors fell into the habit of acting upon 
 testaments solemnized in closer conformity 
 with the spirit than the letter of the law> 
 Casual dispensations became insensibly the 
 established practice till at length a wholly 
 new form of will was matured and regularly 
 engrafted on the edictal jurisprudence. The 
 new or praetorian testament derived the 
 whole of its impregnability from the jus 
 honorarium or equity of Rome. The praetor 
 of some particular year must have inserted 
 a clause in his inaugural proclamation de- 
 claratory of his intention to sustain all testa- 
 ments which should have been executed with 
 such and such solemnities; and, the reform 
 having been found advantageous, the article 
 relating to It must have been again intro- 
 duced by the praetor's successor, and repeat- 
 ed by the next in office, till at length it form- 
 ed a recognised portion of that body of ju- 
 risprudence which from these successive in- 
 corporations was styled the perpetual or con- 
 tinuous edict. On examining the conditions 
 of a valid praetorian will they will be plain- 
 ly seen to have been determined by the re- 
 quirements of the mancipatory testament, 
 the innovating praetor having obviously pre- 
 scribed to himself the retention of the old 
 formalities just so far as they were warrants 
 of genuineness or securities against fraud. 
 At the execution of the mancipatory testa- 
 ment seven persons had been present besides 
 the testator. Seven witnesses were accord- 
 ingly essential to the praetorian will: two of 
 them corresponding to the llbripens and 
 familiae emptor, who were now stripped of 
 their symbolical character, and were merely 
 present for the purpose of supplying their 
 testimony. No emblematic ceremony was 
 gone through; the will was merely recited; 
 
Ch. 3) 
 
 WILLS. 
 
 §25 
 
 but then it is probable (tbougli not absolutely 
 certain) that a written instrument was neces- 
 sary to perpetuate the evidence of the tes- 
 tator's dispositions. At all events, whenever 
 a writing was read or exhibited as a person's 
 last will, we know certainly that the prae- 
 torian coui't would not sustain it by special 
 intervention, unless each of the seven wit- 
 nesses had severally alBxed his seal to the 
 outside. This is the first appearance of seal- 
 ing in the history of jurisprudence, consid- 
 ered as a mode of authentication. The use 
 of seals, however, as mere fastenings, is 
 doubtless of much higher antiquity; and it 
 appears to have been known to the Hebrews. 
 We may observe, that the seals of Roman 
 wills, and other documents of importance, 
 did not only serve as the index of the pres- 
 ence or assent of the signatary, but were 
 also literally fastenings which had to be 
 broken before the writing could be inspected. 
 
 Maine, Anc. Law, c. 6, p. 204.— The edictal 
 law would therefore enforce the dispositions 
 of a testator, when, instead of being sym- 
 bolised through the forms of mancipation, 
 they were simply evidenced by the seals. of 
 seven witnesses. But it may be laid down 
 as a general proposition, that the principal 
 qualities of Roman property were incom- 
 municable except through processes which 
 were supposed to be coeval with the origin 
 of the civil law. The praetor therefore could 
 not confer an inheritance on anybody. He 
 could not place the heir or co-heirs in that 
 very relation in which the testator had him- 
 self stood to his own rights and obligations. 
 All he could do was to confer on the person 
 designated as heir the practical enjoyment of 
 the property bequeathed, and to give the 
 force of legal acquittances to his payments 
 of the testator's debts. When he exerted 
 his powers to these ends, the praetor was 
 technically said to communicate the bonorum 
 possessio. The heir specially inducted under 
 these circumstances or bonorum possessor, 
 had every proprietary privilege of the heir 
 by the civil law. He took the profits and he 
 could alienate, but then, for all his remedies 
 for redress against wrong, he must go, as we 
 should phrase it, not to the common law, 
 but to the equity side of the praetorian court. 
 No great chance of error would be incurred 
 by describing him as having an equitable es- 
 tate in the inheritance; but then, to secure 
 ourselves against being deluded by the anal- 
 ogy, we must always recollect that in one 
 year the bonorum possessio was operated 
 upon by a principle of Roman law known as 
 "usucapion," and the possessor became 
 quiritarian owner of all the property com- 
 prised in the inheritance^ 
 
 Maine, Anc. Law, c. 6, p. 205.— We know 
 too little of the older law of civil process 
 to be able to strike the balance of advan- 
 tage and disadvantage between the different 
 classes of remedies supplied by the praetori- 
 an tribunal. It is certain, however, that, in 
 spite of its many defects, the mancipatory 
 
 testament by which the universitas juris de- 
 volved at once and tmimpaired was never 
 entirely superseded by the new will; and at 
 a period less bigoted to antiquarian forms, 
 and perhaps not quite alive to their sig- 
 nificance, aU the ingenuity of the juriscon- 
 sults seems to have been expended on the 
 improvement of the more venerable instru- 
 ment. At the era of Gaius, which is that of 
 the Antonine Caesars, the great blemishes 
 of the mancipatory will had been removed. 
 Originally, as we have seen, the essential 
 character of the formalities had required 
 that the heir himself should be the purchaser 
 of the family, and the consequence was that 
 he not only instantly acquired a vested in- 
 terest in the testator's property, but was for- 
 mally made aware of his rights. But the 
 age of Gaius permitted some unconcerned 
 person to oflBciate as purchaser of the family. 
 The heir, therefore, was not necessarily in- 
 formed of the succession to which he was 
 destined; and wills thenceforth acquired the 
 property of secrecy. The substitution of a 
 stranger for the actual heir in the functions 
 of "familiae emptor" had other ulterior con- 
 sequences. . As soon as it was legalised, a 
 Roman testament came to consist of two 
 parts or stages, — a conveyance, which was a 
 pm-e form, and a nuncupatio, or publication. 
 In this latter passage of the proceeding, the 
 testator either orally declared to the assist- 
 ants the wishes which were to be executed 
 after his death, or produced a written doc- 
 ument in which his wishes were embodied. 
 It was not probably till attention had been 
 quite drawn off from the imaginary con- 
 veyance, and concentrated on the nuncu- 
 pation as the essential part of the transaction, 
 that wills were allowed to become revocable. 
 Maine, Anc. Law, c. 6, p. 206. — ^I have thus 
 carried the pedigree of wills some way down 
 in legal history. The root of it is the old 
 testament "with the copper and the scales," 
 founded on a mancipation or conveyance. 
 This ancient will has, however, manifold de- 
 fects, which are remedied, though only indi- 
 rectly, by the praetorian law. Meantime the 
 ingenuity of the jiu-isconsults effects, in the 
 common-law will or mancipatory testament, 
 the very improvements which the praetor 
 may have concurrently carried out in equity. 
 These last ameliorations depend, however, on 
 more legal dexterity, and we see accordingly 
 that the testamentary law of the day of 
 Gaius or Ulpian is only transitional. What 
 changes next ensued we know not; but at 
 length, just before the reconstruction of the 
 jurisprudence by Justinian, we find the sub- 
 jects of the eastern Roman empire employing 
 a form of will of which the pedigree is trace- 
 able to the praetorian testament on one side, 
 and to the testament "with the copper and 
 the scales" on the other. Like the testa- 
 ment of the praetor, it required no mancipa- 
 tion, and was invalid unless sealed by seven 
 witnesses. Like the mancipatory will, it 
 passed the inheritance and not merely a bo- 
 
 23 
 
§25 
 
 WILLS. 
 
 (Ch. 3 
 
 norum possessio. Several, however, of its 
 most important features were annexed by 
 positive enactments, and it is out of regard 
 to this threefold derivation from the praeto- 
 rian edict, from the civil law. and from the 
 imperial constitutions, that Justinian speaks 
 of the law of wills in his own days as "jus 
 tripertitum." The new testament thus de- 
 scribed is the one generally known as the 
 Eoman will. But it was the will of the 
 eastern empire only; and the researches of 
 Savigny have shown that in western Europe 
 the old mancipatory testament, with all its 
 apparatus of conveyance, copper, and scales, 
 continued to be the form in use far down in 
 the Middle Ages. 
 
 Maine, Anc. Law, c. 7, p. 209.— Although 
 there is much in the modern European law 
 of wills which is intimately connected with 
 the oldest rules of testamentary disposition 
 practised among men, there are nevertheless 
 some important differences between ancient 
 and modem ideas on the subject of wills and 
 successions. Some of the points of differ- 
 ence I shall endeavor to illustrate in this 
 chapter. 
 
 At a period, removed several centuries from 
 the era of the Twelve Tables, we find a vari- 
 etj' of rules engrafted on the Roman civil 
 law with the view of limiting the disinheri- 
 son of children; we have the jm'isdiction of 
 the praetor very actively exerted in the same 
 interest; and we are also presented with a 
 new remedy, very anomalous in character 
 and of uncertain origin, called the "querela 
 inofficiosi testamenti,"— the plaint of an un- 
 duteous will, — directed tO' the reinstatement 
 of the issue in inheritances from which they 
 had been unjustifiably excluded by a father's 
 testament. Comparing tliis condition of the 
 law with the text of the Twelve Tables, which 
 concedes in terms the utmost liberty of testa- 
 tion, several writers have been tempted to 
 interweave a good deal of dramatic incident 
 into their history of the law testamentary. 
 They tell us of the boundless license of dis- 
 inherison in which the heads of families in- 
 stantly began to indulge, of the scandal and 
 injury to public morals which the new prac- 
 tices engendered, and of the applause of all 
 good men which hailed the coin-age of the 
 praetor in arresting the progress of paternal 
 depravity. This story, which is not without 
 some foundation for the principal fact it 
 relates, is often so told as to disclose very 
 serious misconceptions of the principles of 
 legal history. The law of the Twelve Tables 
 is to be explained by the character of the 
 age in which it was enacted. It does not 
 license a tendency which a later era thought 
 itself bound to counteract, but it proceeds 
 on the assumption that no such tendency 
 exists, or, perhaps we should say, in igno- 
 rance of the possibility of its existence. There 
 is no likelihood that Roman citizens began 
 immediately to avail themselves freely of 
 the power to disinherit. It is against all 
 reason and sound appreciation of history to 
 24 
 
 suppose that the yoke of family bondage, 
 still patiently submitted to, as we know, 
 where its pressure galled most cruelly, would 
 be cast off in the very particular in which 
 its incidence in our own day is not other- 
 wise than welcome. The law of the Twelve 
 Tables permitted the execution of testa- 
 ments in the only case in which it was 
 thought possible that they could be executed, 
 viz.: on failure of children and proximate 
 kindred. It did not forbid the disinherison 
 of direct descendants, inasmuch as it did not 
 legislate against a contingency which no 
 Roman lawgiver of that era could have con- 
 templated. No doubt, as the offices of fam- 
 ily alfection progi-essively lost the aspect of 
 primary personal duties, the disinherison of 
 children was occasionally attempted. But 
 the interference of the praetor, so far from 
 being called for by the universality of the 
 abuse, was doubtless first prompted by the 
 fact that such instances of unnatural caprice 
 were few and exceptional, and at conflict 
 with the current morality. 
 
 Maine, Anc. Law, c. 7, p. 211.— The indica- 
 tions furnished by this part of Roman testa- 
 mentary law are of a very different kind. 
 It is remarkable that a will never seems to 
 have been regarded by the Romans as a 
 means of disinheriting a family, or of effect- 
 ing the unequal distribution of a patrimony. 
 The rules of law preventing its being turned 
 to such a purpose, increase in number and 
 stringency as the jm-isprudence unfolds 
 itself; and these rules correspond doubtless 
 with the abiding sentiment of Roman so- 
 ciety, as distinguished from occasional varia- 
 tions of feeling in Individuals. It would 
 rather seem as if the testamentary power 
 were chiefly valued for the assistance it gave 
 in making provision for a family, and in di- 
 viding the inheritance more evenly and fair- 
 ly than the law of intestate succession 
 would have divided it. If this be the true 
 reading of the general sentiment on the 
 point, it explains to some extent the singular 
 horror of intestacy which always character- 
 ised the Roman. No evil seems to have been 
 considered a heavier visitation than the for- 
 feiture of testamentary privileges; no curse 
 appears to have been bitterer than that 
 which imprecated on an enemy that he might 
 die without a will. The feeling has no coun- 
 terpart, or none that is easily recognisable, in 
 the forms of opinion which exist at the 
 present day. All men at all times will 
 doubtless prefer chalking out the destination 
 of th^ir substance to having that office per- 
 formed for them by the law; but the Roman 
 passion for testacy is distinguished from the 
 mere desire to Indulge caprice by its intensi- 
 ty; and it has, of com-se, nothing whatever 
 in common with that pride of family, exclu- 
 sively the creation of feudalism, which ac- 
 cumulates one description of property in the 
 hands of a single representative. It is prob- 
 able, a priori, that it was something in the 
 rules of intestate succession which caused 
 
Ch. 3) 
 
 WILLS. 
 
 §25 
 
 this vehement preference for the distribution 
 ■of property under a testament over its dis- 
 tribution by law. The difficulty, however, 
 is, that on glancing at the Roman law of in- 
 testate succession, in the form which it wore 
 for many centm-ies before Justinian shaped 
 it into that scheme of inheritance which has 
 been almost imiversally adopted by modern 
 lawgivers, it by no means strikes one as re- 
 markably unreasonable or inequitable. On 
 the contrary, the distribution it prescribes, is 
 so fair and rational, and differs so little from 
 that with which modern society has been 
 generally contented, that no reason suggests 
 itself why it should have been regarded with 
 extraordinary distaste, especially under a ju- 
 risprudence which pared down to a narrow 
 compass the testamentary privileges of per- 
 sons who had children to provide for. We 
 should rather have expected that, as in 
 France at this moment, the heads of families 
 would generally save themselves the trouble 
 of executing a will, and allow the law to do 
 as it pleased with their assets. I think, 
 however, if we look a little closely at the 
 pre-Justinian scale of intestate succession, 
 we shall discover the key to the mystery. 
 The texture of the law consists of two 
 distinct parts. One department of rules 
 comes from the jus civile, the common law 
 of Rome; the other from the edict of the 
 praetor. The civil law, as I have already 
 stated for another purpose, calls to the in- 
 heritance only three orders of successors in 
 their turn; the unemancipated chlldi-en, the 
 nearest class of agnatic kindred, and the 
 gentiles. Between these three orders, the 
 praetor interpolates various classes of rela- 
 tives, of whom the civil law took no notice 
 ■whatever. Ultimately, the combination of 
 the edict and of the civil law forms a table 
 ■of succession not materially different from 
 that which has descended to the generality 
 of modern codes. 
 
 Maine, Anc. Law, c. 7, p. 214.— The point 
 for recollection is, that there must anciently 
 bave been a time at which the rules of the 
 ■civil law determined the scheme of Intestate 
 succession exclusively, and at which the ar- 
 rangements of the edict were non-existent, 
 or not consistently carried out. We cannot 
 doubt that, in its infancy, the priaetorian ju- 
 risprudence had to contend with formidable 
 obstructions, and it Is more than probable 
 that, long after popular sentiment and legal 
 ■opinion had acquiesced in it, the modifica- 
 tions which it periodically Introduced were 
 governed by no certain principles, and fluc- 
 tuated with the varying bias of successive 
 magistrates. The rules of intestate succes- 
 sion, which the Romans must at this period 
 have practised, account, I think— and more 
 than account— for that vehement distaste for 
 an intestacy to which Roman society during 
 so many ages remained constant. The or- 
 der of succession was this: on the death 6t 
 a citizen, having no wiU or no valid will, his 
 amemanclpated children became his heirs. 
 
 His emancipated sons had no share in the in- 
 heritance. If he left no direct descendants 
 living at his death, the nearest grade of the 
 agnatic kindred succeeded, but no part of 
 the Inheritance was given to any relative 
 united (however closely) with the dead man 
 through female descents. All the other 
 branches of the family were excluded, and 
 the inheritance escheated to the gentiles, or 
 entire body of Roman citizens bearing the 
 same name with the deceased. So that on 
 failing to execute an operative testament, a 
 Roman of the era under examination left his 
 emancipated children absolutely without pro- 
 vision, while, on the assumption that he died 
 childless, there was imminent risk that his 
 possessions would escape from the family al- 
 together, and devolve on a number of per- 
 sons with whom he was merely connected 
 by the sacerdotal fiction that assumed all 
 members of the same gens to be descended 
 from a common ancestor. The prospect of 
 such an issue is in itself a nearly sufficient 
 explanation of a popular sentiment; but, in 
 point of fact, we shaU only half understand 
 it, if we forget that the state of things I have 
 been describing Is likely to have existed at 
 the very moment when Roman society was 
 in the first stage of its transition from Its 
 primitive organization in detached families. 
 The empire of the father had indeed received 
 one of the earliest blows directed at it 
 through the recognition of emancipation as 
 a legitimate usage, but the law, still consid- 
 ering the patria potestas to be the root of 
 family connection, persevered In looking on 
 the emancipated children as strangers to the 
 rights of kinship and aliens from the blood. 
 We cannot, however, for a moment suppose 
 that the limitations of the family imposed 
 by legal pedantry had their counterpart in 
 the natural affection of parents. Family at- 
 tachments must still have retained that 
 nearly inconceivable sanctity and intensity 
 which belonged to them under the patri- 
 archal system;- and so little are they likely 
 to have been extinguished by the act of 
 emancipation, that the probabilities are al- 
 together the other way. It may be unhesi- 
 tatingly taken for granted that enfranchise- 
 ment from the father's power was a demon- 
 stration, rather than a severance, of affec- 
 tion— a mark of grace and favor accorded to 
 the best-beloved and most esteemed of the 
 children. If sons thus honoured above the 
 rest were absolutely deprived of their "herit- 
 age by an Intestacy, the reluctance to Incur 
 It requires no farther explanation. We 
 might have assumed a priori that the pas- 
 sion for testacy was generated by some 
 moral injustice entailed by the rules of In- 
 testate succession; and here we find them 
 at variance with the very Instinct by which 
 early society was cemented together. It la 
 possible to put all that has been urged In a 
 very succinct form. Every dominant senti- 
 ment of the primitive Romans was entwined 
 with the relations of the family. But what 
 
 25 
 
§ 25 
 
 WILLS. 
 
 (Ch. S 
 
 was the family? The law defined it one 
 way— natural affection another. In the con- 
 flict between the two, the feeling we would 
 analyse grew up, taking the form of an en- 
 thusiasm for the institution by which the 
 dictates of affection were permitted to de- 
 termine the fortunes of its objects. 
 
 Maine, Anc. Law, c. 7, p. 216.— I regard, 
 therefore, the Roman horror of intestacy as 
 a monument of a very early conflict between 
 ancient law and slowly changing ancient 
 sentiment on the subject of the family. 
 Some passages in the Roman statute-law, 
 and one statute in particular which limited 
 the capacity for inheritance possessed by 
 women, must have contributed to keep alive 
 the feeling; and it is the general belief that 
 the system of creating fidei-commissa, or be- 
 quests in trust, was devised to evade the dis- 
 abilities imposed by those statutes. But the 
 feeling itself, in its remarkable intensity, 
 seems to point back to some deeper antag- 
 onism between law and opinion; nor is it 
 at all wonderful that the improvements of 
 jm'isprudence by the praetor should not have 
 extinguished it. Everybody conversant with 
 the philosophy of opinion is aware that a 
 sentiment by no means dies out, of neces- 
 sity, with the passing away of the circum- 
 stances which produced it. It may long sur- 
 vive them; nay; it may afterwards attain to 
 a pitch and climax of intensity which it nev- 
 er attained during their actual continuance. 
 
 Maine, Anc. Law, c. 7, p. 217. — ^The view of 
 a wiU which regards it as conferring the 
 power of diverting property from the family, 
 or of distributing it in such uneven propor- 
 tions as the fancy or good sense of the testa- 
 tor may dictate, is not older than that later 
 portion of the Middle Ages in which feudal- 
 ism had completely consolidated itself. When 
 modern jurisprudence first shows itself in 
 Che rough, wills are rarely allowed to dis- 
 pose with absolute freedom of a dead man's 
 assets. Wherever at this period the descent 
 of property was regulated by wiU— and over 
 the greater part of Europe moveable or per- 
 sonal property was the subject of testamen- 
 tary disposition— the exercise of the testa- 
 mentary power was seldom allowed to inter- 
 fere with the right of the widow to a definite 
 share, and of the children to certain fixed 
 proportions, of the devolving inheritance. 
 The shares of the children, as their amount 
 shows, were determined by the authority of 
 Roman law. The provision for the widow 
 was attributable to the exertions of the 
 church, which never relaxed its solicitude 
 for the interest of wives surviving their hus- 
 bands—winning, perhaps one of the most ar- 
 duous of its triumphs when, after exacting 
 for two or three centuries an express prom- 
 ise from the husband at marriage to endow 
 his wife, it at length succeeded in engrafting 
 the principle of dower on the customary law 
 of all western Europe. Curiously enough, 
 the dower of lands proved a more stable in- 
 stitution than the analogous and more an- 
 26 
 
 cient reservation of certain shares of the- 
 personal property to the widow and children. 
 A few local customs in France maintained 
 the right down to the Revolution, and there- 
 are traces of similar usages in England; but 
 on the whole the doctrine prevailed that 
 moveables might be freely disposed of by 
 will, and, even when the claims of the widow 
 continued to be respected, the privileges of 
 the children were obliterated from jurispru- 
 dence. We need not hesitate to attribute 
 the change to the influence of primogeniture. 
 As the feudal law of land practically disin- 
 herited all the children in favour of one, the 
 equal distribution even of those sorts of prop- 
 erty which might havei been equally divided 
 ceased to be viewed as a duty. Testaments 
 were the principal instruments employed in 
 producing inequality, and in this condition of 
 things originated the shade of difference 
 which shows itself between the ancient and 
 modern conception of a will. But, though 
 the liberty of bequest, enjoyed through testa- 
 ments, was thus an accidental fruit of feu- 
 dalism, there is no broader distinction than 
 that which exists between a system of free 
 testamentary disposition and a system, like- 
 that of the feudal land-law, under which 
 property descends compulsorily in prescribed 
 lines of devolution. This truth appears to 
 have been lost sight of by the authors of the 
 French Codes. In the social fabric which 
 they determined to destroy, they saw primo- 
 geniture resting chiefly on family settle- 
 ments, but they also perceived that testa- 
 ments were frequently employed to give the 
 eldest son precisely the same preference 
 which was reserved to him under the stilct- 
 est of entails. In order, therefore, to make 
 sure of their work, they not only rendered' 
 it impossible to prefer the eldest son to the 
 rest in marriage-arrangements, but they al- 
 most expelled testamentary succession from 
 the law, lest it should be used to defeat their 
 fundamental principle of an equal distribu- 
 tion of property among children at the par- 
 ents death. The result is that they have es- 
 tablished a system of small perpetual entails, . 
 which is Infinitely nearer akin to the system 
 of feudal Europe than would be a perfect 
 liberty of bequest. The land-law of England, 
 "The Hercul'aneum of Feudalism," is certain-: 
 ly much more closely allied to the land-law 
 of the Middle Ages than that of any con- 
 tinental country, and wills with us are fre- 
 quently used to aid or imitate that prefer- 
 ence of the eldest son and his line which is 
 a nearly universal feature in marriage settle- 
 ments of real property. But nevertheless 
 feeling and opinion in this country have beea 
 profoundly affected by the practice of free 
 testamentary disposition; and it appears to- 
 me that the state of sentiment in a great 
 part of French society, on the subject of the- 
 conservation of property in families, is mucb 
 liker that which prevailed through Europe 
 two or three centuries ago than are the cur- 
 rent opinions of Englishmen. 
 
Ch. 3) 
 
 WILLS. 
 
 § 25- 
 
 Maine, Anc. Law, c. 7, p. 220.— The men- 
 tion of primogeniture introduces one of tlie 
 most difficult problems of historical jurispru- 
 dence. Though I have not paused to ex- 
 plain my expressions, it may have been no- 
 ticed that I have frequently spolien of a num- 
 ber of "co-heirs" as placed by the Roman 
 law of succession on the same footing with a 
 single hen-. In point of fact, we know of 
 no period of Roman jurisprudence at which 
 the place of the heir, or universal successor, 
 might not have been taken by a group of 
 co-heirs. This group succeeded as a single 
 unit, and the assets were afterwards divided 
 among them in a separate legal proceeding. 
 When the succession was ab intestato, and 
 the group consisted of the children of the de- 
 ceased, they each took an equal share of 
 the property; nor, though males had at one 
 time some advantage over females, is there 
 the faintest trace of primogeniture. The 
 mode of distribution is the same throughout 
 archaic jurisprudence. It certainly seems 
 that, when civil society begins and families 
 cease to hold together through a series of 
 generations, the idea which spontaneously 
 suggests itself Is to divide the domain equal- 
 ly among the members of each successive 
 generation, and to reserve no privilege to 
 the eldest son or stock. Some peculiarly sig- 
 nificant hints as to the close relation of this 
 phenomenon to primitive thought are fur- 
 nished by systems yet more archaic than the 
 Roman. Among the Hindoos, the instant a 
 son is born, he acquires a vested right in his 
 father's property, which cannot be sold with- 
 out recognition of his joint-ownership. On 
 the son's attaining full age, he can sometimes 
 compel a partition of the estate even against 
 the consent of the parent; and should the 
 parent acquiesce, one son can always have a 
 partition even against the will of the others. 
 On such partition taking place, the father 
 has no advantage over his children, except 
 that he has two of the shares Instead of one. 
 The ancient law of the German tribes was 
 exceedingly similar. The allod or domain of 
 the family was the joint-property of the fa- 
 ther and his sons. It does not, however, ap- 
 pear to have been habitually divided even at 
 the death of the parent, and in the same way 
 th^ possessions of a Hindooi however divisi- 
 ble theoretically, are so rarely distributed in 
 fact, that many generations constantly suc- 
 ceed each other without a partition taking 
 place, and thus the family in India has a per- 
 petual tendency to expand Into the village 
 community, under conditions which I shaU 
 hereafter attempt to elucidate. All this 
 points very clearly to the absolutely equal 
 division of assets among the male children at 
 death as the practice most usual with society 
 at the period when family-dependency is in 
 the first stages of disintegration. Here then 
 emerges the historical difficulty of primo- 
 geniture. The more clearly we perceive that, 
 when the feudal institutions were in process 
 of formation, there was no source In the 
 
 world whence they could derive their ele- 
 ments but the Roman law of the provincials; 
 on the one hand and the archaic customs ol 
 the barbarians on the other, the more are we 
 perplexed at first sight by our knowledge 
 that neither Roman nor barbarian was ac- 
 customed to give any preference to the eld- 
 est son or his line in the succession to prop- 
 erty. 
 
 Maine, Anc. Law, c. 7, p. 222.— Primogeni- 
 ture did not belong to the customs which 
 the barbarians practised on their first estab- 
 lishment within the Roman empire. It is 
 known to have had its origin in the benefices- 
 or beneficiary gifts of the invading chief- 
 tains. These benefices, which were occa- 
 sionally conferred by the earlier immigrant 
 kings, but were disti'ibuted on a great scale 
 by Charlemagne, were grants of Roman pro- 
 vincial land to be holden by the benefi- 
 ciary on condition of military service. The 
 allodial proprietors do not seem to have fol- 
 lowed their sovereign on distant or difficult 
 enterprises, and all the grander expeditions 
 of the Frankish chiefs and of Charlemagne 
 were accomplished with forces composed of 
 soldiers either personally dependent on the 
 royal house or compelled to serve it by the 
 tenure of their land. The benefices, how- 
 ever, were not at first in any sense heredi- 
 tary. They were held at the pleasure of 
 the grantor, or at most for the life of the 
 grantee; but still, from the very outset, no 
 efforts seems to have been spared by the 
 beneficiaries to enlarge their tenure, and to 
 continue their lands in their family after 
 death. Through the feebleness of Charle- 
 magne's successors these attempts were uni- 
 versally successful, and the benefice gradu- 
 ally transformed itself into the hereditary 
 fief. But, though the fiefs were hereditary,, 
 they did not necessarily descend to the eld- 
 est son. The rales of succession which they 
 followed were entirely determined by the 
 terms agreed upon between the grantor and 
 the beneficiary, or Imposed by one of them 
 on the weakness of the other. The original 
 tenures were therefore extremely various j 
 not Indeed so capriciously various as is 
 sometimes asserted, for all which have hith- 
 erto been described present some combina- 
 tion of the modes of succession familiar to- 
 Romans and to barbarians, but still exceed- 
 ingly miscellaneous. In some of them, the 
 eldest son and his stock undoubtedly suc- 
 ceeded to the fief before the others, but such 
 successions, so far from being universal, do- 
 not even appear to have been general. Pre- 
 cisely the same phenomena recur during 
 that more recent transmutation of European 
 society which entirely substituted the feudal 
 form of property for the domainial (or Ro- 
 man) and the allodial (or German.) The al- 
 lods were wholly absorbed by the fiefs. The 
 greater allodial proprietors transformed 
 themselves Into feudal lords by conditional 
 alienations of portions of their land to de- 
 pendants; the smaller sought an escape 
 
 27 
 
§ 25 
 
 WILLS. 
 
 (Ch. 3 
 
 from the oppressions of that terrible time 
 by surrendering their property to some pow- 
 erful chieftain, and receiving it back at 
 his hands on condition of service in his 
 wars. Meantime, that vast mass of the pop- 
 ulation of western Europe whose condition 
 was servile or semi-servile — the Roman and 
 Oerman personal slaves, the Roman colonl 
 and the German lidi — were concurrently ab- 
 sorbed by the feudal organization, a few of 
 them assuming a menial relation to the 
 lords, but the greater part receiving land on 
 terms which in those centuries were consid- 
 ■ered degrading. The tenures created during 
 this era of imiversal infeudation were as 
 various as the conditions which the tenants 
 made with their new chiefs or were forced 
 to accept from them. As in the case of bene- 
 fices, the succession to some, but by no 
 means to all, of the estates followed the rule 
 of primogeniture. No sooner, however, has 
 the feudal system prevailed throughout the 
 west, than it becomes evident that primo- 
 geniture has some great advantage over ev- 
 ery other mode of succession. It spread 
 over Europe with remarkable rapidity, the 
 principal instrument of diffusion being fam- 
 ily settlements, the pactes de famille of 
 Prance and haus-gesetze of Germany, which 
 universally stipulated that lands held by 
 knightly service should descend to the eldest 
 son. Ultimately the law resigned itself to 
 follow inveterate practice, and we find that 
 in all the bodies of customary law, which 
 were gradually built up, the eldest son and 
 stock are preferred in the succession to es- 
 tates of which the tenm-e is free and mili- 
 tary. As to lands held by servile tenures 
 <and originally all tenures were servile 
 which bound the tenant to pay money or be- 
 stow manual labor), the system of succession 
 prescribed by custom difliered greatly in dif- 
 ferent countries and different provinces. 
 The more general rule was that such lands 
 were divided equally at death among all the 
 children, but still in some instances the eld- 
 est son was preferred, in some the youngest. 
 But primogenitiu'e usually governed the in- 
 heritance of that class of estates, in some 
 respects the most important of all, which 
 were held by tenures that, like the English 
 socage, were of later origin than the rest, 
 and were neither altogether free nor alto- 
 gether servile. 
 
 Maine, Anc. Law, c. 7, p. 225.— The diffu- 
 sion of primogeniture is usually accounted 
 for by assigning what are called feudal rea- 
 sons for it. It is asserted that the feudal 
 superior had a better security for the mili- 
 tary service he required when the fief de- 
 scended to a single person, instead of be- 
 ing distributed among a number of the de- 
 cease of the last holder. Without denying 
 that this consideration may partially ex- 
 plain the favour gradually acquired by primo- 
 geniture, I must point out that primogeni- 
 ture became a custom of Europe much more 
 through its popularity with the tenants than 
 28 
 
 through any advantage It conferred on the 
 lords. For its origin, moreover, the reason 
 given does not account dt all. Nothing In 
 law springs entirely from a sense of con- 
 venience. There are always certain ideas 
 existing antecedently on which the sense of 
 convenience works, and of which it can do 
 no more than form some new combination; 
 and to find these ideas in the present case 
 is exactly the problem. 
 
 Maine, Anc. Law, c. 7, p. 226.— A -^'oluable 
 hint is furnished to us from a quarter fruit- 
 ful of such indications. Although in India 
 the possessions of a parent are divisible at 
 his death, and may be divisible dui'ing his 
 life, among all his male children in equal 
 shares, and though this principle of the 
 equal distribution of property extends to ev- 
 ery part of the Hindoo institutions, yet 
 wherever public office or political power de- 
 volves at the decease of the last incumbent, 
 the succession is nearly universally accord- 
 ing to the rules of primogeniture. Sover- 
 eignties descend therefore to the eldest son, 
 and where the affairs of the village com- 
 munity, the corporate tinit of Hindoo so- 
 ciety, are confided to a single manager, it is 
 generally the eldest son who takes up the 
 administration at his parent's death. All 
 offices, indeed, in India, tend to become 
 hereditary, and, when their nature permits 
 it, to vest in the eldest member of the oldest 
 stock. Comparing these Indian successions 
 with some of the ruder social organisations 
 which have survived in Europe almost to 
 our own day, the conclusion suggests itself 
 that, when patriarchal power is not only 
 domestic but political, it is not distributed 
 among all the issue at the parent's death, 
 but is the birthright of the eldest son. The 
 chieftainship of a Highland clan, for ex- 
 ample, followed the order of primogeniture. 
 There seems, in truth, to be a form of fam- 
 ily-dependency still more archaic than any 
 of those which we know from the primitive 
 records of organised civil societies. The ag- 
 natic union of the kindred in ancient Roman 
 law, and a multitude of similar indications, 
 point to a period at which all the ramifying 
 branches of the family tree held together 
 in one organic whole; and It is no presump- 
 tuous conjecture, that, when the corporation 
 thus formed by the kindred was in itself an 
 independent society, it was governed by the 
 eldest male of the oldest line. It is true 
 that we have no actual knowledge of any 
 such society. Evefi in the most elementary 
 communities, family-organisations, as we 
 know them, are at most imperia In imperio. 
 But the position of some of them, of the 
 Celtic clans in particular, was sufficiently 
 near independence within historical times to 
 force on us the conviction that they were 
 once separate Imperia, and that primogen- 
 iture regulated the succession to the chief- 
 tainship. It is, however, necessary to be on 
 our guard against modern associations with 
 the term of law. We are speaking of a 
 
Ch. 3) 
 
 WILLS. 
 
 §2& 
 
 family-connection still closer and more strin- 
 gent than any with which we are made ac- 
 quainted by Hindoo society or ancient Ro- 
 man law. If the Roman paterfamilias was 
 visibly steward of the family possessions, if 
 the Hindoo father is only joint-sharer with 
 his sons, still more emphatically must the 
 true patriai'chal chieftain be merely the ad- 
 ministrator of a common fund. 
 
 Maine, Anc. Law, c. 7, p. 228.— The exam- 
 ples of succession by primogeniture which 
 were found among the benefices may, there- 
 fore, have been imitated from a system of 
 family-government known to the invading 
 races, though not in general use. Some rude 
 tribes may have still practised it, or, what 
 is still more probable, society may have been 
 so slightly removed from its more archaic 
 condition that the minds of some men spon- 
 taneously recurred to it, when they were 
 called upon to settle the rules of inheritance 
 for a new form of property. But there is 
 still the question, why did primogeniture 
 gradually supersede every other principle of 
 succession? The answer, I think, is, that 
 European society decidedly retrograded dur- 
 ing the dissolution of the Carlovingian em- 
 pire. It sank a point or two back even from 
 the miserably low degree which it had mark- 
 ed din:ing the early barbarian monarchies. 
 The great characteristic of the period was 
 the feebleness, or rather the abeyance, of 
 kingly and therefore of civil authority; and 
 hence it seems as if, civil society no longer 
 cohering, men universally flung themselves 
 back on a social organisation older than the 
 beginnings of civil communities. The lord 
 with his vassals, during the ninth and tenth 
 centuries, may be considered as a patriarchal 
 household, recruited, not as in the primitive 
 times by adoption, but by infeudation; and 
 to such a confederacy, succession by primo- 
 geniture was a source of strength and dura- 
 bility. So long as the land was kept to- 
 gether on which the entire organisation rest- 
 ed, it was powerful for defence and attack; 
 to divide the land was to divide the little 
 society, and voluntarily to Invite aggression 
 in an era of universal violence. We may 
 be perfectly certain that into this preference 
 for primogeniture there entered no idea of 
 disinheriting the bulk of the children in fa- 
 vour of one. Everybody would have suf- 
 fered by the division of the fief. Everybody 
 was a gainer by its consolidation. The fam- 
 ily grew stronger by the concentration of 
 power in the same hands; nor is it likely 
 that the lord who was invested with the in- 
 heritance had any advantage over his breth- 
 ren and kinsfolk in occupations, interests, or 
 indulgences. It would be a singular anach- 
 ronism to estimate the privileges succeeded 
 to by the heir of a fief, by the situation in 
 which the eldest son is placed under an 
 English strict settlement. 
 
 Maine, Anc. Law, c. 7, p. 229.— I have said 
 that I regard the early feudal confederacies 
 as descended from an archaic form of the 
 
 family, and as wearing a strong resem- 
 blance to it. But then in the ancient world, 
 and in the societies which have not passed 
 through the crucible of feudalism, the primo- 
 geniture which seems to have prevailed nev- 
 er transformed itself into the primogenitiu-e 
 of the later feudal Europe. When the group 
 of kinsmen ceased to be governed through 
 a series of generations by a hereditary chief, 
 the domain which had been managed for 
 all appears to have been equally divided 
 among all. Why did this not occur in the 
 feudal world? If during the confusions of 
 the first feudal period the eldest son held 
 the land for the behoof of the whole family,, 
 why was it that when feudal Europe had 
 consolidated itself, and regular communities, 
 were again established, the whole family 
 did not resume that capacity for equal in- 
 heritance which had belonged to Roman and 
 German alike? The key which unlocks thi* 
 difliculty has rarely been seized by the writ- 
 ers who occupy themselves in tracing the- 
 genealogy of feudalism. They perceive the 
 materials of the feudal institutions, but they 
 miss the cement. The ideas and social forms 
 which contributed to the formation of the 
 system were unquestionably barbarian and 
 archaic, but, as soon as courts and lawyers 
 were called in to interpret and define it,, 
 the principles of interpretation which they 
 applied to It were those of the latest Ro- 
 man jurisprudence, and were therefore ex- 
 cessively refined and matured. In a patii- 
 archally governed society, the eldest son 
 may succeed to the government of the ag- 
 natic group, and to the absolute disposal of 
 its property. But he is not therefore a true 
 proprietor. He has correlative duties not in- 
 volved in the conception of proprietorship, 
 but quite undefined and quite incapable of 
 definition. The later Roman jurisprudence,, 
 however, lUie our own law, looked upon un- 
 controlled power over property as equiva- 
 lent to ownership, and did not, and, in fact, 
 could not, take notice of liabilities of such 
 a kind, that the very conception of them be- 
 longed to a period anterior to regular law. 
 The contact of the refined and the barbar- 
 ous notion had inevitably for its effect the 
 conversion of the eldest son into legal pro- 
 prietor of the inheritance. The clerical and 
 secular lawyers so defined his position from 
 the first; but it was only by insensible de- 
 grees that the younger brother, from partic- 
 ipating on equal terms in all the dangers 
 and enjoyments of his kinsman, sank into 
 the priest, the soldier of fortune, or the 
 hanger-on of the mansion. The legal revo- 
 lution was identical with that which occur- 
 red on a smaller scale, and in quite recent 
 times, through the greater part of the High- 
 lands of Scotland. When called in to de- 
 termine the legal powers of the chieftain 
 over the domains which gave sustenance 
 to the clan, Scottish jurisprudence had long- 
 since passed the point at which it could take 
 notice of the vague limitations on complete- 
 
 29' 
 
:§ 25 
 
 WILLS. 
 
 (Ch. 3 
 
 ness of dominion imposed by tlie claims of 
 the clansmen, and it was inevitable there- 
 fore, that it should convert the patrimony 
 ■of many into the estate of one. 
 
 Maine, Anc. Law, c. 7, p. 231.— For the 
 sake of simplicity, I have called the mode 
 •of succession primogeniture whenever a sin- 
 gle son or descendant succeeds to the au- 
 thority over a household or society. It is re- 
 markable, however, that in the few very 
 lancient examples which remain to us of 
 this sort of succession, it is not always the 
 •eldest son, in the sense familiar to us, who 
 takes up the representation. The form of 
 primogeniture which has spread over west- 
 ern Europe has also been perpetuated among 
 the Hindoos, and there is every reason to 
 believe that it is the normal form. Under 
 it, not only the eldest son, but the eldest 
 line is always preferred. If the eldest son 
 fails, his eldest son has precedence not only 
 over brothers but over uncles; and, if he 
 too fails, the same rule is followed in the 
 next generation. But when the succes-sion 
 is not merely to civil but to political iiower, 
 -a diflElculty may present itself which will 
 appear of greater magnitude according as 
 the cohesion of society is less perfect. The 
 chieftain who last exercised authority may 
 have outlived his eldest son, and the grand- 
 ■son who is primarily entitled to succeed 
 may be too young and immatm'e to under- 
 take the actual guidance of the community, 
 and the administration of its affairs. In 
 .such an event, the expedient which suggests 
 itself to the more settled societies is to place 
 the infant heir under guardianship till he 
 reaches the age of fitness for government. 
 The guardianship is generally that of the 
 male agnates; but it is remarkable that the 
 contingency supposed is one of the rare 
 •eases in which ancient societies have con- 
 sented to the exercise of power by women, 
 doubtless out of respect to the overshadow- 
 ing claims of the mother. In India, the 
 widow of a Hindoo sovereign governs in the 
 name of her infant son, and we cannot but 
 remember that the custom regulating suc- 
 .cession to the throne of France— which, 
 whatever be its origin, is doubtless of the 
 highest antiquity— preferred the queen-moth- 
 er to all other claimants for the regency, 
 at the same time that it rigorously excluded 
 all females from the throne. There is, how- 
 ever, another mode of obviating the incon- 
 venience attending the devolution of sov- 
 ereignty on an infant heir, and it is one 
 which would doubtless occur spontaneously 
 to rudely organized communities. This is to 
 set aside the infant heir altogether, and con- 
 fer the chieftainship on the eldest surviv- 
 ing male of the first generation. The Celtic 
 clan-associations, among the many phenom- 
 ena which they have preserved of an age 
 in which civil and political society were not 
 yet even rudimentarily separated, have 
 brought down this rule of succession to his- 
 torical times. With them, it seems to have 
 30 
 
 existed in the form of a positive canon, that, 
 failing the eldest son, his next brother suc- 
 ceeds in priority to all grandsons, what- 
 ever be their age at the moment when the 
 sovereignty devolves. Some writers have 
 explained the principle by assuming that 
 the Celtic customs took the last chieftain as 
 a sort of root or stock, and then gave the 
 succession to the descendant who should "be 
 least remote from him; the uncle thus be- 
 ing preferred to the grandson as being near- 
 er to the common root. No objection can be 
 taken to this statement if it be merely in- 
 tended as a description of the system of suc- 
 cession; but it would be a serious error to 
 conceive the men who first adopted the rule 
 as applying a course of reasoning which 
 evidently dates from the time when feudal 
 schemes of succession began to be debated 
 among lawyers. The true origin of the pref- 
 erence of the uncle to the grandson is doubt- 
 less a simple calculation on the part of rude 
 men in a rude society that it is better to be 
 governed by a grown chieftain than by a 
 child, and that the younger son is more like- 
 ly to have come to maturity than any of 
 the eldest son's descendants. At the same 
 time, we have some evidence that the form 
 of primogenitm-e with which we are best 
 acquainted is the primary form, in the tradi- 
 tion that the assent of the clan was asked 
 when an iufant heir was passed over in fa- 
 vour of his uncle. There is a tolerably well 
 authenticated instance of this ceremony in 
 the annals of the Scottish Macdonalds; and 
 Irish Celtic antiquities, as interpreted by re- 
 cent inquirers, are said to disclose many 
 traces of similar practices. The substitu- 
 tion, by means of election, of a "worthier" 
 agnatic relative for an elder is not unknown, 
 too, in the system of the Indian village com- 
 munities. 
 
 Maine, Anc. Law, c. 7, p. 234. — Under Ma- 
 hometan law, which has probably preserved 
 an ancient Arabian custom, inheritances of 
 property are divided equally among sons, the 
 daughters taking a half share; but if any 
 of the children die before the division of the 
 inheritance, leaving issue behind, thesa 
 grandchildren are entirely excluded by their 
 uncles and aunts. Consistently with this 
 principle, the succession, when political au- 
 thority devolves, is according to the form of 
 primogeniture which appears to have obtain- 
 ed among the Celtic societies. In the two 
 great Mabometan families of the west, the 
 rule is believed to be, that the uncle suc- 
 ceeds to the throne in preference to the 
 nephew, though the latter be the son of an 
 elder brother; but though this rule has been 
 followed quite recently both in Egypt and in 
 Turkey, I am informed that there has al- 
 ways been some doubt as to its governing 
 the devolution of the Turkish sovereignty. 
 The policy of the sultans has in fact gen- 
 erally prevented cases for its application 
 from occuiTing, and it is possible that their 
 wholesale massacres of their younger broth- 
 
Oh. 3) 
 
 WILLS. 
 
 25 
 
 ■ers may have been perpetrated quite as 
 much in the interest of their children as for 
 the sake of making away with dangerous 
 ■competitors for the throne. It Is evident, 
 however, that in polygamous societies the 
 form of primogeniture will always tend to 
 vary. Many considerations may constitute 
 a claim on the succession, the rank of the 
 mother, for example, or her degree In the af- 
 fections of the father. Accordingly, some of 
 the Indian Mahometan sovereigns, without 
 pretending to any distinct testamentary pow- 
 er, claim the right of nominating the son 
 who is to succeed. The blessing mentioned 
 in the scriptural history of Isaac and his 
 sons has sometimes been spoken of as a will, 
 "but it seems rather to have been a mode of 
 naming an eldest son. 
 
 2 Bl. Comm. 491.— With us in England, this 
 power of begueathlng is coeval with the first 
 rudiments of the law: for we have no traces 
 ■or memorials of any time when it did not 
 exist. Mention is made of intestacy, In the 
 old law before the conquest, as being merely 
 accidental ; and the distribution of the Intes- 
 tate's estate, after payment of the lord's her- 
 iot, is then directed to go according to the 
 established law. "Sive quis incurla, sive 
 morte repentina, fuerlt Intestatus mortuus, 
 dominus tamen nullam rerum suarum par- 
 tem (praeter eam quae jure debetm- hereoti 
 nomine) sibi assumito. Verum possessiones 
 uxori, liberis, et cognatlone proximis, pro suo 
 unique jure, distribuantur." But we are not 
 to imagine, that this power of bequeathing 
 extended originally to all a man's personal 
 estate. On the contrary, Glanvil will inform 
 lis, that by the common law, as it stood in 
 the reign of Henry the Second, a man's 
 goods were to be divided into three equal 
 parts: of which one went to his heu-s or lin- 
 eal descendants, another to his wife, and the 
 third was at his own disposal: or, if he died 
 without a wife, he might then dispose of one 
 moiety, and the other went to his children; 
 and so e converse, if he had no children, the 
 wife was entitled to one moiety, and he 
 might bequeath the other; but, if he died 
 without either wife or issue, the whole was 
 at his own disposal. The shares of the wife 
 and children were called their reasonable 
 parts; and the writ de rationablli parte bo- 
 norum was given to recover them. 
 
 This continued to be the law of the land at 
 the time of Magna Carta, which provides 
 that the king's debts shall first of all be lev- 
 ied, and then the residue of the goods shall 
 go to the executor to perform the will of the 
 deceased; and, if nothing be owing to the 
 ■crown, "omnia catalla cedant defuncto; sal- 
 vis uxori ipsius et puerls suls rationabilibus 
 partibus suis." In the reign of King Ed- 
 ward the Third, this right of the wife and 
 children was still held to be the universal or 
 common law; though frequently pleaded as 
 the local custom of Berks, Devon, and other 
 counties: and Sir Henry Finch lays it down 
 expressly, in the reign of Charles the First, 
 
 to be the general law of the land. But this 
 law Is at present altered by imperceptible 
 degrees, and the deceased may now, by will, 
 bequeath the whole of his goods and chat- 
 tels; though we cannot trace out when first 
 this alteration began. Indeed, Sir Edward 
 Coke is of opinion, that this never was the 
 general law, but only obtained, in particular 
 places, by special custom: and to estabifsh 
 that doctrine he relies on a passage in Brac- 
 ton, which, in truth, when compared with 
 the context, makes directly against his opin- 
 ion. For Bracton lays down the doctrine 
 of the reasonable part to be the common 
 law; but mentions that as a particular ex- 
 ception, which Sir Edward Coke has hastily 
 cited for the general rule. And Glanvil, 
 Magna Carta, Fleta, the Year Books, Fitz- 
 herbert, and Pinch, do all agree with Brac- 
 ton, that this right to the pars rationabllis 
 was by the common law: which also con- 
 tinues to this day to be the general law of 
 om* sister kingdom of Scotland. To which 
 we may add, that whatever may have been 
 the custom of later years in many parts of 
 the kingdom, or however it was introduced 
 in derogation of the old common law, the 
 ancient method continued in use in the prov- 
 ince of York, the principality of Wales, and 
 in the city of London, till very modern times: 
 when in order to favor the power of be- 
 queathing, and to reduce the whole king- 
 dom to the same standard, three statutes 
 have been provided: the one, 4 & 5 W. & M. 
 c. 2, explained by 2 & 3 Anne, c. 5, for the 
 province of York; another, 7 & 8 Wm. III. 
 c. 38, for Wales; and a third, 11 Geo. I. c. 
 18, for London: whereby it is enacted, that 
 persons within those districts, and liable to 
 those customs, may (if they think proper) 
 dispose of all their personal estates by will; 
 and the claims of the widow, children and 
 other relations, to the contrary, are totally 
 barred. Thus, is the old common law now 
 utterly abolished throughout all the kingdom 
 of England, and a man may devise the whole 
 of his chattels as freely as he formerly could 
 his third part or moiety. In disposing of 
 which, he was bound by the custom of many 
 places (as was stated in a former chapter) 
 to remember his lord and the church, by 
 leaving them his two best chattels, which 
 was the original of herlots and mortuaries; 
 and afterwards he was left at his own liber- 
 ty, to bequeath the remainder as he pleased. 
 Digby, Real Prop. c. 8, p. 375.— It has been 
 seen that one of the most marked effects of 
 the growth of feudalism was the abolition, 
 except in certain localities, of the practice 
 of devising interests in lands by wiU.^ Such 
 a disposition would have defeated the most 
 valuable rights of the lord— relief, wardship, 
 and marriage. It was therefore wholly in- 
 consistent with feudal theories. In a great 
 many boroughs, and in gavelkind lands, local 
 customs were sufficiently strong to preserve 
 
 'Digby, Real Prop. pp. 29, 101. 
 
 31 
 
§ 25 
 
 WILLS. 
 
 (Ch. S 
 
 the ancient liberty of disposition by will, and 
 cases relating to "burgages devisable" are 
 common in the Year Boolis. 
 
 It has also been seen how the practice of 
 disposing of uses of land by will became 
 prevalent under the protection and encour- 
 agement of the chancellors. One of the ear- 
 liest of the recorded cases on this branch 
 of the law contains a disposition by will, or 
 rather perhaps settlement, of the use of lands 
 made in the 6th year of Richard 11.^ Ex- 
 cept therefore In the case of burgages de- 
 visable, a devise, before the legislation pres- 
 ently to be noticed, was simply a declaration 
 by the legal tenant of the uses to which his 
 heir at his death should hold the lands, or 
 of the uses to which he had conveyed the 
 lands to feoffees (such conveyance having 
 been expressed to be to the use of his will), 
 or else a disposition of a use which had 
 already been created in favor of himself. 
 
 Digby, Real Prop. c. 8, p. 376.— In order 
 therefore that the devisee of the use might 
 enforce the disposition of the will, the aid 
 of the chancellor was called in. The chan- 
 cellor would compel, if necessary, the tenant 
 of the legal estate to convey the land de- 
 vised to cestui que use, the devisee. 
 
 It appears from the title and preamble of 
 the statute of uses that one of its principal 
 objects was to abolish the power of dis- 
 posing of Interests in lands by will, and 
 thereby to restore to the king and the great 
 lords the feudal dues which they could not 
 claim if the estate of the heir were de- 
 feated by a devise. 
 
 The statute of uses contained a saving In 
 favoiu- of wills made before the first day of 
 May, 1536,' the year following that of the 
 passing of the statute. Between that time 
 and July 20, 1540, the power of testation 
 was, as regards freehold interests in lands, 
 wholly abolished, except In the localities 
 mentioned above. It may however be well 
 believed that it was impossible for the legis- 
 lature, arbitrary and thoroughgoing as it 
 was, to maintain a restriction so opposed 
 to the habits and practices which had pre- 
 vailed throughout the counti-y ever since uses 
 had been understood and protected by the 
 chancellor.* Accordingly in the 32nd year 
 of Henry VIII. (1540), it was found neces- 
 sary to restore a large measure of the power 
 of devising interests in lands. The provi- 
 sions of the statute 32 Hen. VIII. c. 1, are 
 somewhat complicated; but the upshot of 
 them is that power is given to every ten- 
 ant in fee simple " to dispose of all his lands 
 held by socage tenure, and of two-thirds of 
 his lands held by knight-service. Careful 
 provision is made by this statute for the 
 saving of primer seisins, reliefs, and fines 
 
 ^Rothanhale v. Wychingham, Digby, Real 
 Prop. p. 324. 
 
 " Section 9. 
 
 * Digby, Real Prop. p. 844, note 1. 
 = So interpreted by 34 & 35 Hen. VIII. c. 5 
 S o. ' 
 
 32 
 
 on alienation, in the case of socage lands, 
 and of the rights of wardship over the third 
 part of knight-service lands, in favour of 
 the king or other lord. 
 
 Digby, Real Prop. c. 8, p. 377.— When, by 
 the act for the abolition of military tenures,* 
 tenure by knight-service was converted into 
 free and common socage, the power of de- 
 vise granted by the statutes of Henry VIH. 
 extended to the whole of the lands of which 
 previously only two parts had been devis- 
 able. 
 
 No particular solemnity was required by 
 the statutes of Henry VIII. for the execution 
 of wills. The first statute spoke of a will 
 or testament in writing or other act law- 
 fully executed in the testator's life. Conse- 
 quently "bare notes in the handwriting of 
 another person were allowed to be good wills 
 within the statute." ' The law was altered 
 by the statute of frauds, (29 Car. II. c. 3,) 
 by which it was made a necessary condi- 
 tion of the validity of a will of lands that 
 it should be signed by the testator, or by 
 some other person in his presence, and be 
 subscribed by three or four credible witnesses. 
 
 The law of wills of all property, whether 
 real or personal, now rests on the provisions 
 of the wiUs act, (7 Wm. IV. and 1 Vict. c. 
 26.) This statute repealed the previous stat- 
 utes, except so far as regards their operation 
 upon all wiUs made before January 1, 1838. 
 The principal requirements of the wills act 
 with regard to the form of wills ' are, that 
 the will be in writing, signed at its foot 
 or end ° by the testator, or by some other 
 person in his presence, and by his direction; 
 such signatm-e to be made or acknowledged 
 by the testator in the presence of two or 
 more witnesses present at the same time, 
 who are to attest and subscribe the wiU in 
 the testator's presence. 
 
 The provisions of the statute of frauds 
 above noticed introduced some harsh doc- 
 ti'ines as to the rules affecting the necessary 
 witnesses of a will. Formerly the notion 
 prevailed that a witness who had any inter- 
 est in the subject-matter of his testimony 
 was therefore not a credible witness at all. 
 
 Digby, Real Prop. c. 8, p. 378.— Hence if 
 the will was attested by only three witness- 
 es, and contained a legacy or other provi- 
 sion in favour of one of them, his testimony 
 would be excluded, and the will was ren- 
 dered invalid for want of the testimony of 
 three credible witnesses. To such a length 
 was the doctrine carried, that, if one of the 
 witnesses was a creditor, or even husband 
 or wife of a creditor, and the will contained 
 a provision charging the testator's estates 
 with the payment of his debts, the evidence 
 of the witness was inadmissible, and the 
 whole will consequently invalid. The harsh- 
 
 ° Digby, Real Prop. c. 9. 
 ' 2 Bl. Comm. p. 376. 
 ' Section 9. 
 
 ° Further explained and defined by 15 & 16 
 Vict. c. 24. 
 
Ch. 3) 
 
 AVILLS. 
 
 25 
 
 ness of this doctrine was to some extent 
 modified by the statute 25 Geo. II. c. 6, by 
 which gifts to witnesses were made void, 
 thus destroying their interest, and creditors 
 were made competent witnesses. By the 
 wills act, (7 Wm. IV. and 1 Vict. c. 26, 
 § 14,) it was provided tliat a will should not 
 be void by reason of the incompetency of 
 the attesting witness; and the provisions of 
 the act 25 Geo. 11. c. 6, as to avoiding gifts 
 to attesting witnesses, were re-enacted. These 
 provisions were to some extent an antici- 
 pation of the general application of the prin- 
 ciple which, mainly owing to the demonstra- 
 tions of Bentham, was being gradually in- 
 troduced into the various departments of 
 the law of evidence, that the fact of a wit- 
 ness having an interest is an objection only 
 to the weight and not to the admissibility 
 of his evidence." 
 
 The operation of a wiU as a mode of ac- 
 quiring rights over land is peculiar, and de- 
 rives from its history attributes wholly dif- 
 ferent to those which characterise a will of 
 personal or moveable property. A wiU of 
 personalty inherits to some extent the Ro- 
 man conception of a successio per univetsi- 
 talem. It confers on the executor the whole 
 of the testator's rights in respect of his per- 
 sonal property, and the greater portion of 
 his duties. The executor is the universal 
 successor of the testator. To use the lan- 
 guage of Roman law, he is invested with 
 the legal character, persona or status, of 
 his testator, so far as regards his personal 
 property. 
 
 Digby, Real Prop. c. 8, p. 379.— On the oth- 
 er hand, the earliest detinite jm-istic concep- 
 tion which was formed of an English will 
 of lands seems to have been, as has already 
 been said, that it operated as a declaration 
 of the testator's intention as to the use or 
 beneficial interest in lands— as, in fact, a 
 conveyance of the particular beneficial inter- 
 est intended to be dealt with. Thus a will 
 of lands has always been regarded as a con- 
 veyance of a particular interest, coming into 
 operation immediately upon the death of the 
 testator, and not as creating a succession in 
 the sense of Roman law. 
 
 It followed from the original conception of 
 a will as a mode of raising a iiso, that a will, 
 lilie any other mode of raising uses, might 
 create interests arising at a future time, and 
 divesting previous interests in a way un- 
 linown to the common law. These qualities 
 seem to have been imparted even to a devise 
 of lands, which, by virtue of a local custom, 
 was operative at common law; and the com- 
 mon lawyers marveled when they reflected 
 on the wonderfid nature of a devise, in a 
 case, for instance, of a burgage devisable 
 which the wiU declared should be sold by 
 the executoft, how it could be that upon the 
 testator's death the heir should, according to 
 the course of the common law, be in by de- 
 
 09. 
 
 ' See 6 & 7 Vict. c. 8.5, and 14 & l.j Vict. c. 
 ABB. WILLS — 3 
 
 scent, and yet, upon the sale by the execu- 
 tors, who had no other estate or interest in 
 the lands beyond this mere power, be de- 
 prived of his inheritance." 
 
 Thus at the time of the passing of the stat- 
 ute of uses the conception of a will of lands 
 was that it operated as a declaration of uses, 
 taking effect at or after the testator's death, 
 and being subject to the same rules as regu- 
 lated the creation of uses by transactions op- 
 erating inter vivos. 
 
 Digby, Real Prop. c. 8, p. 380.— These char- 
 acteristics continued to attach to wills when, 
 by the legislation of Henry VIII. they became 
 recognised as a mode of disposing of the le- 
 gal interest in lands. Just as, before the 
 statute of Henry VIII. a will of lands had 
 been regarded as a declaration of a use, com- 
 ing into elfect upon the testator's death, but 
 speaking as from its date and dealing only 
 with tlie intei-est then intended to be con- 
 veyed; so, after those statutes, a will of 
 land operated as a conveyance, dealing with 
 the legal interest possessed by the testator 
 at the date of the will, and intended to be 
 disposed of, but coming into effect only at 
 his death, and being consequently subject to 
 revocation at any time before his deatli. 
 
 So, too, as there was no difference in the 
 power of creating interests in futuro by way 
 of use, whether the uses were declared by 
 will or raised inter vivos, when the power 
 of disposing of the legal estate was created 
 by statute, a testator might, without avail- 
 ing himself of the statute of uses, create 
 futm'e or executory interests by his will, 
 without being bound by the strict rules 
 of the common law limiting the power of 
 creating futm'e estates. For instance, a 
 devise to A in fee, but if he should not live 
 to attain the age of twenty-one then to B in 
 fee, or ten years after tlie testator's deatli 
 to C in fee, would be good and effectual." 
 These executory devises, as they are called, 
 are subject to exactly the same rules with 
 regard to the modes in which they can be 
 created, the rule against perpetuity, and 
 their liability to be construed if possible as 
 contingent remainders,''' as those governing 
 
 "Year Book, 9 Hen. VI. 24b. Babington: 
 "La nature de devis, ou terras soat devisables, 
 est, que on pent deviser que la terre sera vendu 
 par executors, et ceo est bon, come est rlit 
 adevant, et est marveilous ley de raison: mes 
 ceo est le nature il'un devis, et devise ad este 
 use tout temps en tiel forme; et issint on aura 
 loyalmeut fraiikteneiuent de cesty qui n'avoit 
 rien, et ep meme le maniere come on aura fire 
 from Hint, et uncore nul fire est deins le flint; 
 et ceo est pour performer le darrein volonte 
 de le devisor." * * * Paston: "Une devis 
 est marveilous en luy meme quand il pent 
 prendre efEect : car si on devise en Londres que 
 ses executors vendront ses terres, et devie 
 seisi; son heir est eins par descent, et uncore 
 par le vend des executors il sera ouste." Wil- 
 liams, Real Prop. p. 362. 
 
 " See, for the efEect of similar dispositions 
 inter vivos at common law, Digby, Real Prop; 
 c. 5. § 3, (2.) 
 
 '^ Except so far as the law is altered bv 40 
 & 41 "\'ict. c. 33. See Digby, Real Prop. p. SOU. 
 
 33 
 
§ 25 
 
 WJLLS. 
 
 (Ch. 
 
 springing and shifting uses, which have been 
 explained in the last chapter." 
 
 Dlgby, Keal Prop. c. 8, p. 381.— It was at 
 one time doubted whether the statute of uses 
 had any application to wills.'" For instance, 
 It was a question, if lands were devised to 
 B and his heirs to the use of for life, 
 whether C's life estate was executed by force 
 of the statute of uses, or whether it derived 
 its efficacy simply from the Intention of the 
 testator to create interests as if by the oper- 
 ation of that statute. It has however long 
 been settled that a devise to uses operates 
 under the statute in the same way and sub- 
 ject to the same rules as a conveyance to 
 uses. Whether this is by reason of the 
 force of the statute of uses, or by reason of 
 the intention of the testator to dispose of the 
 lauds as if the statute of uses really oper- 
 ated, is a question of some metaphysical 
 nicety, but of no practical importance. 
 
 The rules as to the construction of wills 
 form one of the most intricate and least sat- 
 isfactory portions of the modern law of real 
 property. The subject is far too complex to 
 be discussed at length in a treatise lilie the 
 present. Starting with, the general principle 
 that the object is to ascertain the intention 
 of the testator to be gathered from the whole 
 will, and having regard to the fact that 
 wills, far more frequently than formal deeds 
 operating inter vivos, are often the composi- 
 tion of persons who have no legal linowl- 
 edge, and sometimes little or no education, 
 the courts of law and equity have never ap- 
 plied the same strict and technical rules of 
 construction to the language of wills as has 
 been the case in regard to deeds. Thus, for 
 instance, expressions in a will are held to 
 be sufficient to create an estate in fee or in 
 tail which would be insufficient in a deed." 
 However, in applying the general principle, 
 a vast number of subordinate rules have 
 grown up, which have frequently in particu- 
 lar cases had the effect of defeating instead 
 of furthering the intention of the testator. 
 
 For instance, in a will a devise to A and 
 his issue is held, in accordance with the gen- 
 eral principle, to be sufficient to give to A 
 an estate tail. These words would not be 
 sufficient for the purpose In a deed; there 
 distinct words both of procreation and of in- 
 heritance are necessary." Following out the 
 application of the general rule, it was held 
 that a devise to A for life, and 'in case he 
 die without issue to B,' gives by implication 
 an estate tail to A." The qualities of an 
 
 " See Append, pt. 1, table 3. 
 
 "See 2 Jarrn. Wills, p. 268. 
 
 '" See instances in 2 Bl. Comm. 381. 
 
 "Digby, Real Prop. p. 274. As to the stat- 
 utory substitution of the words "in fee" or "in 
 i ,,^ I?."" *^^ common-law expressions, see 44 
 & 45 Vict. c. 41, § 51. 
 
 • ""^^^?, follows from the principle laid down 
 in bhelleys Case (see above, p. 267). These 
 words were held not to mean that the land was 
 to go to B. in case of A.'s death without leav- 
 ing issue living at his decease, but to imply a 
 34 
 
 estate tail therefore at once attached to sucb 
 a gift by will, and A might at once convert 
 his estate into a fee simple and so bar B's- 
 remainder, and all other interests subsequent 
 to his own. So common was this mistake, 
 and so grievous the injustice wrought by 
 this construction, that it was provided by 
 the wills act that the words 'If A shall die- 
 without issue' and like expressions should be- 
 construed to apply to the event of A's death 
 without leaving issue living at his decease,, 
 and that such words should not, taken aloner 
 be sufficient to create an estate tall."" 
 
 Digby, Real Prop. c. 8, p. 382.— One of the 
 commonest errors in a will made by ignorant 
 persons was to give an estate in lands to a 
 person without adding words of inheritance 
 or any expression to show that It was intend- 
 ed that the devisee should take more than 
 a life estate. Though the courts eagerly 
 seized on any expressions evidencing this in- 
 tention, and permitted estates in fee to be- 
 created by words which would have been 
 totally Insufficient for the purpose in a deed,, 
 it remained an Inflexible rule that if lands 
 were given to A simply, without the addi- 
 tion of any words from which an intention 
 to give the fee could be gathered, A would 
 take only a life estate.™ The wills act pro- 
 vided that such a gift should bear the con- 
 struction which every person uninstructed in 
 the law would naturally have placed upon 
 it, and words of Inheritance are no longer 
 In a win necessary to pass the fee simple.^' 
 
 Digby, Real Prop. c. 8, p. 383.— Other Im- 
 portant alterations were effected In the op- 
 eration and construction of wills by the 
 same act. The most Important of these- 
 were the following. It has been seen that 
 the original conception of a will of lands: 
 was that It operated as a present convey- 
 ance to take effect at a futui-e time.=' It 
 followed that if a man devised all his lands,, 
 the will applied only to those lands which 
 were his at the date of the will, and did not 
 affect after-pm-chased lands. This would be- 
 the case even if he sold and re-purchased 
 lands which he owned at the date of the 
 will.'^ By the wills act It Is now provided,-' 
 that every will shall be construed with refer- 
 ence to the property comprised In It 'to 
 speak and take effect as If it had been exe- 
 cuted immediately before the death of the 
 testator, unless a contrary intention shall ap- 
 pear by the wIU.' As the law at present 
 
 gift to A. and his issue, with remainder to B. 
 in the event of the failure of A.'s issue, wheth- 
 er such failure took place in A.'s lifetime or 
 after his decease. Such a gift, therefore, im- 
 plied an estate tail vested in A. Digby, Real 
 Prop. c. 8, p. 382. 
 
 " 7 Wm. I~\-. and 1 Vict. c. 26. 5 29. 
 
 '" The rule is laid down in the "Kear Book, 22" 
 Edw. III. p. 16, par. 59. • 
 
 "' 7 Wm. IV. and 1 Viet. c. 26, § 28. 
 
 " Digby, Real Prop. p. 879. 
 
 ^ See, for an early instance of this, Yeai- 
 Book, 44 Edw. III. p. 33. 
 
 =*7 Wm. IV. and 1 Vict. c. 26, § 24. 
 
Cb. 3) 
 
 WILLS. 
 
 §§ 25-26 
 
 stauds, therefore, a devise of 'all my lands' 
 will convey to tlie devisee not only all the 
 lands which the testator has at the time of 
 the will, but all which he may have acquired 
 subsequently, and which he retains at the 
 time of his death. A corollary to this rule 
 is, that in the event of the death, in the life- 
 time of the testator, of any person to whom 
 lands have been specifically devised, if the 
 will contains a devise of the residue of the 
 lands to any other person, such person shall 
 taJie as part of the residue the lands so spe- 
 cifically devised, which would otherwise have 
 lapsed, and gone to the heir at law.''' 
 
 As a general rule, if the devisee dies in the 
 lifetime of the testator, though the devise 
 may have been expressed to be made to him 
 and his heirs, or to him and the heirs of his 
 body, the devise lapses, or fails to take ef- 
 fect. This rule is altered by the wills act in 
 two cases. Where there is a devise creating 
 an estate tail, for example to A and the heirs 
 of his body, and the devisee in tail dies, 
 leaving issue surviving the testator, who 
 would be inheritable under the entail, the 
 devise is not to lapse, but to take effect as if 
 the devisee had died immediately after the 
 testator.'^'' Further, if a devise of an interest 
 in lands not terminable at or before the death 
 of the devisee be made in favovu" of a child or 
 other issue of the testator who dies in the 
 testator's lifetime leaving issue, and if any 
 such issue sm-vive the testator, the devise is 
 not to lapse, but is to 'take effect as if the 
 death of such person had happened imme- 
 diately after the death of the testator.' ^' 
 
 Digby, Real Prop. c. 8, p. 384.— Again, un- 
 der the older law a devise to a man's heir at 
 law, giving him no estate different from that 
 which he would have taken by descent, was 
 inoperative; in other words, the title of the 
 heir at law rested on descent and not on the 
 will,, no doubt because otherwise the lord 
 would have lost his relief, wardship, and 
 marriage. This rule was reversed by the 
 act to amend the law of inheritance.^ 
 
 Amongst other consequences of treating a 
 will of lands as a conveyance to the devisee 
 of the particular lands comprised in and 
 dealt with by the will, one of the most im- 
 portant was that no liability attached to the 
 lands in the hands of the devisee for the 
 debts of the devisor. The history of the 
 liability of the heir for the debts of his an- 
 cestor has been already noticed.^ By the 
 statute of fraudulent devises,™ a tenant in 
 fee was prevented from defeating creditors, 
 who held securities by which the heirs were 
 bound, by devising his lands, and the devisee 
 was made liable, equally with the heir, for 
 
 =" Id. § 25. 
 
 '" Id. § 32, 
 
 "Id. § 33. 
 
 =«3 & 4 Wm. IV. c. 106, § 3. 
 
 =• Digby, Keal Prop. p. 281. 
 
 '° 3 & 4 W. & M. c. 14, repealed, and as to 
 this matter re-enacted by 11 Geo. IV. and 1 
 Wm. I'S'. c. 47. 
 
 su£h debts; and the legislation noticed 
 above,^' providing for the administration of 
 the real as well as personal estate of de- 
 ceased debtors, applies equally to the dev- 
 isee and the heir. 
 
 Digby, Real Prop. c. 8, p. 385.— All disposi- 
 tions by will are revocable and subject to al- 
 teration by the testator at any time before 
 his death. 
 
 32 Hen. VIII. c. 1, §§ 1-3. (Statute No. 11, 
 post.) 
 
 34 & 35 Hen. VIII. c. 5, §§ 1-4, 14. (Statute 
 No. 12, post.) 
 
 29 Car. II. c. 3, §§ 5, 6, 12, 19-24. (Statute 
 No. 15, post.) 
 
 25 Geo. II. c. 6. (Statute No. 21, post.) 
 
 § 86. Form of Will— In General. 
 
 Shep. Touch. 399.— A testament is the full 
 and complete declaration of a man's mind or 
 last will of that he would have to be done 
 after his death; it is in Latin testamentum, 
 i. e. testatio mentis, the witness of a man's 
 mind; and to devise by testament, is to 
 speak by a man's wiU what his mind is, to 
 have done after his death; and this is some- 
 times called a will or last will; for these 
 words are synonima, and are as it seems 
 promiscuously used in our law; howsoever, 
 by the civil law it is then only said to be a 
 testament, when there is an executor made 
 and named in it: and when there is none, 
 but a codicil only; for a codicil is the same 
 that a testament is, but that it is without 
 an executor; and a man can make but one 
 testament that shall take effect, but he may 
 make as many codicils as he will. And by 
 the common law where lands or tenements 
 are devised in writing, albeit there be no 
 executor named, yet there it is properly 
 called a last will, and where it doth concern 
 chattels only, a testament. He that doth 
 make a testament is called the testator; and 
 when a man dieth without will, he is said to 
 die intestate. 
 
 Of testaments there be two sorts, namely, 
 a testament in writing, or a written testa- 
 ment; which is, where the mind of the tes- 
 tator in his life-time, by himself or some 
 other by his appointment, is put in writing; 
 and a testament by word, or without writing, 
 which is, where a man is sick, and for fear 
 lest death or want of memory or speech 
 should surprise him, that he should be pre- 
 vented if he stayed the writing of his testa- 
 ment, desireth his neighbours and friends to 
 bear witness of his last will, and then de- 
 clareth the same presently by word before 
 them; and this is called a nuncupative, or a 
 nuncupatory testament; and this being after 
 his death proved by witnesses, and put in 
 writing by the ordinary, is of as great force 
 for any other thing but land, as when at the 
 first in the life of the testator it is put in 
 writing. A codicil also is in writing, or by 
 word, as a testament is; the civilians have 
 
 " Digby. Real Prop. D. 282. 
 
 35 
 
§ 26 
 
 WILLS. 
 
 (,Ch, 3 
 
 other divisions of wills and testaments,, as 
 solemn and unsolemn, privileged and unprivi- 
 leged, whereof the common law maketh no 
 mention. 
 
 The parts of every complete testament 
 whereof it doth consist, are two: 1. The 
 making of devises, or giving of legacies. 2. 
 The making and ordination of an executor; 
 for a testament can be no more without, 
 than a codicil can be with, an executor. 
 
 Shep. Touch. 400.— A devise, or legacy, is 
 where a man in his testament doth give any- 
 thing to another; the first of these terms is 
 properly applied to the gift of lands, and the 
 last to the gift of goods or chattels: and 
 therefore a devise strictly is said to be where 
 a man in his testament doth give his lands 
 to another after his decease; and a legacy is 
 said to be where a man in his testament doth 
 give any chattel to another to have after the 
 death of the testator; but the word is pro- 
 miscuously applied to the one and to the 
 other. And he that gives by such a will, is 
 called the devisor, and he to whom the thing 
 is given, the devisee, or legatee. 
 
 And a devise is sometimes simple and with- 
 out condition; as where I give my land to 
 another and his heirs, or I give £20 to an- 
 other, without more words. And sometimes 
 it is with a condition; which is, when there 
 is a quality added to the devise or legacy, 
 whereby the effect of it is suspended or hin- 
 dered, and it is thereby made to depend on 
 some future event. And this condition, in 
 this case, may be made almost by any words; 
 as if I give to one my land, if he pay £20 to 
 my daughter; or so as he pay £20 to my 
 daugliter; or paying' £20 to my daughter; or 
 I give one £20 if he marry my daughter; or 
 when he shall marry my daughter; or I give 
 my wife £20 a' year, whilst she shall live un- 
 married; or I give to him whosoever shall 
 marry my daughter £20 or the like; in all 
 these cases the devise is conditional. Tlie 
 first kind of devise is called by the civilians 
 a simple assignation, and the latter a con- 
 ditional assignation. 
 
 Shep. Touch. 401.— A testament is of that 
 nature, that it doth much differ from other 
 acts and deeds, that men do and execute 
 in their life-times: for albeit it be made, 
 sealed, and published in ever so solemn a 
 maimer, yet it hath no life nor virtue in it 
 until the testator's death: for it is a maxim 
 in law, "omne testamentum morte consum- 
 matum est; et voluntas est ambulatorio 
 usque ad extremum vitae exitum;" it is there- 
 fore resembled until death to the interlocu- 
 tory sentence, and after death to the defini- 
 tive sentence, of a judge. And hence it is 
 said, "Sed legum servanda fides, snprema 
 voluntas. Quodmandat, fierique jubet parere 
 necesse est." And for this cause a man 
 may alter or make void his will at his pleas- 
 ure; and he may make as many new wills 
 and testaments as he will; and there are 
 no means under the sun to bar a man of 
 this libei-ty. And the latter testament doth 
 30. 
 
 always revoke and overthrow the former; 
 but otherwise it is if a codicil; for a man 
 may make as many of these as he will, and 
 make no testament at all; or if he make a 
 testament he may afterwards make as many 
 codicils as he will, and one of them wiU not 
 overthrow the other; for in the first case 
 they must be all annexed to the letters of 
 administration: and the administrator must 
 perform them; and in the latter case they 
 must be all annexed to the testament, and 
 the executor must take care to perform them. 
 A testament therefore is said to have three 
 degrees: 1. An inception, which is the mak- 
 ing of it. 2. A progression, which is the 
 publication of it. 3. A consummation, whicli 
 is the death of the testator. In grants, 
 therefore, the first is of greatest force, but in 
 testaments, the last is of greatest force. But 
 when a testament is perfect by the death of 
 the party, it doth as effectually give and 
 transfer estates, and alter the property of 
 lands and goods, as acts executed by deeds 
 in the life-time of the parties; and a man 
 may make estates in fee-simple, fee-tail, for 
 life, or years, of lands, tenements, rents, re- 
 versions or services, as effectually by testa- 
 ment, as by deed; and these estates also 
 will be good without any livery of seisin or 
 attornment. And hereby, also, rents, and 
 power to distrain for them, may be trans- 
 ferred; conditions created and annexed to 
 estates, or to things devised. And therefore 
 they that take by devises of lands, are said 
 to take in the nature of purchasers. And if 
 therefore a tenant in tail make a feoffment 
 to the use of himself in fee, and after devise 
 the same land to his wife in fee, and die; 
 the son is not remitted, though the father die 
 seised; for the devise both prevent the de- 
 scent. 
 
 Shep. Touch. 406.— The fourth thing re- 
 quired in the making of a good testament is, 
 that the form and order that the law' pre- 
 scribeth, be observed in the disposition: and 
 therefore, 1. That there be an executor 
 named in all testaments of goods and chat- 
 tels, and that that executor named be capa- 
 ble of the executorship; for this is said to 
 be the head and foundation of the testa- 
 ment: for if there be never so many leg- 
 acies given, and no executor made, this dis- 
 position is but a codicil, and cannot propei'ly 
 be called a testament: foi- in this case the 
 party dead is said to die intestate, and the 
 administration of his goods must be granted 
 to the widow, or next of kin; whereas, on 
 the other side, if an executor be appointed, 
 albeit there be no legacy given, yet this dis- 
 position is, and is properly said to be, a tes- 
 tament. 2. If the testament be of lands or 
 tenements, it must be in writing, and it 
 must be committed to writing at the time 
 of the making thereof: and it is not suffi- 
 cient that it be put in writing after the 
 death of the testator, being first made by 
 word of mouth only, for then it is but 
 nuncupative still. But if the testament be 
 
Ch. 3) 
 
 WILLS. 
 
 § 26 
 
 first made by word of mouth, and be after- 
 wards written, and then brought to the tes- 
 tator, and he approve it for his testament; 
 or if the testators when he doth declare his 
 mind, doth appoint that the same shall be 
 written, and thereupon the same is written 
 accordingly in the life- time of the testator; 
 these are good testaments of land, and as 
 Eood as if they were written at the first. 
 If therefore one be very sick, and another 
 come to him, and ask him whether his wife 
 shall have his land, and he say yea, and 
 a clerk being present doth put this in writ- 
 ing, without any precedent commandment or 
 subsequent allowance of the sick man; this 
 is no good testament of the land. So if 
 one declare his whole mind before wit- 
 nesses, and send for a notary to write it, 
 and die before he come, and he write it 
 after his death; this is no good testament 
 for his laud, but a good nuncupative will 
 for his goods and chattels, except he de- 
 clare his mind to be, that it shall not be his 
 will unless it be put in writing, for then 
 perhaps it may not be a good will for his 
 goods and chattels. So if he that doth write 
 the will cannot hear the party speak, and 
 another that stands by the sick man doth 
 tell him what he doth say; in this case, if 
 there be none others present, to prove that 
 he reported the very words of the sick man, 
 this will be no good testament of the land. 
 But if a notary take direction from a sick 
 man for his will, and after go away and 
 write it, and then doth bring it again and 
 read it to the testator, and he approve it; 
 or if it be written from his mouth by the 
 notary according to his mind, and his mind 
 were to have it written, albeit it be not 
 showed or read to him afterwards; these 
 are good testaments. So if the notary do 
 only take certain rude notes or directions 
 from the sick man which he doth agree un- 
 to, and they be afterwards written fair in 
 his life-time, and not showed to him again, 
 or not written fair until after his death; 
 these are good testaments of lands. If a 
 sick man bid the notary make a testament of 
 his lands, but doth not tell him how, and 
 the notary make a devise of it after his own 
 mind; this is no good testament: and yet if 
 it be after read unto, and approved by the 
 testator, it may be good. And so if a testa- 
 ment be foimd written in the testator's 
 house, and not known by whom, and it be 
 read unto and approved by the testator; this 
 is not a good testament in writing for lands 
 and goods. 3. Uses of lands, before the stat- 
 ute of uses, might, and lands and tenements 
 devisable by custom, and goods and chattels 
 may be disposed by word without writing, 
 and such testaments of such things so made 
 are good. 4. It is not material in what 
 matter or stuff, whether in paper or parch- 
 ment, nor in what language, whether in 
 Latin, French, or any other tongue, nor in 
 what hands or letters, whether in secretary 
 hand, Roman hand, or court hand, or in 
 any other hand, a testament be written, so 
 
 it be fair and legible that it may be read 
 and understood; neither is it material 
 whether the same be written at large, or by 
 notes, or characters usual or unusual, as xx° 
 for twenty shillings, or when the flgm-e is 
 used instead of the letter A. if it be usual 
 in the testator's writing, or the like; for the 
 testament is good notwithst-anding. So also 
 if some words be omitted, or sentences im- 
 proper used, when the intent and meaning 
 is apparent: as where a man saith, [I make 
 my wife of this my last will and testament,] 
 leaving out the word [executrix,] yet the 
 testament is good, and this shall be imder- 
 stood; but if it be so done as it cannot be 
 read, or by reading, the mind of the testator 
 cannot be known, then is the testament void 
 and of no force. In the like manner as a 
 nuncupative will is, when the words spoken 
 are so ambiguous, obscure and uucertain, 
 that thereby the meaning of the testator 
 cannot be known nor understood. 5. Where 
 writing is needful (as in the case of disposi- 
 tion of land it is,) there sealing of the testa- 
 ment, or subscribing of the testator's name, 
 is not necessary. And therefore if a man 
 by himself, or another, do make a testament 
 of his land, and do not put his seal or name 
 to it, if he agree to it; this is a sufflLient tes- 
 tament. 6. If whilst the testator is making 
 his will, and whilst he intended to proceed 
 furtlier at that time, either by adding, dimin- 
 ishing, or altering, he be suddenly sti'icken 
 with sickness, or insanity of mind, whereby 
 he cannot proceed, but gives it over in the 
 midst and so he die; it seems, in this case, 
 the whole will is void. And yet if a man 
 begin his will, and make perfect devises to 
 one, and then of himself give over until an- 
 other time; or if a man make a perfect de- 
 vise to one, and then die before he can 
 make any devise to any others; it seems 
 these are good testaments for as much as 
 is done. And therefore it is said, if one com- 
 mand another to make his will, and by it to 
 devise white acre to I. S. and his heirs, and 
 black acre to I. N. and his heirs, and he 
 write the devise to I. S. and his heirs, and 
 the testator die before he can write the de- 
 vise to I. N. and his heirs; this is a good de- 
 vise to I. S. but a void devise to I. N. and 
 his heirs. But if a man bid the notary write 
 a devise of his land to I. S. upon condition, 
 and the notary write a devise to 1. S. but the 
 testator dieth before he can write the condi- 
 tion; in this case the whole devise is void. 
 But a man may if he please make a testa- 
 ment of part of his goods, and die intestate 
 for the rest, and that disposition he doth 
 make is good for so much. 
 
 2 Bl. Comm. 376.— With regard to devises 
 in general, experience soon showed how 
 difficult and hazardous a thing it is, even in 
 matters of public utility, to depart from the 
 rules of the common law; which are so 
 nicely constructed and so artificially connect- 
 ed together, that the least breach in any one 
 of them disorders for a time the textm-e of 
 the whole. Innumerable frauds and per- 
 
 37 
 
26 
 
 WILLS. 
 
 (Ch. 3 
 
 jm-ies were quickly inti'oduced by this par- 
 liamentai-y metliod of Inlierltance, for so loose 
 was the consti-uction made upon this act by 
 the courts of law, that bare notes in the hand- 
 writing of anotlier person were allowed to 
 be good wills within the statute. To remedy 
 which, the statute of frauds and perjuries, 
 29 Car. II. c. .3, directs, that all devises of 
 lands and tenements shall not only be in 
 writing, but signed by the testator, or some 
 other person in his presence, and by his ex- 
 press direction; and be subscribed, in his 
 presence, by three or four credible witnesses. 
 2 Bl. Comm. 377.— In the consti-uction of 
 this last statute, it has been adjudged that 
 the testator's name, written with his own 
 hand, at the beginning of his will, as, "I 
 John Mills, do make this my last will and 
 testament," is a sufficient signing, without 
 any name at the bottom; though the other 
 is a safer way. 
 
 2 Bl. Comm. 378.— A will of lands, made 
 by the permission and under the control of 
 these statutes, is considered by the courts 
 of law not so much in the nature of a tes- 
 tament, as of a conveyance declaring the 
 uses to which the land shall be subject: 
 with this difference, that in other convey- 
 ances the actual subscription of the wit- 
 nesses is not required by law, though it is 
 prudent for them so to do, in order to assist 
 their memoi-y Avhen living, and to supply 
 their evidence when dead; but in devises of 
 lands such subscription is now absolutely 
 necessary by statute, in order to identify a 
 conveyance which in its natm'e can never be 
 set up till after the death of the devisor. 
 And upon this notion, that a devise affecting 
 lauds is merely a species of conveyance, is 
 founded this distinction between such de- 
 vises and testaments of personal chattels; 
 that the latter will operate upon whatever 
 the testator dies possessed of, the former 
 only upon such real estates as were his at 
 the time of executing and publishing his will. 
 Wherefore no after-purchased lands will pass 
 under such devise, unless, subsequent to the 
 purchase or contract, the devisor republishes 
 his will. 
 
 2 Bl. Comm. 409.— Let us next, thirdly, con- 
 sider what this last will and testament is, 
 which almost every one is thus at liberty to 
 make; or, what are the nature and incidents 
 of a testament. Testaments, both Justinian 
 and Sir Edward Coke agree to be so called, 
 because they are testatio mentis : an etymon 
 which seems to savour too much of the con- 
 ceit; it being plainly a substantive derived 
 from the verb testari, in like manner as jura- 
 mentum, incrementum, and others, from oth- 
 er verbs. The definition of the old Roman 
 lawyers is much better than their etymology ; 
 "voluntatis nostrae justa sententia de eo, 
 quod quis post mortem suam fieri vellt:" 
 which may be thus rendered into English, 
 "the legal declaration of a man's intentions, 
 Avhich he wills to be performed after his 
 death." It is called sententia, to denote the 
 circumspection and prudence with which it is 
 88 
 
 supposed to be made: It is voluntatis nostrae 
 sententia, because its efficacy depends on its 
 declaring the testator's intention; whence in 
 England it is emphatically styled his will: 
 it is justa sententia; that is, drawn, attested, 
 and published, with all due solemnities and 
 forms of law. It is de eo, quod quis post 
 mortem suam fieri velit, because a testament 
 is of no force until after the death of the tes- 
 tator. > 
 
 2 Bl. Comm. 500.— These testaments are di- 
 vided into two sorts: written, and verbal or 
 nuncupative, of which the former Is com- 
 mitted to writing; the latter depends merely 
 upon oral evidence, being declared by the 
 testator in extremis before a sufficient num- 
 ber of witnesses, and afterwards reduced to 
 writing. A codicil, codicillus, a little book 
 or writing, is a supplement to a will, or an 
 addition made by the testator and annexed 
 to, and to be taken as part of, a testament; 
 being for its explanation, or alteration, or to 
 make some addition to, or else some sub- 
 traction from, the former dispositions of the 
 testator. This may also be either written 
 or nuncupative. 
 
 But, as nuncupative wills and codicils 
 (which were formerly more in use than at 
 present, when the art of writing is become 
 more universal) are liable to great imposi- 
 tions, and may occasion many perjuries, the 
 statute of frauds, 29 Car. II. c. 3, hath laid 
 them under many restrictions; except when 
 made by mariners at sea, and soldiers in ac- 
 tual service. As to all other persons, it en- 
 acts: 1. That no written will shall be re- 
 voked or altered by a subsequent nuncupa- 
 tive one, except the same 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 statute 4 Anne, c. 16. must be such as are 
 admissible upon trials at common law. 2. 
 That no nuncupative will shall in any wise 
 be good, where the estate bequeathed exceeds 
 £30, unless proved by three such witnesses, 
 present at the making thereof (the Roman 
 law requiring seven), and unless they or 
 some of them 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 the least, except he be surprised 
 with sickness on a jom-ney, or from home, 
 and dies without returning to his dwelling. 
 3. That no nuncupative will shall be proved 
 by the witnesses after six mouths from the 
 making, unless It were put in writing within 
 six ^ays. Nor shall it be proved till four- 
 teen days after the death of the testator, 
 nor till process hath first issued to call in 
 the widow, or next of kin, to contest it, if 
 they think proper. Thus hath the legisla- 
 ture provided against any frauds in setting 
 up nuncupative wills, by so numerous a 
 train of requisites, that the thing itself has 
 fallen into disuse; and is hardly ever heard 
 
•Ch. 3) 
 
 WILLS. 
 
 §§ -6-37 
 
 of, but In the only instance where favour 
 ought to be shown to it, when the testator is 
 surprised by sudden and violent sickness. 
 The testamentary words must be spoken 
 with an intent to bequeath, not any loose, 
 Idle discourse in his illness; for he must re- 
 quire the by-standers to bear witness of such 
 bis intention: the will must be made at 
 home, or among his family or friends, unless 
 by unavoidable accidents; tQ prevent impo- 
 sitions from sti'angers: it must be in his 
 last sickness; for, if he recovers he may 
 alter his dispositions, and has time to makQ 
 :a written will: it must not be proved at too 
 long a distance from the testator's death, 
 lest the words should escape the memory of 
 the witnesses; nor yet too hastily and Avitli- 
 out notice, lest the family of the testator 
 should be put to inconvenience, or surprised. 
 
 2 Bl. Comm. 501.— As to written wills, they 
 need not any witness of their publication. 
 I speak not here of devises of lands, which 
 are quite of a different nature; being con- 
 veyances by statute, unknown to the feudal 
 or common law, and not under the same ju- 
 risdiction as personal testhments. But a 
 testament of chattels, written in the testa- 
 tor's own hand, though it has neither his 
 name nor seal to it, nor witnesses present at 
 its publication, is good; provided sufficient 
 proof can be had that it is his handwriting. 
 And though written in another man's hand, 
 jind never signed by the testator, yet, if 
 proved to be according to his instructions 
 and approved by him, it hath been held a 
 good testament of the personal estate. Yet 
 it is the safer and more prudent way, and 
 leaves less in the breast of the ecclesiastical 
 Judge, if it be signed or sealed by the testa- 
 tor, and published in the presence of wit- 
 nesses: which last was always required in 
 the time of Bracton; or, rather he in this re- 
 spect has implicitly copied the rule of the 
 civil law. 
 
 Shep. Touch. 432.— And as touching the 
 rest of the properties of a good devise, see 
 them before in the properties of a good testa- 
 ment: and hereby the way, be advised if 
 thou hast land to settle, rather to do it by 
 act executed by advice of learned counsel in 
 thy life and health time, and therein add 
 such conditions and provisoes or revocation 
 and otherwise as thou wilt; or if thou wilt 
 do it by will, then do it in thy perfect mem- 
 ory, and by learned advice: let the wiil be 
 indented and of two parts, and leave one pan 
 with a friend, that It be not suppressed after 
 thy death: let there be credible witnesses to 
 the publication thereof, and let their names 
 be subscribed to it: let the whole be written 
 with one hand and in one piece of paper, or 
 I)archment, for fear of alteration, addition, 
 or diminution: let the hand and seal of the 
 devisor be set to it: and if it be in several 
 parts, let his hand and seal, and the hands 
 of the witnesses be to every pai-t; if there 
 be any raising or interlining, let there be a 
 memorandum of it. And if thou make any 
 revocation of thy will, do it by good advice 
 
 and by writing; "vox audita perlt, litera 
 scripta manet." 
 
 Leg. Reg. Hen. I. I. (Statute No. 1, post.) 
 
 27 Hen. VHI. c. 10, § 11. (Statute No. 10, 
 post.) 
 
 34 i& 35 Hen. VHI. c. 5. (Statute No. 12, 
 post.) 
 
 29 Car. II. c. 3, §§ 5, 19. (Statute No. 15, 
 post.) 
 
 7 Wm. IV. and 1 Vict. c. 26, §§ 9, 11. (Stat- 
 ute No. 24. post.) 
 
 § 27. Oral Wills— Before Statute 
 of Frauds, S9 Car. II. 
 
 PRINCE V. HAZLETON, Case No. 71, post. 
 
 § 28. Same— After Statute of 
 Frauds, 29 Car. II. 
 
 See Nuncupative Wills, post, § 59. 
 
 § 29. Written Wills— Personal 
 Property. 
 
 BARTHOLOMEW v. HENLEY, Case No. 
 30, post. 
 
 NATHAN V. MORSE, Case No. 31, post. 
 
 JORDAN. IN THE GOODS OP, Case No. 
 32, post. 
 
 § 30. Same — Real Property — After 
 
 the Statute of Wills, 32 
 
 Hen. VIII. 
 
 BROWN V. SACKVILLE, Case No. 33, post. 
 NASH V. EDMUNDS, Case No. 34, post. 
 
 § 31. Same — After Statute of 
 Frauds, 29 Car. II. 
 
 STONEHOUSE v. EVELYN, Case No. 35, 
 post. 
 
 § 32. Holographic Wills. 
 
 IN RE BILLINGS' ESTATE, Case No. 36, 
 post. 
 
 § 33. Ambiguous Writing. 
 
 THOROLD V. THOROLD, Case No. 37, 
 post. 
 
 COVER T. STEM, Case No. 38, post. 
 
 ROBINSON V. BREWSTER, Case No. 76, 
 post. 
 
 § 34. Conditional Wills. 
 
 DAMON V. DAMON, Case No. 39, post. 
 
 § 35. Incorporation by Reference. 
 
 IN RE KEHOE, Case No. 40, post. 
 
 § 36. Joint and Mutual Wills. 
 
 BETTS V. HARPER, Case No. 41, post. 
 SCHUilAKER V. SCHMIDT, Case No. 42, 
 post. 
 
 § 37. Contracts to Make Wills. 
 
 WELLINGTON v. APTHORP, Case No. 
 43, post. 
 
 39 
 
§ 3« 
 
 WILLS. 
 
 (Ch. 4 
 
 CHAPTER IV. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER— WILLS, (Continued.) 
 
 38. 
 
 39. 
 
 40. 
 
 ■41. 
 
 42. 
 
 42a, 
 
 42b, 
 
 48. 
 
 44. 
 45. 
 4G. 
 47. 
 48. 
 49. 
 50. 
 51. 
 52. 
 
 53. 
 54. 
 55. 
 
 Capacity to Make a Will— In General. 
 Infants. 
 Married Women— Under Power. 
 
 Of Separate Property. 
 
 With Consent of Husband. 
 Aliens. 
 Criminals. 
 
 Incapacity from Mental or Physical 
 Infirmity— Relation of the Infirmi- 
 ty to the Will. 
 
 Partial Insanity. 
 
 Delusions. 
 
 Test of Mental Incapacity. 
 
 Lucid Intervals. 
 
 Drunkenness. 
 
 Old Age. 
 
 Deaf and Dumb Persons. 
 
 Blind Persons. 
 Undue Influence, Fraud, and Mis- 
 take — ^In General. 
 
 Undue Influence. 
 
 Fraud. 
 
 Mistake. 
 
 § 38. Capacity to Make a Will — 
 In General. 
 
 Shep. Touch. 402.— To the making of every 
 Koocl testament, these things are requisite: 
 
 1. That the testator be a person able to 
 make a testament, and not disabled lor any 
 special cause, either in respect of his person, 
 mind, or condition, or In respect of the thing 
 whereof the testament is to be made. And 
 for this it must be known: that a woman 
 that hath a husband cannot make a testa- 
 ment of her lands or goods, except it be in 
 some special cases: for of her lands she can 
 make no testament, either with or without 
 her husband's consent; of the goods and 
 chattels she hath as executrix, to any otner, 
 she may make an executor without her hus- 
 band's consent; lor if she do not so, the ad- 
 ministration of them must be granted to the 
 next of kin to the deceased testator, and 
 shall not go to the husband; but of them she 
 can make no devise, either with or without 
 her husband's leave, for they are not devisa- 
 ble; and if she do devise them, the devise 
 is void. And of the things due to the wile, 
 whereof she was not possessed during the 
 marriage, as things in action, and the like, 
 it seems she may make her testament; at 
 least she may make her husband executor 
 of her paraphernalia, viz. her necessary vsrear- 
 ing apparel, being that which is fit for one 
 of her ratik: some say she may make a tes- 
 tament without her husband's leave; others 
 doubt of this; howbeit, all agree that she and 
 not his executor, shall have this alter her 
 husband's death, and that the husband can- 
 not give it away from her. And of the 
 40 
 
 goods and chattels her husband hath, either 
 by her or otherwise, she may not make a tes- 
 tament, withomt the license and consent of 
 her husband first had so to do. But with 
 his leave and consent she may make a tes- 
 itament of his goods, and make him her exec- 
 utor if she will. And it is said also, that if 
 she do make a testament of his goods, (in 
 truth, without his leave and consent,) and he 
 after her death sufEer the will to be proved, 
 and deliver the goods accordingly; in this 
 case the testament is good. And yet if tha 
 husband give his wife leave to make a testa- 
 ment of his goods, and she do so, he may re- 
 voke the same at any time in her lile-time, 
 or after her death before the will be proved. 
 But a woman after contract with any man, 
 may before the marriage make a testament 
 as well as any other, and is not at all dis- 
 abled hereby. 
 
 Shep. Touch. 403.— An Infant, until he be 
 of the age of twenty-one years, can make no 
 testament of his lands by statutes of 34 & 
 35 Hen. VIII. But by special custom in 
 some places, where land is devisable by cus- 
 tom, he may devise it sooner. And of his 
 goods and chattels, if he be a boy, he may 
 make a testament at fourteen yeare of age, 
 and not before; and if a maid, at twelve 
 years of age, and not before; and then they 
 may do it without and against the consent of 
 their tutor, father, or guardian. And yet 
 some say an infant cannot make a testament 
 of his goods and chattels until he be eighteen 
 years of age. A mad or lunatic person, dm'- 
 ing the time of his insanity of mind, cannot 
 make a testament of lands or goods; but 
 such a one as hath his lucida intervalla, clear 
 or calm intermissions, may dtu'ing the time 
 of such quietness and freedom of mind make 
 his testament, and it will be good. So also 
 an idiot, i. e. such a one as cannot number 
 twenty, or tell what age he is, or the lUve, 
 cannot make a testament, or dispose of his 
 lands or goods; and albeit he do make a 
 wise, reasonable, and sensible testament, yet 
 is the testament void. But such a one as 
 is of a mean understanding only, that hath 
 grossum caput, and is of the middle sort be- 
 tween a wise man and a fool, is not prohib- 
 ited to make a testament. So also an old 
 man, that by reason of his great age Is chUd- 
 ish again, or so forgetful that he doth forget 
 his own name, cannot make a testament; for 
 a testament made by such a one is void. 
 So also it seems a drunken man, that is so 
 excessively drunk, that he is deprived of the 
 use of reason and understanding during that 
 time, may not make a testament; lor it is 
 requisite, when the testator doth make his 
 will, that he be of sound and perlect mem- 
 
Ch. 4) 
 
 WILLS. 
 
 § 38 
 
 ory, i. e. that he have a reasonable memory 
 and understanding to dispose of his estate 
 with reason. A man that is both deaf and 
 dumb, and that is so by nature, cannot make 
 a testament. But a man that is so by acci- 
 dent, may by writing or signs make a testa- 
 ment. And so may a man that is deaf or 
 dumb by nature or accident. And so also 
 may a man that is blind. An alien born can- 
 not make a testament of lands or goods. A 
 man that is entered into religion, cannot 
 make a testament. A traitor attainted, from 
 the time of the treason committed, can make 
 no testament of his lands or goods; for they 
 are all forfeit to the king: but after the time 
 he hath a pardon from the king for his of- 
 fence, he may make a testament of his lands 
 or goods as another man. A man that is 
 attainted or convict of felony cannot make 
 a testament of his lands or goods, for they 
 are forfeit: but if a man be only indicted, 
 and die before attainder, his testament is 
 good for his lands and goods both. And ii; 
 he be indicted, and wiU not answer upon 
 his arraignment, but standeth mute, &c. in 
 this case, his lands are not forfeit, and there- 
 fore it seems he may make a testament of 
 them. And if a man kill himself, his testa- 
 ment, as to his goods and chattels, is void, 
 but as to his lands is good. 
 
 Shep. Touch. 404. — A man that is outlawed 
 in a personal action cannot make a testament 
 of his goods and chattels so long as the out- 
 lawry doth continue in force: but of his lands 
 he may make a testament. The head or any 
 of the members of a corporation may not 
 make a testament of the lands or goods they 
 have in common: for they shall go in suc- 
 cession. A villain cannot make a testament 
 of his lands or goods, after the lord hath 
 seised them. But here note, that howsoever 
 the testaments of traitors, aliens, felons, out- 
 lawed persons, and villains be void, as to the 
 king, or lord that hath right to the lands or 
 goods by forfeiture or otherwise, yet it seems 
 the testament is good against the testator 
 himself, and all others but sucli persons 
 only. And here note further also, by the 
 civil law also the testament of divers otliers, 
 as excommunicate persons, hereticks, usu- 
 rers, incestuous persons, sodomites, libellers, 
 and the like, are void. But, by our law, the 
 testaments of such persons, at least as tp 
 their lands, are good by the statutes that do 
 enable men to devise their lands. But all 
 other persons whatsoever, male or female, 
 old or young, lay or spiritual, rich or poor, 
 at any time before their death, whilst they 
 are able to speak so distinctly, or write so 
 plainly as another may understand them, and 
 understand that they understand themselves, 
 may make testaments of their lands, goods, 
 and chattels; and that albeit they have 
 sworn to the contrary: and none are re- 
 strained of this liberty, but such as are be- 
 fore named. See more infra to this matter. 
 
 2 Bl. Oomm. 496.— I proceed now, secondly, 
 
 to inquire who may, or may not, make a 
 testament; or what persons are absolutely 
 obliged by law to- die intestate. And this 
 law is entirely prohibitory; for, regularly, 
 every person hath full power and liberty to- 
 make a will, that is not under some special 
 prohibition by law or custom: which pro- 
 hibitions are principally upon three accounts : 
 for want of sufficient discretion; for want of 
 sufficient liberty and free will; and on ac- 
 count of their criminal conduct. 
 
 2 Bl. Comm. 497.— 1. In the first species are 
 to be reckoned infants, under the age of 
 fourteen if males and twelve if females; 
 which is the rule of the civil law. For, 
 though some of om' common lawyers have 
 held that an Infant of any age (even four 
 years old) might make a testament, and oth- 
 ers have denied that under eighteen he is 
 capable, yet, as the ecclesiastical court is thfr 
 judge of every testator's capacity, this case 
 must be governed by the rules of the eccle- 
 siastical law. So that no objection can be- 
 admitted to the will of an infant of fourteen, 
 merely for want of age; but, if the testator 
 was not of sufficient discretion, whether at 
 the age of fourteen or four-and-twenty, that 
 will overthrow his testament. Madmen, or 
 otherwise non compotes, idiots or natiu-al 
 fools, persons grown childish by reason of 
 old age or distemper, such as have their 
 senses besotted with drunkenness,— all these 
 are incapable, by reason of mental disability, 
 to make any wiU so long as such disability 
 lasts.' To this class also may be referred 
 such persons as are born deaf, blind, and 
 dumb; who, as they have always wanted the 
 common inlets of understanding, are inca- 
 pable of having animum testandi, and their 
 testaments are therefore void. 
 
 2. Such persons as are intestable for want 
 of liberty or freedom of will, are, by the- 
 civil law, of various kinds; as prisoners, cap- 
 tives, and the like. But the law of England 
 does not make such persons absolutely in- 
 testable; but only leaves it to the discretion 
 of the court to judge, upon tlie consideration 
 of their particular circumstances of duress, 
 whether or no such person could be sup- 
 posed to have liberum animum testandi." 
 And, with regard to feme-coverts, our law 
 differs still more materially from the civil. 
 Among the Romans there was no distinc- 
 tion; a married woman was as capable of 
 bequeathing as a feme-sole. But with us a 
 married woman is not only utterly incapa- 
 ble of devising lands, being excepted out of 
 the statute of wills, 34 & 35 Hen. VIII. c. 5, 
 but also she is incapable of making a testa- 
 ment of chattels, without the license of her 
 husband. For all her personal chattels are 
 absolutely his; and he may dispose of her 
 chattels real, or shall have them to himself 
 if he smwives her: it would be therefore ex- 
 tremely inconsistent, to give her a power 
 of defeating tliat provision of the law, by 
 bequeathing those chattels to another. Ifet 
 
 il 
 
S§ ^8-40 
 
 WILLS. 
 
 (Ch. 4 
 
 ■by her husband's license she may make a 
 testament; and the husband, upon marriage, 
 frequently corenants with her friends to al- 
 low her that license; but such license is 
 more properly his assent; for, unless it be 
 Kiven to the particular will in question, it 
 will not be a complete testament, even 
 though the husband beforehand hath given 
 her permission to make a will. Yet it shall 
 be sufficient to repel the husband from his 
 general right of administering his wife's 
 effects; and administration shall be granted 
 to her appointee, with such testamentary 
 l)aper annexed. So that, in reality, the wo- 
 man makes no wiU at all, but only something 
 like a will; operating in the nature of an 
 appointment, the execution of which the 
 husband, by his bond, agreement, or cove- 
 nant, is bound to allow. A distinction simi- 
 lar to which we meet with in the civil law. 
 For though a son who was in potestate pa- 
 rentis could not by any means make a for- 
 mal and legal testament, even though his 
 father permitted it, yet he might, with the 
 like permission of his father, make what 
 was called a donatio mortis causa. The 
 queen consort is an exception to this general 
 rule, for she may dispose of her chattels by 
 wiU, without the consent of her lord: and 
 any feme-covert may make her will- of goods, 
 which are in her possession in auter droit, 
 as executrix or administratrix; for these can 
 never be the property of the husband; and, 
 if she has any pin-money or separate main- 
 tenance, it is said she may dispose of her 
 savings thereout by testament, without the 
 control of her husband. But, if a feme-sole 
 makes her will, and afterwards marries, 
 such subsequent marriage is esteemed a rev- 
 ocation in law, and entirely vacates the will. 
 
 2 Bl. Comm. 499. — 3. Persons incapable of 
 making testaments, on account of their crim- 
 inal conduct, are, in the first place, aU trai- 
 tors and felons, from the time of conviction; 
 for then their goods and chattels are no 
 no longer at their own disposal, but forfeited 
 to the king. Neither can a felo de se make 
 a win of goods and chattels, for they are 
 forfeited by the act and manner of his death; 
 but he may make a devise of his lands, for 
 they are not subjected to any forfeiture. 
 Outlaws also, though it be but for debt, are 
 incapable of making a will, so long as the 
 outlawry subsists, for then- goods and chat- 
 tels are forfeited during that time. As for 
 persons guilty of other crimes, short of felo- 
 ny, who are by the civil law precluded from 
 making testaments, (as usurers, libellers, and 
 others of a worse stamp,) by the common 
 law their testaments may be good. And in 
 general the rule is, and has been so at least 
 ever since Glanvil's time, "quod libera sit 
 cu.iuscunque ultima voluntas." 
 
 4 Kent, Comm. 505.— The general rule is, 
 that all persons of sound mind are compe- 
 tent to devise real estate, with the excep- 
 tion of infants and married women. This 
 42 
 
 was the provision in the English statute of 
 wills, and, I presume, the exceptions equally 
 exist in this country. But a feme covert, by 
 deed of settlement made prior to her mar- 
 riage, and vesting her estate in trustees, may 
 be clothed with a testamentary dispositirfn 
 of her lands; and a court of chancery will 
 enforce such a power made during cover- 
 ture, under the name of an appointment, or 
 declaration of trust. She may devise by way 
 of execution of a power. But the will that 
 she makes, in such a case must be executed 
 with the same solemnities as if she had ex- 
 ecuted the deed while sole. An infant can- 
 not in any case be enabled to devise through 
 the medium of a power; and the New- York 
 statute specially excludes the exercise of a 
 power by a married woman during her in- 
 fancy. 
 
 4 Kent, Comm. 506.— Testaments of chat- 
 tels might, at common law, be made by in- 
 fants of the age of fourteen, if males, and 
 twelve, if females. This was the English 
 rule until the statute of 1 Victoria, and the 
 testamentary power of infants is now abol- 
 ished. The laws of the several states are 
 not uniform on this point. In Virginia no 
 person under eighteen years of age can 
 make a will of chattels; and by the New- 
 York Revised Statutes, the age to make a 
 will of personal estate is raised up to eight- 
 een in males, and sixteen in females. Nor 
 can a married woman make a testament of 
 chattels, any more than of lands, except un- 
 der a power, or marriage contract, or by her 
 husband's license. 
 
 34 & 35 Hen. VIII. c. 5, §§ 1, 14. (Statute 
 No. 12, post.) 
 
 7 Wm. IV. and 1 Vict. c. 26, §§ 7, 8. (Stat- 
 ute No. 24, post.) 
 
 § 39. Infants. 
 
 ARNOLD V. EARLE, Case No. 44, post. 
 
 § 40. Married Women — Under 
 Pow^er. 
 
 2 Kent, Comm. 170.— Power to Appoint by 
 Will. 
 
 A wife cannot devise her lands by will, 
 for she is excepted out of the statute of 
 wills; nor can she make a testament of chat- 
 tels, except it be of those which she holds 
 en autre droit, or which are settled on her 
 as her separate property, without the license 
 of her husband. He may covenant to that 
 effect, before or after marriage, and the court 
 of chancery will enforce the performance of 
 that covenant. It is not a strictly a will, 
 but in the nature of an appointment, which 
 the husband is bound by his covenant to al- 
 low. The wife may dispose by will, or by 
 act in her lifetime, of her separate personal 
 estate, settled upon her, or held in trust for 
 her, or the savings of her real estate given 
 to her separate use; and this she may do 
 
•Ch. 4) 
 
 WILLS. 
 
 §§ 40-41 
 
 without the intervention of trustees, for the 
 power is incident to such an ownersliip.' It 
 has been held, even at law, in this country,^ 
 that the wife may, by the permission of her 
 husband, make a disposition in the nature of 
 a will, of personal property, placed in the 
 hands of trustees, for her separate use, by 
 lier husband, or by a stranger, and either be- 
 fore or after marriage. If a feme sole 
 makes a wiU, and afterwards marries, the 
 subseciuent marriage is a revocation in law 
 •of the will. The reason given is, that it is 
 not in the natm-e of a will to be absolute, 
 and the marriage is deemed equivalent to a 
 countermand of the will, and especially as 
 it is not in the power of the wife after mar- 
 riage, either to revolje or continue the will, 
 inasmuch as she is presumed to be under 
 the restraint of her husband." But it is 
 equally clear, that where an estate is limited 
 to uses, and a power is given to a feme solo, 
 before marriage, to declare those uses, such 
 limitation of uses may take effect; and 
 though a married woman cannot be said 
 strictly to make a will, yet she may de- 
 vise, by way of execution of a power, which 
 is rather an appointment than a will; and 
 whoever takes under the will, takes by virtue 
 •of the execution of the power. Thus, In the 
 case of Bradish v. Gibbs,' it was held, that a 
 feme covert might execute by will, in favor 
 •of her husband, a power, given or reserved to 
 her while sole, over her real estate. In that 
 ■case, the wife before marriage, entered into 
 an agreement with her intended husband, 
 that she should have power, dmring the cov- 
 •ertm-e, to dispose of her real estate by will, 
 and she afterwards during coverture, devised 
 the whole of her estate to her husband; and 
 this was considered a valid disposition of 
 her estate in equity, and binding on her 
 heirs at law. The point in that case was, 
 whether a fnere agreement entered into be- 
 fore marriage, between the wife and her in- 
 tended husband, that she should have power 
 to dispose of her real estate during cover- 
 ture, would enable her to do it, without pre- 
 viously to the marriage vesting the real es- 
 tate in ti-ustees, in trust for such persons as 
 she should by deed or will appoint; and it 
 was ruled not to be necessary; and the doc- 
 tx-ine has received the approbation of the su- 
 preme court of Pennsylvania. Equity will 
 caiTy into effect the will of a feme covert, 
 disposing of her real estate in favour of her 
 husband, or other persons than her heirs at 
 law, provided the will be in pursuance of a 
 power reserved to her in and by the ante- 
 nuptial agreement with her husband. 
 
 HOLMAN V. PERRY, Case No. 169, post. 
 
 ^Peacock v. Monk, 2 Yes. Sr. 190; Rich v. 
 ■Cockell, 9 Ves. 369; West v. AVest, 3 Rand. 
 (Va.) 373) 
 
 ' Emery v. Neighbour, 7 N. J. Law, 142. 
 
 " Forse & Hembling's Case, 4 Coke, 60b; 2 
 P. Wms. 624; 2 Term R. 605, S. P. 
 
 *3 Johns. Oh. 523. 
 
 § 41. Same— Of Separate Property. 
 
 2 Kent, ,Comm. 164.— A feme covert, with 
 respect to her separate property, is to be 
 considered a feme sole sub modo only, or 
 to the extent of the power clearly given her 
 by the marriage settlement. Her power of 
 disposition is to be exercised according to 
 the mode prescribed in the deed or will un- 
 der which she becomes entitled to the prop- 
 erty; and if she has a power of appointment 
 by will, she cannot appoint by deed; and if 
 by deed, she cannot dispose of the property 
 by a parol gift or contract." These marriage 
 settlements are benignly intended to secm'e 
 to the wife a certain support in every event, 
 and to guard her against being overwhelmed 
 by the misfortunes, or unkinduess, or vices 
 of lier husband. They usually proceed from 
 the prudence and foresight of friends, or the 
 warm and anxious affection of parents; and, 
 if fairly made, they ought to be supported 
 according to the true intent and meaniug 
 of the instrument by which they are creat- 
 ed. A com-t of equity will carry the inten- 
 tion of these settlements into effect, and not 
 Ijermit the intention to be defeated. These 
 general principles pervade the numerous and 
 complicated cases on the subject; though, 
 it must be admitted, that those cases are 
 sometimes discordant in the application of 
 their doctrines, and perplexingly subtle in 
 theu- distinctions. 
 
 2 Kent, Comm. 165.— In the case of Jaques 
 V. Methodist Episcopal Church, as reviewed 
 in the court of errors of New-York," it was 
 declared, that a feme covert, with respect to 
 her separate property, was to be regarded in 
 a com't of equity as a feme sole, and might 
 dispose of it without the assent and concur- 
 rence of her trustee, unless she was specially 
 restrained by the instrument under which 
 she acquired her separate estate. But it was 
 held, (and in that consisted the difference 
 between the decision in chancery and the 
 correction of it on appeal,) that though a 
 particular mode of disposition was specifical- 
 ly pointed out in the instrument or deed of 
 settlement, it would not preclude the wife 
 from adopting any other mode of disposition 
 unless she was, by the instrument, specially 
 restrained in her power of disposition, to a 
 particular mode. The wife was therefore, 
 held at libSrty, by that case, to dispose of 
 her property as she pleased, though not in 
 the mode prescribed, and to give it to her 
 husband as well as to any other ijerson, if 
 her disposition of it be free, and not the 
 result of flattery, force, or improper treat- 
 ment. 
 
 2 Kent, Comm. 166.— This decision of the 
 court of errors renders the wife more com- 
 pletely and absolutely a feme sole in re- 
 spect to her separate property, than the Eng- 
 
 ' JacLues v. Methodist Episcopal Church, 1 
 Johus. Ch. 450, 3 Johns. Oh. 77. 
 
 "17 Johns. 548. • 
 
 43 
 
§§ 41-52 
 
 WILLS. 
 
 (Ch. 4 
 
 lish decisions would seem to authorize; and 
 It, unfortunately, -withdraws from the wife 
 those checks that were Intended to preserve 
 her more entirely from that secret and in- 
 sensible, but powerful marital influence, 
 which might be exerted unduly, and yet in a 
 manner to baffle all inquiry and detection. 
 
 FETTIPLAGE v. GORGES, Case No. 45, 
 post. 
 
 § 43. Same — With. Consent of Hus- 
 band. 
 
 BROOK T. TURNER, Case No. 46, post. 
 
 § 42a. Aliens. 
 
 See Crane v. Reertev, 21 Mich. 24; "Wunderle 
 V. Wunderle, 144 1)1. 40, 33 N. E. 195. 
 
 § 4Sb. Criminals. 
 
 See Rankin v. Rankin, 6 T. B. Mon. 531. 
 
 § 43. Incapacity from Mental or 
 Physical Infirmity — Rela- 
 tion of the Infirmity 
 to the Will. 
 
 BANKS V. GOODFELLOW, Case No. 49, 
 post. 
 .SMBE V. SMEE, Case No. 47, post. 
 MORSE V. SCOTT, Case No. 48, post. 
 
 § 44. Same — Partial Insanity. 
 
 BANIiS V. GOODFELLOW, Case No. 49, 
 post. 
 
 § 45. Same — Delusions. 
 
 BOUGHTON V. KNIGHT, Case No. 50, 
 post. 
 
 § 46. Same — Test of Mental Ca- 
 pacity. 
 
 HARRISON V. ROWAN, Case No. 51, post. 
 STEVENS T. VANCLEVE, Case No. 52, 
 post. , 
 
 § 47. Same — Lucid Intervals. 
 
 A'STIITB V. DRIVER, Case No. 53, post. 
 
 § 48. Same— Drunkenness. 
 
 GARDNER v. GARDNER, Case No. 54, 
 post. 
 
 § 49. Same— Old Age. 
 
 VAN ALST T. HUNTER, Case No. 55 
 post. 
 
 44 
 
 § 50. Same— Deaf and Dumb Per- 
 sons. 
 
 In re GOODS OF GEALE, Case No. 56, 
 post. 
 
 § 51. Same— Blind Persons. 
 
 EIGGS V. KIGGS, Case No. 95, post. 
 
 § 52. Undue Influence, Fraud, and 
 Mistake — In General. 
 
 Shep. Touch, p. 405.— The third thing, re- 
 quired in a good testament, is, that the mind 
 of the testator, in the making of it, be free, 
 and not moved by fear, fraud, or flattery; 
 for when a testator is moved to make his 
 testament by fear, or circumvented by fraud, 
 or overcome by some immoderate flattery; 
 the same is void, or at least voidable by 
 exception. And therefore if a man by oc- 
 casion of some present fear or violence, or 
 threatening of future evils, do at the same 
 time, or afterwards by the same motive, 
 make a testament; this testament Is void, 
 not only as to him that put him so in fear, 
 but as to all others, albeit the testator con- 
 firm it with an oath. But if the cause of 
 fear be some vain matter, or being weighty, 
 is removed, and the testator doth afterwards, 
 when the fear is past, confli'm the testament; 
 In this case, perhaps the testament may be 
 good. And if a man by occasion of some 
 fraud or deceit be moved to make a testa- 
 ment, if the deceit be such as may move a 
 prudent man or woman, and if it be evil 
 also, the testament is void or voidable at 
 the least; but if the deceit be light and 
 small, or if it be to a good end, as where 
 a man is about to give all his estate to some 
 lewd person from his wife and children, and 
 they persuade the testator that the lewd 
 fellow is dead, or the like, and thereby pro- 
 cure him to give his estate to them; this is 
 a good testament. And one may by honest 
 intercessions, and modest persuasions, pro- 
 cure another to make himself, or a stranger, 
 executor to him, or the like, and this will 
 not hurt the testament. Also a man may 
 use fair and flattering speeches to move the 
 testator to make his testament, and to give 
 his estate unto himself or some friend of 
 his: except It be in case where the flatterer 
 doth first beat or threaten him, or put him 
 In fear, or to his flattery joineth fraud and 
 deceit, or the testator is a person of weak 
 judgment, or under the danger of govern- 
 ment of the flatterer, as when the physician 
 shall persuade his patient under his hands 
 to make his testament, and give his estate 
 to himself: or the wife attending on her 
 husband in his sickness shall neglect him, 
 or continually provoke him to give her all: 
 or where the persuader is importunate and 
 will have no denial: or when there Is anoth- 
 er testament made before: for in all these 
 
Ch. 4) 
 
 WILLS. 
 
 §S 52-55 
 
 cases tlie testament will bo in clanger to 
 be avoided. And if I be mucU privy to 
 another man's mind, and he tell me often in 
 his health how he doth intend to settle his 
 estate, and he being sick, I do of mine own 
 head draw a will according to his mind 
 before declared to me, and bring it to him, 
 and ask him whether this shall be his will 
 or not, and he doth consider of it, and then 
 deliver it back to me, and say, yea, this is 
 a good testament; but if otherwise, some 
 friends of a sick man of then- own heads 
 shall make a will, and bring it to a man 
 in exti'emity of sickness, and read it to him, 
 and ask him whether this shall be his will, 
 and he say yea; or if a man be in great 
 extremity, and his friends press him much, 
 jvnd so wrest words from him, especially if 
 it be in advantage of them, or some fi'iends 
 of theirs; in these cases the testaments are 
 very suspicious. 
 
 Shep. Touch, p. 406.— But as touching these 
 two last things, quaere how they shall avail 
 
 in tlie wills of land, which are not regulated 
 so much by the civil law. 
 
 § 53. Same— Undue Influence. 
 
 BOYSE V. ROSSBOROUGH, Case No. 57, 
 poist. 
 
 HALL V. HALL, Case No. 58, post. 
 
 AVIXG-ROVE V. WINGROVB, Case No. 59, 
 post". 
 
 :\reiIAHOX >. RYAN, Case No. 60, post. 
 
 O'NEALL V. FARR, Case No. 99, post. 
 
 § 54. Same — Fraud. 
 
 KENXKLL V. ABBOTT, Case No. 61, post. 
 RISHTON V. COBB, Case No. 62, post. 
 HOWELL v. TROUTMAN, Case No. 63, 
 post. 
 HARRISON V. ROWAN, Case No. 51, post. 
 
 § 55. Same — Mistake. 
 
 In re GOODS OP HUNT, Case No. 64, post. 
 In re (JOODS OF DUANE, Case No. 65, 
 post. 
 
 45 
 
§§ 56-64 
 
 WILLS. 
 
 (Ch. 5. 
 
 CHAPTER V. 
 
 DEVOLUTION OF PROPERTY BY ACT OF OWNER— WILLS, (Continued.) 
 
 § 56. The Making of a Will— Foiiiialities 
 Regulated by Statute. 
 
 57. What Law Governs. 
 
 58. The Animus Testandi. 
 
 59. Nuncupative Wills — In General. 
 
 60. Of Soldiers and Mariners. 
 
 61. Of Those not Soldiers or Mariners 
 
 — ^The Making in Extremis. 
 
 62. The Animus Testandi and Ko- 
 
 gatio Testium. 
 
 63. The Reduction to Writing. 
 
 64. Written Wills— In General. 
 
 65. The Signing of the Will— Knowl- 
 
 edge of Contents. 
 
 66. Signing by the Testator. 
 
 67. Signing by Another at Testator's 
 
 Request. 
 
 68. Acknowledging the Signature and 
 
 Publishing the Will. 
 
 69. The Attestation of the Will— In 
 
 General. 
 
 70. Competency and Credibility of the 
 
 Witnesses. 
 
 71. The Number of the Witnesses. 
 
 72. The Request to the Witnesses. 
 
 73. The Animus Testificandi. 
 
 74. The Signing by the Witnesses. 
 
 75 The Signing by Another for the 
 
 Witnesses. 
 
 76. The Position of the Witnesses' 
 
 Signatures. 
 
 77. The Signing in the Presence of 
 
 the Testator. 
 
 78. The Effect of Valid Testamentary 
 
 Writing on Previous Defective One. 
 
 79. Revocation of Wills — In General. 
 
 80. Capacity to Revoke. 
 
 81. Intent to Revoke. 
 
 82. Undue Influence in Effecting Revo- 
 
 cation. 
 
 83. Fraud in Effecting or Preventing 
 
 Revocation. 
 
 84. Oral Revocation. 
 
 85. Written Revocation. 
 
 86. Revocation by Change in Testator's 
 
 Circumstances. 
 
 87. Revocation by Dt'struetion. 
 
 S8. By Sale of Property Devised. 
 
 89. By Marriage — l\Iarriage and Birth 
 
 of Child. 
 
 90. Dependent Relative Revocation. 
 
 91. Revival of Prior Will by Revocation 
 
 of Later One. 
 
 92. Revival by Incorporation. 
 
 93. Republication. 
 
 § 56. The Making of a Will- 
 Formalities Regulated by 
 Statute. 
 
 TRUSTEES, ETC., v. McKINSTRY, Case 
 No. 66, post. 
 
 46 
 
 § 57. What Law Governs. 
 
 The law In force at the time of executioni 
 of the will governs, and not that at the de- 
 cease of the testator. 
 
 APPEAL OF LANE, Case No. 67, post. 
 
 § 58. The Animus Testandi. 
 
 NICHOLS V. NICHOLS, Case No. 68, post. 
 BENNETT v. JACKSON, Case No. 72, post. 
 SEW'ELL y. SLINGLUFF, Case No. 265.. 
 post. 
 
 § 59. Nuncupative Wills — In 
 General. 
 
 See Form of a Will, ante, § 26. 
 
 Leg. Reg. Hen. I. I. (Statute Na 1, post.) 
 
 29 Car. II. c. 3, §§ 19-23. (Statute No. 15. 
 post.) 
 
 7 Wm. IV. and 1 Vict. c. 26, § 11. (Statute- 
 No. 24, post.) 
 
 § 60. Same— Of Soldiers and Mari- 
 ners. 
 
 IN RE GOODS OF DONALDSON, Case- 
 No. 69, post. 
 
 HUBBARD V. HUBBARD, Case No. 70. 
 post. 
 
 § 61. Same— Of Those not Soldiers 
 
 or Mariners — The Making 
 
 in Extremis. 
 
 PRINCE V. HAZLETON, Case No. 71, post. 
 
 § 62. Same — The Animus Testandi 
 and Rogatio Testium. 
 
 BENNETT v. JACKSON, Case No. 72, post. 
 
 § 63. Same — The Reduction to 
 Writing. 
 
 TAYLOR'S APPEAL, Case No. 73, post. 
 
 § 64. Written Wills— In General. 
 
 Shep. Touch. 413.— If a woman covert,. 
 without the leave of her husband, make a 
 testament of her husband's goods, and the 
 husband doth after her death connive at the 
 probate, and deliver the goods accordingly, 
 hereby the testament of the wife is become 
 good; but If an infant, or madman, make- 
 a testament in the time of his Infancy, or 
 
Ch. 5) 
 
 WILLS. 
 
 §64 
 
 madness, and after the infant, or mad- 
 man, become of full age, or sober, before 
 his death; it seems these testaments are 
 void. And yet if the infant at his full age, 
 or the madman when he Is sober, make a 
 publication of this testament, it may perhaps 
 be good. 
 
 If a man make a former and a latter will, 
 and by the latter the former is revoked, and 
 after the testator declare himself that the 
 former shall stand; by this the former, that 
 was void before, is now become good again. 
 And yet if a man make a will that is void, 
 and it be proved after his death; this pro- 
 bate will not make it good, but it doth re- 
 main void, as it was before. 
 
 If a feme sole make a will, and then take 
 a husband whereby the will is countermand- 
 ed, and so become void; if her husband die, 
 so that she become sole again; this accident 
 will not make the will good again, but it 
 doth remain void still; but perhaps, by a 
 new publication after she doth become sole, 
 it may become good again. 
 
 To the making of a good and sufficient de- 
 vise, these things are requisite: 1. That 
 there be a devisor, and that he be a person 
 able to devise; and that, both in respect of 
 the condition of his own person, and of the 
 the thing whereof the devise Is made. 2. 
 That there be a devisee, and that he be a 
 person capable and able to receive the thing 
 devised, either at the time when the devise 
 is made, or at least when the devise is to 
 take effect. 3. That the devisor have at the 
 time of the devise made animum testandi, 
 1. e. a mind to make a devise. 4. That the 
 wiU of the devisor be free, and not drawn or 
 coacted by fraud, flattery, fear, or the like. 5. 
 That the devise be made in due manner and 
 form. 6. That the thing devised be a thing 
 devisable. 7. That it be devised upon lawful 
 terms and conditions. 8. That there be words 
 sufficient to make his mind known. 9. That ii 
 be proved after the death of the devisor. 10. 
 And if it be a devise of land, it is fm-ther 
 required that the devisor be solely seised of 
 the land, and not jointly seised with another; 
 and that he be seised of an estate in fee- 
 simple; and that the devise be in writing. 
 And for the first of these it is to be known, 
 that whosoever may make a testament, may 
 make a devise of the same thing of which 
 he may make a testament. "Et sic e con- 
 verso." And whosoever is disabled to make 
 a testament, is disabled to devise by such a 
 testament. And, therefore, Infants may not 
 devise their lands until they be one-and- 
 twenty years of age, nor their goods and 
 chattels until they be fourteen years of age, 
 (or, as some say, until they be eighteen years 
 of age.) Women, that have husbands, can- 
 not devise their lands to their own husbands 
 or others, either by or without their hus- 
 band's consent, albeit there be a custom to 
 enable them thereunto; but all such devises 
 are void. And spiritual persons, as arch- 
 
 bishops, bishops, deans, archdeacons, preb- 
 ends, parsons, vicars, or any member of a 
 corporation, may not devise the lands or 
 goods they have in the right of their church- 
 es or corporations. 
 
 Shep. Touch.- 432.— All these things before 
 that are devisable, when they are devised 
 must be named and devised either by their 
 proper name, or otherwise described by 
 some other matter whereby the mind of the 
 testator may be known and discerned; for 
 if he err and mistake in the name or sub- 
 stance of the thing devised, or it be so incer- 
 tainly devised and described that it cannot 
 be perceived what he intendeth, the devise 
 is void. And therefore if one devise a piece 
 of ground by the name of a messuage, ex- 
 cept it be so called, the devise is void. And 
 yet by the devise of the use, profit, or oc- 
 cupation of land, the land itself is well de- 
 vised; and by the devise of land itself,, 
 the reversion thereof may be devised. But 
 if one intending to devise a horse, doth de- 
 vise an ox; or meaning to give gold, doth 
 give apparel; these legacies are void, unless 
 his meaning may appear by some circum- 
 stances to be otherwise; as if a man have 
 but one horse, and he be called Arundel, and 
 he devise his horse Bucephal; this legacy 
 is good enough. And if a , man give all his 
 money in such a chest, when in truth there 
 is no money in that chest; or give to anoth- 
 er the ten pounds which I. S. doth owe him, 
 when in truth I. S. doth not owe any such 
 money; this devise is void. And yet if the 
 devise be thus, viz. I give to A. B. ten 
 pounds, and I wiU that the same be paid of 
 the money I have in such a chest, or of the 
 money which such a man doth owe me; in 
 this case the devise is good, albeit there be 
 not any money in the chest or owing; and 
 if one give ten pounds remaining in such a 
 chest, whereas in truth there is but five 
 pounds in the chest; in this case the legacy 
 is good for the five pounds. But error and 
 mistake in the quantity and quality of the 
 thing devised, when the same for the sub- 
 stance of it is certain, doth not hurt: and 
 therefore, if the testator, meaning to give 
 the fourth part of his goods, give the one- 
 half; or meaning to give but fifty pounds, 
 give one hundred pounds; or e con verso, 
 meaning to give a greater, doth give a less 
 quantity or sum; in these cases the legacy 
 is good, and the legatary shall have as much 
 as the testator did mean. If a man give 
 his white horse, when in truth he hath but 
 one horse and that is black; this is a good 
 devise of this horse: and If the thing de- 
 vised be under such general words that the 
 mind of the testator cannot be known by it, 
 the devise is void: and therefore, if the te.s- 
 tator say, I do bequeath something, or T 
 bequeath a substance, or I bequeath a body, 
 or 1 bequeath, or the like; these devises arc 
 void for incertainty: so if he say, I do give 
 lands, or I do give goods; these devises are 
 
 4T 
 
§§ 64-69 
 
 WILLS. 
 
 (Ch. 
 
 void. And yet, if tlie testator give a horse, 
 an ox, a gold chain, or the like, indefinitely; 
 in these eases the devise is good, albeit he 
 have no such thing. But if one devise thus, 
 I give lead, money, wheat, oil, or the like; 
 and say not how much, or what quantity; 
 this legacy is void for incertainty, or at least 
 the executor may deliver what quantity 
 thereof he will, and this shall satisfy the 
 legacy. 
 
 -t Kent, Comm. .513. — The general provi- 
 sion on this subject is, that the will of real 
 estate must be in writing, and subscribed by 
 the testator, or acknowledged by him in the 
 presence of at least two witnesses, who are 
 to subscribe their names as witnesses. The 
 regulations in the several states differ in 
 some unessential points; but generally they 
 have adopted the directions given by the 
 English statute of frauds, of 29 Charles II. 
 The general doctrine of international law is, 
 that wills concerning land must be executed 
 according to the prescribed formalities of the 
 «tate in which the land is situated; but wills 
 «f chattels, executed according to the laws 
 of the ]^ace of the testator's domicil, wiU 
 pass personal property in all other countries, 
 though not executed according to their law. 
 The status or capacity of the testator to dis- 
 pose of his personal estate bj' will, depends 
 upon the law of his domicil. "Mobilia per- 
 .sonam sequuntm-, immobilia situm." 
 
 4 Kent, Comm. 334.— In the case of wills, 
 it has been repeatedly declared, and is now 
 the settled rale, that in respect to the exe- 
 cution of a power, there must be a reference 
 to the subject of it, or to the power itself; 
 imless it be in a case in which the will would 
 be inoperative, without the aid of the power, 
 and the intention to execute the power be- 
 came clear and manifest. The general rule 
 of construction, both as to deeds and wills, 
 is that if there be an interest and a power 
 existing together in the same person, over 
 the same subject, and an act be done with- 
 out a particular reference to the power, it 
 will be applied to the interest, and not to 
 the power. If there be any legal interest 
 on which the dceil can attach, it will not 
 <'xecute a power. If an act will work two 
 ways, the one by an interest, and the other 
 by a power, and the act be indifferent, the 
 law will attribute it to the interest, and not 
 to the authority, for tictio cedit veritati. In 
 Sloane v. Cadogan, it w:im declared by the 
 master of the rolls, after a full discussion, to 
 lie settled, that a general disposition by will 
 would not include property over which the 
 party had only a power, unless an intention 
 to execute the power could be inferred. A 
 will need not contain express evidence of an 
 intention to execute a power. If the will 
 be made without any reference to the power, 
 it operates as an appointment under the 
 power, provided it cannot have operation 
 without the power. The intent must be so 
 clear that no other reasonable intent can be 
 48 
 
 imputed to the will; and if the will does not 
 refer to a power, or the subject of it, and 
 if the words of the will may be satisfied 
 without supposing an intention to execute 
 the power, then, unless the intent to execute 
 the power be clearly expressed, it is no exe- 
 cution of it. 
 
 4 Kent, Comm. 335.— In construing the in- 
 strument, in cases where the party has a 
 power, and also an interest, the intention Is 
 the great object of inquiry; and the instru- 
 ment is construed to be either an appoint- 
 ment or a release; that is, either as an ap- 
 pointment of a use in execution of a power, 
 or a conveyance of the interest, as will best 
 effect the predominant intention of the party. 
 It may, indeed, operate as an appointment, 
 and also as a conveyance, if it be so intended, 
 though the usual practice is to keep these 
 two purposes clearly distinct. 
 
 §65. Same — The Signing of the 
 Will — Knowledge of Con- 
 tents. 
 
 HASTIIjOW v. STOBIE, Case No. 74, post. 
 KOBINSON V. BREWSTER, Case No. 76, 
 post. 
 
 §66. Same — Signing by the Tes- 
 tator. 
 
 ADAMS V. FIELD, Case No. 75, post. 
 
 ROBINSON V. BREWSTER, Case No. 76, 
 post. 
 
 § 67. Same — Signing by Another 
 at Testator's Request. 
 
 RILEY V. RILEY, Case No. 77, post. 
 
 DEX EX DEM. STEVENS v. VANCLEVE, 
 
 Case No. 52, post. 
 
 § 68. Same — Acknowledging the 
 
 Signature and Publishing 
 
 the Will. 
 
 WHITE V. TRUSTEES, ETC., Case No. 78, 
 post. 
 
 HARRISON V. ROWAN, Case No. 51, post. 
 ROBINSON V. BREWSTER, Case No. 76, 
 post. 
 
 § 69. Same — The Attestation 
 the Will— In General. 
 
 of 
 
 4 Kent, Comm. 514.— By tlie New York Re- 
 vised Statutes, the testator is to subscribe 
 the WiU at the end of it, in the presence of 
 at least two witnesses, who are to write their 
 places of residence opposite their names, un- 
 der the penalty of fifty dollars; but the 
 omission to do it will not afCect the validity 
 and efficiency of their attestation. Three 
 witnesses, as in the statute of frauds, 
 are required, in Vermont, New-Hampshire, 
 
€li 5) 
 
 WILLS. 
 
 §§ 69-70 
 
 Maine, Massachusetts, Rliode Island, Con- 
 necticut, New-Jersey, Maryland, South Caro- 
 lina, Georgia, Alabama, and Mississippi. 
 Two witnesses only are requisite, in New- 
 Xork, Delaware, Virginia, Ohio, Illinois, In- 
 diana, Missouri, Tennessee, North Carolina, 
 and Kentucky. In some of the states, the 
 provision as to attestation is more special. 
 In Pennsylvania, a devise of lands in writ- 
 ing will be good, without any subscribing 
 witnesses, provided the authenticity of it can 
 be proved by two witnesses; and if the will 
 be subscribed by witnesses, proof of it may 
 be made by others. 
 
 The English statute of frauds required the 
 wiU to be signed by the devisor, and to be 
 attested and subscribed by the witnesses, 
 in his presence; and this direction has been 
 extensively followed in the statute laws of 
 this country, and particularly in New-Yorli, 
 •down to the recent revision of its 'statute 
 law. The Revised Statutes have so far al- 
 tered the former law, as to require the sig- 
 nature of the testator, and of the witnesses, 
 to be at the end of the wiU; and the testator, 
 when he signs or acl^nowledges the will, is 
 to declare the instrument to be his last will; 
 and he is to subscribe or acknowledge the 
 WiU in the presence of each witness; and the 
 witnesses are to subscribe their names at 
 the request of the testator. The statute 
 drops the direction, in the English statute, 
 that the witnesses are to subscribe in the 
 presence of the testator, and the doctrine of 
 constructive presence is thereby wisely re- 
 jected. 
 
 4 Kent, Comm. 515. — The English courts, 
 from a disposition to favoiu' wills, departed 
 from the strict construction and obvious 
 meaning of the statute of frauds, and opened 
 a door to very extensive litigation. It was 
 held to be sufficient that the testator wrote 
 his name at the top of the will, by way of 
 recital; and his name, so inserted, was 
 deemed signing the will within the purview 
 of the statute. This was the decision in 
 Lemayne v. Stanley. ^ The doctrine of a 
 constructive presence of the testator has been 
 carried very far; and it has been decided, 
 that if the witnesses were within view, and 
 where the testator might, or had the capacity 
 to see them, with some little effort, if he had 
 the desire, though in reality he did not, they 
 were to be deemed subscribing witnesses in 
 his presence.'' It was further held, that if 
 the testator produced to the witnesses a 
 will already signed, and acknowledged the 
 signature in their presence, it was a suffi- 
 cient compliance with the statute; and it 
 was decided to be unnecessary for the tes- 
 tator actually to sign the will in the presence 
 of the witnesses.^ Nor is it held necessary 
 
 ' 3 Lev. 1. 
 
 ^ Shires v. Glascock, 2 Salk. 688; Davy v. 
 Smith, 3 Salk. 395; Longford v. Eyre, 1 P. 
 Wms. 740; Casson v. Dade, 1 Brown, Ch. 99. 
 
 ' White V. British Museum, 6 Bing. 310. 
 
 ABB. WILLS — 4 
 
 that the witnesses ShouM attest in the pres- 
 ence of each other, or that they should attest 
 every page or sheet, or that they should 
 know the contents, or that each page should 
 bi-j particularly shown to them. It is neces- 
 sary, however, that the witnesses should not 
 only be in the testator's presence, but that 
 tht> testator should have mental knowledge 
 of the fact; and in Right v. Price,* where 
 the witnesses attested the wUl while the 
 testator was corporally present, but ^n a 
 state of insensibility, it was held to be a 
 void attestation. It is further settled, that 
 the subscribing witnesses need not attest at 
 one time, nor aU together. The statute of 
 frauds required, that the witnesses should 
 attest in the presence of the testator; but 
 it did not say that they should attest in the 
 presence of each other, and, therefore, it is 
 not required. They may attest separately, 
 and at different times. It is to be presumed, 
 that the English rules of construction of the 
 statute of frauds, in the execution of the 
 will, apply in those states which have fol- 
 lowed the language of the statute; but, in 
 New-York, the alterations which have been 
 mentioned have rendered some of these de- 
 cisions inapplicable. 
 
 29 Car. II. c. 3, S 5. (Statute No. 15. post.) 
 7 Wm. IV. and 1 Vict. c. 26, § 9. (Statute 
 No. 24, post.) 
 
 § 70. Same — Competency and Cred- 
 ibility of the "Witnesses. 
 
 2 Bl. Comm. 377. — In one case determined 
 by the court of king's bench, the judges 
 were extremely strict in regard to the cred- 
 ibility, or rather the competency, of the wit- 
 nesses: for they would not allow any lega- 
 tee, nor by consequence a creditor, where 
 the legacies and debts were charged on the 
 real estate, to be a competent witness to the 
 devise, as being too deeply concerned in in- 
 terest not to wish the establishment of the 
 wiU; for, if it were established, he gal-ied a 
 secm-ity for his legacy or debt from the real 
 estate, whereas otherwise he had no claim 
 but on the personal assets. This determina- 
 tion, however, alarmed many purchasers and 
 creditors, and threatened to shake most of 
 the titles in the kingdom; that depended on 
 devises by will. For, if the will was attest- 
 ed by a servant to whom wages were due, 
 by the apothecary or attorney whose very at- 
 tendance made them creditors, or by the 
 minister of the parish who had any demand 
 for tithes or ecclesiastical dues (and these 
 are the persons most likely to be present in 
 the testator's last iUness), and if in such case 
 the testator had charged his real estate with 
 the payment of his debts, the whole wiU, 
 and every disposition therein, so far as re- 
 lated to real property, were held to be ut- 
 terly void. This occasioned the statute 25 
 
 ' 1 Doug. 241. 
 
 49 
 
§§ 70-73 
 
 AVILLS. 
 
 (Ch, 
 
 Geo. II. c. 6, wliicli restored both the com- 
 petency and the credit of such legatees, by 
 declaring void all legacies given to vs'itnesses, 
 and thereby removing all possibility of their 
 interest affecting their testimony. The same 
 statute liljewise established the competency 
 of creditors, by directing the testimony of 
 all such creditors to be admitted, but leav- 
 ing their credit (like that of all other wit- 
 nesses) to be considered, on a vievc of all 
 the circumstances, by the court and jury be- 
 fore whom such will shall be contested. And 
 in a much later case the testimony of three 
 witnesses who were creditors, was held to 
 be sufficiently credible, though the land was 
 charged with the payment of debts; and the 
 reasons given on the former determination 
 was said to be insufficient. 
 
 4 Kent, Comm. 509.— Witnesses to a will 
 are rendered incapable of taking any bene- 
 ficial interest under it, except it be creditors 
 whose debts, by the will, are made a charge 
 on the real estate. This was by the statute 
 of 25 Geo. II.; and it has been generally 
 adopted in the United States as a salutary 
 provision. The English statute was the 
 consequence of the decision of the K. B. in 
 ■ Holdfast V. Dowsing,' which established, 
 after three several arguments at the bar, 
 that whoever took any interest under a will 
 was an incompetent witness to prove it. 
 This determination, says Sir William Black- 
 stone," threatened to shake most of the titles 
 in the kingdom that depended on devises by 
 will. The statute has been recently re-en- 
 acted in New-York, with some qualifications. 
 The restoration of the competency of .sub- 
 scribing witnesses, by declaring their bene- 
 ficial interest under the will void, put an end 
 to a greatly litigated question, which arose 
 in the time of Lord Mansfield. The ques- 
 tion was, whether a witness was competent 
 to prove a will, who was interested when he 
 subscribed his name, and whose interest had 
 been discharged when he was called on to 
 testify. Lord Mansfield ' held it to be suf- 
 ficient that the competency, or disinterested 
 character of the witness, existed when called 
 as a witness. This decision was opposed 
 with great ingenuity and eloquence by Lord 
 Camden," though the majority of the court 
 over which he presided followed the deci- 
 sion of the K. B. 
 
 4 Anne,»e. 16, § 14. (Statute No. 19, post.) 
 25 Geo. II. c. 6. (Statute No. 21, post.) 
 7 Wm. IV. and 1 Vict. c. 26, §§ 14-17. Stat- 
 ute No. 24, post.) 
 
 tluLDFAST V. DOWSING, Case No. 79, 
 post. 
 
 I'KNDOCK V. MACKENDER, Case No. 80, 
 post. 
 
 WYNDHAM V. OHETWYND, Cnse No. 81, 
 post. 
 
 " 2 Strange, 1253. 
 
 '2 Bl. Comm. 377. 
 
 ' Windham v. Chetwynd, 1 Burrows, 426. 
 
 ■Doe V. Kersey, C. B. Easter Term, 1765. 
 
 50 
 
 GOODTITLE v. WELFOED, Case No. 82, 
 post. 
 
 SULLIVAN V. SULLIVAN, Case No. 83, 
 post. 
 
 HARRISON V. ROWAN, Case No. 51, post 
 
 § 71. Same — The Number of the 
 Witnesses. 
 
 LEA V. LIBB, Case No. 84, post. 
 
 § 72. Same — The Request to the 
 Witnesses. 
 
 WHITE V. TRUSTEES, ETC., Case No. 78, 
 post. 
 
 § 73. Same — The Animus Testifl- 
 candi. 
 
 IN RE GOODS OF WILSON, Case No. 85, 
 post. 
 
 IN RE GOODS OF MADDOCK, Case No, 
 88, post. 
 
 § 74. Same — The Signing by the 
 Witnesses. 
 
 HINDMARSH v. CARLTON, Case No. 86, 
 post. 
 
 CHASE V. KITTREDGE, Case No. 87, post. 
 
 IN RE GOODS OF MADDOCK, Case No, 
 88, post. 
 
 § 75. Same— The Signing by An- 
 other for the Witnesses. 
 
 IN RE STRONG'S WILL, Case No. 89, post. 
 RILEY V. RILEY, Case No. 77, post. 
 
 § 76. Same — The Position of the 
 Witnesses' Signatures. 
 
 IN RE GOODS OF WILSON, Case No. 85, 
 post. 
 
 § 77. Same— The Signing in the 
 Presence of the Testator. 
 
 SHIRES V. GLASCOCK, Case No. 90, post, 
 DAVY V. SMITH, Case No. 91, post. 
 CASSON V. DADE, Case No. 92, post. 
 NEWTON V. CLARKE, Case No. 93, post. 
 IN RE GOODS OF PIERCY, Case No. 94, 
 post. 
 KIGGS V. RIGGS, Case No. 95, post. 
 
 § 78. Same— The EflFect of Valid 
 
 Testamentary Writing on a 
 
 Previous Defective One. 
 
 GRIFFIN V. GRIFFIN, Case No. 96, post. 
 
 § 79. Revocation of Wills — In 
 General. 
 
 Shep. Touch. 409.— A testament sufficient 
 and good in its creation and beginning, may 
 
Ch. 5) 
 
 WILLS. 
 
 §§ T9-83 
 
 afterwards become void by divers means, as 
 first by countermand or revocation; and this 
 is sometimes by the party himself that made 
 it, and sometimes It is by another; and some- 
 times it is expressed, and sometimes it is im- 
 plied; for it is a rule, that any act or thing 
 done, or v?ords spoken, by the testator after 
 the testament made, or that doth alter or 
 cross all or part of his testament made be- 
 fore, is a revocation of it, or of that part 
 thereof that is so crossed and altered. And 
 therefore if a feme sole make a testament, 
 and after take a husband; by this the testa- 
 ment is revoked. And if a man make a testa- 
 ment of land, and after make a feoffment of 
 the same land, -which feoffment is not good 
 for some defect in the livery of seisin, or oth- 
 erwise, so that the feoffor dieth seised of the 
 land notwithstanding; hereby the testament 
 as to this land is revoked. 
 
 2 Bl. Comm. 502.— No testament is of any 
 effect till after the death of the testator. 
 "Nam omne testamentum morte consumma- 
 tum est: et voluntas testa toris est ambula- 
 toria usque ad mortem." And therefore, if 
 there be many testaments, the last over- 
 throws all the former: but the republication 
 of a former will revokes one of a later date, 
 and establishes the first again. 
 
 Hence it follows that testaments may be 
 avoided three ways: 1. If made by a per- 
 son labouring under any of the incajiacities 
 before mentioned: 2. By making another 
 testament of a later date: And, 3, by cancel- 
 ling or revoking it. For, though I make a 
 last will and testament irrevocable in the 
 strongest words, yet I am at liberty to re- 
 voke it: because my own act or words can- 
 not alter the disposition of law, so as to 
 make that irrevocable which is in its own 
 nature revocable. For this, saith Lord Ba- 
 con, would be for a man to deprive himself 
 of that, which of all other things is most in- 
 cident to human condition; and that is, al- 
 teration or repentance. It hath also been 
 held, that, without an express revocation, if 
 a man, who hath made his will, afterwards 
 marries and hath a child, this is a presump- 
 tive or- implied revocation of his former will, 
 which he made in a state of celibacy. The 
 Romans were also wont to set aside testa- 
 ments as being inofQciosa, deficient in nat- 
 ural duty, If they disinherited or totally 
 passed by (without assigning a true and suf- 
 ficient reason) any of the children of the tes- 
 tator. But, if the child had any legacy, 
 though ever so small, it was a proof that the 
 testator had not lost his memory or his rea- 
 son, which otherwise the law presumed; but 
 was then supposed to have acted thus for 
 some substantial cause: and in such case no 
 querela inofflciosi testamenti was allowed. 
 Hence probably hath arisen that groundless 
 vulgar error, of the necessity of leaving the 
 heir a shilling, or some other express legacy 
 in order to disinherit him effectually: where- 
 as the law of England makes no such con- 
 
 strained suppositions of fbrgetfulness or in- 
 sanity; and therefore, though the heir or 
 next of kin be totally omitted, it admits no 
 querela inofflciosi, to set aside such a testa- 
 ment. 
 
 4 Kent, Comm. 520.— A will duly made ac- 
 cording to law, is, in its nature, ambulatory 
 during the testator's life, and can be revoked 
 at his pleasure. But to prevent the admis- 
 sion of loose and uncertain testimony, coun- 
 tervailing the operation of an instrument 
 made with the formalities prescribed, it is 
 provided that the revocation must be by an- 
 other instrument executed in the same man- 
 ner; or else by bm-uing, cancelling, tearing, 
 or obliterating the same, by the testator him- 
 self, or in his presence, and by his direction. 
 This is the language of the English statute 
 of frauds, and of the statute law in every 
 part of the United States. 
 
 29 C;ir. II. c. 3, § (i. (Statute No. 15, post.) 
 7 Wm. IV. and 1 Tict c. 26, §§ 18-20. 
 (Statute No. 24, post.) 
 
 § 80. Same — Capacity to Revoke. 
 
 BKUNT V. BKUNT, Case No. 97, post. 
 
 § 81. Same — Intent to Revoke. 
 
 GILES V. WARREN, Case No. 98, post. 
 
 § 82. Same — Undue Influence in 
 Eflfecting Revocation. 
 
 O'AEALL V. FARR, Case No. 99, post. 
 
 § 83. Same — Fraud in Effecting or 
 Preventing Revocation. 
 
 Shep. Touch. 412.— A good testament may 
 become void by an intention only to alter 
 it, when the testator is hindered in his in- 
 tention, that it cannot take effect: and there- 
 fore if when the testator intendeth to alter 
 his testament, or to make a new one, he 
 be by fear or fraud forbidden or letten that 
 he dare not or cannot alter it, or the notary, 
 or the witnesses dare not or may not be 
 suffered to come to him; as when a wife or 
 some other that is to have benefit by the 
 former will, under pretence that she hath 
 a charge from the physician that none shall 
 come at him, or under pretence that he is 
 asleep, or the like, will not suffer any body 
 to come at him; or when the notary and 
 witnesses are all present, and they make 
 such a noise or quarrelling that they hinder 
 the effect of his intent; or when the testator 
 is kept from doing it by importunate re- 
 quests and flattering persuasions ; in all these 
 cases, and by these means, the former testa- 
 ment may become void. But if it appear, 
 that the testator hath no purpose to alter 
 the testament when he is let as aforesaid; 
 the fear is a vain fear. If the testator is 
 
 51 
 
WILLS. 
 
 §§ 83-85 \ i 
 
 prohibited at another time, and not the time 
 ■svhen he doth intend to alter the testament, 
 but he hath sundry opportunities after that 
 time to do it, and doth it not; or if he is 
 drawn only by the fair speeches of a wife or 
 friend; or if by the weeping or other trouble 
 arising from the grief of the legatary or ex- 
 ecutor for the testator's sickness only he is 
 disturbed; in these cases, perhaps it may 
 not be void. And where it is void by the 
 prohibition of a legatary only, it is void for 
 so much as doth concern him only, and not 
 for the rest of the testament 
 
 GKAHAM V. BUECH, Case No. 100, post. 
 
 § 84. Same — Oral Revocation. 
 
 Sliep. Touch. 410.-80 if a man make a 
 latter testament, and therein by express 
 words doth revoke the former testament; or 
 if a man by any writing, or by word of 
 mouth, (for one may by word of mouth re- 
 Toke a will in writing, albeit it be of land,) 
 <io expressly revoke a former testament that 
 ~b.e hath made, and make no new testament, 
 (for so a man may do, and die intestate if 
 lie will;) or if a man make a latter testa- 
 ment, and make no mention of the former 
 testament; all these are coimtermands of 
 the former testament. And the latter testa- 
 ment doth always revoke the former; and 
 that, albL4t the executor of the latter do re- 
 fuse the executorship, or die dm-ing the life 
 of the testator, or after his death; and albeit 
 the king be made executor of the former; 
 and albeit the former be a written, and the 
 latter but a nuncupative testament: and this 
 holdeth true in a testament of lands, as well 
 as in a testament of goods and chattels; but 
 otherwise it is e con verso; for however a man 
 may by word avoid a will made in writing 
 that is good, yet a man cannot by word make 
 good and affirm a will made in writing that 
 is void. And therefore If a man devise his 
 land in writing to I. S. and his heirs, and 1. 
 S. die before the devisor, and after the de- 
 visor say by word, that the heirs of I. S. 
 shall have the land, as I. S. should have had 
 It if he had lived; this verbal declaration 
 will not affirm the disposition. Also the lat- 
 ter testament doth Infringe the former, al- 
 beit there be no mention made in the latter 
 of revoking the former; and albeit there be 
 twenty witnesses of the former, and but two 
 or none of the latter; and albeit in the for- 
 mer the executor be appointed simply and 
 without condition, and in the latter he be 
 appointed conditionally, and the same con- 
 dition be also broken, so that the condition 
 be of something then to come, at the time 
 when the condition was made; but if the 
 executor of the latter testament be made up- 
 on some condition then present or past, the 
 condition not existing, the former testament 
 is not revoked; and albeit the former tes- 
 tament be made irrevocable, i. e. tliat the tes- 
 52 
 
 (Ch. 5 
 
 tator say, I make this my last will and tes- 
 tament irrevocable; and albeit the testator 
 hath sworn not to revoke the former, the 
 oath being also revoked together with the 
 testament; and albeit the testator enter in- 
 to an obligation with condition not to revoke 
 it; but then in this case he doth forfeit his 
 obligation. 
 
 Shep. Touch. 412.— A good testament may 
 be made void by the declaration of the tes- 
 tator's mind; as if a man have two testa- 
 ments lying by him, the one made after the 
 other, and they are both showed or delivered 
 to the testator when he lieth sick and he 
 by word or sign declare that he will have 
 the former to stand; this declaration doth 
 revoke the latter, and affirm the former. 
 And where a man would revoke a will for 
 any of these causes, he must presently after 
 the death of the testator put in a caveat or 
 exception in that court where the will Is to 
 be proved, and thereupon proceed to question 
 it; or by a prohibition in some cases he may 
 stay the probate in the spiritual court 
 
 BKOOK T. WARDE, Case No. 101, post. 
 COLE V. MORDAUNT, Case No. 102, post. 
 McCUNE V. HOUSE, Case No. 103, post. 
 
 §85. Same — Written Revocation. 
 
 Shep. Touch. 410.— But the latter testament 
 doth not revoke the former in these cases 
 following: When the latter is imperfect in 
 respect of will, i. e. when the testator dieth 
 whilst he is making of it, and before he 
 can finish it; or when it is vehemently sus- 
 pected that the testator was compelled to 
 make the latter by fear or violence; or in- 
 duced to make it by fraud and deceit; or 
 when the former was made by the testator 
 whilst he was in his good and perfect mind 
 and memory, and the latter is made by him 
 when he is inops mentis or when the latter 
 is made by the persuasion and for the bene- 
 fit of certain persons, when the testator is 
 in extremity of sickness: unless it appear 
 plainly to be the express will of the testator 
 to revoke the former; or unless the testator 
 himself did dictate the latter; or in case the 
 latter be in favour of the children of the 
 testator or others, who are to have the ad- 
 ministration of his goods, if he die intestate. 
 When the testator doth make two testa- 
 ments, a former and a latter, both being 
 written, and afterwards lying sick upon his 
 death bed, they are both presented unto him, 
 and he is desired to deliver to one of the 
 standers by, which of them he will have 
 to stand for his last will, and he deliver the 
 former. When the latter doth agree in all 
 points with the former, for then both of 
 them are as one in divers writings. When 
 in the latter testament there is no executor 
 named; for then it is but a codicil or addi- 
 tion to the former. When the latter is made 
 upon some sudden discontent against the ex- 
 
Ch. 5) 
 
 WILLS. 
 
 ?g 85-87 
 
 ecutor of the former testament, and after- 
 wards he and the executor are reconciled 
 again: in these, and such like cases, the latter 
 testament is no revocation of the former. If 
 the husband license the wife to make a tes- 
 tament, and after her death he forbid the 
 probate; this is a countermand of the testa- 
 ment. But note here, that revocations in 
 general are not favoured in law; and there- 
 fore he that will avoid a former will by 
 revocation, must see he prove it well. 
 
 Shep. Touch. 412.— A good testament may 
 become void by making another of the same 
 date; for if two testaments be found after 
 the death of the testator, and it cannot be 
 discerned or proved which was made former 
 or latter, the one of them doth overthrow 
 the other, and both of them are become void, 
 except they be both to the same pm-pose, or 
 one of them be made in favour to wife and 
 children, &c. and the other to strangers. 
 And yet in the first case also the testator by 
 declaration of his mind, which of them he 
 will have to take effect, may make either of 
 them good. 
 
 Shep. Touch. 451.— A devise that hath a 
 good beginning, is sometimes avoided and 
 overthrown by subsequent matter in the 
 same will, and sometimes by subsequent 
 matter in another will, and sometimes by 
 some other accident ex post facto: For if 
 a man make a subsequent or latter devise, 
 either in the same or in another will, so 
 contrary and requgnant to the former, that 
 both cannot stand together; this doth over- 
 throw the former: and therefore, if a man 
 give white acre to I. S. in fee, or his white 
 horse to I. S. and after, by the same or 
 another will, doth give white acre to I. D. 
 in fee, or his white horse to I. D. these lat- 
 ter devises do overthrow the former, cum 
 duo inter se pugnantia reperiuntur in testa- 
 mento, ultimum ratum est: and as a latter 
 will doth overthrow the former, so the lat- 
 ter part of a will doth overthow the former 
 part of the same will; but if the devises be 
 such as they may stand both together, and 
 are not directly repugnant, nor do fight one 
 against another, there the latter shall not 
 overthrow the former, but both shall be re- 
 ceived. As if one devise his land to I. S. 
 and his heirs, and after, by the same will 
 devise a rent out of the same land to I. D. 
 and his heirs, or e contra. So if one devise 
 white acre to A. for life, and afterwards give 
 the same acre to B. in fee; in this case the 
 one may have it for his life, and the other 
 may have the fee-simple afterwards. 
 
 4 Kent, Comm. 528. — A second will is a 
 revocation of a former one. provided it con- 
 tains words expressly revoking it, or makes 
 a different and incompatible disposition of 
 the property. Unless it can be found to 
 have contained one or the other, it is no 
 revocation of a former will. 
 
 4 Kent, Comm. 531.— A codicil is an addi- 
 tion, or supplement to a will, and must be 
 
 executed with the same solemnity. It Is no 
 revocation of a will, except in the precise 
 degree in which it is inconsistent with it, 
 unless there be words of revocation. 
 
 29 Car. II. c. 3, § 6. (Statvite No. 15, post.) 
 7 Wm. IV. and 1 Vict. c. 26, § 20. (Statute 
 No. 24, post.) 
 
 WAIiCOT V. OCHTERLONG, Case No. 104, 
 post. 
 
 NELSON V. PUBLIC ADMINISTRATOR, 
 0.;se No. 105, post. 
 
 LEMAGE V. GOODBAN, Case No. 106, 
 post. 
 
 § 86. Same — Revocation by Change 
 in Testator's Circumstances. 
 
 Shep. Touch, p. 411.— A good testament 
 may become void by alteration of the estate 
 of the testator; as when a man, after the 
 time of making the testament, and before his 
 death, is convicted or condemned of some 
 great crime, for which the law depriveth him 
 of the making of a testament, as treason, 
 felony or the like. And yet if the crime be 
 pardoned and purged before his death, the 
 testament may be good enough. And if a 
 man of sane and perfect memory make his 
 testament and after become inops mentis, 
 as every man for the most part is before his 
 death; this does not hurt the testament. 
 
 7 Wm. IV. and 1 Vict. c. 2G, § 19. (Statute 
 No. 24, post.) 
 
 § 87. Same — Revocation by De- 
 struction. 
 
 Shep. Touch. 411.— A good testament may 
 become void by cancelling or other destruc- 
 tion of it, as where the testator himself, or 
 some other by his commandment, doth cut 
 or tear it in pieces, deface it or cast it into 
 the Are; by this means the testament is 
 made void; except it be in case where the 
 testator doth it unadvisedly, or it be done 
 by some other without his consent, or by 
 some casualty, or when he doth willingly 
 pull away the seals, and then he doth after- 
 wards seal it again, or where the whole tes- 
 tament is not cancelled or defaced, but some 
 or the chief part thereof, as the naming the 
 executor, or the like, for it is good still for 
 the residue; or where there be several pa- 
 pers or writings, of one, ten, or each of them, 
 containing the whole testament, unless it 
 can be proved that the testator's mind was 
 to avoid it all; or where the testatment is 
 lost in the life- time of the testator, or after; 
 for in this case, so much as can be proved 
 by witnesses is still in force. 
 
 4 Kent, Comm. 531.— If the first will be 
 not actually cancelled, or destroyed, or ex- 
 pressly revoked, on making a second, and 
 the second will be afterwards cancelled, the 
 first will is said to be revived. But the first 
 will is not revived, if the testator makes a 
 
 53 
 
§§ 87-88 
 
 WILLS. 
 
 (Ch. 5 
 
 second, and actually cancels the first by an 
 absolute act rendering it void, and then can- 
 cels the second will; it will, in such a case, 
 require a republication to restore the first 
 will.*" The mere act of cancelling a will 
 does not amount to anything, unless it bo 
 done animo revocandi. The intention is an 
 inference to be di-awn from circumstances; 
 and the fact of cancelUng may be, in many 
 cases, an equivocal act. If, however, the 
 will be found cancelled, the law infers an 
 intentional revocation; for it is prima facie 
 evidence of it, and the inference stands good 
 until it be rebutted." The inference is the 
 same, and it would require strong proof to 
 rebut it, if a will be traced to the party's 
 possession, and be not forthcoming at his 
 death." Cancelling, in the slightest degree, 
 with a declared intent, will be a sufficient 
 revocation; and, therefore, throwing a will 
 on the fire, with an intent to burn it, though 
 it be only slightly singed, and escape de- 
 struction, is sufficient evidence of the inten- 
 tion to revolve." An obliteration of part of a 
 will, is only a revocation pro tanto. 
 
 29 Car. U. e. 3, § 6, cl. 2. (Statute No. 15, 
 post.) 
 
 7 Wm. IV. and 1 Vict. c. 26, § 20. (Statute 
 No. 24, post.) 
 
 BIBB T. THOMAS, Case No. 107, post. 
 PBKKES V. PERKES, Case No. 108, post. 
 DOE EX DEM. EEED v. HARRIS, Case 
 No. 109, post. 
 
 § 88. Same — By Sale of Property- 
 Devised, 
 
 4 Kent, Comm. 528. — ^Any alteration of the 
 estate or interest of the testator in the lands 
 devised, 'by the act of the testator, is held 
 to be an implied revocation of the will, on 
 the ground, principally, of its being evidence 
 of an alteration of the testator's mind. A 
 sale of the estate devised operates, of course, 
 as a revocation; for the testator must die 
 while owner of the land, or the will cannot 
 have effect upon it. A valid agi-eement, or 
 covenant to convey lands, which equity will 
 specifically enforce, wiU also operate in 
 equity as a revocation of a previous devise 
 of the same. It is as much a revocation of 
 the will in equity, as a legal conveyance of 
 the land would be at law; for the estate, 
 from the time of the contract, is considered 
 as the real estate of the vendee." 
 
 Not only contracts to convey, but inoper- 
 ative conveyances, will amount to a rovoca- 
 
 ™ Burtenshaw v. Gilbert. Cowp. 49; Semmes 
 V. Semmes, 7 Har. & J. 388. 
 
 " Onions v. Tyrer, 1 P. Wins. 343. 
 
 *=Lillie v. Lillie, 3 Hagg. Ecc. 184. 
 
 " Bibb V. Thomas, 2 W. Bl. 1043. 
 
 'Cotter V. Layer, 2 P. Wms. (j23; Rider v. 
 Wager, 2 P. Wms. 332; Mayer v. Gowland, 2 
 Dickens, 563; Knollys v. Alcoek, 5 Ves. 654; 
 Vawser v. JefCery, 2 Swanst. 2GS; Walton v. 
 V/alton, 7 Johns. Ch. 258. 
 
 tlon of a devise, to the extent of the prop- 
 erty intended to be affected, if there be 
 evidence of an intention to convey, and there- 
 by to revoke, the will. A bargain and sale 
 without enrolment, feoffment without livery 
 of seisin, a conveyance upon a consideration 
 which happened to fail, or a disability in 
 the grantee to take, have all been admitted 
 to amount to a revocation, because so in- 
 tended. If, however, the testator substi- 
 tutes a new disposition of the land, and in- 
 tends to revoke the will by means of that 
 substitution, in that case, if the instrument 
 cannot have that effect, and the substitution 
 fails, there is no revocation.'" It is further 
 the acknowledged, but very strict and tech- 
 nical rule of law, that if the testator conveys 
 away the estate, and then takes it back by 
 the same instrument, or by a declaration of 
 uses, it is a revocation, because he once part- 
 ed with the estate. Either an intention to 
 revoke, or an alteration of the estate with- 
 out such Intention, will work a revocation." 
 The law requires, that the same interest 
 which the testator had when he made the 
 will, should continue to be the same interest, 
 and remain unaltered to his death. The 
 least alteration in that interest is a revoca- 
 tion. If the testator levies a fine, or enfeoffs 
 a stranger to his own use, it is a revocation, 
 though the testator be in of his old use.'- 
 Lord Hardwicke, in Parsons v. Freeman," 
 admitted, that these were prodigiously strong 
 instances of the severity of the rule; and 
 Lord Mansfield observed, that the Earl of 
 Lincoln's Case, decided upon the same prin- 
 ciple, was shocking; and that some over- 
 strained resolutions of the com-ts upon con- 
 structive revocations, contrary to the real in- 
 tention of the testator, had brought scandal 
 upon the law." The unreasonableness of 
 the rule, holding an act to be a revocation, 
 which was not so intended, and even when 
 the intention was directly the contrary, has 
 been often complained of; and the English 
 courts have latterly shown a strong disposi- 
 tion not to assume the doctrine, unless there 
 was some express authority for it.'" 
 
 4 Kent, Comm. 530.— The doctrine, hard 
 and vinreasonable as it apijears in some of 
 its excrt'scencies on this subject, and not- 
 withstanding it has been repeatedly assailed 
 by great weight of argument, has, neverthe- 
 less, stood its ground immovably, on the 
 strength of authority, as if it had been one 
 of the essential landmarks of property. The 
 cases have been investigated and discussed 
 with the utmost research and ability, by the 
 courts of law and equity, and the principle 
 
 " Lord Eldon, 7 Ves. 373. 
 
 "Dister v. Dister, 3 Lev. 108. 
 
 "Trevor,. C. J., in Arthur v. Bockenham, 
 Fitzg. 240. 
 
 "3 Atk. 748. 
 
 " 3 Burrows, 1491; 2 Doug. 722. 
 
 "'Chnrmau v. Charman, 14 Ves. 584; Vaw- 
 ser V. Jeffery, 3 Barn. & Aid. 4G3. 
 
Ch. 5) 
 
 WILLS. 
 
 §§ 88-89 
 
 again and again recognised and confii-med, 
 that by a conveyance of the estate devised, 
 the will was revoked, because the estate was 
 altered, though the testator took it back by 
 the same instrument, or by a declaration of 
 iuses." The revocation is upon the technical 
 ground, that the estate has been altered, or 
 new modelled, since the execution of the 
 will. The rule has been carried so far, that 
 if the testator suffered a recovery, for the 
 very purpose of confirming the will, it was 
 still a revocation, for there was not a con- 
 tinuance of the same unaltered interest. 
 There is an exception to the rule in the case 
 .of mortgages, and charges oh the estate, 
 which are only a revocation in equity pro 
 tanto, or quoad the special purpose; and 
 ihey are taken out of tlae general rule on the 
 fact of being securities only." These doc- 
 trines of the English cases have been re- 
 viewed in this country, and assumed to be 
 binding, as part of the settled jurisprudence 
 of the land. It was decided, that a contract 
 for a sale of the land was a revocation of 
 the devise, even though the contract should 
 afterwards be rescinded, and the testator 
 restored to his former title. Legal and equi- 
 table estates, as to these implied revocations, 
 were deemed to stand on the same ground." 
 It has also been held," that if the testator, 
 after devising a mortgage, forecloses it, or 
 takes a release of the equity of redemption, 
 it is a revocation of the devise. It is equal- 
 ly a revocation, if he cancelled the mortgage, 
 •and took an absolute deed; for it was an 
 alteration of the interest, and a new pur- 
 chase. Some of the excesses to which the 
 English doctrine has been carried, have not 
 Tjeen acquiesced in, but the essential rules 
 have been taken to be law. 
 
 DISTER V. DISTER, Case No. 110, post. 
 WALTON V. WALTON, Case No. Ill, post. 
 GRAHAM V. BURGH, Case No. 100, post. 
 
 5 89. Same — By Marriage — Mar- 
 riage and Birth, of Child. 
 
 4 Kent, Comm. 521.— A will may be revok- 
 ed by implication, or inference of law; and 
 these revocations are not within the pm-- 
 view of the statute; and they have given 
 rise to some of the most dilHcult and inter- 
 esting discussions existing on the subject of 
 wills. They are founded upon the reasona- 
 ble presumption of an alteration of the tes- 
 tator's mind, arising from circumstances 
 since the making of the will, producing a 
 change in his previous obligations and du- 
 ties. The case stated by Cicero, is often al- 
 luded to, in which a father, on the report of 
 
 ■ ■ 6 
 
 " Goodtitle v. Otway, 1 Bos. & P. 576. 
 " Sparrow v. Hardcastle, 3 Atk. 798; Cave 
 V. Holford, 3 Ves. 650. 
 " W Iton V. Walton, 7 Johns. Ch. 258. 
 " Ballard v. Carter, 5 Pick. 112. 
 
 the death of his son, who was then abroad, 
 altered his testament, and appointed another 
 person to be his heir. The son returned 
 after the father's death, and the centumviri 
 restored the inheritance to him. There is a 
 ease mentioned in the Pandects to the same 
 effect; and it was the general doctrine of 
 the Roman law, that the subsequent birth of 
 a child, unnoticed in the will, annulled it. 
 This is the rule in those countries which have 
 generally adopted the civil law, "testamenta 
 rumpiuntur agnatione posthumi;" and there 
 is not, perhaps, any code of civilized juris- 
 prudence, in which this doctrine of implied 
 revocation does not exist, and apply when 
 the occurrence of new social relations and 
 moral duties raises a necessary presumption 
 of a change of intention in the testator. It 
 is a settled rule in the English law, that 
 marriage and the birth of a child, subse- 
 quent to the execution of the will, are a revo- 
 cation in law of a will of real as well as of 
 personal estate, provided the wife and child 
 were wholly unprovided for, and there was 
 an entire disposition of the whole estate to 
 their exclusion. This principle of law is in- 
 controvertibly established; though it is said 
 to have been no part of the ancient juris- 
 prudence of England; and the first case that 
 recognized the rule that the subsequent birth 
 of a child was a revocation of a will of per- 
 sonal property, was decided by the court of 
 delegates, upon an appeal, in the reign of 
 Charles II.; and it was grounded upon the 
 law of the civilians.^ The rule was next ap- 
 plied in the case of Lugg v. Lugg; -' and it 
 was shown by Dr. Hay, in Shepherd v. Shep- 
 herd,-- to have been continued, down to 1770, 
 as the uncontradicted and settled law of 
 doctors commons, that a subsequent mar- 
 riage and a child amounted to a revocation 
 of a will; but that one of these events, with- 
 out the concmrence of the other, was not 
 sufficient. 
 
 4 Kent, Comm. 522.— The rule was applied 
 in chancery to a devise of real estate, in 
 Brown v. Thompson; ^ but it was received 
 with doubt and hesitation by Lord Hard- 
 wicke, and Lord Northington." The distinc- 
 tion between a will of real and personal es- 
 tate could not well be supported; and Lord 
 JIansfield declared, that he saw no ground 
 for a distinction. The great point was final- 
 ly and solemnly settled, in 1771, by the court 
 of exciequer, in Christopher v. Christopher,^ 
 that marriage and a child, were a revocation 
 of a will of land. The court of K. B. have 
 since decided,^" after great deliberation, that 
 marriage and the birth, of a posthumous 
 
 ^ Overbury v. Overbury, 2 Show. 253. 
 ^'1 Ld. llaym. 441; 2 Salk. 592. 
 '^ 5 Term R. 51, note. 
 
 =» 1 Eq. Cas. Abr. 413, pi. 15; IP. Wms. 304, 
 note by Mr. Cox. 
 ^* I'arsons v. Lanoe, 1 Ves. Sr. 189, Amb. 557. 
 "2 Dickens, 445. 
 -" Doe V. Lancashire, 5 Term R. 49. 
 
 55 
 
§ 89 
 
 WILLS. 
 
 (Ch. 5 
 
 child, were an implied revocation of a will of 
 real estate. 
 
 4 Kent, Comm. 523.— It is generally agreed, 
 that the implied revocation by a subsequent 
 marriage and a child, being founded on the 
 presumption of intentibn, may be rebutted 
 by parol evidence. This was so held by the 
 K. B., in Brady v. Cubitt; ^ but the rule was 
 subsequently questioned;^ and there has 
 been great diffleulty in prescribing the ex- 
 tent of the admission of circumstances which 
 would go to rebut the presumption of a revo- 
 cation. The court of K. B., in Kenebel v. 
 Scrafton,™ held, that marriage and a child 
 wore a revocation of a will, when the wife 
 and children were wholly unprovided for, 
 and there was an entire disposition of the 
 whole estate. But whether the revocation 
 could be rebutted by parol proof of subse- 
 quent declarations of the testator, or other 
 extrinsic circumstances, though there was no 
 provision in the will for those near telatives, 
 was a question on which the court gave no 
 opinion. If the wife and children be pro- 
 vided for by a settlement, it is now un^'er- 
 stood to be the rule, that marriage and a 
 child will not revoke a will; and this case 
 forms an exception to the general rule." 
 
 The English law on this subject was re- 
 viewed in New-York, in the case of Brush v. 
 Wilkins;'' and it was adjudged to be the 
 law in New-York, founded on those decisions, 
 that subsequent marriage and a child were 
 an Implied revocation of a will, either of real 
 or personal estate, and that such presump- 
 tive revocation might be rebutted by circum- 
 stances. The better opinion Is, that under 
 the English law there must be the concur- 
 rence of a subsequent marriage and a subse- 
 quent child, to work a revocation of a will; 
 and that the mere subsequent birth of chil- 
 dren, unaccompanied by other circumstances, 
 would not amount to a presumed revocation. 
 This was the rule laid down by Sir George 
 Hay, in Shepherd v. Shepherd,'" and by the 
 coui-t of K. B., in White v. Barford.'^ Sir 
 John Nicholl, in Johnston v. Johnston,"' 
 pressed very far and very forcibly, the more 
 relaxed doctrine, that it was not an essential 
 ingredient in these implied revocations, that 
 marriage and a child should both occur to 
 create them; and he held that a birth of a 
 child, when accompanied with other circum- 
 stances, leaving no doubt of the testator's 
 intention, would be sufficient to revoke the 
 will of a married man. The case in which 
 he pressed the rule to this extent, was onp 
 Ihat contained so much justice and persua- 
 
 ^' 1 Doug. 31. 
 
 ■"Lord Alvanley, 4 Ves. 848. 
 
 ^2 East, 530. 
 
 ""Ex parte Earl of Ilchester, 7 Ves. 348 
 
 " 4 Johns. Ch. SOfi. 
 
 "5 Term R. 51, note. 
 
 '= 4 JIaule & S. 10. 
 
 " 1 rhillim. Ecc. 447. 
 
 36 
 
 sive equity in favour of the revocation, that it 
 must have been difficult for any court, with 
 just and lively moral perceptions, to resist 
 his conclusion. He placed the doctrine of 
 implied revocation, not where Lord Kenyon 
 had placed it, on any tacit condition annexed 
 to the will, but on the higher and firmer 
 ground, where Lord Mansfield, and, indeed, 
 the civil law, had placed it— on a presumed 
 alteration of int.jntioa, arising from the oc- 
 currence of new moral duties, which, in 
 every age, and in almost every breast, have 
 swayed the human affections and conduct. 
 It was doubted, however, in the case of 
 Brush V. Wilkins, whether Sir John Nicholl 
 had not carried this point of revocation 
 further than the English law would warrant, 
 and which had never adopted the notion of 
 the inofflciosum tEstamtntum of the civil law. 
 In a subsequent case,'° Sir John Nicholl 
 seems to have regained the former track of 
 the law; and he lays down the general doc- 
 trine, that a will is presumptively revoked 
 by marriage and issue, and that the presump- 
 tion may be rebutted by unequivocal evi- 
 dence of an intention that the will should 
 operate, notwithstanding those subsequent 
 events. Thus, it has been held, in pursuance 
 of this principle, that marriage and issue are 
 not a revocation of a will, when there are 
 children of a former marriage, and there is 
 a provision for a second wife and her Issue. 
 4 Kent, Comm. 525. — In this country, we 
 have much statute regulation on the subject. 
 There is no doubt that the testator may, if 
 he pleases, devise all his estate to strangers, 
 and disinherit his children. This is the En- 
 glish law, and the law in all the slates, with 
 the exception of Louisiana. Children are 
 deemed to have sufficient security in the 
 natural afCection of parents, that this unlim- 
 ited power of disposition will not be abused. 
 If, however, the testator has not given the 
 estate to a competent devisee, the heir takes, 
 notwithstanding the testator may have clear- 
 ly declared his Intention to disinherit him. 
 The estate must descend to the heirs, if it be 
 not legally vested elsewhere. This is in 
 conformity to the long established rule, that 
 in devises to talce place at some distant time, 
 and no particular estate is expressly created 
 in the mean time, the fee descends to the 
 heir. But by the statute laws of the states 
 of Maine, Vermont, New-Hampshire, Massa- 
 chusetts, Connecticut, New- York, New-Jersey, 
 Pennsylvania, Delaware, Ohio, and Alabama, 
 a posthumous child, and in all of those states 
 except Delaware and Alabama, children 
 born after the making of the will, and in 
 the lifetime of the father, will inherit in like 
 manner as if he had died intestate, unless 
 some provision be made for them in the will, 
 or otherwise, or they'be particularly noticed 
 in the will. The reasonable operation of 
 
 '"' Gibbens v. Cross, 2 Addams, Ecc. 455. 
 
Ch. 5) 
 
 AVILLS. 
 
 §§ 89-93 
 
 this rule is only to distui-b and revoke the 
 will pro tanto, or as far as duty requires. 
 The statute law in Maine, New-Hampshire. 
 Massachusetts, and Rhode Island, goes fur- 
 ther, and applies the same relief to all chil- 
 dren, and their legal representatives, who 
 have no provision made for them by will, 
 and who have not had their advancement in 
 their parents' life, unless the omission in the 
 will should appear to have been intentional. 
 In South Carolina, the interference with the 
 will applies to posthumous children; and it 
 is likewise the law, that marriage and a child 
 work a revocation of the will. In Virginia 
 rtnd Kentucky, a child born after the will, 
 if IJie testator luid no children before, is a 
 revocation, unless sucla child dies unmarried, 
 or an infant. If he had children before, 
 after-born children, unprovided for, work a 
 revocation pro tanto. In the states of Maine, 
 Massachusetts, Rhode Island. Connecticut, 
 New-York, Maryland, and, probably in other 
 states, if the devisee or legatee dies in the 
 lifetime of the testator, his lineal descend- 
 ants are entitled to his share, unless the will 
 anticipates and provides for the case. This 
 is confined, in Connecticut, to a child, or 
 grandchild; in Massachusetts, Rhode Island, 
 and Maine, to them, or their relations; and 
 in New-York, to children, or other descend- 
 ants. The rule in Maiyland goes further, 
 and, by statute, no devise or bequest fails by 
 reason of the de.ith of the devisee or legatee 
 before the testator; and it takes effect in 
 like manner as if they had survived the tes- 
 tator. 
 
 4 Kent, Comm. 527. — By the New-York Re- 
 vised Statutes, if the will disposes of the 
 whole estate, and the testator afterwards 
 marries, and has issue born in his lifetime, 
 or after his death, and the wife or issue be 
 living at his death, the will is deemed to be 
 revoked; unless the issue be provided for by 
 the will, or by a settlement, or unless the 
 will shows an intention not to make any pro- 
 vision. No other evidence to rebut the pre- 
 sumption of such revocation is to be received. 
 This provision is a declaration of the law of 
 New- York, as declared in Brush v. Wilklns, 
 with the additional provision of prescribing 
 the exact extent of the proof which is to re- 
 but the presumption of a revocation, and 
 thereby relieving the courts from all difficul- 
 ty on that embarrassing point. 
 
 The will of a feme sole is revoked by her 
 marriage. This is an old and settled rule 
 of law; and the reason of it is, that the mar- 
 riage destroys the ambulatory nature of the 
 will, and leaves it no longer subject to the 
 wife's control. It is against the natui-e of a 
 will, to be absolute during the testator's life, 
 and therefore it is revoked in judgment of 
 law by the marriage.'" If the wife survives 
 her husband, the will, according to the opin- 
 
 •• Forse & Hembling's Case, 4 Coke, 60b. 
 
 ion of Sergeant Manwood," revives, and 
 takes effect equally as if she had continued 
 a feme sole. But the strong language of tlu- 
 judges in the modern cases, in which they 
 declare that the will becomes revoked and 
 void by the marriage,'* would seem to bar 
 the conclusion of the learned sergeant; and 
 Mr. Roper, in his laborious and accurate 
 treatise on the law of property in relation to 
 husband and wife,™ assigns very good rea- 
 sons why the will cannot be deemed to have 
 revived by the death of the htisband. 
 
 7 Wm. IV. and 1 Vict. c. 26, § 18. (Statute 
 No. 24, post.) 
 
 FORSE & HEMBLING'S CASE, Case No. 
 112, post. 
 
 BJIBRY, APPELLANT. Case No. 113, post. 
 
 CHRISTOPHER v. CHRISTOPHER, Case 
 No. 114, post. 
 
 § 90. Same — Dependent Relative 
 Revocation. 
 
 IN RE GOODS OF MORESBY, Case No. 
 115, post. 
 SKAIMES V. SBMMES, Case No. 116, post. 
 POWELL V. POWELL, Case No. 117, post. 
 
 § 91. Revival of Prior Will by 
 Revocation of Later One. 
 
 LINGINFELTER v. LINGINFELTER, 
 Case No. 118, post. 
 
 § 92. Revival by Incorporation. 
 
 PERI«NS V. MICKLETHWAITE, Case 
 No. 119, post. 
 
 GOOOTITLE V. MEREDITH, Case No. 
 120, post. 
 
 § 93. Republication. 
 
 Shep. Touch. 413.— A good testament may 
 be made void by the declaration of the tes- 
 tator's mind; as if a man have two testa- 
 ments lying by him, the one made after the 
 other, and they are both showed or delivered 
 to the testator when he lieth sick, and he 
 by word or sign declare that he will have 
 the former to stand; this declaration doth re- 
 voke the latter, and afinrm the former. And 
 where a man would revoke a will for any 
 of these causes, he must presently after the 
 deatli of the testator put in a caveat or ex- 
 ception in that com't where the will is to 
 
 " Plow. 343a. 
 
 " Hodsden v. Lloyd, 2 Brown, Ch. 534; Doe 
 V. Staple, 2 Term R. 684; Long v. Aldred, 3 
 Addams, Ecc. 4S. But the will of a feme 
 covert, made during mari'iaa;e under a power, 
 is not revoked by her surviving her husband. 
 Morwan v. Thompson, 3 Hagg. Ecc. 239. 
 
 '" 1 Rop. Prop. 69. 
 
 57 
 
§ 93 
 
 WILLS. 
 
 (Ch. 
 
 be proved, and thereupon proceed to ques- 
 tion it; or by a prohibition in some cases he 
 may stay the probate in the spiritual court. 
 
 Shep. Touch. 450.— If a woman that hath a 
 husband devise her land by will during the 
 coverture, and after her husband's death, 
 when she is sole, she do publish and approve 
 it; in tliis case, and by this means, the devise 
 is become good: but if she make and pub- 
 lish it during the covertiu-e, and after her 
 husband die and she become sole, this acci- 
 dent without any more wiU not make the 
 devise good: the same law is of the devise 
 of goods and chattels. 
 
 If an infant within age devise his lands or 
 uS 
 
 goods and publish his will, and after he 
 comes to be of fuU age, he doth publish and 
 approve it again; in this case, and by this 
 means, the devise is become good: but if 
 the infant live to be of full age, and do not 
 publish and approve it, contra. 
 
 If a legacy of goods or chattels be given 
 on condition to a man incapable, and, be- 
 fore the condition is extant, he doth became 
 capable; in this case, and by this means, 
 the devise is become good. 
 
 LES.SEli; OF MUSSER v. CURRY, Case 
 No. 121, post. 
 EMERY, APPELLANT, Case No. 113, post. 
 
Oh. tj) AGEISCIES EFFEOTIJSG THE UEVOLUTIOK OE PliOrEKTY. §§ 94-96 
 
 CHAPTBE, VI. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. 
 
 § 94. In General. 
 95. The Courts. 
 9(3. Jurisdiction of the Courts. 
 
 97. Facts Necessary to Give Jurisdiction 
 
 — Death of Person Whose Estate 
 is to be Administered. 
 
 98. Domicile of the Decedent. 
 
 99. Locality of Assets. 
 
 100. The Law Applicable to the Adminis- 
 tration of Assets. 
 
 § 94. In General. 
 
 2 Kent, Comm. 408.— IV. By Intestacy. 
 
 The last instnnee which was mentioned of 
 acquiring title to goods and chattels by act 
 of law, was the case of intestacy. This is 
 when a person dies, leaving personal prop- 
 erty undisposed of by will; and in such case, 
 the personal estate, after the debts are paid, 
 is distributed to the widow, and among the 
 next of kin. To avoid repetition and con- 
 fusion, I shall be obliged to confine myself 
 essentially to the discussion of the leading 
 principles of the English law, and assume 
 them to be the law of the several states, in 
 all those cases in which some material de- 
 parture from them in essential points cannot 
 • l3e clearly ascertained. 
 
 2 Kent, Comm. 409.— This title will be best 
 explained by examining, 1. To whom the ad- 
 ministration of such property belongs, and 
 to whom granted; 2. The power and duty of 
 the administrators; and, 3. The persons who 
 succeed to the personal estate by right of suc- 
 cession. 
 
 (1.) Of granting administration. 
 
 When a person died intestate, in the early 
 periods of the English history, his goods 
 went to the king as the general trustee or 
 guardian of the state. This right was aft- 
 erwards transferred by the crown to the pop- 
 ish clergy; and, we are told, it was so fla- 
 grantly abused, that parliament was obliged 
 to interfere, and take the power of adminis- 
 tration entirely from the church, and confer 
 it upon those who were more disposed to a 
 faithful execution of the trust. This pro- 
 duced the statutes of 31 Edw. III. c. 11, and 
 21 Hen. VIII. c. 5, from which we have cop- 
 ied the law of granting administrations in 
 this country.^ The power of granting ad- 
 ministration, and of superintending the con- 
 duct of the administration, was still left in 
 the hands of the bishop, or ordinary, in each 
 diocese. In our American law, we have as- 
 signed this, as well as other secular matters, 
 to the courts and magistrates of civil juris- 
 
 ' Hensloe's Case, 9 Coke, 38c; 2 BI. Comm. 
 4iMM19t). 
 
 diction. Before the Revolution, the power 
 of granting letters testamentary, and letters 
 of administration, resided, in New-York, in 
 the colonial governor, as judge of the pre- 
 rogative court, or court of probates of the 
 colony. It was afterwards vested in the 
 court of probates, consisting of a single 
 judge, and so continued until 1787, when siu-- 
 rogates were authorized to grant letters tes- 
 tamentary, and letters of administration, of 
 the estates of persons dying within their 
 respective counties. If the person died out 
 of the state, or within the state, not being an 
 inhabitant thereof, the granting of adminis- 
 tration was still reserved to the court of pro- 
 bates. This practice continued until the act 
 of March 21st, 1828, when the com't of pro- 
 bates was abolished, and aU the original 
 powers of that court were transferred to the 
 surrogates; and each surrogate has now ju- 
 risdiction, exclusive of every other surrogate, 
 within his country, when the testator or in- 
 testate was at his death an inhabitant of the 
 county, in whatever place he may have died; 
 or not being an inhabitant of the state, died 
 in the county, leaving assets therein; or, not 
 being an inhabitant of the state, died abroad, 
 leaving assets in the county of the surrogate; 
 or, not being an inhabitant of the state, and 
 dying out of it, assets of such testator or 
 intestate shotild thereafter come into the 
 county; or, when no jurisdiction is gained 
 in either of the above cases, and real estate 
 devised by the testator, is situated in the 
 county. The first judge of the county acts 
 in cases in which the siuTogate is disquali- 
 fied to act; and the county treasurer, in each 
 county acts as a public administrator in spe- 
 cial cases. There is likewise a public admin- 
 istrator in the city of New-York, with en- 
 larged jurisdiction in special cases of intes- 
 tates' estates. He is authorized to act as pub- 
 lic administrator, in cases where there are 
 effects in the city, of persons dying intestate, 
 •and leaving no widow 'or next of kin compe- 
 tent and willing to administer. 
 
 § 95. The Courts. 
 
 HENSLOE'S CASE, Case No. 122, post. 
 
 BLACICBOKOUGH v. DAVIS, Case No. 
 150, post. 
 
 AA'ATEES V. STICKNEY, Case No. 171, 
 post. 
 
 GRAHAM V. BUltCH, Case No. 100, post. 
 
 § 96. Same — Jurisdiction of the 
 Courts. 
 
 DYKE V. WALFORD, Case No. 123, post. 
 POTWINE'S APPEAL, Case No. 124, post. 
 
 59 
 
§§ 97-100 AGENCIES EFFECTING THE DEVOLUTION OF PROPEKTY. (Ch. 6 
 
 § 97. Facts Necessary to Give Ju- 
 risdiction — Death of Person. 
 Whose Estate is to be 
 Administered. 
 
 JOCHUMSBN V. SAVINGS BANK, Case 
 
 No. 125, post. 
 
 § 98. Same — Domicile of the De- 
 cedent. 
 
 WILSON V. FRAZIER, Case No. 126, post. 
 
 § 99. Locality of Assets. 
 
 VAUGHN V. BARRET, Case No. 127, post. 
 WHITE T. NELSON, Case No. 128, post. 
 OYKE V. WALPORD, Case No. 123, post. 
 
 § 100. The La-wr Applicable to the 
 Administration of Assets. 
 
 2 Kent, Coram. 428.— There has been much 
 discussion as to the rule of distribution of 
 liersonal property, when the place of the 
 domicil of the intestate, and the* place of 
 the situation of the property, were not the 
 same. But it has become a settled principle 
 of international jurisprudence, and one 
 founded on a comprehensive and enlighten- 
 ed sense of public policy and convenience, 
 that the disposition, succession to, and dis- 
 tribution of personal property, wherever 
 situated, is governed by the law of the coun- 
 try of the owner's or intestate's domicil, at 
 the time of his death, and not by the con- 
 flicting laws of the various places where the 
 goods happened to be situated. The princi- 
 ple applies equally to cases of voluntary 
 transfer, of intestacy, and of testaments. 
 On the other hand, it is equally settled in 
 the law of all civilized countries, that real 
 property, as to its tenure, mode of enjoy- 
 ment, transfer and descent, is to be regulat- 
 ed by the lex loci rei sitae. Personal prop- 
 erty is subject to that law which governs the 
 person of the owner. Debts and personal 
 contracts have no locality — deblta sequun- 
 tur personam debitoris. Huberus lays down 
 this to be the common and correct opinion, , 
 though the question had been frequently 
 agitated in the courts in his day; and Byn- 
 kershoeck says, the principle had become 
 so well established, that no one dared to 
 question it; adeo recepta hodie sententia est, 
 ut nemo ausit contra hiscere. The same 
 principle would seem to be the acknowl- 
 edged law in Germany and France; and 
 Vattel considers the rule to be one that is 
 dictated by the law of nations. 
 
 2 Kent, Comm. 429.— This principle Avas 
 understood to be settled in England, in the 
 time of Lord Hardwicke, in the cases of 
 Pipon v. Pipon, and of Thome v. "Watkins;^ 
 
 ■■Amb. 25; 2 Ves. St. 35. 
 60 
 
 and Lord Thm-low observed, in the house of 
 lords in \he case of Bruce v. Bruce,' that to 
 hold that the lex loci rei sitae was to gov- 
 ern as to personal property, when the domi- 
 cilium of the intestate was in a different 
 country, would be a gross misapplication of 
 the jus gentium. And yet, notwithstanding 
 all this weight of authority in favor of the 
 solidity and universality, of the principle, 
 the point was permitted to be very exten- 
 sively and learnedly debated before Lord 
 Loughborough, in the case of Bempde v. 
 Johnstone;' and he said that the question 
 had been decided and settled, and the law 
 clearly fixed in England, by repeated de- 
 cisions in the house of lords; and that by 
 those decisions, the law of the intestate's 
 domicil at the time of his death carried the 
 distribution of his 'personal property, wher- 
 ever it was situated. The law of Scotland 
 was once different; but the court of ses- 
 sion has now conformed to the Enghsh de- 
 cisions. He admitted, however, that if the 
 point had been quite new and open, it would 
 be susceptible of a great deal of argument, 
 whether, in the case of a person dying in- 
 testate, having property in different places, 
 and subject to different laws, the law of 
 each place should not obtain, in the distribu- 
 tion of the property situated there; and 
 many foreign lawyers, he said, had held that 
 proposition. Afterwards, in Somerville v. 
 Lord Somerville," the rule as above settled, 
 was declared, by the master of the rolls, to 
 apply to all cases where the fact of the dom- 
 icil was not in dispute. But in the case of 
 Curling v. Thornton," Sir John Nicholls 
 doubted whether a British natural bom sub- 
 ject could shift his forum originis for a for- 
 eign domicil, in complete derogation of his 
 rights under the British laAv; and he said 
 it must be at least complete and total, to 
 make his property in England liable to dis- 
 tiibution according to the foreign law, and 
 the party must have declared and carried 
 his intention into full effect. 
 
 2 Kent, Comm. 431.— The rule, as settled 
 in England, and by the general usage of 
 nations, as to the succession and distribu- 
 tion of personal property, has repeatedly 
 been declared to constitute a part of ihe 
 municipal jurisprudence of this country.' 
 The difficulty has been not in the mle itself, 
 but in the application and execution of it. 
 In Topham v. Chapman,' it was said, that 
 though the distribution was to be according 
 to the laws of the country of the domicil 
 of the intestate, yet that his debts in a for- 
 eign covmtry must be collected and paid ac- 
 
 « 2 Bos & P. 229, note. 
 •3 Ves. 198. 
 "5 Ves. 750. 
 <■ 2 Addams Ecc. 14. 
 
 'Dixon V. Ramsay, 3 Cranch, 319; Kerr v. 
 Moon, 9 Wheat. 565. 
 
 » 1 Const. (S. C.) 292. 
 
Ch 6) 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. 
 
 100 
 
 cording to the law of that country. Admin- 
 istration must be granted where the debts 
 were; for an administrator has no power 
 beyond the jurisdiction in which he received 
 his letters of administration; and the home 
 creditors must first be paid before the ad- 
 ministrator could send the surplus fund to 
 the country of the proper domicil of tlie in- 
 testate. Much discussion took place on this 
 part of the subject in Harvey v. Richards." 
 It was held, upon a masterly consideration 
 of the case, that whether a court of equity 
 would proceed to decree an account and dis- 
 tribution according to the lex loci rei sitae, 
 or direct the assets to be distributed by the 
 foreign tribunal of the domicil of the party, 
 would depend upon circumstances. The si- 
 tus rei, as well as the presence of the par- 
 ties, conferred a competent jurisdiction to 
 decree distribution, according to the rule of 
 the lex domicilii; and such a jm-isdiction 
 was sustained by principles of public law, 
 and was consistent with international pol- 
 icy. The court was not bound, at all events, 
 to have the assets remitted to the foreign 
 administrator, and to send the parties enti- 
 tled to the estate abroad, at great expense 
 and delay, to seek their rights in a foreign 
 tribunal. Though the property was to be 
 distributed according to the lex domicilii, 
 national comity did not require that the dis- 
 tribution should be made abroad. Whether 
 the court here ought to decree distribution, 
 or remit the property abroad, was a matter 
 of judicial discretion, and there was no uni- 
 versal or uniform rule on the subject. 
 
 2 Kent, Comm. 433.— The manner and ex- 
 tent of the execution of the rule were well 
 discussed and considered, in the supreme 
 court of Massachusetts.'" A person was 
 domiciled at Calcutta, and died there insol- 
 vent, and his will was proved, and acted 
 upon there. Administration was taken out 
 in Massachusetts, on the probate of the will 
 in the East Indies; and assets came to the 
 hands of the administi-ator at Boston, stiffl- 
 cieut to pay a claim due citizens of the 
 United States, and a judgment debt due a 
 British subject in England; but all the as- 
 sets were wanted to be applied, in the com-se 
 of administration, by the executor at Cal- 
 cutta. It was held, that the administrator 
 here was only ancillary to the executor in 
 India; and the assets ought to be remitted, 
 nnless he was compelled by law to appro- 
 priate them here to pay debts. It was not 
 decided whether he was compelled to pay 
 here; but if it were the case, it would only 
 be the American creditors; and the British 
 creditor was not entitled to come here and 
 disturb the legal course of settlement of the 
 estate in his own country. If there were no 
 legal claimants with us, in the character of 
 creditors, legatees, or next of kin, the admin- 
 
 "1 Mason, 403, Fed. Gas. No. 6,184 
 '"D-iwes T. Head, 3 Pick. 128. 
 
 istrator would be bound to remit the assets 
 to the foreign executor, to be by him admin- 
 istered according to the law of the testator's 
 domicil; and if any part of tlie assets were 
 to be retained, it would form an exception 
 to the general rule, growing out of the duty 
 of every government to protect its own citi- 
 zens in the recovery of their debts. The in- 
 timation has been strong, that such an auxil- 
 iary administrator, In the case of a solvent 
 estate, was bound to apply the assets found 
 here to pay debts due here; and that it 
 would be a useless and unreasonable cour- 
 tesy, to send the assets abroad, and the resi- 
 dent claimant after them. But if the es- 
 tate was insolvent, the question became 
 more difficult. The assets ought not to be 
 sequestered for the exclusive benefit of our 
 own citizens. In all civilized countries, for- 
 eignera, in such a case, are entitled to prove 
 their debts, and share m the distribution. 
 The court concluded that the proper com-se 
 in such a case would be, to retain the funds, 
 cause them to be disti'ibuted pro rata, ac- 
 cording to om- own laws, among our own 
 citizens, having regard to all the assets, and 
 the whole aggi-egate amount of debt here 
 and abi-oad, and then to remit the surplus 
 abroad to the principal administrator. Such 
 a course was admitted to be attended with 
 delay and difficulty in the adjustment; but 
 it was thought to be less objectionable, than 
 either to send our citizens abroad upon a 
 forlorn hope, to seek for fragments of an 
 insolvent's estate, or to pay them the whole 
 of their debts, without regard to the claims 
 of foreign creditors. 
 
 2 Kent, Comm. 484.— A difficult question on 
 the subject of the distribution of the prop- 
 erty of intestates, arose in the K. B. in Eng- 
 land, in 1767, in the case of King v. Hay." 
 A father and his only daughter perished at 
 sea, in the same vessel, and in one catas- 
 trophe, and a question suggested by the case 
 was, who took under the statute of distribu- 
 tions. If the father died first, the personal 
 estate would have vested in the daughter, 
 and, by her death, in her next of kin, who, 
 on the part of the mother, was a different 
 person from the next of kin on the part of 
 the father. The right to succeed depended 
 upon tl}e fact which person died first, and 
 that fact could not possibly be known, as the 
 vessel perished at the same time. It ^^as 
 said to be the ride of the civU law, to found 
 its presvimptions on the relative strength, 
 arising from the difCerence of age and sex of 
 two persons; but these presumptions were 
 shifting and unstable. The court did not de- 
 cide the question. The arguments on each 
 side were equally Ingenious and inconclu- 
 sive. Lord Mansfield recommended a com- 
 promise, as he said there was no legal prin- 
 ciple on which he could decide it. The same 
 question arose again in the prerogative court, 
 
 "1 W. Bl. 640. 
 
 61 
 
§ 100 
 
 AGEKCIES EFFECTING THE DEVOLUTION OF PROPERTY. 
 
 (Ch. 6 
 
 in 1703, in Wright v. Sarmuda." Tlie hus- 
 band, wife and children, all perished to- 
 gether, in a vessel which foundered at sea; 
 and Sir William Wynne, after a long and 
 learned discussion, held it to be the most 
 rational presumption, that all died together, 
 and that none could transmit rights to an- 
 other. So, again in Taylor v. Diplocli, in 
 1815," in a like case, Sir John Nicholl as- 
 sumed, that the parties (who were husband 
 and wife) perished at the same moment; and 
 he could not decide on any survivorship in 
 the case, and consequently gi'anted adminis- 
 ti'ation to the representatives of the hus- 
 band. The English law has hitherto waived 
 
 " 2 Phillim. Ecc. !>66, iiote. 
 '=Id. 261. 
 62 
 
 the question, and, perhaps prudently, aban- 
 doned, as delusive, all tho§e ingenious and 
 refined distinctions which have been raised 
 on this vexed subject by the civilians. The 
 latter draw their conclusions from a trem- 
 ulous ijresumption resting on the dubious 
 point, which of the parties, at the time, un- 
 der the difference of age or sex, or of vigour 
 and maturity of body, and quiclsness and 
 presence of mind, was the most competent 
 to baffle and retard the approaches of death. 
 
 U. S. V. CKOSI5Y, Case No. 129, post. 
 KERR T. MOON, Case No. 130, post. 
 ME'ICALF V. CLARIv, Case No. 131, post. 
 DIUKEY V. VAWN, Case No. 132, post. 
 NELSON V. POTTER, Case No. 133, post. 
 CHANNEL V. CAPEN, Case No. 134, post 
 REX V. RAINES, Case No. 145, post. 
 
Ch. 7) AGENCIES EFPECTING THE DEVOLUTION OF PliOPERTY. § 101 
 
 CHAPTER VII. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 § 101. Personal Representation of the Deceased 
 — In General. 
 
 102. The Executor de Son Tort. 
 
 103. Officiating without Appointment. 
 
 104. The Executor. 
 
 105. Who may be an Executor. 
 
 106. Appointment. 
 
 107. The Administrator. 
 
 108. Who may be an Administrator — In 
 
 General. 
 
 109. Husband or Wife. 
 
 110. Where the Court Has Discretion 
 
 in Appointing. 
 
 111. Where the Statute Prescribes Who 
 
 shall Administer. 
 
 112. Renunciation of Office by the Person- 
 
 al Representative. 
 
 113. Duties of the Personal Representa- 
 
 tive. 
 
 114. Of the Executor — Before Appoint- 
 
 ment. 
 
 115. Duty to Probate the Will. 
 lis. Of the Probate of the Will. 
 
 117. ^^'hen a Will may be Probated. 
 
 118. Questions Which Arise at Pro- 
 
 bate. 
 
 119. Competency and Credibility of 
 
 Witnesses. 
 
 120. Contradictory Attesting Wit- 
 
 nesses. 
 
 121. Burden of Proof as to Insanity. 
 
 122. Who may Testify as to Insanity. 
 
 123. Burden of Proof as to Undue In- 
 
 fluence. 
 
 124. Lost Wills. 
 
 125. Partial Probate. 
 
 126. Effect of Probate. 
 
 127. Revocation of Probate. 
 
 128. Duties of Personal Representative, 
 
 (Continued.) 
 
 129. The Giving of a Bond. 
 
 180. The Notice of Appointment. 
 . 131. The Making of an Inventory. 
 
 132. What the Inventory should Contain. 
 
 133. Collection of the Effects of the De- 
 
 ceased. 
 
 § 101. Personal Representation of 
 the Deceased — In General. 
 
 Shep. Touch. 400. — An executor in a large 
 sense is taken for anyone that is appointed 
 to have the disposition and ordering of the 
 goods and chattels of a man that is dead. 
 And so there are 'three kinds of executors: 
 the first is a lege constitutus, who is there- 
 fore called "legitimus;" and such a one is 
 the ordinary of the diocese, who hath ordi- 
 nary jurisdiction in matters ecclesiastical: 
 the second is a testatore constitutus, who is 
 therefore called "testamentarius;" and he 
 is strictly and properly called an executor; 
 
 and is defined to be one appointed by a 
 man's last will and testament, to have tlie 
 disposing and administration of all or part 
 of a man's goods and chattels, and to per- 
 form a man's last will and testament, ac- 
 cording to the contents thereof: the third 
 is ab episcopo constitutus, who is therefore 
 said to be "dativus:" and such a one is an 
 administrator, who is defined to be one that 
 hath the goods and chattels, of a man dy- 
 ing intestate, committed to his charge by 
 the ordinary for want of an executor; and 
 his power, benefit, and charge, is in all 
 things equal, to the power, benefit, and 
 charge of an executor. 
 
 The executor and administrator also is 
 sometimes universal or total, i. e. one that 
 hath the power and disposition of the whole 
 personal estate committed to him. And 
 sometimes he is particular or partial, i. e. 
 one that hath the power .and disposition of 
 some part of the estate, or of all the estate 
 for a time only, committed to him. And 
 sometimes he is absolute, i. e. suoli a one 
 that hath an absolute power of the estate, 
 as executor, or administrator: and some- 
 times he is conditional, i. e. one that hath 
 a limited and conditional power of the es- 
 tate only. And in both cases he shall be 
 charged and chargeable for so much as is 
 committed to him as the testator or intes- 
 tate himself: for this cause the executor is 
 said to represent the person of the testator; 
 for as to the estate committed to his trust 
 he may charge others, and be charged him- 
 self, sue and be sued, as the testator him- 
 self might. And the estate he hath by his 
 executorship is said to be in him to the use 
 of the testator and his right; and that he 
 doth in the disposition of his estate is said 
 to be in the right and to the use of the tes- 
 tator also. And the administrator hath the 
 same power and property over and in the 
 goods and chattels, the same remedy by suit, 
 and so far forth shall be charged, as the 
 executor; for they differ not in nature but 
 in name only. And yet the administrator 
 is but the ordinary's deputy and he may re- 
 voke the administration, or call the admin- 
 istrator to account. 
 
 Shep. Touch. 480.— The office and duty of 
 the ordinary, after the death of any person 
 within his diocese, is, if he hear of any will 
 made, and any executor appointed, to cite 
 the executor, and to compel him to come in 
 and prove the will, and to accept and take 
 upon him the administration of the goods, 
 or to refuse it; and if the executor refuse, 
 or if there be a will made and no executor 
 appointed, the ordinary must commit the 
 
 ea 
 
§§ 101-102 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 7 
 
 administration cum testamento annexo to 
 whom lie shall thinli fit, and take bond of 
 the administrator to perform the will. And 
 if there be no will made, he is to grant the 
 administration of the goods to the next of 
 kin, if he or they require it; and, if not, 
 to whomsoever besides shall desire it; or, if 
 nobody seek it, he may grant letters to 
 whom he will ad colligendum bona defuncti, 
 and thereby take the goods of the deceased 
 Into his own hands; and then it seems he 
 is to pay therewith the debts and legacies 
 of the deceased, so far as the same will 
 reach, in such order as the executor or ad- 
 ministrator is to pay them. 
 
 § IDS. The Executor de Son Tort. 
 
 Sliep. Touch. 467.— Every intermeddling 
 with the goods of the deceased, or with the of- 
 fice and work of an executor, shall not be said 
 to be such an administration as to amount 
 unto an acceptance of the executorship or ad- 
 ministration, and so to make a man charge- 
 able as executor or administi-ator. And 
 therefore if a man that is an executor or ad- 
 ministrator do only lay up and preserve the 
 goods of the deceased; or command another 
 to take away the goods of the deceased 
 from one that hath them in his keeping; or 
 see the deceased buried in a decent manner, 
 and for that purpose use, and, if need be, 
 sell some of his goods to do it; or mal^e 
 an inventory of the goods and chattels of the 
 deceased; or prove the testator's will with 
 his own money; or take his own goods lying 
 amongst the goods of the deceased; or take 
 and use some of the goods of the deceased 
 only by mistake, or as a trespasser, or by 
 the delivery of another; or talte and dis- 
 pose any of the goods of the deceased, when 
 the executor or administrator doth challenge 
 them as his own, and in his own right; or 
 If he redeem any of the goods of the de- 
 ctased with his own money when they are 
 pledged to the full value, and the day of 
 redemption is past; as neither of these acts 
 will make a strauser an executor of his own 
 ■\\'rong, so neither will they amount to an 
 acceptance of the executorship, and make 
 the executor or administrator chargeable as 
 executor or administrator. But if a man 
 that is an executor or administi'ator shall 
 sue by that name for any debt due to the 
 deceased; or being sued by that name for 
 any debt or duty due from the deceased, 
 shall imparl to the suit, or plead any other 
 plea besides ne unques executor; or shall 
 take into his hands the goods of the deceased, 
 and convert them to his own use, and alter 
 the property by sale, gift or otherwise, and 
 all this as the goods of the deceased; (and 
 so it shall be intended against him if he do 
 not declare the contrary, that he doth take 
 and use them as his own, &c.) or if he de- 
 liver the goods of the deceased to a-editors 
 64 
 
 or legataries in satisfaction of their debts or 
 legacies; or receive any debt due to the de- 
 ceased, and give a release for the same; or 
 release any debt due to him before it be paid; 
 or pay any debt due from the deceased, ex- 
 cept it be with his own money; any or 
 either of these acts will amount unto an 
 acceptance of the executorship; and there- 
 fore after an executor or administrator hath 
 done any such act, he can never after refuse 
 the executorship or administration. 
 
 Shep. Touch. 468.— If a woman sole be 
 made an executrix to another, and she marry 
 a husband before she intermeddle with the 
 estate, and then her husband doth adminis- 
 ter; this is such an acceptance as will bind 
 her, and she can never afterwards refuse it. 
 
 Shep. Touch. 486.— An executor of his 
 own wrong is one that is neither lawful ex- 
 ecutor nor administrator, and yet doth take 
 upon him to do and act such things as are 
 only fit for and proper to an executor or ad- 
 ministrator: as to take the goods of the de- 
 ceased into his own possession; give and sell 
 them; pay the debts of the deceased there- 
 with; release the debts due to the deceased; 
 and the like. And a man may make himself 
 such an executor by any such intermeddling 
 with the office and work of an executor, as 
 followeth: 1. By proving the will with the 
 money of the dead; but to prove another 
 man's will at my own charge, will no more 
 make me chargeable as an executor of mine 
 own wrong, than to bury the deceased in a 
 decent manner out of my own estate. 2. 
 By a seizing, gaining, keeping, and using the 
 goods of the deceased as a man's own, es- 
 pecially if he convert them to his own use, 
 sell, or otherwise dispose them; and every 
 colour of title will not help in this case; for 
 if a man make a deed of gift of all his goods 
 and chattels to another, and dieth intestate, 
 and this in truth is fraudulent and in trust, 
 and the donee after the death of the donor, 
 doth dispose of these goods and chattels as 
 his own; in this case, and by this means, he 
 shall be esteemed as executor of his own 
 wrong. And yet if the deed of gift be bona 
 fide in satisfaction of a just debt, and the 
 goods be no more than the debc, it may be 
 otherwise: but if the goods be much more 
 than the debt, there it seems he shall be 
 charged so for the overplus; and that, 
 whether he have them in possession or not; 
 and so was the opinion of Justice Jones, 
 at Gloucester assises, 9 Car. If the ordi- 
 nary grant letters ad colligendum et venden- 
 dum the goods of the deceased that are like 
 to perish, and I. S. to whom the letters are 
 made, under colour thereof, doth take and 
 sell the goods; hereby he may make himself 
 chargeable, as executor of his own wrong: 
 for the ordinary hath no such power him- 
 self, and therefore he may not give that 
 power to another. If a man that is next of 
 kin procure a beggar, or a stranger, to take 
 out an administration, and then to make him 
 
Ch. 7) AGENCIES EFFECTING THE DEVOLUTION OF PEOPERTT. § lO^ 
 
 a deed of gift of all the goods for a small 
 matter; he may be thus charged for the 
 overplus of the worth of the goods more 
 thau he gave. So if a debtor procure such 
 au administration to be taken out, and then 
 get a release of his debt from the adminis- 
 trator; this may malie him chargeable as 
 executor of his ovyn wrong, for so much as 
 his debt doth come unto. And yet a man 
 may take tiway liis own goods, that were in 
 the hands of the deceof.ed, without danger. 
 And every having and possessing of the 
 goods of the deceasad will not make a man 
 executor of his own wrong: for if a man 
 die in my house and liave goods there, and I 
 keep them until I can be well discharged of 
 them; this will not make me chargeable as 
 executor of mine own wrong. So if I do 
 . only lay up the goods of the deceased to pre- 
 serve them in safety for him that shall have 
 right to them; this will make me no more 
 chargeable, than if I take an inventory of all 
 the goods of the deceased. So if another 
 man take the goods of the deceased and sell 
 them to me, or give them to me; howsoever 
 this will make him chargeable as executor 
 of his own wrong, yet this will not make me 
 chargeable so. Neither will every disposi- 
 tion of the goods of the deceased make a 
 man executor of his own wrong; for if a 
 man sell some of the goods of the deceased 
 (where there is need) to help forward a de- 
 cent funeral of the body of the deceased; 
 this is no such disposition as to make a man 
 chargeable thus. So if I deliver the wife of 
 the deceased her necessary wearing apparel; 
 or if I be wife to the deceased, and take it 
 myself. So where I take any of the de- 
 ceased's goods into my hands by mistake, 
 supposing them to be mine own, or under 
 colour of title; as when I have a good deed 
 of gift or sale of them without any fraud or 
 covin; or under a good authority, as when I 
 take them upon a warrant from the sheriff 
 that hath process out of the exchequer to 
 take them; or as a trespasser only, as when 
 I kill or otherwise abuse the cattle; such an 
 intermeddling with the goods of the de- 
 ceased will not make a man chai-geable as 
 executor of his own wrong, neither may I be 
 so charged in these cases. The third way, 
 by which a man may make himself charge- 
 able as executor of his own wrong, is by 
 delivering of the goods of the deceased to 
 creditors in satisfaction of their debts, or by 
 selling any of the goods of the deceased to 
 pay the debts of the deceased, and paying 
 the same with the money made thereof; but 
 to pay the deceased's debt with a man's own 
 money will not make him chargeable so. 
 The fourth way, by which a man may make 
 himself so chargeable, is by receiving any of 
 the debts due to the deceased. The fifth 
 way, by which a man may malie himself 
 chargeable so, is by releasing any debts or 
 duties due to the deceased. The sixth way, 
 by delivering any legacies given by the de- 
 ABB. WILLS — 5 
 
 ceased in kind, or by paying any legacies, 
 except it be with a man's own money. The 
 seventh way, by taking a man's legacy given 
 to him, before the executor have accepted of 
 the executorship and assented to the legacy. 
 The. eighth way, by suing as executor to the- 
 deceased for any debt due to the deceased. 
 And the ninth way, by taking upon him tO' 
 sell the lands of the deceased as his execu- 
 tor. In all these cases, and by all these and 
 such like means, a man may make himself 
 an executor of his own wrong: so that if an 
 executor after he hath legally waived the 
 executorship, or an administrator after his- 
 administration is repealed and revoked, in- 
 termeddle with the estate in any such man- 
 ner, he may be charged as executor of his 
 own wrong: and if a woman take more of 
 her wearing apparel than is necessary and 
 convenient for one of her rank, and condi- 
 tion, without legacy of the husband, and li- 
 cense of the executor, she may be charged 
 thus. 
 
 Shep. Touch. 489.— And if a man, under 
 colom: of an administration that is not good, 
 or of a commission ad colligendum bona de- 
 functi that is not good, or of a will, when in 
 truth there is none at all, or no good will, do 
 take upon him to intermeddle with the goods, 
 and to dispose of the estate in manner as 
 aforesaid; by this means he may make him- 
 self chargeable thus. And in these cases,, 
 and by these means, such persons that do- 
 so intermeddle, do make themselves to be 
 accounted in law, executors; but executors 
 by wrong only, and not executors by right. 
 And therefore such persons have not the 
 favom' nor power of lawful executors, as tO' 
 bring any action for debt due to the de- 
 ceased, to deduct and pay themselves any 
 debt due to themselves first of all, and tO' 
 bar other creditors, and the like. And tor- 
 so much as they have so disposed and mis- 
 employed, and for no more, they may make 
 themselves chargeable to pay any creditor 
 or legatee of the deceased that shall sue 
 them, as far forth as a lawful executor is 
 chargeable. And albeit he that doth thus 
 be a creditor, yet this will not help him ; for 
 a creditor may not enter upon the goods of 
 the deceased and pay himself first; and if 
 he do so, if there be a lawful executor or ad- 
 ministrator made, he may sue the creditor;: 
 and if there be no executor or administrator 
 made, the creditor may by this means make- 
 himself chargeable to other creditors, as ex- 
 ecutor of his own wrong, for so much as he 
 hath taken into his own hands: and then a 
 man shall be charged the rather in these 
 cases, and by this means, wlien there is no 
 executor made; or, if there be an executor 
 made, when he doth refuse to take upon him 
 the executorship; nor any administration, 
 granted: for when a man dieth intestate, 
 and a stranger taketh and useth the goods 
 of the deceased as his own, albeit he pay no 
 debt or legacy, nor do any other act as ex- 
 
 65 
 
§§ 102-104 AGENCIES EFFECTINU THE DEVOLUTION OF PBOPEBTY. (Ch. 7 
 
 ecutor, yet, when no other man taUcth upon 
 him the administration, this intermeddling 
 shall make him chargeable as executor of his 
 own wrong: for in that case the creditor 
 hath no other remedy; but In case where 
 there is an executor made, and he doth prove 
 the testament, and doth take upon him the 
 administration of the goods, and then a 
 stranger taketh out of the hands of this ex- 
 ecutor, or getteth into his own hands, all 
 or some of the goods of the deceased, and 
 useth them as his own; this will not make 
 this stranger executor of his own wrong; for 
 now there is a lawful executor against whom 
 the creditor may have his remedy; and the 
 executor shall have his remedy for these 
 goods against the stranger; for they are and 
 shall be accounted assets in the hands of the 
 executor still, notwithstanding the stranger 
 hath the possession of them: and yet in this 
 case also, where there is a rightful executor, 
 if a stranger shall take the goods into his 
 hands, claim to be executor, pay debts and 
 legacies, and receive debts, and intermed- 
 dle as an executor; in this case, perhaps, 
 and by this express administration as execu- 
 tor, he may be charged as executor of his 
 own wrong, albeit there be a lawful execu- 
 tor; and if a man die intestate, and a stran- 
 ger intermeddle with the estate as before, 
 and then the administration is granted to an- 
 other; in this case, the stranger may be 
 charged by any creditor or legatee as execu- 
 tor of his own wrong, for his intermeddling 
 before the administration granted; for the 
 rightful executor or administrator shall be 
 charged with no more than what doth come 
 into his hands. And if an administration be 
 granted afterwards to any one that hath so 
 intermeddled with the goods before; this will 
 not purge the wrong done before; and there- 
 fore in this case, a creditor may charge him 
 as executor of his own wrong, or as a lawful 
 administrator, at his election. 
 
 30 Gar. II. c. 7. (Statute No. 16, post.) 
 
 READ'S CASE, Case No. 135, post. 
 OXEN HAM V. CLAPP, Case No. 136, post. 
 
 § 103. Ofiaciating without Ap- 
 pointment. 
 
 SHELLEY'S CASE, Case No. 137. post 
 
 HUMPHREYS v. HUMPHREYS, Case No. 
 Ida, post. 
 
 MONROE V. JAMES, Case No. 139, post 
 
 LUSCOMB V. BALLARD, Case No 140 
 post. ' 
 
 BOMFORD V. GRIMES, Case No. 141, post 
 HATCH V. PROCTOR, Case No. 142, post. 
 
 § 104. The Executor. 
 
 Shep. Touch. 459.— Any person that may 
 make a testament, and devise his goods and 
 chattels, may make an executor. And a wo- 
 man that hath a husband, as to the goods 
 6G 
 
 and chattels she hath as executrix to an- 
 other, and as to her own goods and things 
 in action, viz. debts due unto her upon ob- 
 ligations, and especialties made to her alone, 
 before, or after her marriage, may make an 
 executor. And he that mify.makean execu- 
 tor, may make either one, two, three, or more 
 his executors at his pleasure. And he may, 
 if he will, make one man. his executor for one 
 year, and another man his executor for an- 
 other year; or one man his executor untU 
 such a time, and then another his executor; 
 as one may make A. and B. his executors, 
 and that B. shall not meddle during the life 
 of A. And a man may make one man ex- 
 ecutor for one part of his est-ite, and another 
 man his executor for the other part of his 
 estate; or one may make one man executor 
 as to part of his estate, and die intestate as . 
 to the residue of his estate: also a man may 
 appoint one to be his executor, if he will 
 accept it, and if he refuse, that another shall 
 be his executor. And lastly, a man may 
 make another his executor upon condition, 
 viz. so as he give bond to such and such men 
 to perform his will, or the like : and aU these 
 nominations and appointments of executor 
 are good. ' 
 
 Shep. Touch. 460.— Any person that may be 
 a legatee, and talie by the devise of goods 
 and chattels, may be an executor; and there- 
 fore it is said, that any person or persons 
 male or female, of the clergy or laity, chil- 
 dren or strangers, friends or enemies, mar- 
 ried or unmarried, creditor or debtor, bond 
 or free, may be an executor. And that a 
 bastard, an excommunicate, or an outlawed 
 person, may be as able and as absolute an 
 executor as any other. And an infant or 
 child in utero matils may be- an executor; 
 but he cannot meddle with the administra- 
 tion of the goods until he be of the age of 
 seventeen years; and tlaerefore the ordinary 
 must grant the administration unto some 
 other until that time, in trust and for the 
 benefit of the infant. And a woman that 
 hath a husband may be an executrix to any 
 other person. Also a woman may be ex- 
 ecutrix to her own husband, and the hus- 
 band may be executor to his own wife, and 
 by this means he may recover all the debts 
 due to her upon obligations, recognisances, 
 and the like, made to her before or after the 
 marriage, and the goods that were taken 
 away from her before the maiTlage; all 
 which the husband shall not have but by 
 executorship or an administration of her 
 goods and chattels. And all these pwsons 
 that may be executors, may be executors by 
 that name as they may be devisees; and yet 
 if there be two of one name, and the tes- 
 tator make one of that name his executor, 
 and doth not say, neither can it be discerned 
 which of them he doth intend; in this case 
 neither of them shall be executor. But it 
 is said, that a heretic, apostate, traitor, 
 felon, recusant convict, sodomite, libeller. 
 
€h. 7) AGENCIES EFFECtlNG THE DEVOLUTION OF PROPERTY. § 104 
 
 bastard begotten in incest, or a notorious 
 usui'er, cannot be an executor: and that if 
 a man be for any of ttiese causes incapable 
 at the time of the death of the testator, 
 when the executor is to take upon him the 
 executorship, that he is for ever incapable; 
 but it liath been held by the common law, 
 that a person attaint may be an executor.' 
 
 Shep. Touch. 4(51.— The most apt and prop- 
 er words, whereby to constitute an executor, 
 are, I make I. S. my executor; or, I make I. 
 S. the executor of my will, &c. But an 
 executor may be constituted by other words 
 equivalent or by implication: and therefore, 
 if a man say in his will, I will that I. S. 
 shall be my general administrator; or, I will 
 that I. S. shall administer all my goods; or, 
 I will that 1. S. shall dispose all my goods 
 and chattels; or I commit all my goods to I. 
 S. or, I commit all my goods to the disposi- 
 tion of I. S. or, I make I. S. lord of all my 
 goods; or, I make I. S. legatary of all my 
 goods; or, I leave all my goods to I. S. or, 
 I give aU my goods to I. S. and make no 
 other executor; in all these cases, I. S. by 
 intendment of law is made executor of all 
 the goods and chattels of the deceased: so if 
 a man say, of all my goods I make I. S. and 
 say no more, but omit the word [executor;] 
 by these words I. S. is made executor: so if 
 one say, I wiU that 1. S. shall dispose of all 
 the goods that are in his hands; by these 
 words I. S. as to those goods is made ex- 
 ecutor: so if I deliver goods to I. S. to keep 
 mitil my death, and then to distribute ad 
 pios usus, or for my soul, hereby I. S. is 
 made executor of those goods. So if one 
 say, I will that I. S. shall be my executor. 
 If I. D. will not; by this I. D. is made 
 executor in the first place by implication, 
 and if he refuses, then I. S. shall be execu- 
 tor. But if a man make A. and B. his execu- 
 tors, and say, I will I. S. shall be a coadju- 
 tor, or helper to A. and B. ad distribuendum, 
 or administrandum bona mea; or, I will 
 that I. S. shall be surveyor or supervisor 
 of my will; in these cases and by these 
 words, I. S. is not made executor with A. 
 B. And yet if he say, I will that I. S. 
 shall have administration of my goods, or 
 be executor with A. and B. or be adminis- 
 trator with A. and B. in these cases and by 
 these words, I. S. is made Joint executor 
 with A. and B. And if one, supposing I. 
 S. to be dead, say, I will tliat I. D. shall be 
 my executor, because I. S. is dead; in this 
 case and by these words, T. S. if he be liv- 
 ing, is made executor first, and if he refuses 
 I. D. shall be executor; if one make A. B. 
 and C. his executors, and then saith after- 
 wards, and I will that B. shall administer 
 my goods alone or that B. only shall admin- 
 ister my goods; it seems in these cases, B. 
 only is made executor, and that A. and 0. 
 are not made joint-executors with him. 
 
 2 Bl. Comm. 503.— An executor is he to 
 whom another man commits by will the 
 
 execution of that his last will and testa- 
 ment. And all persons are capable of being 
 executors, that are capable of making wills, 
 and many others besides; as feme coverts 
 and infants; nay, even infants unborn, or 
 in ventre sa mere, may be made executors. 
 But no infant can act as stich till the age of 
 seventeen years; till which time adminis- 
 tration must be granted to some other, du- 
 rante minore oetate. In like manner as it 
 may be granted durante absentia, or pen- 
 dente lite; when the executor is out of the 
 realm, or when a suit is commenced in the 
 ecclesiastical court touching the vaUdity of 
 the will. This appointment of an executor 
 is essential to the making of a will: and it 
 may be performed either by express words, 
 or such as strongly imply the same. But If 
 the testator makes an incomplete will, with- 
 out naming any executors or if he names in- 
 capable persons, or if the executors named 
 refuse to act; in any of these cases the ordi- 
 nary must grant administration cum testa- 
 mento annexo to some other person; and 
 then the duty of the administrator, as also 
 when he is constituted only durante minore 
 oetate, &c., of another, is very little differ- 
 ent from that of an executor. And this was 
 law so early as the reign of Henry II; when 
 Glanvil informs us that "testameriti execu- 
 tores esse debentii, quos testator ad hoc 
 elegerit, et quibus curam iiise comiserit; si 
 vero testator nuUos ad hoc nominaverit, 
 possunt propinqui et consanquinei ipsius de- 
 funct! ad id faciendum se ingerere." 
 
 2 Bl. Comm. 505. — The interest vested in 
 the executor by the will of the deceased may 
 be continued and kept alive by the will of 
 the same executor: so that the executor of 
 A.'s executor is to all intents and purposes 
 the executor and representative of A. him- 
 self; but the executor of A.'s administrator, 
 or the administrator of A.'s executor, is not 
 the representative of A. For tlie power of 
 an executor is founded upon the special con- 
 fidence and actual appointment of the de- 
 ceased; and such executor is therefore al- 
 lowed to transmit that power to another, in 
 whom he has equal confidence; but the ad- 
 ministrator of A. is merely the oflicer of the 
 ordinaiy, prescribed to him by act of parlia- 
 ment; in whom the deceased has reposed no 
 trust at all: and therefore, on the death of 
 that officer, it results back to the ordinary 
 to appoint another. And, with regard to the 
 administrator of A.'s executor, he has clearly 
 no privity or relation to A.; being only com- 
 missioned to administer the effects of the 
 intestate executor, and not of the original 
 testator. Wherefore, in both these cases, 
 and whenever the course of representation 
 from executor to executor is interrupted by 
 any one administration, it is necessary for 
 the ordinary to commit administration 
 afresh, of the goods of the deceased not ad- 
 ministered by the former executor or admin- 
 istrator. And this administrator de bonis 
 
 67 
 
§§ :0i-107 AGENCIES EFFECTIXG THE DEVOLUTION OF PEOPERTY. (Ch. 7 
 
 non, is the only legal reiDi-esentativc of the 
 deceased in matters of personal property. 
 But he may, as well as an original adminis- 
 trator, have only a limited or special admin- 
 istration committed to his care, viz. of cer- 
 tain specific efCects, such as a term of years, 
 and the lilie; the rest being committed to 
 others. 
 
 4 Kent, Oomm. 518.— At common lave, an 
 Infant could act as an executor at the age of 
 seventeen; though this is now altered in 
 England, by the statute of 38 Geo. III. c. 87; 
 and an alien could be an executor. The ex- 
 ecutor might act without letters testamen- 
 tary; and if one of several executors re- 
 nounced, he might afterwards come in and 
 administer; though the court of chancery 
 might exact from him security. An ex- 
 ecutor of an executor succeeded to the trust 
 of the first executor. But, by the New- 
 York Revised Statutes, some judicious im- 
 provements are made upon the antecedent 
 law. It is declared that infants under the 
 age of twenty-one years, and aliens, not be- 
 ing inhabitants of the state, are not com- 
 petent to serve as executors; nor is a mar- 
 ried woman entitled to letters testamentary, 
 unless with the consent in writing of her 
 husband; and in that case he is deemed re- 
 sponsible for her acts jointly with her. A 
 non-resident executor is required to give the 
 like bond as is required by law of adminis- 
 trators; and on the objection of a creditor, 
 or other person interested in the estate, the 
 surrogate, on reasonable cause shown, may 
 require the like secm'ity from any executor, 
 either before or after letters testamentary 
 ai-e granted. If letters be granted upon any 
 will, the executors not named in them can- 
 not act until they appear and qualify; nor 
 can an executor interfere with the estate, 
 except to pay funeral charges, before letters 
 testamentary are granted; and the power of 
 an executor of an executor, to administer on 
 the estate of the first testator, is abolished. 
 These provisions are calculated to secure 
 fidelity and increase confidence in the execu- 
 tion of a delicate and dangerous trust. 
 
 § 105. Same — Who may be an 
 Executor. 
 
 HILLS V. MILLS, Case No. 143, post. ' 
 MINNESOTA L. & T. CO. v. BEEBE, 
 Case No. 144, post. 
 
 § 106. Same — Appointment. 
 
 REX V. RAINES, Case No. 145, post. 
 IN RE GOODS OF RYDER, Case No. 146, 
 post. 
 
 HILLS V. MILLS, Case No. 143, post 
 
 § 107. The Administrator. 
 
 Shep. Touch, p. 461.— In all cases where a 
 man hath any goods or chattels to admin- 
 ister, and he doth die a natural or civil 
 68 
 
 death, and dieth intestate, either in deed, 
 i. e. doth make no will at all, nor appoint 
 any executor, or in law, i. e. that doth make 
 one or more his executor or executors, and 
 he or they, so appointed, is or are such per- 
 sons as are not in being, or if they be in be- 
 ing, is or are so Incertainly named, that it 
 cannot be discerned whom the testator doth 
 intend; or, if he is or they be well named, 
 he is or they are all incapable by reason of 
 some legal impediment; or if otherwise they 
 be capable, they do all die before the will be 
 proved; or if they live, if being cited to 
 come in before the ordinary to prove the 
 will, they either refuse to appear, or, if they 
 do appear, they refuse to prove the will, 
 and to take upon them the administration 
 of the goods and chattels of the deceased; 
 in all these cases, the ordinary may and 
 ought to grant the administration of all the 
 goods and chattels of the deceased to him 
 that of right it doth belong unto, according 
 to his discretion. And if a man make a will, 
 and, after the death of the testator, the ex- 
 ecutor prove it, and then die intestate, the 
 ordinary must grant the administration of 
 the goods of the first testator, not adminis- 
 tered in the hands of the executor to some 
 competent person or persons according to 
 his discretion: but where a man hath no 
 goods and chattels to administer, i. e. either 
 he hath none, or, if he have they are none 
 of his, or if they are, there is an executor 
 named, in rerum natura, capable, and well 
 named, and he doth accept, or at least hath 
 not refused, the executorship; in these cases, 
 the administration ought not to be granted; 
 or if it be granted, it will be void or voida- 
 ble at the least; and where an administra- 
 tion is grantable, it is to be granted by, 
 and had from the ordinary of the diocese, 
 where the party, whose goods are to be ad- 
 ministered, lived at the time of his death; 
 for regularly he that shall have the probate 
 of the will, in case where a man doth make 
 a will, shall have the granting of the ad- 
 ministration of his goods and chattels, in 
 case he die intestate; and therefore if all 
 the goods and chattels of the party deceased 
 be within the same diocese wherein the intes- 
 tate lived and died; the ordinary of that 
 diocese, or his lawful deputy, or commis- 
 sary, or the archdeacon Of the diocese, or 
 his deputy or official (as the custom of 
 the country is) or the dean and chapter, 
 in time of vacation of the bishoprick, shall 
 grant the administration, and the admin- 
 istration he had from him: but if there 
 be bona notabilia in the case, viz. if the 
 party deceased have goods or chattels of 
 the value of five pounds or upwards, lying 
 and being at the time of his decease in divers 
 dioceses; in this case, the archbishop or 
 metropolitan of the diocese wherein the par- 
 ty died, or, sede vacante, the dean and chap- 
 ter being guardian of the spiritualties, and 
 not the ordinary of the particular diocese, 
 
Ch. 7) AGENCIES EFFECTIXG THE DEVOLUTION OP PROPERTY. § 107 
 
 shall grant the administration; and it must 
 be had from him; for if the ordinary of the 
 particular diocese grant it when it ought to 
 be granted by the metropolitan, the adminis- 
 tration Is void, not only as to the goods that 
 lie within the other diocese, but also as to 
 the goods lying within the same diocese; 
 and so is it also, if it be granted by the ordi- 
 nary of another particular diocese, as if A. 
 die within the diocese of Lincoln, the king 
 being Indebted to him at the time of his 
 death, and the administration of his goods 
 and chattels is granted by the bishop of 
 London; this administration is void; and if 
 the metropolitan do grant an administration, 
 when it ought to be gi-anted by the ordinary 
 of the particular diocese, the administration 
 is voidable by sentence of the same court 
 out of which it is granted; if one die in Ire-' 
 land, and have nothing but an especialty 
 for money, and that especialty doth lie in 
 England, the ordinai"y of the diocese, within 
 which that place is where the especialty 
 ■doth lie, shall commit the administration; 
 and if the ordinary of another diocese grant 
 it, the administration is void; and therefore 
 the case was, a merchant in Ireland was 
 bound in an obligation of forty pounds to 
 one I. S. in London, and the obligation was 
 made in Ireland, but remained always In 
 London, and the merchant died Intestate in 
 the county of Bedford, in England, and a 
 bishop of Ireland did commit the adminis- 
 tration to one, and the archbishop of Can- 
 terbury did commit it to the wife of the in- 
 testate who had the obligation; in this case, 
 the last administration was adjudged good; 
 and it was there held, that the administra- 
 tion shall be granted by the ordinary of 
 the place, where the especialty doth lie at 
 the time of the death of the intestate, and 
 not by the ordinary of the place where the 
 ■debt began. And in cases where the ad- 
 ministration is grantable by the ordinary 
 and others as before, such persons, having 
 power to grant it, may not grant it to whom 
 they please; but as they are bound to grant 
 it, and cannot refuse so to do, so are they 
 directed and appointed to whom they shall 
 grant it. For it is appointed by a special 
 law, that the ordinary shall depute the next 
 friends of the intestate to administer his 
 goods if they desire it; and the administra- 
 tion is to be committed to the widow, or 
 next of blood, or both, to the intestate; and 
 where there be divers in equal degree, and 
 they all sue for it, the ordinary may accept 
 them all, or refuse some of them, and com- 
 mit the administration to the rest only; and 
 if some of them only sue for it, he may grant 
 it to them only: so that now the law and 
 course is to grant the administration to the 
 nearest of kin to the deceased: as 1. To the 
 husband or wife; and, if there be none such, 
 2. To the children, sons or daughters: and if 
 there be none such, 3. To the parents, father 
 or mother: and if there be none such, 4. 
 
 To the brothers or sisters of the whole blood: 
 and if there be none such, 5. To the bi'oth- 
 ers and sisters of the half blood: and if 
 there be none such, 6. To the next of kin, 
 uncles, &c. And if these come in time and 
 desire the administration, the ordinary may 
 and must grant it to them, and cannot grant 
 it to any other if they be capable of it, as 
 most men are: and if divers of these in 
 equal degree desire it, the ordinary may 
 grant to which of them he pleaseth: howso- 
 ever in this case, it seems most just and 
 equal to grant it to them all, unless he have 
 some special reason to admit some and ex- 
 clude the rest: and if none of these that 
 are next of kin shall desire it, but suffer the 
 time to slip; in this case the ordinary may 
 grant it to whatsoever stranger he please. 
 And yet then perhaps the next of kin may 
 by suit get the same administration revoked, 
 and a new administration granted to him. 
 See infra, at numb. 41. 
 
 Shep. Touch. 464.— An administration may 
 and must be granted in writing under seal, 
 for by word of mouth it may not be granted: 
 and it may be granted as well upon condi- 
 tion as absolute: and It may be granted as 
 well for a part of the estate as the whole: 
 and therefore, if a man have goods in two 
 provinces, and he make a will of his goods 
 In one of the provinces, and die intes- 
 tate for the goods in the other province, 
 an administration may be granted for the 
 goods in this province; also an administra- 
 tion may be granted during, or until a cer- 
 tain time, or continually. And therefore, if 
 a man make a will, and appoint an executor 
 for seven years, after the seven years ended, 
 the ordinary may and must gi'ant an ad- 
 ministration of the goods. So if one do ap- 
 point another to be his executor, a year 
 after his death, the ordinary may and must 
 grant the administration for that year, until 
 the power of the executor doth take place; 
 and all these administrations are good. 
 
 If an executor die before he hath proved 
 the wIU, and he hath made a testament, and 
 appointed an executor therein; In this case, 
 this executor also shall be executor to 
 the first testator, as he Is to the second, and 
 he shall have all the benefit, and be subject 
 to all the charge that the first executor had 
 and was subject unto; and yet the goods of 
 one testator shall not be subject to the debts 
 of the other; but each of the testator's goods 
 shall be subject to the payment of his own 
 debts only. And if In this case the executor 
 of the executor take upon him the adminis- 
 tration of the goods of the first testator, he 
 cannot refuse the administration of the 
 goods of the latter; but he may take upon 
 him the latter and refuse the former. But 
 if the executor refuse to administer to 
 the first testator before the ordinary, or die 
 before the probate of the will, and he hath 
 made a testament and appointed an executor 
 therein; in these cases it seems the executor 
 
 69 
 
§ 107 AGENCIES EFFECTING THE DEVOLUTION OF PKOPEETY. (Ch. 7 
 
 of the executor shall not administer the 
 goods of the first testator, but the ordinary 
 must grant the administration thereof: and 
 yet if all the residue of the goods of the first 
 testator be given by the testament to the 
 first executor after the debts be paid; in this 
 case, albeit he die before probate of the will, 
 yet his executor shall be executor also to the 
 first testator, or else he shall have the ad- 
 ministration of his goods and chattels grant- 
 ed unto him: and therefore, if A. make his 
 ■will, and give legacies to B. and D. and give 
 all the rest of his goods and chattels, after 
 debts and legacies paid, to C. his vyife, and 
 make her his sole executrix, and she die be- 
 fore probate of the will, or any election 
 made, not knowing of the will, and E. sue 
 out administration of the goods of A. and 
 pay the legacies to B. and D. and F. sue out 
 an administration of the goods of C. In this 
 case the administrator of C. and not of A. 
 shall have the goods: for the law doth judge 
 them in C. after the debts and legacies paid 
 without any election. 
 
 Shep. Touch. 465.— If an executor, after he 
 hath proved the testator's will, die intestate; 
 In this case the administration of the goods 
 of the first testator not administered in the 
 hands of the executor must be granted to 
 whom the ordinary shall think fit: and if 
 the ordinary please, he may grant the ad- 
 ministration .de bonis non administratis of 
 the first deceased, and of the goods of the 
 second deceased, to one and the same person: 
 and herein the administrator must take care 
 that his administration have special words 
 for the granting of an administration of the 
 goods of the first testator, not administered; 
 for howsoever some hold that, by the general 
 administration, the administrator shall have 
 not only the goods of the executor, but the 
 goods of his testator also, yet it seems this 
 is not taken to be law at this day. 
 
 If there be two executors made, and one 
 of them doth refuse before the ordinary, and 
 -he other doth prove the wiU, and make a 
 will himself and appoint an executor, and 
 then die; in this case it seems the executor 
 of the executor that did prove the will alone 
 shall have the disposition of all the estate, 
 and be executor to the first testator; and 
 that the surviving executor shall not meddle 
 therewith, for that his election by the death 
 of his companion is not gone. And if one 
 make two executors, and one of them doth 
 make an execut- ■ and die, and the other that 
 doth survive ha.u accepted the executorship; 
 in this case the surviving executor shall have 
 the sole disposing of the estate, and the ex- 
 ecutor of the deceased executor shall not 
 intermeddle therewith: and if therefore the 
 sui-viving executor die intestate, an adminis- 
 tration de bonis non administratis of the 
 first testator shall be granted: and if the 
 executor of the deceased executor have any 
 of the estate in his hands, the sm-viving ex- 
 ecutor may take or recover it from him; and 
 70 
 
 if two be made executors, and one of them is 
 incapable; in this case he that is capable 
 shall administer alone. 
 
 If one that is administrator of another 
 man's goods do make his will and make an 
 executor and die; or do die Intestate, and 
 the administration of his goods granted to 
 somebody; in the first of these cases, the 
 executor, and in the last, the administrator, 
 unless he be made administrator of these 
 goods also, shall not meddle with these goods 
 of the first deceased: but the administration 
 of the goods of the first deceased in the 
 hands of the administrator not administered, 
 must be granted again. And hence it is, 
 that if the administrator of my goods have 
 a judgment for a debt due to me, and he 
 die before execution, and make an executor, 
 or die intestate, that, in this case, his execu- 
 tor or administrator shall never have execu- 
 tion of this judgment. And the same law 
 is of the administrator of my executor in 
 this case. 
 
 2 Bl. Comm. 494.— In case a person made 
 no disposition of such of his goods as were 
 testable, whether that were only part or the 
 whole of them, he was, and is, said to die 
 intestate; and in such cases it is said, that 
 by the old law the king was entitled to seize 
 upon his goods, as the parens patriae, and 
 general trustee of the kingdom. This prerog- 
 ative the king continued to exercise for 
 some time by his own ministers of justice; 
 and probably in the county coiu-t, where 
 matters of all kinds were determined: and 
 it was granted as a franchise to many lords 
 of manors, and others, who have to this day 
 a prescriptive right to grant administi-ation 
 to their intestate tenants and suitors, in 
 their own courts baron, and other com-ts, 
 or to have their wills there proved, in case 
 they made any disposition. Afterwards, the 
 crown, in favour of the church, invested the 
 prelates with this branch of the prerogative; 
 which was done, saith Perkins, because it 
 was intended by the law, that spiritual men 
 are of better conscience than laymen, and 
 that they had more knowledge what things 
 would conduce to the benefit of the soul of 
 the deceased. The goods, therefore, of in- 
 testates were given to the ordinary by the 
 crown; and he might seize them, and keep 
 them without wasting, and also might give, 
 aliene, or sell them at his will, and dispose 
 of the money in pios usus: and, if he did 
 otherwise, he broke the confidence which the 
 law reposed in him. So that, properly, the 
 whole interest and power which were grant- 
 ed to the ordinary, were only those of being 
 the king's almoner within his diocese; in 
 trust to distribute the intestate's goods in 
 charity to the poor, or in such superstitious 
 uses as the mistaken zeal of the times had 
 denominated pious. And, as he had thus 
 the disposition of, intestates' effects, the 
 probate of wills of coiu'se followed: for it 
 was thought just and natural, that the will 
 
Ch. 7) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 107 
 
 of tbe deceased should be proyed to the satis- 
 faction of the prelate, whose right of dis- 
 tributing his chattels for the good of his soul 
 was effectually superseded thereby. 
 
 The goods of the intestate being thus vested 
 in the ordinary upon the most solemn and 
 conscientious trust, the reverend prelates 
 were, therefore, not accountable to any, but 
 to God and themselves, for their conduct. But 
 eveninFleta'stime it was complained "quod 
 or linarii, hujusmodi bona nomine ecclesiae 
 occupantes nuUam vel saltem indebtiam faci- 
 unt distributionem." And to what a length 
 of lniq\iity this abuse was carried, most evi- 
 dently appears from a gloss of Pope Inno- 
 cent IV, written about the year 1250; where- 
 in he lays it down for established canon 
 law, that "in Britannia tertia pars bonorum 
 decendentium ab intestato in opus ecclesiae 
 et pauperum dispensanda est." Thus, the 
 popish clergy took to themselves (under the 
 name of the church and poor) the whole resi- 
 due of the deceased's estate; after the partes 
 rationabiles, or two thirds, of the wife and 
 children were deducted; without paying 
 even his lawful debts, or other charges there- 
 on. For which reason it was enacted by 
 the statute of Westminster II, that the 
 ordinary shall be bound to pay the debts of 
 the intestate so far as his goods will extend, 
 in the same manner that executors were 
 bound in case the deceased had left a will: 
 a use more truly pious, -than any requiem, 
 or mass for his soul. This was the first 
 checli given to that exorbitant power, which 
 the law had entrusted with ordinaries. But, 
 though they were now made liable to the 
 creditors of tlie intestate for their just and 
 lawful demands; yet the residuum, after 
 payment of debts, remained still in their 
 hands, to be applied to whatever purposes 
 the conscience of the ordinary should ap- 
 prove. The flagrant abuses of which power 
 occasioned the legislature again to interpose, 
 in order to prevent the ordinaries from keep- 
 ing any longer the administration in their 
 own hands, or those of their immediate de- 
 pendents: and therefore the statute 31 Edw. 
 Ill, c. 11, provides, that, in case of intes- 
 tacy, the ordinary shall depute the nearest 
 and most lawful friends of the deceased to 
 administer his goods; which administrators 
 are put upon the same footing, with regard 
 to suits and to accounting, as executors ap- 
 pointed by will. This is the original of ad- 
 ministrators, as they at present stand; who 
 are only the officers of the ordinary, appoint- 
 ed by him in pursuance of this statute, which 
 singles out the next and most lawful friend 
 of the intestate; who is interpreted to be 
 the next of blood that is under no legal dis- 
 abilities. The statute 21 Hen. VIII, c. 5, 
 enlarges a little more the power of the ec- 
 clesiastical judge; and permits him to grant 
 administration either to the widow, or the 
 next of Mn, or to both of them, at his own 
 discretion; and where two or more persons 
 are in the same degree of kindred, gives the 
 
 ordinary his election to accept which ever 
 he pleases. 
 
 2 Bl. Comm. 406.— Upon this footing stands 
 the general law of administration at this 
 day. I shall, in the farther progi-ess of this 
 chapter, mention a few more particulars, 
 with regard to who may, and who may not, 
 be administrator; and what he is bound to 
 do when he has taken this charge upon him; 
 what has been hitherto remarked only serv- 
 ing to show the original and gradual progress 
 of testaments and administrations; in what 
 manner the latter was first of aU vested in 
 the bishops by the royal indulgence; and 
 how it was afterwards, by authority of par- 
 liament, taken from them in effect, by ob- 
 liging them to commit all their power to par- 
 ticular persons nominated expressly by the 
 law. 
 
 2 Bl. Comm. 503.— But if the deceased died 
 wholly intestate, without making either will 
 or executors, then general letters of adminis- 
 ti'ation must be granted by the ordinary to 
 such administrator as the statutes of Edward 
 the Third and Henry the Eighth, before 
 mentioned, direct. In consequence of which 
 we may observe: 1. That the ordinary is 
 compellable to grant administration of the 
 goods and chattels of the wife, to the hus- 
 band, or his representatives: and of the- hus- 
 band's effects, to the widow, or next of kin; 
 but he may grant it to either, or both, at his 
 discretion. 2. That, among the kindred, 
 those are to be preferred that are the nearest 
 in degree to the Intestate; but, of persons 
 in equal degree, the ordinary may take which 
 he pleases. 3. That this nearness or pro- 
 pinquity of degree shall be reckoned accord- 
 ing to the computation of the civilians; and not 
 of the canonists, which the law of England 
 adopts in the descent of real estates: be- 
 cause, in the civil computation, the intestate 
 himself is the terminus, a quo the several 
 degrees are numbered; and not the common 
 ancestor, according to the rule of tlie canon- 
 ists. And, therefore, in the tirst place the 
 children, or (on failure of children) the par- 
 ents of the deceased, are entitled to the ad- 
 ministration; both which are indeed in the 
 first degree; but with us the children are 
 allowed the preference. Then follow broth- 
 ers, grandfathers, uncles or nephews, (and 
 the females of each class respectively,) and 
 lastly, cousins. 4. The half-blood is admit- 
 ted to the administration as well as the 
 whole; for they are of the kindred of the 
 intestate, and only excluded from inheritance 
 of land upon feudal reasons. Therefore the 
 brother of the half-blood shall exclude the 
 uncle of the whole blood: and the ordinary 
 may grant administration to the sister of 
 the half, or the brother of the whole blood, 
 at his discretion. 5. If none of the kindred 
 will take cut administration, a creditor may. 
 by custom, do it. 6. If the executor refuses, 
 or dies intestate, the administration may be 
 granted to the residuary legatee, in exclusion 
 of the next of kin. 7. And, lastly, the ordi- 
 
 71 
 
§ 1U7 AGENCIES EEFECTING THE DEVOLUTION OP PHOPEliTY. (Ch. 7 
 
 nary may, in defect of all these, commit ad- 
 ministration, (as lie might have done before 
 tlie statute of Edward III,) to such discreet 
 lierson as he approves of; or may grant him 
 letters ad colligendum bona defuncti, vehich 
 neither maizes him executor nor administra- 
 tor; his only business being to keep the 
 goods in his safe custody, and to do other 
 acts for the benefit of such as are entitled 
 to the property of the deceased. If a bas- 
 tard, who has no liindred, being nuUius Alius, 
 or any one else that has no kindred, dies 
 Intestate, and without wife or child, it for- 
 merly hath been held that the ordinary 
 might seize his goods and dispose of them 
 In pios usus. But the usual course now is 
 tor some one to procure letters patent, or 
 other authority from the king: and then the 
 ordinary of course grants administration to 
 such appointee of the crown. 
 
 2 Kent, Comm. 410.— Administration is di- 
 rected, by the New York Revised Statutes, 
 to be granted to the husband on the wife's 
 T)ersonal estate, and in other cases to the 
 "Widow and next of kin, or to some one of 
 them, if they, or any of them, will accept in 
 the folio vring order; first, to the widow; 
 second, to the children; third, to the father; 
 "fourth, to the brothers; fifth, to the sisters; 
 :sixth, to the grandchildren; seventh, to any 
 other of the next of kin who would be en- 
 titled to a share in the distribution of the 
 estate. Under the English law, (and the 
 law of New York, and it is presumed, the 
 law of the other states, is the same,) the 
 surrogate has the discretion to elect among 
 the next of kin, any one in equal degree, in 
 ■exclusion of the rest, and to grant to such 
 person sole administration. So, under the 
 English law, he may grant administration 
 to the widow or next of kin, or to both joint- 
 ly, at his discretion.^ To guard against im- 
 position or mistake in issuing letters of ad- 
 ministration prematurely, the surrogate is re- 
 quired to have satisfactory proof, that the 
 person of whose estate administration is 
 claimed is dead, and died intestate; and 
 when application is made to administer, by 
 ■any person not first entitled, there must be 
 «, written renunciation of the party having 
 the prior right to administer, or a citation 
 to show cause is to be first issued to all such 
 persons, and duly served or otherwise pub- 
 lished. 
 
 2 Kent, Comm. 411.— According to the pro- 
 vision in the New York Revised Statutes, if 
 none of the relatives, or guardians of infant 
 relatives, (for the guardians of minors who 
 are entitled may administer for them,) will 
 accept the administration, then it is to be 
 given to the creditors of the deceased; and 
 the creditor first applying, if otherwise com- 
 petent, is to be preferred. If no creditor ap- 
 plies, then to any other person legally com- 
 petent. In the city of New-York, the public 
 
 ^ ' Fawtry v. Fawtry, 1 Salk. 30; 1 Strange, 
 72 
 
 administrator has preference after the next 
 of kin; and in tlie other counties, the county 
 treasurer has preference next after creditors. 
 In the case of a married woman dying intes- 
 tate, the husband is entitled to administra- 
 tion, in preference to any other person; and 
 he is liable as administrator for the debts 
 of his wife, only to the extent of the assets 
 received by him. If he does not administer 
 on her estate, he is presumed to have assets, 
 and is liable for her debts. Under the Eng- 
 lish law, at least, until lately. If the husband 
 dies leaving the goods of the former wife 
 unadministered, the right of administration 
 de bonis non belongs to the next of kin of 
 the wife; though the right of property be- 
 longs to the representatives of the husband. 
 The principle of the English statute of 21 
 Hen. VIII. was to vest the administration de 
 bonis non in the person who was next of kin 
 at the time of the intestate's death, and who 
 was possessed of the beneficial interest in 
 the personal estate. The case of Hole v. 
 Dolman, in 1736, was an anomalous case, 
 and established an exception to a general 
 rule; for the original administration to a 
 feme covert was granted to her next of kin, 
 in preference to the representative of the 
 deceased husband, who survived her, and in 
 whom the interest was vested.'' 
 
 2 Kent, Comm. 412.— When there are sev- 
 eral persons of the same degree of kindred 
 to the intestate entitled to administration, 
 they are preferred in the following order; 
 first, males, to females; second, relatives of 
 the whole blood to those of the half blood; 
 third, unmarried, to married women; and 
 when there are several persons equally enti- 
 tled, the surrogate, in his discretion, may 
 grant letters to one or more of them. No 
 person convicted of an infamous crime, or 
 incapable by law of making a contract, nor 
 a non-resident alien, or minor or feme co- 
 vert, or person deemed incompetent by the 
 surrogate by reason of drunkenness, improv- 
 idence, or want of understanding, is entitled 
 to administer; but the husband is entitled to 
 administer in the right and behalf of his 
 wife: and with the consent, in writing, of 
 the party entitled, one or more competent 
 persons may be associated by the sm-rogate 
 with an administi-ator. The husband who 
 administers on his wife's estate is now bound 
 (though contrary to the English law, and the 
 former law of New-Xork) to give a bond, in 
 the same manner as other administrators; 
 yet he is not bound, in consequence of it, to 
 distribute the estate after the debts are 
 paid; but he continues to enjoy it according 
 to the rules of the common law. 
 
 2 Kent, Comm. 413.— If letters of adminis- 
 tration, should happen to have been unduly 
 granted, they may be revoked; and adminis- 
 tration may be granted upon condition, or 
 for a limited time, or for a special purpose; 
 
 "1 H'lgg. Ecc. 341, note; 2 Hagg. Ecc. Ap- 
 pend. 165. 
 
■Ch. 7) AGENCIES EFFKCTING THE DEVOLUTION OF PROPERTY. §§ 137-108 
 
 as for the collection and preservation of the 
 goods of the deceased; and it is the received 
 doctrine, that aU sales made in good faith, 
 and all lawful acts done either by adminis- 
 trators before notice of a will or by execu- 
 tors or administrators, who may be removed 
 or superseded, or become incapable, shall re- 
 main valid, and not be impeached on any 
 will appearing, or by any subsequent revo- 
 cation or superseding of the authority of 
 svLch executors or administrators." 
 
 The nearness of kin, under the English 
 law, is computed according to the civil law, 
 which makes the intestate himself the ter- 
 minus a quo, or point from whence the de- 
 grees are numbered; and, therefore, the chil- 
 dren and parents of the intestate are equally 
 near, being all related to him in the first de- 
 gree; but in this instance the siirrogate has 
 not his option between them, but must pre- 
 fer the children. And from the children and 
 parents the next degree embraces the broth- 
 ers and grandparents, and so on in the same 
 order. The law and com-se, In those states 
 which foUow the English law, must be to 
 grant administration, first, to the husband 
 ■or wife; second, to the children, sons or 
 daughters; third, to the parents, father or 
 mother; fourth, to the brothers or sisters 
 ■of the whple blood; fifth, to the brothers or 
 sisters of the half blood; sixth, to the grand- 
 parents; seventh, to uncles, and aunts, and 
 nephews, and nieces, who stand in equal dp- 
 gree; eighth, to cousins.* Grandmothers are 
 preferred to aunts, as nearer of kin; for the 
 grandmother stands in the second degree to 
 the intestate, and the aunt in the third." If 
 none of the next of kin will accept, the sur- 
 rogate may exercise his discretion whom to 
 appoint; and he usually decrees it to the 
 claimant who ' has the greatest interest in 
 the effects of the intestate." If no one offers, 
 he must then appoint a mere trustee ad col- 
 ligendum, to collect and keep safe the effects 
 of the intestate; and this last special ap- 
 pointment gives no power to seU any part 
 ■of the goods, not even perishable articles; 
 nor can the surrogate confer upon him that 
 power.' This very inconvenient want of pow- 
 er is supplied by the New York Revised 
 Statutes; and an administrator ad colligen- 
 dum, (who is called in the statute a collect- 
 or) may, under the direction of the surro- 
 gate, sell perishable goods, after they shall 
 Tiave been appraised. 
 
 Magna Carta of King John, c. 27. (Statute 
 
 No. 2. post.) 
 31 Edw. III. c. 11. (Statute No. 8, post.) 
 21 Hen. VIII. c. 5, §§ 3, 4. (Statute No. 9, 
 
 •post.) 
 
 ' 2 Shep. Touch, by Preston, 464. 
 
 * 2 Shep. Touch, by Preston, 453; Durant 
 V. Prestwood, 1 Atk. 454. 
 
 ° Blackhorough v. Davis, 1 P. Wms. 41. 
 
 "Tucker v. Westgarth, 2 Addams, Ece. 352. 
 
 '1 KoUe, Abr. tit. "Executor," c. 1; 2 Shep. 
 "Touch, by Preston, 488. 
 
 § 108. Same — Who may be an Ad- 
 ministrator — In General. 
 
 Williams, Bx'rs, 346.— In the further consid- 
 eration of this mode of computing proximity 
 of kindred, and the right to administration 
 derived from it, several remarkable distinc- 
 tions may be observed, with reference to the 
 corresponding rules of the common law, re- 
 specting succession to inheritances. 
 
 Williams, Ex'rs, 347.— 1st. Relations by 
 the father's side and the mother's side, are 
 in equal degree of kindred; and, therefore, 
 equally entitled to administration: for, in 
 this respect, dignity of blood gives no pref- 
 erence. Hence it may happen that relations 
 are distant from the intestate by an equal 
 number of degrees, and equally entitled to 
 the administration of his effects, who are no 
 relation at all to each other. 
 
 2dly. The half-blood is admitted to admin- 
 istration as well as the whole: for they are 
 kindred of the Intestate, and have been ex- 
 cluded from the inheritance of land only on 
 feudal reasons: Therefore, the brother of the 
 half-blood shaU exclude the uncle of the 
 whole blood: and the ordinary may grant 
 administration to the sister of the half, or 
 ■ ' the brother of the whole blood, at his dis- 
 cretion. 
 
 Williams, Ex'rs, 348.— 3dly. As younger 
 children must stand in the same degree of 
 kindred as the eldest, primogeniture can give 
 no right to preference in the grant of admin- 
 istration. 
 
 4thly. The right to administration will fol- 
 low the proximity of kindred, though as- 
 cendant: and, therefore, when a child dies 
 intestate, without wife or child, leaving a 
 father, the father is entitled to the adminis- 
 tration of the personal effects of the intes- 
 tate as next of km, exclusive of all others. 
 Indeed, anciently, that is, in the reign of 
 Henry I., a surviving father could have taken 
 even the real estate of his deceased child. 
 But this law of succession was altered soon 
 afterwards; for we find by GlanvOle, that in 
 the time of King Henry II. the father could 
 not take the real estate of his deceased child, 
 the inheritance being then carried over to 
 the collateral line: And it was subsequently 
 held an inviolable maxim, that an inheritance 
 could not ascend: But this alteration of the 
 law never extended to personal estate. So 
 with respect to the mother, if a child dies in- 
 testate without a wife, child, or father, the 
 mother is entitled to administration: and b& 
 fore the statute of 1 Jac. II. c. 17, she could 
 claim as next of kin the whole personal es- 
 tate; but by that statute, every brother and 
 sister shall have an equal share with her. 
 Again, if a man dies intestate, leaving no 
 nearer relation than a grandfather or grand- 
 mother, and an uncle or aunt, the grandfa- 
 ther or grandmother being in the second de- 
 gree, though ascendant, will be entitled to 
 administration to the exclusion of the uncle 
 
 73 
 
§§ 108-112 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 
 
 or aunt, who are related only in tlie third de- 
 gree. So a gi'eat-grandmother is 'equally en- 
 titled as an aunt. 
 
 Williams, Bx'rs, 349.— However, though the 
 ecclesiastical law of England acknowledges 
 the rights of ascendants generally, yet it does 
 not recognize them to the extent of the civil 
 law, according to which, ascendants, of what- 
 ever degree, shall be preferred before all col- 
 laterals, except in the case of brothers and 
 sisters. But our law prefers the next of kin, 
 though collateral, before one, who, though 
 lineal, is more remote. 
 
 Williams, Ex'rs, 350.— Sthly. With respect 
 to the right to administration, those in equal 
 degree are equally entitled, subject to the 
 discretionary election of the ordinary, wheth- 
 er males or females. The preference of 
 males to females, which exists in the suc- 
 cession to inheritance seems to have arisen 
 entirely from the feudal law; and has never 
 been applied to rights respecting personal es- 
 tate. 
 
 It remains to notice certain exceptions to 
 the rule of computation, above stated, of the 
 proximity of kindred and consequent right 
 to administration. 
 
 1st. The parents of an Intestate are as near 
 akin to him as his children; for they are 
 both in the first degree: but in our law chil- 
 dren are allowed the preference, and so are 
 their lineal descendants to the remotest de- 
 gree. 
 
 2d. Where the nearest relations, according 
 to the above computation, are a grandfather 
 or grandmother, and brothers or sisters of 
 the intestate, although these are all related 
 in the second degree, yet the latter are enti- 
 tled to the administration to the exclusion of 
 the former. 
 
 To recapitulate, in the first place the chil- 
 dren, and their lineal descendants to the re- 
 motest degree; and on failure of children, 
 the parents of the deceased are entitled to 
 the administration: then follow brothers and 
 sisters, then grandfathers and grandmothers, 
 then uncles or nephews, great-grandfathers 
 and great-grandmothers, and lastly cousins. 
 
 The following cases are chosen with refer- 
 ence to illustrating the foregoing rules in 
 Williams on Executors: 
 
 First Rule. 
 MOOR V. BARHAM, Case No. 147, post. 
 
 Second Rule. 
 OROOKE V. WATT, Case No. 148, post. 
 
 Third Rule. 
 
 EARL OF WARWICK v. GREVILLE, 
 Case No. 149, post. 
 
 Fourth Rule. 
 
 BLACKBOROUGH v. DAVIS, Case No. 
 150, post. 
 
 Fifth Rule. 
 BliOWN V. WOOD, Case No. 151, post. 
 
 CHITTENDEN v. KNIGHT, Case No. 152, 
 post. ' 
 
 74 
 
 § 109. Same— Husband or Wife. 
 
 FAWTRY V. PAWTRY, Case No. 153, post. 
 
 § 110. Same — Where the Court 
 Has Discretion in Appointing. 
 
 TUCKER V. WESTGARTH, Case No. 154, 
 post. 
 
 § 111. Same — Where the Statute 
 
 Prescribes Who shall 
 
 Administer. 
 
 COUPE V. LOWBRRE, Case No. 155, post. 
 
 § 112. Renunciation of OfiB.ce by 
 the Personal Representative. 
 
 Shep. Touch. 465.— An executor or admin- 
 istrator may accept or refuse the execu- 
 torship or the administration at his pleas- 
 ure; and therefore he may at any time be- 
 fore he hath intermeddled with the estate as 
 executor or administrator, refuse it; and if 
 he be sued by any as executor or adminis- 
 trator, he may plead, ne unques executor, 
 i. e. he was never executor or administrator, 
 and did never administer: and if it be true, 
 he shall by this means avoid the suit: for 
 a man shall not be compelled to take such a 
 charge upon him whether he will or no. If 
 therefore there may be many executors, or 
 an administration be granted unto many; 
 and one of the executors prove the will in 
 the name of the rest, or one accept the ad- 
 ministration in the name of all the rest, yet 
 the rest may refuse to accept it, and plead 
 in any suit against them that they are not 
 executors or administrators. "But as an ex- 
 ecutor or an administrator, after he hath 
 once legally refused the executorship or ad- 
 ministration, can never after intermeddle 
 therewith: so after he hath once legally ac- 
 cepted thereof, (that is) hath done any thing 
 as executor or administrator, and which is 
 proper only for an executor or adminis- 
 trator to do, he can never after refuse it. 
 And his acceptance of part, in this case, will 
 make him chargeable with all, except it he 
 in the case before, of an executor who may 
 accept of the last executorship, and refuse 
 the first. 
 
 Shep. Touch. 466.— If the executors, being 
 cited to come in and prove their will, appear 
 before the ordinary, and refuse to adminis- 
 ter and to prove the will, they cannot after- 
 wards accept It or intermeddle with it. But 
 herein this difference must be observed, that 
 where there be many executors named and 
 made, and, they being cited, some of them 
 only do appear and refuse to accept it (the 
 rest of the executors being then living,) and 
 after some or one of the rest of the execu- 
 tors prove the will, or take upon him the- 
 executorship; in this case, and notwithstand- 
 
Ch. 7) AGENCIES EFFECTING THE DEVOLUTION OF PKOPERTY. §§ 112-115 
 
 ing this refusal, they that do refuse may aft- 
 erwards at any time, at least during the 
 life time of their co-executors that did accept 
 it, accept thereof, and intermeddle therewith 
 as far forth as either of the rest. And there- 
 fore, in this case, howsoever the executors 
 refusing shall not be charged in any suit 
 against all the executors for any thing due 
 from the testator, but they may by their 
 plea avoid it; yet the executors accepting 
 cannot sue for any thing due to the testa- 
 tor, nor be sued for any thing due from 
 the testator, but they must sue and be sued 
 in the names of themselves and their co- 
 executors that do refuse also. And if there 
 be three executors, and two of them prove 
 the will, and the third refuse, yet this third 
 executor alone may release any debt- due to 
 the testator. But if there be but one executor 
 made, and he alone, or if there be many 
 made, and they do altogether refuse before 
 the ordinary to take upon him or them the 
 administration; in this case the testator is 
 so far forth said to die intestate; and there- 
 upon therefore the ordinary may grant the 
 administration of the goods of the deceased, 
 and then the executor or executors can never 
 after accept thereof, or intermeddle there- 
 with. And if one or more of the executors 
 refuse, and the rest accept, if he or they 
 which accept die before he or they that re- 
 fused accept; it seems in this case they can 
 never aftervv;ards accept it, but the adminis- 
 tration must be granted. 
 
 Shep. Touch. 467.— If one be sued as exec- 
 utor or administrator, and he plead to the 
 suit, ne unques executor, i. e. he was never 
 executor or administrator, if he have not in 
 truth intermeddled before; this plea is a re- 
 fusal of the executorship or administration, 
 and therefore he can never afterwards ac- 
 cept or intermeddle with the executorship or 
 administration. 
 
 LONG v.SYMES, Case No. 156, post. 
 IN RE GOODS OF PERRY, Case No. 157, 
 post. 
 CASEY V. GARDINER, Case No. 158, post. 
 
 § 113. Duties of the Personal Rep- 
 resentative. 
 
 2 Bl. Comm. 507.— Having thus shown 
 what is, and who may be, an executor or 
 administrator, 1 proceed now, fifthly and 
 lastly, to inquire into some few of the prin- 
 cipal points of their office and duty. These 
 In general are very much the same" in both 
 executors and administrators; excepting. 
 First, that the executor is bound to perform 
 a wiU, which an administrator is not, un- 
 less where a testament is annexed to his 
 administration, and then he differs still from 
 an executor; and, secondly, that an execu- 
 tor may do many acts before he proves the 
 will, but an administrator may do nothing 
 till letters of administration are Issued; for 
 
 the former derives his power from the will 
 and not from the probate, the latter owes 
 his entirely to the appointment of the ordi- 
 nary. If a stranger takes upon him to act 
 as executor, without any just authority (as 
 by intermeddling with the goods of the de- 
 ceased, and many other transactions), he is 
 called in law an executor of his own wrong, 
 (de son tort,) and is liable to all the trouble 
 of an executorship, without any of the prof- 
 its or advantages: but merely doing acts of 
 necessity or humanity, as locking up the 
 goods, or burying the corpse of the deceased, 
 will not amount to such an intermeddling 
 as will charge a man as executor of his own 
 wrong. Such a one cannot bring an action 
 himself in right of the deceased, but actions 
 may be brought against him. And in all ac- 
 tions by creditors against such an ofilcious 
 intruder, he shall be named an executor, gen- 
 erally; for the most obvious conclusion 
 which strangers can form from his conduct 
 is, that he hath a wiU of the deceased, 
 wherein he Is named executor, but hath not 
 yet taken probate thereof. He is charge- 
 able with the debts of the deceased, so far 
 as assets come to his hands; and, as against 
 creditors in general, shall be allowed all pay- 
 ments made to any other creditor in the 
 same or a superior degree, himself only ex- 
 cepted. And though, as against the rightful 
 executor or administrator, he cannot plead 
 such payment, yet it shall be allowed him 
 In mitigation of damages; unless, perhaps, 
 upon a deficiency of assets, whereby the 
 rightful executor may be prevented from 
 satisfying his own debt. But let us now see 
 what are the power and duty of a rightful 
 executor or administrator. 
 
 2 Bl. Comm. 508.-1. He must bury the de- 
 ceased in a manner suitable to the estate 
 which he leaves behind him. Necessary fu- 
 neral expenses are allowed, previous to all 
 other debts and charges; but if the executor 
 or administrator be extravagant, it is a spe- 
 cies of devastation or waste of the sub- 
 stance of the deceased, and shall only be 
 prejudicial to himself, and not to the credi- 
 tors or legatees of the deceased. 
 
 § 114. Same — Of the Executor— 
 Before Appointment. 
 
 See cases under OfiBciating without Appoint- 
 ment, ante, § 103. 
 
 § 115. Same- 
 
 -Duty to Probate the 
 Will. 
 
 2 Bl. Comm. 508.— The executor, or the ad- 
 ministrator durante minore aetate, or du- 
 rante absentia, or cum testamento annexe, 
 must prove the will of the deceased: which 
 is done either in common form, which is 
 only upon his own oath before the ordinary, 
 or his surrogate; or per testes, In a more 
 
 75 
 
§§ 115-116 AGENCIES EFEECTING THE DEVOLUTIOJT OE PKOPEBTY. (Ch. 7 
 
 solemn form of law, in case the validity of 
 the will be disputed. When the will is so 
 proved, the original must be deposited in the 
 I'egistry of the ordinary; and a copy thereof 
 in parchment is made out under the seal of 
 the ordinary, and delivered to the executor 
 or administrator, together with a certificate 
 of its having been proved before him: all 
 which together is usually styled the probate. 
 In defect of any will, the person entitled to 
 be administrator must also, at this period, 
 talie out letters of administration under the 
 seal of the ordinary; whereby an executo- 
 rial power to collect and administer, that is, 
 dispose of the goods of the deceased, is vest- 
 ed in him: and he must, by statute 22 & 23 
 Car. II. c. 10, enter into a bond with sureties, 
 faithfully to execute his trust. If aU the 
 goods of the deceased lie within the same 
 jui'isdiction, a probate before the ordinary 
 or an administration, granted by him, are the 
 only proper ones: but if the deceased had 
 bona notabilia, or chattels to the value of a 
 hundred shillings, in two distinct dioceses or 
 jurisdictions, then the will must be proved, 
 or administration taken out before the met- 
 ropolitan of the province, by way of special 
 prerogative; whence the courts where the 
 validity of such wills is tried, and the of- 
 fices where they are registered, are called 
 the prerogative courts, and the prerogative 
 oifices, of the provinces of Canterbury and 
 York. Lyndewode, who flom'ished in the be- 
 ginning of the fifteenth century, and was of- 
 ficial to Archbishop CMchele, interprets 
 these himdred shillings to signify solidos 
 legales; of which he tells us, seventy-two 
 amounted to a pound of gold, which in his 
 time was valued at fifty nobles, or £16. 13s. 
 4d. He, therefore, computes that the hun- 
 dred shillings, which constituted bona nota- 
 bilia, were then equal in current money to £23. 
 3s. 0%d. This will account for what is said 
 in our ancient books, that bona notabilia in the 
 diocese of London, and indeed every where 
 else, were of the value of ten pounds by com- 
 position: for if we pm'sue the calculations of 
 Lyndewode to their full extent, and consider 
 that a pound of gold is cow almost equal 
 In value to an hundred and fifty nobles, 
 we shall extend the present amount of bona 
 notabilia to nearly £70. But the makers of 
 the canons of 1603, understood this ancient 
 rule to be meant of the shillings cun-ent in 
 the reign of James I., and have, therefore, di- 
 rected that five pounds shall, for the future, 
 be the standard of bona notabilia, so as to 
 make the probate fall within the archiepis- 
 copal prerogative. Which prerogative (prop- 
 erly understood) is grounded upon this rea- 
 sonable foundation: that, as the bishops 
 were themselves originally the administi-a- 
 tors to all intestates In their own diocese, 
 and as the present administrators are, in ef- 
 fect, no other than their officers or substi- 
 tutes, it was impos-sible for the bishops, or 
 those who acted under them, to collect any 
 7(3 
 
 goods of the deceased, other than such as lay 
 within their owndioceses, beyond which their 
 episcopal authority extends not. But it 
 would be extremely troublesome, if as many 
 administrations were to be granted, as there 
 are dioceses within which the deceased had 
 bona notabilia; besides the uncertainty which 
 creditors and legatees would be at, in case 
 different administrators were appointed, to 
 ascertain the fund out of which their demands 
 are to be paid. A prerogative is, therefore, 
 very prudently vested in the metropolitan of 
 each province, to make in such cases one ad- 
 ministration serve for all. This accounts 
 very satisfactorily for the reason of taking 
 out administration to intestates that have 
 large and diffusive property, in the preroga- 
 tive court: and the probate of wills naturally 
 follows, as was before observed, the powers 
 of granting administrations; in order to sat- 
 isfy the ordinary that the deceased has in a 
 legal manner, by appointing his own execu- 
 tor, excluded him and his officers from the 
 privilege of administering the effects. 
 
 Shep. Touch. 477.— The third thing where- 
 of the executor or administrator Is to take 
 care, is to prove the will if there be any: 
 and this the ordinary will compel him to do, 
 but otherwise he may do anything as execu- 
 tor, save only, sue actions, as weU before 
 probate as after. 
 
 FINCH v. FINCH, Case No. 159, post. 
 BOUGHTON V. KNIGHT, Case No. 50, 
 post. 
 
 § 116. Same — Of the 
 the Will. 
 
 Probate ol 
 
 Shep. Touch. 408.— The last thing required 
 to the perfection of a testament is, that it 
 be proved; for if It be never so well made 
 and be in truth the testament of the testator, 
 yet if it cannot be by proof made to appear 
 so, it Is but a void testament, and of no 
 force at all. And therefore herein these 
 things are to be known: 1. That a nuncu- 
 pative testament must be proved by two wit- 
 nesses at the least, and those must be such 
 as are without exception. A written testa- 
 ment, when it is written with the testator's 
 own hand, doth prove and approve itself, 
 and therefore needs not the help of wit- 
 nesses to prove it. And for this cause, if a 
 man's testament be found written fair and 
 perfect with his own hand after his death, 
 albeit It be not subscribed with his name, 
 sealed with his seal, or have any witnesses 
 to it, if it be known or can be proved to be 
 his hand, it is held to be a good testament, 
 and a sufficient proof of itself; but if it be 
 sealed with his seal, and subscribed with the 
 name of the testator, and can be proved by 
 witnesses, it is the more authentic. And 
 when It is found amongst the choice evi- 
 dences of the testator, or fast locked up in a 
 safe place, it is the more esteemed; but if 
 
Ch. 7) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 116 
 
 it be written In another hand, and the testa- 
 tor's hand and seal, or one of them not to it, 
 albeit it be found in such a place as before, 
 yet some proof will be expected of it further 
 by witnesses in that case. And if a writ- 
 ing be found under the testator's own hand, 
 yet if it be but a scribbled writing written 
 copy-wise, with a great distance between 
 every line, without any date, in strange char- 
 acters, with many interlinings, and lying 
 amongst his void papers, or the like; this 
 will not be esteemed a sufficient testament, 
 nor a good proof of it; but it shall be ac- 
 counted rather a draught or image of the 
 testator's wiU for a direction to him after to 
 make his will by: and yet if it can be proved 
 that the testator did declare himself that 
 this should be his will, this will be a good 
 testament, and a good proof of it. 3. If it 
 be proved the testator said his testament 
 was in such a schedule in the hands of I. S. 
 and I. S. produce a writing deposing it to 
 be the same; it seems this is a sufficient 
 proof; but if he say withal it is written with 
 his own hand, then it seems some other 
 proof, as by comparing hands, or the like, 
 that it is his hand wherein it is written, will 
 be expected. 4. If the witnesses will prove 
 the writing produced to be the last will of 
 the testator, or that he said, it was or it 
 should be his last will, or that it is the same 
 writing that was showed unto them, and 
 whereunto they are witnesses, albeit they 
 never heard it read or set their hands to it; 
 it is a sufficient proof. 5. All persons male 
 and female, rich and poor, are esteemed 
 competent witnesses to prove a will; save 
 only such as are infamous, as perjm-ed per- 
 sons, and the like; and such as want un- 
 derstanding and judgment, as children, in- 
 fants and the like; and such as are pre- 
 sumed to bear affection, as kindred, tenants, 
 servants, and the like. A legatee is reputed 
 a competent witness to prove any other part 
 of the will, but his own legacy, or to prove 
 any thing against himself touching his own 
 legacy, but not otherwise. And therefore 
 where there be two witnesses of a will, 
 wherein each of them hath somewhat be- 
 queathed unto himself; this will cannot be 
 sufficiently proved for those legacies; but 
 for the rest of the will it may be sufficiently 
 proved. 6. Where there is no question nor 
 opposition moved or had about, or against 
 a testament, there the oath of the executor 
 alone is esteemed a sufficient proof of it; and 
 in that case regularly no other proof is 
 required; and where more proof Is neces- 
 sary, as In the cases before, it is in the dis- 
 cretion of the ordinary, what proof to ad- 
 mit and allow; and those witnesses for 
 number, nature, and quality; or that other 
 proof that he doth deem and accept for 
 sufficient is sufficient; and the testament so 
 proved by such witnesses, or other proof, is 
 sufficiently proved. 
 Shep. Touch. 498.— The probate of a tes- 
 
 tament is the producing and insinuating of 
 it befOTe the ecclesiastical judge, ordinary 
 of the place where the party dieth, or other 
 that hath power to take the same. And 
 this is done in two sorts, either in common 
 form, 1. e. upon the oath of the executor 
 or party exhibiting it upon his credulity that 
 the will exhibited is the last will and testa- 
 ment of the party deceased, which is the 
 ordinary course; and this the ordinary may 
 accept if he will. Or per testes, i. e. which is, 
 when over and besides his oath he doth also 
 produce witnesses, or maketh other proof to- 
 confirm the same; and that, in the presence 
 of such as may pretend any interest in the 
 goods of the deceased, or at least in their 
 absence after they have been lawfully sum- 
 moned to see such will proved if they think 
 good. And this course is used only where 
 there is a suspicion of the will; and a caveat 
 is entered; or where there is a fear of con- 
 tention and strife between the kindred and 
 friends of the party deceased about his 
 goods; for a will proved in common form 
 may be called into question at any time thir- 
 ty years after; and when the will is thus 
 exhibited into the bishop's court, the same 
 is to be kept by his officers, and the copy 
 thereof in parchment under the bishop's seal 
 of his office to be certified and delivered, 
 which parchment so sealed is called the will 
 proved. 
 
 Shep. Touch. 499.— The probate of the v^lll 
 (as having respect to the goods and chattels) 
 is in some respect necessary; for howsoever, 
 as touching any freehold of lands devised, 
 it is not at all material; and howsoever the 
 executor before probate may receive and 
 release debts, and do most other acts as- 
 executor, yet he cannot sue for any debt due 
 to the testator. And if the executor delay 
 the probate, the ordinary may by process 
 compel him to come in and accept of or re- 
 fuse the executorship. And when it is prov- 
 ed, it must be proved by the executors or 
 one of them at least; and If all the goods, 
 of the deceased be within the same diocese 
 wherein he lived and died, the executor must 
 prove it before the ordinary of the diocese, 
 or before his lawful cotnmissary or deputy, 
 or before the archdeacon or his deputy or 
 commissary (as their composition is;) or if 
 the goods be in a peculiar, then before him 
 that is judge of that peculiar; or if the 
 goods be within two peculiars, then before 
 the ordinary of the diocese wherein these 
 two peculiars lie. But if there be bona 
 notabilia in the case, viz. that the testator 
 have goods or chattels at the time of his. 
 death of the value of five pounds or more, 
 lying in two or more counties, or have good 
 debts upon especialties (as some say,) for 
 otherwise they follow the person; or have- 
 any especialties (as others say) lying in other 
 counties for debt, so that there be of goods 
 and chattels, or good debts to the value of 
 five pounds in any other diocese than that 
 
 77 
 
§§ 116-127 AGKNC1E.5 EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 7 
 
 wherein the testator led his life and died, 
 then the probate doth belong to the, arch- 
 bishop of that province wherein it is, unless 
 the ordinary of the same diocese have the 
 probate by composition between him and 
 the metropolitan: for otherwise there must 
 1)6 several probates for the goods in every 
 diocese (as anciently was used in these 
 cases.) But if a man die in his journey in 
 another diocese, and have more than five 
 pounds goods about him; this shall not be 
 said to be bona notabilia, but the will may 
 be proved before the ordinary of the place 
 where the deceased lived and his estate 
 doth lie. And except it be in cases where 
 men have bona notabilia, the officers of the 
 courts of the metropolitans are not to cite 
 men out of their own diocese; and, to dis- 
 cover this matter, it is the duty of the 
 ordinary of the diocese, when any man 
 comes to prove a will, to give him an oath, 
 and examine him whether he know of, or 
 do believe, there are any goods to the value 
 of five pounds lying in any other diocese 
 at the time of the testator's death, and if 
 Tie hear of any to dismiss them to the pre- 
 rogative court, and to give them notice of it: 
 also in some places, the lords of manors 
 ■have the probate of all the wills within their 
 manor by custom of the place; and in those 
 places it must be proved there, and not 
 ■elsewhere. And when an executor is bound 
 to prove the will before the ordinary as be- 
 fore, the ordinary may give him what time 
 to do it he doth think fit, and when he doth 
 prove it, the ordinary doth take an oath of 
 him to administer the goods faithfiiUy, and 
 to take bond of him also if he please; but 
 this some do omit. 
 
 § 117. Same— When a Will may be 
 Probated. 
 
 HADDOCK V. BOSTON & M. R. R., Case 
 No. 160, post. 
 
 § 118. Same — Questions Which 
 Arise at Probate. 
 
 ROBINSON V. BREWSTER, Case No. 76 
 ■post. ' 
 
 § 119. Same — Competency and 
 Credibility of Witnesses. 
 
 See cases and same heading under Attesta- 
 tion of Wills, ante, § 69. 
 
 § ISO. Same — Contradictory At- 
 testing Witnesses. 
 
 GOODTITLE v. CLAYTON, Case No 161 
 post. ■ ' 
 
 78 
 
 § ISl. Same— Burden of Proof as 
 to Insanity. 
 
 CKO WNIN SHIELD v. C R O W N I N- 
 SHIELO, Case No. 162, post. 
 SMEE V. SMEE, Case No. 47, post. 
 WHITE V. DRIVER, Case No. 53, post. 
 
 § 122. Same— Who may Testify as 
 to Insanity, 
 
 HARDY V. MERRILL, Case No. 163, post. 
 
 § 123. Same— Burden of Proof as 
 to Undue Influence. 
 
 PASKE v. OLLAT, Case No. 164, post. 
 PARFITT V. LAWLESS, Case No. 165, post. 
 SHAILER V. BUMSTEAD, Case No. 166, 
 
 post. 
 
 § 124, Same— Lost Wills. 
 
 HARRIS V. KNIGHT, Case No. 167, post. 
 BH^HKENS V. BEHRENS, Case No. 168, 
 post. 
 
 § 125, Same — Partial Probate, 
 
 HOLMAN V. PERRY, Case No. 169, post. 
 IN RE GOODS OF DWANE, Case No. 65, 
 post. 
 
 § 126, Same— Eflfect of Probate. 
 
 ALLEN V. DUNDAS, Case No. 170, post. 
 HOLMAN V. PERRY, Case No. 169, post. 
 FINCH V. FINCH, Case No. 159, post. 
 
 § 127. Same — Revocation of Pro- 
 bate. 
 
 Shep. Touch. 491.— It hath been held, that 
 the ordinary, after he hath granted the ad- 
 ministration of the goods of a man intestate 
 to one, may afterwards without cause revoke 
 the same and grant it to another, at his 
 pleasure: and that if the ordinary grant let- 
 ters of administration to one, and after grant 
 letters of administration to another, of the 
 goods of the same man, that hereby the first 
 letters of administration are ipso facto coun- 
 termanded, albeit there be no words of revo- 
 cation in them: but it seems the law is oth- 
 erwise, and that after the ordinary hath 
 granted the administration according to the 
 charge and direction given him by the stat- 
 utes, he cannot afterwards revoke it, and 
 grant it to another, without cause; i. e. un- 
 less the first administration be illegally 
 granted; as when it is granted to a stranger, 
 and not to the next of kin, or the like; or 
 unless the first administrator cannot or will 
 not administer; for, in these cases, he may 
 without doubt grant the administration to 
 another. And yet in these cases, where 
 
Ch 7) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. §§ 127-128 
 
 there is a former administration granted reg- 
 nl;u-ly, all acts that the first administrator 
 doth lawfully execute and do as administra- 
 tor, as sale of goods, payment of receipt or 
 debts, making releases and the like, are good, 
 and shall bind the next and succeeding ad- 
 ministrator. And therefore, if the ordinary, 
 after the death of a man intestate, doth 
 grant the administration of his goods to a 
 stranger; and then the next of kin doth sue 
 by citation to have it repealed; and the first 
 administrator, hanging that suit in the spir- 
 itual court, doth sell the goods, of pm'pose to 
 defeat the second administration; and after, 
 the first letters of administration are revoked 
 by sentence, and the first sentence annulled, 
 and the administration is committed to an- 
 other; in this case, the second administrator 
 cannot recover these goods or have any rem- 
 edy for them. And yet perhaps, if there be 
 anj' fraud in the case, an executor may have 
 relief upon the statute of 13 Eliz. But if 
 the first suit and sentence be by appeal 
 avoided, then all that the first administra- 
 tor doth is void; and the second administra- 
 tor may recover the goods notwithstanding 
 the sale: and if the first administration be 
 upon condition, all the acts the administra- 
 tor doth, before the condition is broken, are 
 good; and therefore, if he give or sell the 
 goods, the subsequent administrator cannot 
 avoid it. 
 
 If a man die Intestate, and have not bona 
 notabilia and the bishop of the diocese gi-ant 
 letters of administration to one; and after, 
 the archbishop doth grant letters of admin- 
 istration to another; in this case, the effect 
 of the first administration is suspended, un- 
 til the other be repealed and declared by sen- 
 tence to be void. If there be a will, and it 
 is concealed, and thereupon an administra- 
 tion is granted, and after, the will is pro- 
 duced and proved; in this case, the adminis- 
 tration is rpso facto determined, and all the 
 acts the administrator hath done ab initio 
 are become void. See more in the next 
 question. 
 
 Shep. Touch. 492.— If a will be made by an 
 Idiot, and an executor appointed therein, and 
 the executor take upon him' the administra- 
 tion, and after the will is avoided for the 
 weakness of the testator; in this case, it 
 seems that all the acts the executor doth be- 
 fore the avoidance of the will, are good and 
 not to be avoided by the administrator. 
 
 If there be a will made and an executor 
 appointed, and the ordinary cite the ex- 
 ecutor to come in and prove the will, and 
 he doth not come, and thereupon the or- 
 dinary doth grant the administration to an- 
 other; in this case, all acts done by the 
 administrator are good, and shall bind the 
 executor, if he may and shall afterwards 
 take upon him the executorship. But oth- 
 erwise it is where the ordinary doth gi-ant 
 the administi-ation before the executor be 
 cited' to appear, or before the time given 
 
 him to take upon him the administration; 
 for in this case, nothing that he doth shall 
 bind the executor. 
 
 AVhen there is an administration granted, 
 and it is afterwards, upon a suit by condi- 
 tion only, repealed; in this case, all acts 
 done by the first administrator are good and 
 shall bind the subsequent administrator. 
 But in case where the first administration is 
 upon a suit by appeal by sentence anni- 
 hilated and declared void, there all acts done 
 by the first administrator are void, and shall 
 not bind the subsequent administrator: and 
 therefore if the ordinary of the diocese gi-ant 
 an administration that doth belong to the 
 metropolitan to grant, (in which case, the 
 administration is void,) all acts done by the 
 administi-ator are void, and may be avoided 
 by the succeeding administrator. But when 
 the administration doth belong to the ordi- 
 nary of the diocese, to grant, and the metro- 
 politan doth grant it (in which case, it is 
 only voidable;) in that case, all acts upon 
 and by virtue of the first administration be- 
 fore the second administration is gi'anted, 
 are good. 
 
 If an administration be granted to a stran- 
 ger, and afterwards it is revoked and grant- 
 ed to the next of kin; in this case, all lawful 
 acts done by the first administrator before, 
 and hanging the suit, are good and unavoid- 
 able by the subsequent administrator; and 
 yet perhaps if the first administrator waste 
 the goods, it may be he may be charged for 
 this by the subsequent administrator, or by a 
 creditor. 
 
 Shep. Touch. 493.— Where the executor by 
 the will is not to administer until a certain 
 time; in this case, the administration of the 
 goods is to be granted until that time, and 
 all acts done by such an administrator be- 
 fore that time are good, and shall bind the 
 executor. So where an executor is made, or 
 an administration is granted upon condition, 
 which is after broken, so that the executor- 
 ship or administration is determined; yet, 
 in this case, all acts done by him before this 
 time are good. 
 
 If there be a false and a true will, and the 
 executor of the false wiU prove this will first, 
 and afterwards the executor of the true will 
 doth disprove and avoid the first will; in 
 this case, he may also avoid all acts the fii-st 
 executor doth. 
 
 WATERS v. STICKNEY, Case No. 171, 
 post. 
 
 § 138. Duties of Personal Repre- 
 sentative, (Continued.) 
 
 Shep. Touch. 476.— The office and duty in 
 general of an executor or administrator is, 
 to dispose all the estate of the deceased 
 wherewith he hath to do. 1. Truly, not to 
 convert any of it to his own use, but to the 
 use and best advantage of the deceased, nor 
 
 79 
 
g§ 128-131 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 7 
 
 to labour by any undue practice or means to 
 hinder any creditor of Ills debt. 2. Lawful- 
 ly, to pay debts and legacies in that order 
 the law prescribeth. 3. Diligently, "quia 
 negligentia semper habet comitem Infortuni- 
 um;" but more particularly, the first duty 
 and care of an executor or administrator, aft- 
 er he hath talien upon him the charge of the 
 administration of the goods and chattels of 
 the deceased, after the goods are laid up, is 
 to see the body of the deceased, laudably in- 
 terred according to his rank and quality; 
 wherein let the executor or administrator 
 take this caution by the way, not to exceed 
 in funeral pomp, especially if It be so that 
 the estate will scarcely reach to pay the 
 debts; for let his expenses be what they 
 wiU, the judges (who in this are to determine 
 what shall be allowed) will allow what they 
 please, and they are pleased in such cases to 
 allow but a small matter: and whatsoever 
 the executor or administrator doth lay out 
 more, he must bear out of his own estate, if 
 he have not enough besides to pay the debts. 
 
 2 Kent, Oomm. 414— Of the Power and 
 Duty of the Administrator. 
 
 The administrator must enter into a bond 
 before the judge of probate, (under whatever 
 name the competent court may be known,) 
 with sureties, for the faithful execution of 
 his trust; and being thus duly appointed, it 
 is his duty to proceed forthwith to the exe- 
 cution of his trust. His powers and duties 
 under the common law of the land may be 
 summarily comprehended in the following 
 particulars: 1. He is to make an inventory 
 of the goods and chattels of the intestate, in 
 the presence and with the discretion of ap- 
 praisers, who, in New-York, Massachusetts, 
 and probably in other states, are to be ap- 
 pointed by the probate court, and sworn; 
 and, under the English law, they are select- 
 ed by the executor or administrator, from 
 the creditors, or next of kin, or discreet 
 neighbors. Two copies of this inventory are 
 to be made and indented, and one copy Is to 
 be lodged with the surrogate, under the attes- 
 tation of the administrator's oath, and the 
 other is to be retained. This inventory is 
 intended for the benefit of the creditors and 
 next of kin; and the administrator will be 
 fibliged to account for the property men- 
 tioned in it; and he will also be obliged to 
 show good cause for not collecting the debts 
 that are mentioned to be due, unless he had 
 the precaution to note them in the inventory 
 as desperate. He is liable also to have the 
 letters of administration revoked, (and it is 
 the same with the letters testamentary of an 
 executor,) if an inventory be not duly made 
 and retui'ned. And if any one or more of 
 the executors or administrators returns the 
 inventory, those who neglect to do It cannot 
 afterwards Interfere with the administration 
 until they redeem their default. 
 
 2 Kent, Comm. 415.— After completing the 
 Inventory, the duty of the administrator is, 
 SO 
 
 to collect the outstanding debts, and convert 
 the property Into money, and pay the debts 
 due from the intestate. He must sell the 
 personal property, so far as it may be neces- 
 sary for the payment of debts and legacies, 
 beginning with articles not required for im- 
 mediate family use, nor specifically bequeath- 
 ed. In paying the debts, the order pre- 
 scribed by the rules of the common law is, 
 to pay, first, funeral charges, and the ex- 
 pense at the probate office; next, debts due 
 to the state; then, debts of record, as judg- 
 ments, recognizances, and final decrees; 
 next, debts due for rent, and debts by spe- 
 cialty, as bonds and sealed notes; and, last- 
 ly, debts by simple contract. Causes of ac- 
 tion arising ex delicto, for wrongs for per- 
 sonal Injuries, die with the person, and do 
 not survive against his representatives. Ex- 
 ecutors and administrators are the repre- 
 sentatives of the personal property of the 
 deceased, and not of his wrongs, except so 
 far as the tortious act complained of was 
 beneficial to his estate.* The civU law gave 
 no preference to creditors, except as to debts 
 Incurred for funeral expenses, and the ex- 
 penses of the administration, and debts by 
 mortgage. The heir paid himself first, and 
 he might pay the first creditor who came. 
 All the assets were considered as equitable. 
 When debts are In equal degree, the admin- 
 istrator may pay which he pleases first, and 
 he may always prefer himself to other cred- 
 itors in an equal degree. If a creditor com- 
 mences a suit at law, or in equity, he ob- 
 tains priority over other creditors in equal 
 degree, but an administrator may go and 
 confess judgment to another creditor in 
 equal degree, and thereby defeat the credit- 
 or who first sued by pleading the judgment 
 and nil ultra, &c. 
 
 22 and 23 Car. II. c. 10. (Statute No. 14, 
 post.) 
 
 § 129. Same — The Giving of a 
 Bond. 
 
 YOUNGE V. SKBLTON, Case No. 172, post. 
 AMES V. ARMSTRONG, Case No. 173, post. 
 MANZ V. OAKLEY, Case No. 174, -post. 
 MONROE V. JAMBS, Case No. 139, post. 
 
 § 130. Same— The Notice of Ap- 
 pointment. 
 
 GILBERT V. LITTLE, Case No. 175, post. 
 
 § 131. Same — The Making of an 
 Inventory. 
 
 Shep. Touch. 477.— The second duty and 
 care must be to make an inventory, i. e. a 
 schedule containing a true and perfect de- 
 
 "Hambly v. Trott, Cowp. 371; People v. 
 Gibbs, 9^ Wend. 29; Hench v, Metzer, 6 Serg. 
 & R. 272, 
 
Ch. 7) AGENCIES EFFECTING THE DEVOLUTION OF PEOPERTY. §§ 131-135 
 
 scription of all the goods and chattels of the 
 deceased at the time of his death; as of his 
 wares, merchandises, emblements, and the 
 lilie; with their appraisement and value, 
 and of none else, and of all debts due to him 
 and from him. And this must be made by 
 and before two of the creditors or legataries 
 of the deceased (if there be any such and 
 they will do it) and two others, or, in case 
 they refuse, by and before two other men of 
 the honest neighbors. And herein let the ex- 
 ecutor or administrator take this caution by 
 the way, not to intermeddle with the goods 
 before he hath done this; for howsoever he 
 may do any act as executor before the in- 
 ventory be made, yet the ordinary may pun- 
 ish this upon him, except it be done with the 
 ordinary license, who, in this case, may give 
 what time he will for the doing of it; and 
 until the inventory be made and put in, it 
 shall be presumed against the executor or 
 administrator that he hath asset*^ 'n his 
 hands to pay all men; and besides, antii this 
 be done, he cannot deduct to satisfy his own 
 debt fii'st, and bar other men by plea. But 
 of the other side, when he hath made and ex- 
 hibited a true and perfect inventory of all 
 the goods and chattels^ it shall be presumed 
 against him that he hath so much as is con- 
 tained in the inventory and no more, unless 
 "more can be proved by witnesses. 
 
 2 Bl. Comm. 510. — The executor or adminis- 
 trator is to maiie an inventory of all the 
 goods and chattels, whether in possession or 
 action, of the deceased; which he Is to deliv- 
 er in to the ordinary upon oath, if thereunto 
 lawfully required. 
 
 HAUKMAN V. BLACK, Case No. 176, post. 
 M.YL>L>LETON v. RUSHOUT, Case No. 177, 
 post. 
 
 . ABB. WILLS — 6 
 
 KJSNNY V. JACKSON, Case No. 178, post. 
 FORSYTH V. BURR, Case No. 179, post. 
 YOUNGE V. SKELTON, Case No. 172, post. 
 
 § 132. Same — What the Inventory 
 should Contain. 
 
 PLUNKBTT V. SHARPE, Case No. 180, 
 post. 
 
 § 133. Same— Collection of the Ef- 
 fects of the Deceased. 
 
 2 Bl. Comm. 510.— He is to collect aU the 
 goods and chattels so Inventoried; and tO' 
 that end he has very large powers and in- 
 terests conferred on him by law; being the 
 representative of the deceased, and having 
 the same property in his goods as the prin- 
 cipal had when living, and tne same reme- 
 dies to recover them. And if there be two 
 or more executors, a sale or release by one 
 of them shall be good against all the rest; 
 but in case of administrators it is otherwise. 
 Whatever is so recovered, that is of a sal- 
 able nature and may be converted into ready 
 money, is called assets in the hands of the 
 executor or administrator; that is sufficient 
 or enough (from the French assez) to make 
 him chargeable to a creditor or legatee, so far 
 as such goods and chattels extend. What- 
 ever assets so come to his hands he may con- 
 vert into ready money, to answer the de- 
 mands that may be made upon him: which 
 is the next thing to be considered. 
 
 13 Edw. I. c. 23. (Statute No. 5, post.) 
 
 STODDEN V. HARVEY, Case No. 181, post. 
 PERRY V. WOOTON, Case No. 182, post. 
 MOSS V. SAMDEPUR, Case No. 183, post 
 
 81. 
 
§ 134 AGENCIES EEFECTING THE DEVOLUTION OE PHOPERTY. (Ch. 8 
 
 CHAPTER VIII. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 § 134. 
 
 135. 
 186. 
 137. 
 138. 
 
 139. 
 140. 
 141. 
 142. 
 
 143. 
 144. 
 145. 
 146. 
 147. 
 148. 
 149. 
 
 150. 
 
 Of the Estate of the Personal Repre- 
 sentative. 
 The Time When it Vests. 
 The Quality of the Estate. 
 The Interest in the Estate. 
 Choses in Action— Those Which the 
 Deceased might have Put in 
 Suit — Contract. 
 Tort. 
 
 Apportionment. 
 Partnership Interests. 
 Those Where the Cause of Action 
 Accrued after Decedent's Death. 
 Rights of Action for Trespass. 
 Chattel Interests in Real Property. 
 Emblements. 
 Fixtures. 
 
 Real Estate— In General. 
 Under Power in the Will. 
 Property Conveyed in Fraud of 
 
 Creditors. 
 Conversion. 
 
 § 134. Of the Estate of the Personal 
 Hepr eseutati ve. 
 
 Saep. Touch. 468.— The executor or admin- 
 istrator shall have by virtue of his executor- 
 ship or administration all the chattels real 
 and personal of the testator, as well those 
 that are in possession, as leases for years of 
 land, rent, common, or the like, grants of 
 next advovv'sons, and presentations, ward- 
 ships of heirs by reason of tenm-es in capite, 
 or knight's service, corn growing and cut, 
 trees, and grass cut and severed, cattle, mon- 
 ey, plate, household-stuff, and the like; as 
 also those that are in action, as right and 
 interest of executions upon judgments, stat- 
 utes, obligations, causes of action, and the 
 like; he shall have also aU other things 
 that are of the nature of chattels. And there- 
 fore the executor or administrator shall have 
 the two years of the heir female that is in 
 ward; a relief or an advowson that is fal- 
 len; and yet if a bishop have title to present 
 by the vacation of a church, and then he 
 die; in this case, the king, and not the ex- 
 ecutor or administrator of the bishop, shall 
 present. And if the lord have a greater es- 
 tate in the seigniory than for life or years, 
 it is said the executor or administrator shall 
 not have the relief. And the executor or ad- 
 ministrator of the lord shall have fines as- 
 sessed upon the tenants upon their admit- 
 tances in the lord's time. And if I make a 
 feoffment in fee, gift in tail, or lease for life, 
 rendering rent, and the rent is behind, and 
 then T die; in this case, the arrearages of 
 rent due to me in my life-time shall go to 
 m.\' executor or administi'ator in the nature 
 82 
 
 of a chattel. So- if a rent be granted out 
 of land to me in fee-simple, fee-tail, for life, 
 or years, and it be not paid to me in my life- 
 time; these arrearages shall go to my execu- 
 tor or administrator, and not to any other. 
 And so also if a parson have an annuity in 
 fee in the right of his church, and it be be- 
 hind, and the parson die; in this case, the 
 executor or administrator, not the successor 
 of the parson, shall have the arrearages. 
 And if I be seised of land and possessed of 
 a stock of cattle, and let it to another for 
 years, and he covenant by tne lease to pay 
 me and my wife, our heirs and assigns, one 
 hundred pounds by the year, dining the 
 term; in this case, after my death, and my 
 wife's surviving me, her executor or admin- 
 istrator, and not my heir, shall have this 
 payment. And if one seised of land in fee, 
 make a feoffment of it to me, excepting the 
 trees, and after grant me the trees for years; 
 or if he make me a lease of the land first for 
 years, and after doth gi-ant me the trees for 
 a number of years, to begin after the end 
 of the term of the land; in both these cases, 
 I have the trees in the nature of a chattel, 
 and if I' die my executor or administrator 
 shall have them. And if a man grant to 
 me the next presentation to tlie church of D. 
 in this case, if I die, my executor or admin- 
 istrator shall have it as a chattel. And my 
 wife shall have so much of her wearing ap- 
 parel as is necessary and convenient for one 
 in her estate and condition; and therefore 
 that shall not go to my executor. But so 
 much of her wearing apparel as she hath 
 superfluous, and more than necessary for 
 her, shall go to my executor or administra- 
 tor after my death. And the charters and 
 evidences, that dp concern any of my chat- 
 tels which my executor or administrator is 
 to have, shall go with the same chattels. So 
 also any charters whatsoever, if they be 
 pledged to me for money, shall go to my 
 executor or administrator until the money 
 be paid. But otherwise those deeds and evi- 
 dences, that do belong to the heir as incident 
 to the inheritance, shall not go to my ex- 
 ecutor or administrator after my death. But 
 matters of trust, and such things as are per- 
 sonal, as offices of trust, , wardships by rea- 
 son of a tenure in socage, or jm'e natmvae, or 
 the like, shall not go to the executor or ad- 
 ministrator after the death of him that hath 
 them. So an executor or administi-ator shall 
 not have the grass and ti-ees growing on the 
 ground, no more than the soil or ground it- 
 self whereon they grow. So an executor or 
 administrator shall not have the incidents of 
 a house, as glass, doors, wainscot, and the 
 like, no more than the house itself: nor pales. 
 
Ch. S) AGENCIES EFFECTIXG THE DEVOLUTION OP PROPEHTY. 
 
 134 
 
 walls, stalks, fish in ponds, deer or conies in 
 parlis, pigeons in pigeon-houses, or the lil^e. 
 
 Shep. Touch. 469.— If a lease for years of 
 land be granted to me and my heirs, or to 
 me and my successors, and I die; my ex- 
 ecutor or administrator, and not my heir, 
 shall have this term. The same law is, if 
 a wardship, or the next advowson of a 
 church, be granted unto me and my heu's; 
 or if a covenant or an obligation be made to 
 me and my heirs: for in all these cases this 
 is still a chattel in me, that shall go to 
 my executor or administrator, and he only 
 shall take advantage of it. And if my heir 
 or successor happen to get the deed, the 
 executor or administrator may recover it 
 from him. And if a lease be made to me 
 for twenty years, without naming my ex- 
 ecutors or administrators or assigns in the 
 lease; in this case, if I die, my executor or 
 axiministrator notwithstanding shall have it 
 during the term. And if a lease for years 
 be made to a bishop and his successors, and 
 he die; his executor or administrator, not 
 his successor, shall have it. And if a man 
 be possessed of a term of years of land, and 
 gi-ant it by deed, or give it by will, to me 
 and my heirs, or to me and my heirs male; 
 <w devise it by will to A. for life, the re- 
 mainder to m© and my heirs; in these cases, 
 I shall have these terms of years as chattels, 
 and after my death my executor or admin- 
 istrator shall have them. And if a man 
 grant a rent out of his land to me and my 
 heirs for twenty years, and I die; my exe- 
 cutor or administrator, not my heir, shall 
 have this rent. And if a rent be granted to 
 me, my heirs and executors, diu-ing the life of 
 L S. and for one-half year after, and I die; 
 in this case, the half year's rent shall go to 
 my executor or administrator, and not to my 
 heir. And if I be seised of land in fee, and 
 make a lease for years of it rendering rent, 
 and then devise tliis rent to a stranger, and 
 the devisee die; in this case, his executor or 
 administrator shall have it. And if lessee 
 for life make a lease for years absolutely; 
 this in law is a lease for so many years if 
 the life so long live, and shall go to the 
 executor or administrator after his death. 
 
 Shep. Touch. 470.— If I have a box, chest, 
 or trunk, wherein my writings that do con- 
 cern my inheritance do lie, and the same is 
 open, and not sealed or locked; in this case 
 my executor shall have it; but if it be locked 
 or sealed, contra; for then it shall go to him 
 that is to have the writings as Incident there- 
 unto. And yet if there be any money, plate, 
 or any other such like thing in the chest 
 also; my executor shall have that thing. 
 
 The incidents of a house, as glass-windows 
 annexed with nails or otherwise to the win- 
 dows, the wainscot fixed by nails, screws, or 
 irons put through the posts or walls, tables 
 dormant, furnaces of lead and brass, and 
 vats in a brew and dye-house standing and 
 fastened to the walls, or standing in or 
 
 fastened to the ground in the middle of 
 the house, (though fastened to no wall,) 
 a copper, or lead fixed to the house, the 
 doors within and without that are hang- 
 ing and serving to any part of the house, 
 shall not go to the executor or administrator 
 to be divided and sold from the house, albeit 
 the executor or administrator have a lease 
 for years of the house, and by that means 
 hath the house also. But if the glass be 
 from the windows, or there be wainscot 
 loose, or doors more than are used that are 
 not hanging, or the like; these things shall 
 go to the executor or administrator. 
 
 Shep. Touch. 471.— If I make a feofCment 
 to I. S. of land, on condition that if he pay 
 me, my heirs or assigns, or my heirs, ex- 
 ecutors or administrators, a hundred pounds 
 such a day, that the feofCment shall be void, 
 and I die before the time of payment; in 
 this case, if this money be paid at the day, 
 my executor or administrator, and not my 
 heir, shall have it. 
 
 If one be seised in fee of lands whereon 
 there are trees growing, and he make a 
 feoffment of the land to me, excepting the 
 trees, and afterwards he doth sell me the 
 trees for ever, and after I die; in this case, 
 my executor or administrator shall not have 
 these trees, as they shall in case where the 
 feoffor doth grant them to me for years. 
 And if I be seised of land in fee, and I 
 m'ake a lease for life, or years of it, except- 
 ing the trees, and afterwai-ds I die; in this 
 case, my executor or administrator shall not 
 have these trees, but they shall go in both 
 cases with the land. 
 
 If a lease be made for life, or years, of 
 land, whereon a house is standing, or timber 
 is growing, 'and the house is prostrate, or 
 the timber is cut or fallen down (by whom- 
 soever or what means soever it be;) the ma- 
 terials of this house, and this timber, is now 
 become a chattel; and therefore, if the lease 
 be without impeachment of waste, it shall 
 go to the lessee, and after his death to his 
 executor or administrator; but if the lease 
 be otherwise, it shall go to the lessor, and 
 after his death to his executor or adminis- 
 trator. But if the timber be cut for repara- 
 tions only, or the lessee will employ the ma- 
 terials of the house to build it again, and the 
 lease do continue, it may be so employed, 
 and then the executor or administrator of 
 the lessor may not take it. 
 
 If one be seised in fee-simple of ground 
 whereon trees do grow, and he sell me these 
 trees for money, and afterwards I die be- 
 fore they be cut; in this case, my executor 
 or administrator shall have and may cut 
 them. 
 
 If the king's tenant by knight's service in 
 capite be seised of a manor whereunto an 
 advowson is appendant, and the church be- 
 come void, and the tenant dieth, his heir 
 within age; in this case, the king, and not 
 the executor or administrator of the tenant, 
 
 83 
 
§ 134 AGENCIES EPFECTING THE DEVOLUTION OP PKOPEBTY. (Ch. S 
 
 shall have the presentation. And yet if in 
 this case the land be held of a common per- 
 son, the executor or administi-ator, and not 
 the guardian, shall have it. 
 
 In all cases regularly where a man doth 
 sow land, whereof and wherein he hath such 
 an estate as may perhaps continue until the 
 com be ripe, if he that doth sow it die before 
 it be cut and severed, his executor or ad- 
 ministrator shall have it: as if the husband 
 sow the land whereof he hath an estate in 
 fee-simple, fee-tail, for life, or for a certain 
 number of years, in the right of his wife, 
 and die ere it be ripe; in this case, the ex- 
 ecutor or administrator of the husband, and 
 not the wife, shall have it. And if one that 
 holdeth land for the life of I. S. sow the 
 land, and I. S. die ere it be ripe and cut; 
 the executor or administrator of the ten- 
 ant shall have this corn. And if tenant in 
 tail, or in dower, sow the land they do so 
 hold, and die ere it be cut; the executor or 
 administrator, not the issue in tail, nor the 
 heir, or him in reversion, shall have it. So 
 if the husband make a feoffment in fee to 
 the use of himself for life, and after of his 
 wife, &c. and he sow the land, and after die: 
 his executor or administrator, not his wife, 
 shall have the corn. But if a feoffment b€ 
 made to the use of the husband and wife 
 together in fee, or for life, and the husband 
 sow the land; in this case, the wife, not the 
 executor or administrator of the husband, 
 shall have the corn. So if lessee for years 
 certain sow the land a little before the end 
 of his term, and the term end before it be 
 cut; in this case, he that is to have the land, 
 not the executor or administrator of the 
 lessee for years, shall have the corn. 
 
 Shep. Touch. 472. — If there be tenant for 
 life, .the remainder in fee of a tenancy, and 
 the lord grant his seigniory for life, and after 
 he in remainder in fee of the tenancy die, 
 his heir within age, and after the lord die, 
 and after the tenant for life die; in this 
 case, the heir, and not the executor or ad- 
 ministrator of the lord, shall have the wor- 
 ship. 
 
 If one be seised of land in fee, and make 
 a lease for years rendering rent at Michael- 
 mas, or within ten days after, and the les- 
 sor happen to die during the term after 
 Michaelmas, and before the ten days ex- 
 pired; in this case, the heir of the lessor, 
 and not his executor or administrator shall 
 have the last half year's rent due at Michael- 
 mas. 
 
 If one grant a rent in fee, and grant with.il 
 that, if the rent be behind, the grantor shall 
 forfeit twenty shillings nomine paenae to the 
 grantee and his heirs, and the rent is behind, 
 and the grantee die; in this case, his ex- 
 ecutor or administrator, not his heir, shall 
 have this money that is forfeit already. So 
 if one make a feoffment in fee of land, and 
 the feofCee doth covenant to do divers things 
 to the feoffor, et quoties defectus fuerit, &c. 
 84, 
 
 that he shall forfeit to him and his heirs five 
 pounds, and the feoffee doth fail and break 
 his covenant divers ways, and the feoffor 
 dieth; in this case his executor or adminis- 
 trator, not his heir, shall have and recover 
 all the forfeitures that are past. 
 
 If a bishop, parson, vicar, master of a hos- 
 pital, or any body politic be possessed of any 
 goods or chattels in their own right and die; 
 these shall go to the executor or administra- 
 tor, and not to the successor, of such a per- 
 son. And albeit such things be granted to 
 them and their, successors, yet their execu- 
 tors and administrators, and not their suc- 
 cessors shall have it. But if a corporation 
 aggregate, as dean and chapter, mayor or 
 commonalty, and the like, have any goods 
 or chattels in right of their corporation, and 
 any of the heads and members thereof die; 
 the executors or administrators of such per- 
 son shall not have them; but they shall con- 
 tinue in succession with the corporation. 
 
 Shep. Touch. 473.— -An executor or adminis- 
 trator shall have the benefit of a pardon 
 granted to the deceased, and shall have ad- 
 vantage of any error in any outlawry against 
 the deceased, and have restitution of the 
 goods forfeit thereupon. 
 
 The executor or administrator of a woman 
 that hath a husband, shall have, by right of 
 his executorship or administration, all ac- 
 tions, rights, and titles to any chattels, and 
 possibilities, and things of that nature, which 
 the wife had before the marriage, and which 
 fell to her during the marriage; for these 
 things the husband shall not have by the 
 intermarriage after his wife's death, as he 
 shall have all the rest of her goods and chat- 
 tels: except he have them as executor or ad- 
 ministrator to her, as he may be. And if 
 such a woman have any goods or chattels as 
 executrix to another, her executor or ad- 
 ministrator, not her husband, shall have- 
 these also; for she hath these goods in an- 
 other's, and not in her own right. 
 
 If I have any goods or chattels in joint- 
 tenancy with another, as if a lease be made 
 of lands to me and another for years, or a 
 horse or other chattel personal be given or 
 granted to me and another; in these cases, 
 if I die, my executor or administrator shall 
 not have any part of these goods or chat- 
 tels; but the other surviving joint-tenant 
 shall have them all. But otherwise it is of 
 the goods and chattels that I and another 
 have in common. And therefore if I and 
 another have goods and chattels in that 
 nature as before; and he, or I, grant that 
 which doth belong unto us thereof unto a 
 stranger; in this case the stranger, and him 
 of us two that hath kept his part, are ten- 
 ants in common of the things; and therefore 
 if either of us die, the part of him that 
 dieth in the goods and chattels shall go to 
 his executor or administrator, and not to the 
 other tenant in common. 
 
 If I have a judgment for land in a real or 
 
Ch. 8) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 134 
 
 mixt action, and for damages recovered in 
 the same suit, and I die; in. this case my 
 executor or administrator, not my heir, shall 
 sue execution for and recover the damages, 
 but not for the land. So if I recover dam- 
 ages against another for the detaining of my 
 charters, and die; my executor or adminis- 
 trator, shall recover the damages, but the 
 heir shall have the charters; and the heir 
 must sue his scire facias for the charters, 
 ere the executor can sue for the damages. 
 Also if I recover any debt or damage in 
 any personal action; my executor or ad- 
 ministrator shall recover and haVe this. 
 
 Shep. Touch. 474. — The power and inter- 
 est which the executor hath is wholly 
 by the will. And hence it is, that an ex- 
 ecutor, whether he be absolute or condi- 
 tional, while he is executor, may do any 
 thing as executor (except only, sue for 
 debts and duties due to the testator) as 
 well before the probate of the will, as he 
 may do after, for before the probate he 
 may enter into and seize the goods and 
 chattels whatsoever they be, or give power 
 to another so to do: and if any of them 
 be taken or kept from him, he may have 
 an action of trespass, or a replevin to re- 
 cover them; he may give or sell any of the 
 goods or chattels; he may pay any of the 
 debts due from, or receive or release any 
 ■debts due to, the deceased. But it is other- 
 wise in the case of an administrator: for in- 
 asmuch as his power and interest is given to 
 bim wholly by the administration, therefore 
 he can do nothing until the administration 
 be granted. And yet in this case, as to the 
 goods taken away before the administration, 
 the administration shall have such a rela- 
 tion as to give the administrator an action 
 for them. But otherwise, after the adminis- 
 tration is granted, the interest and power of 
 the administrator is equal to, and with the 
 power and interest of the executor. And 
 jet it is otherwise of the power and interest 
 of the ordinary; for howsoever it seems by 
 the ancient common law he might seize, pre- 
 serve, give, grant, and dispose the goods of 
 the intestate to pious uses, yet might he 
 not sue for the goods or debts due to the 
 intestate, no more than he might be sued 
 ior any debt due from the intestate; and at 
 this day he may only keep and preserve the 
 goods of the deceased until administration 
 be granted, and sue him in the court of the 
 ordinary, that doth detain the goods from 
 him; and perhaps may sue him that shall 
 take the goods out of his possession; for he 
 may not sell or give the goods of the de- 
 ceased, nor receive or release any debts; for 
 in case where there is an executor made 
 that is capable, &c. he is not to meddle at all 
 with the estate until the executor refuse: 
 and where there is no executor, or that the 
 party is dead intestate, the ordinary is pres- 
 ently to commit the administration to the 
 nearest of the kindred; which, when he hath 
 
 done, his power is at an end; for it is doubt- 
 ed of some whether he may repeal an ad- 
 ministration without cause, or not; but it 
 hath been clearly held by all, that he may 
 not dispose of the estate afterwards, and 
 that he hath not power to enforce the ad- 
 ministrator to give portions to children out 
 of the estate; and that if he do go about it, 
 either before or after the granting of the 
 letters of administration, the administrator 
 may have a prohibition. And accordingly 
 divers have been granted: and yet, notwith- 
 standing, it seems this course is usual, and 
 prohibitions not often granted at this day. 
 An executor or administrator may, after the 
 death of the deceased, enter into the house 
 where the deceased lived, and where he 
 died, and where the goods are, and take them 
 away, and justify it; but he must do it 
 within convenient and reasonable time, as 
 within thirty days after his death or there- 
 abouts, and in a quiet and fair manner, 
 when the door is open, &c. He may keep 
 any of the goods of the deceased, so as he 
 pay or lay out as much of his own money 
 in and about the administration of the same 
 estate. He may, if he wants money to dis- 
 charge funerals, or pay debts, sell any of 
 the chattels real or pei-sonal whereof the 
 deceased died possessed; and that albeit the 
 thing in particular be devised: as if a man 
 be possessed of a term of years inter alia, 
 and devise the term to I. S., the executor or 
 administrator, notwithstanding this devise, 
 may at any time before assent given to the 
 legacy, if he bave not assets to pay the 
 debts, sell this term, and the legatee is reme- 
 diless. And so he may do also, albeit there 
 be enough besides to pay the debts, and he 
 have no need; but then in this case the 
 legatee shall have some relief in a court of 
 equity against the executor or administrator 
 for damages, but the sale is unavoidable. 
 An executor or administrator may retain so 
 much of the estate as to satisfy his own 
 debt first, if any be due unto him. And if he 
 have enough to pay all the debts and lega- 
 cies, he may pay them in what order he 
 will, without danger to himself or wrong to 
 creditors or legataries. And if he hath not 
 enough, he may pay them in what order 
 he will, but not without danger to himself. 
 But if any thing be due to himself, he may 
 pay that first of all; and for others that are 
 in equal degree, he may pay which of them 
 he will first. And for the legataries, he may 
 prefer which of them he will, o;r pay one 
 of them his whole legacy, and pay another a 
 part of his, or not pay him any part of his 
 legacy, if there be no assets to do it. But an 
 executor or administrator may not sell any 
 thing that is given in special to a legatee, 
 to pay another legacy given to another lega- 
 tee; nor compel a creditor or legatee to 
 take some of the goods of the deceased for 
 his debt or legacy whether he will or no; 
 nor devise the goods he hath as executor or 
 
 85 
 
§ 134 AGENCIES EPFECTING THE DEVOLUTION OF PROPERTY. (Ch. S 
 
 as administrator; neither can executors or 
 administrators make division of tlie goods 
 amongst them. 
 
 Shep. Touch. 49G.— Assets in this case, is 
 said to be where one dieth indebted and 
 maketh his executor, or dieth intestate, and 
 the executor or administrator hath sufficient 
 goods or chattels or other profits to pay the 
 debts of some part thereof; this is said to 
 be assets in his hands, and for so much he 
 shall be charged. 
 
 All those goods and chattels, actions and 
 commodities, which were the deceased's in 
 right of action or possession as his own, and 
 so continued to the time of his death, and 
 which after his death the executor or admin- 
 istrator doth get into his hands as duly be- 
 longing to him In the right of his executor- 
 ship and administration, and all such things 
 as do come to the executor and administra- 
 tor in lieu or by reason of that, and nothing 
 else shall be said to be assets In the hands 
 of the executor or administrator to make him 
 chargeable to a creditor or a legatee. And 
 herein these things are to be known: 1. 
 That assets in the hands of one of the execu- 
 tors shall be said to be assets in the hands 
 of all the executors. 2. That assets in any 
 part of the world shall be said to be assets in 
 every part of the world: and therefore if 
 that point be in issue, and it appear that 
 there is assets in the hands of any one of the 
 executors, or in any county or place whatso- 
 ever, the jury must find that there is assets. 
 3. All goods and chattels of what nature and 
 kind soever that are valuable, as oxen, kine, 
 corn, &c. shall be esteemed assets. But 
 such things as are not valuable, as a presen- 
 tation to a church, and the like, shall not be 
 accounted assets. 4. All the goods and chat- 
 tels that come to the executor or administra- 
 tor in the right of their executorship or ad- 
 ministration, and that are by law given to 
 thena by virtue thereof in the right of the 
 deceased, (for which, see before, at numb. 
 25,) and which are in possession, shall be es- 
 teemed assets in his hands. And therefore 
 if a feoffment be made to the use of the feof- 
 for for life, and after to the use of his execu- 
 tors and assigns for twenty years; in this 
 case, it seems this twenty years shall be 
 said to be assets in the hands of the executor 
 of the feoffor. And goods pledged to the de- 
 ceased and not redeemed, or the money 
 wherewith it is redeemed, when it is redeem- 
 ed, shall be said to be assets in the hands of 
 the executor or administrator. And if the 
 deceased doth appoint that the executor 
 shall sell his lands to pay his debts, the 
 money that is made of the land when it is 
 sold, shall be said to be assets in his hands. 
 5. All the goods and chattels in action or In 
 possibility at the time of the death of the de- 
 ceased, that are afterwards recovered, and 
 are gotten in possession into the hands of 
 the executor or administrator when they are 
 so recovered, are esteemed assets in his 
 86 
 
 hands. But they are never accounted as- 
 sets, until they are recovered and come in 
 possession; and therefore if there be debts 
 owing to the deceased upon statutes or obli- 
 gations, or otherwise; these are never es- 
 teemed assets in the hands of the executor or 
 administrator, until he hath recovered them. 
 So likewise if there be debt or damages re- 
 covered by a judgment had by the deceased, 
 but no execution is done; until execution be 
 made, this shall not be esteemed assets in 
 the hands of the executor or administrator. 
 So if the executor bring an action of trespass 
 against another de bonis asportatis in vita 
 testatoris, and he have a judgment for dam- 
 ages; in this case, until he hath recovered it 
 by execution, it shall not be esteemed assets 
 in his hands. And if the judgment be erro- 
 neous, and the execution avoidable; in this 
 case, albeit it be recovered and gotten in pos- 
 session, yet It shall not be esteemed assets. 
 And therefore if one sue another, and recov- 
 er against him as administrator of I. S. and 
 after a testament made by I. S. is produced 
 and proved, and thereby an executor is madep 
 in this case, the money recovered by the ad- 
 ministrator shall not be said to be assets in 
 his hands as to any of the creditors, because 
 the executor may recover it from him, or the 
 debtor will have it again. And if the execu- 
 tor or administrator do never recover and get 
 the thing into his possession, he shall never 
 be charged, especially there where he hath 
 done his best to get it and cannot. If one 
 covenant to make a lease for years to the de- 
 ceased, his executors or administrators, and 
 after his death the lease is made to the exec- 
 utor or administrator accordingly; in this 
 case, tliis lease shall be said to be assets in 
 his hands, and he shall be chargeable for so 
 much to any creditor. And whatsoever the 
 executor or administrator must be forced to 
 sue for by the name of executor or adminis- 
 trator, being recovered, shall be esteemed 
 assets in his hands. 6. Albeit the thing be 
 extinct and gone as to the executor and ad- 
 ministrator himself, yet it may have its be- 
 ing and be accounted assets as to the credit- 
 ors and legatees. And therefore if an exec- 
 utor or administrator have a lease for years 
 of land in the right of the deceased, and 
 afterwards he doth purchase the fee-simple 
 of the land (whereby the lease Is drowned) 
 yet in this case this lease shall continue to be 
 assets as to the creditors and legatees 
 still. And if the debtee make the debtor his 
 executor, or the debtee die intestate, and the 
 administration is committed to the debtor; 
 in these cases, this debt shall be said to con- 
 tinue, and shall be esteemed assets for so 
 much as to other creditors. And if a woman 
 executrix have goods worth twenty pounds, 
 and she marry with one of the creditors to 
 whom twenty pounds are owing; in this 
 case, it seems the husband may not retain 
 the goods to pay himself, but they shall be 
 assets to other creditors. And yet, if the 
 
Ch. 8) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. §§ 134-137 
 
 debtor make the debtee his executor, he may 
 retain so much as to satisfy his own debt; 
 and that he doth so retain shall not be said 
 to be assets in his hands as to any other 
 creditor. And if I. S. have goods to the val- 
 ue of tvventy pounds, and he is bound to B. 
 and C. in twenty pounds a piece, and he 
 dieth Intestate, and after D. doth administer, 
 and then B. dieth, and malseth D. his execu- 
 tor ; in this case D. may retain tliis to satisfy 
 his own debt, and it shall not be said to be 
 assets in his hands as to any other. 7. The 
 goods and chattels of other men in the hands 
 of the executor or administrator that were in 
 the possession of the deceased, if he had no 
 right to them, or If he had, and they do not 
 belong to the executor, will not make the ex- 
 ecutor or administrator chargeable; for 
 these shall not be esteemed assets in his 
 hiands. And therefore if the goods of an- 
 other man be amongst the goods of the de- 
 ceased, and these come altogether into the 
 hands of the executor or administrator; 
 these goods that are the goods of another 
 shall not be said to be assets in the hands 
 of the executor or administrator. And if 
 the executor doth receive a rent that doth 
 belong to the heir; this rent shall not be said 
 to be assets in his hands: and hence it is, 
 that if the deceased were outlawed at the 
 time of his death, that his goods and chattels 
 are not to be accounted assets, for they are 
 none of his. If an executor of his own 
 wrong, to whom twenty pounds are owing, 
 doth enter upon so much of the goods of the 
 deceased as is worth twenty pounds, intend- 
 ing to pay himself; this shall be esteemed 
 assets in his hands to make him chargeable 
 for so much to any creditor or legatee. 9. 
 If the deceased have goods worth twenty 
 pounds, and owe twenty pounds to A. and 
 ten pounds to B. and he compound with A. 
 for ten pounds; in this case, the executor 
 shall be said to have assets, and be charged 
 to pay the debt of B. also. 10. If a man 
 have a lease for years worth twenty pounds 
 per annum at the rent of five pounds and he 
 die; in this case, not the whole value of the 
 land, but so much as is above the rent, shall 
 be said to be assets in the hands of the exec- 
 utor or administrator. 
 
 § 135. The Time When it Vests. 
 
 WOOIjIjKY t. CLARK, Case No. 184, post. 
 CULLEN V. O'HARA, Case No. 185, post. 
 
 § 136. The Quality of the Estate. 
 
 WHALE V. BOOTH, Case No. 186, post. 
 McLEOD V. DRUMMOND, Case No. 187, 
 post. 
 
 § 137. The Interest in the Estate. 
 
 Shep. Touch. 481.— An executor or admin- 
 istrator regularly shall charge others for any 
 
 debt or duty due to the deceased, as the de- 
 ceased himself might have done; and the 
 same actions the deceased might have had, 
 the same actions for the most part the ex- 
 ecutor or administrator may have also; and 
 therefore he may have an action of account, 
 an action of trespass de bonis asportatis in 
 vita testatoris, an action of debt against a 
 gaoler upon the escape of a prisoner, a writ 
 of error upon the statute of 27 Eliz. an at- 
 taint upon the statute of 23 Hen. VIII. a 
 writ of restitution upon the statute of 21 
 Hen. "VIII. an action upon the case, upon 
 the assumpsit of the testator, an indempni- 
 tate nominis when the deceased's goods are 
 taken upon an outlawry against another man 
 of his name, an action of covenant for breach 
 of a covenant made to the deceased, an action 
 upon the case, upon the trover and conver- 
 sion of the goods of the testator, an ejec- 
 tione firmo for an ejectment of the testator 
 out of a term, an action of debt for the rent 
 behind in the life-time of the deceased, an 
 action of debt for the arrearages of an an- 
 nuity due to the testator in his hfe-time, and 
 a ravishment or ejectment of ward for a 
 wrong done to the deceased. But an execu- 
 tor or administrator shall not charge anoth- 
 er, or have any action against him, for a 
 personal wrong done to the testator, when 
 the wrong done to his person, or that which 
 is his, is of that nature, as for which dam- 
 ages only are to be recovered; and therefore 
 an executor or administrator cannot sue an- 
 other for the beating or wounding of the de- 
 ceased, or for a trespass done to him in his 
 cattle, grass, or corn, or for waste done by 
 his tenant in his lands; for these are said 
 to be personal actions which die with the 
 person, according to the rule, "actio personal- 
 is moritur cum persona." 
 
 If the testament be kept from the executor, 
 he may have remedy to recover it In the spir- 
 itual court; so if the goods of the deceased 
 be kept from him, he may sue there for them 
 if he wUl, or he may sue in any court of com- 
 mon law. And if there be a will, and an ex- 
 ecutor made, or two administrations granted 
 together, he that is rightful executor or ad- 
 ministrator may sue the wrongful adminis- 
 trator for the goods in his custody. 
 
 Shep. Touch. 482.— If one grant a rent out 
 of his land for Ufe, provided that it shaU 
 not charge his person, and the rent is be- 
 hind, and the grantee dieth; in this case, 
 the executor or administrator of the grantee 
 may have an action of debt for these ar- 
 rearages. 
 
 If any rent, or arrearages of rent, be due 
 to me upon a grant of rent out of any land 
 to me, or reservation of rent upon any estate 
 made by me of land; in these cases, my ex- 
 ecutor or administrator may have an action 
 of debt for this rent, or he may distrain for 
 it, so long as the land chargeable with the 
 rent, and out of which it doth issue, is in his 
 possession that ought to pay it, or in the 
 
 87 
 
137-147 AGENCIES EFPECTING THE DEVOLUTION OF PROPEKTY. (Ch. 8 
 
 possession of any one that doth claim by or 
 under him. 
 
 If any of my household servants do con- 
 vey away and eloign, or destroy any of my 
 goods; my executor or administrator may 
 have a special commission out of the chan- 
 cery to inquire of and to punish it. And in 
 case where a man doth sue as executor or 
 -administrator, he must in his action name 
 :himself as he is, i. e. if he be an executor, he 
 must name himself so: and if an adminis- 
 trator, he must name himself so; and If 
 there be many executors, and some accept, 
 and some refuse, if they bring any action, 
 they must be all named in the writ; and yet 
 if one executor have goods in his possession, 
 and he alone sell them, perhaps for this con- 
 tract he may bring an action for the money 
 in his own name; so also if the goods be 
 taken out of his possession alone, it is said 
 he alone may sue for them; but the safest 
 way in these cases is to sue in the names 
 of all the executors; for the- possession of 
 one of them is said to be the possession of 
 .all of them. 
 
 13 Edw. I. c. 23. (Statute No. 5, post.) 
 4 Edw. 111. c. 7. (Statute No. 6, post.) 
 25 Edw. 111. c. 5. (Statute No. 7, post.) 
 21 Hen. Vlll. c. 4. (Statute No. 9. post.) 
 9 & 10 Vict. c. 93. (Statute No. 25, post.) 
 
 § 138. Same — Choses in Action — 
 
 Those Which the Deceased 
 
 might have Put in Suit 
 
 — Contract. 
 
 DEVON V. PAWLETT, Case No. 188, post. 
 
 § 139. Same— Tort. 
 
 UHAMBEKLAIN v. WILLIAMSON, Case 
 No. 189, post. 
 
 KNIUHT v. QUARLES, Case No. 190, post. 
 
 KAYMOND v. FITCH, Case No. 191, post. 
 
 KICKETTS V. WEAVER, C.ise No. 192, 
 post. 
 
 SENIOR V. WARD, Case No. 193, post. 
 
 RICHARDSON v. NEW YORK CENT. R. 
 Xi., Case No. 194, post. 
 
 § 140. Same — Apportionment. 
 
 DEXTER T. PHILLIPS, Case No. 195, post. 
 
 § 141. Same — Partnership Inter- 
 ests. 
 
 MARTIN V. CRUMP, Case No. 196, post. 
 BASSETT v. MILLER, Case No. 197, post. 
 BOHLBR V. TAPPAN, Case No. 198, post. 
 
 § 142. Same — Those Where the 
 
 Cause of Action Accrued 
 
 after Decedent's Death. 
 
 HOLLIS V. SMITH, Case No. 199, post. 
 CULLEN T. O'HARA, Case No. 185, post. 
 88 
 
 § 143. Rights of Action for Tres- 
 pass. 
 
 EMERSON V. EMERSON, Case No. 200, 
 post. 
 
 § 144. Chattel Interests in Real 
 Property. 
 
 MOSHER V. YOST, Case No. 201, post. 
 
 See Descent — Estates pur Autre Vie, ante. 
 § 9. 
 
 § 145. Emblements. 
 
 REIFF V. REIFF, Case Nff. 202, post. 
 
 § 146. Fixtures. 
 
 LAWTON V. LAWTON, Case No. 203, post 
 LAWTON V. SALMON, Case No. 204, post 
 
 § 147. Real Estate — In General. 
 
 Shep. Touch. 458.— If lands or any rent, 
 or other profit to be talien out of lands, 
 be devised to a man in fee-simple, fee-tail, 
 for life, or years; in these cases the devisee 
 may enter into, and have and talie the thing 
 devised, without the leave or agreement of 
 the executor or administrator: and so he 
 may, whether there be any executor made 
 or not, and whether the will be proved or 
 not, for the ordinary and the executor have 
 nothing to do with these things. And if 
 the devisee in any such case be distm^bed in 
 the having or talcing of such things, he may 
 have the same remedy as men have in other 
 cases. And where the land is devised by 
 custom, if the heir enter before the devisee, 
 the devisee may be relieved by a writ called 
 "ex gravi querela;" but if the devisee enter 
 first, and then the heir enter upon him, the 
 devisee may have his remedy at the common 
 law. 
 
 If lands are given thus, I will that my ex- 
 ecutors shall sell my land, and with the mon- 
 ey made thereof shall pay ten pounds to my 
 daughter A. and ten pounds to my daughter 
 B. in this case, and for this gift, A. and B. 
 may either sue the executors in a court of 
 equity, or have an action of accompt against 
 them in a court of common law. 
 
 2 Bl. Comm. 378.— Another inconvenience 
 was found to attend this new method of 
 conveyance by devise; in that creditors by 
 bond and other specialities, which affected 
 the heir provided he had assets by descent, 
 were now defrauded of their securities, not 
 having the same remedy against the devisee 
 of their debtor. To obviate which, the stat- 
 ute 3 & 4 W. & M. c. 14, hatli provided, that 
 all wills and testaments, limitations, dispo- 
 sitions, and appointments of real estates, 
 by tenants in fee-simple or having power 
 to dispose by will, shall (as against such 
 
■CI). 8) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. §§ 147-148 
 
 •creditors only), be deemed to be fraudulent 
 and void: and that sucli creditors may main- 
 tain ttieir actions jointly against both the 
 heir and the devisee. 
 
 HOOVER V. HOOVER, Case No. 205, post. 
 STATE V. PROBATE COURT OF RAM- 
 SAY CO., Case No. 206, post. 
 HAYS V. JACKSON, Case No. 239, post. 
 
 :§ 148. Same — Under Po^wer in the 
 
 wm. 
 
 Shep. Touch. 448.— Devise of lands to ex- 
 ecutors to sell, to pay debts, legacies, &c. 
 are some of them after one manner, and 
 some of them after another; for sometimes 
 the devise is thus, I will that my executors, 
 or that A. B. and C. my executors shall sell 
 my land; and sometimes the devise is thus, 
 I give my land to my executors to. be sold, 
 or to the end that they shall sell it; in the 
 first case, the executors have only an au- 
 thority and no interest; and therefore in 
 that case the land doth descend in the in- 
 terim to the heir of the devisor, and he shall 
 have the profits of the land until it be sold; 
 and if it be never sold, he shall ever have 
 the profits of it; and in this case, they may 
 sell it when they will, if they be not has- 
 tened thereunto by order of court; and when 
 they do sell, they must all join in the sale by 
 the common law, or otherwise the sale had 
 not been good; and therefore if one or more 
 of them had died before the sale, they that 
 had survived, or their executors, could never 
 have sold it by this authority; so liliewise 
 if any of the executors had refused the 
 charge of the will, the land could not have 
 been sold by the rest, unless the words of 
 the will had been that his executors or some 
 of them should sell it; for in that case, some 
 of them even by the common law itself 
 might have sold, and now also by the stat- 
 ute 21 Hen. VIII. c. 4, some of them may 
 sell it without the rest: as if one give his 
 land to A. for life, and that after his decease 
 it shall be sold by his executors, and malie 
 four executors, and one of them die during 
 the life of A. and then A. dieth; in this 
 case, the other three executors may sell: so 
 if one give his land in tail, and that if the 
 donee die without issue, that the land shall 
 be sold by his sons-in-law; and he hath then 
 five sons-in-law, and one of them die in the 
 life-time of the donee, and after the donee 
 •die without issue; in this case, the other 
 four may sell the land, and the sale made 
 thereof is good: and yet if the words of the 
 will be, that it shall be sold by A. B. and C. 
 his executors, or his sons-in-law; in this 
 case, if one of them die, it cannot be sold 
 by the rest: but in the last case before, 
 where the devise is, I give my land to my 
 executors to be sold, &c. the executors have 
 an interest in the land, and an authority 
 about the land also; and therefore, in this 
 case, the descent is prevented, and the ex- 
 
 ecutors shall keep it till the sale; neither 
 will any disseisin, fine, recovery, or feoff- 
 ment by the heir, prejudice their interest, 
 but that they may sell it when they wiU; 
 but they must sell in time convenient, or 
 otherwise the heir may enter and put them 
 out by a condition in law, that is annexed 
 to the Interest; or perhaps the heir may ten- 
 der to them the worth of the land, and if 
 they refuse to accept it, he may enter upon 
 them, and oust them; and it seems in this 
 case, the mean profits until the sale are no 
 assets; but the money made upon the sale 
 shall be assets in their hand: and in this 
 case, albeit one or more of the executors 
 die or refuse, yet the rest may sell it, even 
 by the common law itself, and so also by con- 
 struction upon the same statute, for the 
 estate surviveth. But it seems they may 
 not sell to him that doth refuse; neither 
 may they in either case transfer their power 
 to sell to any other, nor keep the land them- 
 selves, and pay so much of their own money 
 as the land is worth. 
 
 Shep. Touch. 449.— If one devlseth by his 
 will, that his land shall be sold to pay his 
 debts, and say not by whom; in this case, 
 it shall be sold by his executors: and if one 
 devise all his land except one acre, which 
 he doth appoint to pay his debts; by this 
 devise his executors or the survivor of them 
 may sell it: but if one say by his will, that 
 I. S. shall have tam gubernationem puerorum 
 meorum quam the disposing, letting, and 
 selling of my lands; by this devise I. S. 
 hath not power given to him to sell the land. 
 
 If one devise that his land shall be sold 
 after the death of his wife by his executors 
 with the assent of I. S. and make his wife 
 and a stranger his executors and die, and 
 after I. S. die; in this case, the land cannot 
 be sold, for the authority is determined. 
 
 If one devise that his executors shall sell 
 the land, and with the money coming or 
 made of it, shall pay such and such legacies 
 or sums of money in particular, to such and 
 such persons by name; this is not a legacy 
 for which a suit lieth in a court Christian; 
 but for this, every one that is to have por- 
 tion, may have accpmpt against the execu- 
 tors after the sale. 
 
 If one give lands to another, to give them 
 again to the children of the testator, or to 
 dispose of them at the will of the devisees 
 to some of the children of the devisor; in 
 these cases, the devisees must dispose it ac- 
 cordingly, and cannot give to any other: 
 and if one gives land to others, to the intent 
 that with the profits thereof they shall edu- 
 cate children, or pay such sums of money, 
 or, &c. in this case, the devisees must do 
 accordingly, or they may be compelled there- 
 unto. 
 
 Shep. Touch. 450.— And in all cases of de- 
 vises of lands to executors to sell, it is wis- 
 dom to make it certain, i. e. that the execu- 
 tors or the survivor of them, or such or so 
 many of them as take upon them the probate 
 
 89 
 
g§ 148-150 AGENCIES EEEECTING THE DEVOLUTION OF PROPERTY. (Ch. 8 
 
 of the will, (if his meaning be so) shall sell 
 it. And it is better to give an authority, 
 than an estate, unless his meaning be that 
 they shall take the profits of the land until 
 the sale: and if he do so, then it is necessary 
 that he appoint that the mean profits until 
 the sale, shall be assets in their hands; for 
 otherwise it shall not be so. 
 
 HAMPTON 
 
 post. 
 
 90 
 
 T. SHOTTEE, Case No. 207, 
 
 § 149. Same — Property Conveyed 
 in Fraud of Creditors. 
 
 OSBOKN V. MOSS, Case No. 208, post. 
 
 § 150. Conversion. 
 
 FLETCHER v. ASHBURNER, Case No 
 209, post. 
 FRAYNE V. TAYLOR, Case No. 210, post. 
 
Ch. 9) AGENCIES EFFECTING THE DEVOLUTION OF PKOPEKTY. §§ 151-156 
 
 CHAPTER IX. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 § 151. 
 
 152. 
 153. 
 154. 
 
 155. 
 
 156. 
 
 157. 
 158. 
 159. 
 160. 
 
 161. 
 162. 
 163. 
 164. 
 165. 
 166. 
 167. 
 
 Duties of the Personal Eepresentative 
 
 tContinued) — Payment of Debts. 
 
 Presentation of Claims by Creditors. 
 
 Performing Contracts of the Deceased. 
 
 Joint Obligations not Those of a 
 
 Partner. 
 Partnership's Obligations, and the 
 Carrying on of the Business of a 
 Firm of which the Deceased was 
 a Member. 
 Of the Survival of Claims against the 
 
 Estate of the Decedent. 
 Submission to Arbitration. 
 Priority of Payment of Claims. 
 Payment of Legacies. 
 General and Specific Legacies, and 
 
 Ademption. 
 Abatement of Legacies. 
 Lapsed Legacies and Devises. 
 Compromising Legacies. 
 Equitable Assets and Marshaling. 
 Distribution. 
 The Residue. 
 Accounting. 
 
 § 151. Duties of the Personal Rep- 
 resentative (Continued) — 
 Payment of Debts. 
 
 2 Bl. Comm. 511. — The executor or admin- 
 istrator must pay the debts of the deceased. 
 In payment of debts he must observe the 
 rules of priority; otherwise, on deficiency of 
 assets, if he pays those of a lower degree 
 first, he must answer those of a higher out 
 of his owTi estate. And, first, he may pay all 
 funeral charges, and the expense of proving 
 the will, and the like. Secondly, debts due 
 to the ting on record or specialty. Thirdly, 
 such debts as are by particular statutes to be 
 preferred to all others: as the forfeitures for 
 not burying in woolen, money due upon poor 
 rates, for letters to the post office, and some 
 others. Fourthly, debts of record; as judg- 
 ments, docketed according to the statute (4 
 and 5 "W. & M. c. 20,) statutes and recogni- 
 zances. Fifthly, debts due on special con- 
 tracts; as for rent (for which the lessor has 
 often a better remedy in his own hands by 
 distraining), or upon bonds, covenants, and 
 the like, under seal. Lastly, debts on simple 
 contracts, viz. upon notes unsealed, and ver- 
 bal promises. Among these simple con- 
 ti-acts, servants' wages are by some with 
 reason preferred to any other: and so stood 
 the ancient law, according to Bracton and 
 Fleta, who reckon among the first debts to 
 be paid, servita servientium et stipendia 
 famulorum. Among debts of equal degree, 
 the executor or administrator is allowed to 
 pay himself first, by retaining in his hands 
 
 so much as his debt amounts to. But an 
 executor of his own wrong is not allowed to 
 retain; for that would tend to encourage cred- 
 itors to strive who should first take posses- 
 sion of the goods of the deceased; and would 
 besides be taking advantage of his own 
 wrong, which Is contrary to the rule of law. 
 If a creditor constitutes his debtor his ex- 
 ecutor, this is a release or discharge of the 
 debt, whether the executor acts or not; pro- 
 vided there be assets sufl&cient to pay the 
 testator's debts: for though this dischai-ge 
 of the debt shall take place of all legacies, 
 yet it were tmfair to defraud the testator's 
 creditors of their just debts by a release 
 which is absolutely voluntary. Also, if no 
 suit is commenced against him, the executor 
 may pay any one creditor in equal degree his 
 whole debt, though he has nothing left for 
 the rest: for, without a suit commenced, the 
 executor has no legal notice of the debt. 
 
 13 Edw. 1. c. 19. (Statute No. 5, post.) 
 25 Edw. 111. St. 5, c. 5. (Statute No. 7, 
 post.) 
 
 WASHBURN V. HALL, Case No. 211, post. 
 
 § 15S. Same — Presentation of 
 Claims by Creditors. 
 
 AEJliEN V. ELLIOTT, Case No. 212, post. 
 
 § 153. Performing Contracts of the 
 Deceased. 
 
 GRAY V. HAWKINS, Case No. 213, post. 
 POOLE V. MUNDAY, Case No. 214, post. 
 
 § 154. Same — Joint Obligations not 
 Those of a Partner. 
 
 PICKERSGILL v. LAHBNS, Case No. 215, 
 post. 
 
 § 155. Same — Partnership's Obliga- 
 • tions, and the Carrying on of 
 the Business of a Firm of "w^hich 
 the Deceased was a Member. 
 
 EX PARTE GARLAND, Case No. 216, 
 
 post. 
 
 HAMERSLBY v. LAMBORT, Case No. 217, 
 post. 
 
 STANWOOD V. OWEN, Case No. 218, post. 
 
 MASON V. TIFFANY, Case No. 219, post. 
 
 § 156. Of the Survival of Claims 
 
 against the Estate of the 
 
 Decedent. 
 
 Shep. Touch. 482.— An executor or adminis- 
 trator regularly shall be charged by others, 
 
 91 
 
g§ 156-158 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 9 
 
 for any debt or duty due from the deceased, 
 as the deceased himself might have been 
 charged in his lifetime, so far forth as he 
 hath any of the estate of the deceased to 
 discharge the same. And therefore if a 
 man bind himself by obligation or covenant 
 to pay money, or do any such like thing, 
 and do not bind his executors or administra- 
 tors by name; in this case the executor or 
 administrator may be sued and may be 
 charged as far forth, &c., as if they Vi'ere 
 named. And yet where the covenant Is but 
 personal, as where one doth make a lease 
 for years and the lessor doth covenant to 
 pay the quit rents, but he doth not say 
 dm-ing the term; by this it seems that the 
 executor or administrator of the lessor shall 
 not be charged. An action of the case lieth 
 against him upon assumpsit of the simple 
 contract of the testator, especially where the 
 ground of the assumpsit is a true debt, a 
 rationabili parte bonorum lieth against him; 
 a detinue lieth against him for the goods 
 delivered to the deceased, if the executor or 
 administrator do still continue the possession 
 of them; and also an action of debt lieth 
 against him for arrearages of account found 
 upon the deceased before auditors. 
 
 The executor or administrator of the fa- 
 tlier, that hath levied aid of his tenant for 
 the marriage of his daughter, shall be char- 
 ged with it, and the daughter may sue for it. 
 
 Shep. Touch. 483. — The executor or admin- 
 istrator of a guardian in chivalry, that doth 
 commit waste in the ward's lands, shall be 
 charged, and may be sued by the heir for it. 
 
 If a man possessed of a term of years, de- 
 vise it to another and the executor or ad- 
 ministi-ator of the devisor, before the assent 
 to the legacy, doth commit waste in the 
 land in lease; in this case he shall be 
 charged with, and may be sued for, this 
 waste by him in reversion; but if the exec- 
 utor die, his executor shall not be charged 
 with it: for it is a personal wrong that 
 dieth with the person. 
 
 If a bishop gi-ant an annuity out of his 
 lands to I. S. for life and die; in this case 
 it seems the executor or administrator of 
 the bishop, shall be charged with the ar- 
 rearages due in the bishop's time. 
 
 If a lease for years be made rendering 
 rent, and the rent is behind and the lessee 
 die; in this case the executor or administra- 
 tor of the lessee shall be charged for this 
 rent. So also if lessee for years assign over 
 his interest and die, his executor or admin- 
 istrator shall be charged with the arrearages 
 before the assignment but not with any of 
 the arrearages due after the assignment. 
 
 The executor or administrator of a custom- 
 er or comptroller shall be charged upon a 
 taiUe (or taUy) of the exchequer showed to 
 the testator. 
 
 The executor or administrator shall be 
 charged for a ravishment or ejectment of 
 ward by the deceased. 
 92 
 
 The executor or administrator may be 
 cliarged in the spiritual court for tithes due 
 from the deceased: but he may not (as it 
 seems) be sued in any temporal court for 
 them. 
 
 The executor or administrator of a man 
 that recovereth a debt upon a judgment had 
 by the deceased, shall be chargeable with 
 restitution, if the judgment be reversed for 
 error. 
 
 An executor or administrator shall not be 
 charged for any personal wrong done by 
 the deceased: and therefore no action may 
 be brought against him for any such cause, as 
 because the deceased did burn the deed of 
 the plaintiff, suffer a prisoner at his suit 
 to escape, cut down his trees, eat up his 
 grass, beat or wound the body of the plain- 
 tiff, defame him in his name, or the like; 
 for all these are said to be personal actions 
 that die with the person; neither is there 
 any remedy to be had against the executor 
 or administrator in equity in these cases, 
 neither shall he be charged in any action of 
 accompt for any receipt or occupation by 
 the deceased. And yet perhaps an action of 
 the case may lie in this cas8: neither will 
 an action of debt lie against him upon sim- 
 ple contract of the deceased, but an action 
 of the case only. Neither will an action lie 
 against an executor or administrator upon 
 an arbitrament made in the life-time of the 
 deceased, albeit it be made in writing. Nei- 
 ther will any action, lie against any executor 
 or administrator for costs given in the star- 
 chamber or chancery against the deceased 
 in a suit there; but when the party dieth, 
 the same is lost; and where a man doth sue 
 an executor or administrator in a suit, he 
 must charge him as he is, viz. if he be an 
 executor, he must sue him by that name; 
 if an administrator, then by that name. 
 And where there be many executors, and 
 have all accepted, they must be all sued; 
 but if some of them have refused, perhaps 
 the suit may be good enough against the 
 rest. But otherwise one executor cannot be 
 charged without his companions, except it 
 be in the case of summons and severance, 
 and in some special case where one alone 
 doth the wrong and the lilfe, as where one 
 executor alone doth detain the deeds from 
 the heir; for in this case, he alone may be 
 charged. 
 
 HAMBLY V. TROTT, Case No. 220, post. 
 FIJN'LAY V. CHIRNEY, Case No. 221, post. 
 
 § 157. Submission to Arbitration. 
 
 CHADBOURN v. CHADBOURN, Case No. 
 222, post. 
 
 158. Priority of Payment of 
 Claims. 
 
 Shep. Touch. 477.— The fourth thing where- 
 of the executor or administrator must take 
 
 r 
 
Ch. 9) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 158 
 
 care, is to sell and make money of the goods 
 and chattels, and to receive the debts due 
 to the deceased, and then to pay the debts 
 and legacies due to the creditors and lega- 
 taries; wherein the executor or administra- 
 tor must be very cautious and wary. And 
 for this pm-pose let him observe, that all the 
 debts must be paid before any legacies be 
 paid or delivered; and if there be not enough 
 besides to pay the debts, any thing given by 
 way of legacy may be sold to make money 
 to pay the debts, and the legataries must 
 lose their legacies; for "legatarli contendimt 
 de lucro captando, creditores autem de dam- 
 no vitando." And in payment of debts this 
 decorum must be observed: 1. Amongst per- 
 sons that are creditors, the executor or ad- 
 ministrator himself shall be preferred; so 
 that if any debt be due to him, he may de- 
 duct to satisfy himself first, albeit others lose 
 their whole debt thereby, and especially then 
 when, his debt is in equal degree with other's 
 debts. 2. After the executor or administra> 
 tor is served and satisfied his debt, then the 
 king is to be preferred; so that if there be 
 any debt due to him, and he begin his suit 
 for it before a%iy other man can get a judg- 
 ment for his debt against the executor or ad- 
 ministrator, his debt shall be paid before any 
 others. 3. After the king is served and sat- 
 isfied his debt, then the debts of common 
 persons must be paid. And these also must 
 be paid in this order or manner: 1. The 
 debts due by record, by any judgment had 
 against the deceased in any judicial proceed- 
 ing m any court of record. 2. The debts 
 due by statutes or recognisances entered into 
 by the deceased; for the debts due upon 
 judgments must be satisfied before these; sit 
 judicium prius vel posterius. 3. The debts 
 due by obligations and penal and single bills; 
 for these are in equal degree, and these are 
 to be paid after statutes and recognisances. 
 And yet if the statute or recognisance be 
 only for performance of covenants, and no 
 covenant is broken, an obligation for the pay- 
 ment of present money shall be discharged 
 before it. 4. The debts due for rent upon 
 leases of land, or grants of rents; but some 
 say that debts due for rent in the testator's 
 life-time (be the rent reserved upon leases 
 made by or without deed, for years, or at 
 will) are in equality of degree with debts 
 due upon specialties. 5. The debts due for 
 servants' wages and workmen. 6. The debts 
 due upon shop-books and verbal contracts; 
 and yet it is said by some, that legacies are 
 to be paid before debts due by shop-books, 
 bUls unsealed, or contracts by word, quod 
 non credo. And amongst debts also that are 
 in equality of degree, those that are due are 
 to be paid before those that are not due; and 
 those whose day of payment is already come 
 before those whose day of payment is not 
 yet come: and yet if the creditor, whose day 
 of payment is already come, do not sue for 
 his debt, until his debt, whose day of pay- 
 
 ment is at a day to come, become due, the 
 executor or administrator may satisfy which 
 of them he will first. And amongst debts 
 that are due and already to be paid, those 
 that are first sued for, are to be first paid; 
 or if the creditors begin their suits together, 
 the executor or administrator may pay which 
 he will of them first; and to pay debts in any 
 other order is dangerous: and therefore for 
 this purpose, if the deceased owe two sev- 
 eral debts of ten pounds a-piece to two sev- 
 eral creditors by several obligations, and the 
 executor or administrator hath enough only 
 to pay one of them, he that can first get 
 judgment and execution shall first be satis- 
 fied; and if the executor or administrator 
 do afterwards pay the other his debt, he 
 must satisfy the first out of his own estate. 
 If one that hath a debt due to him from the 
 deceased upon a simple contract, or the like, 
 sue the executor or administrator for it, and 
 there be debts due to others upon bonds and 
 bills satisfied; in this case, the executor or 
 administrator may not pay this debt, nor 
 may he suffer the plaintiff to recover in his 
 action; for if he do and he have not assets 
 besides to satisfy the debts due upon bills 
 and bonds, he must satisfy so much out of 
 his own estate, as he hath so paid, or suffered 
 to be recovered from him; for in the case 
 of an action brought, he is to plead and to 
 set forth these debts upon especialties, and 
 to say that he hath no more but what is 
 sufficient to satisfy them, &c. and thereby he 
 shall bar the plaintiff in his action. In like 
 manner it is, if one that hath a debt due to. 
 him from the deceased' upon an obligation, 
 sue the executor or administrator thereupon, 
 and there be debts due to others upon judg- 
 ments, statutes, or recognisances, and the 
 executor or administrator suffer the plain- 
 tiff to recover the debt due upon the obliga- 
 tion for want of pleading the judgments, &c. 
 or doth voluntarily pay that debt, and he 
 hath not assets besides to pay the debts due 
 upon judgments, &c. in this case he must 
 pay so much out of his own estate towards- 
 the satisfaction of the said debts due upon 
 judgments, &c. as he hath paid of the debt 
 due upon the obligation. But here it must be- 
 noted that no judgment or statute that is. 
 discharged, or is left and suffered to lie by 
 agreement to bar others of their debts, shall 
 be any bar to others that sue for their due 
 debts upon obligations, &c. and therefore if 
 any executor or administrator shall plead 
 any such judgment, &c. in bar of any other 
 debt sued for by any other creditor, the 
 creditor may by special pleading set forth 
 this matter of covin, and avoid the plea and 
 bar of the executor or administrator. If one 
 creditor, whose debt is in equal degree and 
 presently due and to be paid, begin a suit 
 against the executor or administrator for his 
 debt, and he hath notice that the suit is 
 begun against him, or the action is laid in 
 the county where the executor or adminis- 
 
 9a 
 
§§ 158-159 AGEXCIES EPrECTlNG THE DEVOLUTION OP PROPERTY. (Cli. 9 
 
 trator dotli dwell, or (us some have said) In 
 Loudon, (in both which cases, it seems he is 
 iDound to tal^e notice thereof at his peril) and 
 xif ter this suit begun, he doth make voluntary 
 payment of another debt in equal degree in 
 all respects, for which no suit is begun; this 
 is a devastavit in the executor or adminis- 
 trator, and if he have not assets to satisfy 
 him who began his suit first, he shall be com- 
 pelled to satisfy so much thereof as he doth 
 voluntarily pay to the other, and that out 
 of his own estate: and yet an executor or ad- 
 ministrator may make voluntary payment 
 of any debt due by record, as by judgment, 
 statute, &c. after such a suit begun, and jus- 
 tify it. If two creditors in equal degree to 
 all purposes begin to sue for their debts at 
 one time; in this case, the executor or admin- 
 istrator cannot safely make voluntary pay- 
 ment to either of them, unless he have 
 enough to pay them both; but his safest way 
 is to pay him first, that In a due and legal 
 proceeding (for he may not covinously help 
 one of them to a judgment sooner) can first 
 recover it by judgment and execution; and 
 jet if in this case no suit be begun, the exec- 
 utor or administrator may make voluntary 
 payment to either of them in equal degree 
 ■of his whole debt, albeit he have no assets 
 left to pay unto the other any part of his 
 ■debt. If A. and B. be two creditors in equal 
 degree, and A. begin his suit first, and alter 
 B. doth begin his suit, and it happeneth that 
 B. bona fide without any covin or agreement 
 Ijetween him and the executor or administra- 
 tor, doth get judgment and execution first; 
 in this case the executor or administrator 
 may make payment to B. first of all. But 
 if the executor or administrator doth by 
 any covin and agreement help B. to his judg- 
 ment and execution first, and by this means 
 Tie is first satisfied, if there be not enough 
 left to satisfy A. he must satisfy him out of 
 Ills own estate. If two suits begin at or 
 about one time, upon two several obligations, 
 -and the executor is forced to plead to them 
 both before either of them hath a judgment, 
 rso that he cannot plead the judgment that 
 the other hath against him, and he hath not 
 assets to satisfy both the debts sued for, and 
 after the plaintiffs in both the suits gel 
 judgment and execution; Quaere, what the 
 •executor or administrator may do in this 
 case: and here note by the way, that it is 
 policy for a creditor that hath cause to sue 
 an executor or administrator, to be doing be- 
 times, and to get judgment and execution as 
 soon as he may; for it falleth out in this 
 case, that he that doth first come shall be 
 first served. 
 
 2 Kent, Oomm. 419.— In a few of the states, 
 the English order of preference is preserved. 
 In most of them, that order is entirely dis- 
 turbed, and a more just and equitable rule 
 of distribution adopted. Expenses of the 
 last sickness including the physician's bill, 
 and funeral and probate charges, have every 
 M 
 
 where the preference; and generally debts 
 due to the United States and the state are 
 next preferred, and then all other debts are 
 placed on an equality, and paid rateably in 
 the case of a deficiency of assets; but with 
 the exception, no doubt, of legal liens. It 
 there be any such recognized by law. In 
 Louisiana, there Is a particular detail of the 
 order of priority, which is special and pe- 
 culiar, and minute even beyond the rule of 
 the common law. In Maryland, judgments 
 and decrees have preference, and all other 
 debts are equal; and in Missouri, expenses of 
 the last sickness, debts due to the state, and 
 judgments, have preference, and all other 
 debts are placed on an equality. In Penn- 
 sylvania, the order of administration Is, to 
 pay, 1. Physicians, funeral' expenses, and 
 servants' wages; 2. Rents not exceeding one 
 year; 3. Judgments; 4. Recognizances; 5. 
 Bonds and specialties; 6. All other debts 
 equally, excepts debts due to the state, which 
 are to be last paid. 
 
 LITTLETON v. HIBBINS, Case No. 223, 
 post. 
 
 MANNING V. SPOONER, Case No. 224, 
 post. 
 
 TURNER V. COX, Case No. 225, post. 
 
 § 159. Payment of Legacies. 
 
 Shep. Touch. 455.— When a devise of goods 
 or chattels Is well made, the assent of 
 the executor is necessary to the perfection 
 thereof, for until then, the legatee may not 
 have or meddle with the thing devised. 
 And this assent is defined to be the agree- 
 ment of an executor or administrator, that 
 a legatee shall have the thing bequeathed 
 unto him. And it is either express, i. e. when 
 the executor or administrator doth by ex-' 
 press words agree to the devise, or implied, 
 i. e. when the executor doth not by words, 
 but by some overt act, declare his assent 
 that the legatee shall have the thing de- 
 vised unto him. 
 
 This agreement of the executor or adminis- 
 trator is not needful in the case of devise of 
 land; for if a man be seised of land in fee- 
 simple, and deviseth to another in fee-sim- 
 ple, fee tail, for term of life, or years; in 
 these cases the devisee may enter into the 
 land devised without any leave of the ex- 
 ecutor or administrator; and in truth in 
 these cases the freehold or estate is said to 
 be in the devisee before his entry: and 
 therefore, if the heir enter first, the devisee 
 may enter upon him, and put him out. And 
 in case where land is devised by the cus- 
 tom of a place, if the heir enter first and 
 keep the devisee out, the devisee may have 
 a writ of ex gravi querela against him for 
 his relief; and this writ is incident to that 
 custom. But if a devisee enter first into the 
 land devised unto him, and then the heir of 
 the devisor enter upon him, then the devisee 
 
€h. 9) AGENCIES EFFECTING THE DEVOLUTION OF PKOPERTT. § 159 
 
 may take his remedy at the comman law 
 as in other cases. And with these things the 
 ordinary, executor, or administrator, is not 
 to intermeddle. But regularly a devisee can- 
 not, nor may not, have or take any chattel 
 real or personal devised to him, without the 
 agi'eement or delivery of the executor or ad- 
 ministrator. And by this assent, if the de- 
 vise be good, (for otherwise an assent will 
 not make it good) the devise is perfected, 
 and the legacy executed. And yet if the leg- 
 atee have the thing devised in his own hands; 
 or if there be a special clause in the will 
 giving him authority to take it himself; or 
 it be a legacy to good and godly uses; or the 
 thing given be like to perish on the ground, 
 being corn or the like, and there be assets 
 besides to pay all the debts; in these cases 
 perhaps the assent of the executor or ad- 
 ministrator may not be necessary, but the 
 legatee may take the thing devised without 
 his agreement. And if a legacy be given to 
 one of the executors themselves, he may 
 take it without any assent of his co-execu- 
 tors, and that before administration also if 
 he wiU. 
 
 If there be many executors, the assent of 
 any one of them is sufficient; and if there 
 be but one, and he be dead, the assent of 
 his executor is sufficient: or if he die intes- 
 tate, the assent of the administrator de bonis 
 non administratis of the first testator is suf- 
 ficient; or the legatee himself in this case, 
 where the executor dieth intestate, or where 
 he doth refuse to take upon him the ad- 
 ministration, may take administration him- 
 self, and by public declaration assent to his 
 own legacy. And if a man be executor and 
 legatee both, he may* assent to and take the 
 legacy, and yet waive the executorship, and 
 this assent is good. And therefore if the 
 legatee of a term of years be made executor, 
 and he enter and claim, and occupy the land 
 by force of the devise, and die before probate 
 of the will: the executor of the legatee, and 
 not the ordinary, shall have this term; and 
 yet it seems the executor may not do this 
 in prejudice of a creditor to hinder him of 
 his debt. 
 
 Shep. Touch. 456.— Any agreement in word 
 or deed will suffice to make an assent and 
 execute a devise. Let executors take heed 
 therefore; for if an executor do but agree 
 that the legatee of a term of years of land 
 shall take the profits thereof, and that but 
 for a time only, or say to the legatee, God 
 send you joy of it: or I intend you shall 
 have it according to the devise, or the like; 
 this is a good asst;nt to execute the legacy. 
 And if the executor agree that the legatee 
 and a stranger together shall take the prof- 
 its of the land, or the thing devised; this is 
 a good assent. And it seems that whatso- 
 ever verbal agreement will amount to an at- 
 tornment, may make an assent to a legacy. 
 If therefore the executor agree to the legacy 
 upon certain terms and conditions; this is 
 
 agreed to be a good and absolute assent to 
 the legacy. 
 
 Shep. Touch. 458.— And in cases of devises 
 of goods and chattels, as leases for years, 
 rents out of such leases, and the like, the 
 legatee cannot take the thing devised before 
 he have the assent of the executor or ad- 
 ministrator thereunto: and therefore if in 
 these cases the executor or administrator re- 
 fuse to agree to, perform, and deliver the 
 legacy, the legatee may sue him in the 
 spiritual court, or in some court of equity, to 
 compel him thereunto: but a legatee may 
 not sue for a legacy in any of the courts of 
 common law, neither may he sue the ex- 
 ecutor or administrator in the spiritual court 
 for the legacy, until the will be proved; but 
 he may by suit there compel him to prove 
 the will, or to refuse the administration: 
 and in these courts, and by these means, the 
 devisee may recover his legacy against an 
 executor or administrator, if he have assets 
 to pay the debts of the testator; for other- 
 wise a legacy is net recoverable at all; but 
 in case where the executor or administrator 
 hath once agreed to the legacy, so as it is 
 executed, it is then so vested in the legatee, 
 and he hath such a property therein, that he 
 may enter into, or seize and take the thing 
 devised as his own, and if any man keep or 
 take it from him, he may have relief as in 
 other cases. 
 
 Shep. Touch. 459.— If another doth claim 
 by deed of gift, the goods a legatee doth sue 
 for; this may be tried in the ecclesiastical 
 court. 
 
 If a debt, obligation, or any such like thing 
 in action be devised to another, the devisee 
 hath no means to recover it, but by a suit in 
 the spiritual comt, or in some court of 
 equity, to compel the executor to sue for it 
 himself, or to make the legatee a letter of 
 attorney, to sue for it in the executor's name, 
 for the legatee cannot sue for it in his own 
 name, unless he be made executor as to that 
 debt, &c. (which is the best coiu-se in these 
 cases:) and yet if the legatee have the bond 
 of especialty in his hands, he may deliver it 
 up or cancel it. 
 
 If a man devise a term of years of land to 
 I. S. and make another his executor, and the 
 executor, having enough besides to pay the 
 debts, doth sell this term; in this case, albeit 
 the sale be good, and I. S. have no remedy 
 nor means to recover the term, yet he may 
 sue the executor for it, and recover the 
 worth of it in damages in a court of equity. 
 
 Shep. Touch. 480.— After all the debts are 
 paid in such order and manner as before, 
 then is the executor or administrator to pay 
 and to deliver the legacies: and herein the 
 executor may prefer himself, so that if any 
 legacy be given to him, he may detain and 
 deduct it, albeit there be nothing left to dis- 
 charge the legacies given to others: and after 
 he hath satisfied himself, he may satisfy and 
 deliver what legacies he will, albeit there be 
 
 95 
 
§§ 159-162 AGENCIE5 EFFECTING THE DEVOLUTIOJiT OF PROPERTY. (Ch. 9 
 
 not enougli to satisfy all the legatees: or he 
 may pay to each of the legatees a part of 
 their legacy, and deduct a part out of every 
 legacy, where there is not enough to satisfy 
 all the legacies; but if any particular thing, 
 as a lease or a horse, or the like, be given; 
 this must be delivered accordingly, and may 
 not be sold by the executor or administrator 
 to pay others all, or any part of their leg- 
 acies; and if there be enough to pay all the 
 legacies they must be paid all according to 
 the will; and it is said by some, that if an 
 executor or administrator make no inventory 
 of the goods, that he must pay all the leg- 
 acies whether he have assets or not. 
 
 2 Bl. Comm. 512.— When the debts are all 
 discharged, the legacies claim the next re- 
 gard; which are to be paid by the executor 
 so far as his assets wiU extend; but he may 
 not give himself the preference herein, as in 
 the case of debts. 
 
 A legacy is a bequest, or gift, of goods and 
 chattels by testament; and the person to 
 whom it was given is styled the legatee: 
 which every person is capable of being, un- 
 less particularly disabled by the common 
 law or statutes, as traitors, papists and some 
 others. This bequest ti-ansfers an inchoate 
 property to the legatee; but the legacy is not 
 perfect without the assent of the executor: 
 for if I have a general or pecuniary legacy 
 of £100., or a specific one of a piece of plate, 
 I cannot in either case take it without the 
 consent of the executor. For in him all the 
 chattels are vested; and it is his business 
 first of all to see whether there is a sufficient 
 fund left to pay the debts of the testator r the 
 rule of equity being, that a man must be 
 just, before he is permitted to be generous; 
 or, as Bracton expresses the sense of ovr 
 ancient law, "de bonis defuncti primo de- 
 ducenda sunt ea quae sunt necessitatis, et 
 postea quae sunt utilitatis, et ultimo quae 
 sunt voluntatis." And in case of a defi- 
 ciency of assets, all the general legacies must 
 abate proportionably, in order to pay the 
 debts; but a specific legacy (of a piece of 
 plate, a horse, or the like) is not to abate at 
 all, or allow any thing by way of abatement, 
 unless there be not sufficient without it. Up- 
 on the same principle, if the legatees had 
 been paid their legacies, they are after- 
 wards bound to refund a rateable part, in 
 case debts come in, more than sufficient to 
 exhaust the residuum after the legacies paid. 
 And this law is as old as Bracton and Fleta, 
 who tells us, "si plura sint debita, vel plus 
 logatum fuerit, ad quae catalla defuncti non 
 sufHciant, fiat ubique defalcatio, excepto regis 
 privilegio." 
 
 2 Bl. Comm. 513.— If a legatee dies before 
 the testator, the legacy is a lost or lapsed 
 legacy, and shall sink into the residuum. 
 And if a contingent legacy be left to any one, 
 as when he attains, or if he attains, the age 
 of twenty-one, and he dies before that time, it 
 is a lapsed legacy. But a legacy to one, to 
 96 
 
 be paid when he attains the age of twenty- 
 one years, is a vested legacy; an interest 
 which commences in praesenti, although it 
 be solvendum in futuro: and if the legatee 
 dies before that age, his representative shaU 
 receive it out of the testator's personal estate 
 at the same time that it would have become 
 payable, in case the legatee had lived. 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 con- 
 current iiu"isdiction with them, in regard to 
 the recovery of legacies, it was reasonable 
 that there should be a conformity in their 
 determinations; and that the subject should 
 have the same measure of justice in what- 
 ever court he sued. But, if such legacies be 
 charged upon a real estate, in both cases they 
 shall lapse for the benefit of the heir; for, 
 with regard to devises affecting lands, the 
 ecclesiastical court hath no concurrent juris- 
 diction. And in case of a vested legacy, due 
 immediately, and charged on land or money 
 in the funds, which yield an immediate 
 profit, interest shall be payable thereon from 
 the testator's death; but if charged only on 
 the personal estate, which cannot be im- 
 mediately got in, it shajl carry interest only 
 from the end of the year after the death of 
 the testator. 
 
 § 160. Same — General and Specific 
 Liegacies, and Ademption. 
 
 HINTON V. PINKE, Case No. 226, post. 
 ASHBUKNER v. MACGUIKB, Case . ISfo. 
 227, post. 
 
 PATTISON V. PATTISON, Case No. 228, 
 post. 
 
 BUKNHAM V. COMFORT, Case No. 229, 
 post. 
 
 TOMLINSON V. BURY, Case No. 230, post. 
 
 § 161. Same — Abatement of Lega- 
 cies. 
 
 DUNCAN V. TOWNSHIP OF FRANKLIN, 
 Case No. 231, post. 
 
 POLLARD V. POLLARD, Case No. 232, 
 post. 
 
 § 162. Same — Lapsed Legacies and 
 Devises. 
 
 Shep. Touch. 453. — In all these cases when 
 the disposition of the legacy is pure, and no 
 time is set for the performing of it; or there 
 is a set time for the doing of it, and the leg- 
 atee die before the time; and where the dis- 
 position of the legacy is conditional, and a 
 time set for the doing of it, if the legatee 
 live till that time, or the condition be per- 
 formed; in all these cases, the executor or 
 administrator of the legatee shall have the 
 legacy, and the same remedy to recover it 
 
Ch. 9) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. §§ 162-164 
 
 that the legatee himself had. But if . the 
 legatee die before the condition be per- 
 formed, contra: and yet if in that case the 
 testator's mind shall appear to be that tlie 
 executor or administrator of the legatee shall 
 have it: or the condition be to be performed 
 by another, and there be no default in the 
 legatee: or if the disposition be modal: or 
 the legacy, that was at first upon condition, 
 be afterwards repeated without condition: or 
 it be referred to a condition to be afterwards 
 set down, and none is set down; in these 
 cases the legacy is not lost by the death of 
 the legatee, but shall go to his executor or 
 administrator: as for example: if one devise 
 twenty pounds to W. S. to be paid within 
 four years after the death of the testator, 
 and the legatee died before the four years 
 expired; in this case the executor or ad- 
 ministrator after the four years shall recover 
 the legacy. If one give to W. S. twenty 
 pounds when he cometh to twenty-one years 
 of age, and he die before he come to the 
 age of twenty-one years; in this case his 
 executor shall not have the legacy. But if 
 the devise be thus, I give to W. S. twenty 
 pounds, and I will that it shall be paid him 
 at his age of twenty-one years, and he die 
 before he come to the age of twenty-one 
 years; in this case his executor shall recover 
 the legacy. So if one give to I. S. twenty 
 pounds when he shall be married, and he 
 die before marriage; in this case his exec- 
 utor shall not have it. But if one devise 
 thus, I give to W. S. twenty pounds towards 
 his marriage, and he die immarried; in this 
 case the executor shall have and recover the 
 legacy. So if one do give to W. S. twenty 
 pounds when the executor of the testator 
 shall die; in this case, if W. S. die before 
 the executor, the executor or administrator 
 of W. S. shall not have the legacy. If one 
 devise goods or chattels to I. S. and I. S. 
 die before the testator, the executor or ad- 
 ministrator of I. S. shall not have this leg- 
 acy. 
 
 4 Kent, Comm. 541.— The general rule is 
 that aU devises shall be deemed lapsed, if 
 the devisee dies in the lifetime of the testa- 
 tor. But there is a distinction taken in the 
 English books between a lapsed legacy of 
 personal estate, and a lapsed devise of real 
 estate; and, while the former falls into the 
 residuary estate, and passes by the residuary 
 clause, if any there be, and, if not, passes to 
 the next of kin, the latter does not pass to 
 the residuary devisee, but the devise becom- 
 ing void, the estate descends to the heir at 
 law. The reason given is, that a bequest of 
 personal property refers to the state of the 
 property at the testator's death, whereas a 
 devise operates only upon land whereof the 
 testator was seised when he made his will; 
 and It is not presumed that he intended to 
 devise, by the residuary clause, a contin- 
 gency which he could not have foreseen, or 
 to embrace in it lands contained in the 
 ABB.WILLS — 7 
 
 lapsed devise. There is a further distinc- 
 tion between a lapsed and a void devise. 
 In the former case, the devisee dies In the 
 intermediate time between the making of the 
 will and the death of the testator; but, in 
 the latter case, the devise is void from the 
 beginning, as if the devisee be dead ' when 
 the will was made. The heir takes in th& 
 case of the lapsed devise, but the residuary 
 devisee may take in the latter case, if th& 
 terms of the residuary clause be sufficiently 
 clear and comprehensive. This distinction, 
 appears to be founded on a presumption 
 (though it would seem to be rather over- 
 strained) of a difference in the views and 
 intention of the testator between the two 
 cases. The subject has been recently dis- 
 cussed in the .courts in this country. In 
 Greene v. Dennis,' the devise was held void, 
 because the devisee was incompetent to take; 
 and yet, though the devise was void from 
 the beginning, the heir was preferred to the 
 residuary devisee, on the ground that the 
 testator never intended that the specific de- 
 vise, which was void, should fall into the re- 
 siduum. The residuary devise was of "the 
 rest and residue of the estate not therein dis- 
 posed of." But where the devise was upon 
 a condition subsequent, and a contingent in- 
 terest depending upon the failure of that 
 condition, the residuary devisee was held. 
 In Hayden v. Stoughton,^ to be entitled to the 
 estate in preference to the heir; because 
 the contingent Interest had not been spe- 
 cifically devised, and it was carried along 
 by the residuary devise. The alteration of 
 the law, in New York, Virginia, and those 
 other states, making the devise operate upon 
 all the real estate owned by the testator at 
 his death, may produce the effect of destroy- 
 ing the application of some of these distinc- 
 tions, and give greater consistency and har- 
 mony to the testamentary disposition of real 
 and personal estates. 
 
 WKIGHT V. HORNE, Case No. 233, post. 
 BAGWELL V. DRY, Case No. 234, post. 
 MASSAY'S APPEAL, Case No. 235, post. 
 
 § 163. Same — Compromising Leg- 
 acies. 
 
 ROGERS V. HAND, Case No. 236, post. 
 
 § 164. Equitable Assets and Mar- 
 shaling. 
 
 4 Kent, Comm. 419.— An estate by descent 
 renders the heir liable for the debts of his 
 ancestor, to the value of the property de- 
 scended, and he holds the lands subject to 
 the payment of the ancestor's debts. By 
 the hard and unjust rule of the common law, 
 land descended, or devised, was not liable 
 to simple contract debts of the ancestor or 
 
 ' 6 Conn. 203. 
 
 ' 5 Pick. 528. 
 
 OT 
 
§§ 164-165 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 9 
 
 testator; nor was the heir bound even by a 
 specialty, unless he was expressly named. 
 
 4 Kent, Oomm. 420.— The general rule of 
 the English and American law is, that the 
 personal estate is the primary fund for the 
 discharge of the debts, and is to be first ap- 
 plied and exhausted, even to the payment 
 of debts with which the real estate is 
 charged by mortgage; for the mortgage Is 
 understood to be merely a collateral security 
 for the personal obligation. The order of 
 marshalling assets in equity towards the 
 payment of debts, is to apply, 1. The general 
 personal estate: 2. Estates specifically de- 
 vised for the payment of debts: 3. Estates 
 descended: 4. Estates devised, though gen- 
 erally charged with the payment of debts. 
 It requires express words, or the manifest 
 intent of a testator, to disturb this order. 
 On the other hand, there is a material dis- 
 tinction between debts originally contracted 
 by the testator, or intestate, and those con- 
 tracted by another; and, therefore, if a per- 
 son purchases an estate subject to a mort- 
 gage, and dies, his personal estate, as be- 
 tween him and his personal representatives, 
 shall not be applied to the exoneration of the 
 land, unless there be strong and decided 
 proof, that in taking the incumbered estate, 
 he meant to talie upon himself the mortgage 
 debt as a personal debt of his own." 
 
 SILK v. PRIME, Case No. 237, post. 
 CLIFTON V. BURT, Case No. 238, post. 
 HAYS v. JACKSON, Case No. 239, post. 
 LIVINCSTON V. LIVINGSTON, Case No. 
 240, post. 
 
 LIVINGSTON V. NEWKIRK, Case No. 241, 
 post. 
 
 • § 165. Distribution. 
 
 2 Kent, Comm. 420.— Of the Dlsti-ibution 
 of the Personal Estate. 1. When the debts 
 are paid, the administrator (the husband as 
 admiuisti-ator, excepted,) is bound, under the 
 English statute of distributions, of 22 & 23 
 Car. II. c. 10, after the expiration of a year 
 from the granting of administration, to dis- 
 tribute the surplus property among the next 
 of kin. He is first to account to the ordi- 
 nary com-t of probates, surrogate, or other 
 proper jurisdiction, and which, in several of 
 the United States, is appropriately termed 
 the orphans' court. It is held, that he is 
 not bound to distribute without a previous 
 ■order for that purpose; * and the statute of 
 distributions makes it the duty of the court 
 of probates to decree distribution. The stat- 
 ute declares, that after the debts, funeral 
 charges, and just expenses, are deducted, a 
 just and equal distribution of what remain- 
 eth clear of the goods and personal estate of 
 the intestate, shall be made amongst the 
 
 ' Duke of Cumberland v. Codrington, 3 Johns 
 ■Ch. 229. 
 
 'Archbishop of Canterbury v. Tappen. 8 
 Barn. & C. 151. 
 
 .98 
 
 wife and children, or children's children, if 
 any such there be; or otherwise to the next 
 of kin to the intestate, in equal degree, or 
 legally representing their stocks; that is to 
 say, one third part of the surplusage to the 
 wife of the intestate, and all the residue by 
 equal portions, to and amongst the children 
 of the Intestate and their representatives, 
 if any of the children be dead, other than 
 such child or children who shall have any 
 estate by settlement, or shall be advanced 
 by the intestate In his lifetime, by portion 
 equal to the share which shall by such dis- 
 tribution be allotted to the other children to 
 whom such distribution is to be made. And 
 if the portion of any child who hath had 
 such settlement or portion, be not equal to 
 the share due to the other children by the 
 distribution, the child so advanced is to be 
 made equal with the rest. If there be no chil- 
 dren, or their representatives, one moiety of 
 the personal estate of the intestate goes to the 
 widow, and the residue is to be distributed 
 equally among the next of kin, who are in 
 equal degree, and those who represent them; 
 but no representation Is admitted among 
 collaterals, after brothers' and sisters' chil- 
 dren; and in case there be no wife, then the 
 estate is to be distributed equally amongst 
 the children; and if no child, then to the 
 next of kin in equal degree, and their law- 
 ful representatives, In the manner already 
 mentioned. It is further provided, that if 
 any child shall die Intestate after the death 
 of the father, and without wife or children, 
 and in the lifetime of the mother, every 
 brother and sister, and their representatives, 
 shall have an equal share with her. * 
 
 2 Kent, Comm. 422.— This Is the substance 
 of the English statute of 22 & 23 Car. 11., 
 which was borrowed from the llSth novel 
 of Justinian; and, except in some few in- 
 stances mentioned in the statute. It is gov- 
 erned and construed by the rules of the civil 
 law. 
 
 (2.) The next of kin Is determined by the 
 rule of the civil law; and under that rule 
 the father stands in the first degree, the 
 grandfather and the grandson In the second; 
 ^nd in the collateral line, the computation is 
 from the intestate up to the common an- 
 cestor of the intestate, and the person whose 
 relationship is sought after, and then down 
 to that person. According to that rule, the 
 intestate and his brother are related in the 
 second degree, the intestate and his uncle 
 in the third degree. The half blood are ad- 
 mitted equally with the whole blood, for 
 they are equally as near of km; and the fa- 
 ther succeeds to the whole personal estate 
 of a child, who dies intestate, and without 
 wife or issue, in exclusion of the brothers 
 and sisters; and the mother would have 
 equally so succeeded as against the collater- 
 als, had it not been for a saving clause in 
 the act, which excludes her from all but a 
 rateable share. She Is excluded, lest, by re- 
 
Ch. 9) AGEKCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 165 
 
 marrying, she would carry all the personal 
 estate to another husband, in entire exclu- 
 sion, for ever, of the brothers and sisters; 
 but she still takes the whole personal estate 
 as against more remote relations of the in- 
 testate. The K. B. declared in Blackborough 
 V. Davis," that the father and mother had 
 always the preference before the brothers 
 and sisters, in the inheritance of the personal 
 estate, as being esteemed nearer of Mn; and 
 for the same reason, the grandmother is pre- 
 feiTed to the' aunt. The grandmother is 
 preferred, not because she is simply in the 
 ascending line, for, imder the statute of 
 distributions, a nearer collateral will be pre- 
 ferred to a more remote lineal, but because 
 she is nearer of kin, according to the com- 
 putation of the civilians, by one degree. And 
 in Moor v. Barham, decided by Sir Joseph 
 Jekyll," the grandfather on the father's side, 
 and the grandmother on the mother's side, 
 take in equal moieties by the statute of dis- 
 tribution, as being the next of kin in equal 
 degree; and the half blood take equally with 
 the whole blood. A brother and a grand- 
 father of the intestate are equally near of 
 kin, and each related in the second degree, 
 and therefore it would seem from the direc- 
 tions in the statute, that they would take 
 equally; but it has been decided in England, 
 and it is also said to be the better construc- 
 tion of the novel of Justinian, that the broth- 
 er of the intestate will exclude the grand- 
 father of the intestate. This was so decid- 
 ed in Pool V. Whishaw, in 1708; and Lord 
 Hardwicke, in Evelyn v. Evelyn,' followed 
 that determination, as being correct, though 
 it may .be considered an exception to the 
 general rule. He said it would be a very 
 great public inconvenience, to carry the por- 
 tions of children to a grandfather, and con- 
 trary to the very nature of provisions among 
 children, as every child may properly be said 
 to have spes accrescendi. This question was 
 very much debated among the civilians in 
 their construction of the 118th novel of Jus- 
 tinian: and the generality of them of whom 
 Ferriere and Domat are of the number, were 
 of opinion, that the grandfather and the 
 brother took equally; but Voet was of a 
 different opinion, and his opinion though 
 without any strong foundation in reason, is 
 the one prevailing in the English courts. 
 
 2 Kent, Comm. 424.— The question, whether 
 the half blood took equally with the whole 
 blood, under the statute of distributions, was 
 debated in the case of Watts v. Orooke;= 
 and it was determined in chancery, that they 
 were of equal kin, and took equally with the 
 whole blood; and the decree was affirmed 
 upon appeal to the house of lords. So post- 
 humous children, whether of the whole or 
 
 "1 P. Wms. 41; 2 Ves. Sr. 215. 
 
 " Cited in 1 P. Wms. 53. 
 
 ' 3 Atk. 762; 1 Amb. 191. 
 
 ' Show. Par]*Cas. 108; 2 Vern. 124. 
 
 half blood, take equally as other children, 
 under the statute." 
 
 As the statute of distribution says, that no 
 representation shall be admitted among col- 
 laterals after brothers' and sisters' children, 
 it was held, in Pett v. Pett," that a brother's 
 grandchildren could not share with another 
 brother's children. And, therefore, if the 
 intestate's brother A. be dead, leaving only 
 grandchildren; and his brother B. be dead, 
 leaving children, and his brother C. be liv- 
 ing, the grandchildren of A. will have no 
 share, and cannot take. One half of the 
 personal estate will go to the children of B., 
 and the other half to O. But if all the 
 brothers and sisters and their children be 
 dead, leaving children, those children can- 
 not take by representation, for it does not 
 extend so far; but they are all next of kin, 
 and in that character they would take per 
 capita. Representation in the descending 
 Uneal line proceeds on ad infinitum, restrain- 
 ed by no limits. It has also been decided, 
 that if the intestate leaves no wife or child, 
 brother or sister, but his next of kin are an 
 uncle by his mother's side, and son of a de- 
 ceased aunt, the uncle takes the whole, and 
 the representation is not carried down to 
 the representatives of the aunt." 
 
 2 Kent, Comm. 425.— It is the doctrine un- 
 der the statute of distributions, that the 
 claimants take per stirpes only when they 
 stand in unequal degrees, or claim by rep- 
 resentation, and then the doctrine of repre- 
 sentation is necessary. But when they all 
 stand in equal degree, as three brothers, 
 three grandchildren, three nephews, &c., 
 they take per capita, or each an equal share; 
 because, in this case, representation or tak- 
 ing per stirpes, is not necessary to prevent 
 the exclusion of those in a remoter degree; 
 and it would be contrary to the spirit and 
 policy of the statute, which aimed at a just 
 and equal distribution. Uncles and aunts 
 and nephews and nieces, stand in the same 
 third degree, and take equally per capita. 
 If a person dies without children, leaving a 
 widow, and mother, brother and sister, and 
 two nieces by a deceased brother, then, ac- 
 cording to the established doctrine, the wid- 
 ow would take a moiety, and the mother, 
 brother and sister would each take one 
 fourth, and the two nieces the other one 
 fourth of the remaining moiety. Tliis point 
 was ruled in Key 1 way v. Keylway; " and the 
 doctrine was declared to be correct by Lord 
 Hardwicke, in Stanley v. Stanley." 
 
 (3.) The distribution of personal property 
 of intestates, in these United States, has 
 undergone considerable modification. In 
 many of them, the English statute of dis- 
 
 " Burnet v. Mann, 1 Ves. Sr. 156. 
 
 ^'' 1 Salk. 250; 1 P. Wms. 25. 
 
 " Bowers v. Littlewood, 1 P. Wms. 593. 
 
 " 2 P. Wms. 344. 
 
 " 1 Atk. 457. 
 
 09 
 
§§ 165-166 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. 9 
 
 tribution, as to personal property, is pretty 
 closely followed. In a majority of the states, 
 the descent of real and personal property 
 is to the same persons, and in the same pro- 
 portions, and the regulation is the same in 
 substance, as the English statute of distri- 
 butions, with the exception of the widow, 
 as to the real estate, who takes one third for 
 life only, as dower. In Georgia the real 
 and personal estate of the intestate is con- 
 sidered as altogether of the same natm-e and 
 upon the same footing, both in respect to 
 their statute of distributions and the descent 
 of property. Prince, Dig. 229; Doe v. Flan- 
 agan, 1 Kelly, 540. The half blood take 
 equally with the whole blood, as they do 
 under the English statute of distributions. 
 Such a uniform rule in the descent of 
 real and personal property, gives simplicity 
 and symmetry to the whole doctrine of de- 
 scent. The ^Snglish statute of disti-ibutions, 
 being founded in justice, and on the wisdom 
 of ages, and fully and profoundly illustrated 
 by a series of judicial decisions, was weU 
 selected, as the most suitable and judicious 
 basis on which to establish our American 
 law of descent and distribution. 
 
 22 & 23 Car. II. c. 10. (Statute No. 14, post.) 
 
 PETIT V. SMITH, Case No. 242, post. 
 IN RE NATT, Case No. 243, post. 
 WETTER V. WALKER, Case No. 244, post. 
 FARGTO v. MILLER, Case No. 245, post. 
 
 See, also, cases under "Who may be an Ad- 
 ministiator — In General," ante, § 108. 
 
 § 166. The Residue. 
 
 2 Bl. Comm. 514.— When all the debts and 
 particular legacies are discharged, the sur- 
 plus or residuum must be paid to the residu- 
 ary legatee, if any be appointed by the will; 
 and if there be none, it was long a settled 
 notion that it devolved to the executor's own 
 use, by virtue of his executorship. But 
 whatever ground there might have been 
 formerly for this opinion, it seems now to be 
 understood with this restriction; that al- 
 though where the executor hiis no legacy at 
 all, the residuum shall in general be his own, 
 yet wherever there is sufficient on the face 
 of a will (by means of a competent legacy 
 or otherwise,) to imply that the testator in- 
 tehded his executor should not have the 
 residue, the undevised surplus of the estate 
 shall go to the next of kin, the executor then 
 standing upon exactly the same footing as 
 an administrator, concerning whom, indeed, 
 there formerly was much debate, whether or 
 no he could be compelled to make any distri- 
 bution of the intestate's estate. For, though 
 (after the administration was taken in effect 
 from the ordinary, and transferred to the re- 
 lations of the deceased) the spiritual court 
 endeavoured to compel a distribution, and 
 took bonds of the administrator for that pur- 
 pose, they wore prohibited by the temporal 
 100 
 
 com-ts, and the bonds declared void at law. 
 And the right of the husband not only to ad- 
 minister, but also to enjoy exclusively, the 
 effects of his deceased wife, depends still on 
 this doctrine of the common law: the statute 
 of frauds declaring only, that the statute of 
 distributions does not extend to this case. 
 But now these controversies are quite at an 
 end; for, by the statute 22 & 23 Car. II. c. 10, 
 explained by 29 Car. II. c. 3, it is enacted, 
 that the surplusage of intestates' estates 
 (except of femes-covert, which are left as at 
 common law), shall, after the expiration of 
 one full year from the death of the intestate, 
 be distributed in the following manner: 
 One third shall go to the widow of the intes- 
 tate, and the residue in equal proportions to 
 his children, or, if dead, to their representa- 
 tives; that is, their lineal descendants: if 
 there are no children or legal representatives 
 subsisting, then a moiety shall go to the wid- 
 ow, and a moiety to the next of kindred in 
 an equal degree and their representatives: if 
 no widow, the whole shall go to the children: 
 if neither widow nor children, the whole 
 shall be distributed among the next of kin in 
 equal degree and their representatives: but 
 no representatives are admitted, among col- 
 laterals, farther than the children of the in- 
 testate's brothers and sisters. The next of 
 kindred, here referred to, are to be investi- 
 gated by the same rules of consanguinity, as 
 those who are entitled to letters of adminis- 
 tration; of whom we have sufficiently spo- 
 ken. And therefore by this statute the moth- 
 er as well as the father, succeeded to all the 
 personal effects of their children, who died 
 intestate and without wife or issue; in ex- 
 clusion of the other sons and daughters, the 
 brothers and sisters of the deceased. And 
 so the law still remains with respect to the 
 father; but by statute 1 Jac. II. c. 17, if the 
 father be dead, and any of the children die 
 intestate without wife or issue, in the life- 
 time of the mother, she and each of the re- 
 maining children, or their representatives^ 
 shall divide his effects in equal portions. 
 
 2 Bl. Comm. 516. — ^It is obvious to observe, 
 how near a resemblance this statute of distri- 
 butions bears to our ancient English law, de 
 rationabili parte bonorum; spoken of at the 
 beginning of this chapter; and which Su: 
 Edward Coke himself, though he doubted 
 the generality of its restraint on the power 
 of devising by will, held to be universally 
 binding (in point of conscience at least) upon 
 the administrator or executor, in the case of 
 either a total or partial intestacy. It also 
 bears some resemblance to the Roman law 
 of succession ab intestato which, and be- 
 cause the act was also penned by an emi- 
 nent civilian, has occasioned a notion that 
 the parliament of England copied it from 
 the Roman praetor: though, indeed, it is ht- 
 tle more than a restoration, with some refine- 
 ments and regulations, of our old constitution- 
 al law; which prevailed as an established! 
 
Ch. 9) AGENCIES ErrECTI>;G THE DEVOLUTION" OF Pi 
 
 right and custom from the time of King Ca- 
 nute downwards, and many centuries before 
 Justinian's laws were known or heard of in 
 the western parts of Bm-ope. So, liliewise, 
 there is another part of the statute of dis- 
 tributions, where directions are given that 
 no child of the intestate (except his heir-at- 
 law) on whom he settled in his lifetime any 
 estate in lands, or pecuniary portion, equal 
 to the' distributive shares of the other chil- 
 dren, shall have any part of the surplusage 
 with their brothers and sisters; but, if the 
 estates so given them, by way of advance- 
 ment, are not quite equivalent to the other 
 shares, the children so advanced shall now 
 have so much as will make them equal. 
 This just and equitable provision hath been 
 also said to be derived from the coUatio bo- 
 norum of the imperial law: which it certain- 
 ly resembles in some points, though it differs 
 widely in others. But it may not be amiss 
 to observe, that with regard to goods and 
 chattels, this is part ol the ancient custom 
 of London, of the province of York, and 
 of our sister kingdom of Scotland; and, with 
 regard to lands descending in coparcenary, 
 that it hath always been, and still is, the 
 common law of England, under the name of 
 hotchpot. 
 
 2 Bl. Comm. 517.— Before I quit the sub- 
 ject, I must, however, acknowledge that the 
 doctrine and limits of representation laid 
 down in the statute of distributions, seem to 
 have been principally borrowed from the 
 civil law: whereby it will sometimes happen, 
 that personal estates are divided per capita, 
 and sometimes per stirpes; whereas the com- 
 mon law knows no other rule of succession 
 but that of per stirpes only. They are divided 
 per capita, to every man an equal share, when 
 all the claimants claim in their own rights, 
 as in equal degree of kindred, and not jure 
 repraesentationls, in the right of another per- 
 son. As, if the next of kin be the intestate's 
 three brothers, A., B., and C; here his ef- 
 fects are divided Into three equal, portions, 
 and distributed per capita, one to each: but, 
 if one of these brothers. A., had been dead, 
 
 166-167 
 
 leaving three chlldrefl^^^I^lS*''^^^'^^'^ leav- 
 ing two; then the dis^sTOntldlfli^^HiK have 
 been per stirpes, viz. one tSll'd ' Co A.'s three 
 children, another third to B.'s two children, 
 and the remaining third to C. the surviving 
 brother; yet, if C. had also been dead, with* 
 out issue, then A.'s and B.'s five children, 
 being all in equal degree to the intestate, 
 would take in their own rights per capita, 
 viz. each of them one fifth part. 
 
 11 Geo. IV., and 1 Wm. IV. c. 40. (Statute 
 No. 23, post.) 
 
 ATTORNliY GENERAL v. HOOKER, 
 Case No. 246, post. 
 BAGWELL V. DRY, Case No. 234, post. 
 
 § 167. Accounting. 
 
 Shep. Touch. 480.— The last thing an ex- 
 ecutor or administrator is to take care of, 
 is, to make an account, (for it is held that an 
 executor or administrator is not bound in 
 law or conscience to malie restitution for 
 personal wrongs) wherein this Is to be 
 known, that the ordinary may, if he will, call 
 the executor or administrator to account con- 
 cerning the goods and chattels of the de- 
 ceased, either generally or particularly as 
 the case requlreth; and that with or with- 
 out the creditors' or legataries' instigation, 
 within a year or what time he will; unto 
 which account he may call all the creditors, 
 and legataries; and therein the executor or 
 administrator must show what he hath re- 
 ceived, and what he hath laid out, and prove 
 it in such sort as the ordinary shall like; 
 and then if it be found he hath faithfuUy and 
 fully administered, the ordinary may acquit 
 him of the burden and then he is discharged 
 of all suits in the spiritual court: but this 
 account and discharge will not help nor avail 
 him at all to discharge him of suits at the 
 common law. 
 
 1 Jac. 11. c. 17, §§ 5-7. (Statute No. 17, 
 post.) 
 
 HALL V. GROVIER, Case No. 247, post. 
 BROOKS V. JACKSON, Case No. 248, post. 
 
 101 
 
§ 168 AGENCIES EFFECTING THE DEVOLUTION OF PKOPERTY. (Ch. 10 
 
 CHAPTER X. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 § 168. Liiability of the Personal Representative 
 for His Own Acts and for the Acts 
 of His Co-Kepresentative. 
 
 § 168. Liability of the Personal 
 
 Representative for His O-wn 
 
 Acts and for the Acts of 
 
 His Co-Representative. 
 
 Shep. Touch. 484.— All the executors, where 
 there be more than one, be they never so 
 many, in the eye of the law are but as one 
 man; in which respect the law doth esteem 
 most acts done by or to any one of them, 
 as acts done by or to all of them. And 
 therefore the possession of one of them of 
 tlie goods and chattels of the deceased, is 
 esteemed the possession of them all; pay- 
 ment of debts by or to one of them is es- 
 teemed payment by or to them all; the sale 
 or gift of one of them of the goods and chat- 
 tels of the deceased, the sale and gift of 
 them all; a release made by one or to one 
 of them, is a release made by or to them aU; 
 and the assent of one of them to a legacy 
 the assent of them all. And therefore if 
 there be two executors, and one of them de- 
 liver up the obligation to the debtor where- 
 by he is bound, the other executor shall not 
 recover it in a detinue. So if two executors 
 have lands or goods in execution, and one 
 of them release all his interest; this is a 
 total discharge of the execution. And yet 
 if in this case there be any practice between 
 the executor and the creditor in this mat- 
 ter, and there be not assets besides to pay 
 all the debts and legacies, here perhaps the 
 other executor may have remedy in equity 
 against his co-executor and the creditor. 
 But how the law is of administrators, quaere; 
 for some think that one of them also may 
 sell goods, release debts, plead to actions, 
 or the like, without the other. 
 
 Shep. Touch. 485. — If one executor attorn 
 to the grant of a reversion, or a rent, this is 
 as good as if they did all attorn, and will 
 bind all the rest; as in case of an assent to 
 a legacy; for in this case, the assent of one 
 will bind all the rest, albeit there be not 
 enough to pay the debts besides the legacy 
 given away by assent; but his assent shall 
 not hurt his co-executors in a devastavit. 
 
 If one executor appear to an action sued 
 against them all, or plead a plea to it; this 
 for the most part shall be said to be the ap- 
 pearance and plea of them all, and shaU bind 
 the rest. 
 
 If two executors sue together, and one of 
 them is sujnmoned and severed; in this case, 
 102 
 
 he that is summoned may before judgment 
 release the duty; but if the other prosecute 
 to judgment first, and then he that is sev- 
 ered acknowledge satisfaction; this will not 
 benefit the defendant, nor bar the rest that 
 are plaintiffs in the judgment. And if three 
 executors sue, and two are summoned and 
 severed, and the third recover and die; in 
 this case, the other two shall have execu- 
 tion. 
 
 One executor or administrator cannot give 
 or sell any of the goods or chattels of the 
 deceased to another executor or administra- 
 tor: and therefore they may not make a di- 
 vision of the goods amongst themselves 
 and regularly one of them cannot sue an- 
 other of them. And therefore if one keep, 
 give, or sell, all the goods, release debts, or 
 the Uke, in the distm-bance of the execu- 
 tion of the wiU, or due administration of the 
 estate; it seems the other hath no remedy 
 against him, except it be in the case of covin 
 before: but if all the residue of the goods 
 and chattels after debts and legacies paid, 
 be given to one of the executors alone; and 
 after the debts and legacies paid, the rest 
 do detain it or any part of it from him; in 
 this case, perhaps, he may have some remedy 
 against them. 
 
 If the debtor make his creditor and an- 
 other his executors, and the creditor doth 
 refuse the executorship, and the other doth 
 accept it; in this case the creditor may sue 
 the executor for his debt: but if both prove 
 the wiU, and one of them die, the surviving 
 co-executor cannot sue the executor of the 
 dead executor for this debt. And if one 
 make a woman and two others his executors, 
 and a creditor before she doth accept of the 
 executorship doth marry her; in this case 
 he may sue the other executors for this debt; 
 but if she have accepted of the executor- 
 ship first, contra. 
 
 A devastavit or waste in an executor or 
 administrator is when he doth mis-employ 
 the estate of the deceased, and misdemean 
 himself in the managing thereof against the 
 trust reposed in him. And this may be done 
 divers ways, as 1. AVhen the executor or ad- 
 ministrator doth bestow more uison the 
 funeral of the deceased than is meet, having 
 respect to his degree and estate. 2. When 
 he doth pay legacies in money, or assent to 
 legacies given in other things before the 
 debts are paid, and hath not enough besides 
 to pay the debts. 3. When he doth not pay 
 the debts in that order and manner as is 
 before set down; but doth pay them first 
 that he ought to pay last, and he hath not 
 enough to pay them all. 4. When he doth 
 
Ch. 10) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 168 
 
 release a debt or duty dwe to the deceased 
 before he doth receive it; or -when, the goods 
 of the deceased being taken from him, he 
 doth release to him that doth take them, 
 the action whereby he may recover them. 
 5. When he doth sell the goods of the de- 
 ceased much under value, especially if it be 
 ■with covin, as to his near friends, to his own 
 iise, to have money under hand, or the like; 
 but otherwise to sell tliem under value, es- 
 pecially where he cannot conveniently make 
 more of them, is no waste. All these, and 
 such like acts as these, are said to be a 
 waste in an executor or administrator; and 
 being discovered against him by the return of 
 the sheriff, (or as some think by inquest of 
 office,) it will produce this effect, to make the 
 executor or administrator chargeable for so 
 much as he hath misemployed and wasted 
 de bonis propriis; so that any creditor may 
 charge him for the debt due to him from the 
 testator as for his own proper debt; and for 
 so much the execution shall be made against 
 him upon his own body, lands, and goods: 
 and yet so as one executor or administrator 
 shall not be charged for the waste of an- 
 other; for if there be many executors, and 
 one of them only doth commit the waste, he 
 only shall be punished for this waste. And 
 the executor or administrator, if he do com- 
 mit a waste in the gift, or sale of goods, 
 shall answer it alone: For he to whom the 
 goods are given or sold, shall not be pun- 
 ished for it; neither shall the executor, or 
 administrator of the executor or adminis- 
 trator, be punished for it after his death. 
 And howsoever the husband shall be charged 
 in a devastavit for the waste of himself or 
 his wife, where she is an executrix whilst 
 they both live together; yet If a -woman 
 executrix take a husband, and during the 
 marriage he or she doth commit a waste, 
 and after she die; in this case it seems the 
 husband shall not be charged for the waste 
 himself or his wife did: Sed quaere of this. 
 For if a void administration be committed, 
 and the administrator do waste the goods, 
 and after the administration is committed 
 to another; in this case the first administra- 
 tor may be charged by the creditors for the 
 waste done in his time. But an executor 
 or administrator may lawfully sell or con- 
 vert the goods of the deceased to his own 
 use, so as he convert the money to the use 
 of the deceased, in payment of debts, or the 
 like, and pay so much of his own money as 
 the goods so converted to his own use are 
 worth; and these acts are not esteemed a 
 waste in him. Also he may sell any spe- 
 cial legacy that is given, and this is no waste 
 in him; howbeit it is a wrong to the legatee, 
 if there be assets to pay debts besides. And 
 when he hath enough to pay all the debts 
 and legacies, then he may dispose of the 
 whole estate how he will without any preju- 
 dice to himself at all. 
 Shep. Touch. 494.— An executor or admin- 
 
 istrator may make himself chargeable of his 
 own goods, either by omission; as when he 
 being sued upon an obligation, or the like, 
 and there is a judgment against him or the 
 deceased in force, and he hath but enough 
 to satisfy that judgment, and he doth not 
 plead this in bar of the present action, but 
 doth suffer the plaintiff to recover against, 
 him; In this case, he must satisfy this sec- 
 ond debt out of his own estate; or by com- 
 mission; and that either by doing, as when 
 he doth any act that is a waste in him, and. 
 thereupon a devastavit is retm-ned against 
 him; (for in this case he must answer so. 
 much as he hath wasted out of his own. 
 estate;) or by saying, as when a suit is 
 brought against him, and he doth plead such 
 a false plea therein as doth tend to the per- 
 petual bar of the plaintiff in the action, and 
 yet it is of a thing that doth lie within his 
 perfect knowledge, as when he doth plead 
 he Is not executor nor did ever administer 
 as executor, and upon trial of this issue 
 against him It be found he is a rightful or 
 wrongful executor; in this case, he must 
 satisfy this debt out of his own estate,, 
 whether he have assets or not, and the exe- 
 cution upon the judgment had in this suit 
 shall be de bonis propriis. And if an ex- 
 ecutor or administrator be sued, and he 
 plead to the action plene administravit, and 
 upon trial it Is found against him; in this; 
 case, if he have any of the goods of the 
 deceased left In his hand, the execution shall 
 be of them; but if he have none of the- 
 goods of the deceased left, the execution shall 
 be, and he shall be charged for so much as; 
 is found to be in his hands, de bonis propriis.. 
 But where he is sued upon a promise made 
 by the testator, and he plead non assumpsit: 
 to it; and where he Is sued upon a deed: 
 made by the testator, and he plead non est; 
 factum to It, or the like: and these issues; 
 upon trial are found against him; or whem 
 he shall confess the action, or suffer judg- 
 ment to go by default against him; or plead 
 any vain plea; in all these cases, he shaU 
 not be chargeable of his own estate, neither 
 shall the judgment and execution in these 
 cases be de bonis propriis, but de bonis 
 testatoris only for the debt, and de bonis 
 propriis for the costs: and yet If an executor- 
 or administrator shaU entreat a creditor to. 
 forbear his debt until a day, and then prom- 
 ise to pay him; by this promise he hatb 
 made himself chargeable as for his owu 
 debt; howbeit it shall be allowed him upon- 
 his account. But in all these cases, and 
 such like, where a man shall be charged of 
 his own estate, and the execution shall be 
 de bonis propriis. It seems the judgment Is- 
 always de bonis testatoris; and the course 
 is this, the first execution is against the 
 executor de bonis testatoris, and not de 
 bonis propriis: and after a devastavit re- 
 turned by the sheriff against the executor or 
 administrator, and not before, a new execu- 
 
 lOS 
 
§ 168 AGENCIES EFFECTING THE DEYOLUTION OF PKOrEKTY. (Ch. 10 
 
 tion is directed to the slieriff to levy the debt 
 de bonis testatorls; and if there be none of 
 them to be found in his hands, then to levy 
 them de bonis propriis. And therefore if an 
 executor or administrator be sued by a cred- 
 itor, and the executor or administrator plead 
 plene administravit generally, or plead spe- 
 cially that he hath no more but to satisfy 
 SL judgment, or the like; and upon trial this 
 issue is found against him, and it is found 
 that he hath in all or in part enough to 
 satisfy the debt; in these cases, the judg- 
 ment is de bonis testatoris, and thereupon 
 .an execution is (as in other cases) to levy 
 the debt de bonis testatoris in the hands of 
 the executor or administrator, and for the 
 costs de bonis propriis. And upon the re- 
 tm-n of the sheriff: a special execution doth 
 issue forth to levy the money de bonis pro- 
 priis: et si constare poterit that he hath 
 •wasted the goods, then that he shall make 
 the execution de bonis propriis. And here- 
 upon also the plaintiff may if he will have 
 a capias against the body, or an elegit against 
 the lands of the executor or administrator, 
 104 
 
 and no other course of proceedings can or 
 may be had against the executor or admin- 
 istrator in this case. 
 
 Shep. Touch. 495.— An action of debt was 
 brought against two executors, and one of 
 them did appear and confess the action, and 
 the other made default, and thereupon judg- 
 ment was given to recover against them both 
 de bonis testatoris in their hands, and execu- 
 tion accordingly: and upon this execution 
 the sheriff did return a devastavit against 
 the executor that made default only, and 
 hereupon a scire facias went out against 
 him alone, and afterwards an execution 
 against him alone de bonis propriis. 
 
 HAKGTHORPE v. MILFORTH, Case No. 
 249, post. 
 
 POWELL T. EVANS, Case No. 250, post. 
 
 CHAMBERS v. MINCHIN, Case No. 251, 
 post. 
 
 LANGFORD v. GASCOYNE, Case No. 252, 
 post. 
 
 MURRAY V. BLATCHPORD, Case No. 253, 
 post. 
 
 McKIM V. AULBACH, Case No. 254, post. 
 
 BARRY V. LAMBERT, Case No; 255, post. 
 
Ch 11) AGENCIES EEFECTING THE DEVOLUTION OF PROrERTT. § 169 
 
 CHAPTER XI. 
 
 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY, (Continued.) 
 
 §,169. Construction and Interpretation of Wills 
 
 170. First Rule. 
 
 171. Second Rule. 
 
 172. Third Rule. 
 
 173. Fourth Rule. 
 
 174. Fifth Rule. 
 
 175. Sixth Rule. 
 
 176. Seventh Rule. 
 
 177. Admission of Parol Evidence. 
 
 § 169, Construction and Interpre- 
 tation of Wills. 
 
 Shep. Touch. 433.— The general rules for 
 the exposition of wills are these; that they 
 must have a favorable and benign interpre- 
 tation; and as near to the mind and intent 
 of the testator as may be; and yet so withal, 
 as his intent may stand with the rules of 
 law, and be not repugnant thereunto. It is 
 said to be therefore a maxim of law, "Quod 
 ultima voluntas testatoris perimpleuda est 
 secundum veram intentioneni suam," accord- 
 ing to these verses: 
 
 Sed legum servanda fides; suprema voluntas 
 Quod maudat fierique jubet, parere necesse est. 
 
 If a devise be made of land to I. S. and 
 the heirs male of his body; by this devise 
 the sons and not the daughters of I. S. shall 
 have the land. And if a devise be made of 
 land to I. S. and the heirs female of his 
 body; by this devise the daughters and not 
 the sons of I. S. shall have the land. And 
 yet it hath been said in these cases, that if, 
 in the first case, the devisee have issue a 
 daughter, who hath issue a son; or in the 
 last case, hath issue a son, who hath issue 
 a daughter; that this son and daughter shall 
 take by this devise in these cases; but it 
 seems the law is otherwise. 
 
 Shep. Touch. 437.— Whatsoever will pass by 
 any words in a deed, wiU pass by the same 
 words in a will, and more also; for a will 
 is always more favourably interpreted than 
 a deed: and therefore if a man devise the 
 profits, use, or occupation of land; by this 
 devise the land itself is devised. 
 
 If a man devise thus, t give all my lands 
 to I. S. or I give all my tenements to I. S. 
 or I give all my lands and tenements to I. 
 S. by this devise I. S. shall have not only all 
 the lands whereof the devisor Is sole seised, 
 but also aU the lands whereof he is seised 
 in common or coparcenary with another; and 
 not only the lands he hath in possession, but 
 also the lands he hath in reversion of any 
 estate in fee-simple; but by this devise, reg- 
 ularly, leases for years of lands wiU not pass. 
 
 Shep. Touch. 439.— If one devise his land 
 thus, I give my land in Dale to I. S. and his 
 
 heirs, or to I. S. in fee, or to I. S. in fee- 
 simple, or to I. S. for ever, or to I. S. haben- 
 dum sibi & suis, or to I. S. and his assigns 
 for ever; or thus, I give my land to I. S. 
 to give, sell, or do therewith at his pleasure; 
 by aU these, and such like devises, a fee- 
 simple estate is made of the thing devised, 
 and I. S. shall have the same to him and his 
 heirs for ever. But if land be granted by 
 deed after this manner, I. S. by this grant 
 in all these cases, except only in the first 
 case, hath only an estate for life. And if a 
 man devise his land to I. S. and say not how 
 long, nor for what time, by this devise I. S. 
 hath an estate for life only in the land. 
 
 Shep. Touch. 446.— If one devise a third 
 part of aU his goods and chattels; by this 
 devise, some say, doth pass and is given no 
 more but a clear third part after debts and 
 legacies paid; but it seems a third part of 
 the whole is hereby devised, out of which 
 the debts must first be paid by law. 
 
 If one devise to another all his goods and 
 chattels, or all his plate, or all of any other 
 thing in general; by this devise doth pass 
 and is given not only all the testator hath 
 of that thing at the time of the making of 
 the will, but also all he hath at the time of 
 his death; and not only what he hath in 
 possession, but also what he hath not in 
 possession; but if one devise all his goods, 
 or all his plate, &c., in such a place, or in the 
 occupation of I. S. by this devise none other 
 will pass but what are in that place, and in 
 the occupation of I. S. 
 
 Shep. Touch. 447.— If one have a term of 
 years of a portion of tithes in Dale, and 
 have a term of years of land in Dale; and 
 he devise all his lands and tenements in Dale, 
 and all his estate therein to I. S. by this de- 
 vise the portion of tithes doth not pass, for 
 it is neither land nor tenement; but by de- 
 vise of all his hereditaments, perhaps it may 
 pass. Sed quaere. 
 
 If one devise to I. S. all his goods and 
 chattels; by this devise doth pass and is 
 given all his estate active and passive, (ex- 
 cept land of inheritance and freehold estates, 
 and such things as depend thereon,) as leas- 
 es for years, wardships by tenure in capite, or 
 by knight's service, gold, silver, plate, house- 
 hold-stuff, cattle, corn, debts, and the like; 
 and if one devise to I. S. all his goods, or 
 all his chattels; by either of these is de- 
 vised as much as by both of them. 
 
 If one devise to I. S. all his moveables; by 
 this devise doth pass all his personal goods, 
 both quick and ' dead, which either move 
 themselves, as horses, sheep, and the like; 
 or may be moved by another, as plate, house- 
 
 105 
 
§ 169 AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. (Ch. H 
 
 hold-stuff, corn in the garners and barns, or 
 In the sheaf, &c., also all bonds and especial- 
 ties; and by a devise of Immoveables do 
 pass leases, rents, grass, and the like, but 
 not any of those things that do pass by the 
 devise of moveables: but debts will not pass 
 by either of these devises. 
 
 If one devise to another all his household- 
 stuff; hereby do pass his plate, coaches, ta- 
 bles, stools, forms, beds, vessels of wood, 
 brass, pewter, earth, and the like; but not 
 his apparel, books, weapons, tools for arti- 
 ficers, cattle, victuals, corn, plough-geere, and 
 the like: by a devise of aU utensils, it is 
 agreed that plate and jewels do not pass. 
 
 If a man devise to I. S. one of his horses, 
 or a horse; by this devise I. S. shall have 
 the election, if there be more than one, which 
 horse he will have: but if the devise be thus, 
 I will that my executor shall deliver to I. S. 
 one of my horses; in this case, the executor 
 hath the election, and he may deliver which 
 of them, he will. 
 
 If one devise thus, I give to I. S. my corn 
 growing In such a ground this next year; or 
 the lambs of my flock this next year; by 
 these devises the legatee shall have no more 
 but what doth grow that year: but if he de- 
 vise so many quarters of corn, or so many 
 lambs; m these cases so much must be paid 
 howsoever. 
 
 4 Kent, Comm. 534.— V. Of the Constmc- 
 tion of Wills. 
 
 It will not be consistent with the plan of 
 this work, to do more than state the leading 
 principles which have been established and 
 applied to the construction of wills. The at- 
 tempt to examine cases at large on this sub- 
 ject would be impracticable, from the incal- 
 culable number of them; and, though we are 
 not to disregard the authority of decisions, 
 even as to the interpretation of wills, yet it 
 is certain, that the construction of them is 
 so much governed by the language, arrange- 
 ment, and circumstances of each particular 
 instrument, which is usually very unskilful- 
 ly and very incoherently drawn, that ad- 
 judged cases become of less authority, and 
 are of more hazardous appUcation than de- 
 cisions upon any other branch of the law. 
 
 The intention of the testator is the first 
 and great object of inquiry; and to this 
 object technical rules are, to a certain ex- 
 tent, made subservient. The intention of the 
 testator, to be collected from the whole will, 
 is to govern, provided it be not unlawful, or 
 inconsistent with the rules of law.* The 
 control which is given to the intention by 
 the rules of law, is to be understood to ap- 
 ply, not to the construction of words, but to 
 the nature of the estate— to such general 
 regulations in respect to the estate, as the 
 law will not permit; as, for instance, to 
 create an estate tail, to establish a perpe- 
 tuity, to endow a corporation with real es- 
 tate, to Umit chattels as inheritances, to alter 
 
 'Finlay v. King, 3 Pet. 346. 
 lOS 
 
 the character of real estate, by directing 
 that it shall be considered as personal, or to 
 annex a condition that the devisee in fee 
 shall not alien. To allow the testator to in- 
 terfere with the established rules of law, 
 would be to permit every man to make a 
 law for himself, and disturb the metes and 
 bounds of property." 
 
 4 Kent, Comm. 535.— It does not require 
 the word heirs to convey a fee; but other 
 words denoting an intention to pass the 
 whole interest of the testator, as a devise 
 of all my estate, all my interest, all my prop- 
 erty, my whole remainder, all I am worth 
 or own, all my right, all my title, or all I 
 shall die possessed of, and many other ex- 
 pressions of the like import, will carry an 
 estate of inheritance, if there be nothing in 
 the other parts of the will to limit or control 
 the operation of the words. So, if an estate 
 be given to a pei-son generally, or indefinite- 
 ly, with a power of disposition, it carries a 
 fee; unless the testator gives to the first 
 taker an estate for life only, and annexes to 
 it a power of disposition of the reversion. 
 In that case, the express limitation for life 
 will conti'ol the operation of the power, and 
 prevent it from enlarging the estate to a 
 fee.' If it distinctly appears to be the inten- 
 tion to give a greater estate than one for 
 life, as a devise to B. for ever, or to him 
 and his assigns for ever, or to him and his 
 blood, or to him and his successors, or to 
 him and his children, such expressions may 
 create a fee in the devisee.* So, a devise of 
 the rents and profits of land is a devise of 
 the land itself.' 
 
 4 Kent, Comm. 537.— In the construction of 
 devises, the intention of the testator is ad- 
 mitted to be the pole-star by which the 
 courts must steer; yet that intention is lia- 
 ble to be very much conti-oUed by the appli- 
 cation of technical rules, and the superior 
 force of technical expressions. If the testa- 
 tor devises land to another generally,, as a 
 devise of lot No. 1, to B., without using 
 words of limitation, or any expression which . 
 denotes any thing more than a description 
 of the land devised, and if there be nothing 
 in the will by which a fee by 'implication 
 may be inferred, the devisee takes only an 
 estate for life. There is almost an endless 
 series of English authorities to this point, 
 and the rule has been recognised in this 
 counti-y as of settled and binding obligation.' 
 This mle has been broken in upon, in South 
 Carolina,' and probably in other states, in 
 favour of the intention. It was set aside in 
 Massachusetts; in the case of a devise of 
 
 ''Lord Hardwicke, in Bagshaw v. Spencer, 
 2 Atk. 580. 
 
 " Jackson v. Coleman, 2 Johns. 391. 
 
 * AVild's Case, 6 Coke, 16. 
 
 "Co. Litt. 4b.; 8 Coke, 95b. 
 
 " Uenn v. Gaskin, Cowp. 657; Frogmorton v 
 Wright, 3 Wils. 414; Harris v. Harris & 
 Johns. 141. ' 
 
 ' Whaley v. Jenkins, 3 Desaus. Eq. 80. 
 
Ch. 11) AGENCIES EFFECTING THE DEVOLUTION OF PROPERTY. § 169 
 
 wild or uncultivated land.' The New-York 
 Revised Statutes have swept away all the 
 established rules of construction of wills, in 
 respect to the quantity of interest conveyed. 
 It is declared, that every grant or devise of 
 real estate, or any interest therein, shall pass 
 all the estate or interest of the grantor or 
 testator, unless the intent to pass a less es- 
 tate or interest shall appear by express 
 terms, or be necessarily implied. These pro- 
 visions relieve the courts in New- York from 
 the study of a vast collection of cases, and 
 from yielding obedience any longer to the 
 authority of many ancient and settled rules, 
 which were difficult to shake, and dangerous 
 to remove. Their tendency Is to give in- 
 creased certainty to the operation of a de- 
 vise. But the language of the provision 
 making every devise of real estate, or any 
 interest therein, in all events, and in every 
 case, pass the whole estate or interest of the 
 testator, unless an intent to pass a less es- 
 tate appears by express terms, or by neces- 
 sary implication, would seem to be rather 
 too imperative, and not to leave quite room 
 enough for the reasonable construction of 
 the intention of the testator not to pass a 
 fee. It will still be a question in every 
 case, what words amount to a devise of the 
 estate; for the courts are frequently obliged 
 to say, "voluit sed non dixit." Lands held 
 by the testator, as mortgagee or trustee, will 
 pass by the usual general words in a will, 
 unless it can be collected from the language 
 of the will, or the pm-poses and objects of 
 the testator, that the intention was other- 
 wise. 
 
 4 Kent, Comm. 539.— In most of the other 
 states, the rules of the English law continue 
 to govern; and, even in New-York, a series 
 of judicial precedents wiU gradually be 
 formed upon the construction of the stat- 
 utes, and they will become guides for the 
 government of analogous cases. It is most 
 desirable that there should be some fixed 
 and stable rtdes even for the interpretation 
 of wills; and, whether those rules be found- 
 ed upon statute, or upon a series of judicial 
 decisions, the beneficial result is the same, 
 provided there be equal certainty and sta- 
 bility in the rule. There has been a strong 
 disposition frequently discovered in this 
 country, to be relieved from all English ad- 
 judications on the subject of wills, and to 
 hold the intention of the testator paramount 
 to technical rules. The question still occurs, 
 whether the settled rules of construction are 
 not the best means employed to discover the 
 intention. It is certain that the law will 
 not suffer the intention to be defeated, mere- 
 ly because the testator has not clothed his 
 Ideas in technical language. But no en- 
 lightened judge will disregard a series of 
 adjudged cases bearing on the point, even 
 as to the construction of wills. Established 
 rules, and an habitual reverence for judicial 
 
 "Sargent v. Towns, 10 Mass. 303. 
 
 decisions, tend to avoid the mischiefs of un- 
 certainty in the disposition of property, and 
 the much greater mischief of leaving to the 
 courts the exercise of a fluctuating and arbi- 
 trary discretion. The soundest sages of the 
 law, and the solid dictates of wisdom, have 
 recommended and enforced the authority of 
 settled rules, in all the dispositions of prop- 
 erty, in order to avoid the ebb and flow of 
 the reason and fancy, the passions and preju- 
 dices of tribunals. When a particular ex- 
 pression in a will has received a definite 
 meaning by express adjudications, that mean- 
 ing ought to be adhered to, for the sake 
 of uniformity, and of security in the dispo- 
 sition of landed property." 
 
 4 Kent, Comm. 540.— The general doctrine 
 with respect to the expressions used by the 
 devisor, is, that if they denote only a descrip- 
 tion of the estate, as a devise of the, house 
 A., or the farm B., and no words of limita- 
 tion be employed, then only an estate for life 
 passes; but if the words denote the quantity 
 of interest which the testator possesses, as 
 all his estate in his house A., then a fee 
 passes." Another general rule is, that if 
 the testator creates a charge upon the dev- 
 isee personally, in respect of the estate de- 
 vised, as if he devises lands to B., on con- 
 dition of his paying such a legacy, the dev- 
 isee takes the estate on that condition; and 
 he will take a fee by implication, though 
 there be no words of limitation, on the prin- 
 ciple that he might otherwise be a loser. 
 But where the charge is upon the estate, 
 and there are no words of limitation, or oth- 
 er words denoting an intention to pass the 
 fee, but only a devise to A. of his lands, 
 after the debts and legacies are paid, the 
 devisee takes only an estate for life." In 
 every case in which the land is charged with 
 a trust which cannot be performed, or in 
 which the will directs an act to be done 
 which cannot be accomplished unless a 
 greater estate than one for life be taken, and 
 it becomes necessary that the devise be en- 
 larged to a fee. The distinction created by 
 this rule has ceased, under the operation of 
 the New-York statute which has been men- 
 tioned. Introductory words to a will can- 
 not vary the construction, so as to enlarge 
 the estate to a fee, unless there be words in 
 the devise itself sufficient to carry the inter- 
 est. Such introductory words are like a 
 I preamble to a statute, to be used only as a 
 key to disclose the testator's meaning. A 
 fee will pass by will, by implication of law, 
 as if there be a devise over of land after the 
 death of the wife; the law, in that case, 
 presumes the intention to be, that the widow 
 shall be tenant for life. So, a devise over 
 to B., on the dying of A. before twenty-one, 
 shows an intention, that if A. attains the 
 
 " Judge Patterson, in Lambert v. Paine, 3 
 Cranch, 134. 
 ^" Hogan V. Jackson, Cowp. 299. 
 "Jackson v. Bull, 10 Johns. 148. 
 
 107 
 
§§ 1G9-177 AGENCIES EFFECTING THE DEVOLUTION OF PBOPERTY. (Ch- H 
 
 age of twenty-one, he should have a fee, and 
 he takes it by implication. 
 
 § 170. Proposition 1. 
 
 Wig. Wills, 58.— A testator is always pre- 
 sumed to use the words in which he ex- 
 presses himself, according to their strict and 
 primary acceptation, unless, from the con- 
 text of the will, it appears that he has used 
 them in a different sense, in which case the 
 sense in. which he thus appears to have used 
 them, will be the sense in which they are 
 to be construed. 
 
 HODGSON V. AMBROSE, Case No. 256, 
 post. 
 DENT V. PEPYS, Case No. 257, post. 
 
 § 171. Proposition 2. 
 
 Wig! Wills, 66.— Where there is nothing in 
 the context of a wUl from which it is appar- 
 ent that a testator has used the words in 
 which he has expressed himself in any other 
 than their strict and primary sense, and 
 wliere his words so interpreted are sensible 
 with reference to extrinsic circumstances, it 
 is an Inflexible rule of construction, that the 
 words of the will shall be interpreted in their 
 strict and primary sense, and in no other, 
 although they may be capable of some popu- 
 lar or secondary interpretation, and although 
 the most conclusive evidence of intention to 
 use them in such popular or secondary sense 
 be tendered. 
 
 BEAUMONT v. FELL, Case No. 258, post. 
 
 § 173. Proposition 3. 
 
 Wig. Wills, 103.— Where there is nothing in 
 the context of a will, from which it is appar- 
 ent that a testator has used the words in 
 which he has expressed himself in any other 
 than their strict and primary sense, but his 
 words, so interpreted, are insensible, with ref- 
 erence to extrinsic circumstances, a court of 
 law may look into the extrinsic circumstan- 
 ces of the case, to see whether the meaning 
 of the words be sensible in any popular or 
 secondary sense, of which, with reference to 
 these circumstances, they are capable. 
 
 GILL V. SHELLEY, Case No. 259, post. 
 BRADSHAW v. BRADSHAW, Case No. 
 260, post. 
 
 § 173. Proposition 4. 
 
 Wig. Wills, 135.— Where the characters in 
 which a will is written are difficult to be de- 
 ciphered, or the language of the will is not 
 understood by the court, the evidence of per- 
 sons skilled in deciphering writing, or who 
 understand the language in which the will 
 is written, is admissible to declare what the 
 characters are, or to inform the court, of the 
 proper meaning of the words. 
 
 NORMAN V. MORRELL, Case No 261 
 
 post. ' 
 
 108 
 
 § 174. Proposition 5. 
 
 Wig. Wills, 142.— For the purpose of deter- 
 mining the object of a testator's bounty, or 
 the subject of disposition, or the quantity of 
 interest intended to be given by his will, a 
 court may inquire into every material fact 
 relating to the person who claims to be in- 
 terested under the will, and to the property 
 which Is claimed as the subject of disposi- 
 tion, and to the circumstances of the testator, 
 and of his family affairs, for the purpose of 
 enabling the court to identify the person or 
 thing intended by the testator, or to deter- 
 mine the quantity of interest he has given 
 by his will. 
 
 The same (it is conceived) is true of every 
 other disputed point, respecting which it can 
 be shown that a knowledge of extrinsic facts, 
 can in any way, be made ancillary to the 
 right of interpretation of a testator's words. 
 
 KENNELL v. ABBOTT, Case No. 61, post. 
 
 § 175. Proposition 6. 
 
 Wig. Wills, 175. — Where the words of a 
 will, aided by evidence of the material facts 
 of the case, are insufficient to determine the 
 testator's meaning, no evidence will be ad- 
 missible to prove what the testator intended, 
 and the will (except in certain si^ecial cases, 
 see Proposition Seven) will be void for un- 
 certainty. 
 
 CLBMENTSON v. GANDY, Case No. 262, 
 post. 
 
 § 176. Proposition 7. 
 
 Wig. Wills, 188.— Notwithstanding the rule 
 of law, which makes a wiU void for uncer- 
 tainty, where the words, aided by evidence 
 of the material facts of the case, are insuffi- 
 cient to determine the testator's meaning,— 
 courts of law, in certain special cases, admit 
 extrinsic evidence of intention to make cer- 
 tain the person or thing intended, where the 
 description in the wiU is insufficient for the 
 purpose. 
 
 These cases may be thus defined:— where 
 the object of a testator's bounty, or the sub- 
 ject of disposition (i. e. the person or thing 
 intended), is described in terms which are 
 applicable indifferently to more than one per- 
 son or thing, evidence is admissible to prove 
 which of the pei-sons or things so described 
 was intended by the testator. 
 
 LORD CHEYNEY'S CASE, Case No. 263, 
 post. 
 
 § 177. Admission of Parol Evi- 
 dence. 
 
 DOE EX DEM. HISCOCKS v. HISCOCICS, 
 Case No. 264, post. 
 
 SEWELL v. SUNGLLTF, Case No 265 
 post. ' 
 
 GILMOR'S ESTATE, Case No. 266, post. 
 
Part II —CASES. 
 
 ABB.W1LLS (109)* 
 
^ 1) 
 
 EATCLirr'S CASE. 
 
 Case No. 1 
 
 RATCLIFF'S CASE. 
 
 (3 Coke, 37a.) 
 
 King's Bench, Hilary Term. 34 Eliz., 1592. 
 
 Mr. C&lse aud others, for plaintiff. Mr. 
 Godfrey aud others, for defendant. 
 
 PER CURIAM. • * * 6th. It was re- 
 solved, that on this verdict it appears, that 
 Edward RatclifC and Martha his wife had a 
 good title to the land against Androwes and 
 Elizabeth his wife; and that one daughter, 
 as this case is, should not take benefit of the 
 forfeiture of the other. For the statute gives 
 the forf^ture "to the next of kin, to whom 
 the Inheritance should descend, or come aft- 
 er her decease, &c. during the life of such 
 person that so shall contract matrimony." 
 So that first, he ought to be of blood, and, 
 2d. he ought to be next of blood to whom 
 the inheritance should descend or come, &c. 
 And although Elizabeth the daughter be of 
 blood, yet in this case by the death of Mar- 
 tha the land, if she hath issue, shall descend 
 to her issue, and if she hath no issue, it shall 
 revert to Elizabeth the mother, 5 E. 4, 5; 
 Assize, 27, in the like case on the statute of 
 6 R. 2, agrees with this resolution. Then it 
 was moved, If the mother in this case should 
 enter for the forfeiture; and it was objected, 
 that she could not enter, for she is not of 
 the blood of the daughter, for the daughter 
 derives her blood from her mother, and not 
 the mother from her. And therewith agrees 
 5 E. 6, Administration Br. 47, where it is 
 held, that the father or mother are not next 
 of blood, to whom administration of the goods 
 of their son or daughter shall be granted; 
 and there it is said, quod pueri sunt de san- 
 guine parentum, sed pater et mater non sunt 
 de sanguine puerorum, and that is the reason 
 that no land can descend from the son to 
 the father or mother, but shall rather escheat 
 to the lord, because the father or mother is 
 not of the blood of their son. Against 
 which it was argued, that the mother should 
 take advantage of this forfeiture. And the 
 said book of 5 E. 6, was utterly denied to be 
 law, and that it had oftentimes been re- 
 solved against it, scU. that administration 
 may be granted of the goods of the son or 
 daughter, to the father or mother, as to the 
 next of blood; and that is well proven by 
 Littleton in his first chapter of his book, 
 where it appears, that if there be father, un- 
 cle and son, and the son dies, that the uncle 
 shall be heir to the son, and not the father, 
 and yet the father is more near of blood, 
 which are Littleton's words, which, as was 
 said, decide the point now in question. And 
 on the words of Littleton it was concluded, 
 that in the said case of father, uncle and 
 son, if a lease be made to the son, the re- 
 mainder to the next of his blood, that the 
 father in case of purchase, shall have the re- 
 mainder; for, by the judgment of Littleton, 
 he is the next of blood. And although in 
 every art and science there are principia et 
 
 postulata, of which it is said, altiora ne 
 quaesiveris, et principia probant, et non pro- 
 bantur, because every proof ought to be by a 
 more high and supreme cause, and nothing 
 can be more high and supreme than the 
 principles themselves, and therefore ought 
 to be approved, because they cannot be prov- 
 ed. And Littleton saith, that it is a maxim 
 in law, that an inheritance may lineally de- 
 scend, and not ascend; and that appears by 
 GlanviUe, who wrote in the time of H. 2, 
 lib. 7, c. 1, fol. 44b, quaelibet haereditas, na- 
 turaliter quidem ad haeredes haereditabiliter 
 descendit, nunquam autem naturaliter as- 
 cendit: And by Bracton, also, who wrote in 
 the time of Hen. 3, lib. 2, c. 29, descendit 
 itaque jus quasi ponderosum, quod cadens 
 deorsum recta linea vel transversali, et nun- 
 quam reascendit ea via, qua descendit post 
 mortem antecessorum. And therewith agrees 
 Britton, who wrote in the time of E. I. c. 
 119 de successione. Yet because the com- 
 mon law doth differ in this point from the 
 civil law, these reasons of this principle of 
 the common law were alleged, scil. That 
 in this point, as almost in all others, the 
 common law was grounded on the law of 
 God, which was said, was causa causanim, 
 as appears in the 27th chapter of Numbers, 
 where the case which was in judgment be- 
 fore Moses was, that Salphaad had issue five 
 daughters, and having divers brothers, died, 
 to whom his inheritance should descend was 
 the question, the daughters claiming it jure 
 propinquitatls, as their birthright, and next 
 heirs to their father; the brothers claiming 
 it as heirs male jure honoris, to celebrate and 
 continue the name of their ancestors: and 
 this case seemed of great difficulty to Moses, 
 and therefore, for the deciding of that ques- 
 tion, Moses consulted with God; for the 
 text saith, retulitque Moses causam earum 
 ad judicium Domini, qui dixit ad eum, justam 
 rem postulant filiae Salphaad. Da els pos- 
 sessionem inter cognatos patris sui, et ei in 
 haereditatem suceedant: ad filios autem Is- 
 rael loqueris haec: homo cum mortuus fuerit 
 absque filio, ad filiam ejus transibit haeredi- 
 tas, si filiam non habuerit, habebit successo- 
 res f ratres suos, quod si fratres non f uerint, da- 
 bitis haereditat fratribus patris ejus; sin au- 
 tem nee patruos habuerit, dabitur haereditas 
 his qui ei proximi sunt, eritque hoc filius 
 Israel sanctum lege perpetua, sicut praecepit 
 Dominus Mosi. By which general law 
 (which extends not only to the said particu- 
 lar case, but to all other inheritances, to all 
 persons, and at all times) it appears that the 
 father himself, and all lineal ascension, is 
 excluded. 
 
 Another reason of the said principle was 
 alleged, for avoiding of confusion in case of 
 descents, if not only lineal and collateral de- 
 scent would be allowed, but lineal ascension 
 also, which is one of the causes of such di- 
 versity of opinions in cases of descents in the 
 civil law; and the contrary is one of the 
 causes of the certainty of rules of the eom- 
 
 lU 
 
Case No. 1 
 
 BATCLIFF'S CASE. 
 
 (§ 1 
 
 mon law in case of descents and inheritance, 
 being ponderosum quoddam, as Bracton said, 
 jure naturae descendit, and not ascendit, for 
 omne grave fertur deorsum. And it was 
 said at the bar, if in this case he in the re- 
 version had been brother of the half-blood 
 to the daughter that consented, &c. he 
 might enter as proximus de sanguine, and 
 yet he could not inherit lands in fee-simple, 
 as heir to his sister in such case, in which 
 point also the common law doth differ from 
 the civil law; for by the common law of 
 England, if a common person hath issue a 
 son and a daughter by one venter, and a son 
 by another venter, and died seised of lands 
 in fee simple, and the elder son enters into 
 the land, and dies without issue, the sister 
 of the whole blood shall inherit to him, and 
 not the brother of the half-blood. And that 
 was the ancient common law of this land, 
 and always continued, as appears by Glan. 
 lib. 7, c. 1; Bract, lib. 2, c. 30; and by Britt. 
 c. 119. 
 
 And the reason of the common law is 
 notable, and may be collected by the said 
 ancient authors of the law, that every one 
 who is heir to another, aut est haeres jure 
 proprietatis, as the eldest son who alone 
 shall inherit before all his brothers, aut jure 
 repraesentationis, as where the eldest son 
 dies in the life of his father, his issue shall 
 inherit before the younger son; for although 
 the youngest son is magis propinquus, yet 
 jure repraesentationis the issue of the eld- 
 est son shall inherit, for he represents the 
 person of his father, and as Bracton saith, 
 jus proprietatis, which his father had by 
 birthright, descends to him, aut jure pro- 
 pinquitatis, as propinquus excludit remotum 
 et remotus remotiorem; aut jure sanguinis, 
 and by force thereof, in the said case, the 
 daughter shall inherit before the son, and 
 that for divers causes; inasmuch as the 
 blood which is betwixt every heir and his 
 ancestor makes him heir, for without blood 
 none can inherit: and therefore it is great 
 reason that he who hath full and whole 
 blood, should inherit before another who 
 had but a part of the blood of his ancestor, 
 for ordine naturae totum praefertur unicui- 
 que parti. And therefore Bracton saith, quod 
 propter jus sanguinis duplicatum, tam ex 
 parte patris, quam ex parte matrls, dlcltur 
 haeres propinquior soror, quam frater de 
 aha uxore. And Britton saith, that the 
 right of blood in this case causes the female 
 to foreclose the male. 
 
 2nd. As none can be begotten but of a 
 father and mother, and ought to have in him 
 two bloods, that is to say, the blood of his 
 father and the blood of his mother; these 
 bloods commixt in him by lawful marriage 
 constitute and make him heir; so that none 
 can be heir to any, unless he hath in him 
 both the bloods of him to whom he will 
 make himself heir, and therefore the heir ot 
 the half-blood cannot inherit, because he 
 wants one of the bloods which should make 
 112 
 
 him heritable, as Aristotle, lib. Topicorum; 
 parte quacunque integrante sublata, tollltur 
 totum, quod verum est si accipias partem 
 integrantem pro parte necessaria: as in this 
 case, the blood of the father and of the 
 mother are but one inheritable blood, and 
 both are necessary to the procreation of an 
 heir, and therefore deficiente uno, non potest 
 esse haeres. And on this reason it seems 
 to Britton, (chapter 5,) if a man be attainted 
 of felony by judgment, that the heirs begot- 
 ten after the attainder are excluded of all 
 manner of succession of heritage, as well on 
 the part of the mother as on the part of the 
 father; and the reason thereof was, that the 
 son begotten after the judgment had not two 
 heritable bloods in him; for at the time of 
 the begetting of him, the blood of the father 
 was corrupted; for ex leproso parente lepro- 
 sus generatur filius; and when the father is 
 attainted of felony, the blood in respect of 
 which he should be heritable, being corrupt- 
 ed, the son, as seemed to him, had but half- 
 blood; that is to say, the blood of the mother 
 in him uncorrupted; and therefore he held, 
 that such son should not Inherit to his moth- 
 er. And with him agrees Bracton, (liber 3, 
 c. 13.) Non valebit felonis generatio, nee 
 ad haereditatem paternam, vel maternam; si 
 autem ante felonam generationem fecerit, 
 talis generatio succedit in haereditatem pa- 
 tris, vel matrls, a quo non fuerit felonia per- 
 petrata; because at the time of Ms birth he 
 had two lawful bloods commixt in him, 
 which cannot be corrupted by the subsequent 
 attainder, but only as to him who offended. 
 
 The third reason was for avoiding of con- 
 fusion; for if as well the half blood as the 
 whole blood should be equally heritable, 
 then in many cases confusion and uncertain- 
 ty will ensue who should be the next heir; 
 and if a man would advance any that is of 
 half-blood to him, he might easily convey 
 some of his inheritance to him at his pleas- 
 ure: and therefore it was concluded, that the 
 common law, which prefers the whole blood 
 before the half-blood, was grounded on great- 
 er reason than the civil law in this point: 
 yet in some cases the half-blood may inherit 
 by our law, i. e., aut jure slve ratione doni, 
 and in that the common law doth admit the 
 half-blood to inherit. As if a man makes a 
 gift to one and his heirs of his body, and he 
 hath issue a son and a daughter by one 
 venter, and a son by another venter, and the 
 father dies, and the elder son enters and 
 dies, the younger son shall inherit her for- 
 mam doni for he claims as heir of the body 
 of the donee, and not generally as heir to his 
 brother; and this is the reason that Little- 
 ton saith, quod possessio fratris de feodo 
 simplici faclt sororem esse haeredem; in 
 which rule every word is to be observed. 
 
 1st. That the brother ought to be in actual 
 possessiion of the fee and freehold, either 
 by his own act, or by the actual possession 
 of another; but if neither by his own act, 
 nor by the possession of another, he gains 
 
§1) 
 
 RATCLIFF'S CASE. 
 
 Case No. 1 
 
 more than descends to him, the brother of 
 the half-blood shall inherit; and therefore if 
 lend, rent, advowson, &e. descends to the 
 elder brother, and he dies before any entry 
 by him made into the land, or receive the 
 rent, or present to the chm-ch, the younger 
 brother shall inherit: and the reason thereof 
 is, that of all hereditaments in possession 
 he who claims such hereditaments as heir, 
 ought to make himself heir to him who was 
 last actually seised, as it is held 2 H. 4, 11, 1 
 Assize, 27; 34 Assize, 10; 10 E. 2, quare imp. 
 177; 45 B. 3, 13; and Littleton, c. 1. For if 
 there be father, uncle, and son, and the son 
 purchases land, and dies without issue, and 
 the land descends to the uncle, if the uncle 
 dies before entry, the land shall not de- 
 scend to the father, for then he ought to 
 make himself heir to him who was last 
 actually seised, and that was the son; and 
 therefore Littleton saith in such case, if the 
 imcle enter, &c. then the father shall have 
 the land as heir to the uncle; and in this 
 case the father was last actually seised, and 
 the sister cannot claim the laud as heir to 
 the father, for the younger son is heir to 
 him; but if the elder son enters, and by his 
 own act hath gained the actual possession, 
 or if the lands were leased for years, or in 
 the hands of a guardian, and the lessee or 
 guardian possess the land, there the posses- 
 sion of the lessee or guardian doth vest the 
 actual fee and freehold in the elder brother: 
 and in such case the sister shall inherit as 
 heir to her brother, who was last actually 
 seised; but of a reversion, or a remainder 
 expectant on an estate for life or in tail, 
 there he who claims the reversion as heir 
 ought to make himself heir to him who 
 made the gift, or lease, if the reversion or 
 remainder descend from him: or if a man 
 purchase such reversion or remainder, he 
 who claims as heir ought to make himself 
 heir to the first purchaser; and aU this ap- 
 pears. 24 E. 3, 24; 37 Assize, 4, 40; 40 E. 
 3, 9; 42 E. 3, 10; 45 E. 3, Releases, 28; 49 E. 
 3, 12; 7 H. 5, 3, 4; 8 Assize, 6; 35 Assize, 2; 5 
 E. 4, 7; 3 H. 7, 5; 40 Assize, 6; 21 H. 7, 33. 
 And by these rules (good reader) you will 
 weU imderstand your books, and the true 
 reason of them; and by that which hath 
 been said it appears, that if the king, by 
 his letters patent, create one a baron, and 
 gives the dignity to him and his heirs, and 
 he hath issue a son and a daughter by one 
 venter, and a son by another, and dies, and 
 
 ABB.WILLS — 8 
 
 afterwards the elder son dies without issue, 
 in this case the dignity shall descend to the 
 younger; for it cannot be said that the 
 elder son was in possession of the dignity, 
 no more than of his blood, for the dignity 
 is inherent to his blood; and neither by his 
 own act, nor by the act of any other, doth 
 he gain more actual possession (if it may be 
 so termed) than by the law descended to 
 him; and then the younger brother shall 
 make himself heir to his father, and not to 
 his brother; so that the word "possessio" 
 which is but pedis positio, extends only to 
 things of which a man by his entry or other 
 act may get the actual possession. 
 
 2nd. Littleton saith, possessio fratris de 
 feodo simplici, and these words, feodum sim- 
 plex, exclude estates tail. 
 
 3d. Fadt sororem haeredem, by which Is 
 implied, that in this case, soror e|t haeres 
 factus, and that the law without other act 
 doth not make the sister heir; but the 
 younger brother is, after the death of the 
 elder brother, haeres natus to his father. 
 But the act by which the elder brother gains 
 actual possession facit sororem haeredem; 
 so that when the elder son hath not actual 
 possession, or if it be such an inheritance of 
 which an actual possession cannot be gained 
 per pedis positionem, or by some other act, 
 it shall by law descend to the brother of 
 the half-blood; and so it was concluded by 
 the plaintiff's counsel, that the father, or 
 mother, or brother of the half-blood, might 
 be next of blood within the purview of the 
 said act; and that in this case it appears 
 by the verdict, that the mother, and not the, 
 other sister, ought to take advantage of this 
 forfeiture; but the court resolved, that the 
 said points on the statute who should be 
 next of blood to enter for the forfeiture, 
 could not come in judgment in this case, 
 because the issue was joined upon a col- 
 lateral point, sell. Whether Elizabeth the- 
 mother had the custody of the said Martha 
 at the time of the said contract; and there- 
 fore all the other matter concerning the for- 
 feiture, and who should take benefit thereof,, 
 was out of the issue; and the finding of the- 
 jury (as to that) was without warrant, and. 
 not material: and for this cause, although,, 
 in truth, the plaintiff, as it here appears, 
 had good right against the defendant, yet 
 forasmuch as the issue was foimd against 
 him, judgment was given that the plaintiff 
 nihil capiat per billam. 
 
 iia 
 
Case No. 2 
 
 JOHNSON V. HAINES. 
 
 (§1 
 
 JOHNSON V. HAINES' Lessee. 
 (4 Dall. 64.) 
 „ ^gjipreme Court of the United States. 1799. 
 
 In error from the supreme court. 
 
 The question arose upon the following 
 facts, which, by agreement, were to be con- 
 sidered as if found by a special verdict: 
 
 "Ejectment for a house and lot in German- 
 town, of which Rebecca Vanaken died seised 
 on the 13th of February, 1797, intestate, and 
 leaving no father, mother, child, grand-child, 
 brother, or sister living. 
 
 "But the intestate had had brothers and 
 sisters, who died under these circumstances: 
 
 "1st. Richard, who died without issue. 
 
 "2d. Catharine, who married Casper Wls- 
 tar, and left issue, Richard, Margaret, Catha- 
 rine, Rebecca, Sarah and Casper: of this 
 family Richard, Margaret and Rebecca are 
 dead; but all of them leaving issue. 
 
 "3d. Anne, who married Lukens, and 
 
 left issue John, Mary, Daniel, Derrick and 
 Rebecca; all of this family died in the life 
 of the intestate, but all of them left issue. 
 
 "4th. John, who died in the life time of 
 the intestate, but left issue Anthony (the 
 plaintiff in error) John, Joseph and Margaret, 
 and Margaret also died in the intestate's life 
 time leaving issue. 
 
 "5th. Margaret, who intermarried with 
 Reuben Haines, and left issue Casper (the 
 lessor of the plaintiff below) Catharine, Jo- 
 siah, and Reuben; Josiah is dead, leaving one 
 son, who is now alive, and Reuben is dead 
 without issue. 
 
 "It was agreed that Margaret, the daugh- 
 ter of Catharine, who was the sister of Re- 
 becca, died in the life time of the intestate. 
 
 "And the questions submitted to the court 
 are, whether the plaintiff in error is entitled 
 to the whole of the premises? And, if he is 
 not, how the premises are to be divided?" 
 
 M'KEAN, C. J. The intestate died, leaving 
 the children of several of her brothers and 
 sisters, and a grand-child of one of her 
 brothers: and it is now made a question, 
 whether her real estate shall be divided 
 among these surviving relations, or descend 
 entirely to her heir at law? 
 
 By the sixth section of the charter grant- 
 114 
 
 ed to William Penn, the laws of England 
 "for regulating and governing of property, 
 as well for the descent and enjoyment of 
 lands, as for the enjoyment and succession 
 of goods and chattels," were introduced and 
 established in Pennsylvania, to continue till 
 they were altered by the legislature of the 
 province. The common law being, therefore, 
 the original guide, and the plaintiff in error 
 being the heir at common law, his title must 
 prevail, unless it shall appear, that an altera- 
 tion in the rule has been made, by some act 
 of the general assembly. 
 
 Now, when the intestate died, there was 
 but one law in existence on the subject, the 
 law of the 19th of April, 1794, and though 
 the sixth section of that law provides for the 
 case of a person dying intestate, leaving, 
 "neither widow nor lawful issue, but leaving 
 a father, brothers, and sisters," it does not 
 provide, nor does any other of the sections 
 provide, for the case of a person dying in- 
 testate, without lavsrtul issue, and leaving no 
 father, or mother, brothers, or sisters. The 
 descent of the real estate, in this specific 
 case, was not, therefore, altered, or regu- 
 lated, by any act of the general assembly, 
 when the estate was vested in the person 
 entitled to take, at the death of the intes- 
 tate. 
 
 It is probable, that if the case had been 
 stated to the legislature, they would have 
 directed the same distribution in the year 
 1794, that they have since done by the act 
 of the year 1797: and, it is urged, that as 
 there is equal reason for making such a dis- 
 tribution, where no father survives, as where 
 a father does survive, the intestate, the court 
 ought, upon the obvious principle and policy 
 of the law, to supply the deficiency. But, 
 it must be remembered, that the system of 
 distributing real estates in cases of intestacy, 
 is an encroachment on the common law; 
 and wherever such an encroachment takes 
 away a right, which would otherwise be vest- 
 ed in the heir at law, the operation of the 
 statute should not be extended fui-ther, than 
 it is carried by the very words of the legis- 
 lature. 
 
 We are, upon the whole, unanimously, of 
 opinion, that the judgment below should be 
 reversed; and that judgment should be given 
 for the plaintiff in error. 
 
§ 1) 
 
 BATES V. BKOWN. 
 
 Case No. 3 
 
 BATES V. BROWN. 
 
 {5 Wall. 710.) 
 
 Supreme Court of the United States. Dec, 
 1866. 
 
 This was a writ of error to the circuit court 
 for the northern district of Illinois. 
 
 Kinzie Bates, the plaintiff in error, brought 
 an action of ejectment in that court against 
 Brown, the defendant in error, to recover 
 •certain premises. The cause was submitted 
 upon an agreed statement of facts, which, 
 so far as it was necessary to consider them, 
 ■were as follows: 
 
 1. On the 29th of September, 1830, Alex- 
 ander Wolcott bought of the state of Illinois 
 •certain lands, of whicJi those in controversy 
 were a part. At the- time of the transaction 
 he paid the purchase-money, and received 
 the usual certificate. 
 
 2. He died on the 30th of October, 1830, 
 leaving a daughter, Mary Ann Wolcott, his 
 only child, and his wife, Eleanor, him sur- 
 viving. He left a will, duly executed, which 
 contained the following provision: "I further 
 give and devise to my said wife, Eleanor M. 
 Wolcott, and my said daughter, all my free- 
 hold estate whatsoever, to hold to them, the 
 said Eleanor M. Wolcott and Mary Ann Wol- 
 ■cott, their heirs and assigns forever." 
 
 3. Mary Ann Wolcott, the daughter, died 
 •on the 16th of January, 1832, aged seven 
 years, intestate and without issue. 
 
 4. On the 13th of May, 1833, Eleanor M. 
 Wolcott conveyed to David Hunter, his heirs 
 and assigns, with a covenant of general war- 
 ranty, the premises in controversy. 
 
 5. On the 5th of July, 1833, a patent was 
 issued by the governor of Illinois for the 
 land purchased by Alexander Wolcott, as 
 before stated, to his "legal representatives, 
 heirs, and assigns." 
 
 6. Eleanor M. Wolcott, his widow, married 
 XJeorge 0. Bates on the 26th of May, 1836. 
 
 7. The plaintiff, Kinzie Bates, was the is- 
 sue of that marriage, and was born on the 
 13th of April, 1838, and was the only child 
 of his parents. 
 
 8. His mother died on the 1st of August, 
 1849, leaving her husband, George 0. Bates, 
 then and still surviving. 
 
 The plaintiif claimed title as the heir at 
 law of his deceased half sister, Mary Ann 
 Wolcott, under the rule of the common law, 
 generally known as that of "shifting inher- 
 itance;" maintaining that although at the 
 time of the decease the mother was the pre- 
 sumptive heir of the said Mary Ann, yet 
 that by his own birth a nearer heir was cre- 
 ated, and that the estate thus placed in the 
 mother was divested from her, and vested in 
 him, the son. 
 
 To understand the matter fully it may 
 be well to state that the congressional or- 
 dinance of 1787 for the government of the 
 Northwestern Territory, of which Illinois 
 was originally part, created a court which 
 it declared should have "common law juris- 
 
 diction;" and the ordinance guaranteed also 
 to the people of the territory "judicial pro- 
 ceedings, according to the course of the 
 common law." This ordinance declared that 
 the estates of persons dying intestate "shall 
 descend to and be distributed among their 
 children, and the descendants of a deceased 
 child, in equal parts; the descendants of a 
 deceased child or grandchild to take the 
 share of their deceased parent in equal parts 
 among them; and when there shall be no 
 children or descendants, then in equal parts 
 to the next of kin, in equal degree; and 
 among collaterals the children of a deceased 
 brother or sister of the intestate shall have, 
 in equal parts among them, their deceased 
 parent's share; and there shall in no case 
 be a distinction between kindred of the 
 whole and half blood." 
 
 . In 1819, after Illinois had become a state, a 
 statute adopted "the common law of Eng- 
 land" in general terms; and in 1845 another 
 statute declared that the common law of 
 England, "so far as the same is applicable 
 and of a general nature, shall be the rule of 
 decision, and shall be considered as in full 
 force until repealed by legislative authority." 
 
 At the time of the decease of Mary Ann 
 Wolcott, the statute of Illinois governing the 
 descent of the real estate of persons dying 
 intestate was as follows: "Estates, both real 
 and personal, of resident or non-resident 
 proprietors in .this state, dying intestate, or 
 whose estates, or any part thereof, shall be 
 deemed and taken as intestate estate, and 
 after all just debts and claims against such 
 estate shall be paid as aforesaid, shall de- 
 scend to and be distributed to his or her 
 children, and their descendants, in equal 
 parts; the descendants of a deceased child, 
 or grandchild, taking the share of their de- 
 ceased parent in equal parts among them; 
 and when there shall be no children of the 
 intestate, nor descendants of such children, 
 and no widow, then to the parents, brothers, 
 and sisters of the deceased person, and their 
 descendants, in equal parts among them, al- 
 lowing to each of the parents, if living, a 
 child's part, or to the survivor of them, if 
 one be dead, a double portion, and If there 
 be no parent living, then to the brothers and 
 sisters of the intestate and their descendants; 
 when there shall be a widow, and no child 
 or children, or descendants of a child or chil- 
 dren of the intestate, then the one-half of 
 the real estate, and the whole of the per- 
 sonal estate, shall go to such widow as her 
 exclusive estate forever, subject to her en- 
 tire and absolute disposition and control, to 
 be governed in aU respects by the same rules 
 and regulations as are, or may be, provided 
 in cases of estates of femes sole; if there be 
 no children of the intestate, or descendants 
 of such children, and no parents, brothers, 
 or sisters, or descendants of brothers and 
 sisters, and no widow, then such estate shall 
 descend in equal parts to the next of kin 
 to the intestate, in equal degree, computing 
 
 115 
 
Case No. 3 
 
 BATES V. BROWN. 
 
 (§1 
 
 by the rules of the civil law; and there shall 
 be no representation among coUaterals, ex- 
 cept with the descendants of the brothers 
 and sisters of the intestate; and in no case 
 shall there be a distinction between "the liin- 
 dred of the whole and half blood, saving to 
 the widow, in all cases, her dower of one- 
 third part of the real for life, and the one- 
 third part of the personal estate forever." 
 
 The court below gave judgment for the de- 
 fendant. 
 
 Mr. Beckwith, for Bates, plaintiff In error. 
 ~J^r. FuUer, contra. 
 
 Mr. Justice SWAYNB delivered the opin- 
 ion of the court, having first stated the case, 
 and quoted the statute relating to descents 
 just above set out. 
 
 Mary Ann Wolcott, from whom the plain- 
 tiff in error claims to have derived his title 
 by inheritance, died nearly four years before 
 his birth. During aU the intervening time 
 It is not denied that the title was vested in 
 his mother and her grantee. Such was the 
 effect of the statute. It is clear in its lan- 
 guage, and there is no room for controversy 
 upon the subject. Although born after the 
 title became thus vested, he insists that upon 
 his birth it became, to the extent of his claim, 
 divested from the grantee and vested in him. 
 His later birth and relationship to the propos- 
 itus, he contends, is to be foEowed by the 
 same results as if he had been living at the 
 time of her death. 
 
 It is alleged that the rule of "shifting in- 
 heritances," in the English law of descent, 
 is in force in Illinois, and must govern the de- 
 cision of this case. 
 
 The operation of this rule is thus tersely 
 Illustrated in a note by Chitty, in his Black- 
 stone: "As if an estate is given to an only 
 child, who dies, it may descend to an aunt, 
 who may be stripped of it by an after-born 
 uncle, on whom a subsequent sister of the 
 deceased may enter, and who will again be 
 deprived of the estate by the birth of a broth- 
 er. It seems to be determined that every 
 one has a right to retain the rents and prof- 
 its which accrued while he was thus legally 
 possessed of the inheritance. Harg. Co. Litt. 
 11; Goodtitle v. Newman, 3 Wils. 526."^ 
 
 Such is, undoubtedly the common law of 
 England.'' 
 
 It is said the ordinance of 1787, which em- 
 braced the territory now constituting the 
 state of Illinois, and the acts of the legis- 
 lature of that state of the 4th of February, 
 1819, and of the 3d of March, 1845, are to be 
 considered in this connection. 
 
 The ordinance created a court which it de- 
 clared "shall have common law jurisdiction," 
 and it guaranteed to the people of the ter- 
 ritory "judicial proceedings according to the 
 course of the common law." There is no 
 allusion in it to the common law but these. 
 
 ' 2 Christ. Bl. Comm. 208, note 9. 
 
 »Watk. Dea. 169. , 
 
 116 
 
 The two acts of the legislature contain sub- 
 stantially the same provisions. What is ex- 
 pressed in the second act, and not in tne 
 first, is clearly Implied in the former. The 
 latter declared that "the common law of Eng- 
 land, so far as the same is applicable and of 
 a general nature," . . • "shall be the rule 
 of decision, and shall be considered as in 
 full force until repealed by legislative au- 
 thority." ' Mary Ann Wolcott died, and the 
 plaintiff in error was bom before this act 
 became a law, but it may be properly re- 
 ferred to as containing an exposition of the 
 legislative intent in the prior act. Although 
 the former act adopts "the common law of 
 England" in general terms, it was undoubted- 
 ly intended to produce that result only so far 
 as that law was "applicable and of a general 
 nature." 
 
 By the common law, actual seizin, or seizin 
 in deed, is indispensable to the inheritable 
 quality of esfaites. If the ancestor were not 
 seized, however clear his right of property, 
 the heir cannot inherit. 
 
 According to the canons of descent, here- 
 ditaments descend lineally, but can never as- 
 cend. This rule is applied so rigidly that it 
 is said "the estate shall rather escheat than 
 violate the laws of gravitation." 
 
 The male issue is admitted before the fe- 
 male. When there are two or more males, 
 the eldest only shall inherit, but females 
 altogether. 
 
 Lineal descendants, in infinitum, represent 
 their ancestors, standing in the same place 
 the ancestor would have stood, if living. 
 
 On failure of lineal descendants of the an- 
 cestor, the inheritance descends to his col- 
 lateral relations — ^being of the blood of the 
 first purchaser— subject to the three preced- 
 ing rules. 
 
 The collateral heir of the intestate must be 
 his collateral kinsman of the whole blood. 
 
 In collateral inheritances, the male stock is 
 preferred to the female. Kindred of the 
 blood of the male ancestor, however remote, 
 are admitted before those of the blood of the 
 female, however near, unless where the lands 
 have, in fact, descended from a female.* 
 
 These principles sprang from the martial 
 genius of the feudal system. When that sys- 
 tem lost its vigor, and in effect passed away, 
 they were sustained and cherished by the 
 spirit which controlled the civU polity of the 
 kingdom. The celebrated statute of 12 Oar. 
 II. c. 24, which Blackstone pronounces a 
 greater acquisition to private property than 
 Magna^ Charta, was followed by no change in 
 the canons of descent. The dominant princi- 
 ples in the British constitution have £i],ways 
 been monarchical and aristocratic. These 
 canons tend to prevent the diffusion of land- 
 ed property, and to promote its accumidation 
 in the hands of the few. They thus conserve 
 the splendor of the nobility and the influence 
 
 » Rev. St. 111. 1845, p. 337. 
 *Watk. Des. 95. 
 
§1) 
 
 BATES V. BEOWN. 
 
 Case No. 3 
 
 of the leading families, and rank and wealth 
 are the bulwarks of the throne. The mon- 
 arch and the aristocracy give to each other 
 reciprocal support. Power is ever eager to 
 enlarge and perpetuate itself, and the priv- 
 ileged classes cling to these rules of. descent 
 with a tenacity characteristic of their im- 
 portance — as means to the end they are in- 
 tended to help to subserve. 
 
 Before the Revolution, some of the colonies 
 had passed laws regulating the descent of 
 real property upon principles essentially dif- 
 ferent from those of the common law. In 
 most of them the common law subsisted until 
 after the dose of the Revolution and the re- 
 turn of peace. It prevailed in Virginia until 
 the act of her legislature of 1785 tooli effect, 
 and it was, perhaps, the law upon this sub- 
 ject in "the Northwestern Territory," at the 
 time of its cession in 1784 by Virginia to the 
 United States. With the close of the Revo- 
 lution came a new state of things. There 
 was no monarch, and no privileged class. 
 The equality of the legal rights of every citi- 
 zen was a maxim universally recognized and 
 acted upon as fundamental. The spirit from 
 which it proceeded has founded and shaped 
 our institutions, state and national, and has 
 impressed itself upon the entire jurispru- 
 dence of the country. One of its most strik- 
 ing manifestations is to be found in the leg- 
 islation of the states upon the subject under 
 consideration. Of the results an eminent 
 writer thus speaks: "In the United States 
 the English common law of descents, in its 
 most essential features, has been universal- 
 ly rejected, and each state has established a 
 law of descents for itself." ° 
 
 Another writer, no less eminent, upon this 
 topic says: "In the law of descents there is 
 an almost total change of the common law. 
 It is radicaily new in each state, bearing no 
 resemblance to the common law in most of 
 the states, and having great and essential 
 differences in all."° 
 
 So far as British law was taken as the 
 basis of this legislation, in the different 
 States, it was the statutes of Charles II. and 
 James II. respecting the distribution of per- 
 sonal property, and not the canons of de- 
 scent of the common law. The two systems 
 are radically different in their principles. 
 
 The ordinance of 1787 contains a complete 
 series of provisions upon the subject. They 
 are the type and reflex of the action of many 
 of the states at that time. The ordinance de- 
 clared that the estates of persons dying in- 
 testate "shall descend to and be distributed 
 among their children, and the descendants 
 of a deceased child, in equal parts; the de- 
 scendants of a deceased child or grandchild 
 to take the share of their deceased parent In 
 equal parts among them; and when there 
 shall be no children or descendants, then in 
 equal parts to the next of kin, in equal de- 
 
 ' 4 Kent, Comm. 412s 
 • Reeve, Des. 11. 
 
 gi'ee; and among collaterals the children of 
 a deceased brother or sister of the intestate 
 shall have, in equal parts among them, their 
 deceased parent's share; and there shall in 
 no case be a distinction between kindred of 
 the whole and half blood." 
 
 We find here not a trace of the common 
 law. These provisions are diametrically op- 
 posed to all its leading maxims. We cannot 
 infer from their silence that anything not 
 expressed was intended to be adopted from 
 that source by implication or construction. 
 
 The statute governing the descent of real 
 estate, already referred to, is also a com- 
 plete code upon the subject of which it 
 treats. It is to be presumed to cover every 
 case for which the legislature deemed it 
 proper to provide. If the same question had 
 come before us under the ordinance, we 
 should have said with reference to the com- 
 mon law, conflict is abrogation and silence 
 is exclusion. The spirit and alms of the 
 two systems are wholly different. One seeks 
 to promote accumulation— the other diffusion. 
 One recognizes and cherishes the exclusive 
 claim of the eldest son — the other the equal 
 rights of all his brothers and sisters. The 
 latter makes no distinction on account of age, 
 sex, or half blood. We apply to the statute 
 also the remark that silence is exclusion. It 
 speaks in the present tense— of the state of 
 things existing at the time of the death of 
 the intestate, and not of any change or dif- 
 ferent state of things which might occur 
 thereafter. If the legislature had designed 
 to provide for this case, according to the rule 
 insisted upon, we cannot doubt that they 
 would have said so in express terms. The 
 statute bears no marks of haste or inatten- 
 tion. We cannot believe it was Intended to 
 leave a rule of the common law so well 
 known, and so important, to be deduced and 
 estabhshed only by the doubtful results of 
 discussion and inference. The draughtsman 
 of the bill could not have overlooked it, and 
 the sUence of the statute is fuU of meaning. 
 
 One class of posthumous children are pro- 
 vided for. We see no reason to believe that 
 another was intended to be included, espe- 
 cially when the principle involved is so im- 
 portant. The Intention of the legislature con- 
 stitutes the law. That intention Is manifest- 
 ed alike by what they have said and by what 
 they have omitted to say. Their language is 
 our guide to their meaning, and under the 
 circumstances we can recognize none other. 
 We canjQot go farther than they have gone. 
 The plaintiff in error asks us. In effect, to 
 interpolate Into the statute a provision which 
 it does not contain. Were we to do so, we 
 should assume the function of the legisla- 
 ture and forget that of the court. The Umit 
 of the law is the boundary of our authority, 
 and we may not pass it. 
 
 The principle contended for was applied in 
 the case of Dunn v. Evans.' The case is 
 
 ' 7 Ohio, 169. 
 
 117 
 
Case Xo. 3 
 
 BATES V. BROWN. 
 
 (§ 1 
 
 briefly reported, and no arguments of coun- 
 sel appear. It was also adopted in North 
 Carolina, in Cutlar v. Cutlar,' and in Cald- 
 well V. Black." No recognition of it is to be 
 found, it Is believed, in any other American 
 adjudication. 
 
 The subject was elaborately examined by 
 the supreme court of Ohio in Drake v. Rog- 
 ers,^" and Dunn v. Evans was overruled. It 
 came before the supreme court of Indiana in 
 Cox V. Matthews," and received there also 
 a thorough examination. The result was the 
 same as in the last case in Ohio. • The doc- 
 trine was repudiated. 
 
 The court said: "Under the laws of this 
 state it is contemplated that such change 
 of title from one living person to another is 
 to be made by deed duly executed, rather 
 than by our statutes of descent . . . The 
 feudal policy of tying up estates in the hands 
 of a landed aristocracy, which had much to 
 do with the shifting of descents as recogniz- 
 ed by the English canons of descent, is con- 
 trary to the spirit of our laws and the genius 
 of our institutions. It has been the policy, 
 in this state, and in this country generally, 
 not only to let estates descend to heirs equal- 
 ly, without reference to sex or primogeni- 
 ture, but also to maie titles secure and safe 
 to those who may purchase from beirs upon 
 whom the descent may be cast. Our laws 
 have defined and determined who shall in- 
 herit estates upon the death of a person 
 seized of lands. When those thus Inheriting 
 
 '2 Hawks, 324. 
 •5 Ired. 463. 
 1° 13 Ohio St. 21. 
 " IT Ind. 367. 
 118 
 
 make conveyances, the purchasers have a 
 right to rely upon the title thus acquired. If 
 titles thus acquired could be defeated by the 
 birth of nearer heirs, perhaps years after- 
 wards, great injustice might, in many cases, 
 be done, and utter confusion and uncertain- 
 ty would prevail in reference to titles thus 
 acquired. We are of opinion that the doc- 
 trine of shifting descents does not prevail 
 under our laws, any more than the other 
 English rule, that kinsmen of the whole 
 blood, only, can inherit." 
 
 The rule is sanctioned by no American 
 writer upon the law of descents. Judge 
 Reeve,'^ speaking of distributees, says: "I 
 am of opinion that such posthumous children 
 who were born at the time of the distribu- 
 tion were entitled, and none others." 
 
 It is to be regretted that we have not the- 
 benefit of an adjudication by the supreme 
 court of Illinois upon the subject. 
 
 Their interpretation— the statute being a 
 local one— would of course be followed in 
 this court We have, however, no doubt of 
 the soundness of the conclusion we have 
 reached. 
 
 We find no error in the record, and th^ 
 judgment of the circuit court is affirmed. 
 
 NOTE. See, also, Gardner v. Collins, (1824,> 
 2 Pet. 58, as to descent of remainders and re- 
 versions and Davis v. Rowe, (1828,) 6 Rand. 
 (Va.) 355, for analogies between the English 
 statutes of distribution and American statutes 
 of descent. 
 
 In the United States, real estate of an intes- 
 tate will descend by common law rules, except 
 where specifically changed by statute. John- 
 son V. Haines. (1799,) 4 Dall. 64, ante; Bar- 
 nitz V. Casey, (1813,) 7 Cranch, 456. 
 
 "Reeve, Des. p. 74, Int. 
 
§2) 
 
 DOE 0. CLAEKE. 
 
 Case No. 4 
 
 DOE on the Demise of CLARKE v. CLARKE 
 6t al. 
 
 (2 H. Bl. 399.) 
 
 Common Pleas. Feb. 9, 1795. 
 
 This ejectment, brought to recover one un- 
 divided fourth part of two rectories im- 
 propriate, with the parsonages of the 
 churches of Tunstead and Soo Ruston, in 
 the parishes of Tunstead and Sco Ruston 
 in the county of Norfolk, and also one un- 
 divided fourth part of certain lands, &c. in 
 the said parishes, and of the advowson of 
 the vicarage of Tunstead and Sco Ruston, 
 was tried at the summer assizes 1793 for the 
 county of Norfolk, before the lord chief 
 justice of this court, when a verdict was 
 found for the plain tifC, subject to the opin- 
 ion of the court on the following case, viz. 
 William Pearce Clarke being seised in fee 
 of the rectories, &c. in the declaration men- 
 tioned, by his will dated the 27th of Febru- 
 ary 1782 devised amongst other things "all 
 that his rectory or rectories impropriate, par- 
 sonage or parsonages of the church and 
 churches of Tunstead, and Sco Ruston in 
 the county of Norfolk, and all tithes, tenths, 
 oblations, obventions, profits, emoluments, 
 and commodities whatsoever to the same 
 
 I belonging or appertaining, and also all his 
 messuages, buildings, glebe lands, tenements, 
 and hereditaments, whatsoever, to the said 
 rectory or rectories belonging or appertaining, 
 with their and every of their appurtenances, 
 and also all that his advowson, donation, right 
 of patronage, and presentation of the vicarage 
 of the church and chmrches of Tunstead and 
 Sco Ruston, with the rights, members and 
 appurtenances thereunto belonging, to his 
 brother Henry Clarke, and his assigns, for 
 and during the term of his natural life, and 
 from and after the decease of his said 
 brother Henry Clarke, to the use and behoof 
 of all and every such child or children, 
 whether male or female, of his said brother 
 Henry Clarke, as should be living at the time 
 of his decease, (other than and except Bridg- 
 et his the testator's niece,) as tenants in com- 
 mon, and not as joint-tenants, and of the 
 several and respective heirs and assigns of 
 such child or children for ever." The tes- 
 tator WiUiam Pearce Clarke died on the 
 first of May 1782 without altering or re- 
 voking his will, leaving his said brother 
 
 • Henry Clarke surviving, who died on the 21st 
 of October 1782, leaving Elizabeth Clarke 
 his widow, Bridget his daughter by his first 
 wife, and Elizabeth, Mary, and Judith, his 
 three daughters by the said Elizabeth his 
 second wife, which said three daughters are 
 the above named defendants; and also leav- 
 ing his said wife Ehzabeth pregnant at the 
 time of his death, who was delivered of a 
 
 daughter Harriet Clarke on the 23d of May 
 1783; which said Harriet Clarke was the 
 lessor of the plaintiff; and was actually 
 ousted by the defendants before the action 
 was brought. 
 
 Le Blanc, Serjt. on behalf of the lessor of 
 the plaintiff. 
 Bond, Serjt. on the part of the defendants. 
 
 Lord BYRE, C. J. I have no doubt on any 
 view of this case. It is plain on the words 
 of the will, that the testator meant that all 
 the children whom his brother should leave 
 behind him should be benefited: but inde- 
 pendent of this intention, I hold that an in- 
 fant en ventre sa mere, who by the course 
 and order of nature is then living, comes 
 clearly within the description of "children 
 living at the time of his decease." 
 
 BULLER, J. In equity there are two 
 classes of cases on this subject, the first, 
 where the bequest is in the nature of a por- 
 tion or provision for children, and there 
 an after-born child takes his share with the 
 rest, of which class is the case of Millar v. 
 Turner, 1 Ves. Sr. 85: the second, where the 
 bequest arises from some motives of personal 
 affection, and there it is confined to chil- 
 dren actually in existence. Of this second 
 class was the case of Cooper v. Forbes, 2 
 Brown, Ch. 63, which therefore makes a 
 striking difference between that case and 
 the present. Here the bequest is not con- 
 fined to children living at the death of the 
 testator, but is kept open till the death of 
 his brother. It seems indeed now settled, 
 that an infant en ventre sa mere shall be 
 considered, generally speaking, as born for all 
 purposes for his own benefit, Lancashire v. 
 Lancashire, 5 Term R. 49. And in a sensible 
 treatise lately published, (Watk. Des. 142,) aft- 
 er a discussion of the interests of posthumous 
 issue, the whole is summed up by saying, 
 "It is now laid down as a fixed principle, 
 that wherever such consideration would be 
 for his benefit, a child en ventre sa mere 
 shall be considered as absolutely born." 
 
 HEATH, J. of the same opinion. ROOKE, 
 J. of the same opinion. 
 
 Lord EYRE, C. J. The two classes of cases 
 in equity proceed on a distinction which has 
 always appeared to me extremely unsatis- 
 factory, and unfit to be the ground of any 
 decision whatever. 
 
 Postea to the plaintiff. 
 
 NOTE. Between the death of the intestate 
 and birth of the posthumous heir the land de- 
 scends to the heir in esse, and entry by such 
 heir entitles him to profits before birth of the 
 posthumous heir. Goodtitle v. Newman, (1774,) 
 3 Wils. 516. 
 
 119 
 
Case No. 5 
 
 EMEBSON V. mCHBIKD. 
 
 (§3 
 
 EMERSON V. INCHBIRD. 
 (1 Ld. Raym. 728.) 
 
 King's Bench, Trinity Term. 13 Wm. III. 
 
 In debt upon bond brought against the de- 
 fendant as heir to his father, &c. riens per 
 discent pleaded, the plaintiff replied assets, 
 and issue thereupon. And the evidence was, 
 that the obligor, the defendant's father, de- 
 vised to the defendant his son and heir cer- 
 tain messuages in Exchequer Alley in fee, 
 but chargeable with an annuity or rent 
 
 120 
 
 charge payable to the defendant's mother. 
 And It was held by Holt, chief justice, that 
 these messuages descended to the defendant, 
 and were assets. For (by him) the differ- 
 ence is, where the devise makes an alter- 
 ation of the limitation of the estate, from 
 that which the law would make by descent; 
 and where the devise conveys the same es- 
 tate, as the law would make by descent, but 
 charges it with incumbrances. In the for- 
 mer case the heir takes by purchase, in the 
 latter by descent. 
 
3) 
 
 ALLEN V. HEBER. 
 
 Case No. 6 
 
 ALLEN V. HEBER. 
 (1 W. Bl. 22; 2 Strange, 1270.) 
 King's Bench, Trinity Term. 21 Geo. II. 
 PER CURIAM. If the tenure or quality of 
 the estate be altered, the heir is a purchaser; 
 but a charge on the estate does not alter the 
 manner of the heir's tailing the land. A de- 
 vise is void; where It gives the same as 
 
 would be taken by descent. 
 Inchbird, 1 Ld. Raym. 728. 
 Judgment for the plaintiff. 
 
 Emerson v. 
 
 NOTE. See Biedler v. Biedler. 87 Va. 300, 
 12 S. E. 753; Barnitz v. Casey, 7 Oranch, 456. 
 
 The heir will take by descent rather than by 
 purchase, although it would he more beneficial 
 to him to take by purchase. Hedger v. Rowe, 
 3 Lev. 127. 
 
 121 
 
Case No. 7 
 
 HURST V. EARL OF WINCHEI^EA. 
 
 (§* 
 
 HUEST V. EARL OF WINCHELSEA. 
 
 (1 W. Bl. 187.) 
 
 King's Bench. 1759. 
 
 This was a case stated from chancery for 
 the opinion of the court of iiing's bench, and 
 appeared to be this,— Thomas Herbert, by 
 will duly executed, devised to his wife Eliza- 
 beth aU his lands, &c. in fee-simple.— Eliza- 
 beth (on his death) man-ied a second hus- 
 band; but, previous to such second marriage, 
 settled the said estates to use of herself for 
 life; then to Thomas Herbert, her own son 
 by the first marriage, for his life, and so on 
 to his issue in strict settlement; then in re- 
 mainder to such person or persons as she 
 should by deed or will, notwithstanding any 
 coverture, appoint. After the second mar- 
 riage she made a will, whfrein she devised 
 all her estate to said Thomas Herbert (charged 
 with several pecuniary legacies), and died, 
 living her second husband. Afterwards, 
 122 
 
 Thomas Herbert died, sans issue and Intes- 
 tate. And the question was, Whether this- 
 estate should descend to his heir, ex parte 
 paterna or materna? or whether the remain- 
 der in fee vested in him by descent from 
 Elizabeth his mother, in which case it would 
 go to the maternal heir; or whether it vested 
 by the devise, operating as an appointment 
 under the settlement, in which case, Thomas 
 Herbert wotild be a purchaser, and the lands 
 would descend to the paternal heir. 
 
 THE COURT, after hearing two arguments, 
 declared they should certify that it descend- 
 ed to the maternal heir of Thomas Herbert;, 
 it being a known rule, that a common devise 
 in fee-simple to an heir-at-law, gives him no 
 estate at all, he being adjudged in by descent; 
 and it having also been determined in the 
 Case of the Duke of Marlborough and Lord 
 Godolphin, in chaaicery, (2 Ves. Sr. 61, 73,> 
 that an appointment by ynll is subject to the 
 same rules as a common devise. 
 
§4) 
 
 WAGNER V. VARNER. 
 
 Case No. .8- 
 
 WAGNER V. VARNER. 
 
 (50 Iowa, 532.) 
 
 Supreme Court of Iowa. April 22, 1879. 
 
 Appeal from Van Buren circuit court 
 
 G. W. Ringer and Worli & Brown, for ap- 
 pellant. Lea & Beaman, for appellee. 
 
 SEEVERS, J. It is provided by statute 
 that the "consent of both parents, if living, 
 and not divorced or separated, and If di- 
 vorced or separated, or if unmarried, the 
 consent of the parent lawfully having the 
 care and providing for the wants of the ctiild; 
 or if either parent is dead then the consent 
 of the survivor; or if both parents be dead, 
 or the child shall have been and remains 
 abandoned by them," the consent of certain- 
 named officers, is necessary before the child 
 can be legally adopted. Code, § 2308. 
 
 When thus adopted "the rights, duties and 
 relations between the parent and child by 
 adoption shall, thereafter, in all respects, in- 
 cluding the right of inheritance, be the same 
 that exist by law between parent and child 
 by lawful birth." Code, § 2310. 
 
 In the absence of a will the estate descends 
 in equal shares to the children of the de- 
 ceased. Code, § 2458. If one of the chil- 
 dren of the deceased "be dead, the heirs of 
 such child shall Inherit his share * * * jjj 
 the same manner as though such child had 
 outlived his parents." Code, § 2454. 
 
 Under section 2310 the wards of the plain- 
 tiff inherit as the children by adoption of 
 John Burner, and if Mahala Boyer had out- 
 lived him she would have inherited as the 
 natural child of said Burner, under section 
 2453 And section 2454 expressly provides that 
 her children shall inherit in the same man- 
 ner as though she had outlived her father. 
 
 There is no escape from this conclusion 
 unless It can be said that the child by the 
 adoption is disinherited by its natural parent. 
 
 Because of the adoption the chUd acquires 
 certain additional rights, but there is noth- 
 ing in the act of adoption which in and of 
 itself takes away other existing rights, or 
 such as may subsequently accrue, except 
 as is by statute provided. 
 
 The argument that these children cannot 
 inherit through their mother leads to this 
 result. Suppose their father after her death 
 consented to their adoption, they could not 
 inherit through their mother or from their 
 father, or through him from a remote an- 
 cestor. 
 
 By the act of adoption these children be- 
 came in a legal sense the children of JohQ 
 Bumer. Nevertheless they are the children 
 of their natural parents, and the act of adop- 
 tion does not deprive them of the statutory 
 right of inheriting from their natural par- 
 ents, imless there is a statute which in terms 
 so provides. Not only is there no such stat- 
 ute, but we think tie contrary is expressly 
 provided. 
 
 If, therefore, a child Is adopted by a stran- 
 ger it will inherit from its natural parents, 
 in the absence of a will, because section 2453 
 of the Code in express terms so provides. 
 
 So far we have gone on the supposition 
 that the parents have consented to the adop- 
 tion. But, as we have seen, such consent 
 in certain contingencies may be given by 
 other persons. Can it be that in such case 
 the child is disinherited by the natural 
 parent without the consent of the latter, in 
 view of the foregoing statutory provisions? 
 
 It is said that a child has no natural right 
 to the estate of a deceased parent Such 
 thought, however, has but little significance 
 in this connection, for the reason that the 
 statutory right is perfect and ample. Nor 
 is the argument that these two children in- 
 herit from two sources, and thus get more 
 than their proper share, entitled to much 
 weight The reply would seem to be per- 
 tinent here that heirship is not a natural 
 but a statutory right, arbitrary and general, 
 and, therefore, exceptional cases of apparent 
 hardship or inequality must occasionally oc- 
 cur. 
 
 When these children were adopted by John 
 Bumer the effect was to increase, in a legal 
 sense, the number of his children and heirs, 
 and if he died without a will the shares of 
 his natural children were thereby decreased. 
 This was the only effect of the act so far 
 as the right of inheritance was concerned. 
 The rights of his natural children, including 
 Mahala Boyer, in all other respects remained 
 just as they were before. The result is that 
 the judgment of the circuit court must be 
 
 Reversed. 
 
 NOTE. A child adopted by the husband 
 does not thereby become heir of the wife. 
 Sharlsey v. McDermott, 16 Mo. App. 80; Id., 
 91 Mo. 647, 4 S. W. 107; 1 Woemer. Adm'n, 
 § 69, where the subject of adoption is discussed. 
 Tlie right to inherit from an adopted child is 
 not usually given to the adopting parent. 
 
 For rights of illegitimate child as heir, see 
 Birtwhistle v. Vardill, 7 Clark & F. 895, 
 (1839.) 
 
 123 
 
Case No. 9 
 
 GREEN V. KING. 
 
 (§5 
 
 •GREEN on the Demise of CREW v. KING. 
 
 (2 W. Bl. 1211.) 
 
 Common Pleas, Trinity Term. 18 Geo. III. 
 
 Mr. Hill, for plaintiff. Mr. Grose, for de- 
 fendant. 
 
 Ejectment In Middlesex, tried before De 
 Grey, C. J. 
 
 Verdict for the plaintifC, subject to this 
 special case. 
 
 BLACKSTONE, J. The transaction of 
 1734 being a purchase for valuable consid- 
 eration, there is no ground to surmise that 
 any estate or interest was left in the ven- 
 dor; and Indeed he has conveyed, by the 
 words of his surrender, as complete a fee 
 simple "to John and Elizabeth, and their 
 right heirs for ever," as words can possibly 
 create. I entirely agree with [the] lord chief 
 justice as to the law of this case, which, 
 though ancient, has been recognized in Pure- 
 foy V. Rogers, 2 Lev. 39. And Back v. An- 
 drew, 2 Vern. 120, is a case directly in point, 
 and upon a copy hold surrender also. This 
 estate differs from joint-tenancy, because 
 joint-tenants take by moieties, and are each 
 seised of an undivided moiety of the whole, 
 per my et per tout, which draws after it the 
 incident of survivorship, or jus accrescendi, 
 unless either party chooses in his life-time to 
 sever the jointure. But husband and wife 
 124 
 
 being considered in law as one person, they 
 cannot, during the coverture, take separate 
 estates; and therefore, upon a purchase 
 made by them both, they cannot be seised 
 by moieties, but both and each has the en- 
 tirety. They are seised per tout, and not per 
 my. The husband therefore cannot alien or 
 devise that estate, the whole of which be- 
 longs to his wife, as well, as himself. But 
 had they been joint-tenants while sole, and 
 afterwards intermarried, they still would re- 
 main seised of their respective moieties, and 
 the husband might sever the jointure, and 
 alien his own moiety; Brooke, Abr. "Cui in 
 Vita," 8. This is on supposition that the 
 sm-render of 1734 operated as a grant of an 
 Immediate estate to both John and Elizabeth 
 in fee; which I hold to be its true operation. 
 But even supposing it a grant to the hus- 
 band and wife for their lives, with a con- 
 tingent remainder to the survivor in fee, the 
 effect would be just the same. For both be- 
 ing seised of the entirety for their joint lives, 
 the husband could not by any alienation de- 
 stroy the particular estate, so as to bar the 
 contingent remainder; and then, upon his 
 death, she (as smrvivor) became immediately 
 seised in her own right of the remainder in 
 fee-simple. So that, quacunque via data, her 
 devisee must recover. 
 
 NARES, J., of the same opinion. 
 
 Postea to the plaintiff. 
 
§6) 
 
 WILCOX 0. WILCOX. 
 
 Case No. 10 
 
 WILCOX et al. v. WILCOX et al. 
 
 (13 Allen, 252.) 
 
 Supreme Judicial Court of Massachusetts. 
 Bristol. Oct. Term, 1866. 
 
 J. O. Stone, (W. W. Crape, with him,) for 
 defendants. E. C. Pitman, contra. 
 
 WELLS, J. By this bill the executors of 
 the will of Philip Wilcox require the several 
 parties interested under the wiU to inter- 
 plead for the adjustment of their respective 
 rights. 
 
 The testator gives to his wife, Keziah Wil- 
 cox, "as her dower, the same part and por- 
 tion of my estate that she would by law re- 
 ceive as her dower, provided I had not made 
 a wUl." He then gives several pecuniary 
 legacies to his wife and children, and one 
 to be held in trust for minor grandchildren. 
 In regard to the last, he directs his executors 
 "to sell, as soon as may be without sacri- 
 fice, sufficient of my personal estate to raise" 
 the requisite sum to be placed In the hands 
 of the trustees named for the purpose. By 
 a residuary clause he gives "all the rest and 
 residue of the estate, both personal and real, 
 that I shall possess or own at the time of 
 my decease" to three sons equally. Directly 
 after the residuary clause is the following: 
 "AU my debts and the legacies herein named, 
 I direct and order my said executors to pay 
 out of my personal estate and from the pro- 
 ceeds thereof." 
 
 In the view which the court take of the 
 case, the distinction, somewhat relied on in 
 the argument, between the legacies given by 
 the codicil and those in the wUl, becomes tm- 
 Important. 
 
 The legacies exceeded the amount of the 
 separate personal estate of the testator; but, 
 including his interest in the firm of Wilcox 
 & Richmond, of which firm he was an equal 
 partner, there was more than sufficient per- 
 sonal property to pay all debts and legacies. 
 After the decease of the testator, a large 
 part of the personal effects of Wilcox & 
 Richmond was destroyed by fire. This oc- 
 currence has caused a deficiency of personal 
 property for payment of the legacies, al- 
 though the personal effects of Wilcox & 
 Richmond are still sufficient to pay all co- 
 partnership debts, and adjust the copartner- 
 ship balances, "without disturbing the real 
 estate belonging to said copartnership," as 
 admitted by the answer of Richmond. 
 
 Two questions are presented for our deci- 
 sion: first, whether the real estate of the 
 copartnership, purchased with partnership 
 funds, and held and used for partnership 
 purposes, is to be treated as personalty, in 
 the settlement of the estate of the deceased 
 copartner; second, if not, then whether the 
 legacies are to abate for deficiency of per- 
 sonal assets, or to be paid by a sale of realty. 
 It is a familiar principle of equity that 
 for payment of partnership debts, and the 
 
 adjustment of balances between the copart- 
 ners, • such real estate of the firm shall be 
 treated as personal assets, or stock in trade.. 
 Although the legal estate is that of tenants 
 in common, the share of each partner de- 
 scending to his heirs, yet equity will convert 
 the legal title into a trust, and hold it devoted' 
 to the fulfillment of all copartnership obli- 
 gations, before it can be taken as a part of 
 the separate estate of the individual copart- 
 ner. This equitable intei'ference is exercised 
 as well against the widow claiming dower as- 
 against the heirs. To this extent all author- 
 ities agree. Bm-nside v. Merrick, 4 Mete. 
 (Mass.) 537; Dyer v. Clark, 5 Mete. (Mass.) 
 562; Howard v. Priest, Id. 582. These cases 
 seem to decide that such is also the limit to. 
 this doctrine of equitable conversion. 
 
 But it is contended that the principle goes 
 farther; that it is a law of equity jurispru- 
 dence, as applied to copartnerships, that each, 
 copartner has the right, for the settlement of 
 the copartnership affairs, to have a decree- 
 for the sale of all the property of the firm, 
 real as well as personal, in order that a prop- 
 er division may be made; and, as a result 
 of this liability to a judicial sale, that the 
 widow and heirs acquire no beneficial inter- 
 est in such real estate, but whatever is left 
 for the share of each copartner goes to his 
 personal representative. If so, it must be 
 treated as personalty while remaining undi- 
 vided. It must be admitted that there are 
 many decisions, and more dicta, both in 
 England and in this country, which appear- 
 to sustain this position; insomuch that Mr. 
 Justice Story, in his work on Partnership, § 
 93, declares that the subject "must be con- 
 sidered as open to many distressing doubts."' 
 Upon examination of the earlier English 
 cases, from which this doctrine has grown, 
 it wUl be found that, in several of them,, 
 there was an express agreement between the 
 copartners, the specific performance of which 
 would of itself convert the real estate inta 
 personal assets. The conversion was work- 
 ed, therefore, not merely from the relation- 
 of copartnership, but on the ground that 
 the deceased partner had, by the very con- 
 tract under which he became joint owner, 
 stamped upon the realty the character and 
 incidents of personalty. But m a more re- 
 cent case. Darby v. Darby, 3 Drew. 495, de- 
 cided in 1856, the court held that the con- 
 tract of copartnership itself was an agree- 
 ment to hold all partnership realty subject to- 
 the equities of that relation, and liable to 
 sale for the purposes of division and a set- 
 tlement between the copartners; and, there- 
 fore, in equity, the heir could take no bene- 
 ficial interest in such real estate. The court 
 say, (page 506,) if "a partnership purchase 
 real estate for the partnership purposes, and' 
 with the partnership funds, it is, as between 
 the real and personal representatives of the 
 partners, personal estate." 
 
 But we are unable to see how the equi- 
 
 125- 
 
'Case jSTo. 10 
 
 WILCOX V. WILCOX. 
 
 (§6 
 
 ties, which spring from the relation of co- 
 partnership, and are raised for the protec- 
 tion of the rights of the several copartners, 
 inter sese, and of their joint creditors, can, 
 by any principle of law or equity, be invoked 
 by one claSs of the representatives of a de- 
 ceased copartner against another class of 
 Tepresentatives of the same copartner, each 
 claiming the same interest and right. The 
 legal estate passes to the heirs, with the in- 
 •cident of dower to the widow. Equity In- 
 terferes for equitable purposes only. This 
 right of each copartner to hold the real es- 
 tate of the firm as security through him for 
 the partnership debts, and to him for his 
 :advanoes and for the amount of his interest 
 in the final results of the joint business, Is 
 often called an equitable lien. Now, when 
 the joint debts are all paid, all balances 
 between the several copartners fully ad- 
 justed, and there remains iindivided real 
 estate in which they are tenants in common, 
 the legal title of each corresponding to his 
 interest or share in the partnership, for 
 what can one partner have any lien upon the 
 ■share of the other in such real estate? For 
 what purposes, and upon what grounds, can 
 he appeal to a court of equity to decree its 
 sale? Certainly in Massachusetts, "where 
 -equitable jurisdiction Is given only "where 
 the parties have not a plain, adequate, and 
 complete remedy at the common law," such 
 an appeal must fail; a fortiori, would the 
 executor or administrator fail of any right 
 to come into equity for such a purpose? It 
 is well said in Greene v. Graham, 5 Ohio, 
 264, "it is not for the respondent to avoid 
 a partition by setting up a possible claim in 
 the creditors of the copartners. We do not 
 decide upon their claims, if they have any; 
 but we leave them, if there are any, to as- 
 :sert their own rights." 
 
 We are satisfied to stand upon the deci- 
 sions in 4 Mete. (Mass.) and 5 Mete. (Mass.) 
 cited above, as the statement of the extent 
 and the limit of this doctrine, in Massachu- 
 setts. 
 
 Upon the other question in this case, the 
 authorities are abundant, and seem to us 
 to be conclusive, that the pecuniary legacies, 
 given by the will of Philip Wilcox, belong 
 to the class termed "demonstrative," and 
 were in no legal sense "specific." They 
 carried no interest in any particular property 
 or fund, but were payable generally, lilie 
 the debts out of the personal estate and the 
 proceeds thereof. This direction does not 
 vary at all the usual and regular course of 
 settlement of the estate, and there is noth- 
 ing in the will that indicates an Intention to 
 give the personal estate specifically, or any 
 portion of it, to these legatees. The fact 
 that It was all equally subjected to the pay- 
 ment of debts, is a strong indication to the 
 contrary. Courts do not incline to constnie 
 legacies to be specific, and will not do so 
 unless such be the clear intention of the 
 testator. Kirby v. Potter, 4 Ves. 748; At- 
 126 
 
 torney General v. Parkin, Amb. 566; Briggs 
 V. Hosford, 22 Pick. 288; Boardman v. 
 Boardman, 4 Allen, 179. 
 
 If a legacy be given, with reference to 
 a particular fund only as pointing out a 
 convenient mode of payment, it is to be 
 construed as demonstrative, and the legatee 
 will not be disappointed though the fund 
 whoUy fail. Walls v. Stewart, 16 Pa. St. 
 275; Oha worth v. Beech, 4 Ves. 555; 2 Redf. 
 Wills, 462, 464, 472, 474; Pierrepont v. Ed- 
 wards, 25 N. Y. 128; Creed y. Creed, 11 
 Clark & F. 491. 
 
 The devise of aU the rest and residue of 
 the testator's estate, both personal and real, 
 is in no sense specific, and is not, there- 
 fore, exempt from the usual burden of 
 residuary bequests, namely, payment of all 
 debts and legacies. Witman v. Norton, 6 
 Bin. 395; Blaney v. Blaney, 1 Oush. 107. 
 
 The result of these conclusions must be 
 therefore, that, first. The widow will take 
 her dower in all the real estate of the tes- 
 tator, including his share of that which 
 belonged to the firm of Wilcox & Richmond. 
 
 Second. The pecuniary legacies must be 
 paid in fuU; and so much thereof as shall 
 not be paid from the remaining personal 
 estate must be raised by sale of the real 
 estate. 
 
 Third. Whatever shall remain will pass 
 to those entitled under the residuary clause. 
 
 Fourth. The costs of all parties to these 
 proceedings to be paid by the executors out 
 of the estate. 
 
 NOTE. In Buchan v. Sumner, (1847,) 2 
 Barb. Ch. 165, Chancellor Walworth said, (page 
 198:) 
 
 "In reference to real property conveyed to 
 the partners for the benefit and use of the 
 firm, or received in payment of debts due to 
 the copartnership, it is perfectly well settled,' 
 both here and in England, that the legal title 
 vests in the grantees thereof, as in an ordinarv 
 conveyance of real estate. Thus, at the corci- 
 mou law, if land was purchased with copart- 
 nership funds, for partnership purposes, and 
 was conveyed to all the partners, generally, in 
 fee, it would at law create a joint tenancy; so 
 that neither could convey any more than his 
 share of the land during the lives of his co- 
 partners. And upon the death of either of the 
 partners, without having . severed the joint ten- 
 ancy by a conveyance, the legal title to the 
 whole of the land would survive to the other co- 
 partners. But, under the statutes of this state 
 relative to joint tenancies, the several copart- 
 ners, to whom such a conveyance was made. 
 would become tenants in common of the legal 
 title; and, upon the death of either, the undi- 
 vided portion of the legal title thus vested in 
 the deceased partner would descend to his heirs 
 at law, without reference to the equitable rights 
 of the several copartners in the land as a part 
 of the property of the firm. The law is the 
 same in England, where the conveyance is 
 made to the several copartners as tenants in 
 common, or where there is anything, upon tlie 
 face of the deed, showing that it was not in- 
 tended to create a joint tenancy, but only a 
 tenancy in common in the property. And I be- 
 lieve it is not disputed anywhere that a bona 
 fide purchaser or mortgagee, who obtains the 
 legal title to partnership lands, or to an undivid- 
 ed portion thereof, from the person who holds 
 such legal title, and without notice of the equi- 
 
§6) 
 
 WILCOX V. WILCOX. 
 
 Case No. 10 
 
 table rights of others in the property as a part 
 of the funds of the copartnership, is entitled to 
 protection in courts of equity, as well as in 
 courts of law. But questions have frequently 
 arisen, both in this country and in England, 
 concerning the equitable rights of the copart- 
 ners, or their representatives, in such property, 
 as between themselves; and also as between 
 the heirs at law and the personal representa- 
 tives of a deceased copartner. 
 
 "Where real estate is purchased with part- 
 nership funds, for the use of the firm, and with- 
 out any intention of withdrawing the funds 
 from the firm for the use of all or any of the 
 members thereof as individuals, I believe it has 
 ■never been doubted in England that such real 
 estate was, in equity, to be considered and 
 treated as the property of the members of the 
 "firm collectively, and as liable to all the equita- 
 ble rights of the partners as between them- 
 selves. And for this purpose the holders of 
 the legal title are considered, in equity, as the 
 mere trustees of those who are beneficially inter- 
 ested in the fund; not only during the exist- 
 ence of the copartnership, but also upon the dis- 
 solution thereof by the death of some of the 
 copartners or otherwise. Lake v. Oraddoek, 3 
 P. Wms. 158: Smith v. Smith, 5 Ves. 189; 
 Wats. Partn. 72; Gow, Partn. 48, 288; Story, 
 Partn. 128, § 93; 1 Story, Eq. Jur. § 6Y4. 
 
 "Another question has arisen, in relation to 
 real estate as copartnership property, respecting 
 which there has been a great conflict of opinion 
 in England. That question is whether real es- 
 tate of a copartnership, upon the death of one 
 of the copartners, and after the debts have been 
 paid and the equities adjusted between the sev- 
 eral members of the firm, belongs, in equity, to 
 the executor or administrator of the decedent, 
 as a part of his personal property; or whether 
 the beneficial interest, as well as the legal title, 
 in the decedent's share of such real estate, de- 
 scends to the heirs at law. In the case of 
 Thornton v. Dixon, 3 Brown, Ch. 199, Lord 
 Thurlow, upon the first argument, inclined to 
 think the interest of the deceased partner must, 
 in equity, be considered as a part of his per- 
 sonal property, and that it should go to his per- 
 sonal representatives. But, upon a second ar- 
 gument, he changed his opinion, and decided 
 that, in the absence of any agreement that the 
 land should be converted into personalty at the 
 termination of the partnership, it belonged to 
 the heir, as real estate. That decision was fol- 
 lowed by Sir William Grant in Bell v. Phyn, 7 
 Ves. 453, and in Balmain v. Shore, 9 Ves. 500. 
 But these decisions were subsequently overruled 
 by Lord Eldon, in Townsend v. Devaynes, 
 Mont. Partn. Append. 97. And it may now 
 be considered as the general rule in England 
 that real estate belonging to the firm, unless 
 
 there is something in the partnership articles 
 to give it a different direction, is to be consider- 
 ed, in equity, as personal property, and that it 
 goes to the personal representative of, the de- 
 ceased partner who was beneficially interested 
 therein. Selkrig v. Davies, 2 Dow, 231; Phil- 
 lips V. Phillips, 1 Mylne & K. 049; Broom v. 
 Broom, 3 Mylne & K. 443; Houghton v. Hough- 
 ton, 11 Sim. 491; Morris v. Kearsley, 2 Younge 
 & 0. 139. In a very recent case, however, 
 Lord Langdale appears to have departed from 
 this general rule, where the copartners, after 
 the termination of the copartnership, continued 
 to treat the property, which had been purchased 
 by the firm, as real estate, by renting it to a 
 new firm. He there held that, upon the death 
 of one of the members of the old firm, his ben- 
 eficial interest in the real estate, as such copart- 
 ner, was, in equity, to be considered as real 
 estate, and that it belonged to his heir at law. 
 Rowley v. Adams, 7 Beav. 548. See, also, 
 Randall v. Randall, 7 Sim. 271. And in a still 
 later case the court of common pleas, in Eng- 
 land, decided that real estate conveyed to trus- 
 tees for the use of a copartnership was to be 
 considered as giving the several members of the 
 firm an equitable freehold therein, to the extent 
 of their respective shares in the copartnership 
 stock, so as to entitle them to vote as free- 
 holders, although the trust deed declared, in ex- 
 press terms, that the lands conveyed thereby 
 should be considered in the nature of personal, 
 and not as real, estate. Baxter v. Newman, 1 
 Lutw. Reg. Cas. 287. But, in that case. Chief 
 Justice Tindall, who delivered the opinion of 
 the court, distinctly recognizes the principle that 
 a court of equity will deal with real property as 
 if it was personalty, so far as is necessary to 
 carry the intention of the copartners into ex- 
 ecution. 
 
 "The American decisions in relation to real 
 estate purchased with partnership funds, or for 
 the use of the firm, are various and conflicting; 
 but I think they may generally be considered as 
 establishing these two principles: First, that 
 such real estate is, in equity, chargeable with 
 the debts of the copartnership, and with any 
 balance which may be due from one copartner 
 to another upon the winding up of the affairs 
 of the firm; secondly, that, as between the per- 
 sonal representatives and the heirs at law of a 
 deceased partner, his share of the surplus of the 
 real estate of the copartnership which remains 
 after paying the debts of the copartnership, and 
 adjusting all the equitable claims of the differ- 
 ent members of the firm as between themselves, 
 is considered and treated as real estate.'" 
 
 See, for discussion of Wilcox v. Wilcox, the 
 case of Shearer v. Shearer, (1867,) 98 Mass. 
 107, and see, also, Dyer v. Clark, (1843,) 5 
 Mete. (Mass.) 502. 
 
 127 
 
Oase No. 11 
 
 ZABRISKtE V. MOBRIS & E. R. CO. 
 
 (§ 7 
 
 ZABRISKIE V. MORRIS & B. R. CO. 
 
 (33 N. J. Eg. 22.) 
 
 Court of Chancery of New Jersey. Oct. Term, 
 1880. 
 
 L. Zabriskie, in pro. per. J. D. Bedle, for 
 defendant 
 
 RUNYON, Ch. By an agreement in writ- 
 ing duly made between tlie parties in Octo- 
 ber, 1878, the defendant agreed to purchase 
 of the complainant two plots of land in Hud- 
 son county, on his making and delivering to 
 it a good and sufficient deed of conveyance 
 therefor, vesting in it a title in fee simple, 
 free from all incumbrances, and he, on his 
 part, agreed to sell and convey the property 
 to the defendant for the price stipulated, so 
 soon as he could make such title. The land 
 was the property of John Tonnele at the 
 time of his death, and the complainant 
 claims title thereto under Mr. Tonnele's will, 
 as the heir at common law of his father, the 
 late Abraham O. Zabriskie, whose eldest son 
 he is, and who was the last survivor of the 
 executors and trustees under that instru- 
 ment The question presented for decision 
 is whether he indeed has such title. Mr. 
 Tonnele died in 1852. By his will, after 
 making certain specific devises and bequests, 
 he gave, devised and bequeathed all the rest 
 and residue of his property, real and per- 
 sonal, to his eight children, to be equally di- 
 vided among them in such manner that each 
 child should receive only the net rents, in- 
 come and profits of his or her share during 
 his or her life; and he provided that at the 
 death of each child, his or her share should 
 go to and vest in his or her lawful issue; 
 and in default of such issue living at his or 
 her death, then to the testator's other chil- 
 dren and their issue in the same manner as 
 the share of each was thereby limited and 
 given: the children of any deceased child to 
 take their parents' share. And in order 
 more fuUy to carry out the objects of the will 
 he appointed and declared his executors to 
 be trustees of all property, estate or interest 
 therein given or devised to any of his chil- 
 dren, or that any of his children might be 
 entitled to by virtue of any provision of the 
 wiU during the life of such child; with full 
 power to retain all such property in their 
 hands imsold and undivided until after the 
 year 1867; and he thereby authorized them 
 to sell and convey all or any part of his real 
 estate, and all real estate that might be pur- 
 chased by them, and to invest his personal 
 estate and the proceeds of sale of his real 
 estate at interest on bond and mortgage or 
 in government or state stocks, or to lay 
 them out in the improvement of his real es- 
 tate, or the purchase of other real estate and 
 the improvement thereof, as might seem 
 most for the interest and advantage of his 
 cliildren, and for the improvement of his es- 
 tate, and to change such investments as they 
 128 
 
 should deem best from time to time. And 
 he thereby ordered and directed them to pay 
 over to each of his children during his or 
 her natural life, the net income of that part 
 or portion of his estate therein given or de- 
 vised to such child, after deducting therefrom 
 all taxes, assessments and commissions and 
 other annual expenses and charges; the in- 
 come of each of his daughters to be paid to 
 her on her own receipt, for her own use, free 
 from the control of any husband; and that 
 of his son to be paid to him on his own re- 
 ceipt, and not to any assignee or mortgagee 
 thereof. He appointed his wife and Robert 
 Gilchrist and Abraham O. Zabriskie execu- 
 tors. They aU proved the wiU, and, as be- 
 fore stated, they are all dead, Mr. Zabriskie 
 being the last survivor. 
 
 By the will the testator gave to his execu- 
 tors as trustees such control over the prop- 
 erty, real and personal, given to his children 
 by the residuary clause, as to necessitate the 
 implication that he designed to give them the 
 fee of the land. He expressly constituted 
 and declared them to be trustees of the prop- 
 erty. He empowered them to retain the real 
 estate unsold and undivided until after 1867. 
 As before stated, he died in 1852. He au- 
 thorized them to sell and convey aU or any 
 part of the real estate and all that they 
 might buy, and invest the proceeds in cer- 
 tain stocks,, or in the purchase of other real 
 estate, or in the improvement of his real es- 
 tate, as they might think most for the ad- 
 vantage of his children and the improvement 
 of his estate, and to change the investments 
 from time to time. And he directed them 
 to pay over to each of his children, during 
 his or her life, the net income of the part or 
 proportion of the estate given or devised to 
 him or her, after deducting therefrom all 
 taxes, assessments, commissions and other 
 annual expenses and charges. The author- 
 ity to divide the land among the children 
 implies the gift of a fee. How were the 
 trustees to divide it unless they had the pow- 
 er to convey? No express power to lease is 
 given; but they are to pay over to each 
 child, during his or her life, the net income 
 of his or her share of the estate, real as well 
 as personal, and that, too, after deducting 
 not only annual taxes, but municipal assess- 
 ments and commissions and other annual ex- 
 penses and charges, whatever they might be. 
 The power to sell and convey all his land 
 and buy other land with the proceeds and 
 take the title in their own names, is un- 
 doubtedly given. They might sell some of 
 his land and spend the proceeds in improv- 
 ing the rest or any part of it In short, 
 complete power is given to convert the land 
 into money, and to make such disposition of 
 the proceeds in expenditures, in improve- 
 ments or in investments, as they might see 
 fit. This extensive authority is utterly in- 
 compatible with the exercise of any control 
 over the property by the children. They can- 
 
7) 
 
 ZABKISKIE 0. MOKRIS & E. R. CO. 
 
 Case No. 11 
 
 not sell or convey or encumber it. They are 
 entitled to no control over it, Indeed, so long 
 as they live; for the trust is to pay to them 
 the net rents and income for life. To the 
 execution of such a trust as that under con- 
 sideration, it is necessary that the trustee be 
 clothed with the title in fee. Though the 
 express devise is to the children themselves 
 and there is no express devise to the trus- 
 tees, that will not prevent the implication of 
 the gift of the fee to the latter; for a du-ect 
 devise may, by the context, be shown not to 
 give the legal estate to the devisee named, 
 and the legal estate may, if the purposes of 
 the will require it, be held to be in trustees. 
 In Brewster v. Striker, 2 N. Y. 19, there was 
 a devise to grandchildren and their heirs 
 forever, with direction that the estate be 
 "disposed of" by the executors and the sur- 
 vivor of them and the executors or admin- 
 istrators of the survivor, not by sale or 
 alienation, which were forbidden,, but by 
 lease; the rents, issues and profits to be paid 
 to the "heirs" (grandchildren) annually; and 
 it was also provided that if any of the heira 
 or their children should choose to occupy any 
 part of the property, they were to be pre- 
 ferred as tenants. By a subsequent clause it 
 was declared that if any of the grandchil- 
 dren should die without issue, the share of 
 such decedent should go to the srrvivors or 
 sxu-vivor and the heirs of the survivor for- 
 ever. It was held that the trustees took the 
 legal estate by implication during the life- 
 times of the grandchildren. See, also. Doe v. 
 Willan, 2 Barn. & Aid. 84, and Doe v. Cafe, 
 7 Exch. 675. It is not necessary, however, 
 to cite authorities for so obvious a proposi- 
 tion, resting, as it does, on the familiar prin- 
 ciple that in testamentary dispositions the in- 
 tention of the testator is to be sought for, 
 and, when found, is to control the construc- 
 tion. That the testator's intention was to 
 create a trust, and that one was created ac- 
 cordingly admits of no doubt. The trust is 
 to, sell, to improve, to invest and re-invest, 
 to collect rents and income, to pay taxes and 
 commissions, assessments and other annual 
 expenses and charges, to pay net income 
 over, and to divide the estate. The author- 
 ity given is not a mere power of disposition 
 which may be executed without any legal 
 title, but a trust of stich a character as ren- 
 ders it necessary that the legal estate, the 
 title in fee to the property, should be in the 
 trustees. "The mere fact," says Mr. Jar- 
 man, "that the trustees are made agents in 
 the application of the rents, is sufficient to 
 give them the legal estate; as in the case of 
 a simple devise to A upon trust to pay the 
 rents to B. And it is immaterial in such a 
 case that there is no direct devise to the 
 trustees, if the intention that they shall take 
 the estate can ■ be collected from the will. 
 Hence a devise to the intent that A shall re- 
 ceive the rents and pay them over to B, 
 would clearly invest the legal estate in A." 
 
 ABB. w\ I. ].■<—'.) 
 
 2 Jarm. Wills, 201. See, also. Hawk. Wills, 
 140; Hill, Trustees, 231, 232; and Perry, 
 Trusts, § 213. Nor can the purposes of the 
 wiU in this case be answered by confining 
 the legal estate to the lifetime of the chil- 
 dren; for the trustees have power to lease 
 and to sell and convey; and where a devise 
 to trustees upon trusts which, standing alone, 
 would not vest in them the whole legal es- 
 tate, is followed or accompanied by a pow- 
 er to sell, lease or mortgage not limited to 
 the period of the continuance of the active 
 trusts, the trustees are held to take the whole 
 legal fee, and not a mere limited estate, with 
 a superadded power of sale, mortgage or 
 leasing. Hawk. Wills, 153; Barker v. Green- 
 wood, 4 Mees. & W. 421. Not to speak of 
 other considerations, it was necessary that 
 the trustees have power and authority to sue 
 in their own names for injuries to the real 
 estate, and to- establish title thereto as 
 against adverse claimants, and that in mak- 
 ing improvements, whether by the erection 
 of buildings or otherwise, they should have 
 the legal ownership of the property im- 
 proved. The case is obviously to be distin- 
 guished from those of which Gest v. Flock, 
 2 N. J. Eq. 108, and Moores v. Moores, 41 N. 
 J. Law, 440, are examples; for in them the 
 gift was of a mere power which could be 
 exercised without any estafe in the donee 
 thereof. In the case under consideration, at 
 the death of the last survivor of the trus- 
 tees, the trust still existed and was to con- 
 tinue as to the payment of the income to the 
 children during the lives of the latter. The 
 power (it was more; it was a trust) to con- 
 vert that part of the real estate of which the 
 testator died seized, which was still un- 
 sold, remained, and It was coupled with a 
 duty to invest and husband the proceeds in 
 case of conversion, and pay over the net in- 
 come or make improvements with them, if 
 the trustee deemed best; and the trust to 
 make division of it with the rest of the es- 
 tate, if it remained tmsold at the time of di- 
 vision, still continued. To the execution of 
 this ample and extensive trust, co-extensive 
 with complete ownership, an estate in fee In 
 the trustee was not only convenient, but nec- 
 essary. Nothing less would satisfy the trust. 
 He, therefore, had such title. The last sur- 
 vivor did not devise the land. By law his 
 estate therein descended to his heir at the 
 common law, his eldest son, the complain- 
 ant, who, therefore, can convey it in fee to 
 the defendant. Schenck v. Schenck, 16 N, 
 J. Eq. 174; Wills v. Cooper, 25 N. J. Law, 
 137; Boston Franklinite Co. v. Condi t, 19 N. 
 J. Eq. 394; Revision, p. 1224, tit. "Ti-ustees," 
 §1. 
 
 There will be a decree for specific per- 
 formance. 
 
 NOTE. The legal estate in real property de- 
 scends to the heir of the intestate trustee, sub- 
 ject to the trust. Schenck v. Schenck, 16 N. 
 J. Eq. 174. The legal title to personal projv 
 
 12!J 
 
Case No. 11 
 
 ZABKISKIE V. MORRIS & E. E. CO. 
 
 (§ 7 
 
 erty_ passes to the executor or administrator, 
 subject to the trust. Schenck v. Schenck, su- 
 pra. "That trusts and legal estates are to be 
 governed by the same rules, is a maxim which 
 has obtained universally; it is so in the rules 
 of descent, as in gavelkind and borough Kn- 
 glish lands, there is a possessio fratris of a 
 trust, as well as of a legal estate; the like rules 
 in limitations, and as also of barring entail of 
 
 130 
 
 trusts, as of legal estates. I believe there is no' 
 exception out of this general rule, nor indeed 
 is there any reason there should; and it woultt' 
 be impossible to fix the boundaries, and show 
 how far, and no farther, it ought to go; per- 
 haps, in earlier times, the necessity of keeping: 
 thereto was not seen, or thoroughly consid- 
 ered." Sir J. Tekyl, M. R., Banks v. Sutton. 
 2 P. Wms. (1732,) 70O, 713. 
 
») 
 
 KIMGDON V. NOTTLE. 
 
 Case No. 12 
 
 KINGDON V. NOTTLE. 
 
 (1 Maule & S. 355.) 
 
 King's Bench, Easter Term. 53 Geo. III. 
 (1813.) 
 
 Mr. Giffiord, for demurrer. Mr. Bayly, 
 coutra. 
 
 Lord ELLENBOROUGH, C. J. This is a 
 case in which a person may have formed 
 his opinion from what is to be found in a 
 booli of very excellent authority, I allude to 
 Comyn's Digest, tit. "Covenant," B, 1, in 
 which it is laid down generally that if a 
 man covenant with B. upon a grant or con- 
 veyance of the inheritance, his executor may 
 have covenant tor damages upon a breach 
 committed in the life-time of his testator. 
 But when that position comes to be com- 
 pared with Lucy v. Levington, 1 Vent 176, 
 2 Lev. 26, which is the authority there cited 
 in support of it, it will be found not to be 
 borne out by that case in its generality; for 
 in that case there was an eviction in the life- 
 time of the testator, and therefore the dam- 
 ages in respect of such eviction, for which 
 the action was then brought, were properly 
 the subject of suit and recovery by the exec- 
 utor; and nothing descended to the heir. 
 But in this case there is no other damage 
 than such as arises from a breach of the 
 defendant's covenant that he had a good 
 title, and there is a difSculty in admitting 
 that the executrix can recover at all, with- 
 out also allowing her to recover to the full 
 amount of the damages for such defect of 
 title; and in that case a recovery by her 
 would bar the heir; for I apprehend the 
 heir could not afterwards maintain another 
 action upon the same breach. Had the 
 breach here been assigned specially with a 
 view to compensation for a damage sus- 
 tained in the life-time of the testator, and so 
 as to have left a subject of suit entire to the 
 heir, this action might have gone clear of the 
 difficulty, because then it would not operate 
 as a bar to the heir; but framed as it now 
 is, it seems to me that it would operate as a 
 bar to his action. It is certainly a new 
 point; and if I thought that more authori- 
 ties could be found than what have been 
 cited, which, however, from the industry of 
 the gentlemen who have argued the case, is 
 not vei-y probable, I should have paused. 
 But what has been cited from Co. Litt, and 
 the other authorities, that the executor of a 
 person who died seised of a rent could not 
 maintain an action to recover the arrears 
 incurred in the life-time of his testator, inas- 
 much as he could not represent his testator 
 as to any contracts relating to the freehold 
 and inheritance, is in a great degree an au- 
 thority to show that in the present case the 
 executrix does not stand in a situation to 
 take advantage of this breach of covenant. 
 Therefore on the principle of what is there 
 laid down, and in the absence of any dam- 
 
 age to the testator, which, if recovered, 
 would properly form a part of his personal 
 assets, I do not know how to say that this 
 action is maintainable. 
 
 LE BLANC, J. This action is brought by 
 the executrix to increase the personal estate 
 of the testator. The difficulty arises from 
 its being assigned as a breach of covenant 
 in the life-time of the testator. The breach 
 assigned is in not having a good title. But 
 how is that breach shown to have been 
 a damage to the testator. It is not alleged 
 that the estate was thereby prejudiced, dur- 
 ing the life-time of the testator; and if after 
 his decease any damage accrued, that would 
 be a matter which concerns the heir. The 
 distinction which attends real and personal 
 covenants with respect to the course in 
 which they go to the representatives of thi' 
 person with whom the covenants are made, 
 is a clear one: real covenants run with the 
 land, and either go to the assignee of the 
 land, or descend to the heir, and must be 
 talien advantage of by him alone; but per- 
 sonal covenants must be sued for by the ex- 
 ecvitor. Now this is a covenant on which 
 after one breach has been assigned and a re- 
 covery had thereon, the party cannot again 
 recover. It is not like a covenant for not 
 repairing, for a breach of which damages 
 may be recovered now, and again hereafter, 
 and so toties quoties; although even in that 
 case there is always a difficulty in apportion- 
 ing the damages. But here no breach from 
 which a damage accrued to the testator, is 
 stated at all. Yet the action is brought to 
 increase the personal estate, which belongs 
 to the executor; when the estate itself, such 
 as it is, has come to the heir. 
 
 BAYLEY, J. The testator might have 
 sued in his life-time; but having forborne 
 to sue, the covenant real and the right of suit 
 thereon, devolved with the estate upon the 
 heir. If this were not so, and the executrix 
 was permitted to take advantage of this 
 breach of covenant, she would be recovering 
 damages to be afterwards distributed as per- 
 sonal assets, for that which is really a dam- 
 age to the heir alone; and yet such recovery 
 would be a complete bar to any action which 
 the heir might bring. The case of Lucy v. 
 Levington, 1 Vent 176, 2 Lev. 26, struck me 
 as a strong authority for the defendant: l)i>- 
 cause in that case it appears there was au 
 actual damage accruing to the testator by 
 the eviction, whereby he was deprived of the 
 rents and profits during his life, and of 
 course the personal estate was so far damni- 
 fied. There, as I have before observed, if 
 the executor could not have sued, no other 
 person could, because the testator having 
 been evicted, there could be no heir of the 
 land, and that was given as a reason why 
 the action was holden to be maintainable. 
 
 PEE CURIAM. Judgment for defendant. 
 
 131 
 
Case No. 13 
 
 KING V. JONES. 
 
 (§8 
 
 KING V. JONES et al. 
 
 (5 Taunt. 418.) 
 
 Common Pleas, Easter Term. April 28, 1814. 
 
 Sellon, Serjt, now showed cause against 
 this rule. Shepherd & Blosset, Serjts., 
 contra. 
 
 HEATH, J., on this day (in Easter Term, 
 1813) delivered the judgment of the court. 
 
 This is a motion in arrest of judgment. 
 This action appears to have been brought by 
 the plaintiff as heir of his father, against the 
 defendant as executor of Richard Griffith, 
 upon the covenant of the testator; and the 
 pleadings disclose these facts: by lease and 
 release of the 6th and 7th of October 1794., 
 T. Worge, and Griffith and his wife conveyed 
 certain premises to J. King; and Griffith 
 covenanted with J. King that he and Mary his 
 wife would do all reasonable acts for the fm-- 
 ther conveyance of the premises. The plead- 
 ings further disclose, that there was a re- 
 quest made by John King the ancestor, to 
 Griffith, to levy a fine: that no fine was lev- 
 ied: that J. King the ancestor died; and the 
 premises descended to the plaintiff as the 
 heir of John King, and that the plaintiff has 
 since been evicted: and the question is, 
 whether the plaintiff can sustain this action. 
 It was admitted that this is a covenant 
 which runs with the land. Under this cov- 
 enant the heir might call for fm'ther assur- 
 ances, even to levy a fine: he certainly might 
 have called for the removal of a judgment, 
 or other incumbrances. It appears that John 
 King the ancestor, was a willing purchaser: 
 he paid his purchase money, relying on the 
 vendor's covenant: he required him to per- 
 form It, but gave him time, and did not sue 
 him instantaneously for his neglect, but wait- 
 ed for the event. It was wise so to do, tmtil 
 132 
 
 the ultimate damage was sustained; for oth- 
 erwise he could not have recovered the whole 
 value: the ultimate damage, then, not hav- 
 ing been sustained in the time of the an- 
 cestor, the action remained to the heir, (who 
 represents the ancestor in respect of land, 
 as the executor does in respect of personal- 
 ty,) in preference to the executor. These 
 are the principles of the case: how are the 
 authorities? There are few old authorities 
 dii-ectly in point, but there is one recent case 
 that is directly applicable. The old authori- 
 ties are, Fitzh. Nat. Brev. tit. "Writ of Cove- 
 nant," p. 341., G. "If a man malce a cove- 
 nant by deed to another, and his heirs, to 
 enfeoff him and his heirs of the manor of D. 
 &c. now, if he will not do it, and he to 
 whom the covenant is made dieth, his heir 
 shaU have a writ of covenant upon that 
 deed:" he cites the case of Wotton v. Cooke, 
 Dyer, 337.: also reported in And. 53. [Here 
 his lordship read the case.] The recent deci- 
 sion is that of Kingdom v. Nottle, last Easter 
 term, 1 Maule & S. 355, wherein the court of 
 king's bench held that the executor could not 
 recover upon a breach of the defendant's cov- 
 enant with the testator, that he, the defend- 
 ant, had a good title to convey, the testator 
 having sustained no damage in his life-time; 
 therefore it follows that the heir might so re- 
 cover. The court there follow the doctrine 
 of Lucy V. Levington, 1 Vent. 175, 2 Lev. 26, 
 and they advert to the circumstance which 
 differs that case from this, that there the 
 ultimate damage was sustained in the time 
 of the ancestor, and therefore the land did 
 not descend to the heir; consequently the 
 covenant; which runs with the land, did not 
 descend to the heir. The consequence is, that 
 this judgment ought not to be arrested, and 
 that the rule must be discharged. 
 Rule discharged. 
 
§8) 
 
 AUBUCHON V. LORY. 
 
 Case No. 14 
 
 AUBUCHON V. LOEY. 
 
 (23 Mo. 99.) 
 
 Supreme Court of Missouri. March Term, 1856. 
 
 Appeal from St Louisi land court 
 
 A. J. P. Garesche, for appellant S. H. 
 Gardner, for respondent. 
 
 LEONARD, J. The plaintiff, as executrix, 
 Instituted an action in a justice's court for 
 an alleged trespass upon her testator's land, 
 committed since his decease, which, on a 
 plea of title; was removed into the land 
 co«rt, where it was dismissed upon the 
 ground that the plaintiff could not maintain 
 a suit in that capacity for the alleged wrong. 
 
 The judgment must be affirmed. The real 
 estate of a deceased person descends, upon 
 his death, to his heirs, or passes to the dev- 
 isees under his wUl. By the common law, 
 the personal representative, whether execu- 
 tor or administrator, takes no interest in it, 
 and our statute gives him nothing but the 
 naked power to sell for the payment of debts, 
 or to make short leases, under the direction 
 of the county court. The right to the pos- 
 session, therefore, belongs to the heirs or 
 devisees, and they only are the proper par- 
 ties to sue for any Injury to it. It is upon 
 this principle that executors and adminis- 
 trators, as such, are not allowed to maintain 
 actions of ejectment. The judgment is af: 
 firmed. 
 
 133 
 
Case No. 15 
 
 AYEKS 0. DIXON. 
 
 (§8 
 
 AYEKS v. DIXON. 
 (78 N. Y. 318.) 
 Court of Appeals of New York. 1879. 
 Appeal from judgment modifying, and af- 
 flnning as modified, a judgment for plaintiff. 
 
 Charles Bradsliaw, for appellant. J. A. 
 Shroudy, for respondent. 
 
 DANFORTH, J. The plaintifC's case rests 
 on certain allegations of fact: 
 
 First. That on the 10th of January, 1876, 
 one Read executed a mortgage to Vaughn of 
 .f4,000, upon premises in Aiken, South Caro- 
 lina, afterward owned by Eleazer Ayers, and 
 he on the 29th day of September, 1876, in con- 
 sideration of $1, paid to him, agreed to sell 
 an imdivided one-half pai-t thereof to the de- 
 fendant Dixon, "for the sum of six thousand 
 dollars," "which," as the agreement states, 
 Dixon "agrees to pay and deliver" to Ayers 
 as follows: "Three thousand dollars at the 
 time of the delivery of the deed of the said 
 premises, and an agreement by Dixon to 
 assume and pay three-fourths of the Read 
 mortgage with interest at the rate of seven 
 per cent, per annum from the day of the 
 delivery of the deed," and Ayers agreed "that 
 on receiving said payment," he would execute 
 and deliver to Dixon, or "to his assigns, a 
 good and sufficient deed containing a general 
 warranty, and the usual full covenants for 
 the conveying and assuring to him or them 
 the fee-simple of said premises free from all 
 incumbrance except the said $4,000 mort- 
 fjage," the deed to be delivered, and purchase- 
 money paid on or before the 14th day of 
 October, 1876. This agreement was in writ- 
 ing executed by both parties. Subsequently, 
 but not until December 19, 1876, Ayers and 
 wife executed a deed of an undivided one-half 
 of the Aiken premises to Dixon, "in consider- 
 ation" as is therein recited "of the sum of 
 six thousand dollars, of which amount three 
 tliousand dollars is paid in cash and the 
 balance by Dixon assuming to pay three- 
 fourths of the mortgage above described." 
 On the 9th of May, 1877, Ayers died, and 
 the plaintiff was appointed administratrix of 
 his estate. It is nowhere stated when the 
 mortgage was payable, or whether by install- 
 ments or otherwise, but the referee finds 
 "thnt the defendant never paid the said three- 
 fourths part of the mortgage, nor any part 
 of the interest thereon, and it was on the 
 1st day of AprU, 1878, foreclosed for non- 
 payment, and the premises sold under such 
 foreclosure, for the sum of five thousand dol- 
 lars." 
 
 Second. At the time of the execution of 
 the deed, Ayers and the defendant agi-eed to 
 make certain improvements upon the prem- 
 ises by erecting buildings, and supplying the 
 same with furniture and fixtures. That some 
 of the personal property was also sold at the 
 time of the foreclosure, and from the pro- 
 ceeds of the real and personal property the 
 defendant received $809.68. 
 
 134 
 
 Third. That certain goods bought by the 
 intestate on account of himself and the de- 
 fendant amounted to $140. From these prem- 
 ises the referee found in favor of the plain- 
 tifC, 1st, $3,000 as the part of the mortgage 
 assumed by the defendant, less $1,000 of said 
 mortgage which the intestate was liable to 
 pay with interest, adding interest on the bal- 
 ance from the time of the sale April 1, 1878. 
 2d, $404.50 being one-half of the surplus re- 
 ceived by the defendant on the sale, and 3d, 
 $70 as one-half of the $140 paid by Ayers 
 for goods; and judgment was entered accord- 
 ingly. Upon appeal to the general term the 
 judgment was modified by deducting the 
 $404.50 and interest, upon the ground as stated 
 in the opinion of that court, "that the proceeds 
 of the real estate belonged to the heirs, and 
 there was no evidence by which the proceeds 
 of the personal property could be separated 
 from the sum" charged." This modification is 
 acquiesced in by the plaintiff. 
 
 The item of $70 was properly charged to 
 the defendant, for it was on the evidence 
 one-half of an expenditure made by the in- 
 testate on joint account, and as to it the 
 judgment should be affirmed; but as to the 
 other and more important item, I do not 
 think the judgment can be sustained. 
 
 By virtue of the express covenant in the 
 agreement of September, as well as the pro- 
 vision in the deed itself, the defendant be- 
 came liable to the holder of the mortgage 
 for so much of it as he had assumed to pay, 
 but this was not a liability to his grantor. 
 The $8,000 in cash, and the promise of the 
 defendant to pay $3,000 on the mortgage, 
 was the full consideration for the convey- 
 ance; there was no longer an Indebtedness 
 on that account. This accords with the evi- 
 dent intention of the parties, and the ex- 
 press language of the agreement, and the 
 deed above set out. There was not, as the 
 learned counsel for the respondent claims, 
 "a promise to pay the intestate $6,000 for 
 the land, with the privilege of paying $8,000 
 of it upon the mortgage." There was no 
 alternative obligation. The promise to pay 
 three-fourths of the mortgage, and the pay- 
 ment of $3,000 was all the intestate was 
 to receive. He received the money and the 
 promise. The plaintiff assumes that "$3,000 
 of the consideration was unpaid," and for 
 its recovery this action was brought. If 
 tl'.at view is tenable the intestate in his hfo 
 time might have sued, and as no time is men- 
 tioned for the payment of the $3,000, might 
 have sued instantly on the delivery of the 
 deed. On the plaintiff's theory he would 
 have recovered. Then the defendant would 
 liave paid in cash the $6,000, and remained 
 the owner of the imdivided half of the prem- 
 ises subject to a mortgage of $4,000, and as 
 he had by accepting the deed assumed to pay 
 three-fourths of it, he would be still liable 
 to an action by its holder for that amount, 
 for upon that promise the mortgagee could 
 sue, and recover in his own name. Burr v. 
 
8) 
 
 AYERS V. DIXON. 
 
 Case No. 15 
 
 Beers, 24 N. T. 178; Thorp v. C!oal Co., 48 N. 
 Y. 253. Such a result cannot be reached by 
 any fair construction of the agreement. Hal- 
 ■sey V. Reed, 9 Paige, 445. The defendant 
 was liable for so much of the mortgage debt 
 as he assumed, but he owed the intestate 
 nothing, and could not have been successfully 
 prosecuted by him as upon a promise to pay 
 the consideration money. 
 
 But it by no means follows that the intes- 
 tate was without rights as against the de- 
 fendant or without remedies for their en- 
 forcement. Upon the delivery and accept- 
 ance of the deed, the defendant as to three- 
 fourths of the mortgage became the principal 
 debtor, and the intestate, or grantor, his sure- 
 ty for payment of three-fourths of the mort- 
 gage debt. If therefore he paid the amount 
 assumed by the defendant, he would be en- 
 titled to subrogation to the rights of the 
 mortgagee, or in case of a foreclosure could 
 •require the mortgage to be paid out of that 
 portion of the premises conveyed to the de- 
 fendant, and for the amount paid voluntarily 
 •or on compulsion, could obtain satisfaction 
 "by suit against the defendant. It is needless 
 to say that such a case is not made out by 
 the complaint, nor has the recovery been 
 had upon any such theory. Nor could the 
 plaintiff in any event recover. The grantor 
 <the intestate) died before any action accrued 
 against the defendant, and the premises in 
 
 question descended to his heirs. They were 
 the parties concerned at the time of the fore- 
 closiu-e. They held the land subject to the 
 mortgage, a part of which the defendant had 
 undertaken to pay; and were as between 
 themselves and the plaintiff bound to pay it. 
 1 Rev. St. p. 749, § 4. The defendant's cove- 
 nant was not for the benefit of his grantor 
 alone, but for the protection of all who de- 
 rived their title to the land through him. 
 Three-fourths of the mortgage was chargeable 
 upon defendant's share, and, if possible, to 
 be paid therefrom. The heirs therefore 
 standing in the place of the grantor are the 
 ones injured by the breach of the defend- 
 ant's covenant, and as they bear the burden 
 of the mortgage are entitled to the benefit 
 of tlie security which that covenant afCords. 
 It relates to the land and passed with it to 
 them. 
 
 It follows therefore that as to the item 
 under consideration, the pliintiff has no 
 cause of action. 
 
 The judgment should be reversed, and a 
 new trial granted with costs to abide the 
 event, unless the plaintiff stipulates to re- 
 duce the judgment, so that It shall stand for 
 $70, and interest thereon from May 9, 1877, 
 and no more without costs, in which event 
 it is aflirmed for that amount, without costs 
 to either party. 
 
 All concur. Judgment accordingly. 
 
 135 
 
Case No. 16 
 
 ATKINSON V. BAKER. 
 
 (§» 
 
 ATKINSON V. BAKER. 
 (4 Term R. 229.) 
 King's Bench, 1791. 
 This was an action of detinue to recover 
 certain indentures of bargain and sale and 
 release, and a certain memorandum in writ- 
 ing. The declaration alleged that T. Foster, 
 being seised for his own life of a certain 
 freehold estate, conveyed it by lease and re- 
 lease to H. WUliams his heirs and assigns. 
 That Williams by a memorandum in writing, 
 and signed by him according to the form of 
 the statute, aclaiowledged the consideration 
 money in. the above conveyance to be the 
 proper money of W. Atkinson, the plaintiff's 
 intestate, and that the name of WiUiams was 
 made use of in the conveyance in trust for 
 W. Atkinson, his heirs, executors, adminis- 
 trators, and assigns. That Williams deliv- 
 ered the deeds and the memorandum to W. 
 Atkinson, who •thereby became possessed of 
 them, and who afterwards died intestate; on 
 which administration was granted to the 
 plaintiff, who thereby became lawfully pos- 
 sessed of the deeds &c, and, being so pos- 
 sessed, afterwards lost them; and that they 
 came into the possession of the defendant, 
 who is the heir at law of W. Atkinson, and 
 who still detains them. To this declaration 
 there was a general demurrer, and joinder. 
 
 Johnson, in support of the demurrer. Mr. 
 Gardiner, contra. 
 
 Lord KBNYON, Ch. J. The law on this 
 subject has been truly stated by the defend- 
 ant's counsel. If an estate pur autre vie 
 be limited to a man, his heirs, and assigns, 
 and it be not devised, it goes to the heir un- 
 der the statute of frauds, and is liable to the 
 same debts as a fee-simple is. Where it is 
 granted to a person, his executoi-s, adminis- 
 trators, and assigns, the executors take it 
 subject to the same debts as personalty of 
 any other description is; and by the 14 Geo. 
 2. it is distributable. Now in tlnis case, be- 
 fore the plaintiff can recover the deeds in 
 question, she must shew a title to the estate 
 in respect of which she claims the deeds; 
 but she objects to the defendant's retaining 
 them, because his title, if any, is only equita- 
 ble, and cannot be enquired into in a court 
 of law. Now this court either has or has not 
 a right to enquire in whom the equitable title 
 is vested; and in either way of considering 
 the question, there must be judgment against 
 the plaintiff. If it be so doubtful a point 
 that we cannot decide it in a court of law, 
 the plaintiff must seek redress in equity, be- 
 cause the right to these documents must fol- 
 low the title to the estate. And if we can 
 examine into the title, the defendant, who 
 is the heir at law of the tenant pur autre 
 vie, must have judgment The estate in 
 question was conveyed to Williams, his heirs, 
 and assigns; and it appears by the deed of 
 trust, which, as being a declaration in writ- 
 136 
 
 ing, is valid by the statute of frauds, tiiat 
 WUliams held the estate in trust for Atkin- 
 son, his heirs, executors, administrators, and 
 assigns. The first limitation is to the heirs, 
 and in the ordinary course of this species of 
 property it goes to the heir at law, because 
 it is a real estate. Then it Is urged that we 
 ought to exclude the heir, in order to let in a 
 more numerous class of creditors. But, how- 
 over convenient it might be if such were the 
 law, when we are deciding according to law, 
 we must take care not to infringe one of its 
 first rules. And here the heir at law is enti- 
 tled to the estate as a special occupant, and 
 has consequently a right to detain the posses- 
 sion of those documents which belong to 
 the estate. 
 
 PER CURIAM. Judgment for the defend- 
 ant. 
 
 NOTE. In Re Barber's Settled Estates, 
 (1881,) 18 Ch. Div. 624, Fry, J., said, (page 
 627:) "The law as to estates pur autre vie 
 is no doubt very anomalous and very singu- 
 lar. When an estate pur autre vie is giveu 
 to a man, or to him and his heirs, the most he 
 can take is an estate for his own life, and any 
 one who comes in after him takes, not through 
 him, but as occupant of the estate. Originally 
 any one who pleased was allowed to scramble for 
 the occupancy after the death of the first taker, 
 but this was found to be so inconvenient that 
 he was allowed to appoint by will a special oc- 
 cupant. But still every one who came in after 
 the first taker came in as an occupant, and 
 not as deriving title through him. Such a mode 
 of devolution is very different from that of an 
 estate in fee simple. But still, for the sake of 
 convenience, the legislature and the courts have 
 enforced an analogy between these estates pur 
 autre vie and estates in fee simple, and have 
 given effect to it with regard both to the ca- 
 pacity and the incapacity of alienation by the 
 first taker. With regard to the power of dis- 
 position by the first taker, there is, no doubt, a 
 material difference between an estate pur autre 
 vie and an estate in fee simple, because the 
 first taker of an estate pur autre vie has the 
 whole estate in him, and it might have been 
 supposed that he could dispose of the whole. 
 But nevertheless his power of disposition has 
 been limited. By what? By the regard paid 
 to the intention expressed by the settlor or 
 donor that a particular person shall be the spe- 
 cial occupant after the first taker. For that 
 reason, and for that reason only I think, a limi- 
 tation has been put upon the first taker's power 
 of appointing a special occupant. The analogy 
 to which I have referred was enforced by sect. 
 12 of the statute of fraxids, which made an es- 
 tate pur autre vie devisable, but provided that 
 the heir of the first taker, if he took the estate as 
 special occupant, should hold it as assets for 
 the payment of his ancestor's debts, though, of 
 course, it was not strictly assets for that pur- 
 pose. In the same way a series of decisions of 
 the courts have permitted the creation of succes- 
 sive limitations of an estate pur autre vie- 
 quasi estates for life, quasi estates in tail, quasi 
 estates in fee in remainder, and quasi executory 
 devises over. They have permitted alienation 
 by deed by the quasi tenant in tail in possession, 
 and they have gone further, and have allowed 
 alienation by deed by the quasi tenant in tail in 
 remainder, with the concurrence of the quasi ten- 
 ant for life in possession, though, of course, the 
 quasi tenant in tail in remainder has in truth no 
 estate. But the courts have declined to allow 
 alienation by the quasi tenant in tail in remain 
 
9) 
 
 ATKINSOJf V. BAKER. 
 
 Case No. 16 
 
 der without the eoncnrrence of the quasi tenant 
 for life in possession, at any rate so as to bar 
 the remainder expectant on the estate tail, 
 though probably such an alienation might be 
 held to create a quasi base fee. They have 
 disallowed dispositions by will by the quasi ten- 
 ant in tail in possession and by the quasi ten- 
 ant for life in possession, though, of course, both 
 the quasi tenant in tail in possession and the 
 quasi tenant for life in possession were in one 
 sense absolutely entitled to the whole interest 
 in the property; and yet the designation of the 
 person who was to take afterwards as special 
 occupant has been held sufficient to put a re- 
 straint on the first taker's power of disposition. 
 Lord St. Leonards, In Allen v. Allen, 2 Dm. 
 & War. 307, proceeded upon this analogy be- 
 tween estates pur autre vie and estates in fee 
 simple, and said that ' the analogy with fee sim- 
 ple estates ought to be supported as far as it 
 
 can be.' In the present case I shall apply that 
 analogy. I ask, therefore, if, instead of the dis 
 position being or an estate pur autre vie, it had 
 been a disposition of an estate in fee simple, 
 could John Barber have defeated the executory 
 devise over in favour of William Barber? It was 
 fairly admitted by Mr. Lewin that he could not. 
 Consequently, by analogy, he cannot in the pres- 
 ent case defeat William Barber's interest in the 
 estate. Mr. Preston, in a passage which has been 
 cited, has expressed an opinion to the same ef- 
 fect, but of course that is only the opinion of a 
 learned text-writer. The principle on which 1 
 decide the case is this, that the analogy of a 
 fee simple estate is to be applied, so far as it 
 can be applied, both as to Ijhe capacity and the 
 incapacity of alienation of an estate pur autre 
 vie." 
 
 See Mosher v. Yost, 33 Barb. 277, post; Doe 
 V. Luxton, 6 Term E. 289. 
 
 13T 
 
Ciise No. 17 
 
 GRATTAN v. GKATTAN. 
 
 (§ 10 
 
 GRATTAN v. GRATTAN et al. 
 
 (18 111. 167.) 
 
 t^upreme Court of Illinois. Dec. Term, 1856. 
 
 Error to Williamson. 
 
 Bill by Charles Grattan against Elizabeth 
 Grattan and George W. Binckley, adminis- 
 trator, praying for the distribution of the 
 estate of Silas Grattan, intestate. Bill dis- 
 missed without prejudice. Complainant ap- 
 peals. 
 
 W. J. Allen, for plaintiff in error. 
 
 SKINNER, J. This was a bill in equity 
 for disti-ibution of an intestate's estate. The 
 bill alleges that, in 1852, Silas Grattan died 
 intestate, leaving the complainant, Azariah 
 B. and Philip D. B. Grattan, his children, 
 and sole heirs at law, and Elizabeth Grattan, 
 his widow, him sm-viving, and seized of cer- 
 tain real estate in this state, which descend- 
 ed to said heirs, and possessed of certain 
 personal estate, which remains for distribu- 
 tion among them; that said Silas, in his 
 lifetime, conveyed, and caused to be con- 
 veyed, to said Azariah and to said Philip, 
 respectively, by way of advancements, and 
 with the intention of providing for the com- 
 plainant out of the remainder of his estate, 
 certain real estate; that said Azariah and 
 said Philip, at the time of making said ad- 
 vancements, were, and still are infants, and 
 that said Silas died without providing for 
 complainant; that one Binckley is adminis- 
 trator of the estate of said Silas, and has 
 In his hands said personal estate for dis- 
 tribution. 
 
 The blU makes said Azariah, Philip and 
 Elizabeth, and said Binckley, defendants; 
 and prays that said Azariah and Philip be 
 compelled to bring into hotchpot with the 
 estate of said Silas tlieir respective advance- 
 ments, or be barred from participating as 
 heirs in the said estate. Upon the hearing 
 the com-t dismissed the complainant's bUl. 
 
 Without referring to the evidence, which 
 appears sufficient to entitle the complainant 
 to a decree, if the facts alleged entitle him 
 to equitable relief, we proceed to examine 
 the legal and equitable questions involved. 
 
 Our statute provides that, "where any of 
 the children of a person dying intestate, or 
 their issue, shall have received from such in- 
 testate, in his lifetime, any real or personal 
 estate, by way of advancement, and shall 
 desire to come into the partition or distribu- 
 tion of such estate with the other parceners 
 or distributees, such advancement, both of 
 real and personal estate, shall be brought 
 into hotchpot with the whole estate, real 
 and personal, of such intestate; and every 
 person so returning such advancement, as 
 aforesaid, shall thereupon be entitled to his 
 or her just proportion of said estate." St 
 111. 1856, p. 1201. 
 
 This provision is in harmony with the an- 
 cient customs of certain localities, and with 
 138 
 
 the common law generally of England, with 
 regard to lands descended in coparcenary, 
 existing at the time of the settlement of 
 the American colonies; and with the subse- 
 quent statute of distributions, of 22 & 23 
 Car. II.; Bac. Abr. tit. "Coparceners," E; 
 Id., tit "Uses and Trusts," D; Id., tit. "Ex- 
 ecutors and Administrators," K; Williams, 
 Ex'rs, 007-924; 2 Kent, Comm. 420-^t22. 
 
 The principle of the English statute is, 
 equality of distribution of the ancestor's per- 
 sonal estate among his children and their 
 descendants; and such is the object and pur- 
 pose of our statute, including both the real 
 aud personal estate of the ancestor. 
 
 An advancement is the giving by the in- 
 testate, in his lifetime, by anticipation, the 
 whole or a part of what it is supposed the 
 donee will be entitled to on the death of the 
 party making it. And according to the de- 
 cisions under the English and similar Ameri- 
 can statutes, the ancestor must have died 
 intestate: the gift must have been made in 
 his lifetime, and completely executed on his 
 part, with the intention that the same 
 should be the child's portion of his estate, 
 or a part of such portion; the gift to the 
 child or heir made in the lifetime of the 
 intestate ancestor, is prima facie an advance- 
 ment, and is to be treated, in case the party 
 to whom the advancement was made comes 
 in for his distributive share with his co- 
 heirs, as a debt due from him to the estate, 
 and may be deducted out of his share of the 
 entire estate so brought together, if such 
 share be sufficient for that purpose; the wid- 
 ow takes her share of the personal estate, 
 and, of course, her dower in the lands, with- 
 out regard to advancements, and the balance 
 only, after deducting the widow's share, is 
 ti'eated as estate for distribution: the child 
 advanced or provided for will be entitled to 
 participate with his co-heirs in the estate 
 for distribution only tipon bringing in what 
 he has received by way of advancement, 
 and taking, with them, of tlie whole estate 
 so united, his equal portion, aud the prop- 
 erty or money advanced need not be re- 
 turned in specie or kind, but is to be esti- 
 mated according to its viihte at the time 
 the advancement was made, and the heir 
 so advanced and coming in will be entitled 
 to his equal share of the whole, deducting 
 the value of the advancement. 2 P. Wms. 
 440; Bac. Abr. tit. "Executors and Adminls- 
 ti-ators," K; Id. tit. "Uses and Trusts," D; 
 Williams, Ex'rs, 916-024; 2 Story, Eq. .lur. 
 §§ 1202-1206; .Jackson v. Matsdorf, 11 Johns. 
 91; Bemis v. Stearns, 10 Mass. 200: Osgood 
 V. Breed, 17 ilass. 356; Elliot v. Collier, 1 
 Ves. Sr. 16; 3 Atk. 2.59; 8 Ves. 55; Stearns 
 V. Stearns, 1 Pick. 157. 
 
 These rules, adopted by the courts in tlie 
 constniction and enforcement of a statute 
 subsequently substantially incorporated into 
 our law by legislative enactment, and con- 
 sistent with the evident spirit and policy of 
 the latter statute, are presumed to have beeri 
 
10) 
 
 GRATTAN v. GKATTAN. 
 
 Case No. 17 
 
 in the mind of tlie legislature at tlio time of 
 its adoption, and control its consti'uetion. 
 Campbell v. Quintan, 3 Scam. 289; Rigg v. 
 Wilton, 13 111. 15. 
 
 The heir advanced may, if he choose, re- 
 tain what he has received, but if he does he 
 must be content, and relinquish all claim 
 ■of participation with his co-heirs in the dis- 
 tribution or partition of the ancestor's es- 
 tate. 
 
 Necessarily, therefore, it is for him to elect 
 whether he will retain what has been ad- 
 vanced to him, and relinquish all riglit in 
 the estate descended and for dishlbution, or 
 wiU return or account for the advancement, 
 and take of the enthe estate commingled, 
 equally with the other heirs. 
 
 Infants, for want of legal capacity, cannot 
 exercise this power and right of election, 
 and these infant defendants must be ex- 
 cluded from partaking in the distribution in 
 this case, or the estate must remain in the 
 hands of the administrator until they arrive 
 at full age; unless equity will interpose, and, 
 upon ascertaining what would be most bene- 
 ficial for them under the facts, exercise for 
 them this power. 
 
 A party entitled to one only of sevornl 
 things, at his election, where other rights 
 are involved, must exercise such right of 
 election in a reasonable time, and if he does 
 not, or cannot for want of legal capacity, 
 in favor of other parties in interest, equity 
 will do it for him, or bar him from a future 
 exercise of the right. 2 Story, Eq. Jur. c. 
 30, 
 
 Com-ts of equity have a paramount juris- 
 diction in cases of administration and the 
 settlement of estates, and may control 
 courts of law in their action in the settle- 
 meut and distribution of estates. 1 Story, 
 Eq. ,Tur. c. 9; WilUams, Ex'rs, 1239, 1240. 
 
 They have, also, a similar and plenary ju- 
 risdiction over the persons and estates of 
 infants, and will, in the exercise of that 
 jm-isdiction, cause to be done whatever may 
 be necessaiy to preserve their estates and 
 protect their interests. 2 Story, Eq. Jur. 
 c. 35; Cowles v. Gowles, 3 Gilm. 435. In 
 this case, if the value of the advancements 
 respectively does not exceed the share of the 
 heir In the whole personal estate for distri- 
 bution among the heirs, including the ad- 
 vancements, and the com-t upon a further 
 hearing shall find it beneficial to the infant 
 defendants to take their distributive shares 
 and portions of the entire estate, instead of 
 retaining their respective advancements, it 
 will not be necessary to touch the real es- 
 tate descended, but the advancement may 
 be deducted flfom the share of the party to 
 whom it was made; otherwise, in order to 
 do complete equity to all, it may be neces- 
 sary to make partition of such real estate, 
 after disposing of the personal estate, ac- 
 cording to the rights of the parties; and for 
 that purpose it may, perhaps, be necessary 
 for the complainant to amend his bill. 
 
 Decree reversed and cause remanded. 
 
 Decree reversed. 
 
 NOTE. See Marshall v. Eeneh, 3 Del. Ch. 
 239. 
 
 189 
 
Case No. 18 
 
 KANSON V. BARNES. 
 
 (§ 11 
 
 NANSON V. BARKES. 
 
 (L. R. 7 Eq. 250.) 
 
 Feb. 11. 1869. 
 
 George Blamire, who died in September, 
 1863, by his last will, dated the 6th of Jime, 
 1834, gave all his real and personal estates 
 (subject to certain annuities and legacies) 
 unto Sir James R. G. Graham, Bart., abso- 
 lutely. Sir James Graham having died in 
 the lifetime of the testator, the devises and 
 bequests contained in the will lapsed. A bill 
 was filed in April, 1864, by the executors of 
 the will for the administration of the estate, 
 and a decree for that purpose was made in 
 June following. The testator was, inter alia, 
 entitled to parcels of customary lands, which 
 he held in the manor of Botchardgate, other- 
 wise Prior Lordship, Cumberland, to him and 
 his heirs, according to the custom of that 
 manor. The chief clerk certified that Mary 
 Ann Lowry and Eliza Lowry were the co- 
 heiresses at law of the testator ex parte 
 paterna; that the Rev. William Hawkes 
 Langley was the heir-at-law ex parte ma- 
 tema; and that Mary Ann Lowry was the 
 heiress of the testator, according to the cus- 
 tom of the manor of Botchardgate, ex parte 
 paterna; and the Rev. W. H. Langley heir 
 ex parte materna; and that the testator held 
 these parcels of lands of the said manor by 
 descent from his mother, and that they dch 
 scended to the customary heir ex parte ma- 
 terna. 
 
 This was an adjourned summons taken out 
 on the part of Mary Ann and Eliza Lowry, 
 that the certificate might, inter alia, be va- 
 ried, by certifying that the testator was enti- 
 tled to such lands as purchaser, and that the 
 same descended to his heir ex parte paterna. 
 
 The evidence showed that the testator's 
 mother was, at a court holden for the manor 
 on the 19th of October, 1815, admitted ten- 
 ant to these lands as the only daughter and 
 customary heiress of Thomas Harrington, 
 and that on the 2d of May, 1832, the testator 
 was admitted tenant as only son and heir-at- 
 law of his mother; further, that on the same 
 day, by an indenture of customary convey- 
 ance made between George Blamire of the 
 one part, and William Nanson of the other 
 part, these lands were, for a nominal con- 
 sideration, granted, bargained, and sold unto 
 WiUiam Nanson, his heirs and assigns, to 
 hold the same imto him, his heirs and as- 
 signs, to the only proper use and behoof of 
 WiUiam Nanson, his heirs and assigns for 
 ever, according to the custom of the manor. 
 The indenture was executed by both parties. 
 The lands were on the same day surrendered 
 by the grantor into the hands of the lord to 
 the use of WUliam Nanson, his heirs and as- 
 signs, and William Nanson was on the same 
 day admitted tenant. On the same day 
 William Nanson and George Blamire exe- 
 cuted an indenture of declaration of trusts, 
 which, after reciting, inter alia, the former 
 140 
 
 deed, and that William Nanson had been ad- 
 mitted tenant, witnessed that the customary 
 conveyance was made to William Nanson 
 that he and his heirs should be seised of the 
 lands upon trust for such persons as Geoi^e 
 Blamire by any deed or his last will should 
 appoint, and in default thereof in trust for 
 George Blamire, his heirs and assigns for 
 ever, according to the custom of the manor. 
 This process was necessary according to the 
 custom in order to give the owner the power 
 of devising. 
 
 Mr. Dickinson, Q. C, and Mr. Fry, for the 
 Misses Lowry. 
 
 The testator at his decease was seised of 
 these lands as purchaser. If a man derived 
 a freehold estate from his mother as her 
 heir, and conveyed it to a trustee, and then 
 took it back by a reconveyance, the descent 
 was broken. The subsequent title was a 
 new one, and in the event of intestacy the 
 estate would descend to the heir ex parte 
 paterna, and this customary hold estate hav- 
 ing been bargained, sold, and conveyed to an- 
 other person, and he having by a distinct 
 deed declared that he held it upon trusts to 
 be declared by the testator, and in default 
 of appointment for the testator and his heirs, 
 it had in the events which had happened de- 
 volved upon his heir ex parte paterna. The 
 testator acquired a new title by the distinct 
 deed of the trustee, and the descent of the 
 estate was consequently broken. In Coke 
 upon Littleton, (12b,) the cases where heu-s 
 upon the part of the mother. could take, and 
 where not, were mentioned, and it was said 
 (13n) that "if a man be seised of lands as 
 heir of the part of his mother, maketh a 
 feoffment in fee, and taketh back an estate 
 to him and to his heirs, this is a new pur- 
 chase, and if he dyeth without issue, the 
 heirs of the part of the father shall first in- 
 herit;" and, further, it was said that "a man 
 so seised as heir on the part of his mother, 
 maketh a feoffment in fee to the use of him 
 and his heirs, the use being a thing in trust 
 and confidence, shall ensue the nature of the 
 land, and shall descend to the heir on the 
 part of the mother." It was quite clear that 
 the whole legal and equitable estate was 
 parted with by the testator to Nanson, and 
 these two paragraphs contrasted, showed that 
 where there were two distinct conveyances, 
 and not merely one conveyance with a decla- 
 ration of trust, the heir on the part of the 
 father would inherit. The custom of this 
 manor required, where a tenant desired to 
 make a devise, the execution of two distinct 
 and separate deeds, and that being so, this 
 case, there being no resulting trust, was cov- 
 ered by 12b and 13a In Coke upon Littleton; 
 in short, from whatever point of view it was 
 contemplated, it would appear clear that the 
 descent had been broken; for even if the 
 two deeds were considered as one, they 
 would not give the testator back his estate, 
 except by another sm-render and admittance. 
 
§ 11) 
 
 NANSOX V. BARNES. 
 
 Case No. 18 
 
 Mr. Hargrave, In his note to 12b said: "If 
 in the first feoffment the use had been ex- 
 pressly limited to the feoffor and his heirs, 
 or if there was no declaration of uses, and 
 the feoffment was not on such a consider- 
 ation as to raise an use in the "feoffee, and 
 consequently the use resulted to the feofEor, 
 in either case he is in of his ancient use and 
 not by purchase." He also said that Lord 
 Ooke must be understood to speak of two 
 distinct deeds, and here there were two, 
 and it was clear that the first deed passed 
 the whole estate. If it did not the second 
 could have had no operation. If there had 
 been a resulting trust upon the first deed, 
 Nanson could not have declared the trusts 
 which he did by the second deed, and which 
 trusts were not identical with any resulting 
 trust. The testator acquired a new equita- 
 ble interest and the case was analogous to a 
 feoffment of an estate unto, and to the use 
 of, the feoffee, and a second feoffment be- 
 came necessary to bring back the estate to 
 the original feoffor, and in such a case It 
 had been long settled that the line of descent 
 was broken: Doe v. Morgan, 7 Term R. 103. 
 
 Mr. C. HaU and Mr. Mounsey, for the heir 
 ex parte materna. Mr. Greene, Q. O., and 
 Mr. T. Deere Salmon, for plaintiff. Mr. 
 Prendergast, Q. C, Mr. Finch, and Mr. Lind- 
 ley, for other parties, were not called upon. 
 
 STUART, V. G. My opinion is that the 
 descent has not been broken. In order to 
 break a descent, the owner of the estate must 
 convey away all his interest in it, and he 
 must, upon another transaction, and by an- 
 other conveyance, take back the estate as a 
 new estate, and so as to take it back as by 
 purchase. The passage relied iipon in Coke 
 
 upon Littleton is one in which there Is not that 
 perfect perspicuity in the language necessary 
 to convey fully what Lord Ooke intended. 
 Mr. Hargrave, in a note, has expressed more 
 clearly what Lord Coke desired to state. In 
 the text Lord Coke says:— [his honovu- read 
 the passage from 12b quoted above]; but it 
 must be from the language plainly such a 
 transaction as makes a new purchase, and 
 consequently Mr. Hargrave says: "But here 
 Lord Coke must be understood to speak of 
 two distinct conveyances in fee; the first 
 passing the use as well as the possession to 
 the feoffee, and so completely divesting the 
 feoffor of aU interest in the land; and the 
 second regranting the estate to him." In 
 this case the lands are held according to the 
 custom of the manor, and by the custom the 
 only way in which a tenant can acquire the 
 power of devising is by the machinery used 
 in this case, so as to grant to a tinistee ab- 
 solutely, but upon trusts to be declared by 
 another deed. So far from divesting him- 
 self of his whole estate and taking back a 
 new one, it is perfectly clear that taking the 
 two deeds together, as they must be taken, 
 for it was one transaction, the operation of 
 them was merely to give him a more com- 
 plete dominion over it. By the first deed the 
 trustee took the estate absolutely, but he 
 had no beneficial ownership; and by the 
 second deed the real owner obtained a larger 
 dominion over the property, which consisted 
 in a power to devise it, a dominion which he 
 had not before. In my opinion the testator 
 did not take back a new estate by purchase. 
 These deeds were part of one transaction for 
 a recognised purpose. The chief clerk has 
 certified rightly in favour of the heir ex parte 
 matema, and this motion on the summons 
 to vary must be refused. 
 
 141 
 
Case No. 19 
 
 ACKROYD V. SMITHSON. 
 
 (§ 12 
 
 AOIvROYD V. SMITHSOX et al. 
 
 (1 Brown, Ch. 503.) 
 
 High Court of Chancery. 1779. 
 
 Christopher Holdsworth, by his will, gave 
 (int al.) to the defendants, Smithson and 
 rbetson, their executors and administratoris, 
 £200 in trust to put the same out at interest, 
 and to apply the interest in bringing up the 
 defendant, Mary Bracklebank, then an in- 
 fant, till twenty-one, the principal to be paid 
 to her at twenty-one, and If she died before 
 twenty-one, then to be paid to her represent- 
 ative; and bequeathed to the Eev. Thomas 
 Whitaker £100, to James Roberts and Wil- 
 liam Roberts £100 each, to Grace Ogle £200, 
 to George, Ann, and Phoebe Ogle, her chil- 
 dren, £100 each, to Joseph Scurr £200, to 
 Benjamin Wright £200, to Mrs. Molyneaux 
 £400, to Hannah Close £150, to William 
 Hawkeswell £100, to Mary Boss £200, to 
 Joseph Marshall £200, all which legacies, 
 together with other legacies given by his 
 will, he directed to be paid at the end of six 
 months after his decease; and the said tes- 
 tator, thereby, gave all his messuages, cot- 
 tages, lands, tenements and hereditaments, 
 situate at the Bank, in the township of 
 Leeds, with their appurtenances, and all his 
 real estate, not therein before devised, and 
 all his household goods and fm-niture, plate, 
 linen, stock in trade, and all his personal 
 estate whatsoever, unto the defendants 
 Smithson and Ibetson, their heirs, executors, 
 administrators, and assigns, to hold the same 
 to them, their heirs, executors, administra- 
 tors, and assigns for ever, in trust that they 
 should, as soon as convenient after his de- 
 cease, sell all his said messuages, &c. for 
 such price or prices as could be got for the 
 same, and thereby to convert such real and 
 personal estate, so to them devised, and 
 every part thereof, into ready money, and by 
 and out of the money arising by such sale to 
 pay all his debts, legacies, and funeral ex- 
 penses, and charges of proving his will; and 
 after payment thereof, and retaining to them- 
 selves £50 each, which he thereby gave them 
 for their trouble, in trust out of such monies 
 to arise as aforesaid, to pay all legacies and 
 annuities thereby bequeathed, at the time 
 and in the manner thereby directed; and if, 
 after all such payments made, and putting 
 out of the funds as thereby directed, for 
 raising the annuities thereby given, and in- 
 demnifying his trustees from all charges, 
 expenses, and loss which might attend the 
 carrying the trusts of his will into execution, 
 there should remain an overplus in the hands 
 of the trustees, which he apprehended there 
 would be to a considerable amoimt, he direct- 
 ed that they, and the survivors of them, should, 
 within six months after the same should be 
 ascertained, pay the same unto his said lega- 
 tees, Thomas Whitaker, James Roberts, Wil- 
 liam Roberts, Grace Ogle, George Ogle, Ann 
 142 
 
 and Phoebe Ogle, Joseph Scurr, Benjamin 
 Wright, Mrs. Molyneaux, H. Close, William 
 Hawkeswell, Mary Bracklebank, Mary Ross, 
 and Joseph Marshall, in proportion to their 
 several and respective legacies therein to- 
 them beqiTGathed; and the testator thereby 
 willed and devised that two several sums 
 of £250 each, which he had therein directed 
 to be put on securities in the names of his 
 ti'ustees, and the Interest arising therefrom, 
 to be respectively paid to M. Thackeray and 
 R. Grant, during their respective lives, should 
 upon the several deaths of them the said M. 
 Thackeray and R. Grant, be paid in the like 
 proportions unto them his said several and 
 respective legatees. 
 
 Benjamin Wright and Mrs. Molyneaux 
 died in the life-time of the testator. 
 
 The biU was filed by the next of kin of the 
 testator, against the surviving legatees, and 
 the heir at law; claiming the legacies given 
 to the deceased legatees, their shares in the 
 overplus, and in the two sums of £250, as 
 lapsed, and become part of the personal es- 
 tate of the testator. 
 
 The cause came on at the Rolls, 10th July^ 
 1778, when, his honor (Sir Thomas Sewell) 
 being of opinion that the surviving legatees 
 took the whole residue in proportion to their 
 several legacies, dismissed the biU without 
 costs. 
 
 From this decree, the plaintiffs appealed 
 to lord chancellor; and the cause coming on 
 to be heard before his lordship,— 
 
 Mr. Kenyon attempted to support the de- 
 cree; 
 
 But LORD CHANCELLOR, being cleaiv 
 (without hearing much argument) that this, 
 was a tenancy in common in the residue, and 
 that therefore the shares of the legatees who 
 died in the testator's life-time, were imdis- 
 posed of; said the only question was wheth- 
 er such shares belonged wholly to the next 
 of kin, or to the heir at law. 
 
 The attorney general, Mr. Aladocks, and 
 Mr. Selywn (for the plaintiffs, the next of 
 kin,) contended, that the testator had con- 
 verted his real estate into money, out and 
 out, that he had mixed two funds, and made 
 all personal estate; that the cases therefore 
 of Mallabar v. Mallabar, Forrester, 79, and 
 Durour v. Motteux, 1 Ves. Sr. 320, must gov- 
 ern the dedsion here, and that the blending 
 the funds distinguished this case from that 
 of Digby V. Legard, 3 P. W^ms. 22, note, (cited 
 1 Brown, Ch. 501.) Mr. Selwyn mentioned 
 the cases of Flanagan v. Flanagan, (cited 
 1 Brown, Ch. 500;) Fletcher v. Ashburner, 
 1 Brown, Ch. 497; and Ogle v. Cook, 1 Ves. 
 Sr. 177, (cited 1 Brown, Ch. 501.) 
 
 LORD CHANCELLOR thought the two. 
 former cases did not apply; but being, In 
 general, of opinion with the counsel for the 
 next of kin, asked the counsel for the heir 
 at law, upon what grounds they could sup- 
 port his claim. 
 
 Mr. Scott, for the heir at law, said they 
 
§12) 
 
 ACKKOYD V. SMITHSON. 
 
 Case No. 19 
 
 claimed on his behalf such uiterest in the 
 monies produced by the sale of the testator's 
 real estates as the deceased residuary lega- 
 tees would have been entitled to, if they had 
 survived the testator; or so much of their 
 shares of the overplus, now in the events 
 which have happened, undisposed of, as is 
 constituted by the produce of the testator's 
 real estate. That the heir at law is entitled 
 to every interest in land, not disposed of by 
 his ancestor, is so much of a truism that it 
 calls for no reasoning to support it. It is 
 not necessary for the heir at law to deny 
 that the intention of the testator has design- 
 ed him nothing; his intention has certainly 
 been equally unpropitious to his next of kin; 
 but it is not enough that the testator did not 
 intend that his heir should take, he must 
 make a disposition in favor of another; if he 
 has not actually disposed of all his real es- 
 tate, if he has not made an universal heir, 
 the law will give such part of his real estate 
 as he has not actually and eventually dis- 
 posed of, even against his intention, and a 
 fortiori in a case where he has expressed no 
 intention, to the haeres natus. If the inter- 
 est of the deceased legatees had been an in- 
 terest in the produce of mere real estate, 
 not blended with the produce of personal 
 estate, it has been admitted, upon both hear- 
 ings, that the benefit of the lapsed devises 
 would, according to the case of Digby v. 
 Legard, 3 P. Wms. 22, note, and the principle 
 of the case of Emblyn v. Freeman, Finch, 
 Prec. 541, and of many others, have accrued 
 to the heir at law. It is admitted, and can- 
 not be denied, that where a testator directs 
 real estate to be sold for special purposes, if 
 any of those purposes become incapable of 
 taking effect, the heir at law shall take; be- 
 cause there is an end of the disposition, when 
 there is an end of the purposes for which it 
 was made: but it is contended here the tes- 
 tator had not a special intention, but thar 
 he meant the produce of his real estate 
 should be considered as personal estate, that 
 he intended to convert it out and out; that 
 he has not kept the funds distinct, but that 
 he has blended them so as to be incapable 
 of being distinguished, and that the cases 
 therefore of Durour v. Motteux, and MaUa- 
 bar V. Mallabar, are authorities in point, that 
 the whole fund is personal. We admit that 
 a person may decide what shall be the na- 
 ture of his property after his death, so as to 
 preclude all question between real and per- 
 sonal representatives. But we insist that If 
 he has not actually and eventually so decid- 
 ed, they upon whom the law casts the title 
 to personal estate can no more claim in a 
 court of equity, money arising from the sale 
 of land, than the heir can claim property 
 admitted to be of a personal nature. As to 
 the question of fact, whether he meant that 
 in some event only, or that in all events the 
 produce of his real estates should be consid- 
 ered as personalty, we admit that, in lavor 
 
 of his residuary legatees, he meant to con- 
 vert the whole into personalty in case all his 
 residuary legatees should, eventually, take 
 the whole; 6ut we contend, that he has inti- 
 mated no intention as to that part of the prod- 
 uce, as to which his disposition, in the 
 event which has happened, has failed of ef- 
 fect. He converts it out and out. Indeed, if 
 you speak of his intention as to the qualities 
 of the property which his legatees were to 
 take; but, as such part of the property as, 
 in the event, they have not taken, he has not 
 determined upon its nature; he never meant 
 to determine upon its natm-e, as between his 
 heir-at-law and his personal representative, 
 or next of kin, because he appears not to 
 have adverted to the possibility of any events 
 taking place which would give the one or 
 the other an interest in his property, and he 
 designed no part of his property for either. 
 In the event, the one or other must take 
 some part of it; but to say he has made it 
 all personal property, and that therefore the 
 law must give it to the next of kin, is to 
 apply an argument deduced from what was 
 the testator's intention in case events had 
 taken place which have not occun-ed, for the 
 sake of proving a similar intention, if circum- 
 stances happened directly contrary to those 
 with relation to which only the testator 
 framed his intention. To argue from what 
 the testator intended with respect to residu- 
 ary legatees, by way of proving that he in- 
 tended the same in favor of his next of kin, 
 is to reason from a case in which intention is 
 expressed, to prove a like intention in a case 
 which supposes the absence of intention; 
 though the testator therefore intended, that 
 his legatees, if they had lived, should take 
 their respective shares of such part of the 
 general surplus as was produced by the sale 
 of the real estates as money, he has not de- 
 clared any intention relative to its nature 
 in case that particular event of his should 
 be disappointed. In the event, therefore, 
 which has happened, it is so much undis- 
 posed of, arising from the sale of lands. 
 Such money in this court is land; and, as 
 such, the heir claims it. — Suppose all the 
 fifteen legatees had died in the life-time of 
 the testator, would it not have been compe- 
 tent to the heir-at-law to have insisted, in 
 equity, that no sale should be made of the 
 real estate? Would it have been possible to 
 contend that, because the testator had blend- 
 ed the funds, in order to make a disposi- 
 tion which never tools effect, and without a 
 view to any other given circumstances, that 
 he had therefore blended them, if, in the 
 event, he had made no disposition; that be- 
 cause he had made the real estate personal 
 to give it to his residuary legatees, and to 
 disappoint his heir, he meant also to disap- 
 point his heir, whether his residuary legatees 
 did or did not, in the event, take the benefit 
 of that disposition? The fact of his having 
 blended the funds proves not a mere inat- 
 
 14» 
 
€ase No. 19 
 
 ACKROYD V. SMITHSON". 
 
 (§ 12 
 
 tention, not mere indifference to tlie inter- 
 ests both of liis next of kin, and liis heir at 
 Jaw, but it proves a purpose hostile to both: 
 can that fact then be a ground.'from whence 
 to infer that, in a change of circumstances, 
 he had a purpose of kindness and bounty to 
 the next of kin, and adverse to the interest 
 of the heir only. The reason of the inten- 
 tion ceasing, the intention should be taken 
 to have ceased. The testator meant to 
 change the legal qualities of his property, 
 when he meant to alter the disposition which 
 the law would make of his property: but if. 
 In the event, the law was to make the dis- 
 position of any part of the property,— he 
 meant, for aught that appears to the con- 
 trary, (and something must appear to the 
 contrary to defeat the claim of the heir,) that 
 the law wliich made the disposition, should 
 decide on the qualities of the property of 
 which it was to dispose. If then, in case all 
 the residuary legatees had died, the heir 
 could have prevented a sale,— is it to be said, 
 that because a sale must be made, he shaU 
 not have that part of its produce which the 
 objects of the testator's bounty cannot take? 
 It is not true, that where it is necessary that 
 ji sale should be made to effectuate the tes- 
 tator's purposes, which are capable of tak- 
 ing effect, that such sale will convert the 
 nature of that part of its produce jvhich can- 
 not be applied according to the testator's in- 
 tention. In the case of Emblyn v. Freeman, 
 Prec. Ch. 541, the heir was held entitled to 
 i200 arising from the sale of real estate, 
 which the testator has made liable to an ap- 
 fiOLutment by note, concerning which he had 
 made no appointment; and there a sale was 
 necessary. In the case of Digby v. Legard, 
 3 P. Wms. 22, note, where the heir was held 
 entitled to the benefit of the devise lapsed 
 l)y the death of one of five tenants in com- 
 mon of money, to be raised by sale of real 
 estates in the life-time of the testator, the 
 heir could not possibly prevent a sale: As 
 to the cases of Mallabar v. Mallabar, and 
 Durour v. Motteux, they can be considered 
 us authorities only by those who do not at- 
 tend to the distinction submitted above: they 
 are so far from deciding the case, that they 
 establish no principle which applies to it.— 
 In Mallabar v. Mallabar, the real and per- 
 sonal estate are not blended by the terms of 
 the devise in the beginning of the will, which 
 is a devise of real estate only, upon trust to 
 sell: and that out of the moneys arising there- 
 from, the testator's debts should be paid, 
 find after payment thereof, he devised out 
 of the remainder of the money, £500 to his 
 sister Mary Bainbridge, £500 to his sister's 
 two children, that should be living at the 
 time of his decease, equally to be divided 
 between them; £500 to his nephew Nicholas, 
 who was his heir-at-law; £500 to be divided 
 amongst the children of his late brother, 
 James Mallabar, living at his decease; then 
 follows the clause which was held to blend 
 144 
 
 the funds. "Item, after all my debts and 
 legacies paid, I give and bequeath all the 
 rest and residue of my personal estate unto 
 my sister Esther Mallabar:" and appoint her 
 executrix. The question was, whether there 
 was a resulting trust for the heir, as to the 
 money arising from the sale of the real es- 
 tate, after payment of the debts, and the 
 several sums of £500. The court held that 
 the testator had made all his property per- 
 sonal, or rather it infei'red from the purpose 
 of the testator, as far as that could be col- 
 lected from the will, that the testator meant 
 by the residuary clause to describe not only 
 money strictly personal estate, but the money 
 claimed by the heir likewise; the court in- 
 ferred this from the circumstance of the heir's 
 having a legacy of £500 out of that very 
 money, and because, if a different construc- 
 tion was made, the sister his executrix, to 
 whom the testator clearly intended to give 
 a beneficial interest, would have taken noth- 
 ing but a troublesome otfice; for, if the words, 
 "the residue of the personal estate" did not 
 include this money, the pereonal estate musi 
 have been first applied, to pay the debts and 
 legacies, In exoneration of the real estates 
 charged therewith by the will, and the ex- 
 ecutrix would have had an office of trouble 
 without the benefit intended her: but though 
 the court considered the suplus of the money 
 as personalty, as between her, whom it held 
 to be a residuary legatee, and the heir, to 
 effectuate the testator's intention, does it fol- 
 low, that if the testator had died intestate as 
 to the surplus, as the testator here did as 
 to a part of it, that the com-t would have de- 
 termined against the heir in favor of the next 
 of kin, in whose favor no such argument as 
 to intention could have been urged? If the 
 residuary legatee had died In the testator's 
 life-time, the will must have hajj the same 
 construction as if the residuary clause had 
 not been inserted; for where the residuary 
 clause has no operation to any substantial 
 purpose, it cannot be considered as a part of 
 the will: If it had not been inserted, the de- 
 vise of the real estate would have been a 
 devise to pay debts and legacies merely; in 
 such case, then, it is clear that, as to the sur- 
 plus, there would have been a resulting trust 
 for the heir: The debts and the smns of £500 
 being paid, the testator's intention would 
 have been satisfied, to the extent in which 
 it could take effect; there would then have 
 been an end of the disposition. There is 
 no difference between such a case, and the 
 present case, except that in that case there 
 is no residuary legatee as to any part of the 
 surplus; here there is none as to some part 
 of it; there, then, is a general Intestacy, as 
 to the surplus, here a partial intestacy: but 
 the effect of a partial intestacy must be the 
 same, as to the part, as the effect of a gen- 
 eral intestacy is to the whole. The case of 
 Durour v. Motteux is also a case between 
 residuary legatees and the heir-at-law; there. 
 
§ 12) 
 
 ACKROYD V. SMITHSOSr. 
 
 Case Xo. 19 
 
 the testator gave all his real estates to sell 
 and dispose of the whole with his personal 
 estate, blending them, for payment of his 
 debts, legacies and funeral expenses, and 
 performance of his will; he gave several 
 legacies, and among the rest, £1200 or there- 
 abouts, whereof part was to be laid out in 
 the purchase of freehold lands for charita- 
 ble uses, some of which were, confessedly, 
 within the Mortmain Act, and the rest de- 
 termined to be so; the question was, wheth- 
 er the £1200 should go to the heir-at-law, or 
 to the residuary legatees. Lord Hardwicke 
 said, that he was of opinion, that the money 
 which should arise by the sale of the real 
 estate was turned into personal, and so in- 
 tended by the testator, it plainly appearing, 
 that by the description of all his personal es- 
 tate, he meant to include the whole In the 
 residue, so that it is to be considered now 
 as personal estate; then it comes to this, a 
 will is made, in which there are several leg- 
 acies, and the residue of the personal estate 
 is given away; one of the personal legacies 
 is void by law; the court cannot say, for that 
 reason, that he intended to die intestate, for 
 giving the residue over Includes every thing, 
 let it fall in by reason of the legacies being 
 void, or lapsing in the life of the testator. 
 Now, here, the reasoning of the coiurt is 
 grounded upon the testator's intention to give 
 his residuary legatees every thing which was 
 not otherwise effectually disposed of. And 
 the testator was held to have converted his 
 real estate out and out into personal estate, 
 to effectuate that intention; for the residuary 
 legatees could not otherwise take the £1200. 
 But if the residuary legatees had died in the 
 life-time of the testator, and the next of kin 
 had been called upon to sustain the question 
 against the heir, the reasoning of the court 
 would not apply: arguments from intention, 
 in their favor, could not be resorted to, and 
 the coiirt might have said, and must have 
 said, that the testator meant to die intestate 
 as to the surplus, if there was no residuary 
 legatee named in his wUl living at his death. 
 It could not, in that case, have been said, 
 that the testator meant, by the description 
 of all his personal estate, to Include the 
 whole in the residue, and therefore the void 
 legacy of £1200 among the rest; because the 
 wiU, in that case, must be considered as if 
 nothing concerning the residue had been in- 
 serted in it. Here he meant to make one 
 fund of the whole, to effectuate his intended 
 disposition of the whole; but if subsequent 
 events defeated that disposition, his Inten- 
 tion, in case it took effect, is no proof that 
 he had the same intention in case it did not 
 take effect. If there had been no residuary 
 clause, and If the residuary legatees had been 
 dead, It could have no effect, and therefore 
 could not have been attended to. In Du- 
 rour V. Motteux, it would have been noth- 
 ing more than a devise of real and per- 
 sonal estate for payment of debts, vahd 
 
 ABB. WILLS— 10 
 
 legacies, and funeral expenses; it would have 
 been then a disposition with a special inten- 
 tion; that intention being satisfied, there 
 would have been a resulting trust as to the 
 surplus. It is said, if this way of reasoning 
 was good, it would have entitled the heir to 
 the £1200 in the case ofDurour v. Motteux, 
 for it was the testator's intention there, that 
 the same sum should be considered as money 
 only, in case the charity took it; that the 
 testator never adverted to the event which 
 happened, viz. the residuary legatee's taking 
 it, an event, which he as little thought of as 
 he did of the next of kin's taking the residue. 
 The answer is, the rule of law would not 
 suffer in that case what no rule forbids In 
 this; the law says, where there is a residu- 
 ary legatee, the testator shall be presumed 
 to mean that he should take whatever lapses, 
 either by the death of the legatees, or what- 
 ever is not given according to law. So long 
 as there is any person to take, who is de- 
 clared by the testator to be preferred by 
 him to those whom the law appoints to suc- 
 ceed him, the heir can have no claim. If the 
 testator spoke for himself, he would say, if 
 my special intention of kindneps to the char- 
 ity fails, my general intention of bounty to 
 my residuary legatee shall take place: but 
 where the residuary legatee is removed, there 
 Is nothing like a declaration, by the testator, 
 in favor of the next of kin, to entitle them to 
 succeed the residuary legatees, as there is 
 where there is a general residuary clause in 
 a WiU in favor of the persons named in It to 
 succeed the particular legatees; and to 
 money arising by the sale of land, there can 
 be no claim, in the next of his kin, but what 
 arises from the declaration of the testator; 
 for unless he directs, or expresses, that it 
 shall be considered as personalty, the heir 
 must take It. We admit the heir then to be 
 excluded whUst there are any persons who 
 can take the produce of the real estate un- 
 der the will, the declaration of the testa- 
 tor's intention: we deny that he is excluded 
 by any who make their claim not under the 
 will, but in defect of the will; or that the 
 intention in the will can affect those who 
 claim, upon the ground that there is no will 
 which relates to the subject. The case of 
 Oruse V. Barley, before Sir Joseph JekyU, 3 
 P. Wms. 20, seems to establish those prin- 
 ciples; for it shows, that where any part of 
 the produce of the real estate is so given, 
 as to prove that it was not the testator's in- 
 tention, in case that part should lapse, that 
 It should go to the residuary legatees, but 
 that he has given them the residue exclusive 
 of that part, it shall not go as undisposed 
 personalty to the next of kin. Why should 
 the next of kin take In preference to the heir 
 what the residuary legatees cannot take for 
 another reason, namely, removal by death? 
 The case was, William Banson, seised in tee 
 of freehold and copyhold lands, which he 
 had surrendered to the use of his will, and 
 
 145 
 
Case No. 19 
 
 ACKROYD V. SMITHSON. 
 
 (§ la 
 
 being much indebted by mortgages, and hav- 
 ing a wife and five children, devised all his 
 freehold and copyhold lands to the defend- 
 ant Barley and his heirs, in trust to sell for 
 the best price, and in the first place to pay 
 off all his incumbrances and his debts. He 
 also devised his personal estate to the same 
 i;rustee, in trust to sell, and after the testa- 
 tor's debts paid, to apply the money arising 
 ))y sale of the personal estate, and also the 
 money to be produced by sale of the real es- 
 tate, among his five children, in manner 
 therein after mentioned: To his eldest son 
 ■£200 at his age of 21; all the rest and residue 
 thereof among his four younger children at 
 21, and with benefit of survivorship; the eld- 
 est son died under 21: the question was, what 
 was to become of the £200. The master of 
 the rolls thought it would not go to the 
 younger children, who were only to have the 
 residue, but to the heir. It was objected 
 that all is made laersonal estate; the surplus 
 of the money arising from the sale of the real 
 and personal estate, is to go to the haeredes 
 facti. 
 
 There could be no doubt, it was urged, 
 if the eldest son had died in the testator's 
 Ufe, it would have been a lapsed residuum: 
 But his honor, after looking into precedents, 
 declared for the heir, that it was the same 
 as if so much land, as was of the value of 
 £200 had not been to be sold, but suffered 
 to descend. As to the case of Flanagan v. 
 Flanagan, it Is perfectly different from this: 
 That was a question between the real and 
 personal representative of a person entitled 
 under the will of the testator. The land was 
 sold imder a decree of the court, in a cause 
 in which the person, through whom both 
 claimed, was party; and the decree had or- 
 dered the suplus, if there should be any, to 
 be paid to James Flanagan the father and 
 James Flanagan the son equally. The sale 
 was made under' the decree; and the question 
 arising between the real and personal rep- 
 resentative of Flanagan the father, the coui-t 
 determined the surplus should have the same 
 nature, with respect to them, as the decree 
 had given it with respect to Flanagan the 
 father. In that case, too, the testator had, 
 foreseeing that a sale could not be made, 
 which would produce the exact sum, and 
 no more, directed his trustees to convey the 
 residue of the real estate, which should re- 
 main unsold, or pay the produce of such 
 part as should be sold, and all other the resi- 
 due of his real estates, between the father 
 and the son. Scudamore v. Scudamore, 
 Finch, Prec. 543, Is not to this point: it deter- 
 mines that the representatives of a person 
 entitled under a will, shall take money, as 
 money or as land, according as the person 
 whose representatives they are would have 
 taken it; but it decides nothing between the 
 heir and personal representative of the tes- 
 tator himself. There Is no case in which 
 the next of kin have been considered as en- 
 146 
 
 titled against the heir, in the event of a lapse 
 of the whole, or a part of the residue, except 
 the case of Ogle v. Cook, 1 Ves. Sr. 177, heard 
 19th February, 1748, which, so far as it re- 
 lates to this subject, was thus: Mr. Ogle 
 made his will in 1744, and gave his real es- 
 tate to trustees to sell, and vest the money 
 in stock, and pay the interest to his wife 
 during her widowhood, and after her death, 
 or maiTiage, the principal to his two daugh- 
 ters equally, except that the eldest was to 
 have £1000 more than the other: he gave the 
 residue of his personal estate in the same 
 way. He afterwards executed a convey- 
 ance in trust to sell, for payment of his 
 debts, which was held a revocation pro tanto 
 only, and part was sold. One of the daugh- 
 ters died in Mr. Ogle's life. The bill was 
 brought by the widow, and the eldest daugh- 
 ter, against the son, the heir, and the trus- 
 tees, to have the residue of the estate sold, 
 and claiming the share of the deceased 
 daughter, as personal estate of Mr. Ogle, to 
 be divided between them and the son. The 
 son insisted, that her share was to be con- 
 sidered as real estate: the court decreed the 
 residue of the estate to be sold, and that the 
 produce should be considered as Mr. Ogle's- 
 personal estate. Here, it cannot be denied 
 that the intention of the testator to convert 
 this estate into money, for the sake • of his 
 daughters, was taken to be a sufficient 
 ground for the court's considering the moiety, 
 which in the event was undisposed, as per- 
 sonal estate: but the case of Digby v. Le- 
 gard, is a later authority, and contradicts the 
 doctrine of that case. The cases are not in 
 any respect different, except in the number 
 of the persons interested In the produce. The 
 daughters, in the case of Ogle v. Cook, in- 
 deed had an Interest In the personal, as well 
 as real estate, which was not given In 
 that of Dlgby v. Legard; but the funds are 
 kept separate, and not blended in Ogle v. 
 Cook. The determination in the later ease, 
 we submit, Is neither justified by principle 
 nor by authority. The case of Ogle v. Cook 
 admits the deceased daughter's moiety. In 
 both the real and personal funds, to be un- 
 disposed, but It supposes that the conversion, 
 which the testator made with a view to dis- 
 position, is to take effect, though the disposi- 
 tion does not take effect. Upon the whole, 
 we contend, that, if the shares of the de- 
 ceased legatees In the overplus are undis- 
 posed, parts of those shares being consti- 
 tuted by money arising from the sale of real 
 estate, the heir Is entitled to such part; that 
 the Intention of the testator. In the events 
 that have happened, does not destroy his 
 claim; and that this is a case to which the 
 principles of the adjudications cited by the 
 counsel for the next of kin do not apply. 
 
 THE CHANCELLOR reversed the decree, 
 and directed an account to be taken of the 
 personal estate, and the money arising from 
 
§12) 
 
 ACKROYD V. SMITHSON. 
 
 Case No. 19 
 
 the sale of the real estate, and that the share 
 of the deceased legatees, in the overplus, 
 should be divided betvreen the next of kin 
 and the heir; that is, so much of those 
 shares as was constituted of the personal es- 
 tates, to the next of kin, and so much as 
 was made up of the produce of the real es- 
 tate, to the heir. He said, that he fully ap- 
 proved the determination in Digby v. Le- 
 gard. That he used to think, when it was 
 nwessary for any purposes of the testator's 
 disposition, to convert the land into money, 
 that the undisposed money would be person- 
 alty; but the cases fully proved the con- 
 
 trary. It would be too much to say, that, 
 if all the legatees had died, the heu: could, as 
 he certainly might, ho said, prevent a sale: 
 and yet to say that, because a sale was nec- 
 essary, the heir should not take the undis- 
 posed part of the produce. The heir must 
 stand in the place of the residuary legatees 
 who died, as to the produce of the real es- 
 tate. He said he approved the distinctions 
 made in behalf of the heir, and decreed as 
 before. 
 
 NOTE. See Fletcher v. Ashburner, (1797,) 
 1 Brown, Oh. 497, post; Frayne v. Taylor, 
 (1864,) 33 Law J. Oh. 228, post. 
 
 147 
 
Case No. 20 
 
 SISK V. SMITH. 
 
 (§15 
 
 SISK V. SMITH. 
 
 (6 111. 50.3.) 
 Supreme Court of Illinois. Dec. Term, 1844. 
 
 Error to circuit court, Pope county. 
 
 Petition for leave to sell, &c. John H. 
 Smith, the administrator of Absalom H. 
 Sisk, deceased, filed his application at the 
 October term 1843, of the Pope circuit com-t, 
 for an order to sell the widow's dower and 
 the interest of one of several heirs in certain 
 real estate, of which the said intestate died 
 seized, to pay his debts; 
 
 The petition states that upon an applica- 
 tion for the sale of the same real estate of 
 intestate, an order had been granted by the 
 Pope circuit court at its August term 1842, 
 for the sale thereof to pay debts, and that a 
 sale was made in accordance with the stat- 
 ute; but that the names of Mary Ann Slsk, 
 widow, and also, of Wilson H. Slsk, one of 
 the heirs, were omitted in the papers; and 
 in the order to sell, formerly granted. The 
 petition further states, that it is necessary, 
 in order to pay all the debts, that the widow's 
 dower and the Interest of the said Wilson H. 
 Slsk should be sold to pay the same, and 
 prays an order for that purpose. The heirs of 
 the said Intestate, who are all mlnox-s, and 
 the said Mary Ann Sisk, his widow, are made 
 parties to the petition. A motion was made 
 to dismiss the application for want of proper 
 parties which was denied; a demurrer was 
 then filed by the said Mary Ann Slsk, which 
 was overruled, and an order made that all 
 the interest in said real estate, whicl), had 
 not been before sold by the petitioner in pur- 
 suance of the former order, to wit: the dow- 
 er of the said Mary Ann, and the interest of 
 the said Wilson H. Slsk, be sold as prayed 
 for. 
 
 The errors assigned are, the want of proper 
 parties, the overruling of the demurrer, and 
 granting an order to sell the dower of the 
 plaintiff In error. 
 
 L. Trumbull and W. Allen, for plaintiff in 
 error. J. C. ConkUng, for defendant in error. 
 
 THOMAS, J. This was a proceeding in- 
 stituted by John H. Smith, administrator of 
 Absalom Slsk, deceased, to procure an order 
 of the court below for the sale of the dower 
 of Mary Ann Sisk, the widow and relict of 
 the said Absalom, in his, the said Absalom's 
 lands, for the payment of his debts. 
 
 The said widow denying the legal right of 
 the said administrator to obtain any such 
 order, demurred to his petition, but her de- 
 mm-rer was overruled by the court, and an 
 order was made for the sale of her, the said 
 widow's, dower. She now brings that order 
 before this court by writ of error for our 
 revision, and thus, by the assignment of er- 
 rors, we are called upon to determine wheth- 
 er the claim of the widow to dower, in the 
 lands of her deceased husband, is or is not 
 148 
 
 to be postponed to the payment of his, the 
 said husband's debts. . 
 
 In the investigation of this subject, the m- 
 qulry necessarily arises as to the nature and 
 origin of the estate in dower, and the several 
 modes known to the law of ban-lng or defeat- 
 ing It For the successful prosecution of 
 that Inquiry, the aid of the common law 
 must be invoked, as the right of dower is 
 given by that law, and among us remains un- 
 impaired by legislative innovation, at least 
 as between" the widow and heirs of the de- 
 cedent. Whether it may, for the benefit of 
 the husband's creditors, be defeated by any 
 means, which for such purpose would have 
 been at the common law unavailable, re- 
 mains for further consideration. 
 
 And first, as to the nature of dower. At 
 the common law, it Is the tlurd part of all 
 the .lands, whereof the husband has been 
 seized at any time during the coverture, of 
 such an estate as the children by the wife 
 might by possibility have inherited, and to 
 which by the death of the husband, such 
 wife is entitled for her Ufe. 4 Kent, Comm. 
 69; 2 Bac. Abr. 356, tit. "Dower;" 2 Bl. 
 Comm. 129; 1 Thom. Co. Litt. 443. To the 
 consummation of dower three things are nec- 
 essary, viz: marriage, seizin, and the death 
 of the husband. Id. 444. But although dow- 
 er is a titie inchoate and not consummate, 
 until the death of the husband, yet It is an 
 interest, which attaches on the land, as soon 
 as there is the concurrence of marriage and 
 seizin. It may be extinguished in various 
 ways, although the husband alone, according 
 to the common law, cannot defeat it by any 
 act In the nature of alienation, or charge 
 without the assent of the wife given, and 
 proved according to law. 4 Kent, Comm. 50. 
 "Nor can the husband, by his own act, pre- 
 vent his wife of dower if she attains the age 
 of nine years during the coverture, and there- 
 fore, although he aliens his land before, yet 
 if she after arrives at the age of nine years, 
 her dower is now consummate, ab initio, and 
 overreaches his alienation, for dower being 
 intended as a provision for his wife and 
 children, whenever she attains such an age 
 as the law adjudges her capable of bearing 
 children, nothing fm'ther is required." 2 Bac. 
 Abr. 358. "And as concerning seizin. It is 
 not necessary that the same should continue 
 during the coverture, for albeit, the husband 
 alleneth the lands or tenements, or extin- 
 guisheth the rents, or commons, &c., yet the 
 woman shall be endowed; but it is necessary 
 that the marriage do continue, for if that be 
 dissolved, the dower ceaseth: 'ubi nullum 
 matrlmonlum, ibi nulla dos.' " 1 Thom. Co. 
 Litt. 475. And here the distinction between 
 dower and free bench is apparent, the latter 
 being the widow's estate in such lands as 
 her husband died seized of. 2 Bl. Comm. 
 129, note 19. Thus it appears that tbe dower 
 of the wife is, during the coverture, a title 
 in expectancy to a freehold- estate in one 
 
§15) 
 
 SISK V. SMITH. 
 
 Case No. 20 
 
 third of her husband's lands, her right to the 
 enjoyment of which Is entirely contingent 
 upon, and can only be perfected by her hus- 
 band's death. That event, therefore, casts 
 upon her no new estate or interest, but sim- 
 ply consummates a pre-existing imperfect 
 one. Consequently, when she is endowed, 
 she is In from the death of her husband, 
 and like any other tenant of the freehold, 
 she takes upon a recovery whatever is thus 
 annexed to the freehold, whether It be so by 
 folly, mistake or otherwise. The heir's pos- 
 session is avoided, as not being rightly ac- 
 quired, as to the widow's third part, and the 
 rule that subjects the improvements, as well 
 as the land iu possession of the heir, to the 
 claim of dower, seems a natural result of 
 the general principles of the common law, 
 which gave the improvements to the owner 
 of the soil. 2 Bac. Abr. 368; 4 Kent, Comm. 
 66. And when the certainty of the estate 
 belonging to the widow as dower is ascer- 
 tained by assignment, the estate does not 
 pass by assignment, but the seizin of the 
 heir is defeated ab initio, and the dowress is 
 in, In intendment of law, of the seizin of her 
 husband. Id. 69. 
 
 The contract of marriage is as operative to 
 confer upon the wife a separate life estate 
 in the lands of her husband, as would be a 
 contract whereby the husband himself had 
 conveyed to any third person, a life estate, in 
 express terms, in the same lands, and as 
 the tenant for life in such case would hold 
 such estate as an incumbrance upon the 
 fee simple estate of the grantor, beyond his 
 reach or control, so does the wife hold her 
 freehold estate beyond the reach or control 
 of her husband, and discharged from all 
 judgments, leases, mortgages, or other incum- 
 brances, made by her husband after the mar- 
 riage, because her title being consummated 
 by his death, has relation to the time of the 
 marriage, and to the seizin which her hus- 
 band then had, both of which are prior to 
 said incumbrances. 1 Thom. Co. Litt. 443, 
 note b; 2 Bac. Abr. 387, tit. "Dower." And 
 even if the husband dies indebted to the 
 crown, yet his wife's dower is by law priv- 
 ileged from any distress therefor, for, as it 
 is quaintly remarked, "the veiy name dos 
 doth import a freedom, and the law doth give 
 her therewith many freedoms." And the 
 reason why tenant in dower shall not be dis- 
 trained from the debt due to the king in his 
 lifetime. In the^ lands which she holds in 
 dower, seems to be her prior title by rela-. 
 tion. 1 Thom. Co. Litt. 443; 2 Bac. Abr. 
 387. 
 
 In this country, the doctrine has been rec- 
 ognized by repeated adjudications, that the 
 dower of the wife is not defeated by sale 
 on judgment and execution against the hus- 
 band, or otherwise than by her own assent, 
 or misconduct. Hale v. James, 6 Johns. Ch. 
 258; Dunham v. Osborn, 1 Paige, 635; Ta- 
 bele v. Tabele, 1 Johns. Ch. 45; Smiley v. 
 Wright, 1 Ohio Oond. R. 447. 
 
 Dower at the common law, and by the 
 statutes in aid of it, might be barred or pre- 
 vented. 
 
 1. By divorce a vinculo matrimonii; 
 
 2. By elopement with an adulterer; 
 
 3. By jointure in satisfaction of dowry; 
 
 4. By the attainder of her husband for 
 treason; 
 
 5. By reason of her being an alien; 
 
 6. By detaining the title deeds, or evi- 
 dences of the estate from the heir, until she 
 restores them; 
 
 7. By aliening the land assigned for 
 dower; 
 
 8. By the levying of a fine, or the suffer- 
 ing of a common recovery of the lands by 
 the husband and wife during the cover- 
 ture. 1 Thom. Co. Litt. 475; 2 Bl. Comm. 
 138. 
 
 Chancellor Kent says, that the last men- 
 tioned is the only regular way in the Eng- 
 lish law of barring the wife's dower, aftei- 
 it has duly attached. 4 Kent, Comm. 50. 
 That "many other Ingenious devices have 
 been resorted to in order to avoid the 
 troublesome lien of dower." Id. "But that 
 in this countiy, we are happily not very 
 liable to be perplexed by such abstruse ques- 
 tions and absurd rules, as have incumbered 
 the subjects of dower in England to a griev- 
 ous extent, and that even in those states 
 where the right of dower as at common 
 law exists in full force, the easy mode and 
 familiar practice of barring dower by deed 
 supersedes the necessity of the ingenious 
 devices of English counsel." Id. 52. And 
 he adds, that "the usual mode of barring 
 dower in this country is, by the voluntary act 
 of the wife, not by fine as in England, but 
 by her joining with her husband. In a deed 
 of conveyance of the land containing apt 
 words of grant or release on her part, and 
 acknowledging the same privately apart 
 from her husband in the mode prescribed 
 by the statute laws of the several states." 
 Id. 59. This mode of barring dower by 
 voluntary relinquishment, Is authorized by 
 the statutory laws of this state, (Gale's St. 
 p. 151, §§ 12, 14,) and is not unlike that 
 where the husband and wife levy a fine, or 
 suffer a common recovery as at the common 
 law, In both of which cases she is examined 
 upon record by the judges as to her consent, 
 and she having nothing in the lands in her 
 own right, her joining In such acts, can be 
 to no other purpose, but to bar her dower. 
 2 Bac. Abr. 382. And it may here be re- 
 marked that the only other grounds, spe- 
 cifically prescribed by legislative enactment 
 in this state, for barring or defeating the 
 wife's dower, are 
 
 1. Divorce for her fault or misconduct; 
 
 2. Where the marriage was void from the 
 beginning; 
 
 3. The voluntary elopement and commis- 
 sion of adultery by the wife, unless the hus- 
 band be voluntarily reconciled to her, and 
 permit her to dwell with him; 
 
 149 
 
Case No. 20 
 
 SISK V. SMITH. 
 
 (§ 15 
 
 i. The devise of land, or bequest of per- 
 sonal estate to the wife, unless otherwise 
 expressed in the will, testament, or codicil 
 of the testator; or unless such devise or be- 
 quest be voluntarily relinquished by hor. 
 Gale's St. p. 254, §§ 11, 12; Id. p. 696, §§ 39, 
 40. 
 
 Thus much of the nature of dower at com- 
 mon law, and the several causes barring it 
 there, and by express legislative enactment 
 in this state. I will next proceed to inquire 
 whether there is any provision to be found 
 in any statute of this state, which operates 
 to defeat dower, by implication, or other- 
 wise, in addition to those already enumer- 
 ated. But, as preliminary to that inquiry, 
 
 1 wiU glance, for a moment, at the object of 
 sciving dower to the wife, and the estima- 
 tion in which it is held at the common law. 
 The reason for allowing dower is a very 
 plain and sensible one, viz: to fm-nish means 
 of sustenance for the wife, and of the niu-- 
 ture and education of the younger children 
 after the death of the husband and father. 
 
 2 Bl. Comm. 130; 4 Kent, Comm. 35. And 
 looliing to this reason, and the interesting 
 purposes of the destination of dower, it is 
 held sacred and has been fortified strongly 
 against invasion. Lord Coke remarks, that 
 "it is commonly said that three things bo 
 favored in law, life, liberty and dower." 1 
 Thom. Co. Litt. 14; and in practice, this 
 saying seems at the common law to have 
 been recognized as true. For the purpose of 
 protecting and preserving it as the means 
 of affording sustenance to the widow, and 
 nurture and education to the orphan, it has 
 ever been guarded with the most jealous 
 care, and nothing is by that law allowed 
 to bar it by implication. Is this right, in- 
 tended for so sacred purposes, made any 
 less secm-e by any statute of this state, than 
 at the common law? I think not. 
 
 I have shown that among the several 
 causes expressly provided by statute of 
 barring dower, sale of the husband's lands 
 for the payment of his debts is not one. It 
 will not be contended that we have any 
 statutory provisions, empowering the hus- 
 band during the coverture, in any wise to 
 defeat or impair his wife's right of dower, 
 without her assent; nor that it may be de- 
 feated by sale on judgment and execution, 
 against the husband, or on foreclosure of a 
 mortgage executed by him alone after the 
 marriage, when such sale in either case is 
 made before the husband's death. And yet 
 we have a statute expressly providing that 
 the goods and chattels, lands and tenements 
 of e^'ery person against whom a judgment 
 has been or may be obtained, in any court 
 of record, either at law or in equity, for any 
 debt, &c., shall be liable to be sold on execu- 
 tion, &c. Gale's St. p. 389, § 1. Here, al- 
 though the land of the husband is sold, yet 
 the wife's freehold estate therein is not, but 
 the purchaser takes the husband's title, sub- 
 ject to that incumbrance. Then can It be, 
 150 
 
 that the same estate, when the title thereto 
 is perfected by the husband's death, and 
 when alone she can enjoy its fruition, may 
 be sold without the consent of the widow, 
 for the payment of her husband's debts? 
 tlmt the very contingency which brings her 
 into the possession of her estate, operates to 
 defeat it? If such is the law, then is "the 
 word of promise kept to the ear, but broken 
 to the hope;" and the wife is mocked by 
 having her estate in her husband's lands care- 
 fully guarded against invasion from his or 
 any other person's acts, so long as she has 
 it only in expectancy; but tie moment that 
 the contingency happens, which is to permit 
 her to enter upon and enjoy that estate, 
 tamely yielded up to the rapacious grasp of 
 some one to whom her husband in his life- 
 time had become indebted. Such a law 
 would indeed protect the shadow, but surren- 
 der the substance. It would make the act of 
 the husband posthumously operate to do, 
 what living he was impotent to accomplish. 
 Before we can judge our legislature guilty of 
 so gross an outrage upon common sense and 
 common justice, we must have clear and ir- 
 refragible proof, by language capable of no 
 other sensible construction, that they in- 
 tended it should be so. 
 
 Let us then proceed to the examination of 
 the statutory provisions on which the counsel 
 for the defendant in error relies as so far al- 
 tering the common law, as to subject the 
 widow's dower to the payment of her hus- 
 band's debts, after his decease. Such, it is 
 contended, is the operation of the fortieth and 
 forty third sections of the statute of wills. 
 Gale's St. 696, 697. Is this so? The fortieth 
 section, after enacting that "a widow shall 
 be debarred of her right of dower in the es- 
 tate of her deceased husband, in all cases 
 where any provision shall be made for her" 
 in his wiU, unless within a certain time she 
 make a written renunciation of such provis- 
 ion, goes on further to provide, that "said 
 letter of renunciation shall be filed in the of- 
 fice of judge of probate, and shall operate as 
 a complete bar against any claim which such 
 widow may afterwards set iip to any provis- 
 ion, which may have been thus made for her 
 in the wiU of any such testator; and by 
 thus renouncing all claims to a devise or be- 
 quest, as aforesaid, such widow shall there- 
 upon be entitled to the one third part of 
 the real estate of her deceased husband for 
 life, and one third part of the personal es- 
 tate forever, which shall remain after the 
 payment of all just debts and claims against 
 the estate of such testator." The words 
 "which shall remain," and concluding this 
 section, it is said, have reference to the pre- 
 ceding words relating to the widow's dower 
 in the real estate of her husband, as well as 
 to her right to one third of his personal es- 
 tate; making her dowable only in the lands 
 remaining after the payment of his debts; 
 but in this view of the subject I do not con- 
 cur. 
 
§ 15) 
 
 SISK V. SMITH. 
 
 Case No. 20 
 
 Aj I have ak-eady said, dower is in this 
 state a common law and not a statutory right. 
 We have several statutes recognizing, but not 
 conferring it; although it is extended by ovu: 
 state legislation to at least two cases, in 
 which by the common law It might not be 
 claimed, to wit, In malting the widow of an 
 alien dowable of the lands of her husband, 
 <Gale's St. p. 698, § 48,) and in subjecting the 
 husband's equitable estate to dower, (Id. § 
 49.) 
 
 The first section of the law entitled, "An 
 act for the speedy assignment of dower," 
 ^c, (Gale's St. 252,) in force June 1, 1827, 
 •enacts, "that when the he'r, or other person, 
 having the next Immediate estate of freehold, 
 or other inheritance, shall not within one 
 month next after demand made, assign and 
 set over to the widow of the deceased, to 
 her satisfaction, her dower in and to all lands, 
 tenements and hereditaments, whereof by 
 law she is, or may be dowable, according to 
 the true intendment of law, then such widow 
 may sue for and recover the same, in the 
 manner hereafter prescribed, against such 
 heir, or other person, having the next imme- 
 diate estate of freehold, or inheritance, or 
 tenant in possession, or other person or per- 
 sons claiming right or possession in said 
 estate." 
 
 The fifth section of the same act authorizes 
 the court, where on petition filed the widow 
 is adjudged to recover dower, to appoint 
 ■commissioners to allot and set it ofE to her, 
 and "make return in writing, under their 
 hands and seals to said court, which if ap- 
 proved by said court, shall vest in her an 
 estate in the lands and tenements so set ofC 
 and allotted to her, for and during her nat- 
 ural life." This act no where, either express- 
 ly or by impUcation. makes the widow's 
 right to dower contingent upon the payment 
 of her husband's debts, but leaves it precisely 
 as at the common law; and thus it stood, on 
 the first day of July, 1829, when the statute 
 •of wills, tlie fortieth and forty third sections 
 •of which are' under consideration, went into 
 ■efCeot. The question, therefore, now arises, 
 whether the said last mentioned statute in 
 •either of its said sections, (for it Is not pre- 
 tended that in any of its other provisions it 
 does,) dlstiu'bs that right. To determine that 
 •question resort may properly be had, as I ap- 
 prehend, to the rule of construing testa- 
 mentaiy provisions, relied upon for the pur- 
 pose of barring or excluding dower, and un- 
 <Jer its operations, 1 wiU proceed to show, 
 that the estate of the wife is as wholly inde- 
 feasible, by the creditors of the husband for 
 the payment of his debts, by reason of any 
 -thing contained in the statute of wills, as it 
 was before Its passage. 
 
 That rule is expounded in strong and ex- 
 plicit terms, in various authorities. In 2 
 Bac. Abr. 383, note a, it is said, that "de- 
 vises of lands, money, goods, &c., will in no 
 •case bar dower, except where there is an 
 express declaration, that they are in lieu or 
 
 satisfaction of dower, or on account of strong 
 and special circumstances, showing a clear 
 and Incontrovertible Inference from the wiU, 
 that the testate meant that she should not 
 take both. In such cases she may elect 
 which she will take; in others she shall have 
 both." Again, it is said, that "it is well estab- 
 lished as a general doctrine, that since dower 
 is a legal right, the intention to exclude that 
 right by a devise or bequest of something 
 else, must be demonstrated. If not by ex- 
 press words, at least by what appears to the 
 com-t to amount to accessary implication." 
 2 Bl. Comm. 138, note 33. And Chancellor 
 Kent remailis, that "to render a testamentary 
 provision operative in lieu of dower, even 
 with the widow's acceptance of it, it must 
 be declared in express terms to be in lieu of 
 dower, or that intention must be deduced by 
 clear and manifest implication from the will, 
 founded on the fact that the claim of dower 
 would be inconsistent with the wiU, or so 
 repugnant to its dispositions as to disturb 
 and defeat them." 
 
 Testing the intention of the legislature, 
 touching the effect to be produced by the con- 
 cluding words of section forty of the statute of 
 wills, upon this "legal right" of the widow, 
 by this rule thus established for determining 
 the alleged intention of the husband by his 
 wUl, to bar the same "right," and it remains 
 unlmpau-ed. Those words may, without any 
 departure from grammatical accuracy, and 
 by their mere transposition, be paraphrased 
 thus: "such widow shall thereupon be enti- 
 tled to the one third part of the real estate 
 of her husband for life; and (also) to one 
 third of the personal estate, which shall re- 
 main after the payment of all just debts, 
 and claims against the estate of such testator, 
 forever;" and this T conceive to be their true 
 Interpretation. It is true that the language 
 used is susceptible of a different grammatical 
 construction, and yet to construe It otherwise, 
 would be to violate the spirit of the rule re- 
 ferred to, as well as those general pi-inciples 
 of law, subjecting to the control of the hus- 
 band, by alienation or otherwise, and to the 
 payment of his debts, without the assent of 
 his wife and irrespective of her Interests, all 
 of his personal, but none of his real estate. 
 The intention of the legislature to bar, de- 
 feat or diminish the legal estate of the wife, 
 inchoate during the coverture, but consum- 
 mate by the husband's death, is not herein 
 manifested by express words, or by necessary 
 implication, and therefore I feel constrained 
 to say that they did not so Intend. But 
 moreover. In the constnictlon of this section 
 of the statute, we are to look at the object 
 of the legislature in its enactment; thus it 
 will appear that it was intended not to speci- 
 fy in what cases, or of what lands the widow 
 should be dowable, but simply to provide 
 for the renunciation by her of any devise or 
 bequest made to her In the husband's will, 
 without any express provision that the same 
 should not bar dower, and which, without 
 
 1.-51 
 
Case No. 20 
 
 SISK V. SMITH. 
 
 (§15 
 
 such renunciation, would operate to bar her 
 dower, by the terms of this and the preceding 
 section. It is confined by Its own limitations 
 to such cases, and the whole section, taken 
 together leaves the interest of the widow, in 
 the hands of the husband precisely as it 
 would have been, if no such devise or be- 
 quest had been made. 
 
 A different construction of this provision 
 o? law, would enable the husband in all cases 
 to divest by his own volition, the estate of 
 his wife, by acts, inoperative during his own 
 lifetime, but effective after his death. He 
 could not, it is true, alien that estate, or so 
 incumber, as directly to bar, or affect it, 
 without her free and voluntary co-operation; 
 but by simply incurring debts exceeding in 
 amount the entire value of his estate, and 
 then making her a devise or bequest of spe- 
 cific property, in his will, he could if he chose 
 to do so, destroy her entire interest in his 
 lands, without the possibility of hindrance by 
 her. By offering her a shadow, whether she 
 grasped at it or rejected it, he could snatch 
 from her, her entire substance. The claim 
 of the creditor upon the testator's property, 
 for the payment of his debt, would be par- 
 amount to any title to be derived by her un- 
 der the will, but not to her title as tenant in 
 dower, at least independently of the provi- 
 sions of this law. In cases then, where as 
 in the case under consideration, the entire 
 estate of the testator would not suffice to 
 pay his debts, the effect of accepting or re- 
 jecting his proffered bounty, would be the 
 same. To accept would be to bar her dower, 
 while to refuse, would be to entitle her to 
 demand it only after the payment of her 
 husband's debts, and thus forever to exclude 
 her from it, thereby making the tree planted 
 by him but barren in his lifetime, to yield 
 abimdantly its bitter fruits after his decease! 
 Oould the legislature have intended to make 
 the act of the husband, (powerless in his 
 lifetime,) so potent for mischief after his 
 death? Oould they have intended that the 
 mere offer of the testator's bounty, although 
 valueless in itself, and rejected by the widow, 
 should destroy forever her only means of 
 sustenance, for herself and her infant chil- 
 dren, while, if no such offer had been made, 
 it would have remained wholly untouched? 
 I opine not. 
 
 Thus much of the fortieth section of the 
 statute of wills. Very much that has been 
 said of it, applies to the forty thu-d section. 
 That section was Intended simply to regulate 
 the descent of the real and personal estate 
 of Intestate proprietors, and is expressly 
 made to operate only on such portion thereof 
 as remains after the payment of the intes- 
 tate's debts, but concludes by "saving to the 
 widow, in all cases, her dower of one third 
 part of the real for life, and the one third part 
 of the personal estate forever." There is noth- 
 ing in this section, subjecting, either express- 
 ly, or by necessary implication, the widow's 
 dower to the payment of her husband's debts; 
 152 
 
 but, on the contrary. It is expressly "saved" 
 to her "in all cases," whether those debts are 
 paid or not. And, indeed, it might be con- 
 tended that under the broad and sweeping 
 terms of the reservation of her rights in this 
 section, she is entitled to hold even the one 
 third part of the intestate's personal estate 
 forever, by a title paramount to the creditor's 
 claim thereon, were it not that such a cbn- 
 stiTictlon would be in conflict with the forti- 
 eth section, and other provisions of the same 
 statute, and with the general principles of 
 law governing in such cases. 
 
 The foregoing views find confirmation in 
 the provisions of section eighty four of this 
 same law, (Gale's St. 708,) entitling the 
 widow to receive her portion in the personal 
 estate of her deceased husband, only in cases 
 of the solvency of such estate; and in the fact, 
 that neither in that nor any other statutory 
 provision, any such restriction is by express 
 terms imposed upon her right to receive and 
 enjoy her dower in his lands. .They are also 
 sanctioned by the language of sections ninety 
 eight and ninety nine, (Gale's St. 711, 712,) 
 under the authority of which this suit was 
 instituted. Proceedings are thereby contem- 
 plated only against the heirs and devisees of 
 the testator or intestate, and no where (as 
 they have been prosecuted in this case,) 
 against his widow; consequently it would 
 seem that the interests of the former only 
 should thereby be affected. But moreover 
 the court can only order the sale of lands of 
 which the decedent died seized, and in all 
 such lands the widow is always held dowable. 
 From this review of the various principles 
 of the common law, giving, defining and pro- 
 tecting dower, and of the several statutory en- 
 actments on the same subject in this state, 1 
 think it must be apparent, that precisely the 
 same estate in the lands of the intestate may 
 be sold by his administrator by order of the 
 circuit court, as the sheriff might sell on ex- 
 ecution against him in his lifetime; being 
 in both cases. Incumbered by the wife's free- 
 hold estate therein. But If any doubt still 
 exists as to the intention of the legislature 
 to protect this estate so favored in the law. 
 it must be dispelled by resort to another, 
 and an unerring mode of ascertaining their 
 intention in the premises. 
 
 In the construction of statutes, they are 
 said to be their own best expositors, and for 
 the purpose of ascertaining the Intention of 
 the legislature, in enacting them, their own 
 provisions, and those of other acts in pari 
 materia, need only, as a general rule, be ex- 
 amined. But under the peculiar system of 
 legislation in this state, a more satisfactory 
 exposition of the true intent and meaning of 
 a statute is sometimes found in matter ali- 
 unde, than can be deduced from Its own pro- 
 visions. Such is the case, where the council 
 of revision retm-n a bill to the house, in 
 which it originated with their objections to 
 its becoming a law, and the legislature re- 
 pass It, either In its original shape, the ob- 
 
§ 15) 
 
 SISK 0. SMITH. 
 
 Case No. 20 
 
 jectlons of the council to the contrary not- 
 withstanding; or so amended, as to obviate 
 those objections. In such case, the intention 
 of the legislature is manifest, and perpetu- 
 ated by the record of their proceedings in 
 the legislative journals. Let the exposition 
 of this law, then, be found in the application 
 of that rule. On the 23d day of January, 
 1829, the council retm-ned this same act to 
 the senate, with the following objections, viz. : 
 
 "The council of revision have had under 
 consideration the above bill, and retm'n the 
 same to the senate as Improper to become a 
 law of this state; for although the council 
 highly approve of the general features of the 
 bUl, yet (they) cannot approve of the prin- 
 ciple contained in the fifty first section, 
 which takes away the widow's right of dower 
 in the real estate of her husband, where he 
 dies insolvent. The right of dower in the 
 husband's estate has for ages been considered 
 so sacred, that this is believed to be the first 
 instance in our country, where this right has 
 been interfered with. The bill can be 
 changed so as to suit the views of the coun- 
 cil, either by striking out the fifty first sec- 
 tion altogether, or by striking out the word 
 'dower' in two places, and inserting in lieu 
 thereof, 'personal estate.' iSinian Edwards, 
 Samuel D. Lockwood, William Wilson, Theo. 
 W. Smith." 
 
 Senate Journal, Session 1828-29, p. 283. 
 On the same day, the said bill was amended 
 by striking out the said fifty first section, and 
 re-passed through both houses of the general 
 assembly, and so became a law. Id. pp. 
 286-288; House Journal, 1828-29, p. 344. 
 
 Could the Intention of the legislatm-e be 
 more clearly manifested, touching the effect 
 to be produced by the passage of this law, 
 upon the right of dower, than it is in these 
 proceedings? The council say to the leg- 
 islature: "This bill contains but one objec- 
 tionable feature; the operation of one of its 
 provisions, if passed in its present shape, 
 wUl be to take away the widow's right of 
 dower, in the real estate of her husband 
 where he dies insolvent, and therefore it 
 should be amended by striking out that pro- 
 vision." The legislature amend the bill by 
 striking out the objectionable feature, and 
 thus say in effect in reply to the council: 
 "We concur with you in opinion that it would 
 be improper that this right, which has been 
 held sacred for ages, should be defeated by 
 the husband's creditors, and are unwilling 
 to exhibit in our action, the first instance, 
 where, in the annals of legislation in our 
 country, it has been interfered with; we, 
 therefore, further agreeing with you in opin- 
 ion, that the section referred to by you would 
 produce such an effect, but that no other 
 provision of this bill does, strike out that 
 s^ction and so re-pass the bill, thus leaving 
 this right as we found it, and wholly unim- 
 paired by our legislation." 
 
 It is the opinion of the coui-t, that the 
 judgment of the court below was erroneous; 
 
 it is, therefore, reversed with costs, to be 
 paid by the administrator in the com-se of 
 administration. 
 
 WILSON, 0. J., delivered the following sep- 
 arate opinion: 
 
 This case presents but one question for 
 our consideration, and that is, as to the wid- 
 ow's dower. By the defendant's coimsel it 
 is contended, that under the forty third sec- 
 tion of the act relative to wills and testa- 
 ments, executors and administrators, &c., 
 that the widow of a man dying intestate is 
 entitled to dower in such lands only, as may 
 be left after the payment of all the debts 
 of her deceased husband. This section reg- 
 ulates the manner in which the real and per- 
 sonal estate of a person, dying intestate, shall 
 descend. It first provides, that "estates both 
 real and personal, of resident or non-resident 
 proprietors, in this state, dying intestate, or 
 whose estate, or any part thereof, shaE be 
 deemed and taken as intestate, and after all 
 just debts and claims against such estate 
 shall be paid as aforesaid, shall descend to 
 and be distributed to his or her children in 
 equal parts." But, in case there shall be no 
 cliildi"en, the statute provides that it shall 
 descend and go to the next of kin and the 
 widow, if there be one, and after enumerat- 
 ing the degrees of kin, and prescribing the 
 interest they shall have, it concludes by say- 
 ing, "saving to the widow, in all cases, her 
 dower of one third part of the real estate for 
 life, and the one third part of the personal 
 estate forever." 
 
 The adoption of the rule contended for 
 wovild produce a great change in the law as 
 it has stood for centuries, and one, I think, 
 fraught with great injustice and mischief. 
 To restrict the. widow's dower to one third 
 of the land of her husband, after all his 
 debts are paid, would in a vast many cases 
 leave her and her family totally destitute, 
 except the small amount of exclusive prop- 
 erty allowed the wife by statute. If the 
 widow's title to dower rested exclusively up- 
 on this provision of the statute, without any 
 other foundation or legal provision, the posi- 
 tion assumed by the defendant would seem 
 plausible. The language of this section of the 
 statute might bear the construction contend- 
 ed for, if interpreted without reference to 
 the settled policy of the law, and without 
 regard to the justice and equity of the wid- 
 ow's claim. But these considerations ought 
 to control, not a direct and positive enact- 
 ment, but an implied one merely. It is not 
 pretended that the right of dower is taken 
 away or limited by express terms, but that 
 the limitation of the descent of the estate 
 of the deceased to his heirs, after the pay- 
 ment of his debts, should apply also to the 
 widow's dower, and constitute a virtual re- 
 striction of her right, and postpones her 
 claim to that of all others. Can it be sup- 
 posed that the legislatm-e intended by this 
 single expression, and that too when not in 
 
 153 
 
Case No. 20 
 
 SISK V. SMITH. 
 
 (§ 15 
 
 connection with the assurance of the widow's 
 dower, nor in an act professing to be upon 
 the subject of dower, to postpone to the last, 
 and In many instances totally reject the most 
 meritorious claim upon the estate of the de- 
 ceased? This construction would prostrate 
 all the barriers, which the benign spiilt of 
 the law has thrown around this righteous 
 and favored Interest It would, in effect, 
 repeal and make a mockery of that jealous 
 and just provision of the law, which protects 
 the wife, as far as practicable, against the 
 injustice, folly or prodigality of her husband, 
 by securing and perpetuating her title to 
 dower, in all the real estate which her hus- 
 band may own during coverture, imless she 
 by deed voluntarily renounces her title there- 
 to. In how many instances would this be a 
 protection to the rights of the wife, if left 
 to the tender mercies of her husband's cred- 
 itors? Of what avail would be her title to 
 dower in lands sold during covertui'e, and 
 to which she had never relinquished her ti- 
 tle, when their value, or the price for which 
 they sold, would constitute a claim upon the 
 estate paramount to hers, and which must 
 first be settled? 
 
 There is another view of this question, 
 which I think decisive of the widow's right 
 of dower, as it existed before this statute. It 
 is not upon this statute that the widow's 
 title to dower depends. It does not confer 
 her dower, nor is it upon this that she relies. 
 The question, therefore, is not with what 
 portion of her husband's estate this statute 
 endows her, but whether it takes from her a 
 right and interest, which the law had previ- 
 ously conferred upon and seciu-ed to her. 
 In England, and in most of the states of the 
 Union, and also in this state, the law has 
 endowed the wife upon the death of her hus- 
 band with an estate for life, in all the lands 
 and tenements of which he was seized dur- 
 ing coverture, provided she has not relin- 
 quished her right in the manner prescribed 
 by statute, or her title thereto been barred, 
 forfeited, by some one of the various modes, 
 or acts, known to the law as producing such 
 a result. In this state the right of dower 
 Is extended to half of the estate of the hus- 
 band, in some cases, and she is also made 
 dowable of all equitable interests which the 
 husband may acquire. 
 
 Thus it will be perceived that the widow's 
 right of dower in the lands of her husband 
 is given by the common law, independent of 
 his debts, that it is a legal right sanctioned 
 and enlarged and regulated by statute in a 
 constantly advancing spirit of justice and 
 liberality. Can it, then, have been the inten- 
 tion of the legislature, by this indirect and 
 equivocal language of the forty third section 
 of the act regulating wUls, to change the 
 whole policy of the law in relation to dower? 
 I think not. Such a design would be in dl- 
 rect opposition to the spirit of legislation up- 
 154 
 
 on this subject, and is not warranted by tho 
 language of this section. It does not profess 
 to repeal the existing law, or to limit or re- 
 strict the right of dower, except by implica. 
 tion; and that must be regarded as slight, 
 when considered in connection with the 
 whole subject. Upon legal principles, there- 
 fore, this provision of the statute interposes 
 no barrier to the widow's dower in the lands 
 of the husband. Her title to dower is a 
 legal one, and such an interest the law will 
 never permit to be divested, or defeated by 
 mere implication or presumption. 
 
 If further evidence of the Intention of the 
 legislatm-e to leave the right of dower unim- 
 paired were required, it could be abundantly 
 demonstrated by a reference to the history 
 of the passage of the law relied on by the 
 defendant. When that act first passed the 
 legislature, it contained a section which, in 
 express terms, limited the widow's dower, 
 in the real as well as personal estate of her 
 husband, to one third thereof, after the pay- 
 ment of the debts of the husband. The coun- 
 cil of revision retui'ned the bill to the leg- 
 islature with an objection to this provision, 
 because it produced a change in the law of 
 dower, which was unjust and unprecedented, 
 and ought not, therefore, to become a law. 
 Upon a reconsideration of the bill, the legis- 
 latm-e concurred in opinion with the council, 
 and struck out this objectionable provision, 
 and then passed the bill as it now stands. 
 This circumstance of itself clearly demon- 
 strates the intention of the legislature to 
 leave the widow's right to dower unimpaired. 
 And when considered in connection with the 
 liberal spirit of legislation upon this subject, 
 which has been constantly on the advance 
 for years, and no where more so than in 
 this state, I think it can leave no doubt as 
 to the intention of the legislature, and as 
 little doubt can be felt as to the operation 
 of the provision, when tested by the legal 
 rules of interpretation. It is doubtful and 
 equivocal in its language, and it is only by 
 implication that it can be claimed to divest 
 the widow's legal equitable and favored in- 
 terest, to allow which, would be alike in 
 violation of justice and the fundamental 
 principles of the law. I think, therefore, 
 that the judgment of the com-t below should 
 be reversed, with costs against the defend- 
 ant in his fiduciary character. 
 
 NOTE. As to dower in wild lands, see Ma- 
 caulay v. Land Co 2 Rob. (Va.) 507; Conner 
 V Shepherd, 15 Mass. 164; dower in mines, 
 Stoughton V Leigh 1 Taunt. 402; Lenfers v! 
 ilenke, id 111. 405: dower in mortgaged es- 
 tates, Mills V. Van Voorhies. 20 N. Y. 412- Mc- 
 Cabe V. Swap, 14 Allen, 188; dower in 'trust 
 estates. Banks v. Sutton, 2 P. Wms 700- 
 D Arcy v. Blake, 2 Schoales & L. 387. In some 
 states dower is allowed in personal property 
 McClure v. Owens, 32 Ark. 443. This is more 
 ot the nature of a widow's allowance than 
 dower. 1 Woerner, Adm'n, § 110, and note 8, 
 
§15) 
 
 BIRMINGHAM o. KIUWAN. 
 
 Case No. 21, 
 
 BIRMINGHAM v. KIRWAN. 
 (2 Schuales & L. 444.) 
 High Court of Chancery. June 25, 1805. 
 Nicholas Birmingham being seised of real 
 estate in fee simple, and possessed of con- 
 siderable personal estate, on the 25th day 
 of October, 1793, made his last will, where- 
 by he devised his personal property to trus- 
 tees, upon trust out of the rents and profits, 
 or by sale or mortgage thereof, to pay all 
 such just debts of eveiy kind, as he should 
 happen to owe upon his decease: and next,*e 
 raise a sum of £4000: of which sum he di- 
 rected that £200 should be paid to his wife, 
 Elizabeth Birmingham, and the remainder 
 in various proportions to his sisters, and 
 other persons. "And as to my demesne, con- 
 taining about 170 acres or thereabouts, to- 
 gether with my house, oflices and gardens," 
 the testator devised the same "on further 
 ti-ust to permit and suflfer my beloved wife 
 to hold and enjoy the same during her nat- 
 m-al life, she paying yearly every year dur- 
 ing her life 13s. for every acre contained 
 in my said demesne, exclusive of bog; to 
 keep the said house, offices and garden in 
 perfect repair; and not to set to any per- 
 son, save such person as shall be in posses- 
 sion of the remainder." And as to all the 
 residue of the said lands, subject to the 
 payment of his debts and legacies as afore- 
 said, the same were devised to the use of 
 John Birmingham for life, remainder to his 
 son Nicholas Birmingham, his heirs and as- 
 signs. And as to all his personal estate 
 <save his stock of cattle, hotise-hold furni- 
 tm-e and plate, which he had previously be- 
 queathed to his wife) the testator bequeath- 
 ed the same to his executors, to be by them 
 applied so far as the same would reach, in 
 exoneration of his real estates, by applying 
 the same to the payment, first of debts, and 
 then of legacies. 
 
 The testator died on the 26th of Novem- 
 ber, 1793; and his widow afterwards intei"- 
 married with Rickard Bm-ke. This bill was 
 filed in 1796, by James and John Birming- 
 ham, against Mr. and Mrs. Burke, and 
 against Kirwan and other elegit creditoi-s, 
 who had gotten possession of part of the 
 estate devised: and on the 9th of December, 
 1799, a decree was made, whereby it was 
 inferred to the master, amongst other 
 things, to take an account of the real and 
 personal estate of Nicholas Birmingham, the 
 testator, into whose hands the same came, 
 and how disposed of; and also an account 
 of his debts, legacies and funeral expenses. 
 Thereupon the master, on the 22d day of 
 July, 1803, reported, that the testator died 
 seised of a fee simple estate o£ the clear 
 yearly value of £800: and that upon his 
 death, his house demesne, containing 175 
 acres, came into the hands of Elizabeth Bir- 
 mingham, by virtue of said devise, at the 
 rent of 13s. during her life: and that the 
 remainder of the lands had gone Into the 
 
 hands of the defendant Kirwan, and other 
 elegit creditors. He fm-ther reported, that 
 upon the 23d day of January, 1797, one- 
 third part of said lands came into the hands 
 of said Elizabeth, now the wife of Rickard 
 Burke, Esq., by virtue of a writ of dower; 
 that the said Rickard and Elizabeth then re- 
 mained in possession thereof, and of the 
 rents issues, and profits thereof: and that 
 the remaining two-thirds of said lands came 
 into the hands of Nicholas Birmingham, the 
 plaintiff, on or about the 13th day of De- 
 cember, 1799. And the master further re- 
 ported a sum of £4545 as due for principal 
 and interest on the footing of the several 
 legacies in said will mentioned. 
 
 The cause now came on to be heard upon 
 exceptions and merits. The third excep- 
 tion was, tliat the master had charged in- 
 terest on the several legacies bequeathed by 
 the said N. Birmingham, although by the 
 decree he was not warranted so to do: but 
 the principal point that was argued was, 
 whether the widow of the testator was enti- 
 tled both to dower, and also to the provi- 
 sion made for her by the will. 
 
 Mr. Sunrin and Mr. Daniel, for plaintiff. 
 The Solicitor General, (Mr. Kirwan,) and Mr. 
 Conmee, for defendant. 
 
 LORD CHANCELLOR, (after going 
 through the exceptions, and observing on 
 the thu'd exception, that the practice here 
 had always been for the master to compute 
 interest on legacies, though the decree, con- 
 trary to the usual form in England, had not 
 contained an express direction for the pm*- 
 pose: and therefore that the direction to 
 take an account of the legacies must be 
 understood in this country to include an ac- 
 count of interest) proceeded: 
 
 In the discussion of this case it occvin-ed 
 as a matter of doubt, how far the wUl im- 
 posed a condition on Mrs. Burke with re- 
 spect to her dower; whether she could claim 
 under the will, and have her dower also. 
 This question has been fully argued; all the 
 cases which have occm-red on the subject 
 have been looked into with accm-acy and 
 attention; and the result of the considera- 
 tion which I have given to the cases de- 
 cided at law and in equity, is, that I con- 
 ceive Mrs. Burke is not precluded of auj- 
 demand of dower, except with respect to 
 the demesne and house and garden, which is 
 given to her with a certain degi-ee of bene- 
 fit, that is, at a rent which I presume to be 
 considerably below the actual, value. The 
 will gives all the estates to trustees on cer- 
 tain trasts, the objects of which are, first 
 to pay debts, and then legacies; applying 
 first the general personal estate, whatever 
 it might be. Notwithstanding that direction, 
 and though it applies generally to every part 
 of the testator's real property, the subse- 
 quent part of the will demonstrates that he 
 did not mean that his house and demesne 
 
 155 
 
Case No. 21 
 
 BIRMINGHAM v. KIRWAN. 
 
 (§ .15 
 
 should be sold or mortgaged; for then his 
 intention as to his wife could not talse place; 
 and therefore, unless absolutely necessary 
 for the purpose of discharging the debts of 
 the testator, it is clear that the house and 
 demesne could not be sold during her life. 
 Certainly they could not be sold to dis- 
 charge the legacies; for that would defeat 
 the intention of the testator in favour of 
 his wife, and that intention appears as strong 
 as his intention in favour of the legatees: 
 and in the part of the will containing the de- 
 vise to the wife and to Mr. Birmingham, who 
 now claims the fee, the testator appears 
 clearly, by sufficient words, to have excluded 
 his house and demesne from the immediate 
 general disposition, except the rent to be re- 
 served in the lease to his wife. 
 
 If a sale had been necessary even for pay- 
 ment of debts, that sale must have been sub- 
 ject to the lease to the wife, if sufficient 
 could have been so produced to pay the 
 debts. The will having given such direction 
 with respect to the enjoyment of the house 
 and demesne by the wife, devises the rest 
 of the property to John Birmingham for life, 
 remainder to Nicholas Birmingham, his son, 
 in fee, expressly subject to the payment of 
 the debts and legacies aforesaid. This is a 
 clear demonstration of the Intent of the tes- 
 tator that the property so devised was the 
 property which he intended should be spe- 
 cially subject to his debts and legacies. It 
 is clear besides, from a general view of the 
 will, that he meant to exempt the house and 
 demesne, and that he had no idea that his 
 other property would not be sufficient. I 
 think therefore on the whole of the case, 
 that the intention of the testator was to 
 charge his debts and legacies on the rest 
 of his property, exclusive of the house and 
 demesne, so far as they were intended as a 
 benefit to his wife, that is, subject to tlie 
 lease in her favom-: he meant that she should 
 enjoy them during her life, paying a rent; 
 after her death, that they should go with 
 the rest of the property, as the rent would 
 go during her life. This is not expressed in 
 clear terms; but it is to be collected from 
 the whole will, as the clear intention of the 
 testator. 
 
 Then the question arises, whether Mrs. 
 Burke can claim her dower out of the whole, 
 and at the same time take this benefit under 
 the will. It is insisted on one side, that 
 the disposition made by the will demon- 
 strates the intention of the testator to give 
 her this benefit, in lieu and satisfaction of 
 dower; and ^on the other, it is contended 
 that whatever colour former decisions on 
 this subject may have given to this construc- 
 tion of the will, the latter decisions have run 
 a different way; and that a widow was 
 not to be deemed excluded from her claijn 
 of dower, merely by a bequest to her of 
 part of the estate of which she was dowa- 
 ble, or of an interest arising out of the es- 
 tate. The argument went vei-y far on that 
 156 
 
 subject; for the extent of it seemed to be, 
 that no bequest could be deemed in bar of 
 dower, without express words; and that the 
 widow ought not, in any case, vi^thout ex- 
 press words of exclusion, to be put to her 
 election. I think that position cannot be 
 sustained. 
 
 The general rule is, that a person cannot 
 accept and reject the same instrument: and 
 this is the foundatinn of the law of election, 
 on which coiui;s of equity, particularly, have 
 grounded a variety of decisions, in cases 
 both of deeds and of wills; though princi- 
 pally in cases of wills: because deeds, being 
 generally matter of contract, the contract is 
 not to be interpreted otherwise than as the 
 consideration which Is expressed requires: 
 and voluntary deeds are generally prepared 
 with greater deliberation, and more knowl- 
 edge of pre-existing circumstances, than 
 wills, which are often prepared with less 
 care, and by persons uninformed of circum- 
 stances, and sometimes Ignorant of the ef- 
 fect even of the language which they use. 
 In wills, therefore, it is frequently necessary 
 to consider th* general purport of the dispo- 
 sition, in order to extract from it what is the 
 intention of the testator. The nile of elec- 
 tion, however, I take to be applicable to 
 every species of instrument, whether deed 
 or will, and to be a rule of law as well 
 as of equity; and the principal reason why 
 coui'ts of equity are more frequently called 
 upon to consider the subject, (particularly 
 as to wills) than courts of law, I apprehend 
 is, that at law, in consequence of the forms 
 of proceeding, the party cannot be put to 
 elect: for in order to enable a court of law 
 to apply the principle, the party must either 
 be deemed concluded, being boimd by the 
 nature of the instrument, or must have acted 
 upon it in such a manner as to be deemed 
 concluded by what he has done: that is, 
 to have elected. This frequently throws the 
 jurisdiction into equity, which can compel 
 the party to make an election, and not leave 
 it uncertain under what title he may take. 
 Courts of equity also act with respect to 
 infants in a manner in which com-ts of law 
 cannot act. The modes of proceeding also 
 in courts of law frequently throw these ques- 
 tions into courts of equity, especially whei-e 
 there may be a legal right to sue at law 
 under one title, wholly Independent of the 
 other, which may be a title merely equitable. 
 The rule of election seems to me to apply 
 to every species of right; and I cannot find 
 that the right of dower is more protected 
 than any other. There is no reason why it 
 should: on the contrary, the legislature has 
 demonstrated its feelings on the subject, by 
 the statute which enables the barring dower 
 by provisions before marriage: and this 
 construction has been extended to infants 
 mai-rying; and courts of equity have ex- 
 tended the bar to contracts made on behalf 
 of infants without actual jointure, as in Dru- 
 ry V. Drury, 5 Brown, P. C. 570. But I ap- 
 
§ 15) 
 
 BIRMINGHAM v. KIRWAN. 
 
 Case No. 21 
 
 prehend there is no difference In principle in 
 the decisions of the com-ts. The question 
 has been decided In coiurts of law with re- 
 spect to dower, wherever the form of the 
 proceeding admitted of such decision. In 
 3 Leon. 273, where a provision in bar of 
 dower was made for the wife after mar- 
 riage, and consequently she was not bound 
 to accept it; It was held that If the wife 
 agreed to such a provision, by entry after 
 the death of the husband, she might be 
 barred in a writ of dower by plea- "quod 
 intrado agreavit;" that is, her election bound 
 her, though the agreement did not. On the 
 other hand. It has also been determined in 
 a, court of law (Gosling v. Warburton, Cro. 
 EUz. 128), that if the wife brings a writ of 
 dower and recovers, she shall be barred of 
 her right of entry for a rent-charge devi:3ed 
 in lieu of dower, because it was against the 
 intention of the will she should have both, 
 and the acceptance of one Is a waiver of the 
 other. A court of law therefore will take 
 notice of a provision made for a wife; and 
 If made in bar of dower, and she should 
 claim It after recovery in a writ of dower, 
 the court of law will hold her barred by 
 that proceeding from claiming the provision 
 made in bar of the dower so recovered. In 
 these cases the acts of the wife had de- 
 clared her election; and having declared her 
 election, and proceeded upon it in the one 
 case by entry, and In the other by act on 
 record, she was deemed by her own act to 
 have put an end. In the first case to her 
 claim of dower, in the other to her claim of 
 the rent-charge given in bar of dower. How- 
 ever it is obvious, that in a variety of in- 
 stances, the justice of such a case cannot 
 be reached in a court of law, and the inter- 
 ference of a court of equity becomes there- 
 fore necessary. 
 
 The principle then, that the wife cannot 
 have both dower and what is given In lieu 
 of dower, being acknowledged at law as 
 weU as In equity, the only question in such 
 cases must be, whether the provision alleged 
 to have been given in satisfaction of dower, 
 was so given, or not; if the provision results 
 from contract, the question will be simply, 
 whether that was part of the contract; but 
 If the provision be voluntary, a pure gift, 
 the Intention must either be expressed in 
 the form of the gift, or must be inferi-ed 
 from the terms of It. It is however to be 
 collected from all the cases, that, as the right 
 to dower is in Itself a clear legal right, an 
 intent to exclude that right by voluntary gift 
 must be demonstrated either by express 
 words, or by clear and manifest implication. 
 If there be any thing ambiguous or doubtful, 
 if the court cannot say that it was clearly 
 the intention to exclude, then the averment 
 that the gift was made In lieu of dower, can- 
 not be supported; and to make a case of 
 election, that is necessary, for a gift is to 
 be taken as pure, until a condition appear. 
 This I take to be the ground of all the de- 
 
 cisions. Hitchin v. HItchin, Finch, Prec. 
 133, proceeds clearly on this ground, and all 
 the cases seem to have followed It; and the 
 only question made In all the cases Is, wheth- 
 er an intention not expressed by apt words, 
 could be collected from the terms of the 
 Instrument. Cases of this description can 
 be used only to assist the judgment of the 
 court, in deciding what may be deemed siif- 
 flcient manifestation of Intention; and the 
 result of all the cases of implied Intention 
 seems to be, that the instrument must con- 
 tain some provision, inconsistent vidth the 
 assertion of a right to demand a third of the 
 lands, to be set out by metes and bounds, 
 etc. That is the ground on which Lord 
 Camden decided the case of Villareal v. Lord 
 Galway, Amb. 682. The case Is not clearly 
 reported; but my recoUection of the manner 
 in which it has always been treated Is, that 
 the claim of the annuity was considered as 
 uttei'ly inconsistent with the claim of dower; 
 that the directions in the will with respect 
 to the management of the whole estate, the 
 payment of the annuity, and the accumula- 
 tion during the minority of the child, where 
 Inconsistent with the setting out a third part 
 of the estate by metes and bounds: and there- 
 fore Lord Camden thought the implication 
 manifest, that the testator did Intend the 
 annuity as a provision In bar of dower. 
 
 Now, in the present case, it is clear that 
 the assertion of a right of dower, as to the 
 house and demesne, would be inconsistent 
 with the dispositions of the house and de- 
 mesne, contained in the wiU; and therefore 
 Mrs. Burke cannot have both. The house 
 and demesne are devised, with the rest of 
 the estate, to trustees; that devise, taken 
 simply, might be subject to the widow's right 
 of dower; but It Is coupled with a direction, 
 that she shall have the enjoyment of the 
 house and demesne, paying a rent of 13s. 
 per acre, which must be out of the whole. 
 Then follow directions that she shall keep 
 the house and demesne in repair, that she 
 shall not alien except to the persons in re- 
 mainder; directions which apply to the whole 
 of the house and demesne, and could not be 
 considered obligations on a person claiming 
 title by dower. It was clearly, therefore, 
 the intention of the testator, that the wife 
 should enjoy the whole of the house and 
 demesne, under a right created by the will; 
 and not part of it, under a right which she 
 had previously had, and part under the will. 
 If she brought a writ of dower against the 
 trustees, as devisees in respect of the house 
 and demesne, and was to have a third part 
 set out to her, they could not execute the 
 trust reposed in them, of permitting her to 
 enjoy the whole imder the will, one-third 
 being recovered from them; nor could they 
 reserve an acreable rent on the whole, and 
 of the rent to be reserved she could not have 
 dower: so that she, admitting the right of 
 the trustees to the whole, (which she must 
 do for the pui-pose of having the demise made 
 
 157 
 
Case No. 21 
 
 BlUMINGHAM w. KIRWAN. 
 
 (§ 15 
 
 tj her under the will) must j'et dispute their 
 title as to one-third, if she claims dower of 
 the house aud demesne. If she had entered 
 on the whole of the house and demesne under 
 a, lease from the trustees, before suing her 
 writ of dower, she must have demanded 
 dower against her own title, and avoided the 
 lease as to one-third. As to the house and 
 demesne, therefore, the question seems clear. 
 Then comes the question, whether the im- 
 plication extends to the rest of the estate? 
 I cannot, on the whole of the case, think the 
 testator has sufflciently manifested an intent 
 that this beneficial interest in the house and 
 demesne, given upon a reserved rent, and un- 
 der certain conditions, should be considered as 
 a bar of dower out of the rest of the estate: 
 the wUl may be perfectly executed as to aU 
 other purposes, without Injury to the claim 
 of dower, vsdth respect to the rest of the 
 estate; it may be mortgaged or sold, subject 
 to that claim. Certainly it would not sell 
 for so large a sum of money as if the claim 
 did not exist; but It is manifest that the 
 testator had no conception of any deficiency, 
 that he considered his property amply suffi- 
 cient to answer all the purposes of his will. 
 On the whole, therefore, I think there is not 
 sufficient to exclude her from dower as to 
 the rest of the estate. 
 
 The decree, as to the third exception, di- 
 rected that the same should be allowed, as 
 158 
 
 to interest of legacies before the end of one 
 year after the testator's death; and overruled 
 as to the rest. It further declared, (amongst 
 other things) "that the disposition made In 
 favour of the defendant, Mrs. Bm-ke, in re- 
 spect of the house and demesne in the plead- 
 ings mentioned, is Inconsistent with her de- 
 mand of dower thereout; and that therefore 
 she must elect to receive her dower out of 
 the said house and demesne, or accept such 
 disposition in satisfaction thereof: But that 
 the disposition In her favour contained in the 
 testator's will, cannot affect her claim of 
 dower out of the rest of the testator's estate," 
 etc. 
 
 NOTE. U. S. V. Duncan, 4 McLean, 99, Fed. 
 Cas. No. 15,002. Assignment of Dower: By 
 common law, assignment of dower might be by 
 the parties, and by parol, but In most of the 
 United States the method prescribed by the 
 statute must be followed. In estimating the 
 value of improvements for purpose of deter- 
 mining the widow's share, the heir or devisee 
 is not allowed for improvements. Larrowe v. 
 Beam, 10 Ohio, 498. Nor in England is the- 
 grantee of the husband allowed his improve- 
 ments. Riddell v. Gwinnell, 1 Q. B. 682. In 
 the United States, by weight of authority, she 
 is allowed increase in value by reason of im- 
 provements by adjoining land owners, (Thomp- 
 son V. Morrow, 5 Serg. & R. 289; Westcott 
 V. Campbell, 11 R. I. 378,) but not for for im- 
 provements by the husband's grantee, (Powell 
 V. Manufacturing Co., 3 Mason, 347, Fed. Cas. 
 No. 11,356.) For allowance for deterioration, 
 see Thompson v. Morrow, supra, and West- 
 cott V. Campbell, supra. 
 
§ 16) 
 
 WATSON v. WATSON. 
 
 Case No. 22 
 
 WATSON V. WATSON. 
 
 (13 Oonn. 83.) 
 
 Supreme Court of Errors of Connecticut. June, 
 1839. 
 
 This was an action of ejectment; tried at 
 Hartford, September term, 1838, before Bis- 
 sell, J. 
 
 In tlie life-time of Ann Watson, and tmtil 
 her death, the demanded premises were 
 owned by her in fee; and the plaintiffs are 
 her children and heirs at law, by John Wat- 
 son, to whom she was lawfully married, and 
 who is stiU living. The plaintiffs claimed, 
 that John Watson had not an estate by the 
 curtesy in the premises; and to establish 
 this point, they offered in evidence the fol- 
 lowing writing, under his hand and seal, 
 dated the 23rd of February, 1837, after the 
 death of his wife: "Know all men, by these 
 presents, that I, John Watson, do hereby 
 publish, declare and make known, to all 
 whom it may concern, and especially the 
 heirs and children of my late wife, Ann Wat- 
 son, that I have not, at any time hitherto, 
 and now do not claim, demand, possess, or 
 in any manner or to any extent whatever, 
 have, or pretend to have, any right, title or 
 interest in three pieces of land [describing 
 the premises] but do now fully, absolutely 
 and without any reservation, disclaim and re- 
 ject any and aU right, title and interest in 
 the same, which I might or could have had, 
 by operation of law or otherwise, by reason 
 of my surviving my said wife, or any title to 
 said premises which she had during her life." 
 This writing was signed and sealed by John 
 Watson, attested by two witnesses, acknowl- 
 edged before a justice of the peace, and re- 
 corded in the town records. It was admit- 
 ted by the plaintiffs, that John Watson was 
 tenant by the curtesy of the demanded 
 premises, and that they could not recover in 
 this action, unless by operation of this writ- 
 ing, he had no such estate. The defendant 
 objected to the admission of it in evidence to 
 the jury; and the court rejected It; and a 
 verdict passed for the defendant. The 
 plaintiffs thereupon moved for a new trial. 
 
 W. W. Ellsworth and Mr. Toucey, for the 
 motion. Mr. Hungerford and T. 0. Perkins, 
 contra. 
 
 WAITS, J. The object of a disclaimer, is, 
 to prevent an estate passing from the gi-an- 
 tor to the grantee. It is a formal mode of 
 expressing the grantee's dissent to the con- 
 veyance before the title has become vested 
 in him. In some cases, it may be highly 
 proper; as where a deed is made conveying 
 an estate to one for life, with a remainder to 
 another in fee. Here, in the absence of all 
 evidence to the contrary, the law would pre- 
 sume the assent of the grantee in remainder, 
 upon deUvery of the deed to the grantee for 
 life, for the benefit of both. But if the re- 
 mainder-man chooses not to take the estate, 
 he may aselaim, and thereby remove all pre- 
 sumption of assent. So, where a deed is exe- 
 
 cuted to several persons, and delivered to 
 one for the benefit of all, if one dissents, he 
 may disclaim, and furnish evidence that his 
 share still remains in the grantor. Tread- 
 well V. Bulliley, 4 Day 395. 
 
 But if the grantee once assents, and the 
 title thereby becomes vested In him, he can 
 not, bj"^ any disclaimer, revest the estate in 
 the grantor. For if he could, the disclaimer 
 would have the effect of a deed, which it 
 cannot have; the object of the latter being 
 to transfer propei-ty,— of the former to pre- 
 vent a transfer. 
 
 But in a case of dissent, the heir cannot, 
 by any disclaimer, prevent the estate from 
 passing to him. It vests in him immediately 
 upon the death of the ancestor; and no act 
 of his is required to perfect his title. He 
 cannot, by any act, cause the estate to re- 
 main in the ancestor; for the latter is inca- 
 pable of holding it, after his death. Nor can 
 he, by a disclaimer, transfer the estate to 
 any other person, as the heir of the ancestor: 
 for, as has already been observed, the object 
 of a disclaimer is not to convey, but to pro- 
 vent a conveyance. He is, therefore, in tho 
 same situation, upon the death of the ances- 
 tor, as a purchaser, who has assented to the 
 conveyance. In both cases, a transfer can 
 only be made, by some instniment adapted 
 to the conveyance of real estate. 
 
 A devisee, however, stands in the same sit- 
 uation as a purchaser. If he dissents, the 
 estate passes to the heir, in the same manner 
 as if no will had been made. It is entirely 
 optional witli him to take or refuse the es- 
 tate devised. ToAvnson v. Tickell, 3 Barn. & 
 Aid. 31. 
 
 In the present ease, the disclaimer was 
 made by one who was entitled to the prop- 
 erty as tenant by the curtesy. Is he, in this 
 resiject, like a grantee, or an heir? This 
 species of estate has sometimes been classed 
 with those acquired by purchase. But it is- 
 rather an estate thrown upon the tenant by 
 operation of law. Co. Litt. 18b. It partakes 
 more of the character of an estate acquired 
 by descent than by purchase. Immediatelj'^ 
 upon the death of the wife, the estate vests 
 in him. Like the heir, he cannot, by refus- 
 ing to take it, cause it to remain in the wife; 
 nor can he, by a disclaimer, transfer it to 
 others. The estate thus vested in him, be- 
 comes immediately liable for his debts; and 
 he cannot, by any refusal to take the prop- 
 erty, defeat the claims of his creditors. 
 
 The disclaimer offered in evidence could 
 have no effect in shewing a title in the plain- 
 tiffs; and was ijropei-ly rejected by the 
 court. 
 
 We are, therefore, satisfied, that no new 
 trial should be granted. 
 
 In this opinion the other judges concurred. 
 
 New trial not to be granted. 
 
 NOTE. See Watkins v. Thornton, (I860,) 
 11 Ohio St. 367. Curtesy in trust property, 
 Watts V. Ball, (1708,) 1 P. Wms. 108; Apple- 
 ton V. Rowley. (1869,) L. R. 8 Eq. 139; Cush- 
 ing V. Blake, 29 N. J. Eq. 399; Tillinghast v. 
 Coggeshall, 7 R. I. 3&^. 
 
 109 
 
Case No. 23 
 
 KITE V. KITE. 
 
 (§17 
 
 KITE V. KITE et al., (AULTMAN et al., In- 
 tervenors.) 
 
 (44 N. W. 716, 79 Iowa, 491.) 
 
 Supreme Court of Iowa. Feb. 8, 1890. 
 
 Appealfrom district court, Wapellocoun- 
 ty ; C. D. Leggett, Judge. 
 
 Plaintiff commenced this action in equity 
 for the partition of real estate in which in- 
 tervenors claim an interest. The court 
 found that a partition of the premises was 
 not practicable, and ordered them sold, but 
 decided in effect that intervenors had no 
 interest in a portion of the premises in- 
 volved in the proceedings known as the 
 "Homestead." The intervenors appeal. 
 
 W. S. ('oen, for appellants. 
 
 EOBiNSON, J. The pleadings show the 
 following facts : John Kite died intestate 
 in the year 1885, seised of 120 acres of land 
 described in the petition, and of other real 
 estate not specified. The defendant Mary 
 J. Kite is the widow, and the other defend- 
 ants and plain tiff are the heirs, of decedent. 
 On the 28th day of August, 1886, the inter- 
 venors recovered a judgment against the 
 p r.intiff, A. L. Kite, and the cielendant.'i 
 Charles H. and William Kite, lor the sum 
 of .f 1,532.19 and costs, upon a note made 
 before the death of John Kite. By their 
 petition of intervention the intervenors al- 
 lege that their judgment is a lien upon the 
 interests of said judgment defendants, and 
 ask thatthe referees to be appointed be or- 
 dered to pay to the clerk of the district 
 court, to be applied on said judgment, any 
 amount which may be due the judgment 
 debtors from the proceeds of their inter- 
 ests. To the petition of intervention the 
 widow filed her answer, alleging that she 
 was the widow of decedent, and as such 
 claims one-third of all the land involved in 
 the proceeding. Atthesametime the judg- 
 ment debtors filed their answer to inter- 
 venors' petition, in which they alleged that 
 40 acres of the land in question, which is 
 described, constituted the homestead of 
 their father, the decedent, and as such it 
 was exempt from liability for the pay- 
 ment of their father's debts, and is e'x- 
 <>rapt from liability for the payment of 
 their debts. They deny the alleged right 
 of intervenors to the proceeds of a sale 
 •of their Interests. To these answers 
 the intervenors demuvred. Afterwards, 
 and before a ruling was made on the de- 
 murrer, the court, by agreement of all the 
 parties, rendered a decree to the effect that 
 the land involved in the controversy could 
 not be partitioned, and ordering a sale of 
 all the land excepting the homestead. The 
 rights of intervenors were to be thereafter 
 determined. After that decree was ren- 
 dered, the demurrer was overruled, and it 
 was ordered that the proceeds of the sale 
 <if the homestead should be exempt from 
 Uabilityfor interveners' judgment. An or- 
 der for the sale of the homestead, and the 
 distribution of the proceeds thereof, was 
 afterwards made. Appellants complain 
 of the decision of the court, which exempt- 
 ed the judgment debtors' Interest in the 
 homestead from the paymentof their judg- 
 ment. 
 160 
 
 1. Sections 2007 and 2008 of the Code are as 
 follows : "Sec. 2007. Upon the death of either 
 husband or wife, the survivor may contin- 
 ue to possess and occupy the whole home- 
 stead until it is otherwise disposed of ac- 
 cordingtolaw. Sec. 2008. The setting off of 
 the distributive share of the husband or 
 wife in the real estate of the deceased shall 
 be such a disposal of the homestead as is 
 contemplated in the preceding section, but 
 the survivor may elect to retain the home- 
 stead for life in lieu of such share in the 
 real estate of the deceased. But if there be 
 no such survivor the homestead descends 
 to the issue of either husband or wife, ac- 
 cording- to the rules of descent, unless oth- 
 erwise directed by will, and is to be held 
 by such issue exempt from any antecedent 
 debt of their parents or their own. " " Up- 
 on the death of the party owning the 
 homestead, it descends to the heirs subject 
 to the right of occupancy of the surviving 
 spouse." Johnson v. Gaylord, 41 Iowa, 
 366. See, also, cases therein cited. The 
 heirs hold the property free from the debts 
 of the ancestor which, in his life-time, could 
 not have been enforced against it. Mon- 
 inger v. Ramsey, 48 Iowa, 368. They. also 
 hold it exempt from their own debts con- 
 tracted prior to the death of the ancestor, 
 and they so hold it even though they do 
 not take possession of and occupy it. 
 Baker v. Jamison, 73 Iowa, 699, 36 N. W. 
 Bep. 647; Johnson v. Gaylord, supra. Sec- 
 tion 2441 of the Code is as follows : " The 
 distributive share of the widow shall be so 
 set off as to include the ordinary dwelling- 
 house given by law to the homestead, or 
 so much thereof as will be equal to the 
 share allotted to her by the last section, 
 unless she prefers a different arrangement. 
 But no different arrangement shall be per- 
 mitted where it would have the effect of 
 prejudicing the rights of creditors." It 
 seems to be the claim of appellants that 
 this section requires that the widow's 
 share include the homestead, where credit- 
 ors of the heirs of the decedent would be 
 prejudiced by a different arrangement. In 
 this case, if the widow is compelled to take 
 the homestead, the interest of the judg- 
 ment debtors in the property of decedent, 
 which may be subjected to the payment of 
 their debt, will be larger than it'will if a 
 different arrangement is permitted. It 
 was said in Mock v. Watson, 41 Iowa, 246, 
 that section 2441 " sim ply forbids the wido w 
 receiving a greater interest in the real es- 
 tate than that prescribed by law, namely, 
 one-third in value of all the lands. " The 
 property involved in this case is in the 
 condition contemplated by section 2451 of 
 the Code. It cannot be divided, and must 
 be sold. The widow is entitled to one- 
 third of the proceeds of the whole, and 
 creditors of the heirs of the decedent have 
 no rights in his estate which entitle them 
 to require the widow's share to be paid 
 exclusively from the proceeds of the home- 
 stead. It is the policy of the law to ex- 
 empt the homestead from judicial sale 
 while occupied by the surviving husband 
 or wife, and in the hands of the heirs. 
 Johnson v. Gaylord, supra. It has been 
 held that the proceeds of a homestead are 
 liable for the debts of the surviving bus- 
 
§17) 
 
 KITE 0. KITE. 
 
 Case No. 23 
 
 band, (Huskins v. Hanlon, 72 Iowa, 37, 33 
 K. W. Rep. 352;) but the rights ol the sur- 
 vivor and of the heirs to the homestead 
 are in some respects materially different. 
 It is exempt to the survivor while it re- 
 mains his homestead, and he may sell and 
 use the proceeds of his interest therein to 
 procure another homestead which will be 
 exempt from debts tor which the first 
 would not have been liable. But be may 
 
 ABB.WILLS— 11 
 
 abandon it, and thereby render his inter- 
 est subject to the payment of his debts. 
 The interests of the heirs, however, are ex- 
 empt from liability for their debts, not be- 
 cause of any homestead right they have 
 in the premises, but because of the home- 
 stead right of their ancestor. We conclude 
 that the district court was right in over- 
 ruling the demurrer of intervenors. 
 Affirmed. 
 
 161 
 
Case No. 24 
 
 MEACH V. MEACH, 
 
 (§ 18^ 
 
 MEACH V. MEACH et al. 
 
 (24 Vt. 591.) 
 
 Supreme Court of Vermont. June Term, 18.52. 
 
 Appeal from the court of chancery. The 
 facts sufficiently appear in the opinion of the 
 court. 
 
 M. L. Bennett and for orator. 
 
 D. A. SmalUy, E. J. Phelps and L. E. 
 Chittenden for defendants. 
 
 The case having been argued by counsel, 
 was held under advisement until the Decem- 
 ber term, 1852, when the opinion of the court 
 was delivered by 
 
 Redfield, Ch. J. This is a bill in equity, 
 appealed into this court from the decree of 
 tlie chancellor. The facta in this case, are 
 not very fully shown, but sufficient appears, 
 perhaps, to enable us to determine the case 
 understandingly. 
 
 On the 13th day of May, 1847, Avery 
 Meacli, being desperately sick of consump- 
 tion, executed in common form, a deed of all 
 his real estate to his wife, the orator; the viil- 
 ue being about ten thousand dollars. On the 
 same day, and at the same time, he 
 ♦executed a deed of all his personal *592 
 property to his wife also, consisting of 
 stocli upon his farm, and choses in action to 
 a considerable amount. The deeds were re- 
 corded in the Town Clerk's office on the 31st 
 day of May, 1847. The grantor continued 
 hopelessly sick until the 23d of June, 1847. 
 wlien he died. The deceased left no child 
 and no father or mother; his nearest heirs be- 
 ing of the degree of brothers. The orator 
 continued in quiet possession of the proper- 
 ty until August, 1847, when administration 
 was taken out, and the possession of the prop- 
 erty demanded of her, which she declined to 
 surrender. It was arranged that she should 
 retain the possession of tlie property until 
 this suit could be instituted, and the title de- 
 termined. The debts due from the estate, 
 are between three and four hundred dollars. 
 The grantor has adopted a female child, who 
 is now dependent upon the orator in some de- 
 gree. 
 
 It is first important to inquire what the 
 purpose and intentions of Avery Meacli were, 
 in executing these conveyances, and then 
 how far that purpose can be carried into ef- 
 fect, consistent with the establislied princi- 
 ples of law. 
 
 It has been claimed on tlie part of the ora- 
 tor, that this may be fairly regarded as a 
 post-nuptial settlement, for the support and 
 maintenance of the wife, not only during the 
 coverture, but also, in the event of the hus- 
 band's death, and so be upheld as a gift in- 
 ter vivos. But it seems to us that the trans- 
 action is incapable of being viewed fairly, in 
 that light. It had no reference to any set- 
 tlement upon the wife, for her separate main- 
 tenance during the continuance of the rela- 
 tion subsisting between the pairties. And 
 marriage settlements, whether post-nuptial 
 162 
 
 or ante-nuptial, have a chief reference to the 
 Independent support of the wife and her de- 
 pendents, whether children or others. A 
 marriage settlement, even a post-nuptial 
 settlement, out of the separate property of 
 the husband, which it is perfectly competent 
 for him to make valid against his heirs, and 
 even subsequent creditors if he chooses, and 
 which have often been upheld by ( ourts of 
 equity, even when made directly between hus- 
 band and wife, without the intervention of 
 trustees, (2 Story's Eq. Juris, p. 817, and the 
 numerous cases cited in note 2,) would cer- 
 tainly be a very gross misnomer, if, by post- 
 nuptial, we were to understand an arrange- 
 ment not made after marriage, which is its 
 common import, but one which wason- 
 *593 ly *tij go into effect, and have operation, 
 after the nuptial relation should have 
 been forever extinguished by the natural 
 death of the husband. It is not claimed, that 
 the terms can be extended to any such trans- 
 actions; but it is be'iieved that the present 
 case is incapable of being fairly viewed in any 
 other light. Here is a man in tlie last stages^ 
 of consumption, within a few weeks of his 
 death, and doubtless fully conscious of the im- 
 possibility of much longer maintaining any 
 hold upon property, who makes a sweeping 
 disposition, in the present tense, of all his 
 earthly possessions." Now it is claimed, that 
 this may be treated as a rational, (and to be 
 maintained in a court of equity, it must ba 
 also a reasonable,) disposition of property irir 
 ter vivos between husband and wife, in order 
 to secure a suitable provision, or portion, or 
 maintenance, or settlement upon the wife. 
 
 Men that have property, and acquire it as- 
 this man did, by long continued industry and 
 scrupulous eciraomy, do not ordinarily, it may 
 be said, part with it at once, and without re- 
 luctance, even into the hands of the most tried 
 friend. This is such a reversal of the rela- 
 tions hitherto subsisting between the grantor 
 and the grantee, that nothing but the certain- 
 ty and the nearness of death would have in- 
 duced the change. It is in vain to affect to- 
 convince ourselves that any less motive could 
 have formed the prevailing consideration for 
 the transaction. 
 
 And coulil we for a moment entertain the- 
 belief that this was intended as a bona fide 
 settlement upon tlie wife, viewed as a mere 
 transaction, inter vivos, it would be impossible 
 for a court of equity to maintain it, on the 
 ground of its unreasonableness. We can en- 
 tertain no doubt that, had the grantor recov- 
 ered his health, and the grantee, by her friends, 
 claimed to hold the property against him as a 
 gift, a court of equity would have decreed a 
 complete restitution, upon the ground that the- 
 contract, as a present operative contract, was 
 made under a material misapprehension of 
 the important facts, the real consideration for 
 the contract having, in fact, altogether failed. 
 As is said in Justinian's Institutes, upon the- 
 subject of gifts mortis causa, mors causa do- 
 nandi magis est qiiam mortis causa donatio. 
 Death is rather the cause or consideration of 
 
§ IS) 
 
 MEACn V. MEACH. 
 
 Case No. 24 
 
 the gift, tban the mere occasion ot its being 
 .made. And that view applies with great 
 force to the present transaction. It had ex- 
 clusive reference to a period beyond the 
 life of thedo*nor, and could never have *594 
 been intended to have any operation in 
 any other event. It was, in fact, a testamen- 
 tary disposition of the property. And when 
 a court of equity is applied to for the purpose 
 of carrying a contract into specific effect, it 
 ought not to be expected to do it in any other 
 sense th;in th!it by which it was understood 
 between the parties. Kefinements, evasions, 
 forced and false glosses, have always an ugly 
 sound in the mouth of a court of equity. If 
 the contract cannot stand upon its own foun- 
 dation, it ought not to be expected of a court 
 of equity to decree a specific performance. 
 And hence, while a court of equity recognizes 
 a settlement of property by the husband upon 
 the wife, even out of his own estate, and al- 
 together aside of any property received by the 
 husband from the wife, and often without the 
 intervention of trustees, and originating al- 
 together after the marriage, as perfectly valid, 
 and to be upheld, and its execution aided by 
 the court, no case can be found where any such 
 settlement of property upon the wife as the 
 present, regarded as a mere settlement or sep- 
 arate portion, has ever received the counte- 
 nance of a court of equity. And in Beard v. 
 Beard, 3 Atkyns, R. 73, where one attempted 
 to make a very similar settlement upon the 
 •wife, in order to avoid a will which he had 
 made in a drunken passion, at a tavern, by 
 which he had given all his property to a broth- 
 er. Lord Hardwicke says, — "A man here has 
 done two very unreasonable acts, and if it 
 should happen that if one trips up the heels 
 of the other, it is a very fortunate thing to 
 set everything right again." But he held 
 the conveyance to the wife void, as unreason- 
 able, saying, "Neither will this court suffer 
 the wife to have the whole of the husband's 
 estate, while he is living, for it is not in the 
 nature of a provision, which is all the wife is 
 entitled to." And this is the settled law of 
 the court o£ chancery at the present day. 
 
 Viewed, then, as a disposition of the do- 
 nor's property to take effect at his death, tlie 
 important inquiry remains, — can it be car- 
 ried into specific effect in a court of equity? 
 
 There is, no doubt, always a disposition in 
 courts of equity to uphold these informal tes- 
 tamentary gifts, so far as they are under- 
 standingly made, and are perfectly reasonable 
 and considerate, which is no doubt eminently 
 true of the present case, considered, as it was 
 intended, as a disposition of the donor's prop- 
 erty, to become operative at his death 
 *595 only. But a court of equity could 
 ♦scarcely be expected to reform a man's 
 last will and testament, even if it were certain 
 they could thereby, in the particular case, 
 come more precisely at his real intention than 
 is expressed by the scrivener who drew the 
 <locument. which was formally authenticated. 
 Much less could a court of equity be allowed 
 to create a last will for one, from deeds and 
 
 other writings informally executed by him, 
 and which he was at the moment informed 
 and believed, up to the time of his death, 
 would effect the purpose expressed therein. 
 This would be a sweeping, wholesale repeal 
 of all the statute requisites in regard to wills. 
 And I confess that during the argmnent of 
 this case at the bar, which was made exceed- 
 ingly interesting on all hands, I coulil not dis- 
 abuse my mind of the impression, that strip- 
 ping the bill of all circumlocution, in its full 
 scope, it was a petition to the court of chan- 
 cery to create out of these deeds a last will 
 and testament for Avery Meach. Feeling 
 from the first, a ready inclination to listen to 
 the object of the prayer of the bill, my mind 
 was nevertheless continually haunted with 
 the sense of absurdity at the very singular 
 course it seemed necessary to take, in order 
 to effect it — i. e., to make both the will and 
 probate of the will of the donor. And in 
 the examination of the case, with a sincere 
 willingness to escape from that conclusion, 
 my first impressions have been confirmed, at 
 least so tar as the real estate is concerned. 
 A gift of real estate cannot be sustained, as 
 a donatio mortis causa, for that only extends 
 to the personalty. We have, then, nothing 
 remaining so far as that is concerned, but 
 the naked deed from husband to wife. This, 
 it is admitted, cannot operate at law; and 
 when the court of equity is applied to for a 
 decree of specific performance, and to compel 
 the execution of the contract by a competent 
 trustee, e. g., the administrator, they are met 
 on the threshold by the obvious fact that this 
 was understood by the parties, to be neither 
 more nor less than a testamentary disposition 
 of the donor's property. And if it is not 
 regarded in this light, it is incapable of being 
 sustained as a disposition of property inter 
 wttfos upon the ground of its unreasonableness. 
 We can only say that we deem it impossible 
 to give the deed of real estate the effect in- 
 tended by the parties, without virtually. dis- 
 pensing with the essential requisites of the 
 Statute of Wills. 
 
 This view of the subject is not pecu- 
 liar to this court. In a late *case in the *596 
 English chancery, before Vice Chancel- 
 lor, Knight Bruce, so late as June, 1851, Moore 
 V. Darton, 7 Eng. Law and Equity Rep. 134, 
 a doubt is suggested, whether the late English 
 Wills Act which is not more stringent than 
 our own, "has not precluded all donations," 
 of personal property mortis causa. But that 
 learned Judge did ultimately come to the 
 conclusion that such was not the case. There 
 can be very little doubt that a case of the char- 
 acter of the present, including both real and 
 personal property, and extending to all a 
 man's earthly possessions, would have been re- 
 garded by that court, as altogether repugnant 
 to the Wills Act; certainly so far as the real 
 estate is concerned. 
 
 In the late case of Headley v. Kirby, decid- 
 ed by the Supreme Court of Pennsylvania, in 
 May, 1852, 1 American Law Register, Nov. 
 p. 25, it was expressly held, that "A gift of 
 
 1g:; 
 
Ga3e No. 24 
 
 MEACH V. MEACH. 
 
 (§38 
 
 all the donor's property in prospect of death, 
 is not a donatio mortis causa. It is not valid, 
 unless executed as a written or as a nuncupa- 
 tive will. " The case seems to have been very 
 elaborately argued by the most competent 
 counsel, and is supported by a somewhat in- 
 genious argument from the bench, by Mr. 
 Justice LowKiE. And the Editors of the 
 llegister evidently incline to support the de- 
 cision as altogether unanswerable. As the 
 property in that case was all personal, and 
 what was done might have been regarded as 
 sufficient to constitute a gift mortis causa, it 
 may be somewhat questionable how far a do- 
 natio mortis causa is to be altogether invalr 
 idated, by reason of its embracing the major 
 part, or the whole of one's property, if it be 
 in other respects unobjectionable. Neither 
 the English nor American cases have attempt- 
 ed any such criterion before, and it would 
 seem, at first blush, rather difficult of applica- 
 tion. Uut if these cases show no more, they 
 may be regarded as evidencing a disposition 
 on the part of courts in both countries not to 
 extend these informal testamentary disposU 
 tions of property, in manifest abuse and dis- 
 regard of the salutary enactment in regard to 
 wills. 
 
 It only remains to inquire how far the deed 
 of the personal property, in this case, can be 
 maintained as a donatio mortis causa. , 
 
 1. It seems never to have been regarded as 
 any objection to a gift, mortis causa, that it 
 was made by the husband directly to the wife. 
 
 The elementary books all so treat it. 
 *597 2 Kent's Com. 7 *Ed. 556, (445); ib. 
 
 178. Tlie civil law was clearly so, Inst. 
 2, 7, 3; Cooper's Justinian, 102, 103, where 
 it will fully appear that not only gifts mortis 
 causa between husband and wife were sanc- 
 tioned, but even between them inter vicos as 
 donationes propter nuptias. And numer- 
 ous decided cases in the English Chancery ful- 
 ly establish the point that such gifts are good 
 between husband and wife. Lawson v. Law- 
 son, 1 P. Williams' B. 441. Miller v. Miller, 
 3 ib. 356. Jones v. Selby, Prec. in Cli. 300. 
 The latter case is that of a house-keeper, to 
 be sure, but the delivery was by giving up 
 the key of a trunk, and was held sufficient, 
 notwithstanding the donor held the custody 
 of the trunk and received the interest on the 
 government security, which was the subject 
 of controversy. But the case failed upon an- 
 other ground. 
 
 2. This case combines, we believe, all the 
 essential facts requisite to constitute a good 
 donatio mortis causa by the common law,, 
 and many of them strikingly identical with 
 the very words used by the civil law writers, 
 
 • in defining these gifts, from which the tiling 
 was transplanted into the English law. Mor- 
 tis causa donatio est, qu^ propter mortis fit 
 suspicionem, cum quis ita donat, ut siquid 
 humanitus ei contigisset, haberet is, qui ac- 
 cipit; sin autem supervixisset is, qui dona- 
 vit, reoiperet; vel si eum donationis poeni- 
 tuisset, aut prior decesserit is, iMi donatum 
 sit. Et in summa, mortis causa donatio 
 1U4 
 
 est, cum magis se quis velit habere, quam 
 eum, aui donat: magisque eum,, cui donat, 
 quam heredem suum. That was the very ob- 
 ject and intention of this gift; and the trans- 
 action answers well enough the requisites of 
 the English chancery law. It was made 
 during the last sickness in the prospect of 
 certain and speedy dissolution, to take effect 
 fully after death only. It was but a ration- 
 al and reasonable gift under the circum- 
 stances, and was intended to become inoper- 
 ative, in case of the recovery of the donor 
 from that sickness, or his surviving the 
 donee, or changing his intention. All these 
 incidents are not fully set forth in the instru- 
 ment of donation, and we do not And that is 
 essential to the validity of such a gift. If 
 that should even prove to be so, to a greater 
 extent than appears in this deed, which has 
 not been discussed at the bar, we entertain 
 no doubt a court of equity will lend its aid to 
 fully effect the purpose of the donor, by sup- 
 plying anyformal defect in the instrnment by 
 way of reforming it, against the personal rep- 
 resentative, who, in these gifts, is regarded 
 as a trustee for the donee. 
 
 *Says Mr. Justice Story, 1 Eq. Jur. *598 
 p. 673, "the doctrine no longer prevails, 
 that where the delivery willnotexecuteacom' 
 plete gift, inter vivos, it cannot create a do- 
 7iatio mortis causa, because it would not pre- 
 vent the property from vesting in the execu- 
 tor." On the contrary, the doctrine now 
 established by the highest authority, is, that 
 courts of equity do not consider the interest 
 as completely vested in the donee, but treat 
 the delivery of the instrument as creating a 
 trust for the donee, to be enforced in equity, 
 Duffleld v. Elwes, 1 Bligli's E. N. S. 497, 
 630, 534; same case affirmed in the House of 
 Lords, by the name of Duffield v. Hicks, 1 
 Dow & Clark, 1, reversing the decree Vice 
 Chancellor Leach, 1 Sim. & Stu. 239. In tlii^ 
 case it was finally established, in England, 
 that a bond and mortgage p sied by mere de- 
 livery, without any written assignment, as a 
 good donatio mortis causa. And it seems 
 now to be well settled that any chose in ac- 
 tion, whether negotiable or not, whether sim- 
 ple contract or specialty, if it be the contract, 
 or promise of some other than the donor, and 
 do not constitute any obligation upon the do- 
 nor, may, by mere delivery, constitute a good 
 gift mortis causa. And if there is no for- 
 mal delivery, but an assignment under seal, 
 and perliaps only in writing on a separate pa- 
 per, this will, by being delivered, constitute 
 a good delivery of the tiling, and create a 
 trust, in favor of the donee, against the per- 
 sonal representative. We have noticed this, 
 in the extract from Story's Equity Jurispru- 
 dence. Lord Chancellor Loughborough, in 
 discussing this subject in Tate v. Hilbert, 2 
 Vesey. Jr., 120, says, "It is not necessary to 
 discuss, in this case, whether delivery is nec- 
 essary in all cases. Perhaps it is not difficult 
 to conceive that it might be by deed or writ- 
 ing." He further intimates, that there is no 
 objection to a formal deed, as constituting 
 
§ 18) 
 
 MEACH V. MEACII. 
 
 Case No. 24 
 
 a sufficient perfecting of the gift to create tlie 
 trust in favor of the donee. And upon prin- 
 ciple, it would seem, there could be no objec- 
 tion to creating the gift by deed, without any 
 formal, manual tradition of the thing; which, 
 in many cases, would be difficult, and in others, 
 like the present, where tliegif t consists in part, 
 of a large herd of cows, altogether idle and 
 absurd. And the deed imports conclusively 
 a suflBcient consideration.— is an estoppel up- 
 on the donor and his personal representa- 
 tives, and, after delivery and public registra- 
 tion, is a sufficient setting apart of the prop- 
 erty to the use and control of the donee, and 
 far less liable to perversion or abuse, 
 *than any mere parol gift, with the *599 
 most ceremonious delivery. In the case 
 of transfer of proper' by deed, nothing re- 
 mains to perfect tlie gift. It does not re- 
 main inchoate, or incomplete, or in any sense 
 revocable, after the delivery of the deed. 
 Chancellor Kent, says, 2 Comm. 559, 7th Ed. 
 in note, "The requisites of a valid donatio 
 mortis causa are well collected, in a learned 
 note to Walter v. Hodge, 2 Swanst. 106, 
 where it is stated, and proved, that it re- 
 quires delivery of the property, or the docu- 
 mentary evidence of it." This has reference, 
 perhaps, to choses in action primarily; but it 
 is difficult to see why the deed of a thing be- 
 ing delivered is not as much a delivery of the 
 thing, as the delivery of a bond or note is a 
 delivery of the debt. In principle it clearly 
 is so. This seems to be a full recognition 
 of this mode of perfecting the gift, both by 
 the learned commentator and the annotator 
 of Swanston. And if any question could be 
 entertained of the sufficiency of the deed it- 
 self, after delivery and formal registry, to 
 perfect the gift, we do not perceive but there 
 was, in fact, all the actual delivery of this 
 property of which it was susceptible, as be- 
 tween husband and wife, whose possession is 
 of necessity, in some sense, in fact, and al- 
 ways in law, identical. If one had been re- 
 quired to devise tlie best mode of perfecting 
 a gift of this kind between husband and wife, 
 it could not, perhaps under the circumstances, 
 have been done better, or move in accordance 
 with legal principles, than this was, altogether 
 accidentally we must suppose, done. For the 
 tiling seems to have been got up, in the main, 
 very inartistically; and the actual delivery is 
 all that could have been made, without in- 
 volving the parties in acts more or less ab- 
 surd and ridiculous. 
 
 In examining the case, it occurred to me 
 that some might object to this deed as a gift 
 mortis causa, inasmuch as it does not, in 
 terms, very explicitly provide that the gift 
 should only take effect after tlie donor's death. 
 In a mere oral gift this is often implied, from 
 the attending circumstances, as is very obvi- 
 ous in the present case. But the gift being 
 by deed, we are, in a measure, confined to its 
 terms, construed with reference to the attend- 
 ing circumstances. And as this deed pro- 
 fesses in terms to convey, not only all the 
 donor's property at the date, but all of which 
 
 he should be possesKed at his decease, it is 
 fair, we think, to give the words that signifi- 
 cation, that the donee's full right un- 
 *600 der the deed should *not become ab- 
 solute and perfect, except in the event 
 of the donor's death. 
 
 But if this were doubtful, there is no doubt 
 a court of equity would lend its aid to per- 
 fect the deed in tiiis particular. It is said in 
 Harris v. Clark, 2 Barbour's S. C. R. 94, 98, 
 by Gi'idley, J., "That in gifts inter vivos, a 
 court of equity will not compel the donor to 
 complete his gift, or an executor to complete 
 the gift of his testator, whereas, in the case 
 of gifts martin causa, the donor may success- 
 fully invoke the aid of the court of chancery 
 for that purpose." In Toilet v. Toilet, 2 P. 
 Wms. 489, the defective execution of a power 
 by will, when it should have been by deed, 
 was supplied in equity in favor of the wife. 
 And the defective execution of a power is al- 
 ways supplied in courts of equity, when that 
 is necessary to perfect a gift inter vivos, even 
 if that is the only instance in which that 
 court does interfere to perfect a gift inter 
 vivos. But it is every day's practice for such 
 courts to lend their aid to perfect gifts mortis 
 causa. But this, we conceive, is not neces- 
 sary in the present case. We think, there- 
 fore, that the deed of the pereonal property, 
 with the attending circumstances, did consti- 
 tute a good gift mortis causa, and that the 
 orator must hold it. And as the taxable costs 
 are small, and the suit is an amicable one, 
 and neither party fully prevails, no costs 
 should be allowed. 
 
 Decree of court of chancery reversed, and 
 case remanded to that court to pass a decree 
 according to this decision. 
 
 Note. I have not deemed it important to go in- 
 to any exposition of the history of the law in re- 
 gard to gifts mortis causa, or indeed into any ex- 
 tended discuBsion of its policy or present state. 
 For, notwithstanding the efforts which seem to 
 have been made to limit its operation, even as far 
 back as the time of Justinian, who required all 
 such gifts to he made in the presence of five wit- 
 nesses, and also subjected them to the operation 
 of the lex Falcldice, by which one was prohibited 
 from disposing of more than three-fourths of his 
 estate to the prejudice of his heir; still the thing 
 maintains its hold upon the jurisprudence of most 
 of the European states, and is evidently a good 
 deal extending its operation in the American 
 states. 
 
 One cannot hut feel that it was never properly 
 intended to apply to a general disposition of a large 
 estate to the utter subversion of the Statute of 
 Wills. And still, when we attempt to limit its op- 
 eration, we encounter embarrassments not readily 
 disposed of. If one may remit a debt of £500, 
 about $3,500, by the simple act of delivering the re- 
 ceipt for it to a third person, a servant attending 
 the death bed, with a general expression of desire, 
 in the briefest words, that the debt should be can- 
 celled, which was the case of Moore v. Darton, 7 
 Eng. Law and Equity R. 134, and which was sus^ 
 tained without difQculty by a distinguished 
 English Vice *Chancellor, we can scarcely be *601 
 expected to say that twice that amount, there- 
 fore, is not a good donation mortis caiisa. And 
 although, in practice with us, this mode of final 
 disposition of property has oftener been confined 
 to some favorite articles of personal attire, or or- 
 nament perhaps, like watches and jewels, yet an 
 examination of the cases will show a wonderful 
 
 165 
 
Case No. 24 
 
 MEACH V. MEACH. 
 
 (§ 18 
 
 variety in the character and extent of property 
 disposed of in this mode, often including all one 
 possesses, consisting of the largest extent and va- 
 riety of property, both in possession and in action ; 
 and thus, in fact, amounting to a nuncupative will. 
 And still I find no case, except the late case in 
 Pennsylvania, where any attempt has been made 
 to limit its operation, on account of the compara- 
 tive or absolute extent of the property disposed of. 
 And the more I have reflected upon the subject 
 and compared the cases, with a view to evolve 
 some rational and' practicable principle of limita- 
 tion to the extent of its operation, the more I have 
 felt constrained to declare that it cannot be done 
 by any powers of abstraction or generalization, 
 which my short sight is able to command. 
 
 If the servant, whose whole estate consists of a 
 few hundred dollars, balance of earnings, in the 
 hands of his employer, and five pieces of property, 
 in possession, is to be allowed, in his last sickness, 
 to dispose of it to five different persons by mere 
 words, and by committing the entire evidence of 
 debt to a fellow servant, which seems now to come 
 within all the best considered cases upon that 
 subject, it would seem invidious to hold, that 
 when the property amounts to thousands, compos 
 ing the principal estate of a substantial house- 
 holder, that therefore it could not be conveyed in 
 this mode. And if the man of great worldly posses- 
 sions, who has executed his will in the most rever- 
 ent formality, may, when death presses him sore, 
 modify that disposition, which alone the written 
 law of the land recognizes, by taking from his se- 
 cret drawer securities for debt to the amount of 
 thousands of dollars, and making an irrevocable 
 disposition of them after death, by the brief words 
 " I give, " and the simple act of delivery to the wife, 
 which, in law, is a delivery to himself, a mere 
 change from one hand to the other, it would cer- 
 tainly not be easy to say that one whose whole 
 property did not amount to one tithe of that sum, 
 or if it did exceed it by hundreds of dollars, could 
 not do the same. And yet it will be noticed, that 
 the last case supposed is the well considered and 
 constantly recognized case of Miller v. Miller, 3 P. 
 Wms. R. 356. 
 
 It ought, perhaps, here to be said, that the pres- 
 ent case is decided neither upon the sufllciency of 
 the deed, nor of the delivery of the property, such 
 as it was, which is not very fully shown in the 
 case, but which we feel justified in treating as be- 
 ing such as was natural, under the circumstances, 
 where the husband had become so incapable of 
 longer managing or controlling his property and 
 business, that it fell exclusively under the control 
 166 
 
 of the wife, even before his death. It is upon 
 neither of these grounds alone that this case is de- 
 cided, but upon both, not intending to go further, 
 in settling the law upon this perplexing subject, 
 than the imperious necessities of the case demand. 
 Some other views of this case undoubtedly might 
 be taken, but most of them more or less "remote 
 from the actual merits of the case. As a gift in- 
 ter vivos, I am not aware that the wife is regarded 
 as possessed of any peculiar equity, beyond her le- 
 gal rights, more than any other donee. If the prop- 
 erty had been the result of her own earnings ex- 
 clusively, or of accumulations by her for her own 
 use, out of an allowance made her by her husband, 
 or especially if it had been the result of money 
 which was hers at the marriage, or by inheritance 
 subsequently, no doubt a court of equity, making 
 
 her equity the basis of its action, might ex- 
 *602 tend *relief , in many cases, where otherwise 
 
 it would not. But there is nothing of that 
 kind in this case. And treating it as a mere gift 
 inter vlvns, a court of equity will never interfere 
 to make it operative, except in the single case of 
 the defective execution of powers, as we have seen, 
 which, in practice, are but little known among us. 
 Equity has oftener, by far, interfered to carry into 
 effect the apparent purpose of the donor, in regard 
 to his bounty, where the gift, although in form a 
 gift inter vivos, was in fact a testamentary dis- 
 position among his heirs. This has often been 
 done in regard to donations mortis causa, as we 
 have shown, and in one instance certainly, in this 
 State, in the case of real estate. Thompson v. 
 Welch, Ben. Co. Sup. Ct. 1849, not yet reported. 
 
 But that was to do equity and justice among the 
 donees, according to the intention of the donor, and 
 when the title at law confessedly passed by the 
 deed of gift. And we are aware that deeds of land 
 in this State, in repeated instances, which were in 
 fact testamentary dispositions of property, and de- 
 livered as escrows, to become operative only in the 
 event of the death of the grantor, have neverthe- 
 less been sustained and held valid, both at law and 
 in equity. But that is upon the principle that the 
 deeds were valid in themselves, and required no 
 aid of a court of equity. But a deed cannot be de- 
 livered to the grantee to become operative upon the 
 death of the grantor. In that case it must take ef- 
 fect presently, or not at all. The grantee cannot 
 hold a deed as an escrow. 
 
 NOTE. See Drury v. Smith, (1717,) 1 P. 
 
 Wms. 404; Giymes v. Hone, (1872,) 49 N. Y. 
 
 17; Thomas v. Lewis, (Va. 1892,) 15 S. E. 
 o89. 
 
^ la) 
 
 GOUKLEY V. LINSENBIULER. 
 
 Case No. 25 
 
 GOURLEY et al. v. LIXSENBIGLER. 
 
 (51 Pa. St. 345.) 
 
 Supreme Court of Pennsylvania. Jan. 1, 1867. 
 
 Error to court of common pleas, Armstrong 
 -county. 
 
 Two actions by Matilda J. Llnsenbigler,— 
 -one against George A. Gourley and the othep 
 against John M. Gourley,— on promissory 
 notes. Judgments were rendered for plaln- 
 iifC in both cases, and defendants appeal. 
 
 Boggs and Purviance, for plaintiffs in er- 
 ifor. Golden & Noale, for defendant in error. 
 
 BEAD, J. The same error was commit- 
 ted in both these cases, in holding that the 
 gifts of these promissory notes by Benjamin 
 F. Gom-ley, the decedent, to the plaintiff be- 
 low, were donationes mortis causa. They 
 were delivered by a soldier to the plaintiff 
 or for her when he was going to the front, 
 iDUt months before his death, and when he 
 was neither in his last iUness nor in periculo 
 mortis. He said if he never came back he 
 wanted her to get them, as he would rather 
 ^he should get them than any one else. The 
 gift is therefore not sustainable as a donatio 
 mbrtis causa, and as there was no considera- 
 tion can it be sustained on any other ground? 
 
 The case most resembling this is In re 
 Patterson, (Mitchell v. Smith,) 33 Law J. Ch. 
 597, decided by the lords justices on the 9th 
 June, 1864. The payee of three promissory 
 notes executed the following endorsement, 
 preceded by the delivery of them to the en- 
 dorsee: "I bequeath — pay the within con- 
 tents to Simon Smith or his order at my 
 •death." There was a single witness to the 
 payee's signature. In the act of the deliv- 
 ery of the notes the payee expressed an in- 
 tention "to be master of the notes as long 
 .as he lived." It was held that the transac- 
 tion constituted a testamentary gift and was 
 .as such void, there being only one witness. 
 In Pennsylvania it would have been valid. 
 "It had occurred to me at one time," said 
 Xiord Justice Tiu-ner, "that the object of this 
 form of endorsement might perhaps be, to 
 enable the endorsee to hold the notes in trust, 
 for the testator during his life and then for 
 iimself absolutely. But this construction 
 would be inconsistent with the testator's ex- 
 pressed intention to remain master of the 
 notes as long as he lived. The gift in my 
 opinion was testamentary, and being incom- 
 plete is invalid. The right to negotiate a 
 promissory note does not pass unless the 
 requisite endorsement and delivery have 
 been gone through." 
 
 These do not, therefore, appear to be testa- 
 mentary gifts, nothing that can be consti-ued 
 into a will appearing in any part of the evi- 
 dence. 
 
 Judgment reversed, and venire de novo 
 awarded in both cases. 
 
 On the 6th of November, 1865, a re-argu- 
 ment was ordered by the supreme com-t in 
 both cases. 
 
 READ, J. These two cases were re-ar- 
 gued together upon a single point, upon 
 which alone our opinion will be delivered. 
 
 The two promissory notes drawn by the 
 two defendants in favour of B. F. Gourley, 
 the decedent, but not endorsed by him, may 
 be the subject of a donatio mortis causa ac- 
 cording to the latest authorities. 
 
 A bond is a proper subject of a donatio 
 mortis causa. Wells v. Tucker, 3 Bin. 370. 
 
 So is a mortgage, also bills of exchange or 
 promissory notes payable to order and un- 
 endorsed, and a policy of life assurance, and 
 a banker's deposit note: Witt v. Amis, 1 
 Best & S. 109; Amis v. Witt, 33 Beav. 619; 
 Veal V. Veal, 27 Beav. 303; Rankin v.Wegue- 
 lin. Id. 309; Sessions v. Moseley, 4 Gush. 87; 
 1 Story, Eq. Jur. (8th Ed.) 607. So giving 
 an evidence of debt to a servant for the debt- 
 or, saying she wished the debt cancelled: 
 Moore v. Darton, 7 Eng. Law & Eq. 134. So 
 a check on a banker: Boutts v. Ellis, 31 
 Eng. Law & Eq. 174; see Harris v. Clark, 
 3 N. Y. 114. "Besides formal legacies given 
 by will, there is also permitted a death-bed 
 disposition of property, called a 'donatio 
 mortis causa.' That is when a person in his 
 sickness, api^rehending his dissolution near, 
 delivers or causes to be delivered any per- 
 sonal goods or chattels to another, or puts 
 the physical means of dominion over them 
 into his power, to keep them for himself, or 
 for some one else in case of the donor's de- 
 cease. The subject of the gift must be per- 
 sonal property in possession or in action. 
 Bonds and mortgage-deeds so delivered, are 
 effectual to pass the debt; bills or checks 
 drawn by the deceased on his banker, to 
 pass the money. The delivery of a key has 
 been deemed to amount to a delivery of the 
 trunk and its contents. In the event of the 
 donor recovering, the property reverts to 
 him. If the donor die, the property belongs 
 to the donee without the assent of the ex- 
 ecutor, though not as against creditors:" 1 
 Spence, Eq. Jur. 196. "A claim to property 
 on the ground of its having been a donatio 
 mortis causa must fail, if it appear to be a 
 transaction of present gift. A party mak- 
 ing a donatio mortis causa does not part 
 with the whole interest save only in a cer- 
 tain event; and it is of the essence of such 
 a gift that it shall not otherwise take effect; 
 but words of absolute gift, if accompanied 
 by expressions showing that the intention 
 was, that the property should be enjoyed 
 only in the event of the death of the donor, 
 will be sufficient to constitute a donatio mor- 
 tis causa:" 2 Spence, Eq. Jur. 912. Judge 
 Story, in his Commentaries, (volume 1, § 
 607a,) says: "We have already seen that by 
 our law there can be no valid donation mor- 
 tis causa, 1st, unless the gift be with a view 
 to the donor's death; 2d, unless it be condi- 
 tioned to take effect only on the donor's 
 death by his existing disorder, or in his ex- 
 isting illness:" Grattan v. Appleton, 3 Story, 
 763, Fed. Cas. No. 5,707, 
 
 167 
 
Case No. 25 
 
 GOUBLEY V. LIKSEXlilGLER. 
 
 (§ 19 
 
 It is evident that the language used by 
 the authorities in spealiing of— in contem- 
 plation of death— in expectation of death or 
 in apprehension of death— applies to the 
 cases of illness ending in death, the last ill- 
 ness which makes it a death-bed disposition. 
 If the donee dies before the donor, or the 
 donor revokes the gift, there is no donatio 
 mortis causa. 
 
 In Michener v. Dale, 23 Pa. St. 59, the 
 present chief justice gave a definition which 
 I think accurate, and sustained by the au- 
 thorities in England and America. "Donatio 
 mortis causa is a gift of a chattel, made by 
 a person in his last illness, or in periculo 
 mortis, subject to the implied conditions, 
 that if the donor recover, or if the donee die 
 first, the gift shall be void." 
 
 To apply these authorities to the case be- 
 fore us,— B. F. Gourley enlisted in the army 
 in Captain Beck's company, on Saturday, 
 27th July, 1861, and on the same day gave 
 to Mr. Pattei'son two notes which are the 
 subjects of the present suits, in an envelope 
 directed to the plaintiff, "and told him to 
 give it to her, and said if he never came 
 back he wanted her to get it, as he would 
 rather she would get it than any other per- 
 son; that he wanted her to have these notes, 
 and would rather she should have them than 
 
 168 
 
 any other person. He said to give it to her 
 the first time I saw her, the first time she 
 would be in the village. I got the envelope 
 on Saturday and delivered it to her on the 
 following Monday (29th July), sealed up just 
 as I received it." 
 
 He said he would rather she should have 
 them than anybody else. B. F. Gom-ley was 
 in good health at the time of the delivery of 
 the notes, joined the army, and remained in 
 the service until he died of quinsy on Tues- 
 day, 26th November, 1861, four months after 
 the gift above stated. He was engaged to 
 the plaintiff, and no doubt desired her to 
 have these notes in case of his death; but 
 it was not a donatio mortis causa, being 
 made in full health and not in his last illness, 
 or in periculo mortis, nor in contemplation or 
 expectation or apprehension of death. 
 
 Judgments in both cases reversed, and 
 venire de novo awarded in both. 
 
 NOTE. See Virgin v. Gaither, 42 111. 39; 
 Grymes v. Hone, 49 N. Y. 17. In Ridden v. 
 Thrall, 125 N. Y. 572, -26 N. E. 627, a gift un- 
 der apprehension of death from one cause was 
 supported, although death was occasioned chief- 
 ly, if not wholly, by another cause. The donor, 
 it would seem, should be in reasonable appre- 
 hensions of death, and the gift be made in con- 
 sequence. See Knott v. Hogan, 4 Mete. (Ky.) 
 
20) 
 
 WABD V. TURNER. 
 
 Case No. 2& 
 
 WARD V. TURNER. 
 
 (1 Dickens, 170; 2 Ves. Sr. 431; 1 White & T. 
 Lead. Cas. Eq. 905.) 
 
 Chancery. July 21. 1752. 
 
 The plaintiff, as representative of John 
 Mosely, brought his bill to have a transfer 
 of £600 new South Sea annuities, and sev- 
 eral specific parts of the personal estate of 
 William Fly, delivered to him; and to have 
 an account of what was due to Mosely for 
 services done to Fly. 
 
 It appeared, that Fly in his life-time had 
 expressed great kindness for the plaintiff's 
 testator; and in the presence of one Moun- 
 sey, a witness, had taken three transfer re- 
 ceipts for £600 South Sea annuities, and de- 
 clared he would give them to the plaintiff's 
 testator; and in the presence of one Green- 
 tree, another witness, taking the key of his 
 scrutore, took out three papers, and said, 
 "Here, Mosely, I give you these three pa- 
 pers: these are for South Sea stock, and will 
 serve you when I am dead;" and in the pres- 
 ence of one Taylor declared, he gave the 
 plaintiff's testator aU the goods and plate in 
 his house, save his sword, gun, and books. 
 
 LORD HARDWICKE, C. Suppose the 
 facts above sworn to were well proved, 
 what is the law arising on these facts? 
 
 First, as to any part of the things given, 
 except the £600 South Sea annuities, I am of 
 opinion the gift is not good, there being no 
 pretence of any delivery, and it is too gen- 
 eral. If they prove anything, they must 
 prove a nuncupative will. 
 
 Then for argument's sake, take the gift of 
 the £600 South Sea annuities, as an inde- 
 pendent donation; the question is, whether 
 it be such a gift as the law of England will 
 allow as a donatio causa mortis. And first, 
 the fact of the gift is proved only by Green- 
 tree, whereas the civil law requires five wit- 
 nesses, and limits it in point of value. Vide 
 Justinian's Institutes. The express gift 
 sworn by Greentree is of the three receipts 
 only, which the plaintiff would construe as a 
 gift of the South Sea annuities. 
 
 The question that arises is: whether the 
 delivery of the thing, given by way of do- 
 natio causa mortis, is necessary; and if nec- 
 essary, if this delivery of the three receipts 
 is a sufficient delivery. I am of opinion a 
 delivery is necessary, and that the delivery 
 of the three receipts is not sufficient to vali- 
 date this act. 
 
 In the Roman law there are three kinds of 
 donatio mortis causa. First, where the prop- 
 
 erty in ■ the thing doth not vest, until the- 
 death of the donor; second, where the prop- 
 erty immediately passes, but is defeasible,- 
 in case tlie donor recovers; third, where the- 
 donor moved with present danger, doth not 
 think it so immediate as to give the party a 
 vested interest in them, but only to take ef-' 
 feet, when the donor dies. 
 
 Now, as to the second, the civil law re- 
 quires a delivery; but as to the first and' 
 third, not an absolute delivery, because the- 
 property doth not completely pass till the- 
 death of the donor. 
 
 But the civil law is not binding in this;: 
 country, farther than it hath been received,- 
 and allowed here, and that must be deter- 
 mined by authorities; and the result of the- 
 authorities is, that the civil law hath been 
 received in England, only so far as the gift 
 hath been attended with delivery. Swinb, 
 Wills, pt. 1, § 6; Drury v. Smith, 1 P. Wms, 
 404; Lawson v. Lawson, Id. 441; Jones v, 
 Selby, Pinch, Free. 300; Hedges v. Hedges, 
 Id. 209; Snellgi-ove v. Baily, (March, 1744,) 3^ 
 Atk. 214; Miller v. Miller, 3 P. Wms. 356. 
 
 Then I come to the question, whether the- 
 delivery of the three receipts is a delivery of 
 the thing; I am of opinion that it is not, and' 
 find no authority for it; the delivery of the- 
 thing given, is what is relied on in all the- 
 cases; the only case where a symbol wa? 
 held good, was in Jones v. Selby; the key of 
 the trunk wherein the thing was kept (ex- 
 chequer tallies), but I am of opinion thai' 
 amounted to a possession in the donee of the-' 
 tallies, for the donor was restrained froin- 
 making use of them, without the consent of 
 the donee, and the donor could not rightfully 
 come at them, without the key. 
 
 I think in like manner, as to a key of a* 
 warehouse for goods, or of a wine cellar. 
 
 But as to the delivery of the receipts for 
 the stock, it amounts to nothing; they being" 
 of no use after the acceptance of the stock, 
 and are seldom kept. 
 
 Suppose a mortgage and a separate receipt 
 taken for the consideration money, and the- 
 receipt is delivered over, it could not be as 
 delivery of possession. 
 
 Upon the whole I am of opinion this giff 
 is not valid, without a transfer, or some- 
 thing that amounts to a transfer, and it be- 
 ing unaccompanied with a delivery, is mere- 
 ly legatory, and amounts to a nuncupative 
 will, and allowing it would be a breach of 
 the statute of frauds. Therefore let the bill 
 be dismissed as to the gifts claimed. 
 
 NOTE. See Lawson v. Lawson, 1 P. Wms_ 
 441. 
 
 169^ 
 
Case No. 27 
 
 MEKCHANT V. MEKCHANT. 
 
 (§ai 
 
 MEKCHANT v. MERCHANT. 
 (2 Bradf. Sur. 432.) 
 Surrogate's Court New York, Nov., 1853. 
 Thos. W. Higgins, for W. H. Merchant. 
 Horace Holden and Robert Dodge, for lega- 
 tees. 
 
 THE SURROGATE. On the final account- 
 ing of the executor William H. Merchant, the 
 legatees seek to charge him with thi-ee thou- 
 sand dollars, the amount of thi-ee Erie Rail- 
 road income bonds, which they allege were 
 the property of the deceased. 
 
 To prove this, the claimants produced the 
 inventory; but, the entry thereon showing 
 that the executor claimed the bonds as a gift 
 from the testator, the proof was insufficient. 
 Mr. Dodge then testified that the executor, 
 after the testator's death, called at his office 
 and stated that he had taken the bonds in 
 •question out of the box containing the se- 
 curities of the estate, on the morning after 
 the decease of his father— the executor al- 
 leging as a reason, that he claimed them as 
 his own, as a gift from his parent. 
 
 It was then proved on the part of the ex- 
 ecutor, by the evidence of his co-executor, 
 Mr. Reading, that two of the legatees had 
 stated that the testator gave to his son, Wil- 
 liam, the bonds in question, some short time 
 previous to the making of his last will — 
 within a month before; that It was a full 
 and free gift, and William had handed the 
 bonds to his mother; that subsequently and 
 after the testator made his last will, his wife 
 took the bonds, conversed with him about 
 the will as it then stood, and, holding the 
 bonds in her hand, said, "Now, that the will 
 gives each child alike, shall I hand over to 
 ■each child a thousand-dollar bond?" The tes- 
 tator said, "No, put them back in my tin 
 iDOX." It also appears that, the day before 
 the testator's death, he directed one of his 
 daughters to bring the box, open it, and see 
 if the bonds were there. She opened it and 
 shewed him the bonds; and he said it was 
 all right, and told her to put them back in 
 the box, keep the key, and at his decease de- 
 liver it to Mr. Reading, one of his executors 
 —that she kept the key till after her father's 
 death, when she gave the key, at her moth- 
 er's request, to her brother William, the other 
 executor. 
 
 It is certain that the bonds in question once 
 belonged to the testator, and they were en- 
 tered by him on a schedule of his assets. 
 The testator having made a wUl by which 
 bis son had not been placed on an equal foot- 
 ing with his daughters, and having subse- 
 quently become reconciled to his son, made 
 the gift of these bonds, when his will remain- 
 ed in that condition. He afterwards revoked 
 that wiU and executed another, in which his 
 children were treated alike, except that the 
 daughters were given the use of his dwelling- 
 bouse and furniture in common vs'ith their 
 170 
 
 mother. After the new will had been made, 
 Mrs. Merchant brought the bonds to the tes- 
 tator, and the conversations and cu-cum- 
 stances occurred which I have before stated. 
 
 1. Was the gift to the son a donation inter 
 vivos or mortis causa? It is proved, that the 
 testator was at the time in his last sickness, 
 and that during the whole course of his ill- 
 ness, he did not expect to recover. In such 
 a case, the presumption of law is that the 
 gift was Intended as a donatio mortis causa. 
 1 Rop. Leg. 22. 
 
 2. It having been shown, that after the 
 gift the testator resumed possession, it is 
 m'ged on one side, that the gift was re- 
 voked; and on the other, that possession hav- 
 ing been obtained by the donor without the 
 consent or privity of the donee, the gift was 
 not legally revoked. The last point involves 
 the proposition that the donor cannot re- 
 voke the gift without the consent of the 
 donee. 
 
 I would remark, in the first place, that if 
 this be so, it is a solitary exception to dis- 
 positions of property made in view of death, 
 by the voluntary bounty of the donor. 
 
 It is true that a will does not revoke a 
 donatio mortis causa; but the reason is that 
 the will does not speak till the testator's 
 death— till the very moment the donation by 
 its terms has become absolute— when of 
 course it is too late to revoke it. On the 
 donor's death, the donee's title becomes 
 absolute, and therefore irrevocable by a will, 
 which from Its nature is Inoperative during 
 the donor's lifetime, the only period during 
 which the donation could be revoked. ■ 
 
 It is insisted, however, that. Inasmuch as 
 the entire dominion of the donor over the 
 property is transferred to the donee, no right 
 of revocation exists. But this rule, as I 
 understand it, does not mean that the donor 
 reserves no right of revocation— but only 
 that he parts with the control and posses- 
 sion of the property (Williams, Ex'rs, 654)— 
 that there is not a partial but absolute de- 
 livery and change of possession. If such an 
 absolute delivery is inconsistent with a pow- 
 er of revocation by simple reclamation, it is 
 just as inconsistent with a revocation in case 
 of the donor's recovery. Such an argument 
 would destroy the peculiar character of this 
 class of donations, and transform them into 
 pure irrevocable gifts Inter vivos. 
 
 The truth Is, that the whole of tills doc- 
 trine of revocation is a rule of law. The law 
 declares that a donation mortis causa, is 
 revocable In case the donor recover— and 
 that, too, notwithstanding the gift was In 
 express terms absolute, and the delivery was 
 absolute. I do not see in any case that the 
 power of revocation is inconsistent with ab- 
 solute dominion in the donee, existing under 
 a condition annexed by the law to the gift, 
 that the donor may resume the property. An, 
 attorney In fact, for the time being has full 
 authority and absolute dominion within the 
 
§21) 
 
 MERCHANT v. MEHCHANT. 
 
 Case Ko. 27 
 
 scope of his poww; and yet the power may 
 136 revoked at any instant. In the sense 
 contended for by the counsel of the executor, 
 a donee has not absolute dominion over the 
 subject of the gift: though his possession 
 for the time is absolute, his title does not 
 become perfect till the donor's death. Be- 
 fore that period, he cannot dispose of the 
 property. If that event should not happen, 
 the donor may resume his gift. 
 
 It is conceded on aU hands, that if the 
 donor recover the gift will be defeated. This 
 Is a condition the law implies; and if the 
 law likewise implies that the gift may be re- 
 claimed at the pleasm-e of the donor— the 
 latter condition is no more incongruous with 
 the possession and dominion of the donee 
 than the former. 
 
 It is admitted that the gift may be re- 
 voked in the donor's lifetime, by resumption 
 of possession; but if that means, that the 
 subject of the gift must come back into the 
 possession of the donor by the consent of 
 the donee, it amounts only to the simple 
 truism, that both parties can by mutual 
 agreement annul the transaction. But if by 
 resumption of possession, a reclamation of 
 possession is intended, then the gift can be 
 revoked at the option of the donor. This 
 seems to be the view taken in Bunn v. Mark- 
 ham, 7 Taunt. 224, where Gibbs, C. J., says: 
 "It is in the power of the donor at any time 
 to revoke the donation before his death." In 
 Ward V. Turner, 2 Ves. Sr. 433, Lord Hard- 
 wlcke does not declare that an actual re- 
 sumption of possession is necessary to con- 
 stitute a vaUd revocation; but on the con- 
 trary he cites the Commentary of Vinius to 
 the effect, that the donor where the gift was 
 defeated by "recoveiy or revocation," had 
 his action against the donee. Id. 439. 
 
 Suppose the donee dies before the donor, 
 does the gift stand? In the case of a will, 
 the prior decease of the legatee causes the 
 legacy to lapse. This was the rule of the 
 civil law in respect to donations mortis causa; 
 and in the same breath this was declared, 
 the power of the donor to revoke was like- 
 wise expressed. The terms or conditions on 
 which the donor can recover the subject of 
 the gift are thus stated in the Institutes: 
 "Sin autem supervixisset is qui donavit, re- 
 ciperet; vel si eum donationis poenituisset, 
 aut prior decesserit is cui donatum sit." 
 Inst. lib. 2, tit. Y, § 1. Again, in the Digest 
 it is laid down: "Mortis causa donatio, etiam 
 dum pendet an convalescere iDossit donator, 
 revocari potest." Dig. 1. 39, tit. 6, § IC, item 
 § 30. 
 
 The three conditions annexed to the gift 
 by the civil law, which on happening defeat 
 the donation, are: 1st, The recovery of the 
 donor; 2d, His repentance of the gift; 3d, 
 The death of the donee before the donor's 
 decease. These are separate and independ- 
 ent conditions. Ayliffe says, the gift "may 
 be revoked by the donor's repenting thereof." 
 
 Parergon, 331; Bracton, lib. 2, cap. 26, § 1. 
 In .Tones v. Selby, Finch Free. 300, the chan- 
 cellor said; "You agree that a donatio causa 
 mortis is a gift in presenti, to take effect in 
 futuro after the party's death, as a will; and 
 that it is revocable during his life, as a will 
 is." Chancellor Kent speaks of these gifts 
 as "conditional and revocable and of a tes- 
 tamentary character." 2 Comm. 445. In 
 Wells V. Tucker, 3 Bin. 370, Justice Tilgh- 
 man says: "It is contended on the part of 
 the plaintiff, that a gift of this kind passes 
 the property immediately, and is not subject 
 to revocation by the donor. Without ab- 
 solutely committing myself, I incline to the 
 opinion, that in this as in several other par- 
 ticulars, it partakes of the nature of a legacy, 
 and is revocable." In the same case. Jus- 
 tice Yoates describes the donation as "sub- 
 ject to countermand and revocation." In 
 Nicholas v. Adams, 2 Whart. 22, Justice 
 Gibson states accurately the thi-ee modes of 
 defeasance acknowledged by the civil law. 
 His language is, that it is "defeasible by 
 reclamation— the contingency of survivor- 
 ship—or deliverance from the peril." 
 
 I find nothing against this doctrine— un- 
 less it be the language of the vice chancellor, 
 in Reddel v. Dobree, 10 Sim. 244, who, 
 speaking of an alleged donation, character 
 ized it as a gift which "was always liable 
 during the lifetime of the testator to be re- 
 called by him;" and "therefore the very 
 essence of a donatio mortis causa," was want- 
 ing. The gift in that case, was of money 
 that miglit haijpen to be in a certain box at 
 the testator's death, and on condition that 
 up to the time of his death, he should re- 
 tain "the complete dominion over whatever 
 might be placed in the box." The opinion of 
 the vice chancellor is, substantially, that the 
 reservation of this dominion Is inconsistent 
 with the essence of a donatio mortis causa. 
 If no more than that was intended, the doc- 
 trine is but another form of stating that there 
 must be a complete delivery. If it was de- 
 signed to declare that when there had been 
 a complete deUvery, the donor could not re- 
 voke the gift, such an opinion was not called 
 for by the case in hand, and is not agreeable 
 with the authorities. There are several 
 cases besides that of Reddel v. Dobree, 
 which might be supposed to unply that the 
 donor had no right to revoke, (4 Dru. & 
 War. 159. 285; 2 Colly. 356; 8 Mees. & W. 
 401;) but I think they proceed on the ground 
 that there must be an absolute delivery, a 
 change of possession and dominion, so as to 
 vest the full possessory title in the donee, 
 subject only to such rules as the law ap- 
 plies to this class of gifts. That a donatio 
 mortis causa cannot be revoked at the will 
 of the donor, I find no where decided, or 
 distinctly asserted; while the rule of the 
 civil law, that it could be revoked if the 
 donor repented, even while it was uncei-tain 
 whether or not he would recover, is clearly 
 
 171 
 
Case No. 27 
 
 MEKCHANT v. MEKCHANT. 
 
 (§21 
 
 laid dowu In the Digest, and has been ad- 
 mitted to be the rule at common law, by a 
 number of distinguished judges, although I 
 am not aware the point has expressly arisen 
 as the subject of distinct decision. 
 
 Applying this rule to the facts in evidence, 
 I am of opinion that the testator conceived 
 this gift to be revoked. After making the 
 donation, he made a change in his will, and 
 substantial alterations as to th<^ disposition 
 of his propei-ty, in favor of the donee. 
 When that act was accomplished, his wife 
 brought these bonds to him, and asked 
 whether she should distribute them among 
 his children. He said, "No," and directed 
 them to be placed in the depository where 
 he kept his valuable papers. That direc- 
 tion was not only a resumption of the pos- 
 session, but an indication of a change in his 
 views in respect to the disposition of the 
 property. His subseauent conduct, in call- 
 ing for the box, inquiring whether the bonds 
 were there, and directing his daughter to 
 lock the box, and give the key not to his 
 son, but to the other executor, after his 
 death, confirms the idea of revocation, and 
 shows he intended the bonds to come into 
 the possession of his executor, after his de- 
 cease, as a part of his estate. I think, 
 therefore, that the revocation has been sus- 
 tained. 
 
 The jurisdiction of the suiTogate to tiy 
 this question, has been questioned by the 
 coimsel of the donee. The surrogate has 
 jm-isdiction to try every question necessary 
 to the settlement of the accounts of the ex- 
 ecutor. It is competent for the legatees, on 
 the accounting of the executor, to produce 
 172 
 
 evidence to charge him with more assets 
 than he acknowledges in his accounts to 
 have received. They may prove the testa- 
 tor had assets which the executor should 
 have collected, or which he has received 
 and not brought into his accounts. In the 
 present case, the legatees assumed the last 
 position. They sought to charge the execu- 
 tor with the amount of these bonds, and 
 shewed the bonds had belonged to the testa- 
 tor in his lifetime, and that the executor 
 had admitted they were in the possession of 
 the testator at the time of his death. Had 
 the case stopped there, it would have been 
 my duty to have charged the executor with 
 the amount of the bonds. But he sets up a 
 gift by the testator; and in order to decide 
 whether he is liable or not for the bonds, 
 the question of gift must be determined. 
 The executor himself raised this point, to 
 exonerate himself from liability; and it is 
 necessary to decide it in order to settle his 
 accounts, and make a final decree for the 
 distribution of the estate. If an executor 
 can retain assets on the plea of a gift causa 
 mortis, and then successfully impeach the 
 surrogate's jurisdiction to inquire into the 
 validity of this plea, the power of this com-t 
 in respect to the settlement of accounts and 
 the adjustment of estates is at an end. 
 
 I am very clear that this objection is not 
 tenable— and must therefore decree distribu- 
 tion, in accordance with the conclusion to 
 which I have arrived, respecting the revoca- 
 tion of the donation by the testator before 
 his decease. 
 
 NOTE. See Jones v. S«lby, Finch Free. 300: 
 Jayne v. Murphy, 31 111. App. 28. 
 
§§ 22. 23) 
 
 CHASE V. REDDING. 
 
 Case No. 3S 
 
 CHASE et al. v. REDDING et al. 
 
 (13 Gray, 418.) 
 
 Supreme Judicial Court of Massachusetts. 
 Sept. Term, 1859. 
 
 A. L. Soule, for plaintiffs. N. A. Leonard, 
 for defendants. 
 
 SHAW, C. J. This is a bill in equity, 
 brought by the plaintiffs as administrators 
 of the estate of George W. Chase, deceased, 
 against ApoUos Redding and others, seeking 
 to have certain assignments and transfers of 
 property, made by their Intestate prior to 
 his decease, set aside, and the property re- 
 stored to the plaintiffs, to be administered a s 
 the assets of the said estate, and for other 
 relief. 
 
 The case was, by mutual consent, referred 
 to Henry Vose, Esq., who has made a re- 
 port of the facts, which the parties, by their 
 certificate in writing, have agreed shall be 
 taken as the facts of the case. It will be 
 suflacient therefore to take an abstract of Mr. 
 Vose's report, as a statement of the case, on 
 which the questions before us arise. 
 
 It appears that George W. Chase, the plain- 
 tiffs' intestate, died, leaving no issue, but 
 leaving a widow, now one of the plaintiffs. 
 He had formerly been the owner of a farm, 
 which he had sold to William B. Taber, his 
 wife's brother, and received three notes of 
 $1,000 each, secured by mortgage. Prior to 
 May, 1852, domestic troubles and difflcolties 
 subsisted between said Chase and his wife, 
 and there were mutual complaints and great 
 want of harmony between them; they par- 
 tially separated in May 1852, and in the lat- 
 ter part of the summer of that year he left 
 the neighborhood and probably the state, 
 and she never saw him after the 1st of Sep- 
 tember, 1852. 
 
 Chase, the intestate, returned to Massa- 
 chusetts in 1855, and went to reside in Ware 
 with ApoUos Redding, one of the defendants, 
 who had married his sister; he was then 
 laboring under a disease which his physi- 
 cians advised him was incurable, as it 
 proved, and he died in October, 1855. Dm-- 
 ing his sickness, upon deliberation and im- 
 der advice of counsel, he gave to Apollos 
 Redding, to a niece, daughter of said Red- 
 ding, who had assiduously attended him, 
 and to a yoimg man whom he had formerly 
 partially adopted, the three notes, secm-ed by 
 mortgage, for $1,000 each, being the whole 
 of his available property, and proper as- 
 signments to secure payment of said sums to 
 the respective donees. These were intended 
 by said Chase as gifts causa mortis. It ap- 
 pears that this was nearly, if not quite, the 
 whole of his property, and no assets of any 
 ilnportance came to the administrators. 
 
 On reference to Mr. Vose, public notice 
 was given to any persons, having claims 
 against the estate of said Chase, to come In 
 and prove them; and the claims of vari- 
 
 ous persons, speciflcaUy enumerated, were 
 proved, amoxmting in the aggi-egate to be- 
 tween $400 and $500. 
 
 The court are of opinion, upon the case 
 shown, that the gift of the three negotiable 
 notes to the donees respectively, with an as- 
 signment of mortgages to secure them, was 
 a good donatio mortis causa. It was accom- 
 panied with all the incidents required to give 
 legal effect to such a gift. The donor was 
 in his last sickness, and so considered him- 
 self, and intended to make a final disposi- 
 tion of the property, in case he should not 
 recover. 
 
 As to the character of the thing given, the 
 law has undergone some changes. Ori^- 
 nally It was limited, with some exactness, to 
 chattels, to some object of value delivered 
 by the hand; then extended to securities 
 transferable solely by delivery, as bank notes, 
 lottery tickets, notes payable to bearer, or 
 to order, and indorsed in blank; subsequent- 
 ly it has been extended to bonds and other 
 choses in action in writing, or represented 
 by a certificate, where the entire equitable 
 interest is assigned; and in the very latest 
 cases on the subject in this commonwealth 
 iX has been held, that a note not negotiable, 
 or if negotiable, not actually indorsed, but 
 delivered, passes, with a right to use the 
 name of the administrator of the promisee, 
 to collect it for the donee's own use. Ses- 
 sions V. Moseley, 4 Gush. 87; Kempton v. 
 Bates, 7 Gray, 382. For the general prin- 
 ciple we refer to 2 Kfent, Gomm. (6th Ed.) 
 444; Parish v. Stone, 14 Pick. 203. 
 
 But we think it is equally clear that sucJi 
 a gift cannot avail against creditors. Their 
 right is prior in character. A man is bound 
 to be just before he is generous. Creditors 
 have claims on the justice and legal duty of 
 the debtor; whilst donees, legatees and heirs, 
 having paid nothing, are volunteers, and 
 have claims only on his bounty. Strictly 
 speaking, the only property which any one 
 can give away, voluntarily dispose of with- 
 out consideration, is the balance which re- 
 mains after payment of his debts. 
 
 But it is objected to this suit, that before 
 it was commenced the two years had ex- 
 pired within which, under the Statutes of 
 1852, c. 294, the creditors could bring suits 
 against the administrators for their debts. 
 But it does not follow that this suit cannot 
 be brought to get in the assets. They made 
 their claims before the statute bar had run 
 against them, and the administrator admit- 
 ted themt Mr. Bond, one of the administra- 
 tors, promised to bring this suit as their 
 trustee and for their benefit, and to take no 
 advantage of the statute of limitations. 
 
 We may ask, what would have been the 
 legal course, if this arrangement had not 
 been entered into? Each would have 
 brought his action, and to each the admin- 
 istrator might have pleaded plene adminis- 
 travit, and each would have been entitled to 
 
 173 
 
Case No. 28 
 
 CHASE 1-. REDDING. 
 
 (§§ 22. 2S 
 
 the common law conditional judgment 
 against the assets wben they should accnie 
 — quando acciderint. 
 
 Or suppose no such plea had been made, 
 and the creditors had had a general judg- 
 ment de bonis testatoris; or suppose the es- 
 tate had been represented insolvent, and the 
 claims of these creditors had been rejected 
 by commissioners; in either of those cases, 
 it would be the right and the duty of the adr 
 ministrator to proceed and get in the assets 
 as soon as he could, notwithstanding the 
 lapse of two years; and in this way these 
 would have been legally available for the 
 payment of these debts. In such case, we 
 think it was competent for the parties, in 
 order to avoid the unnecessary expense of 
 suits, to accompUsh the same pm-ijose by 
 the arrangement actually made. It was not 
 injmuous to the defendants, and it is op- 
 posed by no bar to a suit against them. 
 Suppose this suit had been brought within 
 two years, under a like an'angement, and 
 pending the suit the two years had expired, 
 would that bar or abate the suit? We think 
 not. The administrator is trustee for cred- 
 itors, and in that capacity may avail him- 
 self of legal means to get in the trust fund. 
 This objection cannot avail tlie defendants. 
 
 These gifts, if confirmed and held good, 
 do not impair the rights of the widow. Her 
 right is to the property of which the hus- 
 band died seised or possessed. These gifts 
 have their full effect in the Ufetime of the 
 donor, and the property is not in his pos- 
 session at the time of his decease, and does 
 174 
 
 not come under the administration of the 
 executor. Parish v. Stone, 14 Pick. 203. 
 
 But we think that the defendants not hav- 
 ing, by their answer, offered to pay such 
 debts as might be found due from said 
 Chase, but on the contrary denied that this 
 suit can be maintained for their benefit, can- 
 not exonerate themselves from the payment 
 of the costs in the present suit, with the ex- 
 penses of administration. 
 
 But as the defendants have now offered to 
 pay the debts due to creditors of the estate, 
 and as a reference has already been made to- 
 a master, who has reported specifically every 
 debt, and the name of each creditor, and all 
 others are now barred by the statute of lim- 
 itations, a special decree may be entered to 
 this eflfect: That if the defendants wiU pro- 
 ceed and pay to all such creditore the debts- 
 reported to be due to them respectively, and 
 produce evidence thereof or of a sufficient 
 tender; also all such reasonable allowance 
 for expenses of administration and costs of 
 this suit, as this coiu-t may hereafter allow 
 of and approve; then aU further proceedings 
 in this suit shall be stayed, without further 
 costs to either party. In the mean time this 
 case to be continued to the next term of the 
 supreme judicial court for this county, to 
 enable the defendants to comply with the 
 foregoing condition. 
 
 Decree accordingly. 
 
 NOTE. See Stone v. Stone, (1853,) 18 Mo 
 389. Cf. Lightfoot v. Colgin, 5 Munf. 42; 
 Manikee v. Beard, 85 Ky. 20, 2 S. W. 545; and 
 Pringle v. Pringle, (1868,) 59 Pa. St. 281. 
 
§§ 22, 24) 
 
 MAKSHALL o. BEEUY. 
 
 Case No. 29 
 
 MARSHALL v. BERKY. 
 
 (13 Allen, 43.) 
 
 Supreme Judicial Court of JIassiicluisotts. 
 Oct. Term, 180G. 
 
 Appeal from superior court of Miissacliu- 
 setts; Morton, Judge. 
 
 Action by Edward M. Marshall, adminis- 
 trator of the estate of Abbey L. Marshall, 
 against Hiram D. Berry, for the conversion 
 of certain United States bonds and notes. 
 It appeared that plaintiffs wife, who had no 
 children, while on her death bed directed 
 defendant to give the bonds to her brother, 
 and deliver certain treasury notes for her 
 mother. The mother and brother were not 
 present at the time, and there was no deliv- 
 ery to either of them while Mrs. Marshall 
 was alive. After her death, though forbid- 
 den to do so by her husband, who had taken 
 out letters of administration, defendant dis- 
 posed of them as directed by ilrs. Marshall. 
 Judgment was directed for the plaintiff, and 
 defendant alleged exceptions. 
 
 T. G. Kent, for defendant. H. B. Staples, 
 (W. F. Slocum with him,) for plaintiff. 
 
 WELLS. J. The evidence tended to show 
 a good donatio causa mortis of a part at 
 least of the property claimed by the adminis- 
 trator. It was property which is now held 
 to be capable of such disposition. Delivery 
 to a third person for the intended donee, to 
 be given to him after the decease of tlie 
 donor, and actual receipt and acceptance by 
 the donee after such decease, complete the 
 conditions of such a gift and perfect the ti- 
 tle in the beneficiary. Sessions v. Moseley, 4 
 Cush. 87; 1 Williams, Ex'rs (4th Am. Ed.) 
 (iSe, note. It would seem, therefore, that 
 the ruling of the judge who tried the case, 
 directing a verdict for the plaintiff, must 
 have been upon the ground which has bcfu 
 argued by the plaintiff's counsel here, name- 
 ly, that a married woman is not authorized 
 under our statutes to make such a disposi- 
 tion of her separate property. 
 
 The statutes relating to this subject de- 
 clare that the property of a married woman 
 "shall be and remain her sole and separate 
 property," "and shall not be subject to the 
 interference or control of her husbancl;" that 
 she "may bargain, sell and convey" it and 
 "enter into any contracts in reference to the 
 same," &c., "in the same manner as if she 
 were sole." It may be true, as has been 
 said, that these statutes, being in derogation 
 of the common law rights of the husband, 
 are to be construed strictly. But tlicy must 
 be construed in accordance with the appar- 
 ent intention of the legislature. The stat- 
 utes seem to evince an intention to clothe 
 the wife with the complete and absolute con- 
 trol and power of disposal of her own prop- 
 erty. By affixing certain limitations to that 
 power, the intention to authorize its full ex- 
 
 ercise within those limitations is the more 
 clearly shown. Those limitations restrict 
 her conveyances of real estate, and of share* 
 in a corporation, and also all transactions 
 between herself and her husband. They al- 
 so limit the operation of her will to one half 
 of her personal estate, unless her husband 
 consent. None of these restrictions entitle 
 the husband, for his own benefit, to invali- 
 date a gift made by the wife. And it seems, 
 clear to us that the court are not called upon 
 by any provision of statute or policy of the 
 law, nor are they authorized, to impose any 
 such restriction. 
 
 It is contended that a gift mortis causa i.« 
 a testamentary disposition of estate, and 
 tlierefore, if made by a married woman, 
 would be contrary to the intent of Gen. St. 
 c. 108, § 9, and, if sustained, would tend to 
 defeat Ihat provision. Although it is of a 
 testamentary character in some of its inci- 
 dents, and is said to have been deemed by 
 the Roman law "of the nature of leyiicies;" 
 1 Story, Eq. Jur. § 607; yet inasmuch as, by 
 our law, an actual delivery, or some equiva- 
 lent act, by the donor, in his lifetime, is nec- 
 essary to its validity, we think it must be 
 regarded as, in its essential character, a 
 gift. Tlie title p.Tsses by the delivery, de- 
 feasible, only in the lifetime of the donor, 
 by revocation, either express, or implied by 
 his recovery or some other act inconsistent 
 with the gift and indicating a purpose to re- 
 sume it. The death of the donor perfects 
 the title, by terminating his right or power 
 of defeasance. This mode of transmission 
 can apply only to certain specific articles 
 capable of passing by delivery, and not as a 
 disposition of the donor's estate. If it pur- 
 port to be such a disposition, that is, if it as- 
 sume the province of a will, it is void. 
 Headley v. Kirby. 18 Pa. St. 326. It is not 
 subject to probate, nor to contribution with 
 legacies in case of insufficiency of assets, 
 not to any of the incidents of administration. 
 The donor at his decease is held to be already 
 devested of his property in the subject of the 
 gift, so that no right or title in it passes to 
 his personal representatives. The donee 
 takes the gift, as it is said, not from the 
 administrator, but against him. It is sub- 
 ject to debts; but only in the same way 
 as other voluntary conveyances and gifts- 
 would be. That the wife may thereby evade 
 the provision of the statute, which disables 
 her from depriving her hiLsband of more 
 than half of her personal estate by her will, 
 witliout his consent in writing, may be 
 equally urged against any disposition of it 
 in her lifetime. This consideration does not 
 protect the wife from such disposition of 
 his estate by the husband. Chase v. Red- 
 ding, 13 Gray, 418. 
 
 We see no reason for guarding the rights 
 of the husband more tenderly than those of 
 the wife. In the case of Jones v. Brown, 34 
 N. H. 439, the coiwt seem to hold a contrary 
 
 175 
 
Case No. 29 
 
 MARSHALL V. BERKY. 
 
 (§§ 22, 24 
 
 ■doctrine, both as to the nature of the gift, 
 .:and the power of the wife to make it. But 
 if the current of authorities be interpreted 
 "toy the thing decided rather than by the 
 3)hraseology used, it must result in the po- 
 sition before stated, that a donatio causa 
 mortis is not a testament but a gift. Nich- 
 .olas V. Adams, 2 Whart. 17-22, and Dole v. 
 Xincoln, 31 . Me. 422, contain strong state- 
 ments of this view of the subject. 
 
 The question of the power of the wife must 
 T>e determined upon the statutes, nnd there- 
 fore the decision in New Hampshire can 
 "have little weight with us, except from its 
 
 176 
 
 bearing upon the other point. Our statutes 
 are broad and explicit. If the legislature 
 intended that the wife should be restricted 
 in this respect, it would have been so de- 
 clared. In the absence of any provision of 
 statute inconsistent with the right of the 
 wife to dispose of her personal property in 
 this manner, we must hold that she has the 
 power. 
 
 The verdict must therefore be set aside 
 and a new trial granted. 
 
 Exceptions sustained. 
 
 NOTE. See Moore v. Darton, 4 De Gex. & 
 S. 519. 
 
§29) 
 
 BARTHOLOMEW v. HENLEY. 
 
 Case No. 30 
 
 BARTHOLOMEW et al. v. HENLEY. 
 
 (S Phillim. Ecc. 317.) 
 Prerogatiye Court of Canterbury. 1820. 
 Judgment 
 
 SIR JOHN NICHOLL. The party de- 
 ceased is John Eyre Bartholomew. He died 
 on the 22d of Februaiy 1819, leaving a widow, 
 a son, and a daughter; he was possessed of 
 a small real estate, and of personal property 
 amounting to from 7 to £10,000. He had 
 lived apart from his wife, and had for sev- 
 eral years before his death cohabited with a 
 Miss Saunderson— he had a high regard for 
 her— by his will of the 12th of November, 
 
 1813, he bequeathed to her the rent of two 
 houses in Avery Row, all his household fur- 
 niture, plate, money in his house, and a third 
 in reversion of £2000 in the event of the 
 death of a son he had by her, before he 
 should attain the age of 25 years. 
 
 There is a paper dated the 13th August, 
 
 1814, by which he gave her the improved 
 rent of a house in Grosvenor-street— this is 
 all in the deceased's handwriting, but not 
 signed;— this is admitted to be a codicil. 
 
 A check is produced dated the 16th of Jan- 
 uary, 1817, for £250; another of the 4th of 
 November, 1817, for £500; and nine months 
 afterwards another check for £150;— corre- 
 sponding entries to them are made in the 
 check-book. 
 
 The first entry is "2808, Jan. 16, 1817. I 
 give this check to Miss Eyre, for fear any 
 thing should happen to me before I can make 
 a codicil to my will, £250." The second en- 
 try is "2544. I give this draft to Miss Eyre, 
 being very ill, for fear any thing should hap- 
 pen that I should die, as it is my intention to 
 make another wUl in her favom\" The third 
 is, "June 16—18, Miss Eyre. This draft to 
 be paid from my bankers, in case I should 
 die, £150." 
 
 These several checks and entries are plead- 
 ed as codiciUary— on the other side it is plead- 
 ed that they were only written during occa- 
 sional Ulness, and have no effect; -and that 
 he wrote checks for others;— that he died 
 suddenly, and that payment of the checks 
 was not applied for till after his death. 
 
 The question for the court to consider is, 
 whether, under these circumstances, the in- 
 struments are a part of a testamentary dis- 
 position of the deceased; or whether they 
 became void on his recovery; or whether he 
 intended only one of them to operate; or 
 whether each is to be added to the other. 
 
 Paper B. is in the form of a codicil; but 
 these three are not so. Indeed it must be 
 admitted that the papers are not in a testa- 
 mentary form: but that is not necessary. 
 Deeds of gifts, or letters if dispositive of 
 property and to be consummated by death, 
 have effect, although the deceased might not 
 be aware that he had performed a testa- 
 mentary act. Even if they are testamentary, 
 
 ABB.WILLS— 12 
 
 the court must enquire if they are contin- 
 gent or cumulative. 
 
 This court is often called upon in cases of 
 this description to ascertain the real inten- 
 tions of the testator. On the face of these 
 papers I think they are testamentary; they 
 are directions as to the property after death; 
 — there is notlilng to make me think them pro- 
 visional. It cannot be denied that if he had 
 died immediately after writing the drafts, 
 they would have been valid. If they would 
 have been good at that time, it is for the 
 party opposing them to say when they ceased 
 to be good; the construction usually put on 
 such instruments is this, "in case I neglect 
 the opportunity of making my wUl, I wish 
 this to be a protection against my own neg- 
 ligence and omission." This is the only safe 
 construction which can be put I do not con- 
 sider a certain time imposed during which 
 they are to be good, as the deceased has im- 
 posed no time himself. 
 
 In the next paper he states "for fear any 
 thing should happen to me that I should 
 die;" — £500. This is much too large a sum 
 for the purpose suggested of immediate sup- 
 plies after death;— this is an absolute bene- 
 fit, not a condition the deceased imposed on 
 himself. The third draft states "in case I 
 should die £150;" this is not like a substitu- 
 tion, it is a much smaller benefit. The gen- 
 eral principle is, that bequests are prima 
 facie to be taken cumulatively where they are 
 on separate papers, unless, they are revoca- 
 tory of each other. It is observable also 
 that the deceased was not then in a danger- 
 ous state; from the very words of one of 
 them, it was most clearly intended to be an 
 addition to his wiU. 
 
 This is the view the court is disposed to 
 take of the papers. His mode of carrying 
 his intentions into effect is singular: but the 
 only point for my consideration is, whether 
 he intended the party to have the benefit. 
 Suppose a bank note in an envelope with a 
 simUar endorsement to this, no one can doubt 
 what the effect would be— indeed I remember 
 a case of that sort;— although cases are sel- 
 dom precisely simUar, the court must en- 
 deavour in all of them to extract the inten- 
 tions of the parties. 
 
 These observations arise on the face of 
 the paper; the circumstances and evidence 
 lead to the same conclusion. The deceased's 
 wife had deserted him, and he was not on 
 terms of dvUity with his son; he was de- 
 sirous of marrying Miss Eyre, and had re- 
 sorted to legal advice to ascertain whether 
 he could do so. It is clear from the other 
 testamentary papers, that he intended to in- 
 crease the provision for Miss Eyre. In 1813 
 he made his wUl; in 1814 he wrote paper B.; 
 in 1816 and 1817, new wUls were began; and 
 it is clear from the contents of those papers 
 that he Intended a very considerable addi- 
 tion to Miss Eyre. It is not then Improba- 
 ble that he should from time to time do fur- 
 
 177 
 
Case No. 30 
 
 BARTHOLOMEW v. HENLEY. 
 
 (§29' 
 
 ther acts in her favour; he spoke of her as 
 extremely attentive to him during his ill- 
 nesses; and there is considerable probability 
 that during these illnesses he intended to In- 
 crease the benefit he destined for her. 
 
 These drafts on the death of the deceased 
 are in the possession of Miss Eyre. It has 
 been argued that the receipt of one draft 
 must put an end to the preceding one, and 
 so on; the one putting an end to the other; 
 but there is nothing on the checks themselves 
 to show that such was the opinion of the de- 
 ceased. 
 
 With respect to the parol evidence, one 
 witness Bell, a friend of the deceased's has 
 178 
 
 been examined, who deposes, that he had 
 often heard the deceased sjpeak in terms of 
 regard for Miss Byre. He states that the 
 deceased referred to these checks, although 
 he eamiot fix the time of his doing so; and 
 the court cannot rely strongly on this: but 
 where it Is in concurrence with the other 
 •vidence, some reliance is to be placed ' on 
 the statement. 
 
 On the whole I am bound to look to benefit 
 intended; and although it has been done in 
 an anomalous form, it is the duty of the- 
 court to carry into effect the intentions of the- 
 deceased, and to consider these papers as a 
 part of the will and codicils of the testator. 
 
§29) 
 
 NATHAN V. MORSE. 
 
 Case No. 31 
 
 NATHAN V. MORSE. 
 
 (3 Phillim. Ecc. 529.) 
 
 Prerogative Court of Canterbury. 1821. 
 
 Hugh Morse died on the 12th of August, 
 1820, while he was in the act of dictating 
 instructions for his will to William Chris- 
 topher, his solicitor, in the presence of Mr. 
 Isaac Joseph; he had proceeded as far as 
 the clause which contained the appointment 
 of the executor, when he was attacked by the 
 seizure which terminated his existence. Im- 
 mediately after his death, Mr. Joseph request- 
 ed Mr. Cappage to read over the instructions 
 to him, which he accordingly did; and then 
 Mr. Joseph observed, that he had omitted a 
 legacy of £1000 3 per cent, consols, to Eliza- 
 beth Nathan, for her own use, independent 
 of her husband, upon which Mr. Cappage, 
 recollecting that the deceased had directed 
 this legacy to be given, immediately, in the 
 presence of Mr. Joseph and another person, 
 who was present, added the legacy which he 
 had omitted. 
 
 "Instructions for the will of Hugh Morse, 
 of King street, Tower Hill, London, fm-rier, 
 taiien this twelfth day of August, 1820. To 
 his mother £1000, 3 per cent, consols, for her 
 to take the interest for her life; after her 
 death £500 stock, part of this sum, to the 
 children of Elizabeth Nathan, the wife of 
 Lewis Nathan, of Prescott street, Goodman's 
 r'ields, pen-cutter, that shall be living at the 
 time of his mother's death, share and share 
 alike, to be paid to them as they respectively 
 attain the age of 21, with benefit of survivor- 
 ship, the interest to be applied towards their 
 maintenance. 
 
 To Catharine Williams, of Blackmoore 
 street, Clare market, two hundred pounds, 
 and to her five children the sum of £200 
 each. 
 
 To the new synagogue in Leadenhall street, 
 the sum of £20. 
 
 To the Jews' Hospital, Mile End, the sum 
 of £5. 
 
 At the. death of his mother, the remaining 
 £500 stock, part of the above £1000 stock, to 
 my nieces, the children of my late brother 
 Moses Morse to be equally divided betweea 
 them. 
 
 To his nephew, the son of the late Moses 
 Morse, last named, the sum of £50. 
 
 The residue of my estate and effects I give 
 to my executor, to be divided by him amongst 
 the before named children of Elizabeth 
 Nathan, wife of Lewis Nathan. 
 
 Isaac Joseph, of Sams Coffee-House, exec- 
 utor. 
 
 To his daughter, the before named Eliza- 
 beth Nathan, £1000 three per cent, consols, 
 free and independent of her husband." 
 
 Judgment. 
 
 SIR JOHN NICHOLL. The facts are sat- 
 isfactorily established. I have no doubt in 
 pronouncing this to be the will of the de- 
 ceased, as far as to the appointment of the- 
 executor: but it is perfectly clear that the 
 other part was not committed to writing dur- 
 ing the Ufe of the deceased. Although the- 
 court goes the utmost length to give effect 
 to intention clearly proved, and reduced into 
 writing in the lifetime of the testator, yet it 
 has never held that any thing added to a will 
 after death can be established. Death con- 
 summates the instrument;— nothing can be 
 added afterwards. 
 
 The last clause must be pronounced against, 
 and struck out of the will. 
 
 I have no doubt of pronouncing for the will 
 without it. 
 
 The judge struck out the clause. 
 
 17» 
 
Case No. 82 
 
 IN EE GOODS OP JOKDAN. 
 
 (§29 
 
 In re GOODS OF JORDAN. 
 
 (li. R. 1 Prob. & Div. 555.) 
 
 Court of Probate. Jan. 21, 1868. 
 
 Elizabeth Jordan died on the 21st' of July, 
 1867, leaving a will disposing of realty only. 
 The will contained an appointment of an ex- 
 ecutor who had duly renounced probate. 
 
 Proctors: Pritchard & Bnglefield. 
 
 SIR X P. WILDE. I think the next of 
 kin Is entitled to the grant. The general prin- 
 ciple is laid down in WiUiams on Executors:* 
 "The bare nomination of an, executor, with- 
 
 180 
 
 ' Part 1, bk. 3, p. 218, (6th Ed.) 
 
 out giving any legacy, or appointing anything 
 to be done by him, is sufficient to make it 
 a will, and as a will It is to be proved." If 
 the nomination of the executor made it a wiU, 
 the fact of his subsequent renunciation can- 
 not take away the effect of the nomination. 
 The principle laid down by Mr. Justice Wil- 
 liams was affirmed by Sir C. Creswell in 
 O'Dwyer v. Geare.' The 79th section of the 
 20 & 21 Vict. c. 77, merely affects the right 
 of the person entitled to the grant The next 
 of kin is entitled to administration with the 
 win annexed. 
 
 »1 Swab. 
 & Adm. 47. 
 
 & Tr. 465; 29 Law J. Prob. M. 
 
§30) 
 
 BROWN V. SACKVILLE. 
 
 Case No. Sa 
 
 BROWN v. SACKVILLE. 
 
 (Dyer, 72a.) 
 
 Michaelmas Term, 6 Bdw. VI. 
 
 A man seised of lands in fee simple holden 
 in socage (being sick in bed) sent for Mr. 
 Atkins, a man learned in the law, and de- 
 sired his counsel in making his wlU, who took 
 notes of It, and afterwards departed from 
 the devisor, and about eight of the clock in 
 the morning put the said will in writing 
 according to due form of law, agreeably to 
 the said notes, and according to the said 
 will declared unto htm, which was wholly 
 written before eleven o'clock of the same day, 
 and the devisor died at twelve, so that he 
 
 did not hear the said wiU read. Ex deposi- 
 tlone Mri. Atkins. It was moved, whether 
 this was a good wUl, or not? And by the 
 opinion of the court in the bench In Easter 
 term, 4 & 5 Phil. & M. in a wi-lt of qulbus 
 brought by Brown against SackviUe, Co. Ent. 
 224, in evidence upon the trial of the issue 
 nul disseisin, that such a will is good enough, 
 and sufficient by the statute. So the same 
 point was doubted upon the last wUl of 
 Hinton of London In the court of wards, (M., 
 4 & 5 Eliz.) whereof articles were made In 
 the second year of Edw. VI. ut supra, and 
 read to the devisor by the scrivener, and 
 written at length after his death, and holden, 
 as above well enough. 
 
 181 
 
Case No. 34 
 
 NASH 0. EDMUNDS. 
 
 (§30 
 
 NASH V. EDMUNDS. 
 
 (Cro. Eliz. 100.) 
 
 Qneen's Bench, Michaelmas Term. 29 & 30 
 Eliz. Roll, 201. 
 
 Ejectione Firmae. And declared upon a 
 lease made to him by Ave women, daughters 
 and heirs of Jo. Dover. Upon not guilty, the 
 jury gave a special verdict:— "The said Dover 
 was. seised in fee of the land held in socage, 
 and that he declared to William North and 
 others, his will to be, that J. 0. lessor of the 
 defendant should have his land; and the said 
 William North recited the words to htm, and 
 asked him if this was and should be his 
 will; and he answered, that it was. And 
 they further find that the said North, in the 
 life of Dover, and for his own remembrance, 
 and without the appointment of Dover, writ 
 the said will, and afterwards Dover died." 
 And if this were a good wUl, being spoken 
 with such direct words, and being writ in 
 his life by the witness for his own remem- 
 brance,, and without the appointment of Do- 
 ver? was the question.— All the justices (who 
 showed their opinions, seriatim) held it to be 
 a void devise, because the will was not writ 
 182 
 
 by the commandment of the devisor, or by 
 his consent, but of the person present, of 
 his own head; but If he had writ it without 
 the devisor's consent, and afterwards had 
 read it to him, and he had agreed to it; 
 this had been as good as if written by his 
 appointment, as Brown's Case, 1 Dyer, 72. 
 And if in the principal case it should be a 
 good will, it would be a great mischief; for 
 then if one should say to another when he 
 is in health, "I devise such land to .T. S." 
 and he afterwards writeth it in the life of 
 the party, but he never hears of it after- 
 wards nor agreeth to it; if this should be a 
 good will, it were not reasonable; for per- 
 haps he had afterwards altered his intention. 
 And judgment was given accordingly. 
 
 NOTA. Robert Snagg, who argued in this 
 case, said it was ruled in chancery in Sir Rich- 
 ard Pexhall's Case, 8 Coke, 83b, when he de- 
 vised certain land to his wife for life, and com- 
 manded it to be written, and it was written, 
 and a proviso added by the writer, that if she 
 married that the devise should be void; and 
 this being read to him, he said the proviso was 
 no part of his will, but for the residue it should 
 stand; and he died before the will was altered, 
 and the proviso was adjudged to be void, and 
 the rest of his will did stand good. 
 
■§ 31) 
 
 STONEHOUSE v. EVELYN. 
 
 Case No. 35 
 
 STONEHOUSE et nx. v. EVELYN. 
 
 (3 P. Wms. 252.) 
 
 1734. 
 
 • • • Lastly, la proving this ■will (It 
 ;belng a vrUl disposing of a real estate) the 
 j)roof was full, that the three subscribing wit- 
 nesses did subscribe their names in the pres- 
 .ence of the testatrix; but one of them said, 
 he did not see the testatrix: sign, but that 
 she owned, at the same time the witnesses 
 subscribed, that the name signed to the will 
 was her own hand-writing; which his hon- 
 .our held, without all doubt, to be sufficient. 
 JLai I, having the same day occasion to speak 
 
 with Mr. Justice Fortescue Aland, mentioned 
 this to him, who said, it was the common prac- 
 tice, and that he had twice or thrice ruled it 
 so upon evidence on the circuit; and that it is 
 sufficient. If one of the three subscribing wit- 
 nesses swears the testator acknowledged the 
 signing to be his own hand-writing. And it 
 is remarkable, that the statute of frauds does 
 not say, the testator shall sign his will in the 
 presence of three witnesses, but requires 
 these three things: First, that the will should 
 be in writing; 2dly, that it should be signed 
 by the testator; and, 3dly, that it should be 
 subscribed by three witnesses in the presence 
 of the testator. 
 
 183 
 
ease No. 36 
 
 IN BE BILLINGS' ESTATE. 
 
 (§32 
 
 In re BILLINGS' ESTATE. 
 
 (1 Pac. 701, 64 Cal. 427.) 
 
 Supreme Court of California. Jan. 4, 1884. 
 
 Department 2. Appeal from superior court, 
 Sacramento county. 
 
 Young, Young & Dunn and A. O. Freeman, 
 for appellant. S. C. Denson, for respondent. 
 
 MXRICK, J. The body of the script pro- 
 posed as an olographic wiU was entirely 
 ■written, and was signed by the hand of the 
 deceased. The date reads thus: "Sacra- 
 mento, April 1st, 1880." The words "April 1st" 
 were written by the deceased; the balance 
 was printed, the deceased having evidently 
 taken a sheet of paper with a letter-head, 
 stating the business and location of his firm, 
 the name of the place. "Sa cramaBto. " ati^I 1;Jip 
 year "188a" printed, and filled in th(^ month 
 and day. "April 1st " 
 
 We had occasion to consider the principle 
 underlying the facts of this case, in Estate 
 of Martin, 58 Cal. 530, and Estate of Rand, 
 184 
 
 61 Cal. 468. Section 1277, Civil Code, re 
 quires that a paper, to constitu teL-an — oId- 
 gya phic will, must be entirely written, daMi 
 and signed bv the hand of t^p tPHtijtnr. it 
 must be entirely written, it must be entirely 
 dated, and it must be entirely signed by him. 
 If it be partly vn-itten by him and partly 
 vrritten by another, or printed; if it be partly 
 dated or signed by him and partly by an- 
 other,— It Is not a compliance with the stat- 
 ute. The words "April 1st" do not consti- 
 tute a date, — do not show on what April 1st 
 the paper was written, — there being, as was 
 suggested on the argument, many days "April 
 1st" In the life of any man; it was requisite 
 that the whole date, April 1st, 1880, shoiild 
 have been written by him in order to comply 
 with the statute. 
 Order aflirmed. 
 
 We concur: SHARP STEIN, J.; THORN- 
 TON, J. 
 
 Hearing in bank denied. 
 
 NOTE. See 1 Woerner, Adm'n, § 43. 
 
§ 33) 
 
 THOROLD V. THOROLD. 
 
 Case No. 37 
 
 THOROLD V. 'THOROLD. 
 
 (1 PhiUlm. Ecc. 1.) 
 
 Prerogative Court of Canterbury. 1809. 
 
 An allegation was offered to the court on 
 the behalf of Miss Thorold, propounding a 
 paper, in the form of a deed of gift, as the 
 last will and testament of her brother, Wil- 
 liam Thorold, Esq. of Syston Park, in the 
 coimty of Lincoln. 
 
 The adverse party in the cause was Sir 
 Thomas Thorold, Bart., the father of the 
 deceased. 
 
 The paper propoimded was, In form and 
 substance, as follows: 
 
 "Be it known to all it may concern, that I, 
 Wmiam Thorold, of Syston Park, in the coun- 
 ty of Lincoln, do hereby give (after my death) 
 to my beloved sister, Jane Thorold, of Syston 
 Park, in the said county of Lincoln, the fol- 
 lowing estates; and also, should aU, or any 
 parts of these estates, be sold by me during 
 my life, all such monies arising therefrom 
 as shall be placed in the pubUc funds, shall 
 be at her disposal, viz. 1st, My third in the 
 remainder of the unsold Ayton estate, in the 
 county of Durham. 2dly, My moiety in the 
 Husthwaite and Newbald estates, in the 
 county of York. 3dly, My moiety in the estate 
 at Blmley, in the county of York. 4thly, My 
 estate at Barrowby, in the county of Lincoln. 
 5thly, My estate at Carlton, in the county of 
 Lincoln. 6thly, My estate at Holbeach, in 
 the county of Lincoln. 7thly, My house and 
 lands, at Derby. This deed of gift, in my 
 own proper hand-writing, was made, sealed, 
 signed and delivered, to my aforesaid beloved 
 isister, Jane Thorold, spmster, of Syston Park, 
 in the county of Lincoln, this 16th day of 
 December, one thousand eight hundred and 
 six, William Thorold. In the presence of 
 James Speed, William Armes, Henry Parlett." 
 
 Arnold & Bumaby, against the admission 
 of the allegation. Swabey & Adams, in sup- 
 port of the allegation. 
 
 Judgment. 
 
 SIR JOHN NIOHOLL. The sole question 
 arising upon the admissibility of this allega- 
 tion, is, whether the paper propounded is a 
 testamentary instrument, and proper to be 
 proved as such. 
 
 Two grounds of objection may be taken, 
 first, that it relates to real property only; sec- 
 ondly, that it declares itself to be a deed of 
 gift, and consequently, cannot be considered 
 as a will. 
 
 With respect to the first point, though the 
 property may consist wholly of estates, yet 
 it does not appear to the court that they 
 may not be estates, disposable as personal 
 property; neither is there any thing to show 
 that some of these estates may not have 
 been sold during the life of the testator, and 
 then he expressly directs "that all such mon- 
 ies arising therefrom as shall be vested In 
 
 the funds shall be at Miss Thorold's dis- 
 posal;" these monies, therefore, must fall 
 imder the description of personal property. 
 
 This court has always held, that even if 
 it should be doubtful whether some part of 
 the property be not freehold, it will grant 
 probate, and for this obvious reason, the 
 probate may be necessary for the purposes 
 of justice, and no evil can arise from the 
 gi-ant of it:— thus, if Miss Thorold takes pro- 
 bate of this instrument, and all the estates 
 are real, the probate of this court can in no 
 way -affect them ; but if any part should be 
 personal, or if the land should have been 
 sold and the money vested in the funds, for 
 that part the probate ought to pass, supposing 
 the instrument to be in its nature testamen- 
 tary; besides, it is difficult to imagine why 
 one party should desire probate and the other 
 party object to it, if all the estate is freehold j 
 since, in that case, the probate could have 
 no effect whatever. There appears, there- 
 fore, suflicient gi-ound in the present stage 
 of the proceedings to presume, that there 
 may be property to which the probate may 
 be applicable; but at the same time, if it 
 were perfectly clear that there was no such 
 property, the court would not entertain any 
 question respecting the validity of the in- 
 strument. 
 
 The main question, however, is, whether 
 the instrument can be considered as testa- 
 mentary? 
 
 In deciding a point of this nature, the court 
 always looks to the substance, and not to' 
 the form of the instrument; to the Intention 
 of the writer, and not to the denomination 
 he affixes to it: it calls itself a deed of gift, 
 but it cannot be valid as such— it is not upon 
 a stamp— it contains no valuable considera- 
 tion—it might have been revoked during his 
 lifetime, for there is nothing to prevent him 
 from selling the estates; indeed, he expressly 
 looks forward to such an event, for he di- 
 rects that the monies arising from the sale 
 of them shall be vested in the public funds. 
 This instrument then, cannot, as far as this 
 court can form any opinion, take effect as 
 a deed of gift: it is not irrevocable, it is 
 only to be consummated by death— not to 
 operate during life; the words are, "I give, 
 after my death:" — death is the event which is 
 to give effect and operation to the instru- 
 ment. Marriage settlements and contracts 
 are of a totally different nature; they take 
 effect during life. 
 
 Many instruments of this kind have been 
 admitted to probate. The case of Shergold 
 V. Shergold, decided in the prerogative, is 
 a stronger case than this, because there 
 something of a consideration (viz. sixpence) 
 was given. 
 
 In Markwick v. Taylor, administration with 
 a deed annexed was given. 
 
 In Hog V. Lashley, a Scotch settlement, in 
 the form of a contract, was admitted to pro- 
 bate. 
 
 185 
 
Case No. 37 
 
 THOROLD V. THOROLD. 
 
 (§33 
 
 In Corp V. Corp, a paper, entitled a deed of 
 gift, was lield to operate as a will. That 
 case was argued at great length, and many 
 cases were cited from the common law to 
 «how, that a principle governs all courts to 
 be astute in finding out a mode of giving 
 effect, in one way or another, to an instru- 
 ment of this sort. They all go on the prin- 
 ciple, that the Intention of the party is the 
 186 
 
 , point to be looked to, and not the form of 
 the instrument. 
 
 In the present case, there is not so much 
 difficulty as there has been in others which 
 have been decided. Nothing could give this 
 instrument operation as a deed of gift; it is 
 expressly a gift to take place upon the tes- 
 tator's death. I have no hesitation therefore 
 in admitting the allegation to proof. 
 
§33) 
 
 COVER V. STEM. 
 
 Case No. ; 
 
 COVER V. STEM. 
 
 (10 Atl. 231, 67 Md. 449.) 
 
 Court of Appeals of Maryland. June 22, 1887. 
 
 Appeal from circuit court, Carroll county. 
 
 Argued before ALVEY, O. J., and MIL- 
 LER, ROBINSON, IRVING, and BRYAN, 
 JJ. 
 
 James A. O. Bond and Wm. H. Thomas, 
 for appellant. Charles B. Roberts, Atty. 
 Gen., for appellee. 
 
 ALVEY, C. J. This is an action of debt 
 brought by the appellant against the appellee 
 as executof of David Engel, deceased, to re- 
 cover the sum of $3,000, alleged to be due 
 and owing by virtue of what is described in 
 the declaration as a writing obligatory, made 
 and delivered by the appellee's testator on 
 the fourth day of September, 1884. The 
 declaration contains several counts, all found- 
 ed upon the supposed writing obligatory, and 
 which writing was filed with the declaration, 
 and, by agreement, is incorporated in and 
 made part of the declaration. The appellee 
 demin-red to the entire declaration, and the 
 com:t below sustained the demurrer, and gave 
 judgment for the defendant. It is from that 
 judgment that this appeal is taken. The in- 
 etmment declared on is in the following form: 
 "Md., September 4, 1884. At my death, my 
 estate or my executor pay to July Ann Cover 
 the sum of three thousand dollars. David 
 Engel of P. [Seal.] Witness: Columbus Cov- 
 er." 
 
 It is contended on the part of the appellant 
 that this instrument is a bill obligatory, and 
 imports a legal obligation of the maker, the 
 time of payment only being deferred until 
 after his death, when his administrator or 
 executor was directed to pay the amount; 
 while, on the other hand, it is contended by 
 the appellee that the instrument has all the 
 characteristics of a testamentary paper, and 
 did not, in any proper sense, create a legal 
 obligation upon the maker, such as that of 
 a bond or single bill. What the consideration 
 may have been to induce the maker to pass 
 such an instrument does not appear. But it 
 is insisted that the seal to the instrument 
 imports a sufficient consideration for the ob- 
 ligation of the maker; and this, as a general 
 proposition, is certainly true, as applied to 
 bonds and deeds generally. But still the 
 question here is whether the instrument de- 
 clared on be in its nature a bill obhgatory, 
 binding and conclusive upon the maker, or 
 whether it be a mere posthumous disposition 
 of $3,000, part of his estate, to be paid by 
 his executor as any other pecuniary legacy 
 given by the testator. 
 
 An obligation is defined to be a deed in 
 writing, whereby one man doth bind himself 
 to another to pay a sum of money, or do some 
 other thing. Shep. Touch, tit. "Obligation," 
 p. 367. The same definition is given in Com. 
 Dig. tit. "Obligation," B, and in Bae. Abr. 
 
 tit. "Obligation," B. It is true, no preciso 
 form of words is necessary to create a bond 
 or obligation; therefore any memorandum in 
 writing, under seal, whereby a debt is ac- 
 knowledged to be owing, will obligate the 
 party to pay; for it is said that any words 
 which prove a man to be a debtor, if they 
 be under seal, will charge him with the pay- 
 ment of the money. Core's Case, 1 Dyer, 
 22b; Shep. Touch. 368-370; and Bac. Abr. 
 "Obligation," B,— and the examples there giv- 
 en of what form of words will be sufficient 
 to create a valid obligation. It is, however, 
 laid down in Bac. Abr. "Obligation," B, as 
 essentially necessary, to create a valid obli- 
 gation, ,that words be employed to declare 
 the fhtention of the party, and which must 
 clearly denote his being bound, "because such 
 obligation is only in tke nature of a contract, 
 or a security for the performance of a con- 
 tract, which ought to be construed according 
 to the intention of the parties." In other 
 words, there must be terms employed to cre- 
 ate a debitum in praesenti, though the sol- 
 vendum may be in futuro, and even after 
 the death of the obligor. It would seem to 
 be clear that the relation of debtor and 
 creditor must be created, and subsists in the 
 life-time of the parties to the instrument, 
 though the time of payment may be deferred 
 until after the death of one of the parties. 
 Shep. Touch. 368, 369; Hannon v. State, 
 Gill, 446; Carey v. Dennis, 13 Md. 1; Story, 
 Prom. Notes, § 27. 
 
 Here, in the instrument before us, there 
 are no words that create a debitum in prae- 
 senti; there are no words that create the 
 relation of debtor and creditor in the life-time 
 of the parties to the Instrument; but the 
 words employed simply import a posthumous 
 disposition of a part of the estate of the 
 maker of the instrument, and nothing more. 
 This case is not substantially distinguishable 
 from the case of Byers v. Hoppe, 61 Md. 206. 
 In that case, Hoppe, the writer of the letter 
 to Ann Byers, the party to whom the letter 
 was addressed and delivered, said: "And, 
 after my death, you are to have forty thou- 
 sand dollars. This you are to have, will or 
 no will. Take care of this until my death." 
 That was declared to be a testamentary pa- 
 per; and the only real distinguishing feature 
 between the paper in that case and the paper 
 in this is that the paper in the former was 
 not under seal, and the paper in this case is. 
 That, however, can make no substantial dis- 
 tinction in determining the real character of 
 the instrument, as wills are more frequently 
 executed under seal than otherwise. Nor 
 can the fact that the instrument was deliv- 
 ered to the party to whom payment was 
 directed to be made, change the real nature 
 of the instrument. For the principle is well 
 settled that an instrument may be in the 
 form of a deed, signed, sealed, and delivered 
 as such, and still. If It be apparent that the 
 party intended a posthumous disposition of 
 his property, the instrument not being opera- 
 
 .187 
 
Case. No. 38 
 
 COVER V. STEM. 
 
 (§33 
 
 tive until after his death, such instrument 
 will be regarded as testamentary. 
 
 A will is defined to be any instrument 
 whereby a person makes a disposition of his 
 property, to take effect after his death. By 
 the terms of the instrument in question, the 
 $3,000 are simply directed to be paid out of 
 his estate by his executor. No language 
 could be more expressive of a testamentary 
 purpose. And this court has declared in 
 Carey v. Dennis, 13 Md. 17j adopting the 
 language of Mr. Justice Buller in Habergham 
 y. Vincent, 2 Ves. Jr. 231, that "the cases 
 have established" that an instrument in any 
 form, whether a deed poll or indenture, if 
 the obvious purpose is not to take place till 
 after the death of the person making it, fihall 
 operate as a will." 
 
 It is urged, however, in argument, that as 
 the instrument in question was made since 
 the aot of 1884, c. 293, requiring at least two 
 witnesses to bequests of personal estate, it 
 188 
 
 is ineffectual as a testamentary paper, be- 
 cause it has but one witness, and therefore 
 it should, if possible, be construed to have 
 effect as a bond or obligation. But whether 
 the instrument shall be declared a valid obli- 
 gation, or to have a testamentary character 
 only, must be determined from the terms and 
 provisions of the instrument itself. Carey v. 
 Dennis, 13 Md. 17. We have shown that the 
 instrument has not the essential terms to 
 create a debitum, personally binding the de- 
 ceased in his life-time; and this construction 
 cannot be affected by the fact that the instru- 
 ment, being testamentary in its character, 
 must fail of effect, because of insufficient 
 witnesses under the statute. It follows that 
 the judgment of the court below must be 
 affirmed. 
 Judgment affirmed. 
 
 NOTK Cf. Succession of Beard, (1859,) 14 
 La. Ann. 121. 
 
§34) 
 
 DAMON V. DAMON. 
 
 Case N.o. 39 
 
 DAMON et al. v. DAMON. 
 
 (8 Allen, 192.) 
 
 Supreme Judicial Court of Massachusetts. 
 Middlesex. Jan. Term, 1864. 
 
 The material portions of the will in ques- 
 tion, which was made August 30, 1863, are 
 as follows: 
 
 "In the name of God, amen, I, J. W. Da- 
 mon, of Charlestown, in the county of Mid- 
 dleseXj commonwealth of Massachusetts, be- 
 ing in sound mind and body, and being about 
 to go to Cuba, and knowing the dangers of 
 voyages, do hereby make this my last will 
 and testament, in manner and form follow- 
 ing: 
 
 "First If by casualty or otherwise I should 
 lose my life during this voyage, I give and 
 l)eci.ueath to my wife Ann the use and behoof 
 of the house now building in this Charles- 
 town, situated on the corner of High street 
 and Monument avenue, during her natural 
 life, and then to descend to our children 
 Teracita and Lottie, together with the house 
 on the corner of Main and Green streets, 
 with any other house or houses I may be 
 possessed of on Monument avenue; also one- 
 half of the wharf situate in Charlestown, 
 called 'Damon's Wharf;' and all the property 
 I may hold on the island of Cuba at the time 
 of my decease. And I hereby give to my 
 nephew John Martin Damon the other half 
 of the said 'Damon's Wharf,' to hold and to 
 have for his use." In the fall of 1860 the tes- 
 tator went to Cuba and returned in 1861, 
 and died in Charlestown in 1863. The case 
 was reserved by HOAR, J., for the determi- 
 nation of the whole court. 
 
 D. Thaxter, for appellants. S. Bartlett, 
 for appellee. 
 
 HOAR, J. There seems to be no reason 
 upon principle why an instrument cannot be 
 made which is to take effect as a wiU only 
 on the happening of a contingency named in 
 it. As every devise or legacy, and the 
 appointment of an executor, may be made 
 conditional, if the same condition applies to 
 all, it may be as well annexed to the entire 
 instrument as to a single provision; and the 
 happening of the condition can then be ascer- 
 tained when the will is offered for probate. 
 And so it has been held in various cases 
 which have been cited at the bar. 
 
 But there are two points to be settled be- 
 fore a will can be rejected from probate on 
 the ground that it is a conditional will, and 
 that the condition has failed; first, wheth- 
 er the intention of the testator Is to make the 
 validity of the wiU dependent upon the con- 
 dition, or merely to state the circumstances 
 and inducements which lead him to make a 
 testamentary provision; and secondly, if the 
 language clearly imports a condition, whether 
 it applies to and affects the whole will, or 
 only some parts of it. 
 We are unable to see that, on any sound 
 
 principle of construction, the language psed 
 in this wiU can be taken to express merely 
 the cause and Inducement of making it. The 
 introductory clause is complete in itself, in a 
 form quite common, and states distinctly the 
 motive of the testator in making the will. "I, 
 
 J. W. Damon, of being in sound mind 
 
 and body, and being about to go to Cuba, 
 and knowing the dangers of voyages do 
 hereby make this as my last will and tes- 
 tament, in manner and form following." So 
 far, what is said applies to the whole instru- 
 ment. Then come the particular disposi- 
 tions: "First. If by casualty or otherwise I 
 should lose my life during this voyage, I 
 give and bequeath to my wife Ann," etc. 
 The condition Is thus grammatically, and ac- 
 cording to the common use of phraseology, 
 attached to and qualifies the particular be- 
 quests. He gives a certain piece of property 
 to his wife. If he loses his life during the voy- 
 age. There is no gift to her without that 
 qualification. Suppose any other condition 
 had been expressed— "if I die before I reach 
 a certain age," or "before a certain house is 
 finished;" or "if the legatee survives A.;" 
 could it be doubted that it would make the 
 bequest conditional? The word "first," pre- 
 ceding the condition and the gift, has a ten- 
 dency to show that the testator Is express- 
 ing a particular qualification and not a gen- 
 eral purpose. To change the word "if" into 
 "lest" would be to make a change In th'o 
 meaning on grounds purely conjectural. 
 
 The other reasons urged for the opinion 
 that the whole will was made "lest the tes- 
 tator should die during the voyage," name- 
 ly, the appointment of his wife as account- 
 ant to settle his affairs in Cuba "and all oth- 
 er places where I may have business at the 
 time of my decease," he having no business 
 elsewhere than in Cuba and Charlestown 
 when the will was made, and the repetition of 
 the phrase "this my last will and testament," 
 whatever weight might be given to them If 
 the sole question were whether the whole 
 will must fail if he accomplished the voyage 
 in safety, are deprived of all force if the con- 
 dition affects but a single clause. 
 
 And upon the second question proposed, 
 we are of opinion that the condition does not 
 affect any other than the first clause of the 
 will, and that the will is therefore entitled 
 to probate, having been duly executed. 
 
 The case most nearly analogous, to be 
 found among the adjudged cases, is that of 
 Parsons v. Lanoe, reported in 1 Ves. Sr. 189, 
 but also to be found in Ambler, 557. Each 
 of these reports is apparently imperfect and 
 fragmentary; but, by taking both, a pretty 
 correct Idea of the case can be obtained. 
 The report in Ambler is the best, so far as 
 it gives the will itself more at length; and 
 some of the expressions attributed to Lord 
 Hardwicke in Vesey, to which It is hard to 
 give a sensible meaning, are not found in it. 
 As there recited, the wIU began thus "I, 
 Charles De Lanoe, of do make 
 
 189 
 
Case No. 39 
 
 DAMON V. DAMON. 
 
 (§34 
 
 and appoint this to be my last will and tes- 
 tament, in manner following: i. e. Imprimis. 
 In case I should die before I return from the 
 journey I intend, God wiUing, shortly to un- 
 dertake for Ireland, my will and desire is, 
 that my house and lands at Farley Hill 
 be aU sold," etc. Each subse- 
 quent clause containing a bequest referred 
 expressly to this sale, and provided for a 
 payment out of it; the final bequest being 
 of the residue of the money arising from the 
 sale, with all the remainder of his estate, 
 real and personal, to his wife, whom he ap- 
 pointed executrix. The suit was a biU in 
 equity for the payment of one of the lega- 
 cies, and to procure a sale of the real estate 
 for that purpose. The testator was childless 
 when the will was made, and returned from 
 Ireland, and had children born to him after- 
 ward. According to the report in Ambler, 
 Lord Hardwicke decided that the condition 
 was not so inserted as in express terms to 
 make the whole will conditional; but that 
 beyond all controversy it made the devise 
 as to the sale conditional; and that all the 
 subsequent dispositions were made to depend 
 upon the sale, and so were connected with 
 the condition. He did not advert to the ap- 
 pointment of an executrix; and all that was 
 essential to the decision was, that the legacy 
 to the plaintiff was upon a condition which 
 had failed. He proceeded to discuss the ef- 
 fect of the birth of the children as a revoca- 
 tion of the will, but gave no opinion upon it, 
 though intimating some views of his own 
 respecting it. And it is manifest from the 
 context that the remark which Vesey attrib- 
 utes to him, that his conclusion on the sec- 
 ond question "greatly strengthens the; con- 
 struction upon the first," was misunderstood 
 by the reporter; and that he could have only 
 
 190 
 
 referred to the satisfaction which the court 
 felt in coming to the decision which was 
 made upon the construction of the will, in 
 view of the result which a different decision 
 would have caused, by disinheriting the chil- 
 dren. Lord Hardwicke further held that no 
 collateral proof of declarations of the tes- 
 tator respecting the will, not amounting to 
 a republication, were admissible to control 
 the effect of the condition. 
 
 In the case at bar, the condition stands 
 very much as in Parsons v. Lanoe. But the 
 second and third clauses in the will are en- 
 tirely independent of the first, and do not 
 refer to it in any manner. They contain dis- 
 tinct legacies to collateral relatives. The will 
 does not purport to make any disposition of 
 personal property, unless the property re- 
 ferred to "on the Island of Cuba" may be 
 construed as including some. 
 
 The cases cited at the argument, with the 
 exception of Parsons v. Lanoe, afford but 
 little aid in coming to the decision at which 
 we have arrived, and are chiefly valuable as 
 showing that courts do not incline to regard 
 a will as conditional where it can be rea- 
 sonably held that the testator was merely 
 expressing his inducement to make it, how- 
 ever inaccurate his use of language might be, 
 if strictly construed. But no authority has 
 been found which would justify us in reject- 
 ing this will as wholly conditional. 
 
 We intend to express no opinion upon the 
 point, how far the condition qualifies the de- 
 vises in the first clause. It is very diflBcult 
 to give all of the provisions a sensible inter- 
 pretation, and one of the parties largely in- 
 terested has not been a party to the hearing. 
 We only decide that the will is to be ad- 
 mitted to probate. 
 
 Decree aflBrmed. 
 
§35) 
 
 IN KE KEHOE. 
 
 Case No. 40 
 
 In re KEHOE. 
 
 (L. R. 13 Jr. 13.) 
 
 Court of Probate. Jan. 28, 1884. 
 
 Motion for probate, and that certain di- 
 rections be ordered to be incorporated in 
 the will of the testator, the Rev. J. Ke- 
 hoe. An affidavit of the Rev. Simon Mc- 
 Wry was filed, as follows: "That, to the 
 best of my knowledge and belief, the pa- 
 per writing marked 'A,' now produced 
 and shown to me, entitled 'Directions to 
 the executors of uiy last will and testa- 
 ment, executed this 13th day of February, 
 1S79 — How they are to manage my af- 
 fairs,' signed John Kehoe, P. P., and dated 
 February 13, 1879, which is all in the 
 handwriting of the said Rev. John Kehoe, 
 was written out by him previous to the 
 execution of his will; and immediately 
 after such (Execution copies of said will 
 and said direction, previously made by 
 the said testator, and bj' one Maurice 
 Kealy, were placed by testator in an en- 
 velope, and handed to me for safe custo- 
 dy." The Rev. Patrick F. Nolan, who 
 was appointed executor of the will by the 
 codicil of the 2i)th of July, 1883, made the 
 following affidavit: "The testator, by 
 his will having bequeathed all his prop- 
 erty in trust to be disposed of in such 
 manner as he might direct, did give a di- 
 rection in writing as to the disposal of the 
 same, as of same date as of the will, viz., 
 the 13th of February, 1879, and upon 
 which direction, marked with the letter 
 'A,' I have indorsed my name. " 
 William P. Ball, for executor. 
 
 Wahken, J. The Rev. John Kehoe, the 
 testator, made a will dated the 13th of 
 February, 1879, which contained this 
 clause: "1 hereby bequeath to the Right 
 Rev. James Walsh and the Rev. Michael 
 Conroy all property I die possessed of, " 
 "in trust to be disposed of in charity in 
 such manner as I may direct them ; and, 
 in case I may not leave directions or in- 
 structions, then they may dispose of it in 
 charity in such manner as they may think 
 fit;" and the same persons are named ex- 
 ecutors. One of these executors — Mr. 
 Conroy — having died, the testator made a 
 codicil, dated the 20th of July, 1883, by 
 which he nominated the Rev. Patrick 
 Nolan an executor of this will. The tes- 
 tator signed a paper bearing the same 
 date as the will, containing directions 
 for the management of his affairs for char- 
 itable purposes. This paper is in the 
 handwriting of the testator, and is head- 
 ed, "Directions to the executors of my 
 last will, executed on the 13th day of Feb- 
 ruary, 1S79— How they are to manage my 
 affairs." The court has been moved for 
 probate of the will and codicil of the 
 testator, with the paper of directions in- 
 corporated. 
 
 The law of the subject of the incorpora- 
 tion of papers, so far as it is necessary to 
 consider it on the present application, is 
 thus stated in Jarman on Wills, (vol- 
 ume 1, p. 90:) "Three things are necessa- 
 ry: (1 ) That the will should refer to some 
 document as then in existence; (2) proof 
 
 that the document propounded was in fact 
 written before thewill was made; and (3) 
 proof of the identity of such document 
 with that referred to in thewill." The 
 affidavit of the Rev. Simon McWry is 
 slightly ambiguous, (In re Ash, 11 Ir. R. £q. 
 60, note,) in consequence of the Introduc- 
 tory words, "to the best of my knowl- 
 edge and belief;" but still, it that affida- 
 vit be admissible in evidence, I think it 
 sufficient to prove that the paper of di- 
 rections was in existence when the will 
 was executed. It is certainly sufficient 
 proof that it was in existence before the ex- 
 ecution of the codicil; and the cases, in- 
 cluding that of Lady Truro, L. R. 1 Prob. 
 & Div. 201, to which I was referred by 
 Mr. Ball, have established that, in consid- 
 ering this question of incorporation, the 
 words of the will which refer to direc- 
 tions must betaken as if brought down 
 to the date of the codicil, — as if repeated 
 in the codicil. It does appear to me that, 
 if the affidavit of Mr. McWry be admis- 
 sible, the evidence is sufficient to identify 
 the paper of directions signed by the tes- 
 tator as the directions to which he re- 
 ferred in his will. Therefore, if this affi- 
 davit is admissible, two of the requisite» 
 for incorporation are found in the case be- 
 fore the court, viz., proof of the fact of 
 the existence of the paper when the will 
 was made, and proof of the identity of the 
 paper with that referred to in the will. 
 As to the necessity of these two of the 
 elements mentioned in Jarman there can 
 be no doubt. I may refer to Singleton v. 
 Tomlinson, L. R. 3 App. Cas. 404, in the 
 bouse of lords. 
 
 It remains to consider the third circum- 
 stance mentioned in the passage I have 
 quoted from Jarman. Does the will refer 
 to or describe this paper of directions as 
 then existing? If it does not, can the 
 court receive any parol evidence on the 
 subject of these directions? As a matter of 
 construction, it is clear that the will 
 does not refer to any document as then 
 in existence. The words are, "as I may 
 direct,""in case I may not have directed." 
 But "may" and "may not" imply that 
 at the time the will was written any di- 
 reetiims had not been given or written, 
 and certainly do not suggest that any ex- 
 isted at the time of execution. In Sun- 
 derland's Case, L. R. 1 Prob. & Div. 198, 
 the words, "as shall be ticketed in papers 
 in my own handwriting," were held in 
 point of construction not to describe as 
 then existing certain papers which did 
 then exist as a matter of fact. If, then, 
 this will does not refer to any papers as 
 then existing, can the court receive parol 
 evidence, — that is to say, as Sir C. Cress- 
 well puts it, (3 Swab. & T. 12.) "to 
 aid in the construction of what the tes- 
 tator has written?" In my opinion, the 
 cases of Allen v. Maddock, 11 Moore, P. 
 C. 427; Van Straubenzee v. Monck, 3 
 Swab. & T. 12; and The Goods of Sunder- 
 land, L. R. 1 Prob. & Div. 198,— establish 
 the law as laid down by Lord Penzance 
 at the conclusion of his judgment in the 
 last-mentioned case: "In order to let in 
 parol evidence to ascertain the truth, so 
 far as it can be ascertained by such evi- 
 dence, with regard to an unexecuted test- 
 
 191 
 
Case No. 40 
 
 IK RE KEHOE. 
 
 (§ 35 
 
 amentary document, the passage in the 
 will by which reference is made to it must 
 describe it as a written document then 
 existing. " The paper of directions in the 
 present case is not so described, and it 
 must l)e excluded from probate. 
 
 It is ordered by the court that the said 
 Rev. PatricJ£ F. Nolan, one of the execu- 
 tors in said codicil named, be at liberty 
 toapply for probate of the said will and 
 codicil, dated, respectively, the 13th day 
 192 
 
 of February, 1879, and 20th of July, 1883, 
 without incorporating in such probate the 
 said paper writing dated the 13th of Feb- 
 ruary, 1870, and marked "A." 
 
 NOTE. See Newton v. Soc, 130 Mass. 91; 
 Fosselman v. Elder. 98 Pa. St. 159; Allen v. 
 Haddock, 11 Moore, P. O. 427; Carleton v. 
 Griffln, 1 Burrows, 54t9, post; Lemage t. Good- 
 ban, L. R. 1 Prob. & Div. 57, post; Perkins v. 
 Mieklethwaite. 1 P. Wms. 274, post; Gobdtitle 
 T. Meredith, 2 Maule & S. 5, post. 
 
36) 
 
 BETTS V. HARPER. 
 
 Case No. 4 J 
 
 BETTS T. HARPER. 
 
 (39 Ohio St. 639.) 
 
 Supreme Court of Ohio. Jan. Term, 1884. 
 
 Error to the district court of Hocking 
 county. 
 
 The heirs at law of Agnes Harper and 
 Penrose Harper filed a bill against James 
 Betts and John D. Betts to set aside the 
 probate of a will of said Agnes and Pen- 
 rose Harper, made by them jointly, where- 
 by they disposed of all their real and per- 
 sonal property. From a decree of the court 
 holding said will as void because it was 
 joint, defendants bring error. 
 
 M. A. Daugherty and J. R. Grogan, for 
 plaintiffs in error. J. H. Collins, for defend- 
 ant in error. 
 
 OKBY, J. The construction placed by the 
 majority of the court in Walker v. Walker, 
 14 Ohio St. 157, on the instrument there in 
 question, viewed in the light of the facts 
 existing at the time of its execution, was 
 that the alleged will should be regarded as 
 simply a compact, joint in form and sub- 
 stance, between Walker and his wife, to 
 treat their several estates as one estate, and 
 jointly dispose of it as such among the ob- 
 jects of their bounty; that it was a matter 
 of negotiation between them, and the dis- 
 position which each made of his or her 
 property was influenced and modified by 
 the disposition made of the property of the 
 other; that each devise and bequest was, 
 in fact, made in consideration of each and 
 all the rest; and that it was part of the 
 compact that neither of the parties should 
 revoke or cancel the instrument, or any part 
 of it, without the consent of the other. More- 
 over, subsequently to the death of Mrs. 
 Walker, Walker, in violation of the agree- 
 ment, conveyed to others portions of his 
 lands so devised. The majority held that 
 the instrument was not valid as a will; and 
 that the remedy of the devisees and lega- 
 tees, if they had any, was in equity to en- 
 force the agreement. 
 
 Assuming, as we should — more than twenty 
 years having elapsed since the case was de- 
 cided—that the instrument received the prop- 
 er construction, we are not disposed to ques- 
 tion the decision. But it is said, in the 
 opinion, that the policy of the state, as in- 
 dicated in our legislation, is opposed to joint 
 wills; and attention is directed to the lan- 
 guage of the wills act, which it is said plainly 
 refers to an instrument to be e:secuted by 
 one person only. It will be seen, however, 
 
 ABB. WILLS — 13 
 
 that our statute is not peculiar in this re- 
 spect. The provisions of the English stat- 
 utes and the statutes of the various states, 
 upon the subject, are precisely similar to 
 our own; and the conclusion that they in- 
 dicate a policy that two or more persons 
 may not unite in the same instrument in 
 making their wills, whatever the form of 
 the instrument may be, is only reached by 
 a rigid, and as we think, altogether unwar- 
 ranted adherence to the mere letter of the 
 statute. The provisions of the statute re- 
 lating to the execution of deeds are similar, 
 and yet nobody has ever doubted that any 
 number of persons having an interest in 
 property may join in an instrument convey- 
 ing it 
 
 The case before us is unlike Walker v. 
 Walker. Agnes Harper and Penrose Har- 
 per were each the owner of personal prop- 
 erty, and they were owners, as tenants in 
 common, of real estate. Each desired to 
 bequeath her personal property to James 
 Betts and John D. Betts, and each desired 
 to devise to them her undivided share of 
 the real estate. They could unquestionably 
 have done this by two instruments, but they 
 could do it as effectually by one. This in- 
 strument was, in effect, the separate will' 
 of each. Either could have revoked it, so 
 far as it was her will. On the death of 
 Agnes, in 1872, the instrument might have 
 been admitted to probate as her will; and. 
 in 1874 it might have been admitted to pro- 
 bate as the will of Penrose; but in 1875 it 
 was properly admitted to probate as the- 
 will of both. The authorities, it will be 
 seen, are in some conflict, but the view we 
 have stated is supported by reason and the 
 manifest weight of authority. Ex parte Day, 
 1 Bradf. Surr. 481; In re Diez's Will, 50 N. . 
 Y. 88; Mosser v. Mosser, 32 Ala. 551; Schu- 
 maker v. Schmidt, 44 Ala. 454; Wyche v. 
 Clapp, 43 Tex. 544; March v. Huyter, 50 
 Tex. 243; Breathitt v. Whittaker's Ex'rs, 8 
 B. Mon. 530; Lewis v. Scofield, 26 Conn. 
 452; Evans v. Smith, 28 Ga. 98; In re 
 Stracey, 1 Deane & S. 6, 1 Jur. (N. S.) 1177; 
 In re Raine, 1 Swab. & Tr. 144; In re Love- 
 grove, 2 Swab. & Tr. 458; 8 Jur. (N. S.) 442; 
 and see Denyssen v. Mostert, 4 L. R. P. C. 
 236; 8 Moore, P. C. (N. S.) 502; Gould v. 
 Mansfield, 103 Mass. 408; cf. Clayton v. 
 Liverman, 2 Dev. & B. 558; Hershy v. Clark, 
 35 Ark. 17, 23. 
 
 Judgment reversed. 
 
 NOTE. See In re Cawley's Estate, 136 Pa. 
 St. 628, 20 Atl. 567; In re Diez's Will, 50 N. 
 
 y. 88. 
 
 193 
 
Case No. 42 
 
 SCHUMAKER v. SCHMIDT. 
 
 (§36 
 
 SCHUMAKER v. SCHMIDT et al. 
 
 (44 Ala. 454.) 
 
 Supreme Court of Alabama. June Term, 1870. 
 
 Appeal from the chancery court of Mobile; 
 A. C. Felder, Judge. 
 
 George Schumaker, the appellant, and Ed- 
 ward Auerback, residing in Mobile, executed, 
 on the 5th of- November, 1864, the following 
 writing: "Know all men by these presents, 
 that we, George Schumaker and Edward 
 Auerback, of the city of Mobile, state of Ala- 
 bama, being of sound mind and memory, 
 considering the uncertainty of life, do make 
 and declare this, our last will and testament. 
 First, we being friends of many years stand- 
 ing, and in consideration of that mutual 
 friendship and esteem for each other, do 
 mutually promise that, in the event of the 
 •death of either one of us, the survivor shall, 
 after such death, pay all the expenses of 
 sickness and burial, and whatever expenses 
 •ot the estate may be due by proof. Second, 
 the sm'vivor shall enter Into possession of 
 -the estate of the other, and shall hold it for 
 this own sole use and benefit, and this is the 
 mutual agreement of us. Whereof, in testi- 
 mony, we have to this our last will and tes- 
 tament, contained on one sheet of paper, sub- 
 scribed om- names and set our seals. We 
 have our names and affixed our seals, this 
 5th day of November, 1864. [Signed] George 
 Schumaker. [Seal.] E. Auerback. [Seal.]" 
 
 This instrument was attested as follows: 
 "Signed, sealed and declared and published 
 by the said George Schumaker and Edward 
 Auerback to be their last wiU and testament, 
 in the presence of us, who, at their request, 
 and in their presence, and in presence of 
 each other, have subscribed our names as 
 witnesses hereto. [Signed] R. F. Starr, No. 
 58, Conti Street. Tho. Langan, No. 8 South 
 Boyal St." 
 
 It was placed in the hands of S. Pestoraz- 
 ai, of Mobile, for safe keeping by both par- 
 ties. 
 
 On the 27th of August, 1866, Auerback 
 made a last will and testament, in which he 
 devised and bequeathed all of his real estate 
 to Christian Schmidt, and all of his personal 
 property to Auguste Egloffe, and appointed 
 Schmidt his executor. He died soon after- 
 wards, and this will was admitted to pro- 
 bate on the 7th of January, 1867. 
 
 The appellant's biU, filed on the day the 
 will was proved, sought to establish the first 
 instrument as a compact between him and 
 Auerback, and to have the will declared void, 
 or, if deemed by the court material, to have 
 it proved in the chancery court, and decreed 
 to be subordinate to the complainant's rights, 
 with all the rights or powers passing under 
 it, held in trust for him. 
 
 On the final hearing of the cause, on the 
 pleading and proof, tht bill was dismissed 
 For en-or, alleged in "this decree, the appeal 
 was taken. 
 194 
 
 Robert H. Smith, for appellant. B. Da- 
 buzan, and Dargau & Taylor, contra. 
 
 SAFFORD, J. Was the writing between 
 Schumaker and Auerback a compact, and not 
 a will, or is It a will containing a compact 
 irrevocable after its execution, or a wlU sim- 
 ply, and, therefore, revocable by a subse- 
 quent one? 
 
 The Intention of the maker is the guide in 
 construing all conveyances of property. This 
 intention must be discovered mainly from 
 the instrument itself, and parol testimony 
 can only be received to explain ambiguities. 
 A writing may admit of construction, either 
 as a deed or as a will. In such a case that 
 Interpretation should be given to it which 
 will effect the will of the maker, and best 
 preserve the rights of other contracting par- 
 ties. So controlling is this rule, that in Gold- 
 ing v. Golding, 24 Ala. 122, an instrument 
 coinveying a posthumous interest was regard- 
 ed a deed, because it could not operate as a 
 will for want of the requisite number of wit- 
 nesses; and in Kinnebrew v. Kinnebrew, 
 35 Ala. 628, a gift of money at the death of 
 the donor was construed to be a will, because, 
 being a voluntary executory trust, it would 
 not, as a provision of an instrument opera- 
 tive inter vivos, be enforced by a court of 
 equity. 
 
 In this case, the inducement to the writing 
 is stated to be the long friendship, and 
 mutual esteem of the parties. They say It is 
 their mutual agreement, and declare that it is 
 their last wiU and testament. The survivor, 
 after the death of the other, Is to pay aU the 
 expenses of his sickness and burial, and 
 whatever debts may be established against 
 his estate by proof. He is also to take pos- 
 session of the estate, and hold it for his own 
 sole use and benefit. They subscribe their 
 names, and affiix their seals to it as their last 
 will and testament. The witnesses attest 
 that they so declared and published it to 
 them, and requested them to subscribe their 
 names as witnesses to that effect, which they 
 did In their presence, and in the presence of 
 each other. The disposition of the property 
 is posthumous entirely. No present interest 
 is granted, and no consideration present, or 
 within a reasonable or given time Is required. 
 The depositions of the witnesses, though 
 somewhat variant in characterizing it, are 
 not so precise and authoritative as the evi- 
 dence derivable from the paper itself. No 
 questions were asked them tending to a dis- 
 crimination^ between a deed and a wIU. 
 
 Viewed as a contract, the most favorable 
 interpretation of It would be, that each par- 
 ty, by a joint instrument, created in his own 
 property a life estate to himself, with re- 
 mainder to the other if he survived. The 
 embarrassments attaching to property in this 
 condition, and the evil tendency of secret 
 executory agreements, not to be revealed 
 perhaps, imtil death had cut ofC the victim 
 of fraud, make us averse to pronounce this 
 
f 36) 
 
 SCHTJMAKER v. SCHMIDT. 
 
 Case No. 42 
 
 a compact, In the absence of express declara- 
 tion to that effect, or unavoidable deduction 
 from Its terms. 
 
 In Habergham v. Vincent, 2 Ves. Jr. 230, 
 Mr. Justice Butler, said: "The cases have 
 established that an Instrument in any form, 
 whether a deed poU, or indenture, if the ob- 
 vious purpose is not to take place till after 
 the death of the person maldng It, shall op- 
 erate as a will. The cases for that are both 
 at law and in equity; and in one of them 
 there were express words of immediate grant, 
 and a consideration to support it as a grant; 
 but as upon the whole the intention was it 
 should have a futm-e operation after death, 
 it was considered as a wUl." Of all instru- 
 ments a wiU is least governed by form. No 
 matter how inartificial the expression, if the 
 testamentary disposition of the maker is dis- 
 closed, it wiU control any contrary title or 
 designation he may have given to it. Jarm. 
 WiUs, (3d Am. Ed.) marg, p. 35. 
 
 The result of what has been said is, that 
 the instrument in question must be treated 
 as a will, unless some consideration other 
 tlian its testamentary character forbids us 
 to do so. It is executed by two persons joint- 
 ly, and disposes of the separate property of 
 each in favor of the other. The law respect- 
 ing joint, or mutual wills, is hi much confu- 
 sion. It is broadly asserted, by some authors, 
 that they are unlcnown to the testamentary 
 law of England. But this assertion is not 
 supported by the cases whence it is derived. 
 In Hobson v. Blackburn, 1 Addams, Ecc. 
 iJ74, the joint wiU, the probate of which as 
 the will of the sister, was rejected on the 
 ground evidently of the irrevocability, had 
 before been admitted to probate as the will 
 of the brother. In Dufovu- v. Pereira, 1 Dick- 
 ens, 419, the wife was held to have bound 
 her assets to make good all the bequests of 
 the mutual will of herself and her husband, 
 because she had proved it as the will of her 
 husband, and had accepted and enjoyed, for 
 a number of years, the bequests in her fa- 
 vour. There was no probate of it as her wiU; 
 but, on the contrary, a subsequent wiU made 
 by her was proved. The case of Walpole v. 
 Orford, 3 Ves. 402, is scarcely an authority. 
 The subject is discussed, but no decision is 
 made. The American decisions by no means 
 accord. In Clayton v. Liverman, 2 Dev. & 
 B. 558, it was held that a testamentary paper, 
 executed by two persons, could not be proved 
 as a joint or mutual will, nor could it be 
 proved as the separate will of either, be- 
 cause it purported to be joint, and also im- 
 plied an agreement. But on this latter prop- 
 osition Judge Daniel dissented, insisting that 
 so far as related to the portion of property 
 belonging to each. It was a separate testa- 
 ment, and revocable, there being no evidence 
 of any agreement to the contrary. In Walker 
 V. Walker, 14 Ohio St. 157, it was held that, 
 "where a husband and wife, each being the 
 separate owner of property, join in the exe- 
 cution of an insti-ument in the form of a wUl, 
 
 and treating the separate property of each 
 as a joint fund, bequeathed legacies and de- 
 vised lands to divers persons, the same can 
 not be admitted to probate as the joint wUl 
 of both parties, nor as the separate will of 
 either." The reason upon which this deci- 
 sion mainly rests is that it contravenes the 
 policy of the law in respect to the revocable 
 nature of wills. Two out of five judges dis- 
 sented. In Ex parte Day, 1 Bradf. Sin-. 476, 
 the proposition was broadly maintained that 
 a joint or mutual wiU is valid, and may be 
 admitted to probate on the decease of either 
 of the parties as his wiU. This case was one 
 in which a will executed by husband and 
 wife was propounded for probate. It is rep- 
 resented meager ly in the last clause, as "a 
 testamentary disposition by the decedent's 
 wife of some property belonging to her in her 
 own right," and was proved as the wiU of 
 the husband. In Lewis v. Scofield, 26 Conn. 
 452, and Evans v. Smith, 28 Ga. 98, mutual 
 wills, as distinguished from joint wills, as 
 where two persons join in the execution of 
 one testamentary instrument, declaring that 
 the survivor shall, after the death of the oth- 
 er, have his property, have been upheld, be- 
 cause, though' joint in form, it is several in 
 operation and effect, there being but one giver 
 and one taker, and in substance and effect, 
 but the one testament of the first decedent. 
 
 The best summary of the law, on this In- 
 teresting and somewhat intangible subject, 
 as derived from the authorities entitled to 
 the greatest consideration, is that two or 
 more persons may execute a joint will, which 
 will operate as if executed separately by 
 each, and will be entitled to, and wiU require 
 a separate probate upon the decease of each, 
 as his will. But if the wiU so provides, and 
 the disposition of the property requires it, 
 the probate should be delayed until the death 
 of both, or all, of the testators. The asser- 
 tion In Redfield on the Law of WlUs, (page 
 183, § 25,) that it is settled in the court of 
 chancery, by a great number of decisions, 
 that mutual wUls, duly executed, become Ir- 
 revocable in equity, after the death of either 
 party, is not sustained to that extent by the 
 authorities there cited. It needs the limita- 
 tion that, under the contingency stated, they 
 may be some cases enforced, in equity, as a 
 compact. 
 
 The will under consideration, though made 
 by two, is not a joint will, because by its 
 terms it can be only the wUl of him who dies 
 first. The survivor is to take all the proper- 
 ty of the other, and no further disposition is 
 made. Though classed under the general de- 
 nomination of mutual wills, it is not in fact 
 such, because the term implies the will of 
 two persons. It is, therefore, the separate 
 will of the first decedent. 
 
 Is there anything of the essence of a com- 
 pact in it which should interfere with its rev- 
 ocablllty? Can he who dies first, or the sur- 
 vivor, be injured if it be deemed revocable. 
 The first decedent, while he lives, can receive 
 
 195 
 
Case No. 42 
 
 SCHUMAKER v. SCHMIDT. 
 
 (§ 36, 
 
 nothing from the other, and his death con- 
 cludes the operation of the instrument as to 
 any reciprocal or hoped for advantage. On 
 the other hand, if he revokes it, and makes 
 other disposition of his property, the survivor 
 is not injured. This would be the case if on- 
 ly a moment intervened between their deaths, 
 or if they died at the same instant. 
 
 The suggestion in the English cases that 
 notice of the piu-pose to revoke should be 
 given to the other parties, does not seem to 
 196 
 
 present a sufficient point of support for the 
 power of revocation, which ought rather to 
 be regarded as the essence of a will. 
 
 The admission in evidence of the deposition 
 of Egloffe has not been discussed by the ap- 
 pellant's counsel, and is not deemed material 
 In the decision of this cause. 
 
 No other issue respecting the validity of 
 the last will of the decedent, Auerback, is 
 made than that herein considered. 
 
 The decree is affirmed. 
 
37) 
 
 WELLINGTON v. APTHORP. 
 
 C.se No. 43 
 
 WELLINGTON v. APTHORP. 
 
 (13 N. E. 10, 145 Mass 69.) 
 
 Supreme Judicial Court of Massachusetts. 
 Suffolk. September 19, 1887. 
 
 Contract against the defendant, as admin- 
 istrator with the will annexed of the estate 
 of Mary Chism, deceased, upon an agree- 
 ment, as the plaintiff alleged, made by her 
 with the plaintiff on or about May 23, 1878, 
 to bequeath to him, by her last will, the sum 
 of $5,000, and pay his expenses of a journey 
 to California and Nevada in accompanying 
 her there in the fall of 1878; and also upon 
 an account annexed, for services in man- 
 aging her property, in accompanying her to 
 California and Nevada, and for cash paid as 
 expenses on said visit. Hearing in the su- 
 perior court for Suffolk county, before Ba- 
 con, J., who found for the defendant, and 
 upon the plaintiff excepting, reported the case 
 for the determination of the supreme judi- 
 cial court. The facts are stated in the opin- 
 ion. 
 
 J. S. Patton, for plaintiff. A. M. Howe 
 (T. J. Homer, with him,) for defendant. 
 
 0. ALLEN, J. It is not contended, on be- 
 half of the defendant, that a contract, found- 
 ed on a sufficient consideration, to make a cer- 
 tain provision by will for a particular person, 
 is invalid in law. The contrary is well settled. 
 Jenkins v. Stetson, 9 Allen, 128, 132; Parker 
 V. Coburn, 10 Allen, 83; Canada v. Canada, 
 G Cush. 15; Parsell v. Stryker, 41 N. T. 480; 
 Thompson v. Stevens, 71 Pa. St. 161; Up- 
 dike V. Ten Broeck, 32 N. J. Law, 105; Cav- 
 Iness V. Rushton, 101 Ind. 502. 
 
 Nor is it contended that a contract to leave 
 a certain amount of money by will to a par- 
 ticular person, though oral, is open to objec- 
 tion under the statute of frauds. It is not 
 a contract for the sale of lands, or goods; 
 and it may be performed within a year. 
 Peters v. Westborough, 19 Pick. 364; Fen- 
 ton V. Bmblers, 3 Burrows, 1278; Ridley v. 
 Ridley, 34 Beav. 478; Kent v. Kent, 62 N. T. 
 560; Bell v. Hewitt, 24 Ind. 280; Wallace v. 
 Long, 105 Ind. 522, 5 N. E. Rep. 666. Such 
 a contract differs essentially from a contract 
 to devise all one's property, real and per- 
 sonal, which comes within the statute of 
 frauds. Gould v. Mansfield, 103 Mass. 408. 
 The obligation of such a contract is not im- 
 paired, though the consideration is to arise 
 wholly or in part in the future, and though 
 the person to whom the promise is made 
 is under no mutual, binding obligation on his 
 part. In Train v. Gold, 5 Pick. 380, 385, 
 it was said by Mr. Justice Wilde that "if A. 
 promises to B. to pay him a sum of money 
 if he will do a particular act, and B. does the 
 act, the promise thereupon becomes binding, 
 although B., at the time of the promise, does 
 not engage to do the act." This doctrine 
 was quoted with approval in Gardner v. 
 Webber, 17 Pick. 407, 413, and In Bornstein 
 V. Lans, 104 Mass. 214, 216; and It is also 
 
 affirmed in Goward v. Waters, 98 Mass. 590. 
 In Cottage Street Church v. Kendall, 121 
 Mass. 528, 530, it was held that, "where one 
 promises to pay another a certain sum of 
 money for doing a particular thing, which is 
 to be done before the money is paid, and the 
 promisee does the thing upon the faith of the 
 promise, the promise, which was before but 
 a mere revokable offer, thereby becomes a 
 complete contract, upon a consideration mov- 
 ing from the promisee to the promisor; as 
 in the ordinary case of an offer of reward." 
 See, also, Paige v. Parker, 8 Gray, 211, 213; 
 Hubbard v. Coolidge, 1 Mete. (Mass.) 84; 
 Todd v. Weber, 95 N. Y. 181, 192; Miller v. 
 McKenzie, Id. 575, 579. It is therefore in 
 law competent for a valid oral contract to be 
 made to leave a certain sum of money by 
 will to a particular person, in consideration of 
 services thereafter to be rendered by the 
 promisee to the promisor, orovided such 
 services are in fact thereafter rendered and 
 accepted in pursuance of such cont'act, al- 
 though the promisee did not bind himself in 
 advance to render them. The performance 
 of the consideration renders the contract 
 binding, and gives a right of action upon it. 
 
 The objection mostly relied on by the de- 
 fendant in the present case is that the audit- 
 or's report does not conclusively show such 
 a contract, upon such a consideration. The 
 auditor does not in terms, as he might prop- 
 erly have done, make any specific finding 
 upon the question whether there was such a 
 contract; but he states the facts in detail 
 upon which he considered that question to 
 rest, and leaves the determination of it to the 
 court. The detailed facts stated by the 
 auditor are not controverted, and the evi- 
 dence upon which they were found is not 
 before us. These facts are therefore to be 
 taken as they stand, with no further expla- 
 nation than Is afforded by the circumstances. 
 Looking at them in this manner, it is to be 
 determined whether on the whole there is 
 enough clearly and decisively to show that 
 there was a contract so that the judge who 
 heard the case could not properly find the 
 contrary; in other words, whether it appears 
 that there was a promise by the defendant's 
 testatrix sufficiently definite to be enforced, 
 and made with the tmderstanding and inten- 
 tion that she would be legally bound thereby. 
 A promise made with an understood inten- 
 tion that it is not to be legally binding, but 
 only expressive of a present intention, is 
 not a contract. Thruston v. Thornton, 1 
 Gush. 89; Chit. Comm. (11th Am. Ed.) 12, 13. 
 
 Ordinarily, when there is a distinct promise 
 for a sufficient consideration to do a particu- 
 lar thing, such promise is to be considered as 
 a contract, unless there is something in the 
 subject of the promise, or in the circum- 
 stances, to repel that assumption. But each 
 case must be examined in the light of its 
 own circumstances. In the present case it 
 appears that the plaintiff was the brother- 
 in-law of the defendant's testatrix, who was 
 
 197 
 
Ciise No. 43 
 
 WELLINGTON o. APTHOEP. 
 
 (§37 
 
 an unmarried woman; that he was early in 
 the habit of advising with her about her busi- 
 ness affairs, and not, at the outset, if ever, 
 in the expectation of being paid directly for 
 his services. Nevertheless there soon came 
 to be a recognition on her part that the plain- 
 tiff's services were valuable in a money sense, 
 and an intention to pay him for them in 
 some form. By his advice, in 1866, she 
 bought real estate in Chauncy street, and 
 sold it again in 1868, at a profit of $10,000, 
 the sale being advised and negotiated by him. 
 Prior to the sale, she told him that, if such 
 profit should be made, he should have one- 
 half or a part of it. In fact, nothing was 
 paid to him at this time, but it appears that 
 she already contemplated putting the rela- 
 tion between them on a business basis; and 
 shortly aftetwards she told him that, if he 
 would go on and act as her agent and ad- 
 viser respecting her investments, she would 
 make a will giving his wife $5,000; and, in 
 the event of his wife's dying before him, that 
 she would then, by a new will or codicil, 
 bequeath the legacy of $5,000 to him. He 
 assented to this, and she made her will 
 accordingly, bequeathing $5,000 to his wife. 
 All this savored of a business arrangement. 
 The sum mentioned was not greater than she 
 had talked of paying to him, as a part of the 
 profits on the sale of the Chauncy street real 
 estate; indeed, not so great, for that was to 
 be payable in 1868, while the bequest would 
 not be payable till after her death. In 1868 
 another purchase was made of real estate, 
 which was sold at a profit in 1869. In 1869 
 he admitted her to share in a purchase of real 
 estate in Bedford street, which he had in- 
 tended to make on his own account; the 
 whole of the money was furnished by her; 
 and in 1873 and 1874 the estate was sold at 
 a profit of between $4,000 and $5,000, over 
 and above the allowance to her of 7 per cent, 
 interest on the purchase money, and this 
 profit was equally divided between them. 
 In 1876 a purchase was made of real estate 
 on Mt Vernon street. All of these purchases 
 and sales were negotiated and advised by 
 the plaintiff, and were made solely upon his 
 judgment. 
 
 Such were the relations of the parties up 
 to 1878. She had paid him nothing for his 
 services; but her will, bequeathing $5,000 to 
 his wife, had stood during all this time ac- 
 cording to the understanding between them 
 in 1868. Nothing had been said or done to 
 vary the effect of her promise to bequeath 
 the legacy of $5,000 to him, in the event of 
 his wife's dying before him. In 1878 a new 
 arrangement was made. The plaintiff's wife 
 was fatally ill, and died in June of that year 
 A few weeks before her death, and when it 
 had become apparent that she was fatally 
 ill, the defendant's testatrix told the plain- 
 tiff that she desired to visit California, and 
 a brother who resided in Nevada, and, if 
 he would accompany her there in the fall 
 of that year, she, in consideration of his so 
 198 
 
 accompanying her, and of the services he had 
 rendered and might thereafter render her re- 
 specting the management of her property, 
 would make a will giving him $5,000, and 
 pay the expenses of the journey. The plain- 
 tiff assented thereto, and in May or June of 
 that year sTi* destroyed the will then exist- 
 ing, and executeTi a new one, wherein she 
 gave to him a legacy of ?5,000. According to 
 the terms of what she had iffoposed in 1868, 
 she was, by a new will or codicH, 4a be- 
 queath to him the legacy of $5,000, in the 
 event which was now at hand, if he would 
 go on and act as her agent and adviser re- 
 specting her investments. This he had done 
 up to that time. She now proposed to him 
 that she would make a will giving him $5,000 
 in consideration of his accompanying her to 
 California and Nevada, and of the services 
 he had rendered and might thereafter "ender 
 to her. There was no stipulation binding 
 him to render such services for any par- 
 ticular length of time in the future. The 
 most that could fairly be implied Is that he 
 should render them as requested, and as 
 long as he should be able to do so. Her 
 proposition appears to have been intended as 
 in the nature of business. The relations be- 
 tween the parties in the past had not been 
 merely those of kindness and voluntary aid. 
 The services which he had already rendered 
 were substantial, and of a business character. 
 They did not consist merely of advice, but he 
 appears to have taken, to a large extent, 
 the responsible charge of her business mat- 
 ters, and to have conducted them success- 
 fully. In addition to continuing such serv- 
 ices, he was now asked to accompany her to 
 California, which he did, in the fall of 1878 
 and the winter following,— a trip of several 
 months. She proceeded at once to act upon 
 his acceptance of her proposition, and made 
 a new will accordingly. This new will re- 
 mained unrevoked for two and a half years. 
 In view of all these circumstances, It seems 
 to us that, upon a just construction of the 
 auditor's report, there is not enough to repel 
 the ordinary assumption that the promise of 
 the defendant's testati-ix was a contract, 
 which, when made, was intended and under- 
 stood by both parties to be binding upon her. 
 The present case materially differs in its 
 facts from Madison v. Alderson, 8 App. Cas. 
 467, 5 Exch. Div. 293, and 7 Q. B. Div. 174. 
 In that case doubt was expressed whether 
 there was a contract, but the question was 
 not finally determined. It depended in part 
 upon a review of testimony which is not 
 fully reported. The terms of the alleged 
 promise and consideration differed from those 
 in the case before us in certain respects, 
 which might be found to be material. But 
 the decision in that case turned finally upon 
 the question whether, assuming a contract, it 
 had been shown that there had been a part 
 performance sufficient to take It out of the 
 statute of frauds; and it was held in the 
 negative. 
 
§37) 
 
 WJiiiiiiJNlxTUJS V. APTHORP. 
 
 Case No. 4? 
 
 Upon the auditor's report in the present 
 case, we must now assume that the whole 
 consideration stipulated for was performed 
 by the plaintiff, and that it was sufficient. 
 It is expressly found that his advice was 
 valuable, and his management judicious, be- 
 ing given and rendered whenever requested 
 or required; that he has received no compen- 
 sation therefor, except as stated, respecting 
 the division of the profits arising on the 
 sale of the Bedford-street real estate; that 
 In the fall of 1878 and the winter following 
 he accompanied her to Nevada and Califor- 
 nia, "and then and thereafter in all respects 
 compiled with and fulfilled the aforesaid 
 agi'eement." 
 
 It is also suggested in behalf of the de- 
 fendant that, even assuming a contract, it 
 was not proved to be a contract to make a 
 will which should not be revoked. But 
 
 looking at the language used, in the light of 
 the circumstances existing and preceding, so 
 narrow a construction of the contract is not 
 permissible. The substance of It was that 
 she would bequeath to him the sum men- 
 tioned. An instrument effectual as a will 
 was clearly contemplated; otherwise the 
 promise was but illusory. 
 
 The result is that, in the opinion of a ma- 
 jority of the court, the plaintiff was entitled 
 to judgment for the sum of $5,000, and in- 
 terest, in addition to the amount found at 
 the trial. The defendant's exceptions are 
 overruled, and the plaintiff's exceptions are 
 sustained. Ordered accordingly. 
 
 NOTE. The probate of the will does not af- 
 fect the right to relief in equity by way of 
 trust or specific performance, or at law on the 
 contract by way of damage. Sumner v. Crane, 
 155 Mass. 483. 29 N. B. 1151, and cases cited. 
 
 199 
 
 %SJ->JUxillKl.^^^«rK,MKA., lSM-V^U»Af».4'S4'. 
 
Case No. 44 
 
 ARNOLD V. EARLE. 
 
 (§ 39 
 
 ARNOLD V. EARLE. 
 
 (2 Lee Ecc. 380.) 
 
 Prerogative Court of Canterbury. 1757. 
 
 Thomas Newbee died a bachelor, having 
 made his will, appointed George Earle his sole 
 executor; he left Benjamin Newbee, his uncle 
 of the whole-blood, and William and Richard 
 Arnold, his uncles of the half-blood, his only 
 next of ]£in. Earle took probate. On first 
 session Hilary term, 1756, William Arnold cit- 
 ed him to prove the will by witnesses; Earle 
 appeared, and on 8th April, 1756, prayed a de- 
 cree against Benjamin Newbee and Richard 
 Arnold, to see the will propounded, which 
 was personally served on them; but they did 
 not appear. Earle propounded the will against 
 William Arnold personally, and against the 
 others in paenam; William Arnold gave In 
 an allegation opposing the will. Earle gave 
 in a plea in reply. Benjamin Newbee was a 
 material witness to prove some part thereof. 
 On first session of Easter term 1757, Ben- 
 jamin Newbee appeared, and by special proxy 
 declared he would not oppose the will, and 
 prayed to be dismissed from the cause; Wil- 
 liam Arnold opposed his dismission. The 
 question was, whether under the above cir- 
 cumstances, Newbee ought at his petition to 
 be dismissed from being a party or not. 
 The counsel for Newbee relied on the case 
 of Beaumont v. Sharpe, 14th February, 1752, 
 in the delegates. The counsel on the other 
 side, cited Phillips v. Dulse of Buck., 1 Vern. 
 200 
 
 230, and Bac. Abr. 235, the case of Casey v. 
 Beachfield, Finch, Free. 411, to show that 
 in chancery, though a defendant may, a 
 plaintiff cannot be dismissed to become a 
 witness ; and he also cited the cases of Gilley 
 V. Gilley, Delegates, Doctors Commons, 1st 
 July, 1738; and Yardley v. South, Preroga- 
 tive, 1744. 
 
 SIR GEORGE LEE. Under the circum- 
 stances of this case, I was clearly of opinion 
 that Benjamin Newbee ought to be dismissed; 
 he had not voluntarily made himself -a party, 
 but was called in and had not intermeddled 
 at all; that he had now appeared, and declar- 
 ed he would not oppose the will, and there- 
 fore had fully answered the purpose for 
 which he was cited; — that to detain him 
 would be a manifest hindrance to justice by 
 depriving Earle of his testimony, for his an- 
 swers could be of no use, they not being evi- 
 dence against William Arnold, and no evi- 
 dence was wanting against himself, as he 
 declared he would not oppose the wUl, and 
 had thereby judicially bound himself. In the 
 cases where this court had refused to dismiss 
 parties they had materially acted in the 
 cause, and injustice would have been done 
 the adversary by dismissing them; but in 
 this case great injustice would be done to 
 Earle by detaining Newb-ee, who prayed to be 
 dismissed, and I thought had a right so to 
 be; I therefore dismissed him from the cause 
 as a party, and he was Immediately pro- 
 duced and sworn a witness. 
 
§41) 
 
 PETTIPLACE V. GOKGES. 
 
 Caae No. 45 
 
 FETTIPLACE v. GORGES. 
 
 a Ves. Jr. 46.) 
 
 High Court of Chancery. Nov. 10, 1789. 
 
 In 1772 plaintiff being much involved, and 
 obliged to go abroad, conveyed by deed all 
 his estate to trustees, upon trust to apply all 
 the rents and profits in discharge of his 
 debts, reserving a life annuity of £400; one 
 moiety to be paid to himself for life, the 
 other to the sole and separate use of his 
 wife, not subject to the debts or control of 
 her husband. Under this deed she received 
 £200 a year from the trustee. She had also 
 £1000 stock devised by Lady Juliana Page in 
 trust for her sole and separate use. After 
 the death of Mrs. Fettiplace, a writing was 
 found signed by her in these words. "1 
 leave all my personal estate, and every 
 thing belonging to me, to my niece Diana 
 Gorges." Two sums of £1000 and £1900 
 stock were found at the death of Mrs. Fetti- 
 place, vested in trustees for her sole and 
 sepai-ate use. The bill was brought by the 
 husband against the devisee of the wife, 
 clai"^lng these sums and the dividends ac- 
 crued since the death of the wife. Plaintiff 
 permitted defendant to obtain administra- 
 tion with the will annexed, to be without 
 prejudice to the (juestlon between them. 
 
 Mr. Mansfield, and Mr. Graham, for plain- 
 tiff: Plaintiff is entitled, because there is 
 nothing authorizing his wife to make a will. 
 If any thing, it must be the deed respecting 
 the annuity: but this is no contract before 
 marriage upon consideration of fortune, or 
 any other consideration than that he was 
 obliged to make a settlement. There is noth- 
 ing in It implying an engagement on the part 
 of the husband to give up that right the law 
 gives him as such. It is simply an authority 
 to trustees to receive, and pay an annuity to 
 her separate use: but it does not follow 
 from such appropriation, that he shall be im- 
 plied to be deprived of that common law 
 right to the property acquired by his wife, 
 because bound by law to make a provision 
 for her. There are general dicta in the 
 books, biH no case, that where property is 
 given in this manner by a husband to a 
 wife, she may dispose of it by will. As to 
 the bequest to her, I cannot conceive how 
 from such a bequest as this, without a par- 
 ticular act of the husband, she can acquire a 
 right to dispose of it If a person gives it in 
 this manner, that notwithstanding coverture 
 she may dispose of it; if a husband, know- 
 ing it, permits his wife to accept it, he may 
 be considered as assenting: but where it Is 
 merely given for her separate use, nothing 
 more is inferred, than that it shall not be 
 subject to his debts; but It does not follow, 
 that if it remains her property at her death, 
 he shall not enjoy the common right of a 
 husband. It does not appear how the sum of 
 £1900 arises, but only that it was part of the 
 
 property foimd at her death in trustees for 
 her. There is nothing to show plaintiff gave 
 up aiiy right to this sum. 
 
 LORD CHANCELLOR: The question is, 
 whether It is not Incident to separate prop- 
 erty to dispose of It by will. 
 
 For plaintiff: That has never yet been de- 
 cided. 
 
 LORD CHANCELLOR: Yes it has, in 
 Peacock v. Monk.^ The whole Is In this nar- 
 row compass; stock to the amount of nearly 
 £3000 is vested In trustees as of the separate 
 use of Mrs. Fettiplace, who has given it by 
 her will. Her separate estate Is accounted 
 for In this manner; by the annuity, and by a 
 gift of stock to her sole and separate use by 
 a third person. The single question Is, 
 whether the Incidents to sole and separate 
 property do not follow It. 
 
 For plaintiff: In point of fact that precise 
 neat point has not yet been decided; that 
 In case of a devise to the sole and separate 
 use of the wife, that ex vi terminorum snail 
 imply this power. I know it has been de- 
 cided, that where It is for pin-money or 
 maintenance a wife shall have a power to 
 dispose of her savings; and decided even 
 against an heir at law, that lands shall be 
 charged, rather than that. In Peacock v. 
 Monk, Lord Hardwicke goes very fully into 
 the reasons of It; where he Is made to say, 
 that as to the personal, where there is an 
 agreement between the husband and wife 
 before marriage, that she shall have to her 
 separate use either the whole or particular 
 parts; she may dispose of it by act in her 
 life, or by will; though nothing said of the 
 manner of disposing of It; yet In a note of 
 Mr. Joddrel's It Is stated, that there was a 
 power of disposition given, though it is not 
 mentioned in the printed case. But here the 
 bequest is from another quarter." Your lord- 
 ship wiU not Imply this power unless com- 
 pelled to It, because contrary to the maxims 
 of the court, and the marital rights. In 
 Hearle v. Greenbank, 1 "Ves. Sr. 299. 
 
 LORD CHANCELLOR: Did not that case 
 turn upon a double question of infancy and 
 coverture? 
 
 For plaintiff: It did. According to what 
 Lord Hardwicke has there said and to Grlg- 
 by V. Cox, 1 Ves. Sr. 517, where any thing is 
 settled to the separate use of the wife, she is 
 a feme sole as to that; but in both cases 
 there is an express power given. MTiere it 
 comes from another quarter, there is no case 
 to support this disposition; and to say she 
 shall dispose of It, because given to her sepa- 
 rate use, is going a great way. 2 Vern. 270; 
 where personal property is given to the sepa- 
 rate use of a wife, it is to be construed 
 strictly; as that it Is only during coverture. 
 This deed must be construed strictly. The 
 court will not suggest considerations which 
 might have occurred, but take the fair and 
 
 '2 Ves. Sr. 190. 
 
 201 
 
Case No. 45 
 
 FETTIPLACE v. GOUGES. 
 
 (§41 
 
 necessary sense of the words. A power of 
 disposing in all its various ways cannot be 
 raised by implication. 
 
 Solicitor-General, for defendant: Wright v. 
 Lord Oadogan, 1 Brown, Pari. Cas. 486, is an 
 authority for this disposition. In Hearle v. 
 Greenbank, 1 Ves. Sr. 299, there is an express 
 power as to the real; but as to the personal, 
 Lord Hardwicke says "it is given to her sep- 
 arate use, in which case it is the rule of the 
 com-t, that a feme covert may dispose of it," 
 and concludes by saying, that as she was 
 above the age of 17, her wiU was an appoint- 
 ment of the personal. 
 
 LORD CHANCELLOR: The first case up- 
 on the subject is a very old one in Tothill; 
 that where a woman limn Ti«r separate stock 
 has saved^ «ran of money, she may dispose 
 of It. It does not appear, what the word 
 "stock" means. I know there Is a vast num- 
 ber of cases upon it; but I have always 
 thought it settled, that from the moment In 
 which a woman takes personal property to 
 202 
 
 her sole and separate use, from the same 
 moment she has the sole and separate right 
 to dispose of it. It is incident to dispose of 
 the savings out of her personal estate. She 
 certainly might enjoy it; and as to the prod- 
 uce, that is aU merely personal property. 
 If no disposition, the husband succeeds as 
 next of kin, not in consequence of the marital 
 rights. Upon the cases I have always taken 
 this ground; that personal property, the mo- 
 ment it can be enjoyed, must be enjoyed with 
 all its incidents. The bill must be dis- 
 missed. 
 
 jCoets would have been given; but the par- 
 ties had agreed, they should come out of the 
 fund. 
 
 NOTE._^ Personal property of a married wo- 
 man acquired after her husband was transport- 
 ed for life as a felon may be disposed of by tes- 
 tament. In re Coward, 4 Swab. & T. 46; and 
 see 1 Jarm. Wills, *42, for discussion of her 
 testamentary powers when she has been tem- 
 porarily restored to the condition of a feme 
 sole. 
 
§42) 
 
 BROOK 0. TURNER. 
 
 Case No. 46 
 
 BROOK T. TURNER. 
 
 (2 Mod. 170.) 
 
 Court of Common Pleas. Hilary Term, 28 & 29 
 Car. II. 
 
 Prohibition to the spiritual court to prove 
 the will of Philippa Brooks, by Sir William 
 Turner, her executor. 
 
 A trial at the bar was had, in which the 
 case was thus: 
 
 James Phillips, by wiU in writing dated 
 24th April 1671, inter alia gave to Philippa 
 for life, in lieu and full of her dower, all 
 his houses in 3 Crown court in South- 
 wark, pui-chased by him of one Mr. Keeling; 
 another house in South wark, purchased of 
 one Mr. 'Bowes; and aU his houses in New 
 Fish street, Pudding lane, Botolph lane. Beer 
 lane, Duxford lane, and Dowgate, XK9Bd«>B; 
 and died. Afterwards, there being a treaty 
 of marriage between the plaintiff Mr Brooks 
 and PhUippa PhlUips, it was agreed, that 
 all the said houses and rents, and profits 
 thereof, and all debts, ready money, jewels, 
 and other real and personal estate whatso- 
 ever, or wherein Philippa, or any In trust 
 for her, were interested or possessed, should 
 at any time, as well before as after the 
 marriage, be disposed in such manner as 
 should be agreed on between them. There- 
 upon by Indenture tripartite, between Mr. 
 Brook of the first part, and said Philippa 
 Phillips of the second part, and William 
 Williams and Francis GiUow of the third 
 part, reciting the said will of James Phillips 
 and the said agreement, the said Philippa, 
 in consideration of a shilling paid to her by 
 Williams and GiUow, did, with the fuU and 
 free consent of the said Edward Brook the 
 now plaintiff, "grant, bargain, and sell, to 
 the said Williams and GUlow, aU the said 
 houses devised by the last will of the said 
 James Phillips, in trust that the said trustees 
 should permit her to receive and enjoy the 
 whole rents and profits of all the houses 
 purchased of Mr. Keeling, and of all the 
 houses in Beer lane, and of two of the 
 houses in Broad street in the possession of 
 James and Worsley, and the quarter's rent 
 only due at Christmas then last past, and 
 no more, saving to Philippa all former rents 
 and arrears thereof, to be received by her, 
 and not by Mr. Brook, and to be employed as 
 thereinafter was mentioned." And upon this 
 farther trust, that after Mr. Brook's death, 
 in case the said Philippa survived, that then 
 the trustees should permit Philippa and her 
 assigns from time to time to grant, sell, and 
 dispose, of the rest of the premises, and all 
 others whereof she was seised or possessed, 
 as she should think fit; and also to receive, 
 dispose of, and enjoy, all the rents and prof- 
 Its of the premises (not thereby appointed 
 to be received by the plaintiff), for her only 
 particular and separate use, and not for the 
 use of the plaintiff, wJfhnut any account to 
 be given for the same, and not to be ac- 
 coimted any part of Mr. Brook's estate; and 
 
 that the acquittances of the said Philippa be 
 good discharges against the plaintiff; and 
 the said trustees to join with Philippa in the- 
 sale and disposition of the premises. And 
 Philippa, in farther consideration of the said 
 marriage, agreed to pay to Mr. Brook on the 
 day of man-iage 150£ and to deliver him 
 several bonds and securities for money in 
 the said indenture particularly named. And 
 the said Philippa, in farther pursuance of 
 the said agreement, and in consideration of 
 a shilling paid to her by the said trustees,, 
 did, with the like assent, assign to them 
 all her jewels, rings, money, etc. and other 
 her real and personal estate, upon trust that 
 they should permit her to enjoy the same to 
 her own separate and distinct use, and to 
 dispose thereof from time to time, as well 
 before ±hfi said marriage as afterwards, as- 
 she should think fit, "WJthwtt siny aoeourat;: 
 and for want of such limitation or appoint- 
 ment, in trust for her, her executors, ad- 
 ministrators, or assigns; and the plaintiff not 
 to hinder or impeach the same, and not to be 
 taken as any part of his estate, or be sub- 
 ject to his debts, legacies, or engagements. 
 And the plaintiff covenanted, that if the 
 marriage took effect the trustees should quiet- 
 ly enjoy the premises, and Philippa to dis- 
 pose thereof without trouble or molestation 
 by him, his executors, etc. ; and that Philippa 
 (notwithstanding the marriage) should at any 
 time, either before or after, have liberty, by 
 deed or will in writing by her published in' 
 the presence of two or more creditable wit- 
 nesses, or otherwise howsoever, at her pleas- 
 ure, to give and dispose all her real and 
 personal estate, goods, chattels, etc. whereof 
 she was possessed before the said intended 
 marriage, or at any time after, or any 
 other person, in trust for her (except such 
 part thereof as was thereby agreed to be paid 
 to and received by the plaintiff), to such- 
 person or persons, and to such use and 
 uses, intents and purposes, as she should 
 think fit; and that the plaintiff should as- 
 sent thereunto, and not impeach the same 
 in law or equity. The marriage shortly aft- 
 erwards took effect; and Philippa by will 
 in writing gave all her estate away in lega- 
 cies and charitable uses; and she devised 
 to the plaintiff twenty pounds to buy him 
 mourning, and gave to Sir WilUam Turner 
 the defendant one hundred pounds, and made- 
 him executor; and she devised to Mr. Hays 
 and to Mr. Grace twenty pounds apiece, 
 whom she made overseers of the will, and 
 died. There was neither date nor witnesses 
 to this will, save only the month and year 
 ot our Lord therein-mentioned; and this will 
 not being proved in the spiritual court, the 
 plaintiff moved for a prohibition, and the 
 defendant took issue upon the suggestion. 
 
 In which case these points were resolved 
 by the court: 
 
 First. If there be an agreement before mar- 
 riage that the wife may make a wUl, if she 
 
 20a 
 
€ase No. 46 
 
 BROOK V. TURNER. 
 
 (§42 
 
 do so it is a good will, iinless the husband 
 disagrees; and his consent shall be implied 
 till the contrary appear. And the law is 
 the same though he linew not when she 
 made the will, which when made it is in 
 this case, as in others, ambulatory till the 
 death of the wife, and his dissent thereunto; 
 but if after her death he doth consent he 
 can never afterwards dissent, for then he 
 might do it backwards and forwards in 
 finitum. And if the husband would not have 
 such will to stand, he ought presently after 
 the death of the wife to show his dissent. 
 
 Secondly. If the husband consent that his 
 wife shall make a will, and accordingly she 
 doth make such a wiU and dieth, and if 
 after her death he come to the executor 
 named in the wiU and seem to approve her 
 choice, by saying, "he is glad that she had 
 appointed so worthy a person," and seemed 
 to be satisfied in the main with the will, 
 and recommended a cofflnmaker to the execu- 
 tor, and a goldsmith for making the rings, 
 and a herald-painter for maldng the escutch- 
 eons, this is a good assent, and makes it a 
 good will, though the husband, when he sees 
 and reads the will (being thereat displeased) 
 opposes the probate in the spiritual court by 
 entering caveats and the like; and such dis- 
 204 
 
 agreement after the former assent will not 
 hurt the will, because such assent is good in 
 law, though he know not the particular be- 
 quests in the will. 
 
 Thirdly, when there is an express agree- 
 ment or consent that a woman may make a 
 will, a little proof will be sufficient to make 
 out the continuance of that consent after her 
 death; and it will be needful on the other 
 side to prove a disagreement made in a 
 solemn manner; and those things which 
 prove a dissatisfaction on the husband's part 
 may not prove a disagreement, because the 
 one is to be more formal than the other; for 
 if the husband should say, that "he hoped to 
 set aside the will," or by a suit or otherwise 
 "to bring the executor to terms," this is not a 
 dissent. 
 
 NOTE. The disability of a married woman to 
 make a will extended to a will of personal prop- 
 erty, as well as of realty. 2 Bl. Comm. 498. 
 In Grimke v. Grimke, 1 Desaus. Eq. 366, and 
 Cutter V. Butler, 5 Fost. (N. H.) 357, the con- 
 sent was implied from circumstances. It ia 
 uncertain whether the husband may revoke 
 his assent. It would seem from the nature of 
 his consent, which is really a waiver of his right 
 of administering his wife's estate, that he should 
 have the right to revoke his assent any time be- 
 fore probate of the will, even if he has ex- 
 pressed an assent to the will after her death. 
 
§3 43, 121) 
 
 SMEE V. SMEE. 
 
 Case No. 47 
 
 SMEE et al. v. SMEE et al. 
 
 (5 Prob. Div. 84.) 
 
 Court of Appeals. Dec. 4, 5, 1879. 
 
 The defendant, the widow of William Ray 
 Smee, deceased, propounded a will dated the 
 21st day of June, 1859, of the deceased, and 
 the other defendants propounded a later will 
 of the 12th day of April, 1867. The plaintiffs 
 alleged that the deceased was not of sound 
 mind, memory, and understanding at the date 
 of execution of either of the wills. 
 
 The deceased was for many years secretary 
 to the committee of treasury of the Bank of 
 England, and in November, 1852, met with 
 a severe railway accident, in consequence of 
 which he, in 1854, resigned his appointment. 
 In the same year he married the defendant 
 Mrs. Smee. By the will of 1859 he left his 
 property, subject to the payment of some 
 small legacies, to his wife absolutely, and 
 named her sole executrix; and by the will of 
 1867 he gave her the property for life or wid- 
 owhood, and devised and bequeathed the 
 residue to the corporation of Brighton to- 
 wards forming a public library in the Koyal 
 PavUion at Brighton. The deceased managed 
 his own affairs down to the time of his death, 
 and took an active part in politics, and 
 amongst other things wrote an able pam- 
 phlet on the repeal of the malt tax. He had 
 been left by his father a life interest in the 
 sum of £18,000, and it appeared that in the 
 early part of February, 1859, if not sooner, 
 he was labouring under insane delusions as to 
 tills and other matters. The following is one 
 of the memorials prepared and sent by the 
 deceased, which illustrates the character of 
 the delusions:— 
 
 "To Her Most Gracious Majesty Victoria, 
 Queen of Great Britain and Ireland.— The 
 humble memorial of William Ray Smee, of 
 No. 2, St. Edmund's Terrace, Regent's Park, 
 London, showeth,— 
 
 "1. Until a very recent period your me- 
 morialist thought himself to be the eldest child 
 of Mr. William Smee, of the Bank of Eng- 
 land, and his conduct as a son, was dutiful, 
 considerate, and affectionate. 
 
 "2. Memory, however, has now brought a 
 knowledge of circumstances which renders 
 this supposed parentage more than doubtful, 
 and induces him to think he Is in some way 
 connected with your majesty's famUy. 
 
 "3. Your memorialist, when quite yoimg, 
 remembers walking with Master Alfred Smee 
 and the nurse. There was a crowd of people 
 looking at some show. They all at once turn- 
 ed to her, and demanded to know which was 
 the prince, and on being told your memorial- 
 ist, they escorted him home with loud hm-rahs. 
 
 "4. King George IV. came to see your 
 memorialist when living at Camberwell. He 
 was but a little boy. The king walked into 
 the parlour from the garden. His majesty 
 took a chair, balanced it on one leg, looked 
 under, round, and up and down the chair, 
 then fixing his eyes upon him, said, after 
 
 a little pause, somewhat contemptuously,. 
 'What do- you call this?' 'A chair.' The king, 
 stiU keeping his eyes fixed, replied, 'This, 
 thing a chair; a chair, do you call it?' As- 
 tonished, your memorialist asked, 'Can you 
 not sit upon it?' The king seemed moved,, 
 did not again speak, but sat down, took him 
 upon his knee, and heard him read. Some 
 time afterwards Mrs. Smee came in, when 
 the king with much feeling patted yom- 
 memorialist upon the head, and said, 'Poor 
 boy, poor boy, get on with your learning; a 
 great destiny is preparing for you, although 
 you do not know it' 
 
 "5. Your memorialist at this period was 
 remarkable for the quickness and rapidity 
 with which he acquired knowledge. He was 
 at the top of the school, and at the end of the 
 half-year aU the boys escorted him in tri- 
 umph. The master said he had never met 
 with a boy more full of promise. 
 
 "6. When your memorialist became about 
 eleven years of age his proficiency at school 
 ceased. Every morning Mr. William Smee 
 administered to him drugs that made him 
 very sick, and dm-ing the day deprived him 
 of his proper quantity of nourishment, and 
 prohibited him from eating any animal food. 
 
 "7. When this conduct first commenced, a 
 lady spoke to your memorialist as he was 
 standing in the road opposite his house. Her 
 kind words and manner are now distinctly 
 remembered; she asked him whether he had 
 enough to eat. He wished to screen Mr. Wil- 
 liam Smee, and did not like to tell a stranger 
 how sadly he was treated, and replied he 
 had. But on leaving her, felt very sorry for 
 what he said. 
 
 "8. This concealment, so kindly meant, was 
 most of all disastrous to your memorialist, 
 as he then received less and less, lost his 
 memory and strength, and became half an 
 idiot; subsequently more food was given him, 
 and he partly recovered; yet, when again 
 sent to school he was a totally changed boy, 
 very nervous, and learning very slow. 
 
 "9. When about thirteen years of age your 
 memorialist came to live in the Bank of Eng- 
 land, and he was again drugged with medi- 
 cines administered by Mr. William Smee. 
 At school he sat for weeks doing nothing, 
 and your memorialist remerhbers a visit from 
 a gentleman (and although not certain, yet 
 thinks he was addressed as Sir Henry Al- 
 ford), who heard him read, and who appear- 
 ed satisfied on finding he could not compre- 
 hend what he read. Yet this gentleman seem- 
 ed anxious and uncomfortable, and said the 
 memory, artificially taken away, might come 
 back, and if so he was ruined. 
 
 "10. Within six months of this period he 
 was called away from school to be Intro- 
 duced to a gentleman whom Mr. William 
 Smee merely called 'a great man.' Your 
 memorialist met him in Finsbury Circus, and 
 all three walked up and down there, and the 
 'great man' asked all sorts of questions about 
 him in his presence. He was dressed not 
 
 205 
 
Case Xo. 47 
 
 SMEE' V. SMEE. 
 
 (§§ 43, 121 
 
 like a gentleman but a well-to-do mechanic. 
 On a sudden, the 'great man' exclaimed, 'I 
 am discovered; see if the gentleman just 
 past turns bacls:.' He turned, 'I must be off,' 
 lie said, T must not be seen again,' and he 
 disappeared, walking at a very rapid pace. 
 Your memorialist now remembers much of 
 -the conversation, and regrets to say the 
 great man in the mechanic's dress had the 
 well-known face of the Duke of Wellington. 
 
 "11. About a year from this time a gentle- 
 man called upon your memorialist and said 
 ;a sum of money was coming to him, and re- 
 quired him to appoint a trustee. With great 
 form, Mr. William Smee was apijointed; but 
 your memorialist has never received either 
 principal or interest, and there is no mode of 
 getting it except by public trial, and it may 
 l)e better to go without even a very large 
 sum of money than bring these circumstances 
 before the world. 
 
 "12. Your memorialist, thus continually 
 drugged and deprived of his fortune, became 
 at seventeen yeajs of age a mere tool in the 
 hands of Mr. William Smee,— made complete- 
 ly ignorant of the past; and all his ideas 
 and previous views in life have been thus 
 taken away, and he was compelled to accept 
 ;a situation in Mr. Smee's department of the 
 Bank of England. 
 
 "13. When eighteen years of age, Mr. Wil- 
 liam Smee cam© quite excited to your memo- 
 rialist and said, 'There is a report a prince 
 is a clerk in my department, and he is em- 
 ployed in the annuity office.' Your memorial- 
 ist observed he was engaged in that office, 
 .and should be glad to know his name. Mr. 
 William Smee seemed embarrassed, and 
 made no answer. That evening he was again 
 drugged, and until a few days ago all knowl- 
 cedge of the circumstances was obliterated. 
 
 "14. Thus was your memorialist made Uke 
 ■a. youth born at eighteen years of age. His 
 mind a blank, yet it became a creative mind, 
 and even then, if left alone, he would have 
 made friends and would have risen in the 
 world. But this was not permitted, and 
 .your memorialist constantly found himself 
 thwarted by some unknown hand. Many 
 instances of this could be mentioned. Two 
 .schemes of public importance, which re- 
 quired two acts of parliament to complete 
 them, were suppressed, and the only reason 
 your memorialist had given him was that 
 they would not be allowed to go before the 
 lious^e of commons with his name attached. 
 
 "15. About seven years ago your memo- 
 rialist met with a railway accident, which 
 made him very ill, and compeUed him to 
 give up his situation as secretary to the 
 committee of treasury at the Bank of Eng- 
 land, and obliged him to live much in the 
 country. It, however, caused i)Iood to flow 
 from the head, and this has, at length, so 
 far relieved the brain that memory, which it 
 was thought might return, has actually done 
 so. Mr. William Smee was perfectly aware 
 this result might happen, for four years be- 
 -206 
 
 fore his death, when walking with him, he 
 said, as if thinking about it, 'As soon as I 
 perceive he knows I shall die.' 
 
 "16. Mr. William Smee in his last illness, 
 when alone with your memorialist, made 
 many strange remarks, three of which ought 
 to be mentioned. First, he said, every trou- 
 ble experienced by him has been made to 
 happen by deep design for a great object. 
 Second, that the railway accident would 
 cause him to become abler and better than he 
 had ever been for reasons he knew nothing 
 about. Here Mr. William Smee paused and 
 seemed absorbed in thought. After a few 
 minutes he addressed your memorialist thus, 
 —'William, you are a man of the highest char- 
 acter, and I now perceive this knowledge can- 
 not be kept from you.' Third, and, wonder- 
 ful to relate, one morning, Mr. William Smee, 
 with a manner and a look that can never be 
 forgotten, exclaimed— these are his exact 
 words— 'Extraordinary and unheard of means 
 have been adopted to keep him down, or he 
 must have come to the throne.' 
 
 "17. These observations would indicate that 
 disease and great age had impaired the facul- 
 ties of Mr. WiUiam Smee. Your memorialist 
 tried to establish this, as he wished to upset 
 the will made at this period. But all those 
 who had opportunities of judging were of 
 opinion his mind was even clearer and stron- 
 ger than before his illness. 
 
 "18. Your memorialist is a person probably 
 
 not unlike your majesty's family. In Paris, 
 
 on two occasions, he was told he belonged to 
 
 j the royal, family of England, and his denial 
 
 i was hardly believed. Even in London he has 
 
 I more than once been taken for the Duke of 
 
 Cambridge. 
 
 "19. Throughout life your memorialist has 
 been distinguished by good temper, kindness 
 of disposition, and a certain bonhommie; but 
 the foreg(ring circumstances, the knowledge 
 of which has only come very gradually with- 
 in the last few days, have greatly pained and 
 wounded him, neither has he any means of 
 ascertaining whether everything is yet known 
 to him. 
 
 "20. Your memorialist is now about forty- 
 three years of age, and although he hopes 
 now to become, with respect to his brain, 
 like other men, yet he is in very delicate 
 health and has a sensitive mind. 
 
 "Your memorialist, therefore, humbly prays 
 yoiu- majesty to be graciously pleased to take 
 some notice of him, and to cause the remain- 
 der of his days to be passed in honour and 
 amid the charms of the best society; and 
 your memorialist, as in duty bound, will be 
 for ever grateful. William Ray Smee. 
 
 "December 22, 1859." 
 
 After the memorial to her majesty became 
 known to his family, and his claims upon his 
 father's property as a trust fund for him 
 were treated Ughtly by them, the deceased 
 kept aloof from them, and his nephew stated 
 that in an interview which he had with the 
 deceased in March, 1877, the deceased stated 
 
§§ 43. 121) 
 
 SMEE V. SMEE. 
 
 Case No. 47 
 
 in respect of the Imaginary trust fund that 
 It would be found at the Bank of England 
 after his death. In the box which contained 
 the will of 1867 were also found copies of the 
 memorial In the deceased's handwriting. 
 
 Dr. Deane, Q. C, Searle, and Rigg, for plain- 
 tiffs. Sir H. S. GifCard, S. G. Grady, and 
 Bayford, for Mrs. Smee. Inderwick, Q. 0., 
 and Finlay, for Corporation of Brighton. 
 
 THE PRESIDENT, in summing up the 
 case to the jury, said:— 
 
 The period of the testator's Ufe with which 
 you have to deal is from 1852 down to 1867, 
 the" period within which he made the two 
 wills in question. 
 
 In 1852 he met with the accident on the 
 railway, but the consequences of that acci- 
 dent, grave as they were, do not appear to 
 have manifested themselves for a considera- 
 ble time afterwards. He married in 1854, 
 and it has not been suggested that he was 
 not at that time capable of contracting mar- 
 riage. In 1858 his father died. Whether 
 his father's death had any thing to do with 
 exciting the morbid condition of his mind 
 does not appear, and is immaterial to the in- 
 quiry, but upon that occasion he manifested 
 delusions which it is not disputed possessed 
 his mind from that time forward— it is said 
 even down to his death; at any rate, long 
 after 1867. 
 
 It is important to bear in mind the nature 
 of the deceased's delusions. He had an idea 
 that he was the son of George IV.; that 
 when he was born a large sum of money was 
 placed in his father's hands In trust for him; 
 that he was robbed by his father by the di- 
 version of a large part of that trust fund 
 from him to his brothers; and that all that 
 his father really had to give to his brothers 
 was a sum of £1,000 each, the rest of the 
 property (about £50,000) left by his father, 
 and divided by wUl between his children, be- 
 ing part of the imaginary trust fund, to 
 which the deceased believed he alone was en- 
 titled. 
 
 He made a will in June, 1859, and a later 
 will in April, 1867. By the later will, with 
 which you have first to deal, he left his prop- 
 erty to his wife for life, and after her death 
 to found a free public library for the use of 
 the people of Brighton. The question is 
 whether that will can be deemed to be the 
 will of a sane man. 
 
 The law on the subject is this: The fact 
 that a man is capable of transacting business, 
 whatever its extent, or however complicated 
 it may be, and- however considerable the 
 powers of intellect it may reqiiire, does not 
 exclude the idea of his being of unsound 
 mind. A man may be a good carpenter, and 
 yet his mind be tainted with insanity to such 
 an extent as to render him irresponsible for 
 a crime on the ground that he did not know 
 the nature of the act. A very few years 
 ago there was a man in Bethlehem Hospital 
 
 who had been acquitted of crime as being 
 insane, but wlio painted pictures of consider- 
 able value. His insanity in no way intei'- 
 fered with his skill as a painter. All the 
 arguments, therefore, addressed to you on 
 the subject of the testator's capacity to deal 
 with complex subjects, to write pamphlets, 
 and to make calculations, have nothing to do 
 with the question whether or no he was of 
 uusoimd mind with reference to the making 
 of his will. He was admittedly of unsound 
 mind, as shown by that which is a most 
 conclusive symptom and evidence of it, name- 
 ly, the presence of delusions— that is to say, 
 ideas which you cannot conceive any rational 
 man to entertain. 
 
 Then arises another question,, as to which 
 undoubtedly there has been a difference of 
 opinion between eminent authorities. A few 
 years ago it was generally considered that 
 if a man's mind were unsound in one partic- 
 ular, the mind being one and indivisible, his 
 mind was altogether imsound, and therefore 
 that he could not be held capable of per- 
 forming rationally such an act as the mak- 
 ing of a will. A different doctrine subse- 
 quently prevailed, and this I propose to enun- 
 ciate for your guidance. It is this: If the 
 delusions could not reasonably be conceived 
 to have had anything to do with the de- 
 ceased's power of considering the claims of 
 his relations upon him and the manner in 
 which he should dispose of his property, then 
 the presence of a particular delusion would 
 not incapacitate him from making a will. 
 
 But you should specially bear in mind that 
 any one who questions the validity of a will 
 is entitled to put the person who alleges that 
 it was made by a capable testator upon 
 proof that he was of sound mind at the time 
 of its execution. The burden of proof rests 
 upon those who set up the will, and, a for- 
 tiori, when it has already appeared that there 
 was in some particular undoubtedly unsound- 
 ness of mind, that burden is considerably in- 
 creased. You have, therefore, to be satis- 
 fied from the evidence that has been offered 
 by those who propounded the will of 1867, 
 and the earlier will also, that the delusions 
 under which the deceased laboured were of 
 such a character that they could not reason- 
 ably be supposed to affect the disposition of 
 his property. 
 
 This is an extremely delicate and dlfiicult 
 investigation, and may be illustrated by ref- 
 erence to the physical world. There might 
 be a little crack in some geological stratum 
 of no importance in itself, and nothing more 
 than a chink through which water filters in- 
 to the earth; but it might be shown that this 
 flaw had a direct influence upon the volume, 
 or colour, or chemical qualities of a stream 
 that issued from the earth many miles away. 
 So with the mind. Upon the sui;face all may 
 be perfectly clear, and a man may be able 
 to transact ordinaiy business or follow his 
 professional calling, and yet there may be 
 some idea through which in the recesses of 
 
 207 
 
Case No. 47 
 
 SMEE V. SMEE. 
 
 (§§ 43. 121 
 
 his mtnd an influence is produced on his con- 
 duct in other matters. You have to say 
 whether or not the flaw or cracli in the testa- 
 tor's mind was of such a character that, 
 though its effect may not be seen on the 
 surface of the document before you, it had 
 an effect upon him when dealing with the 
 disposition of his property, and maliing 
 the bequest to the corporation of Brighton. 
 He had an idea that he was the son of 
 George IV., and it is for you to say whether 
 that idea might not have had an effect upon 
 his mind when he was considering what he 
 should do with his property? It is perfectly 
 clear that the testator was thoroughly of 
 unsound mind in one particular, and it is 
 for you to say whetho" the character of his 
 unsoundness does not show a possibility and 
 probability of connection between his will 
 and the delusions under which he suffered, 
 namely, that he was connected with the man 
 who had taken such deep interest in the 
 town of Brighton. Unless your minds are 
 satisfied that there Is no reasonable connec- 
 tion between the delusion and the bequests 
 in the wills, those who propound the wills 
 have not discharged the burdens cast upon 
 them, and your verdict must be against them. 
 The case is different, but only in degree with 
 regard to the earlier will, as that wiU, being 
 in favour of his wife, appears to be uncon- 
 nected with his delusions. The capacity re- 
 quired of a testator is, that he should be able 
 rationally to consider the claims of all those 
 who are related to him, and who, according 
 to the ordinary feelings of mankind, are sup- 
 posed to have some claim to his considera- 
 tion when dealing with his property as it is 
 to be disposed of after his death. It is not 
 sufficient that the will upon the face of it 
 should be what might be considered a ra- 
 tional will. You must go below the sm-face 
 and consider whether the testator was in 
 such a state of mind that he could rationally 
 take into consideration, not merely the 
 amount and nature of his property, but the 
 interest of those who by personal relation- 
 ship or otherwise had claims upon him. 
 208 
 
 In dealing with the matter you must con- 
 sider the testator's relations with reference 
 to his brothers. He believed that they had 
 by the fraud of his father been put in pos- 
 session of two-thirds of property which be- 
 longed to him. His brother Alfred, in a let- 
 ter In reply to one from the testator, in which 
 the claim was first hinted at, treated the mat- 
 ter somewhat lightly, and it appeared from 
 the evidence of Mr. Alfred Hutchinson Smee 
 that there was in consequence a coolness 
 between them, and that for many years they 
 ceased to visit each other. If that were the 
 state of his mind, believing that he had been 
 defrauded by his brother of two-thirds of a 
 sum of about £50,000, it will be lor you' to 
 say whether his delusion can be treated as 
 wholly unconnected with the will, in which 
 he left all of his property to his wife for life 
 and nothing under any contingency to his 
 brothers or sisters. The subject, as I have 
 said, is diflScult and delicate, but it is one of 
 which I have no doubt the best solution is 
 to be found by the verdict of a jury. It be- 
 ing conceded that the testator was undoubt- 
 edly of unsound mind, are you satisfied that 
 when he made either of the wills he was 
 capable of dealing with the subjects before 
 him entirely free from the delusions under 
 which he suffered? If the evidence does not 
 satisfy you as to this, your verdict should 
 be against the will. 
 
 The jury having found that the deceased 
 was not of sound mind when the wills were 
 executed, his lordship pronounced against 
 both wills and allowed the costs of the plain- 
 tiffs and widow only out of the estate. 
 
 Inderwick, Q. C, asked for the costs of 
 the corporation of Brighton also. 
 
 THE PRESIDENT. I am Of opinion that the 
 corporation of Brighton cannot be considered 
 to blame for having raised the question as to 
 the deceased's sanity. But that is not suffi- 
 cient to entitle them to costs. I cannot allow 
 them their costs, but I do not condemn them 
 in costs. 
 
.43) 
 
 IN KE SAMMOKS' WILL. 
 
 Case No. 4S 
 
 MORSE V. SCOTT. 
 
 In re SAMMONS' WILL. 
 
 (4 Dem. Sur. 507.) 
 
 Surrogate's Court, Orange County. Oct., 1885. 
 
 Petition of James Scott for the probate of 
 
 ttie will of John S. Sammons, deceased. 
 
 W. J. Welch and B. R. Champion, for exec- 
 utors, proponents. Henry Wiggins and H. 
 A. Wadsworth, for contestants. 
 
 COLEJIAN, S. Unless it appears, from 
 the testimony, that John S. Sammons was 
 influenced in making the instrument pro- 
 pounded'as his last will and testament by 
 an insane delusion, the will should be ad- 
 mitted to probate, all other legal requisites 
 having been sutRciently proved. The law 
 permitted him to dispose of his own as he 
 desired, whether that desire was induced by 
 a ridiculous fancy to preserve his tomb, or 
 a sincere wish to benefit the religious body 
 selected by him as his principal beneficiary, 
 although in so doing he excluded those recog- 
 nized by our statutes as his heirs, provided 
 only that such desire is the outcome of a 
 sane piu-pose. 
 
 An insane delusion is defined by Dr. Gray, 
 in the Oolhoun Will Case, 2 Redf. Sur. 40, 
 as a belief in the existence of that which 
 has only an existence in the imagination of 
 the person. Dr. Williams in this case says: 
 "It is a false belief that governs and con- 
 trols the Individual in his actions." By the 
 law of this state, a person having insane de- 
 lusions may make a valid testamentary dis- 
 position of his property when such delusions 
 have not influenced the mind of the testator 
 in making the disposition. Van Guysling v. 
 Van Kuren, 35 N. Y. 70, is a case in point. 
 In that case, the testatrix believed that she 
 saw and was interfered with by "spooks" 
 and witches; but that belief did not enter 
 into, or apparently affect the manner in 
 which she disposed of her property. She 
 selected some of her relatives, in preference 
 to others equally related to her. The more 
 common form of insane delusions, which 
 have been held by the courts, to have vi- 
 tiated wiUs, is that one which led the testa- 
 tor to believe that those, who by nature were 
 his protectors and should have been the re- 
 cipients of his bounty, were seeking to in- 
 jure and kill him, and believing in this de- 
 lusion, cut ofC such persons from sharing in 
 the estate. 
 
 Judge Denio well says, in Society v. Hop- 
 per, 33 N. y. 619, 624: "On questions of 
 testamentary capacity, courts should be care- 
 ful not to confound perverse opinions, and 
 unreasonable prejudices with mental aliena- 
 tions." There is no question but that John 
 S. Sammons was a man full of perverse opin- 
 ions and unreasonable prejudices, and his 
 will must also be regarded as perverse and 
 unreasonable when viewed in connection 
 with his life, character and ties of relation- 
 ship, for he was neither benevolent, philan- 
 
 AnT!.WIT.T.S — 14 
 
 thropic nor religious. He had a sister and 
 nephews and nieces, for all of whom he ap- 
 parently entertained friendly feelings; and! 
 yet, by this will, he would disinherit them, 
 all and give his property to a chm-ch society, 
 not for the purpose of advancing a cause of 
 religion, but, as he himself says, for the pur- 
 pose of having his vault preserved to the 
 end of time. Now, was this only the result 
 of a freak or whim, or was it the result of 
 some mental disturbance? 
 
 In order to determine this, we must consid- 
 er the character, habits and life of the man; 
 he was an ignorant man— had never learnecJ 
 to read or write, except his name— had nat- 
 urally a weak and superstitious mind — was 
 never married— grew up a farm laborer— in 
 middle life inherited a farm from his mother, 
 which is about all the property he ever had, 
 except as he has accumulated and saved 
 from the products of this farm— thought he 
 heard a voice, while in the field one day 
 shortly before his mother's death, telling him 
 of that event; and when himself over fifty 
 years of age, while ploughing in a field, 
 found a stone scraped by the plow with 
 marks, which he thought were the flgm-es, 
 52, indicating his own death on his fifty- 
 second birthday— hearing then, or at some- 
 other time, a voice in the air, which foretold 
 the same event— by reason of which he gave 
 public notice that he was to die on that day, 
 so that, according to one witness who was- 
 present, some two hundred people were gath- 
 ered about his house. He had in the mean- 
 time built for himself a vault upon his farm,, 
 directed an undertaker to be present, and had! 
 purchased and brought to his house a metallic 
 coffin, which he told one witness was made 
 of wood and iron melted together, and which 
 he told several witnesses woidd preserve his 
 body to the end of time. He was, also, at 
 this time, greatly concerned by the threat of 
 a neighboring doctor, that, if he died at this 
 time, he would scrape the flesh off his bones; 
 wire them together, put a ring in his head, 
 and hang him up to fight the four winds. 
 Just how much this threat had to do withs 
 the building of the vault and the buying of 
 the coflfin is not clear; but he did, after 
 that, make a will in which he gave his body 
 to a trusted friend to be preserved. For a 
 time after the day fixed for his death, he 
 seemed shy of meeting people— was general- 
 ly, however, boisterous, and would frequent- 
 ly shout to people passing by his house or» 
 the highway, whether he knew them or not, 
 and stop them— would ask them where they 
 were going and other questions— would some- 
 times, immediately after asking a blessing, 
 break out in oaths— was generally profane 
 and often indecent in his language. He bur- 
 ied two horses on his farm, and erected 
 tombstones at their graves. At one time, 
 he bought a coffin, similar to his own, for his 
 dog, before it died, to test the preserving 
 qualities of the coffin; and at another time, 
 he also got a coffin for his cat; and, after 
 
 20S, 
 
Case No. 48 
 
 IN RE SAMMONS' WILL. 
 
 (§43 
 
 they died, placed their dead bodies in these 
 coffins, and kept them about the house until 
 the flesh became putrid, and, when expostu- 
 lated with on the subject, objected to bury- 
 ing them, and said he thought the coffins 
 ought to have preserved the bodies better. 
 He made a number of wills, in all of which 
 it would seem some provision was made for 
 perpetually maintaining his vault, and in one 
 of which provision was made for a public 
 burying ground on his farm for animals. 
 
 I do not mention all these facts because I 
 think them all evidences of Insanity; in fact, 
 I think the most of them by themselves are 
 not; but they do show a very weak and 
 eccentric mind, and one in which delusions 
 might readily find lodgment, which might 
 In time become lixed delusions so as to 
 control his actions. 
 
 His habits of Ufe were to the last degree 
 filthy. He was, at the same time, niggardly 
 of his money, and wasteful about his house 
 and farm. During life, he gave little or 
 nothing to the chm-ch or any other cause, 
 jand only paid for work done for him when 
 :he could not avoid it, or was compelled to 
 uio so. 
 
 On the other hand, by the testimony of 
 many of his neighbors, of his tradesmen, of 
 his bankets and of physicians, who knew 
 him well, it appears that, while acknowl- 
 edged by them to be an eccentric man, he 
 was, in their judgment, rational in all his 
 acts, accustomed to buy and sell at the best 
 advantage, doing his banking and other 
 business correctly and understandingly, and 
 continued so to be and to do until the time 
 of the accident which occasioned his death, 
 when he was about eighty years of age. 
 While this may be and probably was true, 
 so far as their intercourse with him was 
 concerned, it is well settled that evidence 
 of delusions is not countervailed by evidence 
 of business capacity as to ordinary business 
 transactions. It is also held that, when de- 
 lusions are shown before the execution of 
 the instrument, naturally afCecting its pro- 
 visions, the burden is shifted upon the pro- 
 ponents to show that they did not exist 
 when the instrument was executed. Shaw's 
 Will, 2 Redf. Sur. 107, 12C, and cases there 
 cited. 
 
 I am entirely satisfied that, before the exe- 
 cution of the will ofeered for probate, John 
 S. Sammons had at least two well settled 
 insane delusions. One was that he was to 
 die on his fifty-second birthday. While it 
 is true that he did not die then, and there- 
 fore, could not weU, after that, entertain the 
 delusion, still he himself frequently said. In 
 reference to the matter, that he was only 
 living on borrowed time. And it is, also, 
 true that this delusion probably did not af- 
 fect the provisions of this will. Its princi- 
 pal importance to my mind is that it shows 
 that, having had such a delusion, there is 
 greater probability of his having others on 
 kindred subjects. 
 
 210 
 
 The other delusion was the belief that his, 
 body was to be preserved to the end of 
 time— either by his coffin or by some other 
 means. 'Whatever matters he may have 
 been mentally sound upon— however success- 
 fully he may have conducted liis farm, or 
 traded or correctly done business— he never 
 gave up the idea that his body was to be 
 preserved to the end of time; and therefore 
 the necessity, in his mind, of having per- 
 petually a suitable place for its protection. 
 For this purpose, he built a vault upon his 
 farm and then seeks some means of having 
 that vault always cared for. He declines to 
 make his relatives trustees for that pm-pose, 
 for, as he says, they would not live to tlie 
 end of time. At one time, he thinks of town 
 officers and their successors, as trustees, but 
 finally selects the trustees of the chin^ch, 
 which he had occasionally attended, and 
 their successors, as the proper persons to 
 take care of the vauU, and made the farm, 
 upon which it is situated, and his other 
 property, an inducement to undertake the 
 trust. 
 
 When the person who was about to draw 
 his will sought to persuade him to remem- 
 ber his relatives in the disposition of the 
 property, he makes no objection to them on 
 account of unfitness, dislike or animosity; 
 but seemed intent only on one object, to 
 provide a means for the preservation of his 
 vault, and said to his nephews in that con- 
 nection, "Dody, will they live for ever?" 
 Both witnesses to the will say that he said 
 that one of the principal reasons for giving 
 his property to the church was to have his 
 vault cared for. The person who drew the 
 will says his whole bent seemed to be to 
 have his vault preserved. 
 
 Was this purpose, from which nothing 
 could divert him, the desire of a sound mind ? 
 If it was, the law will uphold it, whether 
 done to Indulge a whim or to gratify his 
 vanity. If, however, the purpose was in- 
 duced by the insane delusion that his body 
 was going to be preserved to the end of 
 time, and he was thereby induced and in- 
 fluenced to provide and perpetually maintahi 
 this vault for that reason, then the will is 
 the result of an insane delusion, which con- 
 trolled his judgment and misled his under- 
 standing in relation to the subject upon 
 which it was acting, and must, therefore, 
 be regarded as invalid, because it does not 
 express the will of a testator of a sound, 
 disposing mind. 
 
 After carefully considering the whole case, 
 I have come to the conclusion that John S. 
 Sammons, at the time of making the will, 
 was controlled in making it by the insane 
 delusion that his body was going to be pre- 
 served to the end of time. The will, there- 
 fore, will not be admitted to probate. 
 
 Having reached this conclusion, it will not 
 be necessary for me to pass upon the ques- 
 tion of the validity of the devise to the 
 church. 
 
§§ 43. 44) 
 
 BANKS V. GOOBFELLOW. 
 
 Case No. 49 
 
 BANKS V. GOODFBLLOW. 
 
 (L. E. 5 Q. B. 549.) 
 
 Court of Queen's Bench. July 6, 1870. 
 
 Ejectment for fifteen messuages or dwell- 
 ing houses situate at Keswick. The defend- 
 ant defended for the whole. 
 
 At the trial before Brett, J., at the Cumber- 
 land spring assizes, 1809, It appeared that the 
 action was brought by the plaintiff, as heir at 
 law of John Banks, deceased, to try the va- 
 lidity of a win made by the latter, on the 28th 
 of December, 1863, in favour of Margaret 
 Goodfellow. 
 
 The testator had an only sister of the whole 
 blood; but she was dead at the time the will 
 was made, and her only child, the said Marga- 
 ret Goodfellow, lived with him, and was his 
 heir at law. The testator had also an only 
 brother of the half blood, Jacob Banks, who 
 was also then dead; he was father of John 
 Banks, the plaintiff, and of several daugh- 
 ters. The testator died, unmarried on the 
 28th of July, 1865. The will devised the 
 whole of the testator's real and personal 
 property to Margaret Goodfellow absolutely. 
 She died unmarried, and under age, in 1867. 
 The defendant was her half brother and heir 
 at law. 
 
 The question at the trial was the capacity 
 of the testator to make a will on the 2nd of 
 December, when instructions given for the 
 will were provisionally executed as a will, or 
 on the 28th of December, 1863, when the form- 
 al will was executed. The evidence was very 
 long and contradictory on the point; but it 
 was admitted that at times the testator was 
 Incapable of making a ^jeilL 
 
 The following is a copy of the direction of 
 the learned judge to the jury:— "It is ad- 
 mitted that from time to time the testator 
 was so Insane that he was incapable of mak- 
 ing a wUl. The question is whether, on the 
 2nd of December, 1863, or on the 28th of De- 
 cember, 1863, or on both,' the testator was 
 capable of having such a knowledge and ap- 
 preciation of facts, and was so far master of 
 his intentions, free from delusions, as would 
 enable him to have a will of his own in the 
 disposition of his property, and act upon it. 
 The mere fact of his being able to recollect 
 things, or to converse rationally on some 
 subjects, or to manage some business, is not 
 sufficient to show he was sane. On the other 
 hand, slowness, feebleness, and eccentricities, 
 are not sufficient to show he was insane. 
 The whole burden of showing that the tes- 
 tator was fit at the time is on the defendant 
 in this case. In order to determine whether 
 the testator had a lucid interval when the 
 wills or either of them were made, it may be 
 important to consider what was the extent 
 and nature of his admitted general insanity." 
 
 The jury fotmd a verdict in favor of the 
 defendant, saying the will was a good and 
 valid will. 
 
 A rule was obtained for a new trial on the 
 
 ground of misdirection, and that the verdict 
 was against the weight of evidence. 
 
 The facts of the case, the arguments of 
 counsel, and the cases cited, fully appear in 
 the judgment of the court. 
 
 Mr. Manisty, Q. C, Mr. Aspinall, Q. C, 
 and Kemplay, for plaintiff. Mr. Holker, Q. 
 C, and C. Button, for defendant. 
 
 Cur. adv. vult. 
 
 The judgment of the court (COCKBURN, 
 C. J., BLACKBURN, MELLOR, and HAN- 
 NEN, JJ.) was delivered by— 
 
 COCKBURN, O. J. This is an action 
 brought by the plaintiff, as heir at law of 
 John Banks, to try the validity of a will 
 made by the latter in favour of one Margaret 
 Goodfellow, of whom, she having died smce 
 the decease of the testator, the defendant is 
 the heir. The question in issue at the trial 
 was the capacity of the testator to make a 
 will. 
 
 Instructions for the wUl, taken by the at- 
 torney who prepared it, were signed by the 
 testator and attested by witnesses in his pres- 
 ence, on the 2nd of December, 1863; the will, 
 formally prepared from such instructions, 
 was duly executed on the 28th of the same 
 month. The question is, whether on both or 
 either of those days the testator was of sound 
 mind, so as to be capable of making a will. 
 
 It is a fact beyond dispute that the tes- 
 tator, John Banks, had at former times 
 been of unsound mind. He had been con- 
 fined, as far back as the year 1841, in 
 the county lunatic asylum; discharged, 
 after a time, from the asylum, he re- 
 mained subject to certain fixed delusions. 
 He had .conceive d a violent av ersion to - 
 wards a man n amed Faatheratone Alex- 
 ander, and no twithstanding the deat h of the 
 latter some years ago, he c ontinued to believe 
 that this man stiU pursued and mol ested 
 him: and the mere mentio n of Featherstone 
 Alexander's name was sufficient to_JJirQiy 
 him into a state of violent excjt ement He 
 frequently believed that he was pursued and 
 molested by devils or evil spirits, whom he 
 believed to be visibly present. Besides these 
 delusion's, which were spoken to by two wit- 
 nesses whose evidence was above suspicion, — 
 the one a medical man who attended him 
 from 1856 to the end of 1862, the other the 
 clergyman of the parish in which the testa- 
 tor resided,— t here was a body of evidenc e 
 
 whjph, ifJjPljPvml, -tyfis} st^OTlST t" establish ^ 
 
 case of general insanity . The jury, howe ver, 
 found in fa sQlT" "f ^he yil l. and therefor e 
 must have bel jes M this ^yi dence to be great- 
 l y exaggerate d, n^r i;niist bavg come tn t^iq crvn- 
 cluMoBJM±-tte^will-^waa.flia4a4unnga_lucld 
 jnterva L- 
 
 From September, 1863, he had a succession 
 of epileptic fits, and a blister was applied to 
 his head, and the medical man who attended 
 him throughout this period, deposed that his 
 mental power, such as it was, suffered from 
 
 211 
 
Case No 40 
 
 BANKS V. GOODFELLOW. 
 
 (§§ 43. 44 
 
 the fits, and that he considered him insane, 
 and incapable of transacting business during 
 the whole time. 
 
 On the other hand, it appeared that the 
 testator managed his own money affairs 
 (which, however, were on a limited scale), 
 and was careful of his money. According 
 to the evidence of a witness named Tolson, 
 who had acted as his agent in receiving the 
 rents of some cottage property at Keswick, 
 amounting to £80 a year, the testator had not 
 only always showed himself capable of trans- 
 acting business with him, but had also on 
 the last occasion of Tolson's coming to pay 
 the rents, suggested to him to take a lease of 
 the cottages in question, so as to relieve him 
 (the testator) from all risk or trouble in the 
 matter. He had also desired Tolson, when 
 he came to pay over the next half-year's 
 rents, to bring with him a Mr. Ansell, an at- 
 torney of Keswick, as he wanted to see him 
 about making a will. On the 2nd of Decem- 
 ber, 1863, Tolson went to Arkleby, where the 
 testator lived, taking Ansell with him. On 
 their arrival, the testator, according to the 
 statement of Ansell and Tolson, told Ansell 
 he wished to make his will. He fetched from 
 his room a will which he had made in 1838, 
 in favour of his sister, who had since died, 
 and said he wished to give all his property 
 to his niece, Margaret Goodfellow, in the 
 same way. On Mr. Ansell asking who should 
 be the executors, the testator tiu-ned to his 
 niece, who was present, and asked who she 
 thought should be executors; whereupon she 
 desired that Tolson should be one, and asked 
 who should be the other, when the name of 
 the other executor, ThirlwaU, was suggested 
 by a person present, and assented to by the 
 testator. The instructions thus received by 
 A nsell were put do wn by him on paper, and 
 having been read over to the testator, were, 
 bv the desire of Ansell, signed by hTm, and 
 h js signature was formallv attested by two 
 v y:itnesses. so as to make the paper a suffi- 
 c Lent and valid will, although it was intend - 
 ed that a more formal document should aft- 
 erw ards be prepared and executed ; the re a- 
 son given by Ansell for such si gning and 
 a ttestation of the instructions being, that he 
 a lways pursued this course when his clients 
 li ved at a distance from him, and time would 
 be required between the taking the instruc - 
 t ions ana the nnai completion of the wi ll. 
 The distance between Keswick and Arkleby 
 is about twenty miles, and the road was said 
 to be bad. 
 
 After the matter of the will had been dis- 
 posed of, a conversation took place concern- 
 ing the proposed lease to Tolson. The tes- 
 tator calculated the amount of the rents, 
 and finding that they came to £80, offered 
 Tolson a lease of the cottages for seven 
 years, at a rent of £76 a year. This being 
 agreed to by Tolson, Ansell was instructed 
 to prepare a lease on these terms; and the 
 instructions, having been reduced to writing, 
 were signed by the testator and Tolson. 
 212, 
 
 After this, Tolson proceeded to settle with 
 the testator for the rents received by him, 
 which amounted to £40. 7s. 4d. Of this Tol- 
 son produced £29 in cash, and offered his 
 cheque for the remainder, but the testator 
 observed that a cheque would be of no use 
 to him, as there was no bank near, and de- 
 sired Tolson to pay the balance into a bank 
 at Keswick, at which the testator had an 
 account. After this, a conversation ensued 
 with a Mrs. Routledge, at whose house the 
 testator lodged, as to the amount which he 
 should pay her weekly for his board and 
 lodging combined, which, if truly reported, 
 tended strongly to show that he was then 
 capable of managing his affairs. 
 
 nTi_thq 2Stti ^of DecpTnber Tolson J;ook over 
 thA wilinnri i f^asp , which had been pj-epare d 
 bv~A nseTl. to the testator, who, having rea d 
 them_Ja^e-ai: three _times, said they were all 
 right.— afte r which bo lh instruments were 
 e xecuted by him, and the will was duly at - 
 tested . 
 
 The testator lived till July 1865. His 
 niece, Margaret Goodfellow, sm'vived him, 
 but died in 1867, unde.' age and unmarried. 
 She was his heir at law. He had other 
 nephews and nieces, to whom he is said to 
 have been attached. The effect of the wil l, 
 if valid, is, that the property goes to p^ et 
 d.efendant. who is no relation in blood to the 
 t estator, _3 s the heir at law of Margaret 
 Goodfellow , instead of to any relative of th e 
 testator . Ttiifi pnnRJblf rnnfipqurnrr nf Mar 
 parpt aoodfplloTy d y in g with pnt iss ue and in- 
 t estate, does not, however, appear to Tn^vp 
 p resented itself to the mind of an j_ nf thP ' 
 parties at the time of making the will . 
 
 Upon this evidence, the learned judge left 
 It to the jiu-y to say, "whether, on the 2nd 
 of December, 1863, or on the 28th of De- 
 cember, 1863, or on both, the testator was 
 capable of having such a knowledge and ap- 
 preciation of facts, and was so far master 
 of his intentions, free from delusions, as 
 would enable him to have a will of his own 
 in the disposition of his property, and act 
 upon it," the learned judge telling the jm-y 
 that "the mere fact of his being able to rec- 
 ollect things, or to converse rationally on 
 some subjects, or to manage some business,, 
 would not be sufficient to show he was sane; 
 while, on the other hand, slowness, feeble- 
 ness, and eccentricities would not be suffi- 
 cient to show he was insane;" with the fur- 
 ther direction that "the whole burden of 
 showing that the testator was fit at the 
 time was on the defendant." 'The jury re- 
 turned a verdict for the defendant, saying 
 that they found that the will "was a good 
 and valid will." 
 
 The present rule was applied for and ob- 
 tained on two grounds, first, that the judge 
 misdirected the jury; secondly, that the ver- 
 dict was against the weight of the evidence.. 
 The alleged misdirection is that t he ^ learn ed 
 j udge, in leavm g to the JjiryZ^aZ guestiba 
 whether at the time of "making the will the- 
 
§§ 43, 44) 
 
 BANKS V. GOODFELLOW. 
 
 Case No. 49 
 
 testator was free from dphisinna, di^i nn( 
 proceed to tell them that though the de- 
 lusions, under •wtLich_tlie_Jt esta tor hnri niy 
 qo uptediy Derore~laboured. might not hav e 
 been present to his mind at the time of malt - 
 ing the will, yet, if they were latent in his 
 i nln5r^ that, if the subject had been touched 
 upon, the delusions wo'ilfl hnve recnrrpfl, hp 
 w as of unsound mi nd and therefo i-e inrnpn- 
 bie Of m aitmg jijill^ 
 
 we must take it, for the present purpose, 
 as a fact, that the testator, though generally 
 of weali intellect, was able to manage his 
 own affairs, and, apart from the delusions 
 under which he laboured, was, at all events 
 at the time of executing one or both of the 
 testamentary instruments in question, of suf- 
 ficient testamentary capacity. We must al - 
 so talte it that no dpiiisin p manifested itse lf 
 at the time of mnking the wil l. On the 
 other hand, there is ample proof that the 
 delusions existed in the interval between the 
 making of the will and the deatli of the tes- 
 tator, as they had done before; and it i s 
 thfilie fore quite possible that these delusion s 
 may have remained, at the time of malving 
 the will, uncured and latent in the testatoF g 
 mind, a nd capable of being evoked and_ xe- 
 produced atany moment, if anything had 
 occurred to lead his thoughts to the sub.ject. 
 
 The inquiry not having been directed to 
 this point, it is quite possible that all that 
 the jury meant in finding in the affirmative 
 of the question whether the testator was 
 "free from delusions" at the time of making 
 his will, was that the delusions were not 
 present to his consciousness, not that they 
 .were eradicated from his mind : and that if 
 the question had been specifically put to 
 them whether the delusions still remained 
 latent in the testator's mind, and his mind 
 was to the ex'tent of these delusions unsound, 
 they would have found in the affirmative. 
 
 It therefore becomes neclssary to consider 
 how far such a degree of unsoundness of 
 mind as is involved in the delusions under 
 which this testator labom'ed would be fatal 
 to testamentaiy capacity; in other words, 
 w liether delusions aris i ng from mental dis - 
 e ase, but not^ ca lculated to prevent the exer- 
 ci§e__ofjtEe_ facultl^^ _fisSfinH2lloTliIffiiWng 
 ol.j ^iU, or to interfere with the considera- 
 tion~^~niejn atters which should be weighed 
 an d tak en Jnt o account on such an occasion. 
 and whicii delusions had jil point nf fact, no . 
 infl uence whatever on the testamentary dis- 
 position in ques tion , nre siifRoient to dep rive 
 a_te stator of test amentar.y cap aci ty and to 
 i nvaliaate a wii iTT 
 
 We must ^^iime,-f or the n resent-purDose, 
 tliat_tMJ£Si9Jor_]^'i'ouEedjjndfixUJie-iasa^ 
 d elusions ascribed to him; __buti on the ntlipr 
 hand, th at these delusions' had not, no r were 
 c alculated to hajer -anv influ ence on him in 
 thP disposal of hifi -propertv ; and tha JL-lEre- 
 gppptivp of these delusions, the state of his 
 mental faculties was such as to render him 
 capable of maki ng a wil l. For, whatever 
 
 may have been the evidence as to general 
 insanity, the verdict of the jury, which there 
 was ample evidence to support, and in which 
 the learned judge who presided at the trial 
 states that he concurs, e stablishes that at 
 t\e tim e of making the will , irres pectiv,ely 
 of__iM_JMuMona_j:£faa:ed_Jl;Qt_jfee_testator 
 was sufRpjentiy i n possession Of his faculties . 
 Tlie question whether partial unsoundness, 
 not affecting the general faculties, and not 
 operating on the mind of a testator in re- 
 gard to the particular testamentary disposi- 
 tion, will be sufficient to deprive a person 
 of the power of disposing of his property, 
 presents itself here for judicial decision, so 
 far as we are aware, for the first tim e. It 
 is true that, in the case of Waring v. War- 
 ing,' the judicial committee of the privy 
 council, and, in the more recent case of 
 Smith V. Tebbitt,^ Lord Penzance, in the 
 court of probate, have laid down a doctri ne, 
 a ccording to which any degr e e of men tal/- 
 unsoundness, however slight, a nd how'evCT 
 unconnected with the testamentag 
 tion jn qnf;stion, mu st bi ^ Jeld fatal to/the 
 
 capacity of a testato r. But in both these 
 cases, as we shaU presently show, the wide 
 docti-ine embraced in the judgment / was 
 wliolly unnecessary to the decision, and 
 we therefore feel ourselves warranted, and 
 indeed bound, to consider the question as 
 one not concluded by authority, and on 
 which we are called upon to form our own 
 judgment. The question is one of equal im- 
 portance and difllculty, and we have given 
 it our best consideration. 
 
 The text-writers throw no liglit upon the 
 point. They content themselves with stating 
 in general terms that to be capable of mak- 
 ing a will a man must be of sound disposing 
 mind and memory, and that persons non 
 compotes cannot make a will; but they are 
 silent as to the degree of mental disturbance 
 which will amount to a want of disposing 
 mind and memory. The cases prior to War- 
 ing V. Waring, in which the law on the 
 subject of mental unsoundness, as affecting 
 the capacity to make a will, has come into 
 question, are by no means numerous. It 
 may be as well to pass them in review. 
 
 In Combes' Case,' it is said to have been 
 agreed by the judges, "that sane memory 
 for the making of a will is not always where 
 the party can in some things answer with 
 sense, but he ought to have judgment to 
 discern and to be of perfect memory, other- 
 wise the will is void." So, again, in the 
 Marquis of Winchester's Case,* "by the law, 
 it is not sufficient that the testator be of 
 memory, when he makes the will, to answer 
 familiar and usual questions, but he 'ought 
 to have a disposing memory, so as to be 
 able to make a disposition of his estate with 
 
 ' 6 Moore, P. C. 341. 
 
 » L. R. 1 Prob. Div. 398. 
 
 = Moore, 759; 8 Vin. Abr. p. 43, par. 22. 
 
 ♦6 Coke, 23. 
 
 213 
 
Case Ko. 49 
 
 BANKS V. GOODrELLOW. 
 
 (§§ 43. 44 
 
 understanding and reason." In the case of 
 Greenwood v. Greenwood," an action brought 
 to recover estates under a will, the validity 
 of which was disputed, the principal indica- 
 tion of insanity relied on being a strange 
 aversion on the part of the testator towards 
 his only brother, his heir at law, and 
 a gi'oundless suspicion of the latter hav- 
 ing attempted to poison him. Lord Kenyon, 
 in charging the jury, said: "I take it a mind 
 and memory competent to dispose of prop- 
 erty, when it is a little explained, perhaps 
 may stand thus:— having that degree of 
 recollection about him that would enable him 
 to look about the property he had to dis- 
 pose of, and the persons to whom he wished 
 to dispose of it. If he had a power of 
 summoning up his mind, so as to know 
 what his property was, and who those per- 
 sons were that then were the objects of 
 his bounty, then he was competent to make 
 his will." In other cases, such as the well- 
 known case of Dew v. Clark," the insane 
 delusion had a direct bearing on the provi- 
 sions of the will. In such cases, the de- 
 lusion being once proved, and its connection 
 with the will being ma nifpst, thpro r-nniri ho 
 no difficul t y in .setting aside the will . Cases 
 of this description afford little or no as- 
 sistance towards the solution of the question 
 before us. Again, other cases occurring pri- 
 or to the case of Waring v. Waring, such 
 as Attorney General v. Parnther,' and Cart- 
 wright V. Cartwright," had reference to the 
 effect to be given to a lucid interval at the 
 time of making the will, rather than to the 
 degree of mental unsoundness which would 
 constitute testamentary Incapacity. The 
 judgment in the latter case is, however, not 
 unworthy of -attention. The case was a re- 
 markable one, from the fact that the will 
 had been made by a person actually con- 
 fined in a lunatic asylum, and who was un- 
 doubtedly insane both before and after the 
 making of the will; nevertheless it was 
 upheld. Sir William Wynne, the then judge 
 of the prerogative court of Canterbury, in 
 giving judgment, uses language tending 
 strongly to show that, in his opinion, the 
 rationality of the act done affords an effectual 
 test of the mental capacity of the party do- 
 ing it. He says:° "I think the strongest 
 and best proof that can arise as to a lucid 
 interval is that which arises from the act 
 itself: that I look upon as the thing to be 
 'first examined, and if it can be proved and 
 established that it is a rational act rationally 
 done, the whole case Is proved. What can 
 you do more to establish the act? Because, 
 suppose you are able to show that the party 
 did that which appears to be a rational act. 
 
 " 3 Curt. Ecc. Append. XXX. 
 
 "3 Addams, Ecc. 79; Haggard's Report of 
 Judgment, (Hagg. Consist. 153). 
 
 '3 Brown, Ch. 441. 
 
 « 1 Phillim. Ecc. 90, 100. 
 
 ° 1 Phillim. Ecc, at page 100. 
 214 
 
 and it is his own act entirely, nothing is 
 left to presumption in order to piove a lucid 
 interval. Here is a rational act rationally 
 done. In my apprehension, where you are 
 able completely to establish that, the law 
 does not require you to go further, and the 
 citation from Swinburne states it to be so. 
 The manner he has laid it down is (it is in 
 the part " in which he treats of what per- 
 sons may make a wiU): 'If a lunatic person,, 
 or one that is beside himself at some times, 
 but not continually, make his testament, and 
 it is not known whether the same were 
 made while he was of sound mind and mem- 
 ory or no, then, in case the testament be so 
 conceived as thereby no argument of phrensy 
 or folly can be gathered. It is to be presumed 
 that the same was made during the time of 
 his calm and clear intermissions; and so 
 the testament shall be adjudged good, yea, 
 although it cannot be proved that the tes- 
 tator useth to have any clear and quiet in- 
 termissions at all, yet, nevertheless, I sup- 
 pose that If the testament be wisely and 
 orderly framed, the same ought to be ac- 
 cepted for a lawful testament.' Unquestion- 
 ably," Sir WiUiam Wynne continues, "there 
 must be a complete and absolute proof the 
 party who had so framed it did it without 
 any assistance. If the fact be so that he 
 has done as rational an act as can be, with- 
 out any assistance from another person, what 
 there is more to be proved, I don't know, 
 unless the gentlemen could prove by any 
 authority, or law, what the length of the 
 lucid interval is to be, whether an hour, a 
 day, or a month. I know no such law as 
 that. All that is wanting is, that it shoidd 
 be of sufficient length to do the rational act 
 intended. I look upon it, if you are able 
 to establish the fact that the act done is 
 perfectly proper, and that the party who 
 is alleged to ha»ve done it was free from 
 the disorder at the time, that is completely 
 sufficient." 
 
 Without going to the length of adopting to 
 its full extent what is here said aS to the 
 effect of the rational character of the will, 
 or at all saying that effect can be given to 
 the rationality of the disposition beyond that 
 which is due to it as evidence of the s:;nity 
 of the testator, we advert to this case and 
 the judgment of Sir Wuliam Wynne as show- 
 ing that a more indulgent view of the effect 
 of insanity, as affecting testamentary inca- 
 pacity, was then taken than has latterly pre- 
 vailed. 
 
 We come now to the case of Waring v. 
 Waring (since followed by that of Smith v. 
 Tebbitt) in which the doctrine now contend- 
 ed for on behalf of the plaintiff was for the 
 first time laid down. It may be shortly 
 stated thus: To-xi tinstitnte testamentary ca - 
 nncitv. sonndTipsa nf minrl ig indipppnanhlj 
 necessary. But th e mind, thnn p-h if , hna. va- 
 rious faculties, is one and i ndivisible._ -j:£-it- 
 
 " Swinb. Wills, pt. 2, § 3. 
 
?§ 43, 44) 
 
 BANKS V. GOODFEIXOW. 
 
 Case No. 40' 
 
 i s disordered in any one of these faculties, if 
 it Iflhnnrs under any dplnsir^n nrif'nf f''"'T< 
 s uch disorder, though its nthpr fa^nltips and 
 function? may r pniflin iindi s tnrbf ^il , it r anno t 
 be said to be sound . Such a mind is u n- 
 sound, and testamentary incapacity i s—ttie 
 necessary consequence . 
 
 As has already been obseryed, neither in 
 Waring y. Waring nor in Smith y. Tebbitt 
 was the doctrine thus laid doyrn in any de- 
 gree necessary to the decision. Both thes e 
 were cases of general, not of nartial, in- 
 sgjlity; in both the delusions were multifa- 
 rious, and Df the wildest and most irrational 
 character, abundantly indicating that th e 
 mind wns dispnsed throughout . In both there 
 was an insane suspicion or dislike of per- 
 sons who should haye been objects of af- 
 fection; aLd, what Is still more important, 
 in both it was palpable that the delusion s 
 must haye in flnp"ped thp tpstampnt^ry 'dis- 
 position impugned . In both these cases, 
 therefore, there existed ample grounds for 
 setting aside the wUl without resorting to 
 the doctrine in question. Unable to concur 
 in it, we haye felt at liberty to consider for 
 om'selves the principle properly applicable to 
 such a case as the present. We do not think 
 it necessary to consider the position assumed 
 in Waring v. Waring, that the mind is one 
 and indiyisible, or to discuss the subject as 
 matter of metaphysical or psychological in- 
 quiry. It is not given to man to fathom the 
 mystery of the human intelligence, ot to as- 
 certain the constitution of our sentient and 
 intellectual being. But whatever may be its 
 essence, every one must be conscious that 
 the faculties and fnnr.tinng nf thP mind are 
 various and distinct, as are the pnwprR and 
 Junctions of om- physical organizatio n. The 
 senses, the instincts, the affections, the pas- 
 sions, the moral qualities, the wUl, percep- 
 tion, thought, reason. Imagination, memory, 
 are so many distinct faculties or functions of 
 the mind. The pathology of mental disease 
 and the experience of insanity in its various 
 forms teach us that while, on the one hand, 
 all the faculties, moral and intellectual, may 
 be involved in one common ruin, as in the 
 case of the raving maniac, i n other instan ces 
 one_ or more only of these faculties or func - 
 ti ons m ay be dis ordered, while the r est are 
 I pft unimpaired and undisturbed :— that while 
 the mind may be overpowered by delusions 
 which utterly demoralize it and unfit it for 
 the perception of the true nature of sur- 
 roundmg things, or for the discharge of the 
 common obligations of life, tlieue-o£ten_ai:e, 
 o n the other ha nd, jgl usion s, which, though 
 the offspring of 'mentaI_disease_and_^o_far 
 c oTisj^lrrttng'TrrsaiTitv. vet leave tbe individual 
 i n all other resp p^ta rational, and capable 
 of transactin g thfi--ortUnax-y-affa''-s sfj\fl ful- 
 f illing the dutTe s^and-eteHg ationo inoi d e alal 
 to _ the vari ous relati ons of U f£. No doubt 
 when lelusions exist which have no fovinda- 
 tion iti reality, and spring only from a dis- 
 
 eased and morbid condition of the mind, to 
 that extent the mind must necessarily be 
 taken to be unsound; just as the body, if any 
 of its parts or functions is affected by local 
 disease, may be said to be unsound, though 
 aU its other members may be healthy, and 
 their powers or functions unimpaired. But 
 the question still remains, whether such par- 
 tial unsoundness of the mind, if it leaves the 
 ailjections, the moral sense, and the general 
 power of the understanding unaffected, and 
 is wliollv unconnected with the testamentary 
 dis position , sliouid hav e the effect of taking 
 away the testamentary capacity . 
 
 We readily concede that where a delusion 
 h as had, as in the case of Dew v. Clark," on 
 is c ^lciilntpd to have had, an influence onjt he 
 t estamentary disposit ion, i t must be iield t o 
 be fatal to i lS-jgaiidity. xnus it. as occurs 
 in a common form of monomania, a man is 
 under a delusion that he is the object of per- 
 secution or attack, and makes a will in 
 which he excludes a child for whom he ought 
 to have provided; though he may not have 
 adverted to that child as one of his supposed 
 enemies, it would be but reasonable to infer 
 that the Insane condition had Influenced him 
 in the disposal of his property. But,, in tfee 
 naap wp arp dpjilinp; with^-tha-del usion must 
 be taken neither to have had any influence 
 on the provisions of the wiU, nor to have 
 been capable of having any : and the ques- 
 tion is, whpthpr a dp lusion. thus wholly in - 
 nocuoas in its results as regards t iip disposi- 
 tion of flip will, is to he hpid to hnvp tlip ef- 
 f eet of destroying the capacity to rn fli-'p on p. 
 
 The state of our own authorities being 
 such as we have shown, we liave turned to 
 the jurisprudence of other countries, ais on a 
 matter of common jm'idical interest, to see 
 whether we could there find any assistance 
 towards the solution of the question. We 
 have, however, derived but little advantage 
 from the inquiry. The Roman law, the great 
 storehouse of juridical science, is as vague 
 and general on the subject as our own. The 
 madman (furiosus), and the person of defect-- 
 ive intelligence (mente captus), are declared 
 incapable of making a testament; but as to 
 what shall constitute madness or defective- 
 ness of intelligence, sufficient to prevent the 
 exercise of the testamentary right, the au- 
 thorities are silent. The continental codes 
 are equally general in their terms, simply 
 providing, either that persons mvist be of 
 sound mind to make a will, or that persons 
 of unsound mind shall be disabled from doing 
 so. The older writers appear not to have 
 been alive to the distinction between total 
 and partial unsoundness as affecting testa- 
 mentary capacity. In recent times, however, 
 the question has been mooted by eminent 
 and distinguished jurists, but unfortunately 
 with a marked discordance of opinion. M. 
 
 " 3 Addams, Ecc. 79, and Haggard's Re- 
 port of the Judgment, (1 Hagg. Ecc. 311.) 
 
 215 
 
Case No. 49 
 
 BANKS V. GOODFELLOW. 
 
 (§§ 43, 44 
 
 "Troplong, in his well-known work, "Le 
 Droit Civil Explique," " and M. Sacase, in a 
 treatise entitled "La Folie consideree dans 
 ses rapports avec la Capacite Civile," " have 
 sidopted the doctrine of the unity and indi- 
 visibility of the mind, and the consequent un- 
 -soundness of the whole if insane delusion 
 anywhere exist. Writers equally entitled to 
 respect have maintained the contrary view. 
 Legrand du Saulle, in a very able work, en- 
 titled "La Folie Devant les Tribunaux," " 
 •contends that "hallucinations are not a suf- 
 ficient obstacle to the power of making a 
 -will, if they have exercised no influence on 
 the conduct of the testator, have not altered 
 Ills natural affections, or prevented the ful- 
 filment of his social and domestic duties; 
 -while, on the other hand, the wiU of a per- 
 son affected by insane delusion ought not 
 to be admitted if he has disinherited his fam- 
 ily without cause, or looked on his relations 
 as enemies, or accused them of seeking to 
 poison him, or the like. In all such cases, 
 ■where the delusion exercises a fatal influ- 
 ence on the acts of the person affected, the 
 condition of the testamentary power fails: 
 the will of the party is no longer under the 
 guidance of reason, it becomes the creature 
 of the insane delusion." M. Demolombe, in 
 his great work, the "Cours de Code Napo- 
 leon," ^' M. Castlenau, in his treatise, "Sur 
 I'Interdlction des Alienes," and HofCbauer, in 
 his remarkable work on Medical Jurispru- 
 dence Relating to Insanity, have maintained 
 the docti'ine that monomania, or partial in- 
 sanity, not affecting the testamentary dispo- 
 sition, does not take away the testamentary 
 capacity. Mazzoni, in a recent work, enti- 
 tled, "Istituzioni di Dirltto Civile Italiano," " 
 lays it down that "monomania is not an un- 
 soundness of mind which absolutely and nec- 
 essarily takes away testamentary capacity, 
 as the monomaniac may have the perfect ex- 
 ercise of his faculties in respect of all sub- 
 jects beyond the sphere of the partial de- 
 rangement." 
 
 None of these writers, however, have gone 
 very deeply into the subject, or considered it 
 with reference to the principles on which 
 mental alienation should be held to form a 
 ground for taking away testamentary capaci- 
 ty. The older jurists were content to say 
 that an insane person was incapable of mak- 
 ing a testament because he has no mind, 
 •"quia mente caret," as it is said in the In- 
 stitutes;" or because he could not have a 
 -will, and therefore was incapable of declar- 
 ing his ultimate will as to the disposal of 
 Ills property— positions obviously unsatisfac- 
 
 " Commf ntaire sur les Donations entre Vifs 
 et Testaments, torn. 2, §§ 451-457. 
 
 "Page 10. 
 
 "Page 146. 
 
 '". T^aite des Donations entre Vifs et Testa- 
 ments, liv. 3, tit. 2, c. 2, § 339, vol. 1, p. 369. 
 
 " Liv. 3, tit. 2, § 3. 
 
 "' Inst. lib. 2, tit. 12, § 1. 
 
 216 
 
 tory when the fact becomes recognized that 
 a man may labour under harmless delusions, 
 which leave the other faculties of his mind 
 unaffected, and leave him free to make a 
 disposition of his property uninfluenced by 
 their existence. In our day the doctrine has 
 sprung up of the unity and indivisibility 
 of the mind, but the gi-ound on which 
 insanity should cause incapacity appears to 
 have been overlooked in the reasoning on 
 which it is founded. It is important to re- 
 call it. , 
 
 The law of every civilized people concedes 
 to the owner of property the right of deter- 
 mining by his last wiU, either in whole or in 
 part, to whom the effects which he leaves 
 behind him shall pass. Yet it is clear that, 
 though the law leaves to the owner of prop- 
 erty absolute freedom in this ultimate dis- 
 posal of that of which he is thus enabled to 
 disjTose, a moral responsibility of no ordi- 
 nary importance attaches to the exercise of 
 the right thus given. The instincts and af- 
 fections of mankind, in the vast majority of 
 instances, will lead men to make provision 
 for those who are the nearest to them in kin- 
 dred and who in life have been the objects 
 of their affection. Independently of any 
 law, a man on the point of leaving the world 
 would natui-ally distribute among his chil- 
 dren or nearest relatives the property which 
 he possessed. The same motives will in- 
 fluence him in the exercise of the right of 
 disposal when secured to him by law. Hence 
 arises a reasonable and well warranted ex- 
 pectation on the part of a man's kindred 
 surviving him, that on his death his effects 
 shall become theirs, instead of being given 
 to strangers. To disappoint the expectation 
 thus created and to disregard the claims of 
 kindred to the inheritance is to shock the 
 common sentiments of mankind, and to vio- 
 late what all men concur in deeming an obli- 
 gation of the moral law. It cannot be sup- 
 posed that, in giving the power of testament- 
 ary disposition, the law has been framed in 
 disregard of these considerations. On the 
 contrary, had they stood alone, it is proba- 
 ble that the power of testamentary disposi- 
 tion would have been withheld, and that the 
 distribution of property after the owner's 
 death would have been uniformly regulated 
 by the law itself. But there are other con- 
 siderations which tui-n the scale in favoiu' of 
 the testamentary power. Among those, who, 
 as a man's nearest relatives, would be enti- 
 tled to share the fortune he leaves behind 
 him, some may be better provided for than 
 others; some may be more deserving than 
 others; some from age, or sex, or physical 
 infirmity, may stand in greater need of as- 
 sistance. Friendship and tried attachment, 
 or faithful service, may have claims that 
 ought not to be disregarded. In the power 
 of rewarding dutiful and meritorious con- 
 duct; paternal authority finds a useful aux- 
 iliary; age secures the respect and attentions 
 
§§ 43, 44) 
 
 BANKS V. GOODFELLOW. 
 
 Case No. 49 
 
 which are one of its chief consolations. As 
 was truly said by Chancellor Kent, in Van 
 Alst V. Hunter:" "It is one of the painful 
 consequences of extreme old age that it 
 ceases to excite interest, and is apt to be 
 left solitary and neglected. The control 
 which the law still gives to a man over the 
 disposal of his proijerty is one of the most 
 efficient means which lie has in protracted 
 life to command the attentions due to his 
 infirmities." For these reasons the power of 
 disposing of property in anticipation of 
 death has ever been regarded as one of the 
 most valuable of the rights incidental to 
 property, while there can be no doubt that 
 it operates as a useful incentive to industry 
 in the acquisition of wealth, and to thrift and 
 frugality in the enjoyment of it. The law of 
 every country has therefore conceded to the 
 owner of property the right of disposing by 
 will either of the whole, or, at all events, of 
 a portion, of that which he possesses. The 
 Roman law, and that of the continental na- 
 tions which have followed it, have secm'ed 
 to the relations of a deceased person in the 
 ascending and descending line a fixed por- 
 
 l eaves everythm g to _the u nfettered discre- 
 tion of the testator^ on the assum ption that, 
 t hou^^in some instances, caprice',"6r gassion , 
 or~the~powerof new "tie g."or artfiir contriv- 
 ance, or sinister influence, may lead to th e 
 neglect of claims that ought to be a tfehded 
 to._ Yet, the instinctsr affections,. a nd*coSimon 
 sentiments of mankind may be safely trugf - 
 ed to s ecure, on the who le, a better disposi- 
 tion oic^ the property of the dead. a n dTone 
 mofe a^cm-ately acljusted to the requlFemeSEs 
 of each particular case, than , . C(; ^Tiig Jq"^- 
 taine S" througjL a "distribution prescribed by 
 the ste reotyped and inflexib le rules of a ge n- 
 er al law . 
 
 ''~lt Is unnecessary to consider whether the 
 principle of the foreign law or that of our own 
 is the wiser. It is obvious, In either case, that 
 to the due exercise of a power thus involving 
 moral responsibility, the possession of the in- 
 tellectual and moral faculties common to our 
 natm-e shovdd be insisted on as an Indispensa- 
 ble condition. It is essential to the exercis e 
 of such a power' th at a. testator shall under- 
 stand the nature of the act and its effects : 
 slial L understand the extent of the property 
 ofwhich he is disposing; shi^li bp nblp tn 
 c omprehend and annreciate the, rlaims to 
 which he ought to give effect^ flnd, With-a 
 vipyr tn the latter ob ject, that no disordei Li)f 
 thP mind sh-ill poison his affections nervert 
 t,ic, f.^^r^a r,f pifrht or prPTPTit the exercise of 
 his natural facultie s— that ao insane delu- 
 si on shairin iauen£.e"his will in dLsnasiniiw^f 
 h is property a nfi bring about a. rlisnosnl of 
 it whiclu if the mind had ben n sr.nnd, wnnlrl 
 n ot have b egiumade. 
 
 Here, then, we have the measure of the 
 delves of mental power which should be in- 
 
 •' 5 JohQS. Ch., at page 159. 
 
 sisted on. If the human instincts and af- 
 fections, or the moral sense, become per- 
 verted by mental disease; if insane sus- 
 picion, or aversion, take the place of natural 
 affection; if reason and judgment are lost, 
 and the mind becomes a prey to insane de- 
 lusions calculated to interfere with and dis- 
 tiu-b its functions, and to lead to a testa- 
 mentary disposition, due only to their bane- 
 ful influence— in such a case it Is obvious 
 that the condition of the testamentary pow- 
 er falls, and that a will made under such cir- 
 cumstances ought not to stand. But what 
 If the mind, though possessing sufficient pow- 
 er, undisturbed by frenzy or delusion, to take 
 Into account all the considerations necessary 
 to the proper making of a will, should be 
 subject to some delusion, but such delusion 
 neither exercises not is calculated to exer- 
 cise any influence on the particular disposi- 
 tion, and a rational and proper will is the 
 resvflt; ought we, in such case, to deny to 
 the testator the capacity to dispose of his 
 property by will? 
 
 It must be borne in mind that the absolute 
 and uncontrolled power of testamentary dis- 
 position conceded by the law is founded on 
 the assumption that a rational will is a bet- 
 ter disposition than any that can be made 
 by the law itself. If therefore, though men- 
 tal disease may exist, it presents itself in 
 such a degree and form as not to Interfere 
 with the capacity to make a rational dis- 
 posal of property, why, it may be asked, 
 should it be held to take away the right? It 
 cannot be the object of the legislator to ag- 
 gravate an affliction in itself so great by the 
 deprivation of a right the value of which is 
 universally felt and acknowledged. If it be 
 conceded, as we think it must be, that the 
 only legitimate or rational ground for v.eny- 
 ing testamentary capacity to persons of un- 
 sound mind is the inability to tate Into ac- 
 count and give due effect to the considera- 
 tions which ought to be present to the 
 mind of a testator In making his will, and to 
 influence his decision as to the disposal of 
 his property, it follows that a degree or form 
 of unsoundness which neither disturbs the 
 exercise of the faculties necessary for such 
 an act, nor is capable of influencing the re- 
 sult, ought not to take away the power of 
 making a will, or place a person so circum- 
 stanced In a less advantageous position than 
 others with regard to this right. 
 
 It may be here not unimportant to advert 
 to the law relating to unsoundness of mind 
 arising from another cause — namely, from 
 want of Intelligence occasioned by defective 
 organization, or by supervening physical in- 
 firmity or the decay of advancing age, as 
 distinguished from mental derangement, 
 such defect of intelligence being equally a 
 cause of incapacity. In these cases it is 
 admitted on all hands that though the men- 
 tal power may be reduced below the ordi- 
 nary standard, yet if there be sufficient in- 
 telligence to understand and appreciate the 
 
 217 
 
Case jSTo. 49 
 
 BANKS V. GOODFELLOW. 
 
 (i?§ 43. 44 
 
 testamentary act in its different bearings, 
 the power to make a will remains. It is 
 enough if, to use the words of Sir Edward 
 Williams, in his work on Executors, "the 
 mental faculties retain sufficient strength 
 fully to comprehend the testamentary act 
 about to be done." '" "Non sani tantum," 
 says Voet in his Commentary on the Pan- 
 dects,-" founding himself on the language of 
 the Code, bk. 6, tit. 23, 1. 15, "sed et in agone 
 mortis positi, seminece ac balbutiente lingua 
 voluntatem promentes, recte testamenta con- 
 dunt, si modo mente adhuc valeant." 
 
 This part of the law has been extremely 
 well treated in more than one case in the 
 American courts. 
 
 In the case of Harrison v. Rowan,-' in the 
 United States circuit court for the district 
 of New Jersey, the law was thus laid down 
 by the presiding judge: "As to the testator's 
 capacity, he must, in the language of the 
 law, have a sound and disposing mind and 
 memory. In other words, he ought to be 
 capable of making his will with an under- 
 standing of the nature of the business in 
 which he is engaged, a recollection of the 
 property he means to dispose of, of the per- 
 sons who are the objects of his bounty, and 
 the manner In which it is to be uistributed 
 between them. It is not necessary that he 
 should view his will with the eye of a 
 lawyer, and comprehend its provisions in 
 their legal form. It is sufficient if he has 
 such a mind and memory as will enable him 
 to understand the elements of which it is 
 composed, and the disposition of his prop- 
 erty in its simple forms. In decid ini g-UPo n 
 thejaaaslty ^the_ testator to make hjs will, 
 it is the_ sound ness ofthe mind._an d notttie 
 partic ular sla te3f_the bodily Tealth, that is 
 to_5Hl[sJiended^Jojthelatter may~EeTn~^ 
 state of extreme imbecility, and yet he may 
 possess sufficient understanding to direct 
 how his property shall be disposed of; his 
 capacity may be perfect to dispose of his 
 p roperty by will, and yet v ^ry inadequate to 
 t hejaanagement of ot ha- busInessT^sTTor 
 i nstance, to ma ke contractsToFDie purchase 
 or sale of propeity : For, "mosF nien, at dif- 
 ferent periods of their lives, have meditated 
 upon the subject of the disposition of their 
 property by will, and when called upon to 
 have their intentions committed to writing, 
 they find much less difficulty in declaring 
 their intentions than they could in compre- 
 hending- business in some measure new." 
 
 In the case of Den v. Vancleve -'' the law 
 was thus stated: "By the terms 'a sound 
 and disposing mind and memory' it has not 
 been understood that a testator must possess 
 these qualities of the mind in the highest de- 
 
 " 1 Williams, Ex'rs, (6th Ed.) p. 37, note.* 
 
 '" Lib. 28, tit. 1, § 36. 
 
 f 3 Wash. C. C, at page 585, Fed. Cas. No. 
 6,'141, referred to in Sloan v. Maxwell, 3 N J 
 Eq., at page 570. 
 
 '" 5 N. J. Law, at page GGO. 
 
 218 
 
 gree; otherwise, very few could make testa- 
 ments at all; neither has it been understood 
 that he must possess them in as great a de- 
 gree as he may have formerly done; for even 
 this would disable most men in the decline 
 of life; the mind may have been in some de- 
 gree debilitated, the memory may have be- 
 come in some degree enfeebled; and yet 
 there may be enough left clearly to discern 
 and discreetly to judge, of all those things, 
 and all those circumstances, which enter into 
 the natui-e of a rational, fair, and just tes- 
 tament. But if they have so far failed as 
 that these cannot be discerned and judged 
 of, then he cannot be said to be of sound 
 and disposing mind and memory." 
 
 In the subsequent case of Stevens v. Van- 
 cleve^ it is said: "The testator must, in the 
 language of the law, be possessed of sound 
 and disposing mind and memory. He must 
 have memory; a man in whom the faculty is 
 totally extinguished cannot be said to pos- 
 sess understanding to any degree whatever, 
 or for any purpose. But his memory may be 
 very imperfect; it may be greatly impaired 
 by age or disease; he may not be able at all 
 times to recollect the names, the persons, or 
 the families of those with whom he had 
 been intimately acquainted; may at times 
 ask Idle questions, and repeat those which 
 had before been asked and answered, and 
 yet his understanding may be sufficiently 
 sound for many of the ordinary transactions 
 of life. He_fflay notjiave suffi cient strengt h 
 of mem ory and yigOTir_ of intellect to make 
 andJo'flT^gFaTlJ-he part^jvf a pontract. and 
 yet be competen t to direct the distribution 
 Qf^isproperty_by__will. This is a subject 
 which he~may possTwy^have often thought 
 of, and there is probably no person who has 
 not arranged such a disposition In his mind 
 before he committed it to writing. The ques- 
 tion is not so much what was the degree of 
 memory possessed by the testator? as this: 
 Had he a disposing memory? was he capable 
 of recollecting the property he was about to 
 bequeath; the manner of distributing it; and 
 the objects of his bounty? To sum up the 
 whole in the most simple and intelligible 
 form, were his mind and memory sufficiently 
 sound to enable him to know and to under- 
 stand the business in which he was engaged 
 at the time he executed his will?" 
 
 This view of the law is fully adopted by 
 the court in the case of Sloan v. Maxwell,'* 
 and is there stated to have been approved 
 by Chancellor Vroom in a case as to the will 
 of Tace Wallace, which, however, is not re- 
 ported. It appears to have had the sanction 
 of Chancellor Kent, in the case of Van Alst 
 V. Hunter, already referred to. 
 
 In a case of Harwood v. Baker, ^ before 
 the judicial committee of the privy council, 
 
 == 4 Wash. C. C, at page 267, Fed. Cas. No. 
 13,412. 
 
 =* 3 N. J. Eq. 563. 
 
 "3 Moore, P. C. 282. 
 
^§ 43, 44) 
 
 BANKS V. GOODFELLOW. 
 
 Case No. 4'J 
 
 in which case a will had been executed by 
 a testator on his deathbed, in favour of his 
 second wife, to the exclusion of the other 
 members of his family, he being in a state 
 of weakened and impaired capacity from 
 disease producing torpor of the brain, and 
 rendering his mind incapable of exertion un- 
 less roused, Erskine, J., delivered the judg- 
 ment of the court in these terms: ^'' "Their 
 lordships are of opinion that, in order to 
 
 constitute a sound disposing mind, a testator 
 must not only be able to understand that 
 he is by his will giving the whole of his 
 
 property to one object of his regard, but he 
 tnust also have canacitv to comprehend the 
 extent of his property, and the natm'e of 
 
 the claims of others, whom by his will he 
 is excluding from all participation in that 
 
 property^ and that the protection of the 
 law is in no cases more needed than it is in 
 those where the mind has been too much 
 enfeebled to comprehend more objects than 
 
 one; and mor e especi ally, when that one 
 qbject^ay De so rorced upon the attention 
 of the invaIig""asTo shut out all "others that 
 might r equire consideration. ISJaA, there- 
 fore, the question which their lordships pro- 
 pose to decide in this case is, not whether 
 Mr. Baker knew, when he executed this will, 
 that he was giving all his property to his 
 wife, and excluding all his other relations 
 from any share in it, but whether he wa s at 
 that time p.npnbl e of recnll pftitif^ Tyhn thnsp 
 relations were, of understanding their re - 
 spective claims upon his regard and bounty , 
 
 and nf f1p1ihpratp1;g fnrrnjnpr a n intelligen t 
 
 purpose of excluding them from a ny share 
 of his property . If he ha,d~not t he capacity 
 '!gnJl!".'''^'1i ^^<^ propriet y ~ot the aispositio n 
 mad e by the will is a matter of no impo r- 
 t ance. Tf-ha-lmd it, th p injustice of the ex- 
 clnsinn wnnid not gffppt the validity of n^p 
 disposition, thon p;!^ thp justice or inj iisticp 
 of the disposition might cast down some 
 light upon the nne.stion ns to his rnp acitv " 
 
 From this language it is to be inferred 
 that the standard of capacity in cases of 
 impaired mental power is, to use the words 
 of the judgment, the capacity on the part 
 of the testator to comprehend the extent 
 of the property to be disposed of, and the 
 nature of the claims of those he is exclud- 
 ing. Why should not this standard be also 
 applicable to mental unsoundness produced 
 by mental disease? 
 
 It may be said that the analogy between 
 the two cases is imperfect; that there is 
 an essential difference between unsoundness 
 of mind arising from congenital defect, or 
 supervening infirmity, and the perversion of 
 thought and feeling produced by mental dis- 
 ease, the latter being far more likely to give 
 rise to an inoffiHons will than the mere de- 
 ficiency of mental power. This is, no doubt, 
 true, but it becomes immaterial on the hy- 
 pothesis that the disorder of the mind has 
 
 " 3 Moore, P. C, at page 291. 
 
 left the faculties on which the proper ex- 
 ercise of the testamentary power depends, 
 unaffected, and that a rational will, unin- 
 fluenced by the mental disorder, has been 
 the result. 
 
 It is said, indeed, by those who insist that 
 any degree of unsoundness should suffice to 
 take away testamentary capacity, that 
 where insane delusion has shown itselif, it 
 is always possible, and indeed may be as- 
 sumed to be probable, that a greater degree 
 of mental unsoundness exists than has ac- 
 tually become manifest. But tliis view, 
 which is by no means universally admitted, 
 is unsupported by proof, -and must be looked 
 upon as matter of speculative opinion. It 
 seems unreasonable to deny testamentary 
 capacity on the speculative possibility of 
 , unsoundness which has failed to display it- 
 self, and which, if existing in a latent and 
 undiscovered form, would be little likely to 
 have any influence on the disposition of the 
 will. No doubt, where the fact that the 
 testator has been subject to any insane de- 
 lusion is established, a will should be re- 
 garded with great distrust, and every pre- 
 sumption should in the first instance be 
 made against it. Where insane delusion has 
 once been shown to have existed, it may be 
 difficult to say whetlier the mental disorder 
 may not possibly have extended beyond the 
 particular form or instance in which it has 
 manifested itself. It may be equally diffi- 
 cult to say how far the delusion may not 
 have influenced the testator in the particular 
 disposal of his property. And the presump- 
 tion against a will made under such cir- • 
 cumstances becomes additionally strong 
 where the will is, to use the term of the 
 civilians, an inofficious one, that is, to say . 
 one in which nat ural affection and the 
 claims of near relationship hav e bee" dis- 
 regarded. But where in the result a jury 
 are satisfied that the delusion has not affect- 
 ed the general faculties of the mind, and 
 can have had no effect upon the wiU, we 
 see no sufficient reason why the testator 
 should be held to have lost his right to make 
 a will, or why a will made under such cir- 
 cumstances should not be upheld. Such an 
 inquiry may involve, it is true, considerable 
 difficulty, and require much nicety of dis- 
 crimination, but we see no reason to think 
 that it is beyond the power of judicial in- 
 vestigation and decision, or may not be dis- 
 posed of by a jury directed and guided by 
 a judge. In the case before us two delu - 
 sions distnrherl the mi^id of the testator, th e 
 one that he was pursued by spirits, the othe r 
 t hat a man lon g since dead came persona lly 
 tojiol est h im. Neither of these delusion s— 
 tlie_jiead_man_not_having _beenjn any wa y 
 c onnected with h im— had, o r could have ha d 
 an y influence upon him in disposing of his 
 property. The will, though in oiie sense an 
 idle one, inasmuch as the object of his boun- 
 ty was his heir at law, and therefore would 
 have taken the property without its being 
 
 219 
 
Case Is'o. 49 
 
 BANKS V. GOODFELLOW. 
 
 (§§ 43. 44 
 
 devised to her, was yet rational in this, that 
 It was made in favoui- of a niece, wlio lived 
 with him, and who was tTie object of his 
 affection and regard. And we must talie it 
 on the finding of the jury that irrespectively 
 of the questions of these dormant delusions, 
 the testator was in possession of his facul- 
 ties when the will was executed. 
 
 Under these circumstances, we see no 
 ground for holding the will to be invalid. 
 If, indeed, it had been possible to connect 
 the dispositions of the wiU with the delusions 
 of the testator, the form in which the case 
 was left to the jury might have been open 
 to exception. It may be, a s was contend ed 
 ■ on the part of the plainti ff Tthat in a case p f 
 unsoundness, founded on ^dpliisinn, hntyghj^^Vi 
 delusion was not manifest, "t thA tinrifi t)f | 
 Tnaking the will, it is a question for th e 
 jury whether the del usi on was not j atent 
 in the mind of the testator. But, then, f or 
 the reasons we have g iven in the course of 
 this judgment, we a re of opinion that a 
 jury should be told, Tnsiich a case, that the 
 exiatf^nf^ e Of a del nR'""", ''"mnatible with the 
 r etention of the general powers and facul- 
 t ies of the mind, will not be sufficient to 
 ■o xerthrow the will, unless it were such as 
 was calculated J o infl^jen ce the testator in | 
 mailing it. This, in effect, disposes of the 
 question of misdirection. As, for the rea- 
 sons we have given, we are of opinion that 
 if the testator was, at the time of making 
 the will, of capacity to make a will as de- 
 fined by the learned judge, the existence 
 ■of mental disease, if latent, so as to leave 
 ■him free from the consciousness and influ- 
 ence of delusion, there having been a total 
 absen ce of all connection between the dg- 
 lugiai L and the wiU , would not overthrow 
 the will, it follows that there can have been, 
 
 220 
 
 practically speaking, no misdirection in not 
 leaving the question of latent delusion to the 
 jury. Where delusions are of such a nature 
 as is calculated to influence the testator in 
 making the particular disposition, as was 
 the case of Waring v. Waring and In Smith 
 V. Tebbitt, a jury would not in general be 
 justified in coming to the conclusion that 
 the delusion, still existing, was latent at 
 the time, so as to leave the testator free 
 from any influence arising from It; but in 
 the present case the disposition was qu ite 
 unconnected with the a eiusion sj and con- 
 sequently there is no reason to suppose that 
 the omission to call the attention of the 
 jury to this specifically can have affected 
 the verdict. Looking' to the evidence given 
 on the trial, and to the verdict of the jm-y, 
 it appears to us that if this case were sub- 
 mitted to another jury, whatever they might 
 flnd as to the existence of latent delusion, 
 their decision must be in favour of the will 
 as to the absence of all connection betwepn 
 the delusions and the disposition made by 
 the testator. It would, consequently, be 
 worse than useless to put the parties to the 
 expense of a new trial, when in our judg- 
 ment the only proper or possible result 
 must be a second verdict establishing the 
 WiU. 
 Rule discharged. 
 
 NOTE. The view of Lord Brougham in 
 Waring v. Waring, 6 Moore, P. C. 341, that 
 partial insanity is inconsistent with mental 
 soundness on any subject, is rejected in Banlis 
 V. Goodfellow; and the view now maintains 
 that partial insanity not connected with the 
 disposition in question will not invalidate it. 
 Hall, V. C, in Jenkins v. Morris, 14 Ch. Div. 
 674. See, also, Smee v. Smee, 5 Prob. Div. 
 84, ante; Dew v. Clark, 3 Addams, Ecc. 79; 
 and Ex parte Holyland, 11 Ves. 10. 
 
§§ 45. 115) 
 
 BOUGHTON V. KNIGHT. 
 
 Case No. 50' 
 
 BOUGHTON et al. v. KNIGHT et al. 
 
 (L. R. 3 Prob. & Div. 64.) 
 
 Court of Probate. March 31, 1873. 
 
 The plaintiffs, Sir Charles Boughton and 
 Mr. Marston, propounded the will of John 
 Knight, of Henley Hall, Shropshire, dated 
 the 27th of Januai-y, 1869. The deceased 
 died on the 7th of September, 1872. The de- 
 fendants, the sons of the deceased, pleaded 
 that the deceased was not of sound mind, 
 memory, and understanding on the 27th of 
 January, 1869, the day the will bears date. 
 Issue was joined on this plea. The property 
 of the deceased consisted of the Henley Hall 
 estate, the net rental value of which was 
 £1,500 per annum, and personalty to the value 
 of £02,000. By the will propounded Sir 
 Charles Boughton and his sons were the dev- 
 isees of the whole real estate; the testa- 
 tor's son, James Thomas, had a legacy of 
 £8,000, his son Charles £7,000, and John a 
 life interest in £10,000. The children of his 
 deceased daughter, Henrietta Kent, were not 
 mentioned in the will. 
 
 The trial extended over fourteen days in 
 March, 1872, before Sir J. Hannen and a 
 special jury. 
 
 Parry, Serjt., Day, Q. C, and Inderwick, 
 for plaintiffs. Sir J. B. Karslalie, Q. C, H. 
 Lloyd, Q. C, Dr. Swabey, and C. A. Middle- 
 ton, for defendants. 
 
 SIR J. HANNEN, in summing up, made 
 the following observations on the subject of 
 testamentary capacity: The sole question in 
 this case which you have to determine is, 
 in the language of the record, whether Mr. 
 John Knight, when he made his will on the 
 27th of January, 1869, was of sound mind, 
 memory, and understanding. In one sense, 
 the first phrase, "sound mind," covers the 
 whole subject; but emphasis is laid upon two 
 particular functions of the mind, which must 
 be sound in order to create a capacity for 
 the making a will; there must be a, memory to 
 recall the several persons who may be fit- 
 ting objects of the testator's bounty, and an 
 tmderstanding to comprehend their relation- 
 ship to himself and their claim upon him. 
 But for convenience the phrase "sound mind" 
 may be adopted, and it is the one I shall 
 make use of throughout my observations. 
 Now you win naturally expect from me a defi- 
 nition, or at any rate an explanation of the 
 legal meaning of the words "sound mind," 
 and I will endeavour to give you such as- 
 sistance as I am able, either from my own 
 refiections on the subject, or by the aid of 
 what has been said by other judges, whose 
 duty it has been to consider this important 
 question before me. I must commence, how- 
 ever, by telling you what these words do 
 not mean. They do not mean a perfectly 
 balanced mind. If so, which of xis would be 
 competent to make a willV Such a mind 
 would be free from all influence of preju- 
 
 dice, passion, and pride. But the law does- 
 not say that a man is incapacitated from 
 making a will if he proposes to make a dis- 
 position of his property moved by capricious, 
 frivolous, mean or even bad motives. We 
 do not sit here to correct injustice in that 
 respect. Our duty is limited to this: to take 
 care that that, aaid that only, which is the 
 true expression of a man's real mind, shall 
 have effect given to it as his will. In fact, 
 this question of justice and fairness in the 
 making of wills in a vast majority of cases 
 depends upon such nice and fine distinctions 
 that we cannot form, or even fancy that we 
 can form, a just estimate of them. Accord- 
 ingly, by the law of England, every one is 
 left free to choose the person upon whom lie 
 will bestow his property after death, entire- 
 ly unfettered in the selection he may think 
 proper to make. He may disinhei-it, either 
 whoUy or partially, his children, and leave 
 his property to strangers to gratify his spite, 
 or to charities to gratify his pride, and wp 
 must give effect to his wiU, however much 
 we may condemn the course he has pursued. 
 In this respect the law of England differs 
 from that of other countries. It is thought 
 better to risk the chance of an abuse of the 
 power arising from such liberty than to de- 
 prive men of the right to make such a selec- 
 tion as their knowledge of the characters, 
 of the past history and future prospects of 
 their children or other relatives may demand, 
 and we must remember that we are here to 
 administer the law of England, and we must 
 not attempt to correct its application in a 
 particular case by knowingly deviating from 
 it. I have said that we have to take care 
 that effect is given to the expression of the 
 true mind of the testator, and that, of course, 
 Involves a consideration of what is the 
 amount and quantity of intellect which is 
 requisite to constitute testamentary capacity. 
 I desire particularly now, and throughout 
 the consideration which you will have to 
 give to this case, to impress upon your mincsi 
 that, in my opinion, this is eminently a prac 
 tical question, one in which the good sensj 
 of men of the world is called into action, 
 and that it does not depend solely on scien- 
 tific or legal definition. It is a question of 
 degree to bo solved in each pai'ticular case 
 by those gentlemen who fulfill the ofiice 
 which you have now imposed on you, and on 
 this point for accuracy I should wish to 
 quote the words themselves of Lord Cran- 
 worth in Boyse v. Rossborough:' "On the 
 first head the difficulty to be grappled with 
 arises from the circumstance that the ques- 
 tion is almost always one of degree. There 
 is no difficulty in the case of a raving mad- 
 man or a drivelling idiot in saying that he 
 is not a person capable of disposing of prop- 
 erty; but between such an extreme case and 
 that of a man of perfectly sound and vigor- 
 ous understanding, there is every shade of 
 
 •6H. L. Cag. 45, 
 
 221 
 
€ase No. 50 
 
 BOUGHTON «. KNIGHT. 
 
 (§§ 45, 115 
 
 intellect, every degi-ee of mental capacity. 
 There is no possibility of mistaking midnight 
 for noon, but at what precise moment twi- 
 light becomes darkness is hard to determine." 
 In considering the question, therefore, of de- 
 gree, large allowance must be made for the 
 idifCerence of individual character. Eccen- 
 tricities, as they are commonly called, of 
 manner, of habits of life, of amusements, of 
 dress, and so on, must be disregarded. If 
 a. man has not contracted the ties of domestic 
 life, or if, unhappily, they have been severed, 
 a wide deviation from the ordinai-y type may 
 be expected, and if a man's tastes induce 
 him to withdraw himself from intercourse 
 with friends and neighbours, a still wider 
 divergence from the ordinary type may be 
 •expected. We must not easily assume that 
 because a man indulges his humours in un- 
 accustomed ways that he is therefore of 
 unsound mind. We must apply some other 
 test than whether or not the man is very 
 different from other men. Now the test 
 which is usually applied, and which in al- 
 most every case is found sufficient, is this: 
 Was the man labouring under delusion? If 
 lie laboured under delusion, then to some 
 extent his mind must be unsound. But 
 though we have thus narrowed the ground, 
 we have not got free altogether from diffi- 
 culty, because the question still arises. What 
 is a delusion? On this subject an eminent 
 Judge who formerly presided in the court, the 
 jurisdiction of which is now exercised here, 
 Sir J. NichoU, in the famous case of Dew 
 V. Clark,^ says: "One of the counsel (Dr. 
 Lushington) accurately expressed it; it is 
 only the belief of facts which no rational per- 
 son would have believed that is Insane delu- 
 sion." Gentlemen, in one sense, that is argu- 
 ing in a circle, for, in fact, it is only saying that 
 a man is not rational who believes what no ra- 
 tional man would believe; but, for practical 
 purposes, it is a sufficient definition of a de- 
 lusion, for this reason— that you must re- 
 member that the tribunal that is to deter- 
 mine the question (whether judge or jury), 
 must, of necessity, take his own mind as the 
 standard whereby to measure the degree of 
 intellect possessed by another man. You 
 must not arbitrarily take youi- own mind as 
 the measure, in this sense, that you should 
 say, I do not believe such and such a thing, 
 and therefore the man who does believe it 
 is insane. Nay, more, you must not say, I 
 should not have believed such and such a 
 thing, therefore the man who did believe it 
 is insane. But you must of necessity put to 
 yourself this question and answer it: Can I 
 understand how any man in possession T)f 
 lis senses could have believed such and such 
 a thing? And if the answer you give is, I 
 cannot understand it, then it is of the neces- 
 sity of the case that you should say the man 
 is not sane. Sir J. Nicholl, in another pas- 
 
 'Reported by Haggard, London, 182C, p 7: 
 d Addams, Ecc. 79. > f- •> 
 
 sage,' gives what appears to me to be a more 
 logical and precise definition of what a de.u- 
 sion is. He says: "The true criterion, Ihe 
 true test, of the absence or presence of in- 
 sanity I take to be the absence or presence of 
 what, used In a certain sense of it, is com- 
 prisable in a single term, namely, delusion. 
 Wherever the patient once conceives some- 
 thing extravagant to exist which has still 
 no existence whatever but in his own heated 
 imagination, and wherever at the same time, 
 having once so conceived, he is incapable of 
 being, or at least of being permanently rea- 
 soned out of that conception, such, a patient 
 Is said to be under a delusion in a peculiar 
 half technical sense of the term; and the ab- 
 sence or presence of delusion so imderstood 
 forms, in my judgment, the true and only 
 test or criterion of absent or present Ins-an- 
 Ity. In short, I look upon delusion, in this 
 sense of it, and Insanity to be almost, if lo 
 altogether, convertible terms, so that a pa- 
 tient under a delusion, so understood, on any 
 subject or subjects in any degree is, for that 
 reason, essentially mad or Insane on such sub- 
 ject or subjects in that degree." I believe 
 you will find that that test applied will solve 
 most, if not all, the difficulties which arise 
 in investigations of this kind. Now, gentle- 
 men, of course there is no difficulty in deal- 
 ing with cases of delusion of the grosser 
 kind of which we have experience in this 
 court Take the case of Mrs. Thwaites 
 (Smith V. Tebbltt). * If a woman believes that 
 she is one of the persons of the Trinity, and 
 that the gentleman to whom she leaves the 
 bulk of her property is another person of 
 the Trinity, what more need be said? But 
 a very different question no doubt arises 
 where the nature of the delusion which is 
 said to exist is this,— when it is alleged 
 that a totally false, unfounded, unreason- 
 able, because unreasoning, estimate of another 
 person's character is formed. That is nec- 
 essarily a more difficult question. 
 
 It is unfortunately not a thing unknown 
 that parents—and in justice to women I am 
 bound to say it is more frequently the case 
 with fathers than mothers,— that they take 
 unduly harsh views of the characters of 
 their children, sons especially. That is not 
 unknown. But there is a limit beyond which 
 one feels that it ceases to be a question of 
 harsh, unreasonable judgment of character, 
 and that the repulsion which a parent exhib- 
 its towards one or more of his children must 
 proceed from some mental defect in himself. 
 It is so contrary to the whole ciurent of hu- 
 man nature that a man should not only form 
 a harsh judgment of his children, but that 
 he should put that into practice so as to do 
 them injury or deprive them of advantages 
 which most men desire above all things to 
 confer upon their children. I say there is a 
 point at which such repulsion and aversion 
 
 " 3 Addams. Ecc. 00. 
 
 * L. K. 1 Prob. & Div. 3CS. 
 
45, 115) 
 
 BOUGHTON B. KNIGHT. 
 
 Case No. 50 
 
 are themselves evidence of unsoundness of 
 mind. Fortunately the case is rare. It is al- 
 most unexampled that a delusion consisting 
 solely of aversion to children is manifested 
 without other signs which may be relied on 
 to assist one in forming an opinion on that 
 point. Perhaps the case which most nearly 
 approaches such an one was Dew v. Clark." 
 In that case ther-e were indeed some minor 
 matters which were adverted to by the judge 
 in giving his judgment, but he passed over 
 them naturally lightly. For instance, tliere 
 was the fact that the testator, who had prac- 
 ticed medical electricity, attached extraor- 
 dinary importance to that means of cure in 
 medical practice. He conceived that it might 
 be applied to every pui-pose, amongst the rest 
 even to the assisting of women in childbirth. 
 But these were passed over, although not 
 east aside altogether by the learned judge, 
 as not entering into the basis of his judg- 
 ment. What he did rely upon was a long, 
 persistent dislike of his only child, an only 
 daughter, who, upon the testimony of every- 
 body else who knew her, was worthy of all 
 love and admiration, for whom indeed the 
 father entertained, so far as his nature would 
 allow, the warmest affection; but it broke 
 out in the most extraordinary form: he de- 
 sired that his child's mind should be subject- 
 ed entirely to his own, that she should make 
 her nature known to him, and confess her 
 faults, which of course a human being can 
 do only to its Maker; and because the child 
 did not fulfill his desires and hopes in that 
 respect, he treated her as a i-eprobate and 
 an outcast. In her youth he treated her with 
 great cruelty. He beat her, he used un- 
 accustomed forms of punishment, and he 
 continued throughout his life to treat her 
 as if she were the worst, instead of appar- 
 ently one of the best of women. In the 
 end, he left her indeed a sum of money 
 sufficient to save her from actual want, 
 if she had needed it; but in fact, she did 
 not need it. She was well married to a per- 
 son perfectly able to support her, and it 
 might have been argued that he was con- 
 tent to leave her to a fortune which she had 
 secured by a happy marriage. He was not 
 content to leave her so. He bequeathed to 
 her a sum of money which would have been 
 sufficient, in case her husband had fallen 
 into poverty, to save her from actual want, 
 and the rest of his property he left, not to 
 strangers or charities, but to two of his 
 nephews. He was a man who throughout 
 life had presented to those who met him in 
 the ordinary way of business or the ordinary 
 intercourse of life the appearance of a ra- 
 tional man. He had worked his way up 
 from a low beginning. He had educated 
 himself as a medical man, going to the hos- 
 pitals and learning all that could be learned 
 there, and he amassed a large fortune, con- 
 
 ' Reported by Haggard, London, 1826; 3 Ad- 
 dams, Ecc. 79, 
 
 sidering what he commenced with, some 
 £25,000 or £30,000, by the practice of his pro- 
 fession. Yet, upon the ground I have men- 
 tioned, that the dislike he had conceived for 
 his child had reached such a point that it 
 could only be attributed to mental unsound- 
 ness, the will so made in favour of the neph- 
 ews was set aside, and the law was left to 
 distribute his property without reference to 
 his will. I have said that one usually has 
 other facts before one beside the bare cir- 
 cumstance of a father conceiving a dislike 
 for a child, by which to estimate whether 
 such dislike were rational or irrational; so 
 in this case it has been contended there are 
 criteria from which to judge of Mr. Knight's 
 treatment of his children in his lifetime, and 
 after his death by his will. You are entitled, 
 indeed are bound, to consider this case not 
 in reference to any particular act, not to con- 
 fine your attention to one particular act such 
 as the making of the will, but you must con- 
 sider BIr. Knight's life as a whole in order 
 to determine whether in January, 1869, when 
 he made the will, he was of sound mind. 
 Gentlemen, I think I can give you some as- 
 sistance in determining the question before 
 you by refeiTing to what has been said on 
 the subject in another department of the law. 
 Some years ago the question of what 
 amount of mental capacity was required to 
 make a man responsible for crime was con- 
 sidered in McNaghten's Case." No doubt 
 the question is treated somewhat differently 
 in a criminal suit to what it is here (the dif- 
 ference I will explain presently); but there 
 is. as you will easily see, an analogy between 
 the cases which will be of use to us in con- 
 sidering the points before us. Lord Chief 
 Justice Tindal, in expressing the opinion of 
 all the judges, said: "In all cases every man 
 is to be presumed to be sane until the con- 
 trary is proved, and it must be clearly proved, 
 that at the time of committing or executing 
 the act the party was labomring under such 
 defect of reason from disease of the mind 
 as not to know the nature and quality of the 
 act he was doing; or if he did know it, that 
 he did not know he was doing what was 
 wrong." That, in my opinion, affords as 
 nearly as possible a general formula which 
 is applicable in all cases in which the ques- 
 tion arises, not exactly, perhaps, in the terms 
 I have read, but to the extent I will explain 
 to you. It is essential, to constitute respon- 
 sibility for crime, that a man shall under- 
 stand the nature and quality of the thing he 
 is doing, or that he shall be able to distin- 
 guish in the act he is doing right from 
 wrong. Now, a very small degree of intelli- 
 gence is sufficient to enable a man to judge 
 of the quality and nature of the act, and 
 whether he is doing right or wrong, when he 
 kills another man; accordingly he is respon- 
 sible for the crime committed if he possesses 
 that amount of intelligence. And so in refer- 
 
 ' 10 Clark & F. 200. 
 
 223 
 
C;ise No. 50 
 
 BOUGHTON V. KNIGHT. 
 
 (§g 45, 115 
 
 ence to all other concerns of life,— was the 
 man at the time the act was done of suffi- 
 cient capacity to understand the nature of 
 tile act? Take the question of marriage. It 
 is always left in precisely the same terms as 
 I have to suggest in this case. If the valid- 
 ity of a marriage be disputed on the ground 
 that one or other of the parties was of un- 
 sound mind, the question will be, was he or 
 she capable of understanding the nature of the 
 contract which he or she had entered into? 
 The same will occur in regard to contracts 
 of selling and buying. Again, take the case 
 suggested by counsel, of a man, who being 
 confined in a lunatic asylum, is called upon 
 to give evidence. First, the judge will have 
 to consider, was he capable of understanding 
 the nature and character of the act that he 
 was called upon to do, when he was sworn 
 to speak the truth? Was he capable of un- 
 derstanding the nature of the obligation im- 
 posed upon him by that oath? If so, then he 
 was of sufficient capacity to give evidence as 
 a witness. But, gentlemen, whatever degree 
 of mental soundness is required for any one 
 of these things, — ^responsibilily for crime, ca- 
 pacity to marry, capacity to contract, capac- 
 ity to give evidence as a witness, — I must 
 tell you, without fear of contradiction, that 
 the highest degree of aU, if degrees there be, 
 is required in order to constitute capacity to 
 make a testamentary disposition. And you 
 will easily see why. Because it involves a 
 larger and wider survey of facts and things 
 than any one of those matters to which I 
 have drawn your attention. Now I would 
 call your attention to a case which has been 
 frequently adverted to during the course of 
 this trial, the case of Banks v. Goodfellow,' 
 which was decided in the- court of queen's 
 bench, when 1 had the honour of being a 
 member of it. I was a party to tlie judg- 
 ment, but the language of it was that of the 
 present lord chief justice. As a party to it, 
 I am bound by it In the sense in which I un- 
 derstand its words. There can be little room 
 for misconception as to Its meaning, but I 
 will explain to you the scope and bearing of 
 it. It was a case in which a man who had 
 been subject before and after making his 
 will to delusions, was not shewn to be either 
 under the influence of those delusions at the 
 time, or, on the other hand, to be so free from 
 them, that if he had been asked questions 
 about them, he would not have manifested 
 that they existed in his mind. But he made 
 a will, by which he left his property to his 
 niece, who had lived with him for many years, 
 and to whom he had always expressed an 
 intisntion to leave his property, and to whom, 
 in the ordinary sense of the word, it was his 
 duty to leave the property, and of whom it 
 was right he should take care on his death. 
 It was left to the jm-y to say whether he 
 made that will uninfluenced by the delusions 
 he was shewn to have ha^ before and after; 
 
 ' L. K. 5 Q. B. 549. 
 224 
 
 and the jury found that the will which I 
 have described to you was made free from 
 the influence of the delusions under which he 
 suffered; and it was held that, under those 
 circumstances, the jury finding the fact in 
 that way, such finding could not be set aside. 
 I will not trouble you by reading the whole 
 judgment, which, however, would well repay 
 the trouble of reading it, by laymen as well 
 as by professional men, but I will pick out 
 passages to shew you how carefully guarded 
 against misapprehension the decision is. I 
 shall have occasion by-and-by to call your 
 attention to instances in which I think it has 
 been sought to apply it incorrectly in the ar- 
 guments which have been addressed to you. 
 In one passage the lord chief justice says: 
 "No doubt when the fact that a testator has 
 been subject to any insane delusion is estab- 
 lished, a will should be regarded with great 
 distrust, and every presumption should, in 
 the first instaiHce, be made against it. Where 
 insane delusion has once been shewn tO' have 
 existed, it may be difficult to say whether 
 the mental disorder may not possibly have 
 extended beyond the particular form or in- 
 stance in which it has manifested itself. It 
 may be equally difficult to say how far the 
 delusion may not have influenced the testa- 
 tor in the particular disposal of his property. 
 And the presumption against a will made 
 under such circumstances becomes addition- 
 ally strong, where the will is, to use the 
 term of the civilians, an inofficious one; that 
 is to say, one in which natural affection and 
 the claims of near relationship have been 
 disregarded.''' In an earlier passage the lord 
 chief justice lays down with, I think I may 
 say, singular accuracy, what is essential to 
 the constitution of testamentary capacity: 
 "It is essential to the exercise of such a pow- 
 er (of making a will) that a testator shall 
 understand the nature of the act, and its 
 effects; shall understand the extent of the 
 property of which he is disposing; shall be 
 able to comprehend and appreciate the claims 
 to which he ought to give effect, and with a 
 view to the latter object that no disorder of 
 the mind shall poison the affections, pervert 
 his sense of right, or prevent the exercise of 
 his natural faculties, that no insane delusion 
 shall influence his will in disposing of his' 
 property, and bring about a disposal of it 
 which, if the mind had been sound, would not 
 have been made. Here, then, we have the 
 measure of the degree of mental power which 
 should be insisted on. If the human in- 
 stincts and affections, or the moral sense, 
 become perverted by mental disease, if in- 
 sane suspicion or aversion take the place of 
 natm'al affection, if reason and judgment are 
 lost, and the mind becomes a prey to in- 
 sane delusions calculated to interfere with 
 and distm'b its functions, and to lead to a 
 testamentary disposition, due only to their 
 baneful influence, in such a case it is obvious 
 that the condition of testamentary power 
 fails, and that a will made under such cir- 
 
§§ 45. 115) 
 
 BOUGHTON 0. KNIGHT. 
 
 Case No. 50 
 
 cumstances ought not to stand." Gentlemen, 
 I have no fear, when rightly understood, 
 
 of that case being misapplied Now,' 
 
 gentlemen, these being the epochs of his 
 life, let us direct our attention to the man- 
 ifestations of character and condition of 
 mind In him. I have already said, in my 
 opening observations, that a very large al- 
 lowance must be made for "eccentricities. I 
 do not say that they never in themselves can 
 amount to evidence upon which a jury would 
 be justified in coming to the conclusion that 
 man is of unsound mind, when coupled 
 with what I will call, for convenience sake, 
 in unnatural will, but, certainly, eccentrici- 
 ties must not be allowed to weigh heavily 
 in the scale against the argument that a man 
 is of sound mind. Really the forms and us- 
 ages of society surround us like an atmos- 
 phere, and compress us all into a somewhat 
 monotonous uniformity of mould, and if a 
 man is relievfed from this pressm'e, his indi- 
 viduality will expand into strange and some- 
 times fantastic shapes, but it must not be as- 
 sumed he is on that account insane. Many 
 of the acts of the diseased of this kind, which 
 have been enumerated by counsel, cannot, I 
 think, in themselves establish, and are very 
 far from establishing, unsoundness of mind. 
 They may suggest the idea, they may help 
 to confirm the idea derived from other 
 sources, that there was unsoundness in his 
 mind; they may, so to speak, fill up the 
 crevices of the argument, but they do not 
 themselves constitute sound material on 
 which a conclusion can be built as to the de- 
 deceased's capacity. (His lordship fully re- 
 viewed all the evidence which had been pro- 
 duced at the trial, and concluded:) 
 
 It is for you to say whether the accumula- 
 tion of this evidence (for the defendants) has 
 not this effect on your minds that it leads 
 you to the conclusion that, whatever fluctua- 
 tion there may have been in the condition of 
 Mr. Knight's mind, for some years before he 
 made this will he had been subject to delu- 
 sions, especially in reference to the character, 
 the intention, and the motives of his son's 
 acts; and if you so find, then I must impress 
 upon you that it becomes the duty of the 
 plaintifEs to satisfy you that at the time the 
 testator made the will he was free from those 
 delusions, or free from their Influence. The 
 burthen of proof, as it is called, is upon those 
 who assert that the testator was of a sound 
 and disposing mind. In considering the ques- 
 tion you cannot put aside the contents of, 
 and surroimding circumstances connected 
 with, the will. Again, on considering wheth- 
 er or not the testator was free from delu- 
 sions as to the characters of his several sons, 
 when he passed them over in the disposition 
 of his real estate, leaving them only limited 
 sums of money out of his personalty, you 
 must not disregard the fact that he selected 
 in their place one who had no natural claims 
 upon him, of whom he knew little, and to 
 whom he was under no such obligations as 
 
 ARU.TVir TS — IS 
 
 are usually recognized as the foundation of 
 such gifts. You must take that into your 
 consideration in determining whether at the 
 time the deceased made his will those pre- 
 vailing delusions to which I have referred' 
 had passed away, or were utterly inoperative. 
 Gentlemen, I have detained you at some 
 length. I felt the importance of the case was 
 such as to justify it, and I now leave yoil 
 to discharge that responsible duty of whicb 
 I reminded you at the outset of the observa- 
 tions I have addressed to you. 
 
 The jury found, that on the 27th of .lanuary, 
 18U9, the date of the will propounded by the 
 plaintiffs, the deceased, John Knight, was not 
 of sound mind, memory, and understanding. 
 
 (April 22.) 
 
 SIR J. HANNBN. The law has armed 
 me with a large discretion, and one that I 
 find much difficulty in exercising, on the sub- 
 ject of costs; but of course I must not shrink 
 from it. On the best consideration that I 
 can give to the subject, it appears to me that 
 an executor is prima facie justified in pro- 
 pounding a wiU. That does not carry us^ 
 very far, because, of course, although he may 
 be justified in propounding it in the absence 
 of any evidence throwing light on the testa- 
 mentary capacity of the testator; yet, if it 
 is made to appear that, when propounding it, 
 he must have known that he was attempting 
 to obtain the sanction of the court to a docu- 
 ment which could not be supported, he ought 
 to be condemned in the costs. It would be" 
 very imjust to hold otherwise. The question 
 in this case depends upon whether Sir Charles 
 Boughton, as executor, was bound to pro- 
 pound this will, and to determine that I must 
 consider the whole of the evidence which is 
 now before me. 
 
 This was undoubtedly a very peculiar case. 
 The testator had been in the uncontrolled 
 management of his estate for a great number 
 of years, and the correspondence vsath Mr, 
 Clark showed that he managed this prop- 
 erty certainly with care, and apparently with 
 prudence. Mr. Clark, the agent of the tes- 
 tator, was not called by the next of kin, but 
 I think Sir Charles was as much entitled to 
 rely on Mr. Clark as a witness in his favour 
 as if he had been called. He had, indeed, 
 given his assistance to the next of kin, but 
 it would have been impossible for him, had 
 he gone into the box, to have said otherwise 
 than that he believed the testator to be com- 
 petent to make a will, because after the ex- 
 ecution of' the will in question he would have 
 permitted the testator to make a codicil in 
 his favour. 
 
 I agree with Dr. Swabey, that it is in the 
 highest degree improbable that something 
 had not reached the ears of Sir Charles and 
 of Mr. Marston concerning the eccentricities 
 of the testator. But it appears to me that it 
 would be highly dangerous to encourage the 
 notion that because a person is eccentric in 
 his habits of life he is therefore incompetent 
 
 229 
 
Case ly'o. 50 
 
 BOUGHTOX V. KNIGHT. 
 
 (§§ 45. 115 
 
 to make a will. There was nothing in the 
 case which led me to suspect that Sir Charles 
 had ever heard anything about the testator 
 which went beyond eccentricity. His having 
 bands of music at his house, the mode in 
 which he exercised his horses, his shooting 
 rooks in company with his servants, tliose 
 and similar acts fell far short of evidence to 
 establish incapacity. There were undoubted- 
 ly, after the execution of the will, facts as 
 to conduct which must have came to the 
 knowledge of Mr. Marston, and which ought 
 ±0 have excited doubts as to the testator's 
 ■capacity at that time, but It was not until 
 fully nine months after the date of the will. 
 The all-important question was, what was 
 the condition of the testator at the time of 
 the making of the will? The circumstances 
 that made an impression on my mind, and 
 "therefore probably on the jury, were these: 
 ■when the testator's history came to be sifted, 
 It turned out that he had recurring through- 
 "Out his life a set of delusions which, from 
 their nature, had a tendency to impair his 
 "disposing powers. He had suspicions of the 
 motives which actuated the persons about 
 him. Of all these incidents Sir Charles must 
 "have been totally ignorant. Further, there is 
 :no reason to suppose that he was not totally 
 ^ignorant of the testator's strange conduct at 
 ".Boulogne immediately after the making of 
 the will, and of the terms in which he wrote 
 about Sir Charles himself. It is further to 
 be remembered that the brother of the tes- 
 tator said that the testator was sometimes of 
 sound mind, although he was insane at other 
 times; and his son James stated that it was 
 only when he became acquainted with all the 
 inner life of his father that he came clearly 
 to the conclusion that he was insane. Sir 
 Charles had no knowledge of this strange 
 inner life. In determining whether or not 
 "he should propound this will, he had only 
 before him evidence that the testator was a 
 22Q 
 
 very eccentric man. Practically he had 
 nothing more; that is the utmost to which it 
 went. Under these circumstances, was he 
 justified in propounding the will? I think he 
 was. I think the question of the testator's 
 capacity was a veiy grave one, and he could 
 not be expected to take on himself the re- 
 sponsibility of leaving it undetermined. The 
 question is one which has exercised the minds 
 of the most eminent men, and there still ex- 
 ists great divergence of opinion as to what 
 amount of unsoundness will incapacitate a 
 man for making a will. I thinlc Sir Charles 
 was justified in determining to take the opin- 
 ion of the court upon the state of the tes- 
 tator's mind. The decision of the question of 
 costs must depend on the infinitely varying 
 circumstances of each case; and the conclu- 
 sion I have arrived at brings this case with- 
 in the principle of the decisions to which I 
 have referred on former occasions. Was the 
 testator really and substantially the cause of 
 the litigation that has occurred? I think the 
 testator was substantially the cause of the 
 litigation. His conduct was such that any 
 person on whom was thrown the responsibil- 
 ity of determining whether or not his "will 
 was a good one was justified in bringing the 
 whole of the facts bearing on that question 
 before the court. I am, therefore, of opin- 
 ion that the costs should be paid out of the 
 estate. The question must be decided on 
 general principles, for the observation that a 
 residue must bear the costs applies to every 
 case. 
 
 Thinking that Sir Charles was honestly led 
 into this litigation by the fact that the tes- 
 tator seemed to all outward appearance to 
 be capable of managing his affairs; and, in 
 the absence of evidence to the contrary, was 
 justified in bringing the case before the court, 
 I order costs on both sides out of the estate. 
 
 Will pronounced against. Costs on both 
 sides out of estate. 
 
5§ 46, 54, 68, 70) 
 
 HARRISON V. ROWAN. 
 
 Case No. 51 
 
 HARRISON V. ROWAN. 
 
 (Fed. Gas. No. 6,141, 3 Wash. C. C. 580.) 
 
 Circuit Court U. S., D. New Jersey. Oct. 
 Term, 1820. 
 
 This was an issue of devisavit vel non, di- 
 rected, by this court, on its equity side, to 
 try whether Jolm Sinnlckson did make a val- 
 id and legal will, to pass his real estate? 
 During the trial the following points of evi- 
 dence were ruled by the court: 
 
 1. The plaintiff offered to examine one of 
 the daughters of Mrs. Dick, (now living,) in 
 support of the will. An objection was made 
 to the competency of the witness, on the 
 ground of interest; it being contended, that 
 she has a contingent estate in certain proper- 
 ty comprehended within the following be- 
 quests, viz. "If my daughter should have, 
 and leave issue living at her death, and if it 
 shall also happen, that my son Francis shaU 
 die without lawful issue, then I give to the 
 Issue of my daughter, in fee, Petits' farm. 
 But if my said children shall have no such 
 issue, then I devise the said farm to my sis- 
 ter, Sarah Dick, and to her heirs in fee sim- 
 ple; and if she shaU not survive my said 
 children, I devise the same to the heirs of 
 the said Sarah, in fee." 
 
 It was contended by the plaintiff's counsel, 
 that Mrs. Dick took an estate in fee, and that 
 the limitation over, to her heirs, was void; 
 and consequently, that the witness had no 
 otlier interest than what an expectant has; 
 which affords no objection to his competency. 
 
 BY THE COURT. The clause of the wiU 
 must be taken altogether; and every part of 
 it should be carried into effect, if it can. 
 The clear meaning of the testator, was to 
 give a fee simple estate to Mrs. Dicli; pro- 
 vided she should survive the daughter, dying 
 without issue, then living. But if Mrs. Dick 
 should die before the happening of such con- 
 tingency, then the estate was to vest in the 
 heirs of Mrs. Dick, as piu-chasers, by way of 
 executory devise. The witness, therefore, has 
 a contingent interest in supporting the w'ill; 
 which, we think, disqualifies her from being 
 a witness. 
 
 2. A witness may be asked, what opinion 
 he formed of the sanity of the testator, at 
 or about the time of the will being made; 
 but not what he said to third persons upon 
 the subject. 
 
 3. Upon the cross examination of a wit- 
 ness, he may be asked leading questions, to 
 draw from him a further disclosure than was 
 made upon the principal examination, and 
 in reference to the matter testified about. 
 But if the cross examination respects new 
 matter, leading questions cannot be asked. 
 
 4. The plaintiff's counsel having, upon the 
 examination in chief, asked some questions 
 respecting the sanity of the testator, is not 
 upon that account prevented from examining 
 witnesses, to rebut the evidence of the defend- 
 jint upon that subject; although it was ir- 
 
 regular for the plaintiff, in the first instance, 
 to give evidence of sanity. All that he has to 
 do, is to prove the due execution of the will, 
 according to the form prescribed by the stat- 
 ute. Incapacity, or fraud, is the defence set 
 up on the other side, which the plaintiff is 
 then called upon to repel. Nevertheless, it 
 would be too rigid to preclude the examina- 
 tion of his witnesses on that subject; because 
 he had irregularly asked some questions re- 
 specting it, in the first instance. 
 
 5. The defendant offered to read the pro- 
 ceedings in the orphan's oom-t, upon the offer 
 of this will for probate, as a testament of 
 personal estate; and the decree of the pre- 
 rogative court, refusing probate. 
 
 This was objected to, and the following 
 cases were cited: 6 Cruise, Dig. 10; 1 Ld. 
 Raym. 744; Id. 262; Den v. Allen, 2 N. J. 
 Law, 47. In support of the evidence, was 
 read the act of assembly, made in 1784; Jud- 
 son V. Lake, 3 Day, 326; Spencer v. Spencer, 
 1 Gall. 623, Fed. Cas. No. 13,233. 
 
 PENNINGTON, J., stated, that, until the 
 law of 1784, the jurisdiction of the ordinary 
 was always considered, in this state, as be- 
 ing similar to that of the ecclesiastical court 
 in England, and confined entirely to testa- 
 ments of personal estate. That the vaUdity 
 of a will, in relation to real estate, was open 
 for decision of the common law courts, upon 
 a trial in ejectment, or upon an issue of 
 devisavit vel non, directed out of chancery. 
 That the act of 1784 made no alteration in 
 this respect; and that it has always been so 
 understood, and such has been the practice. 
 
 WASHINGTON, Justice, concurred in the 
 opinion, that the evidence was inadmissible, 
 for the reasons assigned by Judge PEN- 
 NINGTON. 
 
 6. If one of the parties reads part of a 
 deposition, in order to prove that the witness 
 who gave it contradicted what he has now 
 stated upon his examination in court, the 
 other side has a right to refer to the whole 
 deposition, to support the consistency of the 
 witness. 
 
 For the plaintiff, it vsas contended, that it 
 is not necessary to prove, that the will was 
 read to the testator before the witnesses, 
 even although the testator was blind. 5 Bos. 
 & P. 415. That capacity to make a will is 
 always to be presumed, tiU the contrary is 
 proved. Jackson v. Van Dusen, 5 Johns. 158. 
 That the person who impeaches the will on 
 this ground, must do it by proving facts, and 
 not by the opinions of witnesses. Swinb. 
 Wills, 78. And that no extremity of bodily 
 imbecility is sufficient to prove mental in- 
 capacity. Swinb. WiUs, 111; 8 Vin. Abr. p. 
 56, pi. 8; 3 P. Wms. 130; Phil. Ev. 375; 
 Beckwith v. Butler, 1 Wash. (Va.) 225. 
 
 That testimony to prove incapacity, given 
 by the attesting witnesses, is to be cautiously 
 received, as they are guilty of great misbe- 
 haviour in having attested it when their opin- 
 ion was against liis sanity. Poole v. Rich- 
 ardson, 3 Mass. 330; Pow. Dev. 709. That 
 
 227 
 
Case No. 51 
 
 HAHRISON V. ROWAN. 
 
 (§§ 46, 54. 68, 70 
 
 the question is merely as to a general testa- 
 mentary capacity, and not a capacity in refer- 
 ence to the particular will. Pow. Dev. 145; 
 Swinb. Wills, 79, 80. Upon the subject of 
 fraud, that no evidence short of direct fraud 
 and circumvention is admissible;— not to be 
 collected from circumstances. Swinb. Wills, 
 10, 11; 8 Term R. 147; 3 Ch. Cas. 61. As 
 to admitting evidence of declarations of the 
 testator at other times, and leaving out of 
 the will certain parts of the testator's prop- 
 erty, 2 P. Wms. 209; Havard v. Davis, 2 
 Bin. 422. 
 
 Cases cited for the defendant: Den v. John- 
 son, 5 N. J. Law, 455; Pow. Dev. 718; Peake, 
 Ev. 490; 2 Bm-n, Ecc. Law, 513; 1 Fonbl. 
 12, 114; Swinb. Wills, 112. 
 
 WASHINGTON, Justice, charged the jury. 
 This is an issue directed by this com-t, sitting 
 in equity, to try whether John Sinnickson 
 made a valid will for disposing of his real 
 estate; and this is the question which you 
 are to decide, upon the evidence which has 
 been laid before you. 
 
 The plaintiff holds the affirmative of this 
 question; and all that he has to do, is to 
 satisfy you that this will was executed In 
 due form, according to the laws of this state. 
 This he has done; and no question has been 
 made at the bar upon this point. 
 
 But the defendant impeaches the validity 
 of the will, upon the following grounds: — 1. 
 Want of a testamentary capacity in the testa- 
 tor, to dispose of his property by will; and, 
 2, fraud and circumvention produced upon 
 the testator by tlie person who drew the will. 
 A third objection was made, by one of the 
 defendant's counsel; which was, that the 
 will is not proved to have been read over to 
 the testator, in the presence of witnesses. 
 We tmderstand this to be made as a substan- 
 tive objection to the will, although It was 
 not so argued by the other counsel on the 
 same side, who very properly considered It 
 merely as a badge of fraud, that it was not 
 proved to have been read. We will, there- 
 fore at once dispose of this point, by observ- 
 ing, that It is not necessary, In order to estab- 
 lish the will, that the person claiming under 
 It, should prove that it was read over to the 
 testator, In the presence of the attesting, or of 
 other witnesses. It would be an unwise pro- 
 vision in the law, to require this to be done, 
 inasmuch as most men are careful to confine 
 to their own breasts the manner in which 
 they have disposed, or mean to dispose, of 
 their property by will. The domestic peace 
 and harmony of the testator's family might 
 be very unhappily jeoparded, If publicity 
 were necessary to be given on such occasions. 
 The law presumes, in general, that the will 
 was read by or to the testator. 
 
 But, if evidence be given that the testator 
 was blind, or from any cause Incapable of 
 reading; or If a reasonable ground is laid, 
 for believing that it was not read to him, 
 or that there was fraud or imposition of any 
 228 
 
 kind practiced upon the testator, it is incum- 
 bent on those who would support the will, 
 to meet such proof by evidence, and to satis- 
 fy the jury either that the will was read, or 
 that the contents were known by the tes- 
 tator. 
 
 We now proceed to lay down some general 
 rules, for assisting the jiu-y In coming to a 
 satisfactory conclusion upon the two points 
 of capacity and fraud; and to notice some of 
 the arguments at the bar, for the purpose of 
 giving the sanction of the court to such of 
 them as we think are consonant with law, 
 and our disapprobation of those which are 
 not 
 
 1. As to the testator's capacity. He must. 
 In the language of the law, have a sound 
 and disposing mind and memory. In other 
 words, he ought to be capable of making his 
 will, with an understanding of the nature of 
 the business in which he Is engaged; — a 
 recollection of the property he means to dis- 
 pose of; — of the persons who are the objects 
 of his bounty, and the maner in which it 
 Is to be distributed between them. It is not 
 necessary, that he should view his will with 
 the eye of a lawyer, and comprehend its pro- 
 visions in their legal form. It Is sufOlcient, if 
 he has such a mind and memory as will en- 
 able him to understand the elements of which 
 it is composed— the disposition of his proper- 
 ty in its simple forms. It is the business of 
 the testator to dictate the purposes of his 
 mind; and of the scrivener, to express them 
 In legal form. 
 
 In deciding upon the capacity of the testa- 
 tor to make his will, it Is the soundness of 
 the mind, and not the particular state of his 
 bodily health, that is to be attended to. The 
 latter may be in a state of extreme imbecili- 
 ty, and yet he may possess sufficient under- 
 standing to direct how his property shall 
 be disposed of. His capacity may be per- 
 fect to dispose of his property by will, and 
 yet very inadequate to the management of 
 other business; as for instance, to make con- 
 tracts for the purchase or sale of property. 
 For most men, at different periods of their 
 lives, have meditated upon the subject of the 
 disposition of their property by will; and 
 when called upon to have their intentions 
 committed to writing, they find much less 
 difficulty In declaring their Intentions, than 
 they would In pose comprehending business 
 in some measure new. 
 
 The soundness of the testator's mind, is 
 to be judged of from his conversation, or 
 from his actions at the time the will is made, 
 or from both taken together. It is not 
 sufficient, per se, that he should be able to 
 describe his feelings, or to give suitable an- 
 swers to ordinary questions. This he may 
 do, and yet the mind may be too much dis- 
 eased, to enable him to dispose of his estate 
 with imderstanding and discretion. 
 
 It must also be remembered, that the fact 
 of competency Is to be decided by the state 
 of the testator's mind, at the time when 
 
(§§ 46, 54. 68, 70 
 
 HARRISON V. ROWAN. 
 
 ('ase No. 51 
 
 the will was made. Aud althoiiph evidence 
 of the state of his mind, and of his bodily 
 health, before and after that time, may be 
 given, in order to shed Ught upon its con- 
 dition at that period, still, such evidence is 
 no otherwise to be regarded. For, although 
 it should be proved, that at a prior or sub- 
 sequent day, he was incapable of making a 
 will from the effect of a temporary cause, 
 such as fever and the like, it wiU not follow, 
 that he was so when the will was executed. 
 
 In weighing the evidence of sanity, that of 
 the attesting witnesses is most to be regarded; 
 because it is more likely, that they should be 
 attentive to the conversation and actions of 
 the testator, than mere bystanders, who do 
 not feel themselves particularly connected 
 with the transaction. On the other hand, 
 the subscribing witnesses are, in some meas- 
 ures, parties to it; and there are few persons 
 so ignorant as not to know, that the sanity 
 of the testator is essential to the validity of 
 his will. 
 
 As to the subject matter of the testimony, 
 it may be well to remar'k, that the mere 
 opinions of the witnesses are entitled to 
 little or no regard, imless they are supported 
 by good reasons, founded on facts which 
 warrant them in the opinion of the ju- 
 i-y. If the reasons are frivolous or incon- 
 clusive, the opinions of the witnesses are 
 worth nothing. 
 
 To this, as a general rule, the opinions of 
 medical men, even although they did not 
 see the testator, may he considered as an 
 exception. A physician may, with some de- 
 gi"ee of accuracy, form an opinion of the na- 
 tm-e of the disorder, and its probable effect 
 upon the mind, where the symptons are 
 ti-uiy stated to him; because, from a long 
 course of experience and observation, by 
 himself and others of the profession, such 
 have been the ordinary effects of these 
 symptoms. But, to entitle such opinions to 
 the regard of a jury, they should be satis- 
 fied by the other evidence in the cause, that 
 the symptoms did exist, in the particular 
 case under consideration. And if the opin- 
 ions of these professional gentlemen, should 
 differ materially, as to the ordinary effects 
 of certain symptoms, the jury must weigh 
 their evidence, as in other cases, and decide 
 according to the opinion they may form of 
 the comparative judgment, learping, and ex- 
 perience of the witnesses themselves. In 
 this case, the physicians who have given tes- 
 timony, have differed essentially from each 
 other, in the opinions delivered to the jury; 
 and there is no inconsiderable collision in 
 the evidence of the other witnesses, respecting 
 the material symptoms of the disorder; 
 which, it is agreed on all hands, caused the 
 death of the testator. It is proper to ob- 
 serve, upon this subject, that the opinion of 
 the physician who attended the testator dur- 
 ing his last illness, is, for the most obvious 
 reasons, always entitled to more regard than 
 
 the opinions of physicians who had not ths 
 advantage. 
 
 If the jury should be of opinion, that the 
 testator was not competent to make his will, 
 they will of course find for the defendant. 
 If they should not be of this opinion, they 
 will then inquire, 2dly, whether the will in 
 question was obtained from him by fraud, 
 or cu'cumvention of any kind. 
 
 It is contended, in support of the charge of 
 fraud, that the testator is proved to have 
 been for a Iqng time In the habit of using' 
 spectacles; and that he was without them 
 on the evening when his will was executed;— 
 consequently, that he could not have read 
 the will himself, after it was written; and 
 that the evidence lays strong gi'ound for be- 
 Ueving, that the will was not read to him by 
 the person who wrote it. It is further in- 
 sisted, that the unnatural disposition of so 
 large a portion of the testator's estate, from 
 an only and beloved daughter, to persons 
 less nearly related to him, and this, in 
 many respects, in opposition to previously 
 formed resolutions, not shown to have been 
 changed, and to declarations in proof of such 
 resolutions, — and the bequest of a considera- 
 ble property to the wife of the person who 
 drew the wiU;— unitedly establish the charge 
 of fraud and circumvention. 
 
 That these circumstances, if proved to the 
 satisfaction of the jury, deserve their seri- 
 ous consideration, is unquestionable. For, 
 although fraud is never to be presumed, yet 
 it is not necessary to prove it by du-ect and 
 positive proof. Fraud most commonly veils 
 itself in mystery; and it is by circumstances 
 only, that it can in general be detected and 
 brought to light. It should, nevertheless, be 
 recollected, that these circumstances should 
 be so strong, when combined and examined, _ 
 as to satisfy the jury of the existence of the 
 faot they are adduced to establish. It will 
 not do, if they affect the judgment with 
 nothing more than doubt and suspicion. 
 
 The charge of fraud is repelled by the 
 plaintiff upon the following grounds:— 1st. 
 That Mr. Harrison, who wrote the will, did 
 not obtrude himself upon the testator, but 
 was sent for, and confided in, by him, to 
 perform this service, as he before had done 
 other professional services. — That it was 
 written by the direction of the testator, who 
 acknowledged to the witnesses. That Mr. 
 Harrison had not been officious in the busi- 
 ness. 2d. That the testator declared, before 
 the will was made, that he had arranged 
 and digested the disposition of his property 
 in his mind, and required only some person 
 to commit to writing. 3d. That Mr. Harri- 
 son was in the room with the testator for 
 three or four hours, and had, therefore, 
 abundant time to write and to read over the 
 wiU to him. And lastly, that the testator, 
 after signing the wiU^ acknowledged to the 
 witnesses that it was his will; and added, 
 that he was perfectly acquainted with its 
 
 229 
 
Case No. 51 
 
 HARRISON V. ROWAN. 
 
 §§ 46, 54, 68, 70) 
 
 contents; and being asked by Mr. Harrison 
 wlio was to tal£e care of it, he answered — 
 "You, of course." Mr. Harrison is tiie sole 
 executor and trustee of the whole estate. It 
 is insisted by the counsel, and we thinli 
 with great weight, that, if the testator knew 
 what he was about, and was possessed of 
 sufficient understanding to make a valid will, 
 his acknowledgments to the witnesses, and 
 his direction to the executor to take charge 
 of the will, amount to strong and persuasive 
 evidence that he was acquainted with Its 
 contents. Whether the grounds of the plain- 
 tifC's and defendant's arguments are made 
 out by the proofs in the cause, you must 
 decide. There is considerable contradiction In 
 the testimony of the witnesses, on one side 
 and on the other. It will be yowr duty to 
 reconcile them as far as you can; and, in 
 weighing evidence, to compare not only the 
 credibility and characters of the opposing 
 230 
 
 witnesses, but their judgment and oppor- 
 tunities of giving coiTect information re- 
 specting the facts they have related. 
 
 You are to say, whether John Sinnlckson 
 had a sufficient capacity to make a testa- 
 mentary disposition of his real estate, with 
 discretion and understanding, at the time 
 when this will was executed by- him; and 
 if he had such capacity, then, 2d, whether 
 this is his will, or whether he was induced 
 to execute and acknowledge the same by 
 fraudulent practices, or imposition of apy 
 kind. If you find the first question In the 
 negative, or the last In the affirmative, your 
 verdict ought to be for the defendant; if 
 otherwise, you should find for the plaintiff. 
 In weighing the evidence, should you think 
 It doubtful, or balanced, you ought to in- 
 cline in favovu- of sanity, and against fraud. 
 
 Verdict for plaintiff. • • * 
 
§§ 46. 67) 
 
 DEN V. VANCLEVE. 
 
 Case No. 52 
 
 DEN ex dem. STEVENS et ux. v. VAN- 
 CLEVE. 
 
 (Fed. Cas. No. 13,412, 4 Wash. C. C. 262.) 
 
 Circuit Court U. S., D. New Jersey. April 
 Term, 1S22. 
 
 The plaintiffs claim one third of the land 
 in conti-oversy, in right of the female plain- 
 tifE as one of the heirs of Benjamin Van- 
 cleve, deceased, and one other third part un- 
 der a deed from Dr. Clark and his wife, the 
 latter being also a daughter and one of the 
 heu-s of the deceased. The defendant is the 
 son of the deceased, who claims the whole 
 of the land imder an instrument purporting 
 to be the last will and testament of Ben- 
 jamin Vancleve. The cause turned alto- 
 gether upon the validity of this instrument, 
 which, it was contended by the plaintiff's 
 counsel, 1. Was not executed according to 
 the requisitions of the law of New Jersey; 
 and 2. That the said Benjamin Vancleve, at 
 the time he executed the alleged will, was 
 not of sound and disposing mind and mem- 
 ory. 
 
 The following summary contains the sub- 
 stance of the evidence as declared in the 
 charge to the jury: Mrs. Pharis, one of the 
 attesting witnesses, deposed, that, on the 
 morning of Sunday, the 24th of August, 1817, 
 she was at the house of Benjamin Vancleve, 
 (who was then in bed, having been struck 
 by the palsy some time early in the month 
 of June preceding, which entirely disabled 
 one half of his body) and heard the defend- 
 ant inform his father, that the will he had 
 executed in the year 1814 was missing; but 
 that he had a copy of it, and inquired of his 
 father if he vi'ould execute that as his will? 
 To which his father answered, "Yes." That 
 upon receiving the above information, he ap- 
 peared to rouse up like a person from a 
 deep sleep, and asked, "Who has taken it?" 
 The defendant then sent for John Pharis, 
 and after his arrival, the defendant read 
 over to his father the copy of the will dis- 
 tinctly, section by section, and asked him 
 at the end of each, if he understood it? To 
 which he replied, "Yes." He was then 
 asked, if John Pharis should steady his hand 
 whilst he signed his name? To which he 
 answered, "Yes, I wish him to do it." John 
 Pharis did accordingly steady his hand, and 
 with this assistance, he signed his name to 
 the will. After this was done, Pharis told 
 him that he must acknowledge the wiU; up- 
 on which, the testator put his finger on the 
 seal, and the witness heard him say, "last 
 will and testament:"— having moved her po- 
 sition at the moment, she did not hear the 
 first part of the sentence. The witness fur- 
 ther stated it as her opinion, that Benjamin 
 ■\'ancleve was, at the time, in his right mind, 
 and understood what he was doing, and that 
 he was capable of dictating his will. She 
 added, that he could articulate so as that 
 she could understand him very well when 
 he spoke; and that he frequently, when 
 
 she visited him, prior to this period, after 
 the stroke of the palsy, inquired respecting 
 her own health, and that of her family. She 
 further proved her own signature to the will, 
 and that of the other two attesting wit- 
 nesses, made in the presence of the testator, 
 and of each other. She stated that, after 
 the win was executed, she saw the defend- 
 ant, who sat on the bed by her father, con- 
 versing with him, but that she did not at- 
 tend to what was said. She saw the fath- 
 er's lips move, and heard his voice. 
 
 The evidence of the two other subscribing' 
 witnesses, and also of Mary Vancleve, a 
 granddaughter of the testator, who resided 
 in his family, and who was present when the 
 will was executed, corresponds in every ma- 
 terial circumstance with that above detailed. 
 Two of them heard the testator distinctly 
 say, "I acknowledge that (his finger being 
 placed on the seal) to be my last will axwl 
 testament." John Pharis stated, that he 
 was asked if he acknowledged that to be his 
 last will and testament, and that he an- 
 swered, "Yes, I do." This witness further 
 added, that the testator seemed more revived 
 that day than he had seen him for some 
 weeks; that he does not think that he was 
 capable of disposing of his property by deed, 
 or of dictating and forming a whole will at 
 one time, being too weak for so great an ef- 
 fort? but that he was capable of remember- 
 ing what he had done at former times, and 
 what disposition he then wished to make of 
 his property. That he spoke very little; 
 only in few words at a time, and then in an- 
 swer to questions; but that he understood 
 every thing that was proposed to him, and 
 what he was doing, as well as a man could, 
 who was in a weak state. 
 
 In support of this testimony, the defendant 
 examined a number of witnesses, who stated 
 that they had seen the testator at different 
 times, before and after his last sickness ; that 
 his memory had failed considerably aa to^ 
 names and persons, and recent events; but 
 that he spoke, asked questions, particularly 
 as to the health of those who called to see 
 him ; and that in their opinion, he was, when) 
 they saw him, of sound mind and memory. 
 
 On the other side, a great number of wit- 
 nesses were examined, who deposed that the 
 memory of the testator was gi-eatly impair- 
 ed, even before the last stroke of the palsyr. 
 That he would ask foolish questions, and in- 
 quire the names of his former acquaintances: 
 who called to see him. Upon one occasion, 
 he inquired how a particular acquaintance of 
 his was, and being answered that he wa» 
 dead, he not long afterwards expressed ai 
 wish to see him. At another time, he mis- 
 took one of his nieces for a granddaughter • 
 who had long before been dead. Many sim- 
 ilar Instances of a great decay In his mem- 
 ory, were stated by these witnesses. That 
 after the last sti-oke of the palsy, they never- 
 heard him speak, although he would some- 
 times make a noise, as if he desired to speak ; 
 
 231 
 
■Case No. 52 
 
 DEN V. VANCLEVE. 
 
 (§§ 46, 67 
 
 that when they called to see him, he lay as 
 ■if in a state if Insensibility, with a vacant 
 Btare, and apparently unconscious of any 
 thing; neither speaking to, nor noticing those 
 who addressed him, not even his own daugh- 
 ters. That he was enth-^y childish, as well 
 ss helpless, and was ti-eated as if he had 
 lieen an infant. These witnesses all concur 
 In opinion that the testator was at no time, 
 dui-ing his last sicliness, competent to make 
 a will, or to transact any other kind of busi- 
 ness, and that his mind and judgment were 
 entirely prostrated. 
 
 Some evidence was given of declarations 
 t)y two of the attesting witnesses, Mr. Phar- 
 is and Stephen Johnson, contradictory of 
 their evidence given on oath, as to the ca- 
 pacity of the testator to make his will; in 
 particular, that the hand of the testator, in- 
 stead of being steadied by John Pharis, was 
 guided, and the name in fact written by him. 
 Some of the witnesses examined for the 
 plaintiffs sat up with the testator at differ- 
 ent times during his sickness, and others 
 merely called for a few minutes to see him 
 and to inquire respecting his health. 
 
 During the trial, the defendant's counsel 
 offered evidence to prove that the original 
 will, executed by the testator in 1814, when 
 his capacity was not questioned, had been 
 purloined by the female plaintifC. 
 
 E. Stockton and Wall & Halstead, for 
 plaintiffs. Ewing, L. H. Stockton, and Free- 
 linghuysen & Southard, for defendant. 
 
 BY THE COUKT. Such evidence is im- 
 proper, as it is not pretended by the coun- 
 sel, that they mean to prove the contents of 
 that will, and to rest their defence upon it. 
 On the contrary, they rely altogether, as 
 they avow, upon the validity of the will exe- 
 cuted on the 24th of August, 1817; and con- 
 sequently the question respecting its valid- 
 ity cannot in any manner be fairly affected 
 by the evidence offered in respect to the will 
 of 1814. The only tendency of such evi- 
 dence would be to prejudice the minds of the 
 jury, and to lead them from the question 
 which they have to decide. 
 
 WASHINGTON, J. The declarations of a 
 party to a deed or will, whether prior or 
 ■subsequent to its execution, are nothing more 
 than hearsay evidence; and nothing could 
 Ibe more dangerous than the admission of it, 
 .fiither to control the construction of the in- 
 .-strument, or to support or desti-oy its valid- 
 ity. If the evidence Is offered in support of 
 ^he instrument, it could only have that effect 
 tipon the supposition of a uniform consist- 
 ency of those declarations, not only with the 
 instrument itself, but with the secret inten- 
 tions of the party, at all times after those 
 (declarations were made; and yet how un- 
 safe a criterion would this be, when most 
 iiren will acknowledge the frequent changes 
 of their intentions respecting the disposition 
 
 of their property by will, before they have 
 committed them to writing. 
 
 The uniform consistency of those declara- 
 tions, is the chief ground upon which the 
 whole argument in favor of the evidence is 
 rested; and yet, if the evidence be admit- 
 ted at all, the plaintiffs would be at full lib- 
 erty to prove opposing declarations of the 
 testator at other times; and thus a door 
 would be open to an inquiry in no respect 
 pertinent to the main subject of investiga- 
 tion, but mischievously calculated to perplex 
 and to mislead the jiu-y. That such evi- 
 dence has sometimes been given, is proved 
 by many of the cases read by the defend- 
 ant's counsel; but it would be very unsafe 
 to consider those instances as laying down 
 a rule of law, since, in none of them, was 
 an objection made to the admission cf the 
 evidence, so as to submit its competency to 
 judicial inquiry and decisions. The general 
 rule of law is against the evidence, and no 
 case has been cited showing an exception to 
 it, imless when it was offered to repel a 
 charge of fraud, or circumvention of the 
 devisee in obtaining the will. But in this 
 case the plaintiffs' counsel disavows any in- 
 tention to impute to the defendant a charge 
 of this sort. The evidence is therefore in- 
 admissible. 
 
 PENNINGTON, J., concurred. 
 
 WASHINGTON, J., charged the jury. As ^ 
 the objection to the execution of the will will 
 be noticed hereafter, I shall for the present 
 confine my observations to the single question 
 of the testator's competency to make a will. 
 He must. In the language of the law, be pos- 
 sessed of a sound and disposing mind and 
 memory. He must have memory. A man in 
 whom this faculty is totally extinguished 
 cannot be said to possess understanding to 
 any degree whatever, or for any purpose. 
 But his memory may be very imperfect; It 
 may be greatly impaired by age or disease. 
 He may not be able, at all times, to recollect 
 the names, the persons, or the families, of 
 those with whom he had been int ima tely ac- 
 quainted; may at times ask idle questions, 
 and repeat those which had before been 
 asked and answered; and yet his understand- 
 ing may be sufficiently sound for many of the 
 ordinary transactions of life. He may not 
 have sufficient strength of memory, and vigor 
 of intellect, to make, and to digest all the 
 parts of a contract, and yet be competent to 
 direct the distribution of his property by will. 
 This is a subject which he may possibly i««,T"e 
 often thought of; and there is probably no 
 pereon who has not arranged such a dispo- 
 sition in his mind before he committed it to 
 writing. More especially, In such a reduced 
 state of mind and memory, he may be able 
 to recollect, and to understand the disposition 
 of his property which he had made by a 
 former will, when the same is distinctly read 
 over to him. The question is not so much 
 
§§ 46. 67) 
 
 DEN V. VANCLEVE. 
 
 Case No. 52 
 
 what was the degree of memory possessed by 
 the testator as this— Had he a disposing 
 memory? Was he capable of recollecting the 
 property he was about to bequeath; the man- 
 ner of distributing it; and the object of his 
 bounty? To sum up the whole in the most 
 simple and intelligent form— Were his mind 
 and memory sufficiently sound to enable him 
 to know, and to understand, the business in 
 which he was engaged, at the time when he 
 executed his will? 
 
 This being the question, and the only one at 
 this time for your consideration, I shall pro- 
 ceed to lay down the following general rules 
 to assist you in your deliberations. 
 
 1. The only point of time to be looked at by 
 the jury, at which the capacity of the testa- 
 tor is to be tested, is that when the will was 
 executed. He may have been incapable to 
 make a wiU at any time before, or after that 
 period; and the law permits evidence of such 
 prior and subsequent incapacity to be given. 
 But unless it bear upon that period, and is 
 of such a nature as to show incompetency 
 when the will was executed, it amounts to 
 nothing. 
 
 Tills .being the important epoch: 2. The evi- 
 dence of the attesting witnesses; and next to 
 them, of those who were present at the exe- 
 cution—all other things being equal— is most 
 to be relied upon. The reason is an obvious 
 one. The law considers the attesting wit- 
 nesses, in particular, as called upon by duty 
 to examine into, and to be satisfied of the ca- 
 pacity of the testator to make a wiU. There 
 are few men so ignorant as not to know, 
 that a person non compos mentis cannot make 
 a valid disposition of his property by will, 
 and that his signature to the will attests, 
 not only its execution, but its validity. 
 These witnesses besides, and others present 
 at the execution, have a better opportunity 
 of judging of the soundness of the testator's 
 mind, from his words, actions, and appear- 
 ance, than those who merely saw him at 
 other times. 
 
 I now proceed to lay before you the sub- 
 stance of the evidence, beginning with that 
 given by the attesting witnesses, and by 
 those examined to support their testimony; 
 and afterwards, that of the witnesses who 
 speak of the testator's incompetency before 
 and after the execution of the wiU. 
 
 (After summing up the evidence on both 
 sides, the judge proceeded.) 
 
 With respect to the evidence given of dec- 
 larations made by two of the attesting wit- 
 nesses upon the subject of the testator's 
 competency, in collision with what they have 
 sworn, I think it proper to remark that it 
 ought in most, if not in all cases, to be re- 
 ceived with great caution by the jury. The 
 testimony of a witness whose veracity and 
 character are otherwise imimpeached, given 
 under the solemn sanction of an appeal to 
 the gi-eat Searcher of Hearts, ought not to be 
 lightly estimated, in consequence of loose 
 declarations made at other times to persons 
 
 in no wise interested in the subject to which 
 they refer, and which were possibly on that 
 account little attended to, imperfectly under- 
 stood, and never again thought of by them. 
 I do not mean to say that such evidence is 
 unworthy of the consideration of the jm-y; 
 quite otherwise. But it should be received 
 with some degree of jealousy, and should be 
 thoroughly examined and weighed. 
 
 If then you believe the four witnesses who 
 were present at the execution of the will, 
 and the facts to which they deposed, three of 
 them being the attesting witnesses, the will 
 was legally executed. 
 
 It was contended indeed by the plaintiffs' 
 counsel, that, in point of fact, the name of 
 the testator was written by John Pharis; 
 and if so, the will was not executed accord- 
 ing to the provisions of the law of this state. 
 The fact is most probably stated correctly by 
 the counsel; but is it to be believed that, 
 when aU persons, except those of unsound 
 mind and memory's are permitted to dispose 
 of their property by wiU, the legislatiu-e 
 could have intended to deny this privilege 
 to those who from accident, disease, or want 
 of education, could not write? If such be 
 the construction of the law, it would be in. 
 sufficient for the testator to make his mark, 
 since that would not amount to subscribing 
 his name. The fact is, that at the time the 
 act of assembly was passed, the statute of 
 frauds and perjuries, 2!) Oh. I. was in force 
 in this state, and was not repealed by the 
 act. And although, at a much later period, 
 all the statutes of England were repealed, 
 still the above statute had become incorpo- 
 rated with, and formed a part of the land 
 laws of this state, so far as it respected last 
 wUls and testaments; and has always, as 
 I understand from Judge Pennington, been 
 considered as furnishing the rule as to the 
 execution of wiUs. If so, this will was exe- 
 cuted in strict conformity with the statute; 
 since the submission of the testator (who, 
 in relation to this part of the case, is to be 
 considered as fully conusant of what he 
 was doing) to have his hand directed, so as 
 to write his name, was at least equivalent 
 to an express direction to another to sign his 
 name. For it cannot be denied that, under 
 the statute, the direction to subscribe the 
 name of the testator, may be given by him 
 by signs, as well as by words. 
 
 But be the law upon this subject as it 
 may, this will, in the opinion of the court, 
 was, upon strictly legal principles, signed by 
 the testator, his hand being with his own 
 consent guided by another, and the will aft- 
 erwards acknowledged by him. Under these 
 circumstances, the act of Pharis was, in 
 point of law, the act of the testator. 
 
 Whether the testator was competent to 
 make his will, is a question of fact, which 
 you may decide, after an attentive considera- 
 tion of evidence given on both sides. The 
 presumption of law always is in favour of 
 sanity at the time the will was executed, 
 
 233 
 
Case No. 52 
 
 DEN V. VANCLEVE. 
 
 (§§ 46, 67, 
 
 and the burthen of proof lies upon the per- 
 son who asserts unsoundness of mind; un- 
 less a previous state of insanity has been 
 established, in which case, the burthen is 
 shifted to him who claims under the will. 
 
 In the examination of this question, your 
 first inquiry will naturally be, can the evi- 
 dence be so reconciled as that the facts stat- 
 ed by the witnesses on both sides may be 
 true? If, by a fair comparison of the evi- 
 dence, and a correct course of reasoning, 
 this can be done, charity, as well as the in- 
 junctions of law, call upon you to examine 
 that evidence with this view. 
 
 Although the testator's memory had great- 
 ly failed, even to the extent stated by many 
 of the plaintiffs' witnesses; although when 
 those witnesses saw him, sometimes for a 
 very short period, at others for a long dura- 
 tion, the testator sometimes addressed by 
 the witnesses, and at other times not spoken 
 to at aU, or excited to speak,— although he 
 was sometimes seen by those witnesses ly- 
 ing silent, and in a state of apparent insensi- 
 bility, with a vacant or stupid stare, so help- 
 less as to be ministered to as if he were an 
 Infant; sometimes appearing to recognize 
 those about him, and at other times not; — 
 may he not have spoken and acted precisely 
 as the four witnesses who were with him 
 when the wiU was executed have sworn he 
 did? Between those witnesses there is no 
 material contradiction, though they do not 
 state all the circumstances precisely in the 
 same way. May not John Pharis have spo- 
 ken the truth, and judged correctly, when he 
 234 
 
 deposed that the testator was more revived 
 on the morning of the 24th of August than 
 he had seen him for three or four weeks pre- 
 ceding, and that he continued so for the 
 greatest part of the day? May not the ano- 
 dynes, which it seems he was in the habit of 
 using, have affected his speech, or his dispo- 
 sition to speak at particular times? And 
 may he not have been more disposed, at all 
 times, to converse with, or address ques- 
 tions to the members of his family, who 
 were generally in his room, and attending to 
 him, rather than with strangers, or even 
 neighbours and friends who called only oc- 
 casionally to see him? These, and similar 
 questions, may be well worthy of the serious 
 examination of the Jury. 
 
 But if, in your opinion, there are irrecon- 
 cileable contradictions in the evidence, sf> 
 that the state of the testator's mind could 
 not be as the plaintiffs' witnesses have de- 
 posed, it was before and after the 24th of 
 August, and yet that he should be competent 
 to make his will on that day; you will then 
 have to weigh the credit of the witnesses, 
 to inquire into their respective capacities to 
 form a correct judgment upon the matters 
 about which they have deposed, and to com- 
 pare the opportunities of judging correctly 
 which were offered to the witnesses on the 
 one side and the other. 
 
 The jury found for the defendant. 
 
 NOTE. The question of mental testamentary 
 capacity is discussed by Mr. Bigelow, 1 Jarm. 
 Wills, (6th Ed.) 61-66. 
 
§§ 47, 121) 
 
 WHITE v. DRIVER. 
 
 Case No. 53 
 
 WHITE V. DRIVER. 
 
 (1 Philllm. Ecc. 84.) 
 
 1809. 
 
 Elizabeth Manning died on the 26th of Jan- 
 uary, 1805, at the house of Mr. Driver, at 
 Chadwell, in Essex; the only relations who 
 survived her were two sisters and a nephew 
 and niece, the children of a deceased brother: 
 her wiU bore date the day immediately pre- 
 ceding her death; her property was be- 
 queathed in thirds, one third to the nephew, 
 another to the niece, and the remaining 
 third to their mother the widow of her broth- 
 er, who since his death had intermarried 
 with Mr. Driver. The will purported to be 
 signed and executed in the presence of three 
 witnesses. 
 
 The two sisters impeached the validity of 
 this instrument on the ground of the insanity 
 of the testatrix. 
 
 Many witnesses were examined who de- 
 posed to the childish and extravagant con- 
 duct of the deceased at several periods of 
 her life. 
 
 The apothecary who attended her during 
 her last Ulness, the attorney who drew the 
 WiU, and the three witnesses who attested the 
 execution of it, all deposed strongly to her 
 capacity. 
 
 Arnold & Swabey, for the executors. Jen- 
 ner & Phillimore, for the sisters. 
 Judgment. 
 
 SIR JOHN NIGHOLL, (after recapitulating 
 the evidence.) The evidence in this case suf- 
 ficiently establishes that the deceased had 
 been at times subject to insanity for several 
 years preceding her death, and even down 
 to the 21st of January 1805, only four days 
 prior to the execution of the will in question; 
 but it does not appear that the disorder was 
 uniform, or always attacked her with an 
 equal degree of violence; she was at large 
 the greater part of her life, and had the man- 
 agement and dominion of herself and her ac- 
 tions. She seems to have had violent acces- 
 sions of the disorder in the years 1793 and 
 1794, in 1801, and again in 1804; the evidence, 
 however, does not preclude the proof of lucid 
 intervals, although it raises a strong pre- 
 sumption against sanity: for I agree with the 
 counsel for the next of kin that, wherever 
 previous insanity is proved, the burthen of 
 proof Is shifted, and it Ues on those who set 
 up the will to adduce satisfactory proof of 
 sanity at the time the act was done. 
 
 It is scarcely possible indeed to be too 
 strongly Impressed with the great degree of 
 caution necessary to be observed in examin- 
 ing the proof of a lucid Interval; but the law 
 
 recognises acts done during such an Interval 
 as vaUd, and the law must not be defeated 
 by any overstrained demands of the proof 
 of the fact. 
 
 In this case the deceased had been subject 
 not only to eccentricities but to delusion and 
 derangement at different periods for several 
 years, but It was not continuous; she was 
 not under confinement; she managed her 
 own affairs; she earned her own livelihood; 
 when she came out of the workhouse on the 
 21st of January she acted Immediately, and 
 continued to act from that moment till her 
 death, as a sane and rational person. There 
 is no indication of any fraud or circumven- 
 tion in procuring this will, or even in sug- 
 gesting it to her; a desire to make a will 
 is riot with her an Insane topic; it is recom- 
 mended very properly to her by the clergy- 
 man who was sent for to pray by her, and the 
 intention of making it was first communicat- 
 ed by the deceased to an old acquaintance of 
 hers of the name of Turner; the utmost pos- 
 sible precaution was used by Turner in car- 
 rying her wishes into effect, by secm'ing the 
 attendance of an attorney, two medical gen- 
 tlemen, and the clergyman. 
 
 The deceased herself declares and directs 
 the disposition of her property: the disposi- 
 tion Itself Is neither msane nor unnatural; 
 two thirds are left to the children of a de- 
 ceased brother, and the remaining third to his 
 widow and her second husband, and these 
 two persons are appointed her executors: her 
 sisters, it is true, are excluded; but they 
 were both married, and possibly had no great 
 claims on her. 
 
 The court has the concurrent opinion of 
 these several persons, viz. Mr. Turner the de- 
 ceased's friend, Mr. Williams the clergyman, 
 the solicitor, the two apothecaries, and the 
 nurse, and that too with all their suspicions 
 awakened and their vigilant observation 
 called forth, that the deceased was perfectly 
 sane and rational throughout the whole pe- 
 riod of the transaction; some of them also 
 prove that she was equally sane and rational 
 a day or two before, and continued so till 
 her death on the subsequent day. 
 
 Notwithstanding, therefore, all the jealousy 
 which the court should feel as to the act of 
 a person once proved to have been Insane, 
 still under this evidence it is impossible not 
 to concur with these witnesses in opinion that 
 the deceased was of sound mind; and, con- 
 sequently, I am bound to pronounce for the 
 validity of her will. 
 
 NOTE. In Cartwright v. Cartwright, 1 
 Philllm. Ecc. 00, it is held that, if the testa- 
 tor is shown to have been habitually insane, the 
 party who would take advantage of a lucid in- 
 terval has the burden of showing that the will 
 was made during the lucid interval. 
 
 235 
 
Oiise No. 54 
 
 GARDNER v. GARDNER. 
 
 (§48 
 
 GARDNDR v. GARDNER et al. 
 
 (22 AVend. 526.) 
 Court of Errors of New York. Dec, 1839. 
 Appeal from chancery court. 
 M. T. Reynolds, for appeUant. J. Rhoades 
 and S. Stevens, for respondents. 
 
 COWEN, J. * * '^ The chancellor seems 
 to have entertained great doubt of the tes- 
 tator's sanity, and assuming that the bond 
 was destroyed with the intent imputed, he 
 presumed that the wife or some one else had 
 persuaded the testator to that act, he not be- 
 ing at tlie time of soimd and disposing mind 
 and memory, or being at least open to the as- 
 saults of undue influence. I entirely agree 
 to adopt the test proposed by the chancellor: 
 if the testator vras unfit to make a codicil, he 
 was equally unfit to forgive the debt. The 
 proof on that subject is, that he was an in- 
 temperate man, and had been so from 1815 
 to 1829, some 14 or 15 years, though Mrs. 
 Milnor says he was never out of his senses 
 tiU 1825. His derangement at this time could 
 not have amounted to any very sei-ious dis- 
 qualification; for in that year he made a 
 very judicious will, in which all parties ac- 
 quiesce. In the coiu-se of the ensuing four 
 years his fits of drunkenness became more 
 frequent, his intemperance had grown into 
 a confirmed habit, and his constitution was 
 found to be gradually giving way, notwith- 
 standing the efforts of his friends to break 
 the habit. He was twice confined in the 
 lunatic asylum, which I understand to have 
 been among the expedients resorted to for 
 the purpose of checking his career of drunken- 
 ness. I read of no insanity among the proofs 
 except what arose from the excessive use of 
 ardent spirits. I lay no stress on his being 
 removed from the office of guardian, because 
 I think any master in chancery would report 
 in favor of removing an intemperate man 
 from such a place, though he were yet far 
 short of insanity. That he had sun-endered 
 the management of his property and business 
 to his wife, was evidence either of unusual 
 discretion on his part, or of a salutary in- 
 fluence on hers. I cannot deny that, in the 
 words of the chancellor, the testator was a 
 broken down inebriate; nor that such a man 
 might be entirely unqualified to make a will. 
 Reason might have been dethroned, memory 
 might have lost its seat, and the man have 
 been reduced to the condition of a mere 
 driveller; but ordinarily this is not so. To 
 whatever extent the constitution may be 
 physically impaired by intemperance, the 
 mind retains sufficient strength for the pur- 
 pose of transacting common business, when 
 not clouded by actual Intoxication. Cases 
 were cited at the bar, that if general insanity 
 be established, it will be presumed to con- 
 tinue, unless a lucid interval at the time of 
 the transaction in question be clearly "shown; 
 but does proof that a man is in the habit of 
 236 
 
 often getting drunk, and has even been a 
 drunkard for years, make oat a case of gen- 
 eral insanity within the rule? The greatest 
 drunkard is frequently sober, perhaps every 
 day; his habit is in a degree under the con- 
 trol of himself and his friends; and during 
 the few months that this man spent in the 
 lunatic asylum, the "mad-house," as it has 
 been called by way of emphasis, he was no 
 doubt entirely sober and therefore sane. If 
 his tmfortunate indulgence in the use of ar- ' 
 dent spirits had resulted in a settled derange- 
 ment of mind, independent of the immediate 
 influence of drink, (and if the proof comes 
 short of this, a case of general insanity is not 
 established,) why was nothing of that kind 
 shown or attempted to be shown at the hear- 
 ing? Why was not the family physician 
 called ? General sanity is the natural and or- 
 dinary condition of the mind, and is to be 
 presumed tlU the contrary is established. But 
 we are not left to presumption. Mrs. Milnor 
 says that about a month before the bond was 
 destroyed, she and her mother, having re- 
 ceived word that the testator was pei'fectly 
 himself, went and brought him home from 
 the asylum, whither he had been for the last 
 time. He soon after told Williams to de- 
 stroy the bond, and finally sent for It and 
 destroyed it himself, being perfectly sane of 
 mind; in the phrase of the witness, he was 
 entirely himself; he was not very well; but 
 only weak. I do not find a word of proof 
 that after he returned home the last time, his 
 mind was unsettled, or that he had even re- 
 lapsed into his accustomed indulgence. His 
 whole conduct in making the gift, as sworn 
 to, bears strong marks of deliberation; and 
 the transaction is, in its own character, an 
 argument in favor of sanity. If there were 
 in truth the power of malign influence on the 
 part of the wife, and a disposition to abuse 
 the power, why was it not exerted in a total 
 alteration of the will? Why suffer any part 
 of the estate to pass to the respondents? 
 They had stood in the will for half the per- 
 sonal estate, ever since 1825; the one half 
 only having been bequeathed to the wife. 
 The destruction of the bond was the addition 
 of only $1000 more; for the will ah-eady car- 
 ried one half of the bond to her. What more 
 natural, I ask, than that, in a long turn of 
 perfect sobriety, confined by bodily weakness 
 with his family, he should review the four 
 years which had elapsed since his wiU had 
 been made, the care, the anxiety, the shame 
 which his unfortunate appetite had in the 
 meantime inflicted on his wife; and see the 
 fitness of adding at least this meagre and dis- 
 proportionate codicil? Is there the least dif- 
 ficulty in accounting for such an act, without 
 raising the hypothesis of insanity, or of un- 
 due influenced 
 
 In turning over the books with a view to 
 the form of this gift, I was struck with its 
 similarity, in several respects, to a case 
 which came before Lord Hardv.'ioke in 1740; 
 Richards v. Syms, Barnard. Ch. 90. There 
 
§48) 
 
 GARDNER v. GARDNER. 
 
 Case No. 54 
 
 the defendant borrowed fSOOO of the com- 
 plainaut's father, giving a bond and mort- 
 gage. The defendant's mother was uneasy 
 on accomit of his contracting so heavy a 
 mortgage debt; but the mortgagee told her 
 In her son's presence, that she need not be 
 imeasy, as it was in his power to be kind to 
 her son. Tlie bond and mortgage were kept 
 for some time by a tmstee; but the defend- 
 ant procm-ed them from him, and brought 
 them in a box to the mortgagee's house, 
 where the mother was, and requested him to 
 take them and keep them himself. Upon 
 this, as it was sworn on the part of the de- 
 fendant, the mortgagee put back the bond 
 and mortgage with his hand; and said, 
 "Take back your writings: I freely forgive 
 you the debt." Turning to the mother, he 
 said, "I always told you I would be kind to 
 your son; now you see that I am as good as 
 my word." But this evidence was contradicted 
 on the part of the complainant, who was the 
 mortgagee's son and heir. Lord Hardwicke 
 held that, taking the case as made out on 
 the part of the defendant, the gift discharged 
 both the bond and mortgage. But inasmuch 
 as the conti-adictory evidence left it doubtful 
 whether the mortgagee did make the expres- 
 sions imputed to him, his lordship directed an 
 issue on that question. In the case at bar, 
 which is an appeal from a surrogate, I am 
 not aware of any express statute giving the 
 clianceUor power to award an issue, as is 
 done by the Revised Statutes In certain ca.ses 
 wliile before the surrogate or before a circuit 
 judge in probate cases; but the appeal is 
 given, in the case before us, to the court of 
 chancery, as such. 2 Rev. St. (2d Ed.) 506. 
 And the reason why the legislature were si- 
 lent, was probably, because they knew that 
 the court of chancery has the general inci- 
 dental power to award an issue in all proper 
 cases. I have no doubt of its power in the 
 case before us, if not expressly resti-ained; 
 and I presume its jurisdiction is not, in re- 
 gard to Issues, narrowed any where in the 
 Revised Statutes. Taking the court of chan- 
 cery to hold its ordinary power in this par- 
 ticular, and conceding, for the sake of the 
 argument, that Mrs. Milnor's testimony was 
 shaken, then, I think much the better course 
 would have been to award an issue. The 
 case at bar seems more strikingly to call for 
 such a direction previous to a decision by the 
 chanceUor, than that of Richards v. Syms, 
 where the evidence was agreed to be con- 
 tradictory. The lord chanceUor would not 
 pronounce against the gift even in such a 
 case, till the defendant's testimony had 
 been overruled by the verdict of a jiu-y. In 
 the case at bar, I have endeavotu-ed to show, 
 that there is, at least, very great difficulty 
 in seeing a doubt either in respect to the 
 form and intent of the gift, or the sanity of 
 the donor or his freedom from undue in- 
 fluence. Yet the court of chancery has nulli- 
 fied the gift, without even taking the opinion 
 of a jm-y. If, as was held by Lord Hai-d- 
 
 wicke, the intent to give ought not to be 
 negatived without an issue in Richards v. 
 Syms, such a preeaution in the case before 
 us, even if we do not go beyond an inquiry 
 as to what the testator said, seems to me 
 still more proper. But when we come to 
 doubt on the question of insanity and Undue 
 influence, such a case has always been deem- 
 ed peciiliarly proper for the consideration of 
 a jury. I noticed before, that the gift was 
 in nature of a bequest. The question is of 
 the same character as that which frequently 
 arises on offering a will for probate, in re- 
 spect to which the legislatm-e have made 
 special provisions for an issue on appeal tO' 
 the circuit judge. 2 Rev. St. (2d Ed.) p. 505, 
 § 100. It is analogous to the issue of devisa- 
 vit vel non, so familiarly known to the pro- 
 fession. Mingled, as this matter was before 
 the auditors, with the general account, and 
 introduced by way of supplemental charge at 
 an advanced stage of the hearing, (though I 
 do not mean to deny the regularity of that 
 course in strict practice,) it is easy to per- 
 ceive that the hearing must have been 
 greatly wanting in that fulness of prepara- 
 tion, and singleness of attention, and thor- 
 ough examination peculiar to the trial a 
 feigned issue. May I be permitted to say 
 again that, to my mind, there was an un- 
 accountable paucity of proof to show insan- 
 ity? In Kettletas v. Gai-dner, read in evi- 
 dence from 1 Paige,. 488, the master reported 
 that Gai-dner was of sound mind when the 
 report was made, though his bodily health 
 was impaired and his habits of intemperance 
 laid him open to frequent attacks of insan- 
 ity. It is evident from the report that the 
 fits of insanity spoken of were entirely vol- 
 imtary; the man got drunk often and that 
 was the amount of his insanity. The report 
 was made in 1829, after he had come from 
 the asylum the last time, a sober man, as 
 Mrs. Milnor says; nor was there a particle 
 of evidence, that he was ever drunk after 
 that time. The amount of the master's re- 
 port is that he was liable to become insane. 
 That he ever became so after he left the asy- 
 lum he does not say; and when he destroyed 
 the bond he was, as Mrs. Milnor says, per- 
 fectly himself. She had been long acquaint- 
 ed with him, and could doubtless tell as a 
 matter of fact at the time, whether he was 
 drunk or sober. It must have been a sm-- 
 prize to this widow to be told that her hus- 
 band who had been in the habit of getting 
 drunk could not, for that reason, make a 
 codicil, or add to her legacy by way of dona- 
 tio causa mortis, when he was perfectly 
 sober. I feel fully authorized to believe that 
 there was nothing in the case different from 
 the ordinary alternations of an intemperate 
 man. That his habit had at any time re- 
 sulted in delirium tremens is no where said. 
 Even that, the worst and commonly the 
 most imbecile state of the drimkard, is often 
 attended with turns of sobriety sometimes 
 for weeks. Again, I ask if there was any 
 
 237 
 
Case iNo. 54 
 
 GABDNER v. GARDNER. 
 
 (§48 
 
 thing more than common drmiken fits, why 
 was it not shown? Doct. Rogers had ad- 
 vised that he should be confined. Why was 
 the doctor not examined? Mrs. Gardner had 
 raised the issue. Her own witness had pro- 
 nounced the man sober at the very moment 
 of the gift; and also declared that he came 
 from the asylum, on an invitation to fetch 
 him as a cured man. If she was mistaken in 
 her estimate of his condition, she might have 
 been met by a cloud of witnesses; the physi- 
 cians at the asylum, the keeper and his agents, 
 in addition to the family physician, and the 
 neighbors who had noticed him since his re- 
 turn. If his faculties had become so im- 
 paired that he was too stupid for plain busi- 
 ness when clear of drink, surely this must 
 have been well known, and could have been 
 easily proved. Yet all was rested on criticis- 
 ing the testimony of Mrs. Milnor and the ju- 
 dicial removal of the man from his office of 
 guardian because he was intemperate. It is 
 true that Mrs. Gardner might have called the 
 witnesses of whom I speak; but I do not 
 think her counsel was warranted in doubting 
 that her case was fully made out, and must 
 stand, till it was more seriously impeached, 
 than it had yet been by opposing testimony. 
 Beck, in his treatise on medical jurispru- 
 dence, (volume 1, 1st Ed. 376,) advises that 
 "the conduct of drunkards should be particu- 
 larly noticed during the intervals of temper- 
 ance. If spirituous liquors exercise such an 
 influence as to render us doubtful concern- 
 ing the state of mind at this time, we may 
 reasonably infer that the alienation is be- 
 coming permanent." Why was not such an 
 obvious point of view resorted to? Was it 
 enough to talk of the madhouse? This was 
 evidently a mere misnomer. Doct. Rush, in 
 treating of mental disease, calls it a "sober- 
 house," and advises that an hospital be 
 established in every city and town in the 
 United States, for the exclusive reception of 
 hard-drinkers. Diseases of the Mind, (Ed. 
 1812,) 267. The ground taken by Rush is, 
 that drunkards are mischievous. Swinburne 
 says the drunkard is like a mad man diu'ing 
 the time of his drunkenness; and cannot 
 make a will when he is so excessively drunk 
 that he is utterly deprived of the use of rea- 
 son and understanding; otherwise, "if he be 
 not clean spent, albeit his understanding be 
 obscured and his memory troubled." 1 
 Swinb. Wills, (4th Ed. 1803,) 138. 2 Bl. 
 Comm. 497, says, "he is incapable when his 
 senses are besotted with drunlieuness." Mr. 
 Stock, in his late treatise on the law of non 
 compotes mentis, 46, 47, gives as the result of 
 the authorities, that "proof of drunkenness 
 amounting to insanity will invalidate a will; 
 but If it be shown that the testator was not 
 under the influence of strong liquors at the 
 time of the execution, the presumption will 
 be in favor of the will, a presumption 
 strengthened or impaired of course by the 
 internal evidence of the contents." What 
 reason, I ask, had Mrs. Gardner to suppose 
 228 
 
 she did not stand within the very terms of 
 the rule, after proving that her husband was 
 perfectly sober when he destroyed the bond? 
 Least of all, I think had she reason to expect 
 the imputation of undue influence; and feel 
 herself called upon to repel any thing of that 
 kind. There was not one particle of evi- 
 dence that she had ever urged her husband 
 on the subject; and I must be permitted to 
 deny, on authority, that her general influence 
 could be received as any proof against her. 
 In Williams v. Goude, 1 Hagg. Ecc. 577, 581, 
 595, a like inference was sought to be made. 
 There the husband was a tavern keeper; 
 and, it seems, not only drank, but had become 
 a good deal stupefied under an attack of the 
 apoplexy. In respect to the charge of undue 
 influence. Sir John NichoU remarks; "There 
 was the general influence of an active, bus- 
 tling, high spirited wife, over a good natmod 
 easy husband; in consequence of his attack, 
 it was necessary she should take a still more 
 decided lead in the management of the con- 
 cerns of the house. It was necessary she 
 sbould, as a kind nurse and an affectionate 
 wife natiu'ally would, insist on his going to 
 bed at his regular hour; on his not indulging 
 too freely in liquor," &c.; adverting to other 
 acts of salutary influence. But he adds; "I 
 can find no trace of any unfair importunity, 
 on the part of the wife to Induce him to alter 
 his will, or do any testamentary act." The 
 general influence arising from his affection 
 for and deference to his wife, the learned 
 judge refuses to admit as matter of suspicion. 
 He says, in another place: "Indeed, it would 
 be extraordinary, if the influence Of affec- 
 tion and of warm attachment is to take away 
 the power of benefitting the object of that 
 regard. The influence, to vitiate an act, 
 must amount to force and coercion destroy- 
 ing free agency, it must not be the influence 
 of affection and attachment, it must not be 
 the mere desire of gratifying the wishes of 
 another; for that would be a very strong 
 ground in support of a testamentary act. 
 Fm'ther, there must be proof that the act 
 was obtained by this coercion; by impor- 
 tunity that could not be resisted; that it was 
 done merely for tfie sake of peace, so that 
 the motive was tantamount to force and 
 fear." Was there any thing of all this in 
 Mrs. Gardner's case which it lay with her to 
 repel? I confess myself utterly at a loss to 
 conjecture on what the mind can fasten it- 
 self bearing the remotest semblance of un- 
 due influence. These probate investigations 
 were an every day matter with Sir John 
 NichoU, who fixes the onus on the party 
 charging undue influence, saying he must put 
 his finger on the act, showing how it was 
 wrought. In the case at bar, the auditors 
 say Gardner was exposed to undue influence. 
 The surrogate adds he may perhaps have la- 
 boured under the terror of being sent back 
 to the madhouse; and the chancellor says, 
 "I must presume the mother, or some one 
 I else, had persuaded the decedent to destroy 
 
§-48> 
 
 GARDNER v. GARDNER. 
 
 Case No. 54 
 
 the bond."^ Certainly he was exposed to in- 
 fluence, and, so is every man on a bed of 
 sickness, or in the hands of his nurse, even 
 though she be his wife. Are we, therefore, 
 to presume that it was exerted? Perhaps he 
 was afraid of being sent back— are we there- 
 fore to presume that Mrs. Gardner shook his 
 pirrpose by threats of incarceration? If we 
 proceed from exposure, into the regions of 
 conjecture, it is difficult to conceive how a 
 great majority of testamentary acts are to 
 escape the imputation of undue influence. 
 If I could presume that Mrs. Gardner, or 
 some one else, persuaded her husband to for- 
 give her the loan, it appears to me, with 
 great deference, to be a perfect non sequitur. 
 Was there fraud? Was there terror? Was 
 there harassing importunity, and a com- 
 pliance for the sake of peace in the dying 
 hour? Stock, Non Com. Ment. 47, 48. Had 
 Mrs. Gardner the least reason to suppose 
 that her conduct was open to this harsh con- 
 struction? Why did she not seize with unbe- 
 coming eagerness on the request that she her- 
 self would destroy the bond? A messenger Ib 
 resorted to. The trustee gives up the bond. 
 The testator is allowed time to pause and re- 
 flect. This is the proof. Is it not more 
 natural to suppose that she had been slow 
 and sorrowful, ia yielding to the severe treat- 
 ment of her unhappy husband? Is it pos- 
 sible I can be mistaken, when I suppose that 
 no presumption ought to arise against her, 
 because she had taken the helm from the 
 hand of a drunlcen pilot, and thus saved the 
 remnant of his fortune from shipwreck? 
 What would otherwise have been left for 
 him to bequeath in favor of the respondents 
 or any body else? We are not dealing with 
 a needy and artful adventurer insinuating 
 herself Into a marrige with age and weak- 
 ness, for the sake of a fortune. Each had a 
 competency; and we find the testator living 
 at Mrs. Gardner's own house in Prince-street. 
 They had doubtless contracted their imion 
 with the ordinary expectation of wealth and 
 respectability and domestic happiness. Mrs. 
 Gardner had lived to see aU these hopes 
 fade, without any fault of hers; and, more- 
 over, found herself involved in the usual 
 round of fallacious expedients to reclaim an 
 intemperate husband. She must have been 
 miserable; but her suffering for years does 
 not appear to have subdued her affection, or 
 led her to falter in the discharge of her 
 
 duty. The husband seems to have become 
 sensible of all this in his last sickness; and 
 I have been unable to detect any other in- 
 fluence as leading to a destruction of the 
 bond. 
 
 He had the undoubted legal power to for- 
 give this debt to his wife, 2 Kent, Oomm. 
 (3d Ed.) 153, and the cases there cited, in the 
 form which the deposition of Mrs. Mllnor 
 represents him as having pursued. Richards 
 V. Syms, 1 Barnard. Ch. 90. And to my mind 
 the proof is entirely clear, not only that the 
 requisite form was complied with; but that 
 it is free from the imputation of insanity or 
 undue Influence. 
 
 The whole, however, I think, resolves it- 
 self into a question of evidence; and I agree 
 to the proposition of one of the counsel for 
 the respondents in his argument, that If this 
 court should believe there was a fair conflict 
 of evidence before the auditors, and the law 
 wlU not allow an issue, their conclusion ought 
 not to be distm-bed. I would give it the force 
 which we allow to a verdict on a motion for 
 ■a new trial, and refuse to reverse their re- 
 port, except in a case where they may have 
 concluded against the decided weight of evi- 
 dence. Such I think is the case at bar. But 
 even if there was a fair conflict of evidence, 
 as I think there was power in chancery to 
 award an issue, it should have been done. 
 In either view I am for a reversal of the 
 chancellor's decree. Should this court, how- 
 ever, differ with me upon the force of the 
 evidence, with regard to the destruction of 
 the bond, then I am of opinion the decree of 
 the chancellor should be affirmed. 
 
 The manner of introducing the charge of 
 the two thousand doUars before the auditors, 
 was a mere matter of practice; and the costs, 
 though final, are not in this case the subject 
 of appeal. Both rested in the discretion of 
 the court below. Rogers v. Holly, 18 Wend. 
 350, and the cases there cited. Rowley v. 
 Van Benthuysen, 16 Wend. 369. 
 
 On the question being put, "ShaU this de- 
 cree be reversed?" twenty members of the 
 court answered in the affirmative, and three 
 In the negative. Whereupon so much of the 
 decree of the chancellor as affirmed the de- 
 cree of the surrogate, charging the appellant 
 with the sum of $2000 loaned to her by her 
 husband, was reversed. 
 
 NOTE. See Ayrey v. Hill, 2 Addams, Ecc. 
 206: Peck V. Gary, 27 N. Y. 9. 
 
 239 
 
Case No 55 
 
 VAN ALST V. HUNTER. 
 
 (§ 49 
 
 VAN ALST et al. v. HUNTER et al. 
 
 (5 Johns. Ch. 148.) 
 
 Court of Chancery of New York. 1821. 
 
 The plaintiffs, Abraham Van Alst and 
 twenty others, being heirs at law of Jacob 
 Bennet, deceased, filed their bill on the 4th 
 of November, 1818, against the defendants, 
 George Hunter, and Anne his wife, and 
 David C. Van Alst, to set aside the will of 
 Bennet, on the ground of the incompetency 
 of the testator. 
 
 The testator died on the 22d of April, 1817, 
 leaving the plaintiffs, and the defendants 
 Anne Hunter and D. C. V. A. his heirs at 
 law. On the 10th of January, 1816, the tes- 
 tator made a will and codicil set forth in 
 the bill, by which he gave to the defendant 
 Hunter, and Anne his wife, the farm on 
 which the testator then lived, at Newtown, 
 in Queen's county, in fee, charged with the 
 payment of 1,750 dollars, to the other de- 
 fendant, D. C. Van Alst, the grandson of 
 the testator. He also devised to them, his 
 negroes, furnitvu-e, and stock on his farm, 
 and directed his executors to pay his debts 
 out of his personal estate not before be- 
 queathed, and authorized them to sell his 
 lands in King's county; and all the residue 
 of his estate, of what nature or kind so- 
 ever, he gave to his grand children and great 
 grand children, in fee. Anne Hunter was 
 the only sui'viving child of the testator. 
 The bill charged that the defendants had 
 taken possession of the real estate, and of 
 the deeds and muniments of title, &c. That 
 the said pretended will, if ever made and 
 published, was void in law, on account of 
 the incompetency of the testator, who was 
 not of sound mind and memory at the time, 
 and was under the improper restraint and 
 influence of the defendants. The bill pray- 
 ed, that the will might be decreed to be 
 void, and be ordered to be delivered up and 
 cancelled; that a ti-ial at law might be had, 
 under the directions of the court, to ascer- 
 tain the validity or invalidity of the will 
 and codicil; that the defendants be let into 
 the possession of their respective shares of 
 the premises; and that the defendants be 
 enjoined from committing waste, and ac- 
 count for the rents and profits, &c., and for 
 general relief. 
 
 The answer, filed January 29, 1819, ad- 
 mitted the descent of the plaintiffs, as stat- 
 ed, the seisin of Bennet, and his death, and 
 that the defendants had possessed them- 
 selves of the real estate, &c.; and alleged 
 that they had good title to the same, under 
 the last will and testament of J. B., dated 
 January 10, 1816, duly attested; and they 
 averred that the testator was of sound mind 
 and memory when he made the will and 
 codicil, &c., and that the same are valid at 
 law, and were not made under any resti-aint 
 or improper influence, and that they were 
 willing that the validity of the will should 
 240 
 
 be tried in any manner the court might di- 
 rect. 
 
 A rejilication was filed, and proof taken as 
 to the competency of the testator. Twenty- 
 one witnesses were examined on the part of 
 the plaintiff, and twenty-three on the pai-t 
 of the defendants. On the 1st of December, 
 1819, a decretal order was made, directing 
 a feigned issue to be made and tried in the 
 city of New-York, by a jury, to determine 
 whether J. B. was of sound mind and mem- 
 ory at the date of the will, and competent 
 to make the will and codicil, on the trial of 
 which issue the pleadings and the proofs 
 taken in the cause were to be admitted in 
 evidence. The feigned issue was tried at 
 the New-York sittings, in June, 1820, before 
 Mr. Justice Yates; and after a trial of eight 
 days, the jm-y found a verdict for the de- 
 fendants; and the judge certified, that the 
 defendants examined twenty witnesses, 
 whom he named, and read the depositions 
 of seven witnesses who had been examined 
 in chief in this court, and that the plaintiffs 
 had examined nineteen witnesses named by 
 him, and read the depositions of five wit- 
 nesses, who had been examined in chief in 
 this court; and that "the verdict was sat- 
 isfactory to him." On the 26th of June, 1820, 
 the N. P. Record of the feigned issue, with 
 the judge's certificate endorsed thereon, were 
 brought into this court; and on motion of 
 the counsel for the defendants, filed with 
 the register. This court continued its ses- 
 sion, for four days, after the 26th of Junp; 
 but no step was taken by the plaintiffs in 
 the cause, nor were any proceedings had 
 by them during the following August term. 
 In the ensuing vacation, an order was ob- 
 tained by the defendant's solicitor, to set 
 down the cause for a final hearing in Octo- 
 ber, 1820, on the equitj- reserved. The cause 
 was, accordingly, regularly brought to a 
 hearing at that term, which commenced on 
 the 23d of October. 
 
 November 9, 1820. T. A. Emmet, for plain- 
 tiffs, moved for a new trial, on an ex parte 
 statement of the evidence given at the trial 
 of the feigned issue, furnished by him, and 
 which accompanied the notice of the mo- 
 tion: and he also moved, that if it should 
 be objected, that the evidence, so produced, 
 was not duly authenticated, that a copy of 
 the judge's minutes might be directed to be 
 produced. 
 
 THE CHANCELLOR, for the reasons 
 stated by tlio counsel for the defendants, de- 
 nied the motion for a new trial. 
 
 The cause then came on for a final hearing 
 on the equity reserved. 
 
 T. A. Emmet and Mr. Hoffman, for plain- 
 tiffs. D. B. Ogden and Mr. Wells, in reply. 
 
 THE CHANCELLOR. This was a bill 
 filed by the heirs of Jacob Bennet, to set - 
 aside his will, as having been made, when 
 by reason of his age and Infirmity, he was 
 
§49) 
 
 VAN ALST V. IIUXIEU. 
 
 Case No. S5 
 
 not of eomijetent mind and menioi'y, or of 
 having been procm-ed by the undue Influence 
 of the defendants. An issue was awarded, 
 according to the practice of the court in 
 such cases, to try the question of the testa- 
 tor's competency, and the validity of the 
 will. The cause was tried at the New- York 
 sittings, in June, 1820, and after a trial 
 which lasted eight days, and in which thirty- 
 alne witnesses were examined, viva voce, 
 and twelve depositions of witnesses not pro- 
 duced, were read, the verdict of the jury 
 was in favom- of the validity of the wUl. 
 The judge who presided at the ti-ial, certi- 
 fied that the verdict was satisfactory to 
 him, and no objection has been made to 
 any proceeding or decision at tlie trial. 
 
 The nisi prius record of the feigned issue 
 and verdict, with the judge's certilicate en- 
 dorsed, was brought into tlus com-t, and filed 
 during the last June term, and fom- or five 
 days before the end of the term. Dm-ing 
 the August term, nothing was moved or 
 done in the case, but the cause was regular- 
 ly set down for hearing, on the part of the 
 defendants, at the last October term, upon 
 the equity reserved. The term commenced 
 on the 23d of October, and on the 9th of 
 November, the counsel for the plaintiffs 
 moved for a new trial upon an ex parte 
 statement of the testimony taken upon the 
 trial, and furnished on their pai't, but with- 
 out any previous offer or attempt to settle a 
 case between the parties, or any application 
 or reference to the judge for his notes. The 
 motion was consequently denied, by reason 
 of the delay, and of the absence of every 
 other document but the ex parte statem(;nt. 
 The cause was then brought to a hearing 
 upon the equity reserved, and a new trial 
 was moved for, upon the ground of the testi- 
 mony taken in chief in this coiu-t, and which 
 was substantially the same as that after- 
 wards produced upon tlie ti-ial of the feigned 
 issue. 
 
 There can be no doubt of the regularity of 
 the application for a new trial, at the hear- 
 ing upon the equity reserved. It has been 
 as often granted in that way, as upon a 
 previous petition, or distinct motion for the 
 pm-pose. To satisfy myself upon the merits 
 of the case, I have not only read over the 
 testimony taken in chief, but have also ap- 
 plied to the learned judge who presided at 
 the sittings, and have examined his notes, 
 taken at the trial, and compared the testi- 
 mony of the witnesses who were sworn at 
 the ti-ial, with the testimony of the same 
 witnesses previously taken in this court. 
 There were also some witnesses examined 
 at the trial, who had not been previously ex- 
 amined here, and particularly five witnesses 
 on the part of the defendants, who gave 
 material testimony in addition to what had 
 been before furnished, in favour of the tes- 
 tator's competency. I have thus possessed 
 myself of all the proof taken on the subject, 
 both in this court and upon the trial of the 
 ABB. WILLS — 16 
 
 issue, and there is no affidavit or suggestion 
 of the discovery of fm-ther testimony mate- 
 rial to the case. 
 
 The question then fairly presents itself: 
 Am I bound by the rules and practice of the 
 com't, at all events, to grant a new trial, 
 seeing that the verdict which has been 
 taken, is against the heirs, and in favour of 
 the will? Or, if a reasonable discretion is 
 permitted to be exercised, is a new trial, un- 
 der all the circumstances of this case, dic- 
 tated by such discretion? 
 
 1. There can be no doubt of its being the 
 more usual course in the English chancery 
 to grant a second trial, in favour of the heir, 
 and out of regard to the inheritance, which 
 is greatly respected, and peculiarly guarded 
 by the policy of the law. But I have not 
 been able to discover any absolute and in- 
 flexible rule in favour of such second trial. 
 Though the court generally gi-auts a second 
 trial, in cases touching the inheritance, be- 
 fore it concludes the heir, yet tMs is not al- 
 ways the ca^e, and there are precedents 
 both ways. The latest case on the subject, 
 is that of White v. Wilson, 13 Ves. 87, which 
 came before Lord Brskine, in 1806. In that 
 case, the devisees filed the bill, to have a 
 will established and the trusts carried into 
 execution. An issue, devisavit vel non, was 
 granted at the instance of the heir at law, 
 suggesting Incompetency in the testator. 
 Upon the trial of tlie issue in the K. B., a 
 verdict was found in favour of the will. A 
 motion was made on the part of the heir for 
 a new trial, upon a suggestion of the ex- 
 pectation of fiu-ther evidence; and that if 
 directions were to be given upon this ver- 
 dict, the efl:ect would be a perpetual injunc- 
 tion, and the right never could be bound by 
 a single ejectment. The lord chancellor de- 
 clared, "That he should be very sorry to find 
 a rule in the court, that there must be a 
 second tiial of an issue, if desired, . without 
 any ground laid for it. The inclination of 
 courts of justice is against permitting par- 
 ties to beat up for evidence; especially in a 
 case of fact, mixed with opinion. No affi- 
 davit Is produced, giving the reason to ex- 
 pect further evidence capable of shaking the 
 verdict." The new trial was accordingly 
 denied; and when the cause was decided 
 upon the equity reserved, the chancellor 
 gave no costs on either side, as to the trial 
 of the issvie, but ordered the heirs at law to 
 pay the costs of the motion for a new trial, 
 and gave them their costs of the suit. 
 
 This is a stronger case than if the heir had 
 filed the bill; for here the heir was called 
 into a court of equity, and did not volvm- 
 tarily desert his privilege at law of trying 
 the question in ejectment, where a verdict 
 does not conclude him. The heir has no 
 right to come here. 3s of course, and have 
 an issue substituted in the place of an eject- 
 ment; for a com't of equity is not the proper 
 jurisdiction to try the validity of a will. 
 When an issue has been directed, on the bill 
 
 241 
 
Case Xo. 55 
 
 VAN ALST V. HUNTEU. 
 
 (§49 
 
 of the heir at law, It has been, according to 
 what was said by the master of the rolls, in 
 Jones V. Jones, 3 Mer. 161, in cases, where 
 no opposition has been made to that mode of 
 proceeding. It has been understood to be 
 settled, since the case of Kerrich v. Brans- 
 by, 7 Brown, Pari. Gas. 437, decided on ap- 
 peal, in 1727, that the validity of a will must 
 be determined upon a trial at law. See, 
 also, Dawson v. Chater, 9 Mod. 90. If the 
 heir will abandon his remedy, by ejectment 
 at law, and come here by bill, for an issue, 
 (which has sometimes been termed an eject- 
 ment bill,) he must content himself to take 
 his remedy here, under the doctrine of the 
 com-t, that a right may be considered as de- 
 termined, with a view to a perpetual injunc- 
 tion, by one trial at law, if such issue be 
 sent out of this court for that purpose. This 
 was the doctrine as declared by Lord Thur- 
 low, in Robinson v. Lor^d Byron, 2 Cox, Oh. 
 4, and it had formerly received illustration 
 and sanction, on appeal, in parliament, in 
 the case of Lomax v. Ryder, 7 Brown, Pari. 
 Cas. 145. In that case, an issue was award- 
 ed in chancery, to try a question, as to what 
 was freehold and what was copyhold land, 
 and a new trial was afterwards moved for 
 in chancery, and denied. An appeal was 
 carried to the house of lords, and it was 
 contended, that as the appellant's inherit- 
 ance was concerned, it ought not to be 
 bound by one trial, when he was at liberty 
 to try his right in ejectment as often as he 
 pleased.— That if he could not obtain a new 
 trial, he would be for ever barred of his 
 right, being restrained by the court of chan- 
 cery from bringing any action at law to as- 
 sert the same; and that by the rules and 
 practice of the com-t, in the case of an In- 
 heritance, a new trial was very rarely, if 
 ever denied. To this it was answered, that 
 the appellant had elected to take his remedy 
 In equity, and not by ejectment. That the 
 reason why, in ejectment, one ti-ial does not 
 bir.d the inheritance, is not from any rule 
 or maxim of law, that one trial cannot con- 
 clude the right; for in proper actions that 
 may be done, but from the peculiar nature 
 of an ejectment, in which no judgment as 
 to the inheritance, can be given. 
 
 The reasoning on the part of the respond- 
 ent was sanctioned by the affirmance of the 
 decree. 
 
 In the case of .Salter v. Hite, 7 Brown, 
 Pari. Cas. 389, the devisees filed their bill, 
 to establish a will; and the heir at law 
 thereupon filed a cross bill, praying for an 
 issue at law, to try the validity of the will. 
 After the cause was at issue iu chancery, 
 several witnesses were examined on both 
 sides, and an issue awarded. The trial of 
 the issue at the assizes, lasted fourteen 
 hom-s, and a great number of witnesses 
 were examined, for and against the will, 
 who spoke nearly to the same effect, as 
 they had before deposed to, upon their ex- 
 amination in chancery. The verdict of the 
 
 24:3 
 
 jm-y was in favour of the will; and In con- 
 sequence of it, and of the great contrarietr 
 in the evidence, a new trial was moved for, 
 and largely discussed; but Lord Chancellor 
 Bathurst, in 1771, denied the motion, and 
 declared, that both himself anl the judge 
 who ti-ied the cause, were satisfied with tht- 
 verdict. 
 
 From this order, the heir at law appealed, 
 and his very able comisel (Sir J. Mansfield, 
 and Sergeant Glynn,) never pretended tO' 
 claim, as a matter of right, that a second 
 trial was to be granted, without having re- 
 gard to the merits of the verdict. They 
 only observed, "that courts of equity had 
 often directed new trials in suspicious caseSp 
 where fraud or forgery was imputed to a 
 will, and the verdict had not been satisfac- 
 tory." They relied on the fact that the evi- 
 dence clearly preponderated in favour of the 
 heir, and that the evidence in support of 
 the will was absurd, inconsistent, and con- 
 ti-adictory, and, in short, that the facts given 
 in evidence were exceedingly complicated,, 
 and inconsistent with each other; and that 
 on a new trial certain books which were ma- 
 terial and wanting, might be produced. The 
 orded denying a new trial was reversed, and 
 a new trial awarded; and on the second trial,, 
 which lasted eighteen hom-s, and in which* 
 the evidence was very contradictory and the- 
 circumstances complicated, the verdict was 
 against the will, and another trial was then 
 ordered by the lord chancellor. Upon this 
 second order there was, also, an appeal, and' 
 this order was reversed, and the second ver- 
 dict established. But it is to be observed, 
 that the testimony on the second trial was 
 very essentially varied, so as to render the 
 verdict the result of different evidence; and', 
 it was declared upon the discussion on the- 
 last appeal before the lords, that the lords im 
 directing a new trial on the first appeal, act- 
 ed upon the suspicions which they enter- 
 tained as to the truth of the testimony in 
 support of the will, and on the ground that 
 the first verdict was not satisfactory upom 
 the evidence. 
 
 This case may be cited as perfectly de- 
 cisive of the question, and it proves, demouf 
 strably, that there is no absolute and invari- 
 able rule of equity, that two successive ver- 
 dicts are indispensable to establish a will. 
 Such a rule would be most unreasonable and! 
 absm-d. Lord Bathurst, in this case, refused 
 a second trial; and when the lords reversedl 
 the order, and granted a new trial, the coun- 
 sel and the com-t put it upon the ordinary and' 
 true ground for gi-anting new ti-ials, that the 
 verdict was not satisfactory and was against 
 the weight of evidence. The new trial was 
 not the result of any arbitrary and fixed rulCr 
 for that would have precluded all discussions 
 but it proceeded from the application of a 
 sound discretion to the special case. Lord 
 Hardwicke has frequently declared, to the- 
 same effect, his sense of the rule for gi-anting 
 new trials, even where the inheritance was- 
 
§49) 
 
 VAX ALST V. HUNTER. 
 
 'Case No. 55 
 
 concerned. Thus he observed in Stace v. 
 Mabbot, 2 Ves. Sr. 5.33, that the com-t -would 
 direct a new trial, for further satisfaction in 
 cases of feigned issues, if upon "any mate- 
 rial and weighty reason," the verdict did not 
 satisfy the cornet; and that this was known 
 to be the ordinary rule where a matter of 
 inheritance was in question, "if any sort of 
 objection arises to the trial." And he ob- 
 served again, in Cleeve v. Gascoigne, Amb. 
 323, that the coiu-t "has frequently granted 
 new trials, merely because the inheritance 
 was to be bound." In Baker v. Hart, 1 Ves. 
 Sr. 28, as reported in Vesey, Lord Hardwicke 
 declared, that "in doubtful questions relating 
 to inheritance, a coifft of equity frequently 
 gi-ants a new trial, without setting aside the 
 former verdict, which is of great consequence 
 to the parties, for then it may be given in 
 evidence, though not conclusive." But, he 
 fm-ther obseiTved that, "it had never pre- 
 vailed as a general rule, though it was a 
 matter of inheritance, but according to the 
 circumstances of the case." The most that 
 can be said on the subject is, that the court 
 will more readily, and on slighter grounds, 
 grant a new trial in favour of the heir, when 
 the first verdict goes to establish the will, 
 than in other cases, where a feigned issue 
 has been tried. The cases which have been, 
 or which may be referred to on the question, 
 prove this point, and they prove nothing 
 more. 
 
 2. We are next led to look into the testi- 
 mony in this case, and to determine whether, 
 under all the circumstances, it be expedient 
 and proper, that there should be a new trial. 
 
 The testator was between 90 and 100 years 
 of age, when he made his will, but it is well 
 understood that age alone will not disqualify 
 a person from making a will, provided he has 
 a competent possession of his mental facul- 
 ties. "A man may freely make his testa- 
 ment, how old soever he may be, for it is not 
 the integrity of the body, but of the mind 
 that is requisite in testaments." Swinb. Wills, 
 pt. 2, § 5. This has been the docti'ine of law 
 in every age. "Senium quidem aetatis vel 
 aegi'itudinem corporis sinceritatem mentis 
 tenentium, testamenti factionem certum est 
 non auferre." Code, 6, 22, 3. "Sola, ac perse, 
 senectus donationem testamentum aut trans- 
 actionem non vitiat." Code, 8, 54, 16, note 
 C2. The law looks only to the competency 
 of the understanding; and neither age, nor 
 sickness, nor extreme disti-ess or debility of 
 body will afiEect the capacity to make a will, 
 if sufficient intelligence remains. Voet, in 
 his Commentaries on the Pandects, (Lib. 28, 
 tit. 1, § 36,) expresses himself on this point in 
 the strongest and most emphatical language: 
 "Licet enim non sani tantum, sed et in agone 
 mortis positi, seminece ac balbutiente lingua 
 voluntatem promentes, recta testamenta con- 
 dant, si modo, mente adhuc valeant." 
 
 Nor does the will, in the present case, upon 
 its own intrinsic merits, betray a want of 
 competent mental powers in the testator. 
 
 He lived to witness three generations de- 
 scended from his loins, and he had but one 
 child left in the first degree, and this was his 
 daughter, Mrs. Hunter, who undoubtedly felt 
 the force of filial love and gratitude much 
 more strongly and vividly than the remoter 
 generations. The affections and consequent- 
 ly the kindness and attention of the descend- 
 ants naturally grow more languid as the 
 generations recede from the common ances- 
 tor. It was she, who alone siirvived to 
 nm-se him with a daughter's care, and "to 
 rock the cradle of reposing age." He had 
 also been, for sixty years, a man of domestic 
 and retired habits and during all that time, 
 almost wholly confined to his farm, on which 
 he died, and which he had cultivated and 
 guarded with care and attachment. Nothing 
 was more natural and agreeable to the course 
 of the affections, than that he should cherish 
 a wish which he so often declared, to have 
 have that homestead (as it is termed in the 
 will) preserved entire for his daughter, and 
 not sold or parcelled out among twenty or 
 thirty distant descendants. He, therefore, 
 devised this homestead, with the stock upon 
 it, to his daughter and her husband,' and 
 charged it with a legacy of 1700 dollars to a 
 particular grandson who lived with him. 
 The residue of his estate he distributed 
 equally among a numerous progeny of gi-and 
 and great grand children; and I should feel 
 reluctant, without pretty strong proof of in- 
 capacity, to disturb a will replete with so 
 much just feeling and rational calculation. 
 
 It is one of the painful consequences of ex- 
 treme old age tha't it ceases to excite Inter- 
 est, and is apt to be left solitary and neg- 
 lected. The control which the law still gives 
 to a man over the disposal of his property, is 
 one of the most efficient means which he has 
 in protracted life, to command the atten- 
 tions due to his infirmities. The will of 
 such an aged man, ought to be regarded with 
 great tenderness, when it appears not to 
 have been procured by fraudulent arts, but 
 contains those very dispositions which the 
 circumstances of his situation, and the coiu-se 
 of the natm-al affections, dictated. 
 
 There is no ground whatever in this case 
 for the imputation of fraud or unfair prac- 
 tices, in the procuring of this will. The 
 manner in which this will was read over to 
 the testator, and corrected, and executed, 
 and the reputation of the person by whom it 
 was drawn, and the character and knowl- 
 edge of the subscribing witnesses, have sat- 
 isfied me, that it was fairly executed. The 
 whole case resolves itself into one simple 
 question of fact, whether the testator, by rea- 
 son of age, had, or had not, lost his sound 
 disposing mind and memory? 
 
 It is worthy of observation, that not a sin- 
 gle act of folly or imbecility is imputed by 
 any of the witnesses to the testator. The 
 witnesses, on one side, represent his memory 
 as gone, and that he was always of weak 
 understanding, and quite illiterate; and tliey 
 
 248 
 
Case Ko. 55 
 
 VAN ALST V. HUXTER. 
 
 (§49 
 
 then give their opinion, that he was not com- 
 petent to make a will. The witnesses on 
 the other side, represent him as a man of 
 remarkable activity and memory for his age; 
 and they give numerous Instances of his vig- 
 ilant and sharp attention to his property. I 
 cannot perceive that a single foolish act or 
 saying has been imputed to him. And all 
 the proof of mental imbecility seems to have 
 been inferred from his loss of memory, ex- 
 cept it be, perhaps, in the case of a conver- 
 sation with a clergyman on the subject of 
 religion. The weight of testimony, from the 
 proofs taken in chief, appears to me to be de- 
 cidedly in favor of the requisite competency 
 of mind; and that preponderancy of testi- 
 mony is increased by tJie facts detailed by 
 the five new witnesses, who were examined 
 at the trial on the part of the defendants. 
 The failure of memory is not sufficient to cre- 
 ate the incapacity, unless it be quite total, 
 or extend to his immeaiate family and prop- 
 erty. The Roman law (Code, 6, 24, 14, and 
 note 55) seomed to apply the incapacity only 
 to an extreme failure of memory, as for a 
 man to forget his own name — "fatuus prae- 
 sumitur qui in proprio nomine errat." There 
 was no defect of memory, in this case, in re- 
 spect to any thing very essential; and the 
 witnesses give many instances of a strong 
 and correct memory in the testator. The 
 want of recollection of names is one of the 
 earliest symptoms of a decay of the memory; 
 but this failure may exist to a very great de- 
 gree, and yet "the solid power of understand- 
 ing" remain. 
 
 There does not appear to me to be any just 
 ground for a new trial. There is no new 
 light to be thrown on the subject by further 
 proof; and I ara more satisfied with this ver- 
 dict than I should hav<! been, if it had been 
 on the other side. If a second trial was to 
 be had, and a verdict found the other way, 
 it would seem almost to follow of com-se (as- 
 siuning the fact that the verdict was found 
 upon the same testimony) that a third trial 
 must be awarded, in order to turn the scale. 
 The property and the parties would probably 
 be, by that time, nearly exhausted by such 
 very expensive and distressing litigation; 
 244 
 
 and I do not see that such a result would pro- 
 mote either the ends or the reputation of the 
 administration of justice. 
 
 I shall, accordingly, deny the motion for a 
 new trial, and shall hold the plalntifCs con- 
 cluded by the verdict, from contesting at law, 
 the title of the defendants under the will, 
 and shall enjoin them perpetually from pro- 
 ceeding at law, to question that title. No 
 costs are awarded to either party as against 
 the other. 
 
 The following decree was entered :— 
 "It is declared, that there is not any rule 
 in equity, requiring two verdicts upon one or 
 more feigned issues in favom: of the validity 
 of a will, before this court can establish the 
 same as against the heirs at law; and that 
 the awarding of a second trial after a ver- 
 dict in favour of the will has been found 
 upon a feigned issue directed out of this 
 court, rests entirely in discretion, to be gov- 
 erned by the circumsta,nces and testimony 
 appearing in the case. And it is further de- 
 clared, that the verdict upon the feigned is- 
 sue in this case does not appear to be against 
 the weight of evidence, either in respect to 
 the sound disposing mind and memory of the 
 testator at the time of the execution of the 
 will, or the integrity with which the will was 
 procured and executed. It is thereupon or- 
 dered, &c., that a perpetual injunction be 
 awarded to stay any ejectment or other ac- 
 tion at law of the plaintifEs, or either of them, 
 and of all persons claiming under them 
 against the defendants or either of them, 
 and all persons claiming under them, upon 
 any claim or alleged title, as heirs at law of 
 Jacob Bennet, deceased, against the claim 
 and title of the defendants, under the will in 
 the pleadings mentioned of the said Jacob 
 Bennet. And it is further ordered, &c., that 
 no costs of this Suit be taxed by either party 
 as against the other." 
 
 NOTE. Of. Collins v. Townley, 21 N. J. Bq. 
 353, in which case the court said that if a tes- 
 tatrix of 98 years of age, living with her daugh- 
 ter, made a will in favor of the daughter, her 
 other children had a right to require that it be 
 clearly proved that the will was executed with 
 an understanding that it was a testamentary 
 act. 
 
§50) 
 
 IX KE GOODS OF GEALE. 
 
 Case No. 56 
 
 In re GOODS OF GEALE. 
 
 (3 Swab. & T. 431.) 
 
 English Court of Probate. June 7, 1864. 
 
 John Geale, late of Yately, in the county 
 of Hants, yeoman, died on the 25th of Jan- 
 uary, 1864, leaving a -will of the 4th of July, 
 1861. He was deaf and dumb, and could 
 neither read nor write, and had executed 
 the will by mark. [The will is omitted.] 
 
 Affidavits of Hartha Geale, the deceased's 
 widow, and of R. T. Dunning, a wine mer- 
 chant, and Isaac Hilton, parish clerk, the 
 attesting witnesses, were filed. They de- 
 posed that the deceased was shrewd and in- 
 telligent and possessed of considerable me- 
 chanical skill and ingenuity. The deponents 
 had all known him intimately for more than 
 thirty years, and he was in the habit of con- 
 versing with them and they with him by 
 signs, which were well understood by all 
 of them. 
 
 The deceased had, in August, 1853, made 
 a will, by which he devised and bequeathed 
 all his real and personal estate to his wife, 
 absolutely. In June, 1861, he, by signs, told 
 his wife to take the will to Mr. Sheppard, 
 a solicitor, and to instruct him to prepare 
 for him a fresh will to the effect of the will 
 above set out. Mr. Sheppard accordingly 
 drew up the will of July, 1861, and sent it 
 to the deceased. 
 
 On the 4th of July, 1861, the attesting wit- 
 nesses were sent for; the deceased then by 
 signs told them that he was about to make 
 his will and wished them to witness it. He 
 then produced the will and told them by 
 signs how he wished to dispose of his prop- 
 erty. Dunning then read over the will and 
 ascertained that it was in accordance with 
 Ills Instructions, and then by signs explain- 
 ed to the deceased Its contents and effect, 
 and he by signs signified his approval. 
 
 Dr. Spinks moved for probate on these af- 
 fidavits, and cited In re Goods of Owston, 
 2 Swab. & T. 461. 
 
 Sir J. P. Wilde: In that case Sir C. Oress- 
 well refused to grant probate on motion of 
 the alleged will of a deaf and dumb person, 
 on the ground that it did not appear upon 
 the affidavits that the deceased had used 
 the deaf and dumb alphabet, or what signs 
 had been used in the conversation with him. 
 The same objection may be made to the af- 
 fidavits in this case. 
 
 Sir J. P. Wilde: I shall decline to grant 
 probate on motion upon the affidavits now 
 before me. The deponents must state the 
 nature of the signs used in their communica- 
 tion with the deceased. 
 
 Dr. Spinks afterwards renewed the motion 
 upon the joint affidavit of the widow and 
 the attesting witnesses, which, in substance, 
 was as follows: "The signs by which de- 
 ceased informed us that the will was the in- 
 strument which was to deal with his prop- 
 erty upon his death, and that his wife was 
 
 to have all his property after his death, in 
 case she survived him were in substance, so 
 far as we are able to describe the same in 
 writing as follows, viz.: The said John 
 Geale first pointed to himself, then he point- 
 ed to himself, then he laid the side of his 
 head upon the palm of his right hand,, with 
 his eyes closed, and then lowered his right 
 hand towards the ground, the palm of the 
 same hand being upwards. These latter 
 signs were the usual signs by which he re- 
 ferred to his own death or the decease of 
 someone else. 2. He then touched his trou- 
 sers pocket (which was the usual sign by 
 which he referred to his money), then he 
 looked all around and simultaneously raised 
 his arms with a sweeping motion all around 
 (which were the usual signs by which he re- 
 ferred to all his property or all things). 3. 
 He then pointed to his wife, and afterwards 
 touched the ring finger of his left hand, and 
 then placed his right hand across his left arm 
 at the elbow, which latter signs were the usu- 
 al signs by which he referred to his wife. 4. 
 The signs by which the said testator in- 
 formed us that his property was to go to his 
 wife's daughter in case his wife died in his 
 lifetime, were in substance, and so far as 
 we are able to describe them in writing, as 
 follows:— He first referred to his property as 
 before; he then touched himself and pointed 
 to the ring finger of his left hand and cross- 
 ed his arm as before (which indicated his 
 wife); he then laid the side of his head on 
 the palm of his right hand (with his eyes 
 closed) which indicated his wife's death; 
 he then again, after pointing to his wife's 
 daughter who was present when the said 
 will was executed, pointed to the ring finger 
 of his left hand and then placed his right 
 hand across his left arm at the elbow aa 
 before; he then put his forefinger to his 
 mouth and immediately touched his breast, 
 and moved his arms in such a manner as to 
 indicate a child, which were the usual signs 
 for indicating his wife's daughter— he always 
 indicated a female by crossing his arm and 
 a male person by crossing his wrist. 5. The 
 signs by which he informed us that his prop- 
 erty was to go to William Wigg, his wife's 
 daughter's husband, in case his wife's 
 daughter died in his lifetime, were in sub- 
 stance, and so far as we are able to explain 
 the same, as follows:— He repeated the signs 
 indicating his property and his wife's daugh- 
 ter, then laid the side of his head on the 
 palm of his right hand, with his eyes closed, 
 and lowered his hand towards the ground 
 as before (which meant her death), he then 
 again repeated the signs indicating his 
 wife's daughter, and crossed his left arm at 
 the wrist with his right hand, which meant 
 her husband, the said William Wigg. He 
 also communicated to us by signs that the 
 said William Wigg resided in London. The 
 said William Wigg is in the employ of and 
 superintends the goods department of the 
 North-Western Railway Company at Cam- 
 
 245 
 
Case No. 56 
 
 IN KE GOODS or GEALB. 
 
 (§50 
 
 den Town. 6. The signs by which the said 
 testator informed us that his property was 
 to go to the children of his wife's daughter 
 and son-iu-law, in case they both died in 
 his lifetime, were in substance, and so far 
 as we are able to describe the same in writ- 
 ing, as follows,— namely, he repeated the 
 signs indicating the said William Wigg and 
 his wife, and their death before him, and 
 then placed his right hand open a short dis- 
 tance from the ground, and raised it by de- 
 grees, and as if b.v steps, which were his 
 usual signs for pointing out their children, 
 and then swept his hand round with a 
 sweeping motion, which Indicated that they 
 246 
 
 were all to be brought in. The said testator 
 always took great notice of the said chil- 
 dren, and was very fond of them. 7. After 
 the testator had in manner aforesaid, ex- 
 pressed to us what he intended to do by his 
 said will, the said R. T. Dunning, by means 
 of the before-mentioned signs, and by other 
 motions and signs by which we were ac- 
 customed to converse with him, informed the 
 said testator what were the contents and ef 
 feet of the said will." 
 
 SIR .1. r. WILDE granted the motion. 
 
 NOTE. Cf. In re Goods of Owston, 2 Swab. 
 & T. 461. 
 
■^ 53) 
 
 BO\>E 0. KOSSBOUOUGH. 
 
 Case No. 57 
 
 BOYSE V. ROSSBOROUGH. 
 
 (6 H. L. Cas. 2.) 
 
 House of Lords. June aud July, 3856, and 
 March, 1857. 
 
 This was an appeal against orders and a 
 decree made in the court of chancery in Ire- 
 land, in a suit instituted to determine whether 
 a certain paper writing, dated 6th August, 
 1842, was the will of one Caesar Colclough. 
 
 ThP iyppeUant hiid-bepri the W^^''' Of the^ tpsta- 
 
 t ar, but had pi i^ n'ried fi^aU-i . The female r e- 
 s pondent was his heiress at Inw . 
 *Mr. Colclough was bom in the year 1766, 
 and spent much of the early part of his life 
 in France. In 1802 he came to England, but 
 went back again to France, and on the sud- 
 den recommencement of the war was, with 
 all the other British subjects then resident 
 there, detained as a prisoner in France. In 
 1814 he returned to England. He was pos- 
 sessed of considerable estates in Wexford in 
 Ireland, and visited that country, where, in 
 November, 1818, he married Jane Stratford 
 Kirwan, daughter of John Ivirwan, Esq., one 
 of his majesty's counsel. The settlement 
 made on this marriage secured to the lady 
 an income of £500 a year. After this period 
 it appeared that he was accustomed to spend 
 much of his time on the continent, but in 1840 
 he purchased a mansion at Cheltenham, called 
 Boteler House, and there he principally re- 
 sided till his death. In the summer of 1842 
 he was attacked with influenza, and died on 
 the 23d of August in that year. The testa- 
 tor, in the month of July, 1824, made a will, 
 giving all his real and personal property to 
 trustees, on trust to pay debts and funeral 
 expenses, and an annuity of £1500 to his wife 
 <provlded she did not marry again), and a 
 like annuity to his mother; "(provided slie 
 never receives into her house M. A. R., her 
 niece, who endeavored, by most wicked 
 means, to make mischief in my family)." He 
 j?ave the sum of Is. to tlie Rev. David 
 Colclough, and to Caesar Colclough, the 
 -son of that person, £100 per annum, and 
 to his brother Agmond £50 per annum, 
 and the rest of his property he left to 
 accumulate "until one of the male descend- 
 ants of Caesar or Agmond, or other child of 
 one of my lieirs, shall be brought up from 
 the age of four- years old to that of twenty- 
 one, in England or Edinbiu-gh, he then to in- 
 herit the whole." No other will was made 
 T)y the testator tUl, in the course of his last 
 illness, on the 5th of August, 1842, he made 
 one, the instructions to prepare which, it 
 was sworn, were given only two days before. 
 In that wiU he gave Boteler House to his 
 wife and her heirs for ever; he appointed 
 ti-ustees, and directed them to secure an an- 
 nuity of £4500 to his wife for life, in addition 
 to her annuity under the marriage settle- 
 ment. This sum was to be raised from the 
 personal, or, in case of that being deficient, 
 fi-om the real estate, and if, after payment of 
 the purchase money of that annuity any sur- 
 
 plus should remain in the hands of the trus- 
 tees, tliey were "to pay the same to the per- 
 son or persons entitled to the residue of my 
 real estate." 
 
 In the coiu-se of the proceedings which aft- 
 erwards took place, it was stated that this 
 wiU was executed twice, first on the 4th and 
 again on the 5th of August, in consequence 
 of the devise of Boteler House having been, 
 by mistake, omitted from the first copy. The 
 attesting witnesses on both occasions were 
 James Fortnam, a surgeon at Cheltenham 
 (the medical attendant of Mr. Colclough), and 
 G. E. "Williams, a solicitor there, by whom 
 the will had been prepared. On the . nex^ 
 day. how ev«"'i "amelc^-ij^ Btli. of _ August. 
 1842, Mr j^Colclough, who, lt_was_a^eged, had. 
 that dasT told the solicitCT-~S at_his wife "had 
 always Denav ^T weU to him^ ^^^Jie would do- 
 what wa s jight, '^ex ecuted Sie foUowin g will , 
 the validity of which was noy in contest:— 
 
 "The last will and testament of me, Caesar 
 Colclough, of Tintern iWibey, in the couutv 
 of Wexford and of Boteler House, Chelten- 
 ham, Esquire. I give and devise all aud 
 singular my real and pereonal estate to my 
 dear wife, Jane Stratford Colclough, her 
 heirs, executors, administi-ators, and assigns, 
 to and for her and their own absolute use 
 and benefit. But as to any estate vested in 
 me, upon trust or by way of mortgage, sub- 
 ject to the equities affecting the same re- 
 spectively. I appoint the said Jane Strat- 
 ford Colclough executrix of tliis my will, 
 hereby revoking every other will by me at 
 any time heretofore made. In witness 
 whereof I have to this my will set my hand, 
 the 6th day of August, in the year of our 
 Lord, 1842. Caesar Colclough. Signed by 
 tlie said testator, as his last will and testa- 
 ment, in tlie presence of us present at tlxe 
 same time, who, at his request, in liis pres- 
 ence, and in the presence of each other, 
 liave hereunto subscribed our names as wit- 
 nesses. James Fortnam, SiU'geon, Chelten- 
 ham. G. E. Williams, Solicitor, Cheltenham." 
 
 This will was in thft_ecclesiastical-ComJ^ 
 ■Of both England an r) Treland, proved hy thp 
 apppVlant, thp^ testa tor's widf)y, who ^»nrprp|l 
 into pos sPssioTi of thP estates. 'r\\p lands J" 
 
 Wexford were stated to produce an inconn> 
 of nearly £7000 a year, and the personal 
 property in England and Ireland (independ- 
 ently of Boteler House) was valued at £70,- 
 000. 
 
 In the year 1846 the appellant married 
 Thomas Boyse, Esq., of Bannow, in the coun- 
 ty of Wexford, and settled on him certain of 
 the lands then held by her under the alleged 
 will of the 6th August, 1842. 
 
 The respondent, Mary GtreyJWaitwortli 
 JlossPOT ollMh_ (M!'hg"~fag§~'5tTrce a'ssiiiTie^^Jt^'P 
 name of Colcloughl was the heiress at. law 
 Df Caesar Colclough, and p nt ^jn her cla im to 
 his property in that character . 
 
 In September, ISiythe respondents filed 
 their bill in the court o f chancer y in Ire^ 
 land against Mrs . ^oyse_and__her_husband, 
 
 247 
 
Ciise No. 57 
 
 BOYSE V. KOSSBOKOUGH. 
 
 (§53 
 
 o mL thereby alleged that the appellant had, 
 immediately after her marri aS'^ y^^^ Me- 
 Colclouph. formed, and that she had co n- 
 tinnnllY persevered in, a sy st emaflcj Blaa-IP 
 separate and estrange Mr. Colclough X rom 
 nil mcmb oT.= nf >iig fgrnily, and hfid apniiired 
 not only undue influ pppe, Imt com plete com - 
 mand an d control oyer Mr. Colflough. so-as 
 to dpnrjye him alto gether of free agency 
 oyer his estntps or affairs; that, in conse- 
 quence thereof, Mr. Colclough was neyer a 
 free agent, but on the conti-ary was prevent- 
 ed from exercising even the duties of a land- 
 lord; and that the appellant had induced 
 him to go to Cheltenham, in order thereby 
 to promote the success of the scheme which 
 she had formed, and that she had there re- 
 duced him to a state of apprehension and de- 
 pendence. The bill stated the will executed 
 by Mr. Colclough on the 5th of August, 1842, 
 and alleged that the appellant, finding that 
 will not to be so favourable to her wishes as 
 she desired, caused ♦another paper to be pre- 
 pared by Mr. Williams, and by herself, or 
 some other person on her behalf gave in- 
 structions to Mr. Williams for that purpose, 
 and that the will of the 6th August, 1842, 
 was prepared accordingly, and that the ap- 
 pellant represented to Mr. Colclough that the 
 will of the 6th of August was prepared in 
 consequence of an alleged uncertainty in the 
 terms of the wiU of the 5th of August, and 
 that s he led Mr. Colclough to believe that in 
 pvpry r^t.her rt^ppp ct the will _was p recisely 
 siT;ni1ar to t hat of the 5th of August : and 
 thflf p+ the peijg^_ pf the execution of the 
 will of the 6th jif August, Mr, Colrjoiif^y^ wpp 
 Tint awarp f}ipt ho Yraa f^ofpf^y j^oyji^iiny and 
 bequeathiTifr fp ^ig^ ^jfo fijl hjs rpi^ ■'"•^ p"'' 
 SPnal es tate, but poi^piirlpTPrl th^t hs wj lS 
 jnerely confir min^ hp t<'r"is of the wiU o f 
 t be 5th of Au gujt: andjhat the jmijl of the 
 6th of August wnn joid by reason of the 
 mental itirapapltY anrl nT.g»iiTi.^T^ppc, pf i^mfl 
 a QTr. Colclough when he execu ted the sj^m^, 
 ji nd by reason of the undue and improper in - 
 .fluence and control exercised over Mi\J3aU> 
 - plough by tha -appaiant^ The bill stateri thP 
 settlement made on the marriage of the ap- 
 pellant with her second husband, and that 
 the respondents wished to proceed by eject- 
 ment to recover the Wexford estates, but 
 that there were outstanding terms which 
 would be set up as a bar to any ejectment. 
 The bill nr avpd tliat _ the will of thP_fith-of 
 
 August, 1842. might bp dy clai -prl ynirl, nnH 
 
 delivered un to he canr-ovio^^r that an issue 
 might be directed to try whether the free- 
 hold estates of Mr. Colclough were devised 
 by the said wiU; and that if it should be 
 found that the said estates descended on his 
 heiress at law, that the defendants might be 
 ordered to deliver up the title deeds relating 
 to the estates, and to account for the rents 
 and profits of the lands received by them, 
 or that the plaintiffs might be at liberty to 
 proceed at law by ejectment to recover the 
 said estates, and that the court might pre- 
 24S 
 
 vent any outstanding terms being set up, 
 and for further relief. * * ♦ 
 
 Sir F. Theslger, Mr. Rolt, and Mr. Cairns, 
 for appellant. The Solicitor General (Sir R. 
 Bethell) and Mr. Whiteside, frfr respondents. 
 
 The Lord Chancellor, (CRANWORTH.) 
 * * * The first point then is, what was 
 the issue which the jury had to try? The 
 issue to be tri ed was, w he ther a certain pa- 
 ^pi-jiy r't'""ff i TTpgrlng date the 6th of Au^ruat T 
 
 ■1J^4.9., was thp las t will nf r!apa.ir ColclOUgh . 
 de ceased, the late husband of the appellant. 
 That it bore his genuine signatm-e, and was 
 signed by him in the presence of and attest- 
 ed by two witnesses in manner required by 
 law, can hardly be said to have been a mat- 
 ter in controversy. Indeed, no dispute was 
 ever raised on that point. But though a 
 good wUl so far as relates to its execution 
 and attestation, it yet might not be an.-jm- 
 strument having any legal validity. FoMf 
 the person by whom it was made was not at 
 the time of making it of sufficient mental ca- 
 pacity tflj enable him to dispose of his prop- 
 erty, oMf having sufficient disposing mind, 
 he executed it undeigeoerclon, or under the 
 influence of fear, or-m consequence of im- 
 pressions created in his mind by fraudulent 
 misrepresentations, — in none of these cases 
 can the instrument be properly 'described as 
 being his will. 
 
 In the first case , the maker is. bv thp hy- 
 - nothesis. incapable of having a. will , Tn thp 
 ttther cases sup p osed, thnno -h there i.s a. p i ^-yyer 
 of willing, vet the instrnment c a nnot be. in 
 
 contemplation_s£_laB!:,_a_tcU£_jexErfisaiQa_2£ 
 that will . I say in contemplation of law; 
 for, perhaps, speaking with strict metaphys- 
 ical accm'acy, the instrument in these latter 
 cases does truly express the testator's will, 
 
 flnH tho moi-P pru-j-pp.t morlp nf p-rprpgainp 
 would be, that -the law will rot give effp^ 
 to the wil l of a. tes t/itor when that vf in has 
 been thus unduly brought about If I meet 
 a man in the street, and he puts a pistol to 
 my breast, and threatens to shoot me if I 
 do not give him my purse, and to save my 
 life I yield to his demand; or if a neighbor, 
 meaning to steal my horse, asks for the loan 
 of it, stating that he wants it in order to go 
 to market, and trusting to this representa- 
 tion I deliver it to him, and then he rides 
 off and sells it,— in both these cases it was 
 my wIU to hand over the purse and the 
 horse; but the law deals with the case as 
 if they had been obtained against my will, 
 my will having^ hppn thg rp.snit in onp cpse 
 of fear, and in the other of fraud . The 
 same principles must guide us in determin- 
 ing whether an instrument duly executed in 
 point of form, so far as legal solemnities 
 are concerned, is or is not a valid will. The 
 inquiries must be: First, was the alleged- 
 testator at the time of its execution nj psiiz. 
 son of ?ound ming/ And if he was^ then. 
 secondly, was the instrument In quesjin" <'i'p 
 
§53) 
 
 BOYSE V. ROSSBOliOUGH. 
 
 Case No. 57 
 
 eSflUfiS gion of hla gsnmTlB will, or was it fhe- 
 . expressioiyjrf a will created in hi s minf| hy 
 ) coercion py^audT 
 
 On the first head the difficulty to be grap- 
 pled ■with arises from the circumstance that 
 the question is almost always one of de- 
 gree. There is no difficulty in the case of 
 a raving madman or of a drivelling idiot, in 
 saying that he is not a person capable of dis- 
 posing of property. But between such an 
 extreme case and that of a man of perfectly 
 sound and vigorous understanding, there is 
 every shade of intellect, every degi-ee of 
 mental capacity. There is no possibility of 
 mistaliing midnight for noon; but at what 
 precise moment twilight becomes darkness 
 is hard to determine. 
 
 In this case, however, with respect to the 
 .general mental capacity of Mr. Colclough , 
 I do not apprehend that any question Is 
 ra ised . The evidence shows irresistibly that 
 he was a man of superior and cultivated 
 mind. And the only question on this head 
 of inquiry is, whether, though pre vifflisiy "f 
 a strong an d vigorous understanding, he 
 had or hadn rvt hpp ome before thu nth of 
 Au^st. 18 4?, so en feebled as to be inca- 
 ]Tah1pnfjind P''stanfliTig the nature and effe'et. 
 of a will, or generally of managing or dis- 
 posing of prffi BsiJy. Sir Thomas Esmonde, 
 an old friend of Mr. Colclough, and who was 
 a witness called by the respondents, states 
 that he saw and conversed with Mr. Col- 
 clough at Cheltenham in March or April, 
 1842, and then found himTUiough very i'Se- 
 ble in body, yet in possession of his facul- 
 ties. J2l^ fjnocfi^^Ti if)^ whether in ^^'^ porinrl 
 
 between that inta-view and the execution 
 of the will on the 6th of August followiag- 
 the st ate of Mr. Colclough's mind had chan - 
 ged jofhat he was inc aaablo tl»>n of doing 
 ffihat he was, o y tlia t^viflgnng, wrtainlv 
 
 capable of doing in March or April.. 
 
 Now with respect to this period of time, 
 a period of four or five months, four wit- 
 nesses were called on behalf of the appellant 
 to speali to the state of Mr. Colclough's 
 mind, namely, Miss Kirwan, who was Mrs. 
 Colclough's sister; Mr. Augustus Crofton, 
 her brother-in-law; Dr. Fortnam, Mr. Col- 
 clough's medical attendant; and Mr. Wil- 
 liams, his solicitor. Mr. Augustus Crofton 
 left Cheltenham in June, 1842; but he says 
 that Mr. Colclough continued in possession 
 of his faculties up to the time when he last 
 saw him; that is, two or three months 
 before his death, which happened on the 
 23d of August, 1842. And the other three 
 witnesses say that he continued so up to his 
 death, or till within a day or two of that 
 event. 
 
 The will was prepared by Mr. Williams, 
 and was executed by Mr. Colclough in the 
 presence of Dr. Fortnam and Mr. Williams. 
 Dr. Fortnam had been in frequent, and for 
 many months in daily professional attend- 
 ance on Mr. Colclough, and had therefore 
 ample means of forming a judgment as to 
 
 the state of his mind; and he states, witli- 
 
 P Mt fl " y t i "UM t ^ rf"'TlS"^ i thnt f--^'^ nntnhmr^ 
 
 ^aA■\^ lip tn thn rinnth nf Mr Cnlplnngh, «n 
 
 tlift 2.^(1 o f August, 1S4^, hi s mind was ner - 
 fectlx_snunfl 
 
 Mr. Williams states, that on all the occa- 
 sions when he attended Mr. Colclough, in- 
 cluding, of com'se, the execution of the- 
 will on the 6th of Augiist, he was of sound' 
 mind. Both these witnesses were cross-ex- 
 amined at some length, but no question was- 
 put to either of them, tending to call in. 
 question the truth or accuracy of their 
 testimony, so *ar as related to the general' 
 capacity of Mr. Colclough. .--' 
 
 Indeed, though the question of his general 
 capacity to make a will was undoubtedly 
 raised by the issue, and though the bill does 
 contain a statement that, at the time of the- 
 execution of the alleged will, Mr. Colclousli' 
 was of unsound mind, yet tliat is not the 
 foundation of the case made by the bill, 
 nor the point to which the evidence was 
 mainly directed. The attorney-general, in 
 his argument, exwesslv stated, whn t indppii: 
 the plen iiino-g p] pd evidence fully confirmed, 
 that the will y fus impeached, not on the- 
 gr ound of general want of capncitv. hut 
 on the ground of undue influence exercised' 
 over him hy his wife. This was the point 
 on which the respondents relied. 4sd_-ilifl^ 
 alleged infirmity of mind of Mr. Colclouglfe, 
 is put forward, rather n f^ t^prling- tr> ahmv 
 the probability that such influ pnce might 
 have been successfully exercised, than as- 
 being su ch ns wonlfl of itfiplf makp the will 
 invalid. I shall therefore assume that Mr.. 
 Colclough, when he executed the instrument 
 of the 6th of August, 1842, had sufficient 
 mind to enable him to make a will, if left 
 to exercise his judgment freely; and I will 
 consider the other, which is the real point 
 of the case, namely, whether the verdict is- 
 satisfactory, supposing it to have proceeded 
 on the ground, that though Mr. Colclough 
 had a disposing mind, yet the document in. 
 question cannot be considered to be his wilU 
 by reason of its having been obtained from- 
 him by the undue influence of his wife. 
 
 The difficulty of deciding such a question i 
 arises from the difficulty of defining with ' 
 distinctness what is undue influence. In a 
 popular sense we often speak of a person ex- 
 ercising undue influence over another, when 
 the influence certainly is not of a nature- 
 which would invalidate a will. A young 
 man is often led into dissipation by follow- 
 ing the example of a companion of riper 
 years, to whom he looks up, and who leads I 
 
 Im to consider habits of dissipation as 
 
 enial. and perhaps even creditable; the' 
 companion is then correctly said to exercise 
 an undue influence. But if in these circum- 
 stances the young man, influenced by his re- ' 
 gard for the person who had thus led him 
 astray, were to make a will and leave to- 
 him everything he possessed, such a will cer- 
 tainly could not be Impeached on the ground! 
 
 249- 
 
■Case No. 57 
 
 BOYSE V. ROSSBOROUGH. 
 
 (§ 5^ 
 
 •of undue influence. Nor would the case be 
 altered merely because the companio n fiaii 
 urg^ed, oii -eyen importu ne d, the vouney man 
 so to dispose of his property; provided only, 
 thiit in making such a will the younp man 
 vy.ia really carrying into pffent \}\ s own in - 
 tpntion . formed without either coercion or 
 fraud . 
 
 I must fm-ther remark that all the dif- 
 ficulties of defining the point at which in- 
 fluence exerted over the mind of a testator 
 becomes so pressing as to be properly de- 
 scribed as coercion , are greatly enhanced 
 when the question Is one between husband 
 and wife. The relation constituted by mar- 
 riage is of a nature which makes it as dif- 
 ficult to inquire, as it would be impolitic to 
 permit inquiry, into all which may have 
 passed in the intimate union of affections 
 and interests which it is the paramount pur- 
 pose of that connection to cherish; and this 
 is the case with which your lordships have 
 now to deal. 
 
 In order, therefore, to have something to 
 guide us in our inquiries on this very dif- 
 ficult subject, I am prepared to say that 
 infllipnpp, iri n rder to be imdu e_ within the 
 . meaning of any rule of law which woul d 
 make it sufficien t to vitia te a w iU ^must be 
 
 an influ eacfl eTPrnisj^^ either by coercion 
 
 or by fraud. In the interpretation, indeed, 
 •of these words, some latitude must be al- 
 lowed. In order to come to the conclusion 
 that a will has been obtained by coercion, 
 it is not necessary to establish that actua l 
 v alence has been used or even threatened, 
 'rhe conduct of a person in vigorous hfetllth 
 towards one feeble in body, even though 
 not unsound in mind, may be such as to 
 •excite teiTor and make him execute as his 
 will an instrument which, if he had been 
 free from such influence, he would not have 
 •executed. Imaginary terrors may have been 
 created sufficient to deprive him of free 
 agency. A will thus made may possibly 
 be described as obtained by coercion. So 
 as to fraud. If a wife, by falsehood , 
 Taisesjjzejjldicesin the minJWbJ Ousband 
 
 against those who would b e t he natural ob-_ 
 iects of his bounty. ang~ py contri vance 
 Iseeps him from interppurse with his rela- 
 ±ivpa, tn tho onr" ttiat tbrpp I mpressions 
 
 .which sh e knows he had t^"« formed 
 their disadvantji ge may never be removed , 
 •such con trivance may, perhaps, be equivalent 
 t^ p a sitivp fra uil„3nd__may render jnvalijl 
 an;_wm P-ypCJltfYl TinBiEIlalaeJmeressions 
 thn,s kept - nUvft . It is, however, exti-emely 
 difficult to state in the abstract what acts 
 will constitute undue influence in questions 
 -of this nature. It is sufficient to say, that 
 allowing a fair latitude of construction, they 
 must range themselves under one or other of 
 these heads— coercion ^> r_frgvid 
 
 One point, however, is beyond dispute, and 
 that is, that where once it has been proved 
 that a wiU has been executed with due 
 solemnities by a person of competent under- 
 250 
 
 standing, and apparently a free agent, thoL 
 burthpn of proving ^^o*- '*- wa P execute d | 
 under undue influence, is on the party who al - 5 
 leges it . TTndne Influence cannot be presumed . [ 
 and, looking to the evidence in the present > 
 case, I am unable to discover evidence war- 
 ranting the conclusion at which the jury ar- 
 rived, supposing them to have proceeded on 
 the ground of undue influence. That Mr. 
 Colclough might, without any undue in- 
 fluence operating on his mind, desire to 
 make a will, giving everything to his wife, 
 is u proposition which cannot be contro- 
 verted. She had been the partner of his 
 life for twentj'-four years. He had no chil- 
 dren. His nearest relative was a first cousin 
 of his father, with whom, from whatever 
 cause, he had never had more than slight 
 and casual intercourse. His heir presump- 
 tive was a second cousin, of whose very ex- 
 istence he does not appear to have been 
 aware, being the daughter of another and 
 elder first cousin of his father, who had died 
 very many years previously. That he should 
 in these circumstances wish to give every 
 thing to his wife could surely afford no 
 ground for surprise; and one mode, there- 
 fore, of looking at this subject is, to consider 
 whether, supposing him, without the exer- 
 cise of any sinister influence, to have enter- 
 tained such a wish, his conduct would have 
 been that which, according to the evidence, 
 he in fact pursued. 
 
 Supposing, then, that Mr. Colclough on the 
 6th day of August, 1842, being, as I assume 
 he was, sound in mind, though veiy infirm 
 in body, entertained the wish to give every 
 thing to his wife, what is the course which, 
 as a reasonable man, he would be likely to 
 pursue? He would surely send for his solic- 
 itor, and. In the absence of his wife, give 
 him the necessary instructions, and when 
 the will was prepared he would execute it 
 in the presence only of his solicitor and 
 some other disinterested witness, for which 
 purpose no one would be more fit than his 
 medical attendant. Now this is precisely 
 the course which he did take, and the bur - 
 then of proof at the trial was therefore on 
 the respondent to show, that though what 
 was done bore the semblance of being the 
 voluntaiy act of Mr. Colclough, yet it was 
 an act which he was induced to perform 
 under the influence of terror or fraud. 
 
 Now, my lords, I look in vain for any such 
 evidence. 
 
 The most I can find, if indeed that can be 
 found, is evidence to show that the act done 
 was consistent with the hypothesis of undue 
 influence; that the insti-ument, though ap- 
 parently the expression of his genuine will, 
 might in truth have been executed only in 
 compliance with the threats or commands of 
 his wife, or that he had been led to execute 
 it by unfounded prejudices artfully instilled 
 into or cherished in his mind by his wife 
 against those who would otherwise have 
 been the probable objects of his bounty. 
 
§53) 
 
 BOYiSE V. ROSSBOKOUGH. 
 
 Case No. 57 
 
 ' But in order to set aside the will of a per- 
 son of sound mind, It is not sufflcient to show 
 that the circumstances attending its execu - 
 tion are ooiisistent with the hypothesis of its 
 having been obtained by undue influence. It 
 must b e shown that they are inconsistent 
 with a contra ryJiypothesis. Can it be truly 
 said that There is any^uch inconsistency 
 liere? 
 1'he undue influence must be an influence 
 L exercised in rela tion to the will Itself , not an 
 
 I infliii^T)(^p in relation to ot^'p'' mntt^rs or 
 
 transactions. But this principle must not be 
 carried too far. Where a jury sees that at 
 and near the time when the will sought to 
 be impeached was executed, the alleged tes- 
 tator was, iu other important transactions, so 
 imder the influence of the person benefited 
 by the will, that as to them' he was not a 
 free ag6nt, but was acting under imdue con- 
 trol, the circumstances may l)t> such as fairly 
 to warrant the conclusion, even in the ab - 
 sence of CYidence bear ing directly on the ex- 
 ecution of the will, that m regai ^ to that a l- 
 ao the same undue infl uence was exercised. 
 But even allowing the utmost latitude in the 
 application of this principle, I feel compelled 
 to say that I do not discover the proof of 
 anything suflScient to show undue influence 
 in the obtaining of this will. That Mr. Ool- 
 ■clough did not execute it under actual dm-ess 
 or coercion is certain. The only persons who 
 were witnesses to the execution were Mr. 
 ■ColcloUgh's solicitor aud medical attendant; 
 and their testimony excludes the notion of 
 anything like actual force or violence having 
 been made use of to control him. There is 
 no evidence to show that his wife knew that 
 lie was making his will. Several of the serv- 
 ants, indeed, speak to the general conduct of 
 his wife as having been of a violent and 
 overbearing character towards him. But 
 this, even supposing them to have had the 
 means of forming a just opinion as to Mrs. 
 Colclough's conduct, is clearly insufficipnt to 
 prove actnal coercion in the particulai- iict of. 
 making the will , which was certainly made 
 and executed by Mr. Colclough apart from 
 his wife, and when she, being absent, could 
 not, even if she wished it, force him to do 
 Avhat he was imwllling to do. The question 
 is. whether the eviden ce sh ows that though 
 
 not imder actual duress _or_c oercion. li£_ 
 
 ■^onT<1Jnht_n£v^_execiited t he will but from 
 fe ar of the consequ ences whi''^ "light rppult 
 to him if s he_sho uld disc gger-t-hftt-^e-had- 
 fflg«>n-h.i.s- propert y to a ny .biit-heEself . ,As^ 
 wuminff t^af a will so o btaiiipfl mifrht hp set 
 afiide aj; madft by c oerc i on , the -test iinony o f 
 tke_s ervants he re is totally InsufBcient to 
 prove such a c asg- 
 
 The only evidence tending to show that the 
 mode in which Mr. Colclough might dispose 
 of his property by will had ever been a sub- 
 ject of consideration with his wife, is that 
 of Mr. WUliamson, a gentleman resident at 
 Cheltenham, and who, at the instance of Mr. 
 Sarsfleld Colclough, called at Boteler House 
 
 in October, 1841. He was first shown into 
 the room where Mr. Colclough was alone. 
 He says Mr. Colclough received him most 
 com-teously, and conversed with him for ten 
 or twenty minutes, explaining the grounds of 
 his quarrel with Sarsfleld Colclough and his 
 family. The conversation was, he says, in- 
 terrupted by Mrs. Colclough, who came into 
 the room in a commanding manner, and ab- 
 ruptly told Mr. Colclough he was wanted 
 out, upon which he left the room, and did 
 not retmTi. She then had a conversation 
 with the witness on the subject of Sarsileld 
 Colclough and his family, in the course of 
 which she said she would take care that nei- 
 ther he nor his family should benefit by Jlr. 
 Colclough. This was in October, 1841, above 
 nine months before the will was executed. 
 After that time there is no evidence that the 
 will was ever alluded to by Mrs. Colclough, 
 nor is there evidence of control of any kind 
 exercised by her, except the very doubtful 
 testimony of servants, capable of easy expla- 
 nation if we attend to the relative position of 
 the parties, and which was not brought for- 
 ward for many years after Mr. Colclough's 
 death. 
 
 I confess, therefore, that I feel very great 
 diificulty in understanding how this will can 
 be impeached on the ground of coercion. - 
 
 But is there any stron ger evidence to show 
 that it was obtai ned by ^'ra,1l,11 ? i. e. defining 
 fraud with reference to the circumstances of 
 this case; is there _.any evldenc a— tcL-ShflW 
 that _in order to induce Mr. Ciolclough to 
 make this or some similar will, Mrs. Col- 
 clough represented to him matters to the 
 preiudice -Of-S arsfleld Colclough and his fam i- 
 1;;^ whifh he kne w or believed to be false? 
 or that, knowin^ ;_ him to entertain prejudices , 
 against his rela tives resting on no founda- 
 tion, she contri ved by force or artifice to pre - 
 vent any intercom-se with the m, fearin g tha t 
 thp result of an y free in terconrsp woijld he 
 to cause a reconciliation? Even assuming 
 that such conduct would be suflacient to in- 
 validate the will, I. can discover no evidence 
 of that sort. Mr. Williamson indeed says, 
 that when he called at Boteler House, in 
 October, 1841, Mrs. Colclough said she was 
 mistress of her own house, and that Sars- 
 fleld Colclough should not be admitted. And 
 some of the servants say that she ordered 
 them not to let in any of Mi-. Colclough's 
 family. Assuming all this to be true, the' 
 question is, whether this was done contrary 
 to, or in conformity with, the wishes' of Mr. 
 Colclough. On this point there is no con- 
 fiict of testimony. When Sarsfleld tried to 
 obtain admittance at Boteler House, Mr. 
 Colclough, on the 6th of October, 1841, wrote 
 him a harsh unfeeling letter, positively de- 
 clining ever to have any intercom-se with 
 him, and stating reasons for the resolution 
 he had thus taken. Whether those reasons 
 were well founded does not appear to me 
 material. If the letter was the genuine ex- 
 pression of what the writer believed, it shows 
 
 251 
 
Case No. 57 
 
 130YSE V. ROSSBOEOUGH. 
 
 (§53 
 
 clearly that the exclusiou of Sarsfield was 
 at his express desire. But it was contencled 
 that this letter, and oue to the same effect 
 written a week afterwards, must have been 
 written by him at the dictation, or under the 
 conti-ol, of his wife, and that the ground of 
 his violent hostility to Sarsfield and his fam- 
 ily must have been the result of unfounded 
 prejudices artfully instilled into his mind by 
 his wife. Wh at proof is there of this? I 
 can discover none, un tne contrary, it ap- 
 pears that four days after the date of the 
 first of the two letters, namely, on the 10th 
 of October, Mr. Colclough wrote to Mr. Ken- 
 nedy, his agent in Ireland, informing him 
 that Sarsfield had called, but had been de- 
 nied admittance, and that he, Mr. Colclough, 
 had written refusing all communication; and 
 in this letter he alludes to the difficulty of 
 getting the rent due from Sarsfield's son, and 
 m-ges Kennedy to act promptly and regular- 
 ly in enforcing payment. One of the grounds 
 of the unfriendly feeling entertained by Mr. 
 Colclough towards Sarsfield and his family, 
 and alluded to in the letter of the 6th of Oc- 
 tober was, that his wife had been (to adopt 
 the expression used in the letter) arrested 
 in Grafton street for articles bought by his, 
 Sarsfield's, family in her name. By the 
 word "arrested," however, it is clear to me 
 that he did not mean that she had been ar- 
 rested by process of law, but only that she 
 had been stopped when getting into or out 
 of her carriage, the word "arrested," as it 
 was contended, and probably correctly con- 
 tended at the bar, having been used by him 
 for the French word arrgt6 [stopped]; Jlr. 
 Colclough's long residence in France having 
 familiarized him with the language of that 
 country. Sarsfield Colclough answered the 
 letter of the 6th of October by an indignant 
 denial of the charges it contained, including 
 that of the arrest of Mrs. Colclough; and 
 Mr. Colclough, in his second letter, after re- 
 iterating the charges contained in the first 
 letter, and averring that they were true, re- 
 minded Sarsfield that he had actually come 
 over to Tintem (Mr. Colclough's then resi- 
 dence), and apologized for what had hap- 
 pened in Grafton street. 
 
 I allude to all this only for the purpose of 
 showing that Mr. Colclough had, or thought 
 he had, good grounds for entertaining very 
 imfriendly feelings towards his family. And 
 the suggestion that all these causes of aver- 
 sion had no foundation in fact, but owed 
 their existence to the artful contrivances of 
 Mrs. Colclough, is a suggestion in support of 
 which there is not, in my opinion, a tittle of 
 evidence. 
 
 On these grounds, my lords, I think that 
 the verdict is one with which the lord chan- 
 cellor ought not to have been satisfied, con- 
 sidering that it was to bind the inheritance 
 for ever, but that he ought to have directed 
 a new trial. I do not question the position 
 that the com't of chancery may, and often 
 ought to, feel itself bound by a single verdict, 
 252 
 
 where there has been no misdirection on the 
 part of the judge. But If it is meant to be 
 
 ggjj JJ i nt, in fTiP Hhse nco-o f mi'adirpPTinn TflP 
 
 court Is not at liberty to say_on_the trial_of 
 an issue devisavit vei no"57"as Ifln^ the tria l 
 of other issues, that its c oT iR fi<»P''° '" ""t mt - 
 isfled;_a nd therefore to direct a further trial. 
 t hat is a proposit i on to w hich T pan not a,r- 
 cede. No doubt, in deciding whether a par- 
 ticular instrument is the last will of the per- 
 son by whom it purports to have been made, 
 the verdict of the jiu-y must in the end pre- 
 vail. But there is no rule which compels 
 the com-t to rest satisfied with a single ver- 
 dict. The evidence may appear to the court 
 to fall so far short of warranting the conclu- 
 sion at which the jurors arrived as to lead 
 to the belief that, however correctly direct- 
 ed, they could not have understood the case. 
 
 The question how the court ought in such 
 cases to act is a question of degree. It would 
 not be right to direct a new trial merely be- 
 cause the verdict is not that which the judge 
 thinks he would himself have given. If he 
 sees that the question is one of grave doubt, 
 — one on which diiferent minds might come 
 to different conclusions, — that the facts were 
 all put fairly to the jurors, so that it must 
 be assumed that they fully understood them,— 
 that there was no misdirection, — and that the 
 judge properly explained to them the points 
 on which they were to decide, — then the com't 
 directing the issue would pause before it 
 would order a new trial. But I cannot feel 
 satisfied that in this case the facts were so 
 put to the jurors as that they could have 
 fully understood what their duty was,— that 
 they distinctly understood the principles by 
 which they were bound to be guided in de- 
 livering their verdict. 
 
 The learned judge who tried the cause cor- 
 rectly told the jiu-y taccording to the report 
 of his charge printed in the respondent's ap- 
 pendix), that if they believed the testimony 
 of Dr. Fortnam and Mr. Williams, the will 
 was in point of form and execution a good 
 will; but he then went on to say that it 
 would be for the jury to declare whether, un- 
 der all the circumstances of the case, the 
 instrument in question contained the true, 
 unbiased, and unfettered will of the testator; 
 whether he intended what he signed; wheth- 
 er it was his intention to give the property 
 to his wife; and he added that if there was 
 no suppression of facts, no false statement 
 of facts relative to the will he was execut- 
 ing, nothing which might have misled him 
 practised by his wife, then the wiU must 
 prevail. 
 
 ily lords, from that direction I should not 
 have been disposed to dissent, if the learne d 
 judge had gone on to say that it_ muat_b& 
 nresnmed t<> he the ^ testator's genulne_ jiIU- 
 jinless those who cnntestpti it f^niTlj_jjnjnrt» 
 evi dence showing what was the suppressi on, 
 or wh^t the false statement of facts, relied 
 on as having ind ii^f^i th" °Tpni<-'"" "f P^ 
 wjlL I 3-iH unable to discover evidence tend- 
 
§53) 
 
 BOYisE V. ItOSSBOUOQGH. 
 
 Case No. 57 
 
 Ing to show that such supisression or false- 
 hood existed; and I think it higlily probable, 
 notwithstanding the caution which the learn- 
 ed judge in other passages of his charge 
 most properly and forcibly urged upon them, 
 that t hev proceeded in their yp '-'^^^t r..i^ ]poi-o 
 suspicion founded on the vague anil unsatis- 
 factory evidence of some of the witnesses, 
 principally sei'vants, as to the overbearing 
 condnct of Mrs. Colclough at previous times. 
 That a single verdict, resting on such evi- 
 dence, ought to have satisfied the court, is 
 a proposition to which I cannot assent. 
 
 The learned judge at the ti'ial did not 
 adopt the com-se of reading over to the jury 
 the evidence which had been given. He 
 said, according to the report of his charge 
 as printed by the respondent: "It is not my 
 object, and never has been, to weary a 
 jury by reading over to them a mass of evi- 
 dence, by repeating that which they have 
 heard so much better from the mouths of 
 the witnesses. It is far better to attend to 
 to evidence as it goes on, to judge of tlie 
 manner and demeanom- of the witnesses. 
 Then" credit is exclusively for you, and it 
 has always sti-uclv me that tlie great benefit 
 to be derived from observing in what man- 
 ner the witness conducts himself when giv- 
 ing evidence, and his demeanor, is in a 
 great degree counteracted by reading over 
 notes, which cannot give the advantage of 
 that instruction which the law has extend- 
 ed to a jm-y for their guidance; and, there- 
 fore, gentlemen, I always desire that tlie 
 fullest means of imderstaudiug that evi- 
 dence should be afforded to a jury, and that 
 they should give it such an amount of at- 
 tention as you have done in this case." 
 
 Of the wisdom of that coui-se, that is, of 
 not reading over in extenso what the jury 
 had previously heard from the mouths of 
 the witnesses, I have, as a general rule, no 
 doubt. But I must observe that in a case 
 like this, where the trial had occupied five 
 days, and where great danger existed that 
 the jm-ymen's recollection of the witnesses 
 might not be distinct, especially as to the 
 dates of matters long past, and where the 
 evidence was in great measm*e directed not 
 to facts properly so called, but to inferences 
 to be drawn from the general observation by 
 servants of the conduct and demeanour of 
 their master and mistress, I cannot but think 
 it would have been useful if the attention 
 of the jury had been called to the station in 
 life of the different witnesses, with refer- 
 ence, as well to their probable ability to 
 recollect accurately facts after a lapse of 
 many years, as also to their probable means 
 of forming a judgment on those matters to 
 which they spoke, which were rather deduc- 
 tions from other facts than strictly them- 
 selves facts,— such as the state of Mr. Ool- 
 clough's mind, and his being or not being in 
 a position to act freely from the control of 
 his wife. I thinlt further, that it would 
 have been useful to point out the dates of 
 
 some of the facts in evidence, In reference 
 to their bearing on the only question ulti- 
 mately to be decided, namely, the question 
 whether Mr. Colclough was, on the 6th of 
 August, 1842, able to act, and did act, free 
 from the conti'ol of his wife. 
 
 1 do not say tliat if, in other respects, the 
 verdict had been satisfactory, tliese consid- 
 erations should have induced the court of 
 chancery to direct a new trial. But I own 
 that the absence of any direction on these 
 heads has appeared to me to make the ver- 
 dict less satisfactory than it would have 
 been if the attention of the jury had been 
 distinctly called to them. 
 
 On the gi'ounds, therefore, which I have 
 pointed out I am of opinion tliat the lord 
 chancellor of Ireland was wrong in refus- 
 ing the motion for a new trial. The con- 
 sequence is, that tlie order of the 18th April, 
 18.)3, refusing the new ti'ial, must be dis- 
 charged, and the cause must be remitted 
 back to Ii'eiand, with a declaration that a 
 new trial ought to have been ordered. 
 
 My opinion, my lords, rests on the grounds 
 I have adverted to, and not on the affidavits 
 filed on the occasion of the motion for a 
 new trial, and I only advert to them for the 
 purpose of saying that their effect is not 
 to alter, in any respect, the view 1 have 
 taken of what the justice of the case re- 
 quires. 
 
 With respect to what has been done sub- 
 sequently to that date, of course the decree 
 on fm-ther directions, and the subsequent 
 orders, mu.st fall to the gi'ound, subject, how- 
 ever, to what I am about to sfeite. It ap- 
 pears that the master, proceeding under the 
 decree, found that there was duo from Mrs. 
 Boyse, the appellant, on account of the rents 
 ajid profits received by her, a sum of £21,961 
 19s. lOd. And by an order dated 19th Jime, 
 1854, Mrs. Boyse was ordered to pay that 
 sum to the respondents. But in consequence 
 of the pendency of the appeal, that order 
 was afterwards varied by an order dated 
 5th Jiily, 1854, whereby it was ordered, that 
 on Mrs. Boyse, the appellant, investing the 
 sum of £21,961 19s. lOd. in the purchase of 
 three and a quarter per cents., and trans- 
 ferring the same into com-t to abide the final 
 result of the causes, all further proceedings 
 under the order of 19th June, 1854, should 
 be stayed. Mrs. Boyse, pursuant to the 
 order of the 5th July, 1854, invested that 
 sum in the purchase of three and a quarter 
 per cent, bank annuities, and transferred > 
 the same into court. There is a supple- 
 mental appeal against the order directing 
 payment of that sum, and, in strictness, that 
 order ought to fall with the decree and 
 orders which preceded it. But I thinlc that, 
 considering that there has been a verdict 
 against the appellant, it will not be um-ea- 
 sonable to retain the bank annuities in court 
 without prejudice, until the result of the 
 new trial Is ascertained. 
 
 It was said at the bar that some of tWe 
 
 253 
 
Case Xo. 57 
 
 liOYSE V. KOSSBOEOUGH. 
 
 (S 
 
 ■witnesses had died since tlie trial. If tliat 
 be so, tlie court of cliancery may, of coiirse, 
 give tile usual directions for reading, on 
 tiie new trial, the depositions talien in the 
 court of chancery. And if, on the applica- 
 t:iou of either party, the court should think 
 any other special directions necessary, as to 
 directing the ti-ial to taiie place elsewhere 
 than at Wexford, or as to the admission of 
 the judge's notes of evidence, where the 
 presence of any of the former witnesses can- 
 not be obtained, or on any other subject, 
 the court below will be fully competent to 
 do justice on all such matters. 
 
 It only therefore remains for me to move 
 254 
 
 your lordships, in conformity with what 1 
 have stated to be my opinion as to what 
 justice requii-es. And I shall, therefore, 
 move yom- lordships that the order of the 
 lord chancellor of Ireland refusing the new 
 trial, and the subsequent orders (except the 
 order under which the money was brought 
 Into court) shall be reversed, and that the 
 cause shall be remitted back to Ireland with 
 a declaration that there ought to be a new 
 trial, with such special directions (if any) 
 as the lord chancellor may deem it proper to 
 make. 
 
 Orders and decree reversed, with declara- 
 tion and remit 
 
§53) 
 
 HALL V. HALL. 
 
 Case No. &5 
 
 HALL v. HALL. 
 
 (L. R. 1 Pi-ob. & Div. 481.)' 
 
 Court of Probate. March 7, 1808. 
 
 This was a testamentary suit in wliich the 
 pliiintiff, Ann Hall, propounded the will of 
 her deceased husband, John Hall. The de- 
 fendant. Wiiiitim TTnii. the brother of the 
 deceased, nleaded th.nt 1hp will was ob- 
 tfiinpfl by the utirlnp inflnnrK^o nf the- plnlT*-. 
 
 tiff. Issue was joined on this plea, and the 
 cause was tried on the 6th and 7th of March, 
 1868, before Sir J. P. Wilde, by a special 
 jury. The only plea being undue influence, 
 the defendant opened the ease. The de- 
 ceased was a farmer and land valuer near 
 Nottingham, and by the bill in question he 
 left the whole of his property, of the value 
 of between £15,000 and £20,000, to his wife. 
 
 The evidence called on the part of the de- 
 fendant was to the efCect that he had mad e 
 this will s^ftlely in consequence of the vio- 
 lence and the threats of the nlaintiff, and 
 for the sake of peace and nuietnes s: and 
 that it did not e xpress his real tes tamenfaxy 
 i ntentions. The evidence in support of the 
 wiU was to the efCect that it was the volun- 
 tary act of the deceased, and that so far 
 from the plaintiff having used violence and 
 threats, she had not even used persuasion to 
 induce him to malie it. 
 
 Sir E. Collier, Q. C, A. Staveley Hill, Q. 
 C, and Weightman, for plaintiff. Dr. Spinlss, 
 Q. C, and Dr. Tristram, for defendant. 
 
 SIR J. P. WILDE, in summing up, gave 
 the following direction to the jury on the 
 
 question of undue influence: To make a 
 good will a man must be a free agent. But 
 all influences are not unlawful. Persuasion, 
 appeals to the affections ol* ties of kindred, 
 to ti sentiment of gratitude for past services,, 
 or pity for future destitution, or the like,— 
 these are all legitimate, and may be fairly 
 pressed on a testator. On the other hand,/ 
 pressure of whatever character, whether act- 1 
 ing on the fears or the hopes, if so exerted' j 
 as to overnower the volition without convin - | 
 pjnp ; the j^ irlp;mp nt. is a species Of restrain t ^ 
 nniTpy whjpli nn v alid wJU fflu be made- Im- 
 portunity or threats, sucli as the testator has 
 not the courage to resist, moral command 
 asserted and yielded to for the sake of 
 peace and quiet, or of escaping from distress 
 of mind or social discomfort, these, if carried 
 to a degree in which the free play of the 
 testator's judgment, discretion, or wishes is 
 overborne, will constitute undue influence, 
 though no force is either used or threatened. 
 In a word, a testator may be led but no t j 
 (Jriven; and his will must be the offspring o f i 
 his own volitio n,, aTifi not tji e i-eccyd of som e 
 one else's . 
 
 His lordship went on to say that in this 
 case the question was one of credibility, for, 
 according to the evidence on the one side, 
 the plaintiff had procured the will by vio- 
 lence, threats, and intimidation, whilst, ac- 
 cording to the evidence of the plaintiff and 
 her witnesses, she had not even resorted to 
 persuasion. 
 
 The jury found that the plea of undue in- 
 fluence was proved. 
 
 The court pronounced against the will and 
 condemned the plaintiff in costs. 
 
 25.> 
 
Case No. 59 
 
 WINGUOVE V. WJXGHOVE. 
 
 (§53 
 
 WINGROVE V. WINGROVB et al. 
 
 (11 Piob. Div. 81.) 
 
 Probate Division. Nov. 19, 1885. 
 
 The plaintiff as a legatee propounded a 
 •will dated the 15th of September, 1869, of 
 Elizabeth Wingrove, late of 87 Long Lane, 
 West Smithfield, and alleged that a codicil 
 dated the 9th of October, 1880, which re- 
 voked some of the gifts to him, was pro- 
 .cm'ed by the undue inHuence of the defend- 
 iints. The defendants in the statement of 
 defence denied that the codicil was procured 
 liy undue influence, and claimed probate of 
 it together with the will. The action had 
 been tried by a common jury, who found a 
 verdict for the plaintiff, which was subse- 
 quently set aside and a new ti-ial ordered by 
 a, special Jury. 
 
 Mr. Murphy, Q. C, and ilr. Gye, for plain- 
 tiff. Mr. Inderwick, Q. C, and Mr. Pritch- 
 ard, for defendants. 
 
 SIR JAMES HANNEN (President), in ad- 
 ■dressing the jury, said: Gentlemen of tlie 
 Jury, I must ask your particular attention 
 to the exposition which I am about to give 
 you of the law upon this subject of undue 
 influence, for I flud, from now a Iouk ex- 
 perience in tills court, that there is no sub- 
 ject upon which there is a greater misappre- 
 lieusion. 
 
 The misapprehension to which I have re- 
 ferred ai'ises from the particular form of 
 i:he expression. We are all familiar with the 
 use of word "influence;" we say that one per- 
 son has an unbounded influence over an- 
 ■other, and we speak of evil influences and 
 good influences; but it is not because one 
 person has unbounded influence over another 
 that therefore when exercised, even though 
 it may be very bad indeed, it is undue in- 
 fluence in the legal sense of the word. To 
 give you some illustrations of what I mean, 
 .a yoimg man may be caught in, the toils of 
 a harlot, who makes use of her influence to 
 induce him to make a will in her favor, to 
 the exclusion of his relatives. It is unfortu- 
 nately quite natural that a man so entangled 
 sliould yield to that influence and confer 
 large bounties on the person with whom he 
 has been brought into such relation; yet the 
 law does not attempt to guard against 
 those contingencies. A man may be the 
 companion of another, and may encoiu-age 
 him in evil courses, and so obtain what is 
 called an undue influence over him, and the 
 conseqiience may be a will made in his favor. 
 256 
 
 But that again, shocking as it is, perhaps 
 even worse than the other, will not amount 
 to undue influence. 
 
 To be undue influence in the eye of the law 
 there must be — to sum it up in a word— £jt 
 ercion . It must not be a case in which a 
 person has been Induced by means as I have 
 suggested to you to come to a conclusion that 
 he or she will make a will In a particular 
 person's favor, because if the testator has 
 only been persuaded or induced by consid- 
 erations which you may condemn, really and 
 truly to inte nd-lQ {five his p roperty to an - 
 other, though you may disapprove of the 
 act, yet it is strictly legitimate in the sense 
 of its being legal. It is only when the wil l 
 of_the_pe rson who becomes a testator is co - 
 erced into doing that- ^vJiieh-JML-fl U she does 
 not desire to do, tha t it is undue influence . 
 
 The coercion may of com-se be of differ- 
 ent kinds, it may be in the grossest form, 
 such as actual confinement or violence, or a 
 person in the last days or hours of life may 
 have become so weak and feeble, that a very 
 little pressure will be sufficient to bring 
 about the desired result, and it may even be, 
 that the mere talking to him at that stage 
 of illness and pressing something upon him 
 may so fatigue the brain, that the sick per- 
 son may be induced, for quietness' sake, to 
 do anything. This would equally be coer- 
 cion, though not actual violence. 
 
 These illustrations wiU sufficiently bring 
 home to your minds that even very immoral 
 considerations either on the part of the tes- 
 ter, or of some one else offering them, do not 
 amount to undue inflvience unless the testa- 
 tor is in such a condition, that if he could 
 speak his wishes to the last, he would say, 
 "This is not my wish, but I must do it." 
 
 If therefore the act is shown to be the 
 result of the wish and will of the testator 
 at the time, then, however it has been 
 brought about— for we are not dealing with 
 a case of fraud— though you may condemn 
 the testator for having such a wish, though 
 you may condemn any person who has en- 
 deavored to persuade and has succeeded in 
 persuading the testator to adopt that view- 
 still it is not undue influence. 
 
 There remains another general observation i 
 that I must make, and it is this, tJiaLJLia i 
 nol- SufBcient to e stablish that a person has 
 the_power_niid uly to ove rbear_ the will of , 
 the_t£giatoj;:__It ^s necess aryali -in to p rove, 
 tljat i n the p aj^ticular case that jpovr suL was 
 eSETc ised, and thafTFT Wrts-^^lmean^jfjthe 
 exercise of that power, tha t_tbe ^ will such 
 asJtJsLhas been pro duced. 
 
53) 
 
 MoMAHOX V. KYAN. 
 
 Case No. 60 
 
 McMAHON T. RYAN. 
 
 (20 Pa. St. 329.) 
 
 Supreme Court of Pennsylvania. March 21, 
 1853. 
 
 Error to court of common pleas, Philadel- 
 phia coiiniy. 
 
 J. A. Phillips, for plaintiff in error. Mr. 
 Thayer, for defendant in error. 
 
 WOODWARD, J. It is essential to a 
 good testament that the mind of the testa- 
 tor in the making of it be free, and not 
 moved by fear, fraud, or undue flattery; 
 and therefore if a man, by occasion of some 
 present fear or violence, or threatening of 
 futm-e evils, do at the same time, or after- 
 ward, by the same motive (that is, when act- 
 ing under that influence), make a testa- 
 luent, it is void, not only as to him that put 
 him so in fear, but as to all others, albeit 
 the testator conflrm it with an oath. Touch- 
 ABB. WILLS — 17 
 
 stone, 405. It must be a present constraint, 
 operative on the mind of tJie testator in 
 the very act of making the testament. 
 Threats and violence, or any undue influence 
 long past and gone, and in no way shown to 
 be connected with the testamentary act, 
 are not evidence to impeach a will. 
 
 The will here was made in January, 1852, 
 and there was no evidence offered to show 
 that, in making it, the testatrix was in- 
 fluenced by the possible use her reputed hus- 
 band might make of the fact of a former 
 marriage, nor by the bad treatment she had 
 received at his hands. General bad treat- 
 ment is no ground for impeaching a will 
 Perhaps it ought to be regarded as fur- 
 nishing presumptions in favor of the will. 
 Unless it be shown that the testator was co- 
 erced, or at least influenced, to make the 
 will by the bad treatment received, it is 
 irrelevant evidence, and as such was proper- 
 ly rejected. 
 . Judgment affirmed. 
 
 25T 
 
Case Xo 61 
 
 KENNELL v. ABBOTT. 
 
 {§§ 54, 17* 
 
 KEXXELL V. ABBOTT. 
 
 (4 Ves. 802.) 
 
 High Court of Chancery. 1799. 
 
 James Hickman by his will, dated the 18th 
 of April, 1782, gave to his wife Catherine 
 £300 4 per cent. Consolidated Bank annui- 
 ties; and appointed her sole executrix. Up- 
 on his death she possessed herself of his per- 
 sonal estate; paid his debts, &c.; and exhib- 
 ited the probate to the bank; but not apply- 
 ing to be at liberty to transfer the stock into 
 her own name, it continued to stand in the 
 name of the testator. 
 
 In 1783 a marriage ceremony was per- 
 formed between Catherine Hickman and Ed- 
 ward Lovell; but that marriage was void; 
 Lovell having been married in 1775; and his 
 wife being living. He cohabited with his 
 wife till 1782. By articles executed pre- 
 viously to the marriage ceremony with Cath- 
 erine Hickman, dated the 3d of January,. 
 1783, she agreed to transfer the said stock 
 upon the trusts therein mentioned, with pow- 
 er to her to dispose of it after the decease 
 of the survivor of herself and Lovell. She 
 never discovered the- invalidity of the mar- 
 riage; and being seized to her and her heirs 
 of a copyhold estate which she had surren- 
 dered to the use of her will, and being pos- 
 sessed of a leasehold estate for a long term 
 of years, determinable upon lives, and of 
 personal estate, she made her will, duly at- 
 tested according to the statute of frauds, de- 
 scribing herself as the wife of Edward Lov- 
 ell; and by virtue of the power and au- 
 thority given her before her marriage with 
 her present husband Edward Lovell, she 
 publishes and declares her last will and tes- 
 tament; giving the said £300 stock to her 
 brother Thomas Abbott, in trust to pay the 
 interest to her niece Betty Kennell, for life; 
 and after her decease the principal to be 
 equally divided between her two daughters, 
 share and share alike. She gave some lease- 
 hold premises to her nephew Martin Togood, 
 his executors and administrators. She gave 
 a copyhold estate, which she had surrender- 
 ed to the use of her will, to her brother 
 Thomas Abbott and his heirs, in trust to 
 sell, and out of the monies arising therefrom 
 to pay the following legacies: "to my hus- 
 band the said Edward Lovell the sum of 
 £150;" to her brother Thomas Abbott £20; to 
 her nephew James Fabian, her niece Eliza- 
 beth Cox, and her nephew George Togood, 
 £10 each; and she directed these legacies to 
 be paid within twelve months after her de- 
 cease. She gave another leasehold estate to 
 her great niece Catherine Kennell, her execu- 
 tors, &c.; and she gave all her household 
 goods, plate, fm-niture, and stock in hus- 
 bandry, to her brother Thomas Abbott, his 
 executors and administrators, in trust to sell, 
 and out of the produce to put in the life of 
 her said gi'eat niece into the said leasehold 
 premises, if she (the testatrix) should not do 
 258 
 
 it in her life. She gave hgr wearing apparel 
 and linen to her niece Betty Kennell; and as 
 to the residue of the purchase-money arising 
 from the sale of her said copyhold estate,, 
 household goods, and furniture, and all the- 
 rest, residue, and remainder, of her monies, 
 securities for money, personal estate and ef- 
 fects, whatsoever and wheresoever that she 
 should die possessed of, interested in, or en- 
 titled to, or whereby she had power to dis- 
 pose by will, she gave to her said niece Betty 
 Kennell, her executors and administrators,, 
 subject to her debts and funeral expences; 
 and she appointed Thomas Abbott guardiam 
 of the chUdren of Betty Kennell, and ap- 
 pointed Betty Kennell executrix. 
 
 The testatrix died; leaving Edward Lovell 
 sm-viving her, and John Abbott, her eldest 
 brother, her heir at law. Betty Kennell 
 proved her will: but the probate was limited 
 to the £300 stock, and £100 stock, supposed 
 to be standing in the name of, and pm-- 
 chased by, the trustees, under the articles of 
 the 3d of January, 1783. Edward Lovell 
 died; leaving an infant son by his lawful 
 wife Ann Lovell; with whom he lived till 
 1781. She died in 1788. 
 
 The bill was filed by legatees under the- 
 will of Catherine Hickman; praying, that 
 the trusts of her will may be established, ex- 
 cept as far as relates to the bequest to Ed- 
 ward Lovell and the lapsed legacy to Jame.* 
 Fabian, who died in the life of the testa- 
 trix, and to the guardianship of the infant 
 plaintiffs; and that the pretended mai-riage 
 articles may be declared void. 
 
 The question arose upon the legacy of £150' 
 given to Edward Lovell; which was claimed 
 on the part of his infant son. Supposin.g 
 that legacy void, it was claimed by the re- 
 siduary legatee, by the heir, and also by the 
 next of kin. 
 
 Mr. Wooddeson, for plaintiffs. Mr. Steele, 
 for the next of kin. Mr. Stanley, for the 
 heir. Mr. Cox, for defendant LoveU. Mr. 
 Wooddeson, in reply. 
 
 MASTER OF THE ROLLS. This case has- 
 stood a long time; and I believe, the reason 
 I have not been desired to give my judgment, 
 is, that it has abated; and perhaps it may be- 
 unnecessary to give it. But as upon very full 
 consideration I have made up my mind, it 
 may be of use, that the parties may know 
 my opinion, in case they think fit to revive it.. 
 
 The cause arises upon the will of Cather- 
 ine Hickman; who supposed herself to be- 
 married to Edward LoveU; with whom she- 
 had celebrated a marriage. It now appears, 
 that he was a married man at that time: 
 therefore she is in fact a single woman; and 
 it was a gross fraud as to her. She made- 
 her will, in execution of the power given tO' 
 her by the articles executed previously to 
 the supposed marriage; and not aware that 
 she was a single woman. Upon that will the 
 questions arise. The first question is, wheth- 
 er this legacy of £150, charged upon the prod- 
 
g§ 54. 174) 
 
 KEXNELL V. AJJBUTT. 
 
 Case No. Gl 
 
 uce of the sale of the copyhold estate de- 
 vised In trust to be scdd, is or is not a legacy, 
 which this man can claim under the circum- 
 stances, that it is given to him as the hus- 
 band of the testatrbc; though he does not 
 possess that character. I thought it a case 
 rather novel in its circumstances, and that 
 scarcely has afforded any decision in the law 
 of England; though there are some dicta in 
 the civil law, that seem to bear upon the 
 point. The passage cited from the Code, I 
 think, does not much apply. The passage in 
 the Digest is, "Falsam causam legato non 
 obesse verius est, quia ratio legandi legato 
 non cohaeret: sed plerumque doll exceptio lo- 
 cum habebit, si probetur alias legaturus non 
 fulsse." 
 
 The meaning is, that a false reason given 
 for the legacy is not of itself suflacient to de- 
 stroy it: but there must be an exception of 
 any fraud practised; from which it may be 
 presumed, the person giving the legacy would 
 not, if that fraud had been known to him, 
 have given it. That, from a book of great 
 authority, seems to be the principle of the 
 civil law. 
 
 The question is, whether according to the 
 law of England that can apply to a case like 
 the present; and whether the law will per- 
 mit a man, who obtains a legacy in such a 
 manner, to have the benefit of it. I have 
 not been able to find any thing, that bears 
 liny very decisive analogy to this: but upon 
 general principles I am of opinion, it would 
 be a violation of every rule, that ought to 
 prevail as to the intention of a deceased 
 person, if I should permit a man, availing 
 himself of that character of husband of the 
 testatrix, and to whom in that character a 
 legacy is given, to take any part of the es- 
 tate of a person, whom he so grossly abused ; 
 and who must be taken to have acted upon 
 the duty imposed upon her in that relative 
 character. I desire to be understood not to 
 determine, that, where from circumstances 
 not moving from the legatee himself the de- 
 scription is inapplicable, as where a person 
 is supposed to be a child of the testator, and 
 from motives of love and affection to that 
 child, supposing it his own, he has given a 
 legacy to it, and it afterwards tm-ns out, 
 that he was imposed upon, and the child was 
 not his own, I am not disposed by any means 
 to determine, that the provision for that 
 child should totally fail; for circumstances 
 of personal affection to the child might mix 
 with It; and which might entitle him; though 
 he might not fill that character, in which 
 the legacy is given. My decision therefore 
 totally avoids such a point. Neither would 
 I have it understood, that If a testator, in 
 consequence of supposed affectionate conduct 
 of his wife, being deceived by her, gives her 
 a legacy, as to his chaste wife, evidence of 
 her violation of her marriage vow could be 
 given against that. It would open too wide 
 a field. But this decision steers clear of 
 that point. This is a legacy to her supposed 
 
 husband and under that name. He was the 
 husband of another person. He had certain- 
 ly done this lady the grossest injury a man 
 can do to a woman; and I am called upon 
 now to determine, whether the law of Eng- 
 land will permit this legacy to be claimed 
 by him. Under these circumstances I am 
 warranted to make a precedent; and to de- 
 termine, that, wherever a Jegacy is given to 
 a person under a particular character, which 
 he has falsely assumed, and which alone can 
 be supposed the motive of the bounty, the 
 law will not permit him to avail himself of 
 it; and therefore he cannot demand his leg- 
 acy. 
 
 A case ' something like this occui-red lately; 
 which took up so much time before the lords 
 commissioners upon an application for a writ 
 de ventre inspiciendo against a woman, who 
 had lived with Mr. Fellowes, and had made 
 iiim believe she had been brought to bed of 
 several children; which he was weak enough 
 to suppose his. It was not a question, 
 whether they were his children; for if so, 1 
 do not apprehend the decree would have 
 been such as it was. But there were no 
 such children. She had shewn him children 
 as her's, which were not her's; and he gave 
 legacies to them, as her children by him. It 
 was held, that they were not entitled. There 
 two things were wanting. The testator was 
 not merely deceived as to their being his 
 children; but he was deceived as to the 
 other ingredient of the character, in which 
 he gave them the legacies; for they were not 
 the children of that woman. Therefore, upon 
 the principle I have mentioned from the 
 Digest, and that ought to govern courts of 
 justice, I am of opinion this legacy could not 
 be claimed. 
 
 The next question is more dilficult. It 
 turns strictly upon the law of England; 
 whether a legacy given out of the produce 
 of a copyhold estate directed to be sold, and 
 failing, shall faU into the residue, or go to 
 the heir. There have been different deter- 
 minations upon it; to some of which I cannot 
 perfectly accede: but my determination will 
 not shake any. Cruse v. Barley, 3 P. Wms. 
 20, Arnold v. Chapman, 1 Ves. Sr. 108, and 
 Hutcheson v. Hammond, 3 Brown, Ch. 128, 
 were cited. In the last, an estate was de- 
 vised in trust to be sold; and out of the pur- 
 chase-money several legacies were given; 
 and the residue of the purchase-money was 
 disposed of. The question was, whether one 
 of the legacies, failing by the death of the 
 legatee in the life of the testatrix, fell into 
 the surplus, or was to be considered as so 
 much real estate undisposed of. There were 
 two residues: one a special residue, so much 
 of the money arising from the sale of the 
 estate as was not exhausted by the particu- 
 lar legacies: the other, the general residue. 
 Mr. Justice BuUer was of opinion, that the 
 lapsed legacy of money produced by the sale 
 
 ' Ex parte Wallop, 4 Brown, Oh. 90. 
 
 259 
 
Case No. 61 
 
 KE^'>ELL V. ABBOTT.. 
 
 (§§ E4, 174 
 
 of real estate fell into neither, for It was 
 contended as tc both; but that it resulted to 
 the heir, as wholly undisposed of. My de- 
 termination will not interfere with that. 
 There are many essential differences. This 
 testatrix has given several particular parts 
 of her estate; stocli, leasehold estates, house- 
 hold goods, furniture, and many other arti- 
 cles; and this copyhold estate; which she 
 orders at all events to be sold, and out of the 
 purchase money she directs these legacies 
 to be paid; and she makes a residuary dispo- 
 sition; as to which the question Is, whether 
 it Is not to all intents a general residuary 
 clause, cariying every thing not disposed of. 
 I am of opinion it is, under Mallabar v. Mal- 
 labar, Cas. t. Talb. 78; and Durour v. Mot- 
 teux, 1 Ves. Sr. 320. It is making the real es- 
 tate to all intents and purposes personal; and 
 then, taking a retrospective view of what she 
 had done, and meaning to give every thing not 
 disposed of, she adds this residuary clause. 
 Therefore I think, this estate is turned en- 
 tirely into money. The testatrix contem- 
 plated it as such; and part of It not being 
 well disposed of, the residuary clause gives 
 not only everything not expressly disposed 
 of, but also every thing lapsed, or by any 
 means not disposed of. It was long doubted, 
 whether, if an estate \?as devised charged 
 with legacies, which failed from the nature ot 
 the legacies themselves, as if they were char- 
 260 
 
 itable legacies, the devisee was entitled to 
 so much as consisted, of those legacies. In 
 Harrington v. Harris, in which the question 
 arose. Lord Bathurst at first thought the 
 heir entitled upon the cases of Cruse v. Bar- 
 ley, and Arnold v. Chapman; but afterwards 
 his lordship changed his opinion, and deter- 
 mined, and it Is now perfectly settled, that 
 if an estate is devised, charged with legacies, 
 and the legacies fail, no matter how, the 
 devisee shall have the benefit of It, and take 
 the estate. That case is in some degree an- 
 alogous to this; which is the case of an es- 
 tate to aU Intents and purposes turned Into 
 money; and therefore this legacy belongs to 
 the residuary legatee. 
 
 Declare, that Edward LoveU, to whom the 
 legacy of £150 Is given as the husband of the 
 testatrix, was not entitled; and that legacy 
 fell into the residue of her estate, given by 
 her will to Betty Kennell. 
 
 NOTE. In England, objection to a will of 
 personalty, on the ground that it was obtained 
 by fraud, is made in the probate court; and it 
 is not competent for a court of chancery to 
 declare a legatee a trustee for a person who 
 would have taken but for such legatee's fraud- 
 ulent act. Allen v. McPherson, 1 H. L. Cas. 
 191. Nor has the court of chancery jurisdiction 
 to set aside a will of land obtained by fraud. 
 Jones V. Gregory, 2 De Gex, J. & S. 83. See, 
 also, Pinney v. Hunt, 6 Ch. Div. 98. The 
 same general rule prevails in the United States. 
 In re Broderick's Will, 21 Wall. 503. 
 
§ 54) 
 
 EISHTON V. COBB, 
 
 Case No. 62 
 
 RISHTON T. COBB et al. 
 
 (5 Mylne & 0. 145.) 
 
 High Court of Chanceiy. July 26, 27. Dec. 16, 
 183J. 
 
 * * ♦ Tlie question turned upon a short 
 clause in a will, and upon a few circumstan- 
 ces connected ■with the terms in which the 
 legatee was described. 
 
 Thomas Cobb, of Margate, by his will, 
 dated the 1st of March, 1834, bequeathed as 
 follows:— "I give and bequeath to William 
 Cobb, William Edmunds, and Charles Cook, 
 the sum of £2000 sterling, upon trust to in- 
 vest the same in government securities, upon 
 trust to authorize and emppwer Lady Fanny 
 Campbell, widow of the late Major-General 
 Sir Niel Campbell, to receive the dividends 
 as they become due, so long as she shall con- 
 tinue single and unmarried; but in case she 
 sells, assigns, or disposes of, or anticipates 
 such dividends, I do hereby revoke the be- 
 quest so made for her benefit, and thereupon 
 do will and direct that tlie said sum of £2000 
 shall become pai't of the residue of my estate. 
 I also give and bequeath to the said Lady 
 Fanny Campbell the sum of £500 sterling, to 
 be paid to her within two months after my 
 decease; but in case there is any debt due 
 from her on a warrant of attorney lately 
 given to Messrs. Rice and Goodyer, I direct 
 my executors, out of the legacy, to pay such 
 debt, and to pay the residue of such £500 to 
 Lady Campbell only. I also give her back 
 the diamond ring she gave me, and re- 
 quest her to have the diamond reset in a 
 mourning ring, and wear It for my sake." 
 The testator gave the residue of his personal 
 estate to John Mitchener Cobb and William 
 Cobb, and appointed them and William Ed- 
 munds his executors. 
 
 The testator died in the month of Febru- 
 ary, 1836. 
 
 The lady mentioned in his wIU had been 
 the wife of Major-General Sir Niel Campbell, 
 who died In the year 1827; but in October, 
 1829, she had married the defendant, Henry 
 Rishton, who, in January, 1830, went to 
 Sierra Leone, leaving her in England, and he 
 had never returned, but, if alive, was still 
 living in Africa. 
 
 The lady, after her marriage with Rishton, 
 continued to style herself Lady Campbell, 
 except when she signed receipts for a pension 
 granted to her as Sir Niel Campbell's widow, 
 on which occasion she signed her name of 
 Frances Rishton. 
 
 The plaintiff's evidence was confined to 
 proving the marriage of the plaintiff with 
 Henry Rishton, and the fact that Rishton 
 went to Sierra Leone In the month of Janu- 
 ary, 1830, three months after the marriage, 
 and that he had ever since resided, and if 
 living, stiU continued to reside In Africa. 
 
 The defendants' evidence consisted of the 
 proof of the warrant of attorney mentioned 
 in the testator's will, and of a promissory 
 note and a memorandum signed by the plain- 
 
 tiff as Frances Campbell, and of depositions 
 of witnesses upon the question of the plain- 
 tiff's passing at Margate as the widow of 
 Major-General Sir Niel Campbell, not yet 
 married again. 
 
 The deposition of a witness named Neame 
 stated that the testator frequently spoke of 
 and alluded to the plaintiff, in conversations 
 with the deponent and other persons, as Lady 
 Campbell, or Lady Niel Campbell, and that 
 he particularly referred to the superiority of 
 her rank above the general society of the 
 place, and that the deponent never had any 
 conversation with the testator on the sub- 
 ject of the testator's having made to the 
 plaintiff any proposal of marriage, but that 
 the plaintiff had repeatedly mentioned to the 
 deponent that she would not marry the tes- 
 tator on any account, as his temper was too 
 arbitrary and overbearing, and that he was 
 deficient In those little attentions which la- 
 dies expect. 
 
 A witness named Lydia Dowson, who was 
 in the service of the plaintiff from May, 
 1834, to March, 1836, stated that, dm-ing that 
 time, the plaintiff represented herself to be 
 the widow of Sir Niel Campbell, and that the 
 testator and the plaintiff frequently visited 
 and communicated with each other, and that 
 she (the witness) had been frequently In- 
 formed by the plaintiff that the testator had 
 made her an offer of marriage, and that the 
 plaintiff, upon those occasions, informed the 
 deponent that she never would marry him 
 on account of his violent and overbearing 
 temper, for that she herself was of an equally 
 iri'itable disposition. 
 
 Other witnesses were also examined, and 
 it appeared from their testimony, as well as 
 from the testimony of the witnesses before 
 mentioned, that the plaintiff used the name 
 of Lady Campbell, and that the testator ad- 
 dressed her and spoke of her as such; and 
 that she was considered, at Margate, to be 
 the widow of Sir Niel Campbell, not married 
 again. 
 
 There was no positive evidence of the 
 plaintiff having represented herself to be a 
 single woman. 
 
 The vice-chancellor having made a decree 
 in the plaintiff's favour, the defendants John 
 Mitchener Cobb and William Cobb apiDealed 
 from It, and Insisted, by their petition of 
 appeal, that the bill ought to be dismissed 
 with costs. 
 
 Mr. Wakefield and Mr. Randell, for plain- 
 tiff. 
 
 The Lord Chancellor (COTTENHAM). 
 The defendants, by their appeal, dispute the 
 plaintiff's title to any decree, and therefore 
 insist that she has no title either to the 
 £500 or to the £2000. The case as to the 
 two sums is different; but one objection re- 
 lied upon by the defendants applies to both. 
 The defendants Insist that the plaintiff, hav- 
 ing been supposed by the testator to be the 
 widow of her first husband, Sir Niel Camp- 
 
 261 
 
Case ^0. 62 
 
 RISHTOK V. COliB. 
 
 {§ 54 
 
 bel!, Is not entitled, under the circumstauees 
 proved in tlie cause, to the legacies gi\'en 
 to her by his will. This must depend upon 
 the circumstances proved, because it is clear 
 that mere misapprehension on the part of 
 a testator as to the situation of a legatee 
 will not avoid the legacy. After looking 
 through all the cases upon the subject, which 
 ai-e but few in number. I do not find that 
 I can better define what circumstances will 
 make the legacy void than by adopting the 
 words of Lord Alvanley in Kennell v. Ab- 
 bott,^ namely, that when a legacy is given 
 to a person, under a particular character, 
 which he has falsely assumed, and which 
 alone can be supposed the motive of the 
 bounty, the law will not permit him to avail 
 himself of it, and therefore he cannot de- 
 mand his, legacy. I think tlie evidoucc in 
 this ease fails to bring it within thi.s def- 
 inition. That the plaintiff, notwithstand- 
 ing her maiTiage, continued to call herself 
 Lady Campbell, was not, of itself, an as- 
 sumption of a false character. That is so 
 generally done, after a marriage with a sec- 
 ond husband of inferior rank to the first, 
 that no imputation of Improper motives can 
 be founded upon it. There is, however, I 
 think, evidence of her having concealed her 
 second marriage, or at least of her having 
 permitted those with whom she lived, and 
 amongst others the testator, to assume and 
 believe that she had not been married a sec- 
 ond time; but I think there is a total ab- 
 sence of proof that this was done from any 
 improper motive. If, indeed, there had been 
 proof that she had permitted the testator 
 to entertain hopes of himself marrying her, 
 there might have been ground for suspect- 
 ing that the concealment of her fii'st mar- 
 
 ' 4 Ves. 802; see 809. 
 
 riage had arisen from an interested motive; 
 but the defendants, by some evidence they 
 have given, have displaced any such sup- 
 position, for they have proved a statement 
 by h'er that she had refused proposals of 
 marriage which the testator had made to 
 her. The reason she assigned was not, in 
 all probability, the true one; but the fact 
 she states goes far not only to remove any 
 suspicion of improper motives in the course 
 she adopted, but to negative any idea that 
 the testator's testamentary disposition in her 
 favour was influenced by any expectation of 
 her becoming his wife, or, in the words of 
 Lord Alvanley, that the assumed character 
 was alone the motive of the bounty. It is 
 obvious that the rule, that, where the iden- 
 tity of the legatee is certain, the legacy will 
 not be avoided by an inaccuracy in the de- 
 scription given to him, will be destroyed, if 
 the com-t permits itself to speculate, with- 
 out proof, upon what may have been the 
 object of the testator in giving the legacy. 
 Tn Standen v. Standen,^ it was impossible 
 to ascertain what the testator would have 
 done if he had known that the legatee was 
 Illegitimate, or in Schloss v. Stiebel," if ho 
 had foreseen that he should die before his 
 marriage with the person he describes as his 
 wife. The court, therefore, must be satis- 
 fled that the assumed chai-acter was the mo- 
 tive for the bounty. That the testator was 
 much attached to the legatee is evident from 
 the provisions of the will; but that such 
 attachment existed only upon the suppo- 
 sition that she was unmarried, or that his 
 desire for beneflting her would have ceased 
 if he had known of her being married, is 
 not established. * * *' 
 
 ' 2 Ves. .Tr. 
 • 6 Sim. 1. 
 
 580. 
 
 262 
 
^54) 
 
 HOWELL V. TliOUTMAN. 
 
 Case No, 63 
 
 HOWELL et al. >-. TROUTMAN. 
 
 (8 Jones, [N. 0.] 304.) 
 
 .Supreme Court of North Carolina. Dec. Term, 
 1860. 
 
 Issue of devisavlt vel nou of the will of 
 -Jacob Troutman, deceased. The will was 
 propomided by Ann Allmond and the chil- 
 dren of David Troutman mentioned in the 
 will. The caveator was Henry Troutman, 
 .a brother of the decedent. The execution of 
 the will was duly proven, and the fact that 
 the witness was of sound mind was con- 
 . ceded. Verdict for plaintiff, and caveator 
 appeals. 
 
 Mr. Boyden, for propounders. Mr. Love, 
 for caveator. 
 
 BATTLE, J. We concm* in tlie opinion 
 
 .of his honor who ti'ied this cause, that there 
 was no evidence of the will's having been 
 procm-ed by the fraud and undue influence 
 
 •of Ann Allmond or any other person. It 
 Avas abundantly proved, and Is conceded, 
 that the alleged testator was of sound and 
 disposing mind and memory, when he exe- 
 
 .cuted the script which is propounded for 
 probate as his will. The only circumstance 
 from which it is sought to be Inferred that 
 he executed it under the effect of fraud, or 
 under the exercise of undue influence, is 
 that Ann Allmond, his housekeeper, a white 
 woman, induced him to believe that he was 
 the father of her mulatto child. Supposing 
 that he did believe the child was his, and 
 that the mother of it told him so, there is 
 not the slightest testimony to show that she 
 ever even asked him to make a will in favor 
 
 ■of her and the child, or that she knew, be- 
 fore the will was made, that he intended to 
 make one, or, afterwards, that he had made 
 it. An eminent judge in the ecclesiastical 
 courts in England, (Sir John Nichol,) said 
 
 an the case of Williams v. Goude, 1 Hagg. 
 
 Ecc. 581, "that the influence to vitiate an 
 act, must amount to force or coercion, de- 
 stroying free agency; it must not be the 
 influence of affection or attachment; it must 
 not be the mere desire of gi-atifying the 
 wishes of another; for that would be a very 
 stfong ground of support of a testamentary 
 act." In the present case, what influence 
 is it shown that Ann Allmond had over 
 the alleged testator, amounting to force or 
 coercion, and destroying his free agency? 
 None whatever. At most, it is said that she 
 made him believe that he had begotten a 
 child by her, which every body, but himself, 
 could see was a mulatto. Sm-ely that alone 
 cannot destroy a will which the mother is 
 not shown to have had the slightest agency 
 In procuring. It has been said by a satirical 
 writer, that many a married man fondles 
 children as his own, which his wiser wife 
 knows to belong to another. Would a will 
 in favor of such children be set aside upon 
 the ground that the trusting husband had 
 been imposed upon, and had, on that ac- 
 count, acted under imdue influence? Cer- 
 tainly not; and yet, to set aside the present 
 wjU, for the cause assigned, would be al- 
 most as bad. The truth is, that the old 
 man, being childless by his wife, took a 
 strange fancy to the child of his house- 
 keeper, and whether it was his or not, he 
 had a father's love for it, and our law im- 
 poses no prohibition upon a man to prevent 
 him from bestowing his property upon the 
 ob.iect of his affection. Affection or attach- 
 ment, as Sir John Nichol said, "would be 
 very strong ground of support of a testa- 
 mentary act." 
 
 PER CURIAM. Judgment affirmed. 
 
 NOTE. Where a testator made one will, evi- 
 dence was admitted that he signed another sur- 
 reptitiously substituted for the former will. Doe 
 dem. Small v. Allen, (1799,) 8 Term. R. 147. 
 
 263 
 
Case No. 64 
 
 m EE GOODS OF HUNT. 
 
 {§ 55 
 
 In re GOODS OF HUNT. 
 
 (3 Prob. & Div. 250.) 
 
 Court of Probate. May 4, 1875. 
 
 Application to probate will. 
 
 Sarah Hunt and Ann Hunt, spinsters 
 and sisters, residing together, in 1S73 
 agreed to make their respective wills, the 
 object being that, in the event of the 
 death of eitherof them, thesurvivorshould 
 enjoy the joint property for life. Two 
 wills were prepared in the handwriting of 
 Sarah. The legacies In each were iden- 
 tical, save thiit where one gave a legacy 
 to a certain charitable institution the 
 other gave a similar legacy to another 
 charitable institution; and in each case a 
 life-interest was given to the survivor in 
 the bulk of her sister's property. After 
 the death of Sarah Hunt the two wills 
 were found together, indorsed, "The wills 
 of Sarah and Ann Hunt;" but on opening 
 them it was discovered that each sister had 
 executed the will prepared for the other. 
 Most of the persons interested in an in- 
 testacy consented that the document exe- 
 cuted by the deceased should be recog- 
 nized as her will, and probate thereof be 
 granted to the executors named in it; but 
 some of the persons were abroud, and 
 could not be communicated with. 
 
 Bayford, for the motion. 
 
 Sir J. Hannen. I should be glad to 
 give effect to the intentions of the testa- 
 trix, by granting probate of this instru- 
 ment, if I could, but I must not allow my- 
 self to be led away from what appears to 
 me to be very plain ground by such a de- 
 sire. No doubt there has been an unfor- 
 tunate blunder. The lady signed as her 
 264 
 
 will something which in fact was not her 
 will. If I were to attempt to read it as 
 her will, it would lead to a variety of ab- 
 surdities. She leaves to her sister, Sarah, 
 that is, to herself, a life-interest In a por- 
 tion of her property, and all the furniture, 
 plate, etc., which she holds in part with 
 herself. lam asked to Ireat this as a 
 misdescription. If by accident a wrong 
 name had been introduced, and it was 
 clear what person was intended, the court 
 would give effect to the instrument, pro' 
 viding the mistake could be corrected. 
 But it would be contrary to truth in this 
 case if 1 acted on such an assumption. 
 If I were to put such a construction upon 
 this will, I should be assuming, in order to 
 do substantial justice, what every one who 
 hears me would know is contrary to the 
 fact. And no court ought to base its 
 judgment on something wholly artificial, 
 and contrary to what every one must see 
 is the real state of the circumstances. It is 
 enough to say that there has been an un- 
 fortunate blunder. A paper has been 
 signed as the lady's will which, as it hap- 
 pens, if treated as her will, would to a 
 great extent, although not entirely, carry 
 out her wishes. But in one respect it does 
 not, for by it a legacy Is bequeathed to 
 one charity which she intended to leave to 
 another. As regards this legacy, it is sug- 
 gested that it might be treated as if the 
 deceased did not know and approve of 
 that part of the will. But she did notiu 
 fact know and approve of any part of the 
 contents of the paper as her will; for it 
 is quite clear that if she bad known of the 
 contents she would not have signed it. I 
 regret the blunder, but I cannot repair it. 
 I reject the motion, but I allow the execu- 
 tors costs out o! the estate. 
 
§§ -5,125) 
 
 IN RE GOODS OF DUANE. 
 
 Case No. 65- 
 
 In re GOODS OF DTJANB. 
 
 (2 Swab. & Tr. 590.) 
 
 Conrt of Probate. July 29, 1862. 
 
 In this case the deceased, a sergeant-major 
 in the e4th regiment of foot, died on the 3d 
 of October, 1861, having duly executed a 
 testamentary paper by his marls:, on the 
 same day. The paper consisted of a skele- 
 ton printed form, supplied by the war office; 
 in the presence instance headed, in print: 
 "Form of will. No. 3. To be used by a 
 soldier desirous of leaving money to be in- 
 vested for the benefit of his child or chil- 
 dren;" and, after some printed and some 
 blank lines, with printed directions along- 
 side for particular bequests, it ended in print 
 thus: "And the rest of my estate and ef- 
 fects, and everything that I can give or dis- 
 pose of, I desire may be sold, and the pro- 
 ceeds invested imder the orders of the secre- 
 tary of war, for the equal benefit of my chil- 
 dren. In witness whereof I the said 
 
 have hereunto set my hand," etc. 
 
 From the affidavit of C. F. F. Wood, a 
 clerk in the military purveyor's department 
 of the war oflice, and one of the subscribed 
 witnesses to the mark of the deceased, it ap- 
 peared that he was sent for on the 3d of 
 October, 1861, to prepare the will for the de- 
 ceased, who was then in hospital; that he 
 took with him the above-mentioned printed 
 form; but on seeing the deceased, received 
 from him instructions to prepare his will, 
 leaving the whole of the property to his wife; 
 and accordingly, after the printed line, "after 
 payment of my just debts and funeral ex- 
 penses, I give to my," filled up in writing, 
 "wife, Elizabeth Duane, all my goods and 
 chattels." Wood then read over to the de- 
 ceased, from the paper so printed and filled 
 up in writing, "This is the last will of Ser- 
 geant-Major Thomas Duane, No. 3160, of the 
 64th regiment of foot. After payment of 
 my just debts and funeral expenses, I give 
 to my wife, Elizabeth Duane, all my goods 
 and chattels." He did not read the re- 
 mainder of the printed form, or advert to it 
 as having any effect, but filled up the testi- 
 monium clause, and the deceased then made 
 his mark. 
 
 Dr. Swabey now moved the court to grant 
 letters of administration with the will an- 
 nexed to the widow, omitting the residuary 
 clause in favor of the children. 
 
 Cm-, adv. vult. 
 
 SIR C. CKESSWELL, after stating the 
 facts as above, said: Allen v. M'Pherson, 
 (1 H. L. Cas. 191,) decided in the house of 
 lords, shows that a court of probate has au- 
 thority to omit from probate a clause intro- 
 duced into a will by fraud, although it 
 formed part of the will when executed. I 
 can see no difference in principle between 
 that case and the present one, where a 
 clause, for which the deceased gave no in- 
 stnictions, and which was not read over ta' 
 him, formed, per incuriam, part of the docu- 
 ment signed by the deceased. I think ad- 
 ministration with the will annexed may go, 
 omitting the residuary clause in favor of the 
 children. 
 
 NOTE. In Rhodes v. Rhodes, (1882,) 7 App. 
 Cas. 192, Lord Blackburn said, (page 198:) 
 "When an instrument purporting to be the wiir 
 of the deceased person has been executed by 
 the deceased in the proper manner, but it is 
 sufiiciently proved that though he executed the 
 instrument, yet that from fraud he executed 
 that which was not his will there is no difficul- 
 ty in pronouncing that the instrument is not his 
 will. And it has been held that when it is 
 sufficiently proved that the instrument com- 
 prised his will, but that from fraud, or per- 
 haps from inadvertence, such as that in Re 
 Goods of Duane, 2 Swab. & Tr. 590, the in- 
 strument which he actually executed contained 
 also something which was not his will, this lat- 
 ter part is to be rejected. And in such a 
 case, if this latter part is so distinct and sev- 
 erable from the true part that the rejection of 
 it does not alter the construction of the true 
 part, it has been held that, consistently with 
 the statute of wills, the execution of what was 
 shown to he the true will, and something more, 
 may be treated as the execution of the true wilt 
 alone. A much more difficult question arises 
 where the rejection of words alters the sense 
 of those which remain. For even though the 
 court is convinced that the words were improp- 
 erly introduced, so that if the instrument was 
 inter vivos they would reform the instrument 
 and order one in different words to be executed, 
 it cannot make the dead man execute a new 
 instrument; and there seems much difficulty in 
 treating the will after its sense is thus altered 
 as valid within the 9th section of the 7 Wm. 
 IV. & 1 Vict. c. 26, the signature at the end 
 of the will required by that enactment having 
 been attached to what bore quite a different 
 meaning. It has never, as far as their lord- 
 ships are aware, been necessary to decide as to 
 this, though the judgment of Sir James Hanneu 
 in Harter v. Barter, L. R. 3 Proh. & Div. 11, 
 has some bearing on it. And their lordships 
 think it unnecessary and therefore improper 
 now to express any opinion on this question, 
 for the evidence does not raise it." 
 
 265 
 
I 
 
 Case No. 66 TRUSTEES WESTERN MARYLAND COLL. v. McKINSTRY. (§ 56 
 
 TRUSTEES OF "WESTERN MARYLAND 
 COLLEGE V. McKINSTRY. 
 
 (23 Atl. 471, 75 Md. 188.) 
 
 Court of Appeals of Maryland. .Tan. 28, 1892. 
 
 Appeal from orphans' court, Carroll 
 county. 
 
 Application by the trustees of tlie West- 
 ern Maryland College for the probate of a 
 certain alleged will. Mordecai C. McKin- 
 stry filed a caveat asainvt the probate 
 thereof. The court adjudged that the will 
 .should not be admitted to probate, and 
 the trustees appeal. Affirmed. 
 
 Argued before Ai.vey, C. J., and Robin- 
 son, Bryan, Miller, Irving, Fowlek, 
 and McSherry. .IJ. 
 
 Thomas A. Murray, for appellants. W 
 H. Thomas and Charles B. Roberts, for 
 appellee. 
 
 McSherry, J. Mary M. McKinstry died 
 on the 28tli of December, 1890, and on the 
 ]8th of .January following letters of ad- 
 ministration upon her estate were com- 
 mitted to her brother, Mordecai C. McKin- 
 stry. On the 25th of the succeeding March 
 the administrator brought into and filed 
 in the orphans' court of Carroll county a 
 Bible which had belonged to the decedent; 
 and upon the last leaf in the back thereof 
 there was written, in the handwriting of 
 the decetised. the following: "f.'),000 for 
 West. Md. College. ¥1,000 of it to be given 
 to the Theological Seminary ; $1,000 to 
 Ward Hall. The «3,000 to be given to the 
 main college. July 18, 1883. Mamik Mc- 
 Kinstry. " Subsequently the trustees of 
 Western Maryland College, a body cor- 
 porate, filed a petition in the orphans' 
 court, offering the above-recited writing 
 for probate as a testamentary paper; but 
 Mordecai C. McKinstry, in his capacitj' as 
 administrator, filed a caveat against the 
 probate thereof. Some evidence was 
 taken, and an agreed statement of facts 
 was drawn up and signed, and finally, 
 after a hearing, the orphans' court refused 
 to admit the paper to probate. From 
 this order the pi-esent appeal was taken 
 by the trustees of Western Maryland Col- 
 lege. 
 
 The only question which we are called 
 upon to decide is whether the paper is en- 
 titled to be admitted to probate as a valid 
 will of personal property. When the case 
 was argued before us we were all of opin- 
 ion that the paper was entitled to be ad- 
 mitted to probate, and we were of that 
 opinion because, prior to the adoption of 
 2GG 
 
 the act of I8S4, c. 293, no more formality 
 was required in the execution of a willdis- 
 po.sing of personal property than Miss Mc- 
 Kinstry observed in this instance; and 
 we we're under the impression that the 
 second section of that statute, expressly 
 saving from the operation of the act itself 
 all wills bequeathing only personal estate, 
 and executed prior to the 1st day of Au- 
 gust, 1884, was still the Jaw of Maryland. 
 The act just alluded to required that al) 
 wills disposing of personal estate, in order 
 to be valid, must be in writing, signed by 
 the party, or by some other person for 
 him, and attested and subscribed in the 
 presence of the said testator by two or 
 more credible witnesses. The second sec- 
 tion declared " that this act shall not affect 
 or be applicable in any wise to any will 
 or bequest executed prior to the first day 
 of August. 1884. " Without pausing to ad- 
 vert to the many adjudged cases decided 
 by this court, it is sufficient to say that, 
 if" the statute law of Maryland had stood 
 at the date of the death of Miss McKin- 
 stry as it did stand before and for more 
 than five years after the execution of her 
 will, that'paper wouldhave been admitted 
 to probate as a valid will of personal 
 property. We are fully satisfied she in- 
 tended it to be operative. We are equally 
 certain its rejection will flatly and delib- 
 erately frustrate her benevolent designs. 
 But in the recent coditica'^ion of the laws 
 the second section of the act of 1884, c. 293, 
 which carefully and liberally protected 
 j from the operation of that act all wills re- 
 I lating to personal property made prior to 
 ■ August 1, 1884, was omitted, and is conse- 
 ' quently no longer the law of the land. .4s 
 Miss McKinstry died after the Code went 
 into effect, and as the savingclause or sec- 
 ! ond section is no longer in force, the pro- 
 ' visions of the statute, as now incorpo- 
 rated in sections 310 and 311 of article 93 
 j of the Co(le,i iini)fratively cotnpt'l uw. "•< 
 much as we resret it. to attirm the order 
 I appealed from, and thus defeat the plain 
 , and perfectly manifest intention of Miss 
 McKinstry. By this omission from the 
 (■ode a result has been brought about the 
 very r3verse of that contemplated by the 
 legislature which passed the act of 1884, 
 but the courts are utterly powerless to af- 
 ford relief. Order affirmed, the costs to 
 be paid out of the estate of Mary M. Mc- 
 Kinstry. 
 
 ^ Requiring all bequests of personal property 
 to be in writing, signed by the testator, or some 
 person for him, and attested and subscribed in 
 the presence of the testator by two or more cred- 
 ible witnesses. 
 
§ 57) 
 
 APPEAL OF LAXE. 
 
 Case No. 67 
 
 Appeal of LAXE. 
 
 (17 AU. 926, 57 Conn. 182.) 
 
 Supreme Court of Errors of Counecticut. Jan. 
 4, 1889. 
 
 Appeal from superior court, Windham 
 county; Sandfoed, Judge. 
 
 J. Halsey and M. A. Shumway, for appel- 
 lant. J. H. Potter, for appellee. 
 
 LooMis, J. In January, 1879, Mrs. Han- 
 nah P. Dimick made and executed what pur- 
 ported to be her last will and testament. It 
 was first signed by her in the presence of 
 only one witness, and subsequently taken to 
 ihe second witness, and after tliat to the 
 third, each of whom signed as a witness in 
 the absence of the other two. Tliis paper 
 remained witliout cliange until the death of 
 the testatrix, on the 6th day of February, 
 1888, and afterwards, on tlie 3d day of 
 March, 1888, tlie same was presented to the 
 probate court, and there approved as her 
 last will and testament. Upon appeal to the 
 superior court the decree of the probate court 
 was reversed, and the appellee now brings 
 the case to tliis court for the revision of al- 
 leged errors in the superior court. Tlie sole 
 question is whetlier the instrument was in- 
 valid as a will for want of proper attestation. 
 The answer depends upon the construction 
 and effect of our statutes relating to the ex- 
 ecution and attestation of wills. The diffi- 
 culty, however, is not so much in determin- 
 ing the meaning of our statutes as in ascer- 
 taining which of two different statutes ap- 
 plies. If we take the statute in force when 
 the instrument was executed, which posi- 
 tively required the witnesses to sign in the 
 presence of each other and of the testator, 
 the attestation was clearly contrary to law, 
 and the will was void. If, on the other 
 hiind, we take and apply the statute as it 
 stood at the decease of the testatrix, which 
 was first passed in 1885, the attestation was 
 legal, and the instrument valid as a will. 
 The statute in force when the will was at-, 
 tested provided that "no will or codicil shall 
 be valid to pass any estate, unless it be in 
 writing, subscribed by the testator, and at- 
 tested by three witnesses, all of them sub- 
 scribing in his presence, and in the presence 
 of each other; but no will of personal estate, 
 made before the 27th day of June, 1848, 
 shall be invalid if not so attested; and all 
 wills executed according to th(! laws of the 
 state or country where they were executed 
 may be jidmitted to probate in this state." 
 Gen. St. 1875, p. 369, § 2. The statute in 
 force at the death of the testatrix provided 
 that "no will or codicil shall be valid to pass 
 any estate, unless it be in writing, subscribed 
 by the testator, and attested by three wit- 
 nesses, each of them subscribing in his pres- 
 ence; and all wills executed according to the 
 laws of the state or country where tliey are 
 executed may be admitted to probate in this 
 state, and shall be effectual to pass any es- 
 
 tate of the testator situated in this state. " 
 Gen. St. 1888, § 538. 
 
 As a will is ambulatory during the life- 
 time of the om; executing it, and no rights 
 can vest under it till the death of the testa- 
 tor, it must be conceded to be within the 
 rightful authority of the legislature, until the 
 death of such testator, by retroactive legisla- 
 tion to change the formalities previously pre- 
 scribed for the due execution of wills, and to 
 affect every instrument previously executed, 
 making it valid or invalid, as the case may 
 be. Hut it is one of the fundamental canons 
 of construction, accepted everywhere, and 
 most firmly held by this court, that a statute 
 shall always be interpreted so as to operate 
 prospectively, and not retrospectively, unless 
 the language is so clear as to preclude all 
 question as to the intention of the legisla- 
 ture. Brewster v. McGall's Devisees, 15 
 Conn. 274; Goodsell's Appeal. 55 Conn. 171, 
 10 Atl. Rep. 557. In the light of this well- 
 settled rule, it would seem impossible to give 
 the last-mentioned statute a retroactive op- 
 eration, for not only is such intent not made 
 clear, but the contrary more clearly appears. 
 All the provisions look forward, rather than 
 backward. But, suppose the act is not clear 
 either way, are there any other principles 
 which may control, and enable us to deter- 
 mine whether the validity of the execution 
 of a will should be determined by the law 
 existing at the execution, or as it was at the 
 death of the testator? Upon this qupstion 
 there is a disagreement among the authori- 
 ties, to which we may hereafter refer, but at 
 present we will look only at the reasonj for 
 the differing opinions. The reasons for ap- 
 plying the later statute, stating them as 
 strongly as possible, are as follows: "As un- 
 til the death of the testator the paper execut- 
 ed by him, expressing his wishes, is not a 
 will, but a mere inchoate act which may or 
 may not be a will, the law in force at the 
 testator's death applies, and controls the 
 proof of the will." Sutton v. Chenault, 18 
 Ga. 1. This, in substance, is the reasoning 
 of all the courts that have accepted the doc- 
 trine that the validity of a will must be 
 determined by the law existing at the death 
 of the testator. 
 
 But, as plausible as the reasoning may 
 seem, we think it is fallacious, at least as ap- 
 plicable to our laws. The act of bequeathing 
 or devisinsf is something more than inchoate 
 or ambulatory. On the other hand, it be- 
 comes a completed act when the will is exe- 
 cuted and attested according to law, although 
 it does not take effect on the property till 
 a future time. A power of revocation is re- 
 tained for life, but even that, to be effectual, 
 must be exercised in the way and manner 
 prescribed. What need could there be of any 
 revocation, with prescribed formalities, if 
 the executed paper is to be considered only 
 as an expression of the signer's wish, and is 
 in no sense a will ? The latest wish, however 
 expressed, ought to overcome the former. 
 The theory of our statutes seems to us di- 
 
 2G7 
 
Case Xo. 67 
 
 APPEAL or LANE. 
 
 (§57 
 
 rectly opposed to the reasoning referri'd to, 
 however it may be with the statutes of other 
 iurisdictions. Certain formalities of execu- 
 tion and attestation are prescribed as pre- 
 requisites to the validity of a will, and with- 
 out compliance with which it is no will at 
 all, although it is clearly a wish. In terms 
 it is declared to be incompetent to pass the 
 title to property at the death of the testator. 
 The precise language is: "Xo will or codicil 
 shall be valid to pass any estate unless, " etc. 
 So that our statute amounts to a positive 
 rule for the transmission of property, which 
 must be complied with, as a complete act at 
 the time of execution, or never, so far as the 
 act of the testator is concerned. And what 
 the statute makes positively bad can only be 
 made good by positive legislation, manifest- 
 ly retrospective. Our law, in effect, says to 
 every person who would make a valid dispo- 
 sition of his property by will that he must^ 
 observe the specified formalities, and, if he' 
 complies, it contains an implied assurance 
 that he shall not be disappoi nted and defeated 
 in his purposes by any subsequent change, 
 unless the new law clearly affects wills pre- 
 viously made. 
 
 That such is the true theory of our stat- 
 utes is rendered still more manifest, we think, 
 by reference to the provision, which has for 
 more than a century existed, that at the time 
 of executing a will, or at any time during 
 his life, the testator may obtain the affidavit 
 of the witnesses of the facts required to prove 
 it in court, which, having been written upon 
 or attached to the will, "shall be accepted by 
 the court of probate, as if it had been taken 
 before said court." Gen. St. 1784, p. 264, 
 and of 1888, § 545. It has thus been the set-; 
 tied policy of our law in effect to assure the. 
 person who executes a will, not only that; 
 the prescribed formalities shall be sufficient 
 and controlling, but that even the evidence' 
 of the proper execution shall be sutHcient,' 
 finally to establish it, though many years 
 shall have intervened. Under such a system, ' 
 surely, it cannot be said that what the testa- 
 tor has thus prepared tor his will is only a 
 mere paper, upon which he has indicated; 
 simply his wishes at the time as to the flnall 
 disposition of his property. If we have right-' 
 ly apprehended the true theory of our stat-i 
 ute laws, no further vindication of the rul-i 
 ing of the superior court is necessary. If,' 
 however, our views find confirmation in the 
 decisions of the courts of other jurisdictions,' 
 we may well feel greater assurance that we are 
 right. This subject has not been much dis- 
 cussed in the courts of the United States, 
 and the few decisions that may be found 
 on the subject are not harmonious, as we 
 have before stated. The text-writers make 
 only a brief reference to the question. Of, 
 these, Jarman and Redfleld favor the doctrine 
 that the law existing at the death of the tes- 
 tator controls, rather than that at the date of 
 execution. 1 Jarm. Wills, 337; 1 Eedf. Wills, 
 r4th Ed.) side p. 408. In 1 Williams, Ex'rs,; 
 (4th Ed.) top p. 94j note, the question is left; 
 268 
 
 as doubtful. In Schouler, Wilis, § 2, and in, 
 1 Revision, Swift, Dig. 140, the contrary, 
 view is held. The courts of New York,j 
 South Carolina, and Georgia adopt substan-, 
 tially the proposition as laid down by the 
 text- writers first mentioned. Lawrence v.- 
 Hebbard, 1 Bradf. Sur. 252; Houston v. 
 Houston, 3 McCord, 491; Elcock's Will, 4 
 McCord, 39; Sutton v. Clienault, 18 Ga. 1; 
 Hargroves v. Redd, 43 Ga. 142. But the 
 courts of England and of Vermont and Penn- 
 sylvania have adopted substantially the prin- 
 ciples for which we contend. Downing v. 
 Townsend, 1 Amb. 280; Gillmore v. Shooter's 
 Ex'r, 2 Mod. 310; Giddings v. Turgeon, 58 
 Vt. 106, 4 Atl. Rep. 711 ; Mullen v. McKelvy, 
 5 Watts, 399; Taylor v. Mitchell, 57 Pa. St. 
 209. 
 
 The difference of opinion referred to may 
 perhaps be attributed in some measure to a 
 difference in the language and theory of the 
 local statutes. For instance, in Lawrence 
 V. Hebbard, supra, the surrogate, while he 
 adopts the line of reasoning referred to as 
 contained in Sutton v. Clienault, supra, yet 
 he emphasizes the fact that the statute of 
 New York in terms refers to wills previous- 
 ly executed, and says they shall not be made 
 void, and thereby contains an implication 
 that they may be made good by the latest 
 statute, and so the court holds. The courts 
 of South Carolina confine their decisions to 
 wills of personal property. Referring to the 
 distinction between w^ills as to personal and 
 real estate, they intimate that as to the latter 
 the law existing at the date of execution may 
 possibly control, upon the ground that to 
 transfer the title to real estate the existing 
 statutory regulations may possibly control. 
 But our statute practically abolishes any such 
 distinction, by putting wills of personal es- 
 tate upon the same ground as those affecting 
 realty, so far as the formalities of the execu- 
 tion of the will are concerned; the language 
 being, "no will shall be valid to pass any es- 
 tate, unless," etc. The counsel for the ap- 
 pellee contended that the case of Giddings v. 
 Turgeon, supra, had no application, because 
 the question there was so different from the 
 one in the case at bar. While conceding the 
 difference between the two cases, we still 
 think the principle adopted by the court is 
 applicable. The validity of the entire will 
 was there under consideration, in which one 
 of the legatees was a married woman, whose 
 husband was one of the witnesses to the exe- 
 cution of the will. As the law of Vermont 
 then stood, he was incompetent as a witness, 
 and it was improperly attested. By a sub- 
 sequent act, however, a husband was made 
 a competent witness, where a legacy had 
 been given to his wife, to prove and estab- 
 lish the will, although the legacy to the wife 
 would not be good. It was contended that 
 the subsequent law would apply, but the 
 court held that the will was not good, because 
 it must be proved as the law required at the 
 time of its execution, which is the principle 
 contended for here. In Taylor v. Mitchell, 
 
§ 57) 
 
 APPEAL OF LANE. 
 
 Case No. 67 
 
 supra, the point made was that the will there 
 in question was void under the statute in 
 force when the testator died. The case was 
 very well considered, and in tlie opinion of 
 the court by Shakswood, J., it is said: 
 *' Retrospective laws generally, if not univers- 
 ally, work injustice, and ought to be so con- 
 strued only when the mandate of tlie legis- 
 lature is imperative. When a testator makes 
 & will, formally executed according to the 
 requirements of the law existing at the time 
 of its execution, it would unjustly disappoint 
 his lawful right of disposition to apply to it 
 A rule subsequently euacteil, though before 
 his death. While it is true that every one is 
 presumed to know the law, the maxim in fact 
 13 inapplicable to such a case; for he would 
 have an e'^ual right to presume that no new 
 law would affect his past act, and rest satis- 
 lied in security on that presumption. * * * 
 It is true that every will is ambulatory until 
 the death of the testator, and the disposition 
 made by it does not actually take effect until 
 then. General words apply to the property 
 of which tlie testator dies possessed, and he 
 retains the power of revocation as long as he 
 lives. The act of bequeathing or devising, 
 however, takes place when the will is exe- 
 cuted, though to go into effect at a future 
 time." 
 
 No ease hitherto has been before this court 
 involving the precise question now under 
 consideration, but analogous questions have 
 heen discussed in several cases, and principles 
 applied to them whicli naturally frd logic- 
 ally lead to the result we have reached in 
 this case. In Brewster v. McCall's Devisees, 
 15 Conn. 274, one question was whether the 
 will, executed in 1826, by a person who died 
 in 1838, could convey real estate purchased 
 after the will was executed, and before the 
 act of 1831, which provided for the devising 
 of real estate not owned by a testator at the 
 time of executing his will, but acquired after- 
 wards. The court, in refusing to apply the 
 act existing at the death of the testator, said: 
 "The general rule is that statutes shall not 
 be construed retrospectively, unless by their 
 
 express terms or otherwise such appears to 
 be the manifest intent of the legislature. 
 * * * Here there is nothing from which 
 we have a right to infer that it was intended 
 to affect any wills which had been executed 
 prior to the passing of the act. " In Gay lor' s 
 Appeal, 43 Conn. 82, the question was 
 whether, under the statute existing when the 
 will was made, (Gen. St. 1866. p. 402.) wit- 
 nesses must subscribe in the presence of each 
 other. Cakpentee, J., in giving the opin- 
 ion of the couit, savs, on paere 85: "The 
 langiage of our statute existing when the 
 will was made is explicit and entirely free 
 from ambiguity. It only requires that all 
 tl)e witnesses shall subscribe their names in 
 the presence of the testator. * * * In 
 the Revision of 1875 we find, in addition to 
 the statute as it previously existed, the clause 
 inserted, 'and in the presence of each other.' 
 But that cannot affect the validity of any 
 will previously executed." In Goodsell's 
 Appeal, 55 Conn. 171, 10 Atl. Rep. 557, the 
 will was made in January, 1871, and the tes- 
 tator married in May following, and died in 
 1886, leaving a widow, but no child had been 
 born to him. When the will was executed 
 and when the marriage took place the com- 
 mon law was in force, which required both 
 a subsequent marriage and the birth of a 
 child to revoke a will. In 1885 an act was 
 passed providing that "if, after the making 
 of a will, the testator shall marry, or if a 
 child is born to the testator, and no provision 
 is made in the will for such contingency, 
 such marriage or birth shall operate as a rev- 
 ocation of such will." Laws 1885, c. 110, 
 § 135. It was held that the later statute 
 did not apply, and that "as a rule of inter- 
 pretation all statutes are to operate prospect- 
 ively, unless they contain language unequiv- 
 ocally and certainly retrospective. " For the 
 foregoing reasons we conclude there was no 
 error in the judgment of the superior court. 
 
 In this opinion Park, C. J., and Pardee 
 and Beardsley, JJ., concurred. Carpen- 
 ter, J., Uisstfnted. 
 
 269 
 
Case No. 68 
 
 KICIIOLS V. NICHOLS. 
 
 (§58 
 
 NICHOLS V. NICHOLS. 
 
 (2 Phillim. Ecc. ISO.) 
 
 Prerogative Court of Canterbury. 1814. 
 
 Thomas . Nichols of Soiithaiupton died on 
 the 23(1 of January, 1813— his wife survived 
 him: and he left a son and a daughter, by 
 a former vt'ife, who were minors. The chil- 
 dren appeared by their guardians; and pro- 
 pounded the following paper as the last will 
 of the deceased. 
 
 "I leave my property between my chil- 
 dren; I hope they will be virtuous, and in- 
 dependent; that they will worship God, and 
 not black coats. July 30, 1803. Thomas 
 Nichols. Witness Thomas King." 
 
 The widow opjjosed the validity of this 
 testamentary paper, and prayed the com-t to 
 pronounce for an intestacy. 
 
 Barnaby and Herbert, in sui)port of the 
 will. 
 
 Adams and Lushington, contra. 
 
 Judgment. 
 
 SIR JOHN NICHOLL. This is a case un- 
 der singular circumstances — the deceased 
 died in January, 1813, leaving a widow, and 
 two children by a former wife — the will is 
 in these terms: 
 
 "I leave my property between my children; 
 I hope they will be virtuous and independ- 
 ent; that they will worship God, and not 
 black coats. .luly 30, 1803. Thomas Nich- 
 ols. Witness Thomas King" 
 
 It is proved and admitted tliat this paper 
 was written and signed by the deceased, 
 and that he was of sound mind at the time; 
 but Thomas King, a subscribed witness, 
 gives the following account of the transac- 
 tion: — 
 
 "The deponent is steward to Sir Charles 
 Mill, whose solicitor the deceased was — he 
 knew him intimately for twenty years— 
 when they had any business to ti'ansact to- 
 gether, it was their custom to dine together 
 at the house of each other. On the 30th of 
 July, 1803, the deceased dined with the de- 
 ponent—after dinner they adjourned, as 
 .usual, to the deponent's book-room, where 
 they drank their wine, which never exceed- 
 ed a pint each, with, perhaps, a glass or two 
 of white wine. The deponent and the de- 
 ceased used to talk familiarly with him on 
 many subjects— he was in the habit of ridi- 
 culing the tautology of lawyers, who, he said, 
 employed a vast number of unnecessary 
 words— that having finished their wine, the 
 deponent took from a drawer a paper which 
 he had drawn up as his will; and, showing 
 it to the deceased, said something ridiculing 
 lawyers spinning out papers, and asked him 
 if it was not as good a will as if it had been 
 spun out to a great length by a lawyer— 
 the deceased replied, not only a valid will, 
 but a devilish good one: and, asking for 
 pen and ink, took a sheet of paper, and 
 writing the paper propounded, threw It to- 
 wards the deponent, saying, very carelessly. 
 There, that is as good a will as I shall prob- 
 ably ever make. These he recollects to have 
 270 
 
 been the very words spoken— he did not re- 
 quest the deponent to take care of the pa- 
 per, or say another word about it— or, from 
 that time to his death, ever allude to it— 
 and the deponent verily believed that he 
 never recollected such a paper was in exist- 
 ence — a very short time afterwards the de- 
 ceased shook hands with the deponent, and 
 went away, leaving the paper on the table. 
 AVhen the deceased was gone, the deponent 
 wrote his name as witness to the signature; 
 (lie was not requested by the deceased so to 
 do) he then folded up the paper, wrote on 
 the back 'the wiU of Thomas Nichols, Esq. 
 of Southampton, July 30, 1803;' and put it 
 into his iron safe, where it remained, with 
 many other loose papers, till after the de- 
 ceased's death. The deponent does not be- 
 lieve that the deceased, when he wrote the 
 paper, intended to make his will, or that such 
 paper should ever operate as such; but he 
 always considered, and does still think, that 
 It was written without any other view than 
 in imitation of the paper the deponent had 
 so shown him— a copy of which he annexed 
 to his deposition, and to show the deponent 
 he could exceed him in brevity— and the de- 
 ponent is confirmed in this opinion by the 
 practice of the deceased on other occasions; 
 the deponent being in the habit of drawing 
 specimens of leases, and other instruments, 
 wherein very few words were used, which 
 he showed to the deceased; and he, upon 
 such occ^ions, uniformly wrote others still 
 shorter, "y way of showing that he could 
 exceed him in brevity. The deponent never 
 considered the paper as the deceased's will, 
 but as the deceased's specimen of a short 
 will; and as such he signed his name as a 
 witness to it, and endorsed it, and put it in 
 his iron safe. He fm-ther saith, that his in- 
 timacy with the deceased continued till his 
 death in January last— that, during his ill- 
 ness, he visited him about once a week for 
 five weeks together — upon those occasions, 
 not considering the aforesaid paper as in- 
 tended as a will, and understanding from 
 the deceased that he had made no will, he 
 was vei-y tu-gent with him to make a will— 
 the deceased's answer to such applications 
 being, that he did not know but that the 
 law would make a better will, or as good a 
 will, for him as he could make— but the de- 
 ponent and others having pressed him to 
 make a will, the deceased did at length, 
 shortly before his death, say, that when he 
 got a little better he would, to satisfy his 
 friends, make a will; but this he did not 
 live to do— he grew worse daily— that the 
 deponent never alluded to the paper writing, 
 for he had himself forgotten that such a pa- 
 per was in existence." 
 
 The same witness, in answer to an inter- 
 rogatory, says, "that a few days after the 
 death of the deceased, Sarah Nichols, his 
 widow, told the respondent she could find no 
 will; and asked him, as he was the con- 
 fidential friend of her husband, if he had left 
 a will in his hands. He replied, No, he 
 
§ 58) 
 
 NICHOLS V. NICHOLS. 
 
 Case No. 68 
 
 never left any will with mo; but added tliat, 
 if it would give her any satisfaction, he 
 would search his papers, which she request- 
 ed he would do, saying, that she concluded 
 from the intimacy that subsisted between 
 tliem, if her husband had left any will, with 
 any one, it would be with the respondent 
 The respondent had then no thoughts of the 
 paper in question; nor did the circumstances 
 of the same having been written occm* to 
 him, till, on turning out the various papers 
 that were in the safe, he found it there — 
 that the respondent thought so lightly of it 
 when he went to Sarah Nichols, and showed 
 it her, that he said, This is all I have got, 
 and you may put it into the Are. The re- 
 spondent does verily believe that the de- 
 ceased departed this life without the least 
 recollection of the paper being in existence — 
 that the deceased and his wife lived on the 
 best terms together, and the greatest love 
 and affection subsisted between them." 
 
 This is the account given by the only wit- 
 ness, whose name is subscribed to the pa- 
 per; and if this evidence can be received, 
 and is to be credited, this is not the will of 
 the deceased, for it wants the gi'eat requisite, 
 the animus testandi; it was not written 
 with the mind and intention to make a will. 
 A question has been made whether this ev- 
 idence can be received. I am of opinion 
 that it can and must be received; — it is the 
 evidence of the attesting witness, who must 
 be produced, and whose testimony is com- 
 mon to both parties. What credit may be 
 due to it is another question. A witness at- 
 tests a will for the piu-pose of giving authen- 
 ticity to the factum of the insti-ument: the 
 animus testandi is the very point into which 
 Ihe court of probate is to enquire— the mere 
 act of witnessing or signing does not exclude, 
 of necessity, the absence of the animus tes- 
 tandi any more than the mere act of can- 
 cellation excludes of necessity the absence 
 of the animus revocandi. It may have 
 been signed under duress, or under other cir- 
 cumstances when there was no intention to 
 make a testamentary disposition. 
 
 The evidence is admissible, but is certain- 
 ly to be received with great caution, the pa- 
 per being dispositive; and the witness hav- 
 ing signed it must be heard with jealousy to 
 depose against the effect of his own act— it 
 is trae the attestation clause is not in the 
 usual form; it is merely the word "witness:" 
 but still that infers an attestation of the act 
 of the deceased; and the witness must be 
 carefully heard by the com-t. 
 
 The evidence then being admissible, the 
 next question is, does the court believe this 
 account? The witness is in a respectable 
 situation in life; wholly unimpeached in 
 credit and character; the confidential friend 
 of the deceased; and no possible inducement 
 is suggested why he should declare upon 
 oath a false account of the transaction— the 
 account he gives, though whimsical, is nei- 
 ther unnatural, nor improbable; the internal 
 evidence of the paper strongly corroborates 
 
 it, as do also the extrinsic circumstances— he 
 says the deceased wrote it in order to show 
 in how few words a will might be written— 
 there is something of levity in the expres- 
 sion "Worship God, and not black coats:" it 
 is in imitation of one written by the witness; 
 his is in these words: 
 
 "I give and devise aU my property, real 
 and personal, to Mary my wife to be di- 
 vided by her, as she shall think proper, be- 
 tween all my children, either in her life-time 
 or by will (reserving enough for her own 
 comforts.) I hope my children will obey 
 their mother, love each other, and be pious 
 and virtuous; that they worship God and 
 not man, nor ever practice the trade of a 
 butcher, nor ever accept of any place in the 
 navy or army. But they will endeavor to 
 plant and extend happiness, to raise cot- 
 tages for industi'y and honesty, and make 
 the desert smile with plenty and innocence; 
 that they will despise only those who mo- 
 nopolize the earth for the gratification of 
 their own luxury and pride; and that they 
 will looli up to none as their superior but 
 those only who exceed them in good works: 
 and never treat any of God's creatures with 
 contempt but the proud and profligate; and 
 never bend their knee but to their God. 
 This is my will; and I do hereby appoint my 
 wife sole executi-ix thereof. In witness, &c. 
 &c. Signed, Thomas King." 
 
 Upon comparing the two instruments, I 
 tliink the one a compressed imitation of the 
 other— the admonitory part in the one occu- 
 pies twenty lines; in the other the same idea 
 is given in more concise words. It is an ex- 
 tremely sti'ong circumstance that it makes no 
 alteration in the disposition the law would 
 have made of his property. For what purpose 
 could be have intended this paper? In it 
 there is no legacy, no executor, no guardian 
 to his children— this is a strong confirmation 
 that it was not written animo testandi, but 
 for the pm'pose mentioned by Mr. King- 
 subsequent circumstances still more confirm 
 this; the deceased afterwards married— he 
 lived on terms of affection with his wife, 
 and he said he had no will, that the law 
 would make a good will for him— so that it 
 was his intention that his widow should pos- 
 sess, after his death, the provision which 
 the law would give her — dm'ing none of these 
 conversations does he make any allusion to 
 the existence of this paper— his forgetting it, 
 would not operate as a revocation; but it 
 is a circumstance to show that he originally 
 never intended it as a testamentary paper. 
 There is little doubt that when he threw it 
 across the table, he meant it should be put 
 into the fire. 
 
 With all the possible caution that the court 
 can exercise where a witness is deposing 
 against his own act, I am yet fully satisfied 
 in my mind and conscience that the de- 
 ceased never intended this as his wiU: I 
 therefore pronoimce against it; and decree 
 administration to the widow, her husband 
 having died intestate. 
 
 271 
 
Case No. 69 
 
 IN KE GOOBS OF DONALDSON. 
 
 (§ 60 
 
 In re GOODS OP DONALDSON. 
 
 (2 Curt. Ecc. 386.) 
 
 Prerogative Court of Canterbury. 1840. 
 
 The deceased, a surgeon In the East India 
 Company's service, died at Calcutta in April, 
 1839, a bachelor, without a father, leaving 
 his mother, and brothers and sisters. In Ju- 
 ly, 1838, he embarked from England (vs'here 
 he had been on leave since 1834), to join his 
 regiment In India, and was placed In medical 
 charge of recruits for queen's regiments in 
 that country, though he had no commission 
 in her majesty's service. Whilst on board 
 ship, at Portsmouth, he wrote the paper in 
 •question, which he forwarded to his mother 
 Tjy post, and it remained in her custody till 
 she heard of her son's death, which tool; 
 place soon after he joined his regiment. The 
 paper, which named no executor or residu- 
 ary legatee, was not attested. 
 
 Haggard moved for administration, with 
 the paper annexed, to the mother, on the 
 272 
 
 ground that the deceased was a "soldier in 
 actual military service," which brought him 
 within the exception of the 11th section of 
 the statute 7 Wm. IV. & 1 Vict. c. 26. 
 
 SIR HERBERT JENNER. The deceased 
 must be considered to have been a surgeon 
 in the East India Company's service; his be- 
 ing in charge of recruits for royal regiments, 
 which was no part of his regimental duty, 
 would not constitute him a queen's officer. 
 But with respect to mariners, the exemption 
 is extended to merchant seamen, and by par- 
 ity of reasoning, persons in the military serv- 
 ice of the East India Company would seem 
 to be included in the term "soldiers;" there 
 is nothing in the section of the act which re- 
 stricts the exemption to the queen's service. 
 I am of opinion that a soldier in the East In- 
 dia Company's service comes within the ex- 
 ception; and I am inclined to hold that, un- 
 der the circumstances, the deceased in this 
 case was in actual military service at the 
 time the will was written. 
 
§60) 
 
 HUBBARD «. HUBBARD. 
 
 Case No. 70 
 
 HUBBARD T. HUBBARD. 
 
 (8 N. Y. 196.) 
 
 Court of Appeals of New York. March, 1853. 
 
 Appeal troin siiprotne court, second judi- 
 cial (Jistrict. ■ 
 
 Proceedings before the surroKate of Suf- 
 lolk county by Maria .1. Hubbard to 
 establish an alleged nnncuuative will of 
 her deceased husband, William L. Hub- 
 bard. William L. Hubbard was master 
 and owner of a coasting schooner of 
 Greenport, Long Island. While on u re- 
 turn trip from Philadelphia with a load of 
 coal, and lying at anchor inside the Dela- 
 ware breakwater on account of head- 
 winds, he was taken sick with Asiatic 
 cholera, and died the same day. The ves- 
 sel was anchored in tide-water about a 
 mile from the main-land, the same dis- 
 tance from the open sea, and three miles 
 from the nearest place of settlement on 
 shore. While deceased was suffering from 
 his disease, and about an hour before he 
 died, being of souud mind and memory, 
 he was asked if he had a will, and replied 
 that he had not. He was then asked as 
 to the disposition of his property, and in 
 reply stated, in the presence of the sur- 
 rounding seamen, that he wished his 
 wife to have all his personal property. 
 Beck with, his mate, asked liimif he wished 
 her to have his real property too, and he 
 replied, "Yes, all." Beckwith then asked 
 him what he should tell his wife, and he 
 replied, "Tell her I loved her to the end." 
 Beck with again asked him whom he 
 wanted to settle his affairs, and he replied, 
 "I want you to doit. " He did not ask any 
 one to bear witness that what he stated 
 was his will. These conversations being 
 proved by four witnesses, the surrogate 
 adjudged them a good nuncupative will. 
 Ellas Hubbard, father of the deceased and 
 his heir at law, appealed to the special 
 term, where the decree of the surrogate 
 admitting the will to probate was re- 
 versed. On a further appeal the judgment 
 of the special term was reversed, and Ellas 
 Hubbard appealed to this court. 
 
 S. 1). Craig, for appellant. G. Miller, for 
 respondent. 
 
 Mason, J. It is provided in this state 
 by statute that no nuncupative or un- 
 written will, bequeathing personal estate, 
 shall be valid, unless made by a soldier 
 while in actual service, or by a mariner 
 while at sea. 2 Rev. St. p. 60, § 22. As to 
 the wills of soldiers in actual service and 
 mariners at sea, they are left entirely un- 
 trauuneled by our statutes, and are gov- 
 erned by the principles of the common 
 law. The excepticjn in our statute of 
 willsin favor of soldiers and mariners was 
 taken from the 29 Car. II. e. 3, and is pre- 
 cisely the same and the same exception is 
 retained in England by their new statute 
 of wills. 1 Vict. c. 26, § 11. The testator 
 was a mariner, within the meaning of the 
 statute. The courts have given a very 
 liberal construction to this exception in 
 behalf of mariners, and have held it to in- 
 clude the whole service, applying equally to 
 superior officers, up to the commander in 
 cliief, as to common seamen. In re Goods 
 of Hayes, 2 Curt. Ecc. 33H; 1 Williams, 
 
 Ex'rs, 97. It has been held to apply to 
 the purser of a man of war, and embraces 
 all seamen in the merchant service. Mor- 
 rell V. Morrell, 1 Hagg, Ecc. ."il ; In re 
 Goods of Hayes, 2 Curt. Ecc. 338; 1 Will- 
 iams, Ex'rs, 97. This will was made at 
 sea. In legal parlance, waters within the 
 ebb and flow of the tide are considered the 
 sea. Bouv. Law Diet. tit. "Sea;" Ang. 
 Tide-Waters, 44-49; Thackarey v. The 
 Farmer, Gilp. .528; The Thomas Jefferson, 
 10 Wheat. 428; Baker v. Hoag, 7 N. Y. 561. 
 Lord Hale says the sea is either that 
 which lies within the body of the county 
 or without it; that an arm or branch of the 
 sea within the"/a(7ces te;T«, " wherearaan 
 may reasonably discern bet ween shore and 
 shore, is, c)r at least may be, within the 
 body of a county, but that part of the sea 
 which lies not within the body of a coun- 
 ty is called the main sea, or ocean. Harg. 
 Law Tracts, c. 4, p. lo; Smith, Const. § 
 .588. He adds,"Thatiscalledanarm of the 
 sea where the sea flows and retiows, and 
 so far only as the sea flows and reflows;" 
 and in this he follows the exact definition 
 given by the Book of Assizes, 22 Id. 93; 
 and this is the doctrine recognized by the 
 courts of this country. Thackarey v. The 
 Farmer, Gilp. 524; U. S. v. Grnsh, 5 Ma- 
 son, 290; U. S. V. Wiltberger, 5 Wheat. 
 76-94; U. S. v. Robinson, 4 Mason, 307; D. 
 S. V. Robs, 1 Gall. 620. 
 
 The courts in England have gone to the 
 utmost verge of constructicm in extending 
 this exception in behalf of seamen. In a 
 case which came before the prerogative 
 court of Canterbury in 1840, when the de- 
 ceased was mate of her majesty's ship 
 Calliope, and while the vessel was in the 
 harbor of Buenos Ayres, he obtained leave 
 to go on shore, when he met with a seri- 
 ous fall, and was so severel,y injured that 
 he died on shore a few days after. Imme- 
 diately after the accident he wrote on a 
 watch bill with a pencil his will, and 
 which was unattested, but which was cut 
 out and certified to by the officers on 
 board the ship, and the court held it a 
 good will of a seaman at sea, and ordered 
 it to probate. In re Goods of Lay, 2 Curt. 
 Ecc. 375. The common-law doctrine in 
 regard to nuncupative wills was borrowed 
 from the civil law. Drummond v. Parish, 
 3 Curt. Ecc. 522, 531, et seq. By the civil 
 law, the strict formalities, both in the exe- 
 cution and construction of nuncupative 
 wills of soldiers, were dispensed with; and 
 although they should neither call thelegal 
 number of witnesses, nor ob.serve any 
 other solemnity, yet their testament was 
 held good if they were in actual service. 
 Just. Inst. lib. 2, tit. 11; 1 Lomax, Ex'rs, 40. 
 The civil law was extremely indulgent in 
 regard to the wills of soldiers. If a soldier 
 wrote anything in bloody letters upon 
 his shield, or in the dust of the held with 
 his sword, it was held a good military 
 testament. 1 Bl. Comra. 417; 1 Lomax, 
 Ex'rs, 40, 41. The common la w, however, 
 has not extended this privilege so far as 
 the civil. 1 Bl.Comm. supra. Blackstone 
 says that soldiers in actual military serv- 
 ice may make nuncupative wills, and dis- 
 pose of their goods, wages, and other per- 
 sonal chattels without those foruiH, so- 
 lemnities, and expenses which the law le- 
 quires in other cases. 
 
 273 
 
Case No. 70 
 
 HUBBARD V. HUBBARD. 
 
 {§6(F 
 
 The rules, however, which are to be ob- 
 served in making wills by soldiers and 
 mariners, are the same by the common 
 law; and yet it must be confessed that 
 the formalities vchich are necessary to be 
 observed in the making of wills by soldiers 
 and seamen are not defined with any very 
 satisfactory precision in any of theKnglish 
 elementary treatises upon the subject of 
 wills. Swinborne says that those solem- 
 nities only are necessary which are Juris 
 gentittin. Swinb. Wills, pt. 1, § 14. Before 
 the statute the ecclesiastical courts to 
 whose jurisdiction the establishment of 
 personal testaments belonged required no 
 ceremonies in the publication thereof, or 
 the subscription of any witnesses to at- 
 test the same. 1 Bob. Wills, 147. A will 
 of personal estate, if written in the testa- 
 tor's own hand, though it hart neither hi< 
 name nor seal to it, nor witnesses present 
 at its publication, was held effectual, pro- 
 vided the handwriting could be proved. 
 ] Rob. Wills, 148. And so if written by an- 
 other person by the testator's directions, 
 and without his signing it, it was held 
 good. Id. 148. It is laid down in books 
 of very high authority that a nuncupative 
 testament may be made, not only by the 
 proper motions of the testator, bnt a'so 
 at the interrogation of another. Swinb. 
 Wills, pt. 1. § 12, p. 6; Lomax, Ex'rs, 38; 1 
 Williams, Ex'rs, 102. And Swinborne says, 
 "As for any precise form of words, none is 
 required, neither is itmaterial whether the 
 testator speak properly or improperly, so 
 that bis meaning appears," (2 Swinb. 
 Wills, pt. 4, § 26, p. t)43;) and he says, con- 
 cerning the solemnities of the civil law 
 to be observed in the making of testa- 
 ments, soldiers are clearly acquitted from 
 the observation thereof, saving that, in 
 the opinion of divers writers, soldiers, 
 when they make their testaments, ought 
 to require the witnesses to be present. 1 
 Swinb. Wills, pt. 1, § 14, p. 94. It is neces- 
 sary, however, that the testamentary ca- 
 pacity of the deceased and the animus 
 testandi at the time of the alleged nuncu- 
 pation should be clearly and satisfactorily 
 pnjved in the case of nuncupative will. 
 1 Williams, Ex'rs, 102; Lemann v. Bonsall, 
 1 Addams, Ecc. 389, 390. 
 
 In the present case the evidence most 
 clearly shows that the deceased was of 
 sound mind and memory, and I think the 
 evidence in the case satisfactorily estab- 
 lishes the animus testendi at the time of 
 the alleged nuncupation. He told his 
 mate, Beckwith, to tell his wife that he 
 loved her till the end. He was extremely 
 sick, and undoubtedly apprehending 
 leath; and, when asked if he had a will, 
 274 
 
 he replied that he had not; and, on be- 
 ing asked what disposition he wished to 
 make of his property, he said he wished 
 his wife to have all of his personal prop- 
 erty, and at the same time requested 
 Beckwith to settle his affairs and see to' 
 his business. It should be 'borne in mind 
 that as well the testator as all of the wit- 
 nesses present were seamen, and were un- 
 doubtedly acquainted with the rights of 
 marinersin regard to making their wills. 
 They evidently understood it to be a will, 
 and spoke of it as such : and I think the 
 animus testandi is satisfactorily estab- 
 lished. The evidence is quite as strong in 
 the case under consideration as it was in 
 the case of Parsons v. Parsons, 2 Greenl. 
 298. 300, where the testator was asked to 
 whom he wished to give his property, and 
 replied, "To my wife; that is agreed 
 upon;" and the supreme court of Maine 
 sustained the will in tha,t case. I am 
 aware that it is said in some of the books 
 that it is essential to a nuncupative will 
 that an executor be named. But this is 
 no more essential than in a written will, 
 Rolle, Abr. 907; How v. Godfrey, Finch, 
 361 ; Prince v. Hazleton, 20 Johns. 522. I 
 am inclined tothink, however, that theevi- 
 dence is sufficient, in the present case, to 
 show that the testator intended to make 
 Beckwith his executor, but it is not nec- 
 essary that he should have named one. 
 It is not necessary to decide whether the 
 mariner must make his will in his last 
 sickness and in extremis, as was held to 
 be the case under our former statute of 
 wills, (Prince v. Hazleton, 20 Johns. 503,) 
 andas is required under the statutes of sev- 
 eral of our sister states. (Boyer v. Frick, 
 4 Watts & S. 3.57; Baker v. Dodson, 4 
 Humph. 342; Offutt v. Offutt, 3 B. Mon. 
 162; In re Will of Yarnall, 4 Rawle, 46; 
 Werkheiser v. Werkheiser, 6 Watts & S. 
 184; Winn v. Bob, 3 Leigli, 140; Mason v, 
 Dunnian, 1 Munf. 456; Portwood v. Hun- 
 ter, fi B. Mon. 538; Tally v. Butterworth, 
 10 Yerg. 501 ; Parsons v. Parsons, 2 Greenl. 
 298;) for there can be no doubt, upon the 
 evidence in this case, but this will was 
 made both in extremis, and in the last 
 sickness, and under circumstances which 
 precluded the making of a written will. I 
 think that the factum of this nuncupative 
 will is clearly established by the evidence 
 j in the case, and also the testamentary ca- 
 pacity of the deceased, and that ilmanimus 
 testandi at the time of the alleged nuncu- 
 pation is sufficiently apparent from the 
 evidence in the case, and that the judg- 
 ment of the supreme court should be af- 
 firmed. 
 Judgment affirmed. 
 
§§ 27. 61) 
 
 rUlNCE 0. IIAZLETOX. 
 
 Case Ko. 71 
 
 PRIXCE V. HAZLETOX et ux. 
 (20 Johus. 502.) 
 New York Court of Errors. Nov., 1822. 
 This cause came before this com-t, on an 
 appeal from a deci-ee of the coui't of pro- 
 bates, in the matter of granting administra- 
 tion on the estate of William Jones, of the 
 city of New-Yorli, deceased. The appellant, 
 who is the public administrator of the city 
 of New-York, appointed pursuant to the stat- 
 ute, (Sess. 38, c. 157,) sued out a citation to 
 the widow and next of kin of William Jones, 
 deceased, to show cause before Syjvanus 
 Miller, Esquu:e, siUTogate of the city of New- 
 York, on the 17th of May, 1820, why admin- 
 isti-ation should not be granted to the appel- 
 lant, according to the statute. Mary Hazle- 
 ton, one of the respondents, appeared before 
 the sm-rogate, aud ofCered for probate a 
 nuncupative will, with the depositions of 
 four witnesses thereto, taken, ex parte, the 
 4th of May, 1820, before a commissioner, in 
 proof of such will, which was as follows: 
 "The last will aud testament of William 
 Jones, late of the city of New-York, gentle- 
 man, by word of mouth, made and declared 
 by him, on or about the eleventh day of 
 April last past, in presence of us, the under- 
 signed, Jacob S. Ai-den, William Lee, George 
 Waters and Ellen Taylor, who have here- 
 unto subscribed oui- names as witnesses to 
 sueh last will and testament: 'I now say, as 
 I have repeatedly said before, that I leave 
 all the property I am possessed of to Mary 
 Hazleton; I do this in consequence of the 
 good treatment and kind attention I have re- 
 ceived from her during my sickness. She is 
 worthy of it. No other person sliall inherit 
 my property. I wish you all in the room 
 to take notice of this.' In witness, whereof, 
 we have hereunto set our hands, this seven- 
 teenth day of May, in the year of our Lord, 
 one thousand eight hundred and twenty." 
 Signed by the four persons above named. 
 It appeared, that the supposed testator died 
 on the 17th of April, 1820. 
 
 The foiu- witnesses above named, and five 
 other witnesses, were examined before the 
 surrogate, in support of the will, and nine 
 witnesses deposed as to the character of 
 William Lee, one of the witnesses to the 
 will. Fifteen witnesses were e.x;amined be- 
 fore the surrogate against the will so offered, 
 and three witnesses deposed against the 
 character of William Lee. The sm-rogate 
 decided, that the will was not sustained; 
 and on the 17th of October, 1820, pronounced 
 the following sentence: "The surrogate of 
 the city and county of New- York, having 
 heard counsel in the above matter, and ma- 
 turely considered the same, and having also 
 examined the evidence adduced in the prem- 
 ises, after due examination of the law, and 
 the testimony applicable and relevant there- 
 to, doth order, sentence, ad.1udge and de- 
 cree, that the nuncupative will of the said 
 deceased cannot be admitted to probate, and 
 
 that the application, therefore, be dismissed; 
 and it is fm-ther ordered, sentenced, adjudged 
 and decreed, that letters of administration of 
 the goods, chattels and credits, which were 
 of the said deceased, be granted and issued, 
 according to law, as in cases of intestates." 
 
 There was an appeal from this sentence 
 to the com-t of probates, at Albany, by the 
 present respondents. The judge of the court 
 of probates, having heard the proceedings 
 and proofs returned by the sm-rogate read, 
 and the arguments of the counsel in the 
 cause, on the 19th June, 1821, pronounced the 
 following decree: ''It is ordered, adjudged 
 and decreed, and this covirt doth order, ad- 
 judge and decree, that the decree of the said 
 siu-rogate, in the said matter, be reversed: 
 and it is fm-ther ordered, adjudged and de- 
 creed, that the nuncupative will of the said 
 William Jones, deceased, having been duly 
 pi-oved, be admitted to probate; and that 
 letters of administration, with the said will 
 annexed, be issued thereon, out of this com-t, 
 to Mary Hazleton, the legatee in the said will 
 named." From this decree, the public ad- 
 ministi-ator of the city of New-York appealed 
 to this com-t. 
 
 As this court reversed the decree of the 
 com-t of probates, as well on the law, as on 
 the facts of the case, it is deemed imneces- 
 sary to state the voluminous depositions read 
 in the cause, all of which were set forth, at 
 length, in thu printed case, as the leading 
 facts are mentioned in the opinions of the 
 members of tliis coiu-t. 
 
 Mr. Hoffman and T. A. Emmet, for ap- 
 pellant. Henry & \'an Bm-en, tor respond- 
 ents. 
 
 THE CHANCELLOR. The question to be 
 discussed is, whether the nuncupative will 
 of WiUiam Jones, as stated to have been 
 made on the 11th of April, 1820, can be ad- 
 mitted to probate, as being valid in law. 
 It becomes a complicated question, under 
 the circumstances, and involves in the in- 
 quiry matter of fact, mixed with matter of 
 law. I shall consider it to be my duty to 
 speak frankly and freely on the wlioli; 
 subject of the case, but, at the same time. 
 With a sincere respect for the character of 
 the court whose opinion is now under re- 
 view, and from which I shall be obliged 
 vei-y greatly to dissent. 
 
 William Jones was an Irishman by binh, 
 and a religious Catholic by profession. He- 
 was born in the county of Dublin, in Ire- 
 land, and received a school education about 
 thirty years before his death, and which 
 carries us back to the year 1700. He had 
 then living parents, brothers and sisters, 
 and he was the youngest of the family. He 
 was apprenticed to a house-carpenter in the 
 city of Dublin, and served a regular appren- 
 ticeship of seven years. AVhen this service 
 expired, he worked as a journeyman, fur 
 nine or twelve months, ind then emigrated 
 to the United States. This brings us, in 
 
 275 
 
Case Xo. 71 
 
 PRINCE V. HAZLETON. 
 
 (§§ 27. 61 
 
 tlie history of his life, to the year 1798, and 
 perhaps that fact may enable us to give 
 some probable solution of the only circum- 
 stance that seems (if we except the will) 
 to cast any shade over the memory of this 
 man; I allude to the change of his paternal 
 name, O'Connor, for that of Jones. It does 
 not appear, precisely when he changed his 
 name, but I refer it back to that period, 
 as the probable time, and presume that he 
 and his family were more or less implicated 
 in the peril of the rebellion, which broke out 
 in Ireland in 1798, in consequence of an 
 ill-fated attempt to effect a revolution in 
 that kingdom. It is probable, that he may 
 have emigrated for safety; and, for greater 
 safety, laid down the name of O'Connor, 
 which was then memorable in the Irish an- 
 nals, on the side of the unfortunate. But, be 
 this conjecture as it may, we find him first 
 at New-York, then for two years at Savan- 
 nah, then living, for 12 or 14 years, in the 
 island of Cuba, and learning the Spanish 
 language, and where he probably made his 
 fortune. He is next traced, on his return 
 to the United States, to the cities of Balti- 
 more, Philadelphia and New- York; and in 
 all of them, he seems to have had business, 
 pecuniary concerns, and friends. 
 
 These are the few and imperfect sketches 
 of his biography to be selected from the 
 case, before we find him rich in the fruits 
 of his enterprise, but sick with a disease of 
 the liver, at the boarding-house of Mrs. Fox, 
 in Oheriy street, in New-York, the latter 
 end of March, 1820. 
 
 Jones, while at the house of Mrs. Fox, 
 claimed to be worth, altogether, 65,000 dol- 
 lars, in property, existing in New-York, 
 Philadelphia, Baltimore, and the island of 
 Cuba; and to show that this claim had 
 pretty fair pretensions to tnith, there was 
 actually found at his lodgings, at his death, 
 bank books; showing deposits to his credit, 
 in one or more banks of New-York, to be- 
 tween thirteen and fourteen thousand dol- 
 lars. 
 
 He had been sick at Mrs. Fox's about five 
 weeks, when he is said to have made the 
 will now under consideration. During that 
 time, he had one Ellen Taylor, a colored 
 woman, for his hired nurse; and there was 
 a Mrs. Hazleton, who had rooms, and board- 
 ed in the same house, who also acted as 
 his nurse. 
 
 Whether Jones ever saw or heard of Mrs. 
 H. before he came to board at Mrs. Fox's, 
 does not appear, nor have we in the case 
 any distinct lineaments of the character 
 which Mrs. H. sustains, or the business 
 or purpose of her lite. She rented the two 
 front rooms in the boarding-house, and yet, 
 her brother says, she followed no kind of 
 business. She has had two husbands, and 
 her present one is said to be a seafaring 
 man, by one of her witnesses, and another 
 of them says, that he had been voyages at 
 sea, and had been on the gaol limits, and 
 
 276 
 
 was then following his trade of a white- 
 smith at Savannah. Why she lives In this 
 detached situation, without a family of her 
 own, and a husband to live with and pro- 
 vide for her, as is quite common with mar- 
 ried persons, must be left to conjecture. 
 She was able, all at once, and, as it would 
 seem, without any adequate cause, and 
 without any remarkable display of goodness, 
 or even of attention, to gain a wonderful 
 ascendency over the affections of this . sick 
 man. If her story be true, and the will 
 genuine, she obliterated from Jones's breast 
 the sense of friendship, the charities of re- 
 ligion, the deep-rooted traces of national af- 
 fection, every tender recollection of the ties 
 of blood, of his natal soil, of the school- 
 fellows of his youth, of father and mother, 
 brother and sister, relative and friend. He 
 was persuaded at one nod, to pour the ac- 
 cumulated treasm-es of his varied life, into 
 the lap of this mysterious woman— the ac- 
 quaintance of a day! 
 
 The will, as certified by the four witness- 
 es, is in these words: "I now say, as I 
 have repeatedly said before, that I leave 
 all the property I am possessed of to Mary 
 Hazleton. I do this in consequence of the 
 good treatment and kind attentions I have 
 received from her during my sickness. She 
 is worthy of it. No other person shall in- 
 herit my property. I wish you all in the 
 room to take notice of this." 
 
 This will carries marks of fraud on its 
 very face. Let us examine it attentively. 
 This sweeping donation is made for what? 
 For good ti-eatment and kind attentions 
 received from her during his sickness. The 
 sickness had lasted only five weeks, and it 
 was not so bad but that he was able occa- 
 sionally to ride out. No person apprehend- 
 ed any immediate danger. He had a hired 
 nurse, a colored woman, who was, by him, 
 totally forgotten. What could this other 
 woman have possibly done, in the course of 
 five weeks, to awaken, in any rational mind, 
 a sense of such enormous obligation, or 
 to call forth such stupendous remuneration? 
 I am forcibly struck with the folly and 
 falsehood of the motive assigned. But the 
 will goes on, and adds. She is worthy of it; 
 and where does her great merit appear, 
 and from what circumstance does she entitle 
 herself to this extravagant eulogy? The 
 very declaration, that she was worthy to 
 possess all his estate, proves, that Jones 
 must have been insane, or that the whole 
 is a base fabrication. The will goes on 
 further, and says, No other person shall 
 inherit my property. And why these words 
 of special exclusion of the rest of the world? 
 They seem to imply a heartlessness and mis- 
 anthropy, very unnatural and very im- 
 probable for any man to express, in the con- 
 templation of death, and who was in the 
 enjoyment of the comforts and the smiles of 
 fortune; and especially for a native born 
 Irishman, who was in the midst of his 
 
§*5 27, 61) 
 
 PKINCE V. IIAZLEXOX. 
 
 Case No. 71 
 
 emigrant countrymen, and could not but 
 have heard and felt the claims of religion, 
 of charity, of the widow and the orphan. 
 He then adds, "I wish you all to take notice 
 of this,"— a speech which looks so much like 
 conti-ivance, that it does, of itself, throw a 
 suspicion over the whole piece. This man 
 must have been previously told, that the 
 statute required, that in making a nuncu- 
 pative will, the testator must bid the per- 
 sons present, to bear witness that such was 
 his will. It was made in the middle of the 
 day, when he was quite comfortable, and 
 far from the apprehension of death, and, in 
 this respect, with all punctilious and tech- 
 nical adherence to forms. It had the 
 requisite number of witnesses, and the ad- 
 dress to the bystanders. Jones must have 
 deliberately determined on a nuncupative, 
 instead of a written will, and have pre- 
 viously known and studied all the circum- 
 stances that were requisite to make it valid, 
 or else this will has since been got up for 
 him, like a puppet show, by the art and 
 cunning of some juggler behind the scene. 
 
 [His honor here went minutely, and at 
 larse, into the examination of the testi- 
 mony in the cause, and pai'ticularly of that 
 of the four witnesses to the will, and ob- 
 served, that from the nature, the improb- 
 abilities, the inconsistencies, and the ab- 
 surdity of the story, and the character and 
 conduct of the witnesses, he drew the con- 
 clusion that the testimony of those wit- 
 nesses was utterly unworthy of credit, and 
 that the will was evidently the production 
 of fraud and perjm-y. After having dis- 
 posed of the question of fact, his honor pro- 
 ceeded as follows:—] 
 
 But if we were to admit, against the 
 ti-uth of the fact, that the will of the 11th 
 of April was actually and fairly made, ac- 
 cording to the certificate of the fom- wit- 
 nesses, it would then become a question 
 of law whether it amounted to a valid 
 nuncupative will. 
 
 A nuncupative will is defined by Perkins, 
 (section 476) in his book, which was pub- 
 lished under Henry VIII., to be properly 
 when the testator "lieth languishing for 
 fear of sudden death, dareth not to stay the 
 writing of his testament, and, therefore, 
 he prayeth his curate, and others, his neigh- 
 bors, to bear witness of his last will, and 
 declareth by word what his last will is." 
 So, again, in Swinbm-ne, (page 32,) whose 
 treatise was published in the time of King 
 James I., it is said, that this kind of testa- 
 ment is commonly made when the testator 
 is now very sick, weak, and past all hope 
 of recovery. I do not infer from these pas- 
 sages, that unwritten wills were always 
 bad at common law, unless made in a case 
 of extremity, when death was just overtak- 
 ing the testator. In ignorant ages, there 
 was no other way of making a will but by 
 words or signs; reading was so rare an 
 accomplishment in the earliest ages of the 
 
 common law, that it conferred great privi- 
 leges, and the person who possessed It was 
 entitled, under the name of benefit of clergy, 
 to an exemption from civil punishment. 
 But these ancient writers mean to be und^r 
 stood, that in the ages of Henry VIH., 
 Elizabeth, and James, letters had become 
 so generally cultivated, and reading and 
 writing so widely diffused, that nuncupative 
 wills were properly, according to Perkins, 
 and commonly, according to Swinburne, 
 confined to extreme cases, and to be justi- 
 fied only upon the plea of necessity. And 
 this has been the uniform language of the 
 English law writers from that time down to 
 this day, so that it has become the acknowl- 
 edged doctrine, that a nuncupative will is 
 only to be tolerated when made in extremis. 
 Thus in Bacon's Abridgement, which was 
 first published in 1736, and compiled chiefly 
 from materials left by Lord Ch. B. Gilbert, 
 a nuncupative will is taken from Perkins, 
 and defined to be when a man is sick, and 
 for "fear that death, or want of memory or 
 speech, should sm-prise him, that he should 
 be prevented, if he stayed the writing of his 
 testament, desires his neighbors and friends 
 to bear witness of his will," and declares 
 the same presently before them. 7 Bae. 
 Abr. (by Gwillim) 305. The same defini- 
 tion is adopted by Wood, in his laborious 
 work on Conveyancing, (volume 6, p. 574,) 
 and in Blackstone's Commentaries, (volume 
 2, pp. 500, 501,) a nuncupative will is de- 
 fined to be one declared by the testator 
 in extremis before a sufficient number of 
 witnesses. After reciting the substance of 
 the provisions of the statute of 29 Car. II., 
 (and which we have re-enacted,) he adds: 
 "Thus has the legislature provided against 
 any frauds in setting up nuncupative wills, 
 by so numerous a train of requisites, that th« 
 thing itself has fallen into disuse, and 
 hardly ever heard of, but in the only in- 
 stance where favor ought to be shown to it 
 —when the testator is surprised by sudden 
 and violent sickness." And while I am 
 citing so many English definitions of nuncu- 
 pative wills, it cannot be thought useless, 
 and will not be deemed unacceptable, that 
 I should also refer to the very respectable 
 opinion of the late chief justice of Connecti- 
 cut, who declares, when speaking of nuncu- 
 pative wills as understood in the English 
 law, that they are allowed only in cases 
 where, in extreme and dangerous sickness, 
 the testator has neither time nor oisportuni- 
 ty to make a written will. 1 Swift, Syst. 
 420. 
 
 It appears to me, that these various writ- 
 ers must be satisfactory to every one, as to 
 the tme sense and meaning of a nuncupa- 
 tive will under the English law. It is not 
 easy to recur to more accurate sources. 
 The probate of wills being in England a 
 matter of ecclesiastical cognizance, cases on 
 that point rarely appear in the reports of 
 decisions in the courts of common law. 
 
 277 
 
Case Xo. 71 
 
 PRINCE 0. II AZ J.ETON. 
 
 (§§ 27. 61 
 
 I have, however, been able to select two or 
 three cases of nuncupative wills, which I 
 shall submit to the consideration of the 
 court. 
 
 Cole V. Jlordaunt, 4 Ves. 196, note, was the 
 case of a nuncupative will, in the 28th year 
 of Charles II., and it is well worthy of no- 
 tice, that this was only one year before the 
 29 Car. II., when the statute relating to 
 nuncupative wills was passed, and is said 
 to be the principal case which gave rise to 
 that statute. The case was this: Mr. Cole, 
 at a very advanced age, married a young 
 woman, who, during his life, did not con- 
 duct herself with propriety. After his 
 death, she set up a nuncupative will, said 
 to have been made in extremis, (for these 
 are the words used in the report of the 
 case,) and by wliich the whole estate was 
 given to her, in opposition to a written will 
 made three years before, giving 3,000 
 pounds to charitable uses. The nuncupa- 
 tive will was proved by nine witnesses, 
 but the court of probates rejected the will, 
 and on appeal to the delegates, a trial was 
 had at the bar of the K. B., and it appeared, 
 that most of the witnesses for the nuncupa- 
 tive will were perjm-ed, and Mrs. Cole her- 
 self was guilty of subornation of perjury. 
 It was upon the occasion of this shocking 
 and foul conspiracy, that Lord Ch. Notting- 
 ham said, "he hoped to see one day a law, 
 that no written will should ever be revoked 
 but by writing." He was gratified in see- 
 ing such a law the succeeding year; and 
 I will venture most respectfully to add, 
 that if this nuncupative will be established, 
 I should also hope to see one day a law, 
 that no nuncupative wUl should be valid in 
 any case. 
 
 The case I have cited contains a monitory 
 lesson; and it very much resembles, in its 
 principal features, the one before us. 
 
 In Philips V. Parish of St. Clement's Danes, 
 1 Eq. Cas. Abr. p. 404, pi. 2, which was 
 cited upon the argument, and arose in 1704, 
 one Doctor Shallmer, by will, in writing, 
 gave 200 pounds to the parish, and Prew, a 
 reader in tlie church, coming to pray with 
 him, he said, he gave 2(X) povmds more to- 
 wards building the church, and died on the 
 next day. This was a case of a nuncupative 
 will, which only failed for want of three 
 witnesses; but this testator was evidently in 
 extremis. The particulars are not stated, 
 except only that an otHcer of the church 
 came to pray with him, and that he died 
 tlio succeeding day; but those two circum- 
 stances well warrant the inference. 
 
 There is a very close analogy between 
 these nuncupative wills, and a gift upon the 
 death-bed or a donatio causa mortis; and 
 these gifts are defined by the court of chan- 
 cery in Hedges v. Hedges, Finch, Prec. 269, 
 Gilb. Eq. 12, in the very terms of a proper 
 nuncupative will. A donatio causa mortis, 
 is where a man lies in extremity, or being 
 surprised by sickness, and not having an 
 27S 
 
 opportunity of making his will, but lest he 
 should die before he could make it, gives 
 away personal property with his own hands. 
 If he dies, it operates as a legacy. If he 
 recovers, the property reverts to him. 
 
 Upon the strength of so much authority, I 
 feel myself warranted in concluding, that a 
 nuncupative will is not good, unless it be 
 made by a testator when he is in extremis, 
 or overtaken by sudden and violent sickness, 
 and has not time or opportunity to make a 
 written will. The statute of Charles II., so 
 often referred to, and which we have liter- 
 ally adopted, requires a nuncupative will to 
 be made by a testator in his last sickness, 
 and in his own dwelling-house, or where he 
 had been previously resident for ten days, 
 unless surprised by sickness on a journej', 
 or from home. The last sickness, in the pm-- 
 view of the statute, has been always imder- 
 stood (for so I infer from the cases cited) to 
 apply to the last extremity mentioned in the 
 books, and it never was meant to uphold 
 these wills, made when there was no imme- 
 diate apprehension of death, and no ina- 
 bility to reduce the wiU to writing. A case 
 of necessity is the only case, according to 
 Blackstone, in which any favor ought to be 
 shown them. If they are alleged to have 
 been made in a case unaccompanied with 
 necessity, the presumption of fraud attaches 
 to the veiy allegation. Let us suppose, by 
 way of illustration, the instance of a person 
 gradually declining under the operation of 
 some slow paced disease, as the affection of 
 the liver, or the consumption of the limgs, 
 or the dropsy, or the cancer. The patient is, 
 himself, we will suppose, under no imme- 
 diate apprehension of death, nor is any such 
 alarm excited in others. He is comfortably 
 seated in his chamber, in the midst of a pop- 
 ulous city, and with ample means. to com- 
 mand every kind of assistance. He has had 
 a fair common education, and knows well 
 how to read and write. He has been a 
 man of good understanding, habits of busi- 
 ness, and of successful enterprise, and has 
 accumulated a fortune. He is well versed 
 in the Ivuowledge, and in the affairs of man- 
 kind. He has pen, ink and paper at hand, 
 with an adroit physician at his elbow, and 
 a favorite friend at his side, on whom he 
 wishes to bestow his fortune. He is in the 
 middle of life, with his intellects perfectly 
 sound; he proposes, or it is proposed to hiui, 
 to make his will. Would such a man, in 
 such a case, ever dream of making a nun- 
 cupative will? Would any honest or discreet 
 friend ever advise him to itV If that should 
 be his wish, or if that should be the sugges- 
 tion of others, would the law tolerate such 
 an indulgence, under the notion that he was 
 m his last sickness? Surely the good sense 
 of the law, as the books explain that law, 
 and the cautious and jealous provisions of 
 the statute of frauds, never intended a nun- 
 cupative will for such an occasion. The law 
 wisely discriminates between written and 
 
.§§ 27, 61) 
 
 PKINCE 0. HAZLETON. 
 
 Case No. 71 
 
 unwritten wills, and permits tlie latter only 
 In cases of urgent necessity. To abolisli 
 that distinction would be to abolisli protec- 
 tion to property, encourage frauds and per- 
 juries, and to throw us back upon the usages 
 ■of the unlettered ages. 
 
 If nuncupative wiUs can be permitted at 
 .-all, in the cases of chronic disorders, which 
 malie silent and slow, but sui-e and fatal 
 approaches, it is only in the very last stage 
 .and extremity of them. In no other period 
 rcan such a disorder be deemed, within any. 
 reasonable construction of the statute of 
 frauds, a ma,n's last sickness. Such diseases 
 continue for months, and sometimes for 
 years. In one of Captain Cook's voyages, 
 lie states, that he lost his first lieutenant, 
 Mr. Hicks, near the conclusion of the voyage 
 of three years, and almost witliin sight of 
 the English coast. But, he adds, that as 
 liis disease was the consumption, and as it 
 existed when he left England, it might be 
 truly said, that he was dying during the 
 whole voyage. What would the law call 
 that man's last sickness? Not the whole 
 voyage surely, and, probably, it would be 
 naiTowed down to the last day, and to the 
 last hour of his existence. We must give 
 a reasonable interpretation to the statute, in 
 reference to the mischief, and to the remedy. 
 We cannot safely apply a man's last sick- 
 ness to the whole continuance of a pro- 
 tracted disease, without giving to the statute 
 an absurd construction. I do, therefore, most 
 confidently insist, that Jones was not in his 
 last sickness on the 11th of April, within the 
 sense, or within the policy of the statute, 
 and that he was not then entitled to make 
 sa nuncupative will. 
 
 There is one other consideration that im- 
 parts to this subject of nuncupative wills, a 
 momentous character, and ought to incline 
 jis to give to them as little countenance as 
 jjossible. As soon as a nuncupative will is 
 made, it becomes the interest of the legatee 
 that the party's sickness should prove to be 
 'his last sickness; for if he recovers, the will, 
 .of course, falls to the ground. Not so with 
 a written will. That remains good until 
 j-evoked, and it cannot be revoked but by 
 writing. Let us, for one moment, pause over 
 ithis consequence of nuncupative wills, and ob- 
 . serve with what a deleterious influence they 
 must suddenly act upon the heart, and what 
 a powerful appeal they at once make to the 
 selfish and dark passions of the human mind. 
 -The title of the legatee depends altogether up- 
 on the precipitate death of the testator. Every 
 day that his life is prolonged, more and more 
 impairs the character of the will, and it 
 vanishes if he becomes convalescent. Sup- 
 pose the testator was understood to possess 
 a large amount of cash in hand, and that 
 :he gives it all, by a nuncupative will, to a 
 ^stranger, to whom the law would not have 
 ^iven it. Suppose that stranger to be his 
 physician, or, as in the present case, his 
 nm-se, what hold has the testator on her 
 
 fidelity, her kindness, or her Integrity? Her 
 interest and her wishes (if indeed her wishes 
 procm-ed the will) must be to destroy, and 
 not to heal her benefactor. The legacy 
 operates as a bounty upon his death. One 
 cannot contemplate a nuncupative will under 
 this aspect, without sensations of horror. 
 Well might such a man exclaim, as Jones is 
 said to have done, repeatedly, "My life de- 
 pends upon that woman." 
 
 I am accordingly of the opinion, both upon 
 the law, and upon the fact, that the decree 
 of the com-t of probates, directing the nun- 
 cupative will of William Jones to be ad- 
 mitted to probate, was erroneous, and ought 
 to be reversed; and that the decree of the 
 surrogate of the city and county of New 
 York, of the 17th October, 1820, directing the 
 application to admit the said nuncupative 
 will to probate to be dismissed, and that 
 letters of administration, of the goods, chat- 
 tels and credits, which were of William 
 Jones, deceased, be granted and issued, ac- 
 cording to law, as in cases of intestates, be 
 confirmed. 
 
 SPENCER, C. J., said, that he concm'red in 
 opinion with the chancellor, that the decree 
 of the court of probates ought to be reversed, 
 on the ground, that the alleged nuncupative 
 will was not made while the testator was in 
 extremis; and because it appeared, from all 
 the evidence in the case, that when the al- 
 leged will was made, he did not think him- 
 self, nor did any other person think him to 
 be in any immediate danger of dying; and 
 because thei'e was ample opportunity to 
 make a will in writing, had the supposed 
 testator been so disposed. 
 
 PLATT, J., said, that he fully concurred 
 in the opinion of the chancellor, both on the 
 law and the fact. 
 
 WOODWORTH, J. This case comes be- 
 fore the court on an appeal from the decree 
 of the com't 4f probates, by which it is ad- 
 .iudged, that the nuncupative will of Wil- 
 liam Jones, deceased, having been duly prov- 
 ed, be admitted to probate, and that letters 
 of administration, with the will annexed, be 
 issued thereon. 
 
 I will examine this cause in the following 
 order :-^ 
 
 1. What are the facts necessary to consti- 
 tute a valid nuncupative wiU? 
 
 2. Does the testimony satisfactorily prove 
 the making of such will? 
 
 The act concerning wills, declares, "that 
 no nuncupative will shall be good, where 
 the t'State thereby bequeathed shall exceed 
 the value of 75 dollars, unless the same 
 be iiroved by the oaths of three witnesses, 
 at the least, wlio were present at the 
 making thereof; nor imless it be proved, that 
 the testator, at the time of pronouncing the 
 same, did bid the persons present, or some 
 of them, bear witness that such was his 
 
 279 
 
Case Ko. 71 
 
 PUINCE V. IIAZLETOX. 
 
 (§g 27, 61. 
 
 will, or words to that effect; nor unless such 
 nuncupative will be made in the time of the 
 last sickness of the deceased, and in his 
 dweUing-house, or where he had been resi- 
 dent for ten days or more, next before the 
 mailing of such will, except where such 
 person was surprised or taken sick from 
 home, and died before his retm-n to the 
 same." By the 15th section, it is declared, 
 "that after six months from the speaking 
 of the pretended testamentary words, no 
 testimony shall be received to prove any 
 nuncupative will, except the same testimony, 
 or the substance thereof, was committed to 
 writing, within six days after the making of 
 the said will." 
 
 The requisitions of this act must be satis- 
 fied; there is such perfect perspicuity in the 
 language made use of, that if doubts existed 
 as to the law, previous to the passing of 
 the act, none can remain at the present day. 
 If the statute is so plain, as to be incapable 
 of misconstruction, then, without reference 
 to the law previously in force, it must be 
 carried into effect, according to the inten- 
 tion of the legislature. If it gives a new 
 rule, that rule must be observed. In such 
 cases, no consequences are to be regarded 
 in the construction. 6 Bac. Abr. 392. On 
 the other hand, if a statute makes use of 
 words, the meaning of which are well known 
 at the common law, the words shall be un- 
 derstood in the same sense; and hence it 
 frequently becomes necessary to know, what 
 the common law was before, and what the 
 mischief was, for which the common law had 
 not provided. These general remarks may 
 be considered not inapplicable, in examining' 
 the soundness of the legal objections made 
 by the appellant's counsel. It is contended, 
 that, admitting the respondents' witnesses 
 have testified truly, they do not make out a 
 case within the act. The objections are, first, 
 that "last sickness" means sudden illness, 
 when the testator is in extremis, and in the 
 immediate prospect of death; and, secondly, 
 that the will is void, because no executor is 
 named. To guard against impositions and 
 forgeries, in setting up nuncupative wills, 
 the statute was passed, and has imposed sev- 
 eral salutary restrictions. In discussing the 
 first objection, it will be useful to inquire, 
 how the law stood before the passing of the 
 act. If we can ascertain the common law 
 exposition of "last sickness," I admit it 
 will go far to show how the statute is to be 
 understood. If no light can be derived from 
 the common law in explaining these terms, 
 then the words "last sickness," in the stat- 
 ute, are to be construed according to their 
 obvious Import, which is, the sickness im- 
 mediately preceding the death of the testa- 
 tor, without reference to any precise period 
 of the disease, or any particular apprehen- 
 sions the testator may be under, as to his 
 approaching dis.=olution. 
 
 The docti-ine in relation to nuncupative 
 wills is derived from the civil law, and is of 
 280 
 
 very ancient date. Cowp. 90. It was incor- 
 porated into the system of the common law, 
 and acted upon, proprio vigore, long before 
 the statute of frauds, and the statute of 
 wills, as ynU be shown in the course of this 
 inquiry. 
 
 In the institutes of Justinian, (liber 2, tit. 
 10, § 14,) it is laid down: "If a man wishes 
 to dispose of his effects, by a nuncupative or 
 unwritten testament, he may do so, if, in the 
 presence of seven witnesses, he verbally de- 
 clares his will; and this will be a valid tes- 
 tament, according to the civil law." It 
 seems, that neither last sickness, nor any 
 sickness, was necessary to give It validity; 
 it was suflicient, if the witnesses, within a 
 reasonable time after the death of the testa- 
 tor, went before a magistrate, and giving an 
 account of what took place, a formal state- 
 ment was drawn up and signed. Swinburne 
 (Wills, pt. 4, § 29, p. 350) says: "In making 
 a nuncupative will, this is chiefly to be ob- 
 served, that the testator do name his execu- 
 tor, and declare his mind by word of mouth, 
 without writing, before witnesses; no pre- 
 cise form of words is required, so that the 
 testator's meaning do appear." So, also, in 
 Swinburne, (Id. pt. 1, § 12, i). 58,) it is said: 
 "A nuncupative testament, is when the tes- 
 tator, without any writing, doth declare his 
 will before a suflicient number of witnesses. 
 It is called nuncupative, because, when a 
 man makes such a testament, he must name 
 bis executor, and declare his whole mind be- 
 fore witnesses." The author then observes: 
 "This kind of testament is commonly made 
 when the testator Is very sick, weak, and 
 past all hope of recovery." Here, I think, 
 we may discover the source of that errone- 
 ous impression, which some elementary writ- 
 ers entertain, that it is of the essence of a 
 nuncupative will, that it be made in extrem- 
 is, or when a man is sick and in fear of 
 death. Swinburne, who, in substance, lays 
 down the same rule, in resp?ct to nuncupa- 
 tive wills, as that sanctioned by the civil 
 law, does not give the least countenance to 
 the notion, that sickness is at all necessary. 
 He merely states the times when these wills 
 are generally made, not that any particular 
 time, or any sickness is necessary. He had 
 before shown it was not; but he evidently 
 introduces it, in order to give the reason why 
 men defer a business of such importance to 
 so late a period. He observes, "It is a re- 
 ceived opinion, amongst the ruder and more 
 ignorant people, that if a man should be so 
 wise as to make a will in health, that then 
 surely he should not live long after, and 
 therefore they defer it until a time of sick- 
 ness." Page 59. Prom the preceding au- 
 thorities, it is obvious, that before the stat- 
 ute the validity of a nuncupative will did not 
 depend on the fact that it was made in the 
 last sickness. Blackstone, who is supposed, 
 by the appellant's counsel to hold a differ- 
 ent language, wlil, I think, on examination, 
 be found not to contain any thing in opposi- 
 
27, 61) 
 
 PlilXCE V. HAZLETON. 
 
 Case Xo. 71 
 
 tion to the preceding authorities. In 2 Bl. 
 Comm. 500, the author very concisely re- 
 marks, "that a nuncupative will depends 
 merely upon oral evidence, being declared by 
 the testator in extremis, before a sulficient 
 number of witnesses, and afterwards re- 
 duced to writing." He nowhere says that 
 it is necessary to be made in extremis; the 
 reference is obviously to the time generally 
 chosen for the making of such wills, "being 
 declared by the testator in extremis;"' which, 
 as a general proposition, is undoubtedly true. 
 He evidently intended to state this fact, as 
 Swinbui-ne had done. If the doctrine, de- 
 rived from the civil law, was intended to be 
 questioned, this accurate writer would have 
 given some intimation, from which such a 
 conclusion might fairly be drawn. 
 
 In 7 Bac. Abr. tit. "Wills," D, p. 305, the au- 
 thor, speaking of nuncupative wills, gives this 
 definition: "When a man is sick, and for fear 
 of death, or want of memory should surpiise 
 him, if he stayed the writing of his testa- 
 ment, desires bis neighbors and friends ta 
 bear witness of his last will, and then de- 
 clares the same presently by word, this Is 
 called a nuncupative will." There Is no 
 doubt this is all correct. A will made under 
 such circumstances would be valid; but It 
 will be remembered, that the question is, 
 whether a will would not also be valid, if not 
 made in sickness, and for fear of death. Ba- 
 con does not assert that it would not. We 
 must, therefore, suppose, that in speaking of 
 such will, he had in view, that nuncupa- 
 tive wills are generally made under the cir- 
 cumstances he describes; and that he meant 
 only to say, that such wills were good. The 
 authorities he cites (1 Inst. Ill, and Perk. 
 Conv. 209, § 476) do not contradict the rule 
 of the civil law, nor state any thing In oppo- 
 sition to the doctrine laid down in Swin- 
 burne. 
 
 As further evidence. If any is wanting, 
 that Bacon so imderstood the law, we find, 
 In a case (7 Bac. Abr. 339, tit. "Wills," 1 Eq. 
 Cas. Abr. 403) where a question arose as to 
 the validity of a mmcupative will. It is mere- 
 ly stated, that the testator was ill. No ob- 
 jection was taken on this point, but there 
 were other difficulties, which, if they had 
 been removed the will would have been 
 good. I will not trespass on the patience of 
 the court by pursuing this inquiry further. 
 I think it Is perfectly settled, that before the 
 statute, a good nuncupative will might be 
 made at any time. If proved by witnesses; 
 and, although, for reasons already given, 
 men generally deferred the making of such 
 wills, until overtaken by sickness and in fear 
 of death; yet that the law did not place 
 wills, made at such times, on more favoured 
 grounds than if made at a different period. 
 The consequence, then, is, that there is noth- 
 ing in the common law to aid in giving a 
 construction to the terms "last sickness," 
 made use of in the statute; and, therefore, 
 the statute must be considered as introdu- 
 
 cing a new rule, or, perhaps, more correctly 
 speaking, restricting the period In which 
 nuncupative wills may be made, by confin- 
 ing it to "last sickness," instead of leaving 
 the time in the discretion of the testator. If 
 any thing more was necessary to prove the 
 soundness of the doctrine I have advanced. 
 It seems to me the statute itself contains the 
 most satisfactory evidence. It is admitted, 
 that the statute was intended as a remedy 
 for the frauds and impositions which grew 
 out of the common law. The various regu- 
 lations introduced, were for the express pur- 
 pose of serving as checks and barriers 
 against fraud. The statute does not purport 
 to be declaratory of the common law, but is 
 a remedial statute. The period In which a 
 valid nuncupative will might be made, was 
 no longer to remain in the discretion of the 
 testator; but as offering less opportunity for 
 imposition, the statute confined it to his "last 
 sickness." That requisite was inserted, be- 
 cause the common law had not provided any 
 such restriction. Blackstone observes, (vol- 
 ume 2, p. 501,) in commenting on this stat- 
 ute: "It must be in the testator's last sick- 
 ness; for if he recovers, he may alter his 
 dispositions, and has time to make a written 
 will." The Inference drawn from the statute 
 is in coincidence with the doctrine derived 
 from the common law. 
 
 But it Is said, that this will is not valid, 
 because no executor Is expressly appointed. 
 Without examining whether the naming an 
 executor was essential to every testament, it 
 is sufficient to show that an executor, eo 
 nomine, need not be named in words. 
 
 Swinburne (Wills, pt. 4, § 4, p. 247) ob- 
 serves, "If the testator says, I commit all my 
 goods to the disposition of A. B., it Is, in ef- 
 fect, as If he says, I make him my executor, 
 for it thereby appears he did not intend to 
 die Intestate." Here, the testator has given 
 all his personal estate, and that is a valid ap- 
 pointment of executor. I apprehend, that in 
 every case, a nuncupative will may be valid 
 without naming an executor. In 2 Bl. 
 Comm. 503, the author states the proposition 
 generally, that if the testator makes an in- 
 complete will, without naming an executor, 
 administi'ation may be granted cum testa- 
 men to annexe. 1 Roll. Abr. 907; Comb. 20. 
 This appears to have been done In several 
 cases. In How v. Godfrey, Finch, 361, let- 
 ters of administration, with the will an- 
 nexed, appear to have been granted on a 
 nuncupative will when no executor had been 
 appointed. The long and uniform practice 
 In this respect, is opposed to the objections 
 urged, that the appointment of an executor, 
 in the will, is essential. 
 
 Some criticisms were applied to the testi- 
 mony of the witnesses who proved the will, 
 which I will briefly notice; it is objected to 
 Doctor Arden's testimony, that after stating 
 the expressions of the testator, he says, "or 
 words to that effect." That Waters uses the 
 words, "should have all the property he was 
 
 281 
 
Case No. 71 
 
 PRINCE V. HAZbETON. 
 
 (§§ 27. 61 
 
 worth;" and Ellen Taylor, that "all that he 
 had or was possessed of, was for Mrs. Ha- 
 zleton." I have already shown that no pre- 
 cise form of words are required by law:— if 
 the intent and meaning can be collected, that 
 is sufficient. Swinbm-ne lays this down ex- 
 pressly. I have not discovered any rale of 
 law opposed to it. Indeed, so long as nun- 
 cupative wills are allowed, no other rule 
 would be applicable to the subject. We need 
 not be informed that no witness could be re- 
 lied on, as to every identical word made use 
 of by the testator. All that can be exijected 
 is to give the substance. No doubt, very 
 nearly, the same words used by the testator 
 may be retained; and when a witness testi- 
 fies to the expressions, we understand him, 
 that the words so testified to, convey accu- 
 rately the meaning of the testator, but no 
 one would consider the witness as speaking 
 technically in "haec verba." There is no 
 force, then, in these objections, provided the 
 words proved by the witnesses show the 
 meaning of the testator. If the testimony in 
 this case is true, the words abimdantly prove 
 the intent, that Mrs. Hazleton should, after 
 the testator's death, have all his property. 
 
 The remaining question is, does the testi- 
 mony satisfactorily prove that the will in 
 question was made? 
 
 It does not appear to me extraordinary, 
 that this question has been litigated with un- 
 common zeal; neither ought it to excite sur- 
 prise, to find contradictory testimony in 
 some material points. It was to be expect- 
 ed; it is an angry controversy, where disap- 
 pointment on one side, and the hope of es- 
 tablishing the will on the other, have excited 
 gi-eat competition. Here is a foreigner with 
 considerable property, about to leave it soon. 
 Whether he has any heirs in his native coun- 
 tiy is uncertain; he thought he had none; if 
 he had, it is very evident he felt no sympa- 
 thies or interest for them; aU connection 
 seemed to be dissolved; years had passed 
 away without any commimication ; he had 
 changed his name; in short, whatever may 
 have been the cause, it does not appear, that 
 a single human being had any hold on his af- 
 fections, so as to be a particular object of 
 his bounty. In this situation, he is confined 
 by sickness, and although he entertained 
 hopes of recovery, it cannot be doubted, he 
 must have had strong apprehensions that his 
 end was near. I thinlj it quite evident he 
 was not disposed to make a written will. 
 
 The foi-mal act of dictating a written will, 
 may have appeared too much like the precm'- 
 sor of dissolution; or his apathy might be 
 such, that he would not go through the for- 
 malities of so solemn an act, and yet might 
 be willing to say, "A. or B. shall possess my 
 property after my death." He might have a 
 predilection enough for some individual, to 
 do the latter, for it was attended witli no 
 trouble or effort, but would have died intes 
 tate, rather than submit to the former. Who 
 can point out, with certainty, the object of 
 -282 
 
 his regard? He was eccentric, of singular 
 habits; fretful, suffering at times excruciat- 
 ing pains. Is there an individual that will 
 pretend to such knowledge of the human 
 heart, the motives and springs of human ac- 
 tion, as to say, that the faithful attendant on 
 the sick bed of the testator, who had devot- 
 ed days and nights to mitigate his sufferings 
 and soothe his pains, would not probably be 
 deemed a fit object of his bounty? For my- 
 self, under such circumstances, I have no 
 hesitation in saying, such a disposition of his 
 property is at once natural, if not to be ex- 
 pected. If the result of this examination 
 shall be, to prove the making of a will, this 
 court, sitting to discharge the duty of dis- 
 creet jurors, will not erect itself into a tri- 
 bunal to say, the testator ought not to have 
 devised in this manner; neither will it feel 
 itself at liberty to disregard the testimony in 
 support of it, unless it shall be successfully 
 impeached, according to the rules which gov- 
 ern in a court of justice. 
 . F'our witnesses have been examined to 
 prove the will. If they, or any three of 
 them, are to be regarded as credible witness- 
 es, it is abundantly proved. I shall begin 
 with Doctor Ai'deu. His general character is 
 not impeached. I cannot travel out of the 
 case to inquire respecting him; I think it will 
 be admitted, if aught could be alleged 
 against him, it would not have been with- 
 held. I am constrained to believe he has 
 stated the truth, unless it be shown that his 
 evidence is contradicted in material parts. 
 He not only swears to the making this 
 nuncupative will, but that on several occa- 
 sions, previously, the testator declared his 
 intention, to give all his property to Mrs. 
 Hazloton; and subsequently declared he had 
 given to her all his property. If this man i.^ 
 perjm-ed, his depravity must be confirmed 
 and settled. In the complication of testimo- 
 ny, nothing has transpired to assign a motive 
 or inducement for such a course; no connec- 
 tion or intimacy is traced between Lim and 
 the respondents. Before he is consigned to 
 infamy, he has a right to demand the evi- 
 dence upon which his criminality l,s founded. 
 I have sought for it in vain, and, therefore, 
 am bound to believe him. 
 
 But it is ui-ged, that his testimony is con- 
 tradicted. He says, he was called to .Tones 
 as a patient, by finding a memorandum on 
 his slate, by some person, but what person 
 he never knew: is this disproved? So far" 
 from it, Taber, an unimpeached witness, 
 says, that a man did call at the office of Doc- 
 tor Arden, and left a message on the slate 
 for him. James M'Donnell testifies, that it 
 was proposed by Jones and Mrs. H. that he 
 should go to Doctor Arden; that he went, 
 saw him, and delivered his message. In all 
 this, I perceive no contradiction; the testi- 
 mony is consistent and reconcilable; the fact, 
 that Arden was called by a message on the 
 slate is proved to be true. Some person did 
 call, and as M'Donnell appears to have been 
 
§§ 27, 61) 
 
 PUINCE V. HAZLETON. 
 
 Case No. 71 
 
 the only person sent, autl inasinucU as he 
 has not denied that he left that message, 
 nor been questioned respecting It, as might 
 have been done, had It been deemed mate- 
 rial, the fair presiimptlon is, that he was the 
 man that called, and not finding Arden at 
 home, afterwards saw him, and delivered 
 the message personally. But whether he 
 was the person or not, is immaterial; M'Don- 
 nell's request does not, in the least, falsify 
 the statement of Ai'den, that a message was 
 left on the slate; both are undoubtedly true, 
 and admit of perfect explanation. That he 
 was sent for, and at the request of Jones, 
 is proved. It is difficult to conceive, why 
 this unimportant circumstance was pressed, 
 as a ground for impeaching the testimony. 
 Another ground is this: Arden says, he never 
 heard any friend, visitor or attendant make 
 a request to call in a clergyman. Julia Devoy 
 testifies, that she urged to Doctor Arden 
 the calling in of the bishop; that the doctor 
 observed, that he should allow no clergy- 
 man to come that night. Here is contradic- 
 tory testimony, not as to the fact whether 
 a will was made, but in relation to the solici- 
 tude expressed by Mrs. Devoy, for the spir- 
 itual concerns of the testator. This is the 
 only conti'adiction I have discovered in 
 Ar den's testimony; and it admits of a sat- 
 isfactory answer. Allowing Mrs. Dovoy to 
 be an unimpeached witness, which I think 
 will be shown she is not, then, is the evi- 
 dence of Arden falsified by her? It is not, 
 by any i-ule of evidence with which I am 
 acquainted. In case the request to send for 
 the bishop was a material fact for the re- 
 spondents to make out, I admit the evidence 
 would be neutralized, and go for nothing, 
 because the affirmative must be made out by 
 a superior weight of testimony, and as the 
 scales are balanced, the affirmative is not 
 established; but no Inference can rightfully 
 be drawn, that the testimony of Arden was 
 false, although it may be evident that the 
 testimony of one or the other was necessarily 
 so. If both witnesses stand unimpeached, 
 independent of the fact that they dlsagi-ee 
 as to a particular thing, the scales are in 
 equilibrio, and other things being equal, they 
 are each entitled to credit. I put this in the 
 strongest point of view for the appellant, 
 and it will not aid him, for there is as much 
 reason to believe Doctor Arden as Mrs. Julia 
 Devoy. But is it consistent with the rules 
 of interpreting and reconciling testimony, 
 to push the doctrine thus far? Does not the 
 experience of every member .of tliis com't 
 attest to the trath of the proposition, that 
 memory is frail, that misapprehension and 
 mistake are incident to man, that the law 
 will charitably atti-ibute discrepancies in 
 testimony to some of these causes, rather 
 than to deliberate perjury, if, from the na- 
 tm-e of the case, there may have been forget- 
 fulness or mistake? Who that is conversant 
 In courts, does not know, that it is of every 
 day's occurrence, for credible and intelligent 
 
 witnesses to take a different vi^w of some 
 circumstances in the same transaction, and 
 if called upon to testify, may, in some un- 
 important particulars, at least, contradict 
 one another? Would the duty of a judge, 
 for such cause, require him to instruct the 
 jm-y to disregard it? I apprehend not. 1 
 have supposed the case, in the remarks that 
 I have made, that Doctor Arden and Mrs. 
 Devoy were equally credible. The further 
 examination of this cause will, I think, show 
 how little she is entitled to such a character. 
 Arden, then, has passed the ordeal unhurt, 
 and proves that Jones made a will. The 
 next witness is George Waters; his testimony 
 is substantially the same as Arden's; his at- 
 tendance was unsolicited and accidental; he 
 had never seen AMlliam Lee, another of the 
 witnesses, before the 11th April, when he 
 met him at Jones's room. The testimony of 
 this witness fully proves the will; it is not 
 impeached, and is entitled to credit. 
 
 The next witness is William Lee; he also 
 proves the will. He says he was requested 
 by Doctor Arden to go with him to see a 
 sick patient; he went; he never saw Mrs. 
 H. until he met her at the house where Jones 
 was lying sick. His testimony, in substance, 
 concm's with that of Arden and Waters; but 
 it is assailed on several grounds. I will 
 briefly consider them. Lee says, that on the 
 third of May, Mrs. H. called on him, and 
 gave him the first information of Jones's de- 
 cease. Walter Fm-long testifies, that he in- 
 formed Lee of the decease of Jones, the 
 morning he died. Whether Lee received the 
 information on the 15th of April, or the 3d 
 of May, is a circumstance irrelevant and un- 
 important, in respect to the subject of this 
 will; it could have no effect whatever, allow- 
 ing that the witness intended to aid the 
 cause of Mrs. H. If Lee was corrupt enough 
 to sacrifice his integrity, he would have tes- 
 tified falsely to some fact that might be ma- 
 terial. It would be in character, for a knave, 
 on prudential grounds, to adhere to truth ill 
 circumstances of no moment; he would not 
 expose himself to contradiction where noth- 
 ing could be gained. I perceive no motive 
 for stating the time of receiving information 
 falsely. The law will not impute perjm-y on 
 such a state of facts, but will ascribe the 
 variance to misapprehension or mistake; be- 
 sides, Lee, who swears to one day, is equally 
 credible as Furlong, who swears to another. 
 If this was an ordinary case, before a jmy, 
 exciting but little interest, I am persuaded 
 the contradiction, merely as to the time 
 when notice of Jones's death was received, 
 would not be seriously lu-ged; if it was, it 
 would not, and ought not to be listened to. 
 
 But, it is urged, that Lee's general char- 
 acter is impeached. It is proper here to re- 
 mark, that evidence of this kind, although 
 admissible, is to be critically examined, and 
 very deliberately considered, before it is act- 
 ed on. When a witness testifies, that the 
 general character of another is bad, and goes 
 
 283 
 
Case Xo. 71 
 
 PRINCE c. HAZLETOJSr. 
 
 (§§ ^7, Gl 
 
 no further, jt cannot be satisfactory; for that 
 would subject the character of an individual 
 to the opinion of the witness, and not to the 
 general sense of the community, respecting 
 the person sought to be impeacned; hence it 
 becomes necessary, and is always competent, 
 to inquire, whether the community gener- 
 ally, or a few individuals, speak ill of the 
 person implicated, and whether such persons 
 may not have been biased by prejudices of 
 whatever kind, and whether they have not 
 had some disagreement, controversy or quar- 
 rel. The weight that such evidence is en- 
 titled to, will depend on considerations like 
 the preceding, and others of a similar nature. 
 
 It is what the community say generally of 
 a man, that is evidence; not what this or 
 that individual may say. Deplorable, in- 
 deed, would be the state of society, if the 
 opinions of two or three individuals should 
 be deemed sufficient to establish a general 
 bad reputation. In times of party conten- 
 tion, if not at all times, it would not be diffi- 
 cult to prove, in any given case, that a few 
 individuals had spoken against the character 
 of the witness, or person on trial, when the 
 general voice was otherwise. It is not evi- 
 dence at all, where the witness who im- 
 peaches another has formed his opinion 
 merely on what A., B. and C. have informed 
 him. If the witness has only heard A. and 
 B. speak of the individual implicated, then 
 he is not sufficiently informed to make out 
 what is required, and the party who calls 
 him must resort elsewhere. On principle, it 
 is highly expedient the law should be so; 
 for this species of evidence deals In no spe- 
 cific facts, and consequently, no investiga- 
 tion can take place as to the truth or false- 
 hood of the matters which have made an 
 unfavorable impression against a witness; 
 all that can be done is to give evidence of 
 general good character. The proceedings in 
 our courts of justice show, that evidence to 
 impeach, or support, is obtained without ap- 
 parent difficulty; it is not conclusive in any 
 case, but is powerful and operative, when 
 the general sense of those acquainted with 
 a witness, is unfavorable to his truth and in- 
 tegrity. The law has considered character 
 sufficiently guarded, by allowing it to be as- 
 sailed only when the general opinion was 
 against it. General opinion raises a strong 
 presumption that there are facts to support 
 its justice and correctness; but the opinion 
 of this or that individual, raises no such pre- 
 sumption. 
 
 The preceding remarks apply to the testi- 
 mony introduced to impeach William Lee. 
 The first witness, Pensford, says, his general 
 reputation is bad, but admits that he never 
 heard more than two or three persons speak 
 ill of him. Will this satisfy the rule of law 
 that the general character is bad? I think 
 not. 
 
 Gross swears, that he would not believe 
 him on oath, and has heard from a number 
 of persons that he was a bad man. Carter 
 284 
 
 says, that Lee's character, for truth and in- 
 tegrity, is not good; and that he is not en- 
 titled to be believed as a witness. 
 
 This is the evidence for the appellant. 
 
 The respondents have resorted to the same 
 kind of evidence to support William Lee, in 
 which they have succeeded. Nine witnesses 
 testify favorably of his character; and that 
 he is to be believed on oath. There is a 
 variation in the forms of these depositions; 
 some are more full and explicit than others. 
 I have considered the criticisms applied by 
 the counsel on the argument. When a wit- 
 ness says, that "from the general character 
 of William Lee, for truth and integrity, he 
 would believe him on oath as a witness," I 
 cannot intend that his character is presented 
 in a questionable shape; that the witness 
 meant to say, he has just so much character 
 as will entitle him to belief, and nothing 
 more; and by using such terms, to present 
 the witness as suspicious. The fair import 
 is decidedly in support of a good reputation 
 for truth and veracity. But West, Johnson 
 and Quin speak in more general terms; they 
 know his general character, for truth and 
 veracity, to be good. They alone are more 
 than sufficient to counterbalance the evi- 
 dence of Gross and Carter, on whom the ap- 
 pellant most relies. This attempt has fail- 
 ed altogether. Has Furlong proved any fact 
 injurious to the .credit of Lee? How this 
 deposition can be made to bear on the truth 
 of Lee, I confess I am ignorant. 
 
 If Lee was under any obligation to disclose 
 to his journeyman. Furlong, what he knew 
 respecting Jones's will or property, this depo- 
 sition would, indeed, prove he had not done 
 so, and for which Furlong might complain; 
 but admitting the obligation to gratify the 
 curiosity or inquisitiveness of Furlong, how 
 does it affect Lee's truth? To attempt to 
 prove that it does not, would be a waste of 
 time. As a specimen, take the following: 
 Furlong says, Jones died without making a 
 will; Lee replies, "It was a great pity." Lee 
 inquired where Jones lived, and whether 
 Furlong iinew how the property would be 
 disposed of; that it was a great pity it should 
 fall to the state, and not go to his relations 
 in Ireland. Such are the opinions expressed 
 by Lee, and such the manner of his conver- 
 sation with Furlong. 
 
 No principle of morals or ethics, required 
 Lee to state all he knew; he was at perfect 
 liberty to communicate his knowledge, or re- 
 main silent; and if, by his manner. Furlong 
 drew an inference of Lee's ignorance on the 
 subject, I am not aware of any improisriety, 
 much less that any criminality attached up- 
 on his conduct. He was bound to speak 
 truth, when he did speak; but he was not 
 prohibited from making inquiries, or express- 
 ing regrets. 
 
 Furlong had no interest in, or connection 
 with, the will, or the parties to it, and could 
 sustain no injury by remaining in ignorance. 
 Lee acted with prudence, and proper reserve. 
 
§§ 27, 61) 
 
 PKINCE V. HAZLETOST. 
 
 Case No. 71 
 
 When inquired of how he could be a witness, 
 he gives a satisfactory explanation; "he did 
 not think proper to inform Furlong what he 
 knew." 
 
 Thus, have I examined the testimony of 
 three witnesses in support of this will, with 
 the various objections to their credibility, 
 jind arrive at a conclusion entirely satisfac- 
 tory to my own mind, that a mincupative will 
 was fairly and bona fide made, answering 
 all the requirements of law, and vesting in 
 the respondents the property of the testator. 
 
 With respect to Ellen Taylor; the aid of 
 her testimony is not required. It is ad- 
 mitted, that she is contradicted in so many 
 particulars, that, unless supported, she is not 
 entitled to credit. She is a woman of color, 
 who attended Jones in his sickness, and, 
 probably, of that class who are not under 
 the control of moral restraints. Any num- 
 Taer of witnesses, impeached as she is, would 
 not be sufficient to establish a fact. It does 
 not, however, follow, of necessity, that she 
 has not testified truly as to this will. If 
 two credible witnesses proved the fact, and 
 she is called as a third witness, will it not 
 satisfy the words of the statute? It is well 
 known, that the unsupported evidence of an 
 accomplice, is held not sufficient to con- 
 vict; but if that accomplice derives support 
 xis to some of the material facts, it will war- 
 rant a conviction. The statute requires the 
 will to be proved by three witnesses. Does it 
 place the testimony on different ground from 
 a case where witnesses are called to prove 
 any other fact? Does it deny the aid in sup- 
 port of a witness that would be admissible 
 in other cases? May not such aid be de- 
 rived from the same sources? I perceive no 
 ■objection in the letter or spirit of the act. 
 If, in an ordinary case, she had been called 
 as a witness, and had proved a material 
 fact, and the opposite party, as in the pres- 
 ent case, had shown so many contradictions 
 as to discredit her, the introduction of two 
 •other witnesses, swearing to the same ma- 
 terial fact, would restore her credit in the 
 particular instance; and, according to the 
 settled rules of evidence, it could not be said 
 she was not, on that occasion, a credible wit- 
 ness. It is true, her testimony, in that case, 
 would not become indispensable, because the 
 same thing was proved by others; but, on 
 the question, whether she had sworn truly, 
 it must be answered in the affirmative. Ap- 
 ply this principle to the present case. She 
 is a competent witness; the objections go to 
 lier credit. If her credit is restored, is it 
 material by what witnesses that is effected? 
 If two credible witnesses proved the same 
 leact, and that Ellen Taylor was also present, 
 and heard what was said, where is the prin- 
 ciple of reason or law, that will not allow 
 her testimony to be corroborated and sup- 
 ported on such grounds? The statute has 
 not interposed any such barrier. It speaks 
 not of credible witnesses generally, but of 
 three witnesses, against whose competency 
 
 there is no valid objection. When such are 
 produced, I apprehend the fact is to be made 
 out by the three; and that, from all the evi- 
 dence before the coiu-t, the question is, 
 whether each witness has testified txTily. 
 
 To illustrate the principle I have laid 
 down, I will suppose that Jones made his 
 will in the presence of two honorable mem- 
 bers of this court, whose testimony was 
 above all exception, and that Ellen Taylor 
 was also present, and no other person. 
 Would all this evidence be rejected, because 
 Ellen Taylor was discredited as to collateral 
 facts? Would not the result be, that thus 
 supported, she is to be believed; and, there- 
 fore, the will is well proved? Such are my 
 views on this point, and such would be my 
 conclusion, were it necessary to decide the 
 point. 
 
 I will now examine the assemblage of cir- 
 cumstances, evidently got up at the instiga- 
 tion of Devoy and his wife, influenced, as ap- 
 pears to me, by the consideration that as 
 they had been disappointed in obtaining a 
 will, to defeat Mrs. H. in her claim would 
 afford the only chance of reaping a portion 
 of the spoil; trusting to the gratitude of 
 Jones's relations, if he had any, or, in the 
 words of Devoy, "that he would leave that 
 to their own generosity." 
 
 The testimony remaining to be examined 
 is not immediately directed against the wit- 
 nesses, on whom the respondents rely; but 
 to render it improbable a will was made, by 
 proving the conduct and declarations of 
 Jones and Mrs. H., Patrick Devoy testified, 
 that he never said any thing to Jones about 
 making his will, nor did he mention that sub- 
 ject himself, nor did any person mention the 
 subject in his hearing; that Doctor Torbert 
 informed him (Devoy) tliat a will, must be 
 prepared, and submitted to Jones and his 
 clergyman, to be signed, if Jones liked it. 
 Devoy admits he said to Torbert, that a will, 
 dividing the property of the deceased equally 
 among his friends would be satisfactory; but 
 that he never gave Torbert any directions, 
 that he was to have a share of the property. 
 Here, then, we find Devoy active in procur- 
 ing a will, without ever having consulted 
 the testator, or, by his own account, ever 
 having received the least intimation that 
 Jones intended to give him any thing. This 
 alone places him in a suspicious point of 
 view. But Doctor Torbert contradicts him; 
 he says he went, at the request of Devoy, to 
 see if he could not make Jones's will; "tliat 
 the provisions thereof were made known to 
 him by Patrick Devoy;" and that "Devoy 
 was named as an heir or legatee in the will 
 he had written." That Mrs. H. did not feel 
 disposed to aid this man in seizing on his 
 prey, cannot be doubted; nor but that she 
 was justifiable in endeavoring to divert him 
 from his purpose by all lawful means. She 
 had much to apprehend from such a com- 
 bination. Her anxiety may have induced 
 her to say more than was consistent with 
 
 285 
 
Case Jfo. 71 
 
 PRINCE V. IIAZLETON. 
 
 (§§ 27. Gl 
 
 tratli. If she has dono so, it must bo re- 
 membered that she is not a witness in this 
 cause; the validity ot the will cannot de- 
 pend on her subsequent declarations, made 
 with a view to guard what she had obtained, 
 and prevent its being wrested from her. 
 Torbert inquires, whetlu'r Jones had made a 
 wiU; she answers no; that when the sub- 
 ject is mentioned, it puts liim crazy. As to 
 the first, she may have considered the an- 
 swer strictly true, as there was no written 
 will. It seems that Mrs. Newkirk, an un- 
 suspected witness, informed the surrogate, 
 that she knew nothing about a will, and in 
 explanation says, she had reference to a 
 written will. As to the latter, it will be 
 recollected, that this was the day preceding 
 .Toues's death; and no witness has testified 
 tliat the declaration was untrue at the time 
 it was made; she may have had reference 
 to his then state, which was but a few 
 hoiu's before his death. This may all be 
 true; for although Fleuiy conversed with 
 Jones about making a will, wlien he discov- 
 ered no particular agitation, that was sev- 
 eral days previous, and does not necessai-ily 
 contradict what Mrs. H. stated to Doctor 
 Torbert. Again, Devoy says, he and Mullen 
 remained with Jones, on the night of his 
 decease; that about midnight Jones called 
 him to his bedside, and directed Mrs. H. to 
 leave the room; that she went and sat down 
 by the foot of the bed; that he then inquired 
 whether she was gone; and being answered, 
 No, Jones then ordered her to leave the room, 
 and, after she had left it, directed Devoy to 
 put a ketch on the door, which he did; that 
 .Tones then inquired who was there; and be- 
 ing informed it was Mullen, he was satisfied. 
 That Jones then said, he would be removed 
 in the morning to Devoy's, that the bishop 
 should be brought, and he would settle his 
 affairs; that he ordered Devoy to ring the 
 bell, and get the keys from Jlrs. H., having 
 first inquired if he had his keys; that he 
 then began to talk of his property, com- 
 plained that Mrs. H. neglected him, carried 
 his liquor up stairs, and that she and an- 
 other woman got di-unk; and that, shortly 
 after, he expired. This story, on the face of 
 it, is incredible; if not, it evidently shows, 
 thiit Jones was deranged. It is so exti-ava- 
 gant and improbable as to discredit itself; 
 but it is refuted. Taber testifies, that he re- 
 mained with Jones on Sunday night, until 2 
 o'clock in the morning; that the man who 
 sat up with him (meaning Mullen) was 
 drunk; that he and Devoy drank freely of 
 spirituous liquor, and that Devoy was also af- 
 fected by the liquor he drank. He fiu'ther 
 testified, that he was awake all the time, 
 and did not hear Jones find any fault with 
 Mrs. Hazleton; that Mrs. H. went to bed 
 about one o'clock, at Taber's request. Even 
 Mullen does not countenance the statement- 
 he did not hear Jones say any thing about 
 removing to the house of Devoy. Sitting as 
 a juror, to decide dispassionately on facts I 
 280 
 
 should consider this story of Devoy an en- 
 tire fabrication; besides, if there is any one 
 fact clearly proved, it is, that Mrs. H. was a 
 kind, faithful and attentive nm'se, and it 
 was so admitted by Jones, repeatedly. On 
 Saturday evening, Taber says, Jones in- 
 formed him he had given Mrs. H. all his 
 property; that the conversation was loud, 
 and could be heard in every part of the room. 
 M'Donnell testifies, that Jones said, Mrs. H. 
 was a fine clever woman; to Mrs. Newkirk 
 he said, he had trnsted all, and his life, in 
 her hands. Edward Polleck says, that Mrs. 
 H. paid very strict and constant attention 
 to Jones during his illness; that Jones 
 seemed grateful for her services; that she 
 was one of the best nurses he had ever seen 
 or known, in her attentions to Jones. More 
 need not be said, to show that Devoy is en- 
 tirely miworthy of credit. 
 
 As to Doctor Torbert's testimony, I have 
 already remarlied on that part wliich seems 
 to have been intended to make against this 
 will. It has but a slight bearing on the 
 quei5tion in controversy, and might have 
 been withlield without injury to the appel- 
 lant, and Dr. Torbert thereby relieved from 
 the necessity of placing liimself before the 
 public in no enviable point of light. He 
 drew two wills; in his own words, "not lik- 
 ing the first, he drew the second," naming 
 himself as executor, and Devoy as heir. 
 
 I have already referred to part of the tes- 
 timony of Julia Devoy, her anxiety to send 
 for the bishop, and urging it upon Doctor 
 Arden, wliich is expressly denied by him. 
 
 Whether her statement, that Mrs. H. said 
 there was a wiU, and that she and her hus- 
 band were remembered in it, and requested 
 her to keep still, is true or false, the present 
 question cannot be affected by it. It is pos- 
 sible that Mrs. H. may have resorted to such 
 a device to check the intermeddling of De- 
 voy and wife; or, which is more probable, 
 that her words were not measured or studied 
 at this time, when her mind, without doubt, 
 was much agitated. She was a woman, and 
 alone; her husband not present to advise 
 with her; a large sum devised to her was in 
 jeopardy; the public admiuisti-ator was tak- 
 ing charge of the property; no legal adviser 
 was present. In such circumstances she may 
 have spoken unadvisedly and incoiTectly. 
 She saw the storm that was gathering, and 
 may have been indiscreet in the means used 
 to avert it. The witnesses who proved the 
 will cannot, on such grounds, be impeached; 
 nor are they responsible for any indiscre- 
 tions of Jlrs. H. 
 
 It is well established by the proof, that 
 Jones was not disposed to make a written 
 will. Fleury says, that three days before 
 Jones died, he pressed him to make a will, 
 as he was then very ill. Jones did not con- 
 sent, and observed, he did not feel sO' low as 
 to make a will then. To my mind, it ap- 
 pears evident, that he wished to evade the 
 urgent solicitation of Fleury. On. Sundiijr 
 
§§ 27. 61) 
 
 PRINCE V. HAZLETOX. 
 
 Case No. 71 
 
 evening, Fleury heard Jones obsorre to a 
 Spanish gentleman, in the Spanish language, 
 that he would not see him alive the next 
 morning. Jones -wsls of a sound mind. 
 Fleury, who had m-ged the necessity of a 
 will, and who had tendered his assistance, 
 was present. I think it must be presumed, 
 that he died satisfied with what had already 
 been done. There was no restraint upon 
 the testator; there is no proof that any 
 fraud or imposition was practiced on him. 
 If there has been a conspiracy, I have not 
 been able to discover it, after the most at- 
 tentive consideration. The suggestion that, 
 in the prospect of dissolution, this stranger, 
 in a foreign land, would fasten his affections 
 on the country that gave him birth, is both 
 natural and just. The picture so ably drawn 
 by the concluding counsel was not the crea- 
 ture of fancy, but the representation of real 
 life. In the language of an eminent states- 
 man, it may truly be said: "There exists 
 in every good man a virtuous principle of 
 preference for that country where he first 
 drew his breath; where he passed his child- 
 hood; where his mind first opened to the 
 endearing relationships of life, which noth- 
 ing but the hand of death can extinguish; 
 an amor patriae, which remains in spite of 
 rejection and persecutions; and which, even 
 amidst the conflict of the passions, produced 
 by a sense of injury, still secretly leads him 
 to his native country, as his resting-place." 
 I take for granted this principle was not ex- 
 tinguished in the mind of Jones; but his re- 
 turning sympathies for his relatives could 
 not be Indulged. He (iid not know that he 
 had a relation on earth. The ties that once 
 
 existed had long since been severed; this 
 was his belief. Thoro is no proof that his 
 wlU excluded a brother, a sister, or a parent. 
 In the wide range of selecting the person to 
 inherit his property, we have no conti'ol or 
 concern. I am entirely satisfied that the 
 wiU was fairly obtained; that it was made 
 to reward mentions services; that it was 
 dictated by partiality and preference for Mrs. 
 H., and, therefore, ought to be established. 
 
 I am of opinion, that the decree of the 
 com-t of probates ought to be afllrmed. 
 
 AUSTIN, CHILDS, FORWARD, HUNT- 
 INGTON, ROSEORANTZ, and VIBL-IE, 
 senators, concurred. 
 
 But the rest of the court concurring with 
 the chancellor, that the decree ought to be 
 reversed, it was "ordered, adjudged and de- 
 creed, that the decree of the court of pro- 
 bates, appealed from in this cause, be, in all 
 things, reversed; and it is fm-ther ordered, 
 adjudged and decreed, that the letters of ad- 
 ministration of the goods, chattels and cred- 
 its, which were of William Jones, late of tlie 
 city of New- York, deceased, be granted and 
 issued by the surrogate of the city and coun 
 ty of New- York, according to law, as in cases 
 of intestates; and that the record be re- 
 mitted to the court of probates. 
 
 Decree of revei-sal. 
 
 NOTE. The view that the will should be 
 made in extremis is held in Scaife v.. Emmons, 
 84 Ga. G19, 10 S. E. 1097. Contra, Harrington 
 v. Stees, 82 111. 50. (Mr. Justice Breese dis- 
 sents from the view of the court that the will 
 need not be made in extremis.) 
 
 287 
 
Case No. 72 
 
 BENNETT B. JACKSON. 
 
 (§§ 58. 62 
 
 BENNETT v. JACKSON. 
 (2 Phillim. Bcc. 190.) 
 
 Prerogative Court of Canterbury. 1814. 
 Mrs. Susannali Jackson, of the city of 
 Bath, died a widow, on the 10th of May, 
 1813, leaving ten children: on the 29th of 
 April, preceding her death, being in her 
 dwelling-house at Bath, and in her last 
 sickness, she summoned several of her chil- 
 dren, and the daughter of the person with 
 whom she lodged, to her bedside, and de- 
 clared herself to the following effect: 
 
 "Joseph Henry Bennett, your brother, is 
 \ny heir, and all that I have is his. Tell 
 him to pay all my debts; give my love to 
 him, and tell him to take me home, and by 
 no means to leave me here; tell him to be 
 a father to you children. I know he will 
 for my sake; I know the goodness of his 
 heart; he will be a kind father to you. 
 Edward, my wish is that you should fol- 
 low the profession I have chosen for you; 
 and let no one persuade you from it. With 
 respect to you three girls, if George and 
 Keller send for you, you must go; but never 
 do anything without consulting your brother 
 Joseph, not even the smallest thing." 
 
 These words were reduced into writing 
 on the 13th of July following and attest- 
 ed by three of the persons present at the 
 time they were uttered; and were now 
 propounded by Joseph Henry Bennett, the 
 eldest son, as a nuncupative will. 
 
 Decrees were taken out against the other 
 children, to show cause why a probate 
 of the aforesaid will nuncupative should 
 not be granted to him as a sole executor 
 named therein according to the tenor there- 
 of. The process of the court was served 
 on all of them; but no appearance was given 
 for either of them. 
 
 Judgment. 
 
 SIR JOHN NICHOLL. Probate is called 
 for of a nuncupative will; minors are con- 
 cerned.— In cases of this description, the 
 statute enjoins several requisites; the prin- 
 cipal one is the rogatio testium, the calling 
 upon persons to bear witness to the act; 
 my doubt is, whether there is sufficient 
 evidence here to Uiis point: the words of 
 the statute 29 Car, II. c. 3, § 19, have 
 always been strictly construed; it was so 
 held in Parsons v. Miller, 2 Phillim. Ecc. 
 230. 
 
 In that case, Prerog. H. T. 1797, a paper 
 was propounded as nuncupative; the credit 
 of the witnesses was unshaken: but the 
 288 
 
 court thought the words addressed to the 
 witnesses did not in effect desire them to 
 bear witness. The deceased himself is re- 
 quired by the statute to bid the persons pres- 
 ent bear witness. 
 
 In Darnbrook v. Silverside, Prerog. 1767, 
 it approached very near a rogatio testium; 
 but it was said by the counsel in that case, 
 that Sir George Lee had rejected an alle- 
 gation on similar grounds. 
 
 Now, in the present case, at the begin- 
 ning of the transaction, there was clearly 
 no rogatio testium: the statement is, "that 
 the deceased having called Anne Jackson 
 and Elizabeth Warren Jackson (a minor) 
 her daughters, to her bedside, and spoke 
 to them of the disposition of her effects; 
 and Edward Bennett Jackson, her son, 
 being sent for, to be also present to hear his 
 mother's declaration; and her said three 
 children being all present, and at her bed- 
 side, she the said Susannah Jackson, did, 
 in the presence of us, whose names are sub- 
 scribed (the three attesting witnesses) and 
 of the said Elizabeth Warren Jackson, de- 
 clare and direct, &c." 
 
 This is the statement; and neitlier in this 
 nor in the words spoken is there any thing 
 to show the animus testandi. 
 
 There is no declaration that the words 
 were spoken with the intention of making 
 a will at the time: which the statute par- 
 ticularly requires. The affidavit goes on to 
 state that Susannah Jackson, "after making 
 the declaration aforesaid, observed that it 
 should be committed to writing; but after- 
 wards said, that the deponent's hearing it 
 would answer the same purpose; and, last- 
 ly, these deponents make oath and say, 
 that the deponent, Ruth Sidewell, having 
 afterwards left the bedroom of the said de- 
 ceased, for a short space of time, unper- 
 ceived by her; the deceased, who had no- 
 ticed the retiu-n of the said Ruth Sidewell, 
 said, 'Mrs. Sidewell, why did you leave the 
 room; I wished you to witness all I had to 
 say to my children.' " 
 
 I have considerable difficulties in holding 
 this to be a sufficient compliance with the 
 statute. It does not appear that the words 
 were spoken animo testandi; there is no 
 rogatio testium at the beginning, no dec- 
 laration that the words were spoken with 
 the intent of making a will at the time. 
 The words of the statute are very strong, 
 and must be held strictly. 
 
 Allegation rejected. 
 
 NOTE. See Baker v. Dodson, 4 Humph. 342. 
 
63) 
 
 TAYLOE'S APPEAL. 
 
 Case Xo. 73 
 
 TATLOK'S APPEAL. 
 
 (47 Pa. St. 31.) 
 
 Svipreme Court of Pennsylvania. March 21, 
 1864. 
 
 Appeal from the register's court of Phila- 
 delphia. 
 
 Appeal by Anna Taylor, widow of George 
 Williams Taylor, deceased, from the decision 
 of the register's court, reversing the decree 
 of the register, by which an alleged nuncupa- 
 tive wiU of deceased was admitted to pro- 
 bate. 
 
 James H. Peacock testified that he "did 
 not reduce the substance of this will to 
 writing at the time. Two days after his 
 death I wrote a letter to Mr. Alexander Jen- 
 don, who was a friend of Mr. Taylor's, ac- 
 quainting him of his death, and the disposi- 
 tion of his property. That letter is either 
 mislaid or destroyed; it was sent. I also 
 wrote a part of a letter to Mr. William Sea- 
 ton, New York, but was interrupted dm-ing 
 the time that I was writing, and it was 
 neither finished nor sent. That portion of 
 the letter I found among some papers that 1 
 had taken from this city to Bath, Long Is- 
 land. (Letter shown witness.) That is the 
 letter of which I speak. (Letter marked 'A,' 
 and hereto annexed.)" 
 
 Exhibit A: "Philadelphia, 11th March, 
 1859. Mr. William Sea ton,— Dear Sir: The 
 •cause of my staying in this city is now over. 
 My friend, George W. Taylor, is dead. He 
 died the day before yesterday, about 12 
 o'clock, leaving his property to his wife, there 
 being no children. I must confess I was 
 somewhat surprised at the violence of the 
 grief displayed by Mrs. Taylor, as he had 
 been a very indifferent husband to her; but 
 there is no accounting for the actions of the 
 human heart, and no doubt she was sincere." 
 
 But the appeal of Mrs. Lydia Taylor was 
 sustained, and the decree of the late register 
 reversed; which was the error assigned. 
 
 H. R. Warriner, for appellant. 
 Junkin, Jr., for appellee. 
 
 George 
 
 THOMPSON, J. This is an attt>mpt to set 
 tip an alleged nuncupative last will of George 
 Williams Taylor, late of this city, deceased. 
 After his death, in 1859, administration on 
 his estate, at the request of his widow, was 
 granted to Passmoi'e Williamson, Esq., who 
 settled up the same, and filed his acccpunt. 
 Then the widow, nearly two years after her 
 
 ABB. WILLS — 19 
 
 husband's death, essayed to establish a nim- 
 oupative will, under which she would be the 
 sole legatee of his property. The registpr 
 certified the will as proved; but on appeal 
 to the register's court, the decree of the reg- 
 ister wfis overruled, and this appeal taken. 
 
 Wills of this description are not favorites 
 of the law, and are only allowed in the ex- 
 tremity of the testator's last sickness, and 
 when it has been so sudden, unexpected, and 
 violent as to prevent him from putting his 
 testamentary wishes into writing. WcrU- 
 heiser v. Werkheiser, G Watts & S. 188. All 
 the requisites of the law for the establish- 
 ment of such wills must be strictly complied 
 with. In re Yarnall, 4 Rawlo, 46. One of 
 them is, that the testimony, or the sub- 
 stance thereof, must be committed to writing 
 within six days after the making of such 
 will. Neither the words nor the substance 
 of them, as used by the alleged testator, 
 were ever committed to writing in this case 
 as proof of a bequest, or to be preserved as 
 such by any one. The letter written by Mr. 
 Peacock to Mr. Jendon did not purport to do 
 more than to inform the latter of Taylor's 
 death, and in a general way of the disposi- 
 tion of his property; but how, or in what 
 manner, was not stated. Nor was even that 
 letter produced, or shown to have been lost 
 or destroyed. The same thing must be said 
 of the fragment of an unsigned letter writ- 
 ten by the same witness two days after Tay- 
 lor's death. It contains nothing of what the 
 statute requires. It sets forth no words of 
 a testamentary kind to show the animus tes- 
 tandi, nor the disposition of his property. 
 It is only the assertion of the writer, that he 
 left his property to his wife. This is the 
 writer's will, not the testator's. The law re- 
 quires the words of the testator, or their sul)- 
 stance, so that from them the testamentary 
 disposition may appear. So, in committing 
 to writing a nuncupative will, other facts 
 should be stated in addition to the testa- 
 mentary words, or their substance; such as 
 his request to the bystander to bear witness 
 that the words used are his will. Nothing 
 of this was done. The proof was therefore 
 entirely insufficient, and the register's court 
 were right in overruling the probate by the 
 register. 
 
 Decree of the register's court affirmed, at 
 the cQSts of the appellant 
 
 AGXKW, J., was absent at nisi prius when 
 this case was argued. 
 
 289 
 
Case Mo. 74 
 
 IIASTILOW V. STOBIE. 
 
 (§ 65^ 
 
 HASTILOW V. STOBIE. 
 
 (L. R. 1 Prob. & Div. (i-t.) 
 
 Court of Probate. Dec. 12, 1865. 
 
 The plaintiff, in this case, propounded In 
 a declaration the will of Vincent PhiUips, 
 deceased, dated tlie 10th of February, 1863, 
 as the sole executor thereof. 
 
 The defendant, as the sole executor of a 
 prior will, in answer to the declaration 
 pleaded— 1. Undue execution; 2. Incapacity 
 of the deceased at the time of execution; 
 3. That the deceased, at the time he signed 
 the said pretended will, did not know and 
 approve of the contents thereof; 4. That the 
 execution of the said will was procured by 
 the undue influence of the plaintiff and two 
 other persons named. 
 
 Demurrer to the third plea— That it was 
 bad in substance, on the ground that a will 
 may be valid, although the testator did not 
 iinow and approve the contents thereof — 
 Joinder in demurrer. 
 
 Dr. Spinks in support of the demurrer. 
 Dr. Wambey, for defendant. 
 
 SIR J. P. WILDE. The defendant has 
 pleaded to a declaration on a will that the 
 deceased did not "know and approve of the 
 contents thereof;" and the question is, 
 whether this plea is bad, not in form, but 
 in substance. The main ground taken 
 against it was indicated by Sir Cresswell 
 Cresswell in the two cases which have been 
 cited, where he is reported to have said, as 
 an abstract proposition, that a man might 
 make a good will without knowing any- 
 thing of its contents. But he never had oc- 
 casion to expressly decide this point. This 
 proposition is certainly rather a startling 
 one, because it conflicts with the natural and 
 popular idea of the nature of a wiU; and it 
 is at variance, besides, with the universal 
 practice of mankind in such matters. For, 
 however much men have been in the habit 
 of yielding to the pressure and opinions of 
 others in disposing of their property, I sup- 
 pose no case ever yet to have occurred in 
 which a man in possession of his full facul- 
 ties handed over the making of Jiis will to 
 another, and was content to execute it with- 
 out so much as the curiosity even to know 
 what it contained. But still the question re- 
 mains whether a will so made, if duly exe- 
 cuted, would be good in law; and I am con- 
 strained to come to the conclusion that it 
 would not. It might be enough to say that, 
 as the books abound with discussions as to the 
 testator's intentions and state of knowledge, 
 all based upon the foundation that a will is 
 the act of a man's own intelligence and voli- 
 tion, the bm-then of showing by autliority 
 that such a will as is now in question would 
 be valid lies upon those who assert it, and 
 that no text writer, modern or ancient— no 
 judgment of any trilnmal, hei'e or elsewhere 
 —and no dictum evon, save the two to which 
 290 
 
 I have referred, has been adduced in its sup- 
 port. It Is extremely diflicult in such a case 
 to prove the negative; and the more com- 
 pletely such a motion is novel and out of 
 question in our law, the less likelihood there 
 is of meeting with a case against it. But 
 there are considerations drawn from the uu^ 
 doubted law which go a long way to refute 
 it. First, there Is the practice of this court. 
 Rule 71, which provides that in the case- 
 of blind and illiterate persons the registrar 
 must be satisfled that the testator "had! 
 knowledge of its contents." Then there is- 
 the definition of a will, to be found in Swin- 
 burne, and adopted by Mr. Justice WilUams 
 in his book on Executors: "Testamentum 
 est voluntatis nostrae justa sententia de eo 
 quod quis post mortem suam fieri velit."' 
 Also the etymology of the word testament, 
 to be found in the second book of Just. Insti- 
 tutes, c. 10: "Testamentum ex eo appel- 
 latur quod testatio mentis sit." There is 
 also the passage cited in argument from 
 Swinburne, pt. 1, § 3: "Wherefore if the 
 testator should refer his will to the will of 
 another, as if he should say, 'I give thee 
 leave and authority to make my will, and to 
 make executor for me who thou wilt,' ete. 
 If hereupon thou didst make a will in his 
 name, and didst name an executor for him, 
 yet this wiU would be void in law. For as 
 thy soul is not my soul, so thy will is not 
 my will, nor thy testament my testament."" 
 There are also certain consequences which 
 must follow from holding such a will good; 
 and the most Important of these Is, that it 
 would no longer be necessary to show that 
 a testator was, in the old language of the 
 law, of "sound mind, memory, and under- 
 standing." These words have been time 
 out of mind held to mean sound disposing 
 mind, and to import sutScient capacity to 
 deal with and appreciate the various dis- 
 positions of property to which the testator 
 was about to afiix his signature. But if 
 the mental act of disposing can be delegated 
 to another, and a blind confidence in his 
 dispositions all that is required in a testator, 
 the "sound disposing mind" Is a needless 
 requisition. Nor would it be easy to acquit 
 the law of an absurdity, in requiring of a 
 testator a capacity to understand an insti-u- 
 ment, the contents of which it did not re- 
 quire him to know. Considerations of a 
 similar character will be found to arise in 
 applying tlie functions of a court of con- 
 struction to such a will as that In question, 
 but it is needless to pursue them. Assum- 
 ing, then, that It is necessary that a testator 
 should know the contents of his will. It can- 
 not be doubted that he must also approve 
 them. It was suggested that the word "as- 
 sent" would be more proper. But the word" 
 "approve" will be found, passim, in the judg- 
 ments of the prerogative court and tlie privy 
 coimcil, and it is best to adhere to known' 
 terms. No doubt the testator's approval is,. 
 
§65) 
 
 HASTILOW V. STOBIE. 
 
 Case Ko. 74 
 
 but for some special circumstances attending 
 the execution of the will, to be conclusively 
 drawn from the fact of his signature, if 
 duly attested according to law. I say "at- 
 tending the execution" advisedly; for if the 
 execution, with full testamentary Intention 
 and knowledge, is unimpeached, no inquiry 
 into his approval from the other sources is 
 permissible. But such circumstances may, 
 and do arise; and there is a whole class of 
 cases, of which Butlln v. Barry,' is the chief, 
 in which wills have been set aside on the 
 
 •1 Curt. Ecc. 614; 6 Moore, P. C. 480. 
 
 express ground that the testator did not 
 know and approve of the contents of the 
 instrument at the time when he executed 
 it. T hold, therefore, this plea to be good 
 In law. 
 
 The other matters m-ged in argument are 
 proper for discussion only on an application 
 to the court to disallow the plea, on account 
 of its generality and tendency to embarrass 
 the plaJntifC. And I hope shortly to devise 
 some general rules which will make any 
 such applications in each particular case 
 unnecessary. 
 
 Costs to be costs in the cause. 
 
 201 
 
Case No. 75 
 
 ADAMS V. FIELD. 
 
 (§6G 
 
 ADAMS y. FIELD. 
 
 (21 Vt. 256.) 
 
 Supreme Court of Vermont. Feb. Term, 1849.' 
 
 This is an appeal from a decree ol the 
 probate court of the district of Fairhaven, 
 which approved and allowed an instru- 
 ment in writing presented as the last will 
 and testament of Samuel Adaips, deceased. 
 It was objected by the appellant (1) that 
 said instrument was not signed by said 
 Samuel Adams, nor by any other person 
 in his presence, and with his express di- 
 rection ; (2) that it was not subscribed by 
 three credible witnesses in the presence of 
 said Samuel Adams and of each other; and 
 (3) that it was not the last will and testa- 
 ment of said Samuel Adams. The instru- 
 ment commenced: "I, Samuel Adams, of 
 Westhaven, * * * do hereby make this, 
 my last will and testament;" and con- 
 cluded as follows: "In testimony whereof 
 I have hereunto set my hand and seal, 
 and publish and declare this to be my last 
 will and testament, this 12th day of Sep- 
 tember, in the year of our Lord eighteen 
 hundred and thirty-seven. Signed, sealed, 
 published, and declared by the said Sam- 
 uel Adams, as hislast will and testament, in 
 presence of us, who have hereunto sub- 
 scribed our names as wicne.sses thereof, at 
 the request and in the presence of the tes- 
 tator, and in the pre.sence of each other. 
 [Seal.]" This last clause purported to be 
 signed by three witnesses; but the name 
 of Samuel Adams did not appear in any 
 place upon the instrument, except in the 
 firNt clause of tlie will, and in the attesting 
 clause, as aboveshctwn. Thecase was tried 
 before a jury, and evidence was received 
 which tended to prove that the will, 
 though written at different times, was 
 whoU.v in the testator's handwriting, 
 and that it was subscribed by the three 
 attesting witnesses in the presence of the 
 testator and of each other, and at his re- 
 quest, he declaring it at the time to be his 
 will. The judge instructed the jury that 
 the writing by Samuel Adams of his name 
 in the attestation clause 'was a suffi- 
 cient and legal signing under the statute 
 ol the state; also that it was not neces- 
 sary that the writing of his name in the 
 beginning of the instrument should have 
 been one simultaneous act with the writ- 
 ing by him of the whole instrument, in 
 order to constitute the same a legal or 
 sufficient signing, nor was it necessary 
 that the whole actor intended instrument 
 should have been in his contemplation 
 when he so wrote his name; and that, even 
 ■if the different parts of the instrument 
 were written at different times, yet if the 
 jury should find that tlie instrument com- 
 n7enced in his name, and was wholly writ- 
 ten by him, and that, after it was com- 
 
 'The Vermont statute, at the date of this de- 
 cision, read as follows: "No will, except such 
 nuncupative wills as are hereinafter mentioned 
 shall be effectual to pass any estate, real or per- 
 sonal, nor to charge or in any way affect the 
 .same, unless it be in writing and signed by the 
 testator, or by some person in his presence and 
 by his express direction, and attested and sub- 
 scribed by three or more credible witnesses in 
 the presence of the testator and of each other » 
 292 
 
 pleted, he produced the same to the three 
 witnesses, and declared it to be his will in 
 their presence, and requested them to wit- 
 ness it as his will, and that they subscribed 
 their names to tlie instrument in his pres- 
 ence, and in the presence of each othei-, as 
 witnesses to his last will, the jury should 
 also find that the instrument was sufii- 
 ciently signed and executed hy him as a 
 will. The jury found that the instru- 
 ment was signed by Samuel Adams, and 
 that it was attested and subscribed agree- 
 ably to the statute, and is the last will 
 and testament of said Samuel Adams, de- 
 ceased. Exceptions by appellant. 
 
 L. C. KelloHH antJ E. N. Brig-ffs, for ap- 
 pellant. R. Pierpoint and I. T. Wriffht,for 
 appellee. 
 
 Bennett, J. [That part of the opin- 
 ion as to evidence of handwriting is 
 omitted.] The remaining questions arise 
 under the charge of the court; and the 
 first is, what will satisf.y the statutory re- 
 quirement of signing? Was the name of 
 this testator in the beginning of the will 
 a sufficient signing to satisfy the statute? 
 In the case of Lemayne v. Stahley, 3 Lev. 
 1, the will was in the handwriting of the 
 testator, and such a signing was held suffi- 
 cient, within the statute of 29 Car. II., 
 which required all wills of land to be 
 signed. In that case, as in this, the will 
 commenced, "I, .lohn Stanley, make," 
 etc. After iliat decision the law was re- 
 garded as settled in England; and the 
 case of Lemayne v. Stanley has not only 
 since been followed in that country, but 
 also in our sister states which have, by 
 legislative enactment, adopted the statute 
 of Car. II. The rule was so effectually es- 
 tablished that courts of justice, though 
 repeatedly solicited, could not be induced 
 to break in upon it. In England they 
 have found that a statute was necessary to 
 change the law in this particular; and in 
 the reign of the present queen one has 
 been passed requiring a will to be signed 
 at its foot. The same ha's been done by 
 some of our neighboring states. It was 
 said in England, and the same has been 
 said in the argument of this cause, that 
 the case of Lemayne v. Stanley was an 
 evasion of the statute, and opened a door 
 for the perpetration of frauds, and was 
 so nonsensical that it ought not to be fol- 
 lowed. If that decision had the effect to 
 open a door for the commission of frauds, 
 this certainly is a cogent reason why it 
 should not have been made in the first 
 place, or since followed. But I am not 
 aware that such has been itseffect. Where 
 the whole will is in the handwritingof the 
 testator, and is attested by three wit- 
 nesses in the presence of the testator, and 
 published by him as his last will, in their 
 presence, it is difficult for me to see how 
 the fact that the signing at the top of the 
 will is held a sufficient signing can open a 
 door to fraud. IL must he shown thaj 
 the will posse sses fin alit y beforei it' can ^ 
 opera tiYeT~ancr, to gTve itlIiIi"Qua'litv: the 
 t estator must, a t least, at t he tinaYexecii . 
 tj on ot th e wnTra T16pt th<i " ^■■itirTi", "Mlli" 
 n Fme, a t tllB bfgiriniiig of the will, as a 
 slgntirgTa iilL so intend it . 1 think in New 
 "iorK tney l)a\''e, or have had, a statute 
 which requires a will to be subscribed by 
 
§ 66) 
 
 ADAMS c. FIELD. 
 
 Case No. 75 
 
 the testator; and this, their courts have 
 said, renuires a will to be signed at the 
 foot. This was doubtless according to 
 the etymology of the word "Rubscribed ;" 
 though. If 1 mistake not, the supreme 
 court of that state held that the introduc- 
 tion of the word "subscribe" in their stat- 
 ute, instead of "sign," should not change 
 the construction from that which had been 
 given to the statute of Car. II. ; but the 
 court of errors thought otherwise. The 
 etymology of the word "sign" does not 
 neces.sarily require the signing to be at the 
 bottom of the instrument, and it is much 
 a matter of taste as to the place of sign- 
 ing. If the question were ;'es inteftra, we 
 might think the bottom of the will was 
 the place where the statute intended it 
 should be signed by tlie testator; but to 
 me it seems rather immaterial in which 
 place the will is signed, provided it is 
 shown to have the necessary authenticity. 
 The law, as establistied in the case of 
 Stanley's Will, has become a rule of proper- 
 ty, and stare decisis seems wisest to me. 
 When our statute of wills was enacted, 
 the statute of Car. II. had received a long, 
 lixpd, and well-known construction; and 
 when we adopt an finglish statute we take 
 it with the construction which it had re- 
 ceived, and this upon theground that such 
 was the implied intention of the legisla- 
 ture. We think the case of Ijemayne v. 
 Stanley should be binding upon this court. 
 To impugn or overthrow it would be to 
 impugn or overthrow a rule of property 
 which has long been settled and acted up- 
 on. This should never be done unless up- 
 on the most urgent necessity. The case of 
 Lemayne v. Stanley does not stand alone. 
 In Knight v. Crockford, 1 Ksp 190, it was 
 held that where a writing began, "I, A. 
 B., agree," etc., it was a sufficient signing, 
 within the statute of frauds; and tliere 
 are other cases to the like effect, which, in 
 principle, are like the case of Lemayne v. 
 Stanley. See 1 Jarm. Wills, 70. 
 
 The counsel for the appellant seem con- 
 strained to admit, in substance, that the 
 signing of a will at the beginning may, if 
 so designed, be a suflScient signing, within 
 the statute of Car. II. ; itJttfel^JiiSiSi 
 t hat, in thfi case before us. theTestatorin- 
 t ended to sign this will at thp foot, and 
 t hat consequently the will was incomplete ' 
 nnd wantin s?~f1h fanaiity until it was sg 
 aijenen: — ITHink It IS hardly possible not 
 tosSS" that, atthe time the testator in- 
 serted his name at the beginning of the 
 will, a further signing of it was in con- 
 templation before it sliould have authen- 
 ticity; and if the jury have not, by their 
 verdict, found the will to be complete and 
 finished at the time of its publication.it 
 should not have been established. In the 
 treatise Modern Probate of Wills (page 
 154) the writer says: "Although the tes- 
 tator may have commenced his will thus, 
 'I, A. B., make,' etc., with an intent of re- 
 peating his signature at the end of the 
 will, yet if he subsequently acknowledge 
 the instrument as his will to the attesting 
 witnesses, without allusion to the signa- 
 ture we presume that the will was suffi- 
 ciently signed." In 1 J arm an on "Wills 
 (page 70) it is said: "Jf.theJ:eHtatpr_con: 
 te niDlated a further signature, which jig 
 iie^er made, the will must ue regaraed as 
 
 nnsi ffTifid : " and BO, doubtless, are the au- 
 thorities, as well as the reason of the 
 thing. But he well remarks that the rea- 
 soning seems only to apply where the in- 
 tention of repeating the signature re- 
 mained unchanged to the last; for a 
 u amt», ori ginall y written with such design , 
 miiyht altamiards be adopted py a cest a- 
 tiiJUia_JJiij-_Qiial.signature;irna SU'ch, the 
 writer says, " v^MjuTcTpiobably be the pre- 
 sumed intention, if the testator acknowl- 
 edged the instrument as his will to the at- 
 testing witnesses, without alluding to 
 anyfnrtlier act of signing." We think this 
 is a sound view of the subject. If the , 
 will, as the jury must have found in this 
 case, was attested by thi-ee witnesses in 
 the presence of tlie testator, and in pres- 1 
 ence of one another, and published by tlie , 
 testator in their presence as his last will/ 
 and testament, it was to all intents and* 
 purposes an adoption of such a signatured 
 as was then affixed to the will; and it the ' 
 will ther^ had siiph fi^RjjB^nanm» aaj-tni.lrl hR , 
 held_su|aiUent_u7Jdef'tl^~Ttgjit^^ 
 furJJieiLjtieed~BBn3oDe. The will then be- 
 comes corirtrt«lT7~tra'd possesses all the 
 finality which can be required. It is the 
 same thing, in effect, as if the signature 
 had been originally made aniino sig-nandi. 
 The case of Hubert v. Treherne, 42 E. C. 
 L. 388, is regarded by the appellant's coun- 
 sel as a leading case to show that this 
 will was incomplete. The names of the 
 parties to the agreement were stated in 
 the beginning of the articles; and it con- 
 cluded, "as Avitness our hands," but no 
 signatures followed. The court, it is true, 
 held that this agreement was not signed, 
 within the statute of frauds, for the rea- 
 son that the words, "as witness our 
 hands, " imported that a further signing 
 was intended. I fully accord with this 
 decision; but it should be remembered 
 that there was nothing in that case to 
 show an adoption of the signatures in 
 the commencement of the articles as the 
 final signatures. Tindal, C. .1., says: 
 "Tliere was no sufficient original signing, 
 and no subsequent recognition." Colt- 
 man, J., remarks that "there was no suffi- 
 cient autliority to give out the copy in be- 
 half of the party to be charged with the 
 agreament;" and Erskine, J., says he is 
 "not prepared to say that, if the articles 
 had been delivered by any proper au- 
 thority, the signing would not have been 
 sufficient." Had the case shown a sub- 
 sequent recognition of the articles, I can 
 have but little doubt the decision would 
 have been different. The cases of Sauuder- 
 Bon V. Jackson, 2 Bos. & P. 2ais, and 
 Schneider v. Norris, 2 Maule & S. 286, rest 
 upon the ground of a subsequent recogni- 
 tion. Though the case of Johnson v. 
 Dodgson, 2 Mees. & W. 659, is much re- 
 lied upon by the appellant, yet it recog- 
 nizps all the principles necessary to sus- 
 tain the charge of the county court. Lord 
 Abingbr remarks that the cases have de- 
 cided that, although the signing be in the 
 beginning or middle of the instrument, 
 yet it is as binding as if it were at the 
 foot; the question being always open to 
 the jury whether the party, not having 
 signed it regularly at the foot, meant to 
 be bound by it as it stood, or whether it 
 was left so unsigned because lie refused 
 
 293 
 
Case Xo. 75 
 
 ADAMS V. FIELD. 
 
 (§ 66 
 
 to complete it. This principle we apply 
 to the case before us. Thejj]rj:Jia*e-#o-»nd 
 that the testator produced the will In 
 question to the witnesses, and declared it 
 to be his will, and requested thein to wit- 
 ness it as his will. This shows that the 
 testator did not then contemplate a fur- 
 ther signing of the will, and is, in effect, a 
 finding by the jury tliat the testatijr 
 adopted the instrument as it was then 
 signed as his will ; and, if so, then the 
 signing was sufficient to satisfy the claims 
 of the statute. It might, perhaps, have 
 been urged with some propriety that, 
 though this will contains the usual ad tes- 
 tlmomnm clause, yet that, upon its face, it 
 furnishes no evidence from that circum- 
 stance that a further signing was intended 
 at the time the testator drew up his will. 
 This clause is written on the original will, 
 it appears, so close to the seal that there 
 is no rcom for his signature opposite to 
 the seal, or very near to it; but, as the 
 case was not put to the jury upon any 
 such ground, it is not necessary to con- 
 sider it. The case is right, going upon the 
 ground that the iid testimonium clause to 
 this will furnished evidence prima, facie 
 that at the time it was written a further 
 signing was in the mind of the testator. 
 The case of Waller v. Waller, 1 Grat. 454, 
 has been pi-essed upon us; but we cannot 
 accede to the doctrine of that case. Itis 
 tliere Raid....Hxat_Uie flnahty of the tesTa- 
 n ientarv iiLteDtgaft|£Ibe"ascer1:ained~fTOTn 
 tUfiJace of the4ia4ie£j_aiVd~lhat7to?onsti- 
 tlUifi^-a-»«ffi*w<ii-siiginHCHndPr "Their stat- 
 
 qtp, 1t-.Ln4iat.-frftpttn.r frf^m thp frame of the 
 
 i nBtrumen t-And-iman-atS-iace. 'that Jhe 
 signing_ffiaaJaton<lfid^to give it authen- 
 
 ti£iixaJs-a-ai&n aturcaiiif t h at ilr wascoin- 
 plete witha ti-t-an.y .luttkev sig nature,. and 
 tl3at_Ui£u=.E a per itself must show all this. 
 We think that, unless there is something 
 peculiar in the statute of that state, this 
 case is unsound, and stands opposed to 
 the whole current of decision under the 
 statute of Car. II. The case of Sarah 
 Miles' Will, 4 Dana, 1, which the appellant 
 has referred the court to, contains the 
 sound doctrine on this subject. Her will 
 was drawn by a neiglibor, at her request, 
 and under her dictation, and commenced 
 thus, "In the name of God, I.Sarah Miles," 
 etc., and concluded with the usual ad tes- 
 timoDium clause. It was read to and ap- 
 proved by her, but not then signed or at- 
 tested. After this she acknowledged the 
 paper as her will, in the presence of the 
 wilnesses, who attested it in her presence 
 and at her request; she being at that 
 time unable to write. The principle 
 adopted by the court was that though 
 her name in the beginning of her will was 
 not intended, when written, to be her 
 signature, yet, as it was so designed at 
 294 
 
 the time of the publication, and there was 
 then no intention on her part further to 
 sign her will, it was a sufficient signing 
 within their statute, which was a copy of 
 the English statute. This is in accord- 
 ance with the English cases. 
 
 It has been argued that the writing of 
 the testator's name in the beginning of 
 the will could not be an act recognizing 
 the whole substance of the instrument, 
 unless the whole fiictiiin was simultaneous 
 with it, and was also in the contempla- 
 tion of the testator at the time he wrote 
 his name. It may he true that when the 
 signing of thename in the beginning of the 
 will is, in and of itself, to be taken as a 
 signing of the will within the statute, 
 without anj' sulisequent recognition, it 
 must appear that the testator had the 
 whole object of the instrument in pros- 
 pect when he wrote his name, and that 
 the instrument must be completed by one 
 simultaneous act; yet, suppose it to be 
 so, it cannot apply to a case like this. 
 Here the sif;nature did not become a suffi- 
 cient signature, within the statute, until 
 it was adopted as such at the time of the 
 Iiublication of the will; and then the 
 whole subject-matter of the will was in 
 the mind of the testator, and the will 
 was completed by one simultaneous act. 
 Since the cases of Ellis v. Smith, 1 Ves. Jr. 
 11, and Carleton v. Griffin, 1 Burrows, 5-ii), 
 the law has been settled that the testa- 
 tor need not in fact sign the will in the 
 presence of the attesting witnesses; and 
 it is there held, if the will be so signed 
 that it can in any event satisfy the stat- 
 ute, and the testator declare it to be his 
 will before three witnesses, that this is 
 equivalent to signing it before them, and 
 satisfies the statute. This case has been 
 very fully examined by the counsel, and 
 every consideration has been urged that 
 could bear upon the question before us; 
 and we may well admire the learning and 
 ability which have been displayed in the 
 argument, yet we do not feel at liberty to 
 depart from well-established landmarks. 
 The statute of (,'ar. II. had received a set- 
 tled construction when our statute was 
 passed, and we must regard that con- 
 struction as binding upon us. If we 
 should change a rule of property, because 
 we might think that the more obvious 
 and popnlar meaning of the word "sign" 
 might import a signing of the instrument 
 only at its foot, we should, in my opinion, 
 be far from duty. 
 
 The result is, the judgment of the coun- 
 ty court is affirmed. 
 
 NOTE. Whether affixing a seal alone is a 
 .sufficient signature, see Ellis v. Smith, 1 Ves. 
 Jr. 11; Smith v. Evans, 1 Wils. 313; Lemayne 
 T. Stanley, 3 Lev. 1. 
 
f § 3:3, 65, 66, 68, 108) 
 
 KOBIXSON V. BRIiWSTER. 
 
 Case No. 76 
 
 ROBINSON et al. v. BREWSTER et al. 
 
 (30 N. E. 683, 140 111. 649.) 
 Supreme Court of Illinois. March 20, 1892. 
 
 Error to circuit court, Macon county; 
 «. P. Vail, Jurlne. 
 
 Bill by .Tosepli Robinson and Margaret 
 McRoberts, children of Joseph Robinson, 
 deceased, against Elisra J. Brewster and 
 •ChristoDher C. Robinson, also children of 
 said (leceaseil, and Casper Ellwuod, ad- 
 ministrator, to set aside the will of said 
 Joseph Robinson. Christopher C. Robin- 
 son was defaulted for failure to answer, 
 and a decree entered, in accordance with 
 a verdict, sustaining the will. Complain- 
 ants bring error. Affirmed. 
 
 This is a bill tiled in the circuit court 
 of Macon count.y on April 4, 1890, by 
 Joseph C. Robinson and Margaret Mc- 
 Roberts, children of Joseph Robinson, 
 deceased, against Eliza J. Brewster and 
 •Christopher C. Robinson, also children of 
 said deceased, and Casi)er Ell wood, admin- 
 istrator with the will annexed of the estate 
 of said .Joseiih Robinson, for the purpose 
 of setting aside the will of said Joseph 
 Robinson. Eliza J. Brewster and the ad- 
 ministrator answered the bill, but Christo- 
 pher C. Robinson failed to answer, and 
 default was entered against him. The 
 ■court directed an issue of law to be made 
 up whether the writing described in the 
 pleadings, and purporting to be the will of 
 the deceased, was his last will and testa- 
 inent, and, said issue having been submit- 
 ted to the jury for trial under instructions 
 •from the court, a verdict was returned 
 finding such writing to be the will of the 
 said Joseph Robinson. ^Motion for new 
 trial was overruled, and decree rendered in 
 accordance with the verdict, and finding 
 that said will was duly executed, and 
 ordering the same to be established and 
 confirmed, and disniis.'iliig the bill as to 
 the defendants who answered. 
 
 Josei)h Robinson died testate on Janu- 
 ary IH, 1S90, leHViiig. iiiiii surviving, as his 
 only heirs at law, the four children above 
 named, and owning certain lots in Deca- 
 tur, and land in Macon county, and a 
 considerable amount of personal property. 
 On January 17, 1890, the defendant in er- 
 ror Eliza Jane Brewster produced before 
 the county court for probate, as the will 
 of her deceased father, the following in- 
 strument, to-wlt: "Knowall men by these 
 presents, that I, Joseph Robinson, for the 
 consideration of one dollar, to me in hand 
 paid, as well as my affection, do hereby 
 assign and set over to my daughter Eliza 
 Jane Brewster all of my property, both 
 personal and real, to have the same after 
 my death. Witness my hand and seal this 
 
 Ilia 
 
 7th day of May, 1877. Joseph X Robin- 
 
 mark 
 
 «ON. [Seal] Attest: J. S. Post. E. Mc- 
 Clellan. " This instrument was then 
 and there admitted to probate as the will 
 «f the deceased by the county court. The 
 proceedings upon the probate thereof 
 ■how that E. McClellan and AVilliam T. 
 Cassius personally appeared m open 
 court, and swore that they personally 
 Knew the handwriting of J. S. Post, sub- 
 scribing witness to said Instrument, and 
 well knew his signature, and had frequent- 
 
 ly seen hiin write, and that they verily 
 believed that the name of J. S. Post, sub- 
 scribed as witness to the execution of said 
 will, was thereto subscribed by him as 
 such subscribing witness; and E. McClel- 
 lan, the subscribing witness to said instru- 
 ment, swore that he was present, and saw 
 the said Joseph Robinson sign said instru- 
 me:ii,aud that he believes that said testa- 
 tor was of sound mind and memory, of 
 lawful age, and under no constraint when 
 he signed said will. 
 
 Upon the trial before the circuit court, 
 the files of the county court, showing the 
 said document as the will of the deceased, 
 together with the accompanying affi- 
 davits of the witnesses as above set forth, 
 and the oath of the administrator, were 
 admitted in evidence. The material part 
 of the testimony of McClellan, as Intro- 
 daced by the defendants upon the trial, is 
 as follows: "I am circuit clerk of Macon 
 county and have been 22 years. I knew 
 Josepli Robinson 25 years, I guess. 1 
 saw this instrument of writing in J. S. 
 Poft's office on May 7, 1877. By request 
 of Joseph Robinson I went up to J. S. 
 Post's office, and witnessed the same. 
 My liest recollection is, I was standing on 
 the sidewalk in front of Skelly's grocery 
 store when he made the request. At that 
 time his mind and memory were both 
 good. H' said he was niaking his will, 
 and wanted me to witness it. J. S. Post 
 was acting as an attorney. J. S. Post 
 wrote and prepai'ed the instrument in con- 
 troversy in this case, proposed by Eliza 
 Jane Brewster as the will of Joseph R<»h- 
 inson. Upon that occasion I went with 
 Robinson to Post's office, for the purpose 
 aforesaid. Robinson signed it by his 
 mark, and Post and I witnessed it. The 
 instrument was signed by Robinson him- 
 self in the presence of Post and myself. 
 We were all present at the same time. 
 Robinson signed it, and then Post and 
 I signed it as witnesses. Post and I 
 signed it as witnesses in the presence of and 
 at the request of Robinson. That is J. S. 
 Post's signature, and I saw him write it 
 there. That is the signature ot E. Mc- 
 Clellan, and In his handwriting. When 
 he executed this instrument Robinson's 
 mind was sound, and his business capac- 
 ity was good. I had business transac- 
 tions witli him up to within six months 
 of his death. I don't recollect whether 
 the instrument was read over to him or 
 not at that time. I knew Post for forty 
 years, and was intimately acquainted 
 with him. He was a practicing attor- 
 ney. I have seen him write, and am 
 familiar with his handwriting. The body 
 of theinstrumentisinhishundwriting. He 
 is dead. His death occurred before Janu- 
 ary 17, 1890, about five years ago, I 
 think. I saw Robinson make his mark 
 to said instrument. I don't know wlieth- 
 er Post saw Robinson sign it by making 
 his mark or not. He was present, and in 
 a position where he could have seen him 
 sign it. Post superintended the execu- 
 tion of theinstrument. I can't tell wheth- 
 er Robinson saw me sign my name as a 
 witness. He was in a position to have 
 seen me sign it. We all signed it at the 
 same time, and at the same table, flnd 
 were within a few feet of each other dur- 
 
 2!).J 
 
Case No. 76 
 
 EOBIXSON u.BHEWSTEll. 
 
 (§§ 33, 65, 66, 68, 108 
 
 lug the whole transartion. EoV)inson con- 
 trolled hiR real and personal property him- 
 self. It was only a few minutes after he 
 requested me to go up to Post's office be- 
 fore I went up and saw him siKii the 
 paper in controversy. The instrument 
 had been prepared previous to our going 
 tiiere upon that occasion. The instrument 
 now shown me is the same which was 
 shown to me when I testified in the coun- 
 ty court at the time it was admitted to 
 probate." Upon cross-examination the 
 witness said: "Bobinson could not read 
 or write. Part of the time he was a man 
 of very intejnperate habits. I don't thinii 
 his habits were worse in 1877 than at 
 otlier times. I don't think he was an 
 habitual drinlter. I do not think he was 
 intoxicated when I met him on the street. 
 SkPlly's grocery was across the street 
 from' Post's office,— 80 feet, probably. I 
 walked across the street with Eobinson. 
 1 remained at Post's office some time, 
 talking, after I signed tlie paper. It was 
 writcen when we got there, except the 
 signature. 1 think the words, 'Joseph 
 Robinson, his mark,' were written when 
 we got there. I don't think it was read 
 over to Robinson while I w-as there. I 
 don't recollect that Post or Robinson 
 said anything about the contents of the 
 paper, or about the paper having been 
 read over to Robinson. He did not re- 
 quest me to sign it as a witness in tl\e 
 office, but on the sidewalk. He did not 
 have the paper with him when he met me 
 on the sidewalk : this is the paper they 
 requested me to sign when 1 got up in 
 the office. I do not recollect whether Rob- 
 inson said anything about this paper being 
 his will after we gat into theoffice. When 
 my attention was first called to this pa- 
 per, my recollection of it was very indis- 
 tinct. If I had not seen my signature, I 
 could not have recalled the transaction. 
 Before April 4, 1890, ] tnld Mr. .folins I 
 could not remember whether anything 
 was said to rae by Robinson about tins 
 paper being a will." Upon his redirect 
 examination, the witness said: "Robin- 
 son was all right, as to sobriety, when 
 this instrument was executed. He was in 
 a condition to transact business intelli- 
 gently at that time. No persons were in 
 the office at the time except Post, Robin- 
 son, and myself. My opinion is that Rob- 
 inson understood all about it. I do not 
 pretend to say of my own knowledge that 
 Robinson knew the contents of this paper 
 whicl) I signed as a witness." Thedefend- 
 ants examined only two other witnesses 
 besides McClellan. One of these swore 
 that upon one occasion Mr. Robinson was 
 talking to her about his daughter Eliza, 
 and said that a couple of months after the 
 death of his wife he had gone up into 
 Capt. Post's office, and made out a pa- 
 per, and had come home and given it to 
 Eliza; so that after he was dead and 
 gone she should have all he was worth. 
 The other witness testified that he was 
 upon one occasion at Mrs. Brewster's 
 house when her father was there, and this 
 paper was produced and read in the hear- 
 ing of Mr. Robi\iHon, and he said that it 
 was his will, and just what he had ordered. 
 The complainants Introduced no testi- 
 mony except that of three witnesses, 
 296 
 
 whose evidence tends to show that Post, 
 the attorney, had moved his office from 
 its former location, so that in May, 1877, 
 it WHS not at the place where the witnes.sj 
 McClellau had located it. The evidence 
 other than that of McClellan tends to 
 show that the deceased could read what 
 was printed, but could not write, or read 
 what was written. 
 
 W. C. Johns, fur plaintiffs in error. W. 
 T. Cassius and Buckingham & Schroll, for 
 defendants in eiTor. 
 
 Mageuder, C. J. 1. As to the execu- 
 tion of the instrument admitted to pro- 
 bate as the will of Joseph Bobinson, 
 deceased. There is a concurrence of the 
 four requisites which have been held 
 to be necessary in order to entitle a 
 will to probate, (Canatsey v. Canatsey, 
 130 111. 397, 22 N. E. Rep. 595:) (1) The in- 
 strument is in writing, and was signed by 
 Joseph Robinson. McClellan swears that 
 he saw Robinson make his mark, and a 
 signature is just as effective where the tes- 
 tator makes his mark as where he signs 
 his name. Doran v. Mullen, 78 111. 342. 
 (2) The Instrument is attested by two 
 credible witnesses, McClellan and Post. 
 The subscribing witnesses signed the in- 
 strument in the presence of Robinson, and 
 at his request, and their names are writ- 
 ten opposite or under the word "Attest." 
 It is not indispensable that the witnesses 
 should subscribe any formal clau.se of 
 attestation. 1 Redf. Wills, (4th Ed.) p. 232. 
 § ti, and note 14. (:i) McClellan, i)ne of 
 the subscribing witnesses, swears tliat he 
 and Post, the subscribing witnesses, were 
 present when Robinson signed the instru- 
 ment, and that he, McClellan, saw Robin- 
 son sign it, and thatitwas so signed by him 
 in the presence of thetwii subscribing wit- 
 nesses. The two subscriV)ing witnesses do 
 not declare on oath in this case that they 
 were present and saw the testator sign 
 the instrument in their presence, because 
 one of them died before the will was ad- 
 mitted to probate in the county court. 
 But section 6 of the act in regard to wills 
 provides that "in all cases where any one 
 
 * * * of the witnesses to any will 
 
 * * * shall die, * * * so that his 
 
 * * • testimony cannot be procured, it 
 shall be lawful * » * to admit proo" 
 of the handwriting of any such deceased 
 « « » witness. * * » and snc.i 
 other secondary evidence as is admissible 
 in courts of justice to establish written con- 
 tracts generally, in similar cases." Here 
 it was proven that the signature of J. S. 
 Post, as subscribed to the instrument, 
 was in the handwriting of said Post, and 
 that the instrument itself was in his hand- 
 writing, and That he was present and 
 superintended the execution of the instru- 
 ment. We think that the proof required 
 by section 6 was furnished, and that, 
 under that section, the will was as much 
 entitled to proJt)atp as though the de- 
 ceased witness had been present. (4) It 
 is proven by the testimony of McClellan 
 that he believes Robinson to have been of 
 sound mind and memory when he signeri 
 theinstrument. Wpnre t tht-i . inion that 
 the execution of the Instrument was prop* 
 erly e.^ta Wished by proof. 
 
33, 65. 66, 68, 108) 
 
 1?0]jINS0N v. BREWSTEB. 
 
 Case No. 75 
 
 2. It is claimed by the plnintiffs in error 
 that the court below erred in admitting 
 evidence of tlie declarations of the testa- 
 tor n)i()e beforemid ><ul)sequeiit tii liis txp- 
 eution of the instrument in question. It 
 is also claimed that the court erred in 
 instructing the jury that the presumption 
 of tliH testatcn's knowledgeof thecontcms 
 of the instrument, arising from the fact 
 that he signed it, might be considered by 
 them, "in connection with all the other 
 evidence in the case, in determining the 
 question as to whether he actually knew 
 the contents of the paper at the time he 
 executed it." The parol declarations of 
 a testator, made before or after the execu- 
 tion of the will,cac'n<)t beadmitted forthe 
 purpose of invalidating the will. Dickie v. 
 Carter, 42 III. 376. It has been held, how- 
 ever, that declarations of a testator, made 
 subsequently to the execution of a will, 
 may sometimes be admitted merely for the 
 purpose of showing his knowledge of its 
 contents in cases where it has been 
 charged that he was imposed upon by not 
 being informed of such contents. 1 Redf. 
 Wills, (4th Ed.) p. 567, c. 10, g§ 14, 15. In 
 the present case we think tliat the evi- 
 dence of such declaratiors might \\ ell have 
 been omitted, but vs'e do not think that 
 they could have d(>ne the complainnnts 
 any harm. Where the execution of a will 
 by the testator is proven, as was done in 
 this case, in such manner as thestatute pre- 
 scribes, it will be presumed that the testa- 
 tor knew its contents. 1 Redf. Wills, (4th 
 Ed.) p. !567, c. 10, §14,note61. Ourstatute 
 of wills does not require that the party exe- 
 cuting a will shall make a declaration that 
 it is his will. Dickie v. Carter, supra. In 
 this case, however, the proof does show 
 that the testator told McClellan he was 
 making his will, and wanted McClellan to 
 witness it. The paper in controversy was 
 produced to Mi^Clellan a few minutes after 
 he was asked to go to Post's office to wit- 
 ness a will. It is true that the instru- 
 ment was not read over to Robinson at 
 the time of its execution, nor did he then 
 formally declare in words that it was his 
 will. But it is not necessary to prove that 
 the testator knew the contents of the 
 will. Such knowledge is presumed from 
 the fact of his execution of it. .Doran v. 
 Mullen, supra; Keitbley v. Stafford, 126 111. 
 507, 18 N. E. Rep. 740. In .the case at bar the 
 complainants introduced no proof what- 
 ever to rebut the presumption of knowl- 
 edge arising from the execution of the in- 
 strument. If, therefore, theevidpnceof sub- 
 sequent parol declarations tending to show 
 
 knowledge of its contents had not beer, 
 introduced, the jury would have been jus- 
 tified in finding that Robinson knew the- 
 contents of the paper from the fact that 
 he signed it. The evidence of the declara- 
 tions was merely cumulative, and in aid of 
 the presumption arising from the execu- 
 tion. There is no proof that any fraud or 
 imposition was practiced upon Robinson, 
 orthat anything wasdone toconceal from 
 him the nature or meaning of the instru- 
 ment which he was signing. Where testi- 
 mony only tends to establish what, in the 
 absence of proof, is a legal presumption, it 
 may be irrelevant, but it can certainly 
 work no injury in theabsence of any proof 
 tending to rebut or overthrow such pre- 
 sumption. Powell V. McCord, 121 111. 330, 
 12N. E. Rep. 262; In re Bonse's Will, 18 111. 
 App. 433. 
 
 3. As to the form of the instrument. "A 
 last will and testament may be defined 
 as the disposition of one's property to 
 take effect after death." 1 Redf. Wills, (4th 
 Ed.) p. 5, c. 2, § 2, par. 1. The instrument 
 in controversy is a disposition of projierty 
 to take effect after death. It is testa- 
 mentary in character, and whol'y execu- 
 tory. The daughter was not to have or 
 become the owner of the estate until her 
 father's death. The vesting is deferred,, 
 both in interest and possession, until the 
 death of the maker. The statement to Mc- 
 Clellan that he was making his will, and the 
 request to McClellan that he come and wit- 
 ness the will, made, as such statement and 
 request were, only a few moments before 
 signing the paper, so as to be really a part 
 of the res gvstee, mdicate that it was Rob- 
 inson's intention to make this instrument 
 his vpill. Frew v. Clarke, 80 Pa. St. 170;. 
 Johnson v. Yancey, 20 Ga.707; Badglev v. 
 Votrain, 68 111. 25; Olney v. Howe, 89 111. 
 5.%; Roth V. Michalis, 125 111. 325, 17 N. E. 
 Rep. 809; Comer v. Comer, 120 111. 420, 11 N, 
 E. Rep. 848. 
 
 4. The instructions given conform ta 
 the views herein expressed. The only one 
 of the given instructions which is com- 
 plained of has already been noticed. 
 Counsel for plaintiffs in error urge it as 
 error that the court below refused to give 
 instructions numbered 5 and 6, and asked 
 by the complainants. Uponacareful com- 
 parison of these refused instructions with 
 those that were given, as they are set 
 forth in the record, we find that all which 
 is material in the former is expressed ira 
 the latter. 
 
 Thedecree of the circuitcourtisafflrmed. 
 Decree affirmed. 
 
 29T 
 
Case No. 77 
 
 lilLEY V. KJLEY. 
 
 (§§ 67. 75 
 
 RILEY V. RILEY. 
 
 (36 Ala. 496.) 
 
 Supreme Court of Alabama. June Term, 1860. 
 
 Appeal from tlie probate court of Monroe. 
 
 Ann Riley, widow of W. M. Riley, offered 
 the following will for probate: 
 
 "Wm. M. Riley's will, Sept. 11, 1859. I 
 want T. A. Nettles to have the two black 
 mules, Jim and Dick, and two hundred 
 acres of the best land that I have got. And 
 I want Martha O. Nettles to have the boy 
 Lewis, and the filie Jane. And I want my 
 wife, Ann Riley, to have all the balance of 
 my property, both personal and real. "Writ- 
 ten by T. J. Robbins, in presence of Miss 
 Martha O. Nettles and Mrs. Ann Riley. 
 
 "And Wm. M. Riley, T. J. Robbins, wit- 
 ness. 
 
 "By request of the above, W. M. Riley." 
 
 Thomas M. Riley and John Riley, as heirs- 
 at-law and distributees of the decedent, filed 
 objections thereto: "1st, that said pretended 
 will was not duly executed according to law; 
 2d, that the same was not executed accord- 
 ing to section 1611 of the Code; 3d, that the 
 same was not signed by said W. M. Riley, or 
 by any other person for him, in his presence, 
 and by his direction; 4th, that the same was 
 not attested by two witnesses, who sub- 
 scribed their names thereto in the presence 
 of the said W. M. Riley, as required by sec- 
 tion 1611 of the Code; and, 5th, that said 
 W. M. Riley was of unsoimd mind, and had 
 not capacity to make a wUl, at the time said 
 instrument pm-ports to have been executed." 
 
 The court read to the jury section 1611 of 
 the Code, and instructed them, that it was 
 for them to determine from that section, 
 from the evidence before them, from the au- 
 thorities read, and from the charge of the 
 court, whether or not, the paper offered for 
 probate was executed, attested and sub- 
 scribed according to said section. To this 
 charge contestants excepted. 
 
 J. W. Posey, for appellant. S. J. Gum- 
 ming, contra. 
 
 R. W. WALKER, J. 1. The decree in this 
 case must be reversed. It was for the court 
 to determine whac facts were necessary to 
 establish the signing and attestation of the 
 will, within the meaning of the Code. But 
 the effect of the charge given was to refer 
 the decision of this legal question to the 
 jury. Thomason t. Odum, 31 Ala. 108; 
 Wright V. Boiling, 27 Ala. 259. 
 
 As, however, the main questions presented 
 by the record will doubtless arise on another 
 trial in the probate court, we deem it proper 
 to express our views in regard to them at 
 this time. 
 
 2. In order to constitute a valid signing of 
 a will by the testator, it is not essential that 
 he should write his own name. The stat. 
 ute expressly allows the will to be signed by 
 another for him- and his name, when writ- 
 ten by another for him, in his presence, and 
 298 
 
 by his direction, wiU have the same effect as 
 If written by himself. Armstrong v. Arm- 
 strong, 29 Ala. 541; 1 WlUiams, Bx'rs, 69; 
 Code, § 1611. And though Lord Sugden has 
 expressed a contrary opinion, it seems to be 
 settled, that such signing for the testator 
 may be made by a person who is one of the 
 subscribing witnesses to the wiU. In re 
 Bailey, 1 Curt. Ecc. 914; Smith v. Harris, 1 
 Rob. Ecc. 262; 1 Williams, Ex'rs, 69, 70. 
 
 3. The statute requires the will to be "at- 
 tested by at least two witnesses, who must 
 subscribe their names thereto iji the pres- 
 ence of the testator." Code, § 1611. The 
 questions we are called upon to decide, are, 
 whether the signature of the witness may be 
 made by another person for him; and, if so, 
 whether one witness can subscribe for an- 
 other witness, whcf is himself well able to 
 write. While the statute provides that the 
 will may be signed by "the testator, or some 
 person in his presence, and by his direction," 
 the provision in respect to the attesting wit- 
 nesses is, that they "must subscribe their 
 names thereto in the presence of the tes- 
 tator." There is certainly much force in the 
 suggestion, that the express allowance of the 
 alternative in one case, with the absence of 
 such allowance in the other, raises a strong 
 inference that the legislature meant to require 
 the actual, personal signature of each witness. 
 
 The English statute of frauds (29 Car. 11.) 
 reqmred, that the will should be "attested 
 and subscribed, in the presence of the de- 
 visor, by three or four witnesses." I Jarm. 
 AViUs. 112. We have not been able to find 
 any English case, in which it was held, that 
 that the signature by another person for a 
 witness is a sufficient subscription by the 
 latter, vmless the facts showed a physical 
 participation in the act of signing his name. 
 In Harrison v. Elvin, 3 Adol. & E. (N. S.) 
 117, the witness whose name was written, 
 and who was himself unable to write, held 
 the pen, while the other witness guided his 
 hand; and this was held a valid subscrip- 
 tion. See also, to the same effect, Campbell 
 v. Logan, 2 Bradf. Sm'. 96, 97. 
 
 On the other hand, it seems to be settled 
 in the ecclesiastical courts in England, that 
 one of the attesting witnesses cannot sub- 
 scribe for another. In Re White, before the 
 prerogative court, (7 Jur. 1045,) the will was 
 written for the deceased by a Mr. Culver- 
 house, and was signed by the deceased, in 
 the presence of Mr. and Mrs. Culverhouse, 
 both being present at the same time; Mr. 
 Culverhouse subscribed his name as a wit- 
 ness, in the presence of the testator and his 
 own wife, and also subscribed the name of 
 his Avife as the second witness. Dr> Hag- 
 gard moved for probate, and submitted, 
 that the rule "qui facit per alium, facit per 
 se," applied. Sir H. Jenner Fust, in passing 
 upon the motion, said: "It is impossible to 
 grant jirobate of this paper. Why did not 
 Mrs. Culverhouse make her mark at the 
 foot of the will? Motion rejected." We 
 
§§ 67, 75) 
 
 KILEY D. UIJ.EV. 
 
 Case No. 77 
 
 have no access to the vohime in which the 
 case just cited is reported, and find the fore- 
 going statement of it in Horton v. Johnson, 
 18 Ga. 397. The same case is referred to 
 in Campbell v. Logan, 2 Bradf. Sm-. 96, 
 where it is cited from 2 Notes of Cases, 461. 
 It is there said by the sui-rogate, that "the 
 judge put the decision on the ground, that 
 the statute did not authorize any person to 
 subscribe the witnesses' names— that the 
 act required both witnesses to subscribe, 
 'either by signature or mark.' " See, also, 
 1 Lomax, Ex'rs, 88; 1 ^^'illiams, Ex'rs, p. 79, 
 note d. 
 
 The point is decided in the same way in 
 Re Cope, 2 Rob. Ecc. 3.35. In that case, a 
 testatrix, having signed her will, desired M. 
 ■C. and E. T. to attest; but, as E. T. could 
 not write, the testatrix desired J. J. C, who 
 was also present, to write the name of E. 
 T., which J. J. C. did, but did not sign his 
 own name; held, that the paper was not 
 entitled to probate, as E. T. might have 
 made his mark, and that a desire that an- 
 •other should sign could not be construed to 
 be a subscription by E. T. 
 
 So it has been held, that the acknowledg- 
 ment by a witness of a signatm'e previously 
 made, is not a subscription within the mean- 
 ing of the statute. Playne v. Scriven, 1 
 Rob. Ecc. 774. In that case, an attesting 
 witness, on the re-execution of the will, 
 traced over his previous signatm'e with a 
 •dry pen; and he was held not to have 
 subscribed, but only to have acknowledged 
 his signature, which was not sufllcient. 
 Sir H. .Tenner Fust said: "The witness- 
 -es are to subscribe; in other words, they 
 ure required, I conceive, to do an act which 
 shall be apparent on the face of the will." 
 To subscribe is defined to be, "to set one's 
 hand to a writing," (Pridgen v. Pridgen, 13 
 Ired. 260,) and this the act requires the 
 Tvitnesses to do. 
 
 The rule adopted in the English cases, 
 ■cited above, that one witness cannot sub- 
 scribe for another, unless the latter makes 
 his mark to his name as written, or other- 
 wise physically partakes in the act of sub- 
 scription, is approved of in Campbell v. 
 Logan, 2 Bradf. Sur. 96, 97, and in Meehan 
 y. Rourke, (Id. 39:i.) In the former case, 
 the surrogate said: "There is nothing in the 
 statute, authorizing one witness to sign the 
 name of another witness." But he conceded, 
 that where the facts show a physical partici- 
 pation of the witness in the act of signing 
 Ills name, this is a sufficient compliance with 
 the statute. In Meehan v. Rourke, supra, 
 it is said: "The statute of 1 Vict. c. 26, 
 requires the witnesses to 'attest' and 'sub- 
 scribe' the will; and this, it has been de- 
 cided, may be done by signature or mark; 
 l)ut the witness must, in either case, partake 
 In the physical act of subscribing." 
 
 The English rule has also been followed 
 by the supreme court of Georgia. Where a 
 will was subscribed in the presence of the 
 testator, by two witnesses, each for himself, 
 and one of them for a third person, aU 
 being present at the same time, it was held, 
 that this was an insufficient attestation un- 
 der the statute of frauds. The third witness, 
 who could not write, should have made his 
 mark. Horton v. Johnson, 18 Ga. 396. See, 
 fm-ther, Dayt. Surr. 99-101, and notes. 
 
 A different rule has been adopted in Vir- 
 ginia and Kentucky. In both of those states 
 it is held, that where the name of one wit- 
 ness is signed by another, at the request of 
 the former, this is a valid subscription, al- 
 though the witness whose name is thus 
 signed does not make a mark, or otherwise 
 partake in the act of signature. Upchurch 
 V. Upchm-ch, 16 B. Mon. 102; Jesse v. Par- 
 ker, 6 Grat. 57. In this latter case, the 
 attestation was held good, although it was 
 shown that the witness whose name was 
 signed by another was able to write. 
 
 Without now saying whether an actual 
 physical participation of the witness In the 
 act of signing is, in all cases, essential to 
 a valid subscription of his name, we are 
 not willing to go so far as to hold, that one 
 subscribing witness may sign for another, 
 who is himself well able to write, and who 
 does not in any way join in the physical 
 act of subscription. Whatever may be the 
 rule in reference to witnesses who are not 
 able to write, we think, that where a witness 
 is himself well able to write, the subscription 
 of his name by another subscribing witness 
 ought not to be deemed a compliance with 
 the statute. 
 
 The evidence set out in the record shows, 
 that the will was written and signed for the 
 testator by one Robbins, who subscribed his 
 own name as a witness, and also the name 
 of the other witness; the latter not partak- 
 ing, otherwise than by a simple assent, in 
 the act of signature, although she "could 
 read and write very well; perhaps better 
 than Robbins himself." To hold that these 
 facts amounted to a valid execution and at- 
 testation of the will, would certainly weaken 
 the safeguards against frauds and forgeries, 
 which it was the purpose of the statute to 
 provide. It is manifest that the signatures 
 of the witnesses, written by themselves, fm*- 
 nish a reliable foundation for those legal 
 presumptions in favor of the due execution 
 of a will, which arise upon proof of the 
 handwriting of the witnesses, when they are 
 dead or out of the state. We think we 
 consult sound public policy in deciding, that 
 one of the subscribing witnesses to a will 
 cannot sign the name of another who is 
 himself well able to write and who does not 
 physically participate in the act of signing. 
 
 Decree reversed, and cause remanded, 
 
 299 
 
Case No. 78 
 
 WHITE V. TRUSTEES OE BRITISH MUSEUM. 
 
 {§§ fiB. 7i 
 
 WHITE V. TRUSTEES OF BRITISH MU- 
 SEUM. 
 
 (6 Ring. 310.) 
 
 1820. 
 
 This was a feigned issue upon the question, 
 whether William White, deceased, did, by 
 a certain paper-writing, purporting to be his 
 last will and testament, demise his freehold 
 estates or not. And, upon the trial, the jury 
 found a special verdict, setting out the paper- 
 writing in question, and finding that the 
 whole of the same, except the names of the 
 witnesses, was in the handwriting of the said 
 W. White: that the said W. White signed 
 the said paper-writing before it was signed 
 by the witnesses John Hounslow, Mary Bris- 
 tow, and Thomas Badcock, or either of them; 
 that he died on the 13th May, 1823; that 
 about five months before his death, he re- 
 quested the said John Hounslow and Mary 
 Bristow to sign their names to the said pa- 
 per-writing, and they respectively, in pur- 
 suance of such request, did sign the same in 
 the presence of the said W. White, but that 
 they did not see the signature of the said 
 W. White to the said paper-writing, and 
 were not informed by the said W. White, 
 when they so signed the said paper-writing, 
 or at any other time, what was the natm'e 
 thereof, or the pui'pose for which he request- 
 ed them to sign the same: that, about three 
 months before the death of the said W. 
 White, he requested the said Thomas Bad- 
 cock to sign his name to the said paper- 
 writing, which he immediately did in the 
 presence of the said W. White: and at the 
 time of signing the said paper-writing by the 
 said Thomas Badcock, the said W. White in- 
 formed him that the. said paper- writing was 
 his will. The special verdict then went on 
 to state, that the paper-writing consisted of 
 two sheets of paper produced to the jurors; 
 that the two sheets were in the same room 
 at the times of the respective signatures of 
 the three persons above mentioned; and that 
 William White was of sound and disposing 
 mind and memory at the time he signed the 
 paper, and also at the time the three other 
 persons signed their names as aforesaid. 
 
 It appeared from the inspection of the in- 
 strument set out in the special verdict, that 
 the signature of the three names could not 
 possibly enure to charge themselves, or any 
 other person, and could not have been done 
 for any other purpose whatever than simply 
 to make them witnesses to the will. And it 
 appeared that, immediately above the names 
 of the witnesses, there was written in the 
 hand of the testator these words, "In the 
 presence of us as witnesses thereto." 
 
 The case, after having been argued once, 
 was sent down again for a more precise find- 
 ing of the facts; and the foregoing special 
 verdict having been found, was argued again 
 in Trinity term last. 
 
 Wilde, Serjt. The execution of this will 
 Is sufficiently in compliance with the requisi- 
 300 
 
 tions of 29 Car. II. c. 3, § 5, which prescribes 
 that such an instrument shall be in writing; 
 signed by the party devising, or by some oth- 
 er person in his presence, and by his express 
 directions; and attested and subscribed in 
 the presence of the devisor, by three or four 
 credible witnesses. On the two first heads 
 the special verdict leaves no doubt. It is 
 undeniable, also, that this will was sub- 
 scribed by three witnesses, in the presence 
 of the devisor, and the only question is,. 
 Whether the subscription of the witnesses, 
 under the circumstances, be also attestation, 
 within the meaning of the statute. He cit- 
 ed Grayson v. Atkinson, 2 Ves. Sr. 454; Ellis- 
 V. Smith, 1 Ves. Jr. 11; Jones v. Lake, 2 
 Atk. 176, note; 1 Ves. Jr. 14; Peate v. Oug- 
 ly. Corny n, R. 196; Stonehouse v. Evelyn, ;j P. 
 Wms. 2o2; Bond v. Sea well, 3 Biu-rows, 1775,- 
 Wallis V. Wallis, 4 Burns, Bcc. Law, 127;. 
 and Trimmer v. Jackson, Id. 129. 
 Adams, Serjt., contra. Mr. WUde, contra. 
 
 TINDAL, C. J., (after stating the facts.) 
 Upon this special verdict, the question is,. 
 Whether in the execution of this will, the 
 several requisites contained in the statute of 
 frauds have been duly observed? By the 2!) 
 Car. II. c. 3, § 5, it is enacted "that all de- 
 vises and bequests of any lands or tenements- 
 shaU be in writing, and signed by the partj^ 
 so devising the same, or by some other 
 person in his presence and by his expres;> 
 directions, and shall be attested and sub- 
 scribed in the presence of the said devisor, 
 by three or four credible witnesses, or else- 
 they shall be utterly void and of non-effect." 
 And as the special verdict finds that the 
 whole of the paper-writing is in the hand- 
 writing of W. White, and that he signed it ■ 
 before it was signed by the witnesses, the 
 jm'ors do find in terms, that there is a de- 
 vise in writing, and that it is signed by the- 
 party who makes the devise. 
 
 Again, it is found expressly that the names- 
 of the three persons were signed by them 
 upon the paper- writing in the presence of the 
 said W. White; that is, in the language of 
 the statute, the writing was subscribed in 
 the presence of the devisor. So that the en- 
 quiry is simplified and reduced to this single 
 question. Whether the devise was attested 
 by them within the meaning of the statute? 
 
 It has been held in so many cases that it 
 must now be taken to be settled law, that it 
 is unnecessary for the testator actually to- 
 sign the will in the presence of the three- 
 witnesses wlio subscribed the same; but 
 that any acknowledgment before the wit- 
 nesses that it is his signature, or any dec- 
 laration before th6m that it is his will, is- 
 equivalent to an actual signature in their 
 presence, and makes the attestation and sub- 
 scription of the witnesses complete. The 
 case of Ellis v. Smith, which was decided 
 by Lord Chancellor Hardwicke, assisted by 
 the master of the rolls, Sir J. Strange, Lord 
 Chief Justice Willis, and Lord Chief Baron 
 
§§ 68, 72) 
 
 WHITE V. TRUSTEES OF BRITISH MUSEUM. 
 
 Case No. 78 
 
 Parker, all persons of high and eminent au- 
 thority, is express to the latter point. 
 
 The objection, therefore, to the execution 
 of the present will, does not rest upon the 
 fact that it was not signed by W. White in 
 their presence; but that with respect to two 
 of the witnesses, Hounslow and Bristow, 
 there was no acknowledgment of his signa- 
 tm-e, nor any declaration that it was his will; 
 but that they signed their names in entire 
 ignorance of the nature of the instrument, 
 or of the object for which their names were 
 written. And it is argued, that if such sub- 
 scription of their names satisfies the inten- 
 tion of the statute, the word attested will 
 have no force whatever, and may be consid- 
 ered as if it had never been inserted. 
 
 The question, however, appears to us to be, 
 whether, upon this special verdict, the find- 
 ing of the jm-y establishes, although not an 
 acknowledgment in words, yet, an acknowl- 
 edgment in fact, by the devisor to the sub- 
 scribing witnesses, that this instrument was 
 his will? for if by what the devisor has done, 
 he must, in common understanding and rea- 
 sonable construction, be taken to have ac- 
 knowledged the insti'ument to be his will, 
 we think the attestation of the will must be 
 considered as complete, and that this case 
 falls within the principle and authority of 
 that of Ellis v. Smith. 
 
 In the execution of wills, as well as that of 
 deeds, the maxim will hold good "Non quod 
 dictum sed quod factum est, inspicitm'." 
 
 Now, in the first place, there is no doubt 
 upon the identity of the insti-ument. The 
 paper in question, is the very paper-writing 
 AVhich was produced by the testator to the 
 three witnesses. The great object of the 
 du:ection of the statute, that witnesses shall 
 subscribe in the presence of the devisor, was 
 to prevent the possibility of the witnesses 
 retm-ning to his hands any other insti-ument 
 than the very instrument whicu he delivered 
 to them to attest. This object has been at- 
 tained in the present case, and the identity 
 of the instrument is beyond dispute. 
 
 In the next place, it appears from the spe- 
 cial verdict, that the devisor was conscious 
 himself that this instrument was his will. 
 For the verdict finds that he was of sound 
 
 and disposing mind, both at the time he sign- 
 ed it himself, and also at the time when the 
 witnesses subscribed their names. 
 
 But fm-ther, it appears from the inspection 
 of the insti'ument set out in the special ver- 
 dict, that the signatm'e of the three names 
 could not possibly enure to charge them- 
 selves, or any other person, and could not 
 have been done for any other purpose what- 
 ever than simply to make them witnesses to 
 the will. And, lastly, it appears from the 
 same inspection, that immediately above the 
 names of the witnesses, there was written in 
 the handwriting of the testator these words, 
 "In the presence of us as witnesses thereto," 
 which do amount to a clear and unequivocal 
 indication of the testator's intention that 
 they should be witnesses to his will. 
 
 When, therefore, we find the testator knew 
 this instrument to be his will; that he pro- 
 duced it to tlie tliree persons and asked them 
 to sign the same; that he intended them to 
 sign it as witnesses; that they subscribed, 
 their names in his presence, and returned the 
 same identical instrument to him; we think 
 the testator did acknowledge in fact, though 
 not in words, to the three witnesses, that the 
 will was his. For whatever might have 
 been the doubt upon the true consti'uction of 
 the statute, if the case were res Integra, yet 
 as the law is now fuUy settled, that the tes- 
 tator need not sign his name in the presence 
 of the witnesses, but that a bare acknowledg- 
 ment of his handwriting is a sufficient signa- 
 ture to make their attestation and subscrip- 
 tion good within the statute, though such ac- 
 knowledgment conveys no intimation what- 
 ever, or means of knowledge, either of the 
 nature of the instrument, or the object of 
 the signing; we think the facts of the pres- 
 ent case place the testator and the witnesses 
 in the same situation as they stood where 
 such oral acknowledgment of signature has 
 been made, and we do therefore, upon the 
 principle of those decisions, hold the execu- 
 tion of the will in question to be good with- 
 in the statute. 
 
 Judgment for defendants. 
 
 NOTE. The witnesses need not all be pres- 
 ent at the same time. Jones v. Lake, 2 Atk. 
 176, note. 
 
 301 
 
Case Xo. 79 
 
 HOLDFAST v. DOWSI^TG. 
 
 (§70 
 
 HOLDFAST v. DOWSING. 
 
 (2 Strange, 1253.) 
 
 King's Bench, Easter Term. 19 Geo. II. 
 
 Ejectment for lands in Oambridgeshii-e on 
 the demise of Christopher Anstey D. D. and 
 Mary his wife. And upon a trial at bar the 
 jury found this special verdict. 
 
 That James Thompson, Esq; being seised 
 in fee of the premises in question, and of 
 sound mind, signed, sealed and published a 
 paper writing pui-porting to be his last will, 
 dated 10 February, 1742, and which is fotmd 
 in haec verba: by this he declares, that he 
 devises to the defendant the lands in ques- 
 tion for life, remainder to his first and every 
 other son and sons in tail male, remainder 
 to his daughters as tenants in common, with 
 a reversion in fee to the right heirs of the 
 devisor: then he charges all his real and per- 
 sonal estate with particular annuities and 
 legacies, and particularly an annuity of £20 
 per annum to Elizabeth the wife of John 
 Hailes for her life and to her separate use; 
 and he also gives a legacy of £10 each to 
 John Hailes and his wife for moui-ning. 
 That to this will there are three persons 
 who subscribe their names as witnesses, 
 whereof John Hailes is one: and that in 
 their presence, and of no body else, he 
 signed, sealed and published the paper writ- 
 ing as and for his last will; and they three 
 attested the same in his presence, and are all 
 three living. They find the identity of John 
 Hailes the legatee and subscriber, and that 
 Elizabeth his wife is still living. That the de- 
 visor died 28 May, 1743, without issue and 
 seised as aforesaid, and that Mrs. Anstey (one 
 of the lessors) is his aunt and heir at law. 
 They find that before and at the time of the 
 trial the defendant made a tender to John 
 Hailes of £20 for his and his wife's legacies, 
 which he refused to accept, and that those 
 legacies are not discharged. Then they find 
 the entry and demise by the lessors, &c. sed 
 utrum, &c. 
 
 This cause was three times argued at the 
 bar, and this term the chief justice deliv- 
 ered the resolution of the court. 
 
 The question upon this special verdict is, 
 whether in the light Hailes now stands, he 
 is to be considered as a credible witness 
 within the intent of the statute of frauds? 
 And we are all of opinion he is not. 
 
 The right to devise in this case is not a 
 common law right, it being inconsistent with 
 the notion of a feudal tenure, (Wright, Ten. 
 174,) but it depends upon powers given by 
 statutes, which must all be considered to- 
 gether, as creating one general parliament- 
 ary rule: the particulars of which are, that 
 it must be in writing, signed, and an attesta- 
 tion of three credible witnesses in the pres- 
 ence of the devisor. These were checks in- 
 troduced to prevent men from being imposed 
 upon; and certainly meant, that the wit- 
 302 
 
 nesses (who are required to be credible) 
 should not be such as claim a benefit by the 
 will. Though a will may be read, on proof 
 of all the circumstances by one witness: yet 
 that is upon a supiK>sition, there are two 
 others, who could be allowed to give the 
 same testimony. 
 
 If the tender would be equal to the pay- 
 ment of the two money legacies, (as it is not) 
 yet the annuity charged upon the estate de- 
 vised would still subsist; and though it is 
 charged both upon real and personal estate, 
 and the personal (which is not found to be 
 sufficient) would be the first fund, yet it is 
 for Hailes's advantage to enlarge the fund 
 by taking in the real estate; and we must 
 at law consider the husband as benefited by 
 the annuity, though given to her separate 
 use; for it is his money the moment it is 
 paid into her hands, or if not, it eases him 
 in point of maintenance. 
 
 It was objected, that nothing vests till the 
 death of the devisor, and therefore at the 
 time of the attestation he had no interest. 
 But the answer is, that he was then imder 
 the temptation to commit a fraud, and that 
 is what the parliament intended to guard 
 against. 
 
 Another way by which it was attempted 
 to be supported is, that it may be void as to 
 the annuity, but good as to the devise to the 
 defendant; which is grounded upon an ex- 
 pression in Carthew's report of the case of 
 Hilliard v. Jennings, 514, that the wiU was 
 void quoad the devise of lands to the plain- 
 tiff. But whoever reads that will from the 
 record will see, that there were no other 
 lands devised, and therefore it is equal to 
 saying it is void as to any passing of lands; 
 and it was proper to confine the invalidity of 
 it to lands, because as to personal estate it 
 was certainly a good will. 
 
 Consider what a door this would open to 
 fraud: a man has fom- estates, and is beset 
 by four, who fraudulently procure a will, 
 whereby each has a separate estate devised 
 to him. If one is allowed to be a witness 
 for the other three, they thereby establish 
 it for the whole. In 1 Ld. Raym. 730, it is 
 held, that there must be an ability as to 
 the whole will, and not as to a particular 
 legacy. In the case of a will consisting of 
 several sheets of paper, as 3 Mod. 263, the 
 party benefited in one sheet, cannot be set 
 up to prove every other sheet. 
 
 It was agreed, this man could not be ex- 
 amined; how then is he that credible wit- 
 ness that the statute requires? 
 
 The true time for his credibility is, the 
 time of attestation; otherwise a subsequent 
 infamy, which the testator knows nothing 
 of, would avoid his will. 
 
 And as to what is said in Swinb. Wills, 296, 
 it relates only to wills of personal estate, 
 and cannot affect the construction of the 
 statute. 
 
 The Digest, lib. 28, tit. 1, 1. 22, "De Testibus, 
 
§ 70) 
 
 HOLDFAST v. DOWSING. 
 
 Case No. 7d 
 
 Subscriptione, et Signis," is express: "Con- 
 ditionem testium tunc inspicere debemus, 
 cum signaxent, non mortis tempore;" and 
 so is the Code, lib. 6, tit. 23, 1. 1. 
 We therefore hold this not to be a good 
 
 att(?station of a will of lauds; and then the 
 title of Mrs. Anstey the lessor of the plain- 
 tiff as heir at law is not defeated by what is 
 set up as a will: and consequently the plain- 
 tiff must have judgment. 
 
 3(m 
 
Case No. 80 
 
 PEXDOCK V. MACKENDER. 
 
 (§ 70 
 
 PEXDOCK V. MACKENDER. 
 
 (2 Wils. 18.) 
 
 King's Courts at Westminster. Hilary Term, 
 28 Geo. II., 1755. 
 
 This is an ejectment for lands in Kent; 
 the substance of the case reserved at the 
 assises for the opinion of the com-t is short- 
 ly this: That J. M. being seised of the lands 
 in question, by his will executed in Septem- 
 ber, 1750, devised the lands to the defend- 
 ant; that there w^ere three veitnesses to the 
 will, viz. Thomas Turner, Jos. JefCery. and 
 another; that Jos. JefCei-y, one of the vifit- 
 nesses before the time of attestation there- 
 of, was indicted, ti-ied and convicted for 
 stealing a sheep, and was found guilty to 
 the value of ten pence, and had judgment 
 of whipping. 
 
 The plaintiff claims as heir at law to the 
 testator, and therefore tlie single question 
 Is, whether one convicted and whipped for 
 petit larceny be a competent witness, within 
 the statute of fraud and perjuries. 
 
 After tliree arguments at the bar the whole 
 court were clearly of opinion that Joseph 
 JefCery was not a competent witness, and 
 
 304 
 
 laid it down as a rule that it is the crime 
 that creates the infamy, and takes away. a 
 man's competency, and not the punishment 
 for it; and it. is absurd and ridiculous to say 
 it is the punishment that creates the infamy. 
 
 The pillory has always been looked upon 
 as infamou^ and to take away a man's com- 
 pentpncy as a witness; but to put one case 
 (amongst many that might be put) to show 
 this is a very absurd notion, is sufficient: If 
 a man was convicted upon the statute 4 W. 
 & M. against deer stealing, there is a pen- 
 alty of £30 to be levied by distress, and if 
 he has no distress, he is to be put in the 
 pillory; so that if the pilloiy be infamous, 
 the person convicted (according to this no- 
 tion) will be so, if he has not £30, but if he 
 has £30 he wiU not be infamous. 
 
 In the present case both the crime and pun- 
 ishment are infamous; and he that steals a 
 penny has as wicked a mind as he that steals 
 a larger sum, if not a more wicked mind, 
 for he has the less temptation; petit lar- 
 ceny is felony, 1 Hawk, P. C. p. 95, § 36. 
 And no case has been cited where a person 
 convicted thereof was ever admitted to be a 
 witness. Judgment for the plaintiff per 
 totam curiam. 
 
§ 70) 
 
 WYNDHAM V. CHETWYND. 
 
 Case No. 81 
 
 WYNDHAM y. CHETWYND. 
 
 (1 W. Bl. 95.) 
 
 Court of King's Bench. Michaelmas Term, 31 
 Geo. II. 
 
 Issue out of chancery, "devisavit vel non," 
 to try the validity of a will of one Mr. 
 Chetwynd, deceased. The jury found a spe- 
 cial verdict, with regard to the attestation 
 of this will, stating, "that the testator died 
 17th May, 1750, leaving the will in question 
 behind him, which was regularly attested by 
 Higden, Squire and Baxter; that testator was 
 indebted about £18,000 upon mortgage of his 
 real estate, and left behind him a personal 
 estate of £13,972 which was vastly superior 
 to all his specialty and simple contract debts; 
 that he charged his real estate with the pay- 
 ment of his debts and legacies; that at the 
 time of attesting this will, he was indebted 
 to Higden the witness, who was an apothe- 
 cary, about £11 and at the time of his death, 
 about £18. 10s. which was paid off by the 
 executor, before the trial of this issue; and 
 that he was indebted to Squire and Baxter 
 the other witnesses, who were two attorneys 
 in partnership, about £280 at the time of 
 attestation; which also (except a small mis- 
 take by miscasting) was out-set or dis- 
 charged, before the day of trial. And if 
 these were credible witnesses within the 
 statute of frauds, they found for the plain- 
 tiff, which established the will; otherwise, 
 for the defendant." 
 
 Serjeant Prime, for plaintiff. Mr. Norton, 
 for defendant. 
 
 LORD MANSFIELD, C. J. In this case, 
 the real estate is only charged with the pay- 
 ment of debts, as an auxiliary fund to the 
 personalty, which stands in need of no as- 
 sistance, being itself much greater than the 
 debts: And at the time of trial, the three 
 witnesses were not creditors to either the 
 real or personal estate, but were so, at the 
 time of attestation. And hereon, the ques- 
 tion is, whether this be a valid attestation, 
 within the statute of frauds. This is a doubt 
 which sprung out of a general question, in 
 Ansty and Dowsen, whether a benefit to a 
 witness, arising from a will, shall annul his 
 testimony; though after, or at the testator's 
 death, he becomes totally disinterested. The 
 solution of tliis question depends upon gen- 
 eral principles, and not upon the words of 
 the statute. The statute declares no inca- 
 pacity, lays down no legal conditions for ad- 
 mitting witnesses. The word "credible" is 
 no term of art; it has only one significa- 
 tion, and that universally received; it is 
 never used as synonymous to legal compe- 
 tency. It presupposes evidence to have been 
 already given, whereas competency is a con- 
 sideration previous to the admission of evi- 
 dence; and in the statutes mentioned at the 
 bar, the expression so frequently used, of 
 "credible witnesses," is never construed to 
 ABB. WILLS — 20 
 
 mean "competent." To make the validity of 
 a will depend upon the credibility of the wit- 
 nesses, would ))k absurd; since the testator 
 can never foresee, what credit may hereafter 
 be given them. It is true, that in Butler and 
 Baker's Case, 3 Coke, 25, the third caution 
 there given is, "call credible witnesses," but 
 that is only a loose and casual expression, 
 though perhaps the penner of this statute 
 might take his hint from thence. I can 
 never conceive, for the reasons I formerly 
 mentioned, that this statute was drawn by 
 Lord Hale; any farther than by perhaps 
 leaving some loose notes behind him, which 
 were afterwards unskilfully digested. I 
 therefore think the epithet "credible," in this 
 statute, is used as a word of course, but 
 is unfortunately misapplied. If it signifies 
 competent, that is implied in the word "wit- 
 ness" alone; If it means any thing more than 
 competent, it is (as before observed) absurd. 
 There have perpetual doubts arisen upon 
 every clause of this statute, not only among 
 the unlearned, for whom it ought to have 
 been calculated, but even among the learned 
 also. In so inaccm-ate a statute, I therefore 
 think the word "credible" might accident- 
 ally slip in, and ought not to be attended to, 
 as if it carried any special legal meaning. I 
 shall therefore consider this statute as only 
 requiring the attestation of three subscrib- 
 ing witnesses, i. e. legal competent wit- 
 nesses; and I cannot but observe, that the 
 necessity of having subscribing witnesses to 
 any instrument never existed before in this 
 country. The statute determines no point of 
 time for the competence of witnesses; and 
 as I think that competence is not confined 
 to the time of attestation, so I think, that 
 the incompetence of witnesses at the time 
 of their examination, could never be intend- 
 ed for a question by the legislature; since, 
 however competent at the time of attesta- 
 tion, they may become insane or infamous, 
 before the time of examination. This compe- 
 tence of witnesses to wills must therefore 
 depend upon the general rules of competence 
 for all other witnesses. I will therefore 
 consider, — 1. How this matter of competent 
 attestation would have stood upon general 
 principles, supposing no judicial determina- 
 tions had been given.— 2. How the authority 
 of judicial determinations stands; for if there 
 are any in point, they are certainly proper 
 to be adhered to.— 3. How these two rules 
 may be applied to the present case. 1. As 
 to general principles, the power of devising 
 ought to be favoured; it naturally follows 
 the right of property. It subsisted in this 
 kingdom before the Conquest, and till about 
 the reign of Hen. II., when it ceased by con- 
 sequence of feudal tenure, not from any ex- 
 press prohibition. The doctrine of uses re- 
 vived this power, and the statute of uses ac- 
 cidentally checked it. This occasioned the 
 statute of wills to be soon afterwards made; 
 which received a great enlargement, by the 
 altering of tenures in the reign of Car. II. 
 
 305 
 
Case No. 81 
 
 WYNDHAM «. CIIETWYND. 
 
 (§ 70' 
 
 And this testamentary power over property 
 is more reasonable in this kingdom, than it 
 was even among the Greelis and Komans; 
 since by reason of primogeniture and other 
 exclusive rules of descent, the succession ab 
 intestate among us, is not so equal and uni- 
 versal, as among those people. The statute 
 29 Car. II. was not meant to check this 
 power, but only to guard against fraud. In 
 theory, it seemed a strong guard; in practice, 
 it may be some guard. But I believe more 
 fair wills have been destroyed, for want of 
 observing its restrictions, than fraudulent 
 wills obsti'ucted by its caution. In all my 
 experience at the court of delegates, I never 
 knew a fraudulent will, but what was le- 
 gally attested; and I have heard the same 
 from many learned civilians. Courts of jus- 
 tice ought therefore to lean rather against, 
 than in support of any too rigid formali- 
 ties. And upon this principle, before the 
 statute, it was held in 1658, (2 Sid. 109,) 
 that parishioners might be witnesses to a 
 devise, thought it was for the benefit of 
 their own poor. Interest in a witness is 
 certainly an objection to his competency. 
 This arises from a presumption of bias. It 
 is no positive disability, as if a particular 
 age, etc. were required, and wanting, in a 
 witness. It is only presumptive, and pre- 
 sumptions only stand, till the contrary is 
 made apparent. There is no presumption of 
 bias in a witness, who at the time of signing 
 probably knew not the contents of the tes- 
 tator's wiU, and after his death, is discharged 
 from, or has renounced, all interest arising 
 from thence. Nothing can be more reason- 
 able, than to allow this objection of interest 
 to be purged, by matter subsequent to the 
 attestation, and previous to the trial; if it 
 were only for the benefit of third persons. 
 Shall tokens of kindness to friends, servants, 
 etc. who may be unwarily called in as wit- 
 nesses, vitiate a solemn and well weighed 
 disposition of a man's whole estate, when 
 by payment or release, their interest may at 
 once be removed? This would be unreason- 
 able; and the more so, since there are 
 methods, by which the legatees may, by cu-- 
 cuity, be witnesses to a devise, in their own 
 favour. If the land be once charged with 
 legacies, by a weU attested wlU, legacies may 
 be given, by a subsequent unattested codicil, 
 to the witnesses of that very will. 2. As 
 to judicial authorities, in all cases of testi- 
 mony, it has been often determined, that a 
 release takes off all objection in point of in- 
 terest; and therefore, I give credit to the dic- 
 tum of Judge Powys, in Viner,' not on the 
 authority of the Reporter, but because it 
 is consonant to the known practice of West- 
 minster Hall, in other cases. Hiliard v. Jen- 
 nings, (of which Carthew's is the best re- 
 port,^ he being counsel in the cause) is in 
 substance much the same as that of Anstey 
 
 'Vin. Abr. tit. "Evidence," F, pi. 53 
 = Carth. 514; Comyn, 91. 
 306 
 
 V. Dowsing, 2 Strange, 1253. In this last 
 case, the wife of one of the witnesses had 
 an annuity, charged on the lands devised. 
 No release was had; no payment, no tender 
 could be made. And as husband and wife 
 are considered as one person, this was a ma- 
 terial objection to his testimony. And it 
 was on the particular circumstances of tills 
 case, and not upon any general doctrine, 
 that the judgment in the king's bench was 
 founded, as Denison, J., soon after assured 
 me. It is true, that Lee, C. J., in delivering 
 his opinion went into the general point, and 
 argued, as if the credit of a witness could 
 not be pm-ged or varied, by any act subse- 
 quent to the attestation; which he grounded 
 on a maxim of the Roman law, "Conditio- 
 nem testium inspicere debemus, eo tempore 
 cum signarent" But this was not sufficient- 
 ly considered; as will appear from a short 
 view of the Roman testaments. These orig- 
 inally could not be made but in procinctu, 
 or, as a legislative act, in comitiis calatis. 
 But after the law of the Twelve Tables, 
 which gave the power of private testaments, 
 testamentary matters were usually transact- 
 ed per aes et libram, under the fiction, and 
 in the form of a sale or contract, between 
 the testator and the legatees. These symbols 
 were used before the introduction of written 
 instruments, and to this symbolical sale, five, 
 and afterwards to the written instruments, 
 seven witnesses were required; who must 
 be citizens, freemen, adults, and attended 
 with other qualifications. This positive ca- 
 pacity was the condition of the witnesses, 
 referred to in the Roman law; which was 
 requisite to be in them, at the time of their 
 attestation or signing, and not afterwards 
 only; in like manner, as when a sm-render 
 must be /made into the hands of two copy- 
 hold tenants, it wiU not be good, if made into 
 the hands of a stranger, though he should 
 afterwards become a copyholder. The in- 
 terest of the witnesses was not in the con- 
 templation of the law; for heirs were admit- 
 ted as subscribing witnesses, after the sym- 
 bolical sale had ceased, as appears fi-om Cic. 
 pro Milon. "Una fui, testamentum simul 
 obsignavi," etc. And Inst. 2, 10, 10. And it 
 appears also from section 11, that cestuy 
 que trusts and legatees were allowed to be 
 subscribing witnesses. The consequence of 
 this doctrine of Lee, 0. J., was, that no cred- 
 itors or legatees (if the estate was charged 
 to pay them) could at any rate be good wit- 
 nesses. And yet, when Lord Aylesbm-y died, 
 10th February, 1746, leaving a wiU witnessed 
 by three servants, to all of whom he had 
 left annuities, etc. charged on lauds, which 
 they released before examination; and it 
 appearing, that by a former will, dated 
 1744, and witnessed by other persons, he 
 had left the same annuities: Lord Chancel- 
 lor, in 1748, held them to be good witnesses 
 to the second will; for, 1st, it was indiffer- 
 ent to them, which will should stand good; 
 and, 2dly, they had released. And in Baugh 
 
§ 70) 
 
 WYXDHAM V. CHETWYXD. 
 
 Case No. 81 
 
 V. Holloway, 1 P. Wms. 557, Ld. Raymond 
 lays down the same general doctrine, which 
 1 would now establish; and also another 
 point, which agrees with my opinion, that 
 an interested witness may prove a devise to 
 another, though not to himself. In all judi- 
 cial determinations, devises have been con- 
 sidei'ed not in the nature of wills by the 
 Koman law, but as dispositions and convey- 
 ances of real estates; whence it is, that by 
 «uch disposition of all one's lands, estates 
 that are purchased subsequent thereto, will 
 not pass. Therefore, the interest of the wit- 
 ness to devises, should be governed by the 
 same rules, as in aU other written disposi- 
 tions of real estates. 
 
 As to the motion, started in the argument 
 of Anstey and Dowsing, of four devisee- 
 witnesses dividing an estate among them- 
 selves, by reciprocally attesting for each 
 other; this might as well be effected by four 
 distinct devises, separately attested by three 
 of them, in rotation. But in either case, the 
 
 very contrivance would appear so fraudu- 
 lent, as alone to be sufficient to set it aside. 
 3. With respect to the present case; my opin- 
 ion is, that a charge of debts upon the real 
 estate ought not to incapacitate witnesses, 
 who are creditors, from proving a testament. 
 This clause ought to be in every conscien- 
 tious will, and the man who omits it has 
 been very justly said, to sin in his grave. 
 This would be my opinion, even if the wit- 
 ness sought or wanted a benefit under such 
 a will. But in this case there Is no occasion 
 to resort to the real estate; the personal is 
 more than sufficient to pay the debt of the 
 witnesses, and they have been already paid: 
 Therefore, we are all of opinion that the will 
 Is duly attested by three witnesses. This 
 is the judgment of the court. Whatever 
 mistalses may have been committed in the 
 course of this argument, are imputable to 
 myself alone. 
 
 NOTE. See, also, Hindson v. Kersey, 4 
 Burn, Ecc. Law, (Ed. 1797,) 97. 
 
 307 
 
Case No. 82 
 
 GOODTITLE v. WELFORD. 
 
 (§70 
 
 GOODTITLE v. WELFORD. 
 
 (1 Doug. 139.) 
 
 icing's Bench. 1779. 
 
 This was an ejectment, in which the les- 
 sors of the plaintiff claimed under the will 
 of one Elizabeth Bezley. The action was 
 tried before Lord Mansfield, at Westminster, 
 at the sittings after last Hilary term, and 
 one Hearle, who was named executor in the 
 will, and was also devisee of a reversionary 
 interest, expectant on an estate for life, 
 in some copyhold lands part of the estate 
 devised, was called, on the part of the plain- 
 tiff, to prove the sanity of the testatrix, 
 which was impeached by the defendant. 
 To obviate the objection of interest, he had 
 surrendered his estate in the copyhold lands 
 to the use of the heir at law, but he had re- 
 fused to accept the surrender. 
 
 The counsel for the defendant insisted, 
 that Hearle was an incompetent witness; 
 1. Because the surrender was ineffectual, 
 and did not extinguish his interest, not 
 laving been accepted; 2. Because he had 
 acted in the executorship, having paid dif- 
 ferent legacies, and, therefore, had rendered 
 himself liable to be sued, if the will should 
 be set aside. 
 
 LORD MANSFIELD over-ruled both ob- 
 jections, and, the witness being examined, 
 the jury were satisfied of the sanity of the 
 testatrix, and found a verdict for the plain- 
 tiff. 
 
 On a rule to shew cause why there should 
 not be a new trial, which came on to be 
 argued this day, Bearcroft, Dunning, and 
 Bolton, were of counsel for the defendant. 
 
 The Solicitor General, and Lane, for plain- 
 tiff. 
 
 For the defendant, besides the two ob- 
 jections to Hearle's evidence which had been 
 made at the trial, it was now contended, 
 that, as executor, he was entitled to the resi- 
 due of the personal estate not disposed of by 
 the will, and was, therefore, interested, on 
 that account, to support it. One clause in 
 the will was in the following words, "I 
 devise and bequeath to E. Lawrence all the 
 rest of my goods, plate, and cloaths;" and 
 it was contended, that, although the word 
 "goods," had it been used alone, would per- 
 haps have comprehended the whole personal 
 estate, yet it appeared by the subsequent 
 words, that it was only used to express a 
 specific legacy, and therefore the rest of The 
 personal estate would vest in the executor, 
 who had no legacy given him, which could 
 raise a resulting trust in favour of the next 
 of kin. 
 
 LORD MANSFIELD. This will has been 
 tried three or four times; and there have 
 been contradictory verdicts. On the trial, 
 in the present instance, the jury were satis- 
 fled. But a motton has been made for a 
 new trial, not on the merits, but on the In- 
 B08 
 
 competency of a witness. When the wit- 
 ness was produced, the counsel for the 
 plaintiff read his surrender of tlie copyhold 
 estate left to him by the will, but it was 
 objected, that this surrender had not been 
 accepted. The witness, on being questioned, 
 said, he had acted as executor, and that 
 the legatees had received their legacies un- 
 der the will. On this ground also, it was 
 contended, that he was interested, because, 
 if the will should be set aside, he would be 
 answerable for having acted de son tort. 
 But he was not objected to, at the trial, 
 as being entitled to the residue of the per- 
 sonal estate. Now, on such a motion as the 
 present, no objection to a witness should be 
 received which was not made at the trial. 
 If this new objection had been made then, it 
 might perhaps have been shewn, that there 
 was no residue, or a release might have been 
 given, &c. As to the other objections. 3. 
 The bequest to the witness would certainly 
 have gone to his competency, if he had not 
 parted with his interest; but, as he has 
 parted with it, as far as depends upon hini, 
 third persons have a right to his testimony, 
 and the surrenderee shall not deprive them 
 of it, by refusing to accept the surrender. 
 2. It is contended, that, in an action con- 
 cerning land, an executor is not a compe- 
 tent witness, because he may be sued for his 
 administration of the personalty. But he 
 certainly has no immediate Interest in the 
 action; and I remember its being deter- 
 mined by Lord Hardwicke, on a petition 
 for a commission of review, and afterwards 
 by the delegates, that it is no objection to 
 an executor's testimony, that he may be 
 liable to actions as executor de son tort. 
 
 WILLES, J. It is clear that an executor 
 in tnist may be a witness. If the testator 
 had stopped at the word "goods," the lega- 
 tee would have taken all the residue; but 
 the addition of the words "plate and 
 cloaths" may restrain the meaning. But 
 the objection on this ground was not made 
 at the trial, which is a reason for not set- 
 ting the verdict aside. Besides, on a new 
 trial, the witness may establish his compe- 
 tency, by releasing any interest he may have 
 in the residue. As to the surrender, I 
 think it operates without the assent of the 
 surrenderee, and if, on three proclamations, 
 the surrenderee would not come in to be ad- 
 mitted, I think the lord might take advan- 
 tage of it, as a forfeiture. 
 
 ASHHURST, J. Every objection of in- 
 terest proceeds on the presumption that it 
 may bias the mind of the witness; but this 
 presumption is taken away, by proof of his 
 having done all in his power to get rid of the 
 interest. 
 
 The rule discharged. 
 
 NOTE. See Bettison v. Bromley, 12 East 
 
70) 
 
 SULLIVAN V. SULLIVAK. 
 
 Case No. 83 
 
 SULLIVAN T. SULLIVAN. 
 
 (106 Mass. 474.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. March, 187L 
 
 L. M. Child, for appellant. N. O. Berry, 
 for appellee. 
 
 GRAY, J. This is an appeal from a decree 
 of Mr. Justice "Wells, by which a decree of 
 the probate court, allowing as the will of 
 Margaret Sullivan an instrument which con- 
 tained a devise to Thomas Sullivan, and to 
 which his wife was one of the three attest- 
 ing witnesses, was reversed; and the only 
 question is, whether upon these facts she 
 was a competent attesting witness to the 
 will. 
 
 By the law of this commonwealth, a will 
 must be attested by three competent wit- 
 nesses, that is to say, witnesses who at the 
 time of the attestation would be competent 
 by the rules of the common law to testify 
 concerning the subject-matter. Hawes v. 
 Humphrey, 9 Pick. 350; Eev. St. c. 62, § 6, 
 and commissioners' note; Gen. St. c. 92, § 6; 
 Sparhawk v. Sparhawk, 10 Allen, 155, 156. 
 And "all beneficial devises, legacies and gifts, 
 made or given in any will to a subscribing 
 witness thereto, shall be wholly. void, unless 
 there are three other competent witnesses to 
 the same." Gen. St. c. 92, § 10. 
 
 It is admitted that a wife cannot be 
 deemed a competent witness to a will con- 
 taining a valid devise to her husband. But 
 it is contended that, within the reason and 
 effect of the section last quoted, a devise to 
 her husband is a beneficial devise to her, and 
 is therefore void, leaving her a competent 
 attesting witness to the will, and the will 
 itself valid in all other respects. And this 
 position, though doubted by a majority of 
 the supreme court of Connecticut In Fortune 
 V. Buck, 23 Conn. 1, is supported by earlier 
 decisions in New York and Maine. Jackson 
 V. Woods, 1 Johns. Cas. 163; Jackson v. Dur- 
 land, 2 Johns. Oas. 314; Winslow v. KimbaU, 
 25 Me. 493. 
 
 But with great respect for the learning and 
 ability of the courts which made those deci- 
 sions, and after carefully weighing the argu- 
 ments In support of the construction con- 
 tended for, we are unanimously of opinion 
 that it is founded rather upon a conjectm-e 
 of the unexpressed intent of the legislature, 
 or a consideration of what they might wise- 
 ly have enacted, than upon a sound judicial 
 exposition of the statute by which their in- 
 tent has been manifested. The only devises 
 which the statute declares to be void are ben- 
 eficial devises to a subscribing witness. It 
 does not avoid even a devise to a subscrib- 
 ing witness, which gives him no beneficial 
 interest, as, for instance, a devise to an exec- 
 utor, for the exclusive benefit of other per- 
 sons. Wyman v. Symmes, 10 Allen, 153; 1 
 
 Jarm. Wills, 65. It does not avoid any de- 
 vise to and for the benefit of any person oth- 
 er than a subscribing witness, even if a sub- 
 scribing witness would incidentally take 
 some benefit from the devise. In order to 
 maintain the position contended for, it 
 would be necessary to declare void, not 
 merely the interest which the wife, who was 
 a subscribing witness, would take, by way of 
 dower or otherwise, in the property devised 
 to her husband, but also the whole devise to 
 and for the benefit of the husband himself, 
 who was not a subscribing witness, and 
 whose estate the statute does not assume to 
 reach. 
 
 Our conclusion is fortified by a considera- 
 tion of the history of the legislation upon 
 this subject in England and in this common- 
 wealth. 
 
 The English statute of frauds required 
 wiUs devising lands to be attested and sub- 
 scribed in the presence of the devisor by 
 three or four credible witnesses. St. 29 Oar. 
 II. c. 3, § 5. And that provision was re- 
 enacted here in the first year of the province. 
 Prov. St. 4 W. &. M. (1692-93) c. 15, § 3; 1 
 Mass. Prov. Laws, (State Ed.) 46; Anc. 
 Chart. 235. 
 
 In Holdfast v. Dowsing, 2 Strange, 1253, 
 where a testator charged all his estate, real 
 and personal, with legacies to one of the 
 subscribing witnesses and to his wife, and 
 with an annuity to the wife, the court of 
 king's bench held that the statute of frauds 
 certainly meant that the "credible witnesses" 
 should not be such as claimed a benefit by 
 the will; and that, even if the tender to the 
 husband, at the trial, of the amount of the 
 two legacies, would remove the objection on 
 that ground (which the court thought it 
 would not), yet the charge upon the real es- 
 tate of the annuity to the wife made the 
 husband an incompetent witness. Although 
 the doctrine as to the legacies has been since 
 controverted in England, upon the ground 
 that the competency of the witnesses was to 
 be determined at the time of the proof, and 
 not at that of the execution of the will, the 
 incompetency of either husband or wife to 
 be a witness to a devise to the other, which 
 the witness could not release, has never been 
 doubted. Windham v. Chetwynd, 1 Bur- 
 rows, 414, 424; 1 W. Bl. 95, 100; Bull. 
 N. P. 265. The case of Holdfast v. Dows- 
 ing was taken by writ of error to the ex- 
 chequer chamber, and after argument and be- 
 fore judgment there was compromised by 
 the parties; and gave occasion to the statute 
 of 25 Geo. II. c. 6. 1 W. Bl. 8; 1 Ves. Sr. 
 503; 2 Bl. Comm. 377. The reason of this, 
 as stated by Sir William BlackBtone in his 
 Commentaries, was, that the determination 
 in the king's bench "alarmed many pur- 
 chasers and creditors, and threatened to 
 shake most of the titles in the kingdom that 
 depended upon devises by will;" because it 
 "would not allow any legatee, nor by conse- 
 
 309 
 
Case No. 83 
 
 SULLIVAN V. SULLIVAN. 
 
 (§ 70 
 
 qiience a creditor, where the legacies were 
 charged on the real estate, to be a competent 
 witness to the devise." 
 
 The statute of 25 Geo. II. c. 6, accordingly 
 provided, in section 3, that to the execution 
 of wills already made any attesting witness 
 to whom any legacy was given, whether 
 charged upon lands or not, might be admit- 
 ted as a witness, upon payment, release or 
 teuder of his legacy; and, by sections 1, 2, 
 that in futvu-e wills any attesting witness "to 
 whom any beneficial devise, legacy, estate, 
 interest, gift or appointment of or affecting 
 any real or personal estate" (except charges 
 on lands for payment of debts) "shall be 
 thereby given or made," should be admitted 
 as a witness to the will, within the intent 
 of the statute of frauds, and "such devise, 
 legacy, estate, interest, gift or appointment 
 shall, so far only as concerned such person 
 attesting the execution of such will, or any 
 person claiming under him, be utterly null 
 and void;" and that charges of debts upon 
 lands should not malie any creditor an in- 
 competent witness. All these provisions 
 wei-e re-enacted in our statute of 1783, c. 24, 
 §§ 11-13; and the provision of St. 25 Geo. II. 
 c. 6, § 3, and St. 1783, c. 24, § 13, for remov- 
 ing the interest of a witness by payment, 
 release or tender, was omitted in the re- 
 vision of our statutes in 1836. But neither 
 the statute of 25 Geo. II., nor the statute 
 of 1783, contained any provision as to de- 
 vises to the wife or husband of an attesting 
 witness, notwithstanding the general atten- 
 tion which had been called to the subject by 
 the case of Holdfast v. Dowsing. 
 
 In 1822, a case was brought before the 
 court of iiing's bench, in which a testator de- 
 vised, upon the determination of an estate 
 for life, an estate in fee to the wife of one 
 of the attesting witnesses, and the wife died 
 before the determination of the life estate. 
 It was argued, that, if before the statute of 
 Geo. II. the husband would have been an 
 incompetent witness, the clear intent of that 
 statute was to restore the competency of 
 the attesting witness in all cases of benefit 
 arising to him under the will, and to avoid 
 the will "so far only" as concerned the per- 
 son attesting the execution, or any person 
 claiming under him; and since that statute, 
 therefore, no will could be void by reason of 
 interest arising under it to any attesting 
 witness, further than regarded the interest 
 of such witness or any person claiming un- 
 der him; and consequently the will was 
 duly attested. To which it was answered 
 310 
 
 that the statute of Geo. II. applied only to 
 cases where the interest taken under the 
 will was destroyed by the statute itself; 
 that the husband took no estate or interest- 
 under the will; that his wife indeed took 
 an estate under the will, and by operation of 
 law he in right of his wife derived a bene- 
 ficial interest from that estate, which they 
 might have sold during her life, and which 
 would have given him an estate by the cm-- 
 tesy if she had survived the life tenant; but 
 that the estate of the wife was not de- 
 stroyed by the statute, and consequently the 
 derivative beneficial interest, which the hus- 
 band took in right of his wife only, was not 
 extinguished; and that, independently of 
 the question of interest, it was a general rule 
 that a husband or wife could not in any 
 case be a witness for the other, as was held 
 in Davis v. Dinwoody, 4 Term R. 678. And 
 the court was of opinion that the will was 
 not duly attested. Hatfield v. Thorp, 5 Barn. 
 & Aid. 589. The point thus adjudged upon 
 the application of the statute of Geo. H. is 
 summed up by Mr. Jarman as follows: 
 "That it applied only when the witness took 
 a du-ect interest under the will, and not 
 when it arose consequentially. Thus in Hat- 
 field V. Thorp, where one of the three at- 
 testing witnesses to a will was a husband of 
 a devisee in fee of a freehold estate, and 
 would jm-e uxoris have derived an interest 
 in the lands, it was held that the devise was 
 not within the statute, and consequently that 
 the attestation was insufficient." And such 
 continued to be the law of England until 
 1837, when the statute of 1 Vict. c. 26, ex- 
 tended the disqualification to take beneficial- 
 ly under the will to the husband or wife of 
 the attesting witness. 1 Jarm. Wills, 65-67. 
 In neither of the revisions of our own stat- 
 utes in 183G and 1860, is any express pro- 
 vision introduced upon this point Rev. St. 
 c. 62, § 6; Gen. St c. 92, § 6. And the stat- 
 utes removing the objections to the com- 
 petency of witnesses on the grounds of in- 
 terest and of the relation of husband and 
 wife are expressly declared not to apply to 
 attesting witnesses to a will or codicil. Gen. 
 St. c. 131, § 15; St. 1870, c. 393, § 2. 
 
 The result is, that the decree reversing the 
 decree of the probate com-t is to be affirmed, 
 and the 
 
 Will not admitted to probate. 
 
 NOTE. The rules as to competency and 
 credibility of witnesses are applied strictly to 
 oral wills. Vrooman v. Powers, 47 Ohio St 
 191, 24 N. E. 267. 
 
§71) 
 
 LEA V. LIBB. 
 
 Case No. 84 
 
 LEA V. LIBB. 
 (3 Salk. 395.) 
 King's Bench. 1 Wm. IIL 
 The testator made his -will in writing, sub- 
 scribed by two witnesses, and devised all 
 his lands to W. R.; afterwards he made a 
 .codicil, in which his will was recited; and 
 this also was attested by two witnesses, one 
 of which witnesses was a witness to the 
 will, but the other was a new witness; the 
 question was, Whether this new witness 
 should make a third to the will, the statute 
 requiring that there should be three? and 
 adjudged that he should not; it is true, here 
 are three witnesses to the intent and will of 
 the testator, but there are but two to his 
 
 will in writing; it is true likewise, that there 
 are two witnesses to the codicil, but those 
 are not witnesses to the written will, so that 
 there wants one witness to the will in writ- 
 ing. 
 
 By the canon law, and so likewise by 
 our law, two witnesses are requisite to prove 
 a will for goods, and three for lands; but 
 now by the statute (29 Oar. II., c. 3,) it is re- 
 quu-ed that these witnesses should subscribe 
 their names in the presence of the testator; 
 and since the making that statute there have 
 been some remarkable cases, both as to the 
 manner and number of the witnesses sub- 
 scribing. 
 
 NOTE. See Twaites v. Smith, 1 P. Wms. 10. 
 
 3U 
 
Case Xo. S5 
 
 IN UE GOODS OF WILSON. 
 
 (§§ 73. 7ff 
 
 In re GOODS OF WILSON. 
 
 (L. R. 1 Prob. & Div. 269.) 
 
 Court of Probate. Nov. 6, 1866. 
 
 John Wilson, of Sheffield, died on the 14th 
 of December, 1856, leaving a testamentary 
 paper dated the 19th of October, 1850, com- 
 mencing, "19th Oct., 1850. The last vsall and 
 testament of Jno. Wilson, etc. After my 
 death I will that my property and effects 
 shall be sold and equally divided as follows, 
 and for that purpose I nominate the follow- 
 ing persons: Wm. Parker, Benjamin Little- 
 wood, and Wm. Darley, all of Sheffield." 
 He then gave the residue of his property to 
 his three sons. 
 
 The will ended at the bottom of the first 
 page thus: "John Wilson. Witness, William 
 Hatton." At the top of the next page were 
 these words: "Leasehold property. A cot- 
 tage situate in George-street, in the parish of 
 E , in the county of York;" and be- 
 neath were three signatures: "Wm. Parker, 
 Benjamin F. Littlewood, WiUiam Darley." 
 
 Parker died in 1854, Darley in 1855, and 
 Hatton in 1860. B. F. Littlewood deposed 
 that the deceased executed the will by sign- 
 ing his name at the end of the first page of 
 the sheet of foolscap, on which it was writ- 
 ten in the presence of William Hatton; him- 
 self (the deponent), WOliam Parker, and 
 WUliam Darley, the other trustees, all being 
 present at the same time, to the best of his 
 recollection and belief; and that they there- 
 upon attested and subscribed the said will 
 in the presence of the said testator, to the 
 best of his knowledge and belief, by the said 
 William Hatton signing his name at the foot 
 or end of the first page of the second sheet 
 of paper, and by the others signing their 
 names at the end of the memorandum head- 
 ed "Leasehold property," at the top of the 
 second page. He further stated that he was 
 seventy-two years of age, and that from the 
 long time that had elapsed since the date of 
 the will, and from his defective memory, he 
 could not depose to the facts and circum- 
 stances attending the execution of the said 
 will with more certainty and particularity 
 than as aforesaid. A representation to the 
 deceased was now required, to make out a 
 title to the real estate about to be sold. 
 
 Dr. Spinks moved for probate of the paper. 
 
 [PER CURIAM. The body of the will and 
 the memorandum is in black ink, and aU the 
 signatures are written in blue ink.] 
 
 SIR J. P. WILDE. The 9th section of the 
 statute of wills prescribes how a testator is 
 to execute a will, and that the witnesses 
 shall attest and subscribe the will in the 
 presence of the testator. Now, from this it 
 is plain that in order to make a good execu- 
 tion the witnesses must have attested and 
 subscribed the will. They must attest the 
 signature of the testator to the will. 
 
 It is said that the position of the names of 
 312 
 
 the witnesses is immaterial, provided they 
 are in such a position as to show that they 
 were placed there for the purpose of attest- 
 ing the will. In considering whether persons 
 have subscribed a wiU as attesting vsatnesses 
 the position of the signatures may be most 
 material. If they are written under an at- 
 testation clause no difficulty arises, but if 
 they are placed elsewhere their position may 
 be important, because, if they are placed un- 
 der a particular clause or statement the in- 
 ference is that prima facie they were put 
 there to give effect or to testify to the words 
 of the clause or statement. 
 
 The difficulty I have in this case is this: 
 After looking at the paper itself is it possible 
 to hold that the names of the three last wit- 
 nesses were placed there for the purpose of 
 attesting the will? The will is written on 
 one side of a sheet of foolscap; at the foot 
 of the first page there are these words, "Wit- 
 ness" (not witnesses), "William Hatton." 
 There is no other name until you turn over 
 the page, when there appear the names of 
 three persons, written underneath a memo- 
 randum relative to some leasehold houses. 
 The memorandum is "Leasehold property, 
 a cottage situate in George street, in the 
 parish of Eccleshall Bierlow, in the town- 
 ship of Sheffield, in the county of York," 
 and the three names are the names of the 
 three persons appointed as trustees of this 
 property in the will. 
 
 If these names appeared at the top of the 
 page it might have been supposed that they 
 were put there for the purpose of attesting 
 the wiU. But we find this memorandum 
 and these names written under it, very prob- 
 ably because they are to become trustees of 
 the property to which the memorandum re- 
 lates. They probably signed for the pur- 
 pose of giving their assent to the acceptance 
 of the trust; but whatever may have been 
 their motive for attesting the memorandum, 
 it does not appear that they were placed 
 there in order to attest the deceased's signa- 
 ture to the will. Then we come to the parol 
 evidence, and here I cannot help observing 
 that, although the testator died in 1856, ap- 
 plication for probate of this will, which is 
 dated 1850, is not made until 1866. Parker 
 and Darley died in the lifetime of the tes- 
 tator, William Hatton died in 1860, and so 
 there is now after this lapse of time only 
 one witness alive, and what he can say is of 
 the vaguest description; what he can say 
 is merely to the best of his knowledge and 
 belief; indeed he admits that in consequence 
 of the long time that has elapsed, and from 
 defect of memory, he cannot depose to the 
 facts and circumstances attending the exe- 
 cution with certainty or particularity. In' 
 reality this witness adds little light to the 
 transaction, and does not contradict the ob- 
 vious circumstances as they appear on the 
 face of the paper. I must refuse probate 
 of the paper. 
 
 Probate refused. 
 
g 7i) 
 
 HINDMARSH v. CAUL'tON. 
 
 Case No. 86 
 
 HINDMARSH v. CARLTON. 
 
 (8 H. L. Cas. 160.) 
 
 House of Lords. March 11, 1861. 
 
 The respondent had instituted a suit in the 
 probate couvt against the present appellant, 
 for the purpose of obtaining letters of ad- 
 ministration of the personal estate of Joseph 
 Hindmarsh, deceased, who died on the 26th 
 December, 1857, leaving her, his sister (mar- 
 ried to Thomas Charlton) his next of kin. 
 She alleged that her brother died intestate. 
 The appellant pleaded that the brother did 
 not die intestate, but on the 17th December, 
 1857, made and duly executed a will, under 
 which the appellant claimed as residuary 
 legatee. The parties being thus at issue, 
 the coiu"t of probate made an order for trial, 
 and the issue came on for trial at the Dur- 
 ham spring assizes in 1859, before IMr. Jus- 
 tice Byles; when, under the direction of the 
 learned judge, the jury returned a verdict 
 for the defendant, declaring the will to have 
 been duly executed, but leave was reserved 
 to the court of probate to enter the verdict 
 for the plaintiif in the suit, that coiu-t being 
 at hberty to draw inferences of fact, if it 
 should think lit to do so. A motion for 
 that purpose was accordingly made before 
 the judge ordinary. The notes of the evi- 
 dence taken at the trial were furnished by 
 Mr. Justice Byles, and were to the following 
 efEect: Dr. Blair White, a physician at 
 Newcastle, said, "I attended Joseph Hind- 
 marsh. On the 17th December, 1857, I went 
 into Hlndmarsh's bedroom; two papers were 
 produced by the housekeeper in the presence 
 of Hindmarsh. Mr. Wilson, the other med- 
 ical attendant, was present. I gave the pa- 
 pers into Hlndmarsh's hands, and asked, if 
 that was his signature. Hindmarsh put on 
 his spectacles, examined the paper and the 
 signature, and said, 'Most decidedly this is 
 my handwriting, and this is my will.' This 
 was in the presence of Mr. Wilson and my- 
 self. I took the will from Hlndmarsh's hand 
 and signed it in that room. I remember 
 Mr. Wilson signing the date, because I re- 
 quested him to do so." Mr, Frederick Wil- 
 liam Napoleon Wilson, surgeon, said, "On 
 the forenoon of the 17th December, 1857, I 
 saw Mr. Hindmarsh. I was asked by him 
 to sign his will as a witness, and the will 
 was brought out, both parts. He looked at 
 it and said that was his will. I wrote at 
 the bottom, 'Witness to the above will and 
 testament and signature,' and then my 
 name, 'Fred. Wm. Nap. Wilson,' on both 
 papers. In the afternoon, Dr. White came. 
 In the room Dr. White examined the patient 
 as to his health. The doctor and I then 
 went into the other room, where we had a 
 consultation. I had suggested to Hind- 
 marsh before we left the room, that he had 
 better have another witness. Dr. White 
 took the will in his hand, and we went back 
 to the room where Hindmarsh was. Dr. 
 
 White asked Hindmarsh if that was his will. 
 He said, 'Well, I can't see very well, get me 
 my spectSicles.' The housekeeper gave him 
 his spectacles, and he sat up in the bed, and 
 looked at the paper, and said, 'Yes, that is my 
 will, and this is my signatui-e.' At a small 
 table, at the head of the bed, and close to 
 the bed, Dr. White signed his name. After 
 he hart signed it, I took the papers and went 
 across to the window, where there was an- 
 other table, and sat down in an arm-chair; 
 and then, after some conversation about the 
 date being added, I distinctly remember re- 
 touching my name, by putting a cross on the 
 F on the paper which is uppermost, and 
 then I added the date in both wills, and 
 tlien, I believe, the documents were both 
 given to the housekeeper." On cross-exami- 
 nation, he said, "I very often omit to put 
 a cross at all, and where I find it has not 
 been done I always put It. I had noticed 
 the omission of the cross. I had always 
 been in the habit of supplying the omission. 
 This was merely in pursuance of my habit. 
 ... I thought it was better to complete the 
 name. I thought adding the date was equal 
 to a repetition of the signatm-e. I think 
 I had no other intention. It was by the date 
 I intended to repeat my signature. My sole 
 object was to supply the omission, to make' 
 the name complete. I was attesting the will, 
 and I thought it necessary to have a com- 
 plete signature. My object was to make the 
 signature of the morning complete." 
 
 The cause was heard before the judge ordi- 
 nary, and on the 18th May, 1858, judgment 
 was pronounced in favor of the plaintiff 
 in the suit, on the ground that the facts 
 proved did not amount to a due attestation 
 of the will according to the provisions of 
 the 1 Vict. c. 26. The verdict for the de- 
 fendant was, therefore, ordered to be set 
 aside, and a verdict entered for the plaintifC. 
 This was an appeal against that decision. 
 
 Mr. Manisty and Mr. Heatli, for appellant. 
 The Solicitor General (Sir W. Atherton) and 
 Dr. Spinks, for the respondent. 
 
 THE LORD CHANCELLOR. My lords, 
 these are very distressing cases for judges 
 to determine. I may honestly say that we 
 have a strong inclination in oxu: minds to 
 support the validity of the will In dispute, 
 which the parties bona fide made, as they 
 believed, according to law, and where there 
 is not the smallest suspicion in the circum- 
 stances of the case. But we must obey the 
 directions of the legislature, and we are not 
 at liberty to introduce nice distinctions which 
 may bring about great uncertainty and con- 
 fusion. Having heard the case very lucidly 
 and ably argaied on both sides, I am of 
 opinion that the learned judge of the court 
 below come to a right conclusion in holding 
 that this will was not made in accordance 
 with the requirements of the legislature. 
 
 313 
 
Case No. 86 
 
 HINDMAUSH v. CAKLTON. 
 
 (§ 74 
 
 The act of 1 Vict. c. 26, § 9, requires that 
 a will to be v*Ud "shall be signed at the foot, 
 or end thereof, by the testator, or by some 
 other person in his presence and by his 
 direction; and such signature shall be made 
 or acknowledged by the testator in the pres- 
 ence of two or more witnesses present at 
 the same time; and such witnesses shall 
 attest and shall subscribe the will in the 
 presence of the testator." It is settled by 
 the case of White r. British Museum, 6 Bing. 
 310, and other decisions to the same effect, 
 that after the will has been signed or ac- 
 knowledged by the testator In the presence 
 of both the witnesses, there must be the 
 subscription of the witnesses in the presence 
 of the testator. The question in this case Is, 
 whether that which took place was a sub- 
 scription of the witnesses, whose subscription 
 is in question, or not. I will lay down this 
 as my notion of the law: that to make a 
 valid subscription of a witness, there must 
 either be the name or some mark which is 
 intended to represent the name. But on this 
 occasion the name is not written, nor do I 
 think that there was anything written that 
 was meant to represent the name. The hori- 
 zontal stroke made by the witness was mere- 
 ly intended to perfect the letter F in the 
 same manner as if he had perfected the let- 
 ter i by putting a dot over it, which he had 
 not dotted in the morning. Now, can that 
 be considered as amounting to a subscrip- 
 tion? It was an acknowledgment by him 
 of his former signature written in the morn- 
 ing, but it is not a new subscription. It has 
 been solemnly determined that an acknowl- 
 edgment by a witness of his signatui-e is 
 not sufficient. When I was at the bar, there 
 was a question whether the acknowledg- 
 ment of the signatm:e, by a witness putting 
 a dry pen over it would be sufficient, but 
 since that time it has been decided that it 
 would not be sufficient; but this does not, 
 in my opinion, amount to a subscription, 
 because whether the i was dotted, or the 
 horizontal stroke was put to the F, to per- 
 fect the word, it was not intended that 
 either the dot or the horizontal stroke should 
 represent the name; the name was written 
 in the morning, and that would continue 
 both till and after the evening, as the sub- 
 scription of the witness. 
 
 I regret very much that we are compelled 
 to hold this instrument to be an invalid will, 
 but we are constrained so to do by the act 
 of parliament; and therefore I must advise 
 your lordships that this appeal be dismissed. 
 
 LORD CRANWORTH. I concur with my 
 noble and learned friend in havins' a sort 
 of personal feeling of regret that this will 
 cannot be sustained as a valid will. It ap- 
 pears to be a reasonable will, and a will as 
 to which there is not the least suspicion of 
 anything like fraud or imposition. But for 
 the secm-ity of mankind, the legislature has 
 314 
 
 thought fit to prescribe certain forms and 
 rules which are necessary to be complied 
 with, in order to authorize a distribution 
 of property, different from that which the 
 law would make if there was no will; the 
 legislature, in truth, on these forms being 
 complied with, putting into the hands of 
 the party who is making a will, power to 
 dispose of his property in a way contrary 
 to what, but for the will, would be the pro- 
 vision of the law. That it is reasonable that, 
 under these circumstances, there should be 
 some rules to be acted upon, no one can 
 doubt; and those rules being established, 
 this house, as the ultimate court of appeal, 
 would be, I think, ill discharging its duty 
 to the public If it were to listen to sugges- 
 tions of minute differences which would not 
 meet the ordinary apprehensions of man- 
 kind, and which would necessarily or nat- 
 urally lead to great discussion and litiga- 
 tion. 
 
 It has been determined, upon the construc- 
 tion of the last statute, and quite rightly de- 
 termined, that there must be a subscription 
 by two witnesses after the testator has 
 signed the will in their presence, or acknowl- 
 edged his signature in their presence. In 
 this case, the testator acknowledged his sig- 
 natm-e in the presence of two witnesses, but 
 it is certain that there was not here a sub- 
 scription, after the testator had so acknowl- 
 edged the will, by Mr. Wilson, one of the 
 witnesses, unless his putting a mark across 
 the letter F (or T as it would have stood 
 without the cross) amounts to a signature by 
 him. Upon that subject, I entirely concur 
 with my noble and learned friend, for I 
 do not think that you could suppose any- 
 thing so absurd as that when he wrote the 
 woi-ds Frederick William Napoleon Wilson 
 in the morning, he did not mean that to be 
 his signature, but that he intended the mark, 
 which he afterwards put, to be his signatm-e; 
 but unless you suppose that, there was no 
 subscription by Mr. Wilson after the ac- 
 knowledgment by the testator, in the pres- 
 ence of two witnesses, that that was his will. 
 His putting the cross to the letter F in the 
 afternoon cannot be said to be his subscrip- 
 tion. The acknowledgment of his signature 
 by a testator is sufficient, but a witness 
 stands in a different position. After the sig- 
 nature of the will by the testator his ac- 
 knowledgment will do; but by the express 
 terms of the statute, that will not do with 
 regard to the witness. If he had said noth- 
 ing at all, the putting a mark across the 
 F might have amounted to an acknowledg- 
 ment of his signature; but that will not do, 
 and yet the facts here cannot amount to 
 more than that. 
 
 Upon these short grounds, for the case lies 
 within a very narrow compass, I concur 
 with my noble and learned friend, that this 
 instrument cannot be taken to be a will duly 
 executed by this alleged testator. 
 
§74) 
 
 IIINDMAUSH V. CAULTON. 
 
 Case Ko. 86 
 
 LORD CHELMSFORD. I regret to have 
 to asree with my two noble and learned 
 friends, that the Avill was not duly executed, 
 as required by 1 Vict. c. 26. To render a 
 will valid, the signature or acknowledgment 
 of the testator must be in the presence of 
 two witnesses, present at the time, and the 
 witnesses must attest and subscribe the 
 will in the presence of the testator. Now, 
 iipon witnessing the will in the forenoon of 
 the day of its execution, Mr. Wilson sub- 
 scribed his name, intending that it should 
 be a complete signature. It was, of course, 
 insufficient as a complete subscription under 
 the act, because only one witness was pres- 
 ent, and if it had been left without anything 
 more having been done by Mr. Wilson, no 
 question of the imperfect attestation and 
 subscription of the will could possibly have 
 existed. And the question is, whether what 
 was done in the afternoon, when a second 
 witness was present, would make a complete 
 attestation and subscription. 
 
 Mr. Wilson certainly intended to subscribe 
 as a witness in the afternoon. But he 
 thought that adding the date was equiva- 
 lent to a repetition of the signature. Did 
 this amount to a second subscription? Sup- 
 pose Mr. Wilson had not subscribed his name 
 in the morning, and in the afternoon had 
 merely put the date, could that have been 
 considered to be such a subscription as the 
 act requires? The subscription must mean 
 such a signature as is desa'iptive of the wit- 
 ness, whether by a mark or by initials, or by 
 writing the full name; and if the date alone 
 
 would not do, of what efficacy can it be to- 
 wards completing the subscription? 
 
 If Mr. Wilson in the morning had left his 
 signature Incomplete by the omission, for 
 instance, of his surname which he had added 
 in the afternoon, that would have been a 
 subscription which would have satisfied the 
 requisitions of the act. For there would 
 really have been only one complete subscrip- 
 tion. But the omission of the cross to the 
 F in his Christian name, did not make the 
 signature imperfect. For Mr. Wilson states, 
 that he very often omitted to put the cross 
 at all; and he did not add the cross to com- 
 plete his signature, so as virtually to sub- 
 scribe anew, but merely in pursuance of his 
 habit of supplying the omission when he 
 noticed it. 
 
 The words of the act appear to me to be 
 quite clear in prescribing what shall be 
 necessary to render a will valid. And of 
 course no equivalent can be substituted for 
 its plain requisitions. However much, there- 
 fore, we may regret that the will of the tes- 
 tator should be disappointed by an accidental 
 omission, where all parties intended to com- 
 ply with the directions of the act, yet we 
 are bound by the express and clear language 
 of the legislature; and, however reluctantly, 
 we are compelled to pronounce the will to 
 be invalid. 
 
 THE LORD CHANCELLOR. The appeal 
 will be dismissed without costs. 
 
 Decree affirmed, and appeal dismissed 
 without costs. 
 
 315 
 
Case No. 87 
 
 CHASE V. KITTKEDGE. 
 
 (§ ?* 
 
 CHASE 7. KITTREDGE et al. 
 
 (11 Allen, 49.) 
 
 Supreme Judicial Court of Massachusetts. 
 Worcester. Oct. Term, 1865. 
 
 Appeal from the allowance of the will of 
 Simeon Daniels. The following is the evi- 
 dence of Joseph A. Sprague: "Mr. Daniels 
 came into my office and told me how to draw 
 his will. I made a rough sketch of a will 
 and read it to him, and he said it was all 
 right, and went out. I copied it, and he 
 came back and sat down by my side. 1 
 read the wQl down to the seal, and said, 
 'Does that suit you?' He said it did. I 
 then read the witness clause and my name, 
 and said, 'Mr. Daniels, 1 have written my 
 name as a witness to your will.' After talk- 
 ing with him some time I went and called 
 two other witnesses, Holden R. Greene and 
 Carlton Cushman. When they came in" they 
 stood around the table. I said, 'This is Mr. 
 Daniels's last will and testament;' and he 
 bowed assent. He took the pen and wrote 
 his name opposite the seal. I either repeat- 
 ed or read the witness clause to the other 
 two witnesses. Then, pointing to my signa- 
 ture, I said to Cushman or Greene, 'Sign 
 your name under mine, where I have signed 
 as a witness.' Cushman signed his name, 
 and Greene signed his name, and they did 
 not stay a moment. Mr. Daniels remained 
 after they went out. We three were all 
 present when he signed his name. We were 
 all close together, and he could see where 
 I pointed for the other witnesses to sign. 
 The will was in full view." On cross-exam- 
 ination this witness stated, " I put on the. 
 seal and my name whi]|p \\^ wns s(inp. 1 
 did not rewrite or ret n^ e my name afte r 
 he signed his. " Case was reserved for the 
 full bench. 
 
 E. Mellen, for appellants. P. E. Aldrich, 
 for appellee. 
 
 GRAY, J. This case presents an impor- 
 tant question of construction of the statute 
 of wills, upon which there has been much 
 apparent, and some real, conflict of judicial 
 opinion, and in the consideration of which 
 it is essential to keep in mind the exact lan- 
 guage of the enactments under which cases 
 have arisen. 
 
 By the original English statute for the pre- 
 vention of frauds and perjuries, passed in 
 1676, it was enacted that "all devises and 
 bequests of any lands or tenements shall be 
 in writing, and signed by the party so de- 
 vising the same, or by some other person In 
 his presence and by his express directions, 
 and shall be attested and subscribed, in the 
 presence of the said devisor, by three or four 
 credible witnesses, or else they shall be ut- 
 terly void and of none effect." St. 29 Car. 
 II. c. 3, § 5. That act did not extend to the 
 colony of Massachusetts, which had been 
 316 
 
 previously settled, and was not named there- 
 in. 2 P. Wms. 75; St. 25 Geo. 11. c. 6, § 10. 
 But the provision was re-enacted here in the 
 same words in the first year after the prov- 
 ince charter; and again in 1783, substituting 
 only the words "thi-ee or more" for "three oi- 
 four" witnesses. Prov. St. 4 W. & M. (Ed. 
 1726,) c. 3, § 3, p. 5; Anc. Chart. 234; St 
 1783, c. 24, § 2. It was retained, and ex- 
 tended to personal estate, in 1836, in this 
 form: "No will" (excepting nuncupative 
 wills) "shall be effectual to pass any estate, 
 whether real or personal, nor to charge or in 
 any way affect the same, unless it be in 
 writing, and signed by the testator, or by 
 some person in his presence and by his ex- 
 press direction, and attested and subscribed, 
 in the presence of the testator, by three or 
 more competent witnesses." Rev. St. c. 62, 
 § 6. And the words just quoted have been 
 incorporated, with trifling variations, into 
 the General Statutes, c. 92, § 6. 
 
 This provision, it will be observed, does not 
 expressly require that the testator should 
 sign in the presence of the witnesses; nor 
 that the witnesses should subscribe in the 
 presence of each other, nor even that they 
 should know that the instrument is a will. 
 Courts will not require formalities which the 
 statutes do not. It is accordingly the well 
 settled construction, both in England and in 
 this commonwealth, that it is sufficient for 
 the testator, in any form of words, to ac- 
 knowledge or recognize his signature in the 
 presence of the witnesses, either together or 
 separately, with no attestation clause be- 
 yond the single word "witness," and without 
 their knowing what the instrument is. The 
 authorities upon these points are collected in 
 the elaborate judgment of Mr. Justice Dew- 
 ey in Ela v. Edwards, 16 Gray, 91. It is 
 equally well settled that when the attesting 
 witnesses are dead or out of the state, proof 
 of their handwriting is sufficient evidence 
 that the statute has been complied with. 
 Nickerson v. Buck, 12 Cush. 344; Ela v. Ed- 
 wards, just cited. 
 
 The positive requirements of the statute 
 have always been reasonably construed by 
 the courts so as not needlessly to embarrass 
 compliance with them in making any will, 
 or proof of such compliance upon the offer 
 of the will for pr6bate. It has long been 
 held that evidence that a witness was in 
 such a position that he and the testator 
 might have seen one another will autliorize 
 the inference that he was in tlie presence of 
 the testator and sufficiently near to attest his 
 signature. And the signature of the testa- 
 tor, if aflixed in good faith for the purpose of 
 executing his will, need not be In any par- 
 ticular form; a man who cannot write his 
 own name is not to be deprived of the right 
 to make his will; and courts will not go into 
 nice questions of the degi'ee of the testator's 
 education or his physical strength to sign his 
 name in full, but will hold a mark sufficient 
 
§ 74) 
 
 CHASE c. KITTREDGE. 
 
 Case No. bl 
 
 in any case. Baker v. Dening, 8 Adol. & E. 
 94; s. c. nom. Taylor v. Dening, 3 Nev. & P. 
 228; Nickerson v. Buck, 12 Oush. 344. 
 
 Tlie question now before us is of tlie mean- 
 ing of that clause of the statute whieli re- 
 quires the witnesses to "attest and sub- 
 scribe" the will "in the presence of the tes- 
 tator." 
 
 The only case under St. 29 Car. II., which 
 Ave have seen, in which it was even con- 
 tended by counsel that an ackTuvwledgmsrit 
 by a witnes s, in the presence of the testator, 
 of a signature made in his absence, was 
 onnivalpnt to a. subscript ion in his presence , 
 arose only six years after the passage of 
 the statute; and the point does not appear 
 to have been then decided. Risley v. Tem- 
 ple, Skin. 107. But the difference in the 
 two clauses o f the statute, the one no tlfa- 
 Quiring thp tpstptm- ti> sifyn in the presence 
 of the witnesseg ,_ffih ile the q thg r express ly 
 required the witnesses to su b scribe i n the 
 presence of the testator, soon came to be rec- 
 ognized, and does not appear to have been 
 afterwards lost sight of. Hoil v. Clark, 3 
 Mod .219, 220; Lee v. Libb, 1 Show. 69; Dor- 
 mer V. Thurland, 2 P. Wms. 510; Stonehouse 
 V. Evelyn, 3 P. Wms. 254; Bac. Abr. tit. 
 "Wills," D, 2; 2 Bl. Comm. 377; 1 Browne, 
 Oiv. «& Adm. Law, c. 10, note 27; 1 Rob. 
 Wills, (Am. Ed.) 131; Floy. Proct. Pr. 127. 
 The statute of frauds, while it requu-ed a 
 will to be "attested and subscribed in the 
 presence of the devisor by three or four 
 credible witnesses," required a revocation to 
 be by a written will, "or other vrritlng of 
 the devisor, signed in the presence of three 
 or foui- witnesses." St. 29 Car. II. c. 3, 
 «| 5, 6. The court of king's bench in 1089 
 were of opinion that a will, to revoke a for- 
 mer wiU, must be "signed and subscribed" 
 by the witnesses in the presence of the tes- 
 tator. Eccleston v. Petty, Carth. 81, Comb. 
 I.jS. And Lord Chancellor Cowper was of 
 the same opinion. Onions v. Tyrer, 1 P. 
 Wms. 344. Lord Hardwlcke, Chief Justice 
 Willes, Chief Baron Parker, and Sir John 
 Strange, JI. R., when holding, in accordance 
 with earlier and later decisions, tliat ^ 
 testator's ack nowledgment of his signature 
 > ^re~TEe"wrFn esse s waslTsuffi cienF^g^g 
 by~him, "even ot a w in.jexflEflsIan,.earlier 
 oae._a nd that the words "siijrned ia-lhe nres- 
 ■ PTipp of _ ^ee or four witnesse s," in the 
 section c oncerning r evocations, were limite d 
 tQjjiojggt_nntpcp dpnt. "Other writing," clear - 
 l;g. im plied that tho se words would not be 
 is atisfied by acknowIedging_ a_si^aturfi,-in- 
 stfi ad of actuaUy signing in the presence of 
 the_jsitaessea_ Ellis v. Smith, 1 Ves. Jr. 
 10, 1 Dickens, 225. And see 1 Jarm. Wills, 
 <4th Am. Ed.) 153. The English cases in 
 which it has been held that the witnesses to 
 a will are not required by section -5 of St. 29 
 Car. II. to recite on the paper that they 
 subscribe their names in the presence of 
 the testator, declare that they must actually 
 so sign in his presence. Thus the court of 
 
 common bench in 1735, as reported by Lord 
 Chief Baron Comyns, said: "The witnesses, 
 by the statute of frauds, ought to set their 
 names as witnesses in the presence of the 
 testatrix." Hands v. James, Comyn, 532. 
 And in a later case Lord Eldon said in the 
 house of lords: "Your lordships know that 
 it is necessary that the three witnesses 
 should sign in the presence of the testator." 
 "If it is proved that they did actually sign 
 in ilie presence of the testator, the not re- 
 cording that circumstance will not vitiate 
 the will." RancUffe v. Parkyns, 6 Dow, 202. 
 A new statute of wills was passed in Eng- 
 land in 1837, requiring that the signature of 
 a testator to a will, either of real or personal 
 estate, shall be made or acknowledged by 
 him "in the presence of two or more wit- 
 nesses present at the same time, and such 
 witnesses shall attest and shall subscribe the 
 will in the presence of tlie testator." St 1 
 Vict. c. 26, § 9. The_declaio ns under th is 
 st atute are uniformthat xaiel Stness doe s 
 notJla ttest and subscribe in the , presence o f" 
 q jiother unless h e actually^ affixes his signa - 
 tm-p in the presence of the_ gther; and these 
 decisions bear directly upon the construction 
 of the same words in the English statute of 
 29 Car. II., and in om: own statutes, requir- 
 ing the will to be "attested and subscribed 
 in the presence of" the testator by the wit- 
 nesses. The point was adjudged in the pre- 
 rogative court of Canterbm-y by Sir Herbert 
 Jenner Fust in several cases, the last of 
 which, decided after full argument, and rec- 
 ognizing that "this case must form a leading 
 case of its class," was strikingly analogous 
 to the present. There the testator signed a 
 codicil in the presence of one witness only, 
 who at his request attested and subscribed 
 it. Afterwards another witness, at the tes- 
 tator's request and in his presence, also at- 
 tested and subscribed it, the first witness 
 first pointing to her signature and saying: 
 "There is my signature, aud you had better 
 place yours underneath." In re Allen, 2 Cm't. 
 Ecc. 331; In re Simmonds, 1 Notes of Oas. 409, 
 3 Curt Ecc. 79; Moore v. King, 3 Cm-t. Ecc. 
 243, 2 Notes of Oas. 45. In a subsequent case 
 the same able judge said of tlie witnesses, 
 ' ' No authority is given to th eniia s in the in- 
 s tniipp of thp tpstator, to acknowled ge their 
 signatures previonsly wrTRen : TEe wit- 
 nesses are to subscribe, in other words, they 
 are required, I conceive, to do some act 
 which shall be apparent on the face of the 
 will. To pass ove rasi gnatTire. nrpvionslv 
 made, with a dr.y pen amounts, I think, to 
 no more than an acltnow led gment of a sig - 
 nature. w Jiich in__^ e case of a wi tness has 
 already been held not to be sufficient. Moore 
 V. King. Saying and doing are not the same 
 thing." And he therefore held that upon 
 the re-execution of a will an attesting witness 
 did not "subscribe" by tracing over his sig- 
 nature with a dry pen, ".as nothing in fact 
 was_writteii." Playne v. Scriven, 1 Rob. 
 Ecc. 775, 7 Notes of Cas. 122. He also de- 
 
 317 
 
Case 2^0. 87 
 
 CHASE V. KITTKEDGE. 
 
 (§7i 
 
 cided that it wate not an attestation and sub- 
 scription for a witness to add his residence 
 after his name already subscribed on a pre- 
 vious day. In re Trevanion, 2 Rob. Ecc. 
 311. 
 
 Other decisions of Sir Herbert Jenner Fust 
 are directly to the point that a signature by 
 the testator after the witnesses have signed 
 is insufficient, even if he has previously read 
 the whole will to them, or they add seals to 
 their names after he signs. In the first of 
 these cases, the judge significantly asked, 
 "Is the paper a will before it is signed by 
 the testator?" In re Olding, 2 Curt. Ecc. 
 865; In re Byrd, 3 Curt. Ecc. 117. In a 
 later case, wlaich was fully argued, he re- 
 afiirmed the rule, and gave his reasons mors 
 at length, saying: "The words of the sec 
 tion are very precise, and I think it would be 
 attended with dangerous consequences, if 
 the court were to hold a will valid which 
 has been signed in the presence of two wit- 
 nesses, who have attested it before the sig- 
 nature of the testator was atflxed to the 
 will; for where is the court to draw the 
 line? Suppose the witnesses attested one 
 hour before the testator signed, or a day, or 
 a week, or any other time; where is the 
 court to stop if it gave a latitude of con- 
 struction to this section of the act? Sup- 
 pose it were one month, or six months, or a 
 twelvemonth, after the testator had signed 
 the will; and whether it be at the time of 
 tlie transaction or some time before makes 
 no difCerence." Cooper v. Bockett, 3 Curt. 
 Ecc. 659, 660. Dr. Lushington, sitting in 
 the same com-t, held it to be a fatal objec- 
 tion to the validity of a will, that " tliere is 
 no proof that the signature w,is afflYerj p rim- 
 
 to the subscrintion of the witnes.ses. " Hud 
 son V. Parker, 1 Rob. Ecc. 39. And Su- John 
 Dodson made a similar decision in Shaw v. 
 Neville, 1 Jm-. (N. S.) 408. 
 
 The law is stated in the same way, with- 
 out criticism or dissent, by Lord St. Leon- 
 ards, in his Essay on the Real Property 
 Statutes, 332, 336; and in his Handybook of 
 Property Law, Letter 19. And the decisions 
 of Su- Herbert Jenner Fust have been ap- 
 proved and followed by Sir Creswell Cres- 
 well in the new English court of probate 
 and divorce. Charlton v. Hindmarsh, 1 
 Swab. & Tr. 433; In re Cunningham, 29 Law 
 J. (N. S.) 71; In re Ho.skins, 32 Law J. (N 
 S.) 158. 
 
 In Charlton v. Hindmarsh, ubi supra, one 
 witness, Frederick Wilson, signed his name 
 in the testator's presence and at his request 
 in the morning, omitting to cross the F In 
 his signature. In the afternoon of the same 
 day another witness attested and subscribed 
 the will in the presence and at the request 
 of the testator; and the first witness, as he 
 testified, then acknowledged his signature 
 to the second by saying that his name was 
 there already, crossed the F, merely in pur- 
 suance of his habit of supplying the omis- 
 sion when he noticed it, and added the date, 
 318 
 
 thinking that equal to a repetition of the sig- 
 nature, and with the object of making his 
 signature of the morning a complete signa- 
 ture. From the decision of the judge ordi- 
 nary against the will an appeal was taken 
 to the house of lords, who, by the concurrent 
 opinions of Lords Campbell, Cranworth, and 
 Chelmsford, vmanimously affirmed the judg- 
 ment. Hindmarsh v. Carlton, 8 H. L. Oas. 
 160. The reasons for the decision are best 
 stated by Lord Cranworth, thus: "For the 
 security of mankind, the legislature has 
 thought fit to prescribe certain forms and 
 rules which are necessary to be complied 
 with, in order to authorize a distribution of 
 property, different from that which the law 
 would make if there was no wiU; the legis- 
 lature, in truth, on these forms being com- 
 plied with, putting into the hands of the 
 party who is making a will, power to dis- 
 pose of his property in a way contrary to 
 what, but for the will, would be the provi- 
 sion of the law. That it is reasonable that, 
 under these circumstances, there should be 
 some rules to be acted upon, no one can 
 doubt; and those rules being established, 
 this house, as the ultimate court of appeal, 
 would be, I think, ill discharging its duty to 
 the public if it were to listen to suggestions 
 of minute differences which would not meet 
 the ordinary apprehensions of mankind, and 
 which would necessarily or naturally lead 
 to great discussion and litigation. It has 
 been determined, upon the construction of 
 the last statute, and quite rightly deter- 
 mined, that there must be a subscription by 
 two witnesses after the testator has signed 
 the will in their presence, or acknowledged 
 his signatm-e in their presence." "The ac- 
 ]rnnwiPfif>-rr| giit of his Signature by a testato r 
 is sufficien t, but a witness stands^in a dif; 
 ferent nosition. After the signatu re of the 
 WiU. by the testator, his ankiiQ^ edgment 
 will do; but by th e, jexpj:e^_terms_ofthe 
 stajute_that_jvninotdo witJTrega rd to TEe 
 witness ! If he""Eaariaid nothing at all, the 
 putting a mark ■ across the F might have 
 amounted to an acknowledgment of the sig- 
 nature; but that will not do, and yet the 
 f.icts here cannot amount to more than 
 that." 8 H. L. Cas. 168, 169, 170. 
 
 We have been led to make a full collection 
 and statement of the English authorities 
 upon tliis point, because they have been said 
 by those taking a different view of the law 
 to be few in number and ill considered. An 
 English case or two from which some as- 
 sistance has been sought by way of analogy 
 to support this will remain to be noticed. 
 
 The court of queen's bench in Roberts v. 
 Phillips, 4 El. & Bl. 450, held that the sub- 
 scription of the witnesses need not be below 
 the signature of the testator or the end of 
 the will. . And there is an early ruling of 
 Lord Chief Justice Trevor to the same effect. 
 Peate v. Ougly, Comyn, 197. But in each 
 of those cases there was direct or circum- 
 stantial evidence that the names of the wit- 
 
74) 
 
 CHASE V. KITTREDGE. 
 
 Case No. 87 
 
 nesses were signed after the testator's sig- 
 nature and in his presence; there is no in- 
 timation by the covu-t that any presumption 
 of a valid execution would arise, even after 
 the death of the witnesses, from subscrip- 
 tions so placed; and Lord Campbell, who de- 
 livered the opinion in Roberts v. Phillips, 
 afterwards concui-red in the judgment of the 
 bouse of lords in Hindmarsh v. Carlton, 
 above cited. The decision in Roberts v. 
 Phillips went no farther than to allow an at- 
 testation, apparently insuflacient, to be made 
 good by evidence that the requisites of the 
 statute had been actually complied with. 
 But if the signature of a witness, made be- 
 fore that of the testator, is allowed to be 
 sufficient upon proof of a later acknowledg- 
 ment b y the witness in the testator's pres- 
 ence, then the witnesses may subscribe an 
 inslmm£il t_ nor~^ Ct hianwl Im l.hn I t^s tntoF 
 and_in-hia ^bsence, with the hnnpst intention 
 of nckn owl ed pi ng their subscriptions to him 
 iif''"r ^" "ihiill hti ve signed : }i is name ma yjbe 
 gignedjit any time afte rwards. without~any 
 Witness "t5~gbseiT6~and testify whether it is 
 affixe d by him or by his authority or_noi, 
 and , if it is. whether he Is sane__or insane; 
 and_the-^Ee-vioHS— subser^ipti&n— o£— thel -wit- 
 nesses be held after his death t/> be evidence 
 .of a due execution and attestation, w hen in 
 fact his name js forged , or at ip pst ttiP''e~lM¥ 
 bee n no subscripj Mon_s£_acliBagIedgment by 
 me witn esses^li This presence, and s o, on tTio 
 iQ ogest inte rpret ation, no compliance with 
 the statute. 
 
 Reference nas also been made to the rule 
 that a witness may subscribe by a mark as 
 well as by writing his name in full. This 
 is now well settled both in England and in 
 the United States. 1 Jarm. Wills, (4th Am. 
 Ed.) 73, and American note. The counsel 
 for the appellee asked: "If a witness may 
 adopt what is made by another, cannot he 
 adopt what is made by himself?" But the 
 mark is not made by another, but by the 
 witness himself, and has never, so far as 
 we are informed, been held sufficient unless 
 affixed in the presence of the testator. Even 
 a signature of a witness's own name when 
 his hand is guided by another person is held 
 sufficient in England only because the wit- 
 ness has some share in the writing. In re 
 Jlead, 1 Notes of Oas. 456; In re White, 2 
 Notes of Cas. 461; Han-ison v. Elvin, 3 Q. 
 B. 117; Lewis v. Lewis, 2 Swab. & Tr. 153. 
 And we have seen no American decision 
 which goes fm'ther, except that of the surro- 
 gate in Campbell v. Logan, 2 Bradf. Sur. 
 90. A subscription of the name or mark of 
 a witness by another person in the presence 
 of himself and the testator might possibly 
 be a literal compliance with the statute, but, 
 not being in the handwriting of the witness, 
 AVould create no presumi)tion of a lawful 
 execution and attestation, without affirma- 
 tive evidence that it was so made. In the 
 case referred to in 3 Dane, Abr. 452, in 
 which this court held the mark of a witness 
 
 a sufficient subscription, the record shows 
 that the will of Stephen Needham was ad- 
 mitted to probate upon the testimony of the 
 three witnesses to a compliance with all the 
 statute requirements, and, among others, 
 "that they and each of them In the presence 
 of the said Stephen and at his request and 
 in the presence of each other subscribed the 
 said instrument, namely," two of them "sev- 
 erally wrote their names at full length upon 
 the said instrument" and the third "made a 
 mark thereto, upon and near which and 
 mth her consent the said Stephen wrote her 
 name at full length." Needham v. Need- 
 ham, Essex, Nov. Term, 1802. 
 
 There is no direct decision in this com-C, 
 monwealth upon the question whether the 
 subscription of a witness to an instrument C 
 v^t nri signed by the testator and in his ab- / 
 sence may be made good by afterwards ac- ? 
 knowledging it in his presence. Certainly f 
 no careful attorney or scrivener would ad- 
 vise or permit such an attestation and sub- 
 scription. And many expressions in our 
 books tend to show that it would be invalid. 
 Mr. Dane r'ecognizes the doctrine that if the 
 testator owns his signature to the witnesses, 
 it is sufficient, but assumes that the wit- 
 nesses must subscribe in his presence. 4 
 Dane, Abr. 562, 563. In Laughton v. Atkins, 
 1 Pick. 543, 544, Chief Justice Parker, quot- 
 ing Eccleston v. Petty, above cited, said that 
 to comply with the statute of frauds, a will 
 nmst be "signed and subscribed by the wit- 
 nesses in the presence of the testator." The 
 commissioners on the Revised Statutes, in 
 recommending that the formalities required 
 for a will should also be required for an in- 
 strument of revocation, (as the legislature 
 accordingly did in the Rev. St. c. 62, § 6,) 
 remark that our statute of 1783, like St. 29 
 Car. II., from which it was copied, made 
 this difference between the two, which they 
 italicize as follows: "The former must be 
 attested and subscribed by three or more 
 witnesses in (lie presence of the testalor; but it is 
 not required that 7ie should sign it in their pres- 
 ence; whilst an instrument revoking a will 
 must be signed by the testator in the presence of 
 three or more witnesses, but it is not required that 
 they should subscribe it in Ids presence, nor in- 
 deed that they should subscribe it at all. " In 
 Dewey v. Dewej', 1 Mete. (Mass.) 354, Mr. Jus- 
 tice Dewey said: "It can hardly be supposed 
 that the testator, who was by his own active 
 agency procuring the authentication of the 
 instrument by the requisite witnesses, would 
 have omitted the first step necessary to its 
 due execution, viz. the signature by himself." 
 These words are quoted with approval in 
 Bla V. Edwards, above cited. In Boldoy t. 
 Parris, 2 Gush. 433, the questions whetlier 
 a witness might sign before the testator, 
 and whether an acknowledgment by a wit- 
 ness in the presence of the testator was 
 equivalent to a subscription, were raised by 
 counsel, but not noticed in the opinion, be- 
 cause there was no evidence that one of the 
 
 319 
 
Case No. 87 
 
 CHASE V. KITTKEDGE. 
 
 (§ 74 
 
 witnesses so much as acknowledged his sig- 
 nature in the testator's presence. 
 
 The supreme comt of Vermont, under a 
 statute exactly like om- own, except in re- 
 quiring the witnesses to attest and subscribe 
 in the presence of each other as well as of 
 the testator, has indeed held, with the courts 
 of England and of Massachusetts, that an 
 acknowledgment by the testator of his sig- 
 natvure in the presence of the witnesses is 
 sufficient. Adams v. Field, 21 Vt 256. £ut 
 
 j;]ip gamo nmirt has; ^plfl that nn nckTinwl- 
 
 edgment by one wi tness, in the presence of 
 
 the other's "^^ of t'^" toe+atn.-, n.f f| ;=if>;Tin- 
 
 ture made in th e flb»p-Tipp of Qric. of them. 
 isjinj^p siihsfi-iption in their nresence. Pope 
 V. Pope, 38 Vt. 
 
 The supreme court of New York, under 
 the provisions of the English statute of 29 
 Car. II., assumed it to be necessary that the 
 witnesses should subscribe in the presence 
 of the testator, and inferred the fact of their 
 haying so subscribed from their signatures 
 to an ancient will, although not stated in the 
 attestation, clause. Jackson v. Christman, 4 
 Wend. 282. And in Peck y. Gary, 27 N. Y. 
 31, 32, Chief Justice Denio quoted as enti- 
 tled to great weight the opinions of Sir Her- 
 bert Jenner Fust in Cooper v. Bockett, above 
 cited, and other cases. The decisions cited 
 by the appellee from Bradford's Surrogate 
 Reports .were made under a statute which 
 required each attesting witness to "sign his 
 name as a witness, at the end of the will, 
 at the request of the testator," but omitted 
 the requirement of earlier statutes that the 
 witness should sign in the testator's pres- 
 ence. Rev. St. N. Y. (3d Ed.) pt. 2, c. 6, tit. 
 1, § 32; 4 Kent, Comm. (6th Ed.) 515; 
 Ruddon v. McDonald, 1 Bradf. Sur. 352; 
 Vaughan v. Burford, 3 Bradf. Sur. 78; Hoys- 
 radt V. Kingman, 22 N. Y. 372. The stat- 
 ute of Illinois under which the case of 
 Vaughn v. Vaughn, 4 Am. Law Reg. (N. 
 S.) 735, arose, had a similar omission, and 
 only required the will to be "attested in 
 the presence of the testator by two or more 
 credible witnesses." Comp. St. 111. 1856, c. 
 110, § 1. And these decisions were but of 
 single judges in county courts of probate. 
 
 The case of Miller v. McNeill, 35 Pa. St. 
 217, to which the appellee has referred, 
 arose under the Pennsylvania statute of 
 1833, providing that "every will shall be in 
 writing, and, unless the person making the 
 same shall be prevented by the extremity 
 of his last sickness, shall be signed by him 
 at the end thereof or by some person in his 
 presence and by his express direction, and 
 In all cases shall be proved by the oaths or 
 affirmation of ■ two competent witnesses." 
 By that statute, as by the previous law of 
 ■Pennsyl vania from very early times, the wit - 
 Besses need not subsci-ibP at 3^1, even to a. 
 fflill of real estate. Hight v. Wilson, 1 Dall. 
 94; Rohrer v. Stehman, 1 Watts, 403. In 
 Delaware, under a statute like ours, it was 
 held that the witnesses must sign in the 
 320 
 
 pi-esence of the testator, and the distinction 
 between such a statute and that of Pennsyl- 
 vania was pointed out by Chief Justice Clay- 
 ton. Rash V. Purnel, 2 Har. (Del.) 458; Pen- 
 nel V. Weyant, Id. 506. 
 
 In New Jersey, under a statute in terms 
 requiring wills to be "signed by the testator 
 in the presence of the subscribing wit- 
 nesses," an acknowledgment of his signature 
 is held insufficient. Den v. Mitton, 12 N. J. 
 Law, 70; Combs v. Jolly, 3 N. J. Eq. 025; 
 Mickle V. Matlack, 17 N. J. Law, 86. And In 
 the last case Chief Justice Homblower, who 
 dissented on this point, as well as Mr. Jus- 
 tice Dayton, who concurred with the major- 
 ity of the court, thought that the witnesses 
 must sign in the presence of the testator. 17 
 N. J. Law, 96, 116. 
 
 The supreme court of North Carolina, un- 
 der a statute like ours of 1783, have held in 
 at least three cases, the facts of two of 
 which were singularly like those now before 
 us, that a will could not be established 'in- 
 less the witnesses actually set their names 
 in the testator's presence, and that, as said 
 In the earliest case, "it was the intention of 
 the legislature that the heirs at law should 
 not be disinherited but by a strict compli- 
 ance with the words of the act, and that the 
 door to fraud should be completely shut." 
 Ragland v. Huntington, 1 Ired. 561; Gra- 
 ham y. Graham, 10 Ired. 219; In re Cox's 
 Will, 1 Jones (N. C.) 321. 
 
 In Connecticut and Kentucky it has indeed 
 been held, under statutes not unlike our 
 own, that a witness might sign In the pre s- 
 ence of th e testn.tor before he signed, and 
 acknowledge it afte rtgaxds. O'Brien v. Gal- 
 agher, 25 Conn. 229; Swift v. Wiley, 1 B. 
 Mon. 117, approved In Upchurch v. Up- 
 church, 16 B. Mon. 113. But the only deci- 
 sions, which have come to our notice, in 
 which an ackn owledgment by a witness t o 
 a^_wiVMTi~"rnp t'^stator's prpspT|pp, of_at_signa- 
 ture _affi xed in his abs ence. lias^^beerTheld 
 to__ be an a ttestation_and-sub3epiBtion in his 
 pr esence , are Hiose of a bare majority of 
 the coui-t of appeals of Virginia in Sturdi- 
 vant V. Birchett, 10 Grat. 67, and Parramore 
 v. Taylor, 11 Grat. 220. We have not over- 
 looked the similar opinion expressed by Mr. 
 Redfleld in his learned Treatise on Wills, 
 230, 247, and in 4 Am. Law Reg. (N. S.) 741. 
 
 This analysis of the cases shows that by 
 the prepondei-ance of American authority, as 
 by the uniform cui'rent of the English deci- 
 sions, an express requirement of statute that 
 one person shall sign or subscribe in the 
 presence of another is not complied with by 
 siguinp; i n his absence and -merely_a.cknowL 
 
 edgjnp: in his presence. And upon full con- 
 
 slderation we are satisfied that in this, as in 
 most other legal matters, reason and princi- 1 
 pie are on the side of authority and prece- ' 
 dent. 
 
 The statute requires that the will shall "be 
 in writing and signed by the testator," and 
 shall be "attesteiLand suJisccibed, ip tT^e nres- 
 
§74) 
 
 CHASE V. KITTKEDGE. 
 
 Caae JHo. 87 
 
 ^nceof th e testator, by three or more compe- 
 tent wimftssps. -- Me is not required to write 
 his signature In their presence, but It Is his 
 wijl which they are to attest and subscribe. 
 It must be his will In writing, though he need 
 not declare it to be such. It must therefore 
 be signed by him before it can be attested 
 by the witnesses. He must either sign in their 
 presence, or acknowledge his signature to 
 them, before they can attest it. The stat- 
 ute not only requires them to attest, but to 
 subscribe. It is not sufficient for the wit- 
 nesses to be called upon to witness the tes- 
 tator's signature, or to stand by while he 
 makes or acknowledges It, and be i)repared 
 to testify afterwards to his sanity and due 
 execution of the Instrument, but they must 
 subscribe. This subscription is the evidence 
 of their previous attestation, and to preserve 
 the proof of that attestation in case of their 
 death or absence when after the testator's 
 death the will shall be presented for probate. 
 It is as difficult to see how they can sub- 
 scribe in proof of then- attestation before 
 they have attested, as It is to see how they 
 can attest before the signature of the tes- 
 tator has made it his wi'itten will. The 
 manifest intention of the statute is that, 1st, 
 the wUl should be put in writing and signed 
 by the testator; 2d, his will so written be 
 attested by the witnesses; and 3d, the wit- 
 nesses subscribe in his presence in evidence 
 of their attestation to his written will. There 
 is less reason for requiring the testator to 
 sign in the presence of the witnesses, than 
 for requu'ing them to sign in his presence. 
 A testator may alter his wiU as he pleases 
 at any time before it is formally attested. 
 He may write it out in full and sign it, and 
 it has no effect as a will until duly attested. 
 It is unimportant whether it is or is not 
 
 ABB. WILLS — 21 
 
 signed by the testator until it is produced 
 to the witnesses. It is only important that 
 it should be his will in writing and signed, 
 when they attest and subscribe it; and it is 
 equally his will in writing, whether signed 
 in then- presence or at some previous time. 
 It is the wiU of the testator, not of the wit- 
 nesses. He must know its contents, but they 
 need not. He has the contents, as well as 
 his signatm-e, by which to know that it Is 
 the Instrument declaring his last wishes in 
 respect to his estate. They need see noth- 
 ing but his signature and their own. To al- 
 low them to acknowledge in his presence 
 their names signed in his absence would 
 open a door, to mistake and fraud. If the 
 witnesses might subscribe before they had 
 attested his signature, and even before he 
 had signed, of what weight could their sub- 
 scription be as evidence, after their death, 
 that the will had been duly signed and at- 
 tested? But the controlling considerat ion is, 
 t hat the statute in terms~requ n'es noF^onjy 
 thai tliA witnogjag gTshaU attest his will, but 
 that they slipn subscribe in his presence. 
 The ilistinrt'o" in this respect between th e 
 signatm-e of the testator and the subscrin - 
 tion of the witnesses has existed in the statut e 
 
 Iqjw hnth of Ti;ng-1nni1 nn fl nf IVrq^ asachvisetts 
 for nearly two centiu^ie s. and been preserved 
 in repeated enactments when other clauses 
 have been altered. The court cannot pre- 
 sume so constant a difference in language to 
 have been unintentional, or disregard It as 
 immaterial. 
 
 As it appears by the testimony stated in 
 tlVpvepnrt tiipt n he ot tilTj'aTtesting witnesses^ 
 subscribed his name before the testator slan- 
 ed and in his absence, the instrument offered 
 for probate should have been disallowed . 
 
 Decree of the judge of probate reversed. 
 
 321 
 
Case No. 88 
 
 IN HE aOODS OF HADDOCK. 
 
 (§§ 73. 74- 
 
 In re GOODS OF MADDOCK. 
 
 (L. R. 3 Prob. & Div. 169.) 
 Court of Probate. May 5, 1874. 
 
 Elizabeth Haddock, late of Castle North- 
 wick, Cheshire, widow, deceased, on the 16th 
 of June, 1861, executed her will by making a 
 mark at the foot thereof in the presence of 
 Joseph Clare and Samuel Birtwistle. Joseph 
 Clare thereupon attested and subscribed the 
 same as witness by signing his name, and 
 Samuel Birtwistle attempted to do so also, 
 but after making the letters or marks ap- 
 pearing on the will under the name of Jo- 
 seph Clare— that is to say, the word "Saml." 
 —he, being old and infirm, found he could not 
 complete his signatm-e legibly, and desisted. 
 Joseph Clare then struck through with a pen 
 the word "Saml," so written, as of no ef- 
 fect, and sent for Joseph Birtwistle, the son 
 of Samuel Birtwistle. On his arrival the 
 will was again read over to the deceased, 
 who thereupon made her mark with a pen 
 and ink over her former mark, in the pres- 
 ence of Joseph Clare and Joseph Birtwistle. 
 Joseph Clare traced over his original sig- 
 nature with a dry pen and Joseph Birtwistle 
 signed his name to the will as witness. 
 
 Mr. Bayford moved the com-t. 
 
 SIR J. HANNEN. The question is wheth- 
 er, by writing what he did, he had a com- 
 pleted intention to attest the will. I will 
 look into the cases. 
 
 Cm-, adv. vult. 
 
 SIR J. HANNEN. This was a question as 
 to the execution of a will. The deceased 
 signed her will in the presence of two wit- 
 nesses, one of whom attested her signature 
 by subscribing his name; the other com- 
 menced to write, but being an old man and 
 having a difficulty in doing so, after having 
 got as far as "Saml.," his Christian name, 
 he could get no further, and thereupon the 
 other witness struck out the word "Saml." 
 and seut for another person. This person 
 having come in, the deceased made a mark 
 with a pen over her former mark; and the 
 first witness, instead of rewriting his name, 
 used a dry pen to his signature. Such a 
 subscription has been held to be insutficient: 
 Casement v. Fulton; ' Playne v. Scriven.^ 
 This second attempt at execution having 
 failed, the question arises whether the court 
 can treat the writing of the letters "Saml." 
 by the witness as a sufficient subscription 
 on his part. I take it as a rule that if a wit- 
 ness makes any mark with an intention 
 thereby to subscribe the will, it will be suffi- 
 cient. The very imperfect signatm-es of wit- 
 nesses and testators to be found in wills are 
 illustrations of this rule. But the statute 
 requires that a party shall intend, by what 
 
 '5 Hoore P. C. 130. 
 ' 1 Rob. Ecc. 772. 
 
 322 
 
 he does, to subscribe, and in this case I think 
 the witness has failed to do what was nec- 
 essary. In Hindmarsh v. Carlton,' the de- 
 ceased having signed his name in the pres- 
 ence of one witness, who attested the same, 
 afterwards acknowledged his signature in' 
 the presence of that witness and another. 
 The first witness on such acknowledgment 
 merely crossed the first letter of his Chris- 
 tian name (Frederick) and added a date. He- 
 gave his reason for doing so as follows: "I 
 very often omit to put a cross at all, and' 
 where I find it has not been done I always 
 put it. I had noticed the omission of the 
 cross. I had always been in the habit of 
 supplying the omission. This was done 
 merely in pursuance of my habit; I thought 
 it better to do so. I thought adding the date 
 was equal to a repetition of the signature; I 
 think I had no other intention. It was by 
 the date I intended to repeat my signature. 
 My sole object in crossing the 'F.' was to- 
 supply the omission to make the name com- 
 plete; I thought it necessary to have the 
 name complete." In that case the execu- 
 tion was held to be insufficient. In giving 
 judgment the Lord Chancellor (Lord Camp- 
 bell) said: "Now, then, the question in this- 
 case is, whether that which took place was 
 a subscription of the witness, whose sub- 
 scription is in question, or not. I will lay 
 down this as my notion of the law, that to 
 make a valid subscription of a witness there 
 must either be the name or some mark 
 which is intended to represent the name. 
 But on this occasion the name is not writ- 
 ten, nor do I think that there was anything 
 written that was intended to represent the- 
 name." Lord Cranworth conciuTed with' 
 the Lord Chancellor on this point, and Lord 
 Chelmsford made the following remarks r 
 "Upon witnessing the will in the forenoon 
 of the day of execution Hr. Wilson sub- 
 scribed his name, intending that it should be- 
 a complete signature. It was insufficient as- 
 a complete subscription under the act, be- 
 cause only one witness was present; and the- 
 sole qviestion is whether what was done in 
 the afternoon, when a second witness was- 
 present, would make a complete attestation 
 and subscription. Hr. Wilson <;ertainly in- 
 tended to subscribe as a witness in the after- 
 noon, but he thought that adding the date 
 was equivalent to a repetition of the signa- 
 ture. . . . The subscription must mean 
 such a signature as is descriptive of the wit- 
 ness, whether by a mark or by initials, or 
 by writing the full name; and if the date 
 alone would not do, of what efficacy can it 
 be towards completing the subscription? If 
 Mr. Wilson in the morning had left his sig- 
 nature incomplete by the omission, for in- 
 stance, of his sm-name, which he had added 
 In the afternoon, that would have been a 
 subscription which would have satisfied the- 
 
 •8 H. L. Cas. 160. 
 
§§ 73. 74)- 
 
 IN RE GOODS or MADDOCK. 
 
 Case No. 88 
 
 requisition of the act, for there would really 
 have been only one complete subscription; 
 but the omission of the cross to the 'F.' in 
 his Christian name did not make the sig- 
 nature imperfect, for Mr. Wilson states he 
 very often omitted to put the cross at all, 
 and he did not add the cross to complete his 
 signature so as virtually to subscribe anew, 
 but merely in pm-suance of his habit of sup- 
 plying the omission when he noticed it." I 
 have come to the conclusion that I must re- 
 ject this application, being of opinion that 
 the witness did not put the word "Saml." on 
 the paper with the intention at the time that 
 
 it should be a perfect subscription of the 
 will. Having done something, he broke ofC 
 without completing the intention. In the 
 case of In re Goods of Sperling,* the witness 
 did not sign his name, but merely the words 
 "Servant to Mr. Sperling;" and the court 
 thought the attestation sulHcient, by reason 
 that the witness wrote them intending there- 
 by an identification of himself as the person 
 attesting. The act in this case is not sufii- 
 cient to show such an intention, so as to 
 amount to a subscription to the will. 
 
 *3 Swab. &Tr. 273. 
 
 323 
 
Case No. 89 
 
 IN KE STEONG'S WILL. 
 
 (§ 75 
 
 In re STRONG'S WILL. 
 
 (16 N. Y. Supp. 104, 2 Con. Sur. 574.) 
 i 
 Surrogate's Court, Westchester County. June, 
 1891. 
 
 Proceeding by Edward Strong, as executor, 
 for the probate of a paper purporting to be 
 the last will of Eliza Strong, deceased. The 
 alleged will was duly ' signed and acknowl- 
 edged by testatrix in the presence of Darius 
 A. Secor and Sarah Secor, his wife, both of 
 whom testatrix then requested to sign the 
 will as witnesses. Mr. Secor, in the pres- 
 ence of testatrix, signed his own name, and, 
 at the request of Mi'S. Secor, who was inca- 
 pacitated from writing by reason of a felon 
 on her right hand, signed her name also. 
 After the death of testatrix Mrs. Secor caused 
 her name as written by her husband to be 
 erased, and she then signed her name in 
 place thereof. 
 
 John F. Lambden, for contestant. A. R. 
 Dyett, for executor. 
 
 COFFIN, S. The question as to whether 
 the alleged will was sufficiently executed ac- 
 cording to the requirements of our statute on 
 the subject, inasmuch as the names of both 
 witnesses were written solely by one of them, 
 is alone presented for adjudication. In this 
 respect it will be seen that, while the statute 
 requires that the will shall be "subscribed" 
 liy the testator at the end of the wlU, it also 
 provides that "there shall be at least two at- 
 testing witnesses, each of whom shall sign 
 his name as a witness at the end of the 
 wiU at the request of the testator." ' Thus 
 there is a change from the word "subscribed," 
 as applied to the act of the testator, to the 
 words "sign his name," as applied to the 
 act required of the witnesses. Whether it 
 was intended by the legislature to treat the 
 words "subscribe" and "sign" as synonymous 
 is fairly open to question. If it did not so 
 intend, why did it not use the same word In 
 each instance? The word "subscribe," ac- 
 cording to the best lexicographers, is to write 
 underneath, while "sign" is defined to affix 
 a signature to. And it was held in the Ehg- 
 lish com-ts that the word "sign," as used in 
 the statute of frauds, was sufficiently com- 
 plied with if the party wrote his name on 
 the paper in any place, so that if even he 
 commenced by writing, "I, John Jones," and 
 wrote his name in no other place, it was held 
 a sufficient signing within the statute; but the 
 word "subscribe" clearly means a writing 
 at the end or foot. And, while they have 
 given a very liberal, if not loose, construction 
 of the word "sign," in so far as the statute 
 of frauds affecting contracts was concerned, 
 yet in case of wills, where the witnesses are 
 required to subscribe as such, they exacted 
 some physical act to be done by the wit- 
 
 ui ^^''- S*- N. Y. (8th Ed.) p. 2547, § 40, 
 subd. 4 
 
 324 
 
 nesses, either by writing their own names or 
 making their marks. Moore v. King, 3 Curt. 
 Ecc. 243; 1 Jarm. Wills, (Rand. & T. Ed.) 
 215. But that statute expressly permitted 
 the signature of the testator to a will to be 
 made by some other person in his presence 
 and by his direction. 1 Rev. Laws, p. 364, 
 allowed the same thing. Under these stat- 
 utes it was held that the signature of the tes- 
 tator or of the witnesses by making a mark 
 was sufficient. Baker v. Dening, 8 Adol. & 
 E. 94; Jackson v. Van Dusen, 5 Johns. 144. 
 Many other and more recent cases establish 
 the same principle. But the question still 
 remains, is the name of one or each of the 
 witnesses, written by another, a ' sufficient 
 compliance with the requirement of the stat- 
 ute? In Goods of John White, 2 Notes Cas. 
 Adm. & Ecc. 461, it appeared that a husband, 
 a witness, signed not only his ovra name, but 
 also that of his wife, the other witness. 
 There was no evidence that the wife had, in 
 fact, become a party to the subscription, and 
 the execution was held to be insufficient. 
 Here, however, the wife was present as a 
 witness, and, because of her temporary dis- 
 ability to write her name, requested her 
 husband to write it for her, which he did. 
 AE this occurred at the time of the execution 
 of the will by the testatrix and in her pres- 
 ence, and although the latter did not also 
 request the husband to write the wife's 
 name, yet by her sUence she sanctioned the 
 act. Surrogate Bradford, eminent for learn- 
 ing and industry, seems to have inclined to 
 the opinion that an attesting witness must 
 take some physical part in the act of signing, 
 in order to a compliance with the statutory 
 requirement of signing his name. Campbell 
 V. Logan, 2 Bradf. Sur. 90-97; Meehan v. 
 Rourke, Id. 385-392. This is probably in ac- 
 cord with the tenor of Englisli decisions on 
 the subject, with some few exceptions. But 
 while the precise question has not, so far as 
 known, been determined by the courts of this 
 state, yet in some of our sister states a sub- 
 scription by a witness in the manner it was 
 done in this instance has been held sufficient. 
 In Massachusetts, in the case of Chase v. 
 Kittredge, 11 Allen, 49-59, Gray, J., says: "A 
 subscription of the name or mark of a wit- 
 ness by another person in the presence of 
 himself and the testator might possibly be a 
 literal compliance with the statute, but, not 
 being in the handwriting of the witness, 
 would create no presumption of a lawful exe- 
 cution and attestation, without affirmative 
 evidence that it was so made." Here we 
 have such affirmative evidence. See, also, 
 Horton v. Johnson, 18 Ga. 396. In Upchurch 
 V. Upchurch, 16 B. Mon. 102, and in Jesse v, 
 Parker, 6 Grat. 57, it was expressly held that 
 such a signing of the witness's name as oc- 
 curred in this instance was a sufficient exe- 
 cution under a similar statute. In the latter 
 case we have presented the singular fact of 
 a will being sustained where the body of the 
 will, the name of the testator, and of the 
 
§75) 
 
 I]Sr RE STKOSTG'S WILL. 
 
 Case No. 89 
 
 three witnesses required in that state, were 
 all in the handwriting of one person. As 
 was well said in that ease: "Where the at- 
 testation is by maris, the validity of such an 
 attestation does not depend upon the fact of 
 the witness making his mark, or doing some 
 manual act in connection with the signature, 
 but upon the signing of the name of the wit- 
 ness by his authority." The maxim, "qui 
 facit per alium facit per se," has, doubtless, 
 its limitations; but it is difficult to discover 
 why it is not applicable here. The frauds In 
 the execution of wills which the statute was 
 designed to guard against will in no way be 
 facilitated by the sanctioning of this mocie 
 of execution. Still, where we consider that 
 the art of writing is so common that there 
 can be little trouble in finding witnesses who 
 can write their names, it is desirable that 
 
 wills should be witnessed by such persons, 
 especially in view of the fact that should 
 they make their mark, or sign by the hand 
 of another, and they should predecease the 
 testator, there would be no possibility of 
 proving their handwriting, and then the will 
 could not be admitted to probate, unless other 
 persons should chance to be present who 
 could testify to the facts; for the statute 
 provides that, in case the witnesses be dead, 
 the will may be established by proof of the 
 handwriting of the testator and of the sub- 
 scribing witnesses. Code, § 2620. At first 
 my impression was that the execution of this 
 will was insufficient, but a fm-ther examina- 
 tion of authorities and subsequent reflection 
 have led to a different conclusion. It is 
 therefore held to be a valid will, in so far as 
 its execution is concerned. 
 
 325 
 
Case No. 90 
 
 SHIRES V. GLASCOCK, 
 
 (§77 
 
 SHIRES V. GLASCOCK. 
 
 (2 Salk. 688.) 
 
 Paschal Term, 3 Jac. IL C. B. 
 
 Upon a feigned issue, the question was, 
 
 whether the will was made according to 
 
 the statute of frauds? For the testator had 
 
 desired the witnesses to go into another 
 
 room, seven yards distant, to attest It, in 
 
 which there was a window broken, through 
 
 which the testator might see them. Et PER 
 
 32G 
 
 CUR. The statute required attesting In his 
 presence, to prevent obtruding another will 
 In place of the true one. It Is enough if 
 the testator might see, it is not necessary 
 that he should actually see them signing; 
 for at that rate if a man should but turn 
 his back, or look off, it would vitiate the 
 will. Here the signing was in view of the 
 testator; he might have seen it, and that is 
 enough. So if the testator being sick should 
 be in bed and the curtain draw. 
 
I 77) 
 
 DAVY V. SMITH. 
 
 Case No. 91 
 
 DAVY et al. v. SMITH. 
 
 (3 Salk. 395.) 
 
 King's Bench. 5 Win. III. 
 
 Upon a trial at bar, tlie question was, 
 ■whether the witnesses to a will had pur- 
 sued the directions of the statute of frauds, 
 .&c. (29 Car. II. c. 3,) in subscribing their 
 .names? and it was resolved, that where the 
 testator lay in a bed in one room, and the 
 witnesses went through a small passage into 
 .another room, and there set their names at 
 a table in the middle of the room, and oppo- 
 :Site to the door, and both that, and the door of 
 
 the room where the testator lay, were open, 
 so that he might see them subscribe their 
 names if he would; and though there was no 
 positive proof that he did see them sub- 
 scribe yet that was a sufficient subscribing 
 within the meaning of the statute, because it 
 was possible that the testator might see 
 them subscribe; and therefore, PER CURI- 
 AM, if the witnesses subscribe their names 
 in the same room where the testator lies, 
 though the curtains of the bed are drawn 
 close, it is a good subscribing within this 
 statute; because, if it is in his power to see 
 them, and what is done, it shall be con- 
 strued to be in his presence. 
 
 327 
 
Case XO. 92 
 
 CASSON V. DADE. 
 
 (§ 77. 
 
 CASSON V. DADE. 
 (1 Brown, Ch. 99.) 
 Court of Chancery. June 26, 1781. 
 Honora Jenkins having a power, though 
 covert, to malie a writing in the nature of a 
 will, ordered the wiU to be prepared, and 
 went to her attorney's office to execute it. 
 Being asthmatical, and the office very hot, 
 she retired to her carriage to execute the 
 wIU, the witnesses attending her: after hav- 
 ing seen the execution, they returned into 
 the office to attest it, and the carriage was 
 accidently put back to the window of the 
 
 328 
 
 office, through which, it was sworn by a 
 person in the carriage, tjie testatrix might 
 see what passed; immediately after the attes- 
 tation, the witnesses took the will to her, and 
 one of them delivered it to her, telling her 
 they had attested it; upon which she folded 
 it up and put It into her pocket. The lord 
 chancellor Inclined very strongly to think 
 the will well executed, and the case of Shires 
 V. Glascock, 2 Salk. 688, 1 Ld. Kaym. 507, 1 
 Eq. Caa. Abr. 403, was relied upon to that 
 purpose. Mr. Arden pressed much for an 
 issue; but. finding lord chancellor's opinion 
 very decisive against him, declined it. 
 
§ 77) 
 
 NEWTON V. CLAEKE. 
 
 Case No. 9» 
 
 NEWTON et al. v. CLARKE. 
 
 (2 Curt. Ecc. 320.) 
 
 Prerogative Court of Canterbury. 1839. 
 
 This was a question as to the admission of 
 an allegation, propounding a paper as a cod- 
 icil to the wUl of Mr. Patrick Perse, who 
 died in ,Tune, 1839. The question was, wheth- 
 er the codicil was duly executed under the 
 statute 1 Vict. c. 26. It was alleged, that on 
 the 8th of April, 1839, the deceased, being 
 then confined to his bed, directed his nephew, 
 who was the residuaiy legatee in the wUl, 
 to prepare a codicil, increasing the legacy 
 of a servant from £60 to £100, which he pre- 
 pared accordingly, and brought to the de- 
 ceased in his bed-room, which was small, 
 the bed standing with the foot towards the 
 fire-place. During the execution of the cod- 
 icil by the deceased, the curtains of the bed 
 were drawn open on both sides, but closed 
 at the foot of the bed. Two small tables 
 were in the room, one at the foot and 
 the other at the side of the bed. When the 
 nephew returned with the codicil, (which 
 he had prepared in another room), into 
 the deceased's bed-chamber, he read the 
 same over, in the presence of White, the 
 deceased's footman, Clarke, the servant 
 whose legacy was increased by the codicil, 
 and the nurse to the deceased, who, in their 
 presence and hearing, expressed his appro- 
 bation thereof; the deceased then signed the 
 codicil, in the presence of the same persons, 
 except that one of them (White the footman), 
 did not actually see him sign the paper, as he 
 was standing by the fire, where the curtains 
 of the bed were closed. The nephew then 
 subscribed his name, as attesting the exe- 
 cution, and proposed that White should do 
 the same; previous to which, he again read 
 the paper to White, in the presence and 
 hearing of the testator. White then attested 
 the codicil, signing it upon the small table 
 between the foot of the bed and the fire, 
 where the cin-tains were still closed, so that 
 the testator might not have seen him sign. 
 
 The Queen's Advocate and Haggard op- 
 posed the allegation. Addams and Robert- 
 son, in support of the allegation. 
 
 SIR HERBERT JENNBR. The word 
 "present" occurs in the statute of frauds, 
 and the meaning of that word has been a 
 subject of discussion in the cases referred 
 to. In the present case, the first considera- 
 tion is, under what circumstances the execu- 
 tion took place. It took place in the cham- 
 ber where the deceased lay, which was small 
 
 (not a large one, where he could not see what 
 was going on), and the probability is, that 
 aU that was going on was heard by the de- 
 ceased, the bed-curtains being open on both 
 sides, and only closed at the foot, to screen 
 him from the fire. All the other requisites 
 of the act were complied with, but it is said 
 White could not see the testator sign his 
 name, nor the testator see him attest his 
 signature. To be sure it appears somewhat 
 strange to say, that what was done by a per- 
 son in the same room, and in the hearing of 
 another person, was not done in his • presence. 
 As far as the words of the act go, I should be 
 of opinion, without reference to the cases, that 
 the witness being in the same room, was pres- 
 ent. The object of the act is to prevent the sub- 
 stitution of another paper, and that no fraud 
 should be practised on the deceased. I 
 should, therefore, hold, that this is a suffi- 
 cient attestation in the presence of the tes- 
 tator, and a sufficient compliance with the 
 act of parUament. The several cases re- 
 ferred to, were questions under the statute 
 of frauds, where wills were attested isi a 
 different room from that where the testacor 
 was. In one of those cases (that of Casson 
 V. Dade, 1 Brown, Ch. 98), the doctrine of 
 constructive presence was carried to a great 
 length, for the testati-ix executed the wiU in 
 her carriage, standing at the office of her 
 solicitor, the witnesses retiring into the of- 
 fice to attest it, and it being proved that the 
 carriage was accidentally put back, so that 
 she was in such a situation that she might 
 see the witnesses sign the wiU through the 
 window of the office; and this was held to 
 be tantamount to being present: she had not 
 ordered her carriage to be put back, and yet 
 it was held that the attestation was construc- 
 tively in her presence. In this case, no sus- 
 picion of fraud can be suggested; the party 
 employed the residuary legatee to prepare 
 the codicil, and he will be a sufferer to the 
 extent of the legacy. 
 
 I am of opinion, that under the act, where 
 a paper is executed by the deceased, in the 
 same room where the witnesses are, and who 
 attest the paper in that room, it is an at- 
 testation in the presence of the testator, al- 
 though they could not actually see him sign, 
 nor the t*tator actually see the witnesses 
 sign; and if the facts pleaded in this allega- 
 tion are proved to the satisfaction of the 
 court, I must pronounce for the validity of 
 the codicil. 
 
 Allegation admitted. 
 
 The executors afterwards took probate of 
 the codicil. 
 
 329 
 
Case No. 94 
 
 IN KE GOODS OF PIERCY. 
 
 (§77 
 
 In re GOODS OF PIERCY. 
 
 (1 Rob. Ecc. 278.) 
 
 Prerogative Court of Canterbury. Aug. 5, 
 1845. 
 
 Charlotte Piercy died in February, 1845, 
 liaving just before her death executed heir 
 will. She was very ill in bed, and totally 
 blind, but in full possession of her mental 
 faculties. The will was prepared according 
 to her directions, and read over to her. In 
 the presence of the attesting witnesses she 
 signed her name in bed, one of them having 
 placed her hand on that part of the paper 
 where it was necessary for her to sign. By 
 reason of there not being any table or other 
 co::veu!eaee in the bedi'oom on which the 
 witnesses could sign their names, they all 
 proceeded immediately to an adjoining room 
 on the same floor, aci'oss a landing or pas- 
 sage, and there within view of the bedroom, 
 the doors of both rooms being open, respect- 
 
 330 
 
 ively subscribed their names. A plan of the 
 rooms was laid before the court, and in a 
 second affidavit it was sworn, that the tes- 
 tatrix, from her bed, could have seen the 
 witnesses at the table when they signed, 
 had she had her eyesight. 
 
 Addams, on these facts, moved the court 
 for probate. 
 
 Judgment. 
 
 SIR HERBERT JENNER FUST. When 
 this case was moved on a former occasion, 
 there was no evidence to show that the tes- 
 tatrix could have seen the witnesses sign, 
 had she had her eyesight, and I felt I could 
 not place her in a better position than one 
 who could see. It does not appear whether 
 there were ciu'tains to the bed; still, as it 
 is positively sworn by two witnesses that she 
 could, had she had her sight, have seen from 
 her bed the witnesses subscribe, I cannot re- 
 fuse this application. 
 
§§ 51. 77) 
 
 lUGGS «. IHGGS. 
 
 Case No. 95 
 
 RIGGS V. RIGGS et al. 
 
 (135 Mass. 238.) 
 
 Supreme Judicial Court of Massachusetts. 
 Suffolk. June 21, 1883. 
 
 Appeal from a decree of the probate court 
 ■disallowing the will and codicil of Jackson 
 Riggs. The case was heard before 0. Allen, 
 J., on the issues whether the witnesses to the 
 will and codicil, or to either of them, attest- 
 ed and subscribed the same in the presence 
 of the testator, within the meaning of the 
 statute. The will was executed on Novem- 
 "ber 15, 1881, and the codicil, which confirm- 
 ed the will except in one particular, was exe- 
 cuted on December 8, 1881. The judge or- 
 dered a decree to be entered that the will 
 and codicil be admitted to probate, and the 
 case remitted to the probate court for fm*- 
 ther proceedings. The contestant appealed; 
 and tho. judge reported the case for the de- 
 termination of the full court, in substance as 
 follows :-- 
 
 The witnesses to the will saw the testator 
 sign it, and were iu the room with him at 
 the time; and they signed it as witnesses in 
 the room adjoining that in which the tes- 
 tator was, and at a distance of about nine 
 feet from him, the door being open. The 
 testator was in bed, and in such a posi- 
 tion that, if he had been able to turn his 
 head round, he might, by so turning it, have 
 seen the witnesses when they signed their 
 names, and also the will itself, unless dur- 
 ing a part of the time, when their bodies 
 obstructed the view; but, from the effect 
 of an injiu?y which he had received, he could 
 not, in point of fact, turn his head suffl- 
 ■ciently to see them and the will at the time 
 when they were signing their names as wit- 
 nesses. 
 
 The witnesses to the codicil did not see 
 the testator sign it, but he acknowledged it 
 to be his signatui'e in their presence, and 
 they signed the codicil as witnesses in the 
 same room with him, and within four feet 
 of his head, and at a table which stood near 
 the head of his bed, and on one side, and 
 a little farther back than directly opposite 
 to his head. By turning his head, if he had 
 been able to do so, he could have seen them 
 when they signed their names, and also the 
 codicil itself; but, in point of fact, from the 
 effect of said injury, he was not able to turn 
 his head sufficiently to see them or the codi- 
 ■cil at the time when they were signing their 
 names as witnesses. 
 
 After the witnesses had signed their names 
 to the original will, it was handed to the 
 testator as he was lying upon the bed, and 
 he read their names as signed, and said he 
 was glad it was done. At the times when 
 the witnesses signed their names to both 
 will and codicil, the testator was conscious, 
 and could hear all that was said, and knew 
 and understood aU that was done. 
 
 Upon the evidence, there was no reason to 
 
 suspect any fraud upon the testator in re- 
 spect to the execution or attestation of the 
 will, or any undue influence upon him; and 
 it was conceded that he was of sufficient 
 mental capacity. 
 
 L. Cowan, for the contestant. I. W. Rich- 
 ardson, in support of the will, was not called 
 upon. 
 
 MORTON, C. J. The only question pre- 
 sented by this report is as to the sufficiency 
 of the attestation by the witnesses to the 
 will and codicil of the testator. 
 
 The statutes provide that, in order to be 
 valid, a will or codicil must be signed by the 
 testator, or by some person in his presence 
 and by his direction, "and attested and sub- 
 scribed in his presence by three or more 
 competent witnesses." Gen. St. c. 92, § 6; 
 Pub. St. c. 127, § 1. 
 
 It appeared at the hearing that the tes- 
 tator had received a severe injury, and was 
 lying upon his bed unable to move. His 
 sight was unimpaired, but he could only 
 look upward, as he was incapable of turn- 
 ing his head so as to see what took place at 
 his side. As to the codicil, it appeared that 
 it was attested and subscribed by the three 
 witnesses in the same room with the tes- 
 tator, at a table by the side of the bed abour 
 four feet from his head. The contestant 
 contends that this attestation was insuffi- 
 cient, because the testator did not and could 
 not see the witnesses subscribe their names. 
 It has been held by some courts, upon the 
 construction of similar statutes, that such 
 an attestation is not sufficient. See Aikin v. 
 Weckerly, 19 Mich. 482, 505; In re Downie's 
 Will, 42 Wis. 66; Ti-ibe v. Tx-ibe, 13 Jui-. 793; 
 Jones V. Tuck, 3 Jones, (N. O.) 202; Graham 
 V. Graham, 10 Ired. 219. But we are of 
 opinion that so nice and naiTow a construc- 
 tion is not required by the letter, and would 
 defeat the spirit, of our statute. 
 
 It is true that it is stated, in many cases, 
 that witnesses are not in the presence of a 
 testator unless they are within his sight; but 
 these statements are made with reference to 
 testators who can see. As most men can 
 see, vision Is the usual and safest test of 
 presence, but it is not the only test. A man 
 may take note of the presence of another by 
 the other senses, as hearing or touch. Cer- 
 tainly, if two blind men are in the same 
 room, talking together^ they are in each oth- 
 er's presence. If two meq are in the same 
 room, conversing together, and either or both 
 bandage or close their eyes, they do not 
 cease to be in each other's presence. 
 
 In England, where the tendency of the 
 courts has been to construe the statute witli 
 great strictness, it has always been held 
 that a blind man can make a valid will, al- 
 though of course he cannot see, if he is sen- 
 sible of the presence of the witnesses 
 through the other senses. Piercy's Goods, 
 1 Rob. Ecc. 278; Finchman v. Edwards, 3 
 Curt. Ecc. 63. It would be against the spirit 
 
 331 
 
Case No. 95 
 
 EIGGS V. EIGGS. 
 
 (§§ 51. 77 
 
 of our statutes to hold that, because a man 
 Is blind, or because he is obliged to keep his 
 eyes bandaged, or because, by an injury, he 
 is pi evented from using his sight, he is de- 
 prived of the right to make a will. 
 
 The statute does not make the test of the 
 validity of a will to be that the testator 
 must see the witnesses subscribe their names; 
 they must subscribe "in his presence;" but 
 in cases where he has lost or cannot use 
 his sense of sight, if his mind and hearing 
 are not affected, if he is sensible of what is 
 being done, if the witnesses subscribe in the 
 same room, or In such close proximity as to 
 be within the line of vision of one in his 
 position who could see, and within his hear- 
 ing, they subscribe in his presence; and the 
 will, if otherwise duly executed, is valid. In 
 a case like the one before us, there is much 
 less liability to deception or imposition than 
 there would be in the case of a blind man, 
 because the testator, by holding the will be- 
 fore his eyes, could determine by sight that 
 the will subscribed by the witnesses was the 
 same will executed by him. We are of opin- 
 
 332 
 
 ion, therefore, that the codicil was duly at- 
 tested by the witnesses. 
 
 The facts in regard to the attestation of 
 the original will do not materially differ from 
 those as to the codicil. The witnesses sign- 
 ed the will at a table nine feet distant from 
 the testator, which was not in the same 
 room, but near the door in an adjoining 
 room. The door was open, and the table 
 was within the line of vision of the testator, 
 if he had been able to look, and the wit- 
 nesses were within his hearing. The tes- 
 tator could hear all that was said, and knew 
 and understood all that was done; and, aft- 
 er the witnesses had signed it, and as a part 
 of the res gestae, it was handed to the tes- 
 tator, and he read their names as signed, and 
 said he was glad it was done. For the rea- 
 sons before stated, we are of opinion that 
 this was an attestation in his presence, and 
 was sufficient. 
 
 The result is, that the decree of the justice 
 who heard the case, admitting the will and 
 codicil to probate, must be affirmed. 
 
 Decree affirmed. 
 
78) 
 
 CAHLETON v. GRIFFIN. 
 
 Case No. 96 
 
 CARLETON ex dem. GRIFFIN v. GRIFFIN. 
 
 (1 BuiTows, 549.) 
 
 King's Bench. 31 Geo. II. 
 
 This was a special case in ejectment, 
 brought upon the demise of John Griffin, 
 the testator's heir at law. A verdict had 
 been given for the plaintiff, subject to the 
 opinion of this court, on the following case: 
 John Griffin (the testator) being seised, &c. 
 and being, &c. on the 2d of May, 1752, wrote 
 upon a sheet of paper, with his own hand, 
 as follows: viz: "Know all men, by these 
 presents, that I John Griffin, &c. make the 
 aftermentioned, my last will and testament: 
 and when it please God to call me, I pray 
 God direct my relict. I make my present 
 wife my whole and sole executrix of what it 
 hath pleased God to bless me with. I order 
 my son John Griffin, my son by my first 
 wife, £600. I have £600 in the three per 
 cent, annuities: which I order not to be sold; 
 but I order my wife to leave the interest 
 thereof to help to bring up my daughter 
 Laviner. I likewise have two freehold 
 houses in, &c. [which are the premises in 
 (liK'stion,] which are to be for the same use, 
 to help to bring up my daughter Laviner, 
 and her heirs for ever. My daughter to take 
 possession of the annuities at her age of 25. 
 And if it please God my daughter die be- 
 fore her mother, and unmarried and without 
 a lawful heir, then the said two houses to go 
 to my son John, and his heirs for ever." 
 
 It concludes — "I pray God to bless and di- 
 rect my wife and daughter and son: and I 
 die in peace with all mankind: and I hope 
 the Lord Jesus Christ will receive my soul: 
 and this is my last will; and not any other. 
 2d day of May, 17.52." 
 
 And he subscribed it, at the same time 
 when he wrote it: but there was no seal 
 nor witness to it. 
 
 And it was further stated, that on the 
 fifth of January 1754, he wrote on the same 
 sheet of paper, the following words, viz. 
 ■'Memorandum — Blackman-sti'eet, 5th Jan- 
 uary 1754: Whereas I have laid out, &c. on 
 a lighter called, &c. and the barge called- 
 the Lemon, &c.; all these, and also aU, &c. 
 at my death, all shall be at my present wife 
 Mary's disposal. And this not to disannul 
 any of the former part made by me, the 2d 
 of May, 1752: except that my wife shall not 
 be liable to pay to my son John, &c. Wit- 
 ness my hand, J. Griffin, sen." 
 
 N. B. The will was written on the first 
 and second sides of a sheet of paper: and 
 the codicil was begun either upon the end 
 of the second, or the beginning of the third, 
 and written upon the third side. (Which 
 circumstance Ld. Mansfield thought mate- 
 rial, though not decisive.) 
 
 And aU this codicil, (or whatever it may be 
 called,) related only to the personal estate; 
 and not at all to the real. 
 
 The testator subscribed this in the pres- 
 
 ence of three witnesses. And then he took 
 the said sheet of paper in his band, and de- 
 clared it to be his last will and testament, 
 in the presence of the said 3 witnesses; 
 and then delivered it to them, and desired 
 they would attest and subscribe it in his 
 presence, and in the presence of each other: 
 which they accordingly did. 
 
 Upon this special case, two questions are 
 reserved for the opinion of this court: viz. 
 
 1st. Whether the republication of the said 
 first will, (made in 1752,) upon the 5th of 
 January, 1754, be a publication or republi- 
 cation of his first will, within the statute of 
 frauds. 
 
 2d question. Whether any estate passed by 
 the first will, either to the daughter, or to 
 the mother. 
 
 Mr. Barnard, for plaintiff. Mr. Burrel, 
 contra, for defendant 
 
 LORD MANSFIELD. The case is ac- 
 cm-ately stated; for it is not stated to be 
 either a will, or a codicil; but a sheet of 
 paper written, «&c. 
 
 First. This is a will of an illiterate man, 
 drawn by himself. 
 
 At first, in 1752, the testator did not know 
 that any witnesses were necessary. In 1754, 
 he had found that they were necessary. 
 Then he makes a subsequent disposition: 
 which is a memorandum to be added to it. 
 But he does not call this a codicil; nor does 
 the case state it to be so. He plainly con- 
 siders the whole as one entire disposition: 
 and he expressly declares in the latter, "that 
 he does not thereby mean to disannual any 
 part of his former devise or dispositions." 
 
 There is not a tittle in the latter, that re- 
 lates to the real estate. Therefore the only 
 intent of having the 3 witnesses, was and 
 must be to authenticate the former. 
 
 The signing the former does no harm: it 
 makes it more solemn; but does not hm't it. 
 
 Then the publication of it is as of a will — 
 He takes up the sheet of paper, and, holding 
 up the said sheet of paper, says, "It is my 
 will." And, certainly, he did not mean a 
 part of it only; but the whole of it. And he 
 desires them to attest it. All this must re- 
 late to the whole that was written on this 
 paper. 
 
 The second point is as plain upon the bare 
 reading, as any argument can make it. 
 
 There can be no doubt of the devise to the 
 daughter; whatever may be the doubt of 
 the interest bequeathed to the mother, till 
 the daughter comes of age, ifor her main- 
 tenance. But it is sufficient to bar the plain- 
 tiff, that an interest is given to one of them. 
 
 Tlierefore it is clear for the defendant on 
 both points. 
 
 Mr. Justice DENISON concurred.— A man 
 may make his will at different times: 
 and the witnesses may attest at different 
 times. Here, an illiterate man makes and 
 
 333 
 
Case No. 96 
 
 CARLETOK v. GBIFFIN. 
 
 (§ 78 
 
 signs his will; in which there is a devise 
 of lands. To be sure, if he had died before 
 attestation, the devise of the land had not 
 been valid. But afterwards, he adds more to 
 it, on the same sheet of paper, and declares, 
 "that he does not thereby mean to disannul 
 any part of his former devise and disposi- 
 tion;" and signs it; and then takes the sheet 
 of paper in his hand, and declares it to be 
 his last will and testament, in the presence 
 of 3 witnesses; and desires the witnesses to 
 attest it: which they do in his presence, &c. 
 
 This must be considered as one entire will, 
 made at differsnt times; and attested agree- 
 able to the statute of frauds. 
 
 As to the second point — It is not at all 
 material, what sort of interest the wife and 
 daughter, or either of them, take under this 
 will: it is sufficient, that they take some sort 
 of interest sufficient to preclude the plain- 
 tiff's demand. And this they certainly do. 
 
 llr. Justice WILMOT concurred with Lord 
 MANSFIELD and Mr. Justice DENISON. 
 He also considered this an entire instrument, 
 and as a continuation of the former act. 
 
 The testator himself calls it a "memoran- 
 dum," (not a codicil;) and declares, "that he 
 did not mean thereby to disannul any part of 
 his former devise or dispositions." He only 
 takes up the consideration of something 
 further, that had occurred to him since his 
 writing the former: and it is not material 
 whether he does this at two days or at two 
 years distance from writing the former part. 
 A man is not obliged to make his whole 
 will, all at the same time. 
 
 And the testator's having originally signed 
 the former part, is out of the case, and makes 
 no difference: for it was not at all necessary 
 or material to it, as a will of personal estate; 
 and the signing alone, unattended with the 
 334 
 
 other requisites, was not sufficient to render 
 It effectual as a will of land. Therefore it 
 was totally immaterial. And, in January 
 1754, having written the memorandum with 
 his own hand, on the same sheet of paper, 
 he takes the said sheet of paper in his hand, 
 and declares "it is his last will and testa- 
 ment;" and desires them to attest it as such, 
 in his presence and in the presence of each 
 other:— which they do. So that there can be 
 no sort of doubt that this was a good publi- 
 cation of this as his will, within the statute 
 of frauds. 
 
 As to the second point — ^It is not at all 
 material what species of interest the testa- 
 tor's wife and daughter, or either of them, 
 may have in these houses; provided that 
 they or either of them have such an interest 
 as is sufficient to entitle them to the pos- 
 session of the estate: for if they have such 
 an interest in them, or in either of them, 
 the ' plaintiff cannot recover in ejectment 
 against them. 
 
 Now I should think that there is a chat- 
 tel-interest in the mother. But be that as 
 it may, here is a devise "to the daughter 
 and her heirs," expressly; (however Inac- 
 curately this illiterate testator has worded 
 what accompanies it:) and therefore she 
 seems to have a fee; (though liable to be 
 conti'olled by certain events that may hap- 
 pen.) But thus much, at least, is clear; viz. 
 that his son John Griffin (the plaintiff's les- 
 sor) was not to take, till the testator's 
 daughter should be dead without issue. 
 
 So that it is extremely clear and plain, 
 that either the mother or the davighter have 
 such an interest as entitles them to tne poss- 
 session of the estate. 
 
 Let the postea be delivered to the defend- 
 ant. 
 
§80) 
 
 BRUNT 0. BKUNT. 
 
 Case No. 97 
 
 BRUNT V. BRUNT. 
 
 (L. R. 3 Prob. & Div. 37.) 
 
 Court of Probate. Feb. 12. 1873. 
 
 William Brunt, late of Sidney street, Com- 
 mercial road, Middlesex, publican, died on 
 the 6tli of August, 1872, having executed a 
 will bearing date the 22nd of November, 
 1869, in which he appointed his wife, Jane 
 Gratton Brunt, the plaintiff, sole executi-ix. 
 By his will he left the whole property to his 
 wife so long as she remained his widow, and 
 in case she died his widow the property waa 
 to go to his son William Charles Harry 
 Brunt absolutely; but in case she married 
 again he gave one moiety to her for her 
 separate use, and the other moiety to his 
 son, absolutely. The plaintiff having cited 
 the defendant, the only child of the testator, 
 to enter an appeai"ance, which he did not 
 do, propounded this will in an ordinary dec- 
 lai'ation. It appeared from the evidence of 
 Dr. Grant, the medical attendant on the de- 
 ceased, that in the month of October, 1871, 
 he was suffering from delirium tremens, and 
 that whilst under such an attack he was in- 
 capable of transacting business, nor was he 
 responsible for his actions; but that after 
 the attack had passed off he could under- 
 stand and answer questions put to him, and 
 occasionally, but not always, knew the state 
 he had been in. The plaintiff deposed that 
 in the same month of October, at the time 
 Dr. Grant was in attendance upon him, the 
 deceased went up to his bedroom one morn- 
 ing at 2 a. m. very di"unk, and opened his 
 iron safe in order to put away the money he 
 had taken during the previous day. That, 
 seeing the will there, he deliberately tore it 
 up into fragments, and threw them on the 
 table, at the same time muttei-ing to himself. 
 That on his leaving the room she collected 
 the pieces together and locked them up, 
 without saying anything to her husband at 
 the time, although she afterwards informed 
 him of the fact. It appeared also that in 
 February, 1872, when he was much better, 
 having abstained from drink for some time, 
 in the presence of Mrs. Ives, the plaintiff's 
 sister, the deceased, refen-ing to the desti-uc- 
 tion of the wiU, said he must have been in- 
 sane when he did it, and would make an- 
 other. 
 
 At the conclusion of the evidence, SIR J. 
 HANNEN said: Assimiing that the de- 
 ceased was out of his mind when he de- 
 stroyed the will, what was the effect of his 
 recognition of the act after the attack had 
 gone off? 
 
 R. A. Pritchard, for the plaintiff. 
 Cur. adv. vult. 
 
 SIR J. HANNEN. In this case a will was 
 propounded which it was alleged the tes- 
 tator had destroyed when suffering under 
 delii-ium tremens, that is, when he was in- 
 sane. The evidence satisfied me that the 
 testator was in an unsound state of mind 
 when he tore up the will; he was sufferins 
 from delirium, and therefore not capable of 
 exercising any judgment in the matter. Tlie 
 pieces were collected and put together, so 
 that the will is now restored to the condition 
 in which it was before the destruction. The 
 testator, after the recovery of his senses, ex- 
 pressed regret at what he had done, and said 
 he would make another will. I am of opin- 
 ion that under these circumstances thei-e 
 was no revocation of the will by destruction. 
 The act done by the testator can in no sense 
 be considered his act, for he was then out 
 of his mind; so that there has never been 
 anything at all amounting to a revocation. 
 After his recovery he expressed regret, and 
 proposed to make a fresh will. The circum- 
 stances are exactly the same as those in 
 Borlase v. Borlase.^ At page 139, Sir H. 
 Jenner Fust says: "The deceased was at 
 the time (of the desti-uction of the paper) in 
 a state of mental excitement, and insane, 
 and not master of his actions, and conse- 
 quently not responsible for his act, as if it 
 had been the act of a competent person; and 
 consequently the attempt at destruction, or 
 even the actual destruction of the codicil, 
 by a person in such a state of mind, has no 
 effect. The pieces of the paper were saved 
 and sealed up in an envelope, with a mem- 
 orandum setting forth the fact of the tearing 
 by the deceased. This attempted destruc- 
 tion, therefore, cannot have the effect of a 
 revocatory act. The deceased is said to 
 have immediately recovered his faculties, 
 and to have expressed regret at tlie act. I 
 think this is not improbable, looking at the 
 nature of the attacks he was subject to; but 
 whether or not this be so, whether he did re- 
 cover himself Immediately after or not, if at 
 the time of the attempted destruction he 
 was not of sound mind, the act can have no 
 effect upon the instrument he attempted to 
 destroy; and therefore nothing, it appears 
 to me, can in any way affect tlie disposition 
 contained in the codicil." I decree probate 
 of the will. 
 
 " 4 Notes of Cas. 106. 
 
 335 
 
Case No. 
 
 GILES V. WALUiEK. 
 
 (§81 
 
 GILES et al. v. WARREN et al. 
 
 (L. R. 2 Prob. & Div. 401.) 
 
 Court of Probate. May 23, 1872. 
 
 Daniel Giles, of West street, Loudon 
 Fields, Hacliney, Middlesex, died on the 16tli 
 of July, 1871, having made a will beaiing 
 date the 24th of November, 1866, in which he 
 appointed his wife Susan Giles, George 
 Clarli, and William Grimwood King, execu- 
 tors and trustees. By this will he ordered 
 certain freehold houses and land belonging 
 to him to be sold, and out of the proceeds 
 of the sale several legacies to be paid, and 
 the residue of his real and personal estate 
 he left to his wife absolutely. The plain- 
 tiffs, as two of the executors named therein, 
 propounded this will, and the defendant, 
 Rebecca Warren, one of the next of kin of 
 tho deceased, pleaded that it was not exe- 
 cuted according to the provisions of the stat- 
 ute 1 Vict. c. 26; and that after the making 
 of the alleged, will the'said ijamei j jues ve- 
 goked the same by tearing it. with an in t en- 
 .tion to revoke the saidwill. Issue was join- 
 ed on these pleas, and on the 3rd of April, 
 1872, it was ordered that the cause should 
 he tried on oral evidence before the court 
 itself. At the hearing the due execution of 
 the will was proved, and Mrs. Giles, the 
 plaintiff and the widow of the deceased, 
 deposed that after the execution of the will 
 her husband placed it in a box where he 
 kept his deeds and papers. In the summer 
 of 1867 she accompanied her husband to 
 Yarmouth, where they made the acquaint- 
 ance of a Mr. Hlllstead. After their return 
 home Mr. Hillstead called upon them in 
 West street. In the com'se of conversation, 
 reference having been made to his will, her 
 husband said to Mr. Hillstead, "I will get 
 it out and show it to you." He did so. J\Jr. 
 HL Ustead rea d.i t, and sai d itji^s_not_legal. 
 Mr r^iiPs^_aaiid r^^Why"no trMr. Hillstea'd 
 
 «a.id, "Becai;ise tha itt^mg are nnt namerl jn . 
 
 it— the p articulars of the money in the bank" 
 Mr.,^G J . lpS i to ok the will, iind said to th(? d,e- 
 -nnnent, "Well thpn. child, it is n f no use. " 
 He had the najtp v in his han(L H £ tore itjit, 
 t] ie moment he spoke to her. He^ then gav e 
 to deponent the bit s and .said, "T.av thpiri pri 
 the fire," There was no fire lig kted. She 
 laid them on the grate and then went into 
 the garden. Shortly afterwards Mr. Giles 
 336 
 
 followed her into the garden and called out, 
 "I have bethought myself, George don't 
 know everything. I have taken th effi. away." 
 He J^adthe pipijoa- of the will in his hfln^l. 
 STfurtECTsaid,^ "I will put them away; they 
 will be of use to you at some future time." 
 Mc,^ ^les then put the pieces in a book, an4 
 Dlaced~in n"^e-bQ3: with his other paperil^ 
 Mr. Hillstead was also examined, and de- 
 posed as to his visit to Hackney, in August, 
 1867, and to the reading of the will. He 
 told the testator that he had better have 
 inserted the particulars of his property in 
 the will, but he did not say that without 
 such particulars the will was invalid. .It 
 was very likely the testator thought from 
 what deponent said that the will was not 
 legaL Declarations of the testator of his 
 Intentions in tearing the will, made subse- 
 quently to the date of this transaction, were 
 offered, but rejected by the court. 
 
 Dr.- Deane, Q. C, and Mr. Inderwick, for 
 plaintiffs. Dr. Spinks, Q. C, and Mr. Bay- 
 ford, for defendants. 
 
 LORD PENZANCE.— I think in this case 
 there was no revocation. The fact that a 
 testator tears or destroys his will is not it- 
 self sufficient to revoke one properly execut- 
 ed. That is to say, the bare fact. If, for 
 instance, he tears it imagining it to be 
 some other document, there would be no 
 revocation, for there would be no animus 
 revocandi. He must intend by the act to re- 
 voke sometliing that he had previously done. 
 Th ere can be no intention to revoke a will, 
 if a person destroys tli a_ paper under the 
 idea, whether right or wrong, that it is not 
 a valid will . Revocation is a term applica- 
 ble to the case of a person cancelling or de- 
 stroying a document which he had before 
 legally made. He does not revo ke '<• ^^ ^^ 
 does_not_t reat it as being valid at the tim e 
 yhenhe ie ts about to destroy it. Accord- 
 ing~To tne evidence the testat or, in conse- 
 quenc e of some^convei^tion_he_liaiL_^ith 
 HinsteMOyas'undertie^imBTfissioB-tiatJbe 
 hadjjiad.e. rLQ..:?^aIid__wItU_andj__as_j2eins_i^e- 
 less, he tore the document up and threw it 
 ^IjEe jlrerTrhat^Js._.no_ie5ocatioii. What 
 happened afterwards was not material. If 
 the will had been once revoked, the testa- 
 tor could not set it up again by subsequent 
 declarationsi 
 
§§ 53, 82) 
 
 O'XEALL V. FAKU. 
 
 Case No. 99 
 
 O'NEALL V. FARR et al. 
 
 (1 Rich. Law, 80.) 
 
 Court of Appeals of South Carolina. Dec, 
 1844. 
 
 This was an issue, devisavit vel non, on 
 appeal from the ordinary's decree, admitting 
 to probate, as the last will and testament of 
 Wm. B. Farr, the will to .Tudge O'Neall, men- 
 tioned in the case of Farr v. Thompson, 
 Ex'or, reported in Cheves, 37, and again in 
 1 Spears, 93. The facts of the case are so 
 fully detailed in those reports, and in the 
 opinion of the court of appeals, as to render 
 any further statement unnecessary. 
 
 Preston & Dawkins, for the motion. Hen- 
 ry & Herndon, contra. 
 
 Curia, per EVANS, J. The testator, by his 
 last will and testament, duly executed, and 
 bearing date 16th day of June, 1828, gave his 
 whole estate to J. B. O'Neall, and appointed 
 him sole executor. On the nineteenth of the 
 same month, he wrote a letter to the execu- 
 tor, declaring the uses and trusts of the be- 
 quest in the following words: 
 
 "I want Fan and Hem-y to be free; I want 
 Fan to have one half of my estate, and Hen- 
 ry the other half. When Fan dies, I want 
 Henry to have half of Fan's half, and you 
 the other half for your care and trouble of 
 them; and should Henry die, leaving no 
 wife nor child, I want you to have the whole 
 of my estate forever. I want you to give 
 Henry a good education, and do the best you 
 can with him, and deal out his share to him 
 as you think best, or as you think he will im- 
 prove it, I want you to take Fan holne 
 with you, and build her a comfortable little 
 liouse somewhere on your plantation, and let 
 Fender and Cesley live with her as long as 
 she lives." 
 
 The testator died in 1837. This paper was 
 propounded in the court of ordinary for Un- 
 ion district, as the last will and testament of 
 WlUiam B. Farr, and admitted to probate. 
 The appellants, who are the heirs at law 
 of the testator, and are his brothers of the 
 half blood, and the children of brothers of 
 the whole blood, appealed from the decision 
 of the ordinary, to the court of common 
 pleas. The grounds of appeal are as follows: 
 
 1. That the paper propounded is not the 
 will of William B. Farr, but procured by the 
 undue influence of a negro woman named 
 Fan, the property of testator. 
 
 2. It was procured by fraud on the testa- 
 tor, and under circumstances of fraud on the 
 law and the policy of the law. 
 
 3. By the threats and menaces of Fan. 
 
 4. It was revoked by a later will, bearing 
 date the 17th August, 1836. 
 
 5. It was revoked by a codicil, dated 20th 
 February, 1837, and by another writing, dat- 
 ed December 5th, 1834. 
 
 6. It was not executed according to law. 
 
 7. It was a duplicat<» of a will which was 
 Jturnt or destro.ved by the testator.' 
 
 ABB. WILLS — 22 
 
 On the .trial of the case in the circuit court 
 the jury iound against the will, and this 
 case comes up to the appeal court, on a mo- 
 tion for a new trial. 
 
 There is no doubt, from the evidence, that 
 the testator was of sound mind, and that the 
 will was executed according to the require- 
 ments of the act of 1789, (5 Stat. 106.) The 
 paper executed 5th December, was no revoca- 
 tion, because that was void for the want of 
 three witnesses. There is nothing in the evi- 
 dence which establishes any threats or men- 
 aces of Fan, or any other person, in pro- 
 curing this will; or that it was procm-ed by 
 any fraud on the testator. The remaining 
 grounds are: 
 
 1. That it was procured by the undue in- 
 fluence of Fan. 
 
 2. That it is void as against the policy of 
 the law; and 
 
 3. That it was revoked or destroyed, by 
 the subsequent acts of the testator. 
 
 These questions I shall now consider, with 
 a view to determine if the verdict of the 
 jury can be sustained, by either the law or 
 the facts of the case. 
 
 In considering this case in reference to the 
 undue influence alleged to have been exer- 
 cised in the procurement of this will by Fan, 
 it must be remembered that this will bears 
 date the 16th June, 1828. Up to this time, 
 the testator enjoyed good health, and had 
 an unbroken constitution. Most of, if not 
 all, the witnesses speak of him as a man of 
 strong and vigorous mind, very self-willed, 
 and not likely to be under the Influence or 
 control of any one. It was not until 1832 
 that he became palsied; and it was not until 
 after that time that those scenes of drunk- 
 enness and violence occmred, which are so 
 shoclung to decency, and all om- notions of 
 propriety and svibordination. Indeed, most, 
 if not all of them, were within two years of 
 his death, which occuiTed in 1837. Except 
 in a few solitary instances, Fan's conduct 
 was as submissive to his will as could well 
 be expected from one in her condition. In 
 refusing to let Nelly Brock and John Ferrel 
 have bacon in exchange for a calf, and in 
 payment of an account, slie did set up her 
 will in opposition to her master's; and most 
 of the witnesses thought she assumed more 
 authority over the liousobold affairs and the 
 government of the negroes, than was becom- 
 ing her condition as a slave. That she had 
 ceased, practically, to be a slave; that she 
 shared hor master's bed, and was the moth- 
 er of his acknowledged child, were circum- 
 staucos which naturally lead to that assump- 
 tion of authority in the household affairs 
 which was so offensive to some of the wit- 
 nesses. But up to the time when this will 
 was executed, it does not appear from the 
 evidence, that, except in a solitary instance, 
 she ever interposed her wishes in relation to 
 the disposition of his property. That cir- 
 cumstance is related by McRay as follows. 
 "Farr said he would give Henry ten thou- 
 
 337 
 
Case No. 99 
 
 O'AEALL V. FARE. 
 
 (§§ 53. 822 
 
 sand dollars, and send him to a free state. 
 The rest of his property he would divide 
 among his relations, and would secure Fan 
 her freedom. Fan objected to the division 
 among the relations. Farr said, if you are 
 secure for your lifetime you ought to be 
 satisfied; if Henry could not do on ten thou- 
 sand dollars, he would not on a hundred 
 thousand dollai-s." That she derived from 
 her situation a certain degree of influence, 
 and that she was indulged in her wishes in 
 the management of the domestic affairs, is 
 very clear from the evidence. But the influ- 
 ence wliich in legal acceptation is called un- 
 due Influence, is of a very different charac- 
 ter. Perhaps no man has ever existed who 
 was so entirely self-willed as to be wholly 
 uninfluenced by the opinions and wishes of 
 those with whom he was connected. Not 
 merely in the ordinary affairs of life, but in 
 the disposal of his property, even the stern- 
 est man is sometimes influenced by the 
 wishes and advice of a friend, a wife, or 
 even an unworthy mistress, who has u.suip- 
 ed, both in his affections and at his table, 
 the place of his lawful wife. It has happen- 
 ed, and will happen again, that a mistress 
 may so captivate the affections of her para- 
 mour, that he shall give her his whole es- 
 tate, to the exclusion of his lawful wife and 
 children. Such an act all would condemn, 
 and concur in denouncing as immoral and im- 
 proper the influence which produced it; yet, 
 if it be done under the influence of affection 
 merely, however unworthy the object may 
 be, such wills have been, and must bo, sup- 
 ported, so long as the law allows a sane man 
 to dispose of his property according to his 
 own wishes. It has never been supposed to 
 be essential to a will or deed, that the mo- 
 tive which led to the act should be virtuous, 
 or that the object of the donor's bounty 
 should be meritorious, but it is essential that 
 it should be the free and voluntary act of a 
 sane mind. If, in making it, he has been 
 influenced by "modest persuasion," by argu- 
 ments addressed to his understanding, or by 
 appeals to his affections, merely, the act is 
 a valid one. If it be in conformity to his 
 wishes, it is emphatically his will, and not 
 the will of another, and we are bound to 
 give it effect, without reference to the mo- 
 tive of the testator, or the unworthiness of 
 the legatee, until the legislature, upon con- 
 siderations of public policy, shall think prop- 
 er fm-ther to abridge the right of the owner 
 to dispose of his property. 
 
 As to what shall constitute undue influ- 
 ence, I can add but little to what is said 
 in ttie case of Farr v. Thompson, Cheves, 
 37. According to the authorities, it must be 
 so great as, in some degree, to destroy free 
 .agency; an influence exercised over the tes- 
 tator to such an extent as to constrain him, 
 from weakness or other cause, to do what is 
 against his will, but what he is unable to 
 refuse. This influence may be obtained ei- 
 ther by flattery, by excessive importunity, 
 338 
 
 or by threats, or in any other way by which 
 one person acquires a dominion over the- 
 will of another. The particular facts by 
 which it is established, must, of coui-se, 
 arise out of each particular case, and must 
 be loft to some extent to the decision of the 
 jury; but there must be some evidence tO' 
 support a verdict which takes away from a 
 testator that right of disposing of his prop- 
 erty after his death, which, with most men, 
 is among the most cherished of the rights 
 secm-ed to us by law. 
 
 Whenever the validity of a will is disput- 
 ed, the natural inquiry is, whether it is vol- 
 untary, whether it be conformable to his- 
 wishes and his previously declared intention,, 
 and according to the course of his affections. 
 "When a sane man, with legal solemnities, 
 executes a will, the law presumes, in the ab- 
 sence of proof to the contrary, that it was 
 done voluntarily, and that it contains truly 
 his wishes and intentions in relation to the 
 disposition of his property. The burden of 
 proof lies on him who alleges the existence 
 of undue influence, and its exercise in the 
 proeiu-ement of the will. 
 
 I have before said Fan was greatly in-- 
 dulged; and that she had some influence- 
 over the testator, arising out of her position, 
 can scarcely be doubted. From this arose 
 her familiar mode of addressing him, her 
 presumptuous claim to be his wife, and her' 
 dominion over the servants and household 
 affairs; but beyond these, the evidence fur- 
 nishes no proof of influence possessed or 
 exercised, or attempted to be exercised, un- 
 less we can so regard the fact before stated 
 from the evidence of McRay. At a period 
 subsequent to the making of this will, and 
 after his mind and energy of character were 
 much impaired by drunkenness and disease,- 
 the evidence assumes a somewhat different 
 character. Those scenes which are so shock- 
 ing to decency and our ideas of the subordi- 
 nation of slavery, which are related by Ellen' 
 Brock, occurred in the last year of his life, 
 and during fits of mutual intoxication; and 
 it was not long before his death, and under' 
 lilve circumstances, that Mr. Kelly came to- 
 the conclusion that Fan could have sold, 
 or prevented the sale of, any of Farr's ne- 
 groes. All these facts were permitted to go- 
 to the jmy; and although this gave a sem- 
 blance of support to the verdict of the jury 
 which set aside the subsequent will of 1837,- 
 of which Dr. Thomson was executor, they 
 can have very little bearing on this case. 
 When this will was executed, nine years be- 
 fore the testator's death, he was a man in- 
 the vigor of health and manhood, and, as 
 all the witnesses say, of strong intellect and 
 stubborn will. When the Thomson will was- 
 executed, he was enfeebled, both in body 
 and mind, to some extent at least, by a 
 stroke of the palsy, and several years of 
 drunkenness and debauchery. The woman, 
 Fan, who had formerly been respectful and 
 submissive to his will, had become, with- 
 
§§ o3. 82) 
 
 O'NEALL 0. FARB. 
 
 Case No. 99 
 
 him, a drunkard, and during the phrensy 
 of drunlienness, had even attempted vio- 
 lence on his person. But to infer undue in- 
 fluence from these facts, in procuiing a will 
 executed eight or nine years before, would 
 be a fai'fetched conclusion, and at variance 
 with the truth of the case. They were well 
 calculated to excite in the jiu-y disgust and 
 abhorrence and to lead them ofE from the 
 ti'ue points of the case to the consideration 
 of Fan's unworthiness, who was liberally 
 provided for by the trusts of the will. As 
 far bacli as 1822, the evidence establishes 
 very clearly the intention of the testator, 
 to dispose of his property mainly for the 
 benefit of Henry, who was then his acknowl- 
 edged child. Mr. Kelly said it seemed to 
 be his "settled purpose." In 1817, he ex- 
 pressed his intention to give his estate to 
 his nephew, W. B. R. Farr; and occasional- 
 ly, afterwards, an intention to provide for 
 some of his relations, and especially for the 
 children of his brothers of the whole blood; 
 yet, he has frequently said that none of them 
 should have any of his property. Every de- 
 liberate act which he performed, from 1822 
 to his death, except the gift to his nephew, 
 W. B. F. Duff, in 1835, was declaratory of 
 a settled intention to exclude his heirs at 
 law, and to make an ample provision for his 
 illegitimate child. Such was the provision 
 of the will which he told Stokes he had made 
 in 1821 or 1822, and of the will of which 
 Hill and McKibben were executors, which, 
 according to Dr. Thomson's evidence, was 
 as far back as 1823. The same may be said 
 of the will now in controversy, and of the 
 subsequent will of 1837. Even in those con- 
 versations in which he spoke of providing 
 for his relations, after 1819, Henry seems to 
 have been the chief object of his bounty, 
 and his relations only secondary, except 
 what is related by Ellen Brock, as having 
 been said by Farr in the last year of his 
 life. There seems to be no doubt that, for 
 many years before the testator's death, the 
 boy Henry was the object of his affection 
 and extreme solicitude. He so said on many 
 occasions, and, according to the opinion of 
 some of the witnesses, the boy was one that 
 a father might have loved; he was his child, 
 but he was a slave, and the law did not al- 
 low him to be set free; he was anxious to 
 educate him and give him the status of a 
 white man, but his respectable neighbors 
 would not allow him to be sent to school 
 with their children. He sent him to a dis- 
 tant school, from which he was ejected, so 
 soon as his caste was discovered, although 
 his complexion was such that it required 
 very close inspection to decide that he was 
 not white; and finally, he was exiled to a 
 free state, to exempt him from liability to 
 seizure as a slave, should his father die 
 without accomplishing his emancipation. 
 Under these circumstances, is it strange 
 that the emancipation of his child, and a 
 provision for him out of his estate, should 
 
 have become subjects of much solicitude, 
 and that he should have given to his ex- 
 ecutor, as he did in all his wills, a consid- 
 erable portion of his estate as a purchase of 
 his fidelity, in the emancipation of his child 
 from slavery, and giving him that position 
 in society which is the consequence of free- 
 dom and wealth? So far, therefore, as the 
 facts of the case are concerned, we can see 
 nothing which resembles undue influence ex- 
 ercised by Fan in the procurement of this 
 will. It is of vast importance to society 
 that the rules of property should be fixed 
 and certain, as far as practicable. Farr 
 had an equal right with every other man to 
 make a will; and this court will not permit 
 this right to be taken from him by the ver- 
 dict of a jury, without some evidence to 
 support it. 
 
 Independent, however, of the facts of this 
 case, it is supposed the verdict must be sus- 
 tained on certain legal principles hereinbe- 
 fore stated. The first of these which I shall 
 consider is, whether the trusts of this will 
 violate any principle of public policy. What 
 is or is not public policy, is matter of opinion, 
 about which men differ as essentially on this 
 subject as on any other. Until, therefore, 
 the opinion of the community is embodied 
 in the shape of law, we cannot regard it ju- 
 dicially. In 1828, there was no law in ex- 
 istence prohibiting such a disposition of a 
 man's estate as is made by this will, and the' 
 trusts declared by the letter of the testator 
 to the executor, written a few daj's after- 
 wards. If it was a valid will at Farr's 
 death, rights have accrued under it whicli 
 cannot be taken away by subsequent legis 
 lation. 
 
 The 7th ground of the suggestion alleges, 
 that this is a duplicate of a will which was 
 burnt or destroyed by the testator. There is 
 no doubt, if a will be executed in duplicate, 
 and one copy be destroyed by the testator, 
 with the intention to revoke, it is an entire 
 revocation of the other. But to give this 
 principle any application, there should be 
 some evidence that the will was executed in 
 duplicate. The witnesses to the will say, 
 there was but one copy executed; and if he 
 afterwards had executed another, it would 
 not be a duplicate, but a new will. No doubt 
 the wiU Dr. Thomson copied from, wlien 
 he wrote the will of 17th August, 1836, was 
 an exact transcript of this, and that the tes- 
 tator had written his name in the margin, as 
 he had done in the will now under considera- 
 tion; but Dr, Thomson did not know whetli- 
 er it was signed or attested by witnesses. 
 Unless we take tlie assertion of tlie fact for 
 proof, there is nothing to authorize the con- 
 clusion that there ever was a duplicate of 
 this wUl. What Dr, Thomson copied from, 
 was either the will itself, or a copy. No 
 other conclusion is authorized by the facts. 
 
 The 4th ground in the suggestion is, that 
 this will was revoked by the subsequent will, 
 dated the 17th August, 1836, of which Dr. 
 
 339 
 
(Caso Xo. 99 
 
 0'2>JEALL 0, FAlUi. 
 
 (§§ 53, 82 
 
 Thomson was appointed executor. By the 
 act of 1789, no will, or clause of any will, is 
 revocable but by a subsequent will or codicil 
 or other writing, executed according to the 
 provisions of that act, or by concealing or 
 destroying it. To say that a will, not signed 
 by the testator or attested by three wit- 
 nesses, could revoke a former will, would be 
 to repeal the third section of that act. Or, 
 that a will executed when the testator was 
 lion compos mentis, or under duress from 
 threats or undue influence, would be to re- 
 voke a good will, by an instrument wholly 
 invalid and void, and to make a man die in- 
 testate, when it is clear he intended to die 
 testate. Mental capacity, and the free exer- 
 cise of it, are as essential to the revocation as 
 to the creation of the will. For the want of 
 some of those requisites, the will of the 17th 
 August, 1836, has been set aside, and judi- 
 cially decided to be no will; and the princi- 
 ple is universally true, that an ineffectual at- 
 tempt to make a new will, does not revoke a 
 prior valid will. 
 
 The only remaining ground relates to the 
 codicil or other writing of the 20th February, 
 1837. By this paper, after revoking a gift 
 before made to his nephew, W. F. Duff, the 
 testator says, "also any other instrument of 
 writing that I may heretofore have given, 
 implying, signifying, or purporting any claim, 
 right or lien on my estate, or any part there- 
 of, even to one cent, I do now declare null 
 and void and of no effect, except tlie within 
 or annexed will, which is my true and law- 
 ful will, and no other." At the time of the 
 execution of this paper, it was not attached 
 to any will. A short time after its execu- 
 tion, it was attached to the will of 1836, by 
 Dr. Thomson, under the direction of the tes- 
 tator, by wafers. Thus attached, they were 
 found in the testator's possession at his 
 death, and propounded to the court of ordi- 
 nary as the wiU of W. B. Farr. The ordi- 
 nary says: "The witnesses to both were ex- 
 amined. There was no separate examination 
 about the codicil; they were regarded as one 
 340 
 
 paper." The ordinary decided, that both 
 these papei-s together, constituted the last 
 will and testament of W. B..Farr. It is 
 clear, from this evidence, that the issue made 
 up on the appeal from the ordinary, involved 
 the validity of the codicil, as well as the 
 will, and that the verdict, in the case of Farr 
 V. Thompson, applies as much to the one as 
 the other. This is manifest from the con- 
 sideration, that although the will, when ex- 
 ecuted, might be bad, or the testator might 
 be non compos mentis, ' or under duress or 
 undue influence at its execution, yet, if he 
 was sane and free from duress or undue in- 
 fluence when he executed the codicil, that 
 would be a republication and confirmation of 
 the will, and would free it from the objec- 
 tion to which it was liable at its execution. 
 As both papers were propounded together, 
 and as the will could not be void, uilless the 
 codicil which confirmed it was void also, it 
 follows, of necessity, that the verdict of the 
 jury, in Farr v. Thompson, applies to both, 
 and that both have been decided to be void; 
 and, of com-se, according to the principles 
 before stated, this codicil is no revocation 
 of the prior will of 1828. In the argument, 
 it was insisted that this paper of the 20th 
 of February. 1837, was not a codicil, but the 
 other writing spoken of in the act of 1789. 
 To the decisicn of this case, it is wholly im- 
 material by what name it is called. If it be 
 an ineffectual attempt at revocation, it is lia- 
 ble to the same objections as like attempts 
 made by wills and codicils. All are put on 
 the same footing by the act of 1789. I come, 
 therefore, to the conclusion, that the verdict 
 of the jury, setting aside the will of W. B. 
 Farr, cannot be sustained on any of the 
 legal grounds before stated; and as it is not 
 only against the weight of the evidence, but 
 wholly without evidence to support it, a new 
 trial must be granted — and that is the unani- 
 mous opinion of the court. 
 
 RICHARDSON, BUTLER, WARDLAW, 
 and FROST, JJ., concurred. 
 
§§ 83. 88, 95) 
 
 GRAHAM V. BUECH. 
 
 Case No. 100 
 
 GRAHAH ,. BUKCH. 
 
 (49 N. W, 697, 47 Minn. 171.) 
 
 Supreme Court of Minnesota. Aug. 24, 1891. 
 
 Appeal from district court, Ramsey 
 county; Kerr, Jnds;e. 
 
 John It. O'Brien and Arniand Albrecht, 
 for appellant. Thompson & Taylor, for 
 respondent. 
 
 Vanderburgh, J. Upon the 8th day of 
 January, 1887, one James Burns, of the 
 city of St. Paul, duly executed and pub- 
 lished his last will and testament, where- 
 by he devised liis estate, consisting of a 
 lot in the city of St. Paul, with buildings 
 thereon, to his two daughters, who are 
 the parties to this action. Dpon his de- 
 cease Mrs. Birch, the defendant, who is 
 iiiuned MS executrix in the will, petitioned 
 the probate court for its allowance. Her 
 application was denied, and an appeal 
 lnken by the executrix to the district 
 court, where, upon a full hearing, the 
 court reversed the decision of the probate 
 court, and directed the will to be admit- 
 ted to probate. The legal questions in- 
 volved In the case arise cliiefly upon the 
 following facts found by the district 
 court : After the execution of the will, the 
 decedent demanded of Mrs. Birch, who 
 had custody of the will, that it be deliv- 
 ered to him to be destroyed. Upon its de- 
 livery to him, he placed it, inclosed in an 
 envelope, in a stove, with kindlings not 
 yet ignited, with the intention of destroy- 
 ing the will by burning, when the fire 
 should be lighted. The facts were found 
 by the court as follows: (1) "This was 
 done in the presence of said Bridget F. 
 Birch, and with the express and actual in- 
 tention on the part of said decedent to 
 destroy said will by burning, when said 
 fire should be lighted. Said decedent then 
 stepped for a moment out of the room, 
 and thereupon said proponent Birch 
 fraudulently, and with the purpose of 
 thwarting the said intention of decedent, 
 and without his knowledge or consent, 
 took the will out of the envelope, and 
 secreted it, leaving the envelope in the 
 stove to all appearances as though it still 
 contained the will. Within two hours 
 thereafter the fire in said stove was light- 
 ed, either by said decedent or by said 
 Birch, and said envelope burned. Said 
 will was thereafter kept secreted by said 
 proponent Birch, and the decedent ever 
 after supposed the same had been then 
 and there burned as he intended. Said 
 will was not in fact revoked by any of the 
 methods specified by statute." (2) "Tnat 
 on the 6th day of May, 1887, the deceased, 
 James Burns, executed, acknowledged, 
 and delivered to said Bridget Francis 
 Birch a deed of conveyance of the norther- 
 ly seventy-five (75) feet of lot numbered 
 one, (1,) in block numbered fifty, (50,) of 
 Dayton and Irvine's addition to St. Paul, 
 Ramsey county, Minnesota, being the 
 same property given and devised by the 
 decedent to the said Bridget Francis Birch 
 in the third paragraph of the will of said 
 decedent presented for probate in this 
 proceeding; that said deed was after- 
 wards, in an action brought in this court 
 by said Mary Graham against said Bridg- 
 et Francis Birch and others for that pur- 
 
 pose, set aside upon the ground that the 
 same was procured by reason of undue 
 influence and restraint exercised over said 
 decedent by thesaid Bridget Francis Birch 
 at the time of the execution thereof, and 
 the judgment of this court in said action 
 was duly entered accordingly. " The stat- 
 utory provisions in respect to the revoca- 
 tion of wills are as follows. Gen. St. 1878, 
 c. 47, § 9: "No will, or any part thereof, 
 shall be revoked unless by burning, tear- 
 ing, canceling, or obliterating the same 
 with the intention of revoking it by the 
 testator, or by some person in his pres- 
 ence, and by his direction, or by some 
 will, codicil or other writing signed, attest- 
 ed, and subscribed in the manner provid- 
 ed for the execution of p will; but noth- 
 ing contained in this section shall prevent 
 the revocation implied by law from sub- 
 sequent changes in the condition or cir- 
 cumstances of the testator. " In this case 
 the purpose of the testator to burn his 
 will is clearly shown, but the will remains 
 intact. It was not scorched or mutilated 
 in any degree. The testator did not per- 
 sist in carrying out his expressed purpose, 
 nor see to it that it was actually burned, 
 wholly or partially. The acts which the 
 statute declares shall constitute an ex- 
 press revocation were none of them 
 done. If in any case, in the absence of 
 any of the acts specified in the statute, 
 the fraud of the devisee could be held to 
 supply the place of such acts, the record 
 before us perhaps presents such a case. 
 But we cannot vary or dispense (;\'ith the 
 statutory rule, which the legislature has 
 for wise reasons established, on account 
 of the fraud of an interested party. The 
 statute requires that the will itself should 
 be destroyed, or bear some of the marks 
 of defacement or spoliation, manifesting 
 the intent to revoke. The act and intent 
 must concur, and there must be proof of 
 both, though the intent may be inferred 
 from the facts and circumstances. The 
 law will not permit the formalities of the 
 execution of a will to be dispensed with 
 because of fraudulent interference, and 
 the same rule must be applied in respect 
 to the statutory requisites of revocation. 
 4 Kent, Comm. §§ 520, 521. In Dan v. 
 Brown, 4 Cow. 483, Woodwoeth, J., says: 
 "There must be a canceling aniwo revo- 
 candi. Revocation is an act of the mind, 
 which must be demonstrated by some 
 outward and visible sign of revocation. 
 'J'he statute has prescribed four. If any of 
 them are performed in the slightest man- 
 ner, joined with a declared in tent to revoke, 
 it will bean effectual revocation." Gains 
 V. Gains, 2 A. K. Marsh. 190; Bibb v. 
 Thomas, 2 W. Bl. 1043; Reed v. Harris, 6 
 Adol. & B. 209; Jackson v. Betts, 9 Cow. 
 208; Blanchard v. Blanchard, 32 Vt. 62. 
 But the failure to perform some one of the 
 acts designated by the statute cannot be 
 excused, though such formal act of revoca- 
 tion be defeated or prevented by fraudu- 
 lent devices. Kent v. Mahaffey, 10 Ohio St. 
 204: Hise v. Fincher, 10 Ired. 139: Malone 
 v. Hobbs, 1 Rob. (Va.) 346; Clingan v. 
 Mitcheltree, 31 Pa. St. 27; Gains v. Gains, 
 supra. 
 
 2. Under the clause saving revocations, 
 " Implied by law from subsequent changes 
 in the condition or circumstances of the 
 testator," it is claimed that the convey- 
 
 341 
 
Case No. 100 
 
 GKAHAM ». BUUCn. 
 
 (§§ 83, 88. 95 
 
 auce to Mrs. Birch above referred to, 
 and which was set aside by the court, 
 on the ground of undue influence, must be 
 construed as an implied revocation of tlie 
 will in question. Of course, a sale of the 
 estate devised must operate as a revoca- 
 tion, for the will cannot thereafter take 
 effect on it; and it is admitted that, if 
 the deed had been valid and effectual to 
 convey the premises, it would have worked 
 a revocation; but the respondent in.slsts 
 that the rule is not apiilicable to a deed 
 adjudged invalid, and not the deed of the 
 grantor, for fraud or undue influence. If, 
 in opposition to the allowance of a will in 
 probate proceedings, a revocation in 
 writing, executed in due form by the tes- 
 tator, had been produced, clearly the pro- 
 ponent would not be concluded from 
 showing that it was not the voluntary 
 act of the testator, but that it was pro- 
 cured by fraudulent devices and undue in- 
 fluence. O'Neall V. Farr, 1 Rich. Law, 80. 
 But we can see no distinction in this 
 respect between such an Instrument and 
 a deed which is claimed to work a revoca- 
 tion by implication. If the deed was not 
 the act of the testator, and the existence 
 of the deed Is due to fraud and undue 
 Influence, especially where, as in this in- 
 stance, the fact is already adjudicated that 
 the instrument, though in form the testa- 
 tor's deed, is no deed. " Whoever orders 
 it to be delivered up declares it to be no 
 deed," says the chancellor in Hawes v. 
 Wyatt, 3 Brown, Ch. 156. The general rule 
 is that no revocation can be good which 
 is procured by fraud, or where the testa- 
 tor was unduly influenced to make it. 
 Schoulor, Wills, § 184. It is true, as Chan- 
 cellor Kentobserves, (4 Comm.p.,')28,) that 
 not only contracts to convey, but inoper- 
 ative conve.yances will amount to a revo- 
 cation if there be evidence of an Intention 
 to convey. But in such cases, where the 
 title does not in fact pass, the inten- 
 tion must be manifest. Mr. ftreenleaf, 
 however, seems to recognize the distinc- 
 tion insisted on by the plaintiff's counsel 
 here, (2 Greenl. Ev. § 687,) for he sayS: 
 "The rule [i. e., implied revocation] does 
 not apply to a conveyance which is void 
 at law on account of fraud or covin, yet 
 if the deed is valid at law, but impeacha- 
 ble in equity, it will be held in equity as a 
 revocation;" citing Simpson v. Walker, 
 •TSim.l. The same distinction is recog- 
 nized in other English cases, though Lord 
 'I'HURLOW held differently in Hawes v. 
 Wyatt, supra. And Mr. Redfield, In notic- 
 ing these authorities, (I Kedf. Wills, § 344,) 
 is of the opinion that, if the deed in such 
 cases is void, it should not be allowed an 
 incidental operation by way of revoca- 
 tion. In Smithwick v. Jordan, 1.5 Mass. 
 115, a case resembling this on the facts, the 
 court held that a deed found to have been 
 obtained by fraud and Imposition, after 
 the execution of the will, was no revoca- 
 tion. In this case the court found that 
 the decedent was old and feeble, in ill 
 health, and addicted to the habitual use 
 of intoxicating liquors, though not of un- 
 sound mind, and that the deed was set 
 aside on the ground that the same was 
 procured by reason of undue Influence and 
 re.straint exercised over said decedent by 
 the said Bridget Birch, at the time of the 
 execution thereof. The instrument was 
 342 
 
 then adjudged not to have been the act 
 and deed of the testator, because procured 
 by her by undue influence and restraint. 
 She had acquired such dominion over bia 
 will as to destroy his free agency, and con- 
 H train him to do against his free will what 
 he was unable to refuse. 2 Greenl. Ev. 
 §688; Mitchell V. Mitchell, 43 Minn. 76,44 
 N. W. Rep. 885. Had he been mentally 
 incapacitated to execute the deed, there 
 would have been no question as to the 
 rule. He was onl.y partially so, but his 
 imbecility rendered him an easy victim to 
 imposition. We think the same rule 
 ought to apply in each case. There must 
 be animus rerocandi, and we can recog- 
 nize no distinction, as respects the ques- 
 tion of Implied revocation, between the 
 effect of a deed which Is executed by a 
 person who has no will, and one whose 
 will is directed by another person. Rich 
 V. Gilkey, 73 Me. 601. 
 
 3. It is further insisted that, by reason of 
 the fraud and misconduct of the defend- 
 ant in preventing the revocation of the 
 will, the court should have adjudged her 
 not entitled to take her distributiveshare, 
 or that she should be declared a trustee 
 ex maleScio, and that it should have 
 been so determined on the appeal in the 
 district court, which, sitting as a court 
 of equity, had full jurisdiction to try and 
 determine the issue. This is an erroneous 
 view of the jurisdiction of the probate 
 court in proceedings for the proof and al- 
 lowance of a will. The question was con- 
 sidered and determined in Greenwood v. 
 Murray, 26 Minn. 260. 2 N. W. Rep. 945, 
 in which it is held that "the probate court 
 has exclusive jurisdiction in the first In- 
 stance to take proof of wills of real and 
 personal estate. The decree of that court 
 establishing a will is, unless reversed on 
 appeal, conclusive that It was duly exe- 
 cuted by the person whose will It purports 
 to be, and that such person had legal ca- 
 pacity to execute it. But the probate 
 uecides nothing heyond this. The legal 
 effect of the will, or of its various pro- 
 visions, its construction and operation, 
 do not come in question, and cannot be 
 passed upon on an application to admit 
 the will to probate. The probate court 
 does not assume to determine the validi- 
 ty of a devise, but only that the instru- 
 ment presented for probate was executed 
 as his last will and testament by the tes- 
 tator in the manner prescribed by statute, 
 and that he was legally competent to 
 make a will." Upon appeal from an or- 
 der of the probate court allowing orrefus- 
 Ing the probate of a will, the district court 
 exercises probatejurlsdictiontomake such 
 determinations as the probate court 
 ought to have made, (Berkev v. Judd, 31 
 Minn. 274. 17 N. W. Rep. 618,) but no oth- 
 er or greater. It can exercise no original- 
 ju*-isdiction in the premises, and cannot 
 assume, on such appeal, to declare a trust 
 under the will, or to determine the ulti- 
 mate rights and interests of parties in the 
 estate. The court below, therefore, de- 
 clined to pass upon the question sug- 
 gested, and it is not properly before us for 
 our consideration. Judgment affirmed. 
 
 NOTE. See cases under "Revocation by De- 
 stiuct^ion.' Blanchard V. Blanchard, (1859,) 32 
 
:S «4) 
 
 BliOOK i). WAUUE. 
 
 Case No. 101 
 
 BROOK T. WARDE. 
 
 (3 Dyer, 310b.) 
 Easter Term. 14 Eliz. 
 One Kyete, of Kent, by his will in writing, 
 -devised his land of Gavelkind to one Harri- 
 son in fee; and five days before his death 
 he revoked his will in this point, by parol 
 only, in the presence of three witnesses, re- 
 quiring their testimony of his present revo- 
 cation; and said to them further, that he 
 would alter this in his written will when he 
 came to town, etc., and before his coming 
 .thither he was murdered by the said Har- 
 
 rison. And Harrison caused the will in 
 writing, as it was at first, to be proved; and 
 by color thereof entered into the devise, 
 and then was attainted of murder, and 
 hanged; and his son entered by the law of 
 Gavelkind, s. "The father to the bough, the 
 son to the plough." This matter came out 
 in evidence to a jury of Kent this term, in 
 ejectione fii'mae between Brooke and Warde; 
 and this manner of revocation by parol as 
 above was affirmed for sufficient revoca- 
 tion at bar and bench, although it was not 
 in writing, nor the first will in that point 
 cancelled or defaced; vide bene. 
 
 343 
 
Case Ko. 102 
 
 COLE V. MORDAUNT. 
 
 (§84 
 
 COLE V. MORDAUNT. 
 
 (4 Ves. 196, note.) 
 
 This was a remarkable case. Mr. Cole at 
 a very advanced age married a young 
 woman; who dm-ing his life did not conduct 
 herself with propriety. After his death she 
 Bet up a nuncupative wiU, said to be made in 
 extremis, by which the whole estate was 
 given to her, in opposition to a written will 
 made three years before the testator's death, 
 giving £3000 to charitable uses. The nun- 
 cupation was proved by nine witnesses. Up- 
 on the appeal to the delegates from the sen- 
 
 344 
 
 fence of the prerogative court in favour of 
 the written will, Mrs. Cole offered to go to 
 a trial at law in a feigned action; submit- 
 ting to be bound by the result. Upon the 
 trial at the bar of the court of king's bench, 
 it appeared, that most of the witnesses for 
 the nuncupation were perjured; and that 
 Mrs. Cole was guilty of subornation. After 
 that she applied for a commission of review; 
 which was refused; and upon that occasion 
 Lord Nottingham said, "I hope to see one 
 day a law, that no written will should be 
 revoked but by writing." 
 
 This is said to be the principal case, which 
 gave rise to the statute of frauds. 
 
§84) 
 
 McCUNE'S DEVISEES v. HOUSE. 
 
 Case No. lOS 
 
 McCUNE'S DEVISEES v. HOUSE et al. 
 (8 Ohio, 144.) 
 
 Supreme Court of Ohio. Dec. Term, 1837. 
 
 This case was reserved in Gallia county. 
 
 It was an issue, out of chancery, to try the 
 validity of a nuncupative will. The agreed 
 case shows that David McOune while dom- 
 iciled in the island of Jamaica made a 
 written will there by which he disposed of 
 his entire estate both real and personal. 
 That he afterward emigrated to the United 
 States, acquired a domicile in the town of 
 Gallipolis, Ohio, and there made a nimcupa- 
 tive will, disposing of a part of the property 
 which he had before bequeathed by the writ- 
 ten win. The complainants claim under the 
 written will; the defendants, under the ver- 
 bal testament; and the case is submitted to 
 the court, for them to determine whether 
 this last testament revoked the prior writ- 
 ten will made in the island of Jamaica. 
 
 Arius Nye, for the heirs of McCune. Vin- 
 ton & Nash, for House and Litch. 
 
 GRIMKE, J. The proposition which is 
 submitted to the consideration of the court, 
 is whether a written will can be revoked by 
 a subsequent nuncupative one. But as we 
 have power to decide only cases and not 
 questions, we must decide, not whether a 
 will, but whether the will made in the island 
 of Jamaica was revoked by the will executed 
 at Gallipolis. And this form of stating and 
 determining the proposition will not deprive 
 the parties of any right to which they would 
 otherwise be entitled. The written will 
 makes a disposition of the whole estate of 
 the testator, and if the verbal will is legal, 
 it will revoke the former disposition of the per- 
 sonal property. It was once a contested ques- 
 tion, whether a will of personalty should be ex- 
 ecuted according to the law of the testator's 
 domicile or of the place where the goods are 
 situated. It was always admitted, that in 
 case of intestacy the law of the intestate's 
 domicUe must regulate the distribution of 
 his personal property. But a distinction was 
 attempted to be made between a presumed 
 Intention in the cue case and an expressed 
 on in the other; and it was supposed that it 
 was only where a wiU is not expressed that 
 the law of the domicile was raised up to ex- 
 ecute a presumed will. But inasmuch as 
 personal property has no locality but accom- 
 panies the person of the owner, the conse- 
 quence necessarOy is, that the voluntary dis- 
 position, as well as the disti-ibution of it, 
 must be governed exclusively by the law of 
 the domicUe. So that it is now r pcpived as 
 a settled principle, that if a will of nersonal- 
 Iv is made in a foreign conn try, and then the 
 testator changes, his domi cile, the will mu.st . 
 be executed according to the law of the new 
 domicile . 3 Mer. 67. The 'written will of 
 Mr. McCune, therefore, although made in 
 the island of Jamaica, must be governed by 
 the law of Ohio. There does not appear to 
 
 be any objection to Its validity on that ground 
 and thus is presented the single question, 
 whether the subsequent nuncupative one has 
 the power to revoke it. 
 
 In England, befQ i:e-jtlie-.«tatut e of frauds , 
 a written will might be revoked by a nuncu- 
 pative testament, and it was in consequence 
 of an atrocious conspiracy to set up a nuncu- 
 pative wiU o'ver a prior written one, that the- 
 glaring defect in the law came to be per- 
 ceived, and that the statute was passed. 
 The history of the transaction is given In a 
 note to Matthews v. Warner, 4 Ves. 196. Mr. 
 Cole, three years before his death, had made- 
 a written will, giving three thousand pounds 
 to charitable uses. Mrs. Cole set up a nun- 
 cupative will, by which the whole estate 
 was given to her. Upon the trial, it ap- 
 peared that most of the witnesses to this 
 wUl were perjured, and that Mrs. Cole was- 
 guilty of subornation. And upon this oc- 
 casion Lord Nottingham said: "I hope to- 
 see, one day, a law that no written will 
 should be revoked but by writing." The 
 next year the statute of frauds was passea. 
 In England, then, a will of personalty, which 
 need not be attested by witnesses, can not 
 bq revoked by a verbal testament. 
 
 Section 2 of our statute of 1831, directs- 
 that every will disposing of real or personal 
 property shall be in writing, and attested 
 by two witnesses. Section 5 declares that 
 any last will and testament shall be revoked 
 by cancellation, or by subsequent wiU or 
 codicil made as aforesaid. Sections 11 and 
 12 authorize the making a nuncupative will. 
 And thus, I believe, it will be found that we,, 
 in Ohio, have enacted the same salutary pro- 
 vision which is contained in the English stat- 
 utes of frauds; though it must be remem- 
 bered that there are much stronger reasons- 
 why such a law should be established here, 
 than in Britain, as a will of personal prop- 
 erty must here be attested by two wit- 
 nesses. Section 5 of our act declares that 
 a will revoldng a former will shall be ex- 
 ecuted as aforesaid. The wills before spoken 
 of are those of real and personal estate, 
 and thus the statute, by necessary implica- 
 tion, or rather by a plain and expressed in- 
 tention, has declared that such revoking will 
 shall also be in writing and attested by two 
 witnesses; for the clause which permits a 
 nimcupative wiU to be made, is placed by 
 itself and postponed to sections 11 and 12, 
 so that the words as aforesaid, in section 5, 
 can not, without confusing the whole ar- 
 rangement of the testamentary clauses, be 
 supposed to have any reference to sections 
 11 and 12. AH our prior laws on this sub- 
 ject correspond with this view, and seem to 
 have forbidden the revocation of a written 
 by a nuncupative will. The act of 1808, in 
 sections 1 and 2 declares how a written will 
 shall be executed, but is not followed, as is 
 the present law, by a section prescribing the 
 manner of revocation. Section 3 directs ho w 
 a nuncupative will shall be ex ecuted, and_ 
 
 345 
 
Case No. 103 
 
 MoCUNE'S DEVISEES v. HOUSE. 
 
 (§84 
 
 then provides that no such will shall revoke 
 a, written will . The act of 1808 is similar to 
 'the present statute. It declares how a wUl 
 sliall be revoked in a clause antecedent to 
 that which gives power to make a nuncupa- 
 tive will. It omits section 3 of the act of 
 l§05,__ because the m.inupr of revocation be- 
 ing defined in another section , such a decla- 
 ration became unnecessary and would have 
 been supererogatory. In truth, there could 
 not be any doubt about this matter, if it 
 were not for a mere change in the arrange- 
 ment of the sentences in these laws, which 
 shows how important it is, in framing a new 
 statute, not to indulge in any arbitrary 
 ciiaiige of even the form of an old one; since, 
 if it does not lead to any ultimate difficulty, 
 it is calculated to produce doubt, which 
 should, as much as possible, be avoided. 
 
 346 
 
 There are very good reasons why an indi- 
 vidual, Jif_whn hns rwt ypt execu ted a writ- 
 .ten_wilL should be permitted, under peculiar 
 circumstances, to make a verbal one. But 
 
 Whe' J ^'o '^P" B'''p'"^y pvpfntpri a writtpn will 
 
 with all th£ -SD l o mnitioc of the law , there are 
 equally strong reasons why the revocation 
 of it should be attended with the same solem- 
 nities. It is not in restraint of this free ac- 
 tion; it is to protect him from a fraudulent 
 conspiracy, very likely to take place, where 
 he has already disposed of his property coun- 
 ter to the wishes of those who surround him. 
 The frauds practiced in England gave ri.se 
 to the enactment in the statute of frauds. 
 The act of 1805 was framed in analogy to 
 that law; and the act of 1831, with a desisn 
 equally plain, has also forbidden the revo- 
 cation of a written by a nuncupative will. 
 
I 85) 
 
 WALOOTT V. OCni'EltLOMY. 
 
 Caae No. 104 
 
 WALCOTT V. OCHTERLOiNY. 
 
 (1 Curt. Ecc. 580.) 
 Prerogative Court of Canterbury. 1837. 
 
 The question in this case was, wliethw tlie 
 will of Charlotte Ann Moutgomerie Ochter- 
 lony, late of the city of Edinburgh, spinster, 
 deceased, was revolved or not? The suit 
 was brought by Captain John Edward Wal- 
 cott, one of the executors named in the will, 
 against Sir Charles Metcalf Ochterlony, 
 baronet, the brother, and only next of kin 
 of the deceased, a minor, acting by his 
 guardian. 
 
 The allegation on behalf of Sir Charles 
 JXetcalf Ochterlony, setting up the revoca- 
 tion of the will, pleaded in substance as fol- 
 lows:— 
 
 First.— The death of the party on the 19th 
 ■of .lune, 1835, leaving Sir Charles Metcalf 
 Ochterlony, her brother and only next of 
 kin, and that her property amounted to be- 
 tween two and three thousand pounds. 
 
 Second. — Her arrival from India, and her 
 residence with Captain and Mrs. Walcott, 
 jind also with the family of Mr. George, un- 
 til she went to Scotland in May, 1834, to the 
 house of John Ross, Esq., at Cupar Angus, 
 Mnd in November in the same year, her go- 
 ing to lodge at the house of a 'Mrs. Boglo, 
 with whom she thereby first became ac- 
 quainted. 
 
 Third.— That about the 30th of April, 1834, 
 -she wrote out her own will, and executed 
 the same in the presence of witnesses, and 
 thereof appointed James George, Esq., 
 John Edward Walcott, Esq., and John Ross, 
 Esq., executors; also, that she wrote to the 
 said John Edward Walcott, earnestly en- 
 treating him to accept the oflSce of executor, 
 and also stating that she had deposited her 
 will with the said James George, but adds: 
 "I have a copy, so I can alter it at any time, 
 and the last made would, of course, be the 
 -one acted on, if properly signed and sealed." 
 
 Fourth.— Exhibited the letter. 
 
 Fifth.— That in April and May, 1835, the 
 -deceased was suffering under a disease of 
 the heart, and that her medical attendants 
 forbad her writing. That during such time, 
 ■she frequently spoke to Mrs. Bogle about 
 her will, and expressed to her her intention 
 to have it destroyed, stating, "it was now of 
 no use," that in pursuance of such intention 
 she directed Mrs. Bogle to write a letter to 
 Charlotte Ann AValcott, the wife of Captain 
 Walcott, to request that she would write to 
 Mr. George, and request him to destroy the 
 will; that Mrs. Bogle accordingly, on the 
 ■2d of May, 1835, wrote to the said Charlotte 
 Ann Walcott, a letter, in which were the fol- 
 lowing, among other words, "your niece de- 
 sires her affectionate love to you and her 
 uncle, and wishes you to write to her friend 
 Mr. George, and request him to destroy a 
 -will of hers that she committed to his keep- 
 ing, she says that it has been much in her 
 thoughts for sometime, and wislies it might 
 
 be destroyed without delay." That upon the 
 said letter being read by Mrs. Bogle to the 
 deceased, she approved thereof, and it was 
 by her direction addressed, and sent to Mrs. 
 Walcott on the fourth, and received by her 
 on the sixth of the said month, &c. 
 
 Sixth.— Exhibited the letter. 
 
 Seventh.— That at tlie time of, or immedi- 
 ately subsequent to the writing of the afore- 
 said letter, the said deceased delivered to 
 the said Mrs. Bogle a sealed packet, con- 
 taining, as she then informed her, a copy of 
 the aforesaid will in tlie possession of Mr. 
 George, and made Mrs. Bogle solemnly prom- 
 ise to put it in the flre without perusing it, 
 the moment she lioard of the destruction of 
 the original. 
 
 Eighth.— That on the 0th of May, immedi- 
 ately after the receipt of the letter by Char- 
 lotte Ann Walcott, Captain Walcott wrote 
 to Mr. George, informing him of the wishes 
 of the deceased, as contained in the letter 
 of Mrs. Bogle, that in reply, Mr. George 
 wr(}te a letter to Captain Walcott, wherein, 
 among other things, lie wrote: "Would you 
 or myself ventm'e to destroy a will made by 
 a person in perfect health of body and mind, 
 by the desire of a third party, when the 
 maker is in such a reduced state as to be 
 scai'cely sensible of what her wishes are? 
 I enclose it to you, my dear sir, as her near- 
 est connexion, and shall be perfectly satis- 
 fied with your destroying it, or by your for- 
 warding it to Charlotte, which I think will 
 be the most regular and safe way;" that in 
 a postscript to the said letter, he added: "I 
 find the will is too heavy for a frank, I 
 will get an oflice frank, or forward it per 
 coach to-morrow;" but that he did not for- 
 ward it until the 14th of the said month. 
 
 Ninth.— Exhibited the letter. 
 
 Tenth.— That though intelligence of the de- 
 struction of the said will could not reach the 
 deceased for several days after sending the 
 said letter of the 2d of May, her anxiety to 
 have the said will destroyed, increased; and 
 in further pursuance of such her wishes and 
 intention, that the said will should be forth- 
 with destroyed, she directed Mrs. Bogle to 
 write to- Mr. George himself; that she ac- 
 cordingly, on the 8th of May, wrote to him 
 a letter, containing, amongst other things, 
 the following words: "In my last letter to 
 Mrs. Walcott, I was desired by my young 
 invalid to tell her to write, and request you 
 to destroy a will that she committed to j'our 
 care, the copy of which she possesses, she 
 meant to give you her reasons whenever she 
 can write. She tells me that it annoyed her 
 very much during her serious illness, be- 
 cause there is much in it, she says, that is 
 now. of no use." That upon the said letter 
 being read by the said Mrs. Bogle to the de- 
 ceased, she approved thereof, and it was by 
 her dii-ectiou forwarded and sent to Mr. 
 George; that he duly received it on the 13th 
 of May, and on the following day endorsed 
 on the envelope of the will of the deceased, 
 
 347 
 
Case No. 104 
 
 WALCOTT V. OCHTERLONY. 
 
 (§85 
 
 the following words: "this will to be de- 
 stroyed, as per Mrs. Bogle's letter to Cap- 
 tain Walcott and J. George," date, 8th Jlay, 
 J. George, London, 14th of May, 1835. 
 
 Eleventh.— Exhibited the letter. 
 
 Twelfth.— That on the 13th of May, 1835, 
 Mr. George wrote a letter to Mrs. Bogle, and 
 amongst other things, expressed himself as 
 follows: "Tell dear Charlotte, her insti-uc- 
 tions respecting her will shall be attended 
 to, but she had only to write these few 
 words, 'I hereby revoke all wills made to 
 this date,' which would have been sufficient. 
 It is quite unnecessary for the dear girl to 
 give any reasons for destroying the docu- 
 ment." That George sent the letter by a 
 private bearer, and the same was not re- 
 ceived by Mrs. Bogle until the 10th of Au- 
 gust, after the death of the deceased. 
 
 Thirteenth.— Exhibited the letter. 
 
 Fourteenth.— That on the 14th of May, 
 Mr. George transmitted the will by parcel, 
 to Captain Walcott, at Bath, who duly re- 
 ceived the same, and that on the 10th of 
 June following, he forwarded the same In 
 a letter, addressed to the deceased, in which 
 letter he wrote as follows: "I never think 
 it satisfactory to employ other hands than 
 one's own in the destruction of papers of 
 importance. On Mr. George, therefore, for- 
 warding me your will, I determined to wait 
 an opportunity of transmitting it to you 
 which has just offered through the hands 
 of Miss Blackmore, on her way from Bath 
 to Edinbm-gh." 
 
 Fifteenth.— Exhibited the letter. 
 
 Sixteenth.— That Mr. George, in a letter 
 dated the 14th of May, addressed to Mrs. 
 Bogle apprised her of the writing and send- 
 ing the letter of the 13th of May before men- 
 tioned, which information was made known 
 to the deceased. That she, in conseqiience 
 of not hearing from Captain Walcott or re- 
 ceiving the letter of the 13th of May, de- 
 clared to Mrs. Bogle that she would have 
 again pressed the subject vipon their atten- 
 tion, but that she expected that the letter 
 written by Mr. George, dated the 13th of 
 May, would announce either the destruction 
 of the will or contain the will itself, for the 
 purpose of enabling the deceased herself to 
 destroy it. That shortly prior to her death, 
 the deceased expressed a wish and inten- 
 tion of making a new will revocatory of the 
 will pleaded in this cause, but was dissuaded 
 therefrom by the said Mrs. Bogle, who in- 
 formed her that as the will would be de- 
 stroyed, it was unnecessary for her to make 
 another, and that her brother, the said Sir 
 Charles Metcalf Ochterlony, would be her 
 heir without a will, and that the deceased 
 assented to and acted upon such representa- 
 tions of the said Mrs. Bogle. 
 
 Seventeenth.- Exhibited the letter. 
 
 Eighteenth.— That on or before the seventh 
 day of June, 1835, Sir Charles Metcalf Och- 
 terlony went to visit his sister, the deceased, 
 at her lodgings in Edinbui-gh, and remained 
 348 
 
 with her until the ninth of the month, being 
 the day of her decease. That during such 
 time no communication was made either 
 by the deceased or Mrs. Bogle to him, re- 
 specting the deceased's property, or her said 
 will, or her desire for the revocation thereof. 
 
 Nineteenth.— That the disease of which the 
 deceased died, was an affection of the heart, 
 and her death was very sudden. That in 
 order to avoid her being agitated, her medi- 
 cal attendants advised her to abstain from 
 writing or reading, or attending to business. 
 That during the premises, the deceased was 
 of sound mind, &c. 
 
 Twentieth.— Was the usual concluding 
 article. 
 
 The Queen's ■ Advocate and Nicholl, for 
 plaintiff. Lushington & Haggard, for de- 
 fendant. 
 
 COURT. At present I am not prepared 
 to say, that under the circumstances stated 
 in this allegation, a revocation could not be 
 effected; on the other hand, without seeing 
 the evidence, I cannot say what may be the 
 result. I shall admit the allegation, with- 
 out giving any opinion as to the result. 
 
 AVltnesses were afterwards examined, and 
 the cause was argued on the 19th of July, 
 1837. 
 
 SIR HERBERT JENNER. Chai-lotte Anne 
 Montgomerie Ochterlony, the deceased in 
 this case, died at Edinburgh, on the 9th of 
 June, 1835, of the age of twenty -three years, 
 leaving an only brother. Sir Charles Met- 
 calf Ochterlony, baronet, her only next of 
 kin. On the 30th of April, 1834, the de- 
 ceased, when in London, with her own hand 
 made her will, of which she appointed James 
 George, John Edward Walcott, and John 
 Ross executors. This will was deposited 
 with Mr. George for safe custody; and the 
 question is, whether, under the circumstan- 
 ces of this case, that will is revoked? In 
 November, 1834, the deceased went to lodge 
 at the house of a Mrs. Bogle, in Edinburgh, 
 where she continued until her death. In 
 April, 1S35, it appears that she was at- 
 tacked with a disease of the heart, of which 
 she ultimately died; and her medical attend- 
 ants directed that she should not be suffered 
 to write or read, or attend to business, In 
 order that she might not be agitated. 
 
 In the beginning of May, 1835, Mrs. Bogle, 
 by the deceased's desire, wrote to Captain 
 Walcott's wife at Bath requesting her to 
 get her husband to write to Mr. George, ai- 
 recting him to destroy the deceased's will. 
 Captain Walcott accordingly wrote to Mr. 
 George, bttt he declined to destroy the will, 
 but sent it to Captain Waloott that he might, 
 if he thought proper, desti-oy it or forward 
 it to Miss Ochterlony. Captain Walcott, it 
 appears, on tie 10th of June, enclosed the 
 wUl in a letter to the deceased, which he 
 forwarded by a lady who was going from 
 F^ch to Edinbm'gh, but the deceased died 
 
i ^5}- 
 
 WALCOTT ». OCHTEULONY. 
 
 Case No. 104 
 
 before the will arrived. It appears that up 
 to the time of her deatli, the deceased ex- 
 pj-essed her anxiety that the will should be 
 destroyed, and stated to Mrs. Bogle that she 
 would make a new will in order to revoke 
 the former, hut that Mrs. Bogle dissuaded 
 her from so doing, informing her that as the 
 will would be destroyed it was unnecessary 
 to make a new one. 
 
 It is proved by Mrs. Bogle, that the letters 
 were written by the deceased's direction, 
 and that the passages relating to the de- 
 sti'uction of the will were read over to and 
 approved of by her. Now, although look- 
 ing at the contents of the will, there was no 
 reason to suppose that the deceased would 
 depart from it; yet improbability must give 
 way to facts, and there is no ground to sus- 
 pect that Mrs. Bogle, -who was ignorant of 
 the contents of the will, had any interest or 
 bias in respect to it. 
 
 The first question, therefore, on the facts 
 she deposed to is, what was the intention of 
 the deceased? There could be no doubt of 
 her animus revocandi, and having estab- 
 lished this point, what does the law requhe 
 to give effect to such intention? 
 
 The statute of frauds provides that no will 
 in writing of personal estate shall be re- 
 
 pealed, nor any clause or bequest therein 
 altered or changed by any words, is this a 
 revocation by words? I apprehend not; the 
 deceased did not say, "I revoke my will," 
 but in effect says, "Mr. George is in pos- 
 session of my will; I am not able to destroy 
 it myself, but I desire that he will destroy 
 it;" and this amounted to a present inten- 
 tion absolutely to revoke, which was written 
 down at the time, approved of by the de- 
 ceased, and by her du-ection communicated 
 to the person in whose custody the will was; 
 it was "an absolute direction to revoke, re- 
 duced into writing in the deceased's life- 
 time." There is nothing in the statute of 
 frauds which prevents such revocation hav- 
 ing effect, and it is clear that, prior to that 
 statute, a will might be so revoked. Fm-- 
 ther, the deceased subsequently directed a 
 letter to be v^ritten to Mr. George, intimat- 
 ing that she would give her reasons there- 
 after, and evinced anxiety for a reply to that 
 letter down to the time of her death; there 
 can be no doubt that she died in the inten- 
 tion to revoke the will, and in the belief 
 that it was revoked. 
 
 I am of opinion, that the will in this case 
 is revoked, and that the deceased is dead 
 intestate. 
 
 349 
 
(.'ase Xo. 105 
 
 IX KE MATHESO::^'S WILL. 
 
 (§ 
 
 In re MATHESOXS WILL. 
 
 NELSON T. PUBLIC ADMINISTRATOR. 
 
 (2 Bradf. Sur. 210.) 
 
 SuiTogate's Court, New York County. Oct., 
 1852. 
 
 Forster & Thoiupsou, for executors. A. 
 B. Tappan, for public administrator. 
 
 BRADFORD, S. Letters of administra- 
 tion were issued on the estate of the de- 
 ceased to the public administrator. Subse- 
 quently, four unattested wills, three others 
 apparently duly executed, and several pa- 
 pers of revocation were discovered. The lat- 
 est of the executed wills is dated Febi-uary 
 3, 1840, and that is the instrument now 
 offered for proof. Its execution is formally 
 proved by the depositions of the subscrib- 
 ing witnesses; but it is urged that it has 
 been revoked. Throe of the alleged revoca- 
 tions are wills signed but not attested, and 
 throe are mere declarations of revocation, 
 subscribed by the testator, but without the 
 names of subscribing witnes.ses. They run 
 in this way, "I, .lames ilatheson, etc., do 
 hereby abrogate and revolie all testaments, 
 wills, or codicils I have, or might heretofore 
 have made," etc. "I, James Matheson, 
 who have made and wrote and signed the 
 within, my last will and testament, do here- 
 by rescind and revoke this my last will and 
 testament, and all or any other wills and 
 testaments or codicils of wills, formerly or 
 heretofore made by me," etc. "I hereby 
 rescind and revoke these my last wills and 
 testaments, or any other wills and testaments 
 or codicils of wills formerly or heretofore 
 made by me." The first of these was on 
 a sepai'ate sheet of paper, the second on 
 what appears to have been a wrapper, and 
 the third on the back of a will executed in 
 1839. They are all posterior In date to 
 3.50 
 
 the will propounded for proof. They ex- 
 press, as strongly as anything can, a deter- 
 mination to rescind every instrument of a 
 testamentary character ever executed by the 
 testator; and they express this repeatedly, 
 showing a continued and earnest intention 
 to revoke. They show that the testator 
 supposed the mere writing and subscribing- 
 them was sufficient to constitute a present 
 operative act of revocation, and that his- 
 will executed in 1840, was not conformable 
 to his subsequent wishes. But notwith- 
 standing this mistaken supposition, and this 
 undeniable evidence of an intention to re- 
 voke all wills, the law must govern, though 
 the rules adopted for wise and salutary 
 purposes may seem hard in this particular 
 case. The statute is just as rigid on the 
 subject of written revocations as in regard 
 to the execution of wills. A revocation in 
 writing, to be valid, must be "executed 
 with the same formalities with which the 
 will itself was required by law to be exe- 
 cuted." The testator might have revoked 
 by burning, tearing, cancelling, obliterating, 
 or destroying; but he selected the mode of 
 revocation by writing, and has failed in ac- 
 complishing his object from want of the 
 necessary formalities. What would be the 
 effect of a written declaration of revocation 
 upon an executed will — whether it could be 
 regarded as a present attempt at cancellation 
 — it is not necessary to consider; for the will 
 upon which one of these revocations was 
 written is anterior in date to the one pro- 
 pounded. I see no room, therefore, for any 
 argument on the subject: the terms of the 
 statute are clear and unequivocal; the testa- 
 tor lias adopted a manner of revocation in 
 which he has failed to comply with the law. 
 and these informal acts have no legal validi- 
 ty. The will must, therefore, be decreed tO' 
 have been duly proved. 
 
§85) 
 
 LEMAGE V. GOODBAN. 
 
 Case No. lOG 
 
 LEMAGE T. GOODBAN et al. 
 (L. R. 1 Prob. & Div. 57) 
 Court of Probate. Dec. 12, 1865. 
 
 This was a cause of revoking a jDifobate, 
 which had been granted on motion, of the 
 will of the testator, John Lemage, who died 
 on the 25th of January, 1864, at an advanced 
 age, a bachelor, without parent, leaving 
 Rachael Lemage, his sister by the whole 
 blood, and Marmaduke Lemage, the plain- 
 tiff, his brother by the half blood, his sole 
 next of kin, and the only persons entitled in 
 distribution to his personal estate, him sur- 
 viving. He left freehold and leasehold prop- 
 erty and personal effects of considerable 
 value. There were discovered after his 
 death only two finished testamentary pa- 
 pers, both in holograph, the earliest unattest- 
 ed, and dated the 24th of December, 1823, 
 and the later one pm-porting to have been 
 attested by three witnesses, and which, 
 from the watermark and from internal evi- 
 dence, as well as that of one of the attest- 
 ing witnesses, must have been executed be- 
 tween the years 1827 and 1829. 
 
 The earliest wiU described in the proceed- 
 ings as paper A was in the following terms: 
 "In the name of God, Amen. I, John Le- 
 mage, of No. 31, Gloucester street, in the 
 parish of St. George's, &c., do make this 
 my last will and testament in manner fol- 
 lowing: First, and principally, I commend 
 my soul to God, &c., and as to such worldly 
 estate as God of his goodness hath bestowed 
 on me, I give and dispose thereof as fol- 
 lows—that is to say, I give and devise unto 
 and to the sole use of my dear sister, Ra- 
 chael Lemage, spinster, at present residing 
 at, &c., to her, her lieirs and assigns, all and 
 everything which I may possess in the world 
 at the time of my decease, namely, my free- 
 hold house, situated and being No. 10, Great 
 Earl street. Seven Dials; also my leasehold 
 estate, situate and being No. 54, St. John 
 Street Road, &c.; likewise all the money 
 that I may possess, whether in cash or bonds 
 as security for money, such as India bonds, 
 Danish bonds, Spanish bonds, together with 
 seven hundred and fifty-one rentes in the 
 Trench funds, and being Inscribed in the 
 great book as above, with all interest on 
 rentes which may be due on the aforesaid. 
 I likewise bequeath to dear sister before- 
 named all my household furniture, plate, 
 linen, china, watch, chain, seals, or ti'InketS: 
 of any kind belonging to me, also all my 
 books, prints, paintings, mathematical and 
 philosophical instruments, wearing apparel, 
 &c., &c., &c.; and do hereby appoint and 
 make my dear sister, the aforesaid Rachael 
 Lemage, my whole and sole exectitrix, re- 
 questing her to pay the expouse of my 
 funeral out of the effects, together with a 
 bond held by my father from me for £400 
 sterling, should he demand the same, the 
 
 said bond being the only one which I owe, 
 nor any debts, except for rent, which win 
 onlj' be from the preceding quarter day. If 
 fi-om my ignorance of the law I should have 
 omitted anything, I here repeat that it is 
 my wish and most solemn will that my 
 dear sister, Rachael Lemage, shall come in- 
 to possession of everything which I may pos- 
 sess at my decease. This 24th day of Dec- 
 ember, 1823— John Lemage." 
 
 The later will, described as paper B, was 
 as follows: "In the name of God, Amen. 
 I, John Lemage, of No. 81, Gloucester street, 
 Queen's square, &c., do make this my last 
 will and testament In manner and form fol- 
 lowing: I give, devise, and bequeath unto 
 my dear sister, Rachael Lemage, spinster, 
 the whole of my moneys and securities for 
 moneys whatsoever and wheresoever, as the 
 whole of money inscribed in my name in 
 the great book in the bank of France, about 
 seven hundred and fifty-one rentes, or what- 
 ever It may be; also all bonds of whatever 
 description. I fui'ther give unto my sister 
 aforesaid my leasehold house In St. John 
 Street Road. I also give and devise and 
 bequeath unto my sister my half-share of 
 the freehold house left me by my father in 
 Earl street. Seven Dials. I also give unto 
 my sister aforesaid the annuity or rent- 
 charge secured to me by Maria Lemage, 
 widow of my father, on my said father's 
 estate. I likewise give unto my sister afore- 
 said all my plate, linen, and china, philo- 
 sophical instruments, and effects of every 
 kind and description, together with the 
 whole of the above specified for her use, 
 or her heirs, executors, administrators, or 
 assigns forever, according to the description 
 thereof, that is, the said property. I do 
 fm-ther devise and bequeath unto my sister 
 aforesaid, or to her heirs, executors, adminis- 
 trators, or assigns, my share or portion of 
 the money that shall be produced from the 
 sale of the estate of my father, which he 
 directed by his will to be divided among 
 his six children, as described, or to their 
 heirs, executors, administrators, and assigns. 
 I further distinctly state that if I havi^ 
 omitted any legal point or form, that is my 
 intention that my sister Rachael Lemage 
 shall die possessed of, for her own use and 
 disposal, how to whom she pleases. And T 
 do hereby nominate and appoint my sister 
 whole and sole executrix to this my last will 
 and testament. (S. D.) J. Lemage. Signed, 
 sealed, declared, and published by the above- 
 named John Lemage, as and for his last 
 will and testament, In the presence of us, 
 who at his request and in his presence have 
 subscribed oiu- names as witnesses. (S. D.) 
 George Charlton; (S. D.) Joseph Wellsher; 
 (S. D.) Henry Easton." 
 
 On the 26th day of April, 1864, Rachael 
 Lemage, without notice to the plaintifC, who 
 was then unaware of liis half-brother's 
 death, obtained a decree on motion, for pro- 
 
 3.jl 
 
€ase No. 1U6 
 
 LEMAGE V. GOODBAN, 
 
 (§85 
 
 bate of the two papers A aud B, as together 
 containins tlie last wiU of tlie testator, to 
 tie granted to lier, and afterwards took pro- 
 bate thereof as sole executrix. Rachael 
 Lernage shortly afterwards died. The plain- 
 tiff subsequently, upon ascertaining what 
 liad been done, extracted a citation from the 
 registry calling upon the executors of Ra- 
 chael Lemage to bring in the probate and 
 show cause why it should not be revoked, and 
 probate granted of the last wiU only. 
 
 The defendants, the executors of Rachael 
 Lemage, appeared to the citation, and de- 
 livered a declaration wherein they alleged, 
 that the testator wrote and signed the pa- 
 per writing bearing date the 23d day of De- 
 cember, 1823, and now in the registiy of the 
 coxu-t, and marked A, beginning thus, &c., 
 and ending thus, &c., that at some time subse- 
 quent thereto, and prior to the year 1830, he 
 duly signed the paper writing marked B now 
 remaining in the registiy of this court, begin- 
 ning thus, iVc, and ending thus &c., and sub- 
 scribed the same in the presence of three 
 witnesses, and alleged his capacity at the 
 time of the execution of the two paper writ- 
 ings, and that the said paper writings A 
 and B together contain the last will aud 
 testament of the said testator; and that on 
 the 7th day of January, 1864, probate of 
 the last will and testament, as contained in 
 the said paper writings A and B, was grant- 
 ed to the said Rachael Lemage by the prin- 
 cipal registry after the coui-t had been 
 moved to make the said grant. That the 
 said Rachael Lemage died on, &c., leaving a 
 will, whereby she appointed the defend- 
 ants executors, who had duly proved the 
 same. The plaintiff by his pleas, 
 
 1. Denied that the said paper writings 
 marked A and B together contained the last 
 will and testament of the testator, as in the 
 declaration alleged, 
 
 2. That the said paper writing marked A 
 was revoked by the said paper writing 
 marked B; upon which pleas issue was 
 joined. 
 
 Dr. Tristram and W. Forster, for plaintiff. 
 The Queen's Advocate (Sir R. J. Phillimore) 
 and Dr. Spinks, for defendants. 
 
 Cur. adv. vult. 
 
 SIR J, P. WILDE. After carefully con- 
 sidering the authorities cited in argument, 
 I retain the opinion expressed on the ex 
 liarte application for probate. The case of 
 Plenty v. West, 1 Rob. Ecc. 2(>4, so far as 
 it supports the doctrine, that the use of the 
 words "last will" in a testamentary paper, 
 necessarily imports a revocation of all pre- 
 vious Instruments, is, I think, overruled by 
 <;utto V. Gilbert, 9 Jloore, P. C. 131. and 
 Stoddart v. Grant, 1 Macq. 163; and the 
 case of Henfrey v. Henfrey, 4 Moore, P. C. 
 21), only decides that, a second will dispos- 
 ing of the whole estate, revokes a former 
 
 disposition. Cases of the present character 
 are properly questions of construction, and 
 in deciding upon the effect of a subsequent 
 will on former dispositions, this court has 
 to exercise the functions of a court of con- 
 struction. The principle applicable is well 
 expressed in Mr. Justice Williams' book on 
 Executors. He says, "The mere fact of 
 making a subsequent testamentary paper, 
 does not work a total revocation of a prior 
 one, unless the latter expressly, or In effect, 
 revoke the former, or the two be incapable 
 of standing together; for though it be a max- 
 im, as Swinburne says above, that as no 
 man can die with two testaments, yet any 
 number of instruments, whatever be their 
 relative date, or in whatever form they may 
 be (so as they be aU clearly testamentary), 
 may be admitted to probate, as together 
 containing the last will of the deceased. 
 And if a subsequent testamentary paper be 
 partly inconsistent with one of an earlier 
 date, then such latter instrument will re- 
 voke the former, as to those parts only, 
 where they are inconsistent." This passage 
 truly represents the result of the authorities. 
 The will of a man is the aggregate of his 
 testamentary intentions, so far as they are 
 manifested in writing, duly executed accord- 
 ing to the statute. And as a will, if con- 
 tained in one document, may be of several 
 sheets, so it may consist of several inde- 
 pendent papers, each so executed. Redun- 
 dancy or repetition in such independent pa- 
 pers, will no more necessarily vitiate any of 
 them, than similar defects if appearing on 
 the face of a single document. Now it was 
 argued that in the case of more than one 
 testamentary paper, each ijrofessing in form 
 to be the last will of the deceased, it is nee. • 
 essary for the court, before concluding that 
 they together constitute the will, to be satis- 
 fied that the testator intended them to ope- 
 rate together as such. In one sense this 
 is true, for the intention of the testator in 
 the matter is the sole guide and control. 
 But the "intention" to be sought and dis- 
 covered, relates to the disposition of the tes- 
 tator's property, and not to the form of his 
 will. What dispositions did he intend?— not 
 which, or what number, of papers did he de- 
 sire or expect to be admitted to probate,— 
 is the true question. And so this court has 
 been in the habit of admitting to probate, 
 such, and as many papers (all properly ex- 
 ecuted), as are necessary to effect the tes- 
 tator's full wishes, and of solving the ques- 
 tion of revocation, by considering not what 
 papers have been apparently superseded by 
 the act of executing others, but what dis- 
 positions it can be collected from the lan- 
 guage of all the papers that the testator de- 
 signed to revoke or to retain. In this case 
 such a task is not difficult. The first paper 
 makes the testator's sister the sole object of 
 bounty and residuary legatee. The second 
 is to the like general efCect; no new object 
 
§85) 
 
 LEMAGE V. GOODBAN. 
 
 Case No. 106 
 
 of bounty is introduced, and the sole rea- 
 son for its execution seems to have been, 
 that the testator's father had died in the 
 interval, and that half a freehold house, 
 and a share of personalty, had devolved 
 on him by that event. These new acquisi- 
 tions he devises and bequeaths in the same 
 direction. But the residue is not disposed 
 of, the clause apparently intended for that 
 purpose being defective in its language, and 
 not reading sensibly. The com-t, can, how- 
 ever, see thus far into the Intent of that 
 clause— that the object of it was the same 
 sister whose name alone appears in both 
 papers. It would not be reasonable, under 
 ABB. WILLS — 23 
 
 such circumstances, to conclude that the tes- 
 tator intended to revoke the residuary be- 
 quest in the first paper, and as effect can 
 only be given to that disposition by granting 
 probate of the first and second papers as 
 together constituting the will— The court so 
 decides. I pronounce for the two papers. 
 SIR J. P. WILDE. Acting upon the rule 
 I have laid down for my own guidance, I 
 think that the plaintiff's costs shoiUd be 
 paid out of the estate. The litigation was 
 justified by the state in which the testator 
 left his testamentary papers. 
 
 NOTE. See Harwood v. Goodright, Cowp. 
 
 87. 
 
 353 
 
Case No. 107 
 
 BIBB V. THOMAS. 
 
 (§ 
 
 BIBB ex dem. MOLE v. THOMAS. 
 
 (2 W. BI. 1043.) 
 
 Court of Common Pleas. Michaelmas Term, 
 16 Geo. III. 
 
 Ejectment. On trial before Hotham, bar- 
 on, the question was, whether a will made 
 by one William Palin was duly revoked? 
 It appeared in evidence that Palin (who had 
 for two months together frequently declared 
 himself discontented with his will), beiug 
 one day in bed near the fire, ordered Mary 
 Wilson, who attended him, to fetch his will, 
 which she did, and delivered it to him; it 
 being then whole, only somewhat creased. 
 He opened it, looked at it, then gave it some- 
 thing of a rip with his hands, and so tore it 
 as almost to tear a bit off; then rumpled it 
 together, and threw it on the fire; but it 
 fell off. However, it must soon have been 
 bm-nt, had not Mary Wilson taken it up, 
 and put it in her pocket. Palin did not see 
 her take it up, but seemed to have some sus- 
 picion of it, as he asked her what she was 
 at, to which she made little or no answer. 
 He at several times afterwards said, "That 
 was not and should not be his will," and 
 bid her destroy it. She said at first, "So I 
 will, when you have made another;" but aft- 
 erwards, upon his repeated enquiries, she 
 told him she had destroyed it (though in fact 
 it was never destroyed), and she believed he 
 imagined it was so. She asked him, when 
 the will was burnt, whom his estate would 
 go to? He answered, to his sister and her 
 children. He afterwards told one J. E. that 
 he had destroyed his will, and should make 
 no other till he had seen his brother John 
 Mills, and desired J. E. would tell him so, 
 and that he wanted to see him. He after- 
 wards wrote to Mills in these terms:— "Dear 
 brother, I have destroyed my will which I 
 made, for upon serious consideration I was 
 not easy in my mind about that will."— 
 .'554 
 
 Afterwards desires him "to come down, for 
 if I die intestate it wiU cause uneasiness." 
 He, however, died without making any other 
 will. The jury, with whom the judge con- 
 curred, thought this a sufficient revocation, 
 of the will, and therefore found a verdict 
 for the plaintiff, the lessee of the heir-at- 
 law. 
 
 Grose moved for a new trial, because this; 
 was not a sufficient revocation within the 
 statute of frauds. Davy and Adair, showed 
 ca«se. 
 
 PER TOT. CUR. (DB GREY, C. J.,. 
 GOULD, BLACKSTONE, and NARES, JJ.) 
 This is a sufficient revocation. A revocation 
 under the statute may be effected, either by 
 framing a new will amounting to a revoca- 
 tion of the first, or by some act done to the- 
 instrument or will itself, viz. burning, tear- 
 ing, cancelling, or obliteration by the testa- 
 tor, or in his presence, and by his direction 
 and consent. But these must be done ani- 
 mo revocandi. Onions v. Tyrer;^ Hyde v. 
 Hyde, 1 Eq. Cas. Abr. 409. Each must ac- 
 I company the other; revocation is an act of 
 the mind, which must be demonstrated by 
 some outward and visible sign or symbol of 
 revocation. The statute has specified fom* 
 of these; and if these or any of them are 
 performed in the slightest manner, this, 
 joined with the declared Intent, will be a 
 good revocation. It is not necessary that 
 the will, or instrument itself, be totally de- 
 stroyed or consumed, burnt, or torn to pieces. 
 The present case falls within two of the 
 specific acts described by the statute. It is 
 both a burning and a tearing. Throwing it 
 on the fire, with an intent to burn, though it 
 is only very slightly singed, and falls off, is- 
 suflicient within the statute. 
 Rule discharged. 
 
 • 1 P. Wms. 343. 
 
§87) 
 
 DOE c PEliKES. 
 
 Case No. 108 
 
 DOE ex dem. PERKES v. PEEKES et al. 
 
 (3 Barn. & Aid. 489.) 
 
 King's Bench. Easter Term, 1820. 
 
 Ejectment for messuages and lands In the 
 pai-lsh of WalsaU. Plea, not guilty. At the 
 trial before HoU-oyd J. at the last assizes for 
 the county of StafEord, it was admitted that 
 the lessor of the plaintiff, as the brother and 
 heir at law of one Charles Perkes, deceased, 
 was entitled to recover, unless the defend- 
 ants could establish the will under which 
 they claimed. The wiU had been duly exe- 
 cuted by the testator to pass real property, 
 and' the only question was, whether he had 
 not revoked it by tearing it, and upon that 
 point it was proved by one Joseph Worrall, 
 that in August, 1816, the testator, having had 
 some quarrel with one of the parties who 
 was a devisee named in his will, in a fit of 
 passion, took his will out of his desk, and 
 said to Worrall, "Joe, you shall see if I have 
 done any thing for the rascal or not. I have 
 made him a gentleman." He then began to 
 tear the will, and tore it twice through; the 
 witness then laid hold of his arms and en- 
 treated him to abate his passion. The dev- 
 isee then, who was present, put his bands 
 together, as if in an attitude of prayer, and 
 said, "consider my family I beg your par- 
 don for what I have said. Had I been 
 worthy to have known what had been done 
 for me, I should have been satisfied." Upon 
 this, the testator became calm, and the wit- 
 ness let loose his arms. The testator then 
 folded up the will, and put it in his pocket, 
 and afterwards pulled it out again, and said, 
 "It is a good job it is no worse," and after 
 fitting the pieces together, he added, "there 
 is nothing ripped that wUl be any significa- 
 tion to It." The will was found after the 
 death of the testator, In four parts. Upon 
 this evidence, the learned judge left it to the 
 jury to say whether the testator had done all 
 he intended, or whether he was not prevent- 
 ed from completing the act of destruction he 
 intended. The jury found a verdict for the 
 defendants, establishing the will, and now 
 
 W. E. Taunton moved for a new trial. 
 
 ABBOTT O. J. Upon the evidence, it ap- 
 pears, in the present case, that the testator, 
 being moved with a sudden impulse of pas- 
 sion against one of the devisees under his 
 will, conceived the intention of cancelling it, 
 and of accomplishing that object by tearing. 
 Having torn it twice through, but before he 
 had completed nis purpose, his arms were 
 arrested by a by-stander, and his anger mit- 
 igated by the submission of the party who 
 had provoked him; he then proceeded no fur- 
 ther, and after having fitted the pieces to- 
 gether, and found that no material word had 
 been obliterated, he said, "It is well it is no 
 worse." Now, if the cancellation had been 
 once complete, nothing that took place after- 
 wards could set up the will. But it was a 
 question for the jury to determine whether 
 
 the act of cancellation was complete. They 
 have found that it was not, and that it was 
 the intention of the testator, if he had not 
 been stopped, to have done more, in order to 
 carry his purpose into effect. I can see no 
 reason to think that verdict wrong. 
 
 BAYLEY, J. I think this verdict right. 
 If the testator had done all that he origi- 
 nally intended, it would have amomited to a 
 cancellation of the will; and nothing that 
 afterwards took place could set it up again. 
 But if the jury were satisfied that he was 
 stopped in medio, then the act not having 
 been completed will not be suflicient to de- 
 stroy the validity of the will. Suppose a 
 person having an intention to cancel his will 
 by burning it, were to throw it on the fire, 
 and upon a sudden change of purpose, wgre 
 to take it ofE again, it could not be contended 
 that it was a cancellation. So here, there 
 was evidence from which a change of pur- 
 pose before the completion of the act, might 
 properly be inferred. The jury have drawn 
 that inference, and I see no reason to dis- 
 turb the verdict. 
 
 HOLROYD J. I was of opinion, at the 
 ti'ial, that if the act of tearing was com- 
 pleted nothing that took place afterwards 
 was sufficient to set up the wUl again. The 
 statute of frauds says, "that no devise in 
 writing of lands shall be revocable, other- 
 wise than by some other will, or by burning, 
 cancelling, tearing, or obliterating the same 
 by the testator, &c." but, in order to effect 
 this, the act of tearing, &c. must be complete. 
 I left it to the jury to say, whether that was 
 so, and they were of opinion, that the testa- 
 tor had not completed the act he had intend- 
 ed, and I thought that they drew the right 
 conclusion from the evidence. 
 
 BEST J. I am of opinion, that the ver- 
 dict is right. Tearing is one of the modes 
 by which a will may be cancelled; but it 
 cannot be contended that every tearing is a 
 cancellation, for if it were, a testator, who 
 took his will into his hands with intent to 
 tear it, must, if he should tear it in the 
 smallest degree and then stop, be considered 
 as having cancelled it. The real question in 
 these cases is, whether the act be complete. 
 If the testator here, after tearing it twice 
 through, had thrown the fragments on the 
 ground, it might have been properly consid- 
 ered, that he intended to go no further, and 
 that the cancellation was complete; but here 
 there is evidence, that he intended to go 
 further, and that he was only stopped from 
 proceeding by an appeal made to his coinpas- 
 sion by the person who was one of the ob- 
 jects of his bounty. The case in Blackstone 
 is very distinguishable; for there the tes- 
 tator completed his purpose, although the 
 will was not destroyed. I see no reason, 
 therefore, for disturbing the verdict,' 
 
 Rule refused. 
 
 355 
 
Case No. 109 
 
 DOE v. IIAKRIS. 
 
 (§ 87 
 
 DOE ex dem. REED v. HARRIS. 
 
 (6 Adol. & E. 209.) 
 
 King's Bencli. 1837. 
 
 Ejectment for messuages and otlaer prem- 
 ises. On tbe trial before Patteson, J., at 
 tlie Glamorganshire summer assizes, 1835, it 
 appeared that the lessor of the plaintiff 
 claimed as son and heir at law, the defend- 
 ant as devisee, of John Reed. The will was 
 duly executed in August, 1832. The testator 
 died December 31st, 1834. He was an old 
 and infirm man: the defendant was his 
 niece, and lived with him as his housekeeper. 
 She exercised great influence over him; but 
 it appeared that they had violent quai-rels, 
 and that he sometimes spoke of her to other 
 persons in very abusive terms, and said that 
 he feared danger to his life from her. A 
 witness named Esther Ti-eharne, who had 
 been the testator's servant, stated that, about 
 a month before he died, she was shaking up 
 the cushion of his easy-chair, and observed, 
 under the cushion, a folded paper. It was 
 brown or cartridge paper, and the corner of 
 it was burnt. Shortly after, on the same 
 day, Alice Harris went out: and, while she 
 was away, the testator inquired for the pa- 
 per; the witness told him where she had 
 seen it, upon which he exclaimed that Alice 
 had gone away with the will: and on his then 
 removing the cushion, the will appeared no 
 longer. He then told the witness that he had 
 sent Alice Harris to fetch the will to him, 
 that he had looked into it, and that when he 
 had seen it, he had thrown it on the fire, and 
 that Alice had "scramped" it off the fire. 
 This appeared to have taken place the even- 
 ing before. After the above conversation, 
 Alice Harris returned; and, when she and 
 the testator retired at night, (both sleeping 
 in the same room,) the witness heard a quar- 
 rel, and blows; and, upon her going into the 
 room, the testator said that Alice Harris 
 would hot give him his will. Alice went 
 down stairs with the witness, and the lat- 
 ter urged her to give up the will; but she 
 said she would not; that she had given it 
 him last night, and he threw it on the fire; 
 and that she would rather have the pleasm'e 
 of biu^ning it herself, and would do so the 
 next morning. After this conversation she 
 returned to the testator, on the witness's 
 persuasion, begged his pardon, and promised 
 to burn the will the following morning. The 
 next morning, the witness, going into the 
 kitchen where Alice and the testator were, 
 heard Alice say, "There, every thing is fin- 
 ished;" and the testator then told the wit- 
 ness that Alice had thrown the wiU upon the 
 fire. The witness .doubting it, he said, "She 
 threw something with writing upon it on the 
 tire; but I did not have it in my hand to 
 look at it." The witness answered, "I do not 
 think she has thrown it;" and the testator 
 said, "I do not care; I will go to Lantwrit, 
 if I am alive and well, and make another 
 
 S56 
 
 wiU;" adding that Alice Harris should, not 
 have his property, and that he had a son 
 nearer to him than her. He also said (as he 
 did on many other occasions) that the will 
 was one made by Alice and Mr. R. (the at- 
 torney who prepared it,) and that R. was a 
 thief, and wanted, with Alice, to get every 
 thing he had. Alice Harris, in an affidavit 
 exhibited in the prerogative court, stated 
 that, on January 1st, 1835, she found the 
 WiU in a trunk used by the testator for hold- 
 ing his deeds and papers, and kept in his 
 dressing-room. The will produced on the 
 trial had no mark of fire. It did not appear 
 that any envelope had been found upon it. 
 The plaintiff's counsel contended, first, that 
 the testator had been prevailed upon to exe- 
 cute the wiU by importunities of such a na- 
 ture as to deprive him of his free agency; 
 and, secondly, that, assuming the will to 
 have been properly executed, the evidence 
 showed a cancellation within the statute of 
 frauds, 29 Car. II., c. 3. § 6. The learned 
 judge stated to the jury, on the latter point, 
 that, if they believed the evidence of Esther 
 Ti-eharne, and were satisfied that the testator 
 threw the will on the fire intending to bm'n it, 
 that Alice Hai-ris took it off against his will, 
 that he afterwards insisted on its being 
 tlirown on the fire again, with intent that it. 
 should be burned, and that she then prom- 
 ised to burn it, there was a sufficient cancel- 
 lation within the statute. The jury found for 
 the plaintiff, not stating the grounds of their 
 verdict. In the ensuing term a rule nisi was 
 obtained for a new trial, on account of mis- 
 dU-ection on the two points above stated. It 
 was also objected that the evidence of can- 
 cellation was not of a proper kind; the fact 
 being proved only by declarations, and not 
 by the testimony of eyewitnesses, or by 
 marks of cancellation on the will itself; and 
 Willis V. Newham, 3 Younge & J. 518, was 
 referred to as an analogous case. 
 
 Chilton and James now showed cause. John 
 Evans and E. V. Williams, contra. 
 
 LORD DENMAN, C. J. The statute of 
 frauds requires that a will shall be executed 
 with certain solemnities; and, after describ- 
 ing these, directs how it shall be revoked; 
 and that is by certain acts, which are speci- 
 fied. In the present case, there is no evi- 
 dence that any one of those acts has been 
 done. It is impossible to say that singeing 
 a cover is burning a will within the mean- 
 ing of the statute. The terms used in the 
 sixth section show that to assert this would 
 be going a length not contemplated in the 
 statute. The acts required are palpable aud 
 visible ones. Cases may, indeed, be put 
 where very little has been done, as a ^ght 
 tearing and burning, and yet a revocation 
 has taken place; but the main current of the 
 statute is against the argument from such 
 cases. The intention seems to have been to 
 prevent inferences being drawn from such 
 
§87) 
 
 DOE V. HARRIS. 
 
 Case No. 109 
 
 slight circumstances. In Bibb v. Tliomas, 2 
 W. Bl. 1043, the will was slightly torn anil 
 slightly burnt: and the court said that the 
 case fell within two of the specific acts de- 
 scribed by the statute; there was both a 
 burning and tearing. Doubt might be enter- 
 tained now whether the proof there given 
 would be sufficient as to these; but, as the 
 court considered wliat was done to have 
 been a bm-ning and a tearing, the case shows 
 at least that they did not think the acts re- 
 quired by the statute could be dispensed 
 with bj' reason of the conduct of a third 
 party. In Doe dem. Perkes v. Perkes, 3 
 Barn. & Aid. 489, the testator's hand was ar- 
 rested while he was in the act of tearing tlie 
 will: he submitted to the interference; and 
 the intention of revoking was itself revolved 
 before the act was complete. There it was 
 properly left to the jury to say whether the 
 testator had done all he intended or not. 
 Neither of these cases at all approaches the 
 present. It would be a violence to language, 
 if we said here that there was any evidence 
 to go to the jury of the will having been 
 burnt. Great inconvenience would be intro- 
 duced by holding that there may be a vir- 
 tual compliance with the statute; but there 
 is none in saying that, if a testator perse- 
 veres in the intention of revoking his will, 
 he shall fulfil it by some of the means 
 pointed out in the statute; that he shall re- 
 voke the wiU, if not iu his possession, by 
 writing properly attested; or cancel it, if in 
 his power, by some of the other acts which 
 the statute prescribes. 
 
 PATTESON, J. I am quite satisfied that 
 I left this case wrongly to the jury. I did 
 not see the distinction between the present 
 case and Bidd v. Thomas, 2 W. Bl. 1043, as 
 I ought. There something had been done 
 which the court considered to be a burning 
 and a tearing of the will. The testator is de- 
 scribed, not as having merely done some- 
 thing to the corner of the wUl, but as hav- 
 ing given it "something of a rip with his 
 hands," and so torn it "as almost to tear a 
 bit oft." It is plain that on the production 
 of the instrument, it would appear (though 
 I do not think that important) that there had 
 been some tearing of the will itself. As the 
 act says that there must be a tearing or 
 burning of the instrument itself, a mere 
 singeing of the corner of an envelope is not 
 sufficient. To hold that it was so would be 
 saying that a strong intention to burn was 
 burning. There must be, at all events, a par- 
 tial burning of the instrument itself; I do 
 not say that a quantity of words must be 
 burnt; but there must be a burning of the 
 
 paper on which the will is. I am quite satis- 
 tied that I was wrong in my direction to the 
 jury. 
 
 Wir.,LIAMS, J. We must give effect to a 
 statute as providing for cases of ordinary 
 occm-rence, and not for any that may be put. 
 It is argued that if a testator throws his wiU 
 on the fire with the intention of destroying 
 it, and some one, without his knowledge, 
 takes it away, tliat is a fraud which ought 
 not to defeat his act. But so it might be 
 said that, if the testator sent a person to 
 throw it on the hre, and he did not, the rev- 
 ocation was still good. Wliere would such con- 
 structions end ? The effect of them would be 
 to defeat the object of the statute, which wa.'* 
 to prevent the proof of a cancellation from 
 depending on pai'ol evidence. The will must 
 be torn or burned; and the question will 
 always be whether that was done with in- 
 tention to cancel: how much should be burn- 
 ed, or whether the will should be torn into 
 more or fewer pieces, it is not necessary to 
 lay down. 
 
 COLERIDGE, J. The kind of construction 
 which has been insisted upon would lead to 
 a repeal of the statute on this subject, step 
 by step. 
 
 The statute, for wise pui-poses, does not 
 leave the fact of cancellation to depend on 
 mere intent, but requires definite acts. In 
 the making of a wUl, if the proper signatures 
 were not affixed, no explanation of the want 
 of signatures could be received; and so, 
 when a will has been made, to revoke it, 
 there must be some act coupled with the in- 
 tention of revoking, to bring the case within 
 the sixth section. The question is put, 
 whether the will must be destroyed wholly, 
 or to what extent? It is hardly necessary 
 to say: but there must be such an injury 
 with intent to revoke as destroys the entire- 
 ty of the will; because it maj then be said 
 that the instrument no longf,f exists as it 
 was. Here the fire never touched the will. 
 It can only be said that the testator's inten- 
 tion to cancel was defeated by the fraud of 
 another party. But, to instance another case 
 under the same clause of the statute, sup- 
 pose the testator had written his revocation, 
 and that, by the act of some other party, he 
 had been prevented from signing, or the 
 witnesses had neen prevented from attest- 
 ing it; could it be said that the testator had 
 done all that lay in him, and therefore the 
 act of revocation was complete? We musr. 
 proceed on such a view of the statute as ac- 
 cords with common sense. 
 
 Rule absolute. 
 
 357 
 
Case Xo. 110 
 
 mSTEK V. DISTER. 
 
 (§ «« 
 
 DISTER V. DISTIOK. 
 
 (3 Lev. 108.) 
 
 Oouit of Coiutnon Pleas. Easter Term. 35 
 Car. IT. 
 
 Ejectment, and upon non culp and a spe- 
 cial verdict, the case was: Tenant in tail 
 made his will, and devised his land, and 
 after by bargain and sale inrolled, conveyed 
 away the land to mal5;e a tenant to the 
 praecipe, against whom a common recovery 
 
 358 
 
 was had with voucher of the tenant in tall 
 to the Tise of himself in fee: And whether 
 by this recovery the will was made good, 
 so as by virtue thereof the devisee shall have 
 the land, or whether the devise be revoked 
 by the recovery? was the question: And 
 by Pemberton, C. J., and the whole court 
 it was adjudged upon argument, that this 
 was a revocation; for by the bargain and 
 sale and recovery the whole estaie was 
 changed and altered after the making of thu 
 will. 
 
■.^ 88) 
 
 WALTOX V. WALTOX. 
 
 Case No. Ill 
 
 WALTON V. WALTON. 
 
 (7 Johns. Ch. 2.-.8.) 
 
 Chancery Court of New York. 1823. 
 
 J. O. Hoffman, for plaintiff. 
 Mr. Harisou, conti-a. 
 
 KENT, Oh. * * * 2. The next branch of 
 the case relates to the lands devised to the 
 plaintiff, lying between the Delaware and 
 Susquehannah rivers. 
 
 The testator, subsequent to the date of the 
 -will, entered into contracts for the sale of 
 four several parcels of these lands, and re- 
 -ceived part of the price in each case, and 
 took a bond for the residue, and died leav- 
 ing those contracts in full force. These con- 
 ti'acts are set forth iu the answer, and were 
 binding upon the testator, and liable to be 
 ;speciflcally enforced in equity; and I enter- 
 tain no doubt that the devise, so far as those 
 oonti-acts of sale affected the lands devised, 
 was revoked. The case of KnoUys v. Al- 
 cock, 5 Ves. 654, is to this effect: The testa- 
 tor, by will, devised her iindivided moiety of 
 her Berkshire estate to M., and afterwards, 
 by agreement with her coparcener, contract- 
 .ed to divide their joint interest, and to allot 
 the Berkshire estate to K. This was held 
 by Lord Loughborough to be a revocation of 
 that part of the devise, and the agreement 
 was decreed to be specifically performed. 
 The principle was, that where an estate is 
 •devised specifically, and is afterwards sold 
 by the testator by a conti-act executory, the 
 estate goe^ from the devisee, and the devise 
 ,-is revoked by the contract of sale. So again, 
 in Williams v. Owens, 2 Ves. Jr. 601, the 
 master of rolls observed, that if a man ar- 
 .ticles for the sale of an estate that he has 
 devised, it is, without doubt, a revocation in 
 equity, though it is not at law, because a 
 *ourt of law cannot look at the articles with 
 a view to a specific performance. In Cotter 
 V. Layer, 2 P. Wms. 623. Lord King held, 
 that though a covenant or articles to sell or 
 settle the land devised, do not at law revoke 
 SL will, yet if entered into for a valuable con- 
 -sideration, they amount in equity to a con- 
 veyance and a revocation. He laid down 
 the same rule in Rider v. Wager, 2 P. Wms. 
 .332; and Lord Loughborough, in Brydges v. 
 Duchess of Chandos, admitted the force and 
 authority of these two cases. So, again, in 
 the case of Mayer v. Gowland, Dickens, 568, 
 the testator devised a certain farm, and then 
 ■entered into a contract with the defendant 
 to sell it to him for 1,-500 pounds. It was in- 
 sisted by the residuary legatees, that the tes- 
 tator meant, by the contract, to turn the land 
 into personalty, and that as such they were 
 entitled to it. In this opinion. Lord Thurlow 
 conciu-red, and held that the agi-eement ought 
 to be carried into execution, and the money 
 .arising from the sale to be considered as per- 
 sonal estate. | 
 These cases are entirely sufficient to show I 
 
 the settlement of the rule that a valid con- 
 traet_fpr_the sale ot landi^^vlsed^is as 
 mudi-£L^evocation ofjthe will in equity as a 
 legaL-consieyance of^heip would^be^at law. 
 The estate, from the time of the conti'act, is 
 considered as the real estate of the vendee. 
 We may, therefore, safely conclude, that, as 
 to the lands described in the contracts of 
 sale, set forth in the answer, and which con- 
 tracts were subsisting at the testator's death, 
 there was a revocation of the devise; and 
 the interest in these lands, and in the con- 
 tracts relating to them, belongs to the residu- 
 ary legatees under the will. The more em- 
 barrassing question arises as to tie lot No. 
 17, mentioned in the pleadings. This lot 
 was part of the lands devised to the plaintiff, 
 and the testator afterwards contracted to 
 sell it to S. C. Baldwin, and received part 
 of the purchase money. At a subsequent 
 period, this contract of sale was rescinded 
 by the parties to it, and the money paid was 
 credited to Baldwin on another transaction, 
 and the testator continued seised of the lot 
 to his death. 
 
 The question is, whether this contract of 
 sale was also a revocation of the will pro 
 tanto, seeing that it was afterwards rescind- 
 ed. 
 
 In Bennett v. Earl of Tankerville, 19 Ves. 
 170, 178, a devise was held to be revoked by 
 a contract of sale, though that contract was 
 rescinded after the testator's death. But 
 in that case, the contract was subsisting 
 when the testator died, and this makes a 
 material distinction between that and the 
 present case. 
 
 Inoperative conveyances, which have failed 
 for want of completion, or from incapacity 
 in the grantee to take, have, in some cases, 
 been held a revocation of a will at law. 
 Lord Kenyon observed, in Shove v. Piucke, 
 5 Term R. 124, that a conveyance, inade- 
 quate for the purpose intended, would 
 amount, in point of law, to a revocation, if 
 it showed an intention to revoke the will. 
 A covenant to make a feoffment, and a let- 
 ter of attorney to make livery, but no livery 
 made, were held, in Mountague v. Jefferies, 
 1 RoUe, Abr. 615, to be a revocation of a 
 will, as being acts inconsistent with it; and 
 Lord Hardwicke and Lord Ch. J. Alvanley, 
 sitting in equity, have approved of this con- 
 struction, as those acts imported an intention 
 in the testator to revoke. 3 Atk. 73, 803; 
 7 Ves. 370, 371, 373. So a bargain and sale 
 without enrolment, or a conveyance upon a 
 consideration which happened to fail, or a 
 will not executed according to the statute, 
 or a disability in the grantee to take, are ad- 
 mitted by the same authorities to amount to 
 a revocation. The great question, says Lord 
 Alvanley, has been, whether inchoate acts, 
 inconsistent, shall revoke; but in all the 
 cases it is admitted, that if the act gives 
 power to destroy the will, though the act is 
 not done, yet the will is revoked. 
 
 The contract to sell lot No. 17, was bind- 
 
 359 
 
Case No. Ill 
 
 WALTON ». WALTON. 
 
 (§88 
 
 ing upon the testator, and was, at the time, 
 a revocation of the will as to that lot, for it 
 was a conveyance in equity, and equity 
 would have enforced it. The estate was, in 
 contemplation of equity, the property of the 
 vendee, and the purchase money the property 
 of the vendor. The wiU was revoked be- 
 cause the estate was sold, and because the 
 testator, by that contract. Intended to re- 
 voke it; and why should a subsequent re- 
 covery of the estate, by rescinding the con- 
 tract, restore the will in equity without re- 
 publication, when the taking back of the 
 same estate, by a reconveyance, after a con- 
 veyance at law, will not do it? The rules 
 as to revocation of wills are the same in law 
 and equity; and as Lord Loughborough ob- 
 served, in Brydges v. Duchess of Ohandos, 
 the creation and transmission of estates, 
 must be governed by the same law In both 
 com-ts. If a will be once absolutely revoked, 
 whether directly or impliedly, it must be 
 gone forever. It cannot be restored without 
 due republication. 
 
 Without wishing to lose myself in the laby- 
 rinth of cases which have arisen on the sub- 
 ject of revocations, and especially after the 
 discouraging picture which Lord Oh. J. Eyi-e 
 gives of many of the cases, as being "a heap 
 of heterogeneous instances, depending upon 
 different principles, and huddled together 
 without discrimination," I will look only into 
 a few leading authorities, for the illustration 
 of a strict principle of law, that if the tes- 
 tator afterwards conveys away the estate 
 entirely, though he takes it back again by 
 the same instrument, or by a declaration of 
 uses, it is a revocation, because he once 
 parted with the estate. Either an intention 
 to revoke, or an alteration of the estate with- 
 out such intention, will work a revocation. 
 
 In Dister v. Dister, 3 Lev. 108, the C. B. 
 held a devise revoked by a recovery to the 
 uses of the devisor, because the estate was 
 altered, though the testator took back the old 
 use. And the same principle was admitted 
 by the C. B. in Darley v. Darley, 3 "\^'ils. 6, 
 because, said Ch. J. Wilmot, it must be pre- 
 sumed the testator intended to alter his will; 
 yet, in that case, the testator suffered a re- 
 covery, which was absurd and useless, and 
 clearly bad, and without any reasonable 
 meaning to be deduced from it; and Lord 
 Camden, on the strength of the opinion of 
 the C. B., held the recovery a revocation of 
 the devise. See Lord Loughborough's re- 
 marks on this case, in 2 Ves. Jr. 430. 
 
 The opinion of Ch. J. Trevor, in Arthm- v. 
 Bockenham, Fitzg. 240, is a strong authority 
 on the point, and it is frequently cited as 
 unexceptionably sound. The law, he says, 
 is so very strict, that it requires the interest 
 which the testator had when he made the 
 will, should continue and be the very same 
 interest, and remain unaltered to his death: 
 and the least alteration of that interest is 
 a revocation of the will. He referred to the 
 case in which a tenant in tail, who has an 
 360 
 
 estate of inheritance, as such tenant, and 
 could dispose of the absolute inheritance and 
 fee by fine and recovery, devises the same, 
 and then suffers a recovery to himself and 
 his heirs; this was a revocation, though he 
 was owner when he made the will, and was 
 no more afterwards, but the estate was al- 
 tered, and he had another sort of fee. He 
 then referred to such a case as that of Dister 
 V. Dister, where a tenant in fee devises the 
 land, and then makes a feoffment to the use 
 of himself and his heirs. He remained ab- 
 solute owner as before, and yet the wiU was 
 held to be revoked by reason of the altera- 
 tion. 
 
 In Roper v. Radcliflfe, 10 Mod. 230, it was 
 conceded by the coimsel and the court, 
 that a devise to a person disabled by law 
 from taking, was a revocation of a prior 
 devise, on the ground of the intention to 
 revoke. Lord Hardwicke, in Parsons v.Free- 
 man, 3 Atk. 748, recognized the doctrine of 
 the above cases; and held that if the testa- 
 tor levied a tine, or enfoeffed a stranger to 
 his own use, it was a revocation, though the 
 testator was in of his old use. He admitted, 
 that this was a prodigiously strong instance 
 of the severity of the rule; and Lord Mans- 
 field observed (2 Doug. 722) that the Earl 
 of Lincoln's Case, Show. Pari. Cas. 154, de- 
 cided on the same principle, was shocking. 
 Still it was admitted to be a rule of law, 
 settled and to be observed. Lord Hardwicke 
 went at large into the consideration of the 
 same subject, in Sparrow v. Hardcastle, 3 
 Atk. 798, 7 Term R. 416, note, and laid 
 down the same rule. The testator, after 
 the devise, conveyed the estate, and took 
 back a declaration of trust, which after- 
 wards was performed and ceased, so that 
 he and his heirs were entitled to a recon- 
 veyance. Still it was a revocation, for the 
 estate did not continue in the same condi- 
 tion; and any alteration, any new modelling 
 of the estate after the will, was, as he 
 observed, a revocation, except in the cases 
 of mortgages and charges on the estate for 
 debts, which are only a revocation quoad the 
 special pm'pose, and they are taken out of 
 the general rule on the fact of being se- 
 curities only. 
 
 In Brydges v. Duchess of Chandos, 2 Ves. 
 Jr. 417, Lord Loughborough ably reviews the 
 cases, and acknowledges the rule which has 
 been stated. But the great case of Cave v. 
 Holford, 3 Ves. 650, 7 Term R. 399, 1 Bos. 
 & P. 576, led to a thorough examination of 
 all the law on the subject, and was discussed 
 with infinite ability in the several courts of 
 law and equity; and it was most authorita- 
 tively settled, that where a testator after 
 the will, conveyed the estate to trustees, in 
 trust for himself, in fee, till marriage, and, 
 for default of issue of the marriage, to the 
 use of himself in fee, and he married and 
 died without issue, the conveyance was a 
 revocation of the will both in law and equity. 
 The doctrine of the case is, that by a convey- 
 
§88) 
 
 WALTON V. WALTON. 
 
 Case No. Ill 
 
 ance of the estate devised, the will is re- 
 voked, because the estate is altered, thoiigh 
 the testator talse back the same estate, and 
 by the same instrument, or by a declaration 
 of uses; and tliough he did not intend to 
 revoke the will. It is revoked upon tech- 
 nical grounds, because the estate lias been 
 altered. And Lord Hardwicke said, in Spar- 
 row V. Hardcascle, the rule had been carried 
 so far, that if the testator suffered a recovery 
 for the very pui-pose of confirming the will, 
 it was still a revocation, for there was not 
 a continuance of the same unaltered interest. 
 
 We see, then, that either a change of the 
 estate, or an act, though nugatory in itself, 
 yet demonstrating an intention to revoke the 
 wiU, will amount to a revocation; and that 
 the exception to the general rule, malting an 
 alteration of the estate a revocation, is the 
 case of a conveyance for the special pur- 
 pose of payment of debts. 
 
 Equity, in the government of trust estates, 
 follows the rules and analogy of law as to 
 real estates; and legal and equitable estates, 
 as to tliese implied revocations, stand on 
 the same ground. I do not see how I can 
 avoid considering the wiU revoked, as to the 
 lot No. 17, for the estate did not continue 
 in the testator. By the contract of sale, he 
 became seised in trust for the purchaser. 
 The revocation may be placed on tlie ground, 
 either of an intention to revoke by the sale, 
 or of an alteration of the estate by vesting 
 an equitable title in Baldwin. The rescind- 
 ing of the contract was an acquisition of 
 the old use and title by the new agreement; 
 and this is not a stronger, nor so strong a 
 case, as some of those we have already re- 
 ferred to, and particularly the case of a 
 conveyance by the testator to the use of 
 himself, or upon a consideration which fails, 
 or by a conveyance which is incomplete and 
 invalid, or to a person who is incompetent 
 to take. If the revocation be placed upon 
 the ground of intention or of alteration, the 
 presumption of intention, or the fact of 
 alteration of the estate, is as manifest here 
 as in the other enumerated instances; and 
 upon principles of equity, the continuance of 
 the estate in the testator did cease by the 
 contract of sale. The contract is to have 
 the same effect in this court, upon the ques- 
 tion of revocation, as a conveyance at law 
 
 would have had in a court of law; and a 
 recovery of the estate, by a surrender of the 
 contract, does not, and cannot restore the 
 will, any more in the one case than a re- 
 conveyance in the other. The hard decisions 
 at law, touching these revocations, have been 
 established and adhered to ever since the 
 time of Edward III., with unshaken firm- 
 ness, as necessary to preserve the great 
 landmarks erected for the protection and 
 security of real property. I entirely approve 
 of the observation of Lord Kenyon, made in 
 reference to the very doctrine which we have 
 been reviewing, that "it was suflBcient, in 
 answer to objections to establish rules of 
 law of this kind, to say, 'Ita lex scripta 
 est;' and tliat it was his duty, as well as 
 his inclination, to follow and give effect to 
 the series of decisions of great and learned 
 men on the rules of law." 
 
 I sliall accordingly decree, that the de- 
 fendant give the requisite authority to the 
 plaintiff to receive, on his own account, and 
 for his own use, the dividends due and un- 
 paid, or which may hereafter be declared, 
 on the interest of the testator in the banlc 
 shares; and that the defendant assign over 
 to the plaintiff, for his own use, the two 
 shares in the Northern Navigation Company, 
 and account and pay to the plaintiff the 
 327 dollars and 27 cents, received on the 
 shares in the Western Navigation Company, 
 together with interest thereon, and that the 
 costs of this suit be paid by the defendant 
 out of the funds belonging to the residuary 
 legatees, inasmuch as the suit was rendered 
 necessary by the acts of the defendant, as 
 one of the residuary legatees, and by the 
 dispositions of the will. The cases in 9 Ves. 
 180, and 4 Johns. Ch. 608, (Rogers v. Ross,) 
 are authorities for this direction as to costs. 
 And I shall declare, that the will was re- 
 voked, as to tlie lands which the four sev- 
 eral contracts set forth in the answer cov- 
 ered, and as to the lot No. 17, mentioned in 
 the pleadings. 
 
 Decree accordingly. 
 
 NOTE. The effect of a change in the charac- 
 ter of the testator's surroundings and in the 
 value of his property is slightly considered in 
 Warner v. Beach, (1855,) 4 Gray, 162, and in 
 French v. French, 14 W. Va. 458. Conveyance 
 by and of trust is not within the rule. Woolery 
 V. Woolery, 48 Ind. 523. 
 
 361 
 
<.'ase Xo. 112 
 
 FOKSE AND HEMBLING'S CASE. 
 
 (§89 
 
 FORSE AND HEMBLING'S CASE. 
 
 (4 Coke, 60b.) 
 
 t'oui't of Common Pleas. Michaelmas Term, 30 
 & 31 Eliz. 
 
 The marriage of a woman is a revocation 
 of a will made by her prior to such mar- 
 riage. S. C. 1 And. 181; Gouldsb. 109. 
 
 Forse brought ejectione firmae against 
 Hembling on a demise made by Thomas 
 Callle to the plaintiff for three years, of cer- 
 tain houses in Norwich, from the feast of 
 St. Michael, Anno 29 Eliz., etc., to which the 
 defendant pleaded not guilty; and the jmy 
 gave a special verdict, so. that one Alice Al- 
 len was seised of the said houses in fee, 
 and made her will in writing, and thereby 
 devised that if James Amynde survived her, 
 that then she devised and bequeathed to 
 him and his heirs the tenements in question, 
 and afterwards she intermarried with the 
 said James Amynde; and further found, that 
 she oftentimes after the marriage, revoked 
 the said will, saying, that the said James 
 Amynde should not have the said tenements 
 by the said will, and afterwards the wife 
 died seised without issue, and the husband 
 siu-vived, and thereof enfeoffed the defend- 
 ant, upon whom the said Thomas Cailie as 
 heir to the said Alice entered and made the 
 lease as in the declaration, and prayed the 
 advice of the court. Upon which verdict two 
 questions were moved:— 1. If the will of a 
 woman by the intermariiage with the de- 
 visee was countermanded, or not. 2. If it 
 was not countermanded by the intermar- 
 riage, if by her words of revocation after 
 the marriage it was countermanded. And 
 it was objected by the husband's counsel, 1. 
 That if a feme sole make her will and de- 
 vises her land to A., and afterwards mar- 
 ries B., and afterwards B. dies, and the wife 
 survives him, in that case it was said that 
 the will remains good, and was not counter- 
 manded by the marriage, as Manwood said 
 in 1 Plow. 343, and was not denied: but if 
 it was admitted that the will in such case 
 was countermanded by the marriage with a 
 stranger; yet in the case at bar for the bene- 
 fit of the husband being the devisee, the 
 will shall not be countermanded, and there- 
 fore it was adjudged in 2 R. 2, Attornment 8, 
 that where a feme sole makes a lease for life 
 rendering rent, and afterwards by her deed 
 grants the reversion to another, and after- 
 wards and before attornment marries with 
 the grantee, that this marriage was not a 
 countermand of the attornment, as if she had 
 married with a stranger, for it is for the 
 benefit of the husband that it shall not be a 
 countermand, and therefore there by the 
 payment of the rent by the tenant to the 
 husband in the name of attornment, the re- 
 version passed out of the wife to the hus- 
 band; for the same reason which proves that 
 the .intermarriage with a stranger shall be 
 a countermand of the attornment for the 
 362 
 
 benefit of the husband proves that when 
 the grantor marries with the grantee, that 
 it shall not be a countermand, for that shall 
 be for the benefit of the husband. And so 
 in the principal case it is for the benefit of 
 the husband, that the will by the marriage 
 shall not be countermanded, but shall take 
 effect according to the pui-port thereof: and 
 it was said, that the case of a will when the 
 woman marries with a stranger is not like 
 the case of attornment when the grantor 
 marries with a stranger; for the will of a 
 woman cannot take any effect during her 
 life, but only after her death, and can by no 
 possibility be any prejudice to the husband; 
 for if he has issue, he shall be tenant by the 
 com-tesy, and he may take the profit thereof 
 during the coverture, or dispose of them at 
 his pleasure to all intents and purposes, as if 
 no win had been made. 2. To say as it is 
 said in 3 E. 3, Devise 12, that the will of a 
 feme covert is void, because the law pre- 
 sumes that it was made by coercion of the 
 husband, that cannot be so intended in this 
 case, forasmuch as in the case of 3 E. 3, the 
 will was made by a woman when she was 
 covert, which cannot be made good by any 
 custom: but here in oiu: case the woman 
 was sole, and free from all constraint at 
 the time of the making of her will. 3. It 
 was objected, that if the will was not coun- 
 termanded by the intermarriage, without 
 question it was not nor could be counter- 
 manded by the woman's words after the 
 marriage; for after marriage the whole will 
 of the wife is in judgment of law subject to 
 the will of the husband, and as is common- 
 ly said, a feme covert has not any will; and 
 therefore if the will stands notwithstand- 
 ing the intermarriage, her countermand aft- 
 erwards is of no force or effect, quod fult 
 concessum per tot' curiam as to this point. 
 Fm-ther, it was objected, that notwithstand- 
 ing that after the marriage the wife could 
 not revoke her will, so that now after the 
 marriage it is irrevocable, yet that is no rea- 
 son that the intermarriage should be a coun- 
 termand; for if a man of sound memory 
 makes his will, and afterwards becomes 
 non compos mentis; in that case until the 
 time of his death, after that he became of 
 nonsane memory, he cannot countermand 
 his will, and yet the disability or imperfec- 
 tion of nonsane memory, was not any coim- 
 termand of it. 4. It was said that counter- 
 mands of will are favom'ed in law; and, 
 therefore, forasmuch as there is no book in 
 law in this point, but the said case of attorn- 
 ment adjudged is all one in reason with 
 this case; for these causes it was concluded, 
 that judgment should be given against the 
 plaintiff: but it was upon great delibera- 
 tion adjudged for the plaintiff. And in this 
 case it was unanimously agreed upon the 
 whole matter, sc. by the talung of husband, 
 and coverture at the time of her death, the 
 will was countermanded, and that for two 
 reasons. 1. The making of a will is but the 
 
89) 
 
 FOK.se A>D HEMJiLlXG'S CASE. 
 
 Case No. 112 
 
 inception of It, and it doth not taki- any ef- 
 fect till the death of tlie devisor, for ouine 
 testament' morte consumniat' est; et vol- 
 untas est ambulatoria usque extrenium vitae 
 «xitum: then it would be ayainst the nature 
 of a wiU to be so absolute, that he who 
 malies it, being of good and perfect memory, 
 cannot countermand it: and therefore this 
 taking of husband being in the case at bar, 
 her proper act shall amount to a counter- 
 mand in law. But when a man of sound 
 memory makes his will, and afterwards, by 
 the visitation of God becomes of unsound 
 memory (as every man for the most part 
 before his death is), God forbid that this 
 act of God should be in law a revocation of 
 his will, which he made when he was of 
 good and perfect memory. 2. It would be 
 mischievous to women, that after their in- 
 termarriages, they could not for no cause 
 countermand their wills. 3. As the law will 
 not allow any custom, that a feme covert 
 may make any devise for the presumption 
 that the law has, that it will be made by 
 <:onstraint of the husband, as it is adjudged 
 
 in 3 E. 3; so if it was in the power of the 
 wife after her marriage to revoke her will, 
 the law would not suffer the continuance 
 thereof after marriage, forasmuch as the 
 liusband by constraint may cause her 
 against her will to revoke or continue it. 
 And as to the said case of attornment, it was 
 said in 2 K. 2, that when the woman in the 
 same case, by her deed sealed and delivered 
 by her, granted the reversion to another, it 
 took such effect against herself, that she her- 
 self could not by any words countermand it 
 before or after the taking husband, and 
 therefore it is not like the case of a will, be- 
 cause it might well be, that Inasmuch as her 
 grant by deed stood in force after the tak- 
 ing of the grantee to husband, that it shall 
 not be any countermand. 
 
 NOTE. The rule that marriage and birth of 
 a child revokes a husband's will was applied to 
 personal property in IiugK v. Lugg, 1 Ld. Eaym. 
 141; to real estate in Brown v. Thompson, 1 
 Eq. Gas. Abr. 418, pi. 15, and Christopher v. 
 Christopher, 2 Dickens, 445. In some of the 
 United States marriage alone revokes the hus- 
 band's will. See Duryea v. Duryea, 85 111. 41. 
 
 363 
 
Case No. 15 
 
 AYEHS e. DIXON. 
 
 (§8 
 
 AYBRS V. DIXON. 
 (78 N. Y. 318.) 
 Court of Appeals of New York. 1879. 
 Appeal from judgment modifying, and af- 
 firming as modified, a judgment for plaintiff. 
 
 Charles Bradshaw, for appellant. J. A. 
 Shroudy, for respondent. 
 
 DANFORTH, J. The plaintifC's case rests 
 on certain allegations of fact: 
 
 First. That on the 10th of January, 1876, 
 one Read executed a mortgage to Vaughn of 
 .f4,000, upon premises in Aiken, South Caro- 
 lina, afterward owned by Eleazer Ayers, and 
 he on the 29th day of September, 1876, in con- 
 sideration of $1, paid to him, agreed to sell 
 au undivided one-half part thereof to the de- 
 fendant Dixon, "for the sum of six thousand 
 dollars," "which," as the agreement states, 
 Dixon "agrees to pay and deliver" to Ayers 
 as follows: "Three thoiisand dollars at the 
 time of the delivery of the deed of the said 
 premises, and an agreement by Dixon to 
 assume and pay three-fourths of the Read 
 mortgage with interest at the rate of seven 
 per cent, per annum from the day of the 
 delivery of the deed," and Ayers agreed "that 
 on receiving said payment," he would execute 
 and deliver to Dixon, or "to his assigns, a 
 good and sufficient deed containing a general 
 warranty, and the usual full covenants for 
 the conveying and assuring to him or them 
 the fee-simple of said premises free from all 
 incumbrance except the said $4,000 mort- 
 gage," the deed to be delivered, and pm'chase- 
 money paid on or before the 14th day of 
 October, 1876. This agreement was in writ- 
 ing executed by both parties. Subsequently, 
 but not until December 19, 1876, Ayers and 
 wife executed a deed of an imdivided one-half 
 of the Aiken premises to Dixon, "in consider- 
 ation" as is therein recited "of the sum of 
 six thousand dollars, of which amount three 
 thousand dollars is paid in cash and the 
 balance by Dixon assuming to pay three- 
 fourths of the mortgage above described." 
 On the 9th of May, 1877, Ayers died, and 
 the plaintiff was appointed administratrix of 
 his estate. It is nowhere stated wlien the 
 mortgage was payable, or whether by install- 
 ments or otherwise, but the referee finds 
 "that the defendant never paid the said three- 
 foiu'ths part of the mortgage, nor any part 
 of the interest thereon, and it was on the 
 1st day of April, 1878, foreclosed for non- 
 payment, and the premises sold under such 
 foreclosure, for the sum of five thousand dol- 
 lars." 
 
 Second. At the time of the execution of 
 tlie deed, Ayers and the defendant agreed to 
 make certain improvements upon the prem- 
 ises by erecting buildings, and supplying the 
 same with furniture and fixtures. That some 
 of the personal property was also sold at the 
 time of the foreclosure, and from the pro- 
 ceeds of the real and personal property the 
 defendant received $809.68. 
 
 134 
 
 Third. That certain goods bought by the 
 intestate on account of himself and the de- 
 fendant amounted to $140. From these prem- 
 ises the referee found in favor of the plain- 
 tiff, 1st, $3,000 as the part of the mortgage 
 assumed by the defendant, less $1,000 of said 
 mortgage which the intestate was liable to 
 pay with interest, adding interest on the bal- 
 ance from the time of the sale April 1, 1878. 
 2d, $404.50 being one-half of the sm^plus re- 
 ceived by the defendant on the sale, and 3d, 
 $70 as one-half of the $140 paid by Ayers 
 for goods; and judgment was entered accord- 
 ingly. Upon appeal to the general term the 
 judgment was modified by deducting the 
 $404.50 and interest, upon the ground as stated 
 in the opinion of that court, "that the proceeds 
 of the real estate belonged to the heirs, and 
 there was no evidence by which the proceeds 
 of the personal property could be separated 
 from the sum* charged." This modification is 
 acquiesced in by the plaintiff. 
 
 The item of $70 was properly charged to 
 the defendant, for it was on the evidence 
 one-half of an expenditure made by the in- 
 testate on joint account, and as to it the 
 judgment' should be affirmed; but as to the 
 other and more important item, I do not 
 think the judgment can be sustained. 
 
 By virtue of the express covenant in the 
 agreement of September, as well as the pro- 
 vision in the deed itself, the defendant he- 
 came liable to the holder of tlie mortgage 
 for so much of it as he had assumed to pay, 
 but this was not a liability to his grantor. 
 The $3,000 in cash, and the promise of the 
 defendant to pay $3,000 on the mortgage, 
 was the full consideration for the convey- 
 ance; there was no longer an indebtedness 
 on that account. This accords with the evi- 
 dent intention of the parties, and the ex- 
 press language of the agreement, and the 
 deed above set out. There was not, as the 
 learned counsel for the respondent claims, 
 "a promise to pay the intestate $6,000 for 
 the land, with the privilege of paying $3,000 
 of it upon the mortgage." There was no 
 alternative obligation. The promise to pay 
 three-fourths of the mortgage, and the pay- 
 ment of $3,000 Wiis all the intestate was 
 to receive. He received the money and the 
 promise. The plaintiff assumes that "$3,000 
 of the consideration was luipaid," and for 
 its recovery this action was brought. If 
 tl'.at view is tenable the intestate in his life- 
 time might have sued, and as no time is men- 
 tioned for the payment of the $3,000, might 
 have sued instantly on the delivery of the 
 deed. On the plaintiff's theory he would 
 have recovered. Then the defendant would 
 have paid in cash the $6,000, and remained 
 the owner of the undivided half of the prem- 
 ises subject to a mortgage of $4,000, and as 
 he had by accepting the deed assumed to pay 
 three-fourths of it, he would be still liable 
 to an action by its holder for that amount, 
 for upon that promise the mortgagee could 
 sue, and recover in his own name. Burr v. 
 
§8) 
 
 AYERS V. DIXON. 
 
 Case No. 15 
 
 Beers, 24 N. T. 178; Thorp v. Coal Co., 48 N. 
 Y. 253. Such a result cannot be reached by 
 any fair construction of the agreement. Hal- 
 «ey V. Reed, 9 Paige, 445. The defendant 
 was liable for so much of the mortgage debt 
 as he assumed, but he owed the intestate 
 nothing, and could not have been successfully 
 prosecuted by him as upon a promise to pay 
 the consideration money. 
 
 But it by no means follows that the intes- 
 tate was without rights as against the de- 
 fendant or without remedies for their en- 
 forcement. Upon the delivery and accept- 
 ance of the deed, the defendant as to three- 
 fourths of the mortgage became the principal 
 debtor, and the intestate, or grantor, his sure- 
 ty for payment of three-foiu-ths of the mort- 
 gage debt. If therefore he paid the amount 
 assumed by the defendant, he would be en- 
 titled to subrogation to the rights of the 
 mortgagee, or in case of a foreclosure could 
 require the mortgage to be paid out of that 
 portion of the premises conveyed to the de- 
 fendant, and for the amount paid voluntarily 
 ■or on compulsion, could obtain satisfaction 
 tj' suit against tlie defendant. It is needless 
 to say that such a case is not made out by 
 the complaint, nor has the recovery been 
 liad upon any such theory. Nor could the 
 plaintiff in any event recover. The grantor 
 <the intestate) died before any action accrued 
 against the defendant, and the premises in 
 
 question descended to his heirs. They were 
 the parties concerned at the time of the fore- 
 closure. They held the land subject to the 
 mortgage, a part of which the defendant had 
 undertalsen to pay; and were as between 
 themselves and the plaintifC bound to pay it. 
 1 Rev. St. p. 749, § 4. The defendant's cove- 
 nant was not for the benefit of his grantor 
 alone, but for the protection of all who de- 
 rived their title to the land through him. 
 Three-fourths of the mortgage was chargeable 
 upon defendant's share, and, if possible, to 
 be paid therefrom. The heirs therefore 
 standing In the place of the grantor are the 
 ones injured by the breach of the defend- 
 ant's covenant, and as they bear the burden 
 of the mortgage are entitled to the benefit 
 of the security which that covenant affords. 
 It relates to the land and passed with it to 
 them. 
 
 It follows therefore that as to the item 
 under consideration, the plAntiff has no 
 cause of action. 
 
 The judgment should be reversed, and a 
 new trial granted with costs to abide the 
 event, unless the plaintifC stipulates to re- 
 duce the judgment, so that It shall stand for 
 $70, and interest thereon from May 9, 1877, 
 and no more without costs, in which event 
 it is afiirmed for that amount, without costs 
 to either party. 
 
 All concur. Judgment accordingly. 
 
 135 
 
Case No. 15 
 
 AYEHS 0. DIXON. 
 
 (§8 
 
 AYERS V. DIXON. 
 (78 N. Y. 318.) 
 Court of Appeals of New York. 1879. 
 Appeal jfrom judgment modifying, and af- 
 firming as modified, a judgment for plaintiff. 
 
 Charles Bmdsliaw, for appellant. J. A. 
 SJiroudy, for respondent. 
 
 DANFORTH, J. The plaintiff's case rests 
 on certain allegations of fact: 
 
 First. That on the 10th of January, 1876, 
 one Bead executed a mortgage to Vaughn of 
 .fijOOO, upon premises in Aiken, South Caro- 
 lina, afterward owned by Eleazer Ayers, and 
 he on the 29th day of September, 1876, in con- 
 sideration of $1, paid to him, agreed to sell 
 an undivided one-half pai-t thereof to the de- 
 fendant Dixon, "for the sum of six thousand 
 dollars," "which," as the agreement states, 
 Dixon "agrees to pay and deliver" to Ayers 
 as follows: "Three thousand dollars at the 
 time of the delivery of the deed of the said 
 premises, and an agreement by Dixon to 
 assume and pay three-fourths of the Read 
 mortgage with interest at the rate of seven 
 per cent, per annum from the day of the 
 delivery of the deed," and Ayers agreed "that 
 on receiving said payment," he would execute 
 and deliver to Dixon, or "to his assigns, a 
 good and sufficient deed containing a general 
 warranty, and the usual fuU covenants for 
 the conveying and assuring to him or them 
 the fee-simple of said premises free from all 
 incumbrance except the said $4,000 mort- 
 gage," the deed to be delivered, and purchase- 
 money paid on or before the 14th day of 
 October, 1876. This agreement was in writ- 
 ing executed by both parties. Subsequently, 
 but not until December 19, 1876, Ayers and 
 wife executed a deed of an imdivided one-half 
 of the Aiken premises to Dixon, "in consider- 
 ation" as is therein recited "of the sum of 
 six thousand dollars, of which amount three 
 t4iousand dollars is paid in cash and the 
 balance by Dixon assuming to pay three- 
 fourths of the mortgage above described." 
 On the 9th of May, 1877, Ayers died, and 
 the plaintiff was appointed administratrix of 
 his estate. It Is nowhere stated when the 
 mortgage was payable, or whether by install- 
 ments or otherwise, but the referee finds 
 "that the defendant never paid the said three- 
 fom-tlis part of the mortgage, nor any part 
 of the interest thereon, and it was on the 
 1st day of April, 1878, foreclosed for non- 
 payment, and the premises sold under such 
 foreclosure, for the sum of five thousand dol- 
 lars." 
 
 Second. At the time of the execution of 
 the deed, Ayers and the defendant agi-eed to 
 make certain improvements upon the prem- 
 ises by erecting buildings, and supplying the 
 same with furniture and fixtures. That some 
 of the personal property was also sold at the 
 time of the foreclosure, and from the pro- 
 ceeds of the real and personal property the 
 defendant received $809.68. 
 134 
 
 Third. That certain goods bought by the 
 intestate on account of himself and the de- 
 fendant amounted to $140. From these prem- 
 ises the referee found in favor of the plain- 
 tiff, 1st, $3,000 as the part of the mortgage 
 assumed by the defendant, less $1,000 of said 
 mortgage which the intestate was liable to 
 pay with interest, adding Interest on the bal- 
 ance from the time of the sale April 1, 1878. 
 2d, $404.50 being one-half of the surplus re- 
 ceived by the defendant on the sale, and 3d, 
 $70 as one-half of the $140 paid by Ayers 
 for goods; and judgment was entered accord- 
 ingly. Upon appeal to the general term the 
 judgment was modified by deducting the 
 $404.50 and Interest, upon the ground as stated 
 in the opinion of that court, "that the proceeds 
 of the real estate belonged to the heirs, and 
 there was no evidence by which the proceeds 
 of the personal property could be separated 
 from the sum' charged." This modification is 
 acquiesced in by the plaintiff. 
 
 The item of $70 was properly charged to 
 the defendant, for it was on the evidence 
 one-half of an expenditure made by the in- 
 testate on joint account, and as to it the 
 judgment' should be affirmed; but as to the 
 other and more important item, I do not 
 think the judgment can be sustained. 
 
 By virtue of the express covenant In the 
 agreement of September, as well as the pro- 
 vision in the deed Itself, the defendant he- 
 came liable to the holder of the mortgage 
 for so much of it as he had assumed to pay, 
 but this was not a liability to his grantor. 
 The $3,000 in cash, and the promise of the 
 defendant to pay $3,000 on the mortgage, 
 was the full consideration for the convey- 
 ance; there was no longer an indebtedness 
 on that account. This accords with the evi- 
 dent Intention of the parties, and the ex- 
 press language of the agreement, and the 
 deed above set out. There was not, as the 
 learned counsel for the respondent claims, 
 "a promise to pay the intestate $6,000 for 
 the land, with the privilege of paying $3,000 
 of it upon the mortgage." There was no 
 alternative obligation. The promise to pay 
 three-fourths of the mortgage, and the pay- 
 ment of $3,000 Wiis all the intestate was 
 to receive. He received the money and the 
 promise. The plaintiff assumes that "$3,000 
 of the consideration was mipaid," and for 
 its recovery this action was brought. If 
 tl'.at view is tenable the intestate in his life- 
 time might have sued, and as no time is men- 
 tioned for the payment of the $3,000, might 
 have sued instantly on the delivery of the 
 deed. On the plaintiff's theory he would 
 have recovered. Then the defendant would 
 have paid in cash the $6,000, and remained 
 the owner of the undivided half of the prem- 
 ises subject to a mortgage of $4,000, and as 
 he had by accepting the deed assumed to pay 
 three-fourths of It, he would be still liable 
 to an action by its holder for that amount, 
 for upon that promise the mortgagee could 
 sue, and recover in his own name. Burr v. 
 
§8) 
 
 AYERS V. DIXON. 
 
 Case No. 15 
 
 Beers, 24 N. Y. 178; Thorp v. Ck)al Co., 48 N. 
 Y. 253. Such a result cannot be reached by 
 any fair construction of the agreement. Hal- 
 •sey V. Reed, 9 Paige, 445. The defendant 
 was liable for so much of the mortgage debt 
 as he assumed, but he owed the intestate 
 nothing, and could not have been successfully 
 prosecuted by him as upon a promise to pay 
 the consideration money. 
 
 But it by no means follows that the intes- 
 tate was without rights as against the de- 
 fendant or without remedies for their en- 
 forcement. Upon the delivery and accept- 
 ance of the deed, the defendant as to three- 
 fourths of the mortgage became the principal 
 •debtor, and the intestate, or grantor, his sure- 
 ty for payment of three-f om-ths of the mort- 
 gage debt. If therefore he paid the amount 
 assumed by the defendant, he would be en- 
 titled to subrogation to the rights of the 
 mortgagee, or in case of a foreclosm-e could 
 require the mortgage to be paid out of that 
 portion of the premises conveyed to the de- 
 fendant, and for the amount paid voluntarily 
 ■or on compulsion, could obtaiu satisfaction 
 "by suit against the defendant. It is needless 
 to say that such a case is not made out by 
 the complaint, nor has the recovery been 
 had upon any such theory. Nor could the 
 plaintiff in any event recover. The grantor 
 <the intestate) died before any action accrued 
 against the defendant, and the premises in 
 
 question descended to his heirs. They were 
 the parties concerned at the time of the fore- 
 closure. They held the land subject to the 
 mortgage, a part of which the defendant had 
 undertaken to pay; and were as between 
 themselves and the plaintiff bound to pay it. 
 1 Rev. St. p. 749, § 4. The defendant's cove- 
 nant was not for the benefit of his grantor 
 alone, but for the protection of all who de- 
 rived their title to the land through him. 
 Three-fourths of the mortgage was chargeable 
 upon defendant's share, and, if possible, to 
 be paid therefrom. The heirs therefore 
 standing in the place of the grantor are the 
 ones injured by the breach of the defend- 
 ant's covenant, and as they bear the burden 
 of the mortgage are entitled to the benefit 
 of the security which that covenant affords. 
 It relates to the land and passed with it to 
 them. 
 
 It follows therefore that as to the item 
 under consideration, the pliintifE has no 
 cause of action. 
 
 The judgment should be reversed, and a 
 new trial granted with costs to abide the 
 event, unless the plaintiff stipulates to re- 
 duce the judgment, so that It shall stand for 
 $70, and interest thereon from May 9, 1877, 
 and no more without costs, in which event 
 it is affirmed for that amount, without costs 
 to either party. 
 
 All concur. Judgment accordingly. 
 
 135 
 
Case No. 116 
 
 SEMMES V. SEMMES. 
 
 (§90 
 
 SEMMES T. SEMMES et al. 
 
 (7 Har. & J. 388.) 
 
 Court of Appeals of Maryland. June, 1826. 
 
 Appeal from a decree of the orphans' court 
 of Charles county, refusing to admit to pro- 
 bate and record a paper offered as the last 
 will and testament of Ignatius Semmes, de- 
 ceased. 
 
 The cause (which is sufficiently explained 
 in the opinion delivered by this coiu-t) was 
 argued before BUCHANAN, C. J., and 
 EARLE, MAKTIN, STEPHEN, ARCHER, 
 and DORSEY, J.I. 
 
 Mr. Stonestreet, for appellant. C. Dorsey 
 and Mr. Brawner, for appellees. Mr. Taney, 
 in reply. 
 
 BUCHANAN, C. J. It is objected, on the 
 part of the appellant, that the orphans' 
 court did \Yrong in not admitting to probate 
 a paper, pm-porting to have been a duly exe- 
 cuted will of Ignatius Semmes, on two 
 grounds: First, because the obliterating the 
 name of Ignatius Semmes, and also the 
 names of the three subscribing witnesses, 
 does not appear to have been done by the 
 deceased; and, secondly, that if it was, it 
 did not amount to a revocation of the wiU. 
 
 With respect to the fii-st proposition, it 
 does not appear to admit of a doubt, that 
 rach obliteration was made by the deceased 
 Ignatius Semmes. 
 
 The memorandum at the foot of the paper, 
 and just below the signatm-es, in these 
 words, "In consequence of the death of my 
 wife, it is become necessary to make another 
 will," and signed Ignatius Semmes, is ad- 
 mitted to be in his handwriting. The oblit- 
 erations w.ere made by drawing a pen fre- 
 quently, and in different directions, across 
 his own signature, and the names of the sub- 
 scribing witnesses; and the ink with which 
 it was done, is proved to have been the same 
 with which the memorandum at the foot of 
 that paper was written. Hence it is mani- 
 fest, that the obliterations, and the memo- 
 randum, were simultaneous acts, and by the 
 deceased himself; and it would be straining 
 overmuch to admit the supposition, that it 
 might have been surreptitiously done by an- 
 other, in the absence of any testimony to 
 cast the slightest shade of suspicion upon 
 anybody. The memorandum must be con- 
 sidered as connected with the obliterations 
 as a part of the res gesta, and as explanatory 
 of the transaction. It is equivalent to a 
 declaration, that he had made the oblitera- 
 tions, for the reason assigned (the death of 
 his wife), which made it necessary to make 
 another will. 
 
 Considering then the obliterations to have 
 been made by the deceased, the second ob- 
 jection presents itself, to wit, that tlje will 
 was not thereby revoked; in support of 
 which several authorities were cited and re- 
 368 
 
 lied on in argument, but none of them sus- 
 tain the proposition, and it would be some- 
 what strange if they did. 
 
 In Onions v. Tyrer, 1 P. Wms. 843, the de- 
 ceased, by a will duly executed to pass real 
 estate, devised lands to trustees, to certain 
 uses, and afterwards made another will de- 
 vising the same lands to other trustees, but 
 to the same uses, with a clause of revocation 
 of the first, and attested by three witnesses, 
 who did not sign their names in the pres- 
 ence of the testator. Supposing the second 
 will to be duly executed to pass real estate, 
 the testator caused the first to be cancelled. 
 But it was determined, that the witnesses 
 to the second, not having signed their names 
 in the presence of the testator, it was void 
 as to the land, and could not therefore have 
 the effect to revoke the former; and the 
 cancelling of the first will, under the pre- 
 sumption that the second was good and ef- 
 fectual, was held not to amount to a revoca- 
 tion of it, on the ground that it was done by 
 mistake. The case of Hyde v. Hyde, 8 Vin. 
 Abr. 142, was clearly a case of mistake. 
 And the case of Mason v. Limbrey, cited by 
 Lord Mansfield, in 4 Burrows, 251.5, was de- 
 cided on principles not at all applicable to 
 this case. 
 
 The cancelling of a will is said to be an 
 equivocal act, and not to effect a revocation, 
 tmless it is done animo revocandi. And 
 where it is a dependent relative act, done 
 with reference to another, which is m«ant 
 and supposed to be good and effectual, it 
 may be a revocation or not, as that to which 
 it relates is efficacious or not. As where a 
 man having duly executed one will, after- 
 wards causes another to be prepared, and 
 supposing the second to be duly executed, 
 under that impression alone cancels the first. 
 In such case it has been held, that on the 
 second turning out not to have been duly ex- 
 ecuted, the cancelling the first, being done 
 by mistake and misapprehension, would not 
 operate as a revocation. But never where a 
 man has deliberately and intentionally can- 
 celled his will, as in this case, in the entire 
 absence of all accident or mistake, notwith- 
 standing he may, at the time, have intended 
 to make another will. 
 
 It is said, and indeed it would seem from 
 tlie testimony, that Ignatius Semmes did not 
 intend to die intestate, but however that 
 may be, we cannot make a will for him. By 
 the will, which is now attempted to be set 
 up, he had disposed of the wliole of his es- 
 tate to his wife, in trust for the 'Mise and 
 support of herself, and the benefit, education 
 and support," of his infant son until he 
 should arrive at the age of twenty-one years, 
 when he bequeathed one half of his personal 
 property absolutely to his wife; but she dy- 
 ing, he struck out his own signature, and the 
 names of the subscribing witnesses, and 
 made a memorandum at the bottom of the 
 will, assigning as a reason for what he had 
 
SO) 
 
 SEMMES V. SEMMES. 
 
 Case No. 116 
 
 done, that bis wife's death had rendered it 
 necessary to make another will. If that 
 was not a revocation, it would be found dif- 
 ficult to revoke a will by cancelling. In 
 Burtenshaw v. Gilbert, 1 Cowp. 49, which 
 was cited in argument, there were two wills, 
 and after the death of the party, the second 
 will, with a duplicate of the first, which he 
 had kept himself, were found together among 
 his papers both cancelled; and it was proved 
 ABB. WILLS — 24 
 
 that he had sent for an attorney to prepare 
 another will, but lost his senses before it 
 could be done. It was not doubted that the 
 second will was revoked. The only ques- 
 tion raised, was whether the revocation of 
 the second will did not set up the uncan- 
 celled duplicate of the first, and it was de- 
 termined that it. did not. That case surely 
 cannot be called in aid of this will. 
 Decree affirmed. 
 
 am 
 
Case No. 117 
 
 POWELL V. POWELL. 
 
 (§90 
 
 POWELL V. POWELL. 
 
 (L. R. 1 Prob. & Div. 209.) 
 
 Court of Probate. July 24, 1866. 
 
 Walter Powell, late of No. 30, Park walk, 
 Chelsea, the deceased in this case, died on the 
 ISth of June, 1865. He executed a will on 
 the 3rd of March, 1862, by which he left all 
 his property to his grandson, Edward Btir- 
 foot Powell, the plaintiff, whom he appointed 
 hip executor, and another will on the 29th of 
 March, 1864, by which he revoked ail former 
 wills, and bequeathed all his property to his 
 nephew Walter Powell, whom he appointed 
 his executor This latter will he destroyed 
 in ^he paWv part of the year 1865. and under, 
 the circumstances connected witli its de - 
 gtrnptioTi |hpre arose a question on the doc- 
 trinpi ^f dpppnfleTit relative revopntion^. 
 
 The plaintiff propounded the will of March 
 3, 1862. The defendant, who appeared to es- 
 tablish an intestacy as a granddaughter and 
 one of the next of kin of the deceased, plead- 
 ed first, a traverse of due execution of will 
 propounded; secondly, that subsequently to 
 its execution, the deceased made and duly 
 executed, according to 1 Vict. c. 26, a will 
 dated the 29th of March, 1864. at a time 
 when he was of sound mind, memory, and 
 understanding, by which the will of March 
 3, 1862, was duly revoked . 
 
 Mr. Bayford, for plaintiff. Dr. Tristram, 
 for defendant. 
 
 SIR J. P. WILDE. The testator in this 
 case made a will on the 3d of March, 1862, 
 and a second will, revoking tlie first, on the 
 29th of March, 1864. In 1865 he destroyed 
 the will of 1864, and tlie question is, whether, 
 by that act of destruction, the will of 1864 
 has been legally revoked, seeing tljat hi j j oi)- 
 icct in the act of destruction was to set uo 
 the -^yill of 1862. It is PQt ^ntended_ that 
 effect could be given by law to this object, 
 but failing that, it is argued that effect 
 ought not to be given to the destruction_ Q£ 
 the will of 1S64 as an act of revocatio n. I 
 conceive that the docti'ine of dependent rel- 
 ative revocation properly applies to facts 
 such as this case involves. This doctrine is 
 based on the principle that all acts by which 
 a testator may physically destroy or muti- 
 late a testamentary instrument are in their 
 nature eaui vo cal. They may be the result 
 of accident, or, if intentional, of various in- 
 tentions. It is, therefore, necessary in each 
 case to study the act done by the light of 
 the circumstances under which it occurred, 
 and the declai-ations of the testator with 
 which it may have been accompanied. Fq}.' 
 unless jt ViP rlriTiQ pTiimn revoc.Tnfii. it is lio 
 revocation . What, then, if the act of de- 
 370 
 
 struction be done with the sole I ntention of 
 setting up and establishing some other tes- 
 tamentary paper, for which the destruction 
 of the paper in question was only designed 
 to make way? It is clear that in such case 
 the animus revoc aT"^' ha d only a co nditionaT 
 existence, the condition being the validity 
 of the paper intended to be substituted, and 
 such has been the course of decision in the 
 various cases quoted in argument. But their 
 it is said, that this method of reasoning has 
 only hitherto been applied to cases in which 
 the destruction of the script has accom- 
 panied the execution of the instrument in- 
 tended in substitution; and that no decided 
 case can be found in which the instrument 
 intended to be established has been a long 
 previously executed paper. But I fail to 
 perceive a distinction in principle between 
 the two cases. For what does it matter 
 whether a testator* were to say, "I tear this 
 will of 1860 because I have this day (1st of 
 January, 1861) executed another designed to 
 replace it;" or, "I tear this will of 1860 be- 
 cause I desire and expect that the effect of 
 my so doing will be to set up my old will of 
 1840?" In either case the revocatory act is 
 based on a condition, which the testator im- 
 agines is fulfilled. In both cases the act is 
 referable, not to any abstract intention to 
 revoke, but to an Intention to validate an- 
 other paper; and as in neither case is the 
 sole condition upon which revocation was in- > 
 tended fulfilled, in neither is the animus rev- 
 ocandi present. It is only necessary to add 
 thnt, in the above _obsery ations. it has beep 
 assumed tha t the a ct _of_d^t£UCtlfln__wag. 
 t££ei:^^e^w^oUy^_ajad^^l5y^J^^ 
 of_§£t ting up som e other testame ntary pap M\ 
 And such was, I think, upon the evidence 
 given in this case, the reasonable conclusion 
 of fact. Cases may, and probably will, arise 
 in which the intention is either mixed or 
 ambiguous, and such are for future consid- 
 eration. The only case cited that requires 
 special mention is that of Dickinson v. Swat- 
 man, 30 Law J. Prob., Mat. & Adm. 84. But 
 Sir C. Cresswell, in that case, does not ap- 
 pear to have been satisfied that the sole in- 
 tention in destroying was to set up the 
 previous will. He is reported to have saidr 
 "At all events, to make it a case of depend- 
 ent relative revocation, you would have to 
 show that he did not intend to revoke the 
 second will unless by doing so the first would 
 have been revived." 
 
 Tlie court pronounces, therefore, for tli e 
 wUl of - the 29th of. March. 1864. as con- 
 tained in the draft thereof produced and 
 sworn to by Mr. Newman, the attorney who 
 made it. 
 
 The costs of all parties out of estate. 
 
§91) 
 
 LINGIJ^FELTEU o. UNGINFELTEli. 
 
 Case No. 118 
 
 LINGINFELTER t. LINGINFELTER. 
 
 (Hardin, 127.) 
 
 Court of Appeals of Kentucky. Spring Term, 
 1807. 
 
 PER CURIAM. This is a question upon 
 the establishment of the wiU of Bernard 
 Linginfelter, deceased; so that the facts, as 
 weU as the law, are to be adjudicated on by 
 this court. The writing contended for by 
 the plaintiffs, as the last will and testament 
 of said Bernard, is dated on the first day of 
 April, 1803, and is the same which was pro- 
 duced to the Payette county com-t, and by 
 them was refused to be admitted to record; 
 because, in their opinion, the said will was 
 revoked by the said testator in his life time, 
 by his having executed another writing, pur- 
 porting to be his will, subsequent to the time 
 at which the first wUl was executed. 
 
 The substance of the testimony, so far as 
 the same is thought material, is contained in 
 the following statement: 
 
 The win now under consideration is proved 
 by three of the fom: subscribing witnesses 
 thereto, to have been signed by them in the 
 presence and at the request of the said tes- 
 tator, who declared the same to be his last 
 wiU and testament. 
 
 It Is also proved that, subsequent to that 
 time, the testator had another wiU drawn, 
 which was also executed by him in like man- 
 ner; and it is admitted by the plain tifCs that 
 in the wUl last drawn there was a clause 
 expressly revoking all former wiUs. It is 
 further in evidence, that the writing last 
 mentioned was destroyed by the testator, in 
 his life time; or at least by his direction; 
 and after it was destroyed he declared that 
 the will written by Parker (which is the one 
 now in contest) should be his last will and 
 testament. 
 
 There is no testimony showing that the 
 testator ever entertained an idea of dying in- 
 testate, and leaving his property to the dis- 
 position of the law; so far from It, he ap- 
 
 pears in his last illness to have been ex- 
 tremely solicitous so to arrange his business 
 as to prevent all controversy among his heirs 
 after his death; and a very short time pre- 
 vious to his death, and after the wUl last 
 made had been destroyed, he seemed, in a 
 conversation with one of the witnesses, to 
 felicitate himself, because he had so fixed his 
 estate, that no controversy could arise about 
 his property among his heirs. 
 
 There is also evidence of the testator hav- 
 ing repeatedly observed, that he intended to 
 give a greater portion of his estate to some 
 of his children than to others, because they 
 had rendered him greater services. It also 
 appears, that the testator had both wills in 
 his house, and that the one last written was 
 destroyed, and the first retained uncanceled. 
 
 The court, from this statement of the case, 
 are of opinion, that although a second writ- 
 ing was executed by the testator, which, at 
 the time of executing, he Intended should be 
 his wiU; that he afterward destroyed it, for 
 the purpose of making the will now before 
 the covwt operate as his last will and tes- 
 tament. It, therefore, only remains for the 
 court to determine, whether, under such cir- 
 cumstances, the writing now in contest can 
 be established as the last will and testament 
 of the said Bernard Linginfelter, deceased. 
 
 The cases of Goodright ex dem. Glazier v. 
 Glazier, 4 Burrows, 2512; Harwood v. Good- 
 right, Cowp. 87; Onions v. Tyrer, 2 Vern. 
 741; and many other cases which might be 
 cited,— clearly prove that the bare act of 
 making a subsequent will, which is itself 
 canceled by the testator in his life time, shall 
 not amount to a revocation of a former will, 
 which has remained In. the possession of the 
 testator until his death, uncanceled; and 
 much less should It be considered as a revo- 
 cation, when such last will (as in the pres- 
 ent case) has been destroyed by the testator, 
 with an avowed Intention of giving efficacy 
 to the first. 
 
 Judgment establishing the wiU. 
 
 371 
 
Case No. 119 
 
 PERKINS V. MICKLETHWAITE. 
 
 (§ 92 
 
 PERKINS V. MICKLETHWAITE. 
 (1 P. Wms. 274.) 
 
 One Mlcklethwaite, who was the defend- 
 ant's father, had two sons Thomas and Jo- 
 seph, and also two daughters, and made his 
 will, giving thereby £1500 to his youngest son 
 Joseph, and £1000 to each of his two daugh- 
 ters, and directed, that if any of his three 
 younger children should die before their age 
 of twenty-one or marriage, then the portion 
 of him, or her, so dying, should go over to the 
 survivors, and gave his real estate to his eld- 
 est son chargeable with these portions. 
 
 One of the daughters died within age, and 
 before marriage; Joseph the younger son 
 died also within age, and before marriage, in 
 the life-time of his father the testator. 
 
 The father lived to have another son, whom 
 he named Joseph; and afterwards wrote a 
 codicil at the bottom of his wiU, by which he 
 confirmed the will, thereby taking notice, 
 that since the last, it had pleased God to give 
 him another son, and gave a legacy of £500 
 a-piece to his son Joseph, and his surviving 
 daughter, over and above what he had given 
 them by said will. 
 
 Upon this cause's coming on first before 
 Lord Chancellor Harcourt, touching the share 
 of the deceased daughter's portion, via. 
 whether, upon the death of the son Joseph, 
 the share of the said deceased daughter, that 
 
 372 
 
 was vested in Joseph, should survive with 
 Joseph's portion? 
 
 His lordship decreed it should not; (1) be- 
 cause the portion of the deceased daughter 
 became vested in distinct shares in the sur- 
 viving children, and there were no words for 
 creating a jointenancy of these shares, [quere 
 autem, for a devise over to two or more, is 
 a joint devise of course, unless there be 
 words to sever the jointenancy.] • But 
 
 The other points, being reserved, were ar- 
 gued now before Lord Chancellor Cowper; 
 and whereas it was objected, that by the 
 death of Joseph in the Uf e-time of the testa- 
 tor, his father, the £1500 portion given to him 
 became a lapsed legacy, and should sink into 
 the estate: 
 
 LORD CHANCELLOR said, it was improper 
 to call this a lapsed legacy, but it was a por- 
 tion given (a) over, and should take effect; 
 that the making the codicil was a repubUca- 
 tion of the will, and did amount to a substi- 
 tuting the second Joseph in the place of the 
 first; as if the testator had made his will 
 anew, and had writ it over again, by which 
 new will the second Joseph must take; and 
 that the fixed Intention of the testator ap- 
 peared to be, that Joseph should have more 
 than his daughter; whereas, if the £1500 
 legacy should be taken to be a lapsed legacy, 
 then the surviving daughter should have 
 twice as much as Joseph. 
 
92) 
 
 GOODTITLE v. MEREDITH. 
 
 Case No. 120 
 
 GOODTITLE ex dem. WOODHOUSE v. 
 MEREDITH. 
 
 (2 Maule & S. 5.) 
 
 Court of King's Bench. Nov. 6, 1813. 
 
 James Woodlioiise under Ms will made cer- 
 tain devises of real estate, among otliers one 
 to his vyif© for a term of her natural life, 
 with remainder over, and by a final clause 
 devised aU the residue of his estate not be- 
 fore disposed of, and all his other estates 
 and interests whatsoever vested in him, to 
 his wife. He afterwards by a codicil de- 
 vised, after the death of his wife, certain 
 estates, to be divided equally between the 
 chUdren of certain pei-sons, which codicil he 
 desired might be talien as part of his will. 
 Between the dates of the will and the codicil 
 he purchased the premises in dispute. The 
 defendant, on the death of the widow, be- 
 came possessed of the premises, and still re- 
 tains them. The lessors of plaintifE are the 
 devisees named in the wiU, and claim as 
 such, and bring ejectment. The question for 
 the opinion of the court is whether the plain- 
 tiff is entitled to recover. 
 
 Mr. PuUer, for plaintifC. Mr. Campbell, 
 contra. 
 
 LORD ELLENBOROUGH, C. J. The 
 question in this case is, whether the lessors 
 of the plaintiff! take an immediate legal es- 
 tate; for if not immediate, they would have 
 no ground to stand on in a court of law. 
 That is the first question. As to the other 
 question, what the effect of the codicil Is, 
 that has been settled in a series of cases, 
 beginning with Acherly v. Vernon, Comyn, 
 381, down to Barnes v. Crowe, 1 Ves. Jr. 
 486, 4 Brown Ch. 2, and, lastly, in a more 
 recent case of Pigott v. Waller, 7 Ves. 98. 
 The effect of all these decisions is to give 
 an operation to the codicil per se, and in- 
 dependently of any intention, so as to bring 
 down the will to the date of the codicil, 
 making the will speak as of that date, unless 
 indeed a contrary intention be shown, in 
 which case it will repel that effect. Such 
 was the case of Bowes v. Bowes, 2 Bos. & 
 P. 500, where the codicil devised the "said" 
 lands: which word "said" was considered 
 by the judges as controlling the effect and 
 operation of the codicil, confining it to those 
 lands which would have passed under the 
 will as it originally stood, and not extending 
 the will to all the lands at the date of the 
 codicil. Subject only to this restriction, aris- 
 ing out of the intention implied from the 
 use of the word "said," that there the tes- 
 tator does not mean to pass the whole, the 
 general eflfect of a codicil is to make the will 
 speak as of its own date. There is nothing 
 here to repel that effect, and therefore the 
 wUl Is brought down to a period subsequent 
 to the purchase, and it contains expvessions 
 competent to pass the after-purchased lands. 
 The codicil draws the will down to its own 
 
 date in the very terms of the will, and makes 
 it operate as if it had been then executed in 
 those terms. Then the only question is, un- 
 der the will, whether the lessors of the 
 plaintiff take an actual estate; and it ap- 
 pears that they do take a life-estate, subsist- 
 ing at the time of action brought; and there 
 is no rule of law which stands in their way. 
 
 LE BLANC, J. The principal question is, 
 whether the second codicil brings down the 
 wUl to the date of the codicil. I take it 
 to be a settled rule, since Acherly v. Vernon, 
 and the other cases, that it Is not necessary 
 that there should be an actual republication 
 of the will, by its being before the testator 
 at the time, and by his declaring that he 
 means to republish it; but that if the codicil 
 be properly executed, it shall be taken to 
 operate as a republication of the wiU, so as 
 to make the wUl speak as of the latter date. 
 Now this codicil is stated to be "a codicil to 
 be taken as part of the will," and there is 
 no question made as to what will the tes- 
 tator referred to, for he does not appear to 
 have made any other will; and he concludes 
 the codicil thus: "In witness whereof I have 
 to this my codicU, which I desire may be 
 taken as part of my will, set my hand," etc. 
 By this codicil he makes a different disposi- 
 tion of part of his property; the codicil, there- 
 fore, brings down the wiU to its own date, 
 making the wiU to speak as of that date, 
 and to pass lands which the testator had not 
 at the date of the will, and which, but for 
 the operation of the codicil, it would not 
 have passed. It is now, therefore, the same 
 thing as if the testator had had a legal estate 
 in this property at the date of his wiU, and 
 If he had had, a life-estate would have 
 passed to his wife under the first residuary 
 clause of the will, by which he gives to his 
 wife an estate for the term of her natural 
 life. Then comes the subsequent residuary 
 clause, by which he gives all other his free- 
 hold, leasehold, and copyhold property, not 
 before devised, to the lessors of the plaintiff 
 for their lives. The wife having died, that 
 estate comes into possession, and they are 
 entitled to maintain this ejectment. 
 
 BAYLEY, J. I am entirely of the same 
 opinion. It is an established rule that a 
 codicil executed to pass real estate is prima 
 facie a republication of the will so as to 
 pass after-pmxliased lands. The rule is so 
 where the codicU relates to personal estate 
 only, and therefore more especially when it 
 relates to the passing of real estate; but tak- 
 ing it as a general proposition, it may be 
 stated prima facie to amount to a republica- 
 tion of the will. Upon the other point it has 
 been endeavoured to put such a construction 
 on tills will, as not to give an estate for life 
 in the premises to the wife under the first 
 clause, nor to the lessors of the plaintiff un- 
 der the second clause, but only an equitable 
 estate in fee to the wife under the third. I 
 
 873 
 
Case No. 120 
 
 GOODTITLE v. MEREDITH. 
 
 (§92 
 
 do not think, however, that tbiit would be a 
 right construction, in any view of the case, 
 because, supposing we had the power to loolc 
 to the passing of equitable estates, it seems 
 to me that the words of the residuary clause, 
 which gives "all other his freehold, copy- 
 hold, and leasehold messuages," etc. "what- 
 soever and wheresoever," etc., would have 
 been sufficiently comprehensive to pass the 
 equitable interest which the testator had at 
 the time of his will. The whole of his will, 
 as it seems to me, is perfectly consistent. 
 First, the testator gives an estate to his 
 wife for life, with remainder as to part in 
 tail, which left a remainder In fee undis- 
 posed of. Under the second clause he cre- 
 ates other life estates, and estates tail, still 
 without exhausting the fee; and then, im- 
 der the third clause, he disposes of the fee. 
 It has been contended that the personal prop- 
 erty being given to the wife, it must have 
 been the intention of the testator that she 
 should take the estate meant to be pur- 
 chased out of it; but the answer is, that he 
 only gives the residue of the personalty; 
 when, therefore, the testator gave to his wife 
 his personalty, he intended that it should 
 pass, subject to the charge of the purchase. 
 
 DAMPIER, J. I am of the same opinion. 
 I thinli this the same as if the testator had 
 had the will under his contemplation, and 
 actually before him, at the time of execut- 
 ing the codicil; for the first and last sen- 
 tences of the codicil expressly refer to the 
 > will. A long series of decisions, from Acherly 
 374 
 
 V. Vernon down to the late case before the 
 master of the rolls, has established the law 
 upon this point. As to the other point, it 
 must be contended that the effect of the last 
 residuary clause is to except this particular 
 estate out of the operation of the two former 
 clauses, in order to give a fee to the wife; 
 but before we give such an effect to it we 
 ought to see a clear and manifest intention. 
 Here the general intention seems to have 
 been that all the real estate should go to- 
 gether. Under the first residuary clause it 
 Is given to the wife for life; but the whole 
 fee not being exhausted, there was some- 
 thing for the second, and in the same man- 
 ner for the last residuary clauses to operate 
 on. But the argument is, that if the testator 
 had died the day after mailing his will, this 
 estate could not have passed in that man- 
 ner; and as the fund out of which it was to 
 be acquired was to be taken out of the per- 
 sonal estate, and the personal estate is given 
 to the wife, therefore this estate shall also 
 go to the wife; to which the answer has been 
 given by my Brother BAYLEY, that he has 
 given his personalty subject to these charges. 
 After those charges are satisfied, by payment 
 out of the personal estate, then comes the 
 codicil, the operation of which is to dispose 
 of the pm'chase as a part of the real prop- 
 erty, which is not to be separated from the 
 rest by an intention which at best is very 
 doubtful. In my view of the case, thcii'- 
 fore, the lessors of the plaintiff are entitled 
 to the judgment of the court. 
 Jud.cmont for the plaintiff. 
 
193) 
 
 LESSEE or MUSSER v. CUURY. 
 
 Case No. 121 
 
 LESSEE OP MUSSER v. CURRY. 
 
 (Fed. Cas. No. 9,973, 3 Wash. C. C. 481.) 
 
 Circuit Court, U. S., D. Pennsylvania. April 
 Term, 1819. 
 
 The plaintiff claimed as heir at law of 
 John E. Allen, and fully established his title 
 ■as such. 
 
 The defendant was the husband of Susan- 
 na Allen, the natural daughter of John E. 
 Allen, and claimed the property in dispute, 
 under the will of Allen, as tenant by the 
 •courtesy; his wife, and the child he had 
 by her, being dead. It was conceded, by 
 the plaintiff's counsel, that the clause in the 
 will, under which the defendant claimed, 
 passed to his late wife an estate of inherit- 
 ance; but it was denied that the will operat- 
 ed on the property in question, as it was ac- 
 quired after the will was made. 
 
 The date of the will is in the year 1805; 
 and the property in dispute was conveyed to 
 the testator on the 13th of June, 1812. The 
 defendant insisted, that the will was repub- 
 lished after the above period, and this was 
 the turning point of the cause. 
 
 The wiU was proved by two of the sub- 
 scribing witnesses, on the 28th of August, 
 1813, before the register of wills, and certi- 
 fied accordingly. On the 10th of November 
 of the same year, one of the witnesses made 
 oath, before the same officer, that the testa- 
 tor had on the 23d of August, 1813, repub- 
 lished his will in his presence, at which time 
 he was of soimd and disposing mind and 
 memory. Evidence having been given of the 
 <leath of this witness, the defendant offered 
 to prove his signatm-e to the oath endorsed 
 on the will, and certified by the register, 
 which was opposed by the plaintifC's counsel, 
 ■on the ground that the register has no power 
 ■to receive the probate of a republication, 
 but that, having once received the proof of 
 ^)ublication, he was functus officio, and his 
 certificate of subsequent proof of republica- 
 tion, was no more than the certificate of anjr 
 other person, and consequently Inadmissible 
 ;as evidence. 
 
 Peters & Newcomb, for plaintiff. J. R. 
 IngersoU, for defendant. 
 
 WASHINGTON, J. The register is au- 
 .thorized, by the law of Pennsylvania, to re- 
 
 ceive the probate of wills; and copies of 
 such wills and probates, under the public 
 seals of the com'ts, or officers, where the 
 same shall have been taken or granted, if 
 in force, are declared to be matters of rec- 
 ord, and good evidence to prove the devise 
 thereby made. 
 
 The authority of the register being general 
 to take the probate of wills, extends as well 
 to the republication as to the publication of 
 a will. The will in relation to after ac- 
 quired property, is a new wiU, by virtue of 
 the republication; and the probate belongs 
 to the register, under the literal expressions 
 of the law as well as its plain and obvious 
 meaning. For, if on account of the want of 
 a court of chancery, to perpetuate the testi- 
 mony of the witnesses to a will, or for any 
 other cause, the probate of the will before 
 the register was to be received as evidence 
 of the devise of land, the same reason would 
 seem to have required, that the republica- 
 tion should be proved in the same way. A 
 codicil amounts to a republication; and there 
 can be no doubt, but that the register, having 
 received probate of the will, may afterwards 
 receive probate of the codicil, which does 
 not differ materially from the present case. 
 
 But the same evidence is necessary to 
 prove a republication, as the publication. 
 The proof before the register was only that 
 of one witness, which is not sufficient, with- 
 out fm'ther evidence to establish the repub- 
 lication. 
 
 The defendant then examined two others 
 of the witnesses to the will, to show that the 
 will was republished subsequent to the 13th 
 of June, 1812. The credit of one of these 
 witnesses was powerfully attacked; and 
 some degree of uncertainty, as to the time of 
 republication, accompanied the evidence of 
 the other. 
 
 The court stated to the jury, that the cause 
 turned altogether on the fact, whether the 
 will was republished after the 13th of June, 
 1812, or not; and left it to them to weigh 
 the credit of the witnesses, and to find their 
 verdict according to the conclusion they 
 might come to as to that fact. 
 
 Verdict for plaintiff. 
 
 NOTE. See, also, Allen v. Haddock, 11 
 Moore, P. C. 427. 
 
 375 
 
Case No. 122 
 
 HENSLOE'S CASE. 
 
 (§95 
 
 HENSLOE'S CASE, 
 
 (9 Coke, 36a.) 
 
 Common Pleas. Trinity Term, 42 Eliz, Reg. 
 
 Hensloe brought an action of debt against 
 Gage and others as executors; the defendant 
 pleaded in abatement of the writ, that the 
 testator made one Hillesley co-executor with 
 them, who had administered, etc., not named 
 iu the writ, judgment of the writ. To which 
 the plaintifC said, that before any adminis- 
 tration, etc., the said Hillesley, being cited 
 with the others to prove the will before the 
 ordinary, refused, and the defendants only 
 proved the said will, etc., upon which the de- 
 fendants demurred in law. And it was ob- 
 jected, that after this refusal Hillesley could 
 not administer for two reasons. 1. Because 
 Hillesley may waive the executorship, and 
 shall not be executor against his will; "jus 
 testamentorum pertinet ad ordinarium," as 
 is said in 4 H. 7, 13b, when Hillesley once 
 refused before the ordinary, who is lawful 
 judge of the cause, and thereby waived the 
 executorship, and utterly discharged himself 
 thereof, he cannot resume it afterwards; as 
 in all cases of interest and authorities, when 
 one waives and refuses to take the interest 
 or authority, and especially before a lawful 
 judge in an ordinary course of proceeding, 
 he shall never after agree to it. And there- 
 fore suppose in this case that Hillesley had 
 been joined In the writ, and he had pleaded, 
 never executor, or ever administrator as ex- 
 ecutor, shall he be afterwards received to 
 administer? It was said clearly no. 2. It 
 was strongly tu-ged, that if all the executors 
 are cited before the ordinary to prove the 
 win, and all refuse, the ordinary may accept 
 this refusal, and thereupon commit adminis- 
 tration, and after that refusal they shall 
 never take upon them the charge of the will, 
 nor administer as executors, because they 
 have before a lawful judge in an ordinary 
 course of proceeding waived it before; and if 
 they might all refuse before the ordinary, 
 and this refusal shall bind them, what rea- 
 son is there if any of them refuse before 
 him, that it shall not bind them? And as 
 when executors (agreeing to the will) ad- 
 minister, they cannot afterwards refuse, as 
 it is held in 9 E. 4, 33a, 47b; Graysbrook's 
 Case, 1 Plow. 280. So when any of the ex- 
 ecutors once before a competent judge re- 
 fuse, they shall not after agree. 2. It was 
 objected that the bar was not good, because 
 the defendants have not alleged, that the 
 win was proved, according to the opinions 
 in 3 H. 7, 14a. 
 
 But it was resolved without open argu- 
 ment, that the plaintift s replication to main- 
 tain his writ was not sufficient; for notwith- 
 standing the refusal of Hillesley in this case, 
 he might administer after at his pleasure. 
 And the court took this difCerence, when 
 many are named executors, and some of 
 them refuse, and some of them prove the 
 will, those who refuse may afterwards at 
 376 
 
 their pleasure administer, notwithstanding 
 this refusal before the ordinary: but if aU 
 refuse before the ordinary, and the ordinary 
 commits administration to another, there 
 they cannot afterwards administer: and 
 this difference is proved by our books in 21 
 E. 4, 24a, where it is resolved by the justices, 
 that if twenty are named executors, and one 
 proves the will, it sufficeth for them all, and 
 the refusal before the ordinary is not any 
 estoppel against them to administer after 
 when they please, in our law, and we have 
 no regard in this point to the law of the 
 church. 
 
 And the executor who proves ought to 
 name them who refuse in every action to re- 
 cover the testator's debts, and they may re- 
 lease the whole debt (duty); and it is clear 
 that they who refuse shall have an action by 
 survivor. But it is held in 36 H. 6, 8a, that 
 if a man makes two executors, and both re- 
 fuse before the ordinary, now they can never 
 after administer as executors by force of 
 the will, for now the testator dies intestate: 
 otherwise when one proves, and the other 
 refuses before the ordinary, the other may 
 administer with him when he will; in 41 
 E. 3, 22a, one executor brought an action of 
 debt, and showed forth the wUl, which 
 proved that he had another executor, and 
 the defendant pleaded to the writ that he is 
 alive; to which the plaintifE said, that be- 
 fore the ordinary he was discharged of the 
 administration, and that he never admin- 
 istered, and because he»^ight administer at 
 his pleasure, it was adjudged that the writ 
 should abate. But it is resolved by Little- 
 ton, Newton, and Danby in 7 E. 4, 13a, that 
 if ah. the executors refuse before the ordi- 
 nary, they may prove the wiU afterwards. 
 In 22 E. 3, 19b, debt by two executors, and 
 will showed, the defendant said, that in the 
 will three are made executors, the third not 
 named, etc., judgment of the writ; the plain- 
 tifC replied, that the third refused before the 
 ordinary, and would not administer, and was 
 discharged by the ordinary, etc., and it was 
 adjudged that the writ shotild abate. And 
 therewith agree 15 E. 3, "Executors," 8; 42 
 E. 3, 26a, 26b; 11 H. 4, 83b; 35 H. 6, 37a; 
 21 H. 6, 23b; 3 R. 3, 20b. But it appears in 
 50 E. 3, 9a, 3 H. 7, 14a, that if all refuse be- 
 fore the ordinary, he may grant administra- 
 tion. 
 
 2. It was resolved, that in debt against 
 one as executor, it is a good plea to say, that 
 the testator made him and another executor, 
 who has administered, and is alive, without 
 saying that the will is proved; and there- 
 with agree 33 H. 6, 38a; 21 H. 6, 25b; 22 H. 
 6, 59b; 3 H. 4, "Administration," 22. For 
 after the executors have administered, and 
 so have once taken upon them the charge of 
 the executorship, they cannot afterwards re- 
 fuse. 9 E. 4, 33a, 37; Graysbrook's Case, 
 1 Plow. 280. So that it was resolved, that 
 the plea in bar was good; and so the doubt 
 conceived in 3 H. 7, 14, obiter well ex- 
 
§95) 
 
 HENSLOE'S CASE. 
 
 Case No. 122 
 
 plained. Also the plaintiff in his replica- 
 tion has showed, that the will was proved, 
 etc. and so if necessary has made the bar 
 good. And I well agree that this case was 
 upon manifest and manifold authorities and 
 judgments in books adjudged according to 
 law, which was the reason that in a case so 
 clear the judges did not show the reason 
 and causes of the same differences, nor made 
 any answer to the said objections, which 
 some learned in the law desired for their 
 satisfaction to be done. As to that it Is to 
 be known, that it is held in 2 R. 3, "Testa- 
 ment," 4, that it is but of late years that the 
 church had the probate of wiUs in this land, 
 until it was by an act, etc. for lay people 
 have probate of wills in aU other places, ex- 
 cept England; and in many places in Eng- 
 land the lords of manors have probate of 
 wills at this day in their temporal courts. 
 And Tremail there said, that he is steward 
 in his country, and the free tenants and 
 bondmen prove their wIUs before him in the 
 court baron, and so it has been used from 
 time whereof, etc. and therewith agreed 
 Fineux, and all the justices in 11 H. 7, 12b, 
 that the probate of testaments belonged not 
 to the spiritual coiu:t, but of late, etc. and 
 they have it not by the spiritual law. And 
 Linwood, who was dean of the arches, and 
 wrote Anno Dom. 1422, in the reign of King 
 H. 6, lib. 3, tit. "De Testamentis," fol. 124, 
 1, confesses that probate of wills belongs to 
 the ordinaries, "de consuetudine Angliae et 
 non de communi jure," and that in other 
 realms the ordinaries had it not: and in 
 another place he affirms, the power of the 
 bishop in probate of wills, per consensum 
 regis & suorum procerum ab antiquo. And 
 I have a book published in Latin, Anno Dom. 
 1573, by the most reverend prelate Matthew 
 Parker, archbishop of Canterbury, very ex- 
 pert in matters of antiquity, in which it is 
 affirmed in these words: "Rex Angliae, olim 
 erat conciliorum ecclesiastic praeses, vindex 
 temeritatis Romanae, propugnator religionis, 
 nee ullam habebant Episcopi authoritatem 
 praeter eam quam a rege acceptam refere- 
 bant, jus testamenta probandl non habebant, 
 administrationis potestatem cuique delegare 
 non poterant." Then forasmuch as probate 
 of wills is given to the spiritual court, 
 whereof they had not jurisdiction before, 
 when they have proved the will, their au- 
 thority is executed, and they have not power 
 to take the refusal of any, when any of the 
 executors prove the wiU. And therefore the 
 refusal of any of the executors before the 
 ordinary, in such case is void. The execu- 
 tors have their title by the will, which is 
 temporal, and to the goods and chattels also 
 which are temporal, as it is agreed in Grays- 
 brook's Case, 1 Plow. 280, which wiU is com- 
 plete as to all goods and chattels in posses- 
 sion and reversion; and as shall be after 
 said, to release debts and duties before any 
 probate. But as to bringing of actions in 
 the king's courts, the judges do not admit 
 
 the executors to sue for things in action, un- 
 less they show the will proved duly under 
 the seal of the ordinai-y; but always the 
 king's courts have used to allow the probate 
 of any of the executors, to enable them all 
 to bring actions: so that the probate of the 
 will doth not give them any interest or title 
 either to the things in action or in possession, 
 for they have their whole title and interest 
 by the will, and not by the probate: but yet 
 without the probate, the judges will not al- 
 low them to bring actions and therefore all 
 the said books in so many successions of 
 ages, affirming clearly the refusal before the 
 ordinary by one executor, when another 
 proves the will to be void, prove that the 
 ecclesiastical judge has no power to take the 
 refusal in such case, for without question the 
 executor has po\Yer to refuse. And as to 
 the objection which has been made, that he 
 has once waived the executorship, and there- 
 fore shall not afterwards take it upon him; 
 to that it may be answered, forasmuch as 
 the ecclesiastical judge has no power to re- 
 ceive that refusal or disagreement, it is upon 
 the matter made to a stranger, and by con- 
 sequence void, and of no foi'ce to bar the 
 plaintiff to take it afterwards, as in the like 
 case it is resolved in 14 H. 8, and this is 
 also affirmed by all the other books, which 
 prove the refusal void. And as to the sec- 
 ond reason, that is to say, that the ec- 
 clesiastical judge may take the refusal of all, 
 and by consequence of any of them; to that 
 It may be answered, that as originally the 
 ecclesiastical judge had no power to prove 
 wills, but It was given him as appeareth be- 
 fore; so originally the ecclesiastical judge 
 could not commit administration to any, who 
 might sue or be sued as administrator; but 
 that also was given to the ordinary by an 
 act, sc. by the act of 31 E. 3, c. 11, by which 
 it is enacted, that in case a man dies intes- 
 tate, the ordinary shall depute the next and 
 most faithful friends of the intestate, to ad- 
 minister his goods, which deputies shall 
 have an action to demand and recover the 
 debts due to the said intestate in the king's 
 courts to administer, etc. and shall answer 
 also in the king's courts to others to whom 
 the said deceased was held and bound, in 
 the same manner as executors shall answer, 
 and shall be accountable to the ordinaries, 
 as executors are in case of a will, as well in 
 time past, as in time to come. 
 Now it is necessary to know two things. 
 
 1. What the law was before the stat. and 
 
 2, what alteration the statute of 31 E. 3, 
 has made: and as to the first, three points 
 are to be observed: 1. That of ancient time, 
 as appears by record when a man died in- 
 testate, and had made no disposition of his 
 goods, nor committed his trust to any, in 
 such case the king, who Is parens patriae, 
 and has the supreme care to provide for all 
 his subjects, that every one should enjoy 
 that which he ought to have, used by his 
 ministers to seize the goods of the intestate, 
 
 377 
 
Case No. 122 
 
 HENSLOE'S CASE. 
 
 (§ 95 
 
 to the intent they should be preserved and 
 disposed for the burial of the deceased, 
 for payment of his debts, to advance his wife 
 and children, if he had any, and if not, those 
 of his blood. And this appears in Rot. 
 Claus. de 7 H. 3, m. 16: "Bona intestatorum 
 capi solebant in manu regis," etc. And aft- 
 erwards this ease and trust was committed 
 to ordinaries, for none could be found more 
 fit to have such care and charge of his tran- 
 sitory goods after the death of the intestate, 
 than the ordinary, who all his life had the 
 cm-e and charge of his immortal soul, as 
 it is said in Graysbrooli's Case, 1 Plow. 280. 
 And therefore he was to this pm-pose con- 
 stituted in loco parentis: and that appears 
 by what has been said before, and also by 
 the constitution of John Stratford, arch- 
 bishop of Canterbury, at a synod in London, 
 Anno Dom. 1380, where he confessed, that 
 the administration of the goods of an in- 
 testate was granted to ordinaries, consensu 
 regis & magnatum regni. But no power 
 was given to the ordinary to sell or give the 
 goods or dispose of any of them to his own 
 use, or any other. And yet it is true, as it Is 
 said in the boolis, that he has a property in 
 the goods of tlie intestate, but that is secun- 
 dum quid, and not simpliciter: and accord- 
 ing thereunto it is resolved per totam cm:iam 
 (M. 8 & 9 Bliz., 3 Dyer, 255, 256) that the 
 ordinary himself had no authority to sell 
 any of the goods of the Intestate, although 
 they are In danger of perishing. Also 18 
 Hen. 6, 23b, and other books agree, that the 
 ordinary cannot release a debt due to the 
 intestate; and yet if the absolute Interest of 
 the debt was in him, he might release it, 
 although he could not have an action. As 
 executor before probate of the will may re- 
 lease a debt due to the deceased, because 
 they have the absolute interest of the debt 
 In them, although they cannot have an ac- 
 tion before probate, as it was adjudged in 
 CommunI Banco, Pasch. 1 JacobI Regis be- 
 twixt Middleton and Rymot, against the 
 opinion of "Weston, In Graysbrook's Case, 1 
 Plow. 277, 278. And that which the ordi- 
 nary himself might do before the said act, 
 he may, In respect to the multitude of causes 
 within his diocese, commit to another; but 
 his committees cannot do more than he him- 
 self can; as 'it is also resolved (M. 8 & 9 
 Eliz., 3 Dyer, ubi supra:) 2. It was not given 
 to the ordinary, nor to his deputies or com- 
 mittees, that they should have any action to 
 recover any debt, or to take any advantage 
 of any covenant, or of any other thing in 
 action before the said act, which is also a 
 manifest proof, that the common law gave 
 him no absolute power in the goods, for then 
 the law would have given him power also 
 to recover the debts and things in action 
 of the intestate. And therefore in 19 E 3 
 "Covenant," ?4, (which was before the act 
 of 31 E. 3) in an action of covenant brought 
 by the executors of N. who showed forth 
 letters of administration delivered by the 
 378 
 
 ordinary. Sir Richard Wilby, C. J., who gave 
 the rule said, the ordinary could not have 
 such action, wherefore, how can he give this 
 action to another? Stone: A man has not 
 seen, that the ordinaries shall have an action 
 but of goods, whereof they were seized and 
 ousted. Wilby: That's true: and after- 
 wards it was awarded that they should take 
 nothing by their writ "quia non executores, 
 & actio non datur per statutum." Vide 19 
 B. 3, "Administration," 18; 35 E. 3, "Exec- 
 utors," 105; 11 H. 4, 71; 10 H. 6, 22; 18 H. 
 6, 23b; 10 E. 4, la; FItzh. Nat. Brev. 120. d.92 
 M. 93. That an action lies against the ordi- 
 nary or his deputies or committees at the 
 common law if they will intermeddle with 
 the goods, and not pay debts. And the stat- 
 ute of W. 2, c. 19, is but an afBi-mance of 
 the law before, and therewith agree 9 E. 4, 
 33a; 11 H. 7, 12b; 24 E. 3, 54b. Vide, 22 R. 
 
 2, "Administrators," 21, and tit. "Exec- 
 utors," 17 E. 2, "Brief," 822; 11 H. 4, 73b; 
 18 H. 6, 23b; Graysbrook's Case, 1 Plow. 
 277; 8 Eliz. 2 Dyer, 247. But nota reader, 
 an action lay against the deputies or commit- 
 tees of the ordinary, before the said act by 
 the name of executors, as appears by 38 E. 
 
 3, 26, and 42 E. 3, 2, and a multo fortiori an 
 action would lie by the common law against 
 the ordinary, who is the principal, and from 
 whom the administrators derive their au- 
 thority. 
 
 As to the second point, the statute of 31 E. 
 3, has made six alterations, three as to the 
 ordinai'y, and three as to the administrators: 
 as to the ordinary. 1. Whereas before the stat. 
 he was not compellable to grant adminis- 
 tration, now by the act of parliament he is 
 commanded, and thereby compelled to grant 
 administration; for the words of the act are, 
 the ordinaries shall make deputies, etc. and 
 the refusal to do it is a contempt to the king, 
 and an Injury to the party, 2. The ordinaries 
 are restrained from granting administration 
 to whom they please, because now tlie, ad- 
 ministrator by this act has a more absolute 
 interest in the goods of the intestate than 
 the ordinary had, and ability to recover the 
 debts and other things in action due to the 
 testator, where no remedy is given to the 
 ordinary himself, and therefore the ordinary 
 is bound by the act to grant administration 
 to the next and most faithful friends (the or- 
 dinaries shall depute the next and most law- 
 ful friends, I the next of blood who ai-e not 
 attainted of treason, felony, or have other 
 lawful disability, but are lawful friends). 
 But the stat. of 21 H. 8, c. 5, gives power to 
 the ordinary to commit administration to the 
 wife of the intestate, or to the next of blood, 
 or to both, and so as to the wife has altered 
 the act of 31 E. 3. 3. The ordinary himself 
 has not greater interest In the goods by this 
 act, but has greater power than he had be- 
 fore, in this only that he may appoint ad- 
 ministrators, who shall have by this act 
 greater interest and ability than they had 
 before the act. And where the statute says, 
 
§95) 
 
 HENSLOE'S CASE. 
 
 Case No. 122 
 
 that in case a man dies intestate, it is to be 
 Itnowu that a man may die intestate two 
 ways, that is to say, either in fact, when he 
 malies no will; or in law when he makes a 
 will, and the executors refuse before the or- 
 dinary, or all die intestate, in this case he is 
 in law dead intestate, and the said act of 
 31 E. 3, extends to both the intestates, as 
 appears in 1 Plow. 279a, 279b, and in 18 H. 
 6, 23a, 23b, and in all the books aforesaid, 
 which prove that in such case, the ordinary 
 may grant administration; and the reason 
 why the ordinary in such case may upon re- 
 fusal of all, or death of all intestate, gi-ant 
 administration is, because now the testator 
 dies intestate, and then the said act gives 
 him power to grant it according to the said 
 act, which the ordinary cannot do when one 
 refuses, and the other proves. And so the 
 second objection upon full and pregnant rea- 
 son and authority is answered. And where 
 the statute says, in case a man dies intes- 
 tate, that the ordinary shall depute the next, 
 etc., of the dead intestate, this word (dead) 
 is taken largely, for it extends as well to 
 civil death, sc. entry into religion, as to 
 natural death; and therewith agrees Litt. 
 Ten. lib. 2, c. 11, "Villenage," 44a, that if a 
 man enters into religion and doth not make 
 his executors, the ordinary may commit ad- 
 ministration of his goods to another man, as 
 if he was dead in fact. As to the admin- 
 istrators, 1. They have now as absolute a 
 property in the goods and chattels, as exec- 
 utors have, which they had not before this 
 ;ict. 2. They shall recover the debts, (and 
 l)y equity shall have an action of covenant, 
 actions upon the case, and all other actions 
 which executors may have,) which they could 
 not do at the common law. 3. They shall 
 answer to actions, etc., in the same manner 
 as executors: and In this point also the com- 
 mon law is altered; for at the common law 
 they were charged by the name of executors, 
 and now they shall be charged by the name 
 ■of administrators, and yet there was a doubt 
 after the making of this act by what name 
 they should be charged. In 38 E. 3, 20, 
 debt was brought against an administrator, 
 "by the name of administrator; the defend- 
 ant pleaded to the writ, that he ought to be 
 named executor; for at the common law 
 before the statute of 31 E. 3, a man should 
 have an action against an administrator, and 
 name him executor, and that remains law 
 yet. Thorp, C. J., who gave tlie rule in the 
 case; the statute gives actions against ad- 
 ministrators, and that they may have ac- 
 tions against others, wherefore the writ was 
 awarded good. And yet afterwards this 
 point was called in question, for in 41 E. 3, 
 2a, 2b, an action of debt was brought against 
 an administrator, and the defendant de- 
 manded judgment of the writ, for it should 
 be brought against him as executor, for the 
 statute gives an action for administrators, 
 but an action is maintained against them as 
 executors at the common law, and yet is. 
 
 Thorp: the statute gives actions against ad- 
 ministrators, and afterwards the writ was 
 awarded good. So this administrator con- 
 stituted by the ordinary (whom the law has 
 put in loco parentis), so advanced, enabled, 
 and adorned, and in all points made equal 
 to executors constituted by the party him- 
 self, is newly created by this act; and no 
 such administrator was at the common law. 
 And therefore the ordinary was constituted 
 in loco parentis, to see that the debts and 
 duties of the intestate should be paid, and 
 to grant administration according to the said 
 act, for the benefit of his children or others 
 of his blood, with his goods, as has been said. 
 But because it would be too great a trouble 
 for the ordinary himself to take such charge 
 in such multitude of cases in his diocese, for 
 his ease the said act of 31 E. 3, has adorned 
 and endowed his deputies with greater pow- 
 er than he himself had, to the intent that the 
 administrators who might better intend it, 
 should perform the trust which was commit- 
 ted to them; and for this reason the said act 
 has also provided, that administrators to the 
 said intents and purposes shall be hereafter 
 accountable to ordinaries, as executors are. 
 
 It is worth observation for the reason of 
 the principal case, how probate of wills, and 
 granting of administrations sliall be tried, if 
 they are traversed or denied in the king's 
 court; and therefore, if issue be joined in the 
 king's courts, that the ordinary did not com- 
 mit administration to the plaintiff, etc. or 
 that the will is not proved before the ordi- 
 nary, or that he, whose will is proved before 
 the ordinary, died intestate, or that he of 
 whose goods administration is granted, as of 
 one who died intestate, made a will, etc., in 
 none of these cases it shall be tried or cer- 
 tified by the ordinary, as in the case of ex- 
 commengement, but it shall be tried by 
 jury, because these two cases of probate oi 
 wills, and constituting administrators, orig- 
 inally did not belong to the conusance of 
 ecclesiastical judges, but were given them 
 of later times; and therefore nothing but 
 the probate, and granting of administration, 
 which were given them, belong to their ju- 
 risdiction; but the trial of them is not given 
 to them, but is left to the trial of the com- 
 mon law; and therewith agrees 21 E. 4, 50a, 
 where it is held, that if letters of adminis- 
 tration are denied, the issue shall be, that 
 tlie ordinary did not commit to them admin- 
 istration by his letters, etc., for there it is 
 said, that letters of administration may be 
 forged. 12 E. 4, 16a; 3.5 H. 6, 31b; 22 H, 
 6, 52b; 13 Eliz. 3 Dyer, 294. Issue was 
 joined in the common pleas, si Episcopus 
 London 'commisit administrationem, etc., 
 and was tried by jury. Vide 34 H. 0, 14b, 
 and in 44 E. 3, 16a. One brought debt 
 against one as administrator, and declared 
 that the debtor died intestate, and the ordi- 
 nary deputed the defendant to be adminis- 
 trator; and the defendant said, that the de- 
 ceased made his will, and made the defendant 
 
 379 
 
Case No. 122 
 
 HENSLOE'S CASE. 
 
 (§ 95 
 
 and another his executors, etc. and demand- 
 ed judgment of the writ, and showed forth 
 the will proving his plea, and the plaintiff 
 replied that he died intestate; & hoc, etc., 
 and the defendant said, to that he shall not 
 be received against the will which is proved 
 before the ordinary, and is under the seal of 
 the ordinary;. & non allocatur; wherefore 
 the plaintifE had the averment, and it was 
 tried by the country. Vide 14 H. 6, 5a, by 
 Paston, and against the opinion of Herle, 
 4 E. 3, "Executor," 98, obiter. And foras- 
 much as it is to be tried by jury, and not by 
 the certificate of the ordinary, the will or 
 the administration need not be showed to 
 enable the plaintiff to his action, proved or 
 granted by the ordinary himself, as in the 
 case of excommengement, which is merely in 
 the spiritualty, and originally belongs to the 
 jurisdiction of the ordinary; but if the will 
 is proved, or administration granted by the 
 official or commissary of the ordinary, or In 
 some cases by the archdeacon, or other in 
 ferior judges ecclesiastical who have lawfut 
 authority, in such case, it is good and suffi- 
 380 
 
 cient in law; and although the statute of 31 
 E. 3, says, the ordinary shall make dr.pu- 
 ties, they are ordinaries as to this purpose 
 within the same act; and therewith agree 11 
 H. 4, 64a; 12 E. 4, 15b; 7 B. 4, 14a; 20 H. 6, 
 la; 3 E. 3, i tin "North," tit. "testament," 5. 
 And so you have the reason and causes of the 
 judgment in the principal case, and of many 
 judgments and resolutions before this time 
 in the same point with an answer to aU the 
 objections made to the contrary, which I 
 have done for four reasons. 1. That it 
 should be manifest that the ordinaries 
 (against all objections made by them who 
 impugn their authority) have lawful jurisdic- 
 tion to prove wills, and to grant administra- 
 tions. 2. That they have their jurisdiction 
 derived in these caaes from the crown of 
 England. 3. To reconcile all the books and 
 authorities in the law: and 4. To satisfy the 
 said doubts and questions clearly by our 
 books, authorities of law, and judicial rec- 
 ords. 
 
 _NOTE. See Manning v. Napp, (1692,) 1 Snik. 
 
§§ '^e, 99) 
 
 DYKE V. WALFORD. 
 
 Case No. 123 
 
 DYKE V. WALFORD. 
 
 (5 Moore, P. C. 434.) 
 
 Privy Council. June 28, 1848. 
 
 Tlie Queen's Advocate, (Sir John Dodson,) 
 the Solicitor-General, (Sir David Dundas,) 
 Mr. Chilton, Q. C, and Mr. C. Townsend, 
 for appellant. Mr. Parker, Q. C, Dr. Jenner, 
 and T. F. BUis, Atty. Gen., for respondent. 
 
 The Right Hon. T. PEMBERTON LEIGH. 
 The question in this case, relates to the right 
 of administration to the goods of a bastard, 
 who died intestate and unmarried, in the 
 county of Lancaster. The contending par- 
 ties are the nominee of her majesty, in right 
 of her crown, and the nominee of her majes- 
 ty, in right of her duchy of Lancaster. 
 
 In the consistory court of Chester, where 
 the cause was first heard, a decision was pro- 
 nounced in favor of the nominee of the 
 crown. This sentence, however, was revers- 
 ed, on appeal to the consistory court of Yorls, 
 which pronounced in favor of the nominee of 
 the duchy; and from this latter sentence the 
 cause now comes by appeal before us. 
 
 The claim of the duchy is founded upon a 
 grant made in the year 1377, by Edw. III. to 
 John of Gaunt, Duke of Lancaster, by which 
 the county of Lancaster was granted as a 
 county Palatine, with various liberties and 
 franchises to the duke, for his life. By sub- 
 sequent charters and acts of parliament, the 
 duchy, with such rights as were originally 
 granted with it, is now vested in her majesty, 
 hy a title distinct from that of her crown. 
 
 The sentence complained of, has decided 
 that, amongst the franchises granted to the 
 duchy, was the right of administration to the 
 estates of intestates dying without kindred. 
 
 The appellant has made two principal 
 points: he contends, first, that, at the date 
 of the grants, in question, the right now in 
 dispute, was vested, not in the crown, but in 
 the church, and could not, therefore, pass by 
 the grant. Secondly, that if the right was 
 at that time in the crown, the words of the 
 grant were not sufficient to pass it to the 
 duchy. 
 
 We wUl consider thes^ points in their order. 
 
 It was argued, indeed, on behalf of the re- 
 spondent, that it was immaterial, whether 
 this right existed in the crown, at the date 
 of the grant, or not; for that, if it accrued 
 subsequently, as one of the jura regalia, it 
 would pass, under the preceding grant of 
 jura regalia, to the duchy; and authority was 
 cited, which was supposed to favor that prop- 
 osition. As we are satisfied, however, that 
 this right existed in the crown, at the date 
 of the duchy charter, it is not necessary to 
 consider this point. 
 
 Great learning and research were exhibited 
 by the counsel on both sides, in the argument 
 of this question to show, to whom, in very 
 ancient times, the personal property of per- 
 sons, dying intestate, of right belonged; and 
 
 we were referred to a series of authorities, 
 beginning in the Anglo-Saxon period, and ex- 
 tending to very recent times. We have care- 
 fully examined and considered these authori- 
 ties, which, although they leave some parts 
 of the subject involved in obscurity, remove 
 aU doubt, in our judgment, as to the material 
 point, in this case, and show, that the clergy 
 had never, at any time, in this country, Ijy 
 law, any beneficial interest in the property of 
 intestates, but merely the right or duty of 
 jmisdiction and administration, and the right 
 of possession, for the latter purpose. 
 
 In the earliest times of our histoiy, the 
 clergy do not appear to have interfered at 
 all in cases of intestacy. The statute of 
 Canute, (chapter 71,) in the collection of an- 
 cient laws and institutes, (8vo Ed., vol. i. p. 
 413,) provides for the distribution of the 
 property of an intestate, amongst his wife 
 and relations, under the direction of his lord. 
 The statute is in these words: "Of the Heri- 
 ot: And if any one depart this life intestate, 
 be it thi-ough his neglect, be it through siid- 
 den death, then let not the lord draw more 
 from his property than his lawful heriot; 
 and, according to his direction, let the prop- 
 erty be distributed very justly to the wife 
 and children, and relations, to every one ac- 
 cording to the degree that belongs to him." 
 This statute must be attributed to some time 
 between the years 1017 and 1035. 
 
 The Statute of William the Conqueror, 
 (chapter 34,) at page 481 of the collection, 
 above referred to, provides, that if a man 
 die without a will, his children shall divide 
 the inheritance equally. In neither of these 
 statutes is there any mention, either of the 
 church, or of pious tises. The first occasion 
 in which we find any reference to pious uses, 
 in the disposition of the estates of intestates, 
 is in a law of Hen. I. c. 1, § 7, (collection of 
 ancient laws, p. 500,) which declares that 
 any of the king's barons, or men, may dispose 
 of his "pecuniam" as he pleases, but if he 
 shall have made no disposition, his widow or 
 children, or relations, or liege men, shall dis- 
 tribute it for the good of his soul, as they 
 shall see fit. 
 
 Here again there is no mention of the 
 church; but when regard was to be had to 
 the supposed good of the soul of the deceased, 
 or what were called "pious uses," in the dis- 
 position of his property, after his death, an 
 obvious reason was afforded for the interfer- 
 ence of the clergy; and accordingly we soon 
 afterwards find traces of their exercising au- 
 thority in cases both of testaments and in- 
 testacies; but without any trace of a benefi- 
 cial interest being claimed by them in either 
 case. 
 
 The Magna Charta of King John, which 
 was referred to as evidencing some right in 
 the church, at that time, provides, by the 
 26th chapter, that if any holders of the king 
 in lay fee, should die indebted to the crown, 
 the debt should be first paid out of his goods, 
 
 381 
 
Case ISO. 123 
 
 DYKE V. WALFOKD 
 
 (§§ 96, d'J 
 
 and "the residue should remain to the execu- 
 tors, to perform the testament of the dead, 
 and If nothing be owing to the king, all the 
 chattels should go to the use of the dead, 
 saving to his wife and children their reason- 
 able parts." The 27th chapter (which seems 
 to be omitted in the Magna Charta of subse- 
 quent reigns) enacts, that if any person die 
 intestate, his chattels shall be distributed "per 
 manus propinquorum, parentum et amicorum 
 suorum, per visum Ecclesiae," reserving 
 to eveiy one the debts due to him from the 
 deceased. 
 
 Here the church appears to be intrusted 
 with the same right or duty of supervision, 
 which the statute of Canute had intended to 
 vest, or assumed to be vested, in the lord; 
 but there is obviously nothing which gives to 
 the chm'ch any beneficial interest, or assumes 
 the existence of any such beneficial interest. 
 On the contrary, even in cases where testa- 
 ments were made, and as against the dispo- 
 sitions of such testaments, it reserves to the 
 wife and children their reasonable parts. 
 
 At what time, or in what manner, the right 
 of jurisdiction by the church, in cases either 
 of testaments or intestacies was originally 
 acquired, does not distinctly appear. Previ- 
 ously, however, to the reign of Edward the 
 First, this jurisdiction had become generally 
 vested in the clergy, and usually in the bish- 
 op of the diocese where the goods were situ- 
 ate, although in many cases, this right of 
 jurisdiction was exercised, and is still retain- 
 ed, by lords of manors and others. The bish- 
 op, being the usual judge in such cases, was, 
 from this circumstance, styled the ordinary, 
 by way of distinction, from his extraordi- 
 nary or peculiar jru-isdiction. Swinb. Wills, 
 380. 
 
 It was the office of these tribunals to judge 
 of the validity of wills, and, upon being sat- 
 isfied with the proof, to give authority to the 
 persons named for that purpose in the instru- 
 ment, in other words, to the executors, to 
 perform them. If no executors were named, 
 or if the executors named, refused to act, 
 the ordinary, or other person having the juris- 
 diction, was bound, by himself, or his deputy, 
 to carry them into effect; and in like manner, 
 where no wUl was made, to carry into efCect 
 that disposition of the dead man's personal 
 estate which the law prescribed. 
 
 But in cases of intestacy, the ordinary, or 
 his deputy, could only deal with such goods 
 of the intestate as he could seize Into his 
 possession, and could neither sue for debts 
 due to the intestate, nor be sued for debts 
 due from him. To remedy this last injustice, 
 the statute, 13 Edw. I. c. 19, was passed, a 
 statute, which was much relied on by the ap- 
 pellant. It recites, "that, after the death of 
 a person dying Intestate, which Is bounden 
 to some other for debt, the goods come to 
 the ordinary to be disposed;" and it enacts, 
 "that the ordlnai-y from henceforth shall be 
 bound to answer the debts as far forth as 
 382 
 
 i the goods of the dead will extend; in such 
 sort as the executors of the same party 
 should have been boimden, if he had made a 
 testament." 
 
 It was argued, that it appears from this 
 statute, that the ordinary was previously 
 entitled to the goods of the intestate, free 
 even from his debts. But this is to mistake 
 its import. It shows, that the ordinai-y 
 could not be sued for the debts owing from 
 the deceased, and that the right of disposi- 
 tion or administration was in the ordinary; 
 but it leaves the question, who were the par- 
 ties beneficially interested, quite untouched. 
 This is clear from the circumstance, that it 
 applies to all cases of intestacy, even to 
 those where there were a widow and chil- 
 dren; yet, at this period, perhaps throughout 
 all England, but certainly in the province of 
 York, with which we are now dealing, the 
 widow and children are entitled to two thirds 
 of the personal estate of the Intestate. Prob- 
 ably also, the statute would apply to the case, 
 where no executors being named in a will, 
 the testament was in law, imperfect, and the 
 right of administration devolved on the ordi- 
 nary, for the pm-pose of carrying the will in- 
 to efCect. 
 
 But although the right of the ordinary was 
 one merely of administration, it is obvious 
 that, at the period of which we are speaking, 
 it would be very difficult, and perhaps im- 
 possible, to compel any satisfactory account 
 from the bishop, in any court, spiritual or 
 temporal; and if the administration was had, 
 as probably it would be, by a deputy, the 
 deputy was liable to account only to his prin- 
 cipal. Under these circumstances, it was to 
 be expected that gross abuses would prevail, 
 and that the propei"ty would often be misap- 
 propriated to the use of the administrators; 
 and so much the more, as regard was to bo 
 had to the good of the soul of the deceased, in 
 the distribution of his estate, and this consid- 
 eration would leave a large discretion to the 
 ordinary. We find accordingly, that such 
 abuses did prevail, but they were treated as 
 abuses by both the ecclesiastical and civil 
 authorities, and attempts were made by both, 
 to correct and repress them. 
 
 In 1341, Archbishop Stratford published 
 his constitution, "De Testamentis," and after 
 referring to an earlier statute of Archbishop 
 Boniface, as having been called into doubt, 
 he makes various provisions to prevent ex- 
 tortion upon probates of wills, and then en- 
 acts, "that bishops and other inferior ecclesi- 
 astical jittisdictions, shall in no manner in- 
 terfere witli the goods of testators, but per- 
 mit the executors freely to dispose of them, 
 and in case of persons dying intestate, after 
 payment of debts, shall distribute and em- 
 ploy the remaining goods, to pious uses, to 
 the relations and servants and friends of the 
 deceased, or others, for the benefit of his 
 soul, retaining nothing for themselves, un- 
 less, perhaps, a reasonable compensation for 
 
§§ 9G, 99) 
 
 DYKE V. WALFORD. 
 
 Case No. 123 
 
 the labor of the ordinary;" and obedience to 
 this decree Is enforced under pain of excom- 
 munication. 
 
 Nothing can be more conclusive than this 
 ordinance upon the question of right; but 
 probably it was found insufBclent to pre- 
 vent the malpractices of the ordinary and 
 his deputies, and a much more effectual 
 remedy was introduced, by the 31 Edw. III. 
 Stat. 1, c. 11, which took from the ordinary, 
 in cases of intestacy, the right of personal 
 administration, or of selecting a deputy, at 
 his pleasure, and compelled him to grant 
 administration to those who were most in- 
 terested in the property, viz., the nearest 
 relations of the deceased. This statute also 
 gives to the persons, so to be deputed, the 
 right to sue for debts due to the deceased, 
 "for to administer and dispend for the soul 
 of the deceased," and subjects them to ac- 
 tions, as executors are answerable, and pro- 
 vides, "that they shall be accountable to the 
 ordinaries, as executors be in the case of 
 testament, as well for the time past, as to 
 come." 
 
 This statute was passed in the year 1357, 
 just twenty years before the date of the 
 duchy charter, and it is clear that the 
 church, at this time, had no right or interest, 
 of any kind, in the property of deceased per- 
 sons, beyond the right of jurisdiction, and of 
 granting administration and the right of pos- 
 session for that purpose. This statute pro- 
 vides only for the case of intestates leaving 
 kindred, but no attempt was made in the 
 argument, to show any distinction, before 
 this statute, between the case of an intestate 
 leaving kindred, and the case of an intestate 
 dying without kindred, as far as regards the 
 right of the church. 
 
 The law, as it regards the succession to 
 intestates, dying without kindred, is stated 
 with perfect clearness by Lyndwood, who 
 wrote in the reign of Henry the Sixth, and 
 died in the year 1446. In his Provinciale, 
 in commenting upon the constitution of 
 Archbishop Stratford, already referred to, 
 after stating, very distinctly, the right of 
 succession of relations, he distinguishes in 
 the case of an absence of kindred, between 
 the succession to a clerk, and the succession 
 to a layman. In the case of a clerk, he 
 states that, with certain exceptions, the 
 church succeeds; in case of a layman, the 
 crown. The words are: "In lacio autem 
 decedente ab intestato, deficientibus consan- 
 guineis et uxore, succedet fiscus." Lynd- 
 wood, p. 180. 
 
 It was suggested by Sir David Dundas, 
 In his very able argument, that possibly the 
 right of the crown was founded upon an 
 equitable construction of the statute of Edw. 
 III., last referred to. If it were so, the 
 statute was passed before the date of the 
 
 charter, and the right, therefore, at that 
 time existed; but In truth, the statute refers 
 only to the legal right of distribution, and 
 not at all to the beneficial interest. This 
 statute was founded on the principle, that 
 the administration of the property ought to 
 be granted to those who were beneficially 
 interested in It, and as it was for that rea- 
 son given to the nearest relations, when the 
 intestate left relations, it is very probable 
 that, by analogy, the ecclesiastical courts 
 thought it right to grant the administration 
 to the nominee of the crown, when the 
 crown was interested, and in this sense the 
 opinion, expressed by the judges, in Man- 
 ning V. Napp, 1 Salk. 37, that the grant of 
 administration, "to the nominee of the 
 crown was of respect, rather than of right," 
 may be well founded. But if the adminis- 
 tration was granted to any other person, 
 the right of the crown would remain the 
 same. The administrator, whoever he might 
 be, would be a trustee for the crown. 
 
 The right of administi-ation is very prop- 
 erly held, by the ecclesiastical courts, to fol- 
 low the right of property, in other cases, not 
 provided for, by this or subsequent statutes. 
 When a wife dies, leaving outstanding person- 
 al estate, administration is granted to the hus- 
 band, not in obedience to any statute, but 
 because he has the right of property. Watt 
 V. Watt, 3 Ves. 246. 
 
 The case, indeed, of the appellant, in this 
 branch of the argument, labors under this 
 insuperable difficulty: If the clergy had the 
 right at the date of this charter, how did 
 they ever lose it? If the crown had it not. 
 how did it subsequently acquire it? The 
 origin of this right shows that, if It existed 
 at all, it must have existed from the founda- 
 tion of the monarchy; it is the right of the 
 crown to bona vacantia; to property whicli 
 has no other owner. This Is the ground iip- 
 on which it is plainly rested by Lyndwood, 
 in the reign of Henry the Sixth, and by Lord 
 Thurlow, in his decision in Middleton v. 
 Spicer, in the reign of George the Third. 
 In this case (reported 1 Brown, Ch. 202) no 
 doubt was ever suggested, as to the right 
 of the crown, in case of Intestacy. The 
 great doubt was, whether a trust could bo 
 raised for the crown, by implication, and 
 whether the legacies given to the executors, 
 which would have excluded them from tak- 
 ing the residue, in a contest with next of 
 kin, would have the same effect, In a con- 
 test with the crown. 
 
 We consider it, therefore, to be perfectly 
 clear that, at the date of the charters on 
 which the duchy claim is founded, the right 
 In question was vested in the crown, as one 
 of Its jura regalia, and the question is, 
 whether, under the terms of these charters, 
 It passed to the duchy. • * * 
 
 383 
 
Case No. 124 
 
 APPEAL OF POTWINE. 
 
 (§ 95 
 
 Appeal of PO-nVINE. 
 
 (31 Conn. 381.) 
 
 Supreme Court of Errors of Connecticut. Feb. 
 Term, 1863. 
 
 Appeal from a decree of the court of pro- 
 bate of the district of Hartford revoliing and 
 annuUing a previous decree accepting and 
 allowing the account of the appellant as ex- 
 ecutor of the will of Thomas Hender. 
 The decree appealed from was as follows: 
 At a probate com't holden at Hartford in 
 and for the district of Hartford, on the 10th 
 day of March, A. D. 1862. Present Heman 
 H. Barbom-, judge. Estate of Thomas Hen- 
 der, deceased. Upon the petition of Thomas 
 H. Wales, areslduary legatee under the will 
 of said deceased, praying this court to re- 
 voke and set aside the order of this court, 
 passed March 20th, 1861, accepting and al- 
 lowing the second account of the executor 
 of said will, upon the ground that no notice 
 of the exhibition and hearing of said ac- 
 coimt was ever published or given according 
 to the order of this court, or in any manner 
 given to said petitioner, which petition is 
 on file dated February 26th, 1862, and notice 
 of the pendency and hearing of said petition 
 having been given according to the order of 
 this court: "This court finds that by error 
 of the types the name of the deceased was 
 printed 'Hendee' instead of 'Hender,' in the 
 notice which was ordered to be published 
 for the settlement of said account, and that 
 therefore no notice was published according 
 to the order of this court for the exhibition 
 and hearing of said account, and that the 
 petitioner was in no manner notified thereof. 
 Whereupon it is ordered and decreed that 
 the order of this court, made on the 20th 
 day of March, A. D. 1861, accepting and 
 allowing the second account of said executor, 
 be revoked and abolished." 
 
 The case was heard in the superior court 
 before Waldo, J., and the decree aflu-med. 
 The appellant then brought the record be- 
 fore this court by motion In error. 
 
 Mr. Goodman, for plaintiff in error. Mr. 
 ■Cornwall, for defendant in error. 
 
 BUTLER, J. Courts of probate are not 
 expressly authorized to grant new trials. 
 They possess such incidental and implied 
 powers, legal and equitable, as are necessary 
 to the entire performance of ah. the duties 
 imposed on them by law; and so far as it 
 Is necessary that they should annul or modi- 
 fy any of the orders made during the set- 
 tlement of the estate without notice or hear- 
 ing, and required to prepare the estate for 
 final settlement and distribution, the power 
 to do so may exist by necessary implication. 
 But we are not all satisfied that it is neces- 
 sary, or was contemplated as possible, that 
 they should possess such power in respect 
 to the final decree adjusting and closing the 
 administration account. That decree has all 
 384 
 
 the elements of a final judgment. It de- 
 termines conclusively, unless appealed from, 
 the rights of the administrator or executor 
 in respect to his charges and disburse- 
 ments, and those of the heirs and legatees 
 in respect to his receipts and the perform- 
 ance of his duties; and it fixes the basis of 
 a sale of the estate, so far as required to 
 pay debts, and for a final distribution of the 
 surplus. An appeal is allowed from that de- 
 cree; but an early closing and distribution 
 of the estate are important, and that appeal 
 is, for that reason, carefully limited. If the 
 implied equitable power to annul that decree 
 exists as claimed, it is wholly without regu- 
 lation or limitation, and may be exercised 
 after the right of appeal is gone, as in this 
 case, or irrespective of that right and at 
 any indefinite pei-iod; and the sale of the 
 estate, the payment of debts, and the dis- 
 tribution of the surplus estate, be overturned 
 thereby. Nor is it easy to distinguish be- 
 tween the exercise of such a power and the 
 granting of new trials by other com-ts in 
 other cases. As, however, there is some 
 diversity of opinion on this point, and a 
 determination of it is not necessary to a 
 disposition of the case, we do not place our 
 decision on that ground. 
 
 Courts of probate have a special and lim- 
 ited jurisdiction. Their proceedings cannot 
 be sustained by presumption, and their rec- 
 ords must show an explicit finding of all 
 necessary jiurisdictional facts. We are all 
 satisfied that if the equitable power to pass 
 the decree appealed from should be conceded, 
 the facts found did not warrant its exercise. 
 The equitable power to grant new tiials is 
 never exercised imless the party applying 
 for it has been injured, and is wholly with- 
 out negligence or fault. The petitioner prop- 
 erly alleged In his petition that he was in- 
 jured in the settlement of the account com- 
 plained of; but that essential fact was not 
 found by the court, and that Is a fatal 
 omission. Nor does it appear with sufficient 
 certainty that the petitioner had not actual 
 knowledge of the time when the aceotmt 
 was to be settled; and the entire proceeding 
 has a mere technical aspect on the record. 
 All that the petitioner avers In his petition 
 on that point is, that "no notice was ever 
 given to the petitioner or any other person 
 or persons whatever of the time, place," etc. 
 That averment looks to the fact that the 
 notice was no notice by reason of the mis- 
 take, and does not exclude the Idea that he 
 and other persons Interested had, neverthe- 
 less, actual knowledge. The cotu-t recite the 
 averment of the petition thus: "No notice, 
 etc., was ever published or given according 
 to the order of this court, or In any manner 
 given to said petitioner," and find that by 
 error in the types the name was printed 
 Hendee Instead of Hender, "and therefore 
 no notice was published according to the 
 order of this coui't for the exhibition and 
 
§96) 
 
 APPEAL or POTWINE. 
 
 Case No 124 
 
 hearing of said account, and that the peti- 
 tioner was in no manner notified thereof." 
 In legal proceedings and in respect to public 
 matters the word notified is generally if not 
 Jiniyersally used as importing a notice given 
 by some person, whose duty it was to give 
 it, in some manner prescribed, and to some 
 person entitled to receive it, or be notified. 
 And such is its obvious import in the finding 
 of the court. It is a mere finding (in other 
 terms,) that the averment of the petition as 
 recitCrd is true. Prior to 1824 no notice 
 whatever was required to be given by law; 
 ABB. WILLS — 25 
 
 and now it is discretionary with the court 
 to direct it to be given "by publicatiou or 
 otherwise;" and all that the record imports 
 is, that the petitioner was not notified— no- 
 tice was not given him— by publication or 
 otherwise. The finding may have been per- 
 fectly and fully true, therefore, upon that 
 point, and yet the petitioner may have known 
 the fact, and been guilty of laches in not 
 attending, and therefore not entitled to the 
 relief sought. 
 
 There is manifest error in the record. 
 
 In this opinion the other judges concurred. 
 
 385 
 
Case No. 125 
 
 JOC^UM■^EN «. SUFFOLK SAV. BANK. 
 
 (§9- 
 
 JOOHUMSBN V. SUFFOLK SAV. BANK. 
 
 (3 Allen, 87.) 
 
 Supreme Judicial Court of Massachusetts. 
 Nov., 1861. 
 
 Action by Neels W. Jochumsen against the 
 Suffolk Savings Bank to recover a deposit 
 made in 1848. Plaintiff, after making the 
 deposit, left Boston, and was not heard from 
 until June, 1860. In May, 1860, an adminis- 
 trator of his estate presented his book to de- 
 fendant, who paid the deposit to him. Judg- 
 ment was ordered for defendant, and plain- 
 tiff appeals. 
 
 R. M. Morse, Jr., for plaintiff. C. P. & C. 
 W. Huntington, for defendants. 
 
 DEWEY, J. There is nothing found in 
 the by-laws of this savings bank that will 
 prevent the plaintiff's. recovery of the money 
 deposited by him, if his rights are not barred 
 upon the more general ground of payment 
 to one authorized to receive the same under 
 the general laws applicable to debtor and 
 creditor. 
 
 We do not perceive in the 11th article of 
 the by-laws any estoppel against the plain- 
 tiff. The language of the article is as fol- 
 lows: "Upon the death of any depositor, the 
 money standing to his credit shall be paid 
 to his legatee, or heir at law, or legal repre- 
 sentative," "and it is agreed that such pay- 
 ment shall discharge the corporation." The 
 death of the plaintiff not having happened, 
 the by-law has no application. 
 
 Nor does the 23d article apply to the pres- 
 ent case. That article is as follows: "Art. 
 23. As the officers of this institution may be 
 unable to identify every depositor transact- 
 ing business at the office, the institution will 
 not be responsible for loss sustained where 
 a depositor has not given notice of his book 
 being stolen or lost, if such book be paid in 
 whole or in part on presentment." Whether, 
 under the facts stated, this book could in 
 any proper sense be said to be lost or stolen, 
 would be questionable at least. The object 
 of this by-law was to avoid loss occasioned 
 by the inability of the officers of the bank 
 to identify the depositor. But the bank did 
 not make this payment to Rolfe- through any 
 mistake as to the identity of the person. He 
 demanded it, not as the depositor, but as the 
 administrator of the depositor, presenting 
 his letters of administration; and the bank 
 paid it to Rolfe as administrator. 
 
 So also article 9th, which provides that "no 
 person shall receive any part of , his principal 
 or interest without producing the original 
 book," does not prevent a recovery in the 
 present case. This original book is now in 
 the hands of the defendants. They have 
 whatever benefit would result from having 
 the present possession of it. If wrongfully 
 there, as the plaintiff alleges, it would be 
 but an idle ceremony to repossess himself 
 386 
 
 of it by legal process, and then present It to- 
 them. 
 
 The decision of the present case turns upon 
 a broader question, and one of more general 
 application. The^ payment of this deposit 
 was made to a person to whom administra- 
 tion had been gi'aifted, by the judge of pro 
 bate for the county of Suffolk, upon the- 
 estate of the plaintiff, as a person having 
 died intestate in another state or country, 
 and leaving estate to be here administered 
 upon. The supposed intestate now presents 
 himself, a man in full life, denying all au- 
 thority in Rolfe to act as his administrator, 
 upon the ground that the proceedings by the- 
 judge of probate were void, he having acted 
 without any jurisdiction in the matter. 
 
 That upon the facts now made apparent 
 the judge of probate would have no authori- 
 ty to appoint Rolfe to act as administrator 
 upon the estate of the plaintiff, is of course 
 at once to be conceded. The only power he 
 had to act upon the subject was that to be- 
 derived from Rev. St c. 64, § 3. That au- 
 thority is, to appoint administrators upon the 
 estates of deceased persons. Jochumsen, the 
 plaintiff, was not "a deceased person" or "a 
 person who had died intestate, in any other 
 state or country." 
 
 That the appointment of the administrator 
 Rolfe was in derogation of the legal rights 
 of Jochumsen is very clear, and admits of 
 no question. 
 
 But the further inquiry is, whether the 
 plaintiff is remediless, upon the grounds that 
 the decree of the judge of probate, not hav- 
 ing been appealed from, was final and con- 
 clusive, and that the person so appointed ad- 
 ministrator was thereby rendered competent 
 to do all the acts that a lawful administrator" 
 might do. The position taken by the plain- 
 tiff is, that this granting of administration 
 was utterly void for want of jurisdiction in 
 the judge of probate, and this objection, he 
 insists, is fully open to him upon the facts- 
 stated in the case agreed to by the parties. 
 
 We are not without judicial authority upon 
 the point of the conclusiveness of a decree 
 of the judge of probate granting administra- 
 tion, in cases where by law no such authori- 
 ty existed. In the case of Wales v. Willard, 
 2 Mass. 120, to an action of debt on a bond, 
 brought by the plaintiff as administrator of 
 one Abel Willard, the defendant pleaded that 
 the plaintiff was not administrator of said 
 Willard. The plaintiff relied upon letters of 
 administi-ation granted to him by the judge 
 of probate for the county of Worcester in 
 1801, whereupon the defendant showed that 
 the intestate had died more than twentj' 
 years before that date, and so the judge of 
 probate had no authority to appoint an ad- 
 ministrator. Thereupon it was held by the 
 com-t that the grant of administration was 
 wholly void; and it was said that it was not 
 the erroneous exercise of his jurisdiction, 
 but an assumption of power against law,. 
 
§97) 
 
 JOCHUMSEN 0. SUFFOLK SAY. BANK. 
 
 Case No. 125 
 
 and the grant was ipso facto a nullity. 
 Judgment was rendered for the defendant, 
 thus deciding that it was competent to in- 
 quire into the jurisdiction of the judge of 
 probate, and if it was shown that he had no 
 authority to grant any administration in the 
 case to any body, the appointment which he 
 did make was a nullity. 
 
 The next case in order of time was that of 
 Sumner v. Parker, 7 Mass. 82, and arose on 
 a judgment or decree of a judge of probate 
 ordering a partition of a reversionary estate 
 over which he had no jurisdiction. The case 
 of Wales V. Willard was approved, and the 
 judgment held void and inoperative. 
 
 But this question met with a more full 
 cpnslderation in the case of Outts v. Has- 
 liins, 9 Mass. 543, and the subsequent cases 
 arising upon the same state of facts. That 
 was a real action, the party claiming under 
 an administrator's sale, the administrator 
 having been appointed and the order of sale 
 made by the judge of probate for the county 
 of Suffolk. Objection was taken to the juris- 
 diction of the court of probate for the coun- 
 ty of Suffolk in granting letters of adminis- 
 tration, and the other proceedings by him in 
 relation to the estate, on the ground that, at 
 the time of the death of the Intestate, she 
 was an inhabitant and resident of the coun- 
 ty of Middlesex, although previously she had 
 been an inhabitant of the county of Suffolk. 
 The court admitted the evidence, and held 
 the objection open to the party, and upon 
 proof of the facts held the appointment of 
 the administrator and all the subsequent or- 
 ders void, and rendered judgment in favor 
 of the heir at law. 
 
 The same matter came before this com-t 
 again in the case of Holyoke v. Haskins, 5 
 Pick. 20, with the additional fact that twen- 
 ty years had elapsed suice the granting of 
 administration, and was fully argued, and 
 the decision of Cutts v. Haskins affirmed. 
 The point that the residence of the party de- 
 ceased must necessarily have been before the 
 probate court, and judicially acted upon, was 
 pressed upon the court, but was not deemed 
 sufficient to change the result. Upon the 
 trial of this latter case, a more full investi- 
 gation of facts showed that the question of 
 the domidl of the Intestate was difficult to 
 be satisfactorily established; but that fact 
 had no effect upon the question of jMisdic- 
 tion. However close that question might be, 
 if the domicil was shown to be in another 
 county, the decrees which had been made 
 were to be held void, and open to this objec- 
 tion by those whose titles to property would 
 be affected thereby. For a third time, this 
 question was raised between parties interest- 
 ed in that estate, In Holyoke v. Haskins, 9 
 Pick. 259, and with the like result. In these 
 cases, it was lu-ged that this question of the 
 residence of the deceased, which alone gave 
 jurisdiction, was a question to be decided 
 by the court of probate when acting upon 
 
 the application for granting administration, 
 and was not an open question in the common 
 law courts; but the court held otherwise. 
 
 In the case of Smith v. Rice, 11 Mass. 507, 
 where, in a case of partition the judge of 
 probate had assumed a jurisdiction'as to one 
 of the parties, which was not authorized by 
 law, the proceedings were declared to be 
 void. It was said by the court that "the pro- 
 ceedings In the probate court are not accord- 
 ing to the course of the common law; their 
 jurisdiction is special and limited." 
 
 In the case of Sigom-ney v. Sibley, 21 Pick. 
 101, the whole question turned upon the 
 right of the particvilar judge of probate who 
 gi-anted administration to act in the matter. 
 Evidence was admitted to show that, in the 
 existing state of facts, the judge of probate 
 for the coxmty of Worcester had no jurisdic- 
 tion, and, this being shown this court held 
 the acts of the probate court void. The ques- 
 tion arose incidentally upon proceedings in 
 partition, but the objection raised was the 
 want of jurisdiction in respect to the original 
 administration granted upon the estate. The 
 court held that it was no answer to the al- 
 leged want of jurisdiction, that no excep- 
 tions had been taken at the time to granting 
 such appeal, and that want of jurisdiction, 
 especially of a court of limited 'and special 
 jurisdiction, cannot be aided by any waiver 
 of exceptions. To these cases may be added 
 that of Coffin v. Cottle, 9 Pick. 287, where in 
 scire facias against the defendant as admin- 
 istrator of the estate of Nathaniel Russell, 
 alleging a judgment recovered by the plain- 
 tiff against the estate of said Russell in the 
 hands of the defendant, and a refusal by the 
 defendant to pay the same, and also waste 
 by him, the defendant set up in his defense 
 that he never was legally appointed adminis- 
 trator, inasmuch as the judge of probate for 
 the county of Nantucket, who granted such 
 administration, had no jurisdiction in the 
 matter, being a creditor of the deceased; 
 with a further averment that, since the com- 
 mencement of the present action and two 
 years after the rendition of the judgment 
 upon which the scire facias was brought, he 
 had been appointed administrator on said 
 estate by the Judge of probate for the coun- 
 ty of Barnstable. The defense was sustain- 
 ed, the fact of such interest in the judge of 
 probate being admitted by the demurrer to 
 the plea. 
 
 In Emery v. HUdreth, 2 Gray, 228, where 
 the court held that in an action by an admin- 
 istrator, the regularity of the appointment by 
 a probate ceurt having jurisdiction to ap- 
 point one could not be called in question in 
 a suit by said administrator, yet they care- 
 fully confine the ruling to cases where the 
 jurisdiction attaches, and distinguish it from 
 the cases that have been cited. 
 
 In looking elsewhere for the views of judi- 
 cial minds upon this question, we find the 
 case of AUen v. Dundas, 3 Term R. 12."). 
 
 38 r 
 
Case No. 125 
 
 JOCHUMSEN V. SUrrOLK SAV. BANK. 
 
 (§ 97 
 
 Tliat was an action by an administrator of 
 one Pi-iestman against a debtor of tlie in- 
 testate, wtio had paid tlie amount of the debt 
 to one who was named as executor in a forged 
 paper which had been presented and allowed 
 in the prerogative court as the will of said 
 Priestman. Subsequently those proceedings 
 were for that cause set aside, and the estate 
 declared Intestate, and letters of adminis- 
 ti'ation granted to Allen, the plaintiif. The 
 court held the payment to the executor a 
 good defense, the prerogative court having 
 jurisdiction of the case, and that their de- 
 cree was sulEcient authority to authorize pay- 
 ment to an executor thus appointed. Ash- 
 hurst, J., says: "Here the spiritual court had 
 jm'isdiction over the subject matter; and ev- 
 ery person was bound to give credit to the 
 probate till it was vacated. The case of a 
 probate of a supposed will during the life 
 of the party may be distinguished from the 
 present, because during his life the ecclesi- 
 astical court has no jurisdiction." Page 129. 
 Buller, J., says: "This case was compared 
 to a probate of a supposed will of a Uving 
 person; but in such a case the ecclesiastical 
 com-t have no jurisdiction, and the probate 
 can have no effect; their jm-isdiction is on- 
 ly to grant probates of the wills of dead per- 
 sons. The distinction in this respect is this: 
 if they have jm-isdiction, their sentence, as 
 long as it stands um-epealed, shall avail in 
 all other places; but where they have no ju- 
 risdiction, their whole proceedings are a nul- 
 lity." 
 
 We find very similar language in the case 
 of Griffith V. Frazier, 8 Cranch, 24, where a 
 question arose as to the legality of an ap- 
 pointment of an administrator while there 
 was an acting executor holding under an 
 earlier appointment; and as illustrating the 
 question at issue Marshall, C. J., says: 
 "Suppose administration to be granted on 
 the estate of a person not really dead. The 
 act, all will admit, is wholly void. Yet the 
 ordinary must always inquire whether the 
 person whose estate is to be committed to 
 the care of others be dead or alive. Yet the 
 decree of the ordinary that the person on 
 whose estate he acts is dead, if the fact be 
 otherwise, does not invest the person lie ap- 
 points with the character or power of an ad- 
 ministrator. The case in ti-uth was not one 
 within his jurisdiction. It was not one on 
 which he had a right to deliberate." 
 
 It is supposed by the defendants that the 
 decision in the case of Newman v. Jenkins, 
 10 Picli. 515, is adverse to the views now 
 urged on behalf of the plaintiff. That was 
 an action by Newman, as administrator of 
 one Chandler, to recover a promissory note 
 payable to Chandler. In answer to the pro- 
 posed defense that Chandler was not shown 
 to be dead by an absence for three years, 
 without being heard from, at the time of 
 gi-anting the administi'ation, it was held that, 
 no plea in abatement having been filed, the 
 388 
 
 letters of administration were sufficient to 
 sustain the action. The further statement 
 of the court as to the conclusiveness of let- 
 ters of administration are of course to be 
 taken as qualified by the remark, "If the 
 defendant intended to contest that fact, he 
 should have filed a plea in abatement." In 
 alluding to that question the court say: 
 "There might be a question as to the effect 
 that would be produced upon the action by 
 his returning alive, but that point it is not 
 necessary to consider." 
 
 The cases of appointments of guardians, to 
 which our attention has been called, as sus- 
 taining the conclusiveness of a decree of the 
 court of probate, are not analogous. The 
 probate court has jurisdiction to examine 
 and finally decide the question as to the 
 existence of those facts upon which the 
 granting of letters of guardianship is au- 
 thorized. 
 
 Some reliance is also placed upon the man- 
 ner in which the granting of letters of ad- 
 ministration is treated in the opinions pro- 
 nounced by Chief Justice Shaw in the cases 
 of Wheelock v. Hastings, 4 Mete. (Mass.) 
 510, and Whitehead v. Mallory, 4 Gray, 184. 
 The question before the court, and the only 
 question to be decided, in those cases, was 
 as to the conclusiveness of the appointment 
 of an assignee in insolvency. That question 
 was fully met by a positive statute, making 
 the appointment conclusive evidence in all 
 suits by the assignee. St. 18.38, c. 163, § 5. 
 The reference to the case of an administra- 
 tor was only by way of illustration. The 
 genera.1 language used as to the conclusive- 
 ness of a decree of a judge of probate grant- 
 ing letters of administration must be taken 
 to have been made in reference to the class 
 of objections recited, viz. want of proper no- 
 tice, or some irregularity in the proceedings. 
 
 There were much stronger reasons for hold- 
 ing the entire conclusiveness of an appoint- 
 ment of an assignee than of an administra- 
 tor. In the former case the statute malsing 
 such appointment conclusive evidence of its 
 legality has also made the most ample pro- 
 vision for correcting all errors in such ap- 
 pointment, and superseding all erroneous de- 
 crees of the court of insolvency. This power 
 may be exercised on application to the court 
 by any party aggrieved. It requires no ap- 
 peal, and is not in any way restricted. 
 
 On the contrary, and this is one of the 
 strong reasons for holding the question of 
 jurisdiction not concluded, the only oppor- 
 tunity for reversing or modifying a decree 
 of the court of probate is the limited one of 
 an appeal to be taken within thirty days 
 after the same is made, or where, through 
 mistake, the party has omitted to do so, and 
 this court, upon petition and cause shown, 
 allows the appeal to be entered within one 
 year. 
 
 No writ of error lies, as in cases at com- 
 mon law. No writ of certiorari lies, as in 
 
§97) 
 
 JOCHUMSEN c. SUFFOLK SAV. BANK. 
 
 Case No. 125 
 
 cases In other tribunals where the proceed- 
 ings are not according to the course of the 
 common law. 
 
 If it be urged that a refusal to give con- 
 clusive effect to a decree of court appointing 
 an administrator may operate most inju- 
 riously upon innocent parties who have act- 
 ed in reference to them, and given to them 
 full faith and credit, it may be replied, that 
 such is always the effect of holding judg- 
 ments and decrees void for want of juris- 
 diction. It was so in Loring v. Folger, 7 
 Gray, 507, where a judgment against the 
 principal in a ti'ustee process commenced 
 after the death of the principal defendant, 
 and payment of the amount thereof by the 
 trustee, all parties being in ignorance of the 
 fact of the death of the principal, was held 
 no bar to a suit against the trustee for the 
 same indebtedness by the administrator of 
 the deceased. The judgment of the court 
 was no bar, because the com't had no jm-is-, 
 diction; the person sued was not a living 
 man, and not within the process of the court 
 for service of judgment. 
 
 The recent cases decided in the county of 
 Worcester involving the question of the au- 
 thority of one acting as a judge of insol- 
 vency, fully evince how powerless this court 
 is to throw protection around those who 
 justify under a decree of a court of limited 
 jm-isdictlon, which is shown as to the partic- 
 ular case, to have had no jurisdiction. Den- 
 ny V. Mattoon, 2 Allen, 361, and note. 
 
 It was further urged, as a ground for sus- 
 taining the appointment of the administra- 
 tor, that upon the case as it existed at the 
 time of gi'anting letters of administration, 
 the facts would well warrant the decree 
 making such appointment, and give jm'is- 
 diction to the court of probate. The posi- 
 tion taken is, briefly, that seven years' ab- 
 sence, upon leaving one's usual home or 
 place of business, without being heard of, 
 authorizes the judge of probate to treat the 
 case as though the party were dead. The 
 error consists in this: that those facts are 
 only presumptive evidence of death and may 
 always be controlled by other evidence show- 
 ing that the fact was otherwise. The only 
 jurisdiction is over the estate of the dead 
 man. When the presumption arising from 
 the absence of seven years is overthrown by 
 the actual personal presence of the supposed 
 dead man, it leaves no ground for sustaining 
 the jurisdiction. 
 
 The proceedings before the judge of pro- 
 bate were unauthorized, for want of jm'is- 
 diction, and the payment by the defendants 
 to the person thus appointed administrator 
 of Neels W. Jochumsen furnishes no de- 
 fense to the present action brought by Jo- 
 chumsen himself for the deposit made by 
 him with the defendants. 
 
 Judgment for the plaintiff. 
 
 NOTE. The effect of administering the estate 
 of one not dead is discussed in 1 Woerner, 
 Adm'n, §§ 207-213. 
 
 389 
 
Case N'o. 126 
 
 WILSON V. FHAZIER. 
 
 (§98 
 
 WILSON V. FRAZIER et al. 
 
 (2 Humph. 30.) 
 
 Supreme Court of Tennessee. July, 1840. 
 
 Mr. Peck, for plaintiff in error. J. A. Mc- 
 Kinney, for defendants in error. 
 
 REESE, J. William M. Wilson, in Decem- 
 ber, 1839, died in the territory of Florida. 
 The county of Grainger, in this state, was 
 the county of his residence and domicile. 
 On the first Monday in January, 1840, the 
 county court of Grainger granted letters of 
 administration on his estate to Frazier and 
 McKinney. They are not the next of kin 
 of the deceased, but claim to be his largest 
 creditors. About the same time the county 
 coui't of Jefferson granted letters of adminis- 
 tration on the estate of the said William H. 
 Wilson to his widow and relict, Mary A. 
 Wilson, the plaintiff. She thereupon filed, 
 in the circuit court of Grainger county, 
 her petition, praying that a wi-it of certiorari 
 might issue to the county court of Grainger, 
 to the end that the proceedings of said court 
 in granting letters of administration to Fra- 
 zier and McKinney might be certified to said 
 circuit court, and that said letters might be 
 there repealed, and also praying for a writ 
 of supersedeas to issue. These writs were is- 
 sued; but, a mle having been granted in the 
 circuit court to show cause why these writs 
 should not be dismissed, the said mle was, 
 on argument, made absolute, and they were 
 dismissed, and from that judgment the 
 plaintiff has prosecuted her appeal to this 
 court. 
 
 The letters of administration granted to 
 the plaintiff by the county court of Jeffer- 
 son, which was not the county of decedent's 
 residence and domicile, are void. This point 
 has been repeatedly so decided by this com-t. 
 But, it is said, if this be so, still the plain- 
 tiff's right to the administration is superior 
 390 
 
 to that of the defendants, and that she may, 
 therefore, in this mode cause these letters 
 to be repealed. The statute of Henry VIH. 
 gives, indeed, to the ordinary the power to 
 confer the administration, at his discretion, 
 upon the widow, or the next of kin, or upon 
 both. Our statute of 1715 gives the right 
 of administration to the next of kin, and is 
 silent as to the widow. The wife, as such, 
 is not the next of kin. Whether her right 
 to the administration, although not secured 
 by the act of 1715, can be successfully 
 maintained as existing here by the operation 
 of the statute of Henry VIIL it is not 
 necessary, perhaps not proper, that we 
 should now decide. Unquestionably it has 
 been very much the custom to grant to 
 widows administration on the estates of 
 their deceased husbands. But however the 
 question may be settled— and it Is not with- 
 out its difficulties— we have said it is not 
 •necessary now to decide it. For, most clear- 
 ly, the letters of administration granted to 
 the defendants could not be held to be void 
 merely on the ground that another might 
 have a superior right to the administi-ation. 
 This is well settled. And It is equally clear 
 that the circint court could not for such a 
 reason repeal the letters in the mode in 
 this case attempted. 
 
 There must be a dispute and contest on 
 the subject in the court of probate to con- 
 fer on the circuit court jurisdiction over the 
 matter by appeal or certiorari. If, when 
 the grant of administration was made to the 
 defendants by the county coiu-t, the plaintiff 
 had presented her claim, she could have 
 taken her case to the circuit coiu^ by ap- 
 peal or certiorari, according to the circum- 
 stances. Not having done so, the proceed- 
 ing to repeal the letters once granted must 
 originate in the county court. Without this, 
 the circuit court has no jurisdiction over 
 the matter. For this reason we affirm thfr 
 judgment. 
 
^ yy) 
 
 VAUGHN V. BARUET. 
 
 Case No. 127 
 
 VAUGHN V. BARRET. 
 
 (5 Vt. 333.) 
 
 Supreme Court of "Vermont. Rutland, Jan., 
 1833. 
 
 This was an action of debt on judgement 
 brought by Wm. Vaughn, administrator upon 
 the estate of John W. Mott, deceased, late of 
 the city, county and state of New York. The 
 writ in this case was dated and served on 
 the first of September, A. D. 1831. It was 
 aUeged in the declaration that the judge- 
 ment was recovered by John W. Mott, afore- 
 said, against the defendant, by the consider- 
 ation of the Rutland coimty court, at their 
 term, began and holden at said Rutland on 
 the 2d Monday of Sept. A. D. 1826, for the 
 simi of four himdred and fifty-seven dollars 
 and nine cents, for damages and costs, and 
 that no part of said jurlgement has been 
 paid except $309.88, being part of the dam- 
 ages which had been allowed against the 
 •estate of Brastiis Barker, leaving the sum of 
 one hundred and thirty-six dollars and two 
 cents damages, and the further sum of twelve 
 dollars and nine cents costs, making in 
 whole $148.11, being the residue of said 
 Judgement. The defendant pleaded that 
 after the recovery of said judgement and be- 
 fore the commencement of this suit, to wit, 
 on the 20th of October 1827, Henry Mott, of 
 ■the said city of New York, was regularly ap- 
 pointed administrator by James Campbell, 
 surrogate of the said city of New York, upon 
 the estate of the said John W. Mott; and 
 that afterwards, to wit, on the 24th day of 
 November, A. D. 1830, the said Heniy Mott 
 -■as administi-ator as aforesaid, for a valu- 
 -able consideration executed to the said Jaaz- 
 •aniah a discharge of said judgement in favor 
 of said John W. Mott. To this plea, the 
 plaintiff replied that prior to the said 24th 
 <iay of November, A. D. 1830, the time at 
 which the said Henry Mott discharged the 
 Judgement, to wit, on the third of April, A. 
 D. 1830, the said William Vaughn was regu- 
 larly appointed administrator upon the 
 estate of the said John W. Mott, by the pro- 
 bate com-t for the district of Rutland, but 
 there was no protert of the records of said 
 probate court. And that the defendant at 
 the time of the recovery of the said judge- 
 ment against him in favor of the said John 
 W. Mott, and long before and ever since, has 
 l)een and still Is an inhabitant of the state of 
 Vermont, residing in said probate district, 
 and not a citizen or inhabitant of the state 
 of New York. To which replication there 
 was a general demm-rer and joinder in the 
 demurrer. The county court rendered judge- 
 ment for the plaintiff, and the defendant' ex- 
 cepted; whereupon the ease comes here for 
 reconsideration. 
 
 J. Clark, for plaintiff. Moses M. Strong, 
 for defendant. 
 
 PHELPS, J. It appears that John W. 
 Mott, being a citizen and resident of New 
 York, obtained a judgement against the de- 
 fendant, and afterwards died in New York. 
 Administration of his effects was there com- 
 mitted, by the surrogate, to Henry Mott, and 
 administration of the effects of J. W. Mott 
 in this state, was granted to the plaintifC, by 
 the probate court, for the district of Rut- 
 land within which the defendant resided. 
 Subsequently the defendant obtained a dis- 
 charge from Henry Mott, and, the plaintiff 
 having brought this action, the defendant 
 pleads that discharge in bar. The question 
 is, will the discharge avail him? The dis- 
 position of effects left vacant by the decease 
 of the owner, has ever been regarded as a 
 matter strictly of local jurisdiction. It is in- 
 deed a proceeding in rem; and in every 
 country, is considered as falling within the 
 jm-isdiction of the particular state, province 
 or district, in which the effects are situate. 
 
 In England, where this subject is com- 
 mitted to the ordinary, if there are effects in 
 two dioceses, administration must be taken 
 in the provincial court; and if there are ef- 
 fects in two provinces, i. e. within the juris- 
 diction of two arch-bishops, administration 
 must be taken in both. The reason given is, 
 that they are each supreme jurisdictions, 
 and neither can act in the other. Bac. Abr. 
 tit. "Executors," E; Hardress, 210; 1 Salk. 
 39^0; 3 Bl. Oomm. 509. So no notice is 
 taken there, of administration granted 
 abroad, nor does a grant of administration 
 in England extend to the colonies. The 
 same view of the subject has ever been taken 
 in the United States. Hence, an adminis- 
 trator appointed in a foreign state, has no 
 authority in the United States. Graeme v. 
 Harris, 1 Dall. 456; Dixon v. Ramsay, 3 
 Crauch, 319; Lewis v. McFarland, 9 Cranch, 
 151; Selectmen of Boston v. Boylston, 2 
 Mass. 384. So letters of administration 
 granted in one of the states are of no au- 
 thority in another. This point has been re- 
 peatedly decided by the courts of the United 
 States. See Fen wick v. Sears, 1 Cranch, 259; 
 Dixon V. Ramsay, 3 uranch, 319; Champlin 
 V. Tilley, 3 Day, 304, Fed. Oas. No. 2,586. It 
 has been so held In Maine, (see Stearns v. 
 Biu-nham, 5 Greenl. 261;) in New Hamp- 
 shire, (see Sabin v. Gilman, 1 N. H. 198;) in 
 Massachusetts, (see Goodwin v. Jones, 3 
 Mass. 514; Selectmen of Boston v. Boylston, 
 2 Mass. 384; Borden v. Borden, 5 Mass. 67; 
 Richards v. Dutch, 8 Mass. 506; Stevens v. 
 Gaylord, 11 Mass. 256;) in Connecticut, (see 
 Riley v. Riley, 3 Day, 74; Stanton v. Holmes, 
 4 Day, 87;) and similar decisions have been 
 had in Virginia, Kentucky, Ohio, and North 
 Carolina. So far indeed has this doctrine 
 been carried, that in some states, they do 
 not hold an administrator appointed abroad 
 responsible within their jurisdiction, nor an 
 administi-ator appointed within the state, re- 
 sponsible for effects received out of their 
 
 391 
 
Case No. 127 
 
 VAUGHN V. BARRET. 
 
 (§09 
 
 jurisdiction. See 2, 5 and 8 Mass., cited 
 above. , i 
 
 This subject has also been before our 
 courts, and similar decisions had. See Dodge 
 V. Wetmore, Brayt. 92; also, Lee v. Havens, 
 Id. 93. The case of Lee v. Havens, is strict- 
 ly in point with the present. In that case an 
 administi-ator appointed in Massachusetts, 
 had attempted to evade oui- jurisdiction, by 
 indorsing a note due from a citizen of this 
 state to his intestate there. A suit wsls 
 brought by the endorser, but the court held 
 the indorsement nugatory as the adminis- 
 ti-ator had no interest in, or control over, the 
 note in question. In short, if the courts of 
 this state have jurisdiction, it follows that 
 the courts of no other stAte can have. The 
 idea of a concurrent jurisdiction, in such a 
 case, is absurd and impracticable. If any 
 reason be necessary to show the propriety of 
 the decisions on this subject, it is found in 
 the obvious propriety, not to say necessity, 
 of protecting the rights of our own citizens 
 who may be creditors of the intestate. To 
 suflfer the effects of the intestate to be eloin- 
 ed, without attending to these rights, is an 
 act of comity to other jvu'isdictions which 
 no state does, or will exercise. An idea 
 seems to have been entertained, that the 
 jurisdiction over the debt in this case, fol- 
 lowed the person of the creditor. But it is 
 to be observed, that jurisdiction, or the right 
 of administration in respect to debts due a 
 deceased person, never follows the residence 
 of the creditor. They are always bona no- 
 tabilia, unless they happen to fall within the 
 392 
 
 jurisdiction where he resided. See Bac. Abr. 
 "Executors," E; Oro. Bliz. 472. Judgements 
 are bona notabilia where the record is, (Ld. 
 Kaym. 855; Garth. 149; 8 Mod. 244; Anon., 
 6 Geo. II., cited by S?lw. ;) specialties, where 
 they ai-e at the time of the creditor's decease, 
 (Lum V. Dodson, cited in Selw. N. P.; Byron 
 V. Byron, Cro. Eliz. 472;) and simple con- 
 tracts where the debtor resides, (Oai-th. 373; 
 Sails. 37; Ld. Ilaym. 5G2.) 
 
 An attempt is also made to support this 
 defence upon the rule of lex loci contractus. 
 This rule in most cases is founded upon the 
 supposed intent of the parties. Further than 
 this it is a ma.tt6r of comity merely, as no in- 
 dependent stiite is bound to execute, or be 
 governed by, the laws of another. To apply 
 the rule however to a case like the present, 
 and permit the interference of another state 
 with subjects falling within ovu: jm-isdiction, 
 would be an abandonment of our sovreignty. 
 All transactions taking place in New Tork, 
 upon matters subject to their jurisdiction, if 
 regular by their laws, would be properly re- 
 garded here. A judgement rendered there 
 if the parties and subject matter are within 
 their jurisdiction, would be held conclusive; 
 and even the act of a sheriff executed there, 
 would, under like circumstances be esteemed 
 valid, If called in question here. But we 
 should hardly concede to their courts, the 
 power of acting upon the title of our lands, 
 or to their sheriffs that of disposing of them 
 at auction. 
 
 The judgement of the county court is 
 therefore affirmed. 
 
§93) 
 
 WHITE V. NEL'^OSr, 
 
 Case Ko. 128 
 
 WHITE V. NELSON. 
 
 (2 Dem. Sur. 265.) 
 
 Surrogate's Court, New York County. Nov., 
 1883. Jan. 17, 1884. 
 
 Application by F. T. Nelson for probate of 
 the will of John G. Nelson, a resident of 
 New Jersey at the time of his death. The 
 foundation of the claim of jurisdiction was 
 that the family of decedent, on removing to 
 New York, had brought with tliem a Japa- 
 nese folding chair belonging to the estate 
 of decedent. Eliza T. AMiite and others, 
 next of kin of decedent, opposed the appli- 
 cation, relying on Revision N. J. 1709-1877, 
 p. 762, § 52: "The wearing apparel of any 
 person who shall die, leaving a family re- 
 siding in this state, and goods and chattels, 
 money and effects of the estate of such de- 
 ceased to the value of two hundred dollars, 
 shall be reserved to and for the use of the 
 family, against all creditors, and before any 
 distributions or other disposition thereof; 
 and it shall be the duty of the executor or 
 administrator of such deceased to apply to 
 the suiTogate of the county where such de- 
 ceased resided at the time of his death, and 
 the said sm-rogate shall thereupon appoint 
 two discreet and judicious persons of said 
 county, not interested in the estate of said 
 deceased, and not next of kin to his widow 
 or children, who shall, before they enter up- 
 on the duties of their appointment, be sev- 
 erally sworn before the surrogate, or any 
 person lawfully authorized to administer an 
 oath, faithfully, honestly and impartially to 
 appraise such property according to the 
 true and Intrinsic value thereof, without ref- 
 erence to what the same might be supposed 
 to bring at a sale by vendue; and said ap- 
 praisers, being so appointed and sworn shall 
 make an Inventory and appraisement, in 
 manner aforesaid, of the goods and chattels, 
 moneys and effects whereof such deceased 
 died possessed; which Inventory and ap- 
 praisement shall include all the property re- 
 quired to be inventoried and appraised by 
 the executors or administrators of any de- 
 ceased person; and the widow of the de- 
 ceased, or his executor or administrator may 
 select from such inventory goods and chat- 
 tels, money or effects, to the value of two 
 himdred dollars, and annex to said Inven- 
 tory a list thereof; and the goods and chat- 
 tels, money or effects so selected shall there- 
 upon become tie property of said family 
 and remain for their use." 
 
 Geo. W. Blunt, for petitioner. Lord, Day 
 & Lord, for objectors. 
 
 ROLLINS, S. The evidence shows that 
 there has been brought into the county of 
 New York a "Japanese folding chair," which 
 belonged to this decedent at the time of 
 
 his death, and upon which, for aught that 
 appears, no administration has yet been had. 
 That fact gives the surrogate of this coun- 
 ty jm-isdiction of the present proceedings. 
 The New Jersey statute, cited by the re- 
 spondent's counsel, does not stand in the 
 way, as no steps are claimed to have been 
 taken thereunder to set apart the property 
 in question for the family of the decedent. 
 The value of this chair is probably so In- 
 considerable that I might have doubted 
 whether Its existence in tills county afforded 
 a svifficlent basis for jurisdiction, but for 
 the decision of the court of appeals in Van 
 Glessen v. Bridgford. 83 N. Y. 348. If a 
 family bible and a pair of eaiTlngs consti- 
 tute sufficient assets for jurisdictional pur- 
 poses, a Japanese folding chau- ma.y equally 
 answer that end. 
 
 Subsequently, on January 17th, 1884, the 
 following opinion was filed: 
 
 ROLLINS, S. Since I decided that I had 
 jurisdiction of this proceeding, my attention 
 has been called to the provisions of part 2, 
 c. 6. tit. 3, of the Revised Statutes of New 
 York. 
 
 Section 9, p. 229.5, 3 Banks' 7th Ed., pro- 
 vides as follows: "Where a man having a 
 family shall die leaving a widow, etc., the 
 following ai'tlcles shall not be deemed as- 
 sets, but shall be included and stated in the 
 Inventory of tlie estate, without being ap- 
 praised." 
 
 Then follows a list of the articles, which 
 includes, among other tilings, "six chairs." 
 
 It Is claimed that, though the existence 
 in this county of the Japanese folding chair 
 would, In the absence of this statute, alone 
 suffice to give the surrogate of New York 
 jurisdiction of this estate, he Is debarred 
 from exercising such jurisdiction by the stat- 
 utory exclusion of six chairs from the cate- 
 gory of "assets." 
 
 This objection cannot be sustained. Sec- 
 tion 2476 of the Code provides that "the sur- 
 rogate's com't of each county has jurisdic- 
 tion .... to take the proof of a will 
 . . . . in either of the following cases: 
 . . . . 3. Where the decedent, not being 
 a resident of the state, died without the 
 state leaving personal property .... 
 which has since his death come Into that 
 county .... and remains unadmin- 
 Istered." 
 
 These provisions have taken the place of 
 Rev. St. pt 2, c. 6, tit. 2, § 23; and of Laws 
 1837, c. 460, § 1. 
 
 In both those sections, the word "assets" 
 is used. Instead of the expression "personal 
 property," as It appears in the Code. 
 
 The reason for the change readily sug- 
 gests itself, and Is stated by one of the code 
 commissioners in his note to section 2476. 
 The word "assets," says Mr. Throop, "Is 
 usually understood to relate only to personal 
 
 393 
 
<^ase No. 128 
 
 WHITE V. NEL'-ON. 
 
 (§99 
 
 property applicable to the payment of debts. 
 The surrogate ought to have jurisdiction if 
 any unadministered property exists, even 
 though tlie whole is reserved by law to the 
 widow or family." I thinlv, therefore, that, 
 upon the Japanese folding chair, even though 
 
 394 
 
 it be not deemed "assets," the jxirisdictlon of 
 the surrogate securely rests. 
 
 NOTE. See Jefifersonville R. Co. v. Swayne, 
 26 Iiid. 477; Dyke v. Walford, 5 Moore, P. C. 
 434, ante; Channel v. Capen, 46 111. App. 234. 
 post. 
 
§ 100 
 
 UNITED STATES o. CKOi^BY. 
 
 Case No. 129 
 
 UNITED STATES v. CROSBY. 
 
 (7 Cranch, 115.) 
 
 Supreme Court of the United States. 1812. 
 
 STORY, J., on the 24th of February, all 
 the judges being present. A writ of Intru- 
 sion was brought by the United States, 
 against the defendant in error, to recover 
 possession of an undivided part of certain 
 land lying within the district of Maine. Up- 
 on the trial of the cause in the district coiu^t 
 ■of that district, a special verdict was found 
 by the jury, upon which the same coui-t gave 
 judgment in favor of the defendant in er- 
 ror. This judgment was afterwards af- 
 firmed in the circuit com-t of Massachusetts, 
 and Is now before the supreme court for a 
 final decision. 
 
 By the special verdict, it appears that the 
 claim of the United States to the land In 
 controversy is under one Nathaniel Dowse, 
 who derived his title, if any, from an instru- 
 ment stated at large in the same verdict, 
 and executed in his favor by one John Nel- 
 son. The instrument is without a seal, and 
 was executed at the island of Grenada, in 
 
 the West Indies, before a notary public, ac- 
 cording to the mode prescribed by the ex- 
 isting laws to pass real estate in that colony; 
 and both parties were, at that time, residents 
 therein. 
 
 By the laws of Massachusetts, no estate 
 of freehold in land can be conveyed unless 
 by a deed or conveyance, under the hand and 
 seal of the party; and to perfect the title as 
 against strangers, It Is further requisite that 
 the deed should be acknowledged before a 
 proper magistrate, and recorded in the reg- 
 istry of deeds for the county where the land 
 lies. 
 
 The question presented for consideration is, 
 whether the lex loci contractus or the lex 
 loci rel sitae is to govern in the disposal of 
 real estates. 
 
 The court entertain no doubt on the sub- 
 ject; and are clearly of opinion that the title 
 to land can be acquired and lost only in the 
 manner prescribed by the law of the place 
 where such land is situate. The judgment 
 of the circuit covu-t must, therefore, be af- 
 firmed. 
 
 NOTE. See Bates v. Brown, 5 Wall. 710, 
 ante. 
 
 395 
 
Case No. 130 
 
 KEllR ». MOON. 
 
 {§ 100 
 
 KERR V. MOON. 
 
 (9 Wheat. 565.) 
 
 Supreme Court of the United States. 1824. 
 
 Appeal from circuit covu't of the United 
 States for Ohio. 
 
 Scott, for appellant Brush, for respond- 
 ents. 
 
 WASHINGTON, J. The respondents filed 
 their bill in the circuit court for the district 
 of Ohio, in which It is stated that Archelaus 
 Moon was, in his lifetime, entitled to war- 
 rants for 4,000 acres of land in the Virginia 
 military district, between the Sciota and 
 Little Miami rivers, in the state of Ohio, un- 
 der the ordinances and laws of Virginia, on 
 account of his services as a captain in the 
 Virginia line on continental establishment, 
 during the war of the Revolution. That, 
 being so entitled, he, on the Sth of May, 1796, 
 in the county of Fayette, in Kentucky, where 
 he resided, duly made and published his last 
 will and testament, which, after his decease, 
 in the same year, was proved and admitted 
 to record in the court of that county; an 
 authenticated copy whereof, with the probate 
 annexed, is made an exhibit, and referred to 
 as part of the bill. That by this will the 
 testator devised the aforesaid land to the 
 complainants, his widow and children. The 
 bill then sets forth that, on the 2d of Janu- 
 aiy, 1809, four warrants, for 1,000 acres each, 
 were gi-anted to Robert Price, assignee of 
 Josiah P. Moon, and George 0. Friend, and 
 Martha his wife, formerly Martha Moon, 
 who are described in the assignment as the 
 only children and i-epresentatives of Archi- 
 bald Moon, deceased; which warrants were, 
 some time in the same or the succeeding 
 year, assigned by Price to the defendant 
 Kerr, who, in March, 1810, made fifteen en- 
 tries or locations thereon, amounting in the 
 whole to 3,723 acres, leaving 277 acres unlo- 
 cated. That some time in the winter of 1811 
 the complainants gave notice to Kerr of theii- 
 claim to the said warrants and land, and of 
 their intention to prosecute the same, per- 
 sonally, in writing, and by a publication in a 
 newspaper printed in Ohilicothe. That 
 Archelaus and Archibald Moon were the 
 same name and person, and that Josiah P. 
 Moon and Martha Friend were his children 
 by his first wife, and were disinherited by 
 the aforesaid will. That the defendant had 
 notice that the assignment to Price was 
 fraudulent. The biU prays a discovery of the 
 matters so alleged, and a decree that the de- 
 fendant, Kerr, assign the evidences of title 
 to the said lands to the complainants, and 
 for general relief. 
 
 The answer admits that the defendant pm-- 
 chased from Robert Price, in September, 
 1809, fom: several land warrants, for 1,000 
 acres each, for which he paid, and secured 
 to be paid, to said Price, the sum of $2,663. 
 That the warrants issued for the military 
 396 
 
 services of Archibald Moon, and that they 
 were assigned to the defendant at the time 
 of his pm'chase. That in March, 1810, and 
 at different times thereafter, the defendant 
 made various enti-ies of land on the said war- 
 rants, in the Virginia military district, be- 
 lieving his title to said warrants to be un- 
 questionable; and that the lands so located 
 are owned either by the said defendant, or 
 by those to whom he had sold them. The 
 defendant denies the notice charged in the 
 bill, except that, in the winter of 1811, he 
 saw the publication in which the claim of 
 the complainants was asserted, before which 
 time he had sold a great part of the lands 
 to different persons for a valuable considera- 
 tion, the principal part of which he had re- 
 ceived, and that some of the purchasers have 
 made valuable improvements on the lands. 
 He denies all knowledge of the will, or that 
 the complainants are the heirs or devisees 
 of said Moon. 
 
 To this answer a general replication was 
 put in, and a number of depositions were 
 taken, and appear in the record. The ma- 
 terial facts which they establish are, the exe- 
 cution of Moon's will; the proof of it, and 
 its admission to record in the county com-t 
 of Fayette, in Kentucky; the destruction 
 by fire of the clerk's oflice of that county, 
 m. 1802 or 1803, with most of its records; 
 and that an attested copy of the above 
 will was procm'ed and admitted to record 
 in the said county court, in conformity with 
 a special act of the state of Kentucky, for 
 supplying the evidence of deeds, wills, and 
 other records of the said office, which had 
 been consumed. That the testator was 
 sometimes called Archelaus, and at other 
 times Archibald; and that he had four chil- 
 dren by his first wife, of whom Josiah P. 
 and Martha were two, and six children by 
 his last wife, who, with his widow, are the 
 plaintiffs in this suit. 
 
 After a reference to the master, and the 
 coming in of his report, a final decree was 
 made thereon, that the defendant, Kerr, as- 
 sign to the complainants all the warrants, 
 entries, and sui'veys procured under the war- 
 rants granted to Price, and by him assigned 
 to the defendant; that Kerr was to be paid 
 by the complainants for his trouble and ex- 
 pense in locating and surveying the said 
 lands, at the rate of £12 10s. per 1,000 acres; 
 and, also, the sum of $487.43, which he had 
 paid for taxes on the said lands, with inter- 
 est thereon. From this decree an appeal 
 was taken to this com-t. 
 
 The objection principally relied upon by 
 the appellant's counsel is, that no estate in 
 the lands in controversy passed by the will 
 of Archelaus Moon to the respondents, be- 
 cause the same was not proved and recorded 
 in any com-t of the state of Ohio, where the 
 lands lie, in conformity with the existing 
 laws of that state. By an ordinance of con- 
 gress for the government of the territory 
 northwest of the river Ohio, passed on the 
 
8 100) 
 
 KEKR t). MOON. 
 
 Case No. 130 
 
 13th of July, 1787, it is declared that, imtll 
 the governor and judges should adopt laws 
 as prescribed by that ordinance, estates in 
 the territory might be devised or bequeathed 
 by vi^ills In writing, signed and sealed by the 
 testator, (being of full age,) and attested by 
 three witnesses; provided such wills should 
 be duly proved and recorded within one 
 year after proper magistrates, courts, and 
 registers should be appointed for that pur- 
 pose. 
 
 It is an unquestionable principle of general 
 law, that the title to and the disposition of 
 real property, must be exclusively subject to 
 the laws of the countiy where it is situated. 
 This was decided in the case of the U. S. v. 
 Crosby, 7 Oranch, 115. The application of 
 this principle to the present case is contro- 
 verted by the counsel for the respondents, 
 upon the following groimds: — 
 
 1. That the interest of the testator in these 
 lands ought to be considered and treated as 
 personal estate, and, therefore, it might well 
 pass by a wiU, proved and admitted to rec- 
 ord in the state where the testator died. 
 
 2. That by an act of the legislature of Ohio, 
 passed on the 25th of January, 1816, authen- 
 ticated copies of wills, proved according to 
 the laws of any state or territory of the 
 United States, relating to any estate within 
 that state, are allowed to be proved in the 
 court of the county where such estate shall 
 be; and when so proved and admitted to 
 record, they are declared to be good and 
 valid in law, as wills made in the state. 
 
 3. That as no objection was made in the 
 circuit court to the admission of the authen- 
 ticated copy of this will, it ought not to avail 
 the appellant in this court. 
 
 1. It can by no means be admitted that 
 this is to be considered in the light of per- 
 sonal property, notwithstanding the title of 
 Moon rested merely upon a legislative reser- 
 vation in his favor by the stare of Virginia, 
 which was to be afterwards perfected by 
 the grant of a warrant, and by a location, 
 survey, and patent Although his title to 
 any particular tract of land was, in the first 
 instance, altogether uncertain, and, even aft- 
 er location, was purely equitable, still, the 
 subject-matter of the devise was land, the 
 title to which could not be acquired or lost, 
 except in the way prescribed by the laws of 
 Ohio. But could it even be conceded that 
 this was personal property, it would still be 
 property within the state of Ohio; and we 
 hold it to be perfectly clear, that a person 
 claiming under a will proved in one state, 
 cannot intermeddle with or sue for the effects 
 of a testator in another state, unless the will 
 be proved in that other state, or unless he 
 be permitted to do so by some law of that 
 state. In the case of Doe v. M'Farland, 9 
 Oranch, 151, it was decided that letters tes- 
 tamentary gave to the executors no authority 
 to sue for the personal estate of the testator, 
 
 out of the jiu-lsdiction of the power by which 
 the letters were granted. 
 
 2. The next reason assigned why the gen- 
 eral principle above laid down does not ap- 
 ply to this case, is deemed by the court alto- 
 gether insufficient; because, whatever bene- 
 fit the devisees might have derived under the 
 act of the 25th of January, 1816, had they 
 pursued the requisitions it prescribes, as to 
 which we give no opinion, it is a sufiicient 
 answer to the argument drawn from that 
 act, to observe that its requisitions were not 
 pursued. It permits authenticated copies of 
 wills, proved according to the laws of any 
 state of this Union, relating to any estate 
 within that state, to be offered for probate 
 in the court of the county where the estate 
 lies, and authorizes the same to be there re- 
 corded; and it then proceeds to declare the 
 effect of such recording to be to render the 
 wUl good and valid, as if it had been made 
 in the state, subject, nevertheless, to be con- 
 tested as the original might have been. But 
 it does not appear that the copy of this will 
 was offered for probate and admitted to rec- 
 ord. Had it been so offered, it might have 
 been contested, and for any thing that we 
 can say, the sentence of the court of probate 
 might have been not to admit it to record. 
 
 3. The last point remains to be considered. 
 That the objection to the validity of this will 
 to pass the lands in controversy to the re- 
 spondents, was not made in the court below, 
 is highly probable, as we observe that it is 
 not noticed, much less relied upon, in the 
 answer. Nevertheless, the will, duly proved 
 and recorded, according to the laws of Ohio, 
 constituted the sole title under which the 
 plaintiffs in the court below claimed the 
 lands in dispute. It was as essential, there- 
 fore, to the establishment of that title to al- 
 lege in the bill and to prove by the evidence, 
 or by the admission of the defendant, that 
 this will had been proved and recorded ac- 
 cording to the laws of Ohio, as to set forth 
 and prove the existence of the will itself. 
 The defect in the title of the respondents ap- 
 pears upon the face of the biU, and as it con- 
 tains no allegation that a copy of the will had 
 been duly proved and recorded, the defend- 
 ant cannot be said to have admitted those 
 facts by not denying them in his answer. 
 
 The court erred, therefore, in decreeing an 
 assignment of all the warrants, entries, and 
 sm-veys under the warrants to the complain- 
 ants. 
 
 Considering, as we must in the present 
 state of the cause, that A. Moon died intes- 
 tate as to these lands, they, of course, de- 
 scend to those persons who are entitled to 
 the same according to the laws of Ohio; and 
 this is a subject fit to be decided by the coui-t 
 below, to which the cause must be remand- 
 ed for further proceedings. 
 
 Decree reversed, and the cause remandea 
 for further proceedings. 
 
 397 
 
Case No. 131 
 
 MKTOALF 0. CLAKK. 
 
 (§ 100 
 
 METCALF V. CLARK et al. 
 
 (41 Barb. 45.) 
 
 Supreme Court of New York. Jan. 5, 1864. 
 
 Action to recover a claim for moneys col- 
 lected by Matthew Clark during his lifetime. 
 The decedent and defendants, his executors, 
 were residents of Canada. The executors 
 were induced, for the purpose of settling 
 the matter, to step over the line between 
 the United States and Canada, and wer^ 
 then served with process. The defendants 
 moved to set aside the summons, and the 
 entire proceedings, which was done by the 
 Justice at special term. Plaintiff appealed. 
 
 D. J. Rich, for appellant S. P. Hubbell, 
 for respondents. 
 
 BOCKES, J. Appeal from an order grant- 
 ed at a special term, setting aside the sum- 
 mons, complaint, warrant of attachment and 
 all proceedings herein. We can have no 
 doubt that the defendant, Wilson, was, 
 through the instrumentality of the plaintiff, 
 or of those acting in his behalf, inveigled 
 into this state with the purpose of effecting 
 service upon him of the summons in this ac- 
 tion. He was enticed within the jurisdic- 
 tion of the court for a purpose to which the 
 com-t will not give its sanction. As was 
 said in Carpenter v. Spooner, 2 Sandf. 717, 
 the proceeding was a trick for the purpose 
 of giving to this court jurisdiction of the 
 action. The service of the summons, and 
 all subsequent proceedings in the action de- 
 pendent thereon should therefore be vacated. 
 Goupil V. Simonson, 3 Abb. Pr. 474; Stein v. 
 Valkenhuysen, EI., Bl. & El. 65; WiUiams 
 V. Bacon, 10 Wend. 636; Snelling v. Wa- 
 trous, 2 Paige, 314. The order of the special 
 term, however, if put on this ground, should 
 have set aside the service of the summons 
 Instead of the summons itself. But this is, 
 probably, of no great moment in this case. 
 
 I am satisfied that the warrant of attach- 
 ment was unauthorized, and hence was prop- 
 erly vacated. Even if the plaintiff had a 
 cause of action in this state, against the 
 defendants as executors of Matthew Clark, 
 deceased, the attachment was unauthorized. 
 Proceedings against them to obtain an ap- 
 plication of the property of the estate to 
 the payment of the debts of the testator must 
 be taken, and conducted in the same way 
 as if letters testamentary were granted to 
 executors in this state. Letters ancillary or 
 auxiliary may be granted here in the case 
 of foreign executors, when administration here 
 becomes necessary. But in no case is a 
 •warrant of attachment authorized against 
 executors. The property of the estate is trust 
 property in their hands, and must be dealt 
 with as such for the benefit of all having 
 an interest in it. Proceedings by attachment 
 are proceedings at law for the benefit of the 
 individual claimant. An injunction may per- 
 haps Issue, in some cases, against foreign ex- 
 ecutors or administrators, with a view to 
 398 
 
 the preservation of the trust property, but 
 the action then must be one in equity, in- 
 volving some unjust and unlawful proceed- 
 ing in regard to it on the part of the ex- 
 ecutors or administrators. Proceedings by 
 attachment are clearly inapplicable for the 
 purpose of compelling the settlement of the 
 estate of a deceased person or of enforcing 
 payment by the executor of an individual 
 demand contracted by the deceased, without 
 charging the executors with any breach of 
 duty except a neglect to pay the debt. 
 
 If I am correct in the above conclusions, 
 the order of the special term was substan- 
 tially correct. It probably, in strictness,, 
 should have been an order setting aside and 
 vacating the service of the summons, and 
 also subsequent proceedings in the action, 
 including the warrant of attachment and 
 proceedings thereon. 
 
 It seems to me, however, that an ordinary 
 action at law— which is this case, according 
 to the facts presented on this appeal — cannot 
 be maintained in this state against foreign 
 executors as such. It has been for a long 
 time the settled rule that a foreign executor 
 cannot maintain an action here by virtue of 
 his appointment abroad. McNamara v. Dwy- 
 er, 7 Paige, 239; Slatter v. CarroU, 2 Sandf. 
 Ch. 584; Smith v. Webb, 1 Barb. 230; 2 
 Kent, Comm. 432; Lawrence v. Lawrence, 
 3 Barb. Ch. 71; Willard, Ex'rs, 162, 163; 
 Story, Confl. Laws, § 513. 
 
 And I deem It equally well settled that 
 an action at law, as distinguished from an 
 action in equity, cannot be maintained in 
 this state against a- foreign executor or ad- 
 ministrator. This was so expressly decided 
 in Vermilya v. Beatty, 6 Barb. 429. This, 
 point is considered in a note to Kent's Com- 
 mentaries, (2 Kent, Comm. 431, 432, note c,) 
 where it is said that the general rule in 
 England and in this country is, that letters 
 testamentary, or of administration, granted 
 abroad, give no authority to sue or be sued 
 in another jurisdiction, though they may be- 
 sufflcient ground for new probate authority. 
 The authorities both In England and in this 
 country are there cited. So it was held, in 
 Campbell v. Tousey, 7 Cow. 64, that an ex- 
 ecutor or an administrator, appointed in a 
 neighboring state, could not be sued as such, 
 here. The action was maintained in that 
 case, however, inasmuch as the defendant 
 was shown to be an executor de son tort; 
 that is, he was an executor, here, de son 
 tort. As was said by Edwards, J., in Ver- 
 milya V. Beatty, he was held liable here, 
 not as a foreign executor, but as an executor 
 in this state by reason of his acts here. 
 But the office of executor de son tort is 
 now abolished. 2 Rev. St. p. 449, § 17; Bab- 
 cock V. Booth, 2 Hill, 185; Willard, Ex'rs, 
 140. 
 
 Judge Story declares the rule as stated 
 in Vermilya v. Beatty, and in the note 
 to Kent's Commentaries, above cited. He- 
 says no suit can be maintained against a. 
 
§ 100) 
 
 METCALF V. CLARK. 
 
 Case No. 131 
 
 foreign executor or administrator, as such, 
 in tlie court of any other countiy except 
 that from which he derives his authority to 
 act, for he has no positive right or authority 
 over those assets situated elsewhere, and can 
 only be held there to answer for his acts in 
 regard to them. We are referred to three 
 cases where actions have been maintained 
 in this state against foreign executors or 
 administrators. Campbell v. Tousey, 7 Cow. 
 64; McNamara v. Dwyer, 7 Paige, 239; 
 Gullck V. Gulick, 33 Barb. 92. The first of 
 these cases was an action at law, and was 
 maintained, as I have above suggested, on 
 the groimd that the defendant had made him- 
 self responsible here as an executor de son 
 tort, which office has since been abolished 
 by statute. And in that case it was held 
 that the defendant was not liable to be 
 sued in this state by virtue of his for- 
 eign appointment. In McNamara v. Dwyer, 
 the action was an equitable one, and was 
 sustained because of its equitable charac- 
 ter, and the chancellor there expressed a 
 doubt whether the defendant could be called 
 on to answer here in a com't of law. So the 
 action was maintained in Gulick v. Gulick, 
 on the strength of the decision in McNamara 
 V. Dwyer, as an action in equity. The case 
 of Slatter v. Carroll, 2 Sandf. Ch. 573, was 
 also an action in equity, and was main- 
 
 tained on the principle of the decision in 
 McNamara v. Dwyer. I am not cited to 
 any case where an action has been main- 
 tained against a foreign executor, except on 
 an allegation of such facts and circumstances 
 as would constitute the action one in equity, 
 as distinguished from an action at law, 
 simply for the recovery of money. It was 
 said in Brown v. Brown, 1 Barb. Ch. 189, 
 that the case must be a special one, to be 
 shown by the bill, before the action could 
 be maintained. But this objection to the 
 action is matter of defense. It cannot be 
 urged on a motion to set aside the summons. 
 It is a matter to be pleaded, as to which an 
 issue may be found, to be tried as an issue 
 in the cause. The order appealed from is 
 substantially correct. The only tenable ob- 
 jection to it is formal merely. It should 
 have been an order setting aside the service 
 of the summons and all subsequent pro- 
 ceedings, and also to vacate the warrant of 
 attachment. With this modification the or- 
 der should be affirmed. And inasmuch as 
 the merits of the motion as lu-ged and dis- 
 cussed by counsel are found to be with the 
 defendants, they should have the costs of 
 the appeal. 
 
 With the modification above suggested, the 
 order appealed from must be afiirmed, with 
 ten dollars costs of appeal. 
 
Case No. 132 
 
 DICKEY V. VANN. 
 
 (§ 100 
 
 DICKEY et al. v. VANN et al. 
 
 (8 South. 195, 81 Ala. 425.) 
 
 Supreme Court of Alabama. Dec. Term, 1886. 
 
 Appeal from probate court, Madison 
 county; William Richardson, Judge. 
 
 In 1846, William Cloud died domiciled in 
 Tennessee. In September, 1846, his will 
 was probated in the county court of David- 
 son county, Tenn. In December, 1884, 
 Cherry A. Vann, the appellee, presented to 
 the court of probate of Madison county a 
 certified transcript of the probate in Ten- 
 nessee, and an ancillary probate was 
 granted. The bill of exceptions recites 
 "that the proceedings upon the petition 
 of Cherry A. Vann were ex paite, and 
 without notice to the heirs and next of 
 kin of the testator, and that said Cherry 
 A. Vann filed no petition or other writtei 
 application to obtain said decree made in 
 December, 18S4, said decree being made 
 solely upon the transcript from the coun- 
 ty court of Davidson county, Tenn. " In 
 March, 1885, William E. Dickey et al. ap- 
 plied to the court of probate of Madison 
 county for an original probate of the will, 
 which was refused, and they appealed. 
 
 Cahaniss & Ward, Hanies, Gordon & 
 Sheffey, and Watts & Son, for appellants. 
 Jt. C. JBrickell, for appellees. 
 
 SoMKXtviLLE, J. 1. The probate of a 
 will has often been held by this court to 
 be in the nature of a proceeding in rem, 
 operating upon the thing itself and deter- 
 mining its .«tflti7S. Being an adjudication 
 upon the status of the particular subject- 
 matter, like other judgments in rem, when 
 pronounced by a tribunal of competent 
 jurisdiction, it is binding upon all other 
 courts, and, as commonly said, concludes 
 the world. It is only when there is an in- 
 tervention of, parties litigant, and an act- 
 ual contest ensues, that it assumes the nat- 
 ure of a proceeding inter partes. Deslonde 
 V. Darrington,29Ala.92; Kumpe v.Coons, 
 €3 Ala. 448; Martin v. King, 72 Ala. 354; 
 Blakey v. Blakey, 33 Ala. 611; Freem. 
 Judgm. § 608; 1 Greenl. Ev. § 550; 1 Herm. 
 Estop. § 293. 
 
 2. It necessarily follows from the fore- 
 going principle that if a will be proved in 
 a court of probate, which in this .state has 
 original, general, and unlimited jurisdic- 
 tion of the probate of wills, and such 
 court has jurisdiction of the particular 
 case, a failure to give the requisite stat- 
 utory notice to the widow and next of kin 
 of the application for such probate does 
 not render void the judgment of the court 
 establishing the probate. In such case the 
 judgment, being designed to establish the 
 status of a thing, binds the res, even in 
 the absence of any personal notice to in- 
 terested parties. Freem. Judgm. §§ 606, 
 608. The defect is a mere irregularity ren- 
 dering the judgment voidable at the In- 
 stance of any person entitled to, and fail- 
 ing to receive, such notice, his remedv be- 
 ing to move the probate court to set aside 
 its improvident judgment of probate, or 
 to procure himself to be made a party to 
 the proceeding by petition, and sue out an 
 appeal, or to file a bill in chancery to con- 
 test the validity of the will within thetime 
 prescribed by section 2336 of the present 
 400 
 
 Code (1876) of Alabama. Hall v. Hall, 47 
 Ala. 290; Goodman v. Winter, 64 Ala. 410; 
 Lovett V. Chisolm, 30 Ala. 88; Lees v. 
 Brownings, 15 Ala. 495; Roy v. Segrist, 19 
 Ala, 810; pitapleton v. Stapleton, 21 Ala. 
 587; Brock v. Frank, 51 Ala. 85; Code 1876, 
 §§ 2.336, 2376; Satcher v.Satcher,41 Ala. 26. 
 
 3. Nor has it ever been supposed, as sug- 
 gested by counsel, that there was want- 
 ing in these established modes of judicial 
 proceeding that "due pi-ocess of law" 
 guarantied by our constitution to every 
 person, and without which he cannot be 
 deprived of his property. These are the 
 settled rules and modes applicable to that 
 particular class of proceedings in rem to 
 which this case belongs, and are' deemed 
 amply sufficient for the protection of the 
 rights of all whose interests may be 
 threatened with prejudice for want of no- 
 tice before the rendition of the original 
 judgment declaring the status of the will. 
 With these modes of redress open before 
 him it cannot be said that any person is 
 without his day in court. Ex parte Mac- 
 Donald, 76 Ala. 603; 1 Greenl. Ev. § 518; 
 Freem. Judgm. §§ 606-608,611,612; 1 Herm. 
 Estop. § 293. 
 
 4. We cannot see that this rule is varied 
 where a foreign will, or one admitted to 
 probate in another state, is admitted to 
 probate in a court of competent jurisdic- 
 tion in this state, on a properly certified 
 copy of tlie record, verified in accordance 
 with section 2313 of the Code of 1876, even 
 where the devise made by it is of real 
 propert.y. The probate of the will of Will- 
 iam Cloud in this case, which is sought to 
 be collaterally attacked, was made under 
 this statute, and purports to affect realty, 
 situated in Madison county, in this state. 
 It is true that a will, in order to convey 
 real property, must be executed and at- 
 tested in accordance with the law of the 
 state where the property is situated. So, 
 likewise, as to the testamentary disposi- 
 tion of this particular kind of property, 
 the lex loci rei sitas also governs as to the 
 power and capacity of the testator, while, 
 as to personal property, the lex domicilii, 
 ov law of the testator's domicile, prevails. 
 Varner v. Bevil, 17 Ala. 286; Brock y. 
 Frank, 51 Ala. 85. Nor can it be denied 
 that the statute which was in force in this 
 state, at the time of the testator's death, 
 in 1846, is to govern in this case, requiring, 
 as it did, that the testator should have 
 been 21 years of age, and that his will 
 should have been signed by him, and at- 
 tested by three instead of two witnesses as 
 under our existing statute, who must 
 have signed their names in his presence. 
 Clay, Dig. p. 596, § 1. 
 
 5. The probate of Cloud's will, relied on 
 by the appellees' counsel, is the one made 
 by the probate court of Madison county, 
 in this state, on December 5, 1884. This 
 was allowed on a certified transcript of 
 the county court of Davidson county, 
 Tenn., a tribunal which is shown to have 
 had original and exclusive jurisdiction of 
 the probate of the wills of deceased resi- 
 dent testators. No reliance is placed upon 
 the fact that a transcript of the foreign 
 probate of the will was filed and recorded 
 in the probate court of Madison county, 
 in the year 1852. This alone is admitted 
 to be immaterial, and without any legal 
 
100) 
 
 DICKEY V. YANN. 
 
 Case No, 132 
 
 efBcacy, In its bearing on the questions 
 arising for decision in this case. Pope v. 
 Piclvett, 51 Ala. 584. The will on its face 
 appears to have been attested by three 
 witnesses, as required by the laws of this 
 state at the time of the testator's death. 
 The certificate of proof, as made by the 
 Tennessee coui-t, is admitted to be defect- 
 ive, as it appears in the transcript, in fail- 
 ing to show that each of the three wit- 
 nesses attested the instrument in the pres- 
 ence of tlie testator. It is now contended 
 that the decree of the Madison county pro- 
 bate court, of December 5,1884, which was 
 made without notice to the next of kin, 
 was absolutely void, for want of jurisdic- 
 tion, and can be collaterally assailed. The 
 statute, it is said, permits an ancillary 
 probate of a foreign will on a certified 
 transcript, where the testator was a non- 
 resident, only where it appears that such 
 will was "duly proved"in the court of the 
 state where the probate was made. Code 
 1S76, § 2313. The proof of the execution 
 here is defective in failing to show that all 
 of the attesting witnesses signed in the 
 presence of the testator. It has been 
 more than once held in this state that an 
 ancillary probateof a will under this stat- 
 ute could be made without giving any no- 
 tice of the proceeding to the widow or 
 next of kin, the statute being construed 
 not to require it. Brock v. Frank, 51 Ala. 
 85; AVard v. Gates, 43 Ala. 515. This prin- 
 ciple, however, we do not deem of essen- 
 tial importance in this case. The proceed- 
 ing, as we have said, being one in rem, the 
 failure to give notice, however erroneous, 
 does not render the probate void, so as to 
 subject the judgment of the court to col- 
 lateral attack. One of the very questions 
 submitted to the probate court of Madi- 
 son county was whether the will of Cloud 
 was shown to have been duV proved by 
 the attesting witnesses at the time of the 
 probate in the Tennessee court. In other 
 
 ABB. WILLS — 26 
 
 words, it was called on to pronounce up- 
 on the sufficiency of the transcript as evi- 
 dence to prove the validity and due au- 
 thentication of the original probate. 
 Goodman v. Winter, 64 Ala. 410; Brock v. 
 Frank, 51 Ala. 85. As observed in Brock 
 V. Frank, supra : " When this ancillary 
 probate is sought, no question arises ex- 
 cept as to the validity and authentication 
 of the original probate. If that was 
 granted by a tribunal of competent juris- 
 diction, and it is properly authenticated, 
 the ancillary probate must be allowed." 
 The evidence may not have been sufficient 
 to justify the finding of the probate court. 
 Its judgment, based on such evidence, may 
 have been erroneous; but it cannot be re- 
 viewed in tiie manner here attempted. It 
 is not void, and cannot be collaterally at- 
 tacked. It is conclusive upon all con- 
 cerned, even upon those having no notice 
 of the proceeding, until set aside in some 
 legitimate mode. 
 
 6. We might go further, if necessary, and 
 decide that in view of the testator's will 
 appearing regular on its face, seeming to 
 have been attested by the requisite num- 
 ber of witnesses, the defective probate will 
 be deemed to have been cured by great 
 lapse of time, having stood unquestioned 
 for over 40 years. No reason is perceived 
 why the presumption, omnia, rite acta, 
 will not applvin a case of this kind. Jem- 
 ison v. Smith, 37 Ala.. 185,196; 2 Redf. 
 Wills, 37, 38 ; Giddings v. Smith, 15 Vt. 344 ; 
 Jordan v. Cameron, 12 Ga. 267; 1 Greenl. 
 Ev. § 21 ; Matthews v. McDade, 72 Ala. 
 377; Gosson v. Ladd, 77 Ala. 22a. 
 
 The probate of the will in controvers.y, 
 which was made on December 5, 1884, not 
 being void, to say the least, no second 
 probate of the same instrument in the 
 same tribunal could properly be effected. 
 The petition of the appellants, filedforthis 
 purpose, was therefore rightly disallowed 
 and dismissed. Judgment affirmed. 
 
 401 
 
Case No. 133 
 
 NELSONS. V. rOTTEK. 
 
 (§ 100- 
 
 NELSON T. POTTER. 
 (15 Atl. 375, 50 N. ^J. Law, 32-1.) 
 
 Supreme Court of New Jersey. Feb. Term, 
 1888. 
 
 On certificate upon a feigned issue out of 
 the court of chancery. 
 
 Argued, November term, 1887, before DE- 
 PUE, VAN SYCKEL, and KNAPP, Jus- 
 tices. 
 
 John S. Voorhees, for plaintiff. A. Q. 
 Keasbey, for defendant. 
 
 DEPUE, J. This suit involves title to cer- 
 tain lands situate in the county of Middle- 
 sex, in this state, of which Isaac J. Potter 
 died seized. The deceased, whose domicile 
 was in California, died May 19, 1885. By 
 his last will, dated November 19, 1884, he 
 devised the residue of his estate, in which 
 the lands in question were included, to two 
 incorporated societies. The plaintiff derived 
 title by conveyance from these societies. 
 The defendant makes title as an heir at law 
 of the deceased. The testator's will was in 
 writing, and signed by him, but not executed 
 by him in the presence of subscribing wit- 
 nesses. It is admitted that the will was 
 made and executed in compliance with the 
 laws of California, and that under the laws 
 of that state it would be a valid testamen- 
 tary disposition of lands. It was not made 
 and executed in conformity with the law of 
 this state, which requires all wills to be ex- 
 ecuted in the presence of two witnesses, 
 present at the same time, who shall sub- 
 scribe their names thereto as witnesses in 
 the presence of the testator. Revision, p. 
 1247, § 22. The certiflcate presents the ques- 
 tion whether a will, made and executed by 
 a non-resident testator, in such a manner 
 as by the law of his domicile would be a 
 valid devise of lands, can operate to devise 
 lands in this state, the will not having been 
 executed in conformity with the law of this 
 state. 
 
 The incidents of real estate, its disposi- 
 tion, and the right of succession, depend up- 
 on the lex rei sitae. The validity of be- 
 quests of personal property depends upon 
 the law of the testator's domicile, and the 
 validity of devises of real property upon the 
 law of the state where the lands lie. Hence 
 a will executed according- to the law of the 
 testator's domicile will pass personal prop- 
 erty wherever situate; but, with respect to 
 devises of lands, the will must be executed 
 according to the formaUties prescribed by 
 the law of the state in which the land is 
 situated. 4 Kent, Comm. 91, 93; Story, Confl. 
 Law, § 474; Whart. Confl. Law, § 585; Jones 
 V. Habersham, 107 U. S. 174^179, 2 Sup. Ct. 
 336; Robertson v. Pickrell, 109 U. S. 608, 3 
 Sup. Ct. 407; Pratt v. Douglas, 38 N. J. Eq. 
 516; 1 Jarm. Wills, (Rand. Ed.) 1, note b. 
 
 The courts of one state are without ,1u- 
 risdiction over title to lands in another state. 
 The claiise of the federal constitution which 
 402 
 
 requires full faith and credit to be given i» 
 each state to the records and judicial pro- 
 ceedings of every other state applies to the 
 records and proceedings of courts only so 
 far as they have jurisdiction. Public Works- 
 V. College, 17 Wall. 521; Davis v. Headley, 
 22 N. J. Eq. 115-121. Hence the probate of 
 a will in one state, though conclusive as to 
 title to personalty if the probate be made at 
 the domicile of the testator, is of no force in 
 establishing the sufficiency or validity of a 
 devise of land in another state. It can ob- 
 tain such force only in virtue of some law 
 of the state in which the lands are situate. 
 McCormick v. Sullivant, 10 Wheat. 192; Dar- 
 by V. Mayer, Id. 465; Watts v. Waddle, 6 
 Pet. 389; Robertson v. Pickrell, 109 TJ. S. 
 608, 3 Sup. Ct. 407; Brine v. Insurance Co., 
 96 U. S. 627, 635. The state legislature might 
 provide that lands within the state should 
 pass by a devise in a will executed accord- 
 ing to the law of the state or country in 
 which the testator was domiciled. But an 
 act of legislation of that import would be so 
 extraordinary and impolitic, in its tendency 
 to inti'oduce doubt and uncertainty in the 
 title to lands, that a statute of that simili- 
 tude would not be allowed that effect, imless 
 such intent was expressed in clear and im- 
 equivocal language. 
 
 The testator's will was duly probated in 
 the office of the clerk of Tuolumna county, 
 Cal., May 27, 1885, and an exemplified copy 
 thereof filed and recorded in the surrogate's 
 office of Middlesex county, in this state, May 
 2, 1887, in compliance with the act of the 
 legislature of May 11, 1886, (Supp. Revision, 
 775.) It is contended by the plaintiff that, 
 by force of this statute, a will, not executed 
 in the manner prescribed by the law of this 
 state, is nevertheless operative to devise 
 lands in this state, if it be executed accord- 
 ing to the formalities required for a devise 
 of lands by the law of the state or country 
 where the testator was domiciled. The act 
 in question provides that when any will shall 
 have been admitted to probate in any state 
 or territory of the United States, or the Dis- 
 ti'ict of Columbia, or in any foreign state 
 or kingdom, and any person shall desire to 
 have the same recorded in this state, for the 
 pui'pose of making title to lands or real es- 
 tate in this state, it should be lawful for the 
 smTogate of any county in this state, upon 
 an exemplified copy of such will and of the 
 certiflcate of probate thereof and of the let- 
 ters testamentary, exemplified and attested 
 as mentioned in the act, being filed in his 
 office, to record such will, certificate, and 
 letters, and file the said copy in his office. 
 The act further provides that any such will, 
 certificate, and letters, being so recorded, 
 should have the same force and effect, in 
 respect to all lands and real estate whereof 
 the testator died seized, as if the said will 
 had been admitted to probate, and let- 
 ters testamentary had been issued in this 
 state. It also provides that all conveyances 
 
100) 
 
 NELSON V. POTTEK. 
 
 Case No. 133 
 
 theretofore or thereafter made by any ex- 
 ecutor, or by any devisee, should be as valid 
 as if said will had been admitted to probate, 
 and letters testamentary, etc., had been is- 
 sued in this state, and that such record or 
 certified copies thereof should be received 
 in evidence in all courts of this state. This 
 statute was originally passed March 28, 1866, 
 (Nixon, Dig. p. 1035, § 40.) It was repealed 
 in 1872, (P. L. 1872, p. 58,) and restored in 
 
 1873. (P. L. 1873, p. 168,) and was included 
 in the orphans' court act in the Revision of 
 
 1874. Revision, p. 757, § 26. It was re-enact- 
 ed with some amendments in 1882, (P. L. 
 1882, p. 112,) and again in 18h6, with some 
 other amendments, (Supp. Revision, 775;) 
 but the act as it now stands is, so far as 
 concerns this suit, substantially the same 
 as it was when it was passed in 1866. The 
 act, as passed in 1866, was entitled "A sup- 
 plement to the act relative to the probate 
 of wills from other or foreign states," which 
 was an act passed April 15, 1846, (Nixon, 
 Dig. p. 1032, § 31.) The act of 1846, to which 
 the act of 1866 was a supplement, was orig- 
 inally passed March 6, 1828, under the title 
 of "An act relative to the probate of wills," 
 (Har. Comp. 195;) and with some additions, 
 of no importance in this case, was included 
 in the Revision of 1846, under the title above 
 mentioned. 
 
 When the act of 1828, providing for the 
 record of foreign wills, was passed, statutes 
 were in force making the record of wills 
 originally proved under the laws of this 
 state, either in the prerogative court or be- 
 fore the surrogate, or transcripts thereof, 
 competent evidence of the same validity and 
 effect as if the original will were produced 
 and proved. The germ of this legislation 
 was. the act of March 17, 1713-14, (Nixon, 
 Dig. 1034; Revision, 1249;) which in the sec- 
 ond section provided that wills thereafter 
 made in writing, signed and published by 
 the testator in the presence of three sub- 
 scribing witnesses, and regularly proved and 
 entered upon the books of records or regis- 
 ters, should be sufficient to devise and con- 
 vey lands, tenements, hereditaments, or oth- 
 I'v estates, as effectually, to all intents and 
 purposes, as if the testator had conveyed 
 the same away in his life- time; and that 
 the books in which they were registered or 
 i-ecorded should be acceftted, and be sufficient 
 evidence at all times and places. The fourth 
 section declared that the copy of any will, 
 made in any of his majesty's colonies, by 
 which any real estate within this colony is 
 devised, being proved according to the cus- 
 tom of such colony, and certified under the 
 great seal of such colony, should be received 
 in evidence in any of the courts within this 
 province, and be esteemed as valid and suffi- 
 cient as If the original will or testament was 
 then and there produced and proved. This 
 act is still in force, (the word "colony" being 
 taken to Include "state,") except as modified 
 by the act concerning wills, of March 12, 
 
 1851, (Revision, 1247,) with respect to the 
 number of witnesses required, and the mode 
 of executing and attesting wills. Graham 
 v. Whitely, 26 N. J. Law, 254r-259; 4 Griff. 
 Law Reg. 1241, § 72. Mr. Griffith, In com- 
 menting on the act of 1713-14, and other 
 provisions for authenticating wills made in 
 other states, as furnishing evidence of the 
 existence and of the probate of such a will 
 in another state, containing a devise of lands 
 in this state, adds that: "Still It [the will] 
 must appear to be executed in such manner 
 as our law requires for the devising of real 
 estate lying here." 4 Griff. Law Reg. 1241, 
 § 72, note 1. 
 
 None of these acts, which made the rec- 
 ord of probate or transcripts thereof evi- 
 dence, was designed to change the law witli 
 respect to the manner in which wills were 
 required to be executed to make a valid de- 
 vise of lands. When these acts were passed, 
 and down to the act of 1851, a will of per- 
 sonalty was vaUd, and therefore entitled to 
 probate, though it was executed without any 
 subscribing witnesses; and at the same time 
 a will was inoperative to devise lands, un- 
 less executed in the presence of subsci'Ibiug 
 witnesses, and with certain formalities pro- 
 vided by statutes regulating that subject. 
 The object of these acts was simply to pro- 
 vide instruments of evidence to dispense 
 with the production of the subscribing wit- 
 nesses in support of title by devise. As wa.s 
 said by Chief .Tustice Beasley, the inten- 
 tion was to make them prima facie evidence 
 for the sake of convenience. Otterson v. 
 Hofford, 36 N. J. Law, 129-133. If the will, 
 as probated, showed a will executed in such 
 a manner as was required for a valid devise 
 of lands, the record of the ijrobate, or a tran- 
 script thereof, was prima facie evidence of 
 the title of the devisee. If the record did 
 not exhibit a will so executed, the record or 
 transcript went for naught. Den. v. Allen, 2 
 N. J. Law, 35, 38, 42, 43; Allaire v. Allaire. 37 
 N. J. Law, 312, 318, 319, 39 N. J. Law, 113. 
 The act of 1846, which applies to foreign 
 wills, must receive the same cuustruction; 
 for by the third section of that act it is de- 
 clared that such record, or certified copies 
 thereof, should be evidence In the same man- 
 ner, and have the same force and effect, as 
 if such will had been proved In the usual 
 manner, under the existing laws of this 
 state. It was so decided in Allaire v. Al- 
 laire, supra. 
 
 It was contended by the plaintiff, to sus- 
 tain this devise, that the act of 1886, (Supp. 
 Revision, 775,) requires a broader construc- 
 tion. The argument was based upon the 
 phrase, "shall desire to have the same re- 
 corded in this state for the purpose of malt- 
 ing title to lands or real estate in this state," 
 and the fact that conveyances theretofore 
 or thereafter made by executors or devisei-s 
 were validated. The reason for the intro- 
 duction of the words above quoted, with re- 
 spect to the purpose for which such will was 
 
 403 
 
Case No. 133 
 
 NELSON V. POTTEK. 
 
 (§ 100 
 
 recorded, is apparent. The act of 1846 con- 
 templated letters testamentary, or of admin- 
 istration upon the recording of the will, and 
 required a bond, with security from non- 
 residents for the faithful administration of 
 the testator's estate. In some Instances the 
 record of a foreign will in this state was 
 needed exclusively as a muniment of title, 
 without any administration on the testator's 
 estate. The supplements of 1866 and 1886 
 were designed to meet this situation of af- 
 fairs. Provision was therein made for re- 
 cording the will for the sole purpose of mak- 
 ing title to lands or real estate in this state 
 without letters testamentary or of adminis- 
 tration thereon, and consequently without 
 any bond for the administration of the tes- 
 tator's estate. And it will be observed that 
 in every instance in these statutes, in which 
 the effect of such a record is declared, it is 
 declared that such will, upon being recorded, 
 "shall have the same force and effect, in re- 
 spect to all lands and real estate whereof 
 the testator died seized, as if said will had 
 been admitted to probate, and letters testa- 
 mentary or of administration with the will 
 annexed had been issued in this state;" and 
 that conveyances of such real estate by the 
 executor or devisee, "shall be as valid as if 
 said will had been admitted to probate, and 
 letters testamentary or of administration 
 with the will annexed had been issued in this 
 state." In this language the legislature ex- 
 pressed a purpose to put such a will, when 
 recorded, on the same footing, with respect 
 to lands, as wills recorded vinder the act of 
 1866. The language in which these stat- 
 utes are expressed gives no countenance to 
 the supposition that the legislature intended 
 to suspend the statute concerning wills, with 
 respect to lands in this state, in favor of for- 
 eign testators; or to give the record of for- 
 404 
 
 eign wills an effect which it has not given 
 to domestic wills, duly probated in our 
 courts. The whole of the legislation with re- 
 spect to the force and effect of the probate 
 and recording of wills, — domestic or foreign, 
 —upon the title to lands, is of the same char- 
 acter. The record of probate, or a transcript 
 thereof, is made competent evidence dis- 
 pensing with proof by the subscribing wit- 
 nesses; leaving the legal effect of the will, 
 as a devise of lands, to be determined as it 
 would be if the original will was produced 
 and proved. The»testator's will, if produced 
 and proved, would be inoperative to devise 
 lands in this state. It acquired no additional 
 force from the recording. A certificate will 
 be made that the title to the lands in ques- 
 tion did not pass under the testator's will, 
 but descended to his heirs at law. 
 
 In preparing this opinion, I have not over- 
 looked the fact that upon the testator's 
 death, in 1885, the lands in question de- 
 scended to his heirs at law, and that their 
 title was vested before the act of .1886 was 
 passed. But inasmuch as the act of 1882, 
 which was in force when the testator died, 
 is, in all respects material to this contro- 
 versy, identical with the act of 1886, I pre- 
 ferred to consider the case as if controlled 
 by the latest act on this subject. 
 
 N0Ti5. According to the uniform course of 
 the decisions of this court, the validity of these 
 devises, as against the heirs at law, aepends upon 
 the law of the state in which the lands lie, and 
 the validity of the bequests, as against the next 
 of kin, upon the law of the state in which the 
 testatrix had her domicile. Vidal v. Girard, 2 
 How. 127; Wheeler v. Smith, 9 How. 55; Mc- 
 Douogh V. Murdoch, 15 How. 367; Pontain v. 
 Ravenel, 17 How. 369, 384, 394; Perin v. Ca- 
 rey, 24 How. 465; Lorings v. Marsh, 6 Wall. 
 337; TJ. S. v. Pox, 94 U. S. 315; liain v. Gib- 
 honey, 101 U. S. 362; Russell v. Allen, 107 U. 
 S. 163, 2 Sup. Ct. 327. , 
 
§ 100) 
 
 CHANNEL V. CAPEN. 
 
 Case No. 13* 
 
 CHANNEL et al. t. CAPEN et al. 
 
 (46 111. App. 234.) 
 
 Appellate CouUt. April 11, 1892. 
 
 Appeal from the circuit court of McLean 
 county; Thomas F. Tipton, Judge. 
 
 Messrs. PhUlips & Porter, Runnells & Bur- 
 ry, and C. Rayburn, for appellant. Messrs. 
 Kerrick, Lucas & Spencer, for appellee. 
 
 Mr. Justice WALL. This was an appeal 
 from an order of distribution of the personal 
 estate of Cordelia T. Coop6r, deceased, made 
 in the circuit court upon an appeal from the 
 order of the county court. The said Corde- 
 lia T. Cooper died intestate, in the city of 
 Cincinnati, Ohio, August 4, 1888, leaving an 
 estate of some $15,000, consisting of prom- 
 issory notes secured by real estate mortgages, 
 executed by residents of McLean county, Illi- 
 nois. She left surviving, her husband, Ed- 
 ward T. Cooper, no children or descendants 
 of children, but nephews and nieces and de- 
 scendants of deceased nephews and nieces. 
 The controversy Is as to the distribution of 
 this estate, the husband claiming it under 
 the law of descent of Illinois and the next 
 of kin claiming it under the law of descent 
 of Missouri. The circuit com't held that the 
 distribution should be according to the law 
 of this state, and that the husband was en- 
 titled to the whole after payment of debts 
 and cost of administration. It appears that 
 deceased had lived for many years at Bloom- 
 ington, in said McLean county, the wife and 
 widow of a Mr. Townshend, who had there 
 died and was buried in the cemetery there 
 located. She had considerable property, con- 
 sisting of real estate in Bloomington and 
 money loaned on real estate security. On 
 the 28th of April, 1881, she was married to 
 Mr. Cooper, a Presbyterian minister, who 
 was then a resident of Cincinnati and en- 
 gaged as a writer for a religious paper pub- 
 lished in that city. Mr. and Mrs. Cooper re- 
 sided there three or four years, living in a 
 rented house, and then they went to St. 
 Louis, Mo., where he was engaged in edito- 
 rial work on the Evangelist, a Presbyterian 
 paper published in that city, he having some 
 pecuniary interest in the paper as a stock- 
 holder. They remained in St. Louis some 
 three years or more, during which time they 
 lived at a boarding house, in rooms furnish- 
 ed by themselves. 
 
 In the spring of 1888, Mr. Cooper sold his 
 interest in the Evangelist and severed his 
 connection vFith it but remained in St. Louis, 
 preaching in various locaUtles though having 
 no regular work in charge, until about July 
 1, 1888, when he and Mrs. Cooper went to 
 Cincinnati, where they remained until her 
 death. The immediate cause of their leaving 
 St. Louis and going to Cincinnati was the 
 condition of her health. She had an afflic- 
 tion of the eyes rendering her nearly blind. 
 Their purpose was to have her eyes treated 
 
 in Cincinnati, an operation being necessary, 
 and after that to spend the summer at the 
 eastern sea shore. When leaving St. Louis 
 they sold some of their furniture and some 
 remaining unsold was stored there. After 
 her death Mr. Cooper returned to St. Louis 
 and was again professionally engaged there. 
 It appears that after the marriage Mrs. 
 Cooper sold aU her real estate in Blooming- 
 ton and converted it into money, keeping the 
 proceeds, as well as what she had before in- 
 vested in loans secured upon real estate in 
 that vicinity. These investments were man- 
 aged for her by Henry Capen, who is the ad- 
 ministrator, and it would seem that he usual- 
 ly represented her in these business matters, 
 making collections, new loans, etc. As Mr. 
 and Mrs. Cooper were about leaving St. 
 Louis, Mr. Cooper wrote to Mr. Capen, say- 
 ing they expected "to leave very soon for an 
 indefinite period," during which they wished 
 to place in his hands the papers belonging 
 to her, "for safe keeping and collection;" 
 that they were going first to Cincinnati, in 
 the hope of restoring her vision by removing 
 the cataract from one ej'e, after which they 
 would go to the sea shore in New Jersey, 
 and that they could easily keep in communi- 
 cation with him while intrusting these mat- 
 ters to his care. On the 18th of July Mr. 
 Cooper again wrote to Mr. Capen, advising 
 him of the successful result of the operation 
 on one eye; that the operation on the other 
 would be deferred three or four months, and 
 that in the meantime their address would be 
 Perth Amboy, New Jersey; that they ex- 
 pected to start east in a few days and that 
 he had sent him by express the notes and 
 mortgages, giving a list of them and request- 
 ing him to "collect as claims mature and re- 
 mit as advised, and retain papers for safe 
 keeping until otherwise advised." These 
 notes and mortgages were sent accordingly 
 and were duly received by Mr. Capen, in 
 whose possession they were when Mrs. Coop- 
 er died about two weeks after they were so- 
 sent. She was buried in the Bloomington 
 cemetery beside the remains of her first hus- 
 band, pm'suant to her request and long set- 
 tled purpose, and shortly afterward upon the 
 suggestion and application of Mr. Cooper, let- 
 ters of administration were issued to Mr. 
 Capen, who proceeded in the usual way to 
 settle the estate. 
 
 When the proper time for distribution ar- 
 rived the next of kin filed their petition, 
 claiming the entire amount in accordance 
 with the law of Missouri, which would in 
 such case award the personal estate to the 
 next of kin in preference to the husband. 
 The demand thus made was based upon the 
 proposition that the last domicile of the de- 
 ceased was In the state of Missouri, where, 
 of right, the principal administration should 
 have been, and that the administration in 
 this state should be regarded as merely aux- 
 iUary or ancillary, and upon the further 
 proposition that when the estate so admin- 
 
 405 
 
Case JSo. 1^4 
 
 CHANNEL V. CAPEN. 
 
 (§ 100 
 
 istered here was ready for disti'ibution the 
 law of the domicile should prevail in deter- 
 mining the proper distributees. 
 
 It is well settled that by the common, law 
 the "distribution of personal property, wher- 
 ever situated, is governed by the law of the 
 country of the intestate's domicile at the 
 time of his death, and not by the conflicting 
 laws of the various places where the goods 
 liiippen to be situated." 2 Kent, Oomm. § 
 42;); Russell V. Madden, 95 111. 485; Young 
 V. Wittenmyre, 123 111. 303, 14 N. E. 869. 
 
 It Is important, then, to inquire whether 
 our statute has made any change in this 
 respect It provides, (chapter 39, § 1:) "That 
 estates, both real and personal, of residents 
 and non-resident proprietors in this state, 
 dying intestate, or whose estate or any part 
 thereof shall be deemed and taken as intes- 
 tate estate, after aU just debts and claims 
 against such estate are fully paid, shall de- 
 scend to and be distributed in manner fol- 
 lowing, to- wit: * * * 3d. When there is 
 a widow, or surviving husband, and no child 
 or children or descendants of a child or chil- 
 dren of the intestate, then, after the pay- 
 ment of all just debts, one-half of the real 
 estate and the whole of the personal estate 
 shall descend to such widow or surviving 
 husband as an absolute estate forever, and 
 the other half of the real estate shall de- 
 scend as in other cases where there is no 
 child or children, or descendents of child or 
 children." Assuming, as both sides do, that 
 the words "in this state" are intended to 
 refer to and qualify "estates," and do not 
 refer to the place where the owner thereof 
 may die intestate, they clearly refer to per- 
 sonal as well as real property, and then the 
 question is, when may personal property be 
 regarded as "in this state" within the moan- 
 ing of the statute, or rather, was the proper- 
 ty here involved to be so regarded, if, as 
 claimed, Mrs. Cooper's domicile was in Mis- 
 souri at the time of her death? We have 
 been referred to no adjudication by om- su- 
 preme court tending to settle the point. 
 
 The first of descent enacted in Illinois was 
 approved March 29, 1819. It declared "that 
 the estates, both of resident and non-resident 
 proprietors in this state, dying intestate, 
 shall descend," etc., the provision being 
 copied substantially from the ordinance of 
 1787. So the law remained until the act 
 of January 23, 1829, relative to wills, testa- 
 ments, etc., by section 43 of which it was 
 provided that "estates, both real and per- 
 sonal, of resident or non-resident proprietors 
 in this state, dying intestate," etc., etc. The 
 same provision is found in the Revision of 
 1845, § 46, of the chapter on wills. The 
 present provision was enacted April 9, 1872. 
 It was, of course, clearly within the legis- 
 lative power to change the rule of the com- 
 mon law on this subject, but in view of the 
 reasons upon wliich the rule was based, we 
 are not to presume the legislature intended 
 to cHange It, except so far as the intention 
 406 
 
 is clearly manifested. However much of 
 fiction there may have been in the rule as to 
 chattels, there was none as to choses in ac- 
 tion. With respect to them it is essentially 
 true that they follow the owner. The prop- 
 erty therein is not the mere promissory note, 
 but it is the right to demand and have a 
 sum of money from the debtor. The prom- 
 issory note is merely evidence of the right, 
 which Is wholly intangible, and cannot be 
 regarded as situated anywhere of itself; It 
 resides always In the owner. Story, Confl. 
 Laws, § 362; State Tax Case, 15 Wall. 300; 
 Murray v. Charleston, 96 U. S. 432. 
 
 The supreme court of Mississippi had oc- 
 casion to construe a statutory provision of 
 that state, reading as follows: "All per- 
 sonal property situated in this state shall 
 descend and be distributed according to the 
 laws of this state regulating the descent of 
 such property, regardless of all material 
 rights which may have accrued in other 
 states, and notwithstanding the domicile of 
 the deceased may have been in another 
 state, and whether the heirs, or persons en- 
 titled to distribution be In this state or not; 
 and the widow of such deceased person shall 
 take her share of the personal estate, ac- 
 cording to the laws of this state." 
 
 The court held, in effect, that in order to 
 bring choses In action within the meaning 
 of this provision, when owned by a non- 
 resident, it should appear that they were in 
 some way substantially connected with busi- 
 ness conducted in the state, saying: "The 
 rule that such property has its situs at the 
 domicile of the owner is universally recog- 
 nized, and may be said to be as well estab- 
 lished as if declared by positive statute, 
 and we are unwilling to hold It to be abro- 
 gated by implication." Speed v. Kelly, 59 
 Miss. 47; Jahier v. Rascoe, 62 Miss. 699. 
 
 Under the peculiar facts of the latter case 
 the court felt bound to hold that the prop- 
 erty evidenced by the promissory notes, etc., 
 was so far incorporated with the business 
 of the state, having also been there listed for 
 taxation, as to be within the statute. 
 
 We are inclined to apply similar consider- 
 ations in the consti-uction of our statute. 
 If It is intended to provide that aU personal 
 estates being within this state shall be dis- 
 tributed, etc., we think it must mean only 
 such property as is physically, actually here, 
 and here also for some continuous and def- 
 inite period. It would not Include prop- 
 erty merely in transit, nor securities deposit- 
 ed merely for safe keeping for an indefinite 
 period. The property must actually be in 
 the state. In this Instance the property, 
 that Is the right to have payment, was not 
 in this state if the owner's domicile was not 
 here. The notes were not listed for tax- 
 ation and never had been— nor had any of 
 the funds from whence they were derived— 
 nor were they in any way Incorporated with 
 the mass of property in the state. It is evi- 
 dent they were placed In the hands of the 
 
•I 100) 
 
 CHANNEL V. CAPEN. 
 
 Case No. 134 
 
 ^igent for a mere temporary purpose: that 
 is, collection as they matured, and safe keep- 
 ing while the owner was traveling. The 
 mere fact that they were here In the hands 
 ■of an agent for collection Is not Important. 
 Suppose a creditor residing in another state 
 should himself come here bringing the notes 
 of his debtor residing here for the purpose of 
 collecting or selling or without any particu- 
 lar purpose in regard thereto, or for the 
 sake of having them with him, and should 
 die while here, and while so having them 
 in his possession, would any one say the 
 property evidenced by the notes was "in 
 this state," within the meaning of the stat- 
 ute? We would not so regard it. The at- 
 titude of the present case is not different 
 from that of the case supposed, unless it 
 .can be said that the domicile of Mrs. Coop- 
 er was in Illinois at the time of her death. 
 Where, then, was her domicile? The dom- 
 icile of the husband is the domicile of the 
 wife while they are living together in the 
 •conjugal relation. When she married Mr. 
 Cooper and went with him to Cincinnati 
 she necessarily abandoned the domicile she 
 had previously held at Bloomington, and 
 when she went with him to St. Louis it was 
 .again changed. It was never changed from 
 St. Louis. In legal contemplation it there 
 remained for the reason that while it was 
 the purpose not to retm-n there, and while 
 it may have been the intention to finally 
 make a home in Illinois, that purpose was 
 not carried out. In Hayes v. Hayes, 74 111. 
 .312, it was said: "To effect a change of dom- 
 icile there must be an actual abandon- 
 ment of the first domicile coupled with the 
 intention not to return to it, and there must 
 1)6 a new domicile acquired by actual res- 
 
 idence within another jm'isdiction coupled 
 with the intention of making the last ac- 
 quired residence a permanent home." No 
 such acquisition appears in the present case 
 after the parties settled in St. Louis. We 
 need not determine whether it was compe- 
 tent for Mr. Cooper to testify as to the dec- 
 larations of his wife or to the conversations 
 between them on this subject. Assuming, 
 though not conceding, such evidence was 
 legally competent, and that it truly shows 
 the purpose they had in view, still there is 
 lacking the proof that this purpose was 
 ever effected. It was not effected by send- 
 ing tlae notes and mortgages to Mr. Capen 
 for collection and safe keeping, nor is the 
 fact that she desired to be bm'ied and was 
 bm'ied in the Bloomington cemetery suffi- 
 cient. 
 
 Counsel for appellee have cited authorities 
 to sustain the proposition that as the debt- 
 ors resided in Illinois it was proper there 
 to take out letters of administration. We 
 do not question the position thus taken. 
 These debts were assets for administration, 
 bona notabilia, there, but unless the dom- 
 icile of the owner was there also, such 
 administration would be ancillary only. The 
 question of distribution would not be there- 
 by involved or determined. 
 
 We are of opinion, then, upon the whole 
 case, that the situs of this property, so far 
 as distribution is concerned, was not in Il- 
 linois but in Mlssom-i. The order of the 
 circuit court will therefore be reversed and 
 the cause will be remanded with directions 
 to distribute the net proceeds of the per- 
 sonal estate according to the rules of de- 
 scent of the latter state. 
 
 Reversed and remanded. 
 
 407 
 
Case No. 135 
 
 READ'S CASE. 
 
 (§ 102 
 
 READ'S CASE. 
 
 (5 Coke, 67.) 
 
 Common Pleas. 2 Jac. I. 
 
 Read brought an action of debt asainst 
 Carter, executor of Yong, which plea began 
 in the common pleas. Hilt. 44 Eliz. Rot. 
 401. The jurors found, that the said Yong 
 made his testament and last will, and made 
 one A. his executor; and the day of his 
 death was possessed of goods above the val- 
 ue of the debt in demand, and died; and be- 
 fore the will was proved the defendant took 
 the testator's goods into his possession, 
 and intermeddled with them; and after- 
 wards, and before the writ purchased, the 
 will was proved; and if on this matter the 
 defendant should be charged as executor 
 of his own wrong was the question. And 
 on great deliberation judgment was given 
 for the plaintiff. And in this case these 
 points were resolved. 
 
 1. When a man dies intestate, and a 
 strauger takes the intestate's goods and 
 uses them, or sells them, in that case it 
 makes him executor of his own wrong. For 
 although the pleading in such case be, that 
 he was never executor, nor ever adminis- 
 tered as executor; and therefore it was 
 objected, that he ought to pay debt or leg- 
 acy, or do something as executor: yet it 
 was resolved, and well agreed, that when 
 no one takes upon him to be executor nor 
 any hath taken letters of administration 
 there, the using of the goods of the deceased 
 by any one, or the taking of them into his 
 possession, which is the office of an execu- 
 tor or administrator, is a good administra- 
 tion to charge them as executors of their 
 wrong; for those to whom the deceased was 
 indebted in such case have not any other 
 
 408 
 
 against whom they can have an action for 
 recovery of their debts. 
 
 2. When an executor is made, and he 
 proves the will, or takes upon Mm the 
 charge of the will, and administers in that 
 case, if a stranger takes any of the goods, 
 and, claiming them for his proper goods, 
 uses and disposes of them as his own goods, 
 that doth not make him in construction of 
 law an executor of his wrong, because there 
 is another executor of right whom he may 
 charge, and these goods which are in such 
 case taken out of his possession after that 
 he hath administered, are assets in his hand: 
 but although there be an executor who 
 administers yet if the stranger takes the 
 goods, and claiming to be executor, pays 
 debts, and receives debts, or pays legacies, 
 and intermeddles as executor, there, for 
 such express administration as executor, he 
 may be charged as executor of his own 
 wrong, although there be another executor 
 of right; and therewith agreeth 9 E. 4, 13. 
 
 3. In the case at bar, when the defend- 
 ant takes the goods before the rightful 
 executor hath taken upon him, or proved the 
 will, in this case he may be charged as 
 executor of his own wrong, for the rightful 
 executor shall not be charg^ but with 
 the goods which come to his hands after he 
 takes upon him the charge of the will. 
 Note, reader, these resolutions, and the reason 
 of them, and by them you will better under- 
 stand your books, which otherwise seem pri- 
 ma facie to disagree. 41 E. 3, 13b; 50 Edw. 
 3, 9; 6 H. 4, 3a; 11 H. 4, 83b, 84a; 13 H. 4, 4b; 
 8 H. 6, 35b; 19 H. 6, 14b; 21 H, 6, 26 & 27; 
 32 H. 6, 7a; 33 H. 6, 21; 21 E. 4, 5a; 20 
 H. 7, 5a; 26 H. 8, 7b, 8a; 1 Eliz. 2 Dyer, 
 166; 9 Eliz. 3 Dyer, 255. And so the quaere 
 in 1 Mariae, 1 Dyer, 105; 203, well resolved. 
 
102) 
 
 OXENHAM V. CLAPP. 
 
 Case No. 13<> 
 
 OXENHAM V. CLAPP. 
 
 (2 Barn. & Adol. 309.) 
 
 Easter Term, 1831. 
 
 Declaration by an attorney, for work and 
 labour, against the defendant, as the executrix 
 of Francis Hunt Clapp. There were counts 
 on promises by the deceased testator, and by 
 the defendant as executrix. Plea, an out- 
 standing bond, dated the 10th of March, 
 1793, conditioned for the payment of £600 by 
 G. Clapp and Francis Hunt Clapp to one 
 Locke; that Locke died; that one Mary 
 Blake, the wife of Malachi Blake, was his 
 executrix, and that the bond was unpaid at 
 the death of Francis Hunt Clapp; that after 
 the exhibiting of the plaintifC's bill, and 
 whilst the defendant had leave to imparle 
 to the same, to wit, on 27th of December, 
 1824, the defendant paid the amount of the 
 bond to Malachi Blake and Mary his wife; 
 and that the defendant had fully adminis- 
 tered all the goods and chattels of Francis 
 Hunt Clapp, except goods to the value of 
 £270, which were not sufficient to satisfy the 
 sum of £600. Replication, that the defend- 
 ant was never executrix of the will of Fran- 
 cis Hunt Clapp, except of her own wrong, 
 and that at the time of exhibiting the bill of 
 the plaintiff, she, the defendant, as such ex- 
 ecutrix of her own wrong, had never been 
 called upon to pay, nor had she as such exec- 
 utrix of her own wrong at any time been 
 caUed upon to pay or paid the said sum of 
 £600 supposed to be so due by virtue of the 
 bond; and that she, the defendant, as such 
 executrix of her own wrong at the time of 
 the exhibiting the bill, had divers goods and 
 chattels which were of Francis Hunt Clapp 
 deceased at the time of his death, in the 
 hands of her the defendant, as such execu- 
 trix as aforesaid, to be administered. Re- 
 joinder, that after the exhibiting of the bill 
 of the plaintiff, and whilst the defendant had 
 leave to imparle to the same, and while the 
 said principal sum of £600 was wholly due 
 and unpaid, to wit, on the 27th of December, 
 1824, she, the defendant, paid the said prm- 
 cipal sum of £600 to Malachi Blake and 
 Mary his wife, as such executrix of the will 
 of Locke as aforesaid. To this rejoinder 
 there was a general demurrer and joinder. 
 
 Mr. Campbell, for the motion. Mr. Man- 
 ning, contra. 
 
 LORD TENTERDEN, C. J. There must 
 be judgment for the defendant. This case 
 is distinguishable from those cited, because 
 here the defendant does not seek to take ad- 
 vantage of her own wrongful act. The cases 
 cited show that an executor de son tort can- 
 not avail himself of his own wrongful act in 
 taking possession of the goods of the de- 
 ceased In order to retain a debt for his own 
 benefit; and on that ground the retainer set 
 up in those cases was not allowed. But 
 here the defendant pleaded, in answer to the 
 
 plaintiff's claim, that after action brought 
 she had disposed of the assets of the de- 
 ceased in that com'se of administration which 
 the law allows; viz. by discharging a debt 
 of higher degree. And if at any time before 
 plea pleaded an executor comes to the knowl- 
 edge of such a debt, he is bound to pay it 
 before a simple contract debt, whether he 
 be a rightful or wrongful executor. X am 
 not prepared to say that If it had been al- 
 leged that the payment had been voluntary, 
 the defendant could have justified paying 
 a debt of equal degree with that of the 
 plaintiff; because that might have been tak- 
 ing an undue advantage of her own wrons;. 
 It is sufficient in this case that the debt paid 
 was a specialty debt, and that that sued for 
 by the plaintiff was one by simple contract. 
 And in many cases it may be very conven- 
 ient, and even necessary, that an executor 
 de son tort should dispose of the assets of 
 the deceased in due course of administration. 
 
 LITTLEDALE, J. I am of the same opin- 
 ion. An executor de son tort, undoubtedly, 
 cannot retain for his own debt, and the rea- 
 son for that is assigned in Coulter's Case, 5 
 Coke, 31, "for from thence would ensue great 
 inconvenience and confusion; for every cred- 
 itor (and chiefly when the goods of the de- 
 ceased are not sufficient to satisfy all tlie 
 creditors) would contend to make himself ex- 
 ecutor of his own wrong, to the intent to sat- 
 isfy himself by retainer, by which others 
 would be barred. And it is not reasonable 
 that one should take advantage of his own 
 wrong; and if the law should give him sucli 
 power, the law would be the cause and oc- 
 casion of wrong, and of the wrongful taldng 
 of the goods of the deceased." But it is 
 there also said, "that all lawful acts which 
 an executor of his own wrong doth, are 
 good." Now, by law, it is incumbent upon 
 an executor to make payment of the debts of 
 the deceased in a certain order, viz. to pay 
 debts by specialty before those by simple 
 contract. The payment of the bond debt in 
 this case, therefore, was a lawful act. li 
 appears to me to make no difference, wheth- 
 er the payment was made before or after 
 action brought by the simple contract cred- 
 itor. An executor under a plea of plene 
 administravit may give in evidence, that be- 
 fore action brought he has exhausted the as- 
 sets by payment of debts of the deceased not 
 inferior to that of the plaintiff; but he must 
 plead specially payment after action brought. 
 Here the defendant has pleaded it specially, 
 and it was a payment in due course of law. 
 
 PARKE, J. I am of the same opinion. 
 The principle is, that an executor de son tort 
 cannot by his own wrongful act acquire any 
 benefit; for if he could, there would be a 
 struggle among the creditors, and each would 
 contend to make himself executor in order to 
 have the right to retain, which would pro- 
 duce great strife and confusion. He cannot, 
 
 409 
 
Case No. 136 
 
 OXENHAM 0. CLAPP. 
 
 (§ 10^ 
 
 therefore, retain for his own debt in prefer- 
 ence to that of another creditor. But he is 
 protected in all acts not for his own bonefit, 
 which a rightful executor may do. Hert' l)e- 
 tween the time of the action brought and 
 plea pleaded the defendant had notice of an 
 outstanding bond, which in the due course of 
 the administration of the assets of the de- 
 ceiised ought to be paid in preference to a 
 debt by simple contract; and he made such 
 payment: that was a lawful act, and as to 
 that payment, he is protected. It is true 
 that an executor de son tort cannot discharge 
 himself from the debt of a creditor by de- 
 livering over to tlie rightful executor the as- 
 sets, after action brought, because the cred- 
 itor would thereby be in a worse situation; 
 he would have to bring a second action 
 against the rightful executor. But this is 
 not such a case. Here the defendant has 
 
 410 
 
 paid a bond debt in the due course of admin- 
 istration, and the creditor, therefore, could 
 not afterwards maintain any action in re- 
 spect of that debt against the rightful exec- 
 utor. 
 
 PATTESOX, J. A wrongful and a rightful 
 executor only differ in this respect, that the 
 first is to take no benefit by his own wrong- 
 ful act; as regards other creditors, there is 
 no difference; an executor de son tort, as 
 well as a rightful executor, may administer 
 the assets in due course of law, and may, 
 therefore, justify the payment of a bond 
 debt, of which he has notice, before a sim- 
 ple contract debt. 
 
 Judgment for the defendant. 
 
 NOTE. See. further, cases in next subdivi- 
 sion. Long T. Symes, 3 Hagg. Ecc. 771, post. 
 
§ 103) 
 
 SHELLY 'S CASE. 
 
 Case No. 137 
 
 SHELLY'S CASH. 
 
 (1 Salk. 296.) 
 
 King's Bench. 5 A\'. & M. 
 
 In an action upon the case asainst an ex- 
 ecutor, upon plene admiuistravit pleaded, 
 three points were dechired per HOLT, C. J. 
 1st. That the plaintiff must prove his debt, 
 otherwise he shall recover but Id. damages, 
 though tliere be assets, for the plea onlj' ad- 
 
 mits a debt, but not the quantity. 2dly. 
 That all separate debts mentioned in the in- 
 ventory shall be counted assets In the exec- 
 utor's hands; for that is as much as to say 
 that they may be had for demanding, unless 
 the demand or refusal be proved. 3dly. That 
 for strictness no funeral expenses are allow- 
 able against a creditor, except for the coftlu, 
 ringing the bell, parson, clerk, and bearers' 
 fees, but not for pall or ornaments. 
 
 411 
 
Case No. 138 
 
 HUMPHKEYS v. HUMPHREYS. 
 
 (g 103 
 
 HUMPHREYS et ux. v. HUMPHREYS. 
 
 (3 P. Wms. 349.) 
 
 The bill was brought by the plaintiff Or- 
 lando Humphreys and Hellen his wife, 
 against his father, Sir William Humphreys, 
 Bart, for an account of the personal estate 
 of Colonel Lancashire, deceased. 
 
 Colonel Lancashire by his will gave £10,000 
 to his wife, Hellen, also £10,000 to his daugh- 
 ter and only child Hellen, and after some 
 other legacies, disposed of the surplus of his 
 personal estate in manner following: one- 
 third to his wife, the remaining two-thirds 
 to his daughter, and made his wife and his 
 
 brother Lancashire, executors of his 
 
 will, and died. 
 
 The defendant. Sir William Humphreys, 
 married the widow of Colonel Lancashire, 
 and some time after the plaintiff Orlando 
 Humphreys married Hellen his only daugh- 
 ter; upon which intermarriage the defend- 
 ant. Sir William, made an ample settlement 
 upon his son the plaintiff, Orlando Hum- 
 phreys, and Hellen his wife; but afterwards 
 the plaintiff falling out with his father, 
 brought this bill against him for an account 
 of the personal estate of Colonel Lancashire: 
 at the time of bringing which bill, Hellen, 
 the widow of Colonel Lancashire, and after- 
 wards the wife of the defendant Sir Wil- 
 liam, was dead, and the brother of Colonel 
 Lancashire, was dead also; so that there 
 was no executor or administrator of Colonel 
 Lancashire, party to the bill; for which rea- 
 son the defendant demurred to such part of 
 the bill, as demanded an account of the per- 
 sonal estate of Colonel Lancashire: which 
 demurrer coming on to be argued before the 
 LORD CHANCELLOR, 
 
 It was insisted, that the plaintiff Hellen, 
 wife of the plaintiff Orlando Humphreys, as 
 she had a right to administer to her father. 
 Colonel Lancashire, and in regard, though 
 any other person should by surprise get ad- 
 ministi-ation to him, yet such person would 
 be a trustee only for the plaintiff Hellen the 
 daughter; and as the plaintiff Hellen the 
 daughter, who had the only right to the ad- 
 ministration, was a plaintiff before the court; 
 this was sufflcient, and the court might or-* 
 der, that the plaintiff Hellen should forth- 
 with take out administration to her father. 
 
 412 
 
 LORD CHANCELLOR: There can be no 
 account taken of the personal estate of 
 Colonel Lancashire, without making his ex- 
 ecutor or administrator a party to the bill; 
 for aught appears to the conti-ary, there may 
 be debts due from Colonel Lancashire, which 
 may take up great part of the assets; and 
 therefore the administrator of the colonel 
 must be made a party, else no proper ac- 
 count can be taken; and if any account 
 should in fact be taken, it may be all over- 
 hauled again, when such administration shall 
 be taken out. Therefore allow the demurrer. 
 
 Afterwards, to help this defect, the plain- 
 tiff Hellen, the wife of the plaintiff Orlando 
 Humphreys, took out letters of administra- 
 tion to her father, and charged the same by 
 way of amendment to the bill, having ob- 
 tained an order for such amendment. 
 
 To which amended bill the defendant 
 pleaded as to that part thereof, which prayed 
 an account of the personal estate of Colonel 
 Lancashire, that the taking administration 
 was subsequent in time to the original bill, 
 and therefore it ought to be charged by way 
 of a supplemental, not an amended bill; and 
 the rather, forasmuch as every amendment, 
 though made after filing the original bill, is 
 fixed to, and becomes part thereof; so that 
 the bill was filed by an administratrix, as 
 such, and yet would appear to be filed be- 
 fore the administration taken out, and con- 
 sequently before the right to sue, com- 
 menced. 
 
 But the LORD CHANCELLOR with great 
 clearness (and not without some warmth in 
 respect of the delay) over-ruled the plea, ob- 
 serving, that the mere right to have an ac- 
 count of the personal estate was in the plain- 
 tiff Hellen the daughter^ as she was the next 
 of kin to her father Colonel Lancashire; and 
 it was sufficient, that she had now taken out 
 letters of administration, which, when grant- 
 ed, related to the time of the death of the 
 intestate, like the case where an executor, 
 before his proving the will, brings a bill, yet 
 his subsequent proving the will makes such 
 bill a good one, though the probate be after 
 the filing thereof. Wherefore^ his lordship 
 resented this plea as an affected delay, and 
 held, that the taking out letters of adminis- 
 tration might be charged either by way of 
 supplement or amendment. 
 
5§ 103, 129) 
 
 MOKROE V. JAMES. 
 
 Case No. i;;j 
 
 MONROE y. JAMES. 
 
 (4 Munf. 194) 
 
 Supreme Court of Appeals of Virginia. Eeb. 
 11. 1814. 
 
 In this case (which was an action of deti- 
 nue in behalf of the appellant against the 
 appellee), the following case was agreed by 
 the parties; viz. that the negro woman slave 
 in the declaration mentioned, was the prop- 
 erty of Joseph Jones, senior, deceased, at 
 the time of his decease, and subject to the 
 disposition of his last will and testament, 
 set forth in haec verba; the executors ap- 
 pointed tjierein being James Monroe, Joseph 
 Jones, the testator's son, and others; that 
 the defendant bought her, for valuable con- 
 sideration, fi\)m one George Legg, who 
 bought from Joseph Jones, jun., deceased 
 <named one of the executors in said will), 
 for valuable consideration, after the said 
 Joseph Jones, jun., had attained the age of 
 twenty-one years, and after the said will 
 was duly proved and recorded; he, the said 
 Joseph Jones, jun., now deceased, not hav- 
 ing then, or after, qualified as executor un- 
 der said will; that no other person had 
 qualified as executor of said Joseph Jones, 
 sen., or taken out letters of administration 
 on his estate, at the time of the sale of the 
 said negro woman by Joseph Jones, jun.; 
 that the plaintiff Is the only regularly quali- 
 fied executor of said Joseph Jones, sen., de- 
 teased; that the negro slave in tlae declara- 
 tion mentioned, is in the defendant's pos- 
 session, and was so at the time of institution 
 of the suit; and that demand of her was 
 <lulj made before said institution. 
 
 The following clause in the will related to 
 the subject of the present controversy: "I 
 give and devise unto my son Joseph Jones, 
 and his heirs and assigns, all my estate real 
 and personal. In case he shall die before he 
 arrives to lawful age, or, being of lawful 
 age, shall die without a child or children to 
 inherit the estate hereby given to him, it is 
 my will that the same shall, after his death, 
 be divided between the children of my late 
 sisters Esther Tyler and Elizabeth Monroe 
 now living, allowing my nephew Colonel 
 James Monroe the first choice." 
 
 A verdict was found for the plaintiff, sub- 
 ject to the court's opinion upon the case 
 agreed. The court entered judgment for the 
 defendant; whereupon the iJlaintiff appealed. 
 
 Mr. Hay, for appellant. Mr. Stanard, for 
 appellee. 
 
 The judges (COALTER, CABELL, and 
 FLEMING) delivered their opinions, seria- 
 tim. 
 
 JUDGE COALTER. In England an ex- 
 ecutor, before probate, may do almost every- 
 thing which he can do afterwards. He may 
 
 talce possession of the goods, pay and re- 
 ceive debts, make acquittances and releases 
 of debts, take releases, sell, or give away 
 the goods, assent to legacies, &c.; and these 
 things do not require a subsequent probate 
 to confirm them; for, if he die after any of 
 these acts done, and before probate, yet they 
 stand good. He may sue and be sued, but 
 cannot declare until probate:— he may file 
 a bill, and it will be good if he takes pro- 
 bate before trial. These are the only acts 
 which I can discover, which require a pro- 
 bate to enable him as effectually to do, as 
 though the probate had been taken. Nay, 
 where A., B., and C. are executors, and A. 
 refuses, and B. and C. take probate, there 
 A. continueth executor, notwithstanding his 
 refusal (the will being proved in the names 
 of all), so as he still may release debts due 
 to the testator, and B. & C. cannot maintain 
 suit In their names alone, but must join A. 
 also:— the probate in fact inures to him, and 
 he may administer thereafter at his pleas- 
 ure, and Intermeddle with the goods, as well 
 as the others; and If he survives, he will 
 proceed with the administration, as I under- 
 stand. 
 
 The reason of all which is, that there an 
 executor may undertake the trust reposed 
 in him, as well by acts In pays, signifying 
 his consent to do so, as by taking probate 
 before the ordinary; and every act of ad- 
 ministration or intermeddling with the es- 
 tate, even in a slight degree, makes him ex- 
 ecutor, and he cannot afterwards refuse, but 
 must proceed to execute the will:— he can 
 be sued as executor, and if he pleads that 
 he neither is executor, nor ever did adminis- 
 ter as executor (which is the common plea 
 to free himself in such case). It will be 
 found against him, on such intermeddling 
 being proved. The goods of the testator are 
 considered his property from the death of 
 the testator; and before probate he may 
 maintain trespass, replevin or detinue, for 
 goods taken or trespass done, after the death 
 of the testator; for these actions arise on his 
 own possession. 
 
 There, too, the probate, as well as the re- 
 fusal, have relation to the death of the testa- 
 tor. As where administration had been com- 
 mitted before any will proved or notified to 
 the ordinary, and the administrator sold 
 some of the goods, the executor brought 
 detinue for these goods, and recovered them. 
 
 And a refusal shall have a like relation, 
 so that the administrator may have an ac- 
 tion of trespass for goods talien before ad- 
 ministration committed. 
 
 In this country, the executor is to take 
 an oath, and give bond and security, in 
 every case except where by the will it is 
 dispensed with, and there too, if the court 
 think proper to require it. Whereas, in Eng- 
 land, he gave no bond, except where a coiu-t 
 of chancery, to prevent fraud, should inter- 
 pose and require bond, or where the testa- 
 
 413 
 
Case No. 139 
 
 MONROE V. JAMES. 
 
 (g§ 103. 129 
 
 tor, by his -will, made an executor condition- 
 ally, that he put in security, and then be 
 executor. 
 
 The statute of 9 Anne, c. 2, § 12, was the 
 first law requiring: secui-lty in this state; 
 and that did not require it generally, but 
 only in such cases where the court should 
 have reason to suspect that an executor 
 migiit act fraudulently; and which provides 
 that such a failure to give secui'ity should be 
 construed a refusal to 'act as executor, and 
 that administration cum testamento annexo 
 might, thereupon, be gi'anted. This statute 
 has a proviso substantially the same with 
 that of 22 Geo. II. c. 5, hereafter mentioned, 
 as to the power of the executor before pro- 
 bate, or administration, as aforesaid. 
 
 This latter statute requires bond and se- 
 eui'ity to be given generally, as first above 
 stated; and in the 21st section is tlie follow- 
 ing proviso: "that nothing herein contained 
 shall be consti'ued to abridge or resti-ain the 
 power of executors over their testator's es- 
 tates, until probate of the will, or adminis- 
 tration with the will annexed, be obtained 
 or granted; but they may possess them- 
 selves thereof, and till then execute their 
 trust, as fuUy and amply as if this act had 
 never been made." 
 
 This act also provides that a failure to 
 give security shall amount to a refusal of 
 the executor to act. 
 
 The question is, what effect this act, to- 
 gether with the exception, or proviso, had 
 on sales made by the executor thus required 
 to give bond, and who, in fact, never did 
 give such bond; the act of 178,5 simply con- 
 tinuing the power of executors before pro- 
 bate, as heretofore. 
 
 Under the first statute above mentioned, 
 where the court, suspecting fraud, required 
 security, could it have been intended that 
 the executor, notwithstanding such requisi- 
 tion, might sell, give away, and waste the 
 whole estate, and in fact commit the very 
 fraud intended to be guarded against; so 
 that there would be a dry and nated admin- 
 istration only to be granted? Suppose bond 
 to be required in England by a court of 
 chancery, would a sale, after tlie decree, 
 be good, the executor never giving bond? 
 Must not the pui'chaser notice this decree, 
 and buy at his peril? But here, secuHty 
 is required by law, which is notice to all 
 the world. If there are two or more ex- 
 ecutors in this coimtry, and one refuses to 
 give bond, and the other takes probate, can 
 the refusing executor, who never gives bond, 
 sell and dispose of the estate, as in England 
 he may do? 
 
 It appears to me that the proviso must 
 either destroy the great objects of the law, 
 or be itself declai-ed void as contravening 
 those great objects; or such a construction 
 must be given that both can, with reason 
 and propriety, stand. 
 
 The statute in this country most materially 
 ■Hi 
 
 innovates on the common law doctrines 
 above noticed, in one great and important 
 point, a proper consideration of which, I 
 think, will aid much in guiding us in this 
 inquiry. 
 
 By those doctrines, an executor once in- 
 termeddling with, or administering, in the 
 smallest degree, the assets, takes uI)on him 
 the executorship, and he can never after- 
 wards refuse. Here the very clause requir- 
 ing bond, and the proviso under considera- 
 tion, suppose an intermeddling by the ex- 
 ecutor before bond given, by the terms of 
 which he is to account for the assets that 
 have or may come to his possession; yet the 
 refusal to give that bond shall here be a re- 
 fusal of the executorship, and administra- 
 tion may be granted; but refusal, as well 
 as probate, relates to the death of the testa- 
 tor, who, on such refusal, is supposed to die 
 intestate, as to the appointment of execu- 
 tors, and therefore the person named as 
 such stands as having never been executor. 
 1 suppose it is for this reason, probably, 
 that a refusing executor does not join in 
 a suit, and is not sued, in this country. 
 From this it would seem to result, that a 
 qualification, and giving bond, are annexed, 
 in all cases, by law (as it may in England, 
 by the will itself), as conditions preceding 
 the full right of the executor finally to act; 
 and that, consequently, a probate, according 
 to our law, will be necessary to confirm 
 mesne sales, &c., made before such probate. 
 
 By the proviso, he may possess himself 
 of the goods, and proceed to execute the 
 trust. How? By wasting and giving away 
 the goods? Surely not: — such acts would 
 not be in execution, but in fraud of tlie 
 trust. Our law does not direct a sale even 
 of perishable goods, until after probate; and 
 such is the multiplicity of courts, and the 
 facility with which that may be obtained, 
 that a sale or alienation of the effects can 
 seldom be necessai-y in this country before 
 probate. But if it should be necessary (as 
 in some cases it may), it must be by one 
 who is executor, that is, who shall give 
 bond; for if he does not, he shall be consid- 
 ered as no executor: he cannot both be ex- 
 ecutor and no executor: he cannot both ac- 
 cept and refuse; and the person pm-chasing 
 must trust to this subsequent act of con- 
 firmation. It is better it should be so than 
 that the proviso should counteract the whole 
 law. 
 
 The executor may do many things in the 
 execution of his trust, before probate, which, 
 though they would have been sufficient to 
 make him executor in England, shall not 
 here, if he refuse to give bond. He may 
 see to biu-ying the deceased, take possession 
 of the goods, take care of them until pro- 
 bate or administi'ation granted; may sue to 
 prevent the statute of limitation from run- 
 ning; may be sued, for the same reason, &c. 
 But if he proceeds actually to administer 
 
§§ 103, 129) 
 
 MOJ^fUOE V. JAMES. 
 
 Case No. 139 
 
 the estate, he must at least confirm those 
 acts by probate and giving bond; for, until 
 that is done, he may refuse the trust, and 
 is no executor; and by that alone he elects 
 to be executor. 
 
 This is the only way in which I can recon- 
 cile the act to itself, and to the principles of 
 the common law above mentioned. Either 
 the proviso must defeat the law, or be itself 
 defeated, or they must both receive such con- 
 struction as that they fnay stand together. 
 The law was intended to prevent frauds and 
 embezzlement, and therefore ought to be 
 construed liberally, so as to advance the 
 remedy, and prevent the mischief. I can 
 perceive Uttle injury accruing, either way, 
 imder the construction now put; and if tlie 
 powers of executors before probate are nar- 
 rowed by it, and if estates may be injured 
 thi-ough defect of power in the executor, it 
 will but rai-ely happen; whereas, if their 
 powers should be as large as is contended 
 for, the evils would be incalculable. 
 
 On the whole, I thinli the law, on the case 
 agreed, is for the appellant; and that, there- 
 fore, the judgment of the superior court of 
 law is erroneous, and must be reversed, and 
 judgment entered for the appellant. 
 
 Judge CABELL. The question presented 
 by the case agreed is, whether a sale, for 
 valuable consideration, of a slave belonging 
 to the estate of a testator, by a person 
 named as executor, but who never qualified 
 by giving bond and security, is good against 
 the executor who did qualify. 
 
 Were this case to be decided by common 
 law principles, without regard to om- act of 
 assembly, it would not admit of doubt. An 
 executor derives his power from the will; 
 and, at common law, nothing was required 
 to invest him with the full exercise of that 
 power, for almost every possible piu-pose. bvit 
 his acceptance of the trust. By any inter- 
 meddling with the estate, which amoimts to 
 a partial administration, he is considered as 
 having accepted the trust, and taken upon 
 himself the whole administration; and he 
 becomes thereby, ipso facto, complete execu- 
 tor: and it is on this ground, and on this 
 only, that, although he may die before pro- 
 bate of the will, yet the acts done by him wiU 
 be valid. 
 
 These principles of the common law must 
 be applied to, and must govern this case, ex- 
 cept so far as they may have been changed 
 by our acts of assembly. It is impossible to 
 read our statutes upon this subject, without 
 being strucli by one most important change. 
 To the confidence reposed in the executor by 
 the testator, there is superadded the necessi- 
 ty of giving bond and security for the faith- 
 ful discharge of the duties of the office. The 
 refusal or failure to give security is express- 
 ly declared to amount to a refusal of the 
 executorship; and the court shall,, thereupon, 
 grant letters of administration, with the will 
 
 annexed, to the person to whom adminis- 
 tration would have been granted if there 
 had been no will. In this counti-y, therefore, 
 he is not, as in England, complete executor 
 by a mere partial administration of the es- 
 tate. To make' him complete executor, it is 
 indispensably necessary that he shall quali- 
 fy by giving bond and security. The only 
 principle, then, which at common law gave 
 validity to the acts of an executor who died 
 before probate, is done away by this statute: 
 and, if there had been no farther provision 
 in the law, I presume the opinion would 
 have been universal, that the acts of an ex- 
 ecutor who never qualified would not be val- 
 id against one who had qualified. But it is 
 contended, that the twenty-second section 
 which declares, that "the power of execu- 
 tors over their testators' estates before pro- 
 bate of the will is not hereby restx-ained, but 
 shall continue as heretofore," is so express 
 and positive, that it will be impossible to in- 
 validate any acts of the executor, however 
 ruinous to the estate, and even although he 
 should afterwards refuse or fail to give se- 
 curity. The certain consequence of this con- 
 struction would be to defeat the great object 
 of the legislature, the protection of the 
 rights of creditors and of legatees; for any 
 executor, so disposed, might waste the whole 
 of the estate before the court could arrest 
 his progress by granting letters of adminis- 
 tration. Such inconsistency cannot be attrib- 
 uted to the legislature. A just consti-uction 
 will give harmony to all parts of this impor- 
 tant statute. The interest of the estate will, 
 almost always, require many acts to be done 
 before an executor can qualify. Without de- 
 fining any particular cases, the law there- 
 fore has wisely provided that the power of 
 an executor before probate shall remain un- 
 restrained. The confidence reposed in him 
 by the testator, his acceptance of the trust, 
 and the necessity of the case, require that 
 he liave power to do whatever he might 
 have done at common law. As he may be- 
 come complete executor, by giving bond and 
 security, and as he ought to do so after hav- 
 ing intermeddled with the estate, the law so 
 far regards him as executor, as to consider 
 his acts valid for the present; and they wWl 
 become irrevocably so, provided he shall 
 perfect his character as executor, by a sub- 
 sequent qualification. But, if he refuses or 
 fails thus to qualify, he is considered as hav- 
 ing altogether refused the executorship, and 
 this refusal relates to the death of the testa- 
 tor. As to him, the will is considered as hav- 
 ing never been made; and, thus, the only 
 foundation of his authority being done away, 
 aU his acts are invalidated. 
 
 Judge FLEMING. This being a new case 
 in this court, and of great importance, as 
 it respects the power of an executor over 
 his testator's estate, before probate of the 
 will, which seems to be governed principtil- 
 
 415 
 
Case Ko. 139 
 
 MONROE V. JAMES. 
 
 (§§ 103, 129 
 
 ly by our acts of assembly, on the construc- 
 tiou of which this controversy materially 
 depends, I have been at considerable pains 
 to investigate the subject; and the Judges 
 who have preceded me have gone so fully 
 into the common law doctrine and usages 
 in England, that I shall confine my remarks 
 to our acts of assembly on the subject. 
 
 It is a well settled principle that, in the 
 exposition of a statute, in which there ap- 
 pears an ambiguity, ■ or a seeming contradic- 
 tion, we are not to garble and select any- 
 particular clause or section, but are to take 
 the whole, and compare one clause with 
 another, in order to discover the true mean- 
 ing, intent, and policy of the legislature: 
 and it is sometimes necessary to recur to 
 former acts on the same subject, to aid and 
 guide us in the discussion. 
 
 By this rule of construction, it appears 
 to me, that the seeming conflicting clauses 
 in the act of 1792 may be well reconciled 
 with each other. 
 
 The counsel for the appellee, in the case 
 before us, in order to support the claim of 
 his client, under a piu-chase of the slave 
 in question from a nominal executor, who 
 never qualified under the will of his testa- 
 tor, relied altogether on the 22d section of 
 the act of 1792, in the following words, 
 to wit, "the power of executors over their 
 testator's estates, before probate of the will, 
 is not hereby restrained, but shall continue 
 as heretofore." As heretofore, where? In 
 Virginia, and not in England, where the 
 most material species of our personal prop- 
 erty is unknown to their laws, and no 
 security is required of executors. Besides, 
 our legislature, at the time of passing the 
 act, must undoubtedly have pre-supposed 
 and contemplated a subsequent qualification 
 of the executors, by giving bond and seciu-i- 
 ty, taking an oath of ofiice, &c., agreeably 
 to the wise and salutary provisions of the 
 act; not required by the laws of England; 
 which qualification never took place in 
 the case now under consideration. The 
 counsel, however, contended, that the said 
 recited clause in the act of 1792, gave to 
 the vender of the slave in question, the 
 same powers as the common law in England 
 gives to an executor before probate of a 
 will; notwithstanding the contrary provi- 
 sions in our act of assembly. 
 
 To give the clause the construction con- 
 tended for by Mr. Stanard, in its full lati- 
 tude, would be productive of mischiefs in- 
 calculable, and totally deffat the wise and 
 salutary objects of our legislatiu-e, who pro- 
 vided, that if an executor fails to give the 
 security requh-ed, administration of the es- 
 tate with the will annexed, is to be commit- 
 ted to some other person: and so essentially 
 necessary did the legislatiu-e consider the 
 security to be, for the preservation of de- 
 cedents' estates, that it is enacted, "if any 
 court shall grant a certificate for obtaining 
 
 416 
 
 administration of the estate of any person 
 deceased without taking good security, the 
 justices of such court, then sitting, shall be 
 answerable, to the person or persons in- 
 jured, for all loGS or damages occasioned by 
 taking insufficient security. 
 
 The clause of the act, (section 41,) making 
 it the duty of executors and administrators 
 "to sell all such goods of their testator and 
 intestate, (specific legacies excepted,) as are 
 liable to perish, bo consumed, or rendered 
 worse by keeping," directs it to be done, 
 "as soon as convenient after they are quali- 
 fied:" and why not before as well as after 
 they are qualified? because it was supposed 
 that the product of the sales might be im- 
 safe in their hands, before proper security 
 should be given. 
 
 Although executors, in the first instance, 
 derive their powers from the wills of their 
 testators respectively; yet their powers are 
 not consummated until the requisitions of 
 om- statute are comi^lied with and fully per- 
 formed. 
 
 In all the acts I have had recourse tq on 
 the subject, as far back as the year 1748, 
 executors and administrators, even after 
 qualification, are forbidden selling the slaves 
 of their testators, or intestates, unless the 
 other part of the personal estate (having re- 
 gard to specific legacies,) shall not be suffi- 
 cient for paying the debts and expenses. 
 
 It seems to me that the 22d section of 
 the act of 1792, relied on by Mr. Stanard, 
 may be well satisfied by allowing executors, 
 before probate, to see to, and provide for, 
 the decent burial of their resjoective testa- 
 tors, to pay reasonable funeral expenses, to 
 take possession of and preserve the estates 
 of their testators from waste and embezzle- 
 ment, and to do any other act, pertaining to 
 their ofiice, not prohibited by the act of 
 assembly: and I am the more confirmed 
 in this opinion by recmiing to the act of 
 1711, in the ninth year of Queen Anne; in 
 which, after providing that executors and 
 administrators should give bond and securi- 
 ty, and take such oaths as are now pre- 
 scribed by law, it is enacted, (section 9.) 
 "that all probates, commissions of adminis- 
 tration, and administration cum testamento 
 annexo, as the several cases shall require, 
 issued upon certificate granted according 
 to this act, signed by the governor or com- 
 mander in chief of this colony, for the time 
 being, and sealed with the seal of the 
 colony, or signed by such other person or 
 persons, being one or more of the magis' 
 trates in commission of the peace, and au- 
 thorized by commission for granting pro- 
 bates, from the governor or commander in 
 chief of her majesty's colony, and dominion, 
 for the time being, and sealed with the seal 
 of the com't where the same shall be gi-ant- 
 ed, shall be, and are, hereby enacted and 
 declared to be, to all intents and pui-poses, 
 good and effecttia! in law, to empower and 
 
§§ 103. 129) 
 
 MONROE V. JAMES. 
 
 Case No. 139 
 
 enable the executors and administrators 
 therein named, to possess themselves of the 
 ("States of their testators or intestates, and to 
 act and do all other matters and things, 
 hy virtue thereof, as any executor or ad- 
 ministrator may, or might, lawfully do by 
 any ways or means whatsoever. 
 
 The above clause has been recited to show 
 how particular our ancestors were, a cen- 
 tury ago, with respect to the qualifications 
 of executors and administrators. 
 
 I am of opinion, upon the whole, that the 
 
 ABB. WILLS — 27 
 
 sale of the slave Hannah in the proceedings 
 named by Joseph Jones, an unqualified exec- 
 utor of Joseph Jones, the elder, deceased* 
 to George Legg, under whom the appellee 
 claims, was illegal and void; and that, 
 on the case agreed, in the proceedings stat- 
 ed, the law is for the appellant. The judg- 
 ment is therefore reversed with costs; and 
 this court proceeding to give such judgment 
 as the said superior court ought to have 
 rendered, it is furtlier considered that judg- 
 ment be entered for the appellant. 
 
 417 
 
Case No. 140 
 
 LUSCOMB V. BALLARD. 
 
 (§ los 
 
 LUSCOMB T. BALLARD. 
 
 (5 Gray, 403.) 
 
 Supreme Judicial Court of Massachusetts. Nov. 
 Term, ISH.o. 
 
 Action of contract against the executor of 
 Nathan Cook for services in taking care of 
 the house and furniture of said Cook after 
 his decease. There was evidence that one 
 Osborn, named as executor in the will, but 
 who declined to accept the trust, employed 
 plaintiff to take care of the house; that a 
 special administrator, afterwards appointed, 
 did not discharge plaintiff, but permitted 
 him to remain. The jury returned a verdict 
 for the plaintiff, and defendant excepted. 
 
 S. H. Phillips, for plaintiff", J. W. Perry, 
 for defendant. 
 
 THOMAS, J. The jury have found that 
 the defendant neither caused, nor in any 
 way assented to, the employment of the 
 plaintiff for the services for which this suit 
 is brought. He cannot therefore be charged 
 de bonis propriis. 
 
 If not liable as of his own goods, has the 
 estate in his hands been charged by the acts 
 of Osborn, or the special administrator, so 
 that there may be a judgment de bonis tes- 
 tatoris? We think not; but that the law 
 is, that by a promise, the consideration of 
 which arises after the death of the testator 
 or Intestate, the estate cannot be charged, 
 but that the executor or administrator is per- 
 sonally liable on his contract. And whether 
 the amount is to be repaid from the estate 
 is a question for the court of probate, in the 
 settlement of his account. 
 
 The old doctrine seems to have been, that, 
 upon any promise made after the death of 
 the testator or intestate, the executor or ad- 
 ministrator was chargeable, if at all, as of 
 his own goods, and not in his representative 
 capacity. Trewinian v. Howell, Cro. Eliz. 
 91; Hawkes v. Saunders, 1 Cowp. 289; Jen- 
 nings v. Newman, 4 Term R. 348; Brigden 
 V. Parkes, 2 Bos. & P. 424. 
 
 418 
 
 The more recent authorities, however, have- 
 settled that an executor may. In some cases, 
 be sued in his representative capacity on a 
 promise made by him as executor; and a judg- 
 ment had de bonis testatorls. But it will be 
 found that, in these cases, that which con- 
 stituted the consideration of the promise or- 
 the cause of action arose in the lifetime of 
 the testator. Dowse v. Coxe, 3 Bing. 26;: 
 Powell v. Graham, 7 Taunt. 581; Ashby v. 
 Ashby, 7 Barn. & C. 444. And an action for 
 goods sold and delivered to one as executor, 
 or for work done for one as executor, charges 
 the defendant personally, and not in his rep- 
 resentative character. Comer v. Shew, 3^ 
 Mees. & W. 350. See, also, Forster v. Fuller, 
 6 Mass. 58; Sumner v. Williams, 8 Mass. 
 162; Davis v. French, 20 Me. 21; Myer v. 
 Cole, 12 Johns. 349. 
 
 In this commonwealth, an exception is 
 made in the case of funeral expenses of the 
 deceased. For these, the executor or admin- 
 istrator may be charged in his representa- 
 tive character, and judgment be rendered de 
 bonis testatoris. But the case stands on its 
 peculiar ground, and is to be limited to it.. 
 Hapgood V. Houghton, 10 Pick. 154. 
 
 The modern English doctrine on this point 
 is, that if the executor or administrator gives 
 orders for the funeral, or ratifies or adopts 
 the acts of another party who has given or- 
 ders, he makes himself liable personally, and 
 not in his representative capacity. Brice v. 
 Wilson, 8 Adol. & B. 349, note; Corner v.. 
 Shew, 3 Mees. & W. 350; 2 Williams, Ex'rs, 
 1522. 
 
 If the contract of Osborn, or of the special 
 administrator, did not charge the estate, of 
 course the defendant can in no form be lia- 
 ble. 
 
 In this view of the case, it is unnecessary 
 to consider how far the contract of Osborn, 
 who was named executor in the will, but de- 
 clined the trust, could bmd the estate. If 
 the executor could not so charge the estate,, 
 a fortiori one who never accepted the trust 
 could not. 
 
 Exceptions sustained. 
 
103) 
 
 BOMPOED V. GRIMES. 
 
 Case No. 141 
 
 BOMFORD et al. v. GRIMES. 
 (17 Ark. 567.) 
 Supreme Court of Arkansas. Jan. Term, 1856. 
 Appeal from circuit court, Sebastian coun- 
 ty; Felix J. Batson, Judge. 
 
 S. F. Clark, for appellants. S. H. Hemp- 
 stead, for appellee. 
 
 Chief Justice ENGLISH. This was an ac- 
 tion of assumpsit, brought by Bomford and 
 Shumard, partners in the practice of medi- 
 cine, against Marshall Grimes, as adminis- 
 trator of John Booth, deceased, in the Se- 
 bastian circuit com't. 
 
 There are three counts in the declaration: 
 
 The fii-st count alleged that Booth, the 
 deceased, in his lifetime, was indebted to 
 the plaintiffs, in the sum of $466.50, for 
 medical services, &c. 
 
 The second count alleges a like indebted- 
 ness of Booth, in his lifetime, to the plain- 
 tiffs, and a promise to pay the same by de- 
 fendant, as his administrator, after his death. 
 
 The third count alleges, that the defend- 
 ant, as such administrator, was indebted to 
 the plaintiffs in a like sum for medical 
 services, &c., rendered to Booth, and mem- 
 bers of his family, before and after his 
 death, &c. 
 
 The defendant filed two pleas of non-as- 
 sumpsit: 
 
 1. That he did not undertake and promise, 
 &c., in manner and form, &c., as alleged. 
 
 2. That his intestate. Booth, did not, in 
 his lifetime, undertake, &c., &c.; as alleged. 
 
 The cause was submitted to the court, sit- 
 ting as a jury, upon the following testimony, 
 in substance: 
 
 Scott testified, that he was at Booth's, just 
 before his death, and during his last illness, 
 and knew of Bomford, one of the plaintiffs 
 making a medical visit there. There were, 
 at the time, three others of the family sick 
 besides Booth, and in adjoining room to 
 that in which he lay. They were colored 
 girls, composed a part of Booth's family, 
 and were said to be his daughters; they had 
 been raised in his family — were recognized 
 as part of It by Booth, and he had supported 
 them, paid their medical bills, &c. Dr. Bom- 
 ford while there, mixed up medicine, and 
 went into the room where the girls were, &c. 
 SVitness though he heard Booth direct Bom- 
 ford to attend upon the girls, and give them 
 his medical assistance, but of this he was 
 not certain. All witness knew of plain- 
 tiff's medical services to Booth and family, 
 was the one visit above referred to, except 
 that, on the day before this, he met Dr. 
 Bomford on his way to the residence of 
 Booth, &c. The distance from Fort Smith, 
 where plaintiffs resided, to the residence of 
 Booth, was nine miles or more. Booth died 
 on the next day after the visit of Bomford, 
 above referred to, in the summer of 1853. 
 Bomford administered two or three doses 
 
 of medicine while there. Witness saw him 
 give medicine to the deceased. 
 
 Baker testified, that in the year 1853, he 
 was sheriff of Sebastian county, and shortly 
 after the death of Booth, he, as public ad- 
 ministi-ator, took possession of his estate. 
 That, on the second day after the death of 
 Booth, witness went to his residence for 
 that pm-pose, and found eight persons of the 
 family lying very sick, and the plaintiffs were 
 attending upon them as their physicians. 
 Three of the sick persons were colored girls, 
 free, and said to be daughters of the de- 
 ceased, and the remaining five were his 
 slaves. Witness, as such public administra- 
 tor, directed the plaintiffs to continue their 
 medical services to all the sick, and endeavor 
 to cure them. Witness was present and 
 knew of plaintiffs' making five or six sub- 
 sequent visits to them. Witness advised 
 with plaintiffs in regard to their disease, and 
 sometimes administered the medicines pre- 
 scribed, &c. Sometimes one of the plaintiffs 
 visited them, and sometimes the other. The 
 patients were all afflicted with flux, were 
 quite sick, and several of them dangerously 
 so. Witness thought several of their lives 
 were saved by the attentions of the plaintiffs. 
 Witness resided in Fort Smith and in addi- 
 tion to the five or six visits of the plaintiffs, 
 when he was present, he, on several occa- 
 sions, saw the plaintiffs, on their return to 
 town from the residence of the deceased. 
 and enquired of them concerning the sick. 
 He knew of plaintiffs administering as many 
 as 35 or 40 doses of medicine while attend- 
 ing on the family, and the patients all got 
 well under their treatment. Plaintiffs at- 
 tended there, first and last, after the death 
 of the deceased, about 15 or 18 days. Booth 
 died 22d June, 1853. 
 
 Stephens testified, that soon after the death 
 of Booth, Baker, the public administrator, 
 employed him to take care of the property of 
 deceased, and give assistance to the sick 
 family. That there were eight persons of 
 the family, the three yellow girls, and five 
 slaves, very sick with the fiux, for about 
 fifteen days after the death of Booth; and 
 one or the other of the plaintiffs visited them 
 every day during that time, &c. The dis- 
 tance from Fort Smith to the residence of 
 Booth, was over ten miles. Plaintiffs were 
 regular physicians, and rendered beneficial 
 service to the estate of Booth. 
 
 Dr. Main testified, that the customary char- 
 ges of physicians, were, one dollar per mile 
 for travel from the physician's residence to 
 the patient; and one dollar for each and 
 every patient attended to for examination 
 and prescription, and 25 cents extra for 
 each ordinary dose of medicine administered. 
 If the visit was paid in the night time, the 
 physician was entitled to double mileage. 
 If a physician traveled ten miles, and exam- 
 ined or prescribed for seven patients in a 
 family, he was entitled to $17 for it, and 
 
 419 
 
Case Xo. 141 
 
 BOMFORD V. GRIMES. 
 
 (§ 1Q3 
 
 also to twenty-flye cents per dose for such 
 medicines as he administered. If he attend- 
 ed upon five patients he was entitled to $15, 
 &c. Witness had examined the plaintiffs' 
 bill of particulars, and did not think the 
 charges too high. The bill does not appear 
 in the transcript. 
 
 It was admitted, that before the suit, plain- 
 tiffs had exhibited their account, properly 
 authenticated by the affidavit of one of them, 
 to the defendant, Grimes, as administrator 
 of Booth, for allowance and classification, 
 and that he had refused to allow more than 
 $30 of it. 
 
 It was also shown that the letters of ad- 
 ministration upon the estate of Booth, were 
 granted to Grimes, on the 20th October, 
 1853. 
 
 Upon the above -evidence, the court found, 
 "that said John Booth, in his lifetime, did 
 assume and promise, in manner and form, 
 as the said plaintiffs had complained against 
 him, and assessed the plaintiffs' damages by 
 reason of the premises, to thirty dollars:" 
 and judgment was accordingly rendered 
 against the defendant, as such administrator, 
 for that sum with costs, &c. 
 
 The plaintiffs moved for a new trial, which 
 the court refused; they excepted, took a bill 
 of exceptions setting out the evidence, and 
 appealed to this court. 
 
 It is to be inferred, that the court found 
 in favor of the plaintiffs for so much of 
 their account, only, as was for services ren- 
 dered by them, to Booth and his family, dur- 
 ing his life-time; and this is complained of 
 as an error, the plaintiffs insisting that they 
 were entitled to a finding and judgment for 
 that portion of their demand, also, which 
 was for services rendered by them, after the 
 death of Booth, to the three yellow girls 
 and the five slaves. No doubt, from the evi- 
 dence, but that the plaintiffs are justly en- 
 titled to compensation from some source for 
 these services; but, could they legally re- 
 cover therefor, of the defendant. Grimes, as 
 the administrator of Booth, in this action? 
 
 It is manifest, that our statute of admin- 
 istration provides for the allowance and 
 classification of no claims or demands against 
 the estate of a deceased person, (other than 
 
 420 
 
 for funeral expenses,) but such as arise 
 upon contracts or liabilities made or in- 
 curred by him, in some way, during his 
 life-time. See Digest, c. 4, §§ 85-106. 
 
 The estate of an intestate, after the setting 
 apart of the widow's dower, is to be ap- 
 propriated to the payment of such claims, 
 in the order in which they are classed by 
 the statute, with the necessary expenses of 
 administration, and the residue of the estate 
 if any, is distributed to the children, or next 
 of kin, &c. 
 
 It seems that three yellow girls, who were 
 attended by the plaintiffs, after the death of 
 Booth, were his daughters, and had been 
 raised and supported by him as membei-s 
 of his family. 
 
 The statute allows to the widow and fam- 
 ily of the deceased, such grain, meat, vege- 
 tables, groceries and other provisions on 
 hand, as may be necessary for their subsist- 
 ence for twelve months, &c., (Digest, c. 4, 
 § 56,) but makes no provision for paying 
 medical bills. 
 
 For medical services rendered to minor 
 children, after the death of the intestate, the 
 physician must look to the guardians, or 
 i other persons who have charge of them and 
 their property, and who, by virtue of legal 
 or natural obligations, may be liable for 
 their maintenance, &c. For such necessa- 
 ries the minor may also be personally liable. 
 
 As to the slaves of the intesbite, when the 
 administrator finds it necessary to call in 
 medical assistance to them, no doubt he 
 has the right, and it Is his duty to do so, 
 not only as a matter of humanity, but by 
 way of preserving them as property of the 
 estate, for the benefit of the creditors and 
 distributees; and it would be the duty of the 
 probate court, to allow the administrator, the 
 reasonable and necessary expenses so in- 
 curred by him, as part of the costs of ad- 
 ministration. 
 
 But, as betAveen the administrator and the 
 physician, it would be a personal contract. 
 An administi-ator has no right to make a 
 contract for a dead man. Underwood v. 
 Milligan, 10 Ai-k. 254. 
 
 The judgment of the coiu-t below is af- 
 firmed. 
 
§103) 
 
 HATCH V. PKOCTOR. 
 
 Case No. 142 
 
 HATCH v. PROCTOR et al. 
 
 (102 Mass. 351.) 
 
 Supreme Judicial Court of Massachusetts. 
 Worcester. Oct. Term, 18G0. 
 
 Contract by an admlnlsti-ator of the estate 
 of Frank J. Hatch to recoTer of George L. 
 Lawrence for goods belonging to the estate, 
 and sold and delivered. From an order di- 
 recting a verdict for the defendant, plaintiff 
 excepted. 
 
 H. B. Staples and F. P. Goulding, for plain- 
 tiff. C. H. B. Snow and G. A. Torrey, for 
 defendants. 
 
 COLT, J. The case presented in the offer 
 of evidence is this: The plaintiff, acting, 
 with the knowledge of the defendants, as ex- 
 ecutor in his own wrong of his deceased 
 brother's estate, delivered certain personal 
 property, with a bill of sale and warranty of 
 title, to one Lawrence, in consideration of 
 the verbal promise of the defendants to pay 
 the plaintiff $1700 towards the price thereof. 
 At the time of the sale and delivery, the de- 
 fendants took a mortgage from Lawrence to 
 secure them the amount to be paid, and no 
 credit appears to have been given to him by 
 the plaintiff. The property passed into the 
 possession of Lawrence, and it does not ap- 
 pear that his title, or the title of the de- 
 fendants, claiming under the mortgage, has 
 ever been questioned by anybody else, or 
 possession under it disturbed. After this, 
 the plaintiff was regularly appointed admin- 
 istrator of his brother's estate, and notified 
 the defendants that he ratified and confirmed 
 as administrator, all his acts and contracts 
 with them in the sale of said property. And 
 thereupon they told him, by the defendant 
 Proctor, their agent in the premises, that the 
 agreement for the payment of said sum was 
 fair, and the money should be paid; though 
 shortly after, while the property still remain- 
 ed with Lawrence, they notified the plaintiff 
 that they claimed no title to the same under 
 the mortgage, which they thought invalid. 
 
 In the opinion of the court, the evidence 
 offered should not have been rejected. The 
 facts, If proved, would entitle the plaintiff to 
 maintain his action. 
 
 The defendants do not now insist that the 
 contract cannot be enforced as against the 
 statute of frauds. It was an original prom- 
 ise made by the defendants to pay for prop- 
 erty delivered to another. Stone v. Walker, 
 13 Gray, 613; Swift v. Pierce, 13 Allen, 136. 
 
 The personal estate of a deceased intestate, 
 when an administrator is appointed, vests in 
 him by relation from the time of the death. 
 Until then the title may be considered to be 
 in abeyance. Lawrence v. Wright, 23 Pick. 
 128. He may have an action of trespass or 
 trover for goods of the intestate taken before 
 letters granted. When the wrongdoer has 
 sold the property taken, the administrator 
 may waive the tort and recover in assumpsit 
 •for money had and received. And, in a case 
 very like the one at bar, it was held that, 
 where the sale was made avowedly on ac- 
 count of the estate, by one who had been 
 agent of the intestate, the administrator aft- 
 erwards appointed might recover from the 
 vendee in assumpsit for goods sold and de- 
 livered. Foster v. Bates, 12 Mees. & W. 
 226, 233. It is said that, if an executor de 
 son tort obtains letters of administratign 
 pendente lite, it legalizes his previous tor- 
 tious acts. 1 Williams, Ex'rs (6th Ed.) 598, 
 aud cases cited. By the law of this state, 
 as laid down by Hoar, J., in Alvord v. Marsh, 
 12 Allen, 603, the letters of administration, 
 by operation of law, make valid all acts of 
 the administrator in settlement of the estate 
 from the time of the death. They become 
 by relation lawful acts of administration for 
 which he must account. And this liability 
 to account involves a validity in his acts 
 which is a protection to those who have dealt 
 with him. 
 
 The case here presents no question as to 
 the peculiar liability of an executor in his 
 own wrong, to creditors, to the rightful ad- 
 ministrator, or to others who have suffered 
 by his unlawful acts. As to the defendants, 
 the sale here was not tortious. It was made 
 legal, and the title of the vendee confirmed, 
 by the retroactive effect of the subsequent 
 letters of administration. Nor is it to be 
 overlooked that the defendants knew, when 
 the property was delivered and the war- 
 ranty of title given, that the vendor had no 
 legal right to sell. There was no ignorance 
 or mistake on their part, and no fraud or 
 false affirmation of title on the part of the 
 plaintiff. The property still remains undis- 
 turbed in the hands of the purchaser. The 
 plaintiff's express confirmation of the sale 
 was agreed to, and payment of the price 
 promised. These last considerations alone 
 would, under the circumstances, seem to be 
 a sufiicient answer to the defence set up. 
 Story, Sales, § 367b, note; Id. § 423. 
 
 Exceptions sustained. 
 
 421 
 
Case No. 143 
 
 HILLS 0. MILLS. 
 
 {§§ 105, 106 
 
 HILLS V. MILLS. 
 
 (1 Salk. 36.) 
 
 King's Bench, 3 W. & M. lfi!)2. 
 
 A prohibition was prayed and granted to 
 the ecclesiastical court of Canterbury, to stay 
 a suit there, to repeal or revoke the probate 
 of a will, because the executor was become 
 bankrupt, and to grant administration to an- 
 422 
 
 other. And though one Coates's Case was 
 cited, where an administration was reyoked 
 for that cause, yet the court said that differ- 
 ed; for the executor is constituted by the 
 testator himself, and by hiui intrusted: But 
 it seemed to Ije agi'eed, that if an executor be- 
 come non compos, the spiritual court may 
 commit administration, because that is a 
 natiu'al disability. 
 
§ 105) 
 
 MINNESOTA LOAN & TRUST CO. v. BEEBE. 
 
 Case No. 144 
 
 MINNESOTA LOAN & TRUST CO. v. 
 BEEBE et al. 
 
 (41 N. W. 232, 40 Minn. 7.) 
 
 Supreme Court of Minnesota. Jan. 11, 1889. 
 
 Appeal from district court, Hennepin coun- 
 ty; Young, Judge. 
 
 Action by the Minnesota Loan & Trust 
 Company, as guardian of Kobert Chambers, 
 against Franklin Beebe and others, on the 
 bond of a former guardian. Judguient for 
 vthe plaintiff, and defendants appeal. 
 
 E. W. Rosuman, for appellants. Wm. J. 
 Hahn, for respondent. 
 
 Mitchell, J. This is an action by the 
 plaintiff, as guardian of Robert Chambers, 
 an Insane person, upon the bond of his former 
 guardian, to recover money due his estate. 
 The principal question is as to the constitu- 
 tionality of the provisions of "An act to au- 
 thorize the organization and incorporation of 
 annuity, safe-deposit, and trust companies," 
 <Gen. Laws 1883, c. 107, §9, subd. 4,) granting 
 to such corporations power to act as trustee, 
 assignee, receiver, executor of a will, admin- 
 istrator of an estate, guardian of the person or 
 estate of a minor, or guaidian of tiie estate 
 ■of any lunatic, imbecile, etc., and authoriz- 
 ing any probate or other court to appoint 
 and commission any such corporation, au- 
 thorized to do business in this state, as such 
 trustee, etc., in all cases where such court 
 ■could lawfully appoint and commission a 
 natural person; and providing that in such 
 <;ases no bond, oatli, or other qualification 
 should be necessary to enable such corpora- 
 tion to accept such appointment. 
 
 The contention of counsel seems to be that 
 ihe legislature has no right to grant to any 
 corporation the power to act in any such 
 fiduciary capacity. His argument deals in 
 much criticism and denunciation of the stat- 
 ute, some of which might have some weight 
 if addressed to the legislature, but he en- 
 tirely fails to point out any provision of the 
 ■constitution with which it conflicts. The 
 sum of his argument is that such a statute 
 Is in derogation of the common law, or con- 
 Hicts with prior statutes, and is impolitic. 
 But none of these considerations go to the 
 ■question of the validity of the act. With 
 ■our preconceived ideas on the subject, it 
 might seem somewhat inappropriate to in- 
 trust the person of a minor to the custody of 
 A corporation; but perhaps experience will 
 prove that the objections to this are largely 
 :artifieial and imaginary. But this question 
 does not arise in this case. While the stat- 
 ute autliorizes these corporations to act as 
 guardians of both the persons and estates of 
 minors, it only authorizes them to act as 
 guardians of the estates of insane persons. 
 'This action pertains solely to the estate of 
 the ward, and the fact tliat the probate court 
 lias assumed to appoint the plaintiff guard- 
 ian of both his person and estate will not, al- 
 though unauthorized as to the former, affect 
 the validity of the appointment as guardian 
 
 of the estate. To the appointment of corpo- 
 rations, organized for that special purpose, 
 under well-guarded statutes, to the position 
 of trustee of a trust, executor of a will, ad- 
 ministrator or guardian of an estate, or otlier 
 olace of trust, involving the custody and 
 management of property only, there can 
 be no possible objection on either constitu- 
 tional grounds or considerations of policy, 
 Tlie common-law grounds upon which it was 
 held tliat corporations could not act in any 
 of tliese fiduciary capacities were purely arti- 
 ficial. The reason given by Blackstone why 
 a corporation aggregate could not act as an 
 executor or administrator is that it could not 
 take the necessary oatli; but even at com- 
 mon law, in England, this technical dilii- 
 culty was evaded by the corporation naming 
 an agent, called a "syndic," to whom letters 
 were issued. Moreover, it is, of course, en- 
 tirely competent for the legislature to dis- 
 pense altogether with an oath in such cases. 
 Another reason often assigned why a corpo- 
 ration could not act as a trustee was that, as 
 a court of equity often enforced a trust by 
 laying hold of the conscience of the trustee, 
 therefore, inasmuch as a corporation has no 
 conscience, it is not qualified to act as trus- 
 tee. The reason most commonly given why 
 a corporation could not act as trustee, exec- 
 utor, guardian, or in other such fiduciary 
 capacity, was that such an appointment in- 
 volved a personal trust, and therefore a cor- 
 poration lacked one of the essential requisites 
 of a good trustee, — personal confidence. 1 
 Perry, Trusts, § 42. But at least as to trusts, 
 technically so called, this doctrine has long 
 since been exploded, even at common law, as 
 too artificial. Vidal v. Girard'sEx'rs, 2 How. 
 187. And there are now numerous instances 
 in which corporations have been expressly 
 empowered by statute to administer estates, 
 and neither the validity nor policy of such 
 legislation has ever before, to our knowl- 
 edge, been questioned. 1 Mor. Priv. Corp. § 
 357. In fact, in many of the states, partic- 
 ularly the older ones, this is fast becoming 
 the favorite method of administering estates 
 and executing trusts. The facts that such 
 corporations have perpetuity of existence; 
 that they are less liable than natural persons 
 to sudden fluctuations of fortune; that, be- 
 ing organized for that special purpose, they 
 can administer estates more efficiently and 
 economically; and that, in case of large es- 
 tates, it is often difficult to find a natural 
 person who is both able and willing to accept 
 the trust, and give the necessary bonds, — 
 have suggested the necessity and created the 
 demand for sucli organizations. 
 
 The statute is criticised because it does not 
 require the corporation to take an oath or give 
 a bond, as in the case of natural persons. But 
 this is purely a question for the legislature. 
 If they deem the securities deposited with the 
 state auditor, and the other safeguards placed 
 by the statute around the organization and 
 management of such corporations, to insure 
 the faithful execution of all trusts imposed 
 
 423 
 
"iise No. 144 
 
 MINNESOTA LOAN & TRUST CO. V. BEEBE. 
 
 {§ 105 
 
 upon them, as an equivalent for the bond and 
 oath required of natural persons, tliey have 
 the undoubted power to so provide. 
 
 Other objections are made to these provis- 
 ions of the act which would not be entitled 
 to notice, except for the earnestness with 
 which they are urged by counsel. For ex- 
 ample, it is urged that they amount to legis- 
 lative interference with the constitutional 
 powers of the probate court, to which is given 
 jurisdiction over the estates of deceased per- 
 sons and persons under guardianship. It need 
 only be suggested, in answer to this, tlutt the 
 jurisdiction of the courts pertains to the exe- 
 cution of the laws, and not their enactment 
 This statute neither appoints any guardian or 
 administrator, nor compels the courts to ap- 
 point any particular person. It merely pro- 
 vides that a certain class of persons shall be 
 qualified to act in those capacities. 
 
 The suggestion that the act is in conflict 
 with section 33, art. 4, of the constitution of 
 the state, is equally untenable. This is not 
 a special or private law, giving special or ex- 
 clusive privileges, immunities, or franchises 
 to a particular corporation, but a general law 
 for the organization of corporations for cer- 
 tain purposes, and defining their powers. 
 There is nothing in the point that these pro- 
 visions of the act are not specified in its title. 
 424 
 
 They are all germane to the subject there ex- 
 pressed, wliich is the organization and incor- 
 poration of annuity, saie-deposit, and trust 
 companies. This section of the act is but an 
 enumeration of the powers granted to such 
 corporations, and it was never before heard 
 that, in a general law for the organization of 
 a particular class of corporations, the powers 
 granted to them sliould be detailed in the title 
 of the act. 
 
 The contention tliat the plaintiff failed to 
 establish a cause of action, because it did not 
 prove the insanity of Chambers or the regu- 
 larity of the proceedings in the probate court 
 appointing it his guardian, is predicated upon 
 an entire misconception of the status and pro- 
 bative force of the records of that court. In 
 a collateral action, the letters themselves are 
 conclusive of the regularity of the proceed- 
 ings resulting in their issuance, as well as of 
 the insanity of the person upon whose estate 
 they were issued. Moreland v. Lawrence, 23 
 Minn. 84; Peck v. Strong, 26 Minn. 303, 3 
 N. W. Kep. 697; Davis v. Hudson, 29 Minn. 
 27, 11 N. W. Rep. 136. Order affirmed. 
 
 Vanderburgh, J., took no part. 
 
 NOTE. See In re Kirkpatrick, 22 N. J. Eq. 
 463; 1 Woerner, Adm'D, § 233. 
 
§§ 100, 106) 
 
 REX V. RAINES. 
 
 Case No. 145 
 
 REX V. RAINES. 
 (1 Ld. Baym. 361.) 
 King's Bench. 10 Wm. III. 
 A mandamus was dii-ectorl to Sir Richard 
 Raines, to command him to grant probate 
 of the will of Edith Pinfold to one Richard 
 Watts, who was made executor of it Sir 
 Richard Raines makes return to it, and ad- 
 mits, that Edith Pinfold made her will, and 
 Watts executor of it; but says farther, quod 
 luculenter et judicial! ter fuit probatum, et 
 constat to him, that Watts is worth nothing, 
 but absconds for debt; and therefore that it 
 is lawful to him, to defer the granting of the> 
 probate, until Watts find sufficient security 
 to perform the intent of the will. And it 
 was argued by Sir Bartholomew Shower, 
 Mr. Mountague, and Dr. Waller the king's 
 advocate general a civilian, that this return 
 was good, and that a peremptory mandamus 
 ought not to be granted. And Dr. Waller 
 said, that in fact the case was thus; Edith 
 Pinfold made her will, and Richard Watts 
 her nephew her executor, and devised to 
 him £100 for a legacy, and some cattle; she 
 devised also to Baines her brother £500 and 
 the residue of her personal estate to the son 
 of Baines; the will was brought by Baines" 
 to the prerogative court to be proved; and 
 it was opposed by Huntley, but was not pro- 
 moted at all by Watts; sentence passed In 
 the prerogative court for Baines; upon 
 which Huntley appealed to the delegates, 
 and the sentence there was confirmed; 
 whereupon the will was returned into the 
 prerogative court, and then Watts claimed 
 probate; but upon examination it appeared 
 to the judge, that he was an insolvent and 
 necessitous man, and had received his legacy, 
 and therefore the judge required caution; 
 upon which Watts obtained this mandamus, 
 and to it the judge made this return, which 
 (by Dr. Waller) is good. For 1. if there is 
 any default in the judge in the administra- 
 tion of his office, it is a proper subject for an 
 appeal; for this will, being of chattels, is al- 
 together of ecclesiastical conusance; and 
 therefore as the spiritual judge shall judge 
 of the validity of the will, so he ought to 
 make a judgment, whether he ought to 
 grant probate of it or administration, or If 
 the executorship be conditional, as it may 
 be, whether the condition be performed, &c. 
 in all which cases if he makes a false judg- 
 ment, the proper remedy is appeal, and not 
 to come in this manner for remedy to the 
 king's bench. 
 
 2. He argued, that the judge has dore 
 nothing, but what in such cases he ought to 
 do; for in such cases he may properly re- 
 quire caution. In the time ot the heathen 
 emperors the testaments were reposed in the 
 colleges of the pontifices, and from the first 
 Christianity of the Roman emperors the 
 bishops were intrusted with them. Now the 
 civil law was, that security should not be de- 
 manded de haerede, whidi at that time in- 
 
 cluded what we now call executor, imless he 
 was msolvent; and then it was lawful to de- 
 mand caution or security But after this the 
 canon law followed, and then they made use 
 of the word executor which was before in- 
 cluded in the word heir; and of them tliere 
 are three sorts. 1. Legitimus, viz. the or- 
 dinary. 2. Datus, viz. he whom the ordi- 
 nary appoints, and he always gave security. 
 3. Testamentarius, who came instead of the 
 heir, which is he whom we call executor 
 »«'' i^.j;*'- And then as the heir before, if 
 he was insolvent, always gives caution; so for 
 the same reason an insolvent executor al- 
 ways gives caution. To say the truth, there 
 is a difference made, when the testator knew 
 at the time of the making his will, that the 
 person, whom he constituted executor, was 
 then insolvent, and when the executor is be- 
 come insolvent by matter ex post facto; but 
 at what time Watts became insolvent, does 
 not appear in this case; and therefore to 
 justify the acting of a judge, the com-t will 
 intend, if it be material, that he became in- 
 solvent since the death «f the testati'ix, 
 rather than at the time of the will made, 
 Lynd. Prov. lib. 3, 23, tit. "De Testamentis," 
 it is said, that no religious man shall be ex- 
 ecutor, unless his superior takes care to give 
 caution for the due execution of the will, 
 and for the loss that may happen by his ad- 
 ministration; and Lynd wood gives the rea- 
 son of it, because it appears that such a per- 
 son is insolvent; which proves that insol- 
 vent persons ought to give caution. So 
 Lynd. cap. statut. before the executor be ad- 
 mitted by the ordinary to execute the will, 
 he ought to take an oath, &c. (which is the 
 constant practice, and yet no mention is 
 found of such oath, before that which these 
 constitutions in Lynd wood make of it ; and yet 
 before the new statute if Quakers refused to 
 take such oath, no probate of any will used 
 to be granted to them,) et si oporteat, says 
 Lyndwood, he shall give suflicient caution. To 
 the same purpose Swinb. Wills, pt. 6, par. 
 14, pp. 363, 364. To which Sir Bartholomew 
 Shower added, that if an executor is non 
 compos, the ordinary is not bound to grant 
 probate to him, because he hath an appar- 
 ent disability to execute the will, which 
 strongly resembles this present case. 2. He 
 said, that if the executor refuses to take the 
 oath, this amounts to a refusal of the office, 
 and the ordinary may grant administration 
 cum testamento annexe. Why then shall 
 not the refusal to give security amount to a 
 refusal of the office of executor; since there 
 is no positive law, that in such case the or- 
 dinary shall administer an oath, more tlian 
 in this case that he shall demand caution? 
 3. He said, that mandamus's are granted 
 oftentimes, to compel the granting of ad- 
 ministration; and rightly, because they .seem 
 to b© founded upon the act of parliament, 
 which appoints the granting of administra- 
 tions; but one cannot find any precedents 
 of mandamus, to compel the judges of the 
 
 425 
 
Oiise No. 145 
 
 REX V. RAIKES. 
 
 (§§ 100. 106 
 
 •civil law, to execute their law, which seems 
 to be the present case. 
 
 HOLT, C. J. Wills and testaments are of 
 ecclesiastical conusance, not by force of the 
 civil or canon laws (for they bind no farther 
 here, than as they have been received here) 
 but by the law of the land. Then if the ec- 
 clesiastical courts proceed to inlarge the 
 power of the judge, contrary to that which 
 the common law allows, the king's bench 
 will prevent all sorts of encroachments. As 
 if an executor be sued in the ecclesiastical 
 ■courts to malie distribution, he not being 
 residuary legatee; though that were allowed 
 by the canon law, yet the king's bench would 
 grant a prohibition to stay any such suit; 
 for all suits for distribution were prohibited 
 tty the king's bench, until the 22 & 23 Car. 
 II. c. 10, made them lawful. Dr. Waller has 
 not quoted any canon law, that the ordinary 
 in such case ought to take caution; and the 
 common law will not permit him, to exact 
 seciu-ity, for the insolvency of the executor. 
 For suppose in this case (as the fact is) the 
 executor wiU not give security, and yet will 
 not renounce the executorship; the ordinary 
 cannot compel him to give security. What 
 must be done? Though a refusal of the oath 
 amounts to a refusal of the office of executor 
 (because the oath Is allowed by the common 
 law, for it is proper to take a promissory 
 oath, that he will execute the office justly, 
 which he is going to execute) yet the refusal 
 to give security will not amount to a refusal 
 •of the office of executor; because it is against 
 common right, to require collateral security. 
 Then the testament wiU continue in force, 
 the ordinary cannot grant administration 
 cum testamento annexo, and so there will be 
 a failure of justice, no body being capable 
 to sue the testator's creditors. One lialf of 
 wliat one finds in Lyndwood is not the law 
 of the land. And as to the case of religious 
 ])ersons, objected out of Lyndwood, he said, 
 that if a monk be made an executor, he can- 
 426 
 
 not accept the office without leave of his 
 superior; and then if the supei'ior gives him 
 leave to be executor, without giving other 
 collateral security, the superior by his leave 
 given is become security; and if the monk 
 commits a devastavit, the suit shall be 
 against the abbot and the monk, and the 
 execution will be of the goods of the 
 house. And TURTON, .T., agreed with 
 HOLT, 0. J., in omnibus. But ROKBBY, .1., 
 seemed to be of opinion, that the grievance 
 in the present case would be properly rem- 
 edied by appeal. And he said, that in the prov- 
 ince of York security was always given upon 
 the granting of the probate of a will, witli- 
 out any dispute made about it. Upon which 
 a day was given to Dr. Waller, to certify 
 the king's bench, by producing precedents, 
 whether the practice had been in the pre- 
 rogative court to take caution in such case. 
 At which day no precedent of it being 
 shewn, nor satisfaction thereof given to the 
 court; HOLT, C. J., with the concurrence 
 of the other judges pronounced the opin- 
 ion of the court, that a peremptory man- 
 damus ought to be granted in this case; be- 
 cause the ecclesiastical court cannot require 
 caution in this case. 1. For when a man is 
 made executor, no body can add qualifica- 
 tions to him, other than those which the tes- 
 tator has imposed; but he shall be who, and 
 in what manner, the testator shall judge 
 proper. 2. The executor has a temporal 
 right, of which he is barred by the refusal of 
 the probate, inasmuch as he cannot before 
 probate sue in Westminster-hall. 3. There 
 are no precedents in the canon law, to war- 
 rant this; and the practice has been always 
 contrary. And if any cases happen, in 
 which equity may be requisite; there is an^ 
 other channel here, where It runs, without re- 
 sorting to the spiritual court, viz. chancery. 
 A peremptory mandamus was granted. And 
 note, Mr. Robert Eyre told me, that the Lord 
 Chancellor Som?rs well approved this reso- 
 lution. 
 
5 106) 
 
 1^ KE GOODS OF KYUEK. 
 
 Case No. 146 
 
 In re GOODS OF RYDER. 
 
 (2 Swab. & Tr. 127.) 
 
 Court of Tiobate. Jan. 23 and 30, 1861. 
 
 In this case Anne Hill Ryder made her will 
 on the 23rd of September, 1856, partly writ- 
 ten and partly printed; the formal appoint- 
 ment of executor towards the beginning of 
 the paper was left in blanl^; and at the end 
 was written: "I must beg Kdmund S. P. 
 Calvert, Esq., to appoint some one to see this 
 ray win executed." 
 
 Lnder tlie circumstances of the dou«ised's 
 
 family and property, it was convenient that 
 Mr. Calvert should act as executor, and an 
 appointment of liini by himself as executor 
 was filed in the rogistry. 
 
 Dr. Swabey, for the motion. 
 
 SIR C. CRESSWELL. Let the motion 
 stand over, and see whether you can find 
 any authority or support from the practice 
 in chancery in analogous matters, e. g. ap- 
 pointment of trustees. ♦ * * 
 
 I think the gi-ant may go to Mr. Calvert as 
 prayed. 
 
 427 
 
Case No. 147 
 
 MOOR V. BARHAM. 
 
 (§ 108 
 
 MOOR V. BARHAM. 
 
 (Cited 1 P. Wms. 53.) 
 
 See the Case of Moor and Barham, 13 May, 
 1723, at the rolls. One died intestate, leav- 
 ing a grandfather by the father's side, and 
 a grandmother by the mother's side, his next 
 of kin; these (grandfather and grandmother) 
 shall take in equal moieties by the statute 
 
 42S 
 
 of distribution, as being in equal degree; for 
 tho' the grandfather by the father's side, 
 may, in some respects, be more worthy of 
 blood, yet here dignity of blood is not mate- 
 rial; in regard the brother of the half blood 
 shall take equally with the brother of the 
 whole blood; and the master of the rolls 
 (Sir Joseph JekyU) was so clear as to this 
 point, that he would not suffer it to be de- 
 bated. 
 
§ 108) 
 
 I 
 
 CROOKE V. WATT. 
 
 Case No. 148 
 
 CROOKE et ux. v. WATT. 
 (2 Veru. 124.) 
 High Court of Chancery. Dec. Term, 1690. 
 The single point was, whether the sister of 
 the half tolood, should come in with the broth- 
 er and sister of the whole blood, for an equal 
 share of the Intestate's estate, or whether the 
 half blood should have only half a share, or 
 should be wholly excluded. 
 
 The Attorney General, and Mr. Serjeant 
 Ijevinz, for defendant. 
 
 Per LORD MAYNARD. There is no doubt, 
 but the half blood is capable of having the 
 administration; even an alien of the half 
 blood is capable, and cited Hinks' Case, 11 
 Vin. Abr. 95, C o. who, he said, died a martyr 
 tor the common law, because in the court of 
 wards, he would not swear a lease for one 
 thousand years to be a fee simple, and cited 
 the case in Dyer, where administration was 
 granted to the residuary legatees, for that 
 iidminlstration is in respect of interest: and 
 
 said, that the words in the statute for distri- 
 butiou pro suo cuique jure, accoi'ding to law, 
 cannot be interpreted as to former laws; for 
 then there were no former laws in being, and 
 so must be intended according to the common 
 law. And it was observed that in Scot- 
 land, they give but half a share to the half 
 blood: and they hold there, that distribution 
 ought to be, not so much according to the 
 order of nature, but according to the will of 
 the owner. And it could not be presumed, 
 that a man had as great a kindness for those 
 of the half blood, as he had for those of the 
 whole blood. 
 
 The com't, after long debate, said, this case 
 had been so often adjudged and settled here, 
 that the half blood should have an equal share 
 with the whole blood, that to give a new 
 rule in it now, would make great confusion 
 and disturbance in very many families, etc., 
 and therefore thought fit to decree it, as it 
 had been, to wit, a whole share to the half ^ 
 blood, and an accoimt to be taken accord- 
 ingly. 
 
 429 
 
Case Xo. 149 
 
 EAKL or WARWICIf v. GREVILLE. 
 
 (§ los 
 
 EARL OF WARWICK v. GREVILLB. 
 (1 Phillim. Ecc. 123.) 
 1809. 
 SIR JOHN NICHOLL. The question in 
 the present case arises upon the grant Of an 
 aclministration to the goods of the Right 
 Hon Charles GrevlUe who has died intestate. 
 The deceased left two brothers, one sister, 
 and a nephew the son of a deceased sister; 
 the property must be distributed amongst 
 the four; and there are three persons to 
 whom administration may be granted: 
 
 The earl of Warwick, the elder brother, 
 prays that it may be granted solely to him- 
 self, or to himself jointly with his brother 
 Mr. Robert GrevlUe: The younger brother 
 Mr. Robert GrevlUe prays that it may be 
 gi-anted solely to himself, and he is support- 
 ed in this prayer by the nephew Mr. Church- 
 iU, who is entitled to an equal distributive 
 share of the property: the sister Lady Fran- 
 ces Harpm- prays fli'st that it may be solely 
 to her brother Robert, then solely to Lord 
 Warwick, or jointly to him and her brother 
 Robert, and lastly solely to herself, or joint- 
 ly to herself and the elder or both brothers. 
 The statement is rather complicated, but 
 the result of it is that there is a moiety of 
 the interests concerned praying the sole ad- 
 ministration for Mr. Robert GrevlUe; a quar- 
 ter of the interests praying the sole adminis- 
 tration to Lord Warwick; a quarter praying 
 the sole administration to Lady Prances 
 Harpur; a quarter the joint administration 
 to the two brothers; a quarter a joint ad- 
 ministration to the elder brother and the 
 sister, or to both the brothers and the sister, 
 for Lord Warwick unites in praying that it 
 may not be jointly to himself and his sister. 
 The statute leaves it to the ordinary to 
 grant letters of administration to the next of 
 kin; all here have an equal interest; all 
 except the nephew stand in an equal degree 
 of relationship; none have a legal prefer- 
 ence; the selection rests with the discre- 
 tion of the com-t; that discretion however is 
 not to be arbitrarily or capriciously assumed, 
 but to be a legal discretion governed by 
 principle and sanctioned by practice; in ex- 
 ercising it the court is not to be guided by 
 the wishes or feeUngs of parties, but is to 
 loolc to the benefit of the estate and to that 
 of all the persons interested in the distribu- 
 tion of the property. The first duty of the 
 court then is to place it in the hands of that 
 person who is likely best to convert it to the 
 advantage of those who have claims, either 
 in paying the creditors, or in making distri- 
 bution; the primary object is the interest of 
 the property. 
 
 The claim of Lord Warwick to the sole ad- 
 ministration rests merely on the circum- 
 stance of his being the elder brother; none 
 of the other parties interested support that 
 application; Lady Frances did execute a 
 proxy praying that it might be either solely 
 430 
 
 to herself or jointly or solely to her brother,, 
 but she has since reti-acted that, and her 
 last proxy is that it may be solely to her- 
 self or jointly with him or to both her broth- 
 ers. 
 
 Primogeniture gives no right; if things 
 are precisely equal, if the scale is exactly 
 poised, being the elder brother would incline 
 the balance, but it would not weigh against 
 the wish of the majority of Interests. In 
 the present case there are two interests out 
 of the four praying that the sole administra- 
 tion may be granted to the younger brother, 
 and against that majority the claim of primo- 
 genitm-e could not stand; this would give a 
 decided preference if nothing else did to tht- 
 younger brother. 
 
 But it has been said there is not a majori- 
 ty of interests this way inasmuch as there is 
 an equal number of interests praying for a 
 joint administration; this is not correctly the 
 fact; no two parties have joined in praying 
 for a joint administration. Lord Warwick 
 does not pray to be joined with his sister; 
 the other brother does not pray to be joined 
 with Lord Warwick or the sister; it is Lady 
 Prances only who prays to be joined either 
 with Lord Warwick or with both the broth- 
 ers. 
 
 Assuming however that Lord Warwick and 
 his sister did unite in praying for a joint ad- 
 ministi-ation, the interests Indeed would be 
 even, but it would be an application for a 
 joint opposed to an application for a sole ad- 
 ministration. It has been correctly stated 
 that the court never forces a joint adminis- 
 tration, because if the administrators were 
 at variance it almost put an end to the ad- 
 ministration. Further, the court prefers 
 ceteris paribus a sole to a joint administra- 
 tion, because it is infinitely better for the 
 estate; administrators must join and be join- 
 ed in every act, which would not only be in- 
 convenient to themselves, but what is of 
 more consequence must be inconvenient to 
 those who have demands on the estate either 
 as creditors, or as entitled in distribution. 
 
 Supposing then there was in the present 
 case an equality of interests, and that the 
 court had to choose between a sole and joint 
 administration, still the sole, aU other circum- 
 stances being equal, would be entitled to the 
 preference; here are also considerable cred- 
 itors who support the application for the ad- 
 ministration being granted to Mr. Robert 
 GrevlUe. I collect that there is some doubt 
 whether the estate may be solvent or not 
 much more than solvent; it may be of con- 
 siderable importance that the affairs should 
 be managed in the most speedy and advan- 
 tageous manner; the wishes of the creditors 
 are not in all cases of weight, but they are 
 entitled to consideration where the estate is 
 considerable, the demands heavy, and the- 
 solvency in the slightest degree doubtful. 
 
 These considerations are sufficient where a 
 moiety of the interests supported by consid- 
 
§ 108) 
 
 EAU]. OF WAUWIOK v. UKEVILLE. 
 
 Case ^'o. 14y 
 
 erable creditors joiu in praying the sole ad- 
 ministration to be granted to one of the 
 brothers to whose fitness not the slightest 
 objection has been raised; there are other 
 considerations which it is not necessary to 
 enter upon except so far as to state that they 
 tend to the same conclusion; there are i-ea- 
 sons however for not unnecessarily discuss- 
 ing them. I wish however distinctly to 
 
 state that the court in feeling itself called' 
 upon in the discharge of its judicial duty to 
 grant the administration to Mr. Robert Gre- 
 ville is not governed by any circumstances 
 which reflect in the slightest degree on the- 
 honour and character of the noble earl whO' 
 is the other party to this suit 
 
 Administration decreed to Mr. Robert Gre- 
 viUe. 
 
 48-11 
 
Case Xo. 150 
 
 BJ.ACKBOKOUGH e. DAVIS. 
 
 (§§ 95. 108 
 
 BLACKBOROUGH v. DAVIS. 
 (1 P. Wms. 41.) 
 
 Daubesny Bentney, being possessed of a 
 considerable personal estate, died intestate, 
 leaving a grandmother and an aunt his next 
 of kin; the spiritual court granted adminis- 
 tration to the grandmother; upon which mo- 
 tion was made to the court of king's bench 
 for a mandamus to the spiritual court, com- 
 manding them to grant administration to 
 the aunt, as more near of kin than the grand- 
 mother. 
 
 And for the mandamus it was urged, that 
 the aunt was nearer of blood than the grand- 
 mother, and as such entitled to the prefer- 
 ence, by virtue of the statute of 21 Hen. 
 VIII. c. 5. That the ordinary had no author- 
 ity to grant administration contrary to the 
 statute; and that having granted it tortious- 
 ly, he ought to rectify It. 
 
 They admitted, that before the statute of 
 Bdw. III. the ordinary was not compelled 
 to grant administi-ation to the next of kin, 
 and that the administrator was at that time 
 only as a servant to the ordinary; but by 
 the 31 Edw. III. c. 11, the ordinary was 
 obliged to commit administration to the 
 nearest and most loyal friends of the intes- 
 tate; yet the 21 Hen. VIII. c. 5, gave the 
 ordinary an election to grant administration 
 to the next of kin, or any in equal degree; 
 but it was said, if the next of kin, at the 
 time of the death of the intestate, were dis- 
 abled by attainder, &c. and afterwards the 
 disability should be removed, the ordinary 
 ought to grant administration to him; but in 
 case administration had been before gi'anted, 
 and pending the disability, it was made a 
 question In Offley v. Best, 1 Sid. 371, wheth- 
 er such grant of administration ought not to 
 be repealed, before the next of kin should 
 obtain a grant of it? In regard the interest 
 was vested; (1) but that the difference was, 
 where the administration was granted to the 
 next of blood, and where to a sti-anger: In 
 the last case, the new administration ought 
 to be granted without any formal repealing 
 of the first, the very act of granting the new 
 administi-ation amounting to a repeal. 1 
 And. 303; Owen, 50; Cro. Eliz. 460. For 
 that the ordinary had never in this case ex- 
 ecuted his authority. And therefore, though 
 in Packman's Case, 6 Coke, 18b, it was done 
 upon a citation, yet it did not follow that 
 it could not have been done without it; of 
 wliich opinion was Popham, in Cro. Eliz. 
 -too. And if the ordinary might do it with- 
 out a citation, the court of- king's bench 
 would oblige him, and the rather, after he 
 had (as in the principal case) granted It con- 
 trary to the statute; but probably the man- 
 damus would not confine him to any partic- 
 ular manner of doing it; for which reason it 
 might be done by citation, if -that were mere 
 proper: besides, the administration might 
 have been granted in time of vacation be. 
 432 
 
 fore application could be made for a man- 
 damus. 
 
 Broderick and Serjeant Darnell, for the 
 mandamus. Sir Bartholemew Shower and 
 Cheshire, contra. 
 
 Per HOLT, C. J. In the vacation time 
 one may resort to the chancery, and upon a 
 suggestion that the spiritual court has pro- 
 ceeded to grant administration to a wrong 
 person, may have a prohibition out of that 
 court retiu-nable into B. K. or C. B. 
 
 The authorities that have been cited, are 
 grounded upon a reason that is not law; for 
 the administrator, at this time, is not a serv- 
 ant to the ordinary, but has as fixed an in- 
 terest as an executor, who is appointed by 
 the party himself; and though the ordinary be 
 by the statute of 21 Hen. VIII. c. 5, resti-alned 
 to grant administration to the next of blood, 
 yet he Is not so restrained, as to make an 
 administration granted by him, though con- 
 trary to the statute, a meer nullity; for If 
 such administration were void, then all dis- 
 positions of the goods of the intestate, pend- 
 ing the said administration, and before the 
 repeal of it, would be void also; and after 
 it was repealed, trover would lie for these 
 goods, which cannot be. 
 
 Thus if an administration committed to a 
 creditor, be afterwards repealed at the suit 
 of the next of kin, the creditor shall retain 
 against the rightful administrator; and aU 
 dispositions of goods made by him pending 
 the citation shall stand; for this is not like 
 the case of an administration granted by a 
 bishop of an inferior diocese, where the in- 
 testate had bona notabilia in divers dioceses, 
 because there such administration is abso- 
 lutely void. It shall be a good return to the 
 mandamus, that administration is already 
 committed, and that there Is no lis pendens. 
 Not that I would be understood to intimate 
 hereby, that in caSe there had been a cita- 
 tion pending, I should have been for grant- 
 ing a mandamus; but without question, be- 
 fore this the motion is made too soon. 
 
 In the case of Sir George Sands, the ad- 
 ministration granted to the brother, who 
 continued to administer some time, after- 
 wards, one pretending to be the wife of the 
 intestate, commenced a suit in the spiritual 
 court to repeal the administration committed 
 to the brother. Insisting, that it ought to be 
 committed to the wife; and the brother ap- 
 plied here for a prohibition, because the or- 
 dinary had a power to grant it either to the 
 wife, or next of kin; and it was held, that 
 the ordinary could not repeal the adminis- 
 tration granted to the brother, for that he 
 had executed his authority. 
 
 There was the case of Duncomb v. Mason, 
 1 Ld. Raym. 685, where a feme covert died 
 intestate, having debts due to her, (which 
 the law does not give to the husband;) and 
 administration being granted to the next of 
 blood, the baron sued in the spiritual court 
 
§§ 95, 108) 
 
 BLACKBOROUGH v. DAYIS. 
 
 Case No. 150 
 
 to repeal this administi-ation, and after pro- 
 liibition and declaration thereupon, the ques- 
 tion was, whether the husband should repeal 
 this administration? 
 
 And resolved he should: on the other side 
 the case of Sir George Sands was objected, 
 but the court were of opinion, this case was 
 not at all affected by that of Sir George 
 Sands, for that the husband had an original 
 right by the 31 Edw. III. c. 11, as the most 
 loyal friend of the wife, and was not within 
 21 Hen. VIII. c. 5, so that the ordinary had 
 not an election in case of the husband. 
 
 It was also held, that the grandmother 
 was, at least, as near of kin as the aunt; for 
 in the case of a descent of lands, it would 
 be a mediate descent, and the medium to 
 both was the father; and it was enough to 
 say brother and heir, or sister and heir, 
 which was the great reason in the case of 
 CoUingwood v. Pace, 1 Vent. 413, and the 
 grandmother seemed to have the advantage, 
 she being of the right line, and the aunt of 
 the collateral; wherefore for these reasons 
 a mandamus was denied. 
 
 HOLT, O. J. If the ecclesiastical judge 
 act contrary to law, may not this court oblige 
 him to pursue the law? Is there any differ- 
 ecce betwixt granting a prohibition to stop 
 them from going wrong, and a mandamus 
 to guide them right? 
 
 A prohibition was granted upon this stat- 
 ute inter Smith and Tracy, 1 Vent. 307, 316, 
 323, and the consultation awarded after- 
 wards, was not because the prohibition did 
 not regularly lie, but for that the ecclesias- 
 tical com-t proceeded and determined right; 
 and as to appealing, if the constant opinion 
 of the civilians be against the rule of law, 
 it is then in vain to put the party to his ap- 
 peal; as was resolved in the case of Shotter 
 V. Friend, 2 Salk. 547, Garth. 142, where they 
 would not admit of proof of payment of a 
 legacy by one witness. 
 
 HOLT, C. J. If a child had died uitestate 
 without wife, child, or father, living only 
 the mother, the mother had the whole till 
 1 Jac. II., exclusive of the brothers and sis- 
 ters; and there must be the same law now, 
 as to the grandmother with relation to the 
 aunts; the father surviving has the child's 
 whole estate at this day. 
 
 HOLT, C. J. Before the statute of Edw. 
 III. the ordinary having the power of distri- 
 bution, used to dispose of part among the 
 relations, and the other part to charities; but 
 that statute took away such right from the 
 ordinary, and fixed the title to the personal 
 estate in the administrator. And before the 22 
 & 23 Car. II. the ordinary could not compel 
 the administrator to make distribution, but 
 was from time to time prohibited. I would 
 fain know how it comes to pass, that the 
 spiritual court have not pursued the ancient 
 ABB. WILLS — 28 
 
 civil law, but have varied that by the nov- 
 els? 
 
 CHIEF JUSTICE: The statute of 1 Jac. 
 II. allowed the proceeding of the spiritual 
 coin-t to be right, as the law then stood, but 
 thought it unreasonable that the mother, (who 
 might marry again) should carry away all; 
 and therefore the parliament let in the in- 
 testate's brothers and sisters equally with 
 the mother; but still the father has all. If the 
 spiritual court, since the statute of Oar. II, 
 shall attempt a distribution, contrary to the 
 rules of the common law, we will prohibit 
 them; for by that statute, they are restrain- 
 ed to the rules allowed among us. 
 
 Afterwards, in Hill, term following, it was 
 resolved per tot. cur. that a mandamus 
 should not be granted, and HOLT, C. J., de- 
 livered the reasons: 
 
 The laws of England, and not any foreign 
 laws, ought to govern this case. It must be ob- 
 served, that by the ancient laws here, both 
 before and at the conquest, aU the descend- 
 ants, sons and daughters in general, did in- 
 herit as well the real as personal estate of 
 the ancestor equally, and in a like propor- 
 tion; and so it appears in Selden's Eadme- 
 rus 184. Lambard's Sax. Laws, 36, fo. 167. 
 "Si quis intestatus obierit, liberi ejus hae- 
 reditatem equaliter dividant," &c. But in 
 process of time new laws were introduced; 
 and the change seems to have begun tem- 
 pore Henrici primi, when the females, in 
 case there were males, were excluded from 
 the inheritance of the real estate; but the 
 males inherited equally aU the socage lands. 
 Glanv. lib. 7, c. 3. But at that time, if a 
 child died without issue, the land went to 
 the father or mother, in preference to any 
 of the collateral line; as you may see in 
 Lambard 202, 203, inter leges Henrici primi, 
 c. 70. "Si quis sine liberis decesserit, pater, 
 aut mater ejus in haereditatem succedat, vel 
 f rater & soror, si pater & mater desint; si 
 nee hos habeat, soror patris vel matris, & 
 deinceps qui propinqviiores in parentela fue- 
 rint, & dum virilis sexus extiterit, & haered- 
 itas' abinde sit, foemina non haereditet." 
 And this law is cited by Lord Coke in his 
 comment on Littleton, fo. 11, where he says, 
 he never read an opinion in any book old 
 or new, (Lambard was not then pubUshed) 
 against the maxim, that inheritances cannot 
 lineally ascend; but only in libro Kub. c. 70, 
 which record in the exchequer is notwith- 
 standing of great authority even at this day. 
 But this law of succession did not continue 
 long, being altered betwixt the times of H. 
 I. and H. IL, when the father and mother 
 were excluded, and the inheritance carried 
 over to the collateral line, as appears by 
 Glanv. lib. 7, cc. 1-4. 
 
 However, this alteration of the descent 
 was made only as to the real estate, and did 
 not extend to the personal estate; for as 
 to that, the father and mother had always 
 the preference before the brothers and sis- 
 
 433 
 
Case No. 150 
 
 BLACKBOHOUGH v. DAVIS. 
 
 (§§ 95, lOS- 
 
 ters, which is a plain demonsti-ation that 
 they were esteemed nearer of kin. Vide 1 
 Vent. 414. And then, by the lllse reason, the 
 grandmother must be preferred before the 
 aunt. 
 
 I admit, that new laws were inti'odueed in 
 the latter end of Justinian's reign, but they 
 were such as had been in ancient practice 
 in the praetorian com-t, (viz.) the brothers 
 and sisters were let in to share witli the 
 father and mother; but all other collater- 
 als more remote were excluded; and the 
 grandfather and grandmother were preferred 
 before the uncles and aunts. It appears from 
 Ridley's view of the civil law, (page 63,) 
 that the grandmother, &c., of the ascending 
 line, to the utmost degree, was anciently 
 preferred before the nearest collaterals; but 
 that may now be altered by the statute of 
 Car. II. which prefers the next of kin, though 
 the collateral, before one though lineal, that 
 is more remote. 
 
 But in our case, the grandmother is nearer 
 of kin to the Intestate than the aunt; for 
 the aunt is not of kin to the intestate, but as 
 she derives her kindred from the grandmoth- 
 er her mother, and therefore not in equal 
 degree; besides, where one is lineal and the 
 cause of the kin, and the other collateral, the 
 person who is lineal shall be preferred; here 
 the grandmother is the root of the kindred, 
 and so must be nearer than they that de- 
 rive their relation from her. 
 
 This rule of succession in the ascending 
 line is agreeable to the laws of other nations; 
 434 
 
 for by the constant practice of the Jewish 
 nation, for want of issue of the son, the 
 father succeeded to the purchase of the son, 
 excluding the brother, according to the con- 
 struction of the Jewish doctors upon the 
 xxviith chapter of Numbers. As you find it Im 
 Selden, De Successionibus apud Hebraeos, c. 
 12. And indeed by all laws, (excepting that 
 of Justinian,) the father was preferred to 
 the brother; but our case falls not within 
 the reason of Justinian's law; tho' if it did, 
 the ciyl law obliges us here, only as it has 
 been anciently received, and it could not 
 have been received tempore Henrici primi, 
 who lived about the year of our Lord 1100; 
 for that the works of Justinian were first 
 published about Anno Dom. 560, and were 
 practiced about forty years; after which 
 they were totally neglected in the empire for 
 500 years, and new laws were set up by the- 
 emperor Basilius, which were followed till 
 the taking of Constantinople, Anno 1453, and 
 till the year 1125 (which was the 25 H. I.) 
 the laws of Justinian were not again heard 
 of: but about that time were found by Lo- 
 thar at the taking of Amalfi, and were pub- 
 lished at the university of Bologna; as ap- 
 pears by Mr. Selden's notes on Fortescue, cc. 
 18, 19. Selden of tithes, 490, and also in a 
 treatise de usu & authoritate juris civilis 
 Romanorum, by Dr. Duck, who was reputed! 
 to be an eminent and learned civilian. 
 So per tot. cur. a mandamus was denied. 
 
 NOTE. But children of intestate are pre^ 
 ferred to parents. 2 Bl. Comm. 504. 
 
§ 103) 
 
 BROWK V. WOOD. 
 
 Case No. 151 
 
 BROWN V. WOOD. 
 
 (Aleyn, 36 ;_ Style, 74.) 
 
 Hil. 23 Car. Banco Regis. 
 
 Administration was granted to the sister of 
 the half blood of the intestate and her hus- 
 band, by the prerogative court, and the 
 brother of the whole blood sued there to 
 have the letters repealed; and upon motion 
 for a prohibition, upon this sugg^tion it was 
 agreed by the com-t, that the sister of the 
 half blood is in equal degree of kindred 
 with the brother of the whole blood, within 
 the statute. And so was it resolved, 1 Car. 
 between Glascock and Wingate, known by 
 the name of Justice Yelverton's Man's Case. 
 
 And if the ordinary hath once executed his 
 power according to the statute, he cannot 
 repeal the letters upon a citation; but it was 
 resolved, that the statute was not observed in 
 the grant of the letters in this case, because 
 the husband, who is not of kin to the intes- 
 tate, is joyned with the wife; and if she 
 should die before him, he should continue 
 administration against the meaning of the 
 statute. And for this cause a prohibition 
 was denied; but it was said, that if it had 
 been gi'anted to them only during the cov- 
 erture, perhaps it might have been good, 
 because the husband might have adminis- 
 tered during the coverture, though it had 
 been granted to the wife only. 
 
 4:!.-. 
 
Case Ko. 152 
 
 CHITTENDEN v. KNIGHT. 
 
 (§ 103 
 
 CHITTENDEN v. KNIGHT. 
 
 (2 Lee, Ecc. 559.) 
 
 Margaret Chittenden died intestate; her 
 son, John Chittenden, and her daughter, 
 Juliana Knight, the wife of William Knight, 
 both prayed administration. Knight, to di- 
 vest the son, J. Chittenden, of the preference 
 
 436 
 
 which by the practice of the court he has, 
 exhibited an affidavit that the next day 
 after deceased's bui-ial, he took possession 
 of deceased's effects, had an inventory made 
 of them, and delivered them without any 
 authority to a broker, who sold them to thPi 
 best bidder at a public auction. 
 I decreed administration to the son. 
 
§109) 
 
 PAWTKY V. TAWTRY, 
 
 Case No. 153 
 
 FAWTRY v. FAWTRY. 
 
 (1 Salk. 36.) 
 
 (King's Bench. Michaelmas Term, 3 W. & M.) 
 
 H. died intestate, leaving a wife and a 
 brother: The ordinary had granted the ad- 
 ministration of some particular debts to the 
 brother, and of the residue to the wife. Et 
 per Ward, the court was moved for a man- 
 damus to grant administration to the wife. 
 Sed per Cur. T\Tiere the husband dies, the 
 ordinary is at election either to grant ad- 
 ninistration to the wife or next a-kin; for 
 this is grounded on the 21 Hen. VIII. c. 5. 
 
 Yet in that case she shall have her share 
 on the statute of distributions. But where 
 the wife dies, administration must be grant- 
 ed to the husband by 31 Edw. III. Also the 
 court held, the ordinary may grant adminis- 
 tration. +0 the brother quoad part, and to the 
 wife for the rest; in which case neither can 
 complain, since the ordinary need not have 
 granted any part of the administration to 
 the party complaining. But if the intestate 
 leave a bond of £100 the ordinary cannot 
 grant administration for £50 to one person, 
 and £50 to another, because this is an entire 
 thing, "annua nee debitum, judex non sep- 
 arat ipsum." 
 
 437 
 
Case No. 154 
 
 TUCKER V. WESTGARTII. 
 
 (§ iia 
 
 TUCKER T. WESTGARTH et al. 
 
 (2 Addams, Ecc. 352.) 
 
 Michaelmas Term, 1824. 
 
 This was a question between two claim- 
 ants, as to a gi'ant of administration not 
 within the statute, 21 Hen. VIII. c. 5. It 
 was determined by the court, as such ques- 
 tions usually will be, in favour of that claim- 
 ant, whose interest in the estate to be ad- 
 ministered proved to be greatest. 
 
 SIR JOHN NICHOLL. Thomas Atkinson, 
 the party deceased, died in the year j804, 
 having made his will, of which he appointed 
 his then wife, JMary Atkinson, executrix dur- 
 ing widowhood. By this will he bequeathed 
 the principal part of his property to his wid- 
 ow, for her life; and, after her death, to his 
 daughter, Isabella— and upon the death of 
 this last, without children, he bequeathed it 
 over to his nephews and nieces, the children 
 of his three sisters. The residue of the testa- 
 tor's property was uudispo.scd of by his will. 
 
 The widow took probate of the will, but 
 married again, leaving goods unadminister- 
 cd; and died. Her (second) husband is since 
 also dead— and Thomas Tucker, party in the 
 cause, is an executor in, and has taken pro- 
 bate of both their wills. He, Tucker, then, is 
 the representative of the widow's interest, 
 indeed, in the effects of Thomas Atkinson, 
 the first testator; but not of Thomas Atkin- 
 son, the first testator himself; of «-hose nu- 
 administered effects he now claims admin- 
 istration, with his will annexed. 
 
 The other claimants, and other parties in 
 the cause, are five persons, nephews and 
 
 43S 
 
 nieces of the testator, children of his three sis- 
 ters, and whose interest, as glibstituted lega- 
 tees in his will, has actually accrued by the 
 death of the daughter, Isabella, subsequent 
 to that of the mother, without issue. They 
 are also the daughter's first cousins, and next 
 of kin. 
 
 None of the claimants were next of kin 1o 
 the deceased at the time of his death. Con- 
 sequently, this administration, not being 
 within the statute, is one upon which the 
 court must exercise its own discretion. In 
 the exercise of which discretion, it generally 
 looks to which of the claimants has the great- 
 er interest, and decrees the administration 
 accordingly — thougn other considerations 
 may, undoubtedly, concur. 
 
 In the present case, upon every considera- 
 tion, the next of kin of the daughter, and not 
 the representative of the wife, have the su- 
 perior title to the administration. Tiey liave 
 a greater interest in the undisposed of resi- 
 due — they are substituted legatees in the will 
 —add to which, that the original testator 
 never intended his wife to continue his per- 
 sonal representative after a re-marriage; a 
 circumstance which throws some little addi- 
 tional weight into the scale. 
 
 I decree administration, as prayed, to the 
 next of kin of the daughter; but, as their atfi- 
 davits contain some imputations on the other 
 party, not founded ui)on any thing which ap- 
 pears in their "act," I think that, upon this 
 consideration only, they are not entitled In 
 full costs. Hence I shall condemn Mr. Tuck- 
 er in £10., nomine expensarum; and not in 
 full costs, as I should, otherwise, have done; 
 thinking his opposition to the present gi'ant, 
 utterly unfounded. 
 
§ 111) 
 
 COOPE V. LOWEUKE. 
 
 Case No. 155 
 
 COOPE V. LOWERRB. 
 (1 Barb. Ch. 45.) 
 'Chancery Court of New York. Aug. 25, 1845. 
 This was an appeal from a decision of 
 the suiTogato of the city and county of 
 New York, appointing the respondent ad- 
 ministrator of the estate of his deceased 
 father. The Intestate left three children sur- 
 viving him, or.e daughter, the wife of the 
 appellant, and two sons; the respondent, 
 and a younger son who was admitted to be 
 Incompetent. The appellant applied for let- 
 ters of administration, on the estate, in 
 Tight of his wife. And upon the return of 
 the citation, directed to the two sons, the 
 respondent appeared and claimed the admin- 
 istration for himself as being entitled to 
 a preference under the provisions of the 
 revised statutes. The appellant resisted his 
 claim, on Lhe ground that lie was disquali- 
 fied on account of his vices and his improvi- 
 dence. Much testimony was taken for the 
 purpose of showing that the respondent 
 ■had been guilty of various offences, and that 
 he was totally unworthy of the trust, on 
 account of his Imputed vices. But the 
 principal evidence to show he was improvi- 
 dent arose from his own examination, upon 
 an application for a discharge from his 
 debts under the insolvent act. The siuto- 
 gate decided that there was not sufficient 
 evidence to show the respondent was im- 
 provident; and that as he had not been 
 convicted of an infamous crime, he was 
 entitled to administer upon the estate in 
 preference to the husband of his sister. 
 
 Edward Sandford, for appellant. Horace 
 F. Clark, for respondent. 
 
 THE CHANCELLOR. The Revised Stat- 
 utes provide that administration, in case of 
 intestacy, shall be granted to the relatives 
 of the deceased who would be entitled to his 
 personal estate, if they or any of them will 
 accept the same, in the order specified in 
 the statute. And I think the surrogate has 
 no discretion to exclude a person, declared 
 by the statute to be entitled to a preference, 
 except for the causes specified in the thirty 
 second section of th» title of the revised 
 statutes relative to granting letters testa- 
 mentary and of administration. 2 Rev. St. 
 75. That section provides that no letters 
 of administration shall be granted to a 
 person convicted of an infamous crime, 
 nor to any one Incapable by law of making 
 a contract, nor to a person who is not a 
 .t-itizen of the United States, unless he re- 
 sides in this state, nor to a minor, nor to 
 any one who shall be adjudged incompetent, 
 by the surrogate, to execute the duties of 
 :such trust by reason of drunkenness, im- 
 providence, or want of understanding, nor 
 to a married woman. But where a married 
 woman is entitled to administration the 
 same may be granted to her husband in 
 
 her right and behalf. No degree of legal 
 or moral guilt or delinquency, therefore, 
 is sufficient to exclude a person from the 
 administration, as the next of kin. In the 
 cases of preference given by the statute, 
 unless such person had been actually con- 
 victed of an infamous crime. And the con- 
 viction intended by the statute must be 
 upon an indictment, or other criminal pro- 
 ceeding. Where the sm-rogate, however, has 
 a discretion to select between two or more 
 individuals of the same class, he may very 
 properly take Into consideration moral fit- 
 ness in making such selection. Neither the 
 recovery upon the note alleged to have been 
 taken from the desk of the respondent's 
 father, nor the verdict In the suit for the 
 seduction of the wife of Ills neighbor, nor 
 even the decision of the jury upon his appli- 
 cation for a discharge under the insolvent 
 act, is sufficient to disqualify h»a to receive 
 the grant of administration upon his father's 
 estate. Nor is the verdict, in the first or 
 in the last of those cases, any evidence 
 whatever of that kind of improvidence 
 which the statute has declared a sufficient 
 cause of exclusion from the administration 
 of an estate. Tlie improvidence which the 
 framers of the revised statutes had in con- 
 templation, as a ground of exclusion, is 
 that want of care or foresight, in the man- 
 agement of property, which would be likely 
 to render the estate and effects of the intes- 
 tate unsafe, and liable to be lost or dimin- 
 ished in value by improvidence, in case ad- 
 ministration thereof should be committed to 
 such improvident person. The principle of 
 exclusion, in this part of the statute, is based 
 upon the well-known fact that a man who 
 is careless and improvident, or who is 
 wanting in ordinary care and forecast in tlie' 
 acquisition and preservation of property tcr 
 himself, cannot with safety be entrusted 
 with the management and preservation of 
 the property of others. 
 
 The fact that a man is dishonest, and 
 seeks to obtain the possession of the prop- 
 erty of others by theft, robbery, or fraud, is 
 not evidence either of his providence or of 
 his improvidence. For the dishonest man, 
 who preys upon the rights of others and 
 deprives them of their property by unlawful 
 means, may be, and frequently Is, not only 
 careless but perfectly reckless in squander- 
 ing the property which he has tlius acquired. 
 Or he may, on the other hand, preserve and 
 hoard up his ill gotten gains with all a 
 miser's care. Tlie evidence in this case 
 tending to show the respondent's dishonesty, 
 and that he has been guilty of divers offen- 
 ces against the laws of society, but which 
 could not throw any light ujKin the quesHon 
 of his providence or improvidence, should 
 therefore have been excluded by the surro- 
 gate. Upon the same principle, the record of 
 the large recovery against him in the crim. 
 con. case, was improperly received as evi- 
 
 480 
 
Case No 155 
 
 COOPE V. LOWERRE. 
 
 (§ 1" 
 
 dence before tlie surrogate as it did not 
 tlirow any light upon tlie question under 
 consideration tbere. For that record only 
 showed that, in a single case, the respondent 
 had been found guilty of the deep moral 
 offence of gratifying his criminal passions at 
 the expense of a very heavy draft upon his 
 purse. The case would have been very dif- 
 ferent if he had been guilty of frequent of- 
 fences of this sort, and at considerable ex- 
 pense of property, from time to time. For 
 that would have been evidence of great im- 
 providence, as well as of deep degradation 
 and guilt; and might have furnished reason- 
 able grounds for believing that he was an 
 unsafe and improper person to be entrusted 
 with the administration of his father's es- 
 tate. 
 
 The only real and legitimate evidence of 
 the respondent's improvidence, in the acqui- 
 sition and preservation of property, is that 
 derived from his own examination when he 
 was applying for the benefit of the insol- 
 vent act. And in reference to what he then 
 said, it does not lie in his mouth, or that of 
 his counsel, to say that the story he then 
 
 440 
 
 told, in relation to the loss of his property, 
 or as to the contracting of the debts which 
 were signed off by his supposed creditors, 
 was a mere fiction. For it must be recol- 
 lected he was examined upon oath, and that 
 a deviation from the truth, upon that ex- 
 amination, involved the legal as well as the 
 moral guilt of perjury. Taking what the 
 respondent there stated to be true, he cer- 
 tainly was grossly negligent in the manage- 
 ment of his property and affairs, and in the 
 contracting of debts, by endorsing for stran- 
 gers, or for men without visible means 'of 
 payment. But after all, I cannot bring my 
 mind to the conclusion that he is improvi- 
 dent to such a degree as to render him in- 
 competent to discharge the duty of an ad- 
 ministrator. 
 
 The decision of the surrogate must there- 
 fore be affirmed. But this being a new ques- 
 tion, imder the provisions of the revised 
 statutes, and the examination of the re- 
 spondent before the recorder furnishing 
 very considerable evidence of improvidence, 
 I do not think it is a proper case to charge 
 the appellant with costs upon this appeal. 
 
112) 
 
 LONG V. SYMES. 
 
 Case No. 156 
 
 LONG et al. v. SYJIES et al. 
 (3 Hagg. Ecc. 771.) 
 
 This was a proceeding by two legatees un- 
 der the will of John Feaver to compel the 
 executors to take probate, alleging that they 
 had intermeddled: and the question was, 
 whether they had so intermeddled as no 
 longer to be entitled to refuse. The facts of 
 the case as stated by the legatees were 
 these. 
 
 John Feaver died on the 17th Jvme 1829, 
 leaving a will dated on the 11th of June 
 1829, of which the defendants were the exec- 
 utors. On the 29th of July and on the 3rd 
 of August the following advertisement was 
 inserted in the Sherborne paper.— "All per- 
 sons who have any claim on the estate of 
 the late John Feaver of Horsington, in the 
 county of Somerset, deceased, are requested 
 to send their respective accounts and are 
 desired to pay all money due to the said es- 
 tate without delay to Mr. Symes of Combe 
 Farren in the county of Doreet, or to Mr. 
 Hannam of Darlihourbour, in the county of 
 of Somerset, his executors in trust." It was 
 alleged further, that Symes and Hannam ap- 
 plied to several persons for payment of their 
 debts, particularly that Symes applied to one 
 HiUiar, and on the 20th August received of 
 Allan £20, for which sum Symes and Han- 
 nam opened an account, as executors, with 
 a banking house, and which sum was after- 
 wards withdrawn by Symes. That Symes 
 and Hannam received and paid other mon- 
 eys; and on the 17th June 1831, signed an 
 authority to Melmoth, a solicitor who had 
 possession of the will, to deliver it up to an- 
 other solicitor, Newman. 
 
 In reply it was alleged that soon after the 
 deceased's death Symes informed the widow 
 and Feaver that he would not act; that on 
 the 4th of July 1831, he and Hannam re- 
 nounced by proxy, and steps were taken to 
 obtain administration for the widow and 
 George Feaver the residuary legatees; that 
 the advertisements were inserted because 
 the widow was receiving the debts; that 
 Symes applied for no debt but Allan's, 
 though he delivered small accounts to two 
 or three persons; that on the 20th of August 
 he received £21 of Allan for the widow, and 
 deposited that sum at the bankers to the 
 credit of the deceased; that on the 17th of 
 June be signed the order for the delivery of 
 the wUl, but afterwards 'countermanded it. 
 Hannam did not deny that the advertise- 
 ments were inserted with his privity, nor 
 that he signed the order on the 17th of June, 
 but he denied that he applied for or received 
 any debts. 
 
 Mr. Lushington, for the legatees. Mr. Ad- 
 dams, for Symes. Mr. Nicholl, for Hannam. 
 
 Judgment. 
 
 Sir JOHN NICHOLL. [After stating the 
 substance of the act on petition on either 
 
 side.] The question then is, whether there 
 has been such intermeddling as to render the 
 executors compellable to take probate? 
 There is no doubt on the law that if a per- 
 son named executor intermeddles, he cannot 
 afterwards refuse to take probate; and if 
 not named executor, he becomes so de son 
 tort. There are certain acts of necessity, 
 such as feeding the deceased's cattle and the 
 like which do not bind a party; and if a par- 
 ty even has shown himself willing to take 
 upon himself the execution of a will, he may, 
 in aid of justice, be dismissed by the court, 
 in order to become a witness; but otherwise 
 slight circumstances are obligatory and suffi- 
 cient to compel a person to take probate it 
 really executor, or to render him executor de 
 son tort, if not really executor. Swinburne 
 in several passages lays down the obligation, 
 and says (part 6, § 22). "he must beware not 
 to administer the effects as executor." He 
 is compellable "when he does those acts 
 which are proper to an executor." "The 
 most safe course is not to meddle at all, but 
 utterly to abstain:" "the refusal cannot be 
 by word only, it must be entered and record- 
 ed in court." 
 
 This doctrine is laid down no less strongly 
 in several books of common law. In Bac. 
 Abr. tit. "Executors," E 10, (also KoUe, Abr. 
 917,) it is said, "Wliat acts amount to an ad- 
 ministration, so that a party cannot after- 
 wards refuse." "1st, Whatever an executor 
 does which shows an intention in him to 
 take upon him the executorship, will regu- 
 larly amount to an administration." "2d, 
 Whatever acts will make a man liable as an 
 executor de son tort, will be deemed an elec- 
 tion of the executorship." In Edwards v. 
 Harben, 2 Term E. .597, Mr. Justice BuUer 
 says: "He can be charged as executor, be- 
 cause any intermeddling in the testator's 
 effects makes him so; every intermeddling 
 after the death of the party makes the per- 
 son so intermeddling an executor de son 
 tort." If such acts will make a man execu- 
 te de son tort, a fortiori it will render an 
 executor compellable to take probate. 
 
 What then are the facts? Have the exec- 
 utors done anything that showed an inten- 
 tion on their part to take upon them the ex- 
 ecutorship? It is unnecessary to go one step 
 further than the advertisements; nothing 
 can be a more strong intermeddling than the 
 insertion of such an advertisement, and ex- 
 pressly in the character of executors. It 
 does not merely "show an intention to take 
 upon them the executorship," but it is an ab- 
 solute acceptance of the executorship. Xor 
 was this done by Symes alone, for Hannam 
 admits that it was done with his concur- 
 rence; that it was their joint act; and after 
 this concurrence the acts of Symes in a 
 great degree bind Hannam. 
 
 They subsequently make inquiries, and 
 they find that the executorship may turn out 
 a troublesome business, and then they give 
 
 441 
 
Case No. 166 
 
 LONG ». SYMES. 
 
 (§ 112 
 
 notice to the family that they will uot act; 
 the matter lies dormant till the fallowing 
 year, when in answer to an application by 
 letter they decline to undertake the office. 
 That was too late in time and in.sufflcient in 
 form — "the refusal must he recorded in 
 coiu't:" till that was done no person could 
 take administration. They should have de- 
 cided at once; ttiey might have delivered up 
 or brought in The will and given a proxy of 
 renunciation. As the authorities point out, 
 they should "beware" how they do slight 
 acts. I think they have not been cautious; 
 they should not have first acted and given 
 notice to the debtors to the estate, and aft- 
 erwards leave the substituted residuary leg- 
 atees without that protection for their lega- 
 cies which the testator intended. For two 
 442 
 
 years and a half they have left this estate, 
 though small, without a representative or 
 any person even to collect the debts. 
 
 I am of opinion that the executors have so 
 far intermeddled as to be compellable to 
 take probate, and that their resistance sub- 
 jects them personally to costs, which cer- 
 tainly ought not to be paid out of the estate 
 without the consent of the residuary legatee 
 and substituted residuary legatee; nor till 
 after the legacies which have been put in 
 jeopardy by the conduct of these parties 
 have been discharged. 
 
 The court condemned the executors per- 
 sonally in costs, and assigned them to ex- 
 tract probate before the by-day. 
 
 NOTE. See, also, M'Donnell v. Prendergast, 
 3 Hagg. Ecc. 212. 
 
§ 112) 
 
 IN KE GOODS OF PEERY. 
 
 Case No. 157 
 
 In re GOODS OF I'ERllY. 
 
 (2 Curt. Ecc. Goo.) 
 
 Prerogative Court of Canterbuiy. 1840. 
 
 This was an application on belialf of the 
 
 executor of an executor, to be allowed to 
 
 renounce the probate of the will of the first 
 
 testator, before takius probate of the will 
 
 of the second testator. According to the 
 
 ordinary practice of tlie office, the executor 
 
 of an executor becomes, on taliing probate of 
 
 his will, the executor of the first testator. 
 
 NichoU, in support of the motion, sub- 
 mitted that, in principle, there covild be no 
 objection to such renunciation, although it 
 might be contrar.y to the practice. In Wil- 
 liams' Law of Executors ' it is laid down, 
 
 ' ATilliams, Ex'rs, (3d Ed.) 200. 
 
 that the executor of an executor may take 
 the administration of the efEects of the sec- 
 ond testator, and refuse that of the first. 
 The authorities referred to are Shep. Touch, 
 and Wankford v. Wankford, 1 Salk. 299. 
 
 SIR HERBERT JENNER. It has been 
 for many years the practice in this court, 
 that an executor, taking probate of the will 
 of an executor, becomes executor of the will 
 of the first testator, and is not permitted to 
 renounce probate of the first will, and talte 
 probate of the second. I am not aware of 
 any instance of departure from this rule, 
 and imless there be some clear principle or 
 authority, the geiK.'ral rule of practice must 
 be observed. 
 
 Motion rejected. 
 
 443 
 
Case No. 158 
 
 IN KE GARDINER'S ESTATE. 
 
 (§112 
 
 In re GARDINER'S ESTATE. 
 
 CASEY V. GARDINER. 
 
 (4 Bradf. Suit. 13.) 
 
 Surrogate's Court, New York County. April, 
 1856. 
 
 P. B. Sweeney, Public Administrator, In 
 pro. per. John McKeon, and A. L. Robert- 
 son, tor creditor. 
 
 BRADFORD, S. The ti-easurer of the 
 United States applied for letters of adminis- 
 tration of the estate of the intestate, on the 
 ground that at the time of his decease he 
 was largely indebted to the government, and 
 the entire amovmt of assets In this jm'isdic- 
 tion had been derived through a fraudulent 
 claim against the United States under a 
 treaty with Mexico. The next of kin were 
 cited, but failed to give the requisite se- 
 cm'lfy. The public administrator, at any 
 early stage of the case, renounced his right 
 to the administration, but he now intervenes 
 and asks to withdraw his renunciation. In 
 respect to executors, a retractation of re- 
 nunciation is not an unusual proceeding, 
 and according to the custom of the ecclesi- 
 astical courts, the renunciation may be with- 
 drawn at any time before the grant of ad- 
 ministration. Williams, Ex'rs, 232. I do 
 not observe that this is a privilege, but on 
 the contrary it seems to be, in the language 
 of one of the old decisions, "rather a matter 
 of right than discretionary." Notwithstand- 
 ing opposition be made, still if the retrac- 
 tation be interposed "before the grant, the 
 court must allow the retractation," although 
 444 
 
 under particular circumstances the costs of 
 the contestation may be paid out of the es- 
 tate. McDonnell v. Prendergast, 3 Hagg. 
 Ece. 212. Renunciation of the right to ad- 
 minister is entirely analogous, and may well 
 be guided by the same rule. There is an 
 anonymous case referred to in Harrison v. 
 Harrison, 4 Notes of Cas. 457, which at 
 the first blush might seem to enunciate a 
 different rule in respect to administration. 
 It was cited by the court for the purpose of 
 showing that where administration has pass- 
 ed the seal after renunciation, it is not a 
 matter of coui-se to allow the renunciation 
 to be retracted, but such permission may, 
 in the discretion of the court, be refused. 
 The first administration had been improp- 
 erly granted to a creditor, and was there- 
 fore revoked, but the other circumstances 
 do not appear, and there may have been spe- 
 cial grounds for denying permission to re- 
 tract. Even in that case, however, there 
 had been a grant after renunciation, and so 
 it was brought within the general rule, that 
 after letters issued it is not a matter of 
 course to permit retractation— the precise con- 
 verse of which is the practice before letters 
 issued. Entertaining this view, there is no 
 occasion to examine into the peculiar cir- 
 cumstances set up by the public administra- 
 tor as a reason for changing his intention. 
 He has the right to retract without giving 
 any excuse, before the grant has passed un- 
 der seal, and he must accordingly be per- 
 mitted to do so in this case. 
 
 NOTE. Acceptance and refusal of the office 
 of executor is discussed in 1 Woerner, Adm'n. § 
 234. 
 
§§ 115, i:6) 
 
 PINCH V. FINCH. 
 
 Case No. 159 
 
 FINCH et al. v. FINCH. 
 
 (14 Ga. 362.) 
 
 Supreme Court of Georgia. Nov. Term, 1853. 
 
 Appeal from superior court, Oglethorpe 
 ■county; Baxter, Judge. 
 
 Jesse Finch, one of the legatees under the 
 alleged will of William Finch, deceased, pro- 
 pounded the same for probate, and gave no- 
 tice thereof to the next of kin. They enter- 
 ed their plea and caveat to this application, 
 and alleged therein, that shortly after the 
 death of William Finch, all of the legatees 
 and heirs at law, agreed that the will should 
 not be set up; but that the estate should be 
 .distributed under the statute of distribu- 
 tions—which agreement to distribute, was 
 reduced to writing: that the propounder, 
 Jesse Finch, received under this agreement, 
 his distributive share of the estate— has sold 
 a part thereof, and has never offered to re- 
 turn any part thereof; and that this agree- 
 ment was executed more than nine years 
 before the motion to propound the will. 
 
 The ordinary refused probate of the will, 
 find sustained the plea; from which decision 
 Jesse Finch, the propounder, appealed. Up- 
 on the hearing of the appeal, counsel for 
 caveators moved to dismiss the application, 
 on the grounds: 
 
 1st. That Jesse Finch, not being an exec- 
 utor named in the will, could not be a pro- 
 pounder of the same, until he had called up- 
 on the executors named therein, to propound, 
 and they had refused so to do, or showed 
 some other reason why the executor had not 
 propounded. 
 
 2d. Because Jesse Finch, not being an ex- 
 ecutor named in said will, could not pro- 
 pound the same, until he had showed to the 
 court that he had an interest in the same, 
 by filing his own affidavit thereof, or by some 
 other evidence. 
 
 The court refused the motion, and the 
 ■caveators excepted. 
 
 The caveators moved to introduce evidence 
 to sustain the issue tendered by them in their 
 pleas; which evidence the court rejected, 
 and decided that no evidence could be re- 
 ceived under the said pleas, none of them 
 being relevant, but that the evidence mu.st be 
 confined to the question of devisavit vel non. 
 To this ruling, caveators excepted; and up- 
 on these exceptions, error is assigned. 
 
 T. R. R. Cobb, for plaintiff in error. Mr. 
 Cone, for defendant in error. 
 
 LUMPKIN, J. 1. Was the court right in 
 refusing the motion of the caveators, to dis- 
 miss the proceeding, on the ground, that 
 .Jesse Finch, not being an executor named 
 in the will, could not be a propounder of the 
 same, until he had called on the executors 
 therein nominated, to propound the will, or 
 else to refuse to do so? Upon this point the 
 rule is clear, as laid down by Mr. Williams, 
 
 and all the elementary works upon this sub- 
 ject:— 
 
 "The person alone by whom the testament 
 can be proved, is the executor named in it 
 whom (as before stated) the ordinary, or 
 other person having authority for the pro- 
 bate of the testament, may cite, to the intent 
 to prove the testament and take upon him 
 the execution thereof, or else to refuse the 
 same." 1 Williams, Ex'rs, 271, 309; Swinb 
 Wills, pi. 6, § 12; Godol. Ecc. Law, pi 1 c 
 20, § 2. > f , ■ 
 
 This is no arbitrary rule, but one founded 
 in good sense and reason. The person to 
 whom the testator has confided the execution 
 of his last will and testament, is certainly 
 entitled to the appointment, in preference 
 to all others. Wills are often made for no 
 other purpose but to secure this privilege. 
 Besides, there are pecuniary benefits attach- 
 ed to the office of executor, of which the in- 
 dividual cannot be deprived, unless he fails 
 or neglects to perform his duty; or labors 
 under some legal disability. 
 
 2. Indeed, we do not understand the able 
 counsel, who represents the defendant In 
 error, to dispute this principle. He insists, 
 however, that the objection came too late, 
 not having been taken before the ordinary, 
 nor on the appeal, until after the caveators 
 had pleaded to the merits, as he is pleased 
 to term it. Without stopping to inquire 
 whether this technical rule of pleading is 
 applicable to a proceeding like the present, 
 we think that it was incumbent on the pro- 
 pounder to have made this preliminary proof, 
 before he could be heard in his own behalf. 
 Until the executors were cited to prove the 
 will, or good cause shown why they were 
 not, such as their death or non-residence, 
 the propounder had no right to offer the will 
 for probate, on his own account. A motion 
 to dismiss the application, therefore, was in 
 order at any time. It might be made by a 
 friend of the court, who was not immediate- 
 ly concerned in the cause; and it would have 
 been error in the com-t to have disregarded 
 it. 
 
 3. Another ground taken by the caveators 
 to dismiss the application was, that Jesse 
 Finch, not being an executor named in the 
 will, could not propound the will, until he 
 had showed to the court, that he had an in- 
 terest in the same, by filing his own affi- 
 davit thereof, or by some other evidence. 
 
 The proposition asserted in this assign- 
 ment Is a sound one; and our judgment is, 
 that the will which was produced, showing, 
 as it did, upon its face, that Jesse Finch, 
 the propounder, was a legatee under the 
 will, the rule of law was fully complied with. 
 Where the interest does not prima facie ap- 
 pear, as, for instance, where a creditor seeks 
 to set up the will, the propounder may make 
 his Interest appear by his own oath; or by 
 some other testimony. But here, a resort to 
 aliunde evidence was unnecessary. In a 
 
 445 
 
Case No. 159 
 
 FJNCII V. FIXCH. 
 
 (§§ 115. 1:6 
 
 note to the last edition of Mr. Williams' 
 treatise on the Law of Executors and Ad- 
 ministrators, it is stated that "Some think 
 that a will may be propounded for probate, 
 at the instance of such as have no interest, 
 to the intent that thereby they may be cer- 
 44C 
 
 tlfied whether the testator left them a leg- 
 acy." Volume 1, p. 271. And to this point, 
 the American editor cites Godol. Ecc. Law, 
 pi. 1, c. 20, § 2. * * * 
 
 NOTE. See, also, Foote v. Foote, 61 Mich. 
 181, 28 N. W. 90. 
 
§117) 
 
 HADDOCK V. BOSTOX & M. R. 
 
 Case No. 160 
 
 HADDOCK V. BOSTON & M. R. 
 
 (15 N. E. 495, 146 Mass. 155.) 
 
 Supreme Judicial Court of Massachusetts. Es- 
 sex. Feb. 29, 1888. 
 
 Report from supreme judicial court; 
 Morton, Chief Justice. 
 
 Appeal by the Boston & Maine Railroad 
 from a decree of the probate court for Essex 
 county, (entered November 16, 1885,) admit- 
 ting to probate the wiE of Sarah Pender- 
 gast. The appeal was claimed by the Bos- 
 ton & Maine Railroad Company, at the hear- 
 ing before the probate court, and was al- 
 lowed by the judge of that court, it appear- 
 ing that said railroad owned real estate in 
 Haverhill, devised by the will, the title to 
 which might be affected by the establish- 
 ment of rights under said will. The will 
 was dated October 31, 1807. At the hearing 
 in the supreme judicial cota-t, the chief jus- 
 tice made certain rulings, the natm'e of 
 which, with other facts, sufficiently appear 
 in the opinion, and reported the case to the 
 full com't. 
 
 S. Lincoln, for appellant. B. F. Butler 
 and P. Webster, for appellee. 
 
 DEVENS, J. The first question discussed 
 by the appellant is whether the probate court 
 has authority, as matter of law, to admit a 
 will to probate 63 years after the death of 
 the testator; and, incidentally, whether 
 there is any limit of time after the death 
 of the testator, subsequent to which the 
 com-t has no such authority. In Shumway 
 V. Holbrook, 1 Pick. 117, the question was 
 whether a will not admitted to probate was 
 admissible in evidence. It was held that 
 it was not; but it is said: "If a will can 
 be found, it may be proved in the probate 
 court at any time, in order to establish a 
 title to real estate. It differs from an ad- 
 ministration of personal property, which can- 
 not be originally granted upon the estate 
 of any person after twenty years from his 
 decease." In the course of the argument, 
 Mr. Justice Jackson alluded to a case in 
 Essex county, perhaps 30 years before, 
 where it was found that a widow must hold 
 land under the will which had not been 
 proved. The will having been offered for 
 probate, the judge of probate declined to 
 allow it, as more than 20 years had elapsed 
 since the death of the testator, and, on ap- 
 peal, his decision was reversed, and the will 
 admitted to probate. The research of the 
 counsel for the defendant has established 
 that the case thus alluded to was that of 
 Dennis v. Bearse, (Essex,) and has supplied 
 us with as satisfactory an account of it, 
 drawn from the papers on file, as they will 
 afford. It is a case to which some weight 
 must be attached, as it brought into ques- 
 tion, directly, the authority of the comt of 
 probate, and the appeal was to the fuU 
 bench of the supreme com-t, which reversed 
 the original decree. While no opinion ap- 
 
 pears to have been written, it could not but 
 have been a carefully considered case, as it 
 reversed the opinion of the judge of probate 
 as to the extent of his jurisdiction. The 
 wiU thus admitted to probate was so ad- 
 mitted 36 or 37 years after its date. How 
 long after the death of the testator does not 
 clearly appear, although some of the papers 
 found indicate that it was more than 30 
 years after. In Marcy v. Marcy, 6 Mete. 
 (Mass.) 360, the question was whether there 
 was sufficient evidence that a will, whicli 
 became operative 43 years before, had been 
 admitted to probate, so that it could be 
 read in evidence. The court held that there 
 was such evidence; adding: "On evidenc(> 
 like the iiresent, it would be the duty of the 
 probate court to establish the wiU, if, for 
 want of form, the ijrobate should have been 
 considered so defective that the will had 
 been rejected as evidence in its present 
 state." In Wati:rs v. Stickney, 12 Allen, 1, 
 where it was held that the probate court, 
 14 years after admitting a will to probate, 
 might admit to probate a codicil, written 
 upon the same leaf, which had escaped at- 
 tention, and was not passed upon at the 
 time of the probate of the original will, it 
 is said by Mr. Justice Gray, citing the above 
 cases: "It has been directly adjudged by 
 this court that a will may be proved even 
 thirty years after the death of the testator, 
 although original administration could not, 
 by statute, be granted after twenty years;" 
 and again, "if no will had been proved, the 
 lapse of time would not prevent both will 
 and codicil from being proved now." While 
 It is true that in neither of these cases has 
 it been decided that a will disposing of 
 lands can be admitted to probate after 60 
 years, yet there is no suggestion in any of 
 them that there is any limitation of time 
 to such proof, and the language used is 
 quite explicit to the contrary. In view of 
 the decisions made, and the repeated ex- 
 pressions directly relevant to the cases con- 
 sidered, used in argument by judges of this 
 court, we cannot treat this inquiry as the 
 defendant desires we should, — as practically 
 a new question. We must deem it one that 
 has been fairly passed upon and decided. 
 It may be that the inconveniences which 
 might arise from the probate of a will many 
 years after the death of the testator are such 
 that a statute limiting the period might be 
 properly enacted. That course has, in some 
 states, been adopted. Conn. Revision, 1875, 
 c. 11, §§ 21-23; Rev. St. Me. c. 64, § 1. But 
 statutes of limitation are arbitrary, and the 
 considerations which apply to positive laws 
 of this character are legislative, rather than 
 judicial. In every instance, where a great 
 length of time has elapsed after the death of 
 a testator,' possessory titles may have been 
 acquired which will prevail against the rec- 
 ord. What is due to the just rights of the 
 devisees is to be considered with reference 
 to other rights of property, or to the repose 
 
 447 
 
Case No. 160 
 
 HADDOCK V. BOSTON & M. R. 
 
 (§117 
 
 of the community; but such considerations 
 belong to the domain of legislation. So long 
 as one can produce the evidence necessary to 
 obtain the probate of a will, we can see no 
 legal reason, why one who relies upoa it 
 should not be allowed to prove it as he would 
 be permitted to prove a deed, however an- 
 cient, under which he claimed title. The fact 
 that he could not offer in evidence a will 
 not admitted to probate, as he might an an- 
 cient deed, would certainly afford no I'eason 
 y,-\\-y its authenticity should not be estab- 
 lished in the probate court by its regular 
 <'ourse of procedure. 
 
 The appellant further contended that the 
 Jury ought not to have been allowed (in de- 
 termining the question whether the testatrix 
 was a widow, and thus competent to make a 
 will as the law stood in 1807) to consider 
 the fact that she actually executed a paper, 
 purporting to be a will devising land, as any 
 evidence that she had legal capacity so to do. 
 This fact, in connection with the other facts 
 proved, was competent to be considered. 
 There was no ruling that, alone, it would 
 liave been sufficient to establish her legal 
 448 
 
 capacity; that is, that she was, at the time, 
 a widow. There was evidence of reputation 
 that the husband of the testatrix died soon 
 after their marriage; that a deed was made 
 to her on December 21, 1801, of the very land 
 which she undertook to dispose of by wiU, in 
 which she was described as "Sarah Pender- 
 grass, widow," which deed was found among 
 her papers; and that she executed the will 
 by the same name as that recited in the 
 deed, in which she was described as widow, 
 although that word is not appended to her 
 name in the will. The act done by her, of 
 disposing, or assuming to dispose, of her 
 property, which she could only lawfully do if 
 a widow, was an assertion of her status, and 
 thus of her legal capacity, made in an im- 
 portant transaction which might properly 
 have been considered in connection with the 
 other evidence. 
 
 The conclusion we have reached renders it 
 unnecessary to decide whether the appellant 
 was lawfully entitled to appeal. Other ex- 
 ceptions taken by it were waived in this 
 court. Cause to stand for further proceed- 
 ings. 
 
§ 120) 
 
 GOODTITLE v. CLAYTOX. 
 
 ease No. 161 
 
 GOODTITLE v. CI-AYTON et al. 
 
 (4 Burrows, 222-t.) 
 
 King's Bench. S Geo. III. 
 
 Sir Fletdier Norton, on behalf of the plain- 
 tiff, shewed cause against granting a new 
 tiial, in aji ejectment-cause, wherein a spe- 
 cial jury had given a verdict for the plaintiff, 
 the heir at law of the testator; and the de- 
 fendants had moved to set it aside. 
 
 The question was on the execution of a 
 wiU. The testator's name was Weston. 
 
 Mr. Justice WILLES read the report of 
 Mr. Bai-on Smythe who ti-ied the cause: 
 which was very particular and circumstan- 
 tial; importing, in general, that the evidence 
 was conti-adictory; but that he could not 
 declare himself to be dissatisfied with the 
 verdict, as there was evidence on both sides. 
 
 Lord MANSFIELD thought it a very 
 strong case for a new trial. He said. It's 
 being an ejectment-case is no reason at all 
 against granting a new trial: for, though 
 a new ejectment may be brought, yet here 
 will be a change of possession; by which the 
 defendant wiU be a sufferer. This objectiou 
 against granting a new trial, "because a new 
 ejectment may be brought," has been over- 
 ruled again and asaiu. An attesting wit- 
 ness to a will has here come to swear against 
 lier own attestation. 
 
 Upon the whole of the evidence reported, 
 it is a clear case for re-consideration. 
 
 ABB. WILLS — 29 
 
 Mr. Justice YATES— New trials are often 
 granted in ejectment-cases as well as in 
 others; where the party praying a new trial 
 would suffer by a change of possession. 
 
 In the present case I think, the witnesses 
 ought not to have been admitted to give 
 evidence against their own attestation. 
 
 There are cases where one witness has 
 supported a will, by swearing that the other 
 two attested; though those other two have 
 denied it. 
 
 Mr. Justice ASTON was of the same opin- 
 ion — Every one of these witnesses has ac- 
 knowledged their having attested this will. 
 I think clearly that it requires a re-consider- 
 ation. 
 
 Mr. Justice WILLES concurred; and 
 thought the weight of the evidence appeared 
 to be on the side of the defendants. 
 
 Lord MANSFIELD— I have several cases, 
 both upon bonds and wills, where the attes- 
 tation of witnesses has been supported by 
 the evidence of the other witnesses, against 
 that of the attesting witnesses who denied 
 their own attestation. 
 
 It is of terrible consequence, that witnesses 
 to wills should be tampered with, to deny 
 their own attestation. 
 
 Therefore— Let the rule be made absolute, 
 for setting aside this verdict; and a new 
 trial be had: but it must be upon payment 
 of costs. 
 
 Rule accordingly. 
 
 449 
 
Case Xo. 162 
 
 CKOWNiXSHIELD v. CROWN i:srSHIELD. 
 
 (§ 121 
 
 CROWNINSHTELD et al t. CKOWNIN- 
 SHIELD. 
 
 (2 Gray, 524.) 
 
 Supreme Judicial Court of Massachusetts. Noy. 
 Term, 1854. 
 
 Appeal by the heirs at law of Edward 
 Crowninsliield, deceased, from a decree of 
 the .ludge of probate, allowing the probate 
 of his will. Trial before Blgelow, J., by 
 whose dii-ection the following issue to a jury 
 was framed: The appellee, who was the 
 executor named In said will, pleaded "that 
 the said Edward Crowninshield, at the time 
 of executing the said paper writing, was a 
 person of soimd and disposing mind; and 
 this he Is ready to verify." The appellants 
 replied "that they deny that, at the time of 
 executing the aforesaid paper writing, the' 
 said Edward Crowninshield was a person of 
 sound and disposing mind, in manner and 
 form as by the said appellee is above al- 
 leged; and of this they put themselves on 
 the country." And the appellee joined the i 
 issue. 
 
 "The appellants proved that, at the time 
 of making and executing said instrument, 
 the said Edward Crowninshield was under 
 guardianship by a decree of the judge of 
 probate, as an insane person, being a person 
 non compos mentis. The court instructed 
 the jury that the burden of proof, in a case of 
 this kind, when the supposed testator was 
 under guardianship as an insane person at 
 the time of making and executing the al- 
 leged will, was upon the party propounding 
 the will, to show that the proposed testator 
 was at that time of sufficient mental ca- 
 pacity to make and execute said will. The 
 verdict of the jury was that, at the time 
 of making the instrument propounded for 
 probate, the said Edward Crowninshield was 
 not of sound and disposing mind and mem- 
 ory. If this instruction on the burden of 
 proof was erroneous, the verdict is to be 
 set aside; otherwise, a decree is to be en- 
 tered, disallowing the Instriiment propound- 
 ed for probate as the last will of said Ed- 
 ward Crowninshield." 
 
 S. H. PhilUps, for appellants. O. P. Lord 
 and S. C. Bancroft, for appellee. 
 
 THOMAS, J. This case is before us ou 
 the report of the presiding judge. At the 
 time of the execution of the instrument of- 
 fered for probate, the testator was under 
 guardianship, as an insane person. The pre- 
 siding judge ruled that, under this state of 
 facts, the burden of proof was upon the 
 party seeking probate of the will, to show 
 that, at the time of its execution, the tes- 
 tator ^Yas of sound mind. The verdict was 
 that the testator was of unsound mind. If 
 the ruling of the presiding judge was er- 
 roneous, the verdict is to be set aside; if 
 right, judgment is to be entered on the ver- 
 dict. 
 
 4.50 
 
 When one dies owning real or personal 
 estate, the law fixes its descent and distri- 
 bution. Under certain conditions, however^ 
 it gives to such owner the power to make- 
 a disposition of his property, to take effect 
 after his death. This Is done by a last will 
 and testament. To make such will, certain 
 capacities are requisite in the maker, ands 
 certain formalities for its due execution. 
 
 The capacities of the maker are prescribed 
 by the Rev. St. c. 62, §§ 1, 5. "Eveiy person, 
 of full age and of sound mind, being seized 
 in his ojvn right of any lands, &c., may de- 
 vise and dispose of the same by his last 
 will and testament in wi'iting." "Every per- 
 son of full age and of sound mind may, by 
 his last will and testament in writing, be- 
 queath and dispose of all his personal es- 
 tate, remaining at his decease, and all his 
 right thereto and interest therein." 
 
 The formalities are prescribed by the sixth, 
 section of the same chapter: "No wUl, ex- 
 cepting nuncupative wills, shall be effectual 
 to pass any estate, whether real or personal^ 
 nor to charge, or in any way affect the same, 
 unless it be in writing, and signed by the- 
 testator, or by some person in his presence 
 and by his express direction, and attested 
 and subscribed, in the presence of the testa- 
 tor, by three or more competent witnesses.'" 
 
 When, therefore, a will is offered for pro- 
 bate, to establish it, to entitle it to such 
 probate, it must be shown that the supposed" 
 testator had the requisite legal capacities to 
 make the will, to wit, that he was of fulE 
 age and of sound mind, and that in the 
 making of it the reqiiisite formalities havi- 
 been observed. The heirs at law rest securely 
 upon the statutes of descents and distribu- 
 tion, until some legal act has been done by 
 which their rights under the statutes have 
 been lost or impaired. 
 
 Upon whom, then, is the afiu'mative? The 
 party offering the will for probate says, in 
 effect, This instrument was executed witli 
 the requisite formalities by one of full age 
 and of sound mind; and he must prove it; 
 and this is to be done, not by showing mere- 
 ly that the instrument was in writing, that 
 it bears the signature of the deceased, and 
 that it was attested in his presence by three 
 witnesses; but also that it was signed by 
 one capable of being a testator, one to whom 
 the law had given the power of making dis- 
 position of his property by will. 
 
 This is the doctrine of the earliest case up- 
 on the subject in our reports. Phelps v. 
 Hartwell, 1 Mass. 71. It was there argued 
 by the appellees that the bm'den of proof 
 was with the appellants, opposing the will: 
 and that it was incumbent ou them to show 
 that the testator was not of sound mind at 
 the time of the making of the will. "But 
 the whole coiu't held that the rule was the 
 Sixme in this case as in all others. The- 
 burden of proof is always with those who 
 take the affirmative in pleading. Here the 
 appellees have the affirmative, and must: 
 
§121) 
 
 CROWSriNSHIELD v. CROWNINSHIELD. 
 
 Case No 162 
 
 therefore produce reasonable and satisfac- 
 tory evidence to the jury that the testator 
 was sane at the time of making the will." 
 In Blaney v. Sargeant, in the same volume, 
 it was held that the party wishing to estab- 
 lish the will, having the afltirmative, was en- 
 titled to the opening and close. 1 Mass. 
 335. And such has been the uniform prac- 
 tice of this court 
 
 These cases but recognize and confirm a 
 familiar and well settled rule of pleading, 
 as of logic, that he who affirms the existence 
 of a given stiite of facts must prove it. 
 There may be difCerent modes and instru- 
 mentalities of proof; but the bm-den is on 
 him who affirms, and not on him who denies. 
 
 The doctrine of the case of Brooks v. Bar- 
 rett, 7 Pick. 94, is doubtless, to some ex- 
 tent, in conflict with that of the earlier 
 cases; and so it is, also, with that of the 
 later; and as much of the confusion existing 
 upon this subject may have arisen from that 
 case, it may be well to examine it with some 
 care. 
 
 In that case, as in Phelps v. Hartwell 
 and Blaney v. Sai-geant, it was held that the 
 opening and close were with the executor, 
 as the affirmative was with him. It was 
 also said that "by om- statute of wills, all 
 such instruments must be offered for proof 
 in the probate office, and the subscribing 
 witnesses are to be there produced; and 
 these witnesses are to testify, not only as to 
 the execution of the will, but as to the state 
 of mind of the testator at the time. With- 
 out such proof, no wiU can be set up. And 
 this agrees with the English law on the 
 same subject." Thus far the case is in 
 harmony with the earlier ones. The affii-m- 
 ative is upon the executor, and he is to 
 produce the statute evidence to show not 
 only the execution of the instrument, but, 
 "the state of the mind of the testator at 
 the time," that is, of course, that it was in 
 a sound state, capable of making a will; 
 and, without such proof, no will can be set 
 up. "Upon an appeal from the decree of 
 the judge of probate, allowing or rejecting 
 the will, it is to be proved in the appellate 
 court. In the same manner as if first offered 
 there for probate." The issue of sanity, 
 however, in this court, is to the ivry, and 
 not to the presiding judge. Rev. St. c. 62, 
 § 16. The party, then, offering the will in 
 this court for probate, is to produce the at- 
 testing witnesses to show the soundness of 
 the testator's mind at the time of the exe- 
 cution of the will. Thus far all is plain. 
 
 But the court proceeded to say: "Being 
 proved, however, by the subscribing wit- 
 nesses, both as to its execution and the sani- 
 ty of the testator, the will is to be set up and 
 allowed, unless the party objecting disproves 
 the facts thus established. So that the bur- 
 den of proof shifts from the executor to the 
 heir or other person opposing the allowance 
 of the will; but in this, as in all cases where 
 there is an affirmative point to be made out 
 
 by one party, he is to open and close to 
 the jury. If his own evidence, that of the 
 subscribing witnesses. Is deficient, he is to 
 mak§i out the affirmative from the whole 
 case. If he makes out his case by the stat- 
 ute evidence, he has only to defend against 
 the proof of insanity produced by the other 
 party. And having produced the statute evi- 
 dence, if the case is made doubtful by the 
 evidence from the other side, the presump- 
 tion of law in favor of sanity must have its 
 effect in the final decision." And the court 
 added: "The will having been sufficiently 
 proved by the statute evidence. It was also 
 rightly decided that the burden of proof in 
 regard to insanity was upon the other party." 
 
 We can perceive here uo shifting of the 
 bm-den of proof; the issue throughout is 
 but one: Was the testator of sound mind? 
 And the affirmative of this was upon tlu- 
 party offering the will for probate. Agaui. 
 that issue is an Issue of fact, and is to the 
 jury. And how Is the court to determine 
 when the wIU is "proved" or "sufficiently 
 proved" by the subscribing witnesses, "so 
 that the burden of proof shifts from the ex- 
 ecutor to the heir?" It Is a question of the 
 effect of evidence, and could only be solved 
 by probing the mind of each juror. Suppose 
 the attesting witnesses are divided In opiu- 
 ion; one for the sanity of the testator, oui' 
 against, the other doubtful; or that two 
 testify against the sanity of the testator, 
 and the third that he was of souud mind, 
 and the jury place gi-eater confidence In 
 the means of observation. Intelligence, judg- 
 ment and integrity of the one than of the 
 other two; or that aU three testify (a case 
 not without precedent), so far as it is mat- 
 ter of opinion, in favor of the sanity of the 
 testator, yet, in view of all the facts and 
 the circumstances detailed by the same wit- 
 nesses, the jury reach a very different con- 
 clusion. If there could be a shifting of the 
 bm'den upon a single issue. It would be im- 
 possible to tell when the burden is to bo 
 transferred from the one party to the other. 
 
 It is quite difficult to understand what was 
 meant by the court when they said, that "if 
 he (the executor) makes out his case by the 
 statute evidence, he has only to defend 
 against the proof of insanity produced by 
 the other party." The law has made no fur- 
 ther distinction between the attesting and 
 other witnesses, than that the opinions of 
 the former may be given in evidence; and 
 even this distinction does not extend to pro- 
 fessional witnesses. If the three attesting 
 witnesses, being comparative strangers to 
 the testator, and called in for the mere pur- 
 pose of witnessing the will, testify that, so 
 far as they saw, the testator was of sound 
 mind; and the attending physicians, familiar 
 with the facts and with the history of the 
 party, testify that he was Insane; the law 
 attaches no peculiar weight to the testimony 
 of the former as against the latter. Still less 
 does it give it any such preponderance as to 
 
 451 
 
Case Xo. 162 
 
 CllOW^TINSHlELD v. CROWKESTSIIIELD. 
 
 (§ 121 
 
 shift the burden of proof. The issue, after 
 the evidence is all in, is precisely the same 
 tliat it was at the beginning — was the tes- 
 tator of sound mind?— an issue in itg very 
 nature incapable of division. 
 
 If the com't were to instruct the jm-y in 
 the first place to examine and weigh by it- 
 self the testimony of the subscribing wit- 
 nesses, and that, if they should find it sufii- 
 cient, the burden of proof would shift upon 
 those opposing the will, but, if deficient, it 
 would remain with the executor, it would be 
 compelling them to try the case twice; fii'st, 
 to learn where the burden of proof was, and 
 then where the truth was; and they might 
 be wholly unable to agree as to the weight 
 to be given to the testimony of the sub- 
 scribing witnesses, though they concurred in 
 the result of the testimony as a whole. It 
 not freq.uently occurs, in contested questions 
 of sanity, that, when the evidence is all in, 
 very little importance attaches to the testi- 
 mony of the subscribing witnesses; because, 
 from want of intelligence or opportunities of 
 observation, they know very little of the mat- 
 ters in issue. 
 
 Nor, though the concurring testimony of 
 the subscribing witnesses may malie a prima 
 facie case, is there any shifting of the burden 
 of proof. The bm-den of proof does not shift 
 when a prima facie case is made out. The 
 I'emarlis of Mr. Chief Justice Pai'ker on this 
 point, in the case we are considering, have 
 not the usual discrimination of that most 
 able and excellent judge. "The shifting of 
 the onus probandi," he says, "is quite fa- 
 miliar in the course of trials. In a suit 
 upon a promissory note or other written con- 
 tract, the plaintiff produces his note, proves 
 the signature of the defendant, and stoijs; 
 the defendant alleges payment, want of con- 
 sideration, or other matter in defence; the 
 burden of proof is upon him, and yet the 
 plaintiff opens and closes the argument." 
 
 Things quite distinct ai'e here confounded; 
 want of consideration and payment. With- 
 out a consideration there is no contract. 
 The question, therefore, whether there was 
 a consideration, is but a form of the question 
 whether a contract was ever made. The 
 bm-den does not shift. The production of the 
 note, with the signatm-e of the defendant, 
 maltes a prima facie case against him; and 
 when no evidence is offered to the contrary, 
 the plaintiff will of course prevail. But 
 when evidence is offered by the defendant, 
 and, it may be, in reply by the plaintiff, it 
 all aijplies to one and the same issue— Was 
 there a consideration? if not, there was no 
 contract. And the burden remains through- 
 out upon him who afili'ms that a contract 
 was made. This is now well settled. Tour- 
 tellot V. Kosebrook, 11 Mete. (Mass.) 460; De- 
 lano V. Bartlett, 6 Gush. 3G4. 
 
 But the plea of payment raises a new and 
 distinct issue. It confesses the original con- 
 tract, and seeks to avoid it. It afili-ms a 
 subsequent independent fact, the fact of 
 452 
 
 payment, and he who affirms it must prove 
 it. It Is a new issue made by the defendant. 
 The burden is on him. And if he fails to 
 prove his averment, and the plaintiff has 
 proved his, the result is that the contract is 
 proved, but its performance or discharge is 
 not proved, and the plaintiff recovers. And 
 see Powers v. Russell, 13 Pick. 69. 
 
 The ground taken by the counsel of the 
 appellees is, that every man is presumed to 
 be sane till the contrary is shown, and that 
 the burden is cast upon those who impeach 
 the sanity. 
 
 If such presumption exists at all in re- 
 spect to wills, it does not apply to. the case 
 of one under guardianship, as an insane per- 
 son. Such guardianship is prima facie evi- 
 dence of insanity. Stone v. Damon, 12 Mass. 
 488; Breed v. Pratt, 18 Pick. 115. 
 
 Nor does the existence of a general pre- 
 sumption that men are sane change the bur- 
 den of proof. It may stand in the stead of 
 proof; it may make a prima facie case; 
 where the question of sanity is made, it may 
 render necessary greater weight of evidence 
 in him who seeks to impeach it; but it does 
 not change the burden of proof. But when 
 the evidence is in, on the one side and the 
 other, the issue still continues as before; 
 and he, to whose case the proof of such sani- 
 ty is necessary, has the bm-den. To use the 
 language of the com't in Powers v. Russell: 
 "Where the proof on both sides applies to 
 one and the same proposition of fact, the 
 party, whose case reqtures the proof of that 
 fact, has all along the bm'den of proof; 
 though the weight In either scale may at 
 times preponderate." 13 Pick. 76. 
 
 But we are by no means satisfied that, in 
 relation to wills, there is any legal presump- 
 tion, in this commonwealth, of the sanity of 
 the testator. If such presumption exists, no 
 proof that the testator was of sound mind 
 would be necessary, until those opposing the 
 will had offered some evidence to impeach 
 it. The presumption of sanity would be 
 sufficient, until there was something to meet 
 it. Yet our cases uniformly hold that the 
 party seeking probate of the will must pro- 
 duce the attesting witnesses to show not 
 merely the execution of the instrument, but 
 the sanity of the testator at the time of its 
 execution. Phelps v. Hartwell, Blaney v. 
 Sargpaut, and Brooks v. Barrett, above cited. 
 Bucliminster v. Perry, 4 Mass. 593. And 
 such has been, we think, the uniform prac- 
 tice in the probate courts, and in this court 
 sitting as the supreme court of probate. 
 These cases were decided, and this practice 
 grew up, under the explicit language of St. 
 1783, c. 24, § 1, which provided that "every 
 person lawfully seized of any lands, &c., of 
 the age of twenty-one years and upwards, 
 and of sane mind, shall have power to give, 
 dispose of and devise the same." The lan- 
 guage of the Revised Statutes is to the same 
 effect: "Every person of fuU age and of 
 sound mind." Rev. St. c. 62, §§ 1, 5. 
 
§ 121) 
 
 CHOWNINSHIELD v. CROWNINSHIELD. 
 
 Case No. 162 
 
 There are strong reasons why the same 
 presumption as to sanity should not attach 
 to wills as to deeds and ordinary contracts. 
 Wills are supposed to be made in extremis. 
 In point of fact, a large proportion of them 
 are made when the mind is to some extent 
 enfeebled by sickness or old age. It is for 
 this reason, that the execution of the will 
 and the proof of its execution are invested 
 with more solemnity; the statute requiring 
 it to be attested by three or more competent 
 witnesses; making void all beneficial devises, 
 legacies or gifts to such subscribing witness- 
 es; and requiring the presence of the three 
 in the probate court for its proof, unless it 
 appears by consent in writing of the heirs at 
 law, or other satisfactory evidence, that no 
 person interested intends to object to the 
 probate of the will. Rev. St. c. 62, §§ G, 8, 
 15. We speak of what seems to be the i-ule 
 in tlais commonwealth, under St. 1783, c. 24, 
 and Rev. St. c. 62. 
 
 There is, no doubt, both contlict and conclu- 
 sion in the authorities on this point, both in 
 England and in this country. A general legal 
 presumption doubtless exists, that a man is 
 sane, till there is evidence to the contrary; 
 and upon proof of the execution of a contract, 
 or of a deed, no proof need be given that the 
 maker was of sound mind when he executed 
 it. The presumption is sufficient, untU evi- 
 dence is produced to meet it. This presump- 
 tion has often been applied to the proof of 
 wills, but not in our own courts. Nor is the 
 rule elsewhere uniform. 
 
 In the case of Gerrish v. Nason, 22 Me. 441, 
 the court say: "The presumption, that the 
 person making a will was at the time sane, 
 is not the same as in the case of the making 
 of other instruments; but the sanity must be 
 proved." 
 
 In Comstock v. Hadlyme Ecclesiastical 
 Soc, 8 Conn. 261, the court say: "Those who 
 claim under the will must take upon them- 
 selves the bm-den of proof; and they must 
 not only prove that the will was formally 
 executed, but that the testator was of sound 
 and disposing mind." 
 
 In the recent case of Bariy v. Butlin, be- 
 fore the judicial committee of the privy coun- 
 cil, Mr. Baron Parke, in pronouncing the 
 judgment, says: "The rules of law according 
 to which cases of this nature are to be decid- 
 ed, do not admit of any dispute, so far as 
 they are necessary to the determination of 
 the present appeal; and they have been ac- 
 quiesced in on both sides. These niles are 
 two; the first, that the onus probandi lies in 
 every case upon the party propounding a 
 will; and he must satisfy the conscience of 
 the court that the instrument so propounded 
 is the last will of a free and capable testa- 
 tor." 1 Curt. Ecc. 638. 
 
 If there were uniformity in the English de- 
 cisions, which there certainly is not, we 
 should not overlook the difference between 
 the English statute of wills, 34 Hen. VIII. c. 
 5, and oiu" own. Oui- own provides that 
 
 "every person of full age and of sound mind" 
 may make a will; making these capacities, 
 of full age and sanity, of the nature of con- 
 ditions precedent. The statute of Hen. VIII. 
 enacts, in section 4, that "all and singular 
 person or persons having estate or interest in 
 fee simple, &c. in lands, &c. shall have full 
 and free liberty, to give, dispose, will or de- 
 devise to any pereon or persons, &c., by hi."- 
 last will and testament in writing, as much 
 as in him of right is or shall be, his said 
 lands, &c., at his own free will and pleasure;" 
 and then, by section 14, provides that "wills 
 or testaments made of any lands, &c., by any 
 woman covert, or person within the age of 
 twenty-one years, or by any person de nou 
 sane memory, shall not be taken to be good 
 or effectual in the law:" thus making, in the 
 first place, a general provision applicable to 
 all persons whatsoever, and then excepting 
 out of its operation, and making ineifectual, 
 wills of persons of non-sane memory. If, 
 therefore, it were the uniform construction 
 of this statute that when a will was pro- 
 duced, and its due execution proved, it was 
 to be taken to be good and effectual, unless 
 for some of the causes stated in the four- 
 teenth section it was shown not to be good 
 or effectual, it would furnish no precedent 
 for the construction of our own statute, 
 which in terms limits the power to persons 
 of fuU age and sound mind. 
 
 On the whole matter, we are of opinion, 
 that where a will is offered for probate, the 
 burden of proof, in this commonwealth, is 
 on the executor or other person seeking such 
 probate, to show that the testator was, at 
 the time of its execution, of sound mind; 
 that if the general presumption of sanity, 
 applicable to other contracts, is to be ap- 
 plied to wills, it does not change the burden 
 of proof; that the burden of proof does not 
 shift in the progress of the trial, the issue 
 throughout being one and the same; and 
 that if, upon the whole evidence, it is left 
 uncertain whether the testator was of sound 
 mind or not, then it is left imcertain whether 
 there was under the statute a person capa- 
 ble of making the wiU, and the will cannot 
 be proved. 
 
 Judgment on the verdict. 
 
 NOTE in Kinleside v. Harrison, (1818,) 2 
 Phillim, Ecc. 449, Sir John Nicholl said, (page 
 456:) "To all persons who are in any degree 
 conversant with proceedings in this court, it is 
 well known, that upon tlie point of capacity, 
 evidence apparently the most contradictory fre- 
 quently occurs; — nor is the circumstance diffi- 
 cult to be accounted for, without imputing to 
 either set of witnesses intentional falsehood; — 
 and certainly it is the duty of the court to en- 
 deavour in candour to reconcile apparent con- 
 tradictions, rather than to attribute perjury to 
 those wlio are called upon to give evidence he- 
 fore it. In the first place, it may he observed, 
 that a large portion of evidence to capacity is 
 evidence of mere opinion; and upon matters of 
 opinion mankind differ, even to a proverb. In 
 the next place, there is no fixed standard by 
 which each witness fixes and estimates his opin- 
 ion of capacity; — one person, seeing a testator 
 
 453 
 
Case Xo. 162 
 
 CROWMX SHIELD t. CUOWXIXSHIELD. 
 
 (§ 121 
 
 in extreme age, or under extreme sickness, 
 thinlis, that if he knows those about him, and 
 can answer an ordinary question with respect 
 to the state of his illness, or of his wants, such 
 and similar matters render him capable of giv- 
 ing effect to a disposition by will, however com- 
 plicated it may be, by the mere formal execu- 
 tion of the instrument; while another person 
 may be of opinion that though a testator is 
 in the ordinary management of his own affairs, 
 — can hold reasonable conversation, — can fully 
 comprehend all the usual and simple transac- 
 tions of life, yet if he is unable to take the ac- 
 tive management of all his concerns, however 
 complicated those concerns may be, or if he is 
 liable to become confused by entering into in- 
 tricate transactions, he is totally incapable, and 
 cannot enter into a testamentary disposition, 
 however plain and simple it may be. Now, 
 where opinions are formed by such different 
 standards, it is obvious that much variety must 
 take place. Differences will also arise from 
 other causes: — first, from the different abilities 
 of witnesses to form such opinions; — secondly, 
 from their different opportunities of seeing the 
 person; — and, thirdly, from the different state 
 and condition of the testator's mind at different 
 times. It is certainly true that the study of 
 the human mind is an abstruse science; the 
 different lines and traits of the understanding 
 are matters which attract the notice and con- 
 sideration of the intelligent; ignorant persons 
 and enlightened persons will form vei-y different 
 opinions upon subjects of this kind: ignorant 
 persons, servants, and those in their condition, 
 who form their judgments in the conversation 
 of the kitchen circle, are very apt to form er- 
 roneous opinions on matters of this sort; and 
 this will be the case, even without throwing in 
 the additional ingredient which takes place in 
 those circles, the loose suspicions and prejudices 
 by which their judgments are often biased and 
 carried out of their true course. In the next 
 place, from the different opportunities persons 
 have of judging they will form different 
 opinions: persons who see a testator only 
 occasionally will form different opinions from 
 
 454 
 
 those who have better opportunities of judg- 
 ing. We know that little appearances oc- 
 curring in this way are extremely fallacious, 
 yet we often find occasional observers de- 
 pose with great confidence. It frequently 
 happens that the most ignorant are the most 
 confident. In this case we have an under 
 gardener speaking of the deceased, who was 
 always deaf, sometimes nervous, and whom 
 he only sees in the garden, but seldom con- 
 verses with him, yet venturing to swear, 
 (truly, I have no doubt in his own opinion) 
 that he is quite certain the deceased was not 
 capable of making a codicil during any part of 
 a particular month, which happened three 
 years before his examination. This kind of 
 opinion is still more various where the testator's 
 capacity is fluctuating, — ^where he is sometimes 
 better and sometimes worse; and this is gener- 
 ally the case with persons labouring under old 
 age, or other infirmities; it is so, even where 
 there is no special attack occasionally operat- 
 ing; accidental cold, or other indisposition, 
 often renders an old infirm person worse one 
 day than another; after a good or bad night 
 a person will be alert or dull; so after a night's 
 sleep, a person may be active and capable of 
 considerable exertion even in matters of busi- 
 ness, who, in the afternoon, while the process 
 of digestion is going on, shall appear drowsy 
 and torpid, and not able to rouse himself into 
 action. The humour of a testator will also 
 sometimes make him apparently almost fatu- 
 ous, or induce him to rouse himself into exer- 
 tion, as the occasion is either interesting or 
 disagreeable to his inclinations. Now, these 
 different considerations, (and they might be 
 much more spread) while they tend to recon- 
 cile the apparent contradictions of witnesses, 
 render it necessary for the court to weigh such 
 evidence with very great attention — to rely but 
 little upon mere opinion — to look at the grounds 
 upon which opinions are formed, and to be 
 guided in its own judgmpnt by facts proved, 
 and by acts done, rather than by the judg- 
 ment of others." See, also, Baxter v. Abbott, 
 7 Gray, 71. 
 
S 122) 
 
 IIAliDY V. MEUIULL. 
 
 Case No. 163 
 
 HAUDY T. MKRRILIi. 
 
 (56 N. H. 227.) 
 
 Superior Court of Judicature of New Hamp- 
 shire. Dec. 14, 1875. 
 
 Appeal from circuit court, Merrimack coun- 
 ty. 
 
 Appeal by WiUiam H. Hardy agaiust Isaac 
 D. Merrill. From a decree approving a will 
 at Joseph Hardy, deceased. The issues were 
 —First, that the said Joseph Hardy was of 
 sound mind; and the second, that said will 
 was not obtained by imdue influence. The 
 contestant claimed a right to open and close. 
 The referee excluded answers to questions 
 asking if witnesses had any opinion as to 
 «auity of the decedent, and, if so, what it was, 
 and also on evidence as to the appearance of 
 the decedent, and as to whether he ap- 
 peared weak in mind and a failing man in 
 «vei-y respect. The questions of law were 
 reserved for the court. 
 
 Mugi-idge, for appellant. Sargent & Chase, 
 lor executor. 
 
 FOSTER, 0. J. 1. At the hearing before 
 the referees, the appeUant claimed the right 
 to open and close. 
 
 In Judge of Probate v. Stone, 44 N. H. 
 593, it was held that the party on whom the 
 burden of proof in the first instance de- 
 volved, was entitled to open and close; that 
 to determine which party is to begin, and, 
 ■of coui'se, which shall close, is to consider 
 which would get the verdict, if no evidence 
 was given on either side; and the right to 
 begin is with the one who in that way would 
 lose his case. 
 
 In this case issues were joined by the ap- 
 pellant upon averments of the executor, — (1) 
 that the testator was of sound mind, and (2) 
 that the will was not obtained by undue in- 
 "fluence. As these issues are made up, the 
 burden of proof would seem to be on the ex- 
 ecutor, and not on the appellant; and in 
 Judge of Probate v. Stone, at page 605, it is 
 said: "The party who affirms that a will 
 was made, ha.s the primary burden of proof 
 and the accompanying right to close." 
 
 Tn Boardman v. Woodman, 47 N. H. 120, 
 132, it is said: "Whatever form the issues 
 which are sent to the trial term may assume 
 in such cases, the nature of the proceeding is 
 never lost siffht of, nor is the final object to 
 be attained to be kept from view. * * * 
 The question to be determined, no matter 
 in what form the Issues may be drawn, is 
 the due and legal execution of the wiU." 
 
 In Perkins v. Perkins, 39 N. H. 163, 167, 
 BELL, O. J., says: "The object of the pro- 
 ceeding is to prove the due execution of a 
 written instrument. * * * The instrument 
 itself must be produced, unless in a few ex- 
 cepted cases where secondary evidence is ad- 
 mitted; and the attesting witnesses must be 
 produced and examined, if they are living 
 and within the reach of the process of the 
 
 coui-t. They are to be produced by the party 
 who offers the instrument, or who seeks a 
 decree that it has been proved. * * * The 
 usual formal proof being ofCered, the law 
 comes in with its presumption that the party 
 is sane, and this presumption stands until 
 evidence is ofCered tending to raise a differ- 
 ent belief. * * * Though ordinarily no 
 question may be asked of the witness, who 
 testifies to the execution of an Instrument, 
 relative to the capacity of a grantor, yet, 
 owing to the nature of the proceedings in 
 the case of wills, that the probate of the will 
 is the foundation of the grant of power to 
 the executor to take possession of the estate 
 and the charge of administration, it is, in 
 that case, the long-settled practice of courts 
 of probate to require that the witnesses to 
 wills should be examined as to the fact of 
 the sanity of the testator before the will is 
 established. * * * This practice is equal- 
 ly binding, as the law in such cases, upon 
 the supreme court, as on the ordinary 
 courts of probate. * * * It is, therefore, 
 proper to say that the burden of proving 
 the sanity of the testator, and all the other 
 requirements of the law to make a valid 
 wiU, is upon the party who asserts its valid- 
 ity. This burden remains upon him till the 
 close of the trial, though he need inti-oduce 
 no proof upon this point until something ap- 
 pears to the contrary." 
 
 To the same effect see Tingley v. Cowgill, 
 48 Mo. 291, and Renn v. Samos, 33 Tex. 760. 
 On the other hand, it may be said, the de- 
 cree of the judge of probate establishing 
 the will was not vacated by the appeal. 
 Gen. St. c. 188, § 12. 
 
 The due execution of the will is not in 
 controversy, and it is not necessary for the 
 appellee to prove it. The appellant must set 
 forth in writing the reasons of his appeal; 
 and in this court he is resti-icted to such 
 points as are therein specified. Gen. St. c. 
 188, § 2; Patrick v Cowles, 45 N. H. 553; 
 Boardman v. Woodman, 47 N. H. 140. 
 
 The executor has formally tendered an is- 
 sue upon the sanity of his testator, and the 
 appellant has joined that issue; but the ex- 
 ecutor's allegation of sanity is supported, 
 without evidence, by a presumption of law, 
 as is said by Judge Bell in Perkins v. Per- 
 kins, and he is entitled to a verdict unless 
 the appellant assumes and discharges the 
 burden of proof, which requires him to main- 
 tain and prove the insanity of the testator. 
 See Thurston v. Kennett, 22 N. H. 151; Bills 
 V. Vose, 27 N. H. 215, and cases there cited; 
 Boardman v. Woodman, 47 N. H. 140-144; 
 Hall V. Unger, 2 Abb. (U. S.) 507, Fed. Oas. 
 No. 5,949. 
 
 In Massachusetts the statute requires the 
 person offering a will for probate to prove 
 the sanity of the testator, (Boardman v. 
 Woodman, 47 N. H. 125;) but we have no 
 such statutory provision. 
 
 In Com. V. Haskell, 2 Brewst. 491, it Is 
 held that on the hearing of a commission of 
 
 4.j5 
 
Case No. 163 
 
 HARDY V. MERRILL. 
 
 (§ 122 
 
 lunacy, tlie burden of proof is upon the com- 
 monwealth, the presumption being in favor 
 of sanity, and, therefore, that the relator has 
 the right to open and close. 
 
 Probably the determination of this ques- 
 tion is a matter of no practical consequence 
 in the present case. The right, as it is called, 
 to open and close, may be a matter within 
 the discretion of the cotu:t, the granting or 
 refusing of which is not in general a ground 
 for a new trial or bill of exceptions. There 
 are many avithorities which hold that a ver- 
 dict wiU not be disturbed on the ground that 
 the wrong party was permitted to open or to 
 close, unless it be made to appear that in- 
 justice has been done. Boardman v. Wood- 
 man, 47 N. H. 143; Hilliard, New Trials, 
 298. 
 
 I thinlc the court would hardly be justified 
 in entertaining a discretion whicli should 
 operate in conflict with the general rule and 
 practice in matters of this kind. It is not 
 without some hesitation, nor without re- 
 spect for the adverse doctrine, that I concur 
 in the opinion of the majority of the court 
 that the ruling of the referees in denying to 
 the appellant the right or privilege of open- 
 ing and closing upon the trial was correct. 
 
 2. The case before us involves an inquiry 
 into the natm-e and extent of the exceptions 
 to the general rule, that testimony of facts 
 alone is admissible in courts of justice, and 
 tliat the opinions of witnesses are to be ex- 
 cluded. 
 
 The same questions are presented which 
 were considered by the late supreme court 
 in Boardman v. Woodman, 47 N. H. 120, and 
 State V. Pike, 49 N. H. 399. In both these 
 cases a majority of the court sustained the 
 doctrine of the exclusion of the opinions of 
 non-professional witnesses upon questions of 
 mental condition. 
 
 I am unable to speak from personal knowl- 
 edge (because I was not then a member of 
 the court) of the extent and amount of con- 
 sideration bestowed upon the subject in the 
 two cases referred to. It will, however, be 
 obvious to the reader of the reports, that in 
 Boardman v. Woodman the majority of the 
 court were content, without renewed investi- 
 gation, to adhere to the rule, which they un- 
 derstood to be "in accordance with the long 
 established and uniform usage in this state;" 
 while in State v. Pike, Smith, J. (not inti- 
 mating his own views), disposes of the 
 whole question with little more than the re- 
 mark: "A majority of the court are not dis- 
 posed to overrule the very recent decision in 
 Boardman v. Woodman that witnesses who 
 are not experts cannot give their opinions on 
 the question of sanity." In State v. Archer, 
 V V 54 N. H. 468, the court were not "prepared 
 to overrule these decisions," nor were they 
 prepared to investigate the matter. In view 
 of all the other circumstances, and the estab- 
 lished conditions of the case, this question 
 was of slight consequence. 
 
 But the subject is so rapidly increasing in 
 456 
 
 importance, that its thorough re-examination 
 ought to be no longer postponed. 
 
 It is fair to presume that the majority of 
 the court were satisfied, upon principle, with 
 the reasons which had been expressed, or, 
 rather, the conclusions attained in the courts 
 of three states of the Union, where the same 
 doctrine had been established; and perhaps 
 the most elaborate investigation might not 
 have affected their minds in such a way as 
 to produce a difCerent result; nevertheless, 
 one fact cannot be ignored, namely, that a 
 careful examination into the history of this 
 branch of the law, as administered in our 
 own state, would have compelled the sup- 
 pression of the remark that the rule exclud- 
 ing such opinions was "in accordance with 
 the long established and uniform usage in 
 this state," the truth being, that the usage 
 and practice, if uniform, have been in the 
 opposite direction, and that the rule as de- 
 clared by the supreme court in 1866 and 
 1869, is a departure from the "usage and 
 uniform practice" in the com'ts of this state 
 during a period of time when the bench was 
 adorned by "sages of the law" whose learn- 
 ing and ability have commanded universal 
 respect and admiration. 
 
 That the subject was not carefully con- 
 sidered in Boardman v. Woodman, but was 
 passed over as a matter "well established," 
 is manifest from the fact (which would oth- 
 erwise be quite remarkable) that the corner 
 stone upon which the "long established" doc- 
 trine and usage in this state is said to rest, is 
 the case of Hamblett v. Hamblett, (A. D. 
 1833) 6 N. H. 333. Now, it is quite clear 
 that no such established rule is there laid 
 down. On the contrary. Judge Parker, 
 fresh from the trial of Daniel H. Corey, was 
 not prepared to stultify himself by promul- 
 gating doctrines upon the bench directly op- 
 posite to those which he had successfully 
 maintained at the bar. 
 
 Accordingly he declares that, "on the sup- 
 position that this testimony of Mary Palmer 
 to matter of opinion, or, rather, to matter 
 from which her opinion of sanity was to be 
 inferred, was incompetent,— which is not 
 conceded if suflSciently connected with' 
 facts, — the question arises whether this fur- 
 nishes any ground for a new trial, the com't 
 having thus directed the jury;" but, "as to 
 the direction of the judge relative to evi- 
 dence of opinion, it may be proper to remark 
 that we do not intend to be understood as 
 establishing this as the rule. The weight 
 of authority seems to be in favor of admit- 
 ting the opinions of others than the wit- 
 nesses to the will, if connected with evi- 
 dence of the facts upon which those opin- 
 ions are founded,"— citing 3 Starkie, Ev. 
 1707, in notes; Grant v. Thompson, 4 Conn. 
 203; Hathorn v. King, 8 Mass. 371; Buck- 
 minster V. Perry, 4 Mass. 594; and Lowe v. 
 JoUifee, 1 W. Bl. 365. He continues: "It re- 
 mains to be considered, whenever the ques- 
 tion shall directly arise, whether this is not 
 
§ 122) 
 
 HARDY Vi MERRILL. 
 
 Case No. 165 
 
 the most eligible and proper course In ques- 
 tions of this nature; but upon this matter it 
 is not now necessary to make a decision." 
 
 The only other New Hampshire case re- 
 ferred to by the court, in support of the de- 
 cision in Boardman v. Woodman, was Low 
 V. Railroad Co., 45 N. H. 370, where it was 
 held that the opinion of a witness as to the 
 value of a horse was inadmissible, although 
 the same witness was allowed to express 
 his opinion as to the size, weight, and speed 
 of the same animal, these latter opinions 
 being "received of necessity." That "neces- 
 sity" being supplied, it was said, by the 
 court: "That there can be no necessity for 
 receiving such opinions [of value] is obvious 
 from the fact that aU the materials for form- 
 ing an opinion for themselves would be laid 
 before the jury, whether the opinions of wit- 
 nesses were to be received or not; and, judg- 
 ing from ordinary experience, the mere opin- 
 ion of the witnesses would afford to the 
 jury but little aid." 
 
 Perhaps this may be true (though I am not 
 prepared to concede it) with regard to a 
 horse, with which animal most jurors have 
 some acquaintance; but I apprehend we 
 should not have heard Judge Bellows using 
 the same language with regard to a question 
 of human sanity. On the contrary (from 
 what we shall see, by and by, he has said), 
 I Infer that, if he had desired to be ex- 
 tremely cautious, he might have remarked: 
 "There could be no necessity for receiving 
 such opinions, if aU the materials for forming 
 an opinion for themselves could be laid be- 
 fore the jury; but judging from ordinary 
 experience, they cannot. Hence the necessity 
 for admitting the evidence of opinion as be- 
 ing the best evidence of which the case is 
 susceptible." 
 
 But to recur to the 'long and well estab- 
 lished usage in this state." Hamblett v. Ham- 
 blett was decided in 1833. We have seen that 
 it does not sustain the position in aid of 
 which it was invoked, but that the judg- 
 ment of the court contains a very strong in- 
 timation that the doctrine of the admissi- 
 bility of the opinion of non-professional wit- 
 nesses upon a question of sanity had not been, 
 and was not then likely to be, denied. 
 
 What was the anterior doctrine and usage 
 which Hamblett v. Hamblett did not over- 
 throw ? 
 
 State V. Ryan was tried in Cheshire coun- 
 ty, May, 1811, before Livermore, O. J., audi 
 Steele, J. ;— the attorney-general, for the state ; 
 Chamberlain, Hubbard, and Vose, for the 
 defendant. 
 
 One non-expert testified that he "had no 
 idea, from what he saw of the defendant, 
 that he was anyway deranged;" another, 
 that he "appeared like a man without sense;" 
 another, that, on a certain morning, he was 
 "perfectly rational; in the afternoon he be- 
 came wild." 
 
 Judge Livermore, in summing up the tes- 
 timony, particularly named the witnesses 
 
 who, to use his own words, "testify that in. 
 then- opinion he had not the use of his rea- 
 son." See State v. Pike, 49 N. H. 417. 
 
 I have before me the pamphlet report of 
 the trial of Daniel D. Farmer, before Rich- 
 ardson, 0. J., Woodbury and Green, JJ., in 
 1821;— Geo. Sullivan, attorney-general for 
 the state; Richard Fletcher and Parker 
 Noyes, for the defendant. 
 
 The dying declarations of the woman wh» 
 was slain being material, the inquiries were 
 made by the solicitor, "Had she her senses''" 
 "Did she understand you?" The witness 
 was unable to state. The court asked the- 
 witness, "Was the deceased sensible of what 
 you told her?" Hon. Richard H. Ayer tes- 
 tified that the prisoner's temper was "mild 
 and calm." 
 
 In 1825, Amos Fm-nal was tried at Dover 
 for the mm-der of his child by starvation. 
 Richardson, C. J., presided. The solicitor,. 
 Lyman Walker, was assisted by Levi Wood- 
 bury, in the absence of the attorney-general. 
 The prisoner's counsel were Jeremiah Mason 
 and Stephen C. Lyford. Non-professional 
 witnesses testified, without objection,— some, 
 that the child "did not appear to be well 
 dealt by;" others, that he "did not seem to- 
 be scanted;"— one, that he was a bright, 
 sprightly lad; another, that "he was not so- 
 bright as the other children,— did not talk 
 bright and sensible." 
 
 State V. Corey was tried in Keene, A. D. 
 1830, before Richardson, C. J., and Gr'een 
 and Harris, JJ. ;— Handerson, Wilson, and 
 Chamberlain, for the state; Woodbury, Hub- 
 bard, and Joel Parker, for the prisoner. 
 
 The report of the trial, which I have before 
 me, and from which I made a few extracts, 
 is published "by Joel Parker." Against the 
 solicitor's objection, and after argument and 
 the citation of a Massachusetts case, the 
 court permitted the defendant's brother to 
 testify: "His father Is crazy;" his sister "is 
 wild as a hawk;" — and six other non-pro- 
 fessionals gave their opinions as to the 
 prisoner's own mental condition, various wit- 
 nesses for the state expressing adverse opin- 
 ions. One witness testified that the de- 
 fendant "looked and acted like a crazy per- 
 son;" and anotlier replied affirmatively to 
 an inquiry by the court whether the defend- 
 ant, on a certain occasion, "appeared ra- 
 tional." Judge Richardson, summing up, 
 told the jury that "the opinions formed the 
 day before the homicide, by persons in a 
 situation which enabled them to judge," were 
 "entitled to great weight." 
 
 Such was the ignominious failure of the 
 first attempt to introduce into this state the 
 Massachusetts exception to a rule then en- 
 tirely universal. 
 
 Then came on, in December of the same 
 year, the case of Hamblett v. Hamblett, of 
 which enough has been said. 
 
 In 1834, Abraham Prescott was ti-ied in 
 Merrimack county for murder before Rich- 
 ardson, C. J., and Parker, J.;— Geo. Sullivan,. 
 
 457 
 
•Case Ko. 363 
 
 UAKDY V. MEKIULL. 
 
 (§ 122 
 
 Attoi'ney-geueral for the state; Icliabod Bart- 
 lett, of counsel for the prisoner. It is safe 
 to say that no accusation of a capital crime 
 was ever more zealously and strenuously 
 contested in this state by the distinguished 
 lawyers who managed the defense; while 
 tlie eminent attorney-general omitted no part 
 of his own duty. 
 
 I discover that no fewer than seventeen 
 non-oxi3erts gave their opinions concerning 
 the prisoner's mental condition, one testify- 
 ing that the prisoner's father "was crazy at 
 times;"' his nephew "was crazy a number of 
 times, to my Jiuowledge;" a cousin of the 
 ■defendant "is not in his right mind, but not 
 so crazy as his father: the more cider he 
 got the more crazy he grew." 
 
 Mrs. Poor testified: Moses was "not half 
 ■so insane as his father." 
 
 Mrs. Huntoon swore that Mrs. Blake was 
 "occasionally a little out." "She appeared 
 so different while I was there from what 
 she formerly was, that I thought she was 
 crazy." 
 
 Mrs. Rowe had seen Marston Prescott 
 "often when he appeared crazy." 
 
 Chase Prescott (the prisoner's father) swore: 
 "My father was occasionally deranged;" 
 Marston was "crazy a number of years;" 
 Benjamine "was crazy." 
 
 On tlie other hand, Benning W. Sanborn 
 saw Mrs. Blake frequently, "but never con- 
 sidered her crazy." Hall Burgin "never saw 
 aiij^thing lilie derangement in the boy," — the 
 prisoner. 
 
 John Johnson "never discovered any symp- 
 toms of derangement," and many other wit- 
 nesses never saw any exhibition of "symp- 
 toms of insanity," and always considered the 
 prisoner "a person of somid mind." 
 
 JNIr. Bartlett, commenting upon the value 
 of the opinions concerning the insanity of 
 his client's aunt, said to the jury: "Tliey 
 state facts in relation to her conduct and 
 deportment, their own conclusions at the 
 time, and the judgment and opinions of 
 others, to whom the facts were known. 
 They were inmates of the family, — residents 
 in her house. The insanity of his half-sister 
 we prove by the testimony of his parents," 
 &c. And Judge Richardson, in summing up, 
 <'ommented minutely upon this evidence, and 
 the weight and importance to be given it. 
 
 It would be merely a repetition of the his- 
 torical part of Judge Doe's opinion in State 
 V. Pike, 49 N. H. 421-423, if I were to relate 
 how, after the eminent jurists who presid- 
 ed in our courts between the years 1811 and 
 1833, had all passed off the stage, the "Mas- 
 sachusetts exception" gradually worked into 
 favor in New Hampshire, it having been 
 erroneously declared by the Massachusetts 
 courts to be an expression of the English 
 common law. It was a "silent, unauthentic 
 growth," germinating in times so recent as 
 when no judse remained upon the bench 
 who had participated in the decision of ILim- 
 blett V. Hamblett, or in the trial of the early 
 458 
 
 cases; and the contiguity of Massachusetts, 
 and the resort by lawyers and judges to her 
 reports more than to any other printed de- 
 cisions, no doubt had much to do with im- 
 porting into our tribunals a rule and doc- 
 trine which was, undoubtedly, well estab- 
 lished there. 
 
 It is proper for me to invite attention to 
 the histoi-y of what I have called the "Mas- 
 sachusetts exception." Beginning with Poole 
 V. Richardson, (A. D. 1807) 3 Mass. 330, we 
 find no very wide departure from the gen- 
 eral rule of admissibility. The case holds 
 that non-professional witnesses may "not 
 testify merely their opinions or judgment." 
 Judge Doe (State v. Pike, 49 N. H. 410) sus- 
 pects that tlie only point ruled in this case 
 was, that the witnesses were allowed to give 
 their opinions when they stated particular 
 facts from which the state of the testator's 
 mind was inferred by them. 
 
 But the exception grew and dilated, find- 
 ing larger and stronger expressions along 
 through the years and the course of the 
 cases of Hathoi-n v. King, 8 Mass. 371; 
 Dickinson v. Barber, 9 Mass. 225; Needham 
 V. Ide, 5 Pick. 510; Com. v. Wilson, 1 Gray, 
 337, down to Com. v. Fairbanks (A. D. 
 1861), 2 Allen, 511, when it was held per 
 curiam, "that the incompetency of the opin- 
 ions of non-experts was not an open ques- 
 tion in Massachusetts;" though Judge Thom- 
 as had recently said, in Baxter v. Abbott, 7 
 Gray, 79, that "if it were a new question, 
 (he) should be disposed to allow every wit- 
 ness to give his opinion, subject to cross-ex- 
 amination upon the I'easons upon which it 
 is based, his degree of intelligence, and his 
 means of observation." 
 
 In very recent times, how^ever, we observe 
 a more liberal disposition on the part of the 
 Massachusetts courts. See Barker v. Com- 
 ins, (A. D. 1872) 110 Mass. 477, and Nash v. 
 Hunt, (A. D. 1874) 116 Mass. 237. In the 
 former of these cases, it was held that per- 
 sons acquainted with the testator, although 
 neither witnesses to the will nor medical ex- 
 perts, may testify whether they noticed any 
 change in his intelligence, and any want of 
 coherence in his remarks. Gray, J., said: 
 "The Question did not call for the expression 
 of an opinion upon the question whether the 
 testator was of sound or unsound mind, 
 which the witnesses, not being either physi- 
 cians or attesting witnesses, would not be 
 competent to give. The question whether 
 there was an apparent change in a man's in- 
 telligence or understanding, or a want of co- 
 herence in his remarks, is a matter, not of 
 opinion, but of fact, as to which any wit- 
 ness may testify, in order to put before the 
 com-t or juiy the acts and conduct from 
 which the degree of his mental capacity may 
 be interred." 
 
 In Nash V. Hunt a witness was allowed 
 to say ho observed no Incoherence of thought 
 In the testator, nor anything unusual or sin- 
 gular in respect to his mental condition; 
 
« 122) 
 
 HAKDY V. AlEHKILL. 
 
 Case No. IG 5 
 
 Judge Wells saying: "Wo do not under- 
 stand this to be giving an opinion as to the 
 condition of the mind itself, but only of its 
 manifestations in convei-sation with the wit- 
 ness." The witness could state, "as matter 
 ■of observation, whether his conversation and 
 ■demeanor were in the usual and natural 
 manner of the testator or otherwise;" and in 
 Com. V. Pomeroy, 117 Mass. 149, non-profes- 
 sional witnesses were allowed to state, with- 
 out objection, that the prisoner, "in conver- 
 sation and manner, evinced no remorse or 
 sense of guilt." 
 
 With deference and great respect I may be 
 allowed to say, that I rejoice much more in 
 the results attained in these latter eases than 
 in the modus operandi of judicial reasoning 
 by which the conclusions were reached. 
 They indicate decided and accelerating prog- 
 ress of the Massachusetts courts in the right 
 du^ectiou. The full establishment of the ti-ue 
 ■doctrine there, is a question of time only. 
 
 A tolerably careful Investigation author- 
 izes me to repeat the language of Judge Doe 
 that "in England no express decision of the 
 point can be found for the reason that such 
 evidence has always been admitted without 
 objection. It has been universally regarded 
 us so clearly competent, that it seems no 
 English lawyer has ever presented to any 
 court any objection, question, or doubt in re- 
 gard to it." State v. Pilce, 49 N. H. 408, 
 409. 
 
 I presume, however, it will not be denied 
 that in the ecclesiastical com'ts. where ques- 
 tions of testamentary ciipacity are seuerally 
 tried, such opinions liave always been re- 
 ceived. See 1 Greenl. Ev. (12th Ed.) § 440, 
 note 4; Dew v. Clark, 3 Addams, Ecc. 79; 
 Wheeler v. Aldersou, 3 Hagg. Ecc. .'574, 
 where Sir John Nicholl said, in pronouncing 
 his judgment: "There is a cloud of witnesses 
 who gave unhesitating opinions that the de- 
 ceased was mad." 
 
 The practice in the coxn-ts of the common 
 law has been universal and unwavering in the 
 same direction; and "the number of English 
 authorities is limited only by the number of 
 fuUy reported cases in wliich the question of 
 sanity has been raised." State v. Piise, 49 
 X. H. 409. 
 
 In the year 1800, .Tames Hadfield Avas tried 
 for shooting at King George III. The de- 
 fense was insanity, and the opinions of nou- 
 flxpert witnesses were freel.v admitted, (27 
 State Tr. 1281 et seq.;)— and Mr. Er.skine told 
 the jury they "ought not to be shaken in 
 giving full credit to the evidence of those 
 who * * * describe him as discovering no 
 symptoms whatever of mental incapacity or 
 disorder." Erskine's Speeches (3d London 
 Ed.) 132, 140. 
 
 In Eagleton v. Kingston, 8 Ves. 4.50, Ann 
 Boak and Elizabeth Bauson "expressed a 
 strong opinion of the total incapacity of the 
 deceased, both from his great imbecility of 
 mind and the dominion * * * of Mrs. 
 
 Kingston;" and John Fogg testified that "his 
 faculties were very much impaired." 
 
 In Lowe v. JolUflCe, 1 W. Bl. 3Gu, the sub- 
 scribing witnesses to a will havmg sworn 
 that the testator was utterly incapable of 
 making such an instrument, to encounter 
 this evidence the plaintiff's counsel examined 
 the friends of the testator, who strongly de- 
 posed to his sanity. 
 
 In Tatham v. Wright, 2 Russ. & M. 1, 
 Lord Chief Justice Tindal, "in behalf of him- 
 self and the lord chief baron," in reading 
 the judgment of the court, commented upon 
 the fact that "on the trial of this cause, tor 
 the purpose of proving affirmatively the gen- 
 eral incapacity of Mr. Marsden. a very large 
 body of parol evidence was produced "by the 
 defendants in the issue, comprising not fewer 
 than sixty-one witnesses in number, some of 
 whom deposed to the state of Mr. Mars- 
 den's intellect and the powers of his mind 
 in very early life, and others continued the 
 accoimt down to a period very shortly be- 
 fore his death in 1826." 
 
 The greater part of this testimony came 
 from non-professionals, and consisted in the 
 expression of opinion. 
 
 Courts and text-writers all agree that, up- 
 on questions of science and skill, opinions 
 may be received from persons specially in- 
 structed by study and experience in the par- 
 ticular art or mystery to which the investi- 
 gation relates. 
 
 But without reference to any recognized 
 rule or principle, all concede the admissibil- 
 ity of the opinions of non-professional men 
 upon a great variety of unscientific questions 
 arising every day, and in every judicial in- 
 quiry. These are questions of identity, 
 handwriting, quantity, value, weight, meas- 
 m-e. time, distance, velocity, form, size, age, 
 strength, heat, cold, sickness and health; 
 questions, also, concerning various mental 
 and moral aspects of humanity, such as dis- 
 position and temper, anger, fear, excitement, 
 intoxication, veracity, general character, and 
 particular phases of character, and other 
 conditions and things, both moral and physic- 
 al, too numerous to mention. See. in addi- 
 tion to tlie American cases cited by Judge 
 Doe, in State v. Pike, passim, and the cases 
 cited by the learned counsel for the appel- 
 lant, in argument: Com. v. Dorsey, 10;! 
 Mass. 412; Mclntire v. McConn, 28 Iowa, 
 480, 483; Dickinson v. Dickinson, 61 Pa. St. 
 404; Boyd v. Boyd, 06 Pa. St. 283, 280, 290; 
 Pidcoclv V. Potter, 68 Pa.. St. 351; 1 Whart. 
 Or. Law, § 48. 
 
 All evidence is opinion merely, unless you 
 choose to call it fact and knowledge as dis- 
 covered by and manifested to the observa- 
 tion of the witness. 
 
 And it seems to me quite unnecessary and 
 irreli'vant to crave an apology or excuse for 
 the admission of such evidence, by referring 
 it to any exceptions (whether classified, or 
 isolated and arbitrary) to any supposed gen- 
 
 459 
 
Case No. 163 
 
 HARDY V. MERUILL. 
 
 (§ 122 
 
 eral rule, according to tlie language of some 
 books and the custom of some judges. 
 There is, in truth, no general rule requiring 
 the rejection of opinions as evidence. A 
 general rule can hardly be said to exist, 
 which is lost to sight in an enveloping mass 
 of arbiti-ary exceptions. 
 
 But if a general rule will comfort any who 
 insist upon excluding and suppressing truth, 
 unless the expression of the truth be re- 
 strained within the confines of a legal rule, 
 standard or proposition, let them be content 
 to adopt a formula like this: "Opinions of 
 witnesses derived from observation are ad- 
 missible in evidence, when, from the nature 
 of the subject under investigation, no bet- 
 ter evidence can be obtained." No harm 
 can result from such a rule, properly applied. 
 It opens a door for the reception of impor- 
 tant truths which would otherwise be exclud- 
 ed, while, at the same time, the tests of 
 cross-examination, disclosing the witness's 
 means of knowledge, and his intelligence, 
 judgment and honesty, restrain the force of 
 the evidence within reasonable limits, by en- 
 abling the jm-y to form a due estimate of its 
 weight and value. See 1 Eedf. Wills, 136- 
 141. 
 
 Opinions concerning matters of daily oc- 
 cm-rence, and open to common observation, 
 are received from necessity; (Com. v. Stur- 
 tivant, 117 Mass. 122;) and any rule which 
 excludes testimony of such a character, and 
 fails to recognize and submit to that neces- 
 sity, tends to the suppression of truth and 
 the denial of justice. 
 
 The ground upon which oi^inions are admit- 
 ted in such cases is, that, from the very 
 nature of the subject in issue, it cannot be 
 stated or described in such language as will 
 enable persons, not eye-witnesses, to form an 
 accurate judgment in regard to it. De Witt 
 v. Barly, 17 N. Y. 340; Bellows, J., in Taylor 
 V. Railway Co., 48 N. H. 309. 
 
 How can a witness describe the weight of 
 a horse? or his strength? or his value? AVill 
 any description of the wrinkles of the face, 
 the color of the hair, the tones of the voice, 
 or the elasticity of step convey to a jury any 
 very accurate impression as to the age of 
 the person described? And so also in the 
 investigation of mental and psychological 
 conditions,— because it is impossible to con- 
 vey to the mind of another any adequate 
 conception of the truth by a recital of visible 
 and tangible appearances,— because you can- 
 not, from the nature of the case, describe 
 emotions, sentiments, and affections which 
 are really too plain to admit of concealment, 
 but, at the same time, incapable of de- 
 scription,— the opinion of the observer is ad- 
 missible from the necessity of the case; and 
 witnesses are permitted to say of a person, 
 "He seemed to be frightened;" "he was 
 greatly excited;" "he was much confused;" 
 "he was agitated;" "he was pleased;" "he 
 was angry." All these emotions are ex- 
 400 
 
 pressed to the observer by appearances of 
 the countenance, the eye, and the general 
 manner and beai-ing of the individual,— ap- 
 pearances which are plainly enough recog- 
 nized by a person of good judgment, but 
 which he can not otherwise communicate 
 tlian by the expression of results in the shape 
 of an opinion. See Best, Ev. 585. It is on 
 this principle, says Mr. Best, that testimony 
 to chai'acter is received; as, to where the 
 witness deposes to the good or bad char- 
 acter of a party who is being tried on a 
 criminal charge, or states his conviction that, 
 from the general character of another wit- 
 ness, he ought not to be believed on his 
 oath. Best, Ev. 657. "So," continues Mr. 
 Best, "the state of an unproducible portion 
 of real evidence, — as, for instance, the ap- 
 pearance of a building, or of a public docu- 
 ment which the law will not allow to be 
 brought from its repository,— may be ex- 
 plained by a term expressing a complex 
 idea, e. g., that it looked old, decayed or 
 fresh; was in good or bad condition, «&c. So,, 
 also, may the emotions or feelings of a party 
 whose psychological condition is a question. 
 Thus, a witness may state as to whether, on 
 a certain occasion, he looked pleased, ex- 
 cited, confused, agitated, frightened, or the 
 like." 
 
 Considerations of this character controlled 
 the opinion of the com-t in De Witt v. Barly, 
 before cited. The learned judge, in deliver- 
 ing the opinion of the court, said: "To me 
 it seems a plain proposition, that, upon in- 
 quiries as to mental imbecility arising fi-om 
 age, it win be found impracticable, in many 
 cases, to come to a satisfactory conclusion, 
 without receiving to some extent, the opin- 
 ions of witnesses. How is it possible to de- 
 scribe in words, that combination of minute 
 appearances upon which a judgment in such 
 cases is formed? The attempt to try such a 
 question, excluding all matter of opinion, 
 would in most cases, I am persuaded, prove 
 entirely futile. * * * a witness can scai'ce- 
 ly convey an intelligible idea upon such a 
 question, without infusing into his testimony 
 more or less of opinion. Mental imbecility 
 is exhibited, in part by attitude, by gesture, 
 by the tones of the voice, and the expression 
 of the eye and face. Can these be described 
 in language so as to convey to one not an 
 eye-witness an adequate conception of their 
 force?" — and see Rand's note to Poole v. 
 Richardson, 8 Mass. 330. 
 
 The reasons drawn from necessity in cases 
 of this kind are enhanced by the obvious 
 consideration, that oftentimes the testimony 
 of experts, if it may be considered as possess- 
 ing peculiar value, is, upon the required oc- 
 casion, unattainable. 
 
 In very many forms of derangement, imbe- 
 cility, idiocy, or more active insanity, the in- 
 dications of mental disease being apparent 
 to general and ordinary observation, a man 
 of common sense and wordly experience can 
 
§ 122) 
 
 HAKDY «. MERIJILL. 
 
 Case No. 163 
 
 draw just iufereucos from tlvcin, as well 
 without as with a scientific education. 
 
 The question of testamentary capacity is 
 in strictness limited to a very brief period 
 of time — the few minutes occupied by tlie 
 attestation of the will. Evidence of a pre- 
 vious mental condition is, of course, compe- 
 tent, as tending to show that such previous 
 condition probably continued and existed at 
 the precise moment in question. 
 
 Bnt experts are not ordinarily employed, 
 lilie a corps of dectives, to "worli up" the 
 case, by Inquiries concerning conditions an- 
 tecedent to the execution of the wUl; neither, 
 I suppose, are they usually brought to the 
 testator's bedside for the purpose of attest- 
 ing the instrument. It has never been dis- 
 puted that the subscribing witnesses may 
 testify concerning the actual mental condi- 
 tion of the testator as freely as medical ex- 
 perts, who speak from personal and profes- 
 sional acquaintance, study and investigation, 
 whether these subscribing witnesses happen 
 to be the attending physicians, nm-ses, chil- 
 dren or chance strangers; but why they are 
 admissible, simply as subscribing witnesses, 
 has never been explained satisfactorily; and 
 no good reason, I apprehend, can be assigned 
 for any distinction in this respect between 
 subscribing witnesses and any other. 
 
 In Beaubien v. Oicotte, 12 Mich. 459, Camp- 
 bell, J., treatmg of this subject, says: "The 
 reasons given by those courts which confine 
 -such testimony to these witnesses are based 
 upon the assumption that they are called in 
 for the special purpose of scrutinizing the ca- 
 pacity as well as the acts of the testator. 
 It is matter of every-day experience, that 
 wiUs made in extremis must usually be wit- 
 nessed by any persons who are conveniently 
 to be found; and it is not often that much 
 care is taken to procure educated or pecul- 
 iarly intelligent witnesses; nor is their at- 
 tention, in fact, very closely addressed to 
 the question of capacity, beyond what 
 would naturaUy be the case with any other 
 observers present. 
 
 "But, be this as it may, the rule assumes 
 that any person of ordinai-y capacity may 
 form a reliable opinion concerning the con- 
 dition of another, from simply witnessing 
 the execution of a will which is rudely 
 drawn up or discussed in the presence of the 
 attesting witnesses. It is little short of ab- 
 surdity to hold that persons, having equal or 
 greater facilities derived from personal ac- 
 quaintance and long intercourse, are not as 
 competent to form opinions as those who are 
 required to have no opportunity beyond one 
 brief interview." See Mr. Rand's comments 
 upon Poole v. Richardson, 3 Mass. 330. 
 
 Now, as the question of the sanity or in- 
 sanity of an Individual is a question of con- 
 duct as well as a question of nosology, as a 
 man is regarded as insane who acts in a 
 way different from that of a majority of his 
 fellows, it might well seem that the evi- 
 dence of experts in such cases was inadmis- 
 
 sible, since there can be no doubt that per- 
 sons of common sense, conversant with man- 
 kind, and having a practical knowledge of 
 the world, if brought into the presence of a 
 lunatic would in a short time be enabled to 
 form an accurate and reliable opinion, not, 
 perhaps of the specific and precise character 
 of his insanity as referable to a particular 
 class of the insane malady, but. certainly in 
 a general way, of his mental unsoundness. 
 See Browne, Insan. § 50G. Dr. Ray (Insan., 
 5th Ed., p. 626) advises medical witnesses to 
 be prepared with a well-ordered, well-digest- 
 ed, comprehensive knowledge of mental 
 phenomena, in a sound as well as an un- 
 sound state, and recommends Shakespeare 
 and Moliere as preferable text-books to 
 Stewart and Locke, showing that it is the 
 practical knowledge of character in its rela- 
 tion to conduct that he regards as tlie most 
 important requisite, in the way of knowl- 
 edge, of a medical witness. 
 
 I think it will be observed (and to my 
 mind it seems that it must be inevitable) 
 tliat wherever the rule is enforced, or rather 
 attempted to be enforced, which allows only 
 a recital of appearances to be given, it will 
 be found that such facts inevitably involve 
 opinions which the witness is unable to con- 
 ceal, and which the utmost vigilance of 
 judges cannot exclude. 
 
 These appearances are indeed facts, but 
 they are facts which it is impossible to ex- 
 press, except in a way that shall indicate 
 the opinion of the witness. Such opinions as 
 I have said, are therefore admitted ex ne- 
 cessitate. 
 
 It is impossible to prescribe the limits 
 within which opinions are receivable, ex- 
 cept by the application of this test: Is the 
 employment of such testimony, from the na- 
 tm-e of the case and its circumstances, the 
 only way, or the best practicable way, of 
 discovering the truth? 
 
 One hundred and thirty-one years ago. 
 Lord Hardwicke said in Omychund v. Bar- 
 ker, 1 Atk. 21, 6 Camp. Lives Ld. Ch. (5th 
 Eng. Ed.) c. 131, p. 201: "The judges and 
 sages of the law have laid it down that there 
 is but one general rule of evidence— 'the best 
 the natm-e of the case will admit.' " 
 
 "The natiu-e of the case" means, when em- 
 ployed in this connection, something more 
 accurately described as "the nature of the 
 subject." The authorities cited in State v. 
 Pike, 49 N. H. 408, 409, and many others (to 
 some of which I shall hereafter refer), show 
 that the understanding and practice of Eng- 
 lish lawyers and judges always have been 
 and now are perfectly unanimous on the 
 question whether the natvu-e of the mental 
 conditions of calmness and excitement, peace 
 and passion, love and hate, gentleness and 
 ferocity, sobriety and intoxication, health 
 and disease, is such that the opinions of non- 
 experts, formed by personal observation of 
 the appearance and conduct of an individual 
 whose mental condition is in question, is 
 
 401 
 
Case No. 163 
 
 HARDY V. MERBILL. 
 
 (g 122 
 
 the best evidence of that condition, within 
 the meaning of the rule admitting the best 
 evidence that the nature of the subject ad- 
 mits. 
 
 The meaning of the rule Is best shown by 
 examples. Nobody ever doubted that a non- 
 professional man could testify that a certain 
 neighbor, whom he had been accvistomed to 
 see, appeared one day to be well and the 
 next day to be sict. Although the testimony' 
 of a physician, as to some of the details of 
 the apparent health and sicliness of that 
 neighbor, might be more satisfactory, and, 
 in a certain sense, better evidence, the opin- 
 ion of the non-expert on the general ques- 
 tion of health and disease, in that case, 
 would belong to the class of the best evi- 
 dence, within the meaning of the rule. And 
 so, also, with regard to a question of men- 
 tal condition: a medical expert may be able 
 to state the diagnosis of the disease more 
 learnedly; but, upou the question whether it 
 had, at a given time, reached such a stage 
 that the subject of it was incapable of malt- 
 ing a will or a contract because irresponsi- 
 ble for his acts, the opinions of his neigh- 
 bors, if men of good common sense, would 
 be worth more than that of all the experts 
 in the country. Bresse, J., in Rutherford v. 
 Morris (Sup. Ct. 111., Nov. 4, 1875), reported 
 in 77 111. 397, Chi. Leg. News, 94, Dec. 11, 
 1875. 
 
 In the case referred to, the opinions of 
 sixty common-sense witnesses, neighbors of 
 the testator, were received in preference to 
 those of the experts. Judge Breese remarls- 
 ing: "We feel confident that we will be 
 more likely to arrive at a just estimate of 
 the mental condition and business capacity 
 of the testator by relying* on the accordant 
 testimony of his life-long acquaintances and 
 neighbors, with whom the testator was in 
 frequent intercourse, rather than from the 
 testimony of these medical gentlemen; and 
 so would the jury." On such questions the 
 testimony of the expert and the testimony 
 of the non-expert would both be the best 
 evidence; that is, would be parts of the class 
 of best evidence, within the meaning of the 
 rtile. 
 
 Nobody ever supposed that the rule of the 
 be.st evidence admitted no opinions of physic- 
 al condition except those of experts, and 
 confined experts to a description of tliose 
 physical appearances which were the evi- 
 dence upon which they formed their opin- 
 ion of the man's being well or sicli. 
 
 If the language of the rule were required 
 t.o be strictly interpreted, one expert would 
 have to be excluded if it were made to ap- 
 pear that another expert was better quali- 
 fied, because the testimony of the former 
 would not be the best. 
 
 When the question is, upon a post-mortem 
 examination and a dissection and chemical 
 analysis of the stomach and its contents, 
 whether the scientific indications in that 
 organ were of the presence and action of 
 402 
 
 arsenic or strychnia, the opinion of a mere 
 lawyer, farmer or blaclismith would not be 
 the best evidence in any sense, but would- 
 be good for nothing; and, as no one would 
 think of asking their opinion on that phys- 
 iological and chemical question, so no one- 
 would think of rejecting their opinion, based 
 on their own observation of the deceased 
 the day before his death, that he then ap- 
 peared to be well or sick. Suppose the day 
 before or a week before the death, a lawyer, 
 farmer and blacksmith saw the deceased,, 
 and had an opportunity to see whether he 
 appeared to be well or sick: suppose the law- 
 yer Is asked, "Did you observe any indica- 
 tions of his being well or sick?" and the an- 
 swer to be, "I observed no indication of his 
 being sick; he appeared as well as usual, 
 as well as I ever saw him:" suppose tht- 
 farmer is asked, "Did you notice anythinfr 
 unusual in his appearance or conduct?" and 
 the answer is, "No. I did not:" suppose the- 
 blacksmith is asked, "In your opinion was 
 he well or sick?" and the answer is, "In my 
 opinion he was perfectly well: his spirits,, 
 looks and behavior, all showed, in my opin- 
 ion, freedom from weakness and pain:" what 
 legal distinction can be drawn between these 
 questions and answers, to make one compe- 
 tent, and either of the others incompetent r 
 It is all opinion, and nothing but opinion, of 
 the man's physical condition in relation to- 
 health or disease. The use or the omission 
 of the word "opinion," in either of those ques- 
 tions or answers, does not affect the char- 
 acter of the testimony in the slightest degree. 
 Calling such testimony "opinion" does not 
 malie it "opinion;" and calling it something 
 else (as in Barker v. Comins and Nash v. 
 Hunt, before cited) does not make It some- 
 thing else. It is opinion, not because the 
 word "opinion" Is used, but because it is the 
 judgment of the witness, exercised upon 
 what he personally saw and heard of the de- 
 ceased, and the conclusion of his own mind 
 upon the question of physical health or dis- 
 ease, — a conclusion formed by the witness, 
 not by the jury, and formed upon sights and 
 sounds which enabled the witness to form 
 an opinion satisfactory to himself, although 
 it is one which he might be unable to de- 
 scribe to a jury so as to enable them to form 
 as satisfactory an opinion as they would if 
 they had seen and heard what the witness 
 saw and heard and such evidence is more 
 valuable than the testimony of experts un- 
 acqtiainted with the testator. See Brooke v. 
 Townshend, Redf. Lead. Cas. Wills, 89. 
 
 When the witness describes what he saw 
 and heard, as well as he can, Ms description 
 may (as It often must) fall short of being^ 
 the best evidence. State v: Pike, 49 N. H. 
 414, 415, 423. AVhen he adds to his descrip- 
 tion the impression made upon his own 
 mind by the things, appearances, and trans- 
 actions described, the jury have evidence of 
 the class called the best, though it may not 
 be so good as the opinion of a skillful phj- 
 
§ 122) 
 
 HAUDY 0. MERRILL. 
 
 Case No. 163 
 
 sician. The rule requiring the best evidence 
 relates to its grade only, and not to Its con- 
 clusiveness. Thus, the evidence of a by- 
 stander is competent to prove where lines 
 were run in a private siu-vey, though the 
 sui'veyor be living. Richardson v. Milbiu-n, 
 17 aid. 67. As the opinion of one expert 
 may be better than the opinion of anolher 
 expert, so the opinion of one farmer may be 
 better than that of another farmer in re- 
 lation to the quality of a load of hay; but, 
 coupled with such a descriptiou of the hay 
 as they can give, their opinions of its quali- 
 ty are both of the class of evidence called 
 the best, although the fact that well-fed cat- 
 tle ate the hay very greedily, or that half- 
 starved cattle would not eat it at all, would 
 be better evidence than the opinions or de- 
 scriptions given by the farmers. The opin- 
 ion of one farmer would not be excluded 
 because the opinion of another was better; 
 and both their opinions would not be ex- 
 cluded because the opinions of the cattle 
 would be better than either of theirs. 
 
 In Darling v. Westmoreland, 52 N. H. 
 401, 403, the defendants, arguing that evi- 
 dence of Fletcher's horse being frightened 
 was incompetent, suggested that, "at best, 
 it was evidence of an admission or a declara- 
 tion, by Fletcher's horse, that the alleged 
 obstruction looked frightful to him, and 
 * * * not even a declaration under oath 
 at that." But the court, holding that the 
 fright of Fletcher's horse was as competent 
 as the fright of the plaintiff's, affirmed the 
 doctrine of Whittier v. Franklin, 46 N. H. 
 23, that the fright of a horse might be proved 
 by witnesses testifying that he "appeared 
 to be frightened, or that In their opinion he 
 was frightened, or (to omit superfluous words, 
 and speak In that positive manner in which 
 witnesses would generally testify on such a 
 subject) that he was frightened." Page 403. 
 A non-expert may testify that he thought 
 a horse "was not then sound: * * * his 
 feet appeared to have a disease of long 
 standing," (Willis v. Quimby, 31 N. H. 485, 
 487;) that a horse "appeared to be well, and 
 free from disease;" that he thought "he 
 never saw any indication of the horse be- 
 ing diseased," (Spear v. Richardson, 34 N. 
 H. 428-^31.) These two cases relate to the 
 physical condition of a horse. The same 
 doctrine is equally well settled in relation to 
 the mental and moral condition of a horse, 
 so to speak; for in State v. Avery, 44 N. 
 H. 392, 393, It was held (Bellows, .1.) that a 
 non-expert might testify, on an indictment 
 for cruelly beating a horse, that the horse 
 drove like a pleasant and well-disposed horse, 
 unless when harassed by the whip; that, at 
 the time of the beating, he saw no vicious- 
 ness or obstinacy In the horse, and that the 
 blows appeared to affect the horse In a 
 particular manner. The evidence was opin- 
 ion, and nothing else; and It was opinion of 
 the mental and moral condition of the horse, 
 judged of by the witness from actions which 
 
 It was impossible for the witness to describe 
 in any better or more satisfactory way, so 
 as to give the jury the best evidence the na- 
 ture of the subject permitted. 
 
 In Whittier v. FrankUn, 46 N. H. 23, an 
 action for a defective high-way,— one point 
 of the defense being that the plaintiff's horse, 
 which he was driving at the time of the ac- 
 cident was vicious and unsafe, and that the 
 plaintiff's injuries were caused by the vices 
 of his horse,— it was held, Bellows, J., de- 
 livering the opinion of the court, that a 
 non-expert who witnessed the accident might 
 testify that he did not see any appearance 
 of fi-ight; that the horse did not appear Uy 
 be frightened in the least before he went 
 off the bank, or afterwards; that he ap- 
 peared to be rather a sulky dispositioned 
 horse to use. Judge Bellows cites People 
 V. Eastwood, 14 N. Y. 562, where it was held 
 that opinions as to whether a person is in- 
 toxicated may be received, (Milton v. Row- 
 land, 11 Ala. 7.32;) opinions as to the exis- 
 tence of disease, when perceptible to the 
 senses, (Bennett v. Fail, 26 Ala. 605;) opinion 
 that a slave appeared to be healthy; and 
 other cases in relation to opinions of a 
 healthy or sickly condition of body. He also 
 cites Spear v. Richardson and Willis v. 
 Quimby, before referred to, as to opinion of 
 health of horses. The very learned judge- 
 says that the substance of the statement of 
 the witness is, that the horse did not appeal- 
 to be frightened, but appeared to be sulky: 
 that, on such subjects, persons of common 
 observation may and do form opinions, that 
 are reasonably reliable in courts of justice, 
 from marks and peculiarities that could not 
 In words be conveyed to the minds of jurors, 
 to enable them to make the just inferences; 
 that it is much like the testimony that ji 
 horse appeared weU and free from disease, 
 or that a person appeared to be healthy, or 
 intoxicated. Page 26. The evidence was 
 held admissible as an opinion. 
 
 What reason is there for allowing a wit- 
 ness to testify that a horse appeared to have 
 a sulky disposition, and not allowing the 
 same witness to testify that a man appeareu 
 to have a similar disposition? What differ- 
 ence whether the witness says, "He ap- 
 peared to have a sulky disposition?" or, "In 
 my opinion, based upon my own observation 
 of him, he had a sulky disposition?" 
 
 A non-expert may give his opinion on the 
 physical health of a man, as well as on thc- 
 physical health of a horse (State v. Knapp, 
 45 N. H. 148-150;) may give his opinion not 
 only that a horse did not appear to be fright- 
 ened, but also that a lady did not seem to bi" 
 frightened or excited, (Taylor v. Railway Co.. 
 48 N. H. 304, 306, 309.) 
 
 The opinion of non-experts in relation to 
 mental condition is not limited to the ques- 
 tion of a mental disturbance caused by 
 fright. In Bradley v. Salmon Falls Manuf'g 
 Co.. 30 X. H. 487, 491, it was held that a 
 noii-fxpert might testify that the plaintiff 
 
 463 
 
Case No. 163 
 
 HAUDY V. MEUHILL. 
 
 (§ 122 
 
 "seemed satisfied" with a business arrange- 
 ment proposed to him by the witness. 
 
 In McKee v. Nelson, 4 Cow. 355, it was 
 held that, in an action for a breach of prom- 
 ise of marriage, a witness who Jinew the 
 plaintiff and had observed her conduct and 
 •deportment towards the defendant, was per- 
 mitted to express his opinion that the plain- 
 tiff was sincerely attached to the defend- 
 ant,— "a fact," said Judge Selden, "which it 
 is plain could be proved in no other way;" 
 and this decision was cited as undoubted law 
 by Judge Farlser, in Robertson v. Starli, 13 
 N. H. 114, 115. In McKee v. Nelson, the 
 «ourt say: "There are a thousand nameless 
 things, indicating the existence and degree 
 of the tender passion, which language can- 
 not specify,"— precisely what Judge Bel- 
 lows, in Whittier v. Franlilin, said of the 
 frightened mental condition and sulky dis- 
 position of a horse. 
 
 Better illustrations, I thinli, could not be 
 had of the meaning of the rule, admitting the 
 best evidence. 
 
 A boy worlis many years on a farm: and 
 the question arises, What was the value of 
 his services? Suppose he is dead, as is the 
 subject of inquiry in this and every testa- 
 mentary case: one of the material questions 
 Avould be whether the boy was bright or 
 stupid, amiable or morose. What evidence 
 •on these points would be so satisfactory as 
 the opinions of the intelligent and disinter- 
 •ested farmers in the neighborhood, who linew 
 him well? If there was a general concur- 
 rence in their opinions, one way or the othei", 
 would it not be decisive? and, if there was 
 not a concurrence, would not the cross-ex- 
 amination as to the grounds and reasons of 
 their opinions generally show the facts much 
 better than any statement of facts without 
 opinions? 
 
 What facts without opinion can any par- 
 ent state as to his own children, to give a 
 stranger any such tangible and satisfactory 
 information of their mental and moral pe- 
 culiarities as is given by an expression of his 
 opinion? 
 
 Of very many states of mind, as we have 
 already seen the opinions of non-experts are 
 competent evidence. What lawyer of con- 
 siderable experience or observation, in the 
 courts of this or any other jurisdiction, has 
 not heard such evidence given without ob- 
 jection, and no objection made, because 
 fivery lawyer and judge felt that it was the 
 best evidence? 
 
 A man is tried for the murder of his wife: 
 It is material to know how his mind was 
 affected when he was first informed of her 
 death. A witness, who says he told the 
 prisoner of it, is aslied how the prisoner 
 was affected: the answer is, "He was very 
 much overcome;" or, "He seemed very much 
 overcome; " or, "I thought he was deeply af- 
 fected;" or, perhaps, "The news did not dis- 
 turb him at all;" or, "He showed no signs 
 of grief;" or, "I saw no indications of sor- 
 4G4 
 
 row;" or, "He seemed depressed and 
 gloomy." Did anybody ever object to such 
 evidence? and, if any objection was ever 
 made on the ground that it was a matter of 
 opinion, was the objection ever sustained? 
 Was such evidence ever excluded here or 
 anywhere else? Evidence of this character 
 was received a few weeiss ago, in the trial 
 of Magoon, for murder, in liockingham coun- 
 ty, without the intimation of a doubt con- 
 cerning its competency; and the very able 
 and vigilant counsel, upon both sides, in that 
 cause, knew what they were about, and 
 omitted notliing of their duty to the prisoner 
 or to the public. 
 
 And such evidence is not confined to the 
 various mental conditions of health; it is 
 also received in relation to mental disease. 
 They who attended the death-bed of a tes- 
 tator are called to testify concerning his 
 mental condition. One says, — "A week be- 
 fore his death he was sick and confined to 
 his bed— very weak— not able to sit up, but 
 in other respects he appeared as usual." "As 
 usual" means, in such a case, sane, sound in 
 mind, of a healthy mental condition. "He ap- 
 peared natui'al," is the universal expression of 
 ordinary witnesses testifying to sanity. "If 
 'natural,' by its peculiar use in this connec- 
 tion (said Judge Doe), should, in evidence, 
 come to be synonymous with 'insane,' as 
 'natural' is imderstood to be synonymous 
 with 'sane,' the legal question now under 
 consideration would dwindle to a point of 
 literary taste." State v. Pike, 49 N. H., at 
 page 427; and see Boardman v. Woodman, 
 47 N. H., at page 146. 
 
 But one witness says : "He did not appear 
 as usual: he did not appear natural." Now 
 let us imagine a scene that might very prob- 
 ably be exhibited in any court where the 
 Massachusetts rule prevails: 
 
 "Very well," says a learned barrister, 
 "very well. Mr. Witness, you may say that, 
 —that is quite regular,— that is your opinion. 
 Now tell us in what respect he did not ap- 
 pear 'as usual,' or 'natural.' " "Well, I can't 
 describe it, but I should call it wandering, 
 delirious; he was incoherent in his talk." 
 "Very well, Mr. Witness, you acquit yom-- 
 self like a sensible man. Now tell the jury 
 whether, in your opinion, he was then of 
 sound mind." "I object!" tlmnders the 
 learned barrister on the other side. "I ob- 
 ject!" exclaims the opposing junior— "coun- 
 sel know better. It is an insult and outrage 
 to put such a question." "I object!" "I ob- 
 ject!" echoes from every side. The com't 
 room is in an uproar. The judge has to ex- 
 ert himself to restore order and keep the 
 peace. The lawyers on each side are all 
 talking at the same time in a very delirious 
 and incoherent manner. The witness is con- 
 founded. The jury are confounded. Ev- 
 erybody is confounded, except those who 
 understand that "incoherence of thought" 
 and "delirium," vulgarly called "wandering," 
 is not a state of mental unsoundness,— is 
 
§ 122) 
 
 HAKDY V. MERRILL. 
 
 Case No. 163 
 
 not mental disease; and that "as usual," | 
 or "natural" is not a condition of mental 
 healtli. Wliether it is sucli condition oi 
 not, is a question tlien solemnly debated. 
 After a profound discussion by counsel, and 
 a thorougb consideration by the judge, he 
 rules that the witness may say that the 
 deceased was delirious, but must not say 
 he was of unsound mind, because the wit- 
 ness, not being an expert is not qualified to 
 form an opinion on the general question of 
 mental health or mental disease. 
 
 That ruling is made in Maine (because it 
 was once a part of Massachusetts), in New 
 Hampshire, in Massachusetts, and in Texas 
 (Jehrke v. State, 13 Tex. 568), and nowhere 
 else in the civilized world. At the close of 
 the scene which I have described, not a man 
 of the laity goes out of the com-t room with- 
 out being disgusted with this exhibition of 
 the law as a system of arbitrary rules, that, 
 ignoring all legal ideas, decides upon a dis- 
 tinction purely verbal. And why should not 
 the laymen be disgusted with the senseless 
 subtlety which permits one party to show by 
 his witness that a testator "appeared per- 
 fectly natm-al," and forbids the adverse 
 party to ofEer the testimony of another wit- 
 ness tliat "he didn't appear to be in his right 
 mind?" 
 
 In the case now before us, the learned 
 judge and his associates, to whom the trial 
 was referred, evidently and inevitably ex- 
 perienced great embarrassment and confu- 
 sion of mind in their effort to conform to the 
 supposed rule. The futility of their endeav- 
 ors is notably apparent. 
 
 Mr. McAlpine was permitted to say of the 
 testator, "He seemed to be all broken down 
 in body," but was forbidden to say, "He 
 seemed to be all broken down in mind;" and 
 yet, the same witness (without specification 
 of mental or bodily infirmity) was permitted 
 to say that, between certain dates, "he had 
 changed very much;" "his mind was such 
 that he could not give any intelligent an- 
 swer;" "he didn't seem to have any mem- 
 ory;" "I discovered that he had failed;" "his 
 conversation was childish." 
 The following questions were ruled out. 
 First. "Being a brother of Joseph Hardy, 
 from your observation of his appearapce and 
 conduct at the time you saw him at your 
 house, in June, 1869, state whether or not, 
 in your opinion, he was at the time of sound 
 and disposing mind and memory." 
 
 Second. "Being a brother of the testator, 
 from what you had observed as to his con- 
 versation, conduct and general deportment 
 as to all subjects, up to the 26th day of 
 July, 1870, have you any opinion as to his 
 sanity at that date, and if so. what is it?" 
 
 Mr. Hardy was not allowed to say that 
 the testator "appeared like a failing man in 
 every respect." 
 
 Another witness was forbidden to testify 
 that the testator "appeared like a man v^ho 
 didn't seem to know what he was talking 
 ABB. WILLS — 30 
 
 about half of the time;" but he was allowed 
 to state that "he appeared very weak in his 
 mind." 
 
 Another non-expert was permitted to tes- 
 tify: "He appeared childlike,— appeared fee- 
 ble in body and mind,— more like a child 
 than a rational man;" but another witness 
 was not allowed to state: "It looked to me 
 as though he was failing in his business 
 capacity, or in his mind." 
 
 And, finally, anoth'er witness, being ex- 
 pressly cautioned and charged to beware of 
 expressing any "opinion," was permitted to 
 say: "I observed nothing whatever, in his 
 conduct or conversation, indicating any im- 
 pairment of any of his mental faculties." 
 
 The Massachusetts rule is, that non-ex- 
 perts' opinions shall be excluded; but the 
 rule itself does not exclude them. It only ex- 
 eludes the use of certain words. It admits 
 the opinions, and merely embarrasses the 
 witness and confounds the jui-y by requir- 
 ing the witness to express his opinion with- 
 out using certain forbidden terms, and by 
 using others that are understood by the jury 
 and everybody else to be precisely synony- 
 mous. A non-expert, who has been watch- 
 ing by the bedside of a sick man, may say: 
 "He was delirious all night;" a farmer may 
 say that his neighbor's boy is so lacking in 
 intelligence as to be "below par;" anybody 
 may say that a man was "crazy drunk;" 
 that a testator didn't seem to understand 
 anything that was said to him— seemed 
 senseless, unnatural, not as usual; or, that 
 "no change was perceptible in his intelli- 
 gence," "no incoherence of thought," nor 
 anything unusual or singular in respect to 
 "his mental condition;" was healthly or sick- 
 ly in body;— but in giving his opinions of 
 mental health or disease, the non-expert must 
 not use the words "sane," "insane," "men- 
 taUy disordered," or "deranged." So far as 
 he can find synonymes for these words, cir- 
 cumlocutory but equivalent, he may express 
 his opinion in them, and welcome; but let 
 him beware of using those cabalistic words 
 on pain of the displeasure of those who un- 
 derstand that such terms as "delirious" and 
 "idiotic" are not expressive of an opinion of 
 the presence and opa-ation of mental disease. 
 Whether "out of his head" is one of the 
 phrases in which a non-expert may give 
 his opinion, or whether it is one of the for- 
 bidden caballa, is a question concernmg 
 which information is wanting. 
 
 The selection of the phraseology in which 
 such an opinion may be expressed, and that 
 in which it cannot be uttered, depends upon 
 no legal principle, but on the mere whim 
 of the court. Such an arbitrary and sense- 
 less choice or rejection of terms in which to 
 express an admissible opinion, is mere, sheer 
 logomachy, a waste of precious time given 
 us for better purposes, a verbal quibble un- 
 worthy of the law, and calculated to brmg 
 it into contempt. 
 It would be superfluous for me to add 
 
 465 
 
Case No. 163 
 
 HAHDY V. MERUILL. 
 
 (§ 1:^ 
 
 that I fully concur in the views auil opinions 
 expressed by Judge Doe in Boardman v. 
 Woodman and State v. Pike, and that I 
 cordially indorse the remarlcs of Judge Red- 
 field (11 Am. Law Reg. (N. S.) p. 259), as 
 follows: "The learned judge shows very 
 conclusively, both upon authority and rea- 
 son, that the opinion of the unprofessional 
 witnesses, in such a case, is commonly far 
 move reliable as a basis of ultimate deci- 
 sion, in questions of sanity and mental capac- 
 ity, tlian any specific facts which could pos- 
 sibly be gathered from the witnesses. We 
 have said in our books on wills, and in other 
 pliices, all that we could desire to say, both 
 as to the rationale of the rule, and the sup- 
 port which it receives from authority. The 
 tendency of the American courts in the last 
 few years has been largely in the direction 
 contended for by the learned judge and there 
 seems to be little question that it must 
 ultimately prevail all but universally. We 
 should rejoice at such a result, as greatly 
 tending towards the establishment of truth 
 with greater facility and certainly in a very 
 important class of cases." See 1 Redf. Wills 
 (4th Ed., A. D. 1876) 138-145, where many 
 other cases than those hereinbefore alluded 
 to are cited and commented upon. 
 
 Thus supported upon principle and author- 
 ity, I am satisfied that the time has arrived 
 when this coui't is called upon to declare thtt 
 law to be in conformity with the views I 
 have expressed. 
 
 466 
 
 LADD, J. I think it is sliown by proofs 
 which fall little, if at all, short of demon- 
 stration, that the doctrine excluding the 
 opinions of non-experts on the question of 
 insanity has grown up in this state within 
 the memory of men now living in the profes- 
 sion; that it had no place in the common 
 law brought here from England, nor in the 
 jurisprudence or practice in this state, from 
 the constitution down to a comparatively 
 recent date; tliat it is contrary to reason, 
 extremely diflicult of application, and in- 
 convenient in practice; that the great weight 
 of judicial opinion and authority outside 
 this state is against it; and that, even if we 
 look at the condition of authority as shown 
 by the expression of judicial opinion and 
 practice in this state, the balance cannot 
 fairly be said to be in favor of the rule. No 
 titles are to be disturbed by adopting a iiile 
 more consonant with reason and which ac- 
 cords with the almost universal practice ii; 
 jurisdictions where the common law is used 
 the world over. I therefore concur fuUy 
 with my Brother Foster in the conclusions 
 at which he has arrived. 
 
 GUSHING, C. J., concurred. 
 
 Case discharged. 
 
 NOTE. Cf. May v. Bradlee. 127 Mass. 414; 
 Clapp v. Pullerton, 34 N. Y. 190; Carpenter v. 
 Calvert, 83 111. 62, 71; Rutherford v. Morris, 
 77 111. 397, 405. 
 
g 123) 
 
 PASKE 0. OLLAT. 
 
 Case :Nro. 1C4 
 
 PASKE V. OLLAT. 
 
 (2 Phillm. Ecc. 323.) 
 
 Prerogative Court of Canterbury. Hilary 
 Term, 1816. 
 
 SIR JOHN NIOHOLL. There is no diffi- 
 culty whatever in the decision of this case; 
 but a feature occurs in it of a nature that 
 I cannot pass over vrithout notice. The 
 writer of the will, who was the deceased's at- 
 torney, is himself benefited under it to a con- 
 siderable amount. The court is always ex- 
 tremely jealous of a circumstance of this 
 natm-e. By the Roman law, (Dig. lib. 34, 
 § 8,) qui se scripsit haeredem could take 
 no benefit under a will. By the law of Eng- 
 land this is not the case: but the law of 
 England requires, in all instances of the 
 sort, that the proof should be clear and de- 
 cisive; — the balance must not be left in 
 equllibrio; the proof must go not merely to 
 the act of signing, but to the knowledge of 
 the contents of the paper. In ordinary cases 
 this is not necessary; but where the per- 
 son who prepares the instrument, and con- 
 ducts the execution of it, is himself an inter- 
 ested person, his conduct must be watched 
 as that of an interested person:— propriety 
 and delicacy would infer that he should not 
 conduct the transaction; and a fortiori in 
 a case where he is the confidential attorney 
 of the deceased; — and where the benefit con- 
 ferred is to a considerable amount. 
 
 The presumption and onus proband! are 
 against the instrument: but as the law does 
 not render such an act invalid, the court has 
 
 only to require strict proof:— and the onus 
 of proof may be increased by circumstances; 
 such as, unboimded confidence in the draw- 
 er of the will;— extreme debility in the tes- 
 tator;— clandestinely;— and other circumstan- 
 ces which may increase the presumption 
 oven so much as to be conclusive against 
 the instrument. In the absence, however, 
 of any circumstances of this sort, the de- 
 mands of law may be more easily satisfied. 
 
 These are the principles and rules handed 
 down to me by my predecessors, and, though 
 I have no difliculty as to the proof in this 
 case,— yet the feature is of a sort that I 
 was unwilling to pass over without notice. 
 The execution here is attested by two wit- 
 nesses, and a solicitor, who all depose with- 
 out the slightest hesitation as to capacity- 
 there is no concealment whatever: — Mr. 
 Golding openly before the witnesses refused 
 to attest the will, because he was benefited 
 under it. Every ijossible degree of caution 
 was observed: the sister of Mr. Golding 
 has also been examined; — she proves a 
 complete case, that she heard the instruc- 
 tions, that they originated with the de- 
 ceased, and were a surprise upon the drawer 
 of the will; — that he i>roposed another solic- 
 itor; but the dece:isod refused to attend to 
 this suggestion. A very careful reading 
 over is proved. 
 
 Upon the whole of this case I have not 
 the least doubt whatever of the perfect 
 capacity and free agency of the decreased; 
 and I am bound, therefore, to pronounce for 
 this will. 
 
 4(i7 
 
Case Ko. 165 
 
 PARFITT V. LAWLESS. 
 
 (§ 123 
 
 PARFITT y. LAWLESS. 
 
 (L. R. 2 Prob. & Div. 402.) 
 
 Court of Probate. July 25, 1872. 
 
 The plaintiff, Rev. Charles Parfltt, D.D., 
 propounded the will of Jane Conolly, of 
 Cottles, near Bath, in the county of Wilts, 
 widow, bearing date the 16tli of July, 1862. 
 The defendant, Philip I^awless, pleaded 
 originally that the will was not executed in 
 accordance with the requirements of the 
 statute 1 Vict. c. 26, that the deceased was 
 not of sound mind at the time of execution, 
 and that, as regards the residue, the will 
 was obtained by undue influence of the plain- 
 tiff. Subsequently the two first pleas were 
 withdrawn. Mrs. ConoUy's husband, who 
 died in 1850, was possessed of a considera- 
 ble estate called the Cottles estate, valued 
 at £63,000, and other property. He left a 
 life interest in it to his widow, and on her 
 decease he bequeathed it to his son (by a pre- 
 vious wife), Charles John Thomas Conolly, 
 absolutely; but in case his son died in the 
 lifetime of the widow without issue, then 
 the estate was to become hers absolutely 
 subject to an annuity for life of £2,500 to 
 the son's widow. Charles John Thomas 
 Conolly died a few days before Jane Conolly, 
 leaving a widow but no issue. The proper- 
 ty, exclusive of the interest under her hus- 
 l)and's will, of which the deceased died pos- 
 sessed was of the value of £7,000. The will 
 propounded was divided into two parts: by 
 the first she disposed of the property she 
 then possessed, and gave the residue thereof 
 to the plaintiff; and in the second she re- 
 ferred to her interest under her husband's 
 will, and in case she should come into pos- 
 session of the Cottles estate she charged it 
 with annuities to the amount of £740, and 
 subject to such charges bequeathed it to the 
 plaintiff. The plaintiff is a priest of the 
 Roman Catholic Church, and from the year 
 1S48 until her death resided with the de- 
 ceased and her husband as domestic chap- 
 lain; for a greater portion of the time he 
 also acted as her confessor. The question 
 at issue was tried before Lord Penzance and 
 a special jury on the 20th and 21st Decem- 
 ber, 1871. The defendant, upon whom the 
 burden of proof lay, produced several wit- 
 nesses,' but the com-t held he gave no evi- 
 dence to go to the jury. With the leave of 
 the court his counsel then called the plaintiff 
 and examined and ultimately cross-exam- 
 ined him as a hostile witness, but the com-t 
 still held that no. sufficient case of undue in- 
 fluence to go to the jiu-y had been offered, 
 and directed the jm-y to find a verdict for 
 the plaintiff, whieh they did, and probate 
 was granted of the will on formal proof of 
 execution. On the 24th of January, 1872, 
 before Lord Penzance, Mellor and Brett, JJ., 
 an application for a new trial was made on 
 the ground of misdirection, and a rule nis* 
 468 
 
 was ordered to issue, which came on for ar- 
 gument before Lord Penzance, Pigott, B., 
 and Brett. J. 
 
 Denman, Q. C, Dr. Spinks, Q. C, and 
 Bayford, for plaintiff. Digby Seymour, Q. 
 C, Ballautine, Sei-jt, and Dr. Tristram, for 
 defendant. 
 
 Cm-, adv. vult. 
 
 LORD PENZANCE. This rule was grant- 
 ed in order to consider a suggestion strongly 
 pressed that the rules adopted in the courts 
 of equity in relation to gifts inter vivos 
 ought to be applied to the making of wills. 
 In equity, persons standing in certain rela- 
 tions to one another— such as parent and 
 child, man and wife, doctor and patient, at- 
 torney and client, confessor and penitent, 
 guardian and ward— are subject to certain 
 presumptions when transactions between 
 them are brought in question; and if a gift 
 or contract made in favor of him who holds 
 the position of influence is impeached by 
 him who is subject to that influence, the 
 courts of equity cast upon the former the 
 bui'den of proving that the ti-ansaction was 
 fairly conducted as if between strangers; 
 that the weaker was not unduly impressed 
 by the natural influence of the stronger, or 
 the inexperienced overreached by him of 
 more matm-e intelligence. Applying this 
 view of the subject to the making of a will, 
 it was contended in this case that it was 
 enough to show that a legatee fell within 
 the class enumerated, and that, having done 
 so, the onus was cast upon him of proving 
 that his legacy was not obtained by undue 
 influence. It would be an answer to this 
 argument to say that this has never been, 
 and is not the law in this or any other 
 court regarding wiUs; and that, if this 
 court should presume to make a new law 
 on the subject, it would establish one 
 rule in regard to personalty, while anoth- 
 er would remain the existing rule in re- 
 gard to realty. "One point, however, is be- 
 yond dispute," said Lord Cranworth, in 
 Boyse v. Rossborough, 6 H. L. C. at page 
 49, "and that is, that where once it has been 
 proved that a will has been executed with 
 due solemnities by a- person of competent un- 
 derstanding, and apparently a free agent, 
 the burden of proving that it was executed 
 under undue influence is on the party who al- 
 leges it. Undue influence cannot be pre- 
 sumed." But in truth the cases in equity 
 apply to a wholly different state of things. 
 In the flrst place, in those cases of gifts or 
 contracts inter vivos there is a transaction 
 in which the person benefited at least takes 
 part, whether he unduly urges his influence 
 or not; and in calling upon him to explain 
 the part he took, and the circumstances 
 that brought about the gift or obligation, 
 the court is plainly requiring of him an ex- 
 planation within his knowledge. But in the 
 
123) 
 
 PARFITT V. LAWLESS. 
 
 Case No. 1G5 
 
 case of a legacy under a will, the legatee 
 may have, and in point of (act generally has, 
 no part in or even knowledge of the act; 
 and to cast upon him, on the bare proof of 
 tlie legacy and his relation to the testator, 
 the burden of showing how thvi thing came 
 about, and under what influence or with 
 what motives the legacy was made, or what 
 advice the testator had, professional or other- 
 wise, would be to cast a duty on him which 
 in many, if not most cases, he could not pos- 
 sibly discharge. A more material distinction 
 Is this: the influence which is undue in the 
 cases of gifts inter vivos is veiy different 
 from that which is required to set aside a 
 will. In the case of gifts or other transac- 
 tions inter vivos it is considered by the courts 
 of equity that the natural influence which 
 such relations as those in question involve, 
 exerted by those who possess it to obtain a 
 benefit for themselves, is an undue influence. 
 Gifts or contracts brought about by it are, 
 therefore, set aside unless the party beneflt- 
 ed by it can show affirmatively that the other 
 party to the transaction was placed "in such 
 a position as would enable him to form an 
 absolutely free and imfettered judgment." 
 Archer v. Hudson, 7 Beav. 551. 
 
 The law regarding wills is very diflferent 
 from this. The natural influence of the 
 parent or guardian over the child, or the 
 husband over the wife, or the attorney over 
 the client, may lawfully be exerted to ob- 
 tain a will or legacy, so long as the testator 
 thoroughly understands what he is doing, 
 and is a free agent. There is nothing ille- 
 gal in the parent or husband pressing his 
 claims on a child or wife, and obtaining a 
 recognition of those claims in a legacy, pro- 
 vided that that persuasion stop short of coer- 
 cion, and that the volition of the testator, 
 though biassed and impressed b/ the rela- 
 tion in which he stands to the legatee, is 
 not overborne and subjected to the domina- 
 tion of another. 
 
 The influence which will set aside a wUl, 
 says Mr. Justice Williams, "must amount to 
 force and coercion desti-oyiug free agency; 
 it must not be the influence of affection or 
 attachment; it must not be the mere desire 
 of gratifying the wishes of another, for 
 that would be a very strong ground in sup- 
 port of a testamentaiT act; further, there 
 must be proof that the act was obtained by 
 this coercion; by importunity which could 
 not be resisted; that it was done merely for 
 the sake of peace, so that the motive was 
 tantamount to force and fear." Williams, 
 Ex'rs, pt. 1, bk. 2, c. 1, § 2. This differ- 
 ence, then, between the influence which is 
 held to be undue in the case of transactions 
 inter vivos, and that which is called undue 
 in relation to a will or legacy, is all-impor- 
 tant when a question arises of making pre- 
 sumptions or adjusting the burden of proof. 
 For it may be reasonable enough to presume 
 that a person who had obtained a gift or 
 
 contract to his own advantage and the detri- 
 ment of another, by way of personal ad- 
 vice or persuasion, has availed himself of the 
 natural influence which his position gave 
 him. And in casting upon him the burden 
 of exculpation, the law is only assuming that 
 he has done so. But it is a veiT different 
 thing to presume, without a particle of proof, 
 that a person so situated has abused his 
 position by the exercise of dominion or the 
 assertion of adverse control. 
 
 For these reasons it seems to me that it 
 would be improper and unjust to throw up- 
 on a man in the position of the plaintiff, 
 without any proof that he had any hand 
 whatever in the making of this will, the 
 onus of proving negatively that he did not 
 coerce the testatrix into devising the residue 
 of her land to him. I say coerce, for this 
 is the only matter involved in a plea of 
 undue influence. Lord Orau-worth appears 
 in the case above cited to have regarded 
 fraud as a species of undue influence. It 
 is a mere question of terms ; but by the rules 
 of pleading established in this com-t since 
 December, 1865, fraud, which includes mis- 
 representation, is the subject of a separate 
 plea, and undue influence as a term used in 
 a plea in this com-t raises the question of 
 coercion, and that only. 
 
 I now proceed to examine the evidence, 
 upon the assumption that the defendant was 
 bound to prove the issue he raised, and tbat 
 it was necessary for him to establish afllrma- 
 tively by such evidence as the jury could 
 reasonably act upon, that the residuary 
 clause of this will was obtained by the coer- 
 cion of tlie plaintiff. And upon this as- 
 sumption the question is, Whether the evi- 
 dence which the defendant gave ought to 
 have been submitted to the jury. The argu- 
 ment on this head betrayed, I think, some 
 confusion as to the natm'e and limits of the 
 question, whether there is in any case evi- 
 dence for the jury. For instance, it was 
 urged as each separate fact or piece of evi- 
 dence came to be commented upon, that it 
 was not for the com-t but the jury to assign 
 its due value to such fact or evidence. If 
 this were so it would be unjustifiable for 
 the judge in any case to withdraw the evi- 
 dence, however slight, or even irrelevant, 
 from the jm-y. For to ascertain that it is 
 sUght or irrelevant the judge must assign 
 a meaning and a value to it, and this 
 might not be the same value or mean- 
 ing which it would bear in the eyes of 
 the jury. T conceive, therefore, that in judg- 
 ing whether there is in any case evi- 
 dence for a jm-y, the judge must weigh the 
 evidence given, and must assign what he 
 conceives to be the most favorable meaning 
 which can reasonably be attributed to any 
 ambiguous statements, and determine on the 
 whole what tendency the evidence has to es- 
 tablish the issue. 
 
 Again, it was argued that there were cer- 
 
 469 
 
Case No. 165 
 
 PAHFITT V. LAWLESS. 
 
 (§ 123 
 
 tain facts in tliis case calculated to give 
 rise to serious suspicions, and it seemed to 
 be contended that any conclusions which 
 might suggest themselves by way of sus- 
 picion merely, howevei- vague, might prop- 
 erly, if the jm'y pleased to Indulge in them, 
 form the basis of a verdict; and consequent- 
 ly that if facts were proved calculated to 
 generate such suspicions, enough had been 
 done to malie a case fit to go to the jury. 
 If this proposition were correct, it would fol- 
 low that the defendant had nothing more to 
 do in a case lilje the present than to prove 
 that the plaintiff w'as a Catholic priest, that 
 he was the confessor of the testatrix, and 
 that she had made him her residuary lega- 
 tee. For, upon this basis of fact, suspicion 
 freely indulged and directed by eloquent 
 comment might easily build up the fabric of 
 undue influonce or even fraud. It is not in- 
 tended to be said that he upon whom the 
 burden of proving an issue lies is bound to 
 prove every fact or conclusion of fact npon 
 wliicli the issue depends. From every fact 
 that is proved legitimate and reasonable in- 
 ferences may of course be drawn, and all 
 that is fairly deducible from the evidence 
 is as much proved for the purpose of a 
 prima facie case as if it had been proved 
 directly. I conceive, ftierefore, that in dis- 
 cussing whether there is in any case evi- 
 dence to go to the jury, what the court has 
 to consider is this, whether, assuming the 
 evidence to be tme, and adding, to the di- 
 rect proof all such inferences of fact as in 
 the exercise of a reasoualile intelligence the 
 .iury would be warranted in drawing from 
 it. there is sufficient to support tlie issue. 
 
 1 have been thus far particular in endeavor- 
 ing to draw the line between that which rests 
 upon proof, and that which rests on supicion 
 only, because in this case I thought the de- 
 fendant's argument wholly confounded them. 
 The propositions which he was bound to give 
 reasonable evidence to establish were these: 
 that the plaintiff had interfered in the mak- 
 ing of the will, that he had procm'ed the 
 gift of the residue to himself, and that he 
 had brought this about not by persuasion 
 and advice (for tliat Avould be perfectly 
 legal), but by some coercion or dominion ex- 
 ercised over the testatrix against her will or 
 by importunity so strong that it could not be 
 resisted. I have loolsed through the evidence 
 in vain to find reasonable proof of any one of 
 tliese three propositions. As regards the 
 making of the wiU the defendant took a 
 most unusual course. For the sake of hav- 
 ing the first and last word with the juiy, 
 he withdrew the picas which would have 
 put the plaintiff on proof of the will, and 
 gave no evidence of its execution himself. 
 The consequence was that the attorney, wlio 
 received the instructions from tiie testatrix, 
 «-ho made the will, and who, it must be pre- 
 sumed, knew the circumstances under which 
 it was made, and the reasons upon which the 
 470 
 
 testatrix acted so far as she allowed them 
 to be known, was not called as a witness; 
 nor were the attesting witnesses, nor was 
 their place supplied by any other evidence. 
 The making of the will and everything 
 connected with it was left an absolute blank. 
 Literally the only proof which was offered 
 to show that the plaintiff had anything to 
 do with it, consisted in the fact that he was 
 in London about the time that the will bears 
 date, that he and the testatrix were seen to- 
 gether at' the house of a relation of his, and 
 that they were also seen at the exhibition. 
 Whether the plaintiff knew what the testa- 
 trix had done for him in the will, is a point 
 to which much cross-examination, and much 
 argument was directed. He denied it, but 
 admitted many things from which a doubt 
 of his denial may be inferred. But in my 
 mind this matter is immaterial. The fact 
 of his knowing the contents of the will after 
 it was made is some proof that he was in the 
 testatrix's confidence, but it has no tendency, 
 as it seems to me, to support the conclusion 
 that he had himself interfered in the mak- 
 ing of it. 
 
 It is at this point of proving the plaintiff's 
 interference that the evidence wholly fails. 
 But that I may not do the defendant any 
 injustice, I will recapitulate the whole of 
 what was proved on this head. The plain- 
 tiff was the confessor of the testatrix. He 
 knew from what she told him, that she 
 probably had power over the disposition of 
 the estate in case of her stepson's death be- 
 fore her, and advised her to consult a law- 
 yer. She asked for the name of the Roman 
 Catholic bishop's attorney, and he told her. 
 This attorne.v was the person who after- 
 wards in London made the will. She told 
 the plaintiff' at some time that she had made 
 him her e'xecutor, and had given him full 
 powers. He remonstrated against his being 
 her sole executor, to which she replied, 
 "You villain! whom else have I to trust?" 
 The plaintiff admitted that he had heard 
 that Mr. Cooper, also a Homau Oatliolic 
 priest, was originally intended to be execu- 
 tor and residuary legatee, but that he (the 
 plaintiff) had been put in liis i^lace. The 
 testatrix mentioned to the plaintiff from 
 time to time legacies that she wished paid, 
 and the plaintiff made entry of them on 
 a piece of paper in Greek characters, tliat 
 they might not be read by any one about 
 the house. Those legacies were not inserted 
 in the will of 1808, which was made after two 
 of them at least had been thus noted by the 
 plaintiff. There is not a single fact in tliis 
 enumeration, as it seems to me, which is not 
 quite as consistent with the testati-ix having 
 told the plaintiff what she had done, after 
 she had done it, as with the plaintiff having 
 had any hand in doing it; and it would, 
 I think, defy ingenuity to demonstrate that 
 from any one of these facts a reasonable 
 or logical conclusion could be drawn that 
 
§ 123) 
 
 PAUriTT V. LAWLESS. 
 
 Case No. 165 
 
 the plaintiff had a hand in making the will. 
 But if the evidence fails thus signally to 
 ■establish the first proposition, with what 
 IJretence of reason can it be held to support 
 this much larger proposition, namely, that 
 the plaintife not only advised the residue 
 to be left to himself, but forced this dis- 
 position upon the unwilling testatrix? And 
 yet that is what the defendant has under- 
 talien to prove. No amount of persuasion 
 II- .idvice, whetlier founded on feelings of 
 regard or religious sentiment, wotlld avail, 
 according to the existing law, to set aside 
 this will, so long as the tree volition of the 
 testatrix, to accept or reject that advice was 
 not invaded. And what, it must therefore be 
 .asked, is the proof that any attempt ever 
 was made to control her free will? There 
 was not a fact, a word, or an event proved 
 wh'ch showed that on any occasion the tes- 
 tatrix had subordinated her own will to that 
 of the plaintiff. It was stated, indeed, that 
 lie managed her affairs for her; but even 
 this was confined to the last three years of 
 her life, many years after the date of the 
 will, and at a time when her health had 
 failed. But of evidence to show that, in the 
 common affairs of life, or in business, or 
 anything else, she was under the plaintiff's 
 dominion, there was an absolute and total 
 dearth. The only fact that pointed to her 
 Slaving been ever controlled by anybody in 
 anything, was this that when asked by Miss 
 O'Kovu-ke why she did not tell Mr. De Ruf- 
 fiere that she had power to devise the estate, 
 ■she replied, "They won't let me." At this time 
 she had consulted her attorney, Mr. English, 
 iind perhaps Mr. Ward, and she had been in 
 communication also with her stepson, Mr. 
 Oonolly, for he spoke of what he expected 
 she would do with the property; and for 
 aught that is known she had consulted other 
 persons; and yet these words, "They won't 
 let me," were argued to establish the follow- 
 ing chain of reasoning. Some one had told her 
 not to tell Mr. De Ruffiere; therefore the plain- 
 tiff was the person who had done- so. She 
 "Wished to tell Mr. De Ruffiere, the person who 
 gave the advice controlled her. If he controlled 
 Tier in this, he must liave controlled her in all 
 ■other things; therefore he controlled her in 
 making a will; therefore he controlled her 
 in leaving the residue to himself. Unless 
 this reasoning is satisfactory, there is not 
 •only no evidence of this control, upon which 
 everything tm-ns, but there was hardly an 
 attempt to establish it. The plaintiff had 
 lived in the house with the testatrix for 
 years, and any control of his over her, if it 
 ■existed, must have been visible to servants 
 or some of the numerous friends who visited 
 at the house. The defendant himself and his 
 wife were called as witnesses, and had been 
 frequently visiting at the house; and yet no 
 <luestion was asked them on the subject. 
 Miss Martin, a friend and visitor, was also 
 «alled, but not a question was asked her upon 
 
 it. The only other witness was Miss 
 O'Rourke. She had Jived a year with the 
 testatrix in 1856, visited her again for weeks 
 in 1800, again in 1802, and again in 1800; 
 and even of her no questions were asked 
 by the defendant's counsel as to any do- 
 minion exercised in anything, however seri- 
 ous or however trivial, by the plaintiff. But 
 she was cross-examined upon it, and then she 
 said the testatrix was a clever person, who 
 had a pretty firm will of her own, and that 
 she never saw anything which led her to be- 
 lieve that the plaintiff ever induced her 
 to do anything which she did not wish to 
 do of her own accord. No other visitor, 
 friend, or servant was produced, and the case 
 was actually closed without a question being 
 put by the defendant's counsel to any wit- 
 ness as to the existence of a dominating in- 
 fluence on the part of the plaintiff over the 
 testatrix, either in relation to her testa- 
 mentary dispositions or anything else. Then 
 in the last resort the defendant called the 
 plaintiff himself, and was allowed to cross- 
 examine him; and, strange as it may ap- 
 pear, no instance or occasions were put to 
 the plaintiff on which he was alleged to have 
 controlled the testatrix, and he was allowed 
 to leave the witness-box without being chal- 
 lenged to admit any* facts from which the 
 habitual exercise of dominion might be in- 
 ferred. Unless, therefore, it is just and right 
 to conclude in all cases that a Roman Catho- 
 lic priest, holding the position of confessor, 
 must be held to possess and exert over those 
 whom he confesses such a dominion as to 
 extinguish their free will in the disposition 
 of their property, there were no materials, 
 in my opinion, from which such a conclusion 
 could be drawn in the present case, and 
 therefore no evidence for the jury. 
 
 There remains one fact to be noticed. Thr 
 testatrix is jDroved to have told her niece. 
 Miss O'Rourke, that if she wished to leave 
 money for the saying of masses, or other 
 piu-poses of religion, she must not express 
 her trusts in her will, but leave the money 
 to her confessor, and tell him privately what 
 she wished. This statement greatly strength- 
 ens the suspicion to which the general facts 
 of the case are calculated to give rise, that 
 this devise of the residue to the plaintiff 
 was in reality accompanied by some secret 
 trust for religious purposes. Whether there 
 be such a ti-ust in this case it is not for this 
 court to investigate. Whether the possibility 
 of such trusts existing, and eluding the 
 power of courts of justice to drag them to 
 light, ought or ought not to induce the leg- 
 islatui'e to place any new restraints upon 
 bequests or devises for ministers of religion 
 it is not for this com't to suggest, still less 
 to assert. But one thing is plain: If this 
 testatrix really did intend her ijroperty to 
 be applied for the saying of masses, or for 
 charities or other religious objects, and con- 
 fided in her confessor to see that her objects 
 
 471 
 
Case No. 165 
 
 PAEFITT 0. LAWLESS. 
 
 (§ 123 
 
 wei-e attained, she was, In the making of 
 this will, carrying out her own wishes; she 
 was intent on achieving an end of her own 
 for the ease of her own mind, and was obey- 
 ing the impulses of her own religious faith, 
 all of which is hardly consistent with the no- 
 tion of her having acted under the dictation 
 of another. 
 
 The rule will be discharged with costs. 
 
 [His lordship further stated that Jlr. Jus- 
 
 tice BRETT concurred in this judgment 
 entirely, both in reference to the law and as 
 to the facts, and that Mr. Baron PIGOTT 
 also concurred, but with hesitation. He re- 
 garded the whole case as full of suspicion 
 and mystery. His doubts arose only as to 
 the effect of the evidence, and he quite 
 agreed in the directions it contains on the 
 point of law.] 
 Rule discharged. 
 
§ 123) 
 
 SIIAILEU V. BUiM.STEAD. 
 
 Case' No. 166 
 
 SHAILER V. BUMSTEAD et al. 
 
 (99 Mass. 112.) 
 
 Supreme Judicial Court of Massacliusetts. 
 Suffolk. March, 1868. 
 
 From a decree probating a will of Miss 
 Sarah Bumstead, the executor, certain dev- 
 isees, and the heirs at law appeal. The 
 original wiU of the testati-ix was made in 
 1851. A will of April 7, 1853, revoked the 
 prior wUl, and a codicil thereto, made Sep- 
 tember 30, 1857, revoked the appointment of 
 Julius J. Shailer as executor, and named 
 Michael Hayden an execvitor. The issues 
 framed were— First, that the testator was of 
 unsound mind; second, that the execution ot 
 the insti-ument was procured by fraud; third, 
 that the insti-ument was signed by the testa- 
 trix in ignorance of its contents; and, fourth, 
 that the will of 1853 had been fraudulently 
 altered. The jm-y returned a verdict in the 
 negative. 
 
 W. 11. P. Washbm-n and H. G. Parker, for 
 certain heirs at law. F. W. Sawyer, for oth- 
 er heii-s at law. B. F. Brooks, for Baptist 
 Convention. W. Gaston and W. S. Zeland, 
 for .Shailer. G. A. Somerby, for Hayden. 
 
 COLT, J. Several questions arising upon 
 the admission and rejection of evidence at 
 the trial are presented by this report One 
 of the most important, whether we regard 
 its practical consequences, or the apparent, 
 and to some extent real, conflict of author- 
 ity, relates to the admissibility of the dec- 
 larations of the testati-ix made after the exe- 
 cution of the will. Such declarations were 
 offered to sustain the allegations of fraud 
 and undue influence, and ignorance of its 
 contents, and were excluded. 
 
 That the insti-ument which contains the 
 testamentary disposition of a competent per- 
 son, executed freely and with all requisite 
 legal formalities, must stand as the only evi- 
 dence of such disposal, is generally conced- 
 ed. Such a wUl is not to be controlled in its 
 plain meaning by evidence of verbal state- 
 ments inconsistent with it, nor impaired in 
 its validity and effect by afterthoughts or 
 changes in the wishes or pui'poses of the 
 maker, however distinctly asserted. It is to 
 be revoked only by some formal written in- 
 strument, some intentional act of destruc- 
 tion or cancellation, or such change of cir- 
 cumstances as amounts in law to a revoca- 
 tion. 
 
 Any invasion of this rule opens the way 
 to fraud and perjury; promotes controversy; 
 destroys to a greater or less degree that se- 
 curity which should be afforded to the exer- 
 cise of the power to conti-ol the succession 
 to one's property after death. But the rule 
 assumes that the will sought to be affected 
 has once had a valid existence. It is always 
 liable to be impeached by any competent ev- 
 idence that it was never executed with the 
 required formality, was not the act of one 
 
 possessed of testamentary capacity, or was 
 obtained by such fraud and undue influence 
 as to subvert the real intentions and will of 
 the maker. The declarations of the testator 
 accompanying the act must always be re- 
 sorted to as the most satisfactory evidence 
 to sustain or defend the will whenever this 
 issue is presented. So it is uniformly held 
 that the previous declarations of the testa- 
 tor, offered to prove the mental facts in- 
 volved, are competent. Intention, purpose, 
 mental peculiarity and condition, are main- 
 ly ascertainable through the medium afford- 
 ed by the power of language. Statements 
 and declarations, when the state of the mind 
 is the fact to be shown, are therefore re- 
 ceived as mental acts or conduct. The trutli 
 or falsity of the statement is of no conse- 
 quence. As a narration, it is not received 
 as evidence of the fact stated. It is only to 
 be used as showing what manner of man he 
 is who makes it. If, therefore, the state- 
 ment or declaration offered has a tendency 
 to prove a condition not in its nature tem- 
 porary and transient, then, by the aid of the 
 recognized rule, that what is once proved to 
 exist must be presumed to continue till the 
 conti-ary be shown, the declaration, though 
 prior in time to the act, the validity of which 
 is questioned, is admissible. Its weight will 
 depend upon its significance and proximity. 
 It may be so remote in point of time, or so 
 altered in its import by subsequent changes 
 in the chcumstances of the maker, as to be 
 wholly immaterial, and wisely to be rejected 
 by the judge. 
 
 Upon the question of capacity to make a 
 will, evidence of this description is constant- 
 ly received; and when the issue is one of 
 fraud and undue influence, it is equally ma- 
 terial. The requisite mental qualification to 
 make a will might exist, and be entirely con- 
 sistent with such a degree of weakness, or 
 such peculiarity, as would make the party 
 the easy victim of fraud and improper in- 
 fluence. 
 
 The evidence is here offered only to estab- 
 lish the allegations of ignorance of the will, 
 and of fraud and undue influence. The ver- 
 dict of the jury at a former trial having es- 
 tablished, beyond controversy now, that the 
 will was made by one in possession of the 
 requisite testamentary capacity, its admissi- 
 bility is to be considered only upon the re- 
 maining issue. 
 
 To establish the charge of fraud and un- 
 due influence, two points must be sustained : 
 first, the fact of the deception practised, or 
 the influence exercised; and, next, that this 
 fraud and influence were effectual in produ- 
 cing the alleged result, misleading or over- 
 coming the party in this particular act. The 
 evidence under the first brancli embraces all 
 those exterior acts and declarations of oth- 
 ers used and contrived to defraud or control 
 the testator; and under the last includes all 
 that may tend to show that the testator was 
 of that peculiar mental structure, was pos- 
 
 473 
 
Case No. 166 
 
 SHAILBR V. BUMSTEAD. 
 
 (§ 123 
 
 sessed of tliose inti-insic or accidental qual- 
 ities, was subject to such passion or preju- 
 dice, of such perverse or feeble wiU, or so 
 mentallj' infirm in any respect as to render 
 it iwobable that the efforts used were suc- 
 cessful in producing in the will offered the 
 combined result. The purpose of the evi- 
 dence in this direction is to establish that lia- 
 liility of the testator to be easily affected by 
 fraud or undue influence, which constitutes 
 tlie necessary counterpart and complement 
 of the other facts to be proved. Without 
 such proof, the issue can seldom, if ever, be 
 )uaintained. It is said to be doubtful whether 
 the existence and exercise of undue influence 
 does not necessarily presuppose weakness of 
 mind, and whether the acts of one who was 
 in all respects sound can be set aside on that 
 sround in the absence of proof of fraud or 
 imposition. And it is certain that, however 
 ingenious the fraud or coercive the influence 
 may be, it is of no consequence, if there was 
 intelligence enough to detect and strength 
 enough to resist them. 
 
 The inquiry is, of course, directed to the 
 condition at the date of the execution of the 
 will; but the entire moral and intellectual 
 development of the testator at that time is 
 more or less involved: not alone those sub- 
 stantive and inherent qualities which enter 
 into tlie constitution of tlie man, but those 
 less permanent features wliich may be said 
 to belong- to and spring from the affections 
 and emotions, as well as those morbid de- 
 velopment.s which liave their origin in some 
 physical disturbance. All that is peculiai- 
 in temperament or modes of thought, the 
 idiosyncrasies of the man, so far as suscepti- 
 bility is thereby shown, present proper con- 
 siderations for the jury. They must be sat- 
 isfied, by a comparison of the will, in all its 
 provisions, and imder all the extei-ior influ- 
 <'nces which were brought to bear upon its 
 ixecution, -with the maker of it as he then 
 Av.is.- that such a will could not be the result 
 "f the free and imcouti-olled action of svich 
 .1 man so operated upon, before they can by 
 llieir verdict invalidate it. 
 
 As before stated, the previous conduct and 
 declarations are admissible; and so, by the 
 weight of authority, and iipon principle, are 
 subsequent declarations, when they denote 
 the mental fact to be proved. For, by com- 
 mon observation and experience, the exist- 
 ence of many forms of mental development, 
 especially that of weakness in those faculties 
 which are an essential part of the mind it- 
 self, when once proved, imply that the in- 
 firmity must have existed for some consid- 
 erable time. The inference is quite as conclu- 
 sive that such condition must have had a 
 gradual and progressive development, requir- 
 ing antecedent lapse of time, as that it will 
 continue, when once proved, for any consider- 
 able period thereafter. The decay and loss of 
 vigor which often accompanies old age fur- 
 nishes the most common illustration of this. 
 It is difficult to say that declarations offered 
 474 
 
 to establish mental facts of this description 
 are of equal weight, whether occurring be- 
 fore or after the act in question. But if 
 they are .equally significant, and no more re- 
 mote in point of time, they are equally com- 
 petent, and may be quite as infi.uential with 
 the jury. 
 
 The difficulty in the admission of these 
 subsequent statements of the testator has 
 been, that, while competent for the pm-pose 
 above indicated, they are not, by the better 
 reason and the most authoritative decisions, 
 admissible to establish the fact of fraud and 
 imdue influence as one of the constituent ele- 
 ments of the issue. When used lor such pur- 
 pose, they are mere hearsay, which, by rea- 
 son of the death of the party whose state- 
 ments are so offered, can never be explained 
 or contradicted by him. Obtained, it may 
 be, by deception or persuasion, and always 
 liable to the infirmities of human recollec- 
 tion, their admission for such purpose would 
 go far to destroy the security which it is es- 
 sential to preserve. The declaration is not 
 to be wholly rejected, however, if admissible 
 on other grounds ; and it must be left to the 
 judge carefully to point out how far it is to 
 be rejected or received as evidence by the 
 jury. 
 
 Ordinarily we should expect more or less 
 evidence of the prior existence of those pe- 
 culiarities which the subsequent declarations 
 give evidence of; and in the reported cases 
 this will generally be found to be so. It ib 
 not necessary to decide whether, in the en- 
 tire absence of such evidence, subsequent 
 declarations would ever be competent. 
 Where a foundation is laid by evidence tend- 
 ing to show a previous state of mind, and 
 its continued existence past the time of the 
 execution of the will is attempted to be 
 proved by subsequent conduct and declara- 
 tions, such declarations are admissible, pro- 
 vided they are significant of a condition 
 sufficiently permanent, and are made so near 
 the time as to afford a reasonable inference 
 that such was the state at the time in ques- 
 tion. 
 
 The doctrines thus stated are maintained 
 by the current of English and American avi- 
 thority. 
 
 In Provis v. Reed, 5 Bing. 435, the state- 
 ments of the testator wliicli were offered 
 were regarded by the court as offered to 
 prove specific acts of fraud and improper 
 influence. The distinction here suggested 
 does not seem to have been required in tlie 
 case, and such statements were emphatically 
 declared inadmissible, by Best, C. J., as ren- 
 dering useless the precaution of making a 
 will. The same doctrine is recognized, and 
 the principle discussed, in Marston v. Roe, 
 8 Adol. & E. 14, where Tindal, C. J., goes 
 somewhat fully into the matter, although 
 the precise question was upon the revoca- 
 tion of the will. 
 
 In New York, in the case of Jackson v. 
 Kniffen, 2 Johns. 31, the point was raised 
 
§ 123) 
 
 SHAILER V. BUMSTEAD. 
 
 Case No. 166 
 
 aud decided; and the statement of the tes- 
 tator, that he had executed the will by force 
 and for fear of being murdered, was re- 
 jected. The distinction talien in the more 
 recent cases between such proof of exterior 
 facts and such proof of mental status is not 
 alluded to. And Spencer, J., in his dissent- 
 ing opinion, favors the admission of the dec- 
 larations, on the gi'ound that they were the 
 declarations of the sole party in interest at 
 the time, because no one else could have an 
 interest in a will, living the testator. The 
 whole matter is discussed more fully, and 
 the distinctions accm-ately pointed out, in 
 Waterman v. Whitney, 11 N. Y. 157. Sub- 
 sequent declarations, inconsistent with the 
 will, in connection with other evidence tend- 
 ing to prove want of mental capacity, are 
 held by Selden, J., and a majority of the 
 court, to be competent, upon a full review of 
 the decisions. 
 
 In Connecticut the same rule prevails, and 
 was stated in Comstock v. Society, 8 Conn. 
 2.j4. 
 
 In Vermont, in the case of Robinson v. 
 Hutchinson, 26 Vt. 47, where the question is 
 fully considered, Isham, J., says: "We do not 
 perceive any serious objection to the admis- 
 sion of this testimony, under that limitation, 
 when the declarations were made so near the 
 time of the execution of the will that a rea- 
 sonable conclusion may be drawn as to the 
 state of mind of the testatrix at the time the 
 will was executed. Weakness of mind arising 
 from advanced age, in connection with 
 causes suggested in this case, is progressive 
 and permanent in character. It exists in 
 the mind itself, and therefore it is that weak- 
 ness of mind at the time of making the will 
 may be inferred from weakness subsequent, 
 as much so as imbecility of mind under sim- 
 ilar circumstances." 
 
 In Moritz v. Brough, 16 Serg. & B. 403, the 
 supreme court of Pennsylvania held declara- 
 tions admissible to show mental condition. 
 See, also, McTaggart v. Thompson, 14 Pa. 
 St. 149, 1.54. 
 
 In the recent case of Boylan v. Meeker, 28 
 X, J. Law, 274, the whole subject is discussed. 
 The issues there were, incapacity, forgery of 
 the will, fraud practised by indvicing slgna- 
 tm-e to a paper without knowledge that itwas 
 a wiU. The court say that upon a review of 
 the case no doubt can be entertained of the 
 testator's capacity. The contestants reUed 
 on the conduct and declarations of the tes- 
 tator to show that he never knew afterwards 
 of the existence of the will, and therefore 
 could not have knowmgly executed the pa- 
 per. It appears that the declarations were 
 offered on the broad gi-ound that, even if 
 the testator had testamentary capacity, yet 
 he never executed the will, because of his de- 
 clared ignorance of any such paper. In the 
 discussion of the case, the court seemed to 
 regard ignorance of a fact existing at any 
 particular time as not evidence of a state 
 of mind in any sense affecting its capacity. 
 
 But, however this may be, the whole case 
 clearly recognizes the admissibility of sub- 
 sequent declarations to prove mental con- 
 dition, and is in harmony with the main cur- 
 rent of authority. The declarations were 
 held incompetent in that case, but it was 
 upon the ground that the evidence was offer- 
 ed to support the act of fraud charged, and 
 had no tendency to establish mental condi- 
 tion. 
 
 Two cases in North Carolina are apparent- 
 ly in conflict with these authorities. Reel v. 
 Reel, 1 Hawks, 248; HoweU v. Bardeu, 3 
 Dev. 442. In the first of these, the court 
 follow and approve of the dissenting opinion 
 of Spencer, J., in Jackson v. Kniffen, supra; 
 and, in the last case, the court, by Ruffln, J., 
 declare themselves bound by the former de- 
 cision. It does not appear what were the 
 precise declarations in this case; but in 
 Reel V. Reel, in connection with the evi- 
 dence that the mind of the testator had hem 
 greatly impaired by previous habits of in- 
 toxication, and had been weak from his 
 youth, the declarations admitted may be 
 held competent, without overruling Jackson 
 V. Kniffen. See, also, Cawthorn v. Haynes, 
 24 Mo. 236; 3 Lead. Cas. Eq. (3d Am. Ed.) 
 003, note; 1 Redf. Wills, 551-561. 
 
 This discussion, though thus prolonged, 
 may not be dismissed without presenting 
 another view, upon which the evidence under 
 consideration may be competent. A will 
 made when fraud or compulsion is used may 
 nevertheless be shown to be the free act of 
 the party, by proof of statements in which 
 the will and its provisions are approved, 
 made when relieved of any improper influ- 
 ence or coercion. It is always open to in- 
 quirj' whether undue influence in any case 
 operated to produce the will; and, as the 
 will is ambulatory during life, the conduct 
 and declarations of the testator upon tliat 
 point are entitled to some weight. Indeed, 
 the fact alone that the will, executed with 
 due solemnity by a competent person, is 
 suffered to remain unrevoked for any con- 
 siderable time after the alleged causes have 
 ceased to operate, is evidence that it was 
 fairly executed; to meet which, to some ex- 
 tent at least, statements of dissatisfaction 
 with or want of knowledge of its contents 
 are wortliy of consideration, and clearly com- 
 petent, however slight their influence in 
 overcoming the fact that there is no revo- 
 cation. 
 
 All this evidence, under whatever view it 
 is admitted, is competent onlj- and always to 
 establish the influence and effect of the ex- 
 ternal acts upon the testator himself; never 
 to prove the actual fact of fraud or improper 
 influence in another. 
 
 Coming now to the application of these 
 rules to the case here presented, we cannot 
 avoid the conclusion that the report shows 
 that evidence of the subsequent declarations 
 of the testatrix, to the effect that the will 
 so made was contrary to her real intentions, 
 
 475 
 
Case No. 166 
 
 SHAILEli V. BU-MsTEAD. 
 
 {§ 123 
 
 or that she was ignorant of its contents, 
 should have been admitted. The character 
 and habits of the testatrix in her better 
 days, the whole of her later life, with her 
 expressed purposes and wishes up to the time 
 of the will, were exhibited in evidence. 
 With a considerable degree of physical weak- 
 ness, that loss of vigor and activity in the 
 mind, which indicates in persons of her hab- 
 its and years the increasing infirmities and 
 decay of old age, was shown to exist at and 
 before the date of the will, for the purpose of 
 increasing the probability that she was the 
 victim of the improper designs of others. 
 
 The precise statements are not reported, 
 nor does it appear at what precise time they 
 were made, but they were offered to show 
 either ignorance of the contents of the wiU, 
 or that they were contrary to her real in- 
 tentions, and that the will was improperly 
 obtained by the fraud and undue influence of 
 the executors named. 
 
 As we have already seen, this evidence 
 was not competent as a declai-ation or nar- 
 rative to show the fact of fraud or undue 
 influence at a previous period. But it was 
 admissible not only to show retention or loss 
 of memory, tenacity or vacillation of pur- 
 pose existing at the date of the wiU, but 
 also in proof of long cherished purposes, set- 
 tled convictions, deeply rooted feelings, opin- 
 ions, affections or prejudices, or other in- 
 ti-insie or enduring peculiarities of mind, 
 inconsistent with the dispositions made in 
 the instrument attempted to be set up as the 
 formal and deliberate expression of the tes- 
 tatrix's wiU; as well as to rebut any infer- 
 ence arising from the non-revocation of the 
 instrument. They were not rejected as too 
 remote in point of time, or as having no ten- 
 dency in their character to sustain the fact 
 claimed to exist. 
 
 In connection with the evidence' thus of- 
 fered and rejected, the contestants offered 
 also the declarations and conduct of Hayden 
 and Shailer, named executors, subsequent to 
 the date of the will. And this brings us to 
 another important question in the case. The 
 evidence, for the pm-pose for which it was 
 offered, was, we thinli, properly excluded. 
 It was not proposed thereby to contradict 
 their testimony. The admissions of a party 
 to the record against his interest are, as a 
 general rule, competent against him; and 
 this rule applies to aU cases where there is 
 an interest in the suit, although other joint 
 parties in interest may be injuriously affect- 
 ed. But it does not apply to cases where 
 there are other parties to be affected who 
 have not a joint interest, or do not stand in 
 some relation of privity to the party whose 
 admission is relied upon. A mere com- 
 munity of interest is not sufficient. Devi- 
 sees or legatees have not that joint in- 
 terest in the will which will make the 
 admissions of one, though he be a party 
 appellant or appellee from the decree of the 
 probate court allowing the will, admissible 
 476 
 
 against the other legatees. In modern prac- 
 tice, at law even, the admissions of a party 
 to the record who has no interest in the mat- 
 ter will not be permitted to be given in 
 evidence to the prejudice of the real party 
 in interest. 
 
 In this case, it does not appear at what 
 time after the date of the will these declara- 
 tions were made, whether before or after the 
 death of the testatrix, or before or after the 
 offer of the will for probate; and perhaps 
 it is not material. They stand upon the 
 same ground with statements made at any 
 time since the date of the will, by any other 
 devisee or legatee named in the will, or heir- 
 at-law or legatee under the former will of 
 1851, whose interests are affected, and who 
 is a party to this record. Before the death of 
 the testatrix, the interest of aU these parties 
 in a will, liable at any time to be revoked, 
 was not such a direct interest as should ren- 
 der their admissions competent against other- 
 parties. The separate admissions of each, 
 made after the act, that the will was pro- 
 cured by their joint acts of fraud or undue 
 influence, cannot be permitted to prejudice 
 the other. Such statements are only ad- 
 missible when they are made during the 
 prosecution of the joint enterprise. Admit- 
 ting for the present that any interest in a 
 will obtained by undue influence cannot be 
 held by third parties, however innocent of the 
 fraud, and that the gift must be taken tainted 
 with the fraud of the person procuring it, still 
 it by no means follows that the interest of the 
 other innocent legatees should be liable to 
 be divested by the subsequent statements of 
 the parties procuring the will. Such a rule 
 would violate aU. sense of riglit, and is not 
 sustained by the decisions. 
 
 The principal case, most often cited in sup- 
 port of the doctrine that such admissions are 
 competent, is Atkins v. Sanger, 1 Pick. 192. 
 The will was contested on the ground that 
 the testatrix was not of sound mind, and had 
 been unduly practised upon. The declara- 
 tions of one of the executors named, who 
 were the principal legatees, were offered to 
 show the circumstances attending the mak- 
 ing of the WiU. Their admissibility was ex- 
 pressly urged on the ground that the parties 
 to the record could not, as the law then was, 
 be called as witnesses, and there was no 
 way of proving the facts. The chief justice, 
 after a short consultation with his brethren, 
 said the court were inclined to admit the 
 declarations as to facts which took place at 
 the making of the will, but added that the 
 decision did not interfere with Phelps v. 
 Hartwell, 1 Mass. 72. This is the whole of 
 the case. It is to be noted that the case 
 was heard before the full com-t without a 
 jury. The rule may have been less carefully 
 laid down than it would have been if the 
 question had arisen on the admissibility of 
 the evidence in a jury trial. Under the pres- 
 ent law of this commonwealth, making par- 
 ties to the record witnesses, illustrated in 
 
§ 123) 
 
 SHAILER V. BUMSTEAD. 
 
 Case Xo. 1J6 
 
 tills very case by calling the parties whose 
 admissions were offered and subjecting them 
 to the cross-examination of the contestants, 
 we cannot think the rule now contended for 
 woiild have been adopted, as it seems to have 
 been in Atkins v. Sanger. 
 
 In Ware v. Ware, 8 Greenl. 42, which was 
 an appeal from the decree allowing probate 
 of John Ware's will, the appellee was per- 
 mitted to prove that Abel Ware, the only 
 appellant, said, two or three weeks before the 
 death of the testator, that he had his senses. 
 This case, so far as it permits the opinions 
 of a party on the question of sanity to be' put 
 in evidence against him, is in conflict with 
 Phelps V. Hart well, supra; but on a closer 
 examination it seems to be in harmony with 
 the law as here stated. It does not appear 
 that the appellant was not the sole party in 
 interest. The fact that he was alone inter- 
 ested is to be inferred; for JleUen, J., in 
 reference to this point, says that by law the 
 confessions of a party may always be given 
 against him and his interest, but not thereby 
 to defeat or impair the rights of others 
 claiming under him. 
 
 Upon principle, and by the weight of de- 
 cided cases, we think there was no error at 
 the trial in the present case in this respect. 
 Clark V. Morrison, 2.5 Pa. St. -153; Titlow v. 
 Titlow, 54 Pa. St. 222; Osgood v. Manhattan 
 Co., 3 Cow. 612; Dan v. Brown, 4 Cow. 492; 
 Hauberger v. Root, 6 Watts & S. 431; 
 Thompson v. Thompson, 13 Ohio St. 358; 
 Blakey v. Blakey, 33 Ala. 61G. 
 
 The conduct of Shailer and Hay den in re- 
 lation to the property and business of the 
 testatrix stands on the same footing with 
 their admissions. It had no legal tendency 
 to establish the issue on the part of the 
 contestants. The act could not be invalidat- 
 ed, so far as otuers, at least, were concerned, 
 by their subsequent conduct. The codicil of 
 1857, if freely and intelligently executed, 
 would of itself fully establish the will of 1S53. 
 But the conduct of either in procuring it was 
 clearly incompetent on these issues. All 
 the other specific subsequent conduct offered 
 seems to have consisted of independent and 
 disconnected acts, not in any way related 
 to the making of the will of 1853. Any sub- 
 sequent acts of theirs, or of any one else, by 
 which the testatrix was in any way prevent- 
 ed from revoking or making any change in 
 her will if she desired, or by which her rel- 
 atives and friends were prevented or de- 
 barred in any way from free access to and 
 communication with her, were expressly al- 
 lowed to be shown. The deed of 1857 to 
 Hayden, the consideration for which was in- 
 quired of in his cross-examination, was prop- 
 erly excluded as not tending to contradict 
 his testimony. The facts inquired of were 
 not material to the issue, and were not open 
 to contradiction. The auditing of Hayden's 
 accounts by ShaUer, in 1855, her dissatisfac- 
 tion with and continued employment of Hay- 
 den, proposed to be proved in cross-examina- 
 
 tion of Shailer, were circumstances too re- 
 mote in point of time to have any bearing 
 upon the mental status at the date of the will. 
 
 It was further objected that Hayden and 
 Shailer were not competent witnesses under 
 the statute. But this is not a case where 
 one of the original parties to the contract or 
 cause of action in issue and on trial is dead. 
 They are not parties in a representative ca- 
 pacity. There was no cause of action in 
 existence till the death of the testatrix. The 
 controversy is between living parties. The 
 testatrix is in no sense a party to the orig- 
 inal cause of action. Her act was only the 
 subject-matter of the investigation. The rule 
 contended for would exclude parties on both 
 sides in all cases where litigation should 
 arise, growing out of the act of another dur- 
 ing life. We cannot construe the proviso of 
 the statute so as to exclude as witnesses all 
 those who may be parties on one side or the 
 other in all probate appeals like this; and 
 we find no error in the ruling. Gen. St. c. 
 131, § 14; Baxter v. Knowles, 12 Allen, 114. 
 
 Facts showing the mental and moral con- 
 dition of the testatrix in July, 1854, and at 
 various periods subsequent to that time, 
 were offered, and excluded as being too long 
 after the date of the will. To a great extent, 
 it must be left to the presiding judge to de- 
 termine upon the facts before him how far 
 evidence of this description may have a 
 tendency to throw light on the fact to be 
 found; namely, the actual condition at tlie 
 date of the will. Some limit must of course 
 be had in applying practically the rules 
 which govern the admission of this evidence. 
 We do not perceive any reason to differ from 
 the judge in the limit here applied. After 
 July, 1854, her mental condition must have 
 greatly changed. Her advanced age, and 
 the paralysis with which she was at that 
 time seized, seem to make that period a 
 proper limit for the evidence offered; and we 
 see no reason for sustaining this exception. 
 
 In regard to the offer to show that several 
 of the family of the testatrix had been, in ad- 
 vanced age, affected by paralysis, accompa- 
 nied by an enfeebling of the mental and 
 moral powers, and that it was a family ten- 
 dency, we are of opinion that no sufficient 
 foundation was laid for the admission of 
 such evidence. In questions of sanity, proof 
 of hereditary tendency is competent in sup- 
 port of evidence of the existence of insanity 
 in any given case. Here the sanity of the 
 testatrix is not to be called in question. Her 
 complaints of numbness in 1851, her physical 
 weakness and mental inactivity prior to the 
 attack of paralysis in 1854, do not justify 
 the admission of the proof offered of hered- 
 itary tendency. No case is cited in which 
 such evidence has been admitted in aid of 
 the proof showing mere weakness of mind 
 or eccentricity. 1 Redf. Wills, 156, 157; Bax- 
 ter V. Abbott, 7 Gray, 75. 
 
 The only remaining point arises upon the 
 manner iii which the issues as framed were 
 
 477 
 
Case No. 166 
 
 SHAILER V. BUMSTEAD. 
 
 (§ 1-3 
 
 submitted to the jury by the presiding Judge. 
 It Is claimed to be the duty of tliis court 
 now to revise the order, upon exceptions or 
 appeal talven in the usual way. In the mat- 
 ter of framing issues, proccodiass in probate 
 appeals are conducted in accordauce with 
 the rules and practice in equity. The find- 
 ings of the jury in such cases are availed of 
 to inform the covirt in matters of controvert- 
 ed facts whicli may become material in set- 
 tling the final decree. They may be disre- 
 garded, in whole or in part, if on the final 
 hearing they are not deemed important or 
 relevant; or such new issues may from time 
 to time be framed and submitted as a just 
 regard to the rights of all may seem to re- 
 quire. 
 
 Three testamentary papers were here pro- 
 duced, purporting to have been executed in 
 throe different years. The like four issues 
 
 4T.S 
 
 were presented as to each. The court, hav- 
 ing regard to the fact alleged, that the men- 
 tal capacity of the testatrix had been seri- 
 ously affected by severe illness between the 
 years last named, ordered the Issues tried 
 separately; and those relating to the will 
 of 1853 have been accordingly tvFice tried. 
 Two of the issues at the first and two at 
 the last trial were found in favor of the 
 will. Wc cannot see that any injustice has 
 been or is likely to be done by submitting 
 the issues in this way to the jury; or that 
 the trial of the issues upon the will of 18.").'' 
 ouJ;ht not now to be completed. 
 
 The exceptions having been sustained iu 
 the single respect above stated, the last ver- 
 dict of the jury upon the issues relating to 
 the will of 1853 is therefore set aside, and 
 a new trial ordered upon the second and 
 third issues relating to that will. 
 
§ 124) 
 
 HAUlilS V. KNIGHT. 
 
 Case No. 167 
 
 HARRIS T. KNIGHT. 
 
 (15 Prob. Div. 170.) 
 
 Court of Appeal. Jan. 2-t. 25, 27, and March 
 11. 1S90. 
 
 The plaintiff, Emma Jane Han-is, pi-opoimcl- 
 ed a non-existent paper, which purported to 
 be the last will and testament of her father, 
 William Knight, who died in 1877; and the 
 defendant, the eldest son and heir-at-law of 
 the deceased, opposed probate, alleging that 
 the will was not duly executed, that the tes- 
 tator did not know and approve of the con- 
 tents, and that the contents of the will were 
 not correctly set forth in the plaintiff's state- 
 ment of claim. 
 
 WiUiam Knight was a gardener, living at 
 Caversham in Oxfordshire, and his estate 
 consisted of a double house, with land at- 
 tached to it, which it was stated had been 
 purchased with the money of his wife, who 
 managed his business. At Wm. Knight's 
 funeral hie widow produced a written paper, 
 which she stated was her husband's will. 
 It gave a life interest to her in the freehold, 
 which was directed to be divided after her 
 death among the sons and daughters of the 
 testator. The paper was subscribed with 
 three names, one of which purpoi-ted to be 
 the name of Wm. Knight, the deceased, writ- 
 ten in his own handwriting; but the defend- 
 ant, who read tlie paper at the funeral, said 
 at once it was no will of his father, and 
 that the signatui'e stated to be his was not 
 in his handwriting. The executrix, the wid- 
 ow, took no steps to obtain probate of the 
 document, and the defendant, on the other 
 hand, took no steps to assert his rights as 
 heir-at-law, but allowed his mother to live 
 on the freehold undisturbed down to .July 
 17, 1885, when she died. She drew up two 
 wills, but neither of them was completely 
 executed. In 1886 the plaintifC took out let- 
 ters of administration to the estate of his 
 father as having died intestate; and the de- 
 fendant, his sister, the wife of James Harris, 
 now propounded the contents of the paper 
 read at the funeral of Mr. Knight, wliich 
 was alleged to be his last will and testa- 
 ment. The paper itself was not forthcom- 
 ing, and there was no evidence as to its 
 execution, nor as to when it was executed, 
 and it was not shown that it contained an 
 attestation clause. There was, however, evi- 
 dence to show that the body of the paper 
 was in the form of a will, and that it was 
 followed by three signatures, one of which 
 purported to be that of Wm. Knight. Both 
 the attesting witnesses were dead, but there 
 was evidence to identify the signattu-e of 
 one of them. As to the signature of the 
 testator, there was a direct conflict of tes- 
 timony. Witnesses called for the plaintiff 
 stated that Wm. Knight told them he had 
 made a will containing provisions similar 
 to those read out at the funeral from the 
 wlU— while witnesses for the defendant stat- 
 
 ed tliat, shortly before his death, Wm. 
 Knight told them that he had made no will. 
 The plaintiff" accounted for the disappear- 
 ance of the paper by evidence that in July, 
 1885, when Mrs. Knight, the widow of the 
 testator, was on ner death-bed the paper 
 was in her possession when tlie defendant 
 called to see his mother, and that it was 
 never seen again after his visit. The account 
 given by the defendant of what passed at 
 his interview with his mother was tliat. 
 when he went into the room where his 
 mother lay ill, she ordered her daughter and 
 another woman who was there out of the 
 room. . When they had gone she told him to 
 take a paper out of the pocket of her dress. 
 He searched the pocket, but could find no 
 paper, whereupon his sister was called up. 
 and she explained that the paper having 
 fallen out of her mother's poclvet she hiid 
 placed it on the bed, and it was found be- 
 tween tlie mattress, and in the bed. The 
 daughter was then sent out of the room 
 again, and Mrs. Kniglit thereupon tore up 
 the paper, put the pieces in her pocket, say- 
 ing that it did not concern any of her chil- 
 dren. Tlie paper he said was quite differ- 
 ent from that read at the funeral. The plain- 
 tiff in lier evidence denied that any frag- 
 ments were found in the pocket of her 
 motlier's dress after tlie defendant's visit. 
 The other facts will be found in the judg- 
 ment. 
 
 The case was lieard before Butt, J., with- 
 out a jiu-y. 
 
 BTJTT, J. There are certain facts in this 
 case which are establislied beyond all con- 
 troversy. In the first place, it is clear that 
 a document in the shape of a will, bearing 
 the name of the testator, the name of one 
 Earlos, and the name of Caleb Heningham. 
 existed at tlie time of the testator's deatli, 
 and had been in existence two years before 
 his death: that it was placed on his cofi\n at 
 his funeral, and that it was handed to de- 
 fendant by the widow, and i«id by him. 
 Another matter not in dispute is, that the 
 contents of the document, whether a valid 
 will or not, were practically those set forth 
 in the plaintift''s statement of claim. 
 
 The part as to the executorship is not ad- 
 mitted; but the part as to the disposition of 
 the property is admitted. The real question 
 in the case has been this, was that docu- 
 ment so read at the funeral really signed by 
 the testator and attested by the two wit 
 uesses— in other words, was it duly executed? 
 Now, in the first place, the son-in-law, James 
 Harris, who was present at the funeral and 
 who heard it read, speaks with perfect con- 
 fidence as to the fact that the name which 
 undoubtedly appeared at the end of the docu- 
 ment was the testator's handwriting; and he 
 has sworn also with equal distinctness, to 
 the name of Earles, one of the attesting wit- 
 nesses. The disposition which the will makes 
 of the property was a reasonable disposition. 
 
 479 
 
Case Xo. 167 
 
 HARRIS '0. KNIGHT. 
 
 (§ :24 
 
 aud there is abtuidant evidence tiiat it was 
 the disposition which the testator desired. 
 Now, tlie testator having died in 1877, the 
 defendant, being heir-at-law, and having, as 
 he said, made up his mind that the will was 
 not a valid document, and that the signature 
 was not his father's, and that therefore it 
 was no will — takes no steps to assert his 
 rights until 1885. when his mother died. 
 That certainly raises a presumption, I will 
 not say an irrefutable presumption, but one 
 not lightly to be excluded from one's pur- 
 view of the case, against his present con- 
 tention. That document has disappeared, 
 and there has been a gr{ive contention as to 
 how it came to disappear. It has been sug- 
 gested that it got into the hands of the de- 
 fendant, and that he made away with it. 
 But though there are circumstances raising 
 grave suspicion, Ido not think it at all nec- 
 essary to decide that he made away with it. 
 1 prefer to believe on the whole, that it was 
 the widow who destroyed it. I do not mean 
 wickedly or with any intention of doing a 
 wrong to her children — but under the im- 
 pression that, though it left the greater part 
 of the house to her five daughters, it left 
 them no land by which they could get into 
 that house, and it would, therefore, be nug- 
 atory. She thought, that as she had the 
 property she would do what was right by 
 making a will. In the legal aspect of the 
 <'ase it matters not if the document was prop- 
 erly executed and if it was in existence at 
 the time of and after the death of the testa- 
 tor, who destroyed it, or what has become of 
 it. No less tliau live persons called on be- 
 lialf of the plaintiff, most of whom appear 
 to have given evidence very fairly and to be 
 thoroughly respectable, have sworn that the 
 testator told them at different times that 
 he had made a will. Three witnesses, on the 
 other side, stated that he told them that he 
 liad not made a will. I do not accept that 
 evidence. I have no doubt that this testator 
 not 'only said that he had made a will, but 
 said he had made it distributing the property 
 in the way the plaintiff's witnesses have de- 
 scribed, and in the way the defendant ad- 
 mits the document in question disposed of the 
 property. Now it is very true there is no ac- 
 tual proof of the execution of the wiU, but 
 there was a document produced at the funer- 
 al which bore the name or the signature of 
 the deceased testator, and one respectable 
 witness, at least, has sworn, that he has no 
 doubt it was his signature, and it bore the 
 names of two witnesses now dead, one of 
 whose handwriting is proved. What is the 
 presumption? It could not have been a mere 
 draft of the will, because people do not get 
 two witnesses to sign a draft. There was 
 no attestation clause, but if I come to the 
 conclusion that that man really signed the 
 will, and that these two people wery called 
 hi to witness it, and did put their signatures, 
 then the document is valid and effective as a 
 -will. I have no doubt on the subject. 1 
 180 
 
 have no doubt that the will bore the man's 
 signature, and that it was attested by Earles 
 and Heningham. 
 
 In that state of things the maxim, "Omnia 
 praesumuntur rite esse acta," applies, and 
 therefore I find that the document was a 
 will vaUdly executed. There being no dis- 
 pute between the parties as to its contents 
 except with regard to executorship, I pro- 
 nounce for the contents as set forth in the 
 plaintiff's statement of claim which contains 
 the appointment of the testator's executor. 
 I have not the slightest doubt in my own 
 mind on the balance of the testimony that 
 the executorship alleged to have been made 
 was made by the vyiU. 1 revoke the letters 
 of administration, and grant probate of the 
 will. No order as to costs. 
 
 The defendant appealed. 
 
 Dr. Tristram, Q. C, and Statham, for ap- 
 pellant. Middleton, and J. C. Priestley, for 
 respondent. 
 
 COTTON, L. J. The question we have to 
 consider is, whether probate has been prop- 
 erly gi'anted of what is said to be the will 
 of William Knight. William Knight died 
 in 1877. He had a small landed property 
 consisting of one of the eyots at Caversham. 
 His heir-at-law disputed the will, and 
 brought this appeal. At the time of the 
 funeral he said he should question the wiU, 
 and he now questions it on the ground that 
 it was not duly executed. It is true he left 
 his mother in possession of the property, but 
 then it must be remembered that she was 
 not only a managing woman, but had a good 
 deal of influence over her son. The docu- 
 ment had the names of two persons written 
 on it. besides that of William Knight. One 
 of those persons died in 1875, but the other 
 was alive for many years afterwards; and 
 the principal witness in favour of the will 
 admitted that during the whole of his life- 
 time he made no inquiry as to the execution 
 of the will. But to my mind what tells most 
 strongly against those who rely on the docu- 
 ment is, that during the lifetime of the 
 widow they took no step and made no in- 
 quiry, although she must have known all 
 about the facts. The burden of proof is 
 thrown on those who wish to propound the 
 instrument. On the death of the widow the 
 will could not be found. On the evidence, 
 it had been destroyed somehow or other. I 
 think, though this is doubtful, that it had 
 been destroyed by the widow with the 
 knowledge of the heir. [The lord justice 
 then referred further to the evidence, and 
 continued:—] I think, however, that as Butt, 
 J., had all the witnesses before him, we 
 should not be justified in questioning his de- 
 cision as to the existence of a document 
 signed by William Knight, and bearing the 
 signatures of two other persons, one of which 
 signatures was certainly genuine. But that 
 is not all. The law requires certain formal- 
 
124) 
 
 HARRIS V. KXIGIIT. 
 
 Case No. IC7 
 
 ities as to attestation. By the 9th section 
 of the wills act, (1 Vict. e. 26,) It is enacted 
 "that no wUl shall be valid unless it shall 
 be in writing and . . . signed at the foot 
 or end thereof by the testator, or by some 
 other person in his presence and by his direc- 
 tion; and such signature shall be made or 
 acknowledged by the testator in the presence 
 of two or more witnesses present at the same 
 time, and such witnesses shall attest and 
 shall subscribe the will in the presence of 
 the testator, but no form of attestation shall 
 be necessary." 
 
 Now, it is an important fact that in this 
 document there is no attestation clause in 
 the usual form. The question whether the 
 legal formalities have been performed is a 
 question of fact; and I do not intend to re- 
 fer to the cases in which the judges have 
 held (sometimes, I thiuli, not with good rea- 
 son) that the formalities required by the act 
 have been performed, because, to my mind, 
 it is no use to refer to those cases unless 
 they establish somp rule which must be 
 obeyed. In my opinion, this court is at lib- 
 erty to, and must, exercise its judgment on 
 this point There is no proof as to these 
 formalities apart from presumption. If 
 there had been an attestation clause, there 
 being the handwriting of two persons as 
 witnesses, which I will assume to be genu- 
 ine, I should consider that the formalities 
 had been compUed with, for I should think 
 that no one would have signed his name to 
 the statement contained in such clause im- 
 less it were true. I consider from the con- 
 tents of the will that it bears internal evi- 
 dence that it was prepared by someone who 
 ■did not know what the law was, and the 
 presumption in my opinion is that the legal 
 formalities for a valid will have not been 
 complied with. However it may seem to be 
 against the wishes of the deceased, who has 
 signed this document which he has said 
 was his will, it is the duty of the court to de- 
 cide according to the law. The legislatm-e 
 has— in my opinion very wiselj'— imposed 
 these formalities to prevent documents from 
 being propoimded as wills which are not 
 wills, and we are bound to follow the law. 
 I think, therefore, that the decision of the 
 court below was a wrong and dangerous de- 
 cision, whlcli will probably open the door 
 to having documents produced and pro- 
 pounded as wills which were not executed 
 with the formahties which the law requires. 
 
 LINDLEX, L. J. A person who pro- 
 pounds for probate an alleged will, and who 
 is unable to produce it, or any copy or draft 
 of it, or any written evidence of its con- 
 tents, is bound to prove its contents and 
 its due execution and attestation by evidence 
 which is so clear and satisfactory as to re- 
 move, not all possible, but all reasonable 
 doubts on those points. 
 
 If he can do this, he is entitled to probate, 
 as is shown by the case of Sugden v. Lord 
 ABB. WILLS — 31 
 
 St. Leonards.' But.it is obvious that any 
 laxity or want of vigilance on the part of 
 the court in a case of this kind would en- 
 courage the fabrication of wills, and lead to 
 perjury, which it would be extremely dif- 
 ficult to detect. 
 
 ITie questions before us are these: Did 
 Knight make and sign a will? Was it prop- 
 erly executed and attested? Are its contents 
 proved? All these are questions of fact; and 
 the first being settled, and the third being 
 admitted, the case really turns on the question, 
 whether the will was duly executed and attest- 
 ed. The maxim, "Omnia praesumuntur rite 
 esse acta," is an expression, in a short form, 
 of a reasonable probability and of the pro- 
 priety in point of law of acting on such prob- 
 ability. The maxim expresses an inference 
 which may reasonably be drawn when an in- 
 tention to do some formal act is established; 
 when the evidence is consistent with that 
 intention having been carried into effect in 
 a proper way; but when the actual observ- 
 ance of aU. due formalities can only be 
 inferred as a matter of probability. Tlie ' 
 maxim is not wanted where such observ- 
 ance is proved, nor has it any place where 
 such observance is disproved. The maxim 
 only comes into operation where there is no 
 proof one way or the other; but where it is 
 more probable that what was intended to be 
 done was done as it ought to have been done 
 to render it valid; rather than that it was 
 done in some other manner which would 
 defeat the intention proved to exist, and 
 would render wliat is proved to have been 
 done of no effect. Upon this I may refer to 
 tlie cases of Trott v. Skidmore,^ decided in 
 1860; Wright v. Rogers,' decided in ISfiO; 
 In re Goods of Thomas," decided in 1859; and 
 Burgoyne v. Showier," decided in 1844. In 
 Trott V. Skidmore there was no attestation 
 clause, but at the end of the will there was 
 the name of the testator, the names of two 
 other persons, with the word "witness" writ- 
 ten opposite each of the two, and a date, 
 "April 11, 1838." Both of the witnesses 
 were dead. At the top of the will there was 
 a date, "Feb. 14, 1832," and it was proved 
 that the body of the will and the testator's 
 name were in his writing, and that the 
 names of the witnesses were in their hand- 
 writing, but the writing of the first witness 
 was in paler ink than what followed. It 
 was admitted that the body of the will was 
 written in 1832, and probate of the will was 
 granted as of the date of April 11. 1838. 
 In Wright v. Rogers there was an attestation 
 clause signed by two persons; and, while 
 one of these witnesses said that it was duly 
 executed, the other, after the death of the 
 first witness, for the first time stated that 
 it was not witnessed in the testator's pres- 
 
 >1 Prob. Div. 154. 
 
 ' 2 Swab. & Tr. 12. 
 
 » 38 Law. J. Prob. & M. 67. 
 
 * 1 Swab. & Tr. 255, 
 
 •1 Rob. Ecc. 5. 
 
 481 
 
Case Xo. 167 
 
 HABRIS 0. KNIGHT. 
 
 (§ 12f 
 
 ence. He was, however, disbelieved, and 
 the court pronounced for the will. In re 
 Goods of Thomas, the names of three per- 
 sons were subscribed to the will after the 
 word "witness," but there was no attestation 
 clause. Two of these three persons were 
 dead, and their handwriting was proved. 
 The surviving witness, whose name stood 
 first of the three, deposed that, as well as 
 he remembered, the testatrix and he were 
 the only persons present when the will was 
 signed, and that he told her that another 
 witness was wanted, but was unable to rec- 
 ollect what further passed. There, acknowl- 
 edgment in the presence of the two other 
 persons was presumed, and probate was 
 granted. That is a strong case. In bur- 
 goyne v. Showier the will was signed by 
 the testator, and there were two witnesses, 
 but the attestation clause was defective, and 
 the witnesses were called. One of them did 
 not recollect being present with the other 
 when the will was signed, but both of them 
 recollected signing as witnesses in the tes- 
 tator's presence. In that case also probate 
 was granted. 
 
 In this case it must be taken as proved 
 that a document to the effect mentioned in 
 the statement of claim, and purporting to be 
 the will of the deceased, was signed by him; 
 that two names of friends of his, now de- 
 ceased, wore written underneath; that one 
 of these names was a genuine signature; 
 and that there is no evidence about the 
 other name. What is the reasonable prob- 
 ability from these facts? Is it that the de- 
 ceased did what he intended effectually or 
 482 
 
 ineffectually? The presence of the two- 
 names is significant. Why two? Because 
 two were necessary. Why have them at alE 
 except to render the instrument valid? And' 
 there being no reason whatever to doubt 
 the genuineness of the unproved signatm-e, 
 is it not a reasonable inference to infer its 
 genuineness? If it is, and there is no rea- 
 son to suppose that anything was done ir- 
 regularly or improperly, may it not be rea- 
 sonably inferred that all was done properly, 
 although there was no attestation clause to- 
 say so? 
 
 These appear to me to be the two ultimate- 
 questions. Butt, J., has inferred that th^ 
 improved signature was genuine, and that 
 every thing was regularly done. I am not 
 prepared to say he was wrong. 
 
 I can find no case that goes so far. as this;" 
 but authorities are only of use as guides 
 when a case turns on inferences of fact. 
 The extent to which the supposed will was 
 acted upon after the death of the deceased 
 tends to support the inference in favor of its 
 validity; whilst its destruction by the widow 
 (if indeed she destroyed it) tends the other 
 way. The cardinal point is, that the judge • 
 who saw and heard the witnesses, came to 
 the conclusion that the name of the deceased' 
 at the end of the alleged will was his genuine 
 signatiu-e. Given this, and the other uncon- 
 troverted facts of the case, and I think that 
 the judge was justified in drawing the in- 
 ferences which he did, and in pronouncing: 
 for the will. 
 
 LOPES, L. ,1., dissents. 
 
§ 1-1) 
 
 BEIIHENS V. BEIIHENS. 
 
 Case No. 168 
 
 BEHRENS V. BEHRENS. 
 
 (25 N. E. 209. 47 Ohio St. 323.) 
 
 Supreme Court of Ohio. May 20, 1890. 
 
 Henry NewbeRin and Benjamin B. Kings- 
 bury, for plaintiffs in error. J. R. Tyler, 
 Peaslee & Enon.auO Stepbenson & Knapp, 
 for defendant in error. 
 
 DiCKMAN, J. It is concedefl that Daniel 
 Behrens, on the 31st day of October, 1882, 
 made and executed, in due form of law, his 
 last will and testament. On the 28th day 
 of November, 1884, he died, leaving real 
 and personal properly, and, as his heirs 
 at law, Frederick Behrens and Henry 
 Behrens, the plaintiffs herein, and George 
 Behrens, the defendant, his only sons. 
 After his decease, it was discovered that 
 his will had been lost or destroyed, and 
 the question arose, whether the will was 
 lost or destroyed prior or subsequent to 
 the death of the testator, and if before his 
 death, whether or not it wasdestroyed by 
 the testator himself, with the intention of 
 revoking the same. On the application of 
 George Behrens, the probate court found 
 that the will was not revoked by the tes- 
 tator, but that it lir.d been lost or de- 
 stroyed subsequent to his death, and there- 
 upon established its contents to be as in 
 the alleged copy produced in court, and 
 admitted the same to probate. 
 
 In the action to contest the validity of the 
 will, the order of probate was priwa iacie 
 evidence of its due attestation, execution, 
 and validity. By section 5948, Rev. St., 
 last wills and testaments, which have been 
 lost, spoliated, or destroyed, when estab- 
 lished as to their contents, and admitted 
 to probate, are, in all respects, to be gov- 
 erned by the laws in force relatingto other 
 wills, not only as relates to the contents 
 of the same, but in all other matters. In 
 a proceeding to contest the validity of 
 such a spoliated will admitted to probate, 
 the burden of proof is on the contestants 
 to invalidate it. Haynes v. Haynes, 33 
 Ohio St. ,598; Mears v. Mears, 15 Ohio St. 
 90. In Banning v. Banning, 12 Ohio St. 
 437, it is held that, where the contents of a 
 spoliated will have been found, admitted 
 to probate, and recorded in a proceeding 
 duly had for that purpose in the probate 
 court, such record \h prima facie evidence, 
 in a future proceeding to con test the valid- 
 ity of such will, not only of the due attesta- 
 tion and execution of such will, but also 
 of its contents; and on the trial of the is- 
 sue whether the will admitted to probate 
 is the last will of the testator or not, the 
 same mnst stand, unless the jury are satis- 
 fied by a preponderance of proof that it is 
 not, in substance, the will of the testator. 
 
 In assuming the burden of establishing, 
 by a preponderance of evidence, that the 
 will admit'ted to probate was not the last 
 will of Daniel Behrens, it became material 
 for the contestants to prove that his last 
 will was not in existence at the time of his 
 death, but had been revoked by the tes- 
 tator tearing, canceling, obliterating, or 
 destroying the same, with the intention of 
 revoking it. Section 5944, Rev. Ht., au- 
 thorizes the probatecourtto admitto pro- 
 bate an unrevoked last will when the orig- 
 inal has been lost, spoliated, or destroyed, 
 
 snbsequent to the death of the testator. 
 or after the testator has become incapable 
 of makmg a will by reason of insanity. 
 The court in Re Sinclair's Will, 5 Ohio St. 
 291, in construing the same statutory pro- 
 vision then in force, held that the legisla- 
 tion of the state, as it then existed, did not 
 permit a will lost, or destroyed, to be es- 
 tablished, unless it was in existence subse- 
 quently to the death of t he testator. " The 
 general as.sembly, " said Swan, J., " deemed 
 it either impolitic, as opening the door to 
 imposition and perjury, or unnecessary, to 
 permit wills lost or destroyed before the 
 decease of the testator to be established." 
 The court, therefore, as an essential fact 
 to be determined, charged the jury as re- 
 quested by the plaintiffs : " Before you can 
 find that it was the last will and testa- 
 ment of the said Daniel Behrens, you must 
 find that it existed, and had not been re- 
 voked at the death of the testator, or at 
 such time prior to his death when he ceased 
 continuously after that tu be of disposing 
 mind and memory; and, unless you find 
 from the evidence that the said will was 
 actually in existence at the time when the 
 said Daniel Behrens ceased to be of dis- 
 posing mind and memory, at or prior to 
 his death, thtii, the conclusion of law fol- 
 lows that the testator destroyed the will, 
 with intent thereby to revoke it." If the 
 will did not exist at the time of the testa- 
 tor's death, and had been destroyed prior 
 to that time, it could not be established 
 under the statute as a will of which the 
 original had been lost, spoliated, or de- 
 stroyed, subsequent to the death of tlic 
 testator. And here it may be inquired 
 what, if any, conclusion of laworpresunip- 
 tion arises from the fact of the non-exist- 
 ence, at the time of the testator's death, 
 of his last will and testament proved to 
 have been made and executed. As re- 
 quested by the plaintiffs, the court gave 
 the following charge to the jury: "The 
 presumption is that, if a will be not found 
 after the death of an alleged testator, it 
 was destroyed with intention of revolting 
 it. This presumption may bestrengthened 
 by the declarations made by the testator 
 before his death, to the effect that he in- 
 tended to destroy the will, and if you be- 
 lieve from the evidence that the will al- 
 leged to have been made on the 31st of Oc- 
 tober, 1882, by Daniel Behrens, was not in 
 existence after his death, you are atliberty 
 to believe from this fact alone that the 
 said will was destroyed by said Behrens 
 with the intention of revoking it, and you 
 may consider as strengthening this pre- 
 sumption any declarations made to per- 
 sons before his death, by the said Daniel 
 Behrens, that he would destroy the will, 
 or had destroyed the will, or intended his 
 children should share equally in his prop- 
 erty. " In giving the foregoing instructions 
 to the jury, and in admitting in evidence 
 the declarations of the testator as to de- 
 stroying his will, and dividing his proi)- 
 erty equally among his three sons, we find 
 no error for which the judgment of the 
 court of common pleas should have been 
 reversed. 
 
 In general, it may be assumed that a 
 will is kept in the custody of the testator 
 himself, or under his control, to be 
 changed, modified, or revoked according 
 
 483 
 
Case Xo. 168 
 
 BEHIIENS V. BEHRENS. 
 
 (§ 124 
 
 to his good pleasure. If, at his decease, it 
 cannot be found, it is more reasonable to 
 presume that he himself has destroyed his 
 will, than that some other person has 
 committed the ci'ime, and incurred the 
 penalty of secreting or destroying it. In 
 Betts V. Jackson, 6 Wend. ISl, it is said by 
 Chancellor Walworth: "Legal presump- 
 tions are founded upon the experience and 
 observation of distinguished jurists as to 
 what is usually founn to be the fact re- 
 sulting from any given circumstances, and 
 the result being thus ascertained, when- 
 ever such circumstances occur, they are 
 prima facie evidence of the fact presumed ; 
 and 1 have no doubt that five wills, made 
 with all due formality, have been de- 
 stroyed by the testators, either in secret or 
 when no one was present to be a witness 
 to prove the fact, to where there has been* 
 one destroyed or suppressed by fraud, or 
 lost by time or accident, before the death 
 of the testator." Indeed, it is now well 
 settled, and is a principle of universal ac- 
 ceptance in both the English and Amer- 
 ican courts, that, where a will is proved to 
 have once existed, and the testator re- 
 tained custodj' jfit, or had ready access 
 to it, and it cannot be found after his 
 death, a legal presumption is raised that 
 the will was destroyed by him with thein- 
 tention of revoking it. In the recent case 
 of Collyer v. Collyer, 110 N. Y. 486, 18 N. E. 
 Bep. 110, the rule is stated that when a 
 will previously executed cannot be found 
 after the death of the testator, there is a 
 ^itrong presumption that it was revoked 
 by destruction by the testator, and this 
 presumption stands in the place of posi- 
 tive proof. See, also, 1 Eedf. Wills, 329 ; 
 1 Williams, Ex'rs, 157, and cases cited; 2 
 Amer. Lead. Cas. (5th Ed.) 510; Foster's 
 Appeal, 87 Pa. St. 67; Minkler v. Minkler, 
 14 Vt. 125; Betts v. Jackson, supra ; Minor 
 v. Guthrie, (Ky.) 4S. W. Rep. 179; Hatch 
 V. Sigman, 1 Dem. Sur. 519; 1 Jarra. 
 Wills, (5th Amer. Ed.) 290, and cases cited; 
 Wargent v. HoUings, 4 Hagg. Ecc. 245; 
 Iiillie V. Lillie, 3 Hagg. Ecc. 184. Such n, 
 presumption of revocation may be over- 
 come by circumstantial or other proof to 
 tne contrary. It may be rebutted by 
 showing that the testator had no oppor- 
 tunity to revoke, and that his will was 
 destroyed after his death. And for this 
 purpose, declarations of the testator to 
 various members of his family down to a 
 few days before his death, expressive of 
 his satisfaction at having settled his 
 affairs, and intimating that his will was 
 left with his attorney, have been held to 
 have been properly admitted. Whiteley v. 
 King, 17 C. B. (N. S.) 756; Keen v. Keen, 
 L. R. 3 Prob. & Div. 105; In re Johnson's 
 Will, 40 Conn. 5S7. But while the declara- 
 tions of the testator may be used to 
 weaken the presumption that he has de- 
 stroyed his will with the intention of re- 
 voking it, his declarations may also be re- 
 ceived as evidence to strengthen and fortify 
 the presumption that he has destroyed his 
 will with such intention. Whether it be 
 the making of a will or the destroying of 
 one, the competency of the testator's 
 declarations as evidence is alike in each 
 case, and for the same reasons admissible. 
 Collagan v. Burns, 57 Me. 465. In Keen v. 
 484 
 
 Keen, supra, in order to rebut the pre- 
 sumption of revocation arising from a 
 will which was in a testator's possession 
 not being found after his death, evidence 
 was produced of declarations by the tes- 
 tator showing an intention to adhere to 
 the will. The court held that evidence of 
 declarations of an intention not to adhere 
 to the will, produced by the opponents 
 of the will, was admissible to contradict 
 the evidence of adherence, whatever might 
 be the form of words in which such inten- 
 tion was expressed, and therefore that a 
 declaration by the testator that he had 
 burnt his will was admissible, not as evi- 
 dence of the fact of destruction, but as evi- 
 dence of intention. Sir J. Hannex, in his 
 opinion in the case, says: "I think there can 
 be no doubt that, while on the one hand evi- 
 dence of statements, made by a testator 
 subse(iuent to the execution of a will, that 
 he intends to act in conformity with the 
 disposition contained in the will, is clearly 
 admissible, it necessarily follows that 
 other statements made by the testator, 
 to a contrary effect, must also be admis- 
 sible. The admissibility of such evidence 
 cannot depend on the form of words in 
 which the intention is expressed. There- 
 fore a statement by a testator that he has 
 altered his mind as to the disposition of 
 his property, and that he has therefore 
 destroyed his will, although it may not 
 be evidence of the fact of destruction of 
 the will, is evidence of intention from 
 which the fact of destruction may be in- 
 ferred, there being other circumstances 
 leading to the same conclusion. " In Law- 
 yer V. Smith, 8 Mich. 412, after the death 
 of the testatrix, a will 2.5 years old was 
 discovered, which was either torn or 
 worn in several pieces. Whether the in- 
 jury to the instrument was done by the 
 testatnx or by some. other person, and, if 
 by her, whether accidentally or intentional- 
 ly, and for the purpose of revoking the 
 will, were held to be questions of fact for 
 the jury ; and to aid them in determining 
 these questions, and not as separate and 
 independent evidence of a revocation, the 
 declarations of the testatrix, made after 
 the date of the will, that she had de- 
 stroyed it, were held to be competent evi- 
 dence. In Patterson v. Hickey, 32 Ga. 156, 
 it was decided that, where the question is 
 revocavit vel non, parol evidence, as to 
 the acts and declarations of the testator, 
 are admissible, although made at any 
 time between the making of the will and 
 the death of the testator. A will is said 
 to be ambulatory until the testator dies. 
 Until his oeath the instrument has no 
 force or effect, and, until then, he has the 
 power to cancel or revoke it. If, from be- 
 ing clothed with this power, the presump- 
 tion arises after his death that he de- 
 stroyed his will, that presumption will be 
 aided by his declarations as expressive of 
 his feelings and intention. In Weeks v. 
 McBeth, 14 Ala. 474, it was held that the 
 declarations of the testator were admissi- 
 ble to strengthen the presumption of revo- 
 cation, and to show that the will was 
 destroyed by the testator animo revo- 
 candi. And it was there stated as the in- 
 variable rule in the courts of England to 
 admit the declarations of the testator. 
 
§ 124) 
 
 BEHREXS c BEHUENS. 
 
 Case No. 168 
 
 either to strengthen , or to repel the pre- 
 sumption of revocation, arising from the 
 non-production of the will after the death 
 of the testator, or to explain the act of 
 destroying or canceling it. The case of 
 Smiley v. Gambill, 2 Head, 164, was a con- 
 test upon the will of Margaret Stewart. 
 The testatrix burned a paper which she be- 
 lieved was her will, and died in that belief. 
 This was proved by her uniform declara- 
 tions, and by her acts in disposing by 
 deeds of some of the same property named 
 in the will, and in applications made to 
 write another will for her, on the ground 
 that she had destroyed the first. Cakuth- 
 EHS, J., in delivering the opinion of the 
 court, said that, if the jury believed as a 
 matter of fact that Mrs. Stewart burned a 
 paper which she thought was her will, al- 
 though it was not, with the intention of 
 revoking by its destruction, and honestly 
 believed that she had done it, and contin- 
 ued in that belief without any subsequent 
 recognition or even knowledge of its exist- 
 ence, the paper propounded would not be 
 her will. As testimony bearing on this 
 question, her declarations alone might 
 not be sufficient, but they were compe- 
 tent, and it would be for the jury to deter- 
 mine whether they, together with other 
 facts proved, made out the fact of burn- 
 ing, or intention to do so, by the act 
 done. The strongly expressed conclusion 
 of the court in Reel v. Eeel, 1 Hawks, 248, 
 is in accord with citations already made: 
 "To reject the declarations of the only 
 person having a vested interest aud who 
 was interested to declare the truth, whose 
 fiat gave existence to the will, and whose 
 fiat could destroy, and in doing the one or 
 the other could interfere with the rights 
 of no one, involves almost an absurdity; 
 and they are received, n"t upon the 
 ground of their being a part of the res 
 gestiB, for whether they accompany an 
 act or not, whether made long before or 
 long after making the will, is entirely im- 
 
 material as to their competency. Those 
 circumstances only go to their weiglit or 
 credit with the tribunal which is to try 
 the fact. " See, also, Collagen v. Burns, 
 supra; Tynan v. Paschal, 27 Tex. 286; 
 Yonndt v. Youndt, 3 Grant, Cas. 140. 
 
 It is not necessary to refer to the nu- 
 merous other authorities which we have 
 examined, aud which bear directly upon 
 this branch of Ihe case. No claim is 
 made that a will may be revoked by the 
 mere declarations of the testator or oth- 
 erwise than in the modes prescribed by 
 the statute. But where a legal presump- 
 tion is raised, upon the decease of the tes- 
 tator, that he destroyed his last will an<l 
 testament in the statutory mode with the 
 intention of revoking it, it is obvious 
 that, while the declarations of the testa- 
 tor may be admitted as evidence towards 
 rebutting the presumption of such 
 destruction and revocation before his 
 death, they may with equally good rea- 
 son be received as evidence to support and 
 strengthen that presumption. Itis urged, 
 in behalf of the defendant in error, that 
 the charge to the jury was erroneous and 
 misleading. At the trial, the defendant 
 excepted generally to the whole charge 
 given by the court to the jury, without 
 pointing out specifically the part or 
 proposition of the charge excepted to, or 
 the grounds of his exception. Of such an 
 exception a reviewing court is not bound 
 to take notice. Adams v. State, 25 Ohio 
 St. 584, 29 Ohio St. 412 ; Berry v. State, 31 
 Ohio St. 219; Everett v. Sumner, 32 Ohio 
 St. 562; Powers v. Railway Co., 33 Ohio 
 St. 429; Insurance Co. v. Tobin, 32 Ohio 
 St. 77. But in the case at bar, upon an ex- 
 amination of the charge to the jury, we 
 discover no error calling for a reversal of 
 the judgment of the court of common 
 pleas. The judgment of the circuit court 
 should be reversed, and that of the court 
 of common pleas affirmed. Judgment ac- 
 cordingly. 
 
 485 
 
Case No. 169 
 
 HOLMAN V. PEKif ' 
 
 (§§ 40. 125. 126 
 
 HOLMAN T. PERRY et al. 
 
 (4 Mete. [Mass.] 492.) 
 
 Supreme Judicif\l Court of Massachusetts. 1842. 
 
 This was an appeal from a decree of the 
 judge of probate for this county, approving 
 and allowing a certain instrument "as the 
 writing testamentary and appointment" of 
 Martha Perry. The case was submitted to 
 the court on the following documents and 
 facts agreed: At the time of the execution 
 of said instrument, the said Martha was the 
 lawful wife of said Adams Perry, one of the 
 appellees. Before their intermarriage, they 
 executed, with Stephen Davis, an indenture 
 in these terms: 
 
 "An indenture of three parts, made this 
 first day of November, 1830, by and between 
 Patty Rich of Sutton, in the county of 
 Worcester, widow, of the first part, Adams 
 Perry of Oxford, in said county, husband- 
 man, of the second part, and Stephen Davis, 
 of said Oxford, Esquire, of the third part. 
 Whereas a marriage is about to be solem- 
 nized between the said Adams Perry and 
 Patty Rich and upon the treaty of said mar- 
 riage it is agreed by and between the par- 
 ties thereto, that all the property of the said 
 Patty shall be vested in the hands of the 
 said Davis, as her trustee, for her sole and 
 separate use, in manner as hereinafter pro- 
 vided: Now this indentm-e witnesseth, that 
 the said Patty, in consideration of the prem- 
 ises, and of the covenants herein entered 
 into by the said parties of the second and 
 third parts, doth hereby bargain, sell, as- 
 sign, and transfer unto the said Davis, all 
 that real estate situated in tlie towns of Sut- 
 ton, Oxford and Douglas, containing about 
 two hundred and seventy acres, which she, 
 tlie said Patty, holds by deed of mortgage 
 from George 0. Earle, dated April 4th 1827, 
 and recorded in the registry of deeds for 
 said county of Worcester, booli 257, page 
 445: Also one pew in the Universalist meet- 
 inghouse in Oxford, and one pew in the Bap- 
 tist meetinghouse in West Sutton: Also, all 
 her shares in the Oxford, Sutton, and Doug- 
 las turnpike: Also all her notes of hand, 
 book accounts, household furniture, and oth- 
 er property of every description whatsoever, 
 whether real, personal, or mixed, as well as 
 all property which she the said Patty has, 
 or may have, in remainder, reversion, by in- 
 heritance, bequest, devise or otherwise, at 
 any time during her coverture with the said 
 Perry; to have and to hold the same unto 
 the said Stephen Davis, his executors, ad- 
 ministrators and assigns, in trust and for 
 the purposes herein specified to wit: Firstly, 
 to reimburse himself for all moneys paid, 
 expenses incurred, and services rendered, 
 in the execution of the several trusts herein 
 devolved upon him the said Davis: Second- 
 ly, to discharge all the liabilities and trusts 
 devolved upon the said Patty, as executrix 
 of the last will &c. of her late husband, Amos 
 liich, jointly with the said Davis; and also 
 486 
 
 all the liabilities and trusts devolved upon 
 her, as executrix of the last will &c. of her 
 late son, Amos Rich, jointly with one David 
 Walker; and, in short, to meet all the ex- 
 penses and charges incident to a full and 
 final settlement of each and both of said 
 testators' estates agreeably to their respec- 
 tive last wills and testaments. Thirdly, to 
 pay to the said Perry, in case he should sur- 
 vive the said Patty, the sum of two hundred 
 and fifty dollars. Fotirthly, to hold all the 
 residue of the property and estate of the 
 said Patty to her sole and separate use, to 
 be paid her at such times and in such sums, 
 as she may request, her sole and separate 
 receipt always to be a sufficient voucher for 
 such payment; and upon the decease of the 
 said Patty, to pay and transfer to her ex- 
 ecutor, or administrator on her estate, all 
 the moneys, property and effects then re- 
 maining in his hands under this indenture 
 of trust and settlement by such executor or 
 administrator to be disposed of according to 
 the last will, &c. of the said Patty, or the law 
 regulating the descent of the estates of in- 
 testates, as the case may be; and the said 
 trustee is hereby authorized to sell, manage 
 and dispose of the said estate of the said 
 Patty, in 'such a manner as he may think 
 will be most for the advantage of the re- 
 spective parties in interest, and the proceeds 
 thereof to invest in such stocks, or other- 
 wise, as he may see fit; always rendering to 
 the said Patty an account of all his doings 
 in the premises, Avhen thereunto by her re- 
 quested. And the said Patty hereby reserves 
 to herself full power to make such a dispo- 
 sition of her separate estate either by will 
 or otherwise, as she may think proper; pro- 
 vided it be not inconsistent with a full dis- 
 charge of the several trusts herein devolved 
 upon the part of the said Davis. 
 
 "And the said Adams Perry of his part, 
 doth for himself, his heirs, executors and ad- 
 ministrators, covenant to and with the said 
 party of the third part; that if said intended 
 marriage shall take place, he, the said Per- 
 ry, shall and will permit and suffer the said 
 party of the first part to dispose of her said 
 separate estate, as she shall think fit, in her 
 lifetime, and to make such will for the dis- 
 position of the same after her decease, as 
 she shall think proper; hereby assenting to 
 any such testamentary disposition of her es- 
 tate, as she may heretofore have made, or 
 may hereafter make, in as full a manner 
 as if such assent was more specifically given 
 thereto; and finally the said Perry fully and 
 freely assents to all the covenants, agree- 
 ments, trusts, and other matters and things, 
 herein contained. 
 
 "And the said Stephen Davis, for himself, 
 his executors and administrators, does here- 
 by covenant to and with the said parties of 
 the first and second part, jointly and sever- 
 ally, and with their respective executors 
 and administrators, that he will truly and 
 faithfully perform and fulfil all and singular 
 
|§ 40. 125, 126) 
 
 HOLMAX V. PEliRY. 
 
 Case No. 1611 
 
 the trusts, duties, and obligations aforesaid, 
 according to ttie true intent of tliese pres- 
 ents; and that he will well and truly ac- 
 count to the said party of the first part, for 
 -all his doings in the premises, when thereun- 
 to by her requested; and finally, that he will 
 manage, to the best advantage he can, all 
 .the property and estate that may come to 
 .his hands by virtue of these presents." 
 iSigned and sealed by all the parties, and 
 duly acknowledged by the said Patty to be 
 3ier free act and deed.] 
 
 On the 19th of June 183S, the said Patty 
 <by the name of Martha Peri-y) made and 
 ^published her last wiU, reciting therein that 
 she did it by vh'tue of an agreement made 
 with her husband, Adams Perry, before their 
 marriage. After giving several legacies, the 
 testatrix devised her real estate, as follows: 
 
 "I give and devise to my husband, Adams 
 Perry, and to my daughter, Martha Earle, 
 the use and improvement of that portion of 
 my real estate, which was reserved by me, 
 -and was a part of the estate owned by my 
 late husband, Amos Rich, and also the use 
 .and improvement of such fm-ther real es- 
 tate as I may die seized and possessed of, 
 which I may hereafter pm'chase (if any); 
 to have and to hold to them, the said Adams 
 Perry and Martha Earle, during the nat- 
 xti-aX life of the said Adams Perry. Also all 
 the rest, residue and remainder of my es- 
 tate, both real and personal, after paying 
 my just debts; amount secured by agree- 
 ,ment to my husband Adams PeriT, all lega- 
 Kjies made by this will, and also by the will 
 of my late husband, Amos Rich, and my 
 late son, Amos Rich, which I am bound to 
 pay; my funeral expenses, and expenses of 
 celling my estate; I give and devise, in equal 
 shares, to the children of my daughter, 
 Martha Earle; to have and to hold to them, 
 their heirs and assigns for ever." 
 
 The testatrix appointed her husband, (the 
 appellee) and her said daughter, Martha 
 Earle, executors of her said will. 
 
 After the execution of the indenture above 
 ^et forth, to wit, on the 5th of April 1831, 
 Paris and George Tourtellot conveyed to the 
 testatrix a tract of land in Sutton, for the 
 consideration of |312.50; and on the 13th of 
 .July, 1835, the testati-ix and her husband, 
 .'iaid Adams Pen-y, conveyed the same ti-act 
 to the said Stephen Davis, by a quitclaim 
 ■deed, and, as is expressed in said deed, "in 
 consideration of the covenants entered into 
 by said Davis, as trustee of said Martha 
 Perry," to have and to hold the same "in 
 trust for the sole and separate use of the 
 said Martha." 
 
 After the execution of said will, to wit, on 
 the 23d of June 1838, Leonard Pierce, for 
 the consideration of ?140, conveyed to the 
 testatrix another tract of land in Sutton; 
 which land was her property at the time of 
 ■lier decease. 
 
 This case was argued at the last October 
 term. 
 
 Newton, for appellant. C. Allen, for appel- 
 lee. 
 
 DEWEY, J. Married women have not the 
 same authority as femes sole to dispose of 
 their interest in real estate by a last will 
 and testament. Any devise by them of their 
 real estate, in order to be made available 
 to the devisees, must have its foundation in, 
 and acquire its efiicacy from, some special 
 power retained or acquired by them to make 
 a testamentary disposition of their estate. 
 But there can be no doubt, that in reference 
 to property which has been thus preserved 
 under her control, the will of a married 
 woman may be as effectual in the disposition 
 of that property, as the will of any other 
 individual in passing his estate. Such a will 
 may have force and effect as a testamentary 
 paper, or instrument, directing the disposi- 
 tion of property by virtue of a power re- 
 served to her in a marriage settlement or 
 ante-nuptial contract. "Wherever a trust is 
 created or a power is reserved by a settle- 
 ment, to enable the wife after marriage to 
 dispose of her separate property, either real 
 or personal, it may be executed by her in the 
 very manner provided for, whether it be 
 by deed, or other writing, or by a will or ap- 
 pointment." 2 Story, Bq. Jiu. § 1388. If the 
 real estate of a feme is, before her marriage, 
 conveyed to a trustee to hold to her separate 
 use, and by articles of marriage settlement 
 she is authorized to dispose of the same by 
 will, then a disposition of such estate by will 
 is a valid and legal disposition of the same, 
 though she is under coverture when she 
 makes such will. Wright v. Englefield, 2 
 Amb. 4G8; Wright v. Cadogan, 1 Brown, 
 Pari. Gas. (1st Ed.) 486; Peacock v. Jlonk, 
 2 Ves. Sr. 190; Bradish v. Gibbs, 3 Johns. 
 Oh. 536, and cases there cited. The duty 
 of the court of probate to approve and allow 
 a will of a married woman, when necessary 
 to give effect to her power of disposal of 
 real estate, was fully admitted in the opin- 
 ion of this court, in the case of Osgood v. 
 Breed, 12 Mass. 525. 
 
 Whether a mari-ied woman can make a 
 devise of real estate which has not been con- 
 veyed to a trustee, but of which she and her 
 husband are seized in her right, is a ques- 
 tion, which, although discussed in the argu- 
 ment of the present case, we have not found 
 it necessary to decide. The question before 
 us is as to the right of probate and aUow- 
 ance of this wiU; and all that it is necessary 
 for us to consider is, whether there is any 
 property upon which it can legally operate. 
 And it is very clear, that as to the real es- 
 tate which may have passed to Davis, the 
 tnastee, under the ante-nuptial agreement by 
 indenture, and also as to the real estate 
 which the testatrix held under the deed from 
 P. and G. Tourtellot, and afterwards, joint- 
 ly with her husband, conveyed to said trus- 
 tee, she had the power of disposal thereof 
 by will; and this will ought to be allowed 
 
 487 
 
Case No. 169 
 
 HOLMAN 0. PERRY. 
 
 (§§ 40. 125, 126 
 
 and approved, so far as is necessary to give 
 efitect to tier disposal of tlie same. 
 
 But the appellant insists, tliat at least as 
 to a part of the land devised, namely, that 
 conveyed to the testatrix by Leonard Pierce, 
 in 1S38, and of which the legal estate re- 
 mained in her and her husband, this will 
 cannot operate. And it is then contended, 
 that if the wiU is inoperative upon a por- 
 tion of the lands devised, it should be whol- 
 ly disallowed. We cannot assent to the cor- 
 rectness of this position last stated. We 
 are aware that by statute provisions former- 
 ly existing, (St. 1783, c. 24, § 9,) a will pur- 
 porting to pass both real and personal es- 
 tate, but not so executed as to pass the for- 
 mer, could not be allowed as valid will of 
 the personal estate. But we apprehend that 
 this principle was never so applied as to fur- 
 nish a valid objection to the probate of a 
 will, where from some defect, or incapacity 
 to devise, a part of the real estate, which 
 was given by the wiU, could not pass. Take 
 the case of a testator, who was disseized of 
 one parcel of the land devised. Would this 
 defeat the whole wiU? 
 
 The probate of a will does not necessarily 
 settle any question of title to real estate 
 arising under such will. It establishes the 
 due execution of the will by the testator, 
 and is conclusive thus far; but as to his 
 title, or his right to devise the property 
 named in the will, it binds nobody who has 
 any adverse interest. Questions of that char- 
 acter are to be settled by proper proceed- 
 ings at law, or in equity. We cannot, as the 
 488 
 
 supreme court of probate, settle the rights 
 of the parties to the real estate which may 
 be claimed under this wiU.- The question 
 may come up incidentally; and if there were 
 only one parcel of land which could possibly 
 be affected by the probate of this wiU, and 
 the court were satisfied that it could not 
 pass by the will, then perhaps probate 
 might be refused, inasmuch as this is a case 
 of a mere limited or qualified probate of an 
 instrument made in the execution of a pow- 
 er. But if the court are satisfied that any 
 land can pass by the wiU, that is all which 
 is requisite to authorize and require the ap- 
 proval of the will. We therefore think that 
 the objection taken by the appellant could 
 not avail him, if the land above referred to 
 should not pass by the will. But whether 
 it does so pass, is, as before suggested, a 
 question more properly raised in some other 
 mode than the present. 
 
 The result wiU be, therefore, that the in- 
 strument, offered as the last wiU and testa- 
 ment of Martha Perry, be approved and al- 
 lowed, and have full force and effect as such, 
 so far as the same can operate, in law or 
 equity, upon any and all property, real or 
 personal, of said testatrix, or upon any prop- 
 erty subject to her disposal by way of ap- 
 pointment, creation or declaration of trust, 
 or otherwise, so far as she, under the in- 
 denture before referred to, or otherwise, had 
 authority, while a feme covert, to make any 
 appointment or disposition, or create or de- 
 clare any such trust of or respecting any 
 such real or personal property. 
 
§ 126) 
 
 ALLEN v. nU-SDAS. 
 
 Cfise Xo. 170" 
 
 ALLEN V. DTJNDAS. 
 
 (3 Term R. 123.) 
 
 King's Beach. Feb. 10, 1789. 
 
 This was an action on the case for money 
 had and received to the use of the intestate, 
 and to the use of the plaintiff as adminis- 
 Irator: to which the defendant pleaded the 
 general issue. And on the trial a speci.al 
 verdict was found, stating in substance as 
 follows. The defendant, as treasurer of the 
 navy, was indebted to the intestate in his 
 lifetime in £58 13s. 6d. for money had and 
 received to his use. Priestman died on the 
 2d of June, 1784: on the 13th of August, 
 1785, one Robert Brown proved in the pre- 
 rogative court of the archbishop of Canter- 
 bury, a forged paper writing, dated the 38th 
 of May, 1784, purporting to be the last will 
 of Priestman, otherwise Handy; whereby 
 he was supposed to have appointed Brown 
 the sole executor thereof; and a probate of 
 that supposed will issued in due form of 
 law, under the seal of that court, on the 
 same day, in favor of Brown. The defend- 
 ant, not knowing the will to have been for- 
 ged, and believing Brown to be the rightful 
 executor, on Brown's request paid him £58 
 13s. 6d., being the whole balance then due 
 from the defendant to Priestman. On the 21st 
 of July, 1787, Brown was called by citation, 
 at the suit of John Priestman the father, and 
 next of liin of the deceased, in the preroga- 
 tive court of the archbishop of Canterbury, 
 touching the validity of such supposed will; 
 and such proceedings were thereupon had 
 in that court, that the will and probate were 
 declared null and void; that Thomas Priest- 
 man died intestate; and that John Priest- 
 man the father was his next of kin. And 
 on the 31st of March, 1788, letters of admin- 
 istration of the goods, &c. of Thomas Priest- 
 man were granted by that court in due form 
 of law to the plaintiff, as attorney of John 
 Priestman. But whether, &c. 
 
 Mr. Shepherd, for plaintiff. Mr. Baldwin, 
 for defendant. 
 
 ASHHURST, J. I am of opinion that the 
 plaintiff has no right to call on the defend- 
 ant to pay this money a second time, which 
 was paid to a person who had at that time 
 a legal authority to receive it. It is admit- 
 ted, that if he had made this payment under 
 the coercion of a suit in a cotu"t of law, he 
 would have been protected against any oth- 
 er demand for it: but I think that makes no 
 difference. For as the party to whom the 
 payment was made had such authority as 
 could not be questioned at the time, and 
 such as a court of law would have been bound 
 to enforce, the defendant was not obliged to 
 wait for a suit, when he knew that no de- 
 fence could be made to it: this therefore 
 cannot be called a voluntary payment. This 
 
 is different from payments nnder forged 
 bonds or bills of exchange; for there the- 
 party is to exercise his own judgment, and 
 acts at his peril: a payment in such a case 
 is a voluntary act, though perhaps the party 
 is not guilty of any negligence in point of 
 fact. But here the defendant acted under 
 the authority of a court of law; every per- 
 son is bound to pay deference to a judicial' 
 act of a court having competent jurisdiction. 
 Here the spiritual court had jurisdiction 
 over the subject matter; and every person^ 
 was bound to give credit to the probate till. 
 it was vacated. The case of a probate of a. 
 supposed will dm-ing the life of the party 
 may be distinguished from the present; be- 
 cause during his life the ecclesiastical court 
 has no jurisdiction, nor can they inquire who 
 is his representative; but when the party is 
 dead, it is within their jurisdiction. Besides, 
 the distinction taken by the defendant's 
 counsel between cases where a will is set 
 aside on an appeal, or on a citation, seems 
 to have some foundation: in the former the 
 original sentence is as if it had never exist- 
 ed; in the latter, the will is only repealed, 
 and all acts under it till the repeal are good. 
 But the foundation of my opinion is, that 
 every person is bound by the judicial acts of 
 a court having competent authority: and 
 during the existence of such judicial act, 
 the law will protect every person obeying it. 
 
 BULLER, J. The first question to be con- 
 sidered is, what is the effect of a probate? 
 It has been contended by the plaintiff's coun- 
 sel, first, that it is not a judicial act; and 
 2dly, that it is not conclusive. But I am- 
 most clearly of opinion that it is a judicial 
 act; for the ecclesiastical com't may hear 
 and examine the parties on the different 
 sides, whether a will be or be not properly 
 made; that is the only court which can 
 pronounce whether or not the will be good. 
 And the courts of common law have no ju- 
 risdiction over the subject. Secondly, the- 
 probate is conclusive till it be repealed: and 
 no court of common law can admit evidence 
 to impeach it. Then this case was compared 
 to a probate of a supposed will of a living^ 
 person; but in such a case the ecclesiastical 
 court have no jurisdiction, and the probate 
 can have no effect: their jurisdiction is only 
 to grant probates of the wills of dead per- 
 sons. The distinction in this respect is this;; 
 if they have jurisdiction, their sentence, as 
 long as it stands unrepealed, shall avail in 
 all other places: but where they have no 
 jurisdiction, their whole proceedings are a 
 nullity. As to the case in Com. 150, I think 
 it carries its own death-woimd on the face 
 of it. It is an anonymous case, and is said 
 to have been determined on the 5th of Ann. 
 In the replication in that case, there is a 
 traverse that the testator made such will 
 by which A. B. was appointed executor. It 
 is rightly admitted that such a traverse can- 
 
 48» 
 
< use No. 170 
 
 ALLEX V. DUNDAS. 
 
 (§ 126 
 
 not be supiiorted. The courts of common 
 law cannot try whether it be a good will 
 ■or not, for that depends on ecclesiastical 
 law. The chief justice, in giving the judg- 
 ment of the court, begins with giving as his 
 reasons, "that an executor derives all his 
 authority from the testator himself; and that 
 he of himself, as being executor, without 
 anything more, has the power of disposing 
 of the testator's estate. True it is, before an 
 action brought a probate is necessary, but 
 that is only requisite to ascertain the court 
 that the plaintiff is executor." From this 
 admission it appears that there are no 
 means of ascertaining who is executor but 
 by applying to the ecclesiastical court for a 
 probate: so that the reason destroys itself. 
 Then he proceeds to point out the difference 
 between a citation and an appeal. Now if 
 that distinction extend to the case of execu- 
 tors as well as administrators, it will decide 
 the present case. But he goes on to add 
 in that case, "but it is otherwise in the case 
 of an executor; for the probate of the will 
 gives no authority at all to him." In that 
 I differ from him; because an executor has 
 an authority which a court of common law 
 cannot dispute. The chief justice after- 
 wards goes on to say, "that that case was 
 not like the case of an officer who officiated 
 without legal authority, as the deputy of 
 the deputy of a steward, &c.; for rightful 
 acts done by him are good, for he is an offi- 
 cer de facto, and in the immediate and open 
 execution of his office. And the parties did 
 not know whether he had authority or not." 
 That is just the present case; for here there 
 was an executor de facto, who had obtained 
 a probate; and the defendant neither knew 
 or could tell whether he was rightful execu- 
 tor or not, further than he was informed 
 by the probate, which he could not dispute. 
 Then the chief justice resorts to the argu- 
 ment of inconvenience, if a tortious executor 
 should be permitted to dispose of the right 
 and interest of a rightful executor. But I 
 think that the inconvenience is clearly the 
 other way; becaiise, if there be a riglitful 
 executor, and he does not come forward, he 
 is guilty of laches. Suppose such an one 
 were to lay by for a number of years, and 
 in the meantime all the debts were to be 
 collected by another person who had obtain- 
 ed a probate as executor: those payments 
 ought to be protected; for during all that 
 time the debtors could not controvert his 
 authority; and it is admitted that if actions 
 had been brouglit in such cases, the debtors 
 could not have made any defence. Another 
 thing to be observed in the case in Comyn, 
 l.o2, is, that it was decided on the authority of 
 a case (Greves v. Weigham) in 1 Rolle, Abr. 
 919, which is there said was never denied. 
 From that circumstance I am inclined to 
 think it passed without much consideration; 
 for the doctrine in Eolle, Abr. is contradict- 
 ed in Semine v. Semine, 2 Lev. 90, and Price 
 490 
 
 V. Parker, 1 Lev. 158, and Noell v. Wells, 
 Id. 236. In the last of those cases, the ob- 
 jection was first made at nisi prius: but the 
 point was reserved for the opinion of the 
 court on a case (which shows that the prac- 
 tice of granting cases is not of very modern 
 date, for that was in Charles the Second's 
 time); and it was there resolved by the 
 court that, ou the plea of ne unques execu- 
 tor, evidence might be given that the seal 
 of the ordinary was forged, or that there 
 were bona notabilia; for they confess and 
 avoid the seal. But they also held that evi- 
 dence, that another, and not the plaintiff, 
 was executor, or that the testator was non 
 compos mentis, or that the will was forged, 
 could not be admitted; for that would be to 
 falsify the proceedings of the ordinary in 
 cases of which he is judge. It seems there- 
 fore strange that the chief justice should 
 have said in that case that the case in 
 Kolle, Abr. had never been doubted; be- 
 cause these cases determined the reverse of 
 the doctrine there contained. Then as to the 
 traverse in the case in Comyn, it is impossi- 
 ble to support it. The chief justice says that 
 "the traverse is good; for whether a will or 
 no will is a question triable by a jury; and 
 the reason is, because the spiritual com-t had 
 not the original jurisdiction of the probate 
 of wills, and because as to trial the tem- 
 poral courts have quasi a concurrent juris- 
 diction." Now this reasqn undoubtedly fails. 
 The concluding reason there given is, "that 
 the probate of a will concludes a person 
 from saying there was no such will; but 
 notwithstanding this matter may be brought 
 to trial; for the producing a will under pro- 
 bate is only evidence that there was such a 
 win. And though it is evidence of so strong 
 a nature that no evidence shall be admitted 
 against it, yet to plead that siich a trial was 
 proved is no reason why this matter should 
 not be tried." This reason is directly contra- 
 dictory to itself; for, first, he says that the 
 probate is only evidence of the will, and that 
 it maybe tried; and yet he adds, that it is con- 
 clusive, and that no evidence can be admitted 
 against it. Therefore I think this case is de- 
 structive of itself. Another head of argu- 
 ment by the plaintiff's counsel was, that the 
 payment in this case under the probate was 
 not a compulsory one, and a case of bank- 
 ruptcy was alluded to. But a determination 
 on the bankrupt laws cannot govern the 
 court In deciding this question. Those cases 
 turn on a fraudulent preference given to one 
 creditor over another: but even there the 
 courts have never proceeded on the idea that 
 a judgment is necessary to enforce payment; 
 a threat is sufficient. And the question in 
 those cases is, whether the payment under 
 the circumstances be fair, or with a view to 
 defraud the rest of the creditors. 
 
 GROSE, J. No doubt could ever have 
 been entertained on this subject, had it not 
 
§ 126) 
 
 ALLIEN 0. BUHDAS. 
 
 Case No. 170 
 
 been for the case in RoUe, Abr. and Comyn; 
 which strucii me at first as being very strong 
 •cases to the point for wliich they were cited: 
 but I am satisfied, by what has been said by 
 my Brother Buller, that they cannot be law. 
 The case in Comyn seems to be grounded on 
 .a false principle, namely, that the probate 
 of a will gives no aulliority to the executor. 
 But I thinlv it does, and so much so that it 
 ■cannot be traversed or denied. Harriot v. 
 Marriot, Gilb. Eq. 207, 20S. Then the pay- 
 ment to the executor in this case was made 
 under the judicial act of a court having com- 
 jpetent jurisdiction on the subject, wliich 
 
 could not be disputed. And therefore it is 
 not like a payment under a forged bill of ex- 
 change or bond, for this was made under 
 the authority of the probate, and not of the 
 will. It has been said that there is a differ- 
 ence between a repeal of letters testamen- 
 tary on appeal or on citation: however that 
 may be, the ground of my opinion is that the 
 law, which is founded on wise and sound 
 principles, will never compel any person to 
 pay a sum of money a second time, which 
 he has once paid imder the sanction of a 
 court having competent jurisdiction. 
 Judgment for the defendant. 
 
 491 
 
Case No. 171 
 
 WATERS V. STICKNEY. 
 
 (i?§ 95, 1:7 
 
 WATEKS V. STICKXEY. 
 (12 Allen, 1.) 
 
 Supr<»ine Judicial Court of Massachusetts. Jan. 
 Term, 1806. 
 
 Appeal from a decree admitting to pro- 
 bate the codicil to the will of John Waters. 
 The will of testator was written on the first 
 page of a sheet of paper, and the codicil on 
 the back of the same. The will was pro- 
 bated in June, 1851, on notice and hearing. 
 The codicil, the proof of which had been 
 inadvertently omitted, was admitted to pro- 
 bate in 1865. Lucy W. Stickney, a child of 
 testator's daughter, who had died in the 
 mean time, appealed. Case reserved to the 
 full court. 
 
 D. Roberts, for appellant. G. Wheatland, 
 for appellee. 
 
 GRAY, J. The decision of this case in- 
 volves an interesting question of the extent 
 of the powers of courts of probate, upon 
 which there has been no express adjudica- 
 tion in this commonwealth, but to which a 
 consideration of the precedents and authori- 
 ties on the subject furnishes a satisfactory 
 answer. 
 
 The jurisdiction over the probate of wills 
 and granting administrations is peculiar. It 
 was derived from the civil law through the 
 ecclesiastical courts, of England, and was 
 granted by the province charter to the gov- 
 ernor and council, who ajapointed judges of 
 probate in the different counties as their 
 delegates, from whom an appeal lay to them; 
 and this appellate power was continued In 
 the governor and council after the establish- 
 ment of the state constitution until the end 
 of the Revolution, when it was transferred 
 to this court, still however keeping the pro- 
 bate jurisdiction distinct from those of com- 
 mon law and equity. Anc. Chart. 32; Gov- 
 ernor Pownall's Message to his Council in 
 1760, Quincy, 573; Const. Mass. c. 3, art. 
 5; St. 1783, c. 46; Peters v. Peters, 8 Cush. 
 540-542. The jurisdiction of com-ts of pro- 
 bate in Massachusetts, differing in this re- 
 spect from those of England and of some 
 other states, includes wills of real estate 
 as well as of personal property. Anc. Chart. 
 32; Laughton v. Atkins, 1 Pick. 549, and 
 cases cited; Rev. St. c. 62, § 32, and com- 
 missioners' note; Gen. St. c. 92, § 38. 
 
 Decrees of probate courts in matters of 
 probate, within the authority conferred upon 
 them by law, are conclusive upon the courts 
 of common law, and cannot be reversed by 
 writ of error or certiorari. Dublin v. Chad- 
 bom-n, 16 Mass. 441; Smith v. Rice, 11 Mass. 
 513; Peters v. Peters, 8 Cush, 529. Nor can 
 they be set aside in equity, even for fraud. 
 Kerrlch v. Bransby, 7 Brown, Par. Gas. (2d 
 Ed.) 437; s. c. nom. Herridge v. Bransby, 
 2 l«e, Ecc. 563; Barnesley v. Powel, 1 Ves. 
 Sr. 287; Allen v. Macpherson, 1 Phil. Ch. 
 145, 146, 1 H. L. Cas. 211, 220, 221, 223, 231, 
 492 
 
 234; Gaines v. Chew, 2 How. 641, 645, 646; 
 Sever v. Russell, 4 Cush. 513. But the very 
 authorities cited for the appellant to show 
 the conclusiveness of an existing probate 
 state that it may be repealed by the court 
 which granted it. Noell v. Wells, 1 Lev. 
 235, 1 Sid. 359; Allen v. Dundas, 3 Term 
 R. 125; 2 Smith, Lead. Cas. (5th Ed.) 446. 
 
 By the practice of the English ecclesiasti- 
 cal courts, a will may be proved either in 
 common form, ex parte, upon being presented 
 by the executor; or in solemn form, after no- 
 tice to all parties interested— which last ac- 
 cords with our practice in all cases of pro- 
 bate of wills. When a will is proved in 
 common form, the court may, upon the sub- 
 sequent application of any party interested 
 and notice to the executor, at any time with- 
 in thirty years, order that will, or a later one, 
 if produced, to be proved in solemn form. 
 1 WiHiams, Ex'rs, (5th Am. Ed.) 282, 300, 
 508; Case of Executors, Het. 77; Ridgway 
 V. Abington, 3 Swab. & Tr. 3. And probate 
 of a will, granted upon the mistaken suppo- 
 sition that the testator is dead, may be re- 
 voked and cancelled by the court which 
 granted it. In re Goods of Napier, 1 Phillim. 
 Ecc. 83. 
 
 Even when a will is proved in solemn 
 form, it is within the jurisdiction of the 
 court, for sufficient cause shown, to revoke 
 the probate. The English authorities recog- 
 nize, as sufficient causes of revocation, for- 
 gery of the will, fraud in obtaining probate, 
 neglect or mismanagement in conducting 
 the suit, or the production of a later will. 
 
 The courts of common law formerly went 
 so far as to hold that the forgery of a will 
 which had been admitted to probate could 
 not be made the ground of an indictment 
 until the probate had been revoked; but ac- 
 cording to later and sounder decisions the 
 probate, though conclusive, until set aside, 
 of the disposition of the property, does not 
 protect the forger from punishment. Rex 
 V. Vincent, 1 Strange, 481; Ramsbottom'S 
 Case, 1 Leach, (4th Ed.) 25, note; Rex v. 
 Buttery, Russ. & R. 342; Rex. v. Gibson, Id. 
 343, note. 
 
 In Barnesley v. Powel, 1 Ves. Sr. 284, a 
 will of personalty, which had been proved 
 in the ecclesiastical com-t (evidently in 
 solemn form, for it is said in the report that 
 the time for appeal had lapsed, whereas, 
 if it had been proved in common form only, 
 the party could, as we have already seen, 
 have had relief by citing in the executor, 
 without being put to his appeal,) was shown 
 to have been forg;d; and Lord Hardwicke 
 decreed that the party should consent to a 
 revocation of the probate and letters testa- 
 mentary, so as to enable the ecclesiastical 
 court to cause them "to be duly revoked ac- 
 cording to the course of that court." Belt, 
 Supp. 150. The custom and right of that 
 court to revoke any of its decrees obtained 
 by fraud or surprise are also recognized in 
 Harrison v. Mitchell, Fitzg. 303; s. c. nom. 
 
§§ 95, 127) 
 
 WATERS V. STICKXEY. 
 
 Case Ko. 171 
 
 Harrison v. Weldon, 2 Strange, Oil; and in 
 Nicol V. Askew, 2 Moore, P. C. 92. 
 
 In a proceeding in the ecclesiastical court 
 by the daughter of a deceased person, after 
 citation to an executor named in a will of 
 his, for letters of administi-ation with that 
 will annexed in the event of the executor's 
 declining to take probate, attorneys inter- 
 vened in behalf of the executi-ix named in a 
 later will, then residing abroad, propounded 
 this will, and prayed letters of administra- 
 tion with this will annexed to be granted to 
 them in her behalf; but afterwards with 
 •drew from the suit, and letters of adminis- 
 tration with the first will annexed were 
 thereupon decreed to the daughter. Upon 
 ^'vidence that the attorneys withdrew from 
 that suit for want of funds and defect in 
 their power of attorney, and because the 
 daughter's husband assured them that he 
 ■could prove the later will to be a forgery. 
 Sir John NlchoU held that the executrix 
 named in the second will, and a fortiori any 
 other party interested under It, was not 
 barred from re-propounding it; and said: 
 "It must be remembered that there has still 
 been no sentence, either for or against the 
 validity of either will; and, although in or- 
 dinary cases, when the parties, being pres- 
 ent, declare that they proceed no fm-ther, or 
 duly authorize a practitioner to take that 
 step for them, the court, as far as it legally 
 can, will hold them bound; yet it would be 
 unjust and inequitable not to make great al- 
 lowance in this respect for a case circum- 
 stanced as the present is." Trower v. Cox, 1 
 Addams, Ecc. 219. And in Hayle v. Hasted, 
 1 Curt. Ecc. 240, Sir Herbert Jenner stated 
 the rule to be that parties, whose interests 
 were affected by a will previously proved in 
 solemn form, might Call in the probate and 
 require the will to be re-propounded, upon 
 showing "that there has been fraud or collu- 
 sion practised to their prejudice, or that 
 there has been neglect or mismanagement in 
 the conduct of the suit." 
 
 In WUkinson v. Robinson, 14 Jur. 72, the 
 same judge decreed probate of a later will, 
 notwithstanding an earlier will had already 
 been admitted to probate and the executrix 
 named therein was out of the jurisdiction 
 and could not be cited. All the text books 
 most relied on as guides in matters of prac- 
 tice of this land state that probate of a will, 
 either in common or solemn form, may be 
 revoked on evidence of fraud in the proof, 
 or of a later will. Went. Off. Ex'rs, 48; ToU. 
 Ex'rs, 73, 74; 1 Williams, Ex'rs, 399, 508. 
 
 In the analogous case of letters of admin- 
 Isti-ation, it is now well settled in England, 
 and in many of the United States, that they 
 may be revoked for sufficient cause by the 
 ■court which granted them. 1 Williams, 
 Ex'rs, 509-512, 521, 524, and notes. The 
 English court of common pleas recently re- 
 fused to stay an action at law by an admin- 
 istrator appointed by the ecclesiastical court, 
 ■on affidavits that the deceased had left a will 
 
 appointing an executor; ilr. Justice Wil- 
 Uams saying: "Where letters of administra- 
 tion have been improperly obtained or im- 
 providently granted, tlie proper and only 
 course is, to go to the ecclesiastical court to 
 get them revoked." Prosser v. Wagner, 1 
 C. B. (N. S.) 295. 
 
 Beside the opportunity of obtaining revo- 
 cation of a decree of the ecclesiastical court 
 in certain cases, the law of England gave a 
 right of appeal in every case; and after a 
 decision in the highest com-t, the king in the 
 discretionai-y exercise of his prerogative, 
 upon the advice of the chancellor, might 
 grant a commission of review. 1 Williams 
 Ex'rs, 498 et seq.; Matthews v. Warner, 4 
 Ves. 186-211, and note, s. c. 5 Ves. 23. But 
 the present existence here of such a discre- 
 tionary power, either in the executive or tlie 
 legislature, (though not unlike that of grant- 
 ing new trials and reviews in actions at law, 
 which was freely exercised by the general 
 court of the province, when unrestrained by 
 any written constitution,) is irreconcilable 
 with the separation of the executive, legis- 
 lative and judicial departments by the con- 
 stitution of the commonwealth. Merrill v. 
 Sherburne, 1 N. H. 199; Lewis v. Webb, 3 
 Me. 326; Holden v. James, 11 Mass. 396; 
 Denny v. Mattoon, 2 Allen, 378, 379, and 
 other cases there cited. 
 
 The records of the governor and council, 
 sitting in a judicial capacity as the supreme 
 court of probate of the province, throw much 
 light upon the practical construction of the 
 extent- of the power of revocation Incidental 
 to the probate jurisdiction, and show that 
 such a power was frequently exercised in 
 cases of fraud or mistake, whether in every 
 instance wisely we need not inquire. A few 
 examples, out of many which might be se- 
 lected, will afford sufficient evidence that the 
 power was adopted, used and approved In 
 the province, and usually practised on in the 
 courts of law, and therefore continued to ex- 
 ist after the adoption of the constitution, un- 
 less modified or taken away by the legisla- 
 ture. Const. Mass. c. 6, art. 6. 
 
 In 1705, upon a hearing before the govern- 
 or and council of "a challenge made" on 
 behalf of Anthony Penn to an Instrument 
 which had been admitted to probate in the 
 county court of Suffolk in 1688-89 as the 
 will of his uncle, William Penn, of Brain- 
 tree, the question was put "whether there do 
 appear in the law a forgery or perjury to 
 void the will," and resolved in the negative. 
 But upon a new petition in 1716 by the same 
 nephew and by a niece of the testator, alleg- 
 ing that after the probate it was declared by 
 one of the subscribing witnesses to the will 
 that it was forged and contrived after the 
 testator's decease by the person who pre- 
 sented It for probate, the governor and coun- 
 cil, after notice and hearing, made a final de- 
 cree declaring the will null and void. Coun- 
 cil Kec. 1705, fol. 170; 1716, fols. 465, 460, 
 477. 
 
 493 
 
C.-ise No. 171 
 
 WATERS i). STICK NEY. 
 
 (§§ 95, 127- 
 
 In 1725 Judge Samuel Sevvall, (then chief 
 justice of the province,) as judge of probate 
 in SufCollj, revoked letters of administration 
 which he had previously granted on the es- 
 tate of Benjamin Bates to his son of the 
 same name, and granted letters of adminis- 
 tration de bonis non to Stephen Boutineau. 
 In "an action of tresi)ass and ejectment" 
 brought by Boutineau to recover land of his 
 intestate, the defendants claimed title imder 
 a sale by the first administrator by license 
 of court; the jury upon a trial in the supe- 
 rior court of judicature returned a special 
 verdict that "if the judge of probate had 
 power to revoke the former letters of admin- 
 istration granted to Benjamin Bates, and to 
 grant letters of administration de bonis non, 
 &c. to the plaintiff," then they found for the 
 lilaintifC, otherwise for the defendant; and 
 the court gave judgment for the defendant. 
 Boutineau then presented a petition to the 
 governor and council, representing that by 
 that judgment his administration was disal- 
 lowed and the power of the judge of probate 
 to revoke tlie former letters of administra- 
 tion and grant new ones in effect denied; 
 and praying that his letters of administra- 
 tion might be confirmed or he be otherwise 
 relieved; upon which the governor and coun- 
 cil, after notice and hearing, resolved that 
 the letters granted to him were "good, valid 
 and effectual in the law." He then applied 
 to the general court for a review of his ac- 
 tion at law, which after notice and hearing 
 was granted; and another trial was had in 
 the superior court of judicature, resulting in 
 a verdict for him, upon which judgment was 
 rendered. Boutineau v. Billings, Mass. Rec. 
 1726, fols. 71, 72; Council Rec. 1725-26, fols. 
 348, 349, 355; 13 General Court Rec. 145, 184. 
 
 In 1757 a division of the estate of Phine- 
 has Adams among his heirs by commission- 
 ers appointed by Judge Hutchinson as judge 
 of probate was returned to the probate court 
 of Suffolk county; but the fees thereon not 
 being paid, the usual form of acceptance 
 was not written upon it by the register, nor 
 signed by the judge, nor the return recorded, 
 but it was filed with other papers, and for- 
 gotten. The parties, supposing the return 
 to be accepted in form, entered upon, im- 
 proved, and made convej'auces of the parts 
 respectively assigned to them. In 1762 Judge 
 Hutchinson (who was then also lieutenant 
 governor and chief justice of the province, 
 as well as judge of probate for Suffolk,) dis- 
 covered the mistake, and after notice and 
 hearing entered and signed an acceptance of 
 the retiu-n nunc pro tunc, and submitted the 
 question of the validity of this acceptance, 
 with other questions in the case, to the su- 
 preme court of probate, who do not appear 
 by the record to have directly affirmed it, (as 
 they did the return upon the main question 
 submitted to them,) but certainly did not dis- 
 approve it, for the records of the inferior 
 court of probate show that the estate was 
 afterwards settled there according to this 
 494 
 
 division. Supr. Prob. Rec. 1762, fols. 22-24;. 
 Suffolk Prob. Rec. 1763, lib. 61, fols. 199, 200;. 
 1764, lib. 63, fol. 67. 
 
 In a subsequent case, both of the executors 
 named in the will of William Brown, Jr., 
 died after accepting the trust, the survivor- 
 having appointed Joseph Sherbiu-ne his ex- 
 ecutor. Yet the judge of probate in Essex 
 appointed John Brown, administrator de bonis 
 non with the wiU annexed of William. Sher- 
 burne appealed to the supreme coui-t of pro- 
 bate, who in 1766, after argument by coun- 
 sel, and against the opinion, though with 
 the final concurrence, of Governor Bernard, 
 (who had himself been a deputy registrar of 
 one of the ecclesiastical courts in England,) 
 decreed that the administration be granted 
 to Sherbm-ne, and that upon his giving 
 bond to the supreme court of probate for the 
 performance of his trust, and taking out let- 
 ters of administi'ation, the decree of the- 
 judge of probate be reversed and the letters 
 granted by him revoked. Sherbm-ne, by 
 writing filed in the supreme court of pro- 
 bate, declared himself ready to give such 
 a bond, but apparently never gave one. Up- 
 on a new petition filed by Sherburne in 1771,. 
 after Judge Hutchinson had become gov- 
 ernor, the supreme court of probate, after 
 notice to John Brown, ordered its own de- 
 cree to be set aside, and the decree of the 
 judge of probate reversed unconditionally ;- 
 upon the ground that the petitioner as ex- 
 ecutor of the surviving executor was by law 
 executor of the first testator. Supr. Prob. Rec. 
 1766-71, fols. 46-48, 80, 81, and papers on 
 file. That rule of the common law was abol- 
 ished here after the Revolution. St. 1783, c. 
 24, § 19; Rev. St. c. 63, § 10; Gen. St. c. 93., 
 § 9. 
 
 The authority of the probate com't to re- 
 voke Its own decrees is expressly recognized 
 and declared by the statutes of the common- 
 wealth in some cases. By St. 1817, c. 190. 
 re-enacted in the Rev. St. c. 64, § 16, and 
 Gen. St. c. 94, § 5, if after the grant of let- 
 ters of administration as of an intestate es- 
 tate, a will is duly proved and allowed, the 
 first administration shall be revoked. This 
 accords with the practice of the ecclesiasti- 
 cal courts in England, both before and since 
 our Revolution. Carolus v. Lynch, 1 Lee,. 
 Ecc. 13; Baker v. Russell, Id. 167; Pros- 
 ser V. Wagner, 1 C. B. (N. S.) 295. By 
 the Rev. St. c. 83, § 31, re-enacted in the 
 Gen. St. c. 117, § 24, any warrant or com- 
 mission for the appraisement of an estate^ 
 for examining the claims on an insolvent 
 estate, for the partition of real estate, or 
 for the assignment of dower, may be re- 
 voked by the judge of probate for any 
 sufficient cause. This section was proposed 
 by the commissioners on the Revised Stat- 
 utes, as they state in their report, "only to 
 prevent doubt, as it is supposed that the- 
 judge of probate already possesses the power 
 here granted." Note of commissioners to Rev. 
 St. c. 83, § 29. And the existence of such a. 
 
95, 127) 
 
 WATERS V. STICKNEY. 
 
 Case No. 171 
 
 power was recognized by the supreme court 
 of the United States in Thompson v. Tolmie 
 2 Pet. 163. 
 
 In Clark v. Wright, 3 Pick. 67, in which a 
 will alone had been admitted to probate in 
 the court below, from which a codicil had 
 been fraudulently torn off. Chief Justice 
 Parker said: "The com-t have no doubt that 
 the codicil may and ought to be proved. 
 It will be for the party claiming under it 
 to consider whether he will make application 
 here, or before the judge of probate, to 
 have it allowed." As that case arose on 
 appeal from the original probate, the codicil 
 was allowed upon petition to this court In 
 the same cause, so that it became unnec- 
 essary to consider the extent of the power 
 of the probate court upon a new applica- 
 tion. The final deci-ee indeed affirmed tlic 
 decree below which had admitted the will 
 to probate, and then proceeded to declare 
 the codicil also proved, (3 Pick. 69, note;) 
 but probate decrees usually allow a will and 
 codicil as distinct instruments, and the fact 
 of their being such may affect their con- 
 struction. See Weddall v. Nixon, 17 Beav. 
 166; Goods of Greig, L. R. 1 Prob. & Div. 
 72; BaiUie v. Butterfleld, 1 Cox, Ch. 392. 
 In Newman v. Jenkins, 10 Pick. 516, this 
 com-t said: "So long as the letters of ad- 
 ministration stand unrecalled, they are evi- 
 dence of the death." In Emery v. Hildreth, 2 
 Gray, 231, 232, Mr. Justice Thomas said that 
 the validity of a decree of the probate court, 
 appointing an administrator, if objected to 
 by one of the parties entitled to administra- 
 tion, on the ground that he had no notice, 
 "could be tried only in the probate court, 
 or in this court sitting as the supreme court 
 of probate." 
 
 In Stetson v. Bass, 9 Pick. 30, Mr. Jus- 
 tice Wilde, delivering the opinion of the 
 com-t, said: "We think there can be no 
 doubt of the right and authority of a judge 
 of probate to open an account settled, for 
 the purpose of correcting a manifest mis- 
 take. In the proceedings of all courts errors 
 and mistakes will occur, and frequently 
 without the fault of either party, and justice 
 requires that some method should be, provided 
 for the correction of such errors and mis- 
 takes, in whatever court they may occur. 
 In courts of common law jurisdiction the 
 remedy is by writ of error, motion for new 
 trial, or application for a writ of review; 
 but these remedies are not applicable to the 
 proceedings of a court of probate. In that 
 court, when a mistake is made in the settle- 
 ment of an account, the course is to apply 
 to the judge of probate for the correction 
 of the mistake, by petition, or to state the 
 amount claimed in a new account; unless 
 when the mistake is discovered the party has 
 a right of appeal, by which it may be cor- 
 rected in this court. This practice seems 
 to be well settled, and in several cases has 
 received the sanction of this court. It is 
 indeed essentially necessary for the fm-ther- 
 
 ance of justice, and ought not to be too 
 sti-ictly limited." The authority of com-ts of 
 probate to correct errors in their decrees on 
 administration accounts, even when in terms 
 final, upon clear proof of fraud or mistake 
 in a point not once actually presented and 
 passed upon, has been repeatedly sustained 
 by this court and by the highest courts of 
 Vermont and New York, and is now affirmed 
 in this state by statute. Field v. Hitchcock, 
 14 Pick. 405; Boynton v. Dyer, 18 Pick. 5*; 
 Adams v. Adams, 21 Vt. 166, 167, and cases 
 cited; Pew v. Hastings, 1 Barb. Ch. 452 r 
 Sipperly v. Baucus, 21 N. Y. 46; Rev. St 
 c. 67, § 10; Gen. St. c. 98, § 12. A court of 
 probate has no more power by a decree es- 
 tablishing one testamentary instrument ta 
 preclude the subsequent probate of a later 
 one never before brought to its notice, than 
 by a decree approving one account to dis- 
 charge an administrator from responsibility 
 for assets not actually accoimted for. 
 
 In none of the judgments of this com-t, to- 
 which the appellant has referred, was it nec- 
 essary to pass upon the power of the com-t 
 of probate to revoke or correct its own de- 
 crees. 
 
 The decision and opinion in Peters v. Pe- 
 ters, 8 Gush. 529, were limited to the question 
 of the appellate powers of this court, either 
 as a court of probate, or as a court of com- 
 mon law, in probate matters. In the very 
 passage cited for the appellant, Chief Justice 
 Shaw limited his statement accordingly, say- 
 ing: "We believe that when the legislatm-e 
 vested this jm-isdiction in judges of probate, 
 and created a supreme court of probate with 
 a full appellate jm-isdiction, allowing an ap- 
 peal within a short limited time, with a 
 power in this com-t to enlarge that time in 
 case of accident or mistake, they did all they 
 intended to do, in providing for the revision 
 of decrees in probate matters by appeal." 
 8 Cush. 542, 543. The chief justice had al- 
 ready said at the outset of his elaborate dis- 
 cussion of that question: "It may be proper 
 to premise that the peculiar and appropriate 
 jurisdiction of the probate courts in this com- 
 monwealth, embracing the probate of wills, 
 granting administrations, and their incidents,, 
 is precisely that which was and still is ex- 
 ercised by the ecclesiastical com-ts of Great 
 Britain." 8 Cush. 536. 
 
 In Dublin v. Chadbom-n, 16 Mass. 433, the 
 only point decided was that the decree of 
 a probate court upon the probate of a will 
 was conclusive in an action at law. The case 
 of Crippen v. Dexter, 13 Gray, 330, involved 
 only the conclusiveness of the decree of a 
 probate covirt of another state upon the va- 
 lidity of a will, on a subsequent application 
 to prove the will in this state; and the men- 
 tion of the importance of making proof of 
 a will, once for all, and for all purposes, in- 
 asmuch as it determines the condition of a 
 deceased person's estate, and whether it must 
 be settled as an estate testate or intestate— 
 though showing strong gi-ound for holding 
 
 495 
 
•Case No. 171 
 
 WATERS V. STICKNEY. 
 
 (§§ 95, 127 
 
 the probate of a will in one court to be con- 
 clusive upon all property, real as weU as 
 personal, everywhere — cannot be held to im- 
 ply that errors in that probate, arising out 
 of mistake or fraud, are beyond all remedy 
 in the same court. There is no reason why 
 the probate of a will which does not express 
 the last intentions of the testator should 
 toe held irrevocable, more than letters of 
 iidministration issued upon the supposition 
 tliat the deceased died intestate; and it has 
 tteen directly adjudged by this court that a 
 ^vill may be proved even thirty years after 
 tlie death of the testator, although original 
 administration could not by statute be grant- 
 ed after twenty years. Bourne v. Greenleaf, 
 Essex, 1S02; s. c. cited 1 Pick. 117, note; 3 
 Dane Abr. 452; Sluimway v. Holbrook, 1 
 Pick. 117; Marcy v. Jlarcy, 6 Jletc. (Mass.) 
 370; St. 1783. c. 36, § 10; Rev. St. c. 64, § 13. 
 
 The cases of White v. Clapp, 8 Mete. 
 (Mass.) 3G.'i. and Jenks v. Rowland, 3 Gray, 
 536, touched only the point that decrees 
 of the probate coiu't in the partition of real 
 estate, of which it had jurisdiction by stat- 
 ute, but in which it had exceeded its pow- 
 ers, might be treated as void, and no bar 
 to a writ of enti-y or a new petition for par- 
 tition. In Joehumsen v. Bank, 3 Allen, 87, 
 -the grant of administration on the estate of 
 Si living person was held to be beyond the 
 Jurisdiction of the probate court, and not 
 binding on him in an action at law, as was 
 tully demonstrated on principle and author- 
 ity; and the statement on page 95, that the 
 only opportimity for revising or modifying 
 a decree of the court of probate was by ap- 
 peal within thirty days, or petition to this 
 -court for leave to appeal within one year, 
 w^as not necessary to the decision. 
 
 The dictum of Chief .Justice JIarshall in 
 -Griffith V. Frazier, 8 Cranch, 25, that "let- 
 ters testamentary, when once granted, are 
 mot revocable by the ordinary," must be ap- 
 plied to the case before him, in wliich the 
 only ground alleged for the appointment by 
 the ordinary in South Carolina of an ad- 
 ministrator de bonis non was the executor's 
 absence from the state, which had been held 
 t)y the highest court of that state to be no 
 sufficient ground for revoking the letters tes- 
 tamentary; and if understood as laying down 
 a, universal rule, is inconsistent with subse- 
 quent judgments of the supreme court of the 
 United States, recognizing the power of a 
 ■court of probate to revolce the probate of 
 a will, or admit a later will to probate, whicli 
 toy reason of fraud or otherwise had not toeen 
 torought to its knowledge at the time of ap- 
 proving the earlier will. Gaines v. Chew, 
 2 How. 641, 646; Gaines v. Hennen, 24 How. 
 567. 
 
 The authority of courts of probate in this 
 respect has been fuUy sustained in the courts 
 of many states. In Bowen v. Johnson, 5 R. 
 I. 119, 120, the supreme court of Rhode Is- 
 land held that the power to ■ revoke a pro- 
 bate once granted, although nowhere ex- 
 496 
 
 pressly recognized in the statutes of that 
 state, was a just and necessary powor to 
 be implied from the statute conferring gen- 
 eral authority to "take the probate of wills 
 and grant administration on the estates of 
 deceased persons," and might be exerci.sed 
 incidentally to an application for the probate 
 of a later will. In Muir v. Orphan House, 
 3 Barb. Ch. 481, Chancellor Walworth, ex- 
 ercising an appellate probate jurisdiction, 
 said: "The probate of a will of personal 
 property, wliether such probate was ob- 
 tainod by a summary or a plenary proceed- 
 ing, if granted by the proper testamentary 
 court, is conclusive evidence of the due exe- 
 cution of such will, until such probate has 
 been called in or annulled by such court, or 
 has toeen reversed on appeal to the proper 
 tribunal,"— thus recognizing the power of 
 tlie surrogate to call in or annul the probate, 
 notwithstanding that by the statutes of that 
 state (as by om- own) every will wasi proved 
 in solemn form, after citation to aU parties 
 interested; and that the next of kin, if they 
 had not appeared and contested the will 
 upon the probate thereof, might come in 
 and do so within one year. The decree of 
 the judge of probate in the case before us 
 is vei-y like one passed by Mr. Surrogate 
 Bradford in the corresponding com-t for the 
 county of New York, in Campbell v. Logan, 2 
 Bradf. Sur. 90, allowing a codicil to be pre- 
 sented for probate, after the will had been es- 
 tablished and allowed on a previous day, and 
 upon due proof, to be admitted to probate 
 as together with the will constituting the 
 last will and testament of tlie deceased. 
 The courts of appeals of Maryland and Vir- 
 ginia have held that, notwithstanding any 
 lapse of time after the probate of a will, 
 a later will of the same testator might be 
 admitted to probate by the court which 
 granted the first probate. Clagett v. Haw- 
 kins, 11 Md. 381; Schultz v. Schultz, 10 Grat. 
 358. The supreme court of North Carolina 
 has held that letters testamentary issued 
 to two executors named in a will, one of 
 whom was made sole executor toy a codicil, 
 might be revoked as to the other by the 
 county court of probate of its own ir.otion 
 at a subsequent term. County Court v. Bis- 
 sell, 2 Jones. (N. C.) 389. And in New Jer- 
 sey and Alabama it has been held that a 
 probate granted without notice might be 
 vacated by the court on the application of 
 a party entitled to notice. In re Lawrence's 
 Will, 7 N. J. Eq. 215; Roy v. Segrist, 19 Ala. 
 810. 
 
 In the face of these authorities it is impos- 
 sible to deny the power of a court of probate 
 to approve a subsequent will or codicil, after 
 admitting to probate an earlier will by a 
 decree the time of appealing from which is 
 past; or to correct errors arising out of fraud 
 or mistake in its own decrees. This power 
 docs not make the decree of a court of pro- 
 bate less conclusive in any ither court, or 
 in any way impair the probate jurisdiction; 
 
§§ 95. 127) 
 
 WATERS V. STICKNEY. 
 
 Case No. 171 
 
 but renders that jurisdiction more complete 
 and effectual, and by enabling a court of 
 probate to correct mistakes and supply de- 
 fects in its own decrees, better entitles them 
 to be deemed conclusive upon other courts. 
 There is no reason to apprehend that such a 
 power may be unjustly exercised. It is 
 vested in the same court which is intrusted 
 with the original jurisdiction over all pro- 
 bates and administrations. No decree ad- 
 mitting a later instrument to probate, or 
 modifying or revoking a probate already 
 gi-anted, can be made without notice to all 
 pai-ties interested; every party aggrieved by 
 the action of the probate com-t has the right 
 of appeal to this court; and an application 
 of this nature, when one will has ah-eady 
 been proved, would never be granted except 
 upon the clearest evidence. The new decree 
 would not necessarily avoid payments made 
 or acts done under the old decree while it 
 remained unrevoked. Allen v. Dundas, 3 
 Term R. 125; Appeal of Peebles, 15 Serg. & 
 R.39; Kittredgev.Folsom,8N.H.98; Stonev. 
 Peasley, 28 Vt.720; lWilliams,Ex'rs,520,522. 
 
 The report now before us presents no ques- 
 tion upon the extent of the operation of such 
 a new decree passed after the estate has 
 been conveyed or improved; and shows a 
 proper case for the exercise of the power. 
 
 The will and codicil were both executed 
 and atte.sted according to law. No fraud is 
 shown in either party. Nor can it be said 
 that either has been guilty of such want of 
 diligence as should forfeit any rights which 
 that party has or represents. The executor 
 may well have been misled by the letters 
 testamentary issued to him under the seal 
 of the probate court, annexed to which was 
 a copy of the codicil as well as of the will; 
 and tmtil the death of the widow and ten- 
 ant for life there was no difference between 
 the will and the codicil in the disposition 
 of the estate. On the other hand, the de- 
 scendants entitled in remainder under the 
 wUl would naturally rely upon the record 
 of the probate court, on which the codicil 
 did not appear. That record (as well as the 
 facts proved at the hearing, which would 
 hardly be admissible if they contradicted it,) 
 shows that the codicil was not brought to 
 the notice of the judge of probate when he 
 approved the will. The mistake may have 
 been occasioned by inattention or oversight 
 of the counsel or the testifying witness, or 
 possibly of the judge; but the delay in dis- 
 covering it is fairly attributable to the care- 
 lessness of the register in annexing a copy 
 of the unproved codicil to the letters testa- 
 mentary. 
 
 ABB. WILLS — 32 
 
 This mistake cann^'^ be corrected by any 
 proceeding at comiuun law or in equity. 
 The time for appealing from the first de- 
 cree, approving the will, is long since past. 
 This court has no original probate jiuisdic- 
 tion, and in the exercise of its appellate 
 jurisdiction from the probate court can only 
 make such decrees as that court should have 
 made. Gen. St. c. 117, §§ 7, 8, 16; Grinnell 
 V. Baxter, 17 Pick. 383. Unless therefore the 
 last decree of the judge of probate, approv- 
 ing the codicil, can be sustained, the parties 
 claiming under the codicil are without rem- 
 edy. 
 
 If the codicil had been on a separate paper, 
 not known to the parties at the time of the 
 probate of the will, but now recently dis- 
 covered, there could be no doubt of the pow- 
 er and the duty of the probate court to ad- 
 mit it to probate. The fact that it Is on the 
 same paper does not change the reason of 
 the thing, as it has never in fact been passed 
 upon by the judge of probate. 
 
 The lapse of time since the death of the 
 testator and the probate of the will should 
 lead the court closely to scrutinize the evi- 
 dence offered, but is no positive bar. If no 
 will had yet been proved, the lapse of time 
 would not prevent both will and codicil from 
 being proved now. The fact that a wiU has 
 been already proved afCords no reason for 
 imposing stricter limitations upon the proof 
 of a codicil, whether the omission to prove it 
 sooner has been occasioned by ignorance of 
 its existence, by fravidulent suppression of it, 
 or by an Innocent but mistaken belief that 
 it has been already proved. It would be 
 peculiarly vmjust to make any difCerence in 
 this case on account of the former probate 
 of the will, inasmuch as that will gave the 
 testator's children after the death of his 
 widow the same interest in the land which 
 they would have had if he had died intestate, 
 and they would therefore, according to a 
 familiar rule of law, take the estate as his 
 heirs and not by virtue of the will. Ellis v. 
 Page, 7 Gush. 161; Sedgwick v. Minot, 6 
 AUen, 171. 
 
 We are therefore satisfied that the decree 
 of the judge of probate, now appealed from. 
 Is correct in principle, and according to prec- 
 edent. But as the case involves an Im- 
 portant question of law, upon which the 
 appellant might reasonably desire the opin- 
 ion of this court as the supreme court of pro- 
 bate, the common rule in probate causes 
 must be followed, and no costs allowed to 
 either party. Osgood v. Breed, 12 Mass. 536; 
 Woodbury v. Obear, 7 Gray, 472. 
 
 Decree affirmed. 
 
 497 
 
Case No. 172 
 
 YOUNGE V. SKELTON. 
 
 (§§ 129. 131i 
 
 YOUNGE y. SKELTON. 
 
 (3 Hagg. Ecc. 780.) 
 
 Prerogative Court of Canterbury. Michaelmas 
 Term, 1831. 
 
 Mr. Addams, for Miss Younge. Lushington 
 & Dodson, contra. 
 
 SIR JOHN NICHOLL. This is a case of 
 considerable importance in respect to the 
 practice of the court and the interest and 
 convenience of suitors. If from the rare oc- 
 currence of such cases, more especially in 
 modern times, some difficulty should have 
 arisen and some errors and irregularities 
 have talien place, no blame attaches to any 
 party, though it is most desirable that a cor- 
 rect mode of proceeding should be estab- 
 lished as a precedent for future cases. 
 
 The present is a suit for an inventory and 
 account and to make distribution, brought 
 by a party in distribution against an admin- 
 istrator. In such a case, the form of pro- 
 ceeding (when rightly understood) is plain 
 and simple, and might afford a very con- 
 venient and expeditious mode of attaining 
 justice; but if errors and difficulties are in- 
 terposed, parties may be induced or driven 
 to resort to other jurisdictions. 
 
 The statute of distributions (22 & 23 Car. 
 II. c. 10,) vrhieh is the only authority under 
 which the court now acts, provides in the 
 first three sections, that ordinaries who have 
 power to grant administrations shall take 
 bond with two or more able sureties; it then 
 sets forth the form and condition of such 
 bond, see, also, 4 Burn, Ecc. Law, 286, and 
 enacts that ordinaries shall have power to 
 call administrators to account, and to make 
 distribution of the residue among the parties 
 entitled. Under the provisions contained in 
 these sections, the administrator is to perform 
 and to give bond with sureties for perform- 
 ing the following matters: 
 
 1st. To exhibit a tnie and perfect inven- 
 tory. 
 
 2d. To administer the effects, that is, to col- 
 lect the assets and pay the demands and ex- 
 penses. 
 
 3d. To exhibit the account of his adminis- 
 tration. 
 
 4th. To pay the balance, found remaining 
 after the accounts have been examined and 
 allowed by the court, to such persons as the 
 court shall assign as entitled in distribution. 
 
 5th. To deliver up the administration if a 
 will shall appear. 
 
 These are the five conditions under which 
 the bond is given, and on the performance 
 of which the bond is satisfied. 
 
 The statute furtlier enacts in s. 8, that no 
 distribution shall be ordered tiU after the ex- 
 piration of twelve months from the intes- 
 tate's death. This provision is for the piu-- 
 pose of affording an opportunity to creditors 
 to recover their debts, and to the administra- 
 tor to collect the property and to discharge 
 all claims thereon. The mode of proceeding 
 498 
 
 under this statute is obvious and plain, if 
 the statute itself and the terms of the bond 
 are duly attended to. The mode of calling 
 for an Inventory and account is so much a 
 matter of every day's practice that It need 
 not be particularly described. It may be 
 proper, however, to consider what is to be- 
 done if they are called for by a party in dis- 
 tribution who means to proceed to enforce 
 distribution. Objections may be taken tO' 
 the inventory and to the account. In that 
 case the objections must be stated in an al- 
 legation, and proof be given thereof; or the 
 party may proceed by petition and affidavit, 
 tiU the court decides that the Inventory and 
 accotmt are sufficient and allows them: but- 
 if the inventory and account are not objected 
 to, the administrator prays they may be aa- 
 mitted and allowed, which prayer the court 
 accordingly grants. 
 
 The inventory and account, then, not beins 
 objected to, or after objection being allowed,, 
 what is the next step? To refer them to tho 
 registrar to examine and report what is the 
 residue or balance remaining to be distrib- 
 uted according to the statute, and to allot 
 portions; that is, to report what is the share 
 of each person in distribution, previously de- 
 ducting all necessaiy costs and expenses 
 which ought to be first paid. 
 
 The registrar's report is of com-se open to 
 objection, but when confirmed by the court 
 the next step is to assign the administrator 
 to pay to each person, reported to be enti- 
 tled, the share which has thus been limited 
 and appointed, and to enforce that payment 
 by the compulsory process of the court, un- 
 less siffiicient cause be shown against enfor- 
 cing its order. The administrator and his 
 sureties ought to obey that order, but their 
 bond cannot be put in force against the sm-e- 
 ties in this jurisdiction. 
 
 This, I apprehend would be the regular 
 course of proceeding and its several stages 
 in any ordinary case: it seems quite plain 
 and obvious; and, as far as I have been able 
 to ascertain from considering the statute and 
 from looking through the cases, it was tlie 
 old mode. Special circumstances may how- 
 ever arise in each of these stages. The in- 
 ventory may be objected to— that property 
 had not been entered; the account may be- 
 bbjected to— that payments have been made 
 or debts entered which are not properly to 
 be charged against the estate. The right of 
 the party as being in distribution may be- 
 deuied. The registrar's report may be ob- 
 jected to; the liability of the administrator 
 may be denied: but whatever circumstance- 
 of that kind may occm-, the objection should 
 be taken at the proper stage. Injury may 
 be done to the other party by interposing the- 
 objection prematurely, or the party may de- 
 feat himself by irregularity; and it is al- 
 ways the duty of the court, in case the mat- 
 ter falls under its notice, to prevent irregu- 
 larity for the sake of other suitors. 
 
 It may not, however, be improper now ta 
 
§§ 129, 131) 
 
 YOUNGE V. SKELTON. 
 
 Case Xo. 172 
 
 observe, that there is one part of the prayer 
 with which the covirt wiU hesitate to comply, 
 unless some decisive authority can be shown 
 requiring the court to proceed that length; 
 I mean the prayer to pronounce tlie bond for- 
 feited: by authority, is to be understood ei- 
 ther a decision upon the point upon argu- 
 ment, or a series of instances showing that 
 Such is the established practice. The bond 
 cannot be put la suit, nor the payment of it 
 
 enforced in this court, but It must be sued at 
 law: it only therefore seems necessary for 
 this court, in aid of justice, to order the bond 
 to be attended with. The plaintiff would 
 then have the same benefit as if the bond 
 were here pronounced forfeited, for it apper- 
 tains to the court in which the bond is sued 
 to decide ultimately whether it is or is not 
 forfeited, or in other words, whether any 
 breach has taken place. 
 
 49!) 
 
Case Ko. 173 
 
 AMES V. AEM8TE0NG. 
 
 (§ 129 
 
 AMES v. ARMSTRONG et al. 
 
 (106 Mass. 15.) 
 
 Supreme Judicial Court of Massachusetts. 
 SufCollf. Nov., 1870. 
 
 Action by Isaac Ames, judge of the pro- 
 bate court, on behalf of the devisees and leg- 
 atees under the will of Daniel Pitman, 
 against David Armstrong and John Turner, 
 executors on their bond, which provided that 
 th&y should— "First, make and return to the 
 probate court for said county of SufCoUi, 
 within three months from their appointment, 
 a true inventory of all the real estate and all 
 tlie goods, chattels, rights and credits of said 
 testator which are by law to be administer- 
 ed, and which shall have come to their pos- 
 session or knowledge; second, administer ac- 
 cording to law and the wiU of said testator 
 all his goods, chattels, rights and credits, and 
 the proceeds of all his real estate that may be 
 sold for the payment of his debts or legacies, 
 which shall come to the possession of said 
 •executors, or of any other person for them; 
 and, third, render upon oath a just and true 
 ■account of their administration within one 
 jear, and at any other times when required 
 toy said court." The will provided that the 
 judge of probate should not require any sure- 
 ties of the executors. Turner alone appeared 
 and defended, and alleged that Armstrong 
 had fraudulently taken a large part of the 
 securities included In the inventory filed, 
 and had absconded, and the question was 
 reserved for the full bench. 
 
 N. Morse and C. Wlieeler, for plaintiff. 
 S. B. Ives, Jr., and H. M. Rogers, for Tur- 
 ner. 
 
 AMES, J. Coexecutors, even tliough nu- 
 mer6us, are regarded in law as but one per- 
 son. The acts of one, within the scope of 
 his authority, in the administration of the 
 estate, are the acts of all, with this qualifica- 
 tion, that at common law each was responsi- 
 ble only for such assets as came to his own 
 hands. Under ordinary circumstances, one 
 of two or more executors was not to be held 
 accountable for waste or other misconduct 
 on tlie part of an associate. The misplaced 
 confidence of the testator in the integrity or 
 capacity of one of the number was not al- 
 lowed to operate to the prejudice of another. 
 But even according to the common law, 
 whenever any part of the estate, by any act 
 or agreement of one executor, passes or is 
 intrusted to the custody of a coexecutor, 
 they are thereby rendered jointly responsi- 
 ble. In such a case it would be inferred 
 tliat there had been a joint possession or 
 custody, and that one executor, having power 
 and opportunity to make it secure, had 
 yielded the control to the other. In Lang- 
 500 
 
 ford V. Gascoyne, 11 Ves. 333, Lord Eldon 
 held two executors jointly responsible for 
 assets, consisting of gold in a bag, which 
 had been delivered to one of them, and by 
 him, immediately and without counting, 
 handed to the other, by whom it was sub- 
 sequently squandered or embezzled. Gill v. 
 Attorney General, Hardr. 314; Sadler v. 
 Hobbs, 2 Brown, Ch. 114; Crosse v. Smith, 
 7 East, 246, 256; Hovey v. Blakeman, 4 Ves. 
 596; Bi-ice v. Stokes, 11 Ves. 319; MoneU v. 
 Monell, 5 Johns. Ch. 283, 296; Sterrett's Ap- 
 peal, 2 Pen. & W. 419; Edmonds v. Cren- 
 shaw, 14 Pet. 166. 
 
 Whether, upon the facts set forth in the 
 report, such a case of joint possession is 
 presented as to render Turner liable at com- 
 mon law for the fraud and embezzlement 
 committed by his associate, is a question 
 which it Is hardly necessary to decide, as 
 the whole case tm'ns upon the effect of the 
 bond given by the two. At common law no 
 bond was required of an executor, but his 
 office was considered as a, personal trust, 
 resting In the confidence of the testator in 
 the qualities which led to his selection for 
 that special duty. By the terms of the will, 
 these executors were not required to furnish 
 svueties upon the assumption of their trust. 
 They however gave a bond, according to the 
 requirements of Gen. St. c. 93, § 2. and we 
 find it impossible to avoid considering that 
 bond as binding equally on both, and making 
 each of them liable for it^ entire fulfillment, 
 at least as to all assets included in their in- 
 ventory and which have come into their joint 
 possession. It purports to be their joint and 
 several bond. It provides that they shall re- 
 turn an Inventory; that they shall adminis- 
 ter according to law and the will of the tes- 
 tator; and that they shall render an account. 
 They were not required by law to enter into 
 a joint obligation. Each might have filed 
 a separate bond, but having united in a 
 joint bond. Its effect is to make them both 
 liable to the judge of probate as the tnis- 
 tee for creditors and others Interested in 
 the estate, to the extent of the assets which 
 came to their joint possession. The author- 
 ities are clear that under such a bond, what- 
 ever may have been their common law 
 rights, they are jointly responsible during 
 the continuance of the joint executorship. 
 Brazier v. Clark, 5 Pick. 96; Newcomb v. 
 Williams, 9 Mete. (Mass.) 525; Towne v. 
 Ammidown, 20 Pick. 535; Boyd v. Boyd, 1 
 Watts, 365; Sparhawk v. Buell, 9 Vt. 41. 
 
 According to the agreement, an assessor is 
 to be appointed to determine the amount for 
 which execution is to Issue against the de- 
 fendants jointly, in compliance with this de- 
 cision. 
 
 Ordered accordingly. 
 
§ 129) 
 
 NAXZ V. OAKLEY. 
 
 Case No. 174 
 
 NAXZ V. OAKLEY. 
 
 (24 N. E. 306, 120 N. Y. 84.) 
 
 Court of Appeals of New York, Second Divi- 
 sion. April 15, 1890. 
 
 Appeal from supreme court, general 
 term, first department. 
 
 William H. Arnoux, ior appellant. David 
 Thornton, for respondent. 
 
 Haight, J. One Eliza Mundjr, as the 
 present owner of the claim in suit, joins 
 with the plaintiff in this appeal. The ac- 
 tion was brought against the defendant, 
 as surety upon an administrator's bond, 
 to recover the amount adjudged by the 
 surrogate to be due and owing by the ad- 
 ministrator, and which he was ordered to 
 pay to Cornelius W. Depew as administra- 
 tor of Rachel Depew,de<'eased. It appears 
 that one Mary Ann Schultii died in the 
 city oJ New York intestate, and that 
 Rachel Depew was her only heir at law 
 and next of kin; that, on her petition, 
 Bornt P. Winant and herself were ap- 
 pointed administrator and administratrix 
 of the estate, and the defendant and one 
 Peter Cortelyou executed the usual bond, 
 which was joint and several, as sureties. 
 It further appears that Winant alone ad- 
 ministered the estate, and that, on a final 
 accounting before the surrogate, it was 
 adjudged and decreed that there was in his 
 hands as such administrator the sum of 
 $1,930, which, with the interest, costs, and 
 disbursements of the proceedings to com- 
 pel him to account, amounted in the ag- 
 gregate to $4,017.57, which sum he was or- 
 dered to pay over to Cornelius W. Depew as 
 administrator of Rachel Depew, she having 
 died in the mean time. Winant, having 
 converted the money to his own use, failed 
 to make payment, and the decree was duly 
 docketed, execution issued and returned 
 unsatisfied; and thereupon this action 
 was brought against the defendant, the 
 sole surviving surety upon the adminis- 
 trator's bond, Depew, as such administra- 
 tor, having assigned the claim to the plain- 
 tiff. 
 
 The trial court held that the plaintiff 
 was not entitled to recover, for the reason 
 that Rachel Depew was a co-administra- 
 trix with Winant, that she was one of the 
 principals in the bond of which the defend- 
 ant was surety, and that she could not 
 maintain an action against her own sure- 
 ty for the wrongful acts of her co-princi- 
 pal. This would be so if, by executing the 
 bond, she became liable as surety for the 
 devastavit of Winant, her co-principal. 
 This question has received attention in 
 numerous reported cases in the different 
 states, in some of which it has been held 
 that one executing a bond is liable for the 
 defaultof hisco-principal. Brazerv. Clark, 
 5 Pick. 96; Towne v. Ammidown, 20 Pick. 
 535; Newton v. Newton, 53 N. H. 537; 
 Ames V.Armstrong, 106 Mass. 15; Boyd 
 V. Boyd, 1 Watts, 365; Bostick v. Elliott, 
 3 Head, 507; Babcock v. Hubbard, 2 Conn. 
 536; Oaskie v. Harrison, 76 Va. 85; Jeffries 
 v. Lawson, 39 Miss. 791 ; Braxton v. State, 
 25 Ind. 82; Moore v. State, 49 Ind. 558; 
 Eckert v. Myers, (Ohio,) 15 N. E. Rep. 862. 
 In several of these cases the question ap- 
 
 pears to have received but slight atten- 
 tion. Some have cited as authority th*' 
 case of Brazer v. Clark, supra, of which we 
 shall speak later ou, whilst others havR 
 been overruled by later decisions. In the 
 case of Boyd v. Boyd the administrators 
 filed a joint inventory, and it was held 
 that they were jointly and severally liable 
 for the whole amount of the personal 
 property described in the inventory upon 
 the joint and several bond which they had 
 given. In the case of Ames v. Armstrong, 
 it was held that the bond was binding 
 upon both of the executors as to all the 
 assets included in their inventory which 
 had come into their joint possession. In 
 the case of Brazer v. Clark, two executors 
 gave a joint and several bond with sure- 
 ties. One died, and afterwards the sur- 
 vivor committed waste, which the sureties 
 upon the bond had to pay. It was held 
 that they had no right of action for in- 
 demnity or contribution against the heirs 
 or representatives of the deceased execu- 
 tor ; and to the same effect is the case of 
 Towne v. Ammidown. It will be observed 
 that these cases have chiefly been disposed 
 of upon questions of liability outside of 
 the bond ; and in the last two cases the 
 decision was, in fact, against the right to 
 recover. The Indiana cases to which we 
 have referred have been expressly over- 
 ruled in the case of State v. Wyant,67 Ind. 
 25, in which case it was held that where 
 twii porsons, as adraini.'itrators, expcutpd 
 a smgie bona with sureties, such bond 
 must be construed as if each of the princi- 
 pal obligors therein had executed a sepa- 
 rate bond with the same sureties, subject 
 to the same conditions; and in such a case, 
 after the resignation of one of the adminis- 
 trators, the other may maintain an action 
 against him and his sureties upon the 
 bond for breaches committed by him 
 alone. In our own state but one case has 
 been found in which the question appears 
 to have been considered ; and that was 
 the case of Kirby v. Taylor, first reported 
 in 6 Johns. Ch. 242-253, wherein Chancellor 
 Kent remarks that "it was probably not 
 the intention of the bond that Thompson 
 should himself be considered as a surety 
 for his co-guardian. " The same case was 
 again reported in Hopk. Ch. 309-331, in 
 which Chancellor Sanuford considers the 
 question in an elaborate opinion, reaching 
 the conclusion that a principal in a guard- 
 ian's bond is not liable to the sureties for 
 the default of his co-principal. This qucf- 
 tion was not considered in the case of 
 Tighe V. Morrison, 116N. Y. 263, 22N. E. Rep. 
 164; and in the case of Sperb v. McCoun, 
 110 N. Y. 605, 18 N. E. Rep. 441, the ques- 
 tion was as to whether one administrator 
 could maintain an action upon the bond 
 against the sureties to recover theamount 
 of the devastavit of a co-administrator, 
 and it was held that such action could be 
 mainrained even uuiui its assumption 
 that the plaintiff individually was liable 
 to the sureties upon the bond. But it was 
 expressly stated by the court, in its opin- 
 ion, that it did not deem it important to 
 determine the relation which the plaintiff, 
 individually, as one of the principals in 
 the bond, bears to the sureties in reference 
 to the default. 
 The question in reference to the liability 
 
 501 
 
Case No. 174 
 
 NANZ V. OAKLEY. 
 
 (§ 129 
 
 of executors and administrators tor the 
 default of each other, independent of any 
 bond, is well settled by the authorities. 
 Each of several executors or administra- 
 tors has the power to reduce to possession 
 the assets, and collect all the debts due 
 the estate, and is responsible for all that 
 he receives. The payment of money or 
 delivery of assets to a co-executor or co- 
 adminislratorwill not discharge him from 
 liability; for, having received the assets 
 in his official capacity, he can discharge 
 himself only by a due administration there- 
 of in accordance with the requirements of 
 the law. Consequently, one joint execu- 
 tor or administrator is not liable for the 
 assets which come into the hands of the 
 other, nor for the laches, waste, devasta- 
 vit, or mismanagement of his co-executor 
 or co-administrator, unless he consents to 
 or joins in an act resulting in loss to the 
 estate, in which event he will become 
 liable. In other words, co-executors and 
 co-administrators may act either separate- 
 ly or in conjunction. They ai'e jointly re- 
 sponsible for joint acts, and each is sepa- 
 rated answerable for his separate acts and 
 defaults. Bruen v. Gillett, 115 N. Y. 10, 21 
 N. E. Rep. 676; Croft v. Williams, 88 N. Y. 
 .384; Ormiston v. Olcott, S4 N. Y. 389; 
 Adair v. Brimmer, 74 N. Y. 539 ; 2 AVoerner, 
 Adm'n, § 348; Brandt, Sur. § 490. 
 
 It is not claimed that any of the estate 
 cunio into the hands of Rachel Depew as 
 administratrix, or that she, as such, com- 
 mitted any act or default that would make 
 her liable for the devastavit of Winant, un- 
 less she may be liable therefor upon the 
 bond executed by her. The bond thus exe- 
 cuted was in the form required by the stat- 
 ute, conditiooed that they should faith- 
 fully execute the trust reposed in them as 
 BDtL administratrix and administrator, 
 aud that they shall obey all orders of the 
 surrogate touching the administration of 
 the estatecommittedto them. The statute 
 provides that every person appointed ad- 
 ministrator shall, before receiving letters, 
 execute a bond to the people of the state, 
 with two or more competent sureties, to 
 be approved by the surrogate, and »o be 
 jointly and severally bound. 8 Rev. St. 
 (6th Ed.) p. 82, § 5C. So that, before receiv- 
 ing letters, she was required to execute 
 the statutory bond ; ami, having been as- 
 .sociated with Winant as co-administra- 
 trix, she joined with him in executing the 
 bond, in which they each undertook to 
 faithfully execute tlie trust reposed in them 
 as administratrix and administrator. 
 What was the trust reposed in her as ad- 
 ministratrix? It was to administer upon 
 the money and assets coming into her 
 hands, and for which she became person- 
 ally liable, and for such assets as came in- 
 to their joint posNession in which thfv be- 
 came jointly liable to administer and ac- 
 count, and not to execute the trust as to 
 money and assets which came into the ex- 
 clusive control and management of her co- 
 principal, over which she had no jurisdic- 
 tion or control. They were to obey all 
 orders of the surrogate touching the ad- 
 ministration of the estate committed to 
 502 
 
 them. What orders was she to obey? 
 Those that were addressed to her, not 
 those that were addressed to her co-ad- 
 ministrator. The object of an administra- 
 tor's bond is to enforce or insure the dis- 
 chari^e of the duty reposed in the per- 
 sons appointed. It was not intended, in 
 requiring such a bond to be executed, 
 to change the liability or duties of the 
 persons appolnteil from that which ex- 
 isted under the provisiiins of the statute 
 independent of the bond. The bond was 
 not intended to vary their obligation or 
 their rights and duties as are defined by 
 law. 4"heir duties were the same after the 
 bond had been given as they would have 
 been had no bond been required or execut- 
 ed. They were, consequently, jointly lia- 
 ble for joint acts, and severally liable for 
 their own acts. Rachel Depew and Wi- 
 nant each signed the bond as principal. 
 Neither sighed it as surety. The defend- 
 ant siuifd aswiirety, aud as such she hf- 
 came liable for the joint acts of the princi- 
 pals, and for the individual defaults of 
 each. It is true they joined in executing a 
 single bond jointly with sureties. They 
 doubtless had the right to e.xecute and file 
 separate bonds ; but this was unnecessary, 
 for their act in executing the one instru- 
 ment should be construed as if they had 
 executed separate bonds. Joint adminis- 
 trators may be willing to undertake the 
 trust reposed in them when each knows 
 that he is responsible only for his own acts 
 and those in which he joins with his asso- 
 ciate, when he would not be willing to be- 
 come surety for the separate acts of his 
 colleague. The claim that joint liability 
 for the acts of each other under the bond 
 will promote diligeiice on the part of the 
 principals does not ai)pear to us to be well 
 founded. It may be true that sureties are 
 at times without power, by timely intei'- 
 vention, to prevent waste by one of sever- 
 al administrators; but such want of pow- 
 er may be equally true in reference to the 
 other joint administrators. As we have 
 seen, one may collect a debt or take into 
 his possession an asset; and, having re- 
 duced it to possession, he must be respon- 
 sible for the proper administration of it. 
 His associate cannot demand or recover it 
 from him ; and, should he see fit to ab- 
 scond or commit waste without the 
 knowleage of his associate, such associate 
 would have no other, further, or greater 
 power to prevent it than the surety. 
 
 Other questions were raised upon the ar- 
 gument in reference to the transfer of this 
 claim to the plaintiff, but none which we 
 deem it necessary here to discuss. As to 
 the appeal of Eliza Mnndy, we have not 
 tlniught it necessary t<i consiiler at thi.s 
 time. It has done no harm. No motion 
 was made to dismiss in this court. Such 
 motions have been made in the court be- 
 low, one of which is said to be still pend- 
 ing. For the reasons already stated the 
 judgment should be reversed, and a new 
 trial granted, with costs to abide the 
 event. All concur, except Follett, C. J., 
 and Vann, J., dissenting. 
 
 Judgment reversed. 
 
§ 130) 
 
 GILBERT'S ADM'R v. LITTLE'S ADM'R. 
 
 Case No. 175 
 
 GILBERT'S ADM'R v. LITTLE'S ADM'R. 
 
 (2 Ohio St. 156.) 
 
 Supreme Court of Ohio. Dee. Term, 1853. 
 
 Error to court of common pleas, Muskin- 
 gum coimty.^ 
 Assumpsit by the administrator of Charles 
 
 •0. Gilbert against the administrator of Thom- 
 as Little on a note made by Bellinap and 
 
 -Graham, payable to the order of Little, which 
 he indorsed as follows: "Pay to the order 
 of Charles C. Gilbert, and I do hereby waive 
 protest and notice of nonpayment. Sept. 
 11, 1841." Defendant pleaded that plaintiff 
 had public notice of his appointment as ad- 
 ministrator, and that this suit was not com- 
 menced within four years from the time of 
 his giving bond. Plaintiff replied that, be- 
 fore the expiration of the eighteen months 
 from the date of defendant's administrator's 
 bond, the court allowed one year's further 
 time; that the estate of Little was not set- 
 tled at the time of commencing the suit, 
 which was within four years after the ex- 
 piration of the one year allowed by the court. 
 .Tudgment for defendant, and plaintiff brings 
 
 -error. 
 
 Searle & Cox, for plaintiff in error. God- 
 dard, Convei-s & Eastmen, for defendant in 
 error. 
 
 CORWIN, C. J. Having come to a conclu- 
 sion, which disposes of the controversy on 
 the demurrer to the first replication to sec- 
 ond plea, and the issue joined on the second 
 plea and second replication, we have not 
 found it necessary to examine the important 
 question, which has been so elaborately ar- 
 gued, whether, under the waiver of notice, 
 presentment of the note was also waived. 
 
 A decision of the point made by the demur- 
 rer to the replication demands an examina- 
 tion of the following provision of law: "No 
 executor or administrator, after having given 
 notice of his appointment, as provided in the 
 81st section of this act, shall be held to an- 
 swer to the suit of any creditor of the de- 
 ceased, unless it be commenced within fom- 
 years from the time of his giving bond as 
 aforesaid; excepting in the cases hereinafter, 
 mentioned." Swan's St. (Old Ed.) 357. 
 
 The next section allows, as one of the ex- 
 ceptions, the case when assets come to the 
 administrator's hands after the four years, 
 giving the creditor one year after the actual 
 notice of their receipt, and not more than 
 
 four years after the receipt of the assets in 
 any case. 
 
 The succeeding section provides, as anoth- 
 er exception, the case when the right of ac- 
 tion accrues after the four years. But this 
 plea brings the case clearly under the opera- 
 tion of the section first cited. Does the rep- 
 lication withdraw it from its operation? If 
 not, there is nothing in the other sections to 
 sustain the plaintiff's action. 
 
 It is claimed by plaintiff's counsel, in order 
 to talve this case out of the statute: That 
 the notice given by the administrator of Lit- 
 tle was not the "notice of appointment" re- 
 quired by the statute; but we find that it is 
 the notice usually given by executors and ad- 
 ministrators in Ohio, and is a substantial 
 compliance with the statute. 
 
 It is also claimed, that the special limita- 
 tion of the statute shall not operate upon this 
 claim until the expiration of the year, which 
 was allowed to the administrator as further 
 time to settle the estate; but the true con- 
 struction of the statute, is, that after the 
 executor or administrator has given notice 
 according to the statute, "he shuil not be 
 held to answer to the suit of any creditor 
 of the deceased, unless it be commenced 
 within four years of the time of his giving 
 bond, as aforesaid." 
 
 The administrator having given the notice 
 substantially as required by the statute, and 
 the claim of the plaintiff not having been 
 presented "within four years of the time of 
 his giving bond," we are all of opinion that 
 the claim is barred by the statute. 
 
 And it cannot be claimed that the plaintiff 
 is prejudiced in this conclusion, except by 
 his own laches; for it was perfectly within 
 his power, at any time after administration 
 upon the estate existed, to present his claim 
 to the administrator, and to secure its allow- 
 ance, which would be equivalent to a judg- 
 ment, or Its disallowance, which would clear- 
 ly authorize him to commence a suit at any 
 time for the recovery of his claim, although 
 the time for the settlement of the estate had 
 not expired. 
 
 If, instead of doing so, he has chosen to 
 lay by, without the presentation of his claim 
 until after tbe expiration of four years from 
 the date of the bond of the administrator, 
 the latter having given the requisite notice, 
 his loss is the result of his own negligence, 
 and constitutes no cause of complaint against 
 the law by which it is now barred. 
 
 Judgment affirmed. 
 
 503 
 
Case Xo. 176 
 
 HACKMAN V. BLACK. 
 
 .(§ 131 
 
 HACKJIAN V. BLACK. 
 
 (2 Lee, Ecc. 251.) 
 
 Prerogative Court of Canterbury. Michaelmas 
 Term, 1755. 
 
 Jacob Hackman died intestate; caveat en- 
 tered by a creditor, wbo made oath of his 
 debt, and pi-ayed an inventory and notice of 
 the security before administration should 
 pass under seal to the v?idov7. 
 
 Judgment. 
 
 SIR GEORGE LEE. I decreed the admin- 
 istration to pass under seal to the widow, 
 
 504 
 
 she undergoing a monition to exhibit an in- 
 ventory, but refused to order her to give no- 
 tice of the security, because I was of opinion 
 a creditor had nothing to do with the admin- 
 istration bond, though Mr. Stevens, the reg- 
 istrar, said a creditor had lately a suit at 
 law upon an administration bond, and had 
 recovered against the sureties, because the 
 administrator had not exhibited an inven- 
 tory. But note, an administi'ator is bound 
 by statute 21 Hen. YIII. c. 5, to exhibit an 
 inventory, and that clause in the bond is 
 only in affirmance of the law as it stood be- 
 fore the statute of distributions. 
 
§ 131) 
 
 MYDDLETOlSr v. EUSHOUT. 
 
 Case ]S[o. 177 
 
 MYDDLETON v. RUSHOUT. 
 
 (1 Phillim. Ecc. 244.) 
 
 Prerogative Court of Canterbury. Trinity 
 Term, 1811. 
 
 A citation was taken out by tlie widow of 
 Richard Myddleton, Esq., of Chirli Castle, 
 against the executors of her husband to pro- 
 duce an inventory; the executors objected 
 to comply with the citation, on the ground 
 that the widow was not so interested as to 
 entitle her to call for an inventory, as by her 
 marriage settlement she had £500 per an- 
 num settled on trustees for her. To this it 
 was replied, that there was a covenant that 
 there should be paid at several instalments 
 money to make up £5000 stock, or in the event 
 of her surviving her husband, so much as 
 would make up the £5000 stock; that nothing 
 as yet had been paid towards making up this 
 sum, consequently, the' £5000 stock was due 
 to her, and she was entitled to an inventory. 
 Sir William Scott, for executors. Dr. 
 Xicholl, contra. 
 
 8IR W. WYNNE. This is a suit brought by 
 the widow against the surviving executor 
 of her husband for an inventory; the ex- 
 (^cutor has appeared under protest, stating 
 a settlement, and that on £2500 being grant- 
 ed to Mr. Myddleton, £500 was assigned 
 
 to trustees to be set apart annually, paying 
 interest to her; and if by this payment at 
 the death of Mr. Myddleton, it did not 
 amount to £5000 stock, his executors were 
 three months after his death to pay that 
 sum to trustees for her use. It is stated that 
 no such sum has been paid, so that £5000 
 is now due to her from the estate; this is 
 not denied, but it is contended that she Is 
 not a legal, but an equitable creditor, and 
 that therefore she is not entitled to an in- 
 ventory. 
 
 I never heard of this distinction, nor can 
 I see any reason for it; the legal interest 
 cannot be enforced In the ecclesiastical court 
 more than the equitable one. 
 
 The statute of Hen. VIII. requires all ex- 
 ecutors to give an inventory; this is not re- 
 quired of all executors in practice, and the 
 court always enquires into the interest of any 
 party requiring one; but when it sees any 
 kind of interest, it enforces that which is 
 by law generally required. 
 
 I know of only one case in which it could 
 be refused; i. e. if a creditor had brought a 
 suit in chancery for a discovery of assets 
 in such a case, the court has said that the 
 party shall not proceed in both courts; this 
 is not suggested here. I see no ground for 
 the objection, and I pronounce against the 
 protest, with costs. 
 
 505 
 
Case No. 178 
 
 KENNY V. JACKSOX. 
 
 (§ 131 
 
 KENNY V. JACKSON. 
 
 (1 Hagg. Ecc. 105.) 
 
 Prerogative Court of Canterbury, llichaolmas 
 Term, 1827. 
 
 Ann Whitehead, after bequeathing, by her 
 will and codicil, certain legacies, amongst 
 others to Barnard and Maiy Kenny, directed 
 the residue of her effects to be divided be-' 
 tween Barnard and Mary Kenny, and ap- 
 pointed the Reverend Thomas Jackson, and 
 Algernon ^^'alliugton, executors. 
 
 On the 22d of ilarch, 1822, this will and 
 codicil were proved under £16,000, in the 
 prerogative court, by Mr. Jackson, — the other 
 executor having renounced. A citation had 
 since been served, at the instance of Barnard 
 Kenny, one of the residuary legatees, upon 
 Mr. Jackson, for an inventory and accoimt; 
 who prayed to be dismissed, on exhibiting a 
 release, signed by the two Kennys, as well 
 for their legacies as for the residue. The 
 release was dated on the 11th of December, 
 1823, at which time, it was stated, Barnard 
 Kenny was a minor. The amount of the 
 residue did not appear. 
 
 506 
 
 Mr. Lushington, for the motion. Mr. Dod- 
 son, contra. 
 
 PER CURIAM. It is, I consider, a matter 
 of duty for an executor to deliver an inven- 
 tory and account, when properly called upon 
 for that purpose; and, in order to exonerate 
 himself from all liability, it is always most 
 prudent to exhibit it before a final settle- 
 ment. This court will not enter into the 
 question— how this release was obtained, nor 
 whether It is valid— It cannot judge of, nor 
 notice sudi instruments. Barnard Kenny, 
 when he executed the release, was certainly, 
 a very young man — even if he had attained 
 his majority, and having now, as one of the 
 residuary legatees, demanded an inventory 
 and account, they must be produced without 
 delay; they may, perhaps, be the means of 
 discovering an unfair settlement; while, on 
 the other hand, if the executor has been 
 vexatiously cited in this matter, he may be 
 able to obtain relief in another court; but, 
 in this court the release cannot avail him— 
 it is no bar to the present claim. 
 
 Inventory and account ordered. 
 
§ 131) 
 
 rORSYTH V. BURR. 
 
 Case No. 179 
 
 FORSYTH V. BURR. 
 (37 Barb. 540.) 
 
 Supreme Court of New York. May, 1862. 
 
 Application by James Forsyth to compel 
 JIary S. Bm-r, aaministratrix of Charles 
 BiuT, to file an inventory of his estate. The 
 administratrix answered that there was no 
 necessity for such filing, there being- no cred- 
 itors and no persons interested in the estate 
 except herself, and assets to an amount ex- 
 ceeding $50,000 over and above any debts; 
 that the inventory would be troublesome to 
 make; and that Forsyth was actuated by 
 curiosity only,— all of which averments he 
 denied. The surrogate refused the applica- 
 tion, and Forsyth appealed. 
 
 J. Forsyth, for appellant. J. W. Crane, 
 for respondent. 
 
 MILLER, J. The statute requires that ex- 
 ecutors and administrators, within a reason- 
 able time after qualifying and after giving 
 the proper notice, shall make an inventory 
 of the property of the deceased. 2 Rev. St. 
 p. 82, § 2. Upon the inventory being com- 
 pleted, a copy of It must be returned to the 
 surrogate, within three months after the 
 date of the letters issued by him. Id. p. S-t, 
 § 15. The inventory must be verified by the 
 oath of the executor or administrate ir. Id. 
 p. 84, 85, § 16. If the executor or adminis- 
 trator neglect or refuse to return such in- 
 ventory within the time required by law, 
 the surrogate is authorized to issue a sum- 
 mons requiring the executor or administrator 
 to appear before him and return an inven- 
 tory according to law, or show cause why an 
 attachment should not be issued against him. 
 Id. p. 85, § 17. If after the personal service 
 of such summons such executor or adminis- 
 trator shall not by the day appointed return 
 such inventory on oath, or obtain further 
 time to do so, the surrogate shall issue an 
 attachment against him, and commit the ex- 
 ecutor or administrator to the common jail 
 of the county, there to remain until he shall 
 return such inventory. Id. § 18. Any person 
 interested in the personal property of the 
 deceased may comisel the executor or admin- 
 istrator to return an inventory. Dayt. Sur. 
 (."kl Ed.) 281, 282. Thomson v. Thomson, 1 
 Bradf. Sur. 24, 27, 28. The executor or ad- 
 ministrator may appear on the return day, 
 and show cause against the order, and con- 
 test the petitioner's allegation of interest; 
 and if he show that tlie petitioner has no 
 interest, or that the demand of an inventory 
 be vexatious, the petition will be dismissed. 
 Dayt. Sur. 281, 282. But when the executor 
 or administrator contests the claim, the sur- 
 rogate, if the petition be properly verified, 
 will require the inventory and account with- 
 out trying the issues between the parties. 1 
 Bradf. Sur. 27, 28; Williams, Ex'rs, 837. 
 I do not think that there was in this case 
 sufficient cause shown for the neglect of the 
 administratrix. Although the claim was dis- 
 puted, yet there was not evidence to prove 
 
 it was entirely invalid, and that the' demand 
 was vexatious. The cases cited by the re- 
 spondent do not sustain the docti'ine contend- 
 ed for. In Boone's Case, T. Raym. 470, the 
 plaintiff had paid two installments of the 
 legacy and tendered the third; thus render- 
 ing the application entirely unnecessary and 
 vexatious. In Leighton v. Leighton,-2 Cas. 
 t. Lee, 356, the decision was put upon the 
 ground that there were no effects to in- 
 ventory, and it would be a useless expense. 
 In Fleet v. Holmes, Id. 101, the legacy was 
 one thousand pounds, and the executrix had 
 tendered one thousand pounds principal and 
 sixty pounds for interest. Sir George Lee, 
 in delivering the opinion of the court, says: 
 "I refused to decree an inventory because 
 I thought it useless, because the executrix 
 would certainly be bound by her confession 
 of assets and of having made interest, in 
 her answer to the libel for this legacy, and 
 therefore Fleet was already sufficiently 
 founded to have the judgment of the court 
 whether she ought to pay interest or not." 
 The executrix was here ready and willing to 
 pay, and had tendered all but some interest, 
 and there was no question as to responsibil- 
 ity raised. It will be seen that neither of 
 the cases was like the one now considered. 
 In two of them the executrix had tendered 
 and was ready to pay. In one, there were 
 no assets. In neither was the principal debt 
 disputed. It was no answer to the applica- 
 tion that the administratrix offered to de- 
 posit the money. She did not actually de- 
 posit it, and I do not understand that the 
 applicant was bound to enter into negotia- 
 tions with her for that purpose. The aver- 
 ment of ability to pay is not a sufficient an- 
 swer to the application. And in the cases 
 cited it appeared that there was not only 
 ability but willingness to pay. I think no 
 sufficient cause was shown for neglect to 
 file the inventory. The apislicant, as a cred- 
 itor, had a right to require it. As a general 
 mle, if a creditor swears positively to a 
 debt due to him from the decedent, he wiil 
 be entitled to an order for an inventory and 
 an account of the estate. And the surrogate 
 will not proceed to try the validity of the 
 debt, or to inquire as to the amount thereof 
 upon a mere application for an inventory. 
 Smith V. Pryce, 1 Lee, Ecc. 569. The allega- 
 tion that the application is vexatious and 
 to gratify the curiosity of the petitioner is 
 denied, and cannot be available when there 
 is a claim made in good faith, even though 
 the demand is disputed. An application to 
 compel an executor or administrator to file 
 an inventory, by a party in interest, is rare- 
 ly if ever reftised, if made within a reason- 
 able time. And in this case I see no good 
 reason for the decision of the surrogate. The 
 party interested had a right by statute to 
 know the condition of the decedent's prop- 
 ei-ty, and the surrogate erred in refusing to 
 order the inventory to bo filed. 
 
 The order should be reversed, with costs to 
 be paid by the estate. 
 
 507 
 
Case No. 180 
 
 TLUNKETT V. SHABPE. 
 
 (§ 132 
 
 I'LUNKETT V. SHARPE. 
 
 (1 Lee, Ecc. 623.) 
 
 Prerogative Court of Cauterbury. Trinity 
 Term, 1754. 
 
 Dr. Collier, for Plunkett. Thomas Sharpe, 
 deceased, died in November, 1751, intestate; 
 13tli December, 1751, administration was 
 granted to John Banks, as father and guar- 
 dian of Ann Plimkett, deceased's widow, and 
 till she came to age; 29tb April, 1752, she 
 married Christopher Plunkett; in August, 
 1753, she being at age, and the administra- 
 tion to her guardian ceasing, she applied for 
 administration in her own right. A caveat 
 was entered in tlae name of John Thomas; 
 warned 4th September, 1753. Gostling prayed 
 administration to be granted to Ann Plunk- 
 ett. Bogg prayed it to be granted to Wil- 
 liam Sharpe, . deceased's brother, and both 
 proctors were assigned to answer to each 
 other's interests. Gostling confessed Sharpe's 
 interest, Bogg denied Plunkett's interest; 
 she pleaded it, allegation admitted; plead- 
 ed public owning and cohabitation, and 
 particularly owning of her as his brother's 
 wife by said William Sharpe; publication on 
 said allegation. Bogg gave an allegation, 
 which was admitted. Both proctors as- 
 signed to give in inventories. Gostling gave 
 in a declaration. Bogg gave in an inven- 
 tory, but defective in form and substance. 
 Deceased's father died in 1747; made his 
 \Yill; appointed his eldest son, William 
 508 
 
 Sharpe, his executor; gave him two-thirds 
 of his estate, and gave the other third to de- 
 ceased, to be paid at his age of 22; he was 
 past that age when he died. We pray he 
 should set forth the particulars of his father's 
 estate, that it may appear what the third 
 amounted to, which belonged to deceased. 
 At the head, he styles it an inventory of all 
 the goods, &c. of deceased, that have come 
 to his knowledge; and at the end, he admits 
 deceased was entitled to one-third of his 
 father's estate, but says that estate is not yet 
 liquidated, and that Plunkett is not entitled 
 to an account of it till she has proved her 
 interest. 
 Judgment. 
 
 SIB GEORGE LEE. I directed that the 
 head of the inventory should be put into the 
 usual form, viz. A true and perfect inventory 
 of all the goods, chattels, and credits of de- 
 ceased, that have come to the hands, posses- 
 sion, or knowledge of Sharpe; and I said, 
 when the court decrees for am inventory, a 
 full and satisfactory one was expected; that 
 the third of the father's estate vested in the 
 deceased and was part of his estate, and 
 appeared to be in the hands of Sharpe, and 
 therefore he was obliged to give an inven- 
 tory of what he had received in money or 
 goods from tho father's estate, for the use 
 of deceased, and I decreed accordingly, that 
 he should give in a fuller inventory, and set 
 forth the same, and condemned him in fl Gs. 
 8d. costs. 
 
§ 133) 
 
 STODDEN V. HARVEY. 
 
 Case Ko. 181 
 
 STODDEN v. HARVEY. 
 
 (Cro. Jac. 204.) 
 
 King's Bench. Trinity Term, 5 Jac. I. Roll. 
 
 587. 
 
 Trespass. Upon domvirrer the case was, 
 lessee for life of a house and pasture land 
 dies; his executors suffer his cattle to go 
 there for six days after his death, and then 
 removed them; and in trespass, justify for 
 that time, averring, that in that time of six 
 days they could not procure any other land 
 or place to put in the cattle: whereupon it 
 
 was demurred; and. Whether that were a 
 convenient time to move them? was the 
 question. 
 
 THE COURT seemed to incline, that six 
 days is but a convenient time for their re- 
 moving, especially it being averred that they 
 had not any other place to remove them to. 
 Vide 18. Edw. IV. 22; Edw. IV. pi. 27. 
 
 But for a fault in the plea, wherein he 
 pleaded a lease of the house, but not of the 
 land, in the declaration mentioned, it was 
 adjudged for the plaintiff. 
 
 5m 
 
Case Xo. 182 
 
 PEHRY V. AVOOTON. 
 
 (§ 13a 
 
 PERRY V. M'OOTON. 
 
 (5 Humph. 524.) 
 
 Supreme Court of Tennessee. April Term, 
 1845. 
 
 This bill was filed by Perry agaiust Woo- 
 ton, executor of Perry, deceased, and against 
 Jones, In the chancery court at Huntingdon, 
 for an account of the estate of Perry, de- 
 ceased. Complainant was one of the lega- 
 tees, and Jones and his wife entitled to the 
 other share. 
 
 This bill charges the administrator with 
 negligence, in failing to collect a note for 
 $1,400 on Armotu- & Cromwell, executed to 
 the deceased in his lifetime. 
 
 The answer denied the neglect, but charged 
 that the delay in taking steps to collect the 
 money took place with the consent and ap- 
 probation of complainant and the other lega- 
 tee. 
 
 The case was tried at the August term, 
 1842, by Chancellor McCambell, on bill, an- 
 swer, pro confesso judgment, and proof, and 
 the bill was dismissed. 
 
 Mr. Totten and Bmxow & McCui-ry, for 
 complainant. Mr. McLanahan, for defend- 
 ant. 
 
 GREEN, J. The defendant is executor of 
 Nathaniel Perry, deceased, the father of com- 
 plainant. And the only matter of dispute 
 in the cause is, whether he is chargeable 
 with negligence for failing to collect a note 
 of fourteen hundi-ed dollars, due the estate 
 from David Armour & Cromwell. 
 
 Nathaniel Perry died in the spring of 1838, 
 and David Armour & Cromwell were sol- 
 vent, and the note could have been col- 
 lected at any time until the spring of 1840. 
 
 It Is admitted that the failure to collect 
 this note for so long a time would have 
 been culpable negligence on the part of the 
 executor, and would have rendered him 
 personally liable for the money, but for the 
 complainant's interference, and his ac- 
 quiescence in the forbearance of the executor. 
 
 It appears that David Armour & Cromwell 
 were merchants in Jackson, of high standing, 
 and were greatly respected by the testator 
 and his son, the complainant. The money 
 due on the note had been loaned to Armour 
 by the testator, who desired it to remain in 
 Armom-'s hands until it was needed, and 
 the note had been executed a short time 
 before the testator's death, through the 
 agency of the complainant, and a memo- 
 randum was placed on the note, that, if the 
 money should not be called for in twelve 
 months, the obligors were to pay eight per 
 cent interest. The note was in the hands 
 of the complainant when the testator died, 
 and he continued to retain it, Avith the per- 
 mission of the executor, until a short time 
 before the failure of D. Armour & Crom- 
 well. 
 
 In the fall of 1839, Jones, one of the lega- 
 510 
 
 tees, who lived in North Carolina, came to 
 Tennessee for his share of the residue of 
 the estate. Armour was notified by the ex- 
 ecutor of Jones' intended visit, and was in- 
 formed that he wished to settle up with the 
 legatees. 
 
 To enable the executor to settle with Jones, 
 Armour paid about three hundred dollars 
 on his note, and not ^finding it convenient 
 to raise the balance, he applied to the ex- 
 ecutor for further indulgence, who referred 
 him to the legatees. Armom- applied to the 
 complainant, who was the principal legatee, 
 who told him, "he did not particularly need 
 the money, and as for himself he was will- 
 ing to wait." The complainant also said 
 that he was willing to take a note on David 
 Armour & Cromwell for his part. 
 
 This conversation was communicated to 
 the executor, who made no further effort 
 to collect the money; and the house of D. 
 Armour & Cromwell soon afterwards failed, 
 whereby the debt has been wholly lost to- 
 the estate. 
 
 The question upon these facts is, whether 
 the defendant was guilty of negligence, in 
 failing to collect this money for the two 
 years within which the debtors were solvent, 
 after it was dtie. 
 
 Unquestionably an executor is bound to- 
 use diligence in discharge of his duties, and 
 not to permit the estate to be injured 
 through his neglect. 2 Williams, Bx'rs, 1111, 
 1112. And if there were no fact in this case 
 to excuse the defendant, he would certainly 
 be liable for the money which has been 
 lost by the insolvency of these debtors to- 
 the estate. But under all the circiunstances, 
 we think he was excusable for the delay. 
 
 The complainant told Armour at the time 
 the note was given he wished the money 
 to remain in his hands until it was needed. 
 All parties had the most unbounded confi- 
 dence in the solvency of D. Armour & Crom- 
 well, and the testator and his legatees 
 seemed to have entertained great respect 
 and kindness for David Armour. All par- 
 ties felt that the money was entirely safe 
 in Armour's hands, and the complainant, 
 as well as his father, doubtless desired it 
 to remain there until it was needed. 
 
 There seems to have been a constant com- 
 munication and friendly understanding be- 
 tween the executor and the complainant up- 
 on the subject. Hence the complainant re- 
 tained possession of the note more than a 
 year after the defendant qualified as ex- 
 ecutor, and when the debtor desired fm-tlier 
 indulgence, he was referred to the legatees 
 (of whom the complainant was the prin- 
 cipal legatee) to obtain their consent. When, 
 at last, Jones came to this country for his 
 legacy, and the executor wished to settle up 
 the estate, the complainant told Armour he 
 did not need his money, and was willing to 
 wait, and take the note of D. Armoui- & 
 CromweU for his share. These dispositions- 
 
§ 133) 
 
 PEHUy V. WOOTOX. 
 
 Case No. 182 
 
 of the complainant towards Mr. Armour, 
 manifested so late as the winter of 1839, are 
 satisfactory proof, that he had all along ap- 
 proved the delay of the executor to collect 
 the note. The testator owed no debts, and 
 the executor had no use for the money, but 
 to pay off the legacies. Had he collected it, 
 the interest would have ceased, and the par- 
 ties entitled to the fund would have failed 
 to realize the 8 per cent, interest Ai-mom" 
 had promised to give, and would have 
 deemed their money in hands no more safe 
 than in those of the debtors. Tliey, tliere- 
 fore, did not wish the executor to collect It, 
 and with this feeling on their part, he was 
 well acquainted. 
 In this view of the case, the defendant cannot 
 
 be regarded as culpably negligent for failing 
 to do that which he knew those who were 
 interested in the fund desired him to refrain 
 from doing. 
 
 Much stress is laid upon the fact, that the 
 defendant said, after the failure of D. Ar- 
 mour & Cromwell, that he had rendered him- 
 self liable for tlie debt. His opinion, that 
 he was liable, would not change the facts, 
 nor constitute a liability which the law did 
 not raise upon those facts. 
 
 Tlie complainant is entitled to a decree for 
 one-half the sum in the defendant's hands, 
 according to his settlement with fho county 
 court, excluding the note on D. Armour & 
 Cromwell, and each party will pay half the 
 cost. 
 
 511 
 
Case No. 183 
 
 MOSS V. SANDEFUR. 
 
 (§ 1-^3 
 
 MOSS V. SANDEFUR. 
 
 (15 Ark. 381.) 
 
 Supreme Court of Arkansas. July Term, 1854. 
 
 Pike & Cummins, for appellant. Cui-i-an 
 ■& Gallagher, conti-a. 
 
 SCOTT, J. This cause was brought here 
 ■by appeal, from a judgment of the circuit 
 court of Hempstead county, affirming a judg- 
 ment of the probate court, in the matter of 
 a summary proceeding against the appellant, 
 at the suit of the appellee, as the executor 
 of James H. Diuin, deceased, under the pro- 
 visions of the statute authorizing the probate 
 com-t, in certain cases, upon complaint of 
 embezzlement or concealment, to cause the 
 party implicated to come before the court 
 and discover on oath, and be fui'ther dealt 
 with, if convicted. Dig. c. 4, §§ 4G-4S. 
 
 In the petition, which is verifled in the 
 manner prescribed by the statute, it is al- 
 leged that the petitioner "has been informed, 
 and believes correctly, that James Moss has 
 in possession, and has concealed money, be- 
 longing to the estate of the said James H. 
 Dunn, deceased. Yom' petitioner, therefore 
 prays," etc. Process of summons issued, 
 commanding Moss to appear, and answer 
 "a charge of concealing certain money, be- 
 longing to the estate," etc. The executor 
 filed a number of interrogatories in writing, 
 some of which were very general, to which 
 he desired the answer of Moss. Moss ap- 
 peared in obedience to tlie summons and 
 filed his answer in writing, in response to 
 these interrogatories the substance of which 
 is as follows, to wit: That theretofore, there 
 had been born of a certain negi'o woman 
 slave, named Momning, wlio was owned by, 
 and is the property of, the heirs at law and 
 distributees of Janies Moss, deceased, a 
 female child, named Eliza. That he had been 
 informed, and believed it to be true, that 
 James H. Dunn, in his lifetime, at divers 
 times, and to divers persons, had admitted he 
 was the father of Eliza, and recognized her 
 as his child, and that he had made appli- 
 cation to the heirs of James Moss, deceased, 
 or to some of them, to pui'chase said child 
 Eliza, that he might manumit her. That he 
 bad been informed, and believed it to be 
 true, that said Dunn, in his lifetime, and 
 some time before he made and published 
 liis last will and testament, "had given, de- 
 livered, and placed in the hands of said 
 slave. Mourning," the sum of three hundred 
 dollars, to be applied to the purchase and 
 manumission of said child Eliza. That, sev- 
 eral months before the death of Dunn, two 
 months at least, — ^the said slave Mourning, 
 at that time hired to and in the employment 
 of said Dunn, brought to the respondent a 
 sum of money^ in coin, which she said was 
 three hundred dollars, and offered to leave 
 the same in pledge with the respondent, as 
 an indemnity against the death of said child, 
 Eliza, which respondent had refused to per- 
 
 512 
 
 mit said Dunn to take with her mother tq 
 Pulton, because of the then unhealthiness 
 of that place, and the jeopardy of the life 
 of said child from that source. That, at 
 the time of the death of Dunn, the slave 
 Mourning was not hired to him (Dimn,) nor 
 living with him; but was in the service of 
 respondent. That Dunn died at Fulton, and 
 respondent's residence at that time was some 
 twenty miles from that place. That respond- 
 ent went to Fulton, some five or six days, or 
 a week after the death of Dunn, which was 
 his first visit there after that event, and 
 that was the first time, after that event, he 
 had seen said slave Mourning; and said 
 slave, at that time, placed into the hands of 
 the respondent the sum of two hundred and 
 eighty-two dollars, for safe-keeping. That 
 this sum "is all the money that said slave 
 ever gave to the respondent, for safe-keep- 
 ing," "and that he now has and holds the 
 same, for the use and benefit of him, her, or 
 them, to whom it may i)ertain." 
 
 He denies that said slave Mom'ning took 
 said sum, or any other sum, either from the 
 store of the said Dunn, or from about his 
 person, either about the time of his death, or 
 at any other time, without his (tne said 
 Dunn's) knowledge and consent. He denies 
 that he, the respondent, "on the day of said 
 Dunn's death, or at any other time, ever 
 received any sum of money whatsoever, as 
 he knows or believes, which belonged to, 
 or was owned by Dunn, at the time of his 
 death." "All of which said responses, al- 
 legations, and facts, in response to said gen- 
 eral enquiries, this respondent avers and 
 verily believes he can prove and establish, if 
 permitted by the court, by competent and 
 credible witnesses, except the offer of the 
 said $300, as an indemnity for the life of 
 said child Eliza." 
 
 Having thus responded to the interrogato- 
 ries, he makes answer to the allegations con- 
 tained in the petition, in the following terms, 
 to wit: "That it is not true, that he has in 
 his possession, nor has he, this respondent, 
 concealed any money which belonged, or 
 belongs to the estate of the said James H. 
 Dunn, nor is it true, that the said John B. 
 has been or is correctly informed in regard 
 to the same, as he, in his said petition, has 
 alleged; but it is true, and so this respond- 
 ent avers the truth to be, that, at divers 
 times, this respondent has conversed with 
 the said John B. in regard to the said 
 sum of money, so by this respondent received 
 from the said slave Mourning, as above 
 stated, and always informed the said John 
 B. of the material facts in regard to the 
 same, and never denied to him, or any one 
 else, the fact that he had received from the 
 said Mourning, the sum by him received as 
 herein above stated and admitted." 
 
 He then denies the jurisdiction of the coiu't 
 in tlie premises, and insists that the remedy, 
 if any, is in the circuit court; but submits 
 that if the cotu-t retains jurisdiction, the 
 
133) 
 
 MOSS V. SANDEFUll. 
 
 Case No. 183 
 
 law deducible from the facts Is on the side 
 of the respondent. 
 
 The entire response Is verified by affidavit. 
 Upon an inspection of the petition, interroga- 
 tories, and answers, as is stated In the rec- 
 ord, that court was "of opinion that said 
 sum properly belongs to the estate of the 
 said James B. Dunn, deceased," and the rec- 
 ord proceeds to state: "It is therefore con- 
 .sidered, ordered, and adjudged, that the said 
 John B. Sandefur, as executor of the will of 
 the said James H. Dunn, deceased, have and 
 recover of and from the said James Moss, the 
 aforesaid sum of two hundred and eighty- 
 two dollars, so admitted by him as afore- 
 said, and that the said Moss deliver the 
 same up to the said John B. Sandefm-, os 
 such executor." 
 
 The appellant tooli a bill of exceptions, 
 showing that the com-t overruled his objec- 
 tion to the jurisdiction in the premises, and 
 upon the merits found and adjudged for 
 the api)ell€e. 
 
 It' will be observed, that the appellant ^et 
 up no claim to the money in question, either 
 in his own right or in that of the heirs at 
 law or distributees of James Moss, deceased; 
 but averred that he had and held the same 
 for the use and benefit of whomsoever it 
 might rightfully belong to; and as the pro- 
 bate com-t adjudged no costs against him, It 
 may be inferred that he was in that court 
 regarded as presenting himself In the atti- 
 tude of a stake-holder. Whether or not he 
 was the legal representative of the estate 
 of James Moss, deceased, or was one of the 
 heu-s at law, or distributees of that estate, 
 does not appear. But, as the judgment of 
 the probate court in this proceeding, where 
 neither the legal representatives, nor the 
 heirs at law, or distributees of James Moss, 
 deceased, were parties, could not exonerate 
 the appellant from a suit for the money in 
 that behalf, wherein it would have to be 
 determined what right these parties had to 
 the money in question, upon the foundation 
 of the ownership of the slave in question, 
 the appellant would have sufficient interest 
 in the controversy to authorize him to ques- 
 tion the correctness of the proceedings and 
 judgment. 
 
 The first and most important duty of an 
 executor, or administrator, after his induc- 
 tion into office, is to collect, and take into 
 his possession, and make and return an in- 
 ventory of, the personal gocjds and chattels, 
 moneys, books, and papers; and other evi- 
 dences of debts belonging to the estate of 
 his testator or Intestate. And it was in aid 
 of this duty, that the jurisdiction in question, 
 under which these proceedings were had, 
 was invested in the probate courts. 
 
 This view of the provisions of the statute 
 in question, was taken by the com't In the 
 case of Welsh v. Lloyd, 5 Ark. 370; and is 
 supported as well by the language used as 
 by the context. In the original enactment, 
 the sections of the statute cited above, as 
 
 ABB.AVILLS — 33 
 
 those under which these proceedings were 
 had, and which passed under the notice of 
 the court in the case cited, were numbered 
 47, 48, 49, and 50, in a consecutive series 
 numbered from 42 to 56, inclusive, all exclu- 
 sively upon the subject and making numer- 
 ous provisions for the collection, inventory, 
 appraisement, and return of decedent's ef- 
 fects. 
 
 To aid in the performance of these im- 
 portant duties, the particular provisions in 
 question invest the probate courts with iiu- 
 thorlty to compel the attendance of persons 
 charged, in the manner prescribed, either 
 with concealing or embezzling any such ef- 
 fects, force them to make discovery on oath, 
 and, if found unlawfully detaining any such 
 effects, order their delivery to the executor 
 or administrator entitled to receive them, 
 and enforce obedience to the order by attach- 
 ment 
 
 The Investment of such authority In these 
 coMts, was peculiarly appropriate In view 
 of their functions in our probate system, 
 and doubtless the practical effects of its exer- 
 cise have been altogether salutary, in all 
 those cases, not of unfrequent occurrence 
 where persons, who have been Intrusted, in 
 the lifetime of the deceased, with custody 
 of his effects, or who, at or about the time 
 of his death, or soon afterwards, coming 
 into their possession, either casually or by 
 design, hold quietly and secretly, without 
 color of lawful authority, and evading any 
 discovery of the truth in the premises, either 
 by direct means or studied silence; all with 
 fraudulent views, stimulated by the difficulty 
 or impossibility of proof, on the part of the 
 executor or administrator, either of owner- 
 ship or Identity. 
 
 In cases where the executor or adminis- 
 trator may have had no knowledge of the 
 affairs of the deceased, in his lifetime, he 
 might, by such means, be seriously obstruct- 
 ed in the performance of these Important 
 duties, and In proportion to his want of such 
 knowledge, be hindered and baffled, and pre- 
 cisely in this ratio would the chances of es- 
 cape from detection be Increased, and such 
 fraudulent designs stimulated. To meet 
 such emergencies, the remedy adopted of for- 
 cing the moral offender who would rob the 
 dead, to merge his moral into the criminal 
 offence of outright perjury, or let go his un- 
 righteous hold, cannot be without efficacy. 
 Under its operation, the man of conscience, 
 who may have quieted Its voice, will hear it 
 speak again In spite of him, when he ap- 
 proaches this open crime; and the hardened 
 offender will at least calculate his chances 
 of escape from the pains and penalties of 
 perjury. When the authority In question is 
 made to extend to the large class of cases, 
 to which we have alluded, and the class 
 must noorts be large and infinitely various, 
 because, fraud itself is "infinite," as remark- 
 ed by Lord Hardwlcke, In his letter to Lord 
 Kaines, manifesting itself as well in the 
 
 513 
 
Case No. 183 
 
 MOSS V. SAXDEFUR, 
 
 (§ 13? 
 
 suppression of the truth, as !n the suggestion 
 of a falsehood, it was a matter of sufficient 
 importance, in point of mischief, to have 
 attracted the attention of the legislature, 
 without supposing any regard whatsoever 
 was had to the very questionable policy of 
 tui'ning into probate coittts, from their ac- 
 customed channel, a great stream of liti- 
 gation touching contested rights to person- 
 al chattels, which these courts from their 
 constitution are so little calculated to sustain. 
 Nothing short of a much more distinct and 
 emphatic expression of the legislative will, 
 to that effect, could authorize such a conclu- 
 tion. 
 
 In our opinion, it is clear enough, from the 
 obvious mischief, and the expressed remedy, 
 when viewed in connection with the subject 
 matter, and reasonable scope of the provi- 
 sions made, that such was not the intention 
 of the legislature, but that it was to con- 
 fine this jurisdiction to the class of cases 
 iibove, which we have designated; or, at 
 most, if It is to extend beyond to any case 
 where the discovery required shows lawful 
 color of adverse claim, either of possession 
 or property, whether in the party maliing 
 the discovery, or in a third person, it would 
 be of that class of adverse claims which the 
 514 
 
 probate court could properly authorize the 
 executor or administrator to extinguish, for 
 the benefit of the estate; such, for instance, 
 as prior vested liens, like the inn-keeper's. 
 
 In the case before us, the discovery that 
 was required, shows the money in question 
 to be in such an equivocal attitude, as to be- 
 reasonably a subject of litigation between 
 the executor, or administrator or distribu- 
 tees of James Moss, deceased, predicated up- 
 on the ownership of the slave, who deposit- 
 ed it, for safe keeping, in the hands of the 
 respondent, and the executor of Dunn, who 
 claims that it had been derived from his 
 testator in his lifetime, or had been abstract- 
 ed from his estate since his death, in some 
 manner that did not divest his right to it. 
 The case then, shown by the discovery, was 
 not of either class to which the authority of 
 the probate court to make the order of deliv- 
 ery, extended; and, therefore, the court err- 
 ed in making that order. 
 
 The judgment of the circuit court must be 
 reversed, and the cause remanded to that 
 court, with instructions to reverse the judg- 
 ment of the probate, and enter up and certi- 
 fy to that court such a judgment as ought to 
 have been entered up there. Dig. c. 4, §§ 181, 
 182. 
 
§ 135) 
 
 WOOLLEY V. CLARK. 
 
 Case No. 184 
 
 WOOLLEY T. CLARK et al. 
 
 (5 Barn. & Aid. 744.) 
 
 Easter Term, 1822. 
 
 Trover for stock in ti-ade and hoiisehold 
 goods. In the first count the goods were 
 laid to be the property of the testator; in 
 the second, of the plaintiff, as executrix. 
 Plea, not guilty. At the trial, before Ab- 
 bott, 0. J. at the Middlesex sittings after last 
 Michaelmas term, the following facts ap- 
 peared in evidence; the testator died on the 
 16th of Jime, 1819; at that time the defend- 
 ant, Clark, had in his possession a wiU of 
 the testator, bearing date the 29th of April 
 in that year, by which he was appointed ex- 
 ecutor. This will was proved on the 23d 
 June, 1819, and administration was granted 
 to Clark, and he directed the sale of the sev- 
 eral articles mentioned in the declaration, 
 which were sold by the other defendant, an 
 auctioneer, on the 30th July, 1819. The tes- 
 tator had made another will on the 12th 
 June. 1819, by which he appointed the plain- 
 tiff his executrix; and it was proved that the 
 defendants had notice of this second will, 
 previously to the sale of the goods. The sec- 
 ond wUl was proved on the 21st May, 1821, 
 (the probate of the first will, under which 
 the defendants acted, having been revoked 
 upon citation,) and administration was grant- 
 ed to the plaintiff. It was contended, on the 
 part of the defendant, that the revocation of 
 the probate of the first will did not avoid all 
 t"he mesne acts, but that the defendants 
 might show due administration of the assets' 
 to the amount of the value of the goods. 
 The lord chief justice would not allow the 
 
 defendants to give evidence of administra- 
 tion of the assets, and the plaintiff obtained 
 a verdict for the full value of the goods. A 
 rule nisi having been obtained for a new 
 trial. 
 
 Brougham and Chitty now showed cause. 
 The Solicitor General and Wightman, contra. 
 
 ABBOTT, O. J. There is a manifest dis- 
 tinction between the case of an administi-a- 
 tor and an executor. An administrator de- 
 rives his title wholly from the ecclesiastical 
 court. He has none until the letters of ad- 
 ministration are granted, and the property 
 of the deceased vests in him only from the 
 time of the gi-ant. An executor, on the other 
 hand, derives his title from the will itself, 
 and the property vests in him from the mo- 
 ment of the testator's death. That being so. 
 the property vested in the plaintiff, as exec- 
 utrix, from the time of the death of the tes- 
 tator; and, consequently, the defendants, 
 who had notice of the second will, had no 
 right to sell, and therefore are liable in this 
 action. 
 
 BAYLEY and HOLUOYD, JJ., concurred. 
 
 BEST, J. Where a party obtains a judg- 
 ment irregularly, which is afterwards set 
 aside for irregularity, he is not justified in 
 acting under it; but the sheriff is justified. 
 Here the first probate was irregularly ob- 
 tained. The party who obtained that pro- 
 bate, therefore, was not justified in selling 
 the goods; but a creditor, who paid him a 
 debt while tlie letters of administration were 
 unrepealed, would be protected. 
 
 Rule discharged. 
 
 51.'i 
 
Case Xo. 185 
 
 CULLEJST V. O'HARA. 
 
 (§§ 135, 142 
 
 CULLEN T. O'HARA. 
 
 (4 Mich. 132.) 
 
 Supreme Court of Michigan. Jan. Term, 1856. 
 
 Error to circuit court, Waslitenau county. 
 
 O. Hawliins and H. J. Bealier, for plaintiff 
 in error. B. C. Seaman, for defendant In 
 error. 
 
 DOUGLASS, J. This was an action of tro- 
 ver for divers pieces of gold coin, amounting 
 in all to $585, and was brought by O'Hara, 
 as the administrator of Ann O'Brien, de- 
 ceased, against Oullen. The cause was tried 
 by a jury. On the trial the plaintiff below 
 proved his appointment as administrator; 
 that in November, 1848, his intestate died 
 possessed of the money; that on her death 
 it came into the possession of the defendant; 
 and that on demand made he refused to de- 
 liver it to the plaintiff. 
 
 The defendant proved that one James 
 O'Brien, a brother of the plaintiff's intestate, 
 died intestate in New York, in 1842; that he 
 left no widow surviving him, and but one 
 child, who was an infant, also named Ann 
 O'Brien, and was his sole next of kin, and 
 heir-at-law, and that he (the defendant) was 
 the duly appointed guardian of this infant 
 daughter. 
 
 For the purpose of showing that the mon- 
 ey belonged to James O'Brien's estate, the 
 defendant called one Catherine Vaughan as 
 a witness, who testified as follows: "I knew 
 Ann O'Brien" (the elder and plaintiff's in- 
 testate) "in her lifetime, and attended her 
 during her last sickness. I spoke to Ann 
 and told her that she had better settle her 
 affairs, and make a will. The reply was, 
 she would not make any wiU, because, she 
 said, she had nothing to will to any person; 
 she said the principal part of what was in 
 her custody belonged to the estate of James 
 O'Brien; I counted the money after her 
 death, and there was then $CG2.50, as near 
 as I can recollect, of which she died in pos- 
 session. I gave $585 of this money to the 
 defendant." 
 
 No evidence ■n'as offered to prove that ad- 
 ministration had over been granted upon 
 James O'Brien's estate. 
 
 It was also proved on the part of the de- 
 fense, that in September, 18-19, the plaintiff 
 below, with a full knowledge on the part 
 both of himself and the defendant, of all the 
 facts and of the claims of each of them, in 
 his individual capacity, borrowed $200 of 
 this money from the defendant, and execut- 
 ed his bond and mortgage to secure its re- 
 Iiayment, which mortgage has since been 
 foreclosed. 
 
 The evidence being closed, the defendant 
 below requested the court to charge the jury 
 that the plaintiff, by loaning the $200 from 
 the defendant, and executing his bond and 
 mortgage therefor, was estopped from main- 
 taining this action; also, that if the jury be- 
 516 
 
 lieved that any portion of the money in ques- 
 tion was in the possession of the plaintiff 
 when this action was commenced, the plain- 
 tiff was not entitled, in any event, to their 
 verdict for such portion. 
 
 The court declined to charge on either of 
 these points as requested, but instructed the 
 jury: 
 
 "That if they believed that Ann O'Brien, 
 the plaintiff's intestate, shortly before her de- 
 cease, did make the declaration testified to 
 by Catherine Vaughan, they must detei-mine 
 in what manner she meant to be understood; 
 that there was no evidence in the case show- 
 ing that any administrator was ever ap- 
 pointed upon the estate of James O'Brien; 
 and if she meant to be understood that the 
 money belonged to the estate of James 
 O'Brien, and that it had come into the pos- 
 session of the heir-at-law, or that she her- 
 self held it in trust for the heir-at-law, or 
 that it belonged to her in her own right, the 
 defendant, he being her guardian, would 
 have a right to the possession of it. But if 
 she meant to be understood that the money 
 belonged to the estate of James O'Brien, and 
 that she, Ann O'Brien, had taken possession 
 of it in opposition to the rights of the heir, 
 and so continued in the possession of it un- 
 til the time of her death, the title, or at least 
 the right of possession, would pass to the 
 plaintiff as her administrator, and not to the 
 defendant's ward, and that the plaintiff 
 would be accountable only to the administra- 
 tor of the estate of James O'Brien. That, if 
 she so took possession of the money, she 
 would have been in law what is denominated 
 an executor, de son tort, and as such, would 
 have been liable in a suit at law, not to the 
 heir of James O'Brien, but only to the admin- 
 istrator of his estate, or creditors, if there 
 were any; that, upon the death of a testator 
 or intestate, the title of the personal property 
 passes to the executor or administrator for 
 the purpose of settling the estate, and that 
 such a title is inconsistent with the right of 
 an heir-at-law to maintain a suit against a 
 stranger in the wrongful possession of the 
 property of the estate." 
 
 To the refusal of the court to charge as re- 
 quested, and also to that portion of the 
 charge given which is quoted above, the de- 
 fendant below excepted, and the jury hav- 
 ing returned a verdict in favor of the plain- 
 tiff, the cause was removed into this court, 
 by writ of error and bill of exceptions. 
 
 I. We see no error in the refusal of the 
 court below to charge as requested, in regard 
 to the effect of the loan by the plaintiff of 
 $200 of the money in question from the de- 
 fendant and the execution of his bond and 
 mortgage therefor. This loan was made by 
 him in his individual capacity, and we do not 
 think it could operate to estop him from as- 
 serting his right to the money, as the ad- 
 ministrator of Ann O'Brien. Nor do we per- 
 ceive how the plaintiff's possession of the 
 $200 thus obtained, by loaning it from the 
 
§§ 185, 142) 
 
 CULLEN V. O'HAEA. 
 
 Case No. 185 
 
 defendant, would affect his right as aJminis- 
 trator to maintain trover for it against the 
 defendant, if the money really belonged to 
 the estate of his intestate. It appears to 
 us that such lending of the money by the de- 
 fendant to the plaintifE, was as much a con- 
 version as if the loan had been made to any 
 third person. 
 
 II. Questions of greater difllculty arise up- 
 on the exception to the charge actually given. 
 
 The inquiry presented by so much of the 
 charge as was adverse to the defendant, is, 
 whether, assuming that the coin in question 
 belonged to the estate of James O'Brien; 
 that on his death it came into the posses- 
 sion of Ann O'Brien, the elder; that she 
 kept the exclusive possession of it until her 
 death; tliat James O'Brien died intestate; 
 that no administration had ever been grant- 
 ed upon his estate; that he left no widow 
 sm-viving him, and but one child; and that 
 the defendant was the guardian of this child: 
 whether, m such case, the plaintiff, as ad- 
 ministrator of the estate of Ann O'Brien, 
 the elder, was entitled to maintain trover 
 against the defendant, who was guardian of 
 the sole next of kin of James O'Brien, for a 
 conversion of the money after the death of 
 Ann O'Brien, the elder, and before the plain- 
 tiff's appointment as administrator. 
 
 1. And fii-st, upon the facts assumed, what 
 were the rights of the plaintiff to the money 
 in controversy? 
 
 When a map dies, his possession of prop- 
 erty which he owned during life, is, of 
 course, terminated; others come into the pos- 
 session of it; ordinarily, his nearest friends 
 and relatives, who are certainly the most fit 
 persons to take charge of it. Whoever thus 
 comes into the possession of any portion of 
 the personal property of an intestate, ^fter 
 his decease, and assumes control over it, 
 becomes responsible for it to the adminis- 
 trator when appointed. He cannot safely 
 deliver it to any one else, except the admin- 
 istrator, or some one who shows a better 
 right to it than himself. This must be so 
 upon principle, for otherwise, the personal 
 property of a decedent might easily be placed 
 beyond reach before administration granted, 
 and where no one could be found who had 
 it, or was responsible for its value. And so 
 are the authorities. Emery v. Berry, 8 Fost. 
 (N. H.) 483; 1 Salk. 31.3; Sharland v. Mil- 
 don, 5 Hare, 469; 2 Bac. Abr. 387; 5 Coke, 
 336; Edwards v. Harben, 2 Term R. 397; 
 Padget V. Priest, Id. 97; Campbell v. Tousey, 
 7 Cow. 64; White v. Mann, 26 Me. 361; 
 AYilson V. Hudson, 4 Har. (Del.) 168; Hub- 
 ble v. Fogartie, 3 Rich. Law, 413; Wliit v. 
 Ray, 4 Ired. 14; 1 Saund. 265, note. This 
 mere possession of the personal property of 
 a decedent, and consequent duty to preserve 
 and protect it, entitles the possessor to the 
 ordinary legal remedies against a mere 
 wrong-doer; that is, any one who interferes 
 with the property without a better right. 1 
 Oh. PI. (11th Am. Ed.) 151; 2 Greenl. Ev. § 
 
 037; Ai-uiory v. Delamlrie, 1 Smith, Lead. 
 Gas. 470, and notes; Oughton v. Seppings, 1 
 Barn. & Adol. 241. 
 
 It is, however, insisted that trover is not 
 maintainable upon such a title, because, in 
 that action, the plaintiff must allege and 
 prove that the goods for which he brings 
 suit are his, and that he is possessed of them 
 as of his own property. But whatever 
 doubts may have once existed on the subject, 
 we regard it as now well settled, that al- 
 though the action of trover is founded upon 
 the right of property, if this right exist rela- 
 tively, it need not be absolute; that it is 
 enough if the right of the plaintiff be better 
 than that of the defendant, whatever it may 
 be with regard to the rest of the world, and 
 that possession will be sufficient evidence of 
 right as against aU who have neither right, 
 nor rightful possession. See 1 Smith, Lead. 
 Cas. 473 et seq., where the authorities are 
 very fully collected; Duncan v. Spear, 11 
 Wend. 54; Harker v. Dement, 9 Gill, 7; 
 Jeffries v. Great Western Ry. Co., 34 Bug. 
 Law & Eq. 122; Craig v. Miller, 12 Ired. 375. 
 In Craig v. Miller, the principle was applied 
 to a case closely analogous to the present. 
 
 If the foregoing views are correct, it is 
 clear, that upon the hypothesis as to the 
 facts upon which the instruction was given 
 to the jury, Ann O'Brien, during her life- 
 time, had such a title to the money In que.s- 
 tion as would have enabled her to maintain 
 trover for its conversion by any one who had 
 no better right. 
 
 The plaintiff, as her administrator, has 
 the same right of action for a conversion 
 after her death, even though such conver- 
 sion was before his appointment; for the 
 title of an administrator, wlienevi'r appoint- 
 ed, takes effect from the death of the intes- 
 tate. Babcock v. Booth, 2 Hill, 181; Rock- 
 well V. Saunders, 19 Barb. 473; Welchman 
 V. Sturgis, 13 Q. B. 5.52; Whit v. Ray, 4 
 Ired. 14. 
 
 2. The only remaining inquiry is, whether 
 assuming that the money belonged to James 
 O'Brien at the time of his death, that he 
 died intestate, that no administration had 
 ever been granted upon his estate, and that 
 the defendant was the lawful guardian of 
 the sole next of kin of said James O'Brien, 
 the defendant as such guardian had a better 
 right to the money than the plaintiff. Of 
 com?se, his riglits as against the plaintiff are 
 coextensive with those of his ward, and the 
 Inquiry is as to what rights the next of kin 
 of an intestate have in the personal property 
 of the estate before administration. 
 
 It is well settled, both under our own and 
 the English statutes, that when a man dies 
 intestate, his personal property does not, 
 like his real estate, descend to his next of 
 kin or heirs-at-law. It remains in abeyance 
 until administration granted upon his estate, 
 and is then, as we have before remarked 
 vested in the administrator, as of the time 
 of the death of the intestate. No title vests 
 
 517 
 
Case No. 185 
 
 CULLEN ». O'HARA. 
 
 (§§ 135, 142 
 
 in his next of kin uutil his estate has been 
 administered upon, and then they talie the 
 surplus remaining after payment of the 
 debts of the intestate, and expenses of ad- 
 ministration each in his proportion, under 
 the statute of distributions. Rev. St. 1840, 
 c. 70; 2 Steph. Comm. 229, 233; 2 Bouv. 
 Inst. 141; 1 Williiims, Ex'rs, 546, 547; Ran- 
 dall V. Lang, 23 Ala. 751; Roorbach v. Lord, 
 4 Conn. 347; Whit v. Ray, 4 Ired. 14; Craig 
 V. Miller, 12 Ired. 375; per Parker, C. J., in 
 Jewett V. Smith, 12 Mass. 309. Until then, 
 an heir or next of kin of the intestate, al- 
 though having a right to his distributive 
 share, has no right to the possession of either 
 the whole or any specific portion of the- per- 
 sonal property. Nor, until distribution, can 
 he maintain any action in respect to it, un- 
 less it be founded upon his own actual pos- 
 session, and against a mere wrong-doer. 
 Muir V. Orphan Asylum, 3 Barb. Ch. 477. In 
 fact, his rights of possession and of action 
 in respect to the personal property before 
 distribution, are neither greater nor less than 
 those of a mere stranger. It is claimed that 
 a contrary doctrine is established by Hyde 
 V. Stone, 7 Wend. 354. There a son was al- 
 lowed to maintain trover for personal prop- 
 erty of which his father had died possessed 
 at least nineteen or twenty years before, 
 there being no direct evidence as to whether 
 there had been administration, but it appear- 
 
 .518 
 
 ing that the defendant had, on two occasions, 
 admitted the plaintiff's right to the property. 
 Undoubtedly that case was correctly decid- 
 ed upon its own peculiar circumstances. 
 The admissions of the defendant rendered 
 other proof of the plaintifC's title unneces- 
 sary. We do not regard the case as decid- 
 ing that the next of kin have any right to 
 the possession of the personal property of an 
 intestate before administration and distribu- 
 tion, and if it did, we should be compelled 
 to disregard It as contrary to well settled 
 .principles. 
 
 For the foregoing reasons, a majority of 
 the court are of the opinion that there was 
 no error either in the refusal of the court be- 
 low to charge as requested, or in so much of 
 the charge given as was adverse to the de- 
 fendant. The judgment below must there- 
 fore be aflBrmed with costs. 
 
 There is much seeming hardship in this 
 result, if the money in controversy really be- 
 longed to the estate of James O'Brien, but 
 this hardship the defendant might have 
 easily avoided by taking out letters of ad- 
 ministration upon the estate. 
 
 WING, GREEN, MARTIN, and BACON, 
 concurred. PRATT and COPELAND, dis- 
 sented. JOHNSON did not participate in the 
 decision, having decided the cause in the 
 court below. 
 
8 1^:6) 
 
 WHALE V. BOOTH. 
 
 Case No. 186 
 
 WHALE V. BOOTH. 
 
 (4 Term R. 625, note.) 
 
 King's Bench. 2u Geo. HI. 
 
 Action against the sheriff for a false return. 
 Verdict for the plaintiff, damages £35, at all 
 events, and a farther verdict for £308 sub- 
 ject to the opinion of the conrt on a case 
 reserved. 
 
 William Woodham, in his life-time, and at 
 the time of his death, was indebted by bond 
 ro the plaintiff in the penal sum of £800 con- 
 ditioned for the payment of £400 with in- 
 terest William Woodham died three years 
 ago, leaving his two sons William and John 
 his executors, who on his death possessed 
 themselves of the stock on his farm, and 
 ■other personal effects to a much greater 
 amount than the money due on the bond. 
 The plaintiff obtained judgment for the said 
 sum, and £35 for costs. On a fieri facias sued 
 out, the sheriff returned nulla bona. It ap- 
 peared in evidence tliat the executors were 
 Indebted to their uncle to the amount of £800 
 and confessed judgment; upon which a fi. 
 fa. issued; and goods were levied both of 
 the testator and of the executors for satis- 
 faction of that judgment. The case stated 
 that the uncle knew the goods levied were 
 the goods of the testator. The question was 
 whether under the circumstances of this case 
 the executors had so far conveyed away 
 the goods of the testator as to deprive the 
 plaintiff of levying her debt upon the said 
 goods. 
 
 Bond, for plaintiff. Garrow, for defendant. 
 
 LORD MANSFIELD, C. J., said: The gen- 
 wal rule both of law and equity is clear, 
 that an executor may dispose of the assets 
 of the testator; that over them he has an 
 absolute power, and that they cannot be 
 followed by the testator's creditors. It would 
 
 be monstrous, if it were otherwise; for then 
 no one would deal with an executor. He 
 must sell in order to effect the will; but 
 who would buy if liable to be called to an 
 account? It is also clear, that if at the time 
 of alienation, the purchaser knows they are 
 assets, this is no evidence of fraud; for 
 all the testator's debts may have been al- 
 ready satisfied; or if he knows that the debts 
 are not all satisfied, must he look to the appli- 
 cation of the money? No one would buy on 
 such terms. There is one exception indeed, 
 where a contrivance appears between the 
 purchaser and executor to make a devastavit. 
 But nothing of that sort appears here; for the 
 alienation is by execution and a bill of sale. 
 The testator died three years before this 
 transaction; and if the executors paid all 
 demands, the assets belong to them. No 
 demand was made by the plaintiff during 
 all that time; and long before any demand 
 was made, a fair creditor of their own sued 
 out execution. As to the fraud there is none 
 It is stated, indeed, they knew the goods 
 were the goods of the testator: but that will 
 not make a fraud, as it is not stated that 
 they knew the debts were unpaid. It is 
 true that the executors might have disputed 
 the seizing of the goods which he had as 
 executor; but they did not object. On the 
 contrary, by being a party to the bill of sale, 
 they assented to it; and this bill of sale so 
 assented to is equal to a purchase; and is 
 the same as an alienation by the executors. 
 
 WILLES and ASHHURST, JJ., concurred. 
 
 BULLER, J. The case of Gifford and 
 Nugent is not unapposite to the present. 
 What is it that constitiites a devastavit? 
 Not merely that they knew the goods so dis- 
 posed of were assets, but that they also 
 knew that there were debts unpaid. 
 
 Judgment for the defendant. 
 
 51!) 
 
Case No. 187 
 
 M'LEOD V. DUUMMOND. 
 
 (§ 136 
 
 M'LEOD V. DRUMMOND. 
 
 (17 Ves. 152.) 
 
 High Court of Chancery. 1810. 
 
 Samuel Romilly, Mr.. Fonblanque, and Mr. 
 Cooke, for appellants. Mr. Richards, Jlr. 
 Hart, and Mr. DowdesweU, in support of the 
 decree. 
 
 THE LORD CHANCELLOR. This case 
 appears to have been considered with gi-eat 
 attention by the master of the rolls, who, 
 after two arguments, pronounced the judg- 
 ment with a strong conviction that it was 
 right. That circumstance alone would, from 
 the deference that I know to be due to his 
 judicial opinions, induce me to look through 
 the authorities with great care; a duty 
 which is the more incumbent on me, as I 
 am not able to reconcile the cases, as they 
 have been stated at the bar. 
 
 There is no doubt that the power of an ex- 
 ecutor over the property he takes from the 
 testator is vei-y large, both at law and in 
 equity: bvit that is for the purpose of en- 
 abling him to execute his trust, and to pre- 
 vent the general inconvenience of implicat- 
 ing and entangling third persons in inquiries 
 as to the application he may propose to make 
 of the money produced by the conversion 
 of the assets. If, therefore, the transaction 
 is no more than a sale of part of the assets 
 for money advanced at the time, the vendee 
 can never be affected by proving the execu- 
 tor's intention at the time to misapply the 
 produce; or, if he had it not originally, that, 
 afterwards taking up that intention, he did 
 actually misapply the produce. A third per- 
 son, if there is no more in the ti'ansaction, 
 would be fully justified in assuming, that the 
 sale was for those purposes for which the 
 law gives an executor the power of sale. 
 In a great variety of cases, also, an executor 
 must be taken, at the hazard, not of the 
 person dealing with him, but of the cestuy 
 que trust, to be entitled even to pledge the 
 assets. The true question is this: whether 
 there must be, what some of the cases import, 
 fraud and circumvention, by the person deal- 
 ing with the executor, for his own benefit: 
 or, on the other hand, if there is direct evi- 
 dence that the executor is going to misapply 
 the produce, whether the other party can 
 safely deal with him. 
 
 The doctrine, stated in the case of Whale 
 V. Booth,' goes a length to which I certainly 
 am not prepared to follow even Lord Mans- 
 field. That was the case of executors in- 
 debted; and the creditor, in order to obtain 
 satisfaction of his debt, took in execution 
 bona propria, and also bona testatoris, 
 known to him to be such. Lord ilansfield 
 puts the validity of the execution, not upon 
 the legal property of the executors, but upon 
 the executors joining in the bill of sale; and 
 says, that such is the power of an executor, 
 
 ' 4 Term R. 625, note a. 
 520 
 
 that, though it is apparent, on the face of 
 the transaction, that he is about to apply the 
 assets to a purpose foreign to the will, yet 
 a person, with that knowledge, is justified in 
 dealing with him upon the supposition that 
 all the debts ai-e paid;, or, that the testator 
 was or might be, indebted to the executor 
 in that amount. 
 
 If a person, dealing with an executor, is 
 safe on that ground, as it is possible that in 
 the arrangement of all the affairs the debts 
 may be paid, or the testator may be indebt- 
 ed to the executor, how can the question up- 
 on the executor's right to :issign or pledge 
 the assets, arise? The person dealing with 
 him must be safe in every case. The deci- 
 sions of Lord Thurlow and the master of 
 the rolls are not consistent with that. The 
 distinction between an application of the as- 
 sets to the satisfaction of an antecedent pri- 
 vate debt of the executor, and a pledge or 
 assignment upon an advance at the time, 
 appeared to them essential: both inclining to 
 the opinion, that in the former case, the as- 
 signment or pledge would be considered as 
 made with a view, and for a purpose, not 
 connected with the administration of assets; 
 but money, advanced at the time, may be, 
 and, I admit, is, prima facie, but no further, 
 to be considered as advanced for the purpose 
 of paying the debts. 
 
 Admitting that distinction, the question 
 must be, whether there is not in the trans- 
 action strong and pregnant evidence that it 
 is, not what prima facie it is to be consid- 
 ered, an advance for the debts, but for a 
 different purpose. Suppose other persons, 
 not Ross and Ogilvie, had been the executors, 
 and had applied to the bankers to give Ross 
 and Ogilvie credit for £5,000 in account; of- 
 fering bonds, the testator's property: the 
 construction, according to Lord Mansfield's 
 opinion, must be, that the transaction is 
 right; and Ross and Ogilvie must be under- 
 stood to have lent, or engaged to lend, the 
 executors £5,000; which sum must be supposed 
 to have been applied for the purposes of the 
 will; and the executors must therefore have a 
 right to pledge the assets, not for any ap- 
 parent purpose of the will, or for payment of 
 the debts; but for the discharge of that sum, 
 which those who lent it were authorized to 
 suppose was so advanced, and applied. If 
 the court is thus to strain in favour of per- 
 sons receiving the testator's property, known 
 to be such, and at the moment not transfer- 
 red for the purpose of administration, 
 through every argument that ingenuity, un- 
 supported by any fact, can supply for their 
 safety, the effect must be, that the question 
 cannot arise. 
 
 This case, however, goes further. This is 
 a deposit, not merely of the testator's prop- 
 erty, but upon a credit, given to the account 
 of Ross and Ogilvie, who happen to be ex- 
 ecutors, not as executors: a credit, which 
 could not by possibility almost be given to 
 them in that character; depositing, not the 
 
g 136j 
 
 M'LEOD 0. DHUMMOND. 
 
 Case No. 1S7 
 
 testator's property only, but at the same 
 time, a great variety of valuable subjects, 
 their own property: a deposit, apparently 
 for their own credit, together with tlieir own 
 property, of this property; which ought not 
 to be the subject of deposit for their own 
 debt. Still, upon Lord llansfleld's principle, 
 that for the safety of the party these infer- 
 ences are to be drawn, it may be contended, 
 that the executors, having paid debts, may 
 have a right to raise money upon the assets; 
 and the addition of their own property, as 
 a further deposit, cannot affect their right. 
 The true question however is, whether, if in 
 the instance of a plain sale, or a pledge, the 
 party, advancing the money, is safe by the 
 effect of the Inference, and, to fix him, you 
 must show, that the ti'ansaction is not what 
 it appears to be, it must not on the other 
 hand be taken to be, if it appears to be, an 
 application of the assets for the private pur- 
 poses of the executors, with the knowledge 
 of the party dealing with them, unless upon 
 inquiry circumstances appear, showing, that 
 the transaction really is not what prima facie 
 it is. 
 
 Upon these views this is a case of exti-eme 
 Importance. I must take great care, on the 
 one hand, not to cramp the powers of ex- 
 ecutors: but, on the other, if that principle 
 is to go the length of permitting them to 
 pledge the assets to every banker, or every 
 man, who will take them, apparently for 
 their own purposes, the effect of such a rule 
 must be, that they may do what they please. 
 Attending to the authorities upon this sub- 
 ject, the gi-eat names of those by whom they 
 were delivered, and the difficulty of reconcil- 
 ing them as they are stated, T must particu- 
 larly examine the circumstances of this case, 
 and the reports of the others, to which I 
 have alluded. 
 
 THE LORD CHAXCELLOR. The plain- 
 tiffs in this cause represent themselves as 
 executors merely; not stating any express 
 trust upon which they held the personal es- 
 tate of the testator. The assignees of the 
 bankrupts are not before the court. The 
 money transactions of the bankrupts with 
 the defendants, were not in the char- 
 acter of executors, but as carrying on the 
 business of army agency in partnership. 
 The bill alleges, that the defendants knew 
 that the bonds were part of the testator's 
 estate at the time they took them as securi- 
 ties, for money lent to the bankrupts for 
 their own use; representing, that the plain- 
 tiffs, from the inconvenience of their resi- 
 dence in Scotland, and their great personal 
 confidence in the bankrupts, had omitted to 
 obtain probate. The trusts of the will, and 
 the parties interested under them, are not 
 stated. 
 
 The answer of the bankers represents, gen- 
 erally, a variety of dealings between them 
 and Ross and Ogilvie; the latter depositing 
 from time to time securities of their own; 
 
 those deposits being delivered up, as the 
 sums borrowed were paid off: upon subse- 
 quent loans from time to time the same se- 
 curities being again pledged; and neither 
 from the answer, or the more authentic de- 
 tail of facts in the master's report, can I 
 collect what is the state of the account, in 
 respect of which these deposits were made. 
 The deposits were to be applied in account to 
 the discharge of the very sums advanced on 
 their credit. If the sums, in respect of which 
 the deposits were made, have been paid, or 
 partly paid, to that extent, there is an end 
 of the deposit. The fact, if doubtful, ought 
 to be ascertained; and, the deposit in one or 
 two instances, consisting of the testator's^ 
 property with their own, if the whole depos- 
 it was of greater value than the debt, in re- 
 spect of which it was made, an equity arisef-. 
 under which, those who are entitled to the 
 testator's estate may effectually contend, 
 that his estate, if bound by tlie deposit,, 
 should be relieved by the previous applica- 
 tion of the property of Ross and Ogilvie, de- 
 posited at the same time. 
 
 The answer of the bankrupts states the 
 material circumstances, that they were the 
 only acting executors; and as such, kept 
 the accounts between themselves and the es- 
 tate; that they were frequently in advance^ 
 for the estate; and had therefore made re- 
 peated deposits of the testator's property in 
 the way that has given rise to this cause. 
 
 If there is any ground for supposing, that 
 the defendants have not now the same de- 
 mand stibsisting as at the period of the ad- 
 vances, that by the effect of subsequent ac- 
 counts and dealings, the transaction doe* 
 not stand under circumstances precisely the 
 same as at the time of the deposit, some in- 
 quiry might be proper; with the view to as- 
 certain, whether the property deposited is 
 still liable to be held; on the ground, that 
 the very sums, in respect of which the de- 
 posit was made, or part of them, are still 
 due; and, if the value of the deposit, com- 
 bined of the property of Ross and Ogilvie, 
 and of the testator's estate, would over-pay 
 the sum for which it was made, to deter- 
 mine, whether, admitting the testator's es- 
 tate to be bound by the act of the execu- 
 tors, those who are entitled under the wiU, 
 have not an equity to insist upon the ap- 
 plication of the property of the executors 
 in the first instance. 
 
 Upon the face of the memorandum, en- 
 dorsed upon the bond in 1796, it was part 
 of the testator's personal estate: that mem- 
 orandum importing, that it would require 
 an assignment from them, as executors; but 
 also engaging to assign it, as from them- 
 selves; consistent therefore with the sup- 
 position, that they had in some way acquired 
 the equitable interest in it. One circum- 
 stance has great weight with me; that this 
 is not a case of executors, applying, with 
 the testator's property in their hands, and 
 raising money upon a deposit or a sale of 
 
 521 
 
€ase No. 187 
 
 M'LEOD V. DRUMMGND. 
 
 (§ 136 
 
 tliat property; in which case it may be said, 
 public convenience requires, that they should 
 be supposed to receive it for the purpose to 
 which they ought to apply it: but two in- 
 dividuals, each happening to be an executor, 
 but also carrying on a business in London, 
 amder the known firm of Ross and Ogilvie, 
 apply to these banliers for money; not to be 
 in their hands probably, or by intendment, 
 for the uses of the will; neither of them 
 appearing to be dealing as executors; but, 
 having in their business as army agents an 
 account with the banliers, they deposit the 
 securities of the testator for the purpose of 
 procuring credit to themselves in that con- 
 cern, which they carried on, and enabling 
 themselves to continue their transactions in 
 that character with those banliers. 
 
 It may be useful on this occasion to advert 
 to the most material cases upon this subject; 
 not only as a collection of authority, to 
 which we may resort, but also as it will ena- 
 ble us justly to appreciate the value of sev- 
 eral general propositions, which appear laid 
 down in the most unqualified terms, as to 
 the power of executors in law and equity, 
 over the assets; and to ascertain, whether 
 those general doctrines are as true as they 
 are generally expressed, whether in the Eq- 
 uity reports, or in two principal cases In the 
 cotu:t of king's bench: Whale v. Booth,^ and 
 Farr v. Newman.' The first very material 
 case, Humble v. Bill,* was decided in this 
 *'ourt: but the decree, establishing the mort- 
 gage made by the executor, was reversed 
 In the house of lords; and that reversal, as 
 far as it can be supposed to furnish doctrine 
 upon the subject, by no means supports the 
 ■doctrine as to the power of executors, to the 
 oxtent in which it is expressed in text-writ- 
 <irs, and in some of the cases decided. The 
 term, part of the testator's estate, was not 
 specifically disposed of: but he charged it 
 with £2000 for his daughter and her chil- 
 <lrem The bill by the assignee of the mort- 
 gage, was resisted upon the general reason- 
 ing, that there was no occasion to sell for 
 payment of debts; and the plain tifE had no- 
 tice of the will: but the mortgage was estab- 
 lished by the deci-ee of this court on the 
 ground of the danger of interfering with the 
 power of executors over the assets; the 
 court observing, that if the executor sold in 
 prejudice of a residuary or specific legatee, 
 he might have his remedy against the execu- 
 tor; but could not follow the estate into the 
 bands of a purchaser: the court appearing 
 to conceive, that there was not any differ- 
 ence between a residuary or specific legatee; 
 and it has been held of late of no conse- 
 quence with reference to the power of execu- 
 tors, whether the personal estate is be- 
 queathed upon a trust or not. 
 
 The observation, falling from the court in 
 
 ' 4 Term R. 625, note. 
 = Id. 621. 
 
 *2 Vern. 444; 1 Browu, Par. Gas. 71. 
 .j22 
 
 the case of Crane v. Drake," shows, that the 
 reversal of that decree was not considered 
 satisfactory; and Sir Joseph Jekyll, in Ewer 
 V. Corbet," and Lord Alvanley, in Andrew v. 
 Wrigley,' express their dissatisfaction with 
 it: but in Mead t. Lord Orrery,' Lord Hard- 
 wicke is represented to have said, with ref- 
 erence to the reversal of the decree in Hum- 
 ble V. Bill, that "it would have been going 
 a great way to say, that making a subse- 
 quent mortgage should prevail against a pri- 
 or mortgagee; and, as being a charge upon 
 the profits of a printing office, it might be- 
 sides produce enough in time to pay both." 
 To what circumstances Lord Hardwicke was 
 then adverting I cannot collect: and I do 
 not think the first part of that passage ac- 
 curate; not giving a true state of the case, 
 nor consistent with his own previous state- 
 ment of it. This case is rather an authority 
 for the opinion Lord Kenyon seems to have 
 held, that a trust with regard to personal 
 property, may be so created, that a purchaser 
 would be bound to see to the application 
 of the money, than for some Intermediate 
 opinions between that date and this time. 
 
 In the next case, Crane v. Drake,' it is 
 stated, that the defendant had notice of the 
 plaintifC's debt: a circumstance, which has 
 been considered most material; and in the 
 subsequent case. Mead v. Lord Orrery, Lord 
 Hardwicke states from the Register's Book, 
 that the decree In Crane v. Drake, proceed- 
 ed upon the notice of the plamtifC's debt and 
 the evidence in the cause; and In Vin. Abr." 
 Lord Hardwicke Is stated to have said, that 
 the decree was founded upon particular 
 proof of fraud; which Vernon does not set 
 forth. A very important observation upon 
 that case was made by Lord Alvanley," so 
 just that it is not easy to withhold om- as- 
 sent: viz. "Can there be a stronger case 
 of a devastavit than an executor aliening 
 the property of his testator to pay his own 
 debts;" the alienee knowing at the time, that 
 debts of the testator were due? 
 
 The anonymous case, cited In Pagett v. Hos- 
 kins," is not the case of a residuary legatee: 
 a circumstance, in some subsequent cases 
 held to be of considerable weight. In Ewer 
 V. Corbet," the case of a specific bequest of 
 a term, Sir Joseph Jekyll carefully abstained 
 from stating, what would be the efCect of 
 notice of the will. If there were no debts, 
 and the purchaser knew i .at; or that all 
 the debts were paid. Bm-ting v. Stonai-d," 
 contains similar doctrine. The case of El- 
 
 » 2 Vern. 616. 
 
 °2 P. Wms. 148. 
 
 ' 4 Brown, Ch. 125, 137. 
 
 '3 Atk. 235. 241. 
 
 »2 A'eni. 616. 
 
 "18 Aiu. Abr. 121. 
 
 " Andrew v. AViigley, 4 Brown, Ch. 137. 
 
 ^ Finch. Prec. 431. 
 
 ^ 2 P. \\'ms. 148. 
 
 "2 P. Wms. 149, 
 
8 1^6) 
 
 M'LEOD V. DKUMMOND. 
 
 Case No. Ih7 
 
 Hot y. Merriman,'" is very impoi-taut ia it- 
 self; and as in Bonney v. Ridgard," Lord 
 ICenyon said, ho took It as his text. The 
 principle is there stated, and the reason of 
 it; and in Barnardistou's Report, it is said, 
 that personal estate maj' be clothed with 
 such a particular ti-ust, that the court might 
 require a purchaser to see the money proper- 
 ly applied. Lord Kenyou agrees with the 
 principle of Sir Thomas Sewell, which it is 
 very difficult to reconcile with Nugent v. 
 GifCord, and Moad v. rx>rd On-ery; and 
 would have acceded to that doctrine, if 
 length of time and the other circumstances 
 had not barred the relief that might have 
 "been had against the pm'chaser. 
 
 In Nugent v. Gifford," as it appears in 
 Atkyns, Arundel was the executor: but there 
 was also another material circumstance; 
 that he was the sole residuary legatee." 
 The interest of the testator in the term was 
 only an equitable interest. It is certainly 
 ti-ue, as there laid down, that a creditor has 
 no lien upon the assets: but, whether it Is 
 clear, that, after all the debts have been 
 paid the residuai-y legatee, who can call 
 for a ti-ansfer in equity, has not a lien, is a 
 •difterent consideration. The universal lan- 
 guage is, that after debts paid the assets 
 are the executor's own; which may, or may 
 not, be: but if, as the legal property is in the 
 ■executor, the equity of the residuary lega- 
 tee is not to be noticed, those expressions 
 must be taken with some allowance. The 
 general exception of fraud receives a con- 
 struction from the reasoning that follows: 
 ■excluding the case of a purchaser, who, 
 knowing there ai-e debts, does not place any 
 thing in the hands of the executor, as an 
 •equivalent, to make up the assets: or, if 
 any thing does pass to the executor, it is re- 
 ceived with the intention of both parties, 
 that it shall not be applied as assets. Lord 
 Hardwicke observes, that in Crane v. Drake 
 there was express notice of the plaintiff's 
 debt; and in the case before him there was 
 no notice of any debts due from the testator. 
 That case therefore was decided, not upon 
 such general doctrine as we find relating to 
 this subject, but on these circumstances; that 
 the executor, being also residuary legatee 
 sold the term to an individual, having no no- 
 tice that there was any debt; who, there- 
 fore, might reasonably conceive, that the 
 fund was his to dispose of. The only sub- 
 stantial ground of distinction from the con- 
 sideration being an antecedent debt, is as 
 evidence that it is not for the purposes of 
 the will. If Lord Hardwicke conceived him- 
 self to have decided these cases upon gen- 
 eral principles, he appears, in Taner v. Ivie," 
 
 "2 Atk. 41; 3 Barnard, 78. 
 "Cox, 145. 
 " 1 Atk. 463. 
 
 " This appears, not in the report in Atkyns, 
 but in the statement, in 4 Brown, Ch. 136. 
 "2 Ves. Sr. 466, 469. 
 
 so much startled by the consequences, as to 
 wish to reti-act; putting them entirely upon 
 the circumstances. 
 
 The case of Mead v. Lord Orrery,^" has 
 very particular circumstances, and much 
 general doctrine: it .is evident, however, 
 from Taner v. Ivie, that Lord Hardwicke 
 had not made up his mind, that this 
 was to depend upon general doctrine. The 
 date of the transaction is very material. 
 The assignment of the mortgage was in 1726, 
 fourteen years after the testator's death; and 
 Lord Hardwicke relies upon the circum- 
 stance, that the executor was one of the re- 
 siduary legatees; as in Nugent v. Gifford lie 
 was the sole residuary legatee. Abstracted 
 from those circumstances, that the executor 
 was one of the residuary legatees, that the 
 transaction was fourteen years after the res- 
 idue would, in the ordinary course, have 
 been divided, and that the other executors 
 represented, that the money, due on the 
 mortgage, was the proper money of the co- 
 executor, I agi-ee with Lord Kenyon, that it 
 is very doubtful, whether such a transaction, 
 devoting what upon the face of it was, and 
 must have been known to be, the testator's 
 property, to the purpose of giving secm-ity 
 for an individual, with reference to his exe- 
 cution of the office of receiver, would in this 
 court be permitted to stand. 
 
 The next case is Bonney v. Ridgard." and 
 it is impossible to deny, that Sir Thomas 
 Sewell in effect, and Lord Kenyon in terms, 
 shook the authority of Nugent v. Giftord and 
 Mead v. Lord Orrery; if those cases are sup- 
 posed to establish doctrine so general as 
 some of the dicta upon this subject import. 
 Lord Kenyon seems to accede to the propo- 
 sitions, stated in Elliot v. Merriman, but 
 also thought, that, though creditors might 
 follow the assets (not finding it necessary to 
 consider the case of legatees, and the distinc- 
 tions between pecuniary, specific, and residu- 
 ary, legatees) there were strong circumstan- 
 ces of evidence, that no fraud was intended; 
 and, though it was not easy to conclude, that 
 the transaction was right, yet length of time 
 and acquiescence would be an answer to a 
 demand, to which, if made at an earlier peri- 
 od, no answer could have been given and 
 upon the length of time alone he so decided. 
 
 Upon the case of Whale v. Booth, as a de- 
 cision in a court of law, I do not presume to 
 make any observation. The propositions, 
 stated in the judgment, may be understood 
 as general doctrine: but I cannot admit, that 
 there is no exception either in law or equity. 
 Lord Mansfield states, that an execution, per- 
 mitted by the executors for payment of their 
 own debt, is equal to a purchase; and the 
 same as an alienation by the executors: but 
 it remains to be considered, whether these 
 general propositions are borne out by the au- 
 
 =^"3 Atk. 235. 
 
 =' 1 Cox, Ch. 145; stated 4 Brown, Oh. 130, 
 138. See, also, 2 Brown, Ch. 438. 
 
 523 
 
Case No. 187 
 
 M'LEOD V. DRUMMOND. 
 
 {§ 136 
 
 thorities in equity: for instance, that in a 
 particular case a residuary legatee, being 
 also executor, disposes of the assets in dis- 
 charge of his own debt, to a man having no 
 notice of debts unpaid: whether this is more 
 than general doctrine, .founded on the partic- 
 ular circumstances of each case. 
 
 With regard to the case of Scott v. Tyler,=' 
 I can confirm the assertion, that the judg- 
 ment, staled by Mr. Dicliens, contains Lord 
 Thurlow's opinion, intended to have been de- 
 livered as his judgment, if a compromise had 
 not talien place. The question would have 
 been more accurately expressed by stating, 
 that the bonds were pledged by the executrix 
 to secure, not only a private debt of her own, 
 but also future advances, to be made to her, 
 not as executrix, but in her private trade; 
 and, if an executor cannot deposit securities 
 for future advances, to be made to him, not 
 in his character of executor, but as a trader, 
 it is diflBcult to hold, that he may malie the 
 deposit for present advances, not as execu- 
 tor, but as a customer of that bank in his 
 own individual trade. Lord Thurlow pro- 
 ceeds to state, that the ground must be fraud 
 in the bankers, concerting with the executrix 
 a devastavit; and misapplication of that part 
 of the testator's effects, to disappoint the 
 specific legatee; and observes, that it is of 
 great consequence that no rules should be 
 laid down here, which may Impede execu- 
 tors in their administration, or render their 
 disposition of the effects unsafe, or uncertain 
 to the purchaser; that his title is complete 
 by sale and delivery: what becomes of the 
 price is no concern of his; and this observa- 
 tion applies equally to mortgages and pledges, 
 even to the present instance, where assigna- 
 ble bonds were pledged without assignment; 
 also, where the transaction is with one of 
 many executors; for each is competent. 
 
 These passages imply, that upon the pledge 
 of a bond, an assignable chose in action, by 
 one executor, the court must have found the 
 means of making it effectual against all, if 
 there was no fraud: but there is a great dif- 
 ference between directing an instrument to 
 be delivered up, where, upon the circumstan- 
 ces under which it was deposited, that would 
 be too much, and in equity calling upon that 
 person and others to make it effectual. In 
 the case before me, the court is required to 
 order these bonds to be delivered up. 
 
 Lord Thurlow then proceeds to state the 
 effect of fraud; that, if one concerts with an 
 executor, by obtaining the testator's effects at 
 a nominal price, or at a fraudulent under- 
 value, or by applying the real value to the 
 purchase of other subjects for his own be- 
 hoof, or in extinguishing the private debt of 
 the executor, or in any other manner (very 
 material words) contrary to the duty of the 
 office of executor, such concert will involve 
 the seeming purchaser, or his pawnee, and 
 
 '2 Brown, Ch. 431; 2 Dickens, 712. 
 
 make him liable for the full value; and on 
 both grounds, the defendants must deliver 
 up the bonds, and account for the interest re- 
 ceived upon them. 
 
 Another groimd is then stated, which per- 
 haps upon the decisions it would be difficult 
 to maintain; except as Lord Kenyon intro- 
 duced it; that the bonds, as a specific legacy, 
 were legally vested in the executors, as trus- 
 tees for the plaintiffs; and the possession of 
 the Hankeys without assignment gave them 
 but a posterior equity; admitting, however, 
 that, though that equity was posterior, if the 
 executors had dealt not contrary to their 
 duty, the court would not disturb the pledge; 
 not deciding, whether it should be aided. 
 The conclusion from that judgment, unless a 
 distinction prevails between pecuniary, spe- 
 cific, and residuary, legatees, is, that tlie se- 
 curity cannot be held, where the person 
 dealing with the executor knows the subject 
 is the property of the testator; as those par- 
 ties must have known the bonds to be; kept 
 as the testator's property; not converted for 
 three years; not made tlie subject of distri- 
 bution; not handed over in payment of debts; 
 nor taken by the executor upon any state- 
 ment of his own account, which might have 
 given liim a demand to that amount upon the 
 assets but, wliere it appeared to be the prop- 
 erty of the testator, unaffected as such for 
 three years; handed over as security for a 
 debt; an act clearly not consistent with the 
 duty of the executors; and also in prospect 
 of future advances ; with regard to which, if 
 they could be made under such circumstan- 
 ces as would afford a presumption of an in- 
 tention to apply the money to the debts, or 
 to the fuither objects of the will, yet, as to 
 those future advances, to be made, not in 
 a manner conformable to the duty of the ex- 
 ecutrix, but for her private advantage in her 
 trade. 
 
 After this, another extremely material case 
 occurred; Farr v. Newman,'^ upon which the 
 judges uiffered. Mr. Justice Grose, in his 
 judgment, states the general propositions 1 
 have noticed, as generally as they are stated 
 any where; considering that case as re- 
 versing, or going a great way towards re- 
 versing. Whale V. Booth. It gives me great 
 satisfaction, that the majority of the com-t 
 decided against the opinion of Mr. Justice 
 Buller, that the effects of the testator might 
 be taken in execution for the debt of the ex- 
 ecutor: a proposition which, particularly with 
 reference to the arguments by which it waa 
 maintained, appears to me to go this length; 
 that he who comes first must be first served. 
 What, I ask, would be the case of a cred- 
 itor, who had used all the diligence he could: 
 a creditor of the executor, having got judg- 
 ment in the teim before the testator's death, 
 might, according to that opinion, execute that 
 judgment upon the effects of the testator, as 
 
 == 4 Term R. 621. 
 
 524 
 
§ 136) 
 
 M'LEOD V. DRUMMOND. 
 
 Case jSTo. 1c7 
 
 well as the executor, long befovt' any cioclitor 
 of tlie testator could by possibility get judg- 
 ment. Mr. Justice Ashhurst found a diffi- 
 culty in giving up the case of Whale v. 
 Booth; and Lord Kenyon appears to me to 
 carry the doctrine to a much greater extent 
 than his own decisions in this court will au- 
 thorize. Even that case of Farr v. Newman 
 may, I apprehend, without some comment 
 upon the propositions it contains, lead exec- 
 utors into danger. 
 
 The last case, Hill v. Simpson," is also 
 very material; on which the master of the 
 roUs observes, justly, that for the first time 
 he was of opinion, that a general pecuniary 
 legatee had a right in equity to follow the 
 assets; Lord Hardwicke having frequently 
 considered it as doubtful, whether, even in 
 the excepted cases, any on6 except a creditor 
 or a specific legatee could follow them. 1 
 concur in the principle laid down by the mas- 
 ter of the roUs; and cannot conceive why, 
 in a case falling within the exception, a cred- 
 itor and a specific legatee should be able to 
 follow the assets, and not a pecuniary or 
 residuary legatee. The case of a residuary 
 legatee is stronger than that of a pecuniary 
 legatee. It is said in Farr v. Newman, that 
 the residuary legatee is to take the money, 
 when made up: but I say, he has in a sense 
 a lien upon the fund, as it is; and may come 
 here for the specific fund. If it is wrong, 
 as against a creditor, for the executor to ap- 
 ply the fund in payment of his own debt, 
 why is it not equally wrong, both in law 
 and equity, to allow a third person, will- 
 fully and fraudulently, to take from the ex- 
 ecutor that money which in his hands the 
 residuary legatee ca-T. call for as the specific 
 property of the testator? 
 
 Then came this case, now before me on 
 appeal. It seems to have been considered 
 sufficient to establish, that the transfer was 
 not a pledge for an antecedent debt. I can- 
 not hold, that it is competent to an executor, 
 even against a pecuniary or residuary lega- 
 tee, to go to a banker, immediately after 
 the testator's death, and to pledge the prop- 
 erty of the testator, in consideration of a 
 loan to be then made: if the circumstances 
 show, that the banker knew he was lending 
 the money to that person in such a manner 
 not to be applied conformably to the duty of 
 the executor; or. as in the instance of the 
 future advances to Mrs. Tyler, though bona 
 fide, not in the character of executor, but as 
 a trader, without any connexion with that 
 character. If there was nothing more in 
 the case, it is very difficult to admit the 
 proposition, that the banker could have re- 
 ceived a deposit of these bonds, knowing 
 them to be such, from these persons, as se- 
 curity for a debt then to be contracted; but 
 the nature of the contract itself, the cir- 
 cumstance that their own property was also 
 
 " 7 Ves. 152. 
 
 delivered over, and other circumstances, 
 showing, that the loan was made to them, 
 not as executors, but as army agents. The 
 master of the rolls truly observes, that there 
 is a gi'eat difference between advancing mon- 
 ey at the time upon securities, and taking a 
 security in discharge of an antecedent debt: 
 but that is by no means conclusive. The ar- 
 g-viment is carried nearly to this extent; 
 that a person, lending money at the time up- 
 on the deposit of the securities, can hardly 
 be supposed to mean fraud, as there is no 
 temptation to fraud. Admitting, however, 
 that the bankers had no other motive for the 
 advance upon such a deposit than they gen- 
 erally have, if it appears in the transaction 
 itself, that the borrower is about to apply 
 the money, so raised on the testator's prop- 
 erty, to objects with which his afCairs have 
 no connexion, I should hesitate to say, that, 
 as the temptation was so slight, this court 
 would not examine whether that was not 
 a most inequitable transaction with refer- 
 ence to the persons entitled to that prop- 
 erty. 
 
 I think, however, that this decree ought to 
 be affirmed. The circumstances, that make 
 it dangerous to disturb the decision, are 
 these. The testator died in 1786; and the 
 bill was filed, in 1804, by persons not stat- 
 ing any interest in themselves in this prop- 
 erty; hardly stating a duty to be executed 
 on their part, as executors, for some per- 
 sons Interested in it, not appearing on the 
 record; representing, that the plaintiffs 
 placed their confidence in these two exec- 
 utors, residing in England, in this sense; 
 that, during that period, they would not 
 have any concern in the administration, or 
 even prove the will until after the bank- 
 ruptcy. Fm-ther, this is a case, in which 
 Ross and Ogilvie being the only acting ex- 
 ecutors, no transaction, with reference to 
 the testator's property, took place until the 
 end of the year 1792, six years and a half 
 a:fter the testator's death: the parties repre- 
 senting, that an accovmt was kept between 
 themselves and the estate; upon which they 
 were, or might be, frequently in advance. 
 If there are any other persons interested 
 in this property, they are not before me: if 
 any, upon whom a duty was imposed with 
 reference to it, they never interfered, from 
 the testator's death, in 1786, to 1801: a pe- 
 riod of fourteen years; in which these re- 
 peated pledges were made. This is also a 
 case, in which the bankers had not, as in 
 Scott V. Tyler, any previous knowledge of 
 the property; which in that case remained 
 in their hands from the time of the deposit, 
 unconverted for any purpose, until taken 
 out for that purpose: but this property was, 
 six years and a half after the testator's 
 death, transmitted by these executors in 
 pledge; returned some years afterwards; 
 again pledged, the following year; and again 
 returned. Has tliis comt ever said, that a 
 
Case No. 187 
 
 M'LEOD V. DRUMMOND. 
 
 (§ 13& 
 
 deposit under such circumstances, could be 
 distui'bed, at the instance, not of legatees of 
 any liind, but of co-executors, who did not 
 Interfere in the affairs of the testator during 
 fourteen years? This appears to me to be a 
 much sti-onger case than any in which this 
 com-t has interposed against the act of an 
 executor: and upon these grounds I do not 
 disturb this deposit: but I do not decide, or 
 give any opinion, how far, if the title to 
 these bonds was nothing more than deposit, 
 any thing can be done to improve the title, 
 :,26 
 
 with reference either to these executors, or 
 other persons interested in the estate, who 
 are not before me: if they were, I should be 
 obliged to consider the principles stated by 
 the master of the rolls in BUiot r. Merri- 
 man,'"' by Lord Kenyon in Bonney v. Ridgard, 
 and by Lord Alvanley, in Andrew v. Wrig- 
 ley, the only material case that I have- 
 omitted. 
 The docice wus affirmed. 
 
 =•■ Barnard, Ch. 78; 2 Atk. 41. 
 
138) 
 
 DEVON 0. PAWLETT. 
 
 Case No. 18!S 
 
 DEVOX V. PAWLETT. 
 
 (11 Vin. Abr. 133, pi. 27.) 
 
 M. de Devon, the plaintiff, brought an ac- 
 tion upon the case, as administratrix of 
 Sampson de Vese de Lake v. Pawlett, upon 
 a promise made to him to pay upon his mar- 
 riage to the Intestate or his order, his heirs 
 or executors, the sum of 50 guineas, and did 
 not aver that the money was not paid to the 
 intestate's heir; the plaintiff had judgment 
 upon nihil dlcit, whereupon the defendant 
 brought a writ of error In the exchequer- 
 chamber, where this case was twice argued; 
 the counsel for the plaintiff in error insisted 
 that the declaration was bad, because by 
 the promise the money was made payable 
 to the intestate or his order, his heirs or ex- 
 ecutors, and the plaintiff had not averred 
 that it was not paid to his heir, to whom by 
 the very terms of the contract it was made 
 payable as well as to his executors. But 
 
 Cowper, Ld. Chancellor, Parker, Ch. J. de 
 B. R., and King, Ch. J. de C. B., resolved 
 that tlie declaration was good without such 
 averment, the thing contracted for being a 
 mere personalty; for by the law all person- 
 alties and rights to the personalties are 
 given to the executors or administrators, 
 as all realties and rights to realties are given 
 to the heir; the executors or administrators 
 being representatives of a man, in respect of 
 his personalties, in like manner as the heir 
 in respect of the realties; therefore if a man 
 .enters into an obligation to pay to another or 
 his heirs a sum of money, his executors or 
 administrators, and not hig heirs shall have 
 it; so if one enters into a recognizance ac- 
 cording- to 2o Hen. VIII. c. 6, the form 
 whereof as set down in the statute is sol- 
 vend' eidem J. haeredibus vel executoribus, 
 his executor, and not his heir, shall have the 
 benefit of it, and judgment was after en- 
 tered termino Mich. 1 Geo. in Scaccaria. 
 
 527 
 
Case No. 189 
 
 CIIAMI3EHLAIN" v. WILLrAMSON. 
 
 (§ 139 
 
 CHAMBERLAIN v. WILLIAMSON. 
 
 (2 Maule & S. 408.) 
 
 King's Bench. Feb. 11, 1814. 
 
 Assumpsit by the plaintiff as administra- 
 tor, upon a breach of promise of marriage 
 made to the intestate, laying the promise in 
 the usual way; and the plaintiff avers that 
 the intestate, confiding in the said promise, 
 &c., remained sole and unmarried until her 
 death, and was ready, &c., and although 
 she requested the defendant, &c., yet the 
 ■defendant did not when requested, or at any. 
 time, marry her, but refused, &c. And there 
 were several other counts varying the prom- 
 ise; but the declaration did not allege any 
 special damage, but concluded to the dam- 
 age of the plaintiff as administrator, &c. 
 Plea, non assumpsit. 
 
 At the trial before Bayley, ,1., at tbe last 
 assizes for the county of Gloucester, the 
 promise was proved, and it farther appeared 
 that the intestate kept a boarding-school, 
 which, it was agi'eed with the defendant, 
 that she should relinquish at Christmas, 
 1812, in order to be married. In the pre- 
 ceding November, however, the defendant 
 l)roke off all further intercom-se, and soon 
 afterwards the intestate's health began to 
 <lecline, and she was compelled to quit her 
 school, and died in the following May. The 
 learned judge doubted whether the action 
 were maintainable, but assuming for the 
 time that it was, he directed the jmy to 
 consider of the damages as if the action had 
 been by the intestate herself, for that what- 
 ever compensation in money she would have 
 been entitled to, by so much she would have 
 died the richer. The jury found a verdict 
 for the plaintiff, damages £200. 
 
 In Michaelmas term a rule nisi was ob- 
 tained for arresting the judgment, on the 
 STound that this action was not maintain- 
 able by the personal representative; or for 
 a new trial, on the ground of misdirection. 
 And upon the first point the statutes 4 Edw. 
 III. c. 7, "De Bonis Asportatis in Vita Testa- 
 toris," and 31 Edw. III. c. 11, were cited, 
 -and also Com. Dig. "Administration." B 13, 
 "that by the equity of these statutes an ex- 
 ■ecutor or administrator shall have every ac- 
 tion for a wrong done to the personal estate 
 of his testator." Latch. 168. But fliis, it 
 was said, is not a wrong to the personal 
 estate. And in Mordant v. Thorold, 1 Salk. 
 252, Cath. 133, it was resolved that the ad- 
 ministrator was not entitled to a scire facias 
 upon a judgment in dower obtained by his 
 Intestate, where she died before the damages 
 bad been ascertained on a writ of inquiry, 
 because the writ of inquiry being in the 
 nature of a personal action for the dam- 
 ages, it dies with the person. And as to the 
 misdirection, it was objected that the cri- 
 terion of damages could not be the same 
 as if the action had been by the intestate 
 herself, by reason that she would have been 
 
 -j28 
 
 entitled to damages for the loss of personal 
 comfort, and advancement in life, and also 
 for personal feelings; whereas the admini- 
 sti'ator could only be entitled in respect of 
 the damage to or deterioration of her per- 
 sonal estate. 
 
 Mr. Peake (with Dauncey) now showed 
 cause. Jervis and Abbott, contra. 
 
 LORD BLLENBOROUGH, C. J., said it 
 was a case of novelty, and importance in 
 Its principle, and that it had been ingen- 
 iously argued; the not finding any precedent 
 for such an action made it very fit that the 
 court should pause, in order to look into 
 the ca.ses. And LE BLANC, J., said that they 
 could not but recoUect that though the dam- 
 ages in actions of this sort were given strict- 
 ly as a compensation, yet they were almost 
 always considered by the jury somewhat in 
 poenam. 
 
 Cur. adv. vult. 
 
 LORD ELLENBOROUGH, C. X, on this 
 day delivered the judgment of the court in 
 substance as follows: 
 
 This was a motion in arrest of judgment 
 in an action brought by the plaintiff, as ad- 
 ministrator, for a breach of promise of mar- 
 riage made to the intestate by the defend- 
 ant. The declaration did not contain any 
 allegation of special damage; and the ques- 
 tion was, whether the action is maintain- 
 able by the personal representative. The 
 action is novel in its kind, and not any one 
 instance was cited or suggested in the argu- 
 ment of its having been maintained, nor 
 have we been able to discover any by our 
 own researches and inquiries, and yet fre- 
 quent occasions must have occui'red for 
 bringing such an action. This circumstance 
 imports at least an opinion not very favor- 
 able to this species of action. However, 
 that would not be a decisive ground of ob- 
 jection, if on reason and principle it could 
 strictly be maintained. The general rule of 
 law is, "actio personalis moritur cum per- 
 sona;" under which rule are included all 
 actions for injuries merely personal. Ex- 
 ecutors and administrators are the repre- 
 sentatives of the temporal property, that is, 
 the debts and goods of the deceased, but 
 not of their wrongs, except where those 
 wrongs operate to the temporal injury of 
 their persona] estate. But in that case the 
 special damage ought to be stated on tlje 
 record; otherwise the com-t cannot intend 
 it. If this action be maintainable, then 
 every action founded on an implied promise 
 to a testator, where the damage subsists in 
 the previous personal suffering of the tes- 
 tator, would be also maintainable by the ex- 
 ecutor or administrator. All Injuries affect- 
 ing the life or health of the deceased; all 
 such as arise out of the unskilfulness of 
 medical practitioners; the Imprisonment of 
 the party brought on by the negligence of 
 
§ 139) 
 
 CHAMBERLAIN v. WILLIAMSON. 
 
 Case No. 189 
 
 his attorney; all these would be breaches 
 of the implied promise by the persons em- 
 ployed to exhibit a proper portion of skill 
 and attention. We are not aware, how- 
 ever, of any attempt on the part of the ex- 
 ecutor or administrator to maintain an ac- 
 tion in any such case. Where the damage 
 done to the personal estate can be stated 
 on the record, that involves a different ques- 
 tion. Although marriage may be regarded 
 as a temporal advantage to the party as 
 far as respects personal comfort, stiU it 
 cannot be considered in this case as an in- 
 crease of the individual transmissible per- 
 sonal estate, but would operate rather as 
 an extinction of it; though that circum- 
 stance might have been compensated by 
 other advantages. Loss of marriage may, 
 
 ABB.WILLS — 34 
 
 under circumstances, occasion a strict pe- 
 cuniary loss to a woman, but it does not 
 necessarily do so; and unless it be expressly 
 stated on the record by allegation the court 
 cannot intend it. On the ground, therefore, 
 that the present allegation imports only a 
 personal injury, to which the administrator 
 is not by law, nor is he in fact shown to be, 
 privy, we are of opinion that, in the ab- 
 sence of any authorities, this administrator 
 cannot maintain this action. The cases 
 which were cited on the other side do not 
 appear to have such an immediate bearing 
 on the question as to require that they 
 should be reviewed and commented on. We 
 are of opinion that this judgment must be 
 arrested, and of course the motion for a new 
 trial is thereby disposed of. 
 
 529 
 
Case No. 190 
 
 KNIGHTS c. QUAELES. 
 
 (§ 13» 
 
 KNIGHTS V. QUARLES. 
 
 (2 Brod. & B. 102.) 
 
 , Common Pleas. June 14, 1820. 
 
 Assumpsit. The declaration stated that 
 before the time of maliing the promise there- 
 in contained, and in the life-time of the de- 
 ceased, the deceased had contracted with one 
 Savory for the purchase of certain premises 
 at Thetford, which Savory assumed to have 
 sufficient power and title to sell and convey 
 to the deceased; and thereupon, in the life- 
 time of the deceased, (in consideration of 
 the premises, and that the deceased, at the 
 special instance and request of the defend- 
 ant, had retained and employed the defend- 
 ant as his attorney and solicitor, to ascer- 
 tain and investigate the title of Savory to 
 the said premises, and to cause and procure 
 the same, and a good title thereto, to be duly 
 and effectually conveyed by Savory to the 
 Intestate as- purchaser, for certain fees to be 
 therefore paid by the intestate to the defend- 
 ant,) the defendant imdertook and promised 
 the deceased, in his life-time, to perform 
 and fulfil his duty in the premises. Breach, 
 that although it was the duty of the defend- 
 ant, by virtue of his retainer, to Investigate 
 carefully the title of Savory to the premises, 
 and to take due and proper care that a bad 
 title to the same should not be accepted by 
 the deceased, yet the defendant, not regard- 
 ing his duty In that behalf, but contriving 
 and fraudulently intending, etc., did not nor 
 would carefully investigate the title of 
 Savory in the premises, or take due or proper 
 care that a bad or insufficient title was not 
 accepted and received by Intestate, but on 
 the contrary the defendant wholly neglected 
 and refused to do so; and in the life-time of 
 the deceased the defendant, in violation of 
 his promise and undertaking, caused and 
 procured, etc., the deceased, without his 
 knowledge or consent, to accept and receive, 
 and the said deceased In his life-time did ac- 
 cordingly accept and receive, from Savory a 
 bad, defective, and insufficient title to the 
 said premises; and thereupon such title was 
 conveyed by Savory to the deceased in his 
 life-time, and the deceased paid Savory as 
 the consideration-money in that behalf 
 £2,000, by means of which the deceased, in 
 his life-time and until his death, held the 
 premises on a bad and insufficient title, and 
 530 
 
 was in his life-time wholly unable to sell or 
 dispose of the same. The count then alleged 
 special damage to the deceased and his per- 
 sonal estate. The declaration contained 
 other counts, varying the statement of the 
 contract, in one of which counts the defend- 
 ant was charged generally and not as an at- 
 torney. To these counts the money counts 
 were added. 
 Demurrer and rejoinder. 
 
 Doyly, Serjt., for Blosset, Serjt., in support 
 of the demurrer. 
 
 THE COURT stopped Frere, Serjt., who 
 was to have argued for the plaintiff, express- 
 ing an unanimous opinion tliat there was 
 no ground for the demurrer, an express 
 promise being alleged, a breach of it in the 
 life-time of the intestate, and an injm'y to 
 his personal property, the truth of which al- 
 legations was admitted by the demm-rer; 
 that it made no difference In this case wheth- 
 er the promise were express or implied, the 
 whole transaction resting on a contract; that 
 though, perhaps, the intestate might have 
 brought case or assumpsit at his election, 
 assumpsit being the only remedy for the 
 administrator, it was very necessary the 
 action should be maintained or the defend- 
 ant might escape out of the consequences 
 of his misconduct, and the intestate's estate 
 suffer an irreparable injury. It was fm'- 
 ther observed, that if a man contracted for 
 a safe conveyance by a coach, and sustain- 
 ed an injury by a fall, by which his means 
 of improving his personal property were de- 
 stroyed, and that property in consequence 
 injm-ed, — though it was clear, he In his life- 
 time might at his election sue the coach pro- 
 prietor in contract or in tort, it could not be 
 doubted that his executor might sue in as- 
 sumpsit for the consequences of the coach 
 proprietor's breach of contract. That It 
 could not be pretended that the contract of 
 the defendant in this case was a conti-act 
 running with the land; but if it were so, an 
 action would lie by the administrator for a 
 breach and damage incurred in the time of 
 the testator; and as to the alleged omission 
 of certain averments in the declaration, re- 
 specting the defendant's profession, at all 
 events the admission of an express promise, 
 implied by the demurrer, rendered any such 
 allegation unnecessary. 
 
 Judgment for the plaintiff. 
 
139) 
 
 RAYMOND V. PITCH. 
 
 Case No. 191 
 
 RAYMOND et al. v. FITCH. 
 
 (2 Cromp., M. & R. 588.) 
 
 Exchequer of Pleas. Michaelmas Term. 
 
 Covenant. The declaration stated, that 
 whereas theretofore, to wit, on 5th Decem- 
 ber, 1832, by a certain indenture then made 
 between the said Thomas Walford of the 
 one part, and the defendant of the other part 
 (profert in cm-iam,) the said Thomas Wal- 
 ford, for the consideration therein mentioned, 
 did demise and to fann let unto the said, 
 defendant, certain buildings, lands, lieredit- 
 aments, and premises, particvdarly mention- 
 ed and described in the said indenture, ex- 
 cept as in the said indenture was excepted, 
 to have and to hold the said buildings, lands, 
 hereditaments, and premises, with their ap- 
 purtenances, unto the said defendant, his 
 executors and administrators, for the term 
 of one whole year from the 29th day of Sep- 
 tember then last, and so from thence from 
 year to year, etc. ; and the said defendant, for 
 himself, his executors, and administrators, 
 did by the said indenture, covenant, promise, 
 and agree, to and with the said Thomas Wal- 
 ford, his heirs and assigns, amongst other 
 things, that the said defendant shovild not 
 nor would, dm'ing the continuance of the said 
 demise, fell, stub up, head, lop, or top any of 
 the timber trees, or trees likely to be timber, 
 growing or being on the said demised prem- 
 ises; or cut or take away wood or bushes, 
 lops or tops, except such as had been agreed 
 to be allowed for firewood; and upon lop- 
 ping the pollard trees, and cutting down the 
 stub wood and bushes growing in or about 
 the said hedges and ditches of the said de- 
 mised premises, should at the same time new 
 make and scour the said ditches, and lay 
 one spit of all the earth of the said ditches 
 on the banks thereof, to nourish the quick- 
 set there; as in and by the said indenture, 
 reference being thereunto had, will more 
 fully appear. By virtue of which said de- 
 mise, the said defendant afterwards, to wit, 
 on, etc., and in the lifetime of the said 
 Thomas Walford, entered into the said de- 
 mised premises, with the appm-tenauces, and 
 became and was possessed thereof for the 
 said term so to him thereof demised as afore- 
 said. , And although the said Thomas Wal- 
 ford, in his lifetime, always fi-om the time 
 of making the said indenture, until the day 
 of his death, and the said plaintiffs as exec- 
 utors as aforesaid since his death, have and 
 each of them hath well and truly performed, 
 fulfilled, and kept all things In the said in- 
 denture contained, on his and their part and 
 behalf to be performed, fulfilled, and kept, 
 according to the tenor and efCect, true in- 
 tent and meaning of the said indenture: yet. 
 protesting that the said defendant hath not 
 performed, fulfilled, or kept anything in the 
 said indenture contained on his part and be- 
 half to be performed, fulfiUed, and kept, ac- 
 cording to the tenor and effect, true intent 
 and meaning of the said indenture; in fact, 
 
 the said plaintiffs, executors as aforesaid, 
 say that the said defendant, after the mak- 
 ing of the said indenture, and during the- 
 term thereby granted, and before the decease 
 of the said Thomas Walford, to wit, on the 
 1st day of Januaiy, 1832, and on divers other 
 days and times between that day and the 
 day of the decease of the said Thomas Wal- 
 ford, felled, stubbed up, headed, lopped, and 
 topped divers, to wit, 500 of the timber ti-ees, 
 and 500 trees Ukely to be timber, growing and 
 being on the said demised premises, and of 
 great value, to wit, of the value of £20; and 
 during the time aforesaid, he the said defend- 
 ant cut and took away divers, to wit, 500 cart 
 loads of wood, bushes, lops, and top^ of a 
 certain other great value, to wit, of the value 
 of other £20, the same being other and differ- 
 ent wood, bushes, lops, 'and tops, than such 
 as had been agreed to be allowed for fire- 
 wood; contrary to the form and effect of 
 the said indenture, and of the covenant of 
 the said defendant so by him made in such 
 belialf as aforesaid. And the said plaintiffs, 
 executors as aforesaid, in fact further say, 
 that the said defendant did not nor would, 
 upon such lopping the said trees and cutting 
 down the said wood and bushes growing in 
 and about the hedges and ditches of the said 
 demised premises, new make or scour the 
 said ditches, or lay one spit of all the earth 
 of the said ditches on the banlfs thereof, to 
 nourish the quickset there, according to the 
 tenor and effect of the said indenture, and 
 of the said covenant of the said defendant 
 so by him made in such behalf as aforesaid, 
 but therein wholly failed and made default; 
 contrary to the form and effect of the said 
 indentm-e. and of the said covenant of the 
 said defendant so by him made in such be- 
 half as aforesaid. 
 
 After setting out the deed on oyer, the de- 
 fendant, as to the breach of covenant first 
 above assigned, excepting so much thereof 
 as relates to taking away the said bushes, 
 wood, lops, and tops therein mentioned, de- 
 mm-red generally; and, to the part excepted, 
 pleaded accord and satisfaction; and also 
 as a further plea, that he did not take away 
 any wood or bushes, etc. He also demurred 
 generally to the second breach. 
 
 W. W. FoUett, in support of the demurrer. 
 W. H. Watson, contra. 
 
 • 
 
 LORD ABINGER, C. B. The demiu-rer to 
 the first breach gives rise to this question, 
 whether an executor can sue for the breach 
 of this covenant, not to fell, stub up, head, 
 lop or top, timber trees excepted out of the 
 demise, such breach having been committed 
 in the lifetime of the testator; and no part 
 of the timber, loppings, or toppings, appear- 
 ing to have been removed by the defendant. 
 This question was argued in the latter part 
 of the last term, before my Brothers 
 PARKE, BOLLAND, GURNEY, and myself, 
 and stood over, that we might more atten- 
 
 531 
 
Case No, 191 
 
 RAYMOND V. FITCH. 
 
 (§ 139 
 
 tively consider how far the modern deci- 
 sions, referred to on the argument, had over- 
 ruled or qualified the old authorities. Those 
 authorities are uniform, that the present rep- 
 resentative may sue, not only for all debts 
 due to the deceased, by specialty or other- 
 wise, but for all covenants, and indeed all 
 contracts with the testator, broken in his 
 lifetime; and the reason appears to be, that 
 these are choses in action, and are parcel of 
 the personal estate, in respect of which the 
 executor or administrator represents the per- , 
 son of the testator, and is in law the testa- 
 tor's assignee. And this right does not de- 
 pend on the equity of the statute, 4 Edw. 
 III. c. 7, but is a common law right, as much 
 as the right to sue on a bond or specialty for 
 a sum certain due in the testator's lifetime 
 The maxim, that "Actio personalis moritur 
 cum persona," is not applied in the old au- 
 thorities to causes of actions on contracts 
 but to those in tort, which are founded on 
 malfeasance or misfeasance to the person or 
 property of another, which latter are an 
 nexed to the person, and die with the person 
 except where the remedy is given to the per- 
 sonal representative by the statute law 
 These authorities as to actions of covenant 
 ■will be found in Com. Dig. "Administrator,' 
 B, 13; Id. "Covenant," B, 1; Bac. Abr. "Ex 
 ■ecutors and Administrators," N; and in the 
 ■cases of Le Mason v. Dixon, W. Jones, 173 
 Morley v. Polhill, 2 Vent. 56; 3 Salk. p. 109, 
 pi. 10, which was the case of an action by 
 the executor of a deceased bishop for a 
 breach in his lifetime of a covenant to repair 
 in a former bishop's lease; Smith v. Si- 
 monds, Comb. 64, in which an administrator 
 de bonis non recovered on a breach in the 
 time of the testator for not discharging the 
 land from encumbrance; and lastly, Lucy v. 
 Levington, 2 Lev. 26; 1 Vent. 176, where the 
 executor recovered for a breach in his testa- 
 tor's life of a covenant for quiet enjoyment. 
 The old authorities are also many, that an 
 action will lie upon every breach of contract, 
 though not under seal. In March, (page 9, 
 pi. 23,) Justice Jones said, "that It was 
 agreed by the court, in what case soever 
 there is a contract made to the testator or 
 intestate, or anything which ariseth by con- 
 tract, there an action will lie for the execu- 
 tor or administrator; but personal actions 
 die with the testator or intestate." And in 
 Pinchon's Case, 9 Coke, 89a, in which the 
 question was, whether an action of assump- 
 sit for payment of a debt lay against an 
 executor, it is laid down as follows: "As to 
 the other objection, that this personal action 
 of trespass on the case moritur cum per- 
 sona, although it is termed trespass, in re- 
 spect that the breach of promise is alleged 
 to be mixed with fraud and deceit, to the 
 special prejudice of the plaintiff, and for 
 that reason it is called trespass on the case; 
 yet that doth not make the action so an- 
 nexed to the persons of the parties, that it 
 shall die with the persons; for then, if he to 
 532 
 
 whom the promise is made dies, his execu- 
 tors should not have any action, which no 
 man will affirm; and an action sur assump- 
 sit, upon good consideration, without spe- 
 cialtS', to do a thing, is no more personal, i. 
 e. annexed to the person, than a covenant by 
 specialty to do the same thing;" and in Bac. 
 Abr. "Executors," X: "An executor stands 
 in the place of his testator, and represents 
 him as to all his personal contracts, and 
 therefore may regularly maintain any action 
 in his right, which he himself might." These 
 authorities have certainly been limited by 
 the modem decisions, quoted on the argu- 
 ment, and are to be understood with some 
 qualifications; but it will be found that none 
 of those qualifications affect the present 
 case. The rule that the executor may sue 
 upon every covenant with his testator 
 broken in his lifetime, has been directly 
 qualified by the decisions in the two cases 
 of Kingdon v. Nottle, 1 Maule & S. 355, and 
 4 Maule & S. 53, followed by that of King v. 
 Jon^, 5 Taunt. 418; 1 Marsh. 107, in which 
 cases it was held, that, where there are 
 covenants real, that is, which run with the 
 land and descend to the heir, though there 
 may have been a formal breach in the an- 
 cestor's lifetime, yet if the substantial dam- 
 age has taken place since his death, the real 
 representative, and not the personal, is the 
 proper plaintiff. These cases go no farther, 
 and they do not apply to the present; for 
 there is no doubt but that the covenant in 
 question is purely collateral, and does not 
 run with the land; for the trees being ex- 
 cepted from the demise, the covenant not to 
 fell them is the same as if there had been a 
 covenant not to cut down trees growing upon 
 an adjoining estate of the lessor. It is a 
 security by specialty given by the lessee to 
 the lessor, not to commit such a trespass dur- 
 ing the lease, which may continue beyond 
 the lessor's life. For the breach of such 
 a covenant after the death of the covenantee, 
 the heir or devisee of the land on which the 
 trees grow could not sue; the executor would 
 be the proper party, as the covenant is col- 
 lateral, and is intended not to be limited by 
 the life of the covenantee; and if he could 
 not sue, no one could. It is equally clear 
 that the heir or devisee could not sue for a 
 breach of the covenant in the time of the 
 ancestor or devisor, and the executor there- 
 fore must sue, or all remedy is lost. These 
 decisions, therefore, do not affect the present 
 case. The old authorities, with respect to 
 the right of the personal representative to 
 sue on all contracts made with the deceased, 
 have also been qualified by the modem de- 
 cision of Chamberlain v. Williamson, 2 Maule 
 & S. 408, in which it was held, that the ad- 
 ministrator of a woman could not sue for a 
 breach of contract to marry the intestate, 
 the declaration not stating any ground of in- 
 jury to the personal estate; and in giving 
 judgment Lord EUenborough enumerates 
 other instances of contracts, the breach of 
 
lo9) 
 
 RAYMOND V. PITCH. 
 
 Case No. 191 
 
 which imports a damage only to the person 
 of the deceased, such as implied contracts by 
 medical practitioners to use a proper portion 
 of skill and attention, which cases are in 
 substance actions for injuries to the person, 
 and for which the personal representative 
 could not sue; and the argument on the part 
 of the defendant in this case was, that the 
 same limitation of the old authorities must 
 be applied to all contracts except such as di- 
 rectly relate to the personal estate, and the 
 performance of which would necessarily be 
 a benefit, and the breach a damage, to the 
 personal estate of the testator, whether such 
 contracts are under seal or not; and that 
 upon such contracts the executor could not 
 sue without alleging a si)€cial damage to 
 the personal estate. The case certainly 
 does not go that length; and we think that 
 such an extension of the doctrine laid down 
 in it is not warranted by law, and that it 
 
 cannot be extended to a contract broken in 
 the lifetime of the deceased, the benefit of 
 which, if it were yet unbroken, would pass 
 to the executor as part of the personal 
 estate; at all events, not to such a contract 
 under seal. The present case Is one of that 
 description— it is a case more favorable to 
 the executors than those of Morley v. Pol- 
 hill, Smith V. Simonds, and Lucy v. Leving- 
 ton, in which the covenant did run with the 
 land; and if the last case is to be considered 
 as having been decided, as was suggested 
 in the argument before us, on the ground 
 that the loss of rents and profits by an evic- 
 tion of the testator was an injury to the per- 
 sonal estate (though such a ground is not in- 
 timated in either report), it is diflicult to 
 say that the loss of the shade and casual 
 profits of trees is not equally so. We there- 
 fore think that our judgment must be for 
 the plaintiffs. Judgment for the plaintiffs. 
 
 53S 
 
Case Xo. 192 
 
 KICKETTS V. WEAVER. 
 
 (§ i3:> 
 
 RICKETTS et al. v. WEAVEE. 
 
 (12 Mees. & W. 718.) 
 
 Exchequer of Pleas. May 1, 1844. 
 
 Covenant. The declaration stated, that 
 heretofore, to wit, on &e., in the lifetime of 
 William Lloyd, deceased, and Betty his wife, 
 by an indenture made between the said W. 
 Lloyd and Betty his wife, of the lirst part, 
 A. Stallard of the second part, and the de- 
 fendant and one J. Bates of the third part, 
 a certain messuage and lands were demised 
 by the said William Lloyd and Betty his 
 wife, to the said A. Stallard, to hold the same 
 for the term of one whole year, if the said Bet- 
 ty should so long live, and after the expiration 
 of the said term of one year, from year to 
 year, so long as both parties should agree 
 as to the rent; that the said A. Stallard 
 thereby covenanted with the said W. Lloyd 
 and Betty lijs wife, amongst other things,' 
 to keep and leave in repaii- the said mes- 
 suage and premises; the defendant and the 
 said J. Bates also covenanted with them, 
 the said William Lloyd and Betty his wife, 
 that in case he the said A. Stallard, his ex- 
 ecutors, &c., should be guilty of a breach of 
 any of the covenants in the said indenture 
 mentioned, on his and their part to be ob- 
 served and performed, he the defendant 
 should and would, on demand, pay and dis- 
 charge all costs, charges, and expenses that 
 should or might accrue by reason of such de- 
 faults, and should and would, in all respects, 
 be liable as though he, the defendant, were 
 the real and bona fide tenant of the said 
 premises. The declaration then averred, 
 that Stallard entered upon the premises, and 
 that the said Betty died in the lifetime of 
 the said William Lloyd; that the said A. 
 Stallard did not keep the said premises in 
 repair during the said term, and by means 
 thereof the said premises, in the lifetime of 
 the said A^'illiam Lloyd, sustained damage 
 to the amount of £200, and that the said Wil- 
 liam Lloyd had, by reason of such defaults, 
 incm-red liability to great costs, charges, and 
 expenses, of all which premises the defend- 
 ant had notice, and was requested to pay 
 the same. Breach, non-payment thereof. 
 
 Plea, that, before the said demise in the 
 declaration mentioned, the said William 
 Lloyd and Betty his wife were seised in 
 their demesne as of freehold, in ri^lit of the 
 said Betty, for the term of her natmval life, 
 in the said messuage and lands; and that 
 they the said William Lloyd and Betty his 
 wife had not any further or otlier interest 
 in tlie said demised premises; and that the 
 said William Lloyd was not in his lifetime 
 put to, nor did he incur liability to, the said 
 costs, charges, and expenses in the declara- 
 tion mentioned, or any part thereof. 
 
 Special demurrer, assigning for causes 
 (inter alia), that the plea confessed a breach 
 of the several covenants set forth in the 
 declaration, without showing any answer to 
 
 534 
 
 or excuse for committing them: That the 
 plea gave the go-by to that branch of the 
 covenant, by which the defendant stipulated 
 for his individual liability in all respects as 
 if he were himself the real and bona fide 
 tenant: That the plea did not answer the 
 declaration even to the extent of nominal 
 damages; and that it was consistent with 
 every allegation contained in the plea, that 
 the personal estate of William Lloyd had 
 sustained damage by tlie alleged and ad- 
 mitted breaches of covenant. Joinder in de- 
 murrer. 
 
 Mr. Barstow, in support of the demurrer. 
 J. Henderson, contra. 
 
 POLLOCK, C. B. I think this case must 
 be governed by that of Raymond v. Fitch, 2 
 Cromp, M. & R. 588, and that, after the de- 
 cision in that case, it is impossible to say, 
 that this action is not maintainable. My 
 Brother Parke there cited Morley v. Polhill, 
 2 Vent. 56, as showing that an executor was 
 entitled to sue for a breach of covenant to 
 repair, in the lifetime of the testator. That 
 case was endeavored to be distinguished by 
 Sir William FoUett, on the gi'ound that there 
 was a covenant to repair; so that it was ad- 
 mitted, that in the case of a covenant to re- 
 pair, broken in the lifetime of the lessor, an 
 action could be maintained by The executor. 
 I think, therefore, that the case of Raymond 
 v. Fitch, is a direct authority, and that our 
 judgment must be for the plaintiffs. 
 
 PARKE, B. I am of the same opinion. 
 If the action can be maintained on that part 
 of the covenant wliich states that the de- 
 fendant shall be liable as if he were himself 
 the tenant, the plea is bad; because it does 
 not answer that part, but only the other 
 branch of it, as to the payment of the ex- 
 penses incuri'ed by the testator. The ques- 
 tion, therefore, is reduced to this, whether 
 an executor can sue for the breach of a 
 covenant to repair in the lifetime of the les- 
 sor, who was tenant for Ufe, without aver- 
 ring special damage. On that point, Ray- 
 mond V. Fitcli. in which all the cases were 
 considered, is an authority directly in point, 
 and ought not to be shaken. The result of 
 that case is, that unless it be a covenant in 
 which the heir alone can sue (according to 
 Kingdom v. Nottle, 1 Maule & S. 355, and 
 King V. Jones, 5 Taunt. 418; 1 Marsh. 107) 
 for a breach of the covenant in the lifetime 
 of the lessor, the executor can sue, unless it 
 be a mere personal contract, in which the 
 rule applies that "Actio pei-sonalis moritm- 
 cum persona." The breach of covenant is 
 the damage; if the executor be not the prop- 
 er person to sue, the action cannot be 
 brought by any one. 
 
 ALDERSON, B., and ROLFE, B., concur- 
 red. 
 
 Judgment for the plaintiffs. 
 
§ 139) 
 
 SENIOR V. WARD. 
 
 Case No. 193 
 
 SENIOR V. WARD. 
 
 (1 El. & El. 3S5.) 
 
 Queen's Bench. Jan. 13, 1859. 
 
 Declaration by Hannah Senior, administra- 
 trix of John Senior: for that, on 6th Janu- 
 iiry, 1858, and after the coming into operation 
 of St. 18 & 19 Vict. c. 108, entitled "An act 
 to amend the law for the inspection of coal- 
 inines in Great Britain," defendant was the 
 proprietor and manager of a coal-mine, then 
 being in his care and direction, and so con- 
 tyiued until, etc., the time of the committing, 
 etc. : that the said John Senior was a servant 
 of defendant in the working of his said 
 mine; nevertheless, by the wrongful act, 
 omission, neglect and default of defendant, 
 and not otherwise, a rope of defendant, in 
 his use, and by the aid of which the said 
 John Senior was, in the com-se of his said 
 service, and with the privity and authority 
 of defendant, being lowered into the said 
 mine to work there for defendant, without 
 any default of the said John Senior, suddenly 
 snapped and broke asunder, the same having 
 "become and then being unsafe and unfit for 
 such use; whereby, and not otherwise, the 
 said John Senior, who neither knew, nor 
 liad the means of knowing at any time, that 
 the said rope was so unfit or unsafe, was 
 suddenly thrown and fell down into the said 
 mine, and was thereby so greatly injm'ed 
 that he afterwards, and within twelve cal- 
 endar months before this suit, thereof died. 
 
 Pleas: 1. Not guilty. 2. That defendant 
 was not manager of the said coal-mine, nor 
 was the same, nor did the same continue to 
 Ije, then under his cai'e and direction as al- 
 leged. Issue on both pleas. 
 
 At the trial before Cockburn, 0. J., at the 
 last summer assizes for Derbyshire, it ap- 
 peared that the action was brought, under 
 St. 9 & 10 Vict. c. 93, by the plaintiff, a 
 widow, to recover damages for the death of 
 lier son, John Senior, who was accidentally 
 liilled while in the employ of the defendant. 
 The defendant, who was the proprietor and 
 manager of a colliery at KiUamarsh, had, 
 after the passing of St. 18 & 19 Vict. c. 
 108, drawn up special rules for the manage- 
 ment of the colliery, which were duly ap- 
 proved and published undcT the act. The 
 following were referred to in the course of 
 -the argument. 
 
 "1. That the owner or agent, being the 
 manager of the colliery, shall provide the 
 viewers, underviewers, engineers, deputies, 
 and other persons placed in situations of re- 
 sponsibility, at their request, all facilities, 
 materials, and assistance requisite in the 
 opinion of such owner or manager for con- 
 ducting the coUiery in such a manner as 
 will best conduce to the safety of the per- 
 sons employed therein; and that he or they 
 shall do the utmost in their power to employ 
 -efficient officers, enginemen, banksmen, hang- 
 ers-on, and other responsible persons in their 
 ;several departments; and shall require from 
 
 time to time reports from such officers as 
 to the due observance of the general and 
 special rules, and the safe condition of the 
 colliery. 
 
 "2. The owner, agent, underviewers or dep- 
 uties shall have control over all persons em- 
 ployed at this colliery, and the latter must 
 obey their lawful commands in their respec- 
 tive occupations; and the deputies must re- 
 port to the agent or underviewer any viola- 
 tion of these rules, or of their own orders, 
 so that steps may be taken to insm-e dis- 
 cipline throughout the works, with a view 
 to the preservation of life." 
 
 "Enginemen, banksmen and hangers-on," 
 
 "33. Every morning, before the engine is 
 started, the engineman shall see that the 
 engine, boilers, machinery, drums, ropes, 
 breaks, indicatoi-s and signal bells are safe 
 and in good worliing order; the ropes and 
 Joaded cages are then to be run slowly twice 
 up and down the pit, before any person de- 
 scends or ascends." 
 
 "42. The head banksman must be at the 
 pit not later than six o'clock in the morning, 
 and provide a sufficient number of lights; 
 and before the engine is started he must see 
 that the pulleys, ropes, cages, chains, and 
 landing doors or frames are in safe working 
 condition; and he shall not allow any person 
 to descend or ascend the pit until thei ropes 
 and loaded cages have been twice run up 
 and down, and the ropes, chains, cappings, 
 and cages carefully examined by him; and 
 if any weakness or defect is found In any 
 thing belonging to the pit-top, or in the 
 pngine or machinery, he must not permit 
 any person to descend or ascend until it is 
 made secm-e," etc. 
 
 It was proved that the rule requiring the 
 loaded cage to be mn up and down every 
 morning, before any person was permitted 
 to descend, had been habitually violated by 
 the engineman and banlisnmn, to defendant's 
 knowledge, for many weeks before the acci- 
 dent: and that the deceased and his two 
 brothers, who were employed by the defend- 
 ant as miners, were acquainted with the 
 rule, and knew that it was so violated. On 
 the night of 5th January, 1858, the rope by 
 which the cage was run up and down, and 
 which had been previously in good condition, 
 was injured by a fire which occurred ai 
 the colliery. The next morning, the de- 
 ceased, his two brothers, and another minei' 
 came to the pit for the piu'pose of descend- 
 ing. Tlie engineman and banksman had ex- 
 amined the rope that morning, before it wa? 
 light, and had not detected any injvu-y; but 
 they had not tested it with the cage accoi-d- 
 ing to the rule. The banksman told the 
 deceased and his c'ompanions that they had 
 better examine the rope before descending. 
 They did not do so, and got into the cage; 
 the rope broke as the cage was descending, 
 and they were all four killed. 
 
 A verdict was found for the plaintiff for 
 £80, with leave to move to enter the verdict 
 
 535 
 
Case JSTo. 193 
 
 SENIOR V. WARD. 
 
 (§ 139 
 
 for the defendant, or for a nonsuit. Two 
 other actions by the plaintiff, for the death 
 of her two other sons, respectively, were to 
 abide the event of this action. 
 
 ilacaiilay and Brewer, for plaintiff. Mr. 
 Mellor, for defendant. 
 
 LORD CAMPBELL, C. J. We are of opin- 
 ion that the rule to enter the verdict in this 
 case for the defendant or to enter a nonsuit 
 must be made absolute. 
 
 The authorities upon the subject are all 
 collected and commented upon in Coal Co. 
 v. Reid, 3 Macq. 266. According to these 
 authorities, the action would not have been 
 maintainable if the deceased had come to his 
 death purely from the negligence of his fel- 
 low-servants employed in the same work 
 with him. However, a strong case of neg- 
 ligence on the part of the defendant, as con- 
 tributing to the death, has been made out; 
 and if an answer had not been given to this 
 case, by showing negligence on the part of 
 the deceased which contributed to his death, 
 we think the defendant ought to have been 
 held liable. After the passing of St. 18 & 
 19 Vict. c. 108, for the inspection of coal- 
 mines, under section 5, special rules were 
 framed, and duly approved of, for the regu- 
 lation of the defendant's colliery; and by 
 one of these rules it was provided that, 
 every morning, before the miners were let 
 down the shaft into the mine, the cage by 
 which they were to descend should be let 
 down and puUed up again, heavily loaded. 
 to test the sufficiency of the rope and of the, 
 tackling. But the defendant, who superin- 
 tended the working of his colliery, instead 
 of enforcing this rule, allowed it to be en- 
 tirely neglected: and, to his knowledge, it 
 had been entirely neglected by Ms workmen 
 for many weeks before the accident happen- 
 ed which caused the death of the deceased. 
 The night before the accident, the rope by 
 which the cage was suspended, being then 
 in good condition, was injured by an acci- 
 dental fire in the colliery. Next morning, 
 the deceased and other miners were let down 
 the shaft, without any testing of the rope 
 and the tackling. If that testing had taken 
 place, the insufficiency of the rope would 
 nave been discovered, and the men would 
 all have been saved. But the rope broke, 
 and the deceased, with several others, was 
 killed on the spot. There was most culpa- 
 
 536 
 
 ble negligence on the part of the defendant, 
 in neglecting the rule, and in keeping in his 
 employment a banksman who he knew ha- 
 bitually disregarded it. Looking to these 
 facts only, although the banksman was the 
 fellow-servant of the deceased, and both the 
 deceased and he were employed by the de- 
 fendant in the colliery as fellow-labourers, 
 we should have held the defendant liable, 
 his negligence having materially contributed 
 to the death of the deceased. 
 
 But, according to the report of the learned 
 judge who tried the cause, it was further in 
 evidence that gross negligence was to be Im- 
 puted to the deceased himself, and that this 
 negligence materially contributed to his 
 death. Wtth the exercise of ordinary pru- 
 dence he would have escaped the danger, 
 and his life would have been saved. He 
 knew the rule of testing the rope and tack- 
 ling every morning, and he knew that this 
 rule was habitually violated: further, in the 
 morning of the accident, he and the other 
 miners were told by the banksman that they 
 had better examine the rope before they 
 went down. Nevertheless they disregarded 
 this warning; and, immediately getting into 
 the cage, the rope broke as it descended, 
 and they were killed. 
 
 We conceive that the legislature, in passing 
 the statute on which this action is brought, 
 intended to give an action to the representa- 
 tives of a person killed by negligence only 
 where, had he smwived, he himself, at the 
 common law, could have maintained an ac- 
 tion against the person guilty of the alleged 
 negligence. Under the circumstances of this 
 case, could the deceased, if he had survived, 
 have maintained an action against the de- 
 fendant for what he suffered from the acci- 
 dent? We think that he could not; for, al- 
 though the negligence of the defendant might 
 have been an answer to the defence that the 
 accident was chiefly caused by the negligence 
 of a fellow-servant, the negligence of the 
 plaintiff himself, which materially contrib- 
 uted to the accident, would, upon well-estab- 
 lished principles, have deprived him of any 
 remedy. "Volenti non fit injuria." 
 
 The other two cases grouped with this 
 were to abide the same event. In each of 
 them the deceased was admi, and, with the 
 same knowledge, conduced to the same fatal 
 result. Therefore in all the three we must 
 give judgment for the defendant. 
 
 Judgment for the defendant. 
 
§ 139) 
 
 RICHARDSON v. NEW YORK CENT. U. CO. Case No. 
 
 194 
 
 RICHARDSON v. NEW YORK CENT. R 
 CO. 
 
 (98 Mass. 85.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. Nov., 18C7. 
 
 Action by Sarah A. Richardson, adminls- 
 ti-atrix, against the New York Central Rall- 
 ■way Company, to recover for the death of 
 her husband while a passenger in New York. 
 Plaintiff claimed by virtue of following stat- 
 utes: 
 
 The arst section of the act of the leg- 
 islature of New York, entitled "An act re- 
 quiring compensation for causing death by 
 wrongfvU act, neglect, or default," passed 
 December 13, 1847, is as follows: "When- 
 ever the death of a person shall be caused 
 by wrongful act, neglect, or default, and the 
 act, neglect, or default is such as would (if 
 death had not ensued) have entitled the 
 party injured to maintain an action and re- 
 cover damages in respect thereof, then, and 
 in every such case, the person who, or the 
 corporation which would have been liable, 
 if death had not ensued, shall be liable to an 
 action for damages, notwithstanding the 
 death of the person injured, and although 
 the death shall have been caused under such 
 circumstances as amount in law to felony." 
 
 The second section, as amended on April 
 7, 1849, is as follows: "Every such action 
 shall be brought by and in the names of the 
 personal representatives of such deceased 
 person; and the amount recovered in every 
 such action, shall be for the exclusive benefit 
 of the widow and next of kin of such de- 
 ceased person, and shall be distributed to 
 such widow and next of kin in the proportion 
 provided by law in relation to the distribu- 
 tion of personal property left by persons 
 dying intestate; and, in every such action, 
 the jury may give such damages as they 
 shall deem a fair and just compensation, not 
 exceeding five thousand dollars, with ref- 
 erence to the pecuniary injuries resulting 
 from such death, to the wife and next of 
 kin of such deceased person: provided that 
 every such action shall be commenced with- 
 in two years after the death of such person; 
 but nothing herein contained shall affect any 
 suit or proceeding heretofore commenced, 
 and now pending in any of the courts of 
 this state." 
 
 And, in the amendatory act of April 7, 
 1849, the following section was added: 
 "Every agent, engineer, conductor, or other 
 person in the employ of such company, or 
 persons through whose wrongful act, neg- 
 lect, or default, the death of a person shall 
 have been caused, as aforesaid, shall be lia- 
 ble to be indicted therefor; and, upon con- 
 viction thereof, may be sentenced to a state 
 prison for a term not exceeding five years, 
 or in a county jail, not exceeding one year, 
 or to pay a fine not exceeding two hundred 
 and fifty dollars, or both such fine and im- 
 
 prisonment." 4 N. Y. St. at Large, (Ed- 
 monds' Ed.) 526, 527. 
 
 Defendant demm-red. Case reserved. 
 
 G. O. Shattuck and O. W. Holmes, Jr., for 
 plaintiff. E. Merwin, for defendants. 
 
 HOAR, J. The court are all of opinion 
 that this action cannot be maintained, and 
 that the demurrer must prevail. 
 
 There is great difficulty in ascertaining 
 what cause of action this plaintiff has 
 against the defendants, or how she acquired 
 any. By the common law, and by the laws 
 of this commonwealth, no action could be 
 brought against the railroad company for 
 negligently causing the death of the plain- 
 tiff's intestate. This is conceded; and the 
 plaintiff rests her case wholly on the stat- 
 ute of New York. If thi* be a penal statute, 
 it cannot be enforced beyond the territory 
 in and for which it was enacted. If it gives 
 a new and peculiar system of remedy, by 
 which rights of action are transferred from 
 one person to another in a mode which the 
 common law does not recognize, and which 
 is not in conformity with the laws or prac- 
 tice of this commonwealth, there is an equal- 
 ly insuperable objection to pursuing such a 
 remedy in our courts. 
 
 The plaintiff's counsel, in their ingenious 
 and impressive argument, being apparently 
 fully aware of the difilculties of the case, 
 have placed their claim to recover upon the 
 ground that the statute of New York vested 
 a right of property in the widow and her 
 children at the moment of the husband's 
 death, and designated a trustee to receive 
 and enforce this right, whose capacity to 
 sue will be sustained in any forum. 
 
 The right of property which the statute 
 defines is of a very peculiar nature. In the 
 first place, the act or default which caused 
 the death must be such as would, if death 
 had not ensued, have entitled the party in- 
 jured to an action to recover damages in 
 respect thereof. This the statute makes 
 requisite to give the personal representative 
 an action for damages, and it would thus 
 seem that the action was designed to be for 
 the purpose of compensating the injury to 
 the deceased. But we next find that the 
 compensation is not to go to the personal 
 representative of the deceased, to be dispos- 
 ed of as other property or right of property 
 belonging to the deceased. It is not to be 
 applied in payment of his debts, nor is it 
 subject to the provisions of his will. It is 
 not the injury to the deceased which is to 
 be estimated at all. The whole amount is 
 not to exceed five thousand dollars; and, 
 with that limitation, the jmy may give such 
 damages as they shall deem a fair and just 
 compensation, with reference to the pecun- 
 iary injuries resulting from such death, to 
 the wife and next of kin of such deceased 
 person. The damages, therefore, are to be 
 for the pecuniary injuries to the wife and 
 next of kin. But, when the pecuniary in- 
 
 537 
 
Case No. 194 
 
 EICHARDSON v. NEW YORK CEXT. R. CO. 
 
 (§ 1C9 
 
 tei-ests of the wife and next of kin in the 
 death have been ascertained, the sum re- 
 covered on this basis is not to be paid over 
 to these several parties in proportion to their 
 respective pecuniary interests thus deter- 
 mined or regarded, but is to be distributed 
 to them in the proportion provided by laws 
 for the distribution of intestate personal 
 liroperty. If we take some one of the next 
 of kin, therefore, it may follow that, because 
 the defendants caused by negligence the 
 death of the plaintiff's intestate, this person 
 may recover by virtue of the statute, through 
 the plaintiff as administratrix, a sum of 
 money which has no relation to the extent 
 of the injury done to the deceased; and no 
 relation to the extent of the injury done to 
 the person who Is to receive it. If the jury 
 should deem three «thousand dollars a fair 
 and just compensation for the pecuniary In- 
 jury resulting to the wife, and one thousand 
 dollars to one of the next of kin, and five 
 hundred dollars to another, and should be 
 of opinion that there was no pecuniary in- 
 jury to the others of the next of kin, from 
 the death, they would assess as damages 
 fom- thousand five hundred dollars; and this 
 the plaintiff would be bound to distribute 
 according to the statute of distributions, 
 which makes no reference to the pecuniary 
 interest of the distributee in the death. In 
 the language of Mr. Justice Denio, "these 
 statutes have introduced a principle wholly 
 unknown to the common law, namely, that 
 the value of a man's life to his wife or next 
 «f kin constitutes, with a certain limitation 
 as to amount, a part of his estate, which 
 he leaves behind him to be administered by 
 Ills personal representatives;" and "though 
 the action can be maintained only in the 
 cases in which it could have been brought 
 by the deceased if he had survived, the dam- 
 ages nevertheless are given upon different 
 lirinciples, and for different causes." Whit- 
 ford V. Railroad Co., 23 N. Y. 468. 
 
 If we understand that the limitation of 
 the defendants' responsibility to cases in 
 which the deceased would have had a right 
 of action if he had survived, is not intended 
 to make his right of action survive to his 
 representatives, but is only meant to define 
 and describe the cases in which the right of 
 property and of action is recognized in the 
 widow or next of kin, we have still the ques- 
 tion to meet, how can that be regarded as 
 any thing else than a statute penalty, which 
 the personal representative of the deceased 
 is to recover by an action; which is limited 
 in amount, although that amount may be 
 
 i>38 
 
 much less than the extent of the injury sus- 
 tained by those whose loss is to be estimated 
 in computing it; and which is to be dis- 
 tributed among the parties entitled to re- 
 ceive it, not in proportion to the injuries 
 which they have respectively sustained, but 
 in proportion to the shares to which they 
 would be severally entitled in the distribu- 
 tion of an intestate estate? We do not read- 
 ily find a satisfactory answer to this ques- 
 tion. But a complete and decisive objection 
 to the maintenance of the action by this 
 plaintiff remains. 
 
 The plaintiff is the administratrix appoint- 
 ed under the law of Massachusetts. Her 
 right to sue in this commonwealth, in her 
 representative capacity, is upon causes of 
 action which accrued to her intestate, or 
 which grow out of his rights of property, or 
 those of his creditors. The remedy which 
 the statute of New York gives to the per- 
 sonal representatives of the deceased, as 
 trustees of a right of property in the widow 
 and next of kin, is not of such a nature that 
 it can be imparted to a Massachusetts ex- 
 ecutor or administrator, virtute oflBcii, so as 
 to give him the right to sue in our courts, 
 and to transmit the right of action from one 
 person to another in connection with the 
 representation of the deceased. The only 
 construction which the statute can receive 
 is, that it confers certain new and peculiar 
 powers upon the personal representative in 
 New York. The administrator in Massa- 
 chusetts is in privity with the New York 
 administrator only to the extent which our 
 laws recognize. A succession in the right 
 of action, not existing by the 'common law, 
 cannot be prescribed by the laws of one 
 state to the tribunals of another. It is upon 
 this principle that the negotiability of con- 
 tracts, and whether an assignee can main- 
 tain an action in his own name, is held to be 
 determined by the lex fori, and not by the 
 lex loci contractus; a matter not of right, 
 but of remedy. McRae v. Mattoon, 10 Pick. 
 49; Warren v. Copelin, 4 Mete. (Mass.) 594; 
 Foss V. Nutting, 14 Gray, 484, and cases 
 cited. 
 
 For the reason, therefore, that the right 
 of action which the New York statute gives 
 to the personal representative of the deceas- 
 ed in that state is not a right of property 
 passing as assets of the deceased, but is a 
 specific power to sue created by their local 
 law, it does not pass to the plaintiff as admin- 
 istratrix in Massachusetts, and this suit can- 
 not be maintained by her. 
 
 Demurrer sustained. 
 
§ 140) 
 
 DEXTER ». PHILLIPS. 
 
 Case No. 195 
 
 DEXTER et al. v. PHILLIPS et al. 
 (121 Mass. ITS.) 
 
 Supreme Judicial Court of Massachusetts. 
 Suffolk. Oct. 19, 1876. 
 
 BiU by William M. Dexter and anoUiei- 
 ti-ustees, under the will of William Phillips, 
 against John 0. Phillips. Under the will the 
 trustees were to pay the net income of the 
 residue of the estate to John C. Phillips dur- 
 ing his natural life, and, on his death leaving 
 issue, to convey the principal to his lawful 
 issue; if no lawful issue should he living at 
 his decease, to pay the net income unto 
 John Phillips during his natm-al life, and at 
 his decease to convey the principal to his 
 lawful issue. John O. Phillips was alleged 
 to be living, unmarried and without Issue. 
 John 0. Phillips was married, and had four 
 minor children. The income was to be paid 
 semiannually. At the time of testator's 
 death, his real estate was leased, the rent 
 15fiyable quarterly or monthly. A portion of 
 testator's property was invested in bonds. 
 The executor collected the rents and Interest 
 when due, and paid the same over to the 
 trustees, who held the same, and asked the 
 instruction of the court as to whether said 
 sums should be paid over to John C. Phil- 
 lips, or added to the capital. 
 
 C. A. Welch, for John O. Phillips. ' F. 0. 
 Welch, for John Phillips. R. Olney, for the 
 other defendants. 
 
 GRAY, C. J. It is a general rule of the 
 common law, followed in chancery, that sums 
 of money, payable periodically at fixed times, 
 are not appoitionable during the Intervening 
 periods. 
 
 It is accordingly well settled, both at law 
 and in equity, except when otherwise pro- 
 vided by statute, that a contract for the 
 payment of rent at the end of each quarter 
 or month is not apportionable In respect to 
 time. Sohier v. Eldredge, 103 Mass. 345; 
 Olun's Case, 10 Coke, 127a, 128a; Jenner v. 
 Morgan, 1 P. Wms. 392; In re Markby, 4 
 Mylne & C. 484; Browne v. Amyot, 3 Hare, 
 173; Beer v. Beer, 12 O. B. 60; In re CIulow, 
 3 Kay & J. 689. The opposing decision 
 on this point in Re Poote, 22 Pick. 299, 
 appears to have been made without much 
 consideration or reference to authorities, 
 and is in effect overruled by Sohier v. El- 
 dredge, ubi supra. 
 
 So dividends on shares in corporations or 
 joint stock companies are not apportionable, 
 unless expressly so directed by statute, or 
 by the instrument under which the question 
 arises. In re Foote, 22 Pick. 299; Granger 
 V. Bassett, 98 Mass, 462; Clive v. Clive, Kay, 
 GOO; In re Maxwell's Trusts, 1 Hem. & M. 
 610. Although the uncertainty whether the 
 dividend will be declared on a particular 
 day, and the impracticability of ascertaining 
 how much of It has been earned at any earlier 
 time, have been mentioned in some of the 
 cases as reasons for this conclusion, they are 
 
 not the principal grounds on which it rests; 
 for the rule has been held equally applicable 
 to cases where there was no such contin- 
 gency. 
 
 Thus annuities, except where clearly In- 
 tended for the daily support of the benefi- 
 ciary, as in the case of a child or of the 
 separate maintenance of a wife, are within 
 the rule. Wiggin v. Swett, 6 Mete. (Mass.) 
 194; Hay v. Palmer, 2 P. Wms. 501; Reynish 
 V. Martin, 3 Atk. 330, 336; Howell v. Han- 
 forth, 2 AV. Bl. 1016; Anderson v. Dwyer, 
 
 1 Schoales & L. 301; Franks v. Noble, 12 
 Ves. 484; Queen v. Treasury Com'rs, 16 Q. 
 B. 357; Leathley v. Trench, 8 Ir. Ch. 401. 
 
 The rule has always been held in England 
 to apply to Investments In the public funds. 
 It was applied by Lord Hardwicke to the 
 South Sea annuities, even where the debt, 
 by the terms of the settlement, had originally 
 been secured upon a mortgage, the interest 
 upon which would have been apportionable, 
 and had been transferred to government se- 
 cm-Itles by order of the com-t; or where the 
 money was directed to be laid out In land, 
 and In the mean time to be invested in 
 government securities, the interest and divi- 
 dends to go in the same way that the rents 
 and profits would, and the rents, if it had 
 been actually Invested In land, would have 
 been apportionable under St. 11 Geo. II. c. 
 19, § 15. Pearly v. Smith, 3 Atk. 260; Sher- 
 rard v. Sherrard, Id. 502; Wilson v. Harman, 
 
 2 Ves. Sr. 672, Amb. 279. And it has been 
 uniformly applied to the three per cent banlc 
 annuities or consols. Rashleigh v. Master, 
 
 3 Brown, Ch. 99; MicheU v. MicheU, 4 Beav. 
 549; Campbell v. Campbell, 7 Beav. 482; 
 In re Longworth's Estate, 1 Kay & J. 1; 
 O'Brien v. Fitzgerald, 1 Ir. Ch. 290. In each 
 of those cases, the interest of the holder 
 was a perpetual annuity, at a fixed rate 
 of interest, subject to redemption by the gov- 
 ernment by payment of the principal sum 
 upon which the Interest was computed. St. 
 6 Geo. II. c. 28; Ti-afEord v. Boehm, 3 Atk. 
 440, 444; Kirby v. Potter, 4 Ves. 748, 751; 
 Wildman v. Wlldman, 9 Ves. 174, 177. 
 
 So the half-yearly Interest on a share in 
 a loan of the East India Company, redeem- 
 able after a certain period at the option of 
 the company, but of which the holder could 
 not demand payment, was held by Vice- 
 Chancellor Knight-Bruce not to be appor- 
 tionable between tenant for life and remain- 
 derman; although it had been taken as a 
 substitute for a debt of the company, secured 
 by its promissory note bearing interest; and 
 although the stock certificate described the 
 new loan as a debt, and, under the condi- 
 tion for redemption, the last payment might 
 have to be for an apportioned part of the 
 half-yearly Interest. Warden v. Ashburner, 
 2 De Gex & S. 366. 
 
 The same rule was applied by this court 
 In Sargent v. Sargent, 103 Mass. 297, to 
 coupons for interest on bonds of the United 
 States; and upon reconsideration of the 
 
 539 
 
Case Ko. 195 
 
 DEXTEE 0. PHILLIPS. 
 
 (g 140 
 
 question, with the aid of the able argument 
 for the remaindermen in the present case, 
 we see no reason to doubt the correctness of 
 that decision. 
 
 It is contended by the learned counsel that 
 the interest on such bonds falls within the 
 rule that interest on money is apportionable, 
 tliough payable half-yearly or at other stated 
 times. 
 
 That is doubtless the rule with regard to 
 interest upon a debt, the principal of which 
 is already due and payable, and in &n action 
 upon which the creditor might recover in- 
 terest for the detention of his money if no 
 days of payment of interest had been fixed; 
 and even If the debt is secured by bond or 
 mortgage. In re Foote, 22 Pick. 299; Ed- 
 wards V. Warwick, 2 P. Wms. 171, 176, 1 
 Brown, Pari. Cas. (2d Ed.) 207; Banner v. 
 Lowe, 13 Ves. 135. The reason for this was 
 stated by Lord Hardwicke, in the cases al- 
 ready cited, to be "because there interest 
 accrues every day for forbearance of the 
 principal," and the "mortgagee, may call in 
 his money when he will." 3 Atk. 261; 2 
 Ves. Sr. 673. 
 
 The reason assigned in Re Foote, 22 Pick. 
 299, 305, that "the acquisition is uniform 
 and certain, and capable of an exact appor- 
 tionment for any definite periods of time, 
 ■whether great or small," cannot be relied on; 
 for the same reason would be equally appli- 
 cable, and, as we have seen, was in that 
 case erroneously applied to rents. 
 
 The eases, cited for the remaindermen, of 
 Johnston v. Moore, 27 Law J. Ch. 453, and 
 Ibbotson V. Elam, L. R. 1 Eq. 188, depended 
 upon the terms of partnership agi-eements 
 to pay Interest upon the amoimt of capital 
 contributed by each partner. 
 
 Only two other cases have been cited, In 
 which the interest was apportioned, when 
 the principal debt was not already due and 
 payable. 
 
 The one is Sweigart v. Frey, 8 Serg. & R. 
 299, in which land, devised to a widow for 
 life, with directions to executors to sell it at 
 her death and divide the proceeds of sale 
 equally among the testator's children, was 
 sold by agreement of all parties in her life- 
 time, and the purchaser expressly agreed to 
 pay the purchase money to the heirs at 
 her death and to pay interest thereon an- 
 nually to her during her life. The decision, 
 in favor of the apportionment of the interest 
 during the year in which she died, rests 
 either on the express agreement of the par- 
 ties, or on a somewhat doubtful analogy to 
 the cases, already mentioned, of provisions 
 for the support of children or for the sep- 
 arate maintenance of a wife. See Wiggin 
 V. Swett, 6 Mete. (Mass.) 194, and other 
 cases above cited. Gheen v. Osborn, 17 
 Serg. & R. 171; Tracy v. Strong, 2 Conn. 
 059; Manning v. Randolph, 4 N. J. Law 
 144. 
 
 The other is In re Rogers' Trusts, 1 Drew. 
 & S. 338, in which Vice-Ohancellor Kinders- 
 540 
 
 ley held that bonds or debentures issued by 
 a railway company under authority of an 
 act of parliament, with coupons for interest 
 attached to the bonds and payable half- 
 yearly to the bearer, were in the nature 
 of a mortgage to secure a sum of money, 
 and that the interest thereon was not an en- 
 tirety, but an accumulation of each day's 
 interest, which accrued de die in diem, and 
 was therefore apportionable. 
 
 On the other hand, a com-t of like jurisdic- 
 tion in Pennsylvania, after a careful review 
 of the earlier English cases, held that not 
 only interest on the debt of the United 
 States, but also interest on the funded debt 
 of a canal corporation, was not apportion- 
 able. Earp's Will, 1 Pars. Eq. Cas. 453, 467. 
 
 In this country, it is well settled, that 
 bonds issued by a railroad corporation, pay- 
 able to order or bearer, are negotiaole instru- 
 ments; and that the coupons, attached to 
 the bonds, and payable in like manner, may 
 be severed from the bonds before the cou- 
 pons become payable, and, after being sev- 
 ered, may be separately negotiated, the hold- 
 er may maintain an action upon them at 
 their maturity without producing or owning 
 the bonds, the statute of limitations begins 
 to run against such an action as soon as the 
 coupons are payable, and the coupons are not 
 afEected by the cancellation or payment of 
 the bonds to which they were originally at- 
 tached, and are in legal effect equivalent to 
 distinct bonds for the payment of the sums 
 and at the times named therein. Clark v. 
 Iowa City, 20 Wall. 583, and cases there 
 cited. To hold a sum of money, which is 
 substantially, and in so many aspects, a 
 distinct debt payable at a fixed time, to ac- 
 crue from day to day upon the principal 
 sum named in the bond, and to be apportion- 
 able accordingly, would be going beyond any 
 other precedent which has been brought to 
 our notice. 
 
 The bonds of the United States are evi- 
 dence of money borrowed by the government 
 in no other sense than the English annuities. 
 They are commonly bought and held by way 
 of investment. The coupons are severable 
 and negotiable separately. Spooner v. 
 Holmes, 102 Mass. 503; Vermilye v. Express 
 Co., 21 Wall. 138. Neither the principal sum 
 of the bond, nor the interest expressed in the 
 coupon, is payable, or can be demanded by 
 the holder, except at stated times fixed by 
 the terms of the bonds themselves and of 
 the acts of congress under which they were 
 issued. They appear to us to fall within the 
 general rule of law which does not allow the 
 apportionment of such payments, and not 
 within the mle which governs interest on 
 ordinary debts between individuals. 
 
 We have no such statute as the recent act 
 of parliament of 33 & 34 Vict. c. 35, enacting 
 that all rents, annuities, dividends, or other 
 periodical payments in the nature of income, 
 "shall, like interest on money lent, be consid- 
 ered as accruing from day to day, and shall 
 
§ 140) 
 
 DEXTER V. PHILLIPS. 
 
 Case No. 195 
 
 be apportionable in respect of time accord- 
 ingly." Our legislature has provided for the 
 apportionment of "an annuity, or the use, 
 rent, income or interest of any property, 
 real or personal, or the income of any fund," 
 only as between those taking successive in- 
 terests under a will; and has not deemed it 
 necessary, in order to secure the carrying 
 out of a testator's intention, the accuracy of 
 the inventory and appraisal of his property, 
 or the just rights of his legatees, to provide 
 that siuns growing due at the time of his 
 death should be apportioned between the cap- 
 ital and the income of his estate. Gen. St. 
 c. 97, §§ 23, 24. If in this or any other class 
 of cases, not covered by statute, the existing 
 rule of law should be found inequitable or 
 inconvenient in its operation, it is for the 
 legislature, not for the com-t, to change it. 
 
 The result is, that the whole of the rents 
 of the real estate, and of the interest on 
 bonds of the United States, which became 
 payable after the death of the testator, is to 
 be treated as income under his will. As to 
 the other bonds and notes mentioned in the 
 the bill, no facts are stated upon which an 
 opinion can be formed, and no argument has 
 been addressed to us. 
 
 Decree accordingly. 
 
 The bin was afterwards amended, by leave 
 of court, by inserting the following descrip- 
 tion of the bonds and notes referred to iii 
 the bUl as originally filed:— 
 
 "That said bonds and notes were, some of 
 them bonds of the United States with cou- 
 pons for interest; some of them registered 
 bonds of the United States without coupons; 
 some of them bonds of municipal corpora- 
 tions with coupons; some of them bonds of 
 difterent states of the United States wltli 
 coupons; some of them bonds of incorporat- 
 ed companies with coupons; some of them 
 registered bonds of incorporated companies 
 with coupons; some of them registered bonds 
 of incorporated companies without coupons; 
 the principal of aU the aforesaid bonds not 
 having become due and payable at the death 
 of the testator, except certain of the bonds 
 of the United States, called five-twenties, 
 which were made payable at the end of 
 twenty years from their date, or at any 
 time after five years from their date at the 
 pleasure of the United States, and upon 
 which the five years had elapsed, but no ac- 
 tion had been taken by the United States at 
 the death of the testator; some of them notes 
 of individuals, secured by mortgage or col- 
 lateral, or with siireties, and being without 
 coupons, the principal of which was not due 
 at the death of the testator; some of them 
 notes of incorporated companies, without 
 coupons, the principal of which was not due 
 at the death of the testator; one note of an 
 individual without coupons, secured by mort- 
 gage, the principal of which was due at the 
 death of the testator; an obligation of the 
 Boston & Lowell Railroad Company, redeem- 
 
 able at a day after the testator's death, 
 either in money or stock, at said company's 
 option, with interest at four per cent annu- 
 ally, on its nominal amount, but without cou- 
 pons; and some bonds of the Somerset Club, 
 so-called, not a corporation or partnership, 
 with coupons, secured by a trust deed of real 
 estate, and not due at the testator's death, 
 and upon which no individual or corporation 
 was personally liable." 
 
 By agreement of parties the case was 
 heard by" COLT, .T., on the amended bill and 
 the answers previously filed, and was re- 
 served for the consideration of the full coui't. 
 
 In March, 1876, the case was submitted on 
 briefs by the same counsel. 
 
 GRAY, 0.' J. The brief now submitted for 
 the remaindermen, since the bill has been 
 amended by stating more particularly the 
 nature of the various securities held by the 
 plaintiffs, consists in great part of a re-argu- 
 ment of the question which has been already 
 fully considered and decided. But, owing to 
 the practical importance of the subject, it 
 has been taken under advisement by all the 
 judges, including those who were not present 
 at the former argument, and the opinion now 
 announced is the unanimous judgment of the 
 court. 
 
 Apportionment of interest on an ordinary 
 debt is allowed, not because the interest is 
 a sum certain, payable at a fixed time, and 
 therefore easily apportionable; but upon 
 the ground that it accrues from day to day 
 for "delay of payment of what is due," or 
 "for forbearance of the principal," which the 
 creditor is entitled to recall at pleasure. 
 The same rule has been extended to cases in 
 which the debt is secured by bond or mort- 
 gage, because the bond or mortgage, al- 
 though it fixes dates for the payment of the 
 interest, is treated as a niere security for, 
 not changing the nature of, the original obli- 
 gation; and, as the interest is held to accnie 
 from day to day, it has been doubted wheth- 
 er, strictly si)eaking, it could be said to be a 
 case of apportionment. Sir Joseph Jekyll, 
 M. II., in Hay v. Palmer, 2 P. Wms. 501, 502, 
 ad fin., and Cox's note to page 503; Lord 
 Hardwicke, in Pearly v. Smith, 3 Atk. 260, 
 261, and in Wilson v. Harman, 2 Ves. Sr. 
 672, 673; 1 Swanst. 349, note; 2 Spence, Eq. 
 Jm-. 578. 
 
 We are bound therefore by authority- 
 whatever might be our opinion if it were an 
 original question— to hold that the interest 
 was apportionable, not only upon what is de- 
 scribed in the bill as the "note of an individ- 
 ual, without coupons, secured by mortgage, 
 the principal of which was due at the death 
 of the testator," but also upon the "notes of 
 individuals, secured by mortgage or collat- 
 eral, or with sureties, and being without cou- 
 pons, the principal of which was not due at 
 the death of the testator;" as well as upon 
 the "notes of incorporated companies, with- 
 out coupons, the principal of which was not 
 
 541 
 
Case Xo. 195 
 
 DEXTER V. PHILLIPS. 
 
 (§ 140 
 
 due at the death of the testator," and which, 
 not being otherwise described, we assume to 
 be ordinary promissory notes, such as are 
 usually given for money lent. 
 
 But the authorities cited in the former opin- 
 ion show that, from a time anterior to the 
 American Revolution, It has been clearly set- 
 tled in England that in the case of invest- 
 ments in the public funds, on which Interest 
 was payable at stated periods, and the prin- 
 cipal of which might be paid at any time at 
 the option of the government, the general 
 rule applied, and no apportionment could be 
 allowed, except when provided for by stat- 
 ute. 
 
 Bonds of the United States, the princiiial 
 of which is not yet payable, must be gov- 
 erned by the same rule. The government Is 
 not, and never was, under any obligation to 
 pay either principal or interest, except at 
 the times stipulated in the securities them- 
 selves. There is no possible construction or 
 fiction of law, upon which interest can be 
 said to accrue from day to day upon a prin- 
 ciijal sum not yet payable, and which the 
 payee has never had a right to demand. 
 His rights, in this respect, are not affected by 
 the question whether the obligation to pay 
 interest is expressed in the principal bond, 
 or in coupons annexed thereto. Xor can the 
 natm-e or the unity of each instalment of in- 
 come be affected by the fact whether the 
 principal is to be paid absolutely at a tinn' 
 certain, or at the option of the government, 
 or at that of the payee, tlie time not having 
 elapsed, and the option not having been ex- 
 543 
 
 ercised. It follows that no apportionment of 
 interest can be allowed upon any of the 
 bonds of the United States, held by the plain- 
 tifCs, except those the principal of which was 
 already due and payable at the time of the 
 testator's death. 
 
 The bonds of a state must, of course, be 
 governed by the same rule. And we are of 
 opinion that no valid distinction can be made 
 with regard to the bonds or certificates of 
 counties, cities or towns, or of railroad cor- 
 porations, copies of which are annexed to 
 the amended bill. They are not like an or- 
 dinary promissory note or bond for money 
 lent, which is already due and payable, and 
 of which the debtor has obtained an exten- 
 sion of the time of payment. They are not 
 issued separately for the payment of specific 
 debts, but are commonly purchased and held 
 by way of investment. They are not evi- 
 dence of any debt whatever from the cor- 
 poration to the holder, except that arising at 
 the very time of the issue of the bonds, and 
 payable only at the times specified therein. 
 
 The so-called note of the receivers and 
 managers of certain railroads in Vermont, 
 and the certificate issued by the Somerset 
 Club, each of which creates ho personal or 
 corporate liability, but is to be satisfied, at 
 a future day, only out of a fund held under 
 a special trust, the terms of which have not 
 been made known to us, must, in the ab- 
 sence of any facts to show the contrary, fall 
 within the general rule, and be held not to 
 be subject to apportionment. 
 
 Decree accordingly. 
 
§ 111) 
 
 MAKTIN V. CRUMP, 
 
 Case Xo. lt:6 
 
 MARTIN T. CRUMP. 
 (2 Salk. 444.) 
 King's Bench. 10 Wm. III. 
 Two joint merchants make B. their 
 
 fac- 
 
 tor; one dies, leaving an executor; this ex- 
 ecutor and the survivor cannot join, for the 
 remedy siu-vives, but not the duty; and 
 therefore on recovery he must be accounta- 
 ble to the executor for that 
 
 543 
 
Case No. 197 
 
 BASSETT V. MILLEK. 
 
 (§ 141 
 
 BASSETT et al. v. MILLER. 
 
 (39 Mich. 133.) 
 
 Supreme Court of Michigan. June Term, 1878. 
 
 Error to superior court of Grand Eapids. 
 
 Simmonds & Fletcher, for plaintiffs in er- 
 ror*. Blair, Eggleston, Kingsley & Klein- 
 hans, for defendant in error. 
 
 CAMPBELL, C. J. This case presents, as 
 we think, but one important question, and 
 that is whether surviving partners who sell 
 goods which belong to their firm can re- 
 cover for their price In their own names, 
 -\'ithout joining the representatives of the 
 deceased partner. The principle is well set- 
 
 544 
 
 tied that the entire legal estate vests in the 
 survivors, and no one else can be regarded 
 as having any legal interest in the assets. 
 Barry v. Briggs, 22 Mich. 201; PfefCer v. 
 Steiner, 27 Mich. 537; Merritt v. Dickey, 38 
 Mich. 41. 
 
 The cornet erred in holding that the sur- 
 vivors could not sue for goods sold by them 
 until they had an assignment or had for- 
 mally organized a new firm. 
 
 The other questions are not very distinctly 
 presented, and need not be considered. There 
 was evidence tending to show liability which 
 the jury could consider. 
 
 Judgment must be reversed, with costs, 
 and a new trial ordered. 
 
 The other justices concurred 
 
§ 141) 
 
 BOHLER V. TAPPAN. 
 
 Case No. 193 
 
 BOHLER, HUSE & CO. v. TAPPAK. 
 
 (1 Fed. 469.) 
 District Court, B. D. Arkansas. 1880. 
 
 Burnett & Turner were partners In the 
 business of keeping a wharf-boat at Helena. 
 The fii-m owned a whai-f-boat, which was 
 purchased and used for partnership purposes, 
 and was partnership property. This wharf- 
 boat was piu-chased from Johnson, partially 
 or wholly upon ci-edit. Burnett, one of the 
 partners, died before the wharf-boat was 
 paid for, and after his death, and on the 
 twenty-fifth day of April, 1879, Tm-ner, as 
 surviving member of the firm of Bm-nett & 
 Turner, transferred the wharf-boat, by deed 
 of trust in the nature of a mortgage, to Tap- 
 pan, to secure the payment to Johnson of the 
 balance of the purchase money. The deed 
 of ti-ust was duly acknowledged and record- 
 ed on the twenly-fifth of April, 1879. 
 
 On the twelfth of March, 1879, Bohler, 
 Huse & Co. recovered a judgment against 
 Burnett & Turner, in the United States dis- 
 trict court, at Helena, for $1,399.78, and 
 costs. On the twenty-sixth day of April exe- 
 cution was issued on this judgment, and on 
 the thirtieth day of the same month the 
 writ came to the hands of the marshal, and 
 was levied on this same wharf-boat. By 
 agreement the boat was sold, and the pro- 
 ceeds paid into the registry until it should be 
 determined whether the plaintiffs in the exe- 
 cution, or the beneficiary under the deed of 
 trust, was entitled thereto. 
 
 Thwealt & Quarles, for plaintiffs. Tappan 
 & Horner, for defendant. 
 
 CALDWELL, J. The precise question in 
 this case, on the agreed facts, is whether a 
 sole surviving partner can make a valid 
 transfer by deed of trust in the nature of a 
 mortgage of personal property, belonging to 
 the partnership, to secm'e the payment of a 
 partnership debt. 
 
 During the continuance of a partnership 
 one partner may transfer personal property 
 by way of mortgage as security for a part- 
 nership debt. Milton v. Mosher, 7 Mete. 
 (Mass.) 244; Patch v. Wheatland, 8 Allen, 
 102; Anderson v. Tompkins, 1 Brock. 456, 
 Fed. Cas. No. 365; Harrison v. Sterry, 5 
 Cranch, 289. 
 
 On the dissolution of partnership by the 
 death of one copartner, the right to the pos- 
 session and control of the partnership effects 
 vests in the survivor, for the purpose of set- 
 tling up the partnership affairs. He has the 
 legal title to the assets, and the exclusive 
 right of disposing of the property, and of col- 
 lecting and paying the partnership debts. 
 Steams v. Houghton, 38 Vt. 583; Boys v. 
 Vilas, 18 Wis. 179; Pinckney v. Wallace, 1 
 ABB. WILLS — 35 
 
 Abb. Pr. 82; Barry v. Briggs, 22 Mich. 201. 
 
 And the right and power of the sole sur- 
 viving partner to dispose of the partnership 
 effects, in settlement of the partnership busi- 
 ness, is not limited to the right to make an 
 absolute sale of the same, but he may trans- 
 fer the choses in action and other personal 
 property, by way of pledge or mortgage, to 
 secure a partnership debt; and, when such 
 transfer is made in good faith, it Is effectual 
 against all other creditors, as well as the 
 representatives of the deceased partner. 
 Lorillard v. Lorillard, 4 Abb. Pr. 210; Hitch- 
 cock V. St. John, 1 Hoff. Ch. 511; Wilson v. 
 Soper, 13 B. Mon. 411. 
 
 No fraud is charged or proven. The case 
 turns on the question of the power of a sole 
 surviving partner, acting in good faith, to 
 secure a partnership debt by giving a mort- 
 gage or other lien on personal property. His 
 right to do so is not open to serious ques- 
 tion. 
 
 The lien of the deed of trust is prior in 
 point of time, and therefore paramount to 
 the lien of the execution; and the money 
 arising from the sale of the wharf-boat must 
 be paid toi the beneficiary under the deed of 
 trust. 
 
 NOTE. In Daby v. Ericsson, (1871,) 45 N. 
 Y. 786, Andrews, J., said, (page 789:) "Upon the 
 death of one partner the demands and choses 
 in action of the copartnership belong to the sur- 
 viving partners, and they possess the sole and 
 exclusive right to reduce them to possession, 
 and when recovered they stand as trustees for 
 the representatives of the deceased partner to 
 the extent of his interest. The law not only 
 vests the legal title to the choses in action in 
 the surviving partner, but it casts upon him the 
 duty to get in the debts and settle the affairs 
 of the partnership. The jus accrescendi exists 
 for this purpose. Story, Partn. 346; Murray v. 
 Mumford, 6 Cow. 441; Peters v. Davis, 7 Mass. 
 257; Jarvis v. Hyer, 4 Dev. 367. The right to 
 assign is incident to the possession of the legal 
 title, and a defendant in an action by the as- 
 signee cannot question the consideration upon 
 which it was made. Story, Partn. § 115; Peter- 
 sen V. Banlc, 32 N. Y. 21. The Code has not 
 changed the rule upon this subject. The sur- 
 vivor of a firm is the real party in interest to a 
 demand owned by or due to the firm. The 
 debtor cannot, when sued by the survivor, object 
 that the representatives of the deceased partner 
 are not made parties with the survivor. Their 
 equity is to have an accounting and adjustment 
 of the affairs of the partnership, and they have 
 no specific interest in the debt sued upon, hut in 
 a residuum, which is uncertain and contingent. 
 It is not material, upon the question of the ca- 
 pacity of the surviving partner to maintain an 
 action for the partnership demand, that the ben- 
 eficial interest in the claim was by the arrange- 
 ment between the copartners in the deceased, or 
 that upon an accounting his representatives 
 would be entitled to the proceeds. The test is, 
 was the demand at the time of the death of the 
 copartner a copartnership demand? If it was, 
 the survivor takes the legal title with its inci- 
 dents, however limited his equitable interest 
 may be, and notwithstanding on an accounting 
 nothing might remain to him. Clark v. Howe, 
 23 Me. 560." 
 
 545 
 
Case No. 199 
 
 HOLLIS V. SMITH, 
 
 (§ 142 
 
 HOLLIS et al. v. SMITH. 
 (10 East, 293.) 
 King's Bench, Nov. 12, 1808. 
 The plaintiffs sued in trover as adminis- 
 trators, and declared in one count for a 
 loss of goods in the lifetime of the testator, 
 and the ti'over and conversion after his death 
 by the defendant; and in a second count 
 they declared on their own possession of the 
 goods, and the subsequent trover and con- 
 version. And having been nonsuited v^ith- 
 out any evidence, and the master having dis- 
 allowed the defendant his costs; Abbott ob- 
 tained a rule for the- master to tax the costs; 
 against which Wigley now shewed caiise, 
 and relied upon Oockerill v. Kynaston,' where 
 the executor declared in one count on a 
 trover and conversion in his testator's life- 
 time and in another count on a trover and 
 conversion after his death; and the evidence 
 offered, being only applicable to the first 
 count, he was held not liable to pay the costs 
 of a nonsuit. And BuUer, J., there took a 
 distinction, that if the goods never were in 
 the actual possession of the executrix, it 
 was absolutely necessary for her to declare 
 in that chai-acter. And here no evidence 
 having been given, it did not appear that 
 the goods ever were possessed by. the plain- 
 tiffs. 
 
 LORD BLLENBOROUGH, 0. J. That 
 opinion was overruled in BoUard v. Spencer.^ 
 
 ' 4 Term R. 277. 
 346 
 
 "7 Term R. 358. 
 
 The action is founded upon the plaintiff's 
 property, and it is immaterial whether they 
 were in fact possessed of it or not, before 
 the conversion by the defendant. And this 
 latter case was recognized by Lord Eldou in 
 Tattersall v. Groote,' where, though an ad- 
 ministratrix suing on a covenant with her 
 testator was held not liable to costs; yet 
 all the decisions in trover the other way 
 were left untouched by that judgment. It 
 was once endeavoured by Mr. Justice BuUer 
 to make it the test of an executor's exemp- 
 tion from costs, whether the money, when 
 recovered in the action, would be assets: but 
 that is certainly not the rule now. The ques- 
 tion is, whether It were necessary for the 
 plaintiffs to have declared as administrators? 
 and here it certainly was not necessary; for 
 on the death of their testator they were in 
 point of law the owners of goods which be- 
 longed to the intestate: and whether ac- 
 tually possessed by them or not before the 
 conversion, they might declai'e as any other 
 person upon their own property when wrong- 
 fully converted by another. 
 
 BAYLEY, J., referred to March v. Yellow- 
 ly, 2 Strange, 1107, assigning the reason why 
 executors shall be liable to costs in these 
 cases, which arise upon the words of the 
 Stat. 23 Hen. VIII. c. 15. 
 
 PER CURIAM. Rule absolute. 
 
 ■ 2 Bos. & P. 256. 
 
§ 143) 
 
 EMEUSON V. EilEiiSON. 
 
 Case Xo. 200 
 
 ElVfERSON V. EMERSON. 
 
 (1 Vent. 187.) 
 
 King's Bench. 1672. 
 
 Ti-iu. ult. Rot. 1389. Error of a judgment 
 in the common pleas, in an action of tres- 
 pass by the plaintiff as executor, upon the 
 statute of 4 Edw. III. "De bonis asportatis 
 in vita testatoris." The plaintiff declared, 
 that the defendant blada crescentia upon the 
 freehold of the testator, messuit, defalcavit, 
 cepit, asportavit. 
 
 Upon not guilty pleaded, a verdict and 
 judgment was for the plaintiff, and assigned 
 for error, that no action lay for cutting of 
 the corn; for that is a trespass done to the 
 freehold of the testator, for which the stat- 
 ute gives the executor no action, and while 
 the corn stands, 'tis to many purposes par- 
 cel of the freehold. So that if a man cuts 
 
 corn and carries it away presently, though 
 with a felonious intent, 'tis no felony: other- 
 wise, if he let it lie after 'tis cut, and at 
 another time comes and steals it. So that 
 it appears for parcel of the trespass no ac- 
 tion lies; then entire damages being given 
 as well for the cutting, as carrying away 
 of the corn, the judgment is erroneous. 
 
 But all THE COURT were of another 
 opinion; for 'tis but one entire trespass; 
 the declaration only describes the manner 
 of taking it away. Indeed, if it had been 
 quare clausum fregit & blada asportavit, it 
 had been naught; or if he had cut the corn 
 and let it lie, no action would have lain for 
 executor. So if the grass of the testator 
 be cut, and carried away at the same time; 
 because the grass is part of the freehold, 
 but corn growing is a chattel. The statute 
 of 4 Edw. III. hath been always expounded 
 largely. 
 
 547 
 
Case No. 201 
 
 MOSHEK V. YOST. 
 
 (§ 144 
 
 MOSHER et al. v. YOST et al. 
 
 (33 Barb. 277.) 
 
 Supreme Court of New York, General Term. 
 Jan. 1, 1861. 
 
 Action for the recovery of certain real es- 
 tate and for damages for withholding the 
 same. The answer was a general denial. 
 Plaintiff gave in evidence a lease and divers 
 assignments vesting the title in one James 
 Mantany, who died in 1857, in possession of 
 the premises. Deceased left a will, which 
 was never admitted to probate, but was de- 
 clared invalid by the surrogate. Letters of 
 administration were issued. A son, after the 
 death of his father, claimed to be the owner 
 of his farm by gift from the father, and sold 
 his interest therein to defendant's assignee, 
 at the same time transferring the lease to 
 them. Plaintiffs claimed under the assign- 
 ment of a lease from the administratrix of 
 the decedent. The defendants took posses- 
 sion. Judgment was rendered for the plain- 
 tiffs for possession of the property and for 
 mesne profits. The defendants appeal. 
 
 Before ROSBKRANS, POTTER, and 
 BOCKES, Justices. 
 
 W. Higbie and H. Link, for appellants. 
 Hardin & Burrows, for respondents. 
 
 ROSEKRANS, J. We need not discuss 
 the question whether the instrument signed 
 by Lois Mantany, in form, passed to the 
 plaintiff the title to the land and lease under 
 wliich the farm was held, the possession of 
 which is the subject of this action. Conced- 
 ing that it did, the deed of Mrs. Mantany 
 was clearly void upon the ground that the 
 premises In question wfere, at the date of 
 that deed, in the actual possession of the de- 
 fendants claiming title under an assignment 
 of the lease from William Mantany. The 
 estate of the original lessees was a freehold 
 estate, it being for their lives. 1 Rev. St. 
 p. 722, § 5. These lessees were stUl in life. 
 By the assignment or conveyance of that 
 lease the assignee or grantee became the 
 owner of the lands, and held an estate dur- 
 ing the life of another. This was the nature 
 of the estate which James Mantany held at 
 the time of his death. The statute declares 
 that it was a freehold estate during his life, 
 but that after his death it became a chattel 
 real. 1 Rev. St. p. 723, § 6. This estate 
 passed as assets to the administrators of his 
 estate. 2 Rev. St. p. 83, § 6. At common 
 law, if a man had an estate granted to him 
 (without naming his heirs) for the life of an- 
 other, and died during the life of him by 
 whose life it was holden, any one who could 
 first enter on the land might lawfully retain 
 it, so long as the cestui que vie lived, by right 
 of occupancy. The land did not revert to 
 the grantor, for he had parted with all his 
 interest so long as the one by whose life it 
 was holden lived; it did not escheat to the 
 lord of the fee, for all escheats must be of 
 the absolute entire fee and not of any par- 
 
 548 
 
 ticular estate carved out of it; and it did 
 not belong to the grantee, for he was dead. 
 It did not desceud to the heirs of the gran- 
 tee, for there were no words of inheritance 
 in the gi-ant; nor could it vest in his exec- 
 utors, for no executor could succeed to a 
 freehold. And if an estate for the life of an- 
 other was granted to a man and his heirs, 
 and the grantee died, his heir might enter 
 and hold possession, and was called a spe- 
 cial occupant as having a special exclusive 
 right, by the terms of the grant, to enter 
 upon and hold the land. The heir was not 
 regarded as taking by descent, and if sued 
 upon the bond of his ancestor he could plead 
 riens per descent, as these estates were not 
 liable to the debt of the ancestor. To rem- 
 edy these evils the statute of 29 Car. II. en- 
 acted that such estate pour autre vie should 
 be devisable, and in case no devise thereof 
 should be made, the same should be charge- 
 able in the hands of the heir if it came to 
 him by reason of a special occupancy as as- 
 sets, by descent, as in case of lands in fee 
 simple, and in case there was no special oc- 
 cupant thereof, it should go to the executors 
 and administrators of the party who had the 
 estate by virtue of the grant, and be assets 
 in their hands for the payment of debts. 2 
 Bl. Comm. 258, etc., and notes; Williams. 
 Ex'rs, 1-69; 4 Kent, Comm. 26. This stat- 
 ute was enacted in this state, leaving out the 
 provision of the act of 29 Car. II. as to the 
 special occupant. 1 Rev. Laws, p. 365, § 4. 
 It directed that the estate, if not devised, 
 should go to the executors and administra- 
 tors of the party who had the estate, to be 
 applied and distributed as part of the per- 
 sonal estate. The only object of these stat- 
 utes was to prevent the land being taken by 
 a special occupant who could not be made 
 liable for the value of the land as heir, in 
 payment of the debts of his ancestor, and to 
 provide for the application of the estate to 
 the payment of the debts of the one who 
 held the estate, or the distribution of it 
 amongst his next of kin. They did not de- 
 stroy the estate, nor were they designed to 
 have that effect. It is a maxim in law tliat 
 an estate which once existed must continue 
 to reside somewhere. It cannot be anni- 
 hilated. Livingston v. Proseus, 2 Hill, 529. 
 The latter part of the provision of the re- 
 vised statute, (1 Rev. St. p. 722, § 6,) "that 
 an estate dm-ing the life of a third person, 
 whether limited to heirs or otherwise, shall 
 be deemed a freehold only during the life 
 of the grantee or devisee, but after his death 
 It shall be deemed a chattel real," could only 
 have been adopted to characterize the estate 
 for the pm-pose of passing it to the executor 
 or administrator of the testator or intestate. 
 Clearly it must have been intended that the 
 whole estate should pass to such executors 
 or administrators, and after it came to the 
 executors or administrators it would still 
 be an estate for the life of another, and so 
 a freehold estate. In Doe ex dem. Blake 
 
§ 144) 
 
 MOSHER V. YOST. 
 
 Case No. 201 
 
 V. Luxton, 6 Term R. 291, Lord Kenyon 
 says: "An estate per autre vie partakes 
 somewhat of the nature of personal estate, 
 though it is not a chattel interest. It still 
 remains a freehold interest for many pur- 
 poses, such as giving a qualification to vote 
 lor members of parliament, and kiU game, 
 and some others. A will to dispose of it 
 must always be attested by these witnesses, 
 under the statute of frauds." And in 3 
 Russ. 230, it was held that such an estate 
 was a perfect freehold, even in the hands of 
 the executors of the former owner of the es- 
 tate. Chancellor Kent says, in 4 ICent, 
 Comm. 27, such an estate "is a freehold in- 
 terest sub mode, or for certain purposes, 
 though in other respects it partakes of the 
 nature of personal estate." In the hands of 
 the grantee of the executor or administrator 
 it was the same freehold estate. This was 
 held in the case of Roseboom v. Van Vech- 
 ten, 5 Denio, 424-426. A freehold estate can 
 only be conveyed by deed. 1 Rev. St. p. 
 738, § 137; Watk. Con v. 31. The referee 
 finds, and concedes in his opinion, that at 
 the date of the conveyance by Mrs. Mantany 
 to the plaintiflE, the defendants were in ac- 
 tual possession of the lands, claiming title 
 under the assignment of the lease from Wil- 
 liam Mantany. The claim of the defendants, 
 therefore, was of a freehold estate. To con- 
 stitute an adverse possession it is not neces- 
 sary that the title under which the party 
 claims should be a good one, but simply that 
 he should enter under color and claim of 
 title exclusive of any other right. Rose- 
 boom V. Van Vechten, 5 Denio, 426; Liv- 
 ingston V. Peru Iron Co., 9 Wend. 517. The 
 
 possession must be adverse to the one who 
 is entitled to the possession. Clarke v. 
 Hughes, 13 Barb. 147; Vrooman v. Shep- 
 herd, 14 Barb. 450, and authority cited. If 
 a lessee for life or years be ousted of the 
 land by a stranger, and after ouster and be- 
 fore his entry he surrenders to his lessor, it 
 is not a good surrender, for he has but a 
 right, at the time of the surrender. Perk. 
 § 600. In the case cited last above, (14 Barb. 
 453,) Hand, J., says: "When the lessee for 
 life is disseised, the rule in relation to sur- 
 renders prevails, and his conveyance is clear- 
 ly void as a surrender." The same rule pre- 
 vails as to a grant to any other person than 
 the lessor. The learned referee seemed to 
 thinlt that the administrators of James Man- 
 tany could not have maintained ejectment 
 against the grantees of William Mantany. 
 In this he is clearly mistaken. They liad 
 an estate in the land, and were entitled to 
 the possession; and this is all that is neces- 
 sary to maintain ejectment. An executor 
 may maintain ejectment when the testator 
 had a lease for years, or from year to year, 
 upon an ouster after his death. Williams, 
 Ex'rs, 748; Blade's Case, 4 Coke, 95; Mo- 
 reron's Case, 1 Vent. 30; Doe v. Porter, 3 
 Term R. 13; Rose. Act. 545; Doe v. Brad- 
 bury, 16 E. C. L. 115. The action should 
 have been brought in the name of the ad- 
 ministrators of James Mantany. Livingston 
 V. Proseus, 2 Hill. 529. For these reasons 
 the judgment should be reversed, and a new 
 trial granted, with costs to abide the event. 
 
 POTTER, J., concurred. BOCKES, J., dis- 
 sented. 
 
 549 
 
■Case No. 202 
 
 EEIFF 0. KEirr. 
 
 (§ 145 
 
 RETFF et al. v. REIFF. 
 
 (G4 Pa. St. 134.) 
 
 Supreme Court of Pennsylvania. Jan. 31, 1870. 
 
 Action of trespass by Elizabeth P. Reiff, 
 Letitia P. Reiff, and Susanna P. RelfC against 
 Charles P. Reiff. 
 
 The following charge of Judge Chapman 
 states the facts: 
 
 "This is an action of trespass, brought to 
 recover damages for cutting and carrying 
 away a quantity of grass growing upon a 
 tract of about 152 acres of land, which had 
 been leased to the plaintiffs by Mary Reiff, 
 their mother, and widow of John Reiff, de- 
 ceased. 
 
 "It appears that 'John Reiff, by his last 
 will and testament, proved the 3d of April, 
 1855, devised to his wife, during her life, the 
 premises mentioned, and that she leased 
 the same to her daughters, the plaintiffs. 
 The first lease is dated the 3d of November, 
 1866; the second the 1st of April, 1867; and 
 the third and last, the 25th of February, 
 1868,— each for one year. The last was to 
 expire on the 1st of April, 1869. The widow 
 died on the 15th of June, 1868. At the time 
 of her death, there were standing, uncut, on 
 the premises, a quantity of mixed timothy 
 and clover grass, a quantity of grass, part 
 meadow and part timothy, and a quantity 
 of timothy exclusively. This was sold by 
 the executors of John Reiff; the defendant 
 became the purchaser and entered on the 
 premises by authority of the executors, and 
 cut and hauled it away. The plaintiffs al- 
 lege the defendant was a ti'espasser, and is 
 liable to answer in damages, for entering 
 on the premises without their permission, 
 and cutting and carrying away the grass. 
 
 "The material question in this case is, to 
 whom did the grass belong? It must be 
 admitted that the lessees of the widow, 
 could acquire no greater right than she had. 
 If this grass, upon her death, would have 
 passed under the will, no conti-act made by 
 her, could enlarge her rights. Otherwise 
 the lessees might have maintained their 
 right to the occupancy of the premises, un- 
 til the end of the term. This could not be, 
 for it would be repugnant to the will. The 
 devise was to her for life. Her death ter- 
 minated her estate. But it is contended 
 certain emblements would have passed to 
 her estate, and to these her lessees are enti- 
 tled. This is true; yet it by no means fol- 
 lows, that clover, timothy and meadow grass 
 come within the description of emblements 
 to which her estate or her lessees are enti- 
 tled. It may be admitted, that Indian corn, 
 wheat, rye, oats, buckwheat and potatoes, 
 and even hemp, Hungarian grass, flax and 
 millet are Included among the emblements 
 that do not pass to the remainder-man, but 
 these are all annual products; when cut the 
 root dies. It is not so with clover, tlmo- 
 
 thy or meadow grass, the latter especially, 
 which is entirely spontaneous. Generally, 
 neither clover nor timothy is a principal 
 crop, being usually sown with wheat or lye, 
 and with a view to bring the land into a 
 condition to produce hay or pastm-e, accord- 
 ing to the approved system of rotation. 
 Neither clover nor timothy mature the first 
 year, clover does not until the second sum- 
 mer, and timothy not until the third. If 
 the tenant for life dies just after the grain 
 harvest, may his representatives or lessees 
 enter on the premises, one, two or three 
 years thereafter, and cut the grass, or pas- 
 ture the fields? If so, when is the remain- 
 der-man to get the exclusive possession of 
 the land? The enjoyment of his rights, un- 
 der the will, would be postponed far be- 
 yond the period fixed by it; and the tenant 
 for life or his lessee could, by a peculiar 
 system of cultivation, produce the delay. 
 It is urged, as the tenants here sowed the 
 clover and timothy seed, they should not be 
 deprived of the fruits of their labor, but it 
 may be answered, that dm-ing the previous 
 year, they had the benefit of the pasture, 
 after the grain was cut and removed from 
 the fields. For it will be remembered the 
 crop of grass, cut by the defendant, was 
 not sowed the last year they occupied the 
 premises, but diu:ing the first or second year 
 of their tenancy." 
 
 "The custom of the country which allows 
 to a tenant the way-going crop, is not ap- 
 plicable to this case, — still there is some 
 analogy between the two relations, and some 
 aid may be derived from the law governing 
 the relation of landlord and tenant. It has 
 never been pretended that a tenant from 
 year to year had a right to anything more 
 than the crop of grain sown by him; to en- 
 large the right to the crop of grass pro- 
 duced a year or two after, from seed sown 
 at the same time, would comport with no 
 custom or law, but would be opposed to 
 well-established rules of good husbandry, 
 and convert what may have been intended 
 as a lease for a year, into an indefinite term, 
 for it is well known that timothy and clover 
 are perennial grasses, and will spring from 
 the root for several successive years. If 
 the tenant is entitled to the first yield of 
 grass, why not to the second, third and 
 fourth, or until the root is exhausted? 
 
 "The industry of the counsel has not been 
 rewarded by much law bearing upon this 
 case, and we are therefore compelled to 
 adopt such rules as are suggested by reason 
 and reflection. 
 
 "It is the opinion of the coml that the 
 growing crops of the particular grass cut 
 and hauled away by the defendant, passed, 
 by the will of the testator, along with the 
 land, and the executors had the right to sell 
 them and confer upon the purchaser tlie 
 right to cut and haul them away, or to house 
 them on the premises. If you believe the 
 
145) 
 
 REirr V. KEirr. 
 
 Case No. 202 
 
 evidence, the verdict must be for the de- 
 fendant." 
 Verdict for defendant. Plaintiff appeals. 
 
 D. H. Mulvany and R. C. McMurtrie. for 
 plaintiffs in error. G. R. Fox, for defend- 
 ant in error. 
 
 READ, J. The plaintiffs in error were 
 the lessees of a farm of 152 acres, from 
 their mother, a widow, who had a life estate 
 in it under the will of her husband, their 
 father. They were annual lessees from the 
 1st April, 186C, 1867, and 1868, the widow 
 dying on the 15th June, 1868. At the time 
 of her death, there was standing tmcut on 
 the premises, a quantity of mixed timothy 
 iind clover grass, a quantity of grass part 
 meadow and part timothy, and a quantity 
 of timothy exclusively. The question was, 
 was this grass emblements, belonging to the 
 
 tenants of the deceased owner of the hfe- 
 estate? The vegetable chattels called "em- 
 blements" are the corn and other growth of 
 the earth which are produced annually, not 
 spontaneously but by labor and industi-y 
 and thence are called "fructus industriales." 
 The growing crop of grass, even if grown 
 from seed, and though ready to be cut for 
 hay, cannot be taken as emblements: be- 
 cause as it is said the improvement is not 
 distinguishable from what is natural prod- 
 uct, although it may be increased by culti- 
 vation. 1 Williams, Ex'rs, 670, 672. 
 
 The learned judge in the com't below is a 
 practical farmer, thoroughly acquainted with 
 the established usages of our state, and we 
 have no hesitation in agreeing with him 
 that this crop of hay was not emblements, 
 and belonged to the executors of the testa- 
 tor. 
 
 Judgment affirmed. 
 
 551 
 
Case No. 203 
 
 LAWTON V. LAWTON. 
 
 C§146 
 
 LAWTON v. LAWTON. 
 
 (3 Atk. 13.) 
 
 High Court of Chancery. Dec. 14, 1743. 
 
 The material question in the cause was, 
 whether a fire-engine set up for the benefit 
 of a colliery by a tenant for life, shall be 
 considered as personal estate, and go to his 
 executor, or fixed to the freehold, and go to 
 a remainder-man. 
 
 There was evidence read for the plaintiff, 
 a creditor of the tenant for life, to prove 
 that the fire-engine was worth, to be sold, 
 three hundred and fifty poimds; and that 
 it is customary to remove them; and that 
 in building of sheds for securing the engine, 
 they leave holes for the ends of timber, 
 to make it more commodious for removal, 
 and that they are very capable of being 
 carried from one place to another. 
 
 That the testator, the counsel for the plain- 
 tiff said, was dead, greatly indebted, and it 
 would be hard, when he has been laying out 
 his creditors' money in erecting this engine, 
 that they should not have the benefit of it, 
 but that the strict rule of law should take 
 place. 
 
 Mr. Wilbraham, for plaintiff. Mr. Clark, 
 of counsel for defendant. 
 
 LORD CHANCELLOR HARDWICKE. 
 This is a demand by a creditor of Mr. Law- 
 ton, who set up the fire-engine, to have the 
 fund for payment of debts extended as much 
 as possible. 
 
 It is true the court cannot construe the 
 fund for assets, further than the law allows, 
 but they will do it the utmost they can in 
 favor of creditors. 
 
 This brings on the question of the fire- 
 engine, whether it shall be considered as 
 personal estate, and consequently applied 
 to the increase of assets for payment of 
 debts. 
 
 Now it does appear in evidence, that in 
 its own nature it is a personal movable 
 chattel, taken either in part, or in gross, 
 before it is put up. 
 
 But then it has been insisted, that fixing 
 it in order to make it work, is properly an 
 annexation to the freehold. 
 
 To be siu'e, in the old cases, they go a great 
 way upon the annexation to the freehold, 
 and so long ago as Henry the Seventh's 
 time, the courts of law construed even a cop- 
 per and furnaces to be part of the freehold. 
 
 Since that time, the general ground the 
 courts have gone upon of relaxing this strict 
 construction of law is, that it is for the 
 benefit of the public to encourage tenants 
 for life, to do what is advantageous to the 
 estate during their term. 
 
 What would have been held to be waste 
 in Henry the Seventh's time, as remov- 
 ing wainscot fixed only by screws, and 
 552 
 
 marble chimney pieces, is now allowed to 
 be done. 
 
 Coppers and all sorts of brewing vessels, 
 cannot possibly be used without being 
 as much fixed as fire-engines, and in 
 brewhouses especially, pipes must be laid 
 through the walls, and supported by walls; 
 and yet, notwithstanding this, as they are 
 laid for the convenience of trade, landlords 
 will not be allowed to retain them. 
 
 This being the general rule, consider how 
 the case stands as to the engine, which is 
 now in question. 
 
 It is said, there are two maxims which are 
 strong for the remainder-man: First, that 
 you shall not destroy the principal thing, 
 by taking away the accessory to it. 
 
 This is very true In general, but does not 
 hold in the present case, for the walls are 
 not the principal thing, as they are only 
 sheds to prevent any injury that might 
 otherwise happen to it. 
 
 Secondly, it has been said, that it must be 
 deemed part of the estate, because it can- 
 not subsist without it. 
 
 Now collieries formerly might be enjoyed 
 before the invention of engines, and there- 
 fore this is only a question of majus and 
 minus, whether it is more or less convenient 
 for the colliery. 
 
 There is no doubt but the case would 
 be very clear as between landlord and ten- 
 ant. 
 
 It is tru°, the old rules of law have indeed 
 been relaxed chiefly between landlord and 
 tenant, and not so frequently between an 
 ancestor and heir at law, or tenant for life 
 and remainder-man. 
 
 But even in these cases, it does admit the 
 consideration of public conveniency for de- 
 termining the question. 
 
 I think, even between ancestor and heir, 
 it would be very hard that such things 
 should go in every instance to the heir. 
 
 One reason that weighs with me is, its 
 being a mixed case between enjoying the 
 profits of the land, and carrying on a spe- 
 cies of trade; and, considering it in this 
 light, it comes very near the instances in 
 brewhouses, &c. of furnaces and coppers. 
 
 The case too of a cider-mill, between the 
 executor and the heir, mentioned by Mr. 
 Wilbraham, is extremely strong; for though 
 cider is part of the profits of the real estate, 
 yet it was held by Lord Chief Baron Com- 
 yns, a very able common lawyer, that the 
 cider-mill was personal estate notwithstand- 
 ing, and that it should go to the executor. 
 
 It does not differ it in my opinion, whether 
 a shed over such an engine be made of brick 
 or wood, for it is only intended to cover it 
 from the weather and other inconveniences. 
 
 This is not the case between an ancestor 
 and an heir, but an "intermediate" case, 
 as Lord Hobart calls it, between a tenant 
 for life and remainder-man. 
 
 Which way does the reason of the thing 
 
S 146) 
 
 LAWTON V. LAWTON. 
 
 Case No. 203 
 
 weigh most, between a tenant for life arid 
 a remainder-man, and the personal represent- ' 
 ative of tenant for life, or between an an- 
 cestor and his heir, and the personal rep- 
 resentative of the ancestor? Why, no doubt, 
 in favor of the foi-mer, and comes nearer the 
 case of a common tenant, where the good 
 of the public is the material consideration, 
 which determines the court to construe these 
 things personal estate; and is like the case 
 of emblements, which shall go to the execu- 
 tor, and not to the heir or remainder-man, 
 it being for the benefit of the kingdom, 
 which is interested in the produce of corn, 
 and other grain, and will not suffer them to 
 go to the heir. 
 
 It is very well known, that Uttle profit 
 can be made of coal-mines without this en- 
 gine; and tenants for lives would be dis- 
 cou.raged in erecting them, if they must go 
 from their representatives to a remote re- 
 mainder-man, when the tenant for life might 
 possibly die the next day after the engine 
 is set up. 
 
 These reasons of public benefit and con- 
 venience weigh greatly with me, and are a 
 principal ingredient in my present opinion. 
 
 Upon the whole, I think this fire-engine 
 ought to be considered as part of the per- 
 sonal estate of Mr. Lawton, and go to the 
 executor for the inciease of assets; and de- 
 creed accordingly. 
 
 553 
 
Case No. 204 
 
 LAWTON e. SALMON. 
 
 (5 i^o 
 
 LAWTON V. SALMON. 
 
 (1 H. Bl. 260, note.) 
 King's Bench. 22 Geo. III. 
 
 In this action of trover, brouglit by tlie 
 executor against the tenant of the heir at 
 law of the testator, to recover certain vessels 
 used in salt works, caUed "salt-pans," a 
 case was reserved by consent, which stated: 
 
 That the testator, some years before his 
 death, placed the salt-pans in the works: 
 that they were made of hammered iron and 
 ri vetted together; that they were brought 
 in pieces and might be again removed in 
 pieces; that they were not joined to the 
 walls, but were fixed with mortar to a brick 
 floor; that there were furnaces under them; 
 that there was a space for the workmen to go 
 round them; that there were no rooms over 
 them; but that there were lodgings at the 
 end of the wych-houses; that they might be 
 removed without injm-ing the buildings, 
 though the salt works would be of no value 
 without them, which with them were let 
 for £8 per week. 
 
 The question was. Whether the executor or 
 the heir at law were entitled to them ? 
 
 Mingay, for the plaintiff, said it was stated 
 in the case that the pans were not afilxed 
 to the freehold, but might be removed, they 
 ought therefore clearly to go to the executor. 
 He cited Lawton v. Lawton, 3 Atk. 13, and 
 the case of the cider miU there mentioned. 
 
 Davenport, for the defendant, argued that 
 the salt-pans were so annexed to the free- 
 hold as to pass to the heir at law, both in 
 respect to the strict rule of law, and the 
 uatm-e of the property itself; although they 
 were not fixed to the wall, yet they were 
 to the floor, which is part of the freehold. 
 Co. Litt. 53a; Herlakenden's Case, 4 Coke, 
 62; Moore, 17T; Owen, 70; 2 Vern. 508. As 
 to the case relied on 6 contra, in that of 
 Lawton v. Lawton, 3 Atk. 13, the question 
 was between a tenant for life, and a re- 
 mainder-man, and the distinction between 
 such parties and the heir and executor is 
 recognized by Lord Hardwicke in 1 Atk. 477. 
 Besides a fire-engine is merely an accessory, 
 and not a principal in a colliery, but the 
 wych-houses are of no value without the 
 salt-pans. If they were taken away, the 
 houses would go useless to the heir, and the 
 executor gain nothing but old iron. On the 
 jDrinciples of trade the public convenience 
 which operated with Lord Hardwicke in 
 Lawton V. Lawton, the defendant is entitled. 
 The case of the cider-miU is not reported, 
 and was only a nisi prius determination of 
 Comyn, who ia 1 Dig. 594, lays it down 
 that mill-stones go to the heir. It was the 
 opinion of Mr. Wilbraham, soon after the 
 case of the fire-engine was decided, that the 
 heir was entitled to fixtures of this Idnd, 
 and his opinion has ever since been acqui- 
 esced in. Though the pans may be removed, 
 
 .-.34 
 
 yet from their nature, and on the rule, that 
 the principal shall not be destroyed by re- 
 moving the accessary, they ought to remain 
 to the heh-. This is not a contest between 
 a tenant for years or life and the remainder- 
 man, but between the different representa- 
 tives of the same person. 
 
 Cur. vult advis. 
 
 On a subsequent day LORD MANSFIELD, 
 after stating the case, said: 
 
 All the old cases, some of which are in 
 the Year Books, and Brooke's Abridgement, 
 agi'ee. that whatever is connected with the 
 freehold, as wainscot, fm-naces, pictures fixed 
 to the wainscot, even though put up by the 
 tenant, belong to the heir. But there has 
 been a relaxation of the strict rule in that 
 species of cases, for the benefit of trade, 
 between, landlord and tenant, that many 
 things may now be taken away which could 
 not be formerly, such as erections for carry- 
 ing on any trade, marble chimney-pieces and 
 the like, when put up by the tenant. This 
 is no injm-y to the landlord, for the tenant 
 leaves ttie premises in the same state in 
 which he found them, and the tenant is 
 benefited. There has been also a relaxation 
 in another species of cases between tenant 
 for life and remainder-man, if the former 
 has been at any expence for the benefit of 
 the estate, as by erecting a fire-engine, or 
 any thing else by which it may be improved; 
 in such a case it has been determined that 
 the fire-engine should go to the executor, on 
 a principle of public convenience being an 
 encouragement to lay out money in improv- 
 ing the estate, which the tenant would not 
 otherwise be disposed to do. The same ar- 
 gument may be applied to the case of ten- 
 ant for life and remainder-man as that of 
 landlord and tenant, namely, that the re- 
 mainder-man is not injured, but takes the 
 estate in the same condition as if the thing 
 in question had never been raised. 
 
 But I cannot find that between heir and ex- 
 ecutor there has been any relaxation of this 
 sort, except in the case of the cyder-miUs, 
 which is not printed at large. The present 
 case is very strong. The salt-spring is a 
 valuable inheritance, but no profit arises 
 from it, unless there is a salt-work; which 
 consists of a building, &c. for the purpose 
 of containing the pans, &c. which are fixed 
 to the ground. The inheritance cannot be 
 enjoyed without them. They are accessa- 
 ries necessary to the enjoyment and use of 
 the principal. The owner erected them for 
 the benefit of the inheritance; he could never 
 mean to give them to the executor, and put 
 him to the expence of taking them away, 
 without any advantage to him, who could 
 only have the old materials, or a contribution 
 from the heir in lieu of them. But the heir 
 gains £8 per week by them. On the reason 
 of the thing tlierefore and the intention of 
 
§ 146) 
 
 LA AVION V. SALMON. 
 
 Case No. 204 
 
 the testator, they must go to the heir. It 
 would have been a different question, if the 
 springs had been let, and the tenant had 
 been at the expence of erecting these salt- 
 works; he might very well have said, "I 
 leavo the estate no worse than I found it.'' 
 That, as I stated before, wotUd be for the 
 encouragement and convenience of trade. 
 
 and the benefit of the estate, llr. Wllbra- 
 ham in his opinion talses the distinction be- 
 tween executor and tenant. For these rea- 
 sons we are all of opinion that the salt- 
 pans must go to the heir. 
 Postea to the defendant. 
 
 NOTE. See Winn v. Ingilby, 5 Barn. & Aid. 
 025; Oolegrave v. Dias Santos, 2 Barn. & C. 76. 
 
 555 
 
Case :So. 205 
 
 HOOVER V. HOOVER. 
 
 (§147 
 
 HOOVER V. HOOVER. 
 
 (5 Pa. St. 351.) 
 
 Supreme Court of Pennsylvania. June 9, 1847. 
 
 Appeal from the oi-phans' court of Cumber- 
 land. 
 
 The petition (or bill) stated that John 
 Hoover devised a tract of land to his son 
 David, yielding and paying out of the same 
 $7,250, in instalments of $700; the first pay- 
 able in six months after testator's decease, 
 the second in eighteen months thereafter, 
 and the remaining instalments yearly. Out 
 of the first instalment a legacy of $500 -wsls 
 given to the petitioner. Of the residue, por- 
 tions were given to the testator's other chil- 
 dren, and the amount undisposed of, veith 
 the residue of the estate, was given equally 
 among all the children. The petition then 
 averred the acceptance of the land devised, 
 prayed an order of sale, etc. 
 
 The answer of the devisee admitted the 
 will, of which he and another were execu- 
 tors, and averred a settlement of an admin- 
 istration account, by which it appeared he 
 had paid debts of the estate beyond the as- 
 sets $1,683.63, and that debts yet remained 
 unpaid, which, with that sum, amounted to 
 $4,453. It further averred there were no as- 
 sets nor any annual payment due out of the 
 land which respondent could apply to the 
 payment of legacies. That testator had 
 made no provision by his will for payment 
 of his debts, and that the estate would not 
 be sufiicient to pay all the legacies when the 
 assets came to hand, but that they must 
 abate ratably. 
 
 The complainant demurred, and the court 
 dismissed the bill. 
 
 Graham and Reed, for appellants. Biddle 
 and AVatts, contra. 
 
 BELL, J. It is admitted by the defend- 
 ant's answer, as indeed it could not, with 
 any show of reason, have been denied, that 
 the sum of $7,250, bequeathed by the testa- 
 tor to be paid to his children in the propor- 
 tions and at the time mentioned in his will, 
 is a charge upon the lands devised to David. 
 It is also admitted that the latter, in pursu- 
 ance of the will, took possession of the lands 
 devised, and still continues in the seisin and 
 occupation of them. Upon these facts alone, 
 it is not to be disputed that, having taken 
 the land cum onere, he is bound to pay to 
 his brothers and sisters their several lega- 
 cies as they respectively fall due, and this 
 liability may be enforced by a proceeding in 
 the orphans' court, such as has been insti- 
 tuted here, under the statute giving the spe- 
 cific remedy. By the terms of this will, not 
 only is a lien created on the land devised, 
 but the devisee, immediately upon his ac- 
 ceptance of it, became personally responsible 
 to the legatees for the amount of their re- 
 spective legacies. As is said in Glenn v. 
 . Fisher, 6 Johns. Ch. 33, a case which can- 
 
 556 
 
 not, in this particular, be distinguished from 
 the present, by acceptance, the devisee be- 
 comes absolutely bound for the legacies, and 
 cannot set up any condition precedent to it, 
 for the law makes none. He who accepts a 
 benefit under a will, must conform to all its 
 provisions, and renounce every right incon- 
 sistent with them. To the same effect is the 
 doctrine of our own case of Zobach's Case, 
 6 "Watts, 167, which, in its leading features, 
 is also very similar to the present. The tes- 
 tator, said Mr. Justice Kennedy, in deliver- 
 ing the opinion of the court, not only intend- 
 ed to charge the land, but to make it a 
 personal charge on the devisee, and he be- 
 came personally liable on taking possession 
 under the will. These distinct liabilities are 
 illustrated by the consideration that the es- 
 tate given to David may be treated as an 
 estate on condition. In a will, no precise 
 form of words is necessary to create a con- 
 dition. Any expressions denoting such an 
 intention wiU have tliat effect. Thus a de- 
 vise to A., "he paying," or "he to pay £500 
 in one year after my decease," would, it is 
 said, be a condition for the breach of which 
 the heir might enter. 2 Pow. Dev. 251; 
 Barnardiston v. Fane, 2 Vern. 306; 1 Eq. Cas. 
 Abr. 109, pi. 8. But in such a case equity 
 would afford relief against the forfeitm'e, on 
 payment of principal, interest and costs,. (1 
 Pow. Dev. 195, note 7;) and it is not to be 
 doubted that, on application of the party en- 
 titled to payment out of the land devised, the 
 devisee would be compelled to perform the 
 condition, on the principle that no man shall 
 be allowed to disappoint a will under which 
 he takes a benefit. Per Eyre, Chief Baron, 
 in Blake v. Bunbury, 1 Ves. Jr. 523. But the 
 defendant. David Hoover, endeavom-s to ex- 
 cape from the responsibility he has thus 
 assumed, by showing that, although five in- 
 stalments of $700 each were due, and pay- 
 able under the will of the testator, at the 
 time the plaintilf filed his bill in the orphans' 
 court, these were not sufficient in amount 
 to cover a balance of debts remaining dtie 
 from the testator's estate, after exhausting 
 the personal estate and other lands not de- 
 vised; and, therefore, he avers "there are no 
 assets of the estate of the said John Hoover, 
 deceased, in his hands, which he could apply 
 to the payment of the legacy of Michael 
 Hoover, nor is there any annual payment 
 due and payable out of the land so as afore- 
 said devised to him, which he can legally 
 and safely apply to the payment of the said 
 legacy or any part thereof." This averment 
 proceeds upon the notion that, although the 
 aggregate sum charged on the land, and 
 which, as we have seen, has become the per- 
 sonal debt of the devisee, is directed to be 
 paid in ascertained legacies and by way of 
 residuary bequest to the other children of 
 the testator, yet that is subject to be first 
 appropriated in payment of the debts due 
 from his estate, leaving only any balance 
 that may remain, applicable in satisfaction 
 
§ 147) 
 
 HOOVER V. HOOTER. 
 
 Case No. 205 
 
 of the legacies, pro rata. This view seems 
 to have been adopted by the orphans' court, 
 and to have led it to the support of the de- 
 fendant's answer by a dismissal of the plain- 
 tifiC's bill M'ith costs. But in this, we are 
 of opinion the court was cleai'ly wrong. 
 Viewed as a personal liability attaching up- 
 on the devisee, there can be no pretence 
 whatever to say the plaintiff's legacy is lia- 
 ble to be defeated by the fact that the tes- 
 tator died indebted in a larger amount than 
 his personal estate was sufficient to dis- 
 charge. This legacy is made directly pay 
 able by the devisee to the legatee, without 
 the intervention of the execiitor, who alone, 
 has to do with the payment of his testator's 
 debts. That the devisee was also executor 
 can make no difference, for the land devised 
 did not pass to him in that chai-acter, but as 
 devisee, and his acceptance of it immediately 
 raised a promise to pay the sums charged 
 upon it, irrespective of the testator's debts. 
 It may be true the latter acted upon a mis- 
 take as to the amount of these debts, and 
 that a consequence will be a diminution of 
 the benefit intended to be conferred by him 
 on his devisee; still this acceptance by the 
 latter of the thing devised, subject to the 
 burden expressly imposed on it, closes his 
 mouth from averring, as a defence to the 
 plaintiff's claim, that there are no assets of 
 the estate of the deceased in his hands appli- 
 cable to the payment of the legacy. The 
 right of the legatees to claim payment at the 
 hands of the devisee does not rest upon as- 
 sets, as such, in his possession, but upon his 
 liability as devisee, holding iinder the same 
 will that gives birth to their interests. 
 
 But if we put out of view the personal ri^- 
 sponsibilities of the devisee, and treat this 
 as a case in which a chancellor would mar- 
 shal assets as between creditors, devisees, 
 and legatees, it will be found the defence set 
 up here is equally unavailing. In this as- 
 pect, the legacies must be regarded as demon- 
 strative, and, in some sort, partaking of the 
 natiu-e of specific legacies, as charged upon 
 a particular fund specially appropriated to 
 then- payment. Ward, Leg. 21. This fund 
 is the devised land which, it is not denied, 
 is sufficient for the payment of the balance of 
 the testator's debts, and the legacies be- 
 queathed. The established order of the ap- 
 plication of the several funds liable to the 
 payment of debts is definitively settled by ad- 
 judged cases, and is thus generally stated 
 by text writers upon this subject. 1. The 
 general personal estate not expressly, or by 
 implication, exempted. 2. Lands expressly 
 devised to pay debts. 3. Estates descended 
 to the heir. 4. Devised lands, charged with 
 the payment of debts generally, whether de- 
 vised in terms general or specific, (every de- 
 vise of land being in its nature specific.) 5. 
 General pecuniary legacies, pro rata. 6. 
 Specific legacies, pro rata. 7. Real estate 
 devised, whether in terms general or specific. 
 2 Pow. Dev. 667, 668, and cases there cited. 
 
 In this instance the first and third class of 
 assets have been exhausted, without fully 
 satisfying the debts; and this testator did 
 not expressly devise any lands for their pay- 
 ment. Nor did he charge any of his lands 
 with the payment of his debts generally, so 
 far as we are enabled to ascertain from the 
 paper-book, which, however, does not set out 
 the whole of his will. But with us, all the 
 lands of a decedent, whether descended or 
 devised, are, by law, charged with the pay- 
 ment of his debts, and, as is intimated in 
 Manning v. Spooner, 3 Ves. 118, and express- 
 ly said by Mr. .Justice Rogers, in Walker's 
 Estate, 3 Rawle, 241, a case also turning upon 
 the mode of marshalling assets in payment 
 of debts; every testator is presumed to know 
 the law of the country in which he lives, 
 and to make his will in reference to it; and- 
 he adds, that though a clause in wills, char- 
 ging the testator's estate with the payment of 
 his debts, is usual, it is by no means neces- 
 sary, for the estate is equally bound without 
 such direction, and in the order indicated. 
 Accordingly, in that case, personal property 
 bequeathed to the widow of the testator was 
 decreed to be subject to the payment of 
 debts, before descended real estate could be 
 called on. It does not, however, follow 
 from this, that when no other fund than the 
 personal estate is provided for the payment 
 of legacies, and this is swept away by the 
 creditors of the testator, the legatees are en- 
 titled to call upon the lands devised to re- 
 place the amount abstracted from the per- 
 sonalty, for this would be in contravention 
 of the order of application I have already 
 stated. The right to do so seems to depend 
 upon an expression of intention by the testa- 
 tor to charge the devised lands with his 
 debts, in which case the assets will be mar- 
 shalled in favour of pecuniary and specific 
 legatees; lands so charged being appli- 
 cable before pecuniary or specific lega- 
 cies. But the case is very different where 
 the burden of paying the legacies is spe- 
 cifically imposed on the devised land. 
 The devisee then takes it so subject, and, in 
 Pennsylvania, on failtu-e of the prior funds, 
 also onerated with the debts. The testator 
 says he shaU pay the legacies, and the law 
 says he shall pay the debts. It is, in this re- 
 spect, like a devise of mortgaged lands, 
 charged by the testator with the payment of 
 a sum certain, partly applicable to the dis- 
 charge of legacies given to other children of 
 the testator. When construing such a de- 
 vise, 0. J. McKean, as the organ of the court, 
 observed: "It appears to have been the in- 
 tention of the testator that the legacies, spe- 
 cific and pecuniary, should be paid, as well 
 as that the devise of the real estate should 
 take effect; and, if practicable, the assets 
 should be so marshalled that the testator's 
 intention in the whole should be carried into 
 execution;" and it was, accordingly, decided 
 that the specific and pecuniary legacies be- 
 queathed to the children, ought not to be 
 
 557 
 
Case No. 205 
 
 HOOVER V. HOOVEB. 
 
 (§ 1*7 
 
 brought in ease of the particular lands 
 mortgaged, for the devisee of the real estate 
 must take it cum onere, that is, subject to 
 the mortgage, unless the residue of the per- 
 sonal estate be sufficient to discharge it. In 
 this case, too, it was apparent the testator 
 had miscalculated the amount of his debts, a 
 circumstance which is never allowed to de- 
 feat legatees, where a sufficient fund still 
 remains. Ruston's Ex'rs v. Ruston, 2 DaU. 
 243. A similar principle was announced in 
 the case of Davies v. Topp, 1 Brown, Oh. 
 455, in note, where one seised in fee of con- 
 siderable real estate, subject to a mortgage, 
 by his will gave to his sister an annuity, 
 during her life, to be paid by the person who 
 should be seised of his real estate, under his 
 will, and also several pecuniary legacies, the 
 payment of which, together with his debts, 
 he charged upon all his real and personal 
 estate, which he devised, subject thereto, to 
 liis nephew in tail male; and to the same 
 nephew he gave all the rest of his personal 
 estate, subject to his debts, legacies, and fu- 
 neral expenses, and appointed him executor 
 of the will. Upon a bill brought for an ac- 
 count and application of the personal estate, 
 not specifically bequeathed, in payment of 
 debts and legacies, and in case the personal 
 ostate should not be sufficient, to have the 
 deficiency raised by a sale or mortgage of a 
 competent part of the real estate, the master 
 of the rolls decreed, and this decree was af- 
 
 terwards affirmed by Lord Thm-Iow on appeal, 
 that the personal estate not specifically be- 
 queathed should be first applied In payment 
 of debts, funeral expenses, and legacies, but 
 in case the personal estate should be insuffi- 
 cient for the payment of debts, the balance 
 due the mortgagee and other specialty cred- 
 itors to be raised by mortgage or sale of cer- 
 tain freehold estates, acquired of the testator 
 after making his will, and which had de- 
 scended to his heirs at law; and in case 
 these funds should not be sufficient for the 
 payment of debts and legacies, the deficiency 
 to be made good out of the real estate de- 
 vised by the will, charged with the payment 
 of the testator's debts and legacies. In 
 these, and similar instances, a demonstrative 
 legacy is not suffered to fail while the fund 
 charged with its payment holds good for the 
 pm'pose. After delDts, these have the pri- 
 mary claim upon the fund, and where that 
 fund is land devised, the devisee is, if neces- 
 saiy, to be postponed. But here the devisee 
 claims to apply the legacies in '^ase of the 
 land upon which they are charged, which, 
 as we have seen, cannot be done. It follows 
 that, under the facts disclosed, the orphans' 
 court erred in dismissing the bill of Michael 
 Hoover, the legatee, and its decree must, 
 therefore, be reversed. 
 
 Decree reversed, and it is ordered that 
 the record be remitted to the orphans' court, 
 with directions to proceed. 
 
§ 147) 
 
 STATE V. PROBATE COURT. 
 
 'Case No. 206 
 
 STATE ex rel. BEALS v. PROBATE COURT 
 OF RAMSEY COUNTY et al. 
 
 (25 Minn. 22.) 
 
 Supreme Court of Minnesota. April 22, 1878. 
 
 Certiorari to the probate court of Ramsey 
 county. 
 
 Philip Goldsmith died in 1863, domiciled 
 in Philadelphia, Pa., leaving a will whereby 
 he devised all his estate, real and personal, 
 to his wife, E. Sarah Goldsmith, and ap- 
 pointed her his executrix. His will was 
 proved in the probate court in the city of 
 Philadelphia, and letters testamentary were 
 issued to the executrix. The testator left 
 real estate in Ramsey county, but no per- 
 sonalty in this state, and on October 22, 
 1863, his executrix filed in the probate court 
 of that county a duly authenticated copy of 
 his will and probate, from the Philadelphia 
 probate court, and the proper record was 
 made in the registry of deeds of _ Ramsey 
 county. In August, 1866, letters testamen- 
 tary were issued to the executrix by the 
 Ramsey county probate court, and she filed 
 her aflJdavit that there were no debts due 
 from the estate of the deceased. The tes- 
 tator left personal property to a large 
 amount ($35,000) at Philadelphia, at the time 
 of his death, as shown by the inventory of 
 his estate filed there. 
 
 In 1858, Philip Goldsmith had conveyed 
 to one William Coffin, with covenant of war- 
 ranty, certain real estate in Ramsey county. 
 In November, 1869, Coffin was evicted from 
 the lands so conveyed to him, (see Grave v. 
 Coffin, 14 Minn. 345, Gil. 263,) and in the 
 same month he applied to the Ramsey coun- 
 ty probate court for the appointment of 
 commissioners to receive and examine claims 
 against the estate of Philip Goldsmith. 
 Commissioners were appointed, who after- 
 wards allowed and reported two claims 
 against the estate, one in favor of WiUiam 
 Paist, for a sum less than $100, and one in 
 favor of WiUiam Coffin, for the breach of 
 the covenant of warranty, amounting to over 
 $28,000. The executrix appealed to the court 
 of common pleas from the allowance of 
 Coffin's claim. Pending the appeal, and in 
 the year 1872, Coffin died testate, domiciled 
 in Philadelphia, where his will was proved 
 and letters testamentary issued to his ex- 
 ecutors. At the time of his death. Coffin 
 was seized of real estate in Minnesota, and 
 Lorenzo AUis was appointed by the probate 
 court of Ramsey county administrator of 
 such estate. The allowance of Coffin's 
 claim was affirmed by the court of common 
 pleas, and on further appeal, by this court, 
 (see AUis v. Goldsmith, 22 Minn. 123,) and 
 judgment was entered in the court of com- 
 mon pleas, in favor of AUis, as administra- 
 tor of Coffin, and against B. Sarah Gold- 
 smith, as executrix of Philip Goldsmith, for 
 the amount of Coffin's claim allowed by the 
 commissioners, with interest, being more 
 than $42,000. Transcripts of the decision 
 
 and judgment of the court of common pleas 
 and of this com-t were filed in the probate 
 court, and AUis, as administrator of Coffin, 
 applied to the latter court for the removal 
 of Mrs. Goldsmith as executrix, on the 
 ground that she was not then and had not 
 for many years been within this state, and 
 for the appointment of a suitable person in 
 her stead. The application was gi-anted, and 
 James B. Reals, the present relator, was ap- 
 pointed administrator, with the will an- 
 nexed, of the estate of Philip Goldsmith. 
 
 The relator, as such administrator, applied 
 to the probate court of Ramsey county for 
 license to sell certain parcels of real estate 
 in that county, of which PhiUp Goldsmitlt 
 died seized, for the purpose of paying a bal- 
 ance of more than $40,000, stiU due on llie 
 judgment in favor of AUis as administi-ator 
 of Coffin. The application was opposed, as 
 to two of the parcels, by Theresia Eibert, 
 WiUiam Dawson and Robert A. Smith, who 
 held these parcels under sales and convey- 
 ances made by Mrs. Goldsmith, the execu- 
 trix and devisee of Philip Goldsmith, in 18(50 
 and 1868. 
 
 The probate court refused to grant the li- 
 cense to sell these two parcels, and there- 
 upon this writ of certiorari was applied for 
 and issued, to review the action of the pro- 
 bate court. 
 
 AUis & AUis, for relator. R. B. Gahisha 
 and Wm. S. Moore, for respondents. 
 
 GILFILLAN, C. J. Under the laws of 
 this state, the estates of deceased iiersons. 
 testate or intestate, are subject to the pay- 
 ment of their debts in the course of adminis- 
 tration provided by statute. The difference 
 between personal and real estate as assets 
 for this purpose is that the title to the for- 
 mer vests In the executor or administrator, 
 and it may be disposed of by him without 
 the order or license of the probate court, 
 and it Is the primary fund for payment of 
 debts, while the title to real estate vests in 
 the heir or devisee, and it is the second- 
 ary fund, to be resorted to only after the 
 personal property is exhausted, and then 
 only upon the order or license of the court. 
 The title vests in the heir or devisee, sub- 
 ject to the claims of administration upon it. 
 The executor or administrator is entitled to 
 the posession, and to the rents, issues and 
 profits of real estate, until the estate is set- 
 tled, or until delivered over, by order of the 
 probate court, to the heir or devisee. Gen. 
 St. c. 52, § 6. He is accountable for the in- 
 come of the real estate while it remains in 
 his possession. Id. c. 54, § 7. He is also 
 liable if he neglects to raise money by col- 
 lecting the debts or selling the real or per- 
 sonal estate. Id. c. 54, § 8. After the ex- 
 ecutor or administrator has paid the expen- 
 ses of administration, and debts, and such 
 aUowances to the widow and children as 
 the statute provides for, the probate court 
 
 5o» 
 
Case No. 206 
 
 STATE V. PKOBATE COURT. 
 
 (§147 
 
 by decree assigns the remainder of ttie es- 
 tate, real and personal, among those en- 
 titled under the will; or, if there be none, 
 according to the statute of descent or dis- 
 tribution. Id. c. 56, §§ 4-23. This decree 
 is not necessary to vest the title to the real 
 estate, for that passes upon the death of the 
 decedent. Tlae effect of the decree upon 
 real estate is to discharge it from the ad- 
 ministi'ation. Until then, it is assets and is 
 liable to be applied, in default of personal 
 property, to payment of debts and charges 
 of administration, whether it remain in the 
 hands of the heir or devisee, or has been by 
 him conveyed to another. A purchaser 
 talies with this liability upon it. 
 
 The debts are ascertained by commission- 
 ers. Their report, when filed, allowing or 
 disallowing claims, has the effect of a judg- 
 ment, and, unless appealed from, is final. 
 How far their allowance of a claim is bind- 
 ing—that is, upon whom it is conclusive— is 
 not entirely free from doubt. It is certain- 
 ly conclusive upon the creditor whose claim 
 is allowed or rejected, and upon the executor 
 or ■ administrator. Is it conclusive upon 
 other creditors, next of kin, legatees, heirs 
 and devisees? We find only three cases 
 which appear to involve the point. Garnett 
 v. Macon, 6 Call, 308, Fed. Cas. No. 5,245; 
 Alston V. Munford, 1 Brock. 266, Fed. Cas. 
 No. 267; and Stone v. "Wood, 16 111. 177. 
 The first two were cases of judgments in 
 ordinary actions, and in the first the de- 
 cision is placed on the ground that the heir 
 is no party to the action, cannot controvert 
 the testimony, adduce evidence in opposi- 
 tion to the claim, nor appeal from the judg- 
 ment. Stone v. Wood was, like this, an ap- 
 plication for license to sell real estate to 
 pay debts allowed by commissioners, and ap- 
 pears to have been under a statute similar 
 to ours, and the court, while apparently ad- 
 mitting that the heir might contest the claim 
 before the commissioners, and aijpeal from 
 their decision, places its decision on the 
 ground, narrower and more technical than 
 that taken by the court in Garnett v. Macon, 
 that the heir is not in privity of estate with 
 the executor, and, therefore, not concluded 
 by the allowance of the debt. However it 
 might be in an ordinary action between an 
 administrator or executor and a third per- 
 son, any one interested in the estate may 
 •contest claims before the commissioners, and 
 appeal from their decision, if the executor 
 or administrator declines to do so. Gen. St. 
 c. .").3, §§ 26, 27. The proceeding before the 
 commissioners is not an adversary suit be- 
 tween litigant parties, the creditor on one 
 side, and the executor or administrator on 
 the other, but is in the nature of a proceed- 
 ing against the estate, which estate is, in 
 theory, in the probate com't, for the purpose 
 of being administered by distribution among 
 creditors, heirs, devisees, legatees and next 
 of kin. Though the proceedings on the part 
 of the estate are conducted in the name of 
 560 
 
 the executor or administrator, he is only a 
 nominal party; the actual parties are those 
 interested in the estate. We do not think 
 it was intended that any party might neg- 
 lect his opportunity to coiitest a claim before 
 the commissioners or on an appeal, and then 
 contest it on an application for its payment, 
 but that the award of the commissioners, if 
 not appealed from, and the judgment of the 
 appellate court, in case of appeal, should be 
 final and conclusive upon all parties inter- 
 ested in the estate, in all subsequent pro- 
 ceedings for its administration. The judg- 
 ment on tlie claim of Cofffn was, therefore, 
 conclusive. 
 
 The holder of that judgment had a right 
 to have it satisfied, so far as it could be, out 
 of the property belonging to the estate. The 
 real estate, the title to which is in Eibert, 
 and in Dawson and Smith, belongs to the 
 estate for the purposes of administration, as 
 much as it did immediately after the death 
 of Goldsmith. It was devised by the will 
 to Mrs. Goldsmith, and she conveyed to 
 them; at the time of such conveyance, there 
 had been no administration in this state. 
 The most that had been done was to file, in 
 the probate coiu't of Ramsey county, a cer- 
 tified copy of the will and of the probate, 
 from the com't of Philadelphia where the 
 will was proved, to make the proper record 
 in the office of the register of deeds, and to 
 take out letters to the executrix, Mrs. Gold- 
 smith. She filed an affidavit that there 
 were no debts. While this affidavit, if made 
 in good faith, may have operated as an ex- 
 cuse to her for not applying for a commis- 
 sioner to audit claims, it could not bar, nor 
 in any manner affect, the rights of creditors 
 to proceed against the estate for satisfaction 
 of their claims. Nor could she, by convey- 
 ing as devisee the real property, affect its 
 status or the rights of creditors with respect 
 to it. Their right to have the property ap- 
 plied in satisfaction of their claims could be 
 barred only in the manner pointed out by the 
 statutes. 
 
 The judgment of Coflin being a valid claim 
 against the estate, and the lands owned by 
 Eibert, and Dawson, and Smith, being, for 
 the purposes of administration and payment 
 of debts, a part of the estate, the only ques- 
 tion is, is it necessary to sell lands to satisfy 
 the judgment? So far as the administration 
 in this state is considered without reference 
 to the administration in Pennsylvania, there 
 can be no doubt of it. There is no personal 
 property in the hands of the administrator, 
 and there does not appear to be any other 
 real estate to which resort may be made. 
 It is claimed, however, that the principal 
 and original administration of the estate is 
 in Philadelphia; that the administration in 
 this state is in its natm'e ancillary; and that, 
 as Coffin was not a resident of this state, he 
 ought to have sought satisfaction of his 
 claim in Philadelphia; and that, certainly, 
 it cannot be enforced against real estate 
 
§ 147) 
 
 STATE V. PROBATE COUUT. 
 
 Case No. 208 
 
 here, while there is, in the hands of the ad- 
 ministi-ator in Philadelphia, personal prop- 
 erty of the estate applicable to the payment 
 of debts, before resorting to real estate. 
 How it would be if there were, in fact, per- 
 sonal property applicable to debts in course 
 of administration at Philadelphia, it is un- 
 necessary to consider, for such does not ap- 
 pear to be the case. • The copy of the in- 
 ventory of personal property, filed by the 
 executrix in the eom"t at Philadelphia, in 
 1863— and no other record to show the con- 
 dition of administration there was intro- 
 duced—does not show it. If the amount of 
 the personal property set out in the, inven- 
 tory did, at that time, in fact belong to the 
 estate, there is no presumption that it con- 
 tinued so for fourteen years. The com- 
 mencement of administi-ation in Philadel- 
 phia being shown, the presumption is rather 
 that it proceeded in due covu-se and has been 
 closed. Any one claiming the conti-ary must 
 show the condition of such proceedings at or 
 near the time of the proceedings in question 
 here. 
 
 If there were anything in the suggestion 
 
 that CoflBn was a non-resident, and that the 
 
 proper place for him to enforce his claim 
 
 was in Philadelphia, we thinli the proper 
 
 ABB. WILLS — 36 
 
 time to raise, the objection was when he 
 presented and offered to prove his claim be- 
 fore the commissioners. As it has been pre- 
 sented and allowed in the course of admin- 
 istration here, there is no reason why the 
 administration, including the application of 
 the estate here to the payment of this debt, 
 should not be fully completed. 
 
 It is claimed that Laws 1876, c. 37, § 3, 
 subd. 10, (Gen. St. 1878, c. 46, § 3,) which pro- 
 vides "that no debt or claim against any de- 
 ceased person which had not become a lien 
 upon his real estate before his death shall 
 continue to be a lien upon any such real 
 estate after the lapse of three years from the 
 date of such death," has extinguished the 
 right to seU this real estate to pay this debt. 
 This provision is not in express terms ap- 
 plied retroactively, and there is nothing 
 which shows an intent to include other than 
 future cases. The entire chapter is pros- 
 pective, and such being the case, it would be 
 a violent construction to give the language 
 quoted a retrospective meaning. 
 
 The decision of the probate court is re- 
 versed, and that court is directed to grant 
 the license to sell the real estate as applied 
 for. The cause will be remanded for that 
 purpose. 
 
 5(;i 
 
Case No. 207 
 
 DOE V. SIIOTTEU. 
 
 (§ 148. 
 
 DOE ex dem. HAMPTON v. SHOTTEE. 
 
 (8 Adol. & E. 905.) 
 
 Nov. 22, 1838. 
 
 On the trial of ejectment before Lord 
 DENMAN, C. J., at the last summer assizes 
 for Surrey, it appeared that the lessor of 
 the plaintiff claimed as surviving executor 
 and devisee under the will of his father, 
 William Hampton, made in August, 1800. 
 The defendant insisted that, by that v?ill, 
 no legal estate passed to the executors. The 
 will was as follows. 
 
 After appointing his sons Henry (the lessor 
 of the plaintiff,) and William joint executors 
 in trust of the will, the testator proceeded: 
 "I give, devise, and bequeath unto my wife 
 Elizabeth Hampton, all that my freehold 
 called Moor's Piatt," (the premises in ques- 
 tion,) "in the parish of 11'ensham, in the 
 county of Surrey, where I now dwell, with 
 dwelling-house and all out-building, garden, 
 lands, and premises, and all the appurte- 
 nances thereunto belonging, diwing the term 
 of her natiu-al life; and, after the decease of 
 562 
 
 my said wife Elizabeth Hampton, my will 
 is, that my said freehold called Moor's Piatt, 
 where I now dwell, shall be then sold by my 
 executors In trust, and all the money to be 
 equally divided between all my children or 
 their heirs, and their names are as follows," 
 J. H., E. H., H. H., &c., "In equal parts, as 
 equal as possible can be done, by my said 
 executors in trust." Elizabeth Hampton and 
 William Hampton died before the com- 
 mencement of this action. 
 
 The lord chief justice, being of opinion that 
 a power only was given by the will, directed 
 a nonsuit, but with leave to move to enter 
 a verdjpt for the plaintiff. 
 
 Wordsworth, moved accordingly. 
 
 LORD DENMAN, C. J., now delivered the 
 judgment of the court. 
 
 We are of opinion that in this case 
 nothing more than a power was given to- 
 the executors. The testator merely devised, 
 in substance, that the lands should be sold 
 by the executors. There will consequently 
 be no rule. 
 
 Rule refused. 
 
149) 
 
 OSBORNE V. MOSS. 
 
 Case No. 208 
 
 OSBORXE T. JIOSS. 
 
 (7 Johns. 161.) 
 
 Supreme Court of New York. Not., 1810. 
 
 This was an action of trespass quare 
 clausum fregit, &c. The declaration stated: 
 1. That on the 10th of September, 1809, the 
 defendant, at Morean, in Saratoga county, 
 brolie and entered the close of the plaintiff, 
 and tools and carried away one pair of oxen, 
 of the value of 200 dollars, and two cows, 
 of the value of 100 dollars. 2. For taking 
 and carrying away the same chattels. The 
 defendant plead.ed as to the force, &c., not 
 guilty; and as to the residue, that before, 
 &c., to wit, on the 11th September, 1809, 
 the defendant was legally appointed admin- 
 isti'ator of Samuel Hodges, deceased; that 
 the intestate was possessed, as of his own 
 proper goods, of the said chalrtels, and that 
 the defendant, as administrator, entered and 
 took the chattels; and this he is ready to 
 verify, &c. 
 
 The plaintiff replied, that before, &c., to 
 wit, on the 7th of August, 1809, in the life 
 of the Intestate, at a justice's court, held, 
 &c., he, the plaintiff, by the judgment of 
 the coittt, recovered against the intestate 20 
 dollars and 3 cents, and that, on the 8th 
 of August, in the life of the intestate, he 
 obtained execution upon the said judgment, 
 and delivered it to a constable, who levied 
 on the said chattels, in the lifetime of the 
 intestate, and gave notice of the sale for a 
 day certain; and that the intestate died 
 before that day, viz., on the 19th of August, 
 1809; that the sale of the chattels took 
 place at the day appointed; and the plain- 
 tiff purchased them as the highest bidder, 
 and they were delivered to him by the con- 
 stable; and this he is ready to verify, &c. 
 
 The defendant rejoined, that before the 
 said judgment, and before the debt arose 
 for which the said judgment was rendered, 
 the intestate was indebted to the defendant 
 in 200 dollars, which the plaintiff knew when 
 the judgment was rendered, and when the 
 debt arose; that the said chattels were all 
 the goods of the intestate; that the debt or de- 
 mand of the plaintiff was fraudulent or covin- 
 ous, and made by the plaintiff and intestate 
 to cheat the defendant and the other cred- 
 ■ itors of the intestate; and that the judgment 
 was procured by the plaintiff and intestate, 
 to defeat the defendant and the other cred- 
 itors; that the execution and sale were con- 
 trived and intended for the same purpose, 
 and with a fraudulent intent on the part of 
 
 the plaintiff and the intestate; and this he 
 is ready to verify, &c. There was a general 
 demm-rer to the rejoiudt'r, and a joinder in 
 demuiTer. 
 
 H. Bleecker, in support of the demurrer. 
 Mr. Skinner, contra. 
 
 PER CURIAM. The defendant justifies, 
 as administrator of Hodges, the taking of 
 the goods in question from the possession 
 of the plaintiff; and he denies the right of 
 the plaintiff to hold them under the judg- 
 ment and execution which he had against 
 the intestate, because the judgment, execu- 
 tion, and sale were all procm-ed by covin and 
 fraud between the plaintiff and intestate, to 
 cheat the creditors of the intestate; and 
 this fact is admitted by the demurrer. But 
 the case of Hawes v. Leader, Cro. Jac. 270. 
 Yelv. 196, is an answer to this defence, and 
 completely destroys it. In that case the 
 intestate made a grant of his goods to B. 
 by fraud between him and B. to cheat the 
 creditors, and he kept possession of the 
 goods, and died. B. then sued the admin- 
 istrator for the goods, and he pleaded this 
 covin and fraud and the statute of 13 Eliz., 
 which declares all such gifts and grants void 
 as against creditors; but, on demurrer, the 
 plea was held bad, and judgment was ren- 
 dered for the plaintiff, on the ground, among 
 others, that the deed was void only as 
 against creditors, but that it remained good 
 as against the party himself, and his execu- 
 tors and administrators. This ground of tlic 
 decision is mentioned by Yelverton, in his 
 report of the case, with quod nota; and he 
 was counsel for defendant, and his reports 
 are among the best of the old authorities. 
 
 The defendant further sets up in his de- 
 fense, that he was a creditor, as well as 
 administrator of the intestate. This was 
 not stated in his plea, but in his rejoinder; 
 and it is stated rather as inducement than 
 as matter of justification. It does not, how- 
 ever, alter the case. As creditor, he had no 
 right to take the goods without suit. He 
 was still a trespasser; and in his character 
 of administrator he could not attack the 
 judgment on the ground of fraud. His rem- 
 edy, as creditor, would have been to have 
 sued ijhe plaintiff for his debt, and charge<l 
 him as executor de son tort. This he could 
 have done, notwithstanding he was admin- 
 istrator; and the case of Ashby v. Child, 
 Styles, 384, is expressly to this point. The 
 plaintiff is therefore entitled to judgment. 
 Judgment for the plaintiff. 
 
 563 
 
Case No. 209 
 
 FLETCHER v. ASHBURNER. 
 
 (§ 150 
 
 FLETCHER v. ASHBXJRNER. 
 
 (1 Brown, Cli, 497.) 
 
 High Court of Chancery. Rolls, June, 1779. 
 
 John Fletcher, by his will, devised his burg- 
 age houses and free rents, in Kendall, and 
 all his personal estate to trustees and the 
 survivor, and the heirs, executors, and ad- 
 ministi'ators of such siu-vivor, in trust to sell 
 so much as should be sufficient to pay his 
 debts, and then to permit his wife Agnes to 
 enjoy the residue during her life, if she so 
 long continued his chaste widow; and after 
 her decease, to sell and dispose thereof, and 
 the money arising thereby, after deducting 
 charges, and half a guinea each to the trus- 
 tees for their trouble, to pay to, and be- 
 tween his son William and daughter Mary, 
 share and share alike, provided that if his 
 wife should happen to marry again, the trus- 
 tees should, immediately after the marriage, 
 sell all the estate and effects given to her 
 for her life, and, after such deductions as 
 aforesaid, should pay the remainder of the 
 money to and amongst his wife, his son Wil- 
 liam, and daughter ilary, share and share 
 alike, equally; and in case either his son Wil- 
 liam, or his daughter Mary should die before 
 his or their legacy should become due, that 
 the share or legacy of him or her so dying 
 should go to the survivor of them. The 
 testator died leaving Agnes his widow, Wil- 
 liam his only son and heir at law, and Mary 
 bis daughter; Agnes, by the custom of burg- 
 sLge tenure, was entitled to hold the bin-g- 
 age houses in Kendall during her chaste 
 viduity, against the disposition of her hus- 
 band by will; Mary attained twenty-one, 
 but died unmarried in the life of her mother 
 and brotlier. ■\\'illiam was twenty-one at the 
 death of the testator, and died without issue 
 in the life of his mother; the mother died 
 the widow of the testator; upon her death 
 a bill was filed by the heir at law of Wil- 
 liam and John the testator, against the trus- 
 tees and the personal representatives of the 
 testator and of the widow, to have a con- 
 veyance of the real estates devised by the 
 will, to the plaintiff, the heir at law. The 
 representative of the widow, who was the 
 sole next of kin of WilUam the son, by an- 
 swer, claimed the property as personal; al- 
 leging that by the direction to the trustees 
 to sell the real estates, they become as per- 
 sonal property, and as such, were to go to 
 the personal representative of William the 
 son, who sm'vived his sister. 
 
 The cause was heard the 11th December, 
 1778, where the first objection talcen was 
 that the personal representative of William 
 was not before the court. 
 
 But the master of the rolls was of opin- 
 ion there were sufficient parties to svistain 
 the question; that the personal representa- 
 tive was a mere formal party, and that, if 
 he thought proper to make a decree, a per- 
 
 564 
 
 sonal representative might be brought before 
 the master. 
 
 Ui: Madocks and Mr. Wilson, for plain- 
 tiff. Mr. Kenyon and Mr. Chambre, for 
 defendant. 
 
 In June, his honor [SIR THOMAS SEW- 
 BLL] gave his opinion; he observed that 
 nothing was better established than this 
 principle, that money directed to be employ- 
 ed in the purchase of land, and land direct- 
 ed to be sold and turned into money, are 
 to be considered as that species of property 
 into which they are directed to be converted ; 
 and this in whatever manner the direction is 
 given: whether by will, by way of contract, 
 marriage articles, settlement or otherwise, 
 and whether the money is actually deposit- 
 ed or only covenanted to be paid, whether 
 the land is actually conveyed or only agreed 
 to be conveyed. The owner of the fund or 
 the contracting parties may make land mon- 
 ey, or money land. The cases estabUshed 
 this rule universally. If any difficulty has 
 arisen, it has arisen from special circum- 
 stances. In the case of Sweetapple v. Bin- 
 don, 2 Vern. 536, it was determined that 
 a husband was entitled to money to be laid 
 out in land, as tenant by the courtesy, 
 and although it is held that a wife is not en- 
 titled to dower in a similar case, yet it is 
 allowed that it is so held because cases have 
 been determined, and not from any prin- 
 ciple. The cases of land to be tm-ned into 
 money are fewer than those of money to be 
 employed in the purchase of land. The 
 principal cases have been where real es- 
 tates have been directed to be sold, and 
 some part of the disposition has failed, so 
 that something has resulted to the heir at 
 law, as in case of Emblyn v. Freeman, 
 Finch, Free. 541; and Cruse v. Barley, 3 
 P. Wms. 20. These are all cases where a de- 
 vise has failed, and the thing devised has 
 not acciiied to the representative or devisee, 
 but to the heir at law of the testator. The 
 case of Durour v. Motteux, 1 Ves. Sr. 320, is 
 a strong case to the point now before the 
 court; and if anything could strengthen the 
 general rule, the circumstances of the present 
 case would do so. The testator has blended 
 the real and personal estate together, and 
 disposed of them, without distinction, for tha 
 benefit of his wife and children. Both real 
 and personal estate are made one fund. In 
 the case of Durour v. Motteux, Lord Hard- 
 wicke made this a principal gi'otmd for con- 
 sidering the whole fund as personal estate. 
 In the present case, it might be uncertain, 
 tin the death of the widow, whether the es- 
 tates must not be absolutely sold: both the 
 children, indeed, died before her; but she 
 might have married before the death of one 
 or both. The interests of both the children 
 were vested, subject, as to one of them, 
 to be defeated in case either of them died 
 before the mother. There could be no elec- 
 
§ 150) 
 
 FLETCHER v. ASHBURNEB. 
 
 Case No. 209 
 
 tion to take the fund as land or money; for 
 where an estate is directed to be sold, and 
 the money divided amongst several per- 
 sons, none has a right to say that any part 
 shall not be sold; the question therefore 
 is merely between the real and personal 
 representatives of the son, whether the per- 
 sonal representative shall talie the fund as 
 personal property, according to the will, or 
 the heir at law shall take it as if no will had 
 been made. The case of Flanagan v. Flan- 
 agan, is a strong authority that it shall 
 be taken as personal estate, according to 
 the will. In that case the testatrix, Sarah 
 Wooley, by will, dated 2Sth JIarch, 1749, 
 gave and devised all her real and personal 
 estates to Francis Plumtree, in trust, in 
 the fii-st place out of her personal estate, 
 as far as it would extend, and, in the next 
 place, by sale of her real estate, or a suffi- 
 cient part thereof to raise so much money 
 as should be sufficient to pay her debts 
 and legacies; and after payment thereof, 
 in trust to convey the residue of the real es- 
 tate, which should remain unsold, and pay 
 the produce of such part as should be sold, 
 and all other the residue of her real estates, 
 between her father James Flanagan, and 
 her brother James Flanagan, their heirs, 
 executors, and administrators, equally. A 
 bill was brought, by the creditors, for sale 
 of the real estate, to supply the deficiency 
 of the i)ersonal estate for payment of debts; 
 and a decree was made for a sale; and if 
 any of the money to arise by the sale should 
 remain after payment of the debts and leg- 
 acies, it was directed to be paid to James 
 Flanagan the father, and James Flanagan 
 the son, equally; and if any estate should re- 
 main unsold, the trustees were directed to 
 convey it to them and their heirs equally: 
 after the decree, James Flanagan the son 
 died, leaving a daughter, and a son boru 
 after his death; part of the estate was sold, 
 and afterwards James Flanagan the grand- 
 father died, leaving his grandson his heir, 
 and his grandson and grand-daughter his 
 sole next of kin: after the death of the 
 grandfather, a further part of the estate was 
 sold, under an apprehension that the produce 
 of the first sale was insufficient to pay the 
 debts and legacies: it appeared, however, 
 that the produce of the first sale was suffi- 
 cient. A bill was, afterwards, brought by 
 the son of James Flanagan the son, claim- 
 ing a moiety of the siu-plus, as the real es- 
 tate of James Flanagan his grandfather, 
 to whom he was become heir against the 
 personal representative of his grandfather, 
 and against the daughter of James Flanagan 
 the son, who claimed a moiety as one of the 
 next of kin of her grandfather. It was 
 objected, that the second sale, after the 
 death of the grandfather, was improper. 
 The court determined, that the second sale, 
 actually made under the decree of the court, 
 before the master, could not be considered 
 
 as improperly made: that tliere was no 
 fraud, no practice, and that the money ought 
 to go to the personal representative of the 
 grandfather. The case of Digby v. Legard, 
 3 P. Wms. 22, note, is a different question. 
 There the testatrix (Elizabeth Byerlej) di- 
 rected her real estates to be sold to pay debts 
 and legacies, and gave the residue to five 
 persons, to be equally divided between 
 them, one of whom (Lady Cayley) died in 
 her life-time. It was resolved that the de- 
 vise, so far, failed totally, and should ac- 
 crue to the heir at law. The language 
 of the decree is such, that the benefit of the 
 devise to Lady Cayley should accrue to 
 the testatrix's heir at law, Mr. Jervoice, 
 who was a lunatic, and should be paid to 
 his committee, as real estate descended to 
 him. The case of Scudamore v. Scudamore, 
 Finch, Prec. 543, shows that, in all cases 
 where the dispute is between representa- 
 tives, the heir, or executor, shall have the 
 fund according to the will or contract of the 
 persons who gave or created it. There was 
 a case of Ogle v. Cook, heard 19th Febru- 
 ary, 1748, which was this: Mr. Ogle made 
 his will in 1744, and gave his real estate to 
 trustees to sell, and to vest the money in 
 stock, and pay the interest to his wife dur- 
 ing her widowhood, and after her death or 
 marriage, to his two daughters equally, 
 except that the eldest was to have £1090 
 more than the other: he gave the residue 
 of his personal estate in the same way: 
 he afterwards conveyed the real estate to 
 one of the tmstees named in his will, to 
 whom he was considerably indebted, in 
 trust to sell so much as should be necessary 
 to pay the debt, and as to the residue in 
 trust for Mrs. Ogle: part of the estate 
 was sold, and then Mr. Ogle died. His 
 youngest daughter died in his life-time. The 
 bill was brought by the widow and the 
 eldest daughter, against the son, who was 
 the heir, and the trustees, to have the resi- 
 due of the estate sold, and claiming the 
 share of the youngest daughter, as personal 
 estate of Mr. Ogle, to be divided between 
 them and the son, as his next of kin. The 
 son insisted the conveyance to the trustee 
 was a revocation of the will; and, if not, 
 that the share of the dead daughter was to 
 be considered as real estate of Mr. Ogle, 
 and descended to him as heir. It was de- 
 termined that the conveyance was a revo- 
 cation only pro tanto, to let in the debt; 
 and that so much of the estate as remained 
 unsold should be sold, and that the money 
 raised, or to be raised by sale of the estate, 
 made part of the personal estate of Mr. Ogle. 
 There was another case about the same 
 time, which is Cunningham v. Moody, 1 
 Ves. Sr. 174, where, by marriage articles, 
 £.jOO was agreed to be laid out in purchase 
 of lands, to be settled to the use of the 
 husband for life, with remainder to trustees 
 to preserve contingent remainders, with re- 
 
 565 
 
Case Xo. 209 
 
 FLETCIIEH V. ASHBUKNER. 
 
 (§ liO 
 
 mainder to the wife for life, witli remaiuder 
 to the childreu of the marriage, as the hus- 
 band and wife should appoint; and In de- 
 fault of a joint appointment, as the survivor 
 should appoint; and in default of any ap- 
 pointment to the children, to be equally 
 divided among them, if more than one, as 
 tpnants in common in tail general, with 
 cross remainders; and if but one, to that 
 fliild in tail general, and no appointment was 
 made. The father and mother being dead, 
 ynd the daughter being married, the trustees 
 paid the £500 to her and her husband, and 
 they received it as money, and executed a 
 release. The daughter had a child, which 
 died, and she afterwards died without issue. 
 
 A. daughter of the settlor by a second mar- 
 riage filed a bill against the husband, rep- 
 resentative of his wife, the daughter by the 
 first marriage, for the £500, considering it 
 as land: and it was observed that she was 
 entitled to the money, but that the husband 
 of her deceased sister was entitled to the 
 interest, during his life, a.s tenant by the 
 courtesy. In the present case, TV^illiam 
 Fletcher, the son, had the whole beneficial 
 title vested in him as money, subject to his 
 mother's interest for life or widowhood. She 
 was his sole next of kin, and her personal 
 representatives are now entitled to the es- 
 tate as money; the bill must therefore be 
 dismissed without costs. 
 
% 150) 
 
 FRAYNE 0. TAYLOR. 
 
 Case No. 210 
 
 FRAYNE V. TAYLOR. 
 
 (33 Law J. Ch. 228.) 
 
 Court of Chancery. Michaelmas, 18G3-Michael- 
 mas, 1864. Dec. 21. 
 
 This case came on by adjoummeut from 
 chambers in an administration summons. 
 
 By an indenture of settlement dated the 
 7th of September, 1836, certain real estate 
 •was conveyed to Messrs. Bull and .Tohns, 
 upon trust (subject to an estate for life lim- 
 ited to Elizabeth Taylor) for such persons as 
 the said Elizabeth Taylor should by deed 
 or will appoint. Elizabeth Taylor subse- 
 ■quently purchased six houses (the proceeds 
 of which were now in question) out of her 
 separate estate, and they were conveyed to 
 the trustees of the settlement on the 1st of 
 July, 1842, upon the trusts thereby declared. 
 In 1850, Elizabeth. Taylor, by her will, which 
 was proved on the 10th of September in that 
 year, specifically devised, first, certain prop- 
 erty to her husband George Edward Taylor, 
 the testator in the cause, absolutely; and she 
 appointed and devised, secondly, the estates 
 comprised in the settlement (including the 
 six houses in question) to her husband in fee, 
 in ti-ust to sell and apply the proceeds there- 
 of in payment of debts; and she gave the 
 ■residue of her real and personal estates to 
 ter husband absolutely. By an indenture 
 ^ated the 30th of August 1853, after reciting 
 the death of Johns, one of the trustees of the 
 settlement, and an application by George Ed- 
 ward Taylor, the testator, to Bull, the sur- 
 viving trustee, to convey to him. Bull, as 
 such surviving trustee, conveyed the first- 
 mentioned property to the testator absolute- 
 ly, and he also conveyed the property sec- 
 ondly appointed and devised by the said 
 Elizabeth Taylor, to the testator in fee upon 
 the trusts of Elizabeth Taylor's will. 
 
 George Edward Taylor, having survived 
 bis wife, paid all her debts in his lifetime, 
 without having occasion to convert the six 
 houses in question under the trusts for sale 
 In her will. He then entered into a verbal 
 contract with a person named Finzel, for 
 the sale to him of the aforesaid six houses, 
 for the sum of £800, but the contract was 
 never carried into effect, and the said George 
 Edward Taylor died intestate as to his real 
 estate, leaving the defendant his heir-at-law, 
 but having made his will, and appointed 
 John Goolden and John Ford Sevier execu- 
 tors thereof. 
 
 After the death of the testator, the said 
 Finzel applied to and requested the defend- 
 ant William Taylor, the heir-at-law of the 
 testator George E. Taylor, to carry out the 
 contract for the sale of the six houses, which 
 the said defendant agreed to do, and accord- 
 ingly an indentiu-e was executed dated the 
 ISth of May, 1855, by which, after reciting 
 the settlement of September, 1836. and the 
 conveyance of the six houses to Elizabeth 
 Taylor, and the will of Elizabeth Taylor, 
 
 and the conveyance of the 30th of August, 
 1853, from Bull to the testator, and the 
 death of the testator in January, 1855, intes- 
 tate as to real estate, leaving his brother, the 
 defendant William Taylor, his heir-at-law, 
 and the will of the testator appointing John 
 Goolden and J. F. Sevier executors, and re- 
 citing the renunciation of probate by the said 
 J. Goolden and J. F. Sevier, and the gram 
 of administration of the testator's personal 
 estate with his will annexed to the defend- 
 ant W. Taylor, and also reciting the parol 
 contract entered into by the testator for the 
 sale of the six houses in question to Finzel 
 for £800, and that the contract being unex- 
 ecuted and unperformed at the time of 
 George E. Taylor's death, Finzel had ap- 
 plied to the defendant W. Taylor to carry 
 the same into effect; the said W. Taylor in 
 pursuance of the contract so entered into by 
 the testator with Finzel, and in consideration 
 of £800, conveyed the houses in question to 
 Finzel absolutely. And the defendant, on 
 behalf of himself, his heirs, executors and 
 administrators, entered into covenants for 
 title and quiet enjoyment and further as 
 sm-ance, and for production of title deeds. 
 In November, 1860, the defendant W. Taylor 
 passed his residuary account of the testator's 
 estate, and in such account he gave credit 
 for the proceeds of the six houses as part 
 of the testator's personal estate, as follows: 
 "Produce of house and premises in Temple 
 Sarick, contracted to be sold by testator in 
 his lifetime, and purchase completed after 
 his death. 
 
 In an account, which was inspected in 
 March, 18G1, by the plaintiffs, who were 
 the next-of-kin of the testator, the defend- 
 ant again gave credit for the proceeds of the 
 houses, and divided the balance appearing 
 on the account among himself and the plain- 
 tiffs WiUiam Frayne, John Frayne, and Jane 
 Frayne, in the proportions of one-fifth and 
 one moiety of four-fifths to himself, the de- 
 fendant, and the other moiety of four-fifths 
 to the said William Frayne, John Frayne, 
 and Jane Frayne. On the 4th of June, 1861, 
 the common decree for the administration of 
 the personal estate of William Taylor, the 
 testator, was made on an application by sum- 
 mons by the three plaintiffs. Under this de- 
 cree the defendant brought in his account 
 verified by his affidavit of his receipts and 
 payments on account of the testator's per- 
 sonal estate, and in this account the defend- 
 ant gave credit for the £800. the proceeds 
 of the six houses in question, as part of the 
 personal estate of the testator come to his 
 hands. This account being insufficient, the 
 defendant was required to bring in a further 
 and better account, and he then brought in 
 a second account, and in this account he gave 
 credit for the £800, but claimed to retain the 
 amount as the heir-at-law of the testator. 
 
 The cause was then adjourned into court 
 upon the question whether the £800 was to 
 be considered as part of the personal estate 
 
 567 
 
Case No. 210 
 
 TBAYNE 0. TAYLOR. 
 
 (§ 150 
 
 of the testator, or whether the defendant was 
 justified in retaining the amount as heir-at- 
 law of the testator. 
 
 Mr. Osborne and Mr. KarslaUe, for plain- 
 tiff. Mr. Glasse and Mr. Evcritt, for defend- 
 ant. 
 
 KINDER SLEY, V. C. This is somewhat 
 a peculiar case, and there is no case precisely 
 resembling it. There has been an adminis- 
 tration summons and a decree for the ad- 
 ministration of the personal estate of the 
 testator, who, though he left a will, did not 
 dispose of all his residuary estate, and to 
 that extent therefore died intestate. Under 
 .the decree a question arises with regard to 
 the proceeds of sale of a portion of the tes- 
 tator's real estate,— whether that is to be re- 
 garded as part of the personal estate of the 
 testator? The defendant, William Taylor, 
 who was heir-at-law of the testator, took out 
 letters of administration, as the testator's 
 brother, and thus he became his legal per- 
 sonal representative, filling, in fact, both 
 characters. Now, I need not say that I re- 
 pudiate entirely any notion of acting upon 
 purely moral gi'ounds, that is, on the igroimd 
 that the defendant, as a brother, ought to 
 caiTy out the wishes of the testator. All 
 that I have to consider is whether an ac- 
 count brought in by the defendant of the 
 testator's personal estate is correctly stated. 
 
 The circumstances are these: The testa- 
 tor died on the 21st of January, 1855, and he 
 left the defendant, William Taylor, his heir- 
 at-law. In his lifetime he had entered ver- 
 bally into a contract to sell part of his real 
 estate to BIr. Finzel. If this had been a 
 contract in writing there would have been 
 no question about it, but It was a verbal 
 contract; and if the vendor or the purchaser 
 had chosen to refuse to perform it, they 
 might have done so; but if not, then the 
 contract might have been carried out, and 
 no doubt in the present case it would have 
 been carried out if the testator had lived. 
 The testator had shown his desire to have it 
 carried out and to convert his real estate 
 into personalty, and the purchaser also was 
 desirous that the contract should be per- 
 formed. It only depended, therefore, upon 
 the testator remaining in the same state of 
 mind until the conveyance was executed. 
 The position of the heir-at-law was this: 
 He had a right to say, "I do not care what 
 the testator did or intended to do; he has 
 only entered into a verbal contract; and the 
 statute of frauds enables me to say that if 
 the purchaser files his bill against me he 
 cannot compel me, if I choose to take ad- 
 vantage of the statute, to perform the con- 
 tract." On the other hand, he was justified 
 in saying, "I ought not to raise this question 
 of the statute of frauds, but I ought to carry 
 the contract into effect; I took a portion of 
 the real estate as heir-at-law, and his inten- 
 tion was to sell the other portion, and I 
 will not exercise my right to repudiate the 
 568 
 
 contract." He might have said that he 
 would repudiate the testator's contract and 
 have entered into a new contract himself, 
 in which case he would have been entitled 
 to the purchase-money, or he might have 
 performed the contract which his ancestor 
 had entered into, and carried it out accord- 
 ing to his intention. The question turns on 
 this: What did he do?— not what he meant 
 to do, but what he has done. Did the de- 
 fendant complete the testator's contract, or 
 did he make a new contract? Did he make 
 the sale to the purchaser on the same terms 
 as those originally contracted for by the tes- 
 tator? If he has not done that, but merely 
 sold the estate as heir-at-law and carried 
 into effect a contract of his own, then his 
 agreeing to throw the money into the per- 
 sonal estate would not compel him to do so. 
 But the question really is, what did he do 
 when he had the option of taking either of 
 these courses? Now, it appears to me from 
 the whole of the circumstances of the case 
 that there was no mistake whatever on his 
 part; he was particularly well advised, and 
 he knew that he was under no obligation to 
 perform the contract; but with deliberation 
 and full intention, and with a desire to per- 
 form the contract, he did perform it, and 
 carry out, not a new contract of his own, 
 but the original contract; and if so, I cannot 
 understand how It can be said that the real 
 estate has not been converted by the act of 
 the testator into personalty. It is true the 
 testator or the purchaser might have said, 
 "The statute of frauds prevents you from 
 compelling me to perform;" but the statute 
 does not make the agreement void. The 
 statute says, no suit shall lie to compel him 
 to carry into effect a verbal agreement. It 
 appears to me what the defendant has done 
 is with design and not by mistake, but know- 
 ing what he was about; and he chose to 
 say, "I will cany out the contract of the 
 testator," and he did so. 
 
 Now the conveyance itself appears to me 
 to prove that this was the defendant's In- 
 tention. It recites the testator's will and 
 who were the trustees, and that they had 
 renounced probate of the will, and the let- 
 ters of administration had been granted to 
 George Edward Taylor. That recital would 
 have been waste paper if the defendant was 
 not intending to carry into effect the very 
 contract which the testator had made. Then 
 it goes on to recite that the testator in his 
 lifetime had entered into a verbal conti-act 
 with the purchaser, and had agreed for the 
 sale of these premises for the sum of £800, 
 and then comes the other recital, "And 
 whereas the said conti-act and agreement, 
 that is, the testator's contract and agree- 
 ment, being unexecuted and unperformed at 
 the death of the testator," etc., the purchaser 
 had requested the defendant to carry the 
 same into effect, which he the said defend- 
 ant had consented to do. Now, I say that 
 recital is inconsistent with the statement 
 
§ 150) 
 
 FHAYNE V. TAYLOR. 
 
 Case No. 210 
 
 that the heir-at-law, repudiating the old con- 
 tract, was carrying into effect a new con- 
 tract, because it Is an application by the pur- 
 chaser, who had entered into the contract 
 with the testator, for a performance of that 
 contract, and a consent by the heir-at-law to 
 do what he was under no obligation to do. 
 Then the deed goes on to convey in tlie 
 usual terms, but there appears to be, what 
 you would not find in conveyances by a 
 mere heir-at-law, absolute covenants for ti- 
 tle. It does not, however, appear to me 
 that the fact of these covenants being in 
 this form can countervail the unambiguous 
 recitals which precede the operative part of 
 the conveyance, proving that the intention 
 was to carry into effect the original con- 
 tract. If that be so. if the original contract 
 is caiTied out, how can it be said that the 
 proceeds of the sale were not the personal 
 Instate of the testator, and that the testator 
 had not converted his real estate into per- 
 sonalty? 
 
 The whole conduct of the defendant is con- 
 sistent with this view. There were matters 
 unconnected with this questou that prevent- 
 ed the estate being wound up, and an admin- 
 isti'ation summons was taken out, when the 
 defendant upon passing his account of the 
 residuary pei'sonal estate included this sum 
 of £800 as part of the personal estate of the 
 testator come to his hands. This account 
 
 was thought insufficient, and the defendant 
 was required to bring in a further account. 
 This he did, and he then gave credit for the 
 £800, but claimed to retain it as the heir-at- 
 law of the testator. Even then he did not 
 deny that it was part of the personal estate 
 though he claimed it as heu--at-law. It was 
 nothing more than following out what he 
 intended to do from the first, that is, to 
 treat this sum ns personal estate belonging 
 to the next-of-kin. If there had been any 
 mistake about it I should allow the matter 
 to be rectified, and not decide upon a mere 
 technicality; but it appears to me that l)y 
 the most solemn act the defendant treated 
 this sum uniformly as being part of the per- 
 sonal estate. The question really is, not 
 whether the defendant promised to give the 
 sum to his relatives and to divide it as part 
 of the personal estate, but whether it is sole- 
 ly personal estate made so by the defend- 
 ant's own acts. It appears to me that the 
 fact of his carrying out the testator's con- 
 tract, makes it as good a contract as if it 
 had been put in writing. The defendant 
 had a right to say that it should not be en- 
 forced, but he did not say that; on the con- 
 trary, he said, "I am willing to carry it out 
 and will do so," and the pm-chaser did not 
 object. Therefore, I think the purchase- 
 money is part of the personal estate of the 
 testator, and ought to be treated as such. 
 
 ' 569 
 
Case No. 211 
 
 WASHBURN V. HALE. 
 
 (§151 
 
 WASHBURN V. HALE. 
 
 (10 Pick. 429.) 
 
 Supreme Judicial Court of Massachusetts. 
 Oct. Term, 1830. 
 
 SHAW, C. J. This is an appeal from the 
 judge of probate of this county, allowing the 
 account of Artemas Hale as the adminis- 
 trator of the estate of Nathaniel Washburn, 
 junior. This is the same estate, in reference 
 to which an appeal came before this court 
 at the last law term in Taunton, from a de-. 
 cree of the judge of probate of this county, 
 making an allowance to Joanna Washburn, 
 widow of the deceased, whereupon the de- 
 cree was in part reversed, by reducing the 
 allowance from three to one thousand dol- 
 lars. 
 
 In the account allowed in the cotn-t below, 
 was a charge of. 
 
 Cash paid Carverj Washburn & Co. . . $ 76 38 
 
 Do. claimed on his own account 8 41 
 
 Do. paid Asa Packard 3 23 
 
 Sundry articles inyentoried, but of 
 which the administrator had no ben- 
 efit 34 00 
 
 $122 02 
 
 In reference to these items, the facts prov- 
 ed and found are these. That the sum of 
 $70.38 was a bill paid by the administrator 
 to Carver, Washbui-n & Co. for groceries and 
 medicines supplied to Mrs. Joanna Wash- 
 biu'n, the widow of the deceased, after his 
 death, at various times, from the 27th of 
 November, 1829, to the 17th of November, 
 1.S30; that the administrator's own bill of 
 i^SAl was for wood, butter, and milk, sup- 
 plied in like manner to the widow in Octo- 
 ber and December, 1830; and that the ad- 
 ministrator paid to Asa Packard as charged 
 in the account the sum of $3.23, which was 
 for butcher's meat, in like manner fm'nished 
 to the widow, after the decease of the intes- 
 tate, viz. between August and December, 
 1830. 
 
 In regard to those articles in the inventory, 
 of which the administrator received no bene- 
 fit, the facts are these. The articles thus 
 inventoried were wood, $30, and meat, $4, 
 which with the consent and permission of 
 the administrator were used and consumed 
 by the widow in the support and main- 
 tenance of her family dui'ing the winter 
 which succeeded the death ot her husband, 
 which took place on the 18th day of Novem- 
 ber, 1829. It appears that during the year 
 that followed the death of her husband, the 
 widow had a family, consisting of a female 
 domestic, and a boy who usually went to 
 school, but was employed in doing errands, 
 and part of the time, of a nurse. 
 
 The Hon. Wilkes Wood, judge of probate, 
 Avas offered as a witness, by the adminis- 
 trator and appellee, to prove that he advised 
 the administrator that he might rightfully 
 pay these bills and charge them to the es- 
 tate of his intestate; but, being objected to, 
 
 570 
 
 it was ruled, that whether he could right- 
 fully pay these bills under the circumstances, 
 was a pm-e question of law; that if allowed 
 by law, no advite need be shown; that if 
 not allowable by law, no advice could jus- 
 tify them; and therefore that the evidence 
 was not admissible. 
 
 It was contended on the part of the ap- 
 pellee, that it had been usual and customary 
 for an administrator to provide for the sup- 
 port of the intestate's family, whilst the es- 
 tate was in the process of settlement, and 
 that the law would sanction this usage and 
 justify these charges. 
 
 On the part of the appellant, it was con- 
 tended that without the positive provisions 
 of law, no allowance conld be made to a 
 widow by an administrator, even with the 
 sanction of the probate com't; that the su- 
 preme court of probate, with a view of all 
 the circumstances which could properly be 
 taken into consideration, had made an al- 
 lowance, in precise terms, and that it was 
 not competent to the administrator to make 
 other and fm'ther allowances, by the pay- 
 ment of her proper debts out of the assets 
 of the estate or otherwise, and that it is not 
 competent for the judge of probate to sanc- 
 tion such allowances. 
 
 Upon these facts, I am clearly of opinion 
 that these payments were all made by the 
 administrator in his own wrong; that they 
 were not warranted by the rules of law; 
 and therefore that the decree allowing them 
 must be reversed. 
 
 The law in regard to the settlement and 
 distribution of intestate estates, is extremely 
 plain and clear, and it is of the utmost im- 
 portance to the community that it should be 
 carried into effect according to its plain 
 meaning and intent. 
 
 The duty of the administrator is to pay 
 the debts of the deceased, and funeral ex- 
 penses, and he is allowed to pay nothing 
 more out of the assets of the estate to 
 widow, heirs or any other person, however 
 nearly connected, or dependent upon the es- 
 tate, without a decree of the coiu-t of pro- 
 bate. If there be a widow, the probate court 
 has the power, by a decree, to authorize the 
 administrator to pay a certain sum to her, 
 which is a charge upon the assets, even prior 
 to the payment of debts, and which therefore 
 the administrator may at once pay and 
 charge in his accoimt. It has been gener- 
 ally understood, that this provision of the 
 statute, which postjiones even the claims of 
 a'editors to those of the widow, was design- 
 ed to prevent the inconvenience and diffi- 
 culty which would natm-ally arise, where 
 the family of the deceased are kept together, 
 till some arrangement can be made, under 
 the charge of a widow. In this event, it 
 must needs be, that some of the articles of 
 food will be consumed, some of the fm'nitiu-e 
 used, and some of the money expended. 
 Were there no provision in such case, the 
 widow would be in danger of being charged 
 
§ 151) 
 
 WASHBUUN V. HALE. 
 
 Case Ko. 211 
 
 as executor de son tort, and the administra- 
 tor of being brought Into collision with cred- 
 itors, and held to account for property, 
 which according to the ordinary principles 
 of humanity and the common usages of so- 
 ciety, he could not interpose to prevent the 
 widow from using for the support of her 
 family. To avoid this inconvenience, the 
 Judge of probate is vested with an ample 
 discretion to make an allowance to the 
 widow, having regard to the family under 
 her charge. Such allowance, it is under- 
 stood, was intended by this statute provision, 
 to cover all the necessary expenditures and 
 appropriations, to exclude controversy, and 
 to secure the administrator, by giving a 
 ■credit sufficient to cover them. If this is 
 the right view of the pm'pose and intent of 
 the law, it is quite clear, that all the ex- 
 penditm-es and appropriations made by the 
 iidministrator to the widow, are to be de- 
 ducted from the discretionary allowance 
 made to her, and cannot therefore be 
 charged in addition to such allowance. 
 
 Besides, if it were permitted to the admin- 
 istrator to pay for the necessary support of 
 the family of the deceased, without restric- 
 tion as to amount or limitation of time, it 
 would introduce uncertainty and confusion 
 into the settlement of estates, productive of 
 most mischievous consequences. It appears 
 to me, that there is nothing in the provisions 
 of law upon this subject or the practice un- 
 der it in this commonwealth, to warrant the 
 ■claim founded on a supposed usage. 
 
 The assets of an estate constitute a trust 
 fund, first for creditors, then, if there be any 
 residuum, it is to be distributed among wid- 
 ow and heirs, in certain proportions precisely 
 •defined. There can of course be no such 
 distribution, or payment to widow or heirs, 
 till after the settlement of an administration 
 account; because until then it cannot appear 
 that there will be any residuum. If ex- 
 penses for the support of the widow and 
 heirs might be charged in an administration 
 account, they might take part of the very 
 fund destined for the payment of creditors, 
 and thus a preference would be given to 
 them contrary to the express provisions of 
 law.- Hence it has been held, that charges 
 for the necessary support of the heir of the 
 deceased, cannot be made in an administra- 
 tion account. Brewster v. Brewster, 8 Mass. 
 131. 
 
 But there is a shorter view of the subject 
 that leads to the same result. The admin- 
 istrator has a precise particular duty to per- 
 form, viz. to settle the estate according to 
 plain known rules. He cannot act as guard- 
 ian of minor heirs, agent of the widow, or 
 exercise a sort of undefined power, as patron 
 ■ or protector of the family. The law knows 
 
 of no such authority or office, and it would 
 be to confound distinct powers and duties, 
 which the policy of the law requires to be 
 kept separate, if it were allowed. 
 
 If the administi-ator make any advance to 
 a widow or heirs before a decree of allow- 
 ance, or distribution, he must do it at his 
 own risk, and as an advance upon such al- 
 lowance or distribution as may be after- 
 wards made by the probate court; which his 
 knowledge of the condition of the estate may 
 often enable him to do without any real peril 
 to himself. But such advance, if made, is 
 of course a charge to the party to whom it 
 is made, and not to the estate in the hands 
 of the administi-ator, and therefore cannot 
 appear in the administration account. As 
 to all these items, therefore, the decree of 
 the court below is reversed, by which they 
 were allowed, and the decree of this court is, 
 that they be disallowed. 
 
 There is one other ground of appeal, which 
 is, that the administrator was required by 
 the appellant, before the probate com:t, to 
 charge himself with the sum of $10 in casli 
 not inventoried. 
 
 In regard to this, the facts were, that the 
 widow had in her possession, at the time of 
 her husband's decease, with the knowledge 
 of the administrator, about $7 in specie; that a 
 part of this consisted of money whicli she Iiad 
 herself earned and received before her mar- 
 riage, and a part of it of pieces of coin which 
 had been ^ven to her by her husband. The 
 administrator believing that she had a right 
 to retain this specie to her own use, did not 
 put it into the inventory, which omission 
 was sanctioned by the decree of the probate 
 court, appealed from. The question is, 
 whether he was botind to inventory this 
 specie. 
 
 It being the duty of an administrator to 
 put into the inventory, all the property of 
 the intestate that comes to his knowledge, 
 the question is, was this his property? Look- 
 ing at it as a mere legal question, as the 
 court are bound to do, there is really no 
 doubt about it. AU the personal property of 
 a wife, and a fortiori the money, is the 
 property of the husband. Whatever may 
 have been the intent of the husband, as he 
 made no will, the property must be distribut- 
 ed according to law. A gift of money by 
 a husband to a wife, is merely void, in legal 
 contemplation, and as wholly Inoperative as 
 a gift to himself. 
 
 The decree of this court therefore, upon 
 this part of the appeal Is, that the adminis- 
 trator charge himself in his account with 
 this sum of $7, as property not inventoried, 
 and that the proceedings be remitted to the 
 court of probate to be revised, proceeded in 
 and settled upon the principles herein stated. 
 
 571 
 
Case ]^o. 212 
 
 ALLEN V. ELLIOTT. 
 
 (§ 152 
 
 ALLEN V. ELLIOTT et al. 
 
 (67 Ala. 432.) 
 
 Supreme Court of Alabama. Dec. Term, 1S80. 
 
 Appeal from circtiit court, Shelby county; 
 J. E. Cobb, Judge. 
 
 Action by J. L. Elliott and G. W. Bilberry, 
 as administi-ators of Bennett Davis, de- 
 ceased, against B. P. Allen, administrator 
 of R. J. Allen, deceased, on the following 
 note: 'April 18, 1861. $900. One day aft- 
 er date we promise to pay to the order of 
 Bennett Davis, nine hundred dollars, for 
 value received. R. N. Allen. R. J. Allen." 
 Defendant pleaded the general issue and the 
 statute of non-claim. Plaintiff offered the 
 following statement on the back of the note: 
 "Presented this 24th December, 1861. R. J. 
 Allen, Adm'r of the Estate of R. N. Allen. 
 Presented June 22, 1867. B. P. Allen, Adm'r 
 de bonis non of the Estate of R. N. Allen, 
 Deceased." 
 
 The court charged the jm-y as follows: 
 "The only question for you to consider is, 
 whether or not this action is barred by the 
 statute of limitations of six years. If six 
 years elapsed after making certain exclu- 
 sions of time, to which your attention will 
 be called, between the day when the statute 
 began to run and the day on which the suit 
 was brought, the action is barred. The 
 statute ran from the 21st day of September, 
 1865, down to the day when suit was 
 brought, subject to certain exclusi(>ns of time 
 that will be mentioned. In estimating 
 whether or not the said six years had elapsed, 
 you must count from the 21st day of Septem- 
 ber, 1865, to the 27th day of May, 1872, the 
 day suit was brought; and in making this 
 count, you must exclude the first day and 
 include the last, or include the first day and 
 exclude the last; and you must also exclude 
 from the count the time between the death 
 of the intestate and the day of the grant of 
 letters of administration to defendant; and, 
 in this part of the count, you must not esti- 
 mate as part of the time within which the 
 statute runs, the 24th day of Februaiy, 1866, 
 the agreed day of the death of defendant's 
 intestate, but must estimate the 30th day of 
 April, 1866, the day when it is agreed letters 
 were granted; and in addition to said ex- 
 clusion of time, you must further exclude, 
 from the count of time within which the 
 statute runs, the six months that elapsed 
 just after the appointment of defendant as 
 administrator of the estate of R. J. AUen; 
 and in the exclusion of time you must not 
 estimate the 30th day of April, 1866, the day 
 on which letters were granted, as part of 
 the time within which the statute was run- 
 ning, but must estimate the day on which 
 said six months expired; and if, after hav- 
 ing made said exclusions of time, six years 
 had elapsed from the 21st day of Septem- 
 ber, 1865, to the day when the suit was 
 brought, you must find for the plaintiff; and 
 if said six years expired on Sunday, you 
 572 
 
 must exclude that day from the count, and 
 the plaintiffs could have brought this suit 
 on the following day, Monday." The de- 
 fendant requested the court to charge the 
 jurj- "that, if they believed the evidence, they 
 must find for the defendant." This charge 
 the court refused to give. Defendant ap- 
 pealed. 
 
 Paul Bradford and D. T. Castleberry, for 
 appellant. Wilson & Wilson, for appellees. 
 
 SOMERVILLE, J. It has been repeatedly 
 decided by this court, that mere knowledge 
 of the existence of a claim, on the part of 
 an executor or administrator, no matter how 
 full and complete it may be, will not pre- 
 vent the operation of the statute of non- 
 claim. To produce this effect the statute 
 is mandatory in the requirement of an ac- 
 tual presentation, or of some act done by 
 the creditor or claimant which is equivalent 
 thereto; otherwise the claim is forever 
 barred and extinguished. Jones v. Lightfoot, 
 10 Ala. 17; Branch Bank at Decatur v. 
 Hawkins, 12 Ala. 755; Code 1876, §§ 2597, 
 2599. 
 
 It is indispensable not only that the claim 
 should be brought to the attention and 
 knowledge of the executor or administrator, 
 but this must be done by one having an in- 
 terest in it and a legal right to enforce its 
 payment, and it must be evinced by some 
 act or word which indicates an intention to 
 look to the estate of the deceased debtor for 
 its payment. ilcDoweU v. Jones, 58 Ala. 
 25, 35; PoUard v. Scears, 28 Ala. 484. 
 
 The appellant should have been permitted 
 to testify that the claim sued on was never 
 presented to him as administrator of the 
 estate of R. J. Allen, but only as a claim 
 against the estate of R. N. Allen. The en- 
 dorsements on the note were competent 
 evidence, and relevant as bearing on this 
 issue. 
 
 The note sued on was barred by the statute 
 of limitations of six years. Code 1876, S 
 3226. The running of the statute did not 
 commence, by reason of its suspension, until 
 September 21, 18G5, under the provisions of 
 Ordinance No. 5 of the Convention of 18Gri. 
 Rev. Code 1867, p. 53. 
 
 The six months dm-ing which the adminis- 
 trator was exempt from suit, after the grant 
 of letters of administration, is not to be taken 
 as any part of the time limited for the com- 
 mencement of the action, and must be ex- 
 cluded. Code 1876, § 3245. It is also pro- 
 vided, in section 3244 of the Code, that "the 
 time between the death of a person and the 
 grant of letters testamentary, or of admin- 
 istration, (not exceeding six months)," is not 
 to be coimted in tlie estimate. This latter 
 section, we think, is to be construed by in- 
 cluding the day of the decedent's death and 
 excluding the day on which letters were 
 granted. In analogy to the construction given 
 by this court to the above ordinance of Sep- 
 
152) 
 
 ALLEN V. ELLIOTT. 
 
 Case No. 212 
 
 tember 21, 1805, -which excluded from such 
 estimate "the time elapsing between the 11th 
 day of January, 1861, and the passage of tlie 
 ordinance." Bernstein v. Humes, 60 Ala. 
 582, 598; Garner v. Johnson, 22 Ala. 40-1; 
 Owen V. Slatter, 2o Ala. 51.7. 
 
 From September 21, 1865, to May 27, 1872, 
 the day when the suit was instituted, was 
 six years, eight months and six days. The 
 deductions authorized to be made under the 
 above statutes are, six years, eight months 
 and five days. 
 
 The action was then barred by one day, un- 
 less the proposition urged by appellee be ten- 
 able, that, inasmuch as the 26th day of May, 
 1872, was Sunday, the plaintiff had until 
 Monday, the 27th, within which to bring suit. 
 Section 11 of the Code (1876^ is invoked to 
 sustain this view. It reads as follows: 
 "The time within which an act is provided 
 
 by law to be done must be computed by ex- 
 cluding the first day and including the last; 
 if the last is Sunday, it must also be exclud- 
 ed." 
 
 The statute, we think, was intended mere- 
 ly as a reaffirmation of the common law rule 
 that, while Sundays are generally to be com- 
 puted in the time allowed for the perform- 
 ance of an act, if the last day happens to 
 be Sunday, it is excluded, and the act must 
 be performed on the day previous, (Satur- 
 day.) 2 Bouv. Law Diet. tit. "Sunday," § 4; 
 Sanders v. Ochiltree, 5 Port. (Ala.) 73. 
 
 The suit should have been brought on the 
 25th day of May, 1872. The comi; erred in 
 its charges given as to the bar of the statute 
 of limitations, and also in refusing to give 
 the charge requested by the appellant, who 
 was defendant below. 
 
 Reversed and remanded. 
 
 573 
 
Case Xo. 213 
 
 GRAY V. HAWKINS' ADM'X. 
 
 (§ 155 
 
 GRAY et al. v. HAWKINS' ADM'X. 
 (8 Ohio St. 449.) 
 Supreme Court of Ohio. 1858. 
 Bill by Mary Gray and others, Jieirs at 
 law of Joseph S. Hawkins, against Cordelia 
 M. Hawkins, his widow and administratrix. 
 It appeared that Hawkins, at his death, was 
 building a house under a contract. The 
 house was partly completed. The adminis- 
 tratrix, after his death, stopped the work on 
 the building, and paid for the labor and 
 material as far as the work had progressed. 
 The heirs desired its completion, and brought 
 a bill to compel the same, and to enjoin the 
 administratrix from abandoning the conti-act 
 and disposing of the materials. 
 
 Holt, MiUikin, Hubbard, and Foos, for com- 
 plainants. King, Anderson & Herron and 
 Gillman & Bolens, for defendants. 
 
 SUTLIFF, J. It is difficult, from the 
 structure of the petition, to determine upon 
 what precise ground its merits, in the mind 
 of the pleader, rested. It does not seem to 
 have been regarded by the draftsman as 
 simply a case for specific performance of a 
 contract, for the nonperforniauce of which 
 no adequate remedy could be had at law, 
 and so to be regarded as a proper case for 
 relief in chancerj-. Nor does the petition 
 seem to present and rest exclusively upon a 
 case of the wrongful appropriation of per- 
 sonal property, as personal assets which 
 had, by the intestate in his lifetime, been 
 directed to be converted into real estate. 
 And yet this is the only ground, expressed 
 in the petition, upon- which the heirs would 
 seem to have any right to ask the relief 
 prayed for. The pleader seems to have at- 
 tached some importance to the extraneous 
 circumstances set forth in the petition; the 
 facts of the intestate having left no children; 
 that he had been but a short time married; 
 that no part of his property was brought 
 to him by his wife; and that his personal 
 estate amounted to some $12,000, while his 
 real estate did not exceed some $3,000. But 
 we cannot regard these matters, although 
 set forth in the petition and made to appear 
 among the facts of the case, as at all affect- 
 ing the rights of the respective parties, ex- 
 cept as they may in some particulars tend to 
 show the object and purposes of the con- 
 templated improvements. 
 
 It is a well understood principle of law, 
 that legal assets do not comprehend all that 
 is included by the words personal property. 
 Personal chattels and money are not unfre- 
 quently to be regarded and treated as real 
 estate. Lord Thurlow, in remarking upon 
 this subject, in the case of Fletcher v. Ash- 
 burner, 1 Brown, Oh. 497, observed "that 
 nothing was better established than this 
 principle, that money directed to be em- 
 ployed in the purchase of land, and land 
 directed to be sold and turned into money, 
 are to be considered that species of prop- 
 
 574 
 
 erty into which they are directed to be con- 
 verted; and this in whatever manner the 
 direction is given, whether by will, by way 
 of contract, marriage articles, settlement, or 
 otherwise; and whether the money is ac- 
 tually deposited or only covenanted to be 
 paid, whether the land is actually conveyed 
 or only agreed to be conveyed, the owner 
 of the fund, or the contracting" parties, may 
 make land money, or money land. The cases 
 establish this rule universally." The same 
 principle has, ever since, been generally rec- 
 ognized In Kngland and in this country. 
 
 But in the application of the rule, the 
 cases where the intentional change of per- 
 sonal property into real exists, and is ex- 
 pressed as the evident object of the owner 
 of the fund, must always be distinguished 
 from an intended change of personal into 
 real property, as merely incident to some 
 other object. If, for instance, an intestate 
 has concluded to invest his money in town 
 property, as a profitable investment, and, 
 in carrying out this clearly expressed inten- 
 tion, has entered into a contract witli one 
 person for the purchase of a lot, and has 
 also made a definite contract with another 
 person for the erection of a store-house 
 thereon, the completion of which would be 
 necessary to render remunerative the invest- 
 ment, the materials, furnished imder the 
 contract by the contractor, and the money 
 necessary for the completion of the house, 
 might be as properly regarded real estate 
 as the money invested, and still to be paid, 
 as the agi'eed purchase pi'ice of the lot. 
 The completion of the contract, for a ju- 
 dicious improvement of the lot in such a cr.se, 
 is as necessary to attain the object of the 
 proprietor of the fund, existing in his own 
 mind at the time of making the contracts 
 for the purchase and the improvements, as is- 
 the payment of the pm'chase money to ob- 
 tain a perfect title. And the object remains 
 as evident, after the death of the contractor 
 in such a case, as if the contract had been 
 with only the owner of the lot of gi-omid for 
 its purchase, and the erection thereon of 
 the store-house. The object, in either case, 
 would appear very evidently to have been 
 an investment of personal property in real 
 estate as an investment; and this object re- 
 maining, after the decease of the Intestate, 
 ought to be respected as a change of the 
 character of his personal property to that 
 extent, as clearly expressed by such con- 
 tract, as it would have been if expressed 
 by will or testament. But if the intestate, 
 entertaining a particular regard for some 
 dependent friend, had even entered into 
 a definite contract with some one to build, 
 at a large expense, a house or studio for 
 that friend, and also to extend a super- 
 intendence over it during the life of the 
 beneficiary, it could not be supposed— the 
 friend also having deceased shortly after the 
 intestate and before the performance of the 
 contract— that the administrator, after the 
 
§ 153) 
 
 GRAY V. HAWKINS' ADM'X. 
 
 Case No. 21.5 
 
 termination of the object ano purposes of 
 the contract, ought to be required to see the 
 same specifically performed. It could not 
 be supposed that, under such circumstances, 
 the Intestate would desire a completion of 
 the contract. The pm-pose having failed for 
 which the building was to be constructed, 
 the condition would seem to have failed 
 upon which the direction by the intestate 
 for the investment, so expressed by the con- 
 tract, depended. 
 
 The distinction here expressed is to be 
 foimd, I think, generally recognized in the 
 cases presenting the subject. In the case of 
 Ripley t. Waterworth, 7 Ves. 425, Lord 
 Chancellor Eldon, in giving his opinion, says: 
 "There is an obvious difference from all the 
 cases, which established this general princi- 
 ple, that where a person dealing upon his 
 own property, only has directed a conversion 
 for a particular special pm-pose, or out and 
 out, but the produce to be applied to a par- 
 ticular pm'pose, when the purpose fails the 
 intention fails; and this comt regards him 
 as not having directed the conversion." 
 
 As a general rule, the personal representa- 
 tive of the testator or intestate may, in his 
 discretion, perform or rescind any personal 
 contract, made by the deceased, imposing 
 any liability or duty upon himself, for the 
 best interest of the estate, subject however 
 to the approval of the court. 
 
 To the administrator belongs the control 
 of the legal assets, and the duty of collecting 
 the claims and discharging the liabilities of 
 the intestate. To the heir, in his representa- 
 tive capacity, belongs the conti-ol of the real 
 estate, subject to the rights of the widow, 
 whether the title to the real estate be a legal 
 or only an equitable title. In this division of 
 property between the personal and real rep- 
 resentatives of the intestate, equitable inter- 
 ests in lands, held by contracts of purchase, 
 are regarded in the nature of equities of re- 
 demption. The right to the lands belongs 
 to the heir, and the debt subsisting for the 
 purchase money, if the same was obligatory 
 upon the intestate in his lifetime as a debt, 
 must be paid by his administrator from the 
 legal assets, if sufficient, although the result 
 may greatly diminish, or entirely exhaust the 
 personal estate of the deceased. And this 
 necessarily results from the discharge of hLS 
 duty, by the adminlsti'ator, of paying the 
 debts of the intestate. 
 
 Fi-om the foregoing remarks, and the state- 
 ment of the facts of this case, the real ques- 
 tion upon which the merits of this case de- 
 pends, is solely as to the conversion of so 
 much of his personal property into real by 
 the intestate as is necessaiT to perfect the 
 contemplated improvements. If the intes- 
 tate, by his own action, and by the contracts 
 made in his lifetime, in relation to the im- 
 provements, has left evidence of having pur- 
 posed and directed to be set apart and invest- 
 ed a certain amount of his personal property, 
 or such an amount of his personal property 
 
 as was sufficient to perfect certain im- 
 provements of his real estate as an invest- 
 ment in real estate, and not merely as inci- 
 dent to some other purpose which no longer 
 exists, such amount of the personal estate 
 should, doubtless, be regarded as real as- 
 sets, and would belong, not to the personal, 
 but to the real representatives of the intes- 
 tate. But if it only appears that the con- 
 templated appropriation of his personal to 
 the improvement of his real estate by the 
 intestate, was merely incident to an object 
 and purpose which no longer exists, and not 
 as an investment in real estate, as the ob- 
 ject and purpose of the appropriation, in 
 such a case, the direction of the intestate for 
 the conversion, should be regarded as having 
 been conditional, and to have ceased upon 
 the termination of the object and purposes. 
 
 Now, the proof in this case shows very 
 clearly that the intestate had commenced 
 building upon and improving a town lot as a 
 homestead and residence for h;mself. The 
 improvement was evidently designed, and 
 was being made by the intestate, not as a 
 judicious investment in real estate, but only 
 for his own personal gratification and con- 
 venience, and for the purpose of construct- 
 ing and prepai-ing for himself a more pleas- 
 ant residence. By his death, the object and 
 purposes of those improvements, designed 
 for his own enjoyment, have terminated; 
 and the completion of the improvements, it 
 appears, would be attended with much pe- 
 cuniary sacrifice and loss to the estate. 
 
 The proof shows, that to construct such im- 
 provements upon the lot as the intestate 
 would probably have constructed, or those of 
 equal cost, would be attended with a sacri- 
 fice and pecuniary loss to the estate of prob- 
 ably not less than $2,000; while the entire 
 amount paid for rescinding the contracts, so 
 far as they have been made, will not exceed 
 $200. 
 
 There is, then, no equity upon which the 
 complainants can stand to ask a specific \_irv- 
 formance of the contracts. 
 
 But the proof does not in fact present such 
 contracts for the contemplated improve- 
 ments, as could be ordered to be specifically 
 performed, even upon the application of a 
 party to the contract. 
 
 The contracts are not in writing; they arc 
 vague and uncertain in their terms. The 
 proof shows that the intestate had com- 
 menced building upon his lot of ground, and 
 contemplated making extensive improve- 
 ments thereon, for a convenient and pleasant 
 residence for himself and family. He had 
 procured certain materials, and engaged 
 such other materials, to be delivered in fu- 
 ture, as he might need for perfecting the im- 
 provements. He had also engaged the aery- 
 ices of certain workmen, and had given 
 them assurances that he should want their 
 services for some time in future, in construct - 
 luu- tlir ciiutemplalcd improvements. But it 
 seems to have been understood by all the 
 
 57& 
 
Case No. 213 
 
 GKAY V. HAWKINS' ADM'X. 
 
 (§ 153 
 
 workmen, tbat the work was to be clone un- 
 der the direction of the intestate, and sub- 
 ject to such alterations and additions as he 
 might jfrom time to time suggest. Indeed, 
 the work could not be properly said to be 
 under contract. The case seems to be quite 
 analogous to that presented by the affairs of 
 enterprising business men generally, who 
 die, imexpectedly, while in full pursuit of 
 their enterprises. The merchant, the manu- 
 facturer, or farmei', who dies suddenly while 
 can-ying on an extensive business, will each 
 usually be found, doubtless, to hare made 
 similar arrangements for the prosecution of 
 his business for a length of time in futm'e. 
 They may have employed, in a similar man- 
 ner, operatives, who may have received en- 
 couragement, or an assurance of employment 
 for a year, or even longer time, in future. 
 But in each and all of these cases, it would 
 be an unheard of claim on the part of trxf 
 heir, or even the employes, that there should 
 be a specific performance in such cases, by 
 the administrator continuing to caiTy on to 
 
 576 
 
 their completion the business operations of 
 the intestate. 
 
 The general rule is, that for the breach of 
 a contract, the appropriate remedy Is, at 
 law, in the recovery of adequate damages. 
 Specific performance of the contract is the 
 exception to the rule. But the facts of this 
 case by no means constitute such exception. 
 The proof shows very clearly that the intes- 
 tate neither purposed nor directed a conver- 
 sion of his personal estate into real, as an 
 investment in real estate, and for that pnv 
 pose, but only as a mere incident to the ob- 
 ject of fm-nishing himself a residence; and 
 that such object and purpose have terminat- 
 ed, and that, therefore, the pm-pose and di- 
 rections of the intestate, in his lifetime, to so 
 appropriate and convert his personal prop- 
 erty, should also be held to have terminated. 
 
 The bill must, therefore, be dismissed, at 
 the costs of the complainants. 
 
 SWAX, C. J., and BRINKERHOPF, 
 SCOTT and PEuiv, JJ., concur. 
 
§ 153) 
 
 POOLE V. MUNDAY. 
 
 Case No. 214 
 
 POOLE V. MUNDAY et al. 
 
 (103 Mass. 174.) 
 
 Supreme Judicial Court of Massachusetts 
 Essex. Nov. Term, 1860. 
 
 From a decree disaUowing the account of 
 Benjamin Poole, administi-ator of the estate 
 Of Thomas P. Munday. intestate, he appS- 
 .\nJ ?'*'P°''* ^ substantially as follows: 
 t* ^^^ Pff <='Pal controversy arose over an 
 tern Of $1766.54, for losses in carrying on 
 the butchermg business. In relation to this 
 Item the appeUant offered to prove that the 
 intestate died in 1862, leaving a widow and 
 two children, his representatives and heirs 
 at law; that one of the children, Alphonso 
 Munday, was twenty years and about ten 
 months old, and the other child was about 
 eighteen years old; that the intestate was a 
 wholesale and retail butcher, owning a laro-e 
 slaughterhouse, with all the necessary im- 
 plements and fixtures, horses, carts, wagons, 
 harnesses and other articles, together with 
 a large stock of hogs, sheep, cattle, and 
 meats of various kinds; that he had been in 
 the business for more than twenty years, 
 and had established a trade of great value! 
 and which the parties desired should be pre- 
 served for Alphonso to take when he should 
 become twenty-one years old; that Alphonso 
 had been employed with his father and knew 
 the details of the business; and that Al- 
 phonso himself, and the widow and the other 
 child, and aU the other friends and relatives 
 of Alphonso, desired that the trade, business, 
 good wiU and custom of the concern should 
 be preserved for Alphonso. 
 
 "The appellant offered also to prove that, 
 on the death of the intestate, the widow and 
 the children repeatedly and urgently solic- 
 ited the appeUant to take administration of 
 the estate, and to carry on and preserve 
 said business until Alphonso should become 
 of age and could take and caixy on the busi- 
 ness in his own name and right; and the 
 appellant declined to take administration 
 and carry on said business unless Alphonso 
 would conduct the business, and unless the 
 widow and children would assume the risks 
 of the same; that thereupon the appellant 
 consulted the judge of probate, and under- 
 stood him to say that the business could be 
 carried on for the estate with the consent 
 of all the parties interested in said estate; 
 that the api)eUant thereupon took adminis- 
 tration of the estate, and an inventory of the 
 estate was made and returned into the pro- 
 bate court; that aU the stock, implements 
 and materials used in the butchering busi- 
 ness remained in the hands of Alphonso, and 
 he carried on said business, pursuant to the 
 arrangement made between the appellant, 
 the widow and the said chUd; that Alphonso 
 butchered and sold the cattle on hand at tlie 
 decease of his father, and bought others and 
 sold the same, and made returns of his said 
 doings to the appellant from time to time; 
 ABB. WILLS — 37 
 
 that the business was conducted in this way 
 at the special instance and request of aU the 
 pai-ties, in order that the good wiU and cus- 
 tom should be preserved for Alphonso when 
 he should become of age and could buy and 
 seU in his own name; that Alphonso be- 
 came of age sometime hi 'January or Febru- 
 ary, 1803; that on March 2, 1863, the ap- 
 pellant, in pursuance of the agreement and 
 arrangement before made by aU the parties, 
 sold and conveyed to Alphonso aU the stock, 
 tools, utensUs and other things belonging 
 to the estate and used in said business; and 
 that Alphonso thereafter carried on the busi- 
 ness as it was desired that he should by his 
 mother, sister, and other relatives and 
 friends. 
 
 "The appeUant fm-ther offered to prove by 
 Annette Munday, the other child of the in- 
 testate, that the arrangement above stated 
 was urgently desired and expressly agreed 
 to by herself and her mother and brother; 
 that since she had become twenty-one years 
 of age she had ratified said agreement and 
 an-angement; that she had assented to the 
 account of the appeUant by signing it and 
 waiving aU objections to it; and that she de- 
 sired that the appeUant might be aUowed in 
 his said account for aU the losses incurred 
 by reason of his carrying on the business as 
 aforesaid. 
 
 "The appeUant offered to prove further, 
 that the widow specially desired and re- 
 quested the business to be carried on as it 
 was carried on, at the risk of tlie estate, for 
 the use and benefit of her son when he be- 
 came of age; and that she had repeatedly 
 admitted that the business was so carried 
 on at her request, and that the estate was 
 liable for all the losses suffered while it was 
 so carried on. 
 
 'And the appellant finally offered to prove 
 that Alphonso specially requested the appel- 
 lant to carry on the business as aforesaid 
 tiU he should become twenty-one yeai-s old 
 and coiUd buj- and sell; that he agi'eed to 
 purchase all said property when he became 
 of age and could make conti'acts binding 
 upon himself; that when he became of age 
 he purchased and took all said property as 
 had been agreed upon, and at the same time 
 ratified and confirmed all that had been 
 done by the appellant in carrying on the 
 business; and that since that time he had 
 admitted in many diiferent forms, and to 
 many different persons, that the appellant 
 carried on said business at the request of 
 himself, his mother and sister, for said 
 estate and at the risk of said estate, and that 
 said estate was liable for the losses made 
 while the appellant was carrying on said 
 business. 
 
 "The judge declined to receive this evi- 
 dence; ruled as matter of law that the ad- 
 ministrator could not prove such an item 
 in his account; and reserved the case upon 
 the above offers for the consideration of the 
 full court, the case, after the determina- 
 
 577 
 
Case Xo. 214 
 
 POOLE V. MUND.VY. 
 
 (§ IS 
 
 tion of the full court as to the principles 
 under which the account should be made 
 up, to be referred to an auditor to state the 
 account upon the principles to be settled by 
 the coiu't." 
 
 J. W. Perry, for appellant. S. B. Ives, Jr., 
 & S. Lincoln, Jr., for appellees. 
 
 COLT, J. An administrator who, in a par- 
 ticular transaction, acts in good faith, under 
 the direction of all the personal representa- 
 tives who are interested in the estate, is to 
 be protected, in rendering his accounts in the 
 probate court, from a claim, on the part of 
 such representatives, that he has not ad- 
 ministered strictly according to law in re- 
 spect to such transaction. He may prose- 
 cute or defend suits, compromise claims 
 upon the estate, or deal with the assets in a 
 particular way, not usual or strictly legal; 
 as by continuing the property in business; 
 and the personal representatives, by whose 
 request or assent it has been done, will not 
 be permitted to charge him with maladmin- 
 istration. 
 
 .578 
 
 Whether the administrator has acted in 
 good faith, and by the consent or vfith the 
 approbation of those interested, is open to' 
 inquiry, when he is called on to account. 
 Thus, although he produces the receipts of 
 all the heirs, acknowledging that he has paid 
 them their distributive shares in full, yet he 
 may be cited to render and settle his ac- 
 count, in order that the parties interested 
 may show that the receipts were improperly 
 obtained, and that the distributees ought not 
 to be barred by them. Bard v. Wood, 3 
 Met. (Mass.) 74. 
 
 In the case at bar, there were no creditors, 
 and no persons interested in the adminis- 
 trator's account but the widow and two chil- 
 dren, at whose request and for whose benefit 
 it is alleged that the property was con- 
 tinued in business. The evidence offered by 
 the appellant should therefore have been re- 
 ceived and considered by the probate coml; 
 and the case must be sent to an auditor ta 
 state the account upon the principles here 
 recognized. Brazer v. Clark. 5 Pick. 96^ 
 103; Cowdin v. Perry. 11 Pick. o(i3, .512. 
 
 Ordered accordingly. 
 
§ 154) 
 
 PICKERSGILL v. LAHEJTS. 
 
 Case No. 215 
 
 PICKERSGILL v. LAHENS. 
 
 (15 Wall. 144.) 
 
 Supreme Court of the United States. 1872. 
 
 Appeal from the circuit coui-t for the 
 southern district of New York. 
 
 A statute of the state of New York thus 
 enacts: "No injunction shall be issued to 
 stay the trial of any personal action at issue 
 in any court of law until the pai-ty applying 
 therefor shall execute a bond, with one or 
 more sufacient sm-eties, to the plaintiff in 
 such action at law, in such sum as the chan- 
 cellor or master allowing the injunction shall 
 direct, conditioned for the payment to the 
 said plaintiff, and his legal representatives, 
 of all moneys which may be recovered by 
 such plaintiff or his legal representatives, 
 ... in such action at law, for debt or dam- 
 age, and for costs therein." 
 
 With this statute in force, Pickersgill sued 
 Lahens at law in the superior court of New 
 York, a common law court, on certain in- 
 dorsements. Thereupon Lahens filed a biU 
 in the com-t of chancery of the state, for 
 relief against the indorsements; and having 
 done so, applied, under the above-quoted act, 
 for an injunction to stay the trial at law. 
 The court upon the filing of a bond meant 
 to be such as the above-qnoted act required, 
 granted a temporary injunction staying the 
 suit at law till an answer to the bill in 
 chancery should come in. The bond was 
 the joint bond (not the joint and several 
 bond) of Lahens and one Lafarge; this La- 
 farge not having been any party to the suits 
 already mentioned, nor interested in them, 
 and not deriving any benefit from his join- 
 ing in the bond. The bond recited the ac- 
 tion at law against Lahens, the bill and in- 
 junction in chancery, and the condition of 
 the instrument was that the obligors should 
 pay all moneys which should be recovered 
 In the suit at law. Answers to the bill for 
 relief having come in, the action at law pro- 
 ceeded, and a judgment was rendered 
 against Lahens for |129,000. Before this 
 time Lafarge had died; and at the time 
 Lahens had become insolvent. Thereupon 
 Pickersgill filed a bill in equity against the 
 executors of Lafarge, to have his estate pay 
 the amount of the bond, with interest from 
 the recovery of the judgment against La- 
 hens. The executors demurred; assigning 
 among other grounds of demurrer that it 
 appeared by the bill that Lafarge was not 
 severally bound by the bond, but only joint- 
 ly bound with Lahens; that Lafarge re- 
 ceived no consideration for becoming an 
 obligor; that he was not interested in any 
 of the matters in consequence whereof the 
 bond was given, and was merely a sui-ety 
 therein, and that he departed this life be- 
 fore the filing of the present bill, leaving 
 Lahens surviving him, who was stiU alive. 
 The court below sustained the demurrer; 
 acting doubtless on the ancient principle of 
 
 equity, announced with a clear mention of 
 its grounds by Grier, J., for this court, 
 in U. S. v. Price, 1 that after the death of 
 one joint obligor (the other surviving) the 
 estate of the one deceased cannot be pur- 
 sued in equity unless there was "some moral 
 obligation antecedent to the bond;" the 
 which obligation the court declared could 
 not exist where the deceased obligor had 
 been but a surety. To review the action 
 of the com-t in sustaining the demurrer this 
 appeal was taken. 
 
 Mr. W. W. McFarland, for appellant. Mr. 
 P. Kernan, contra, and Mr. T. J. Glover, 
 for the executors of Lafarge, and Mr. F. H, 
 Dykers, for Lahens. 
 
 Mr. Justice DAVIS. It is very clear that 
 the estate of Lafarge is discharged at law 
 from the payment of the obligation in con- 
 troversy, on the familiar principle that if 
 one of two joint obligors die the debt is ex- 
 tinguished against his representative, and 
 the sm-viving obligor is alone chargeable. 
 It is equally clear that in this class of cases, 
 where the remedy at law is gone, as a gen- 
 eral rule a com-t of equity will not afford 
 relief, for it is not a principle of equity that 
 every joint covenant shall be treated as if 
 it were joint and several. The court will 
 not vary the legal effect of the instrument 
 by making it several as well as joint, unless 
 it can see, either by independent testimony 
 or from the nature of the transaction itself, 
 that the parties concerned intended to cre- 
 ate a separate, as well as joint, liability. 
 If through fraud, ignorance, or mistake, thf 
 joint obligation does not express the mean- 
 ing of the parties, it will be reformed so as 
 to conform to it. This has been done where 
 there is a previous equity which gives the 
 obligee the right to a several indemnity from 
 each of the obligors, as in the case of money 
 lent to both of them. There a court of 
 equity will enforce the obligation against 
 the representatives of the deceased obligor, 
 although the bond be joint and not several, 
 on the ground that the lending to both cre- 
 ates a moral obligation in both to pay, and 
 that the reasonable presumption is the par- 
 ties intended their contract to be joint and 
 several, but through fraud, ignorance, mis- 
 take, or want of skill, failed to accomplish 
 their object. This presumption is never in- 
 dulged in the case of a mere surety, whose 
 duty is measured alone by the legal force 
 of the bond, and who is under no moral ob- 
 ligation whatever to pay the obligee, inde- 
 pendent of his covenant, and cousequently 
 there is nothing on which to found an equity 
 for the interposition of a court of chancery. 
 If the surety should die before his principal, 
 his representatives cannot be sued at law; 
 nor will they be charged in equity. These 
 general doctrines on this subject were pre- 
 sented at large in this court in the ca.so 
 
 ' 9 How. 90. 
 
 579 
 
Case Xo. 215 
 
 PICKEHSGILL ■«. LAHENS. 
 
 (§ 134 
 
 of U. S. V. Price, and they are sustained 
 by the text writers and boolts of reports in 
 this country and England. 
 
 The authority of the decisions on this 
 subject we do not understand the appellant 
 as questioning in a proper case; but he in- 
 sists they are not applicable here. 
 
 His position is, that a statutory obligation 
 lilie the bond in question is different in 
 principle, and should be interpreted differ- 
 ently from a contract made by private par- 
 ties between themselves, as the obligees in 
 such a bond cannot direct the form it shall 
 take, nor elect whether to accept or refuse 
 it. The bond, which is the foundation of 
 this suit, was given in 1846, under the or- 
 der of the court of chancery of New York, 
 to stay tlie proceedings in an action at law 
 then pending in the superior court of the 
 city, and it is argued, as the statute does 
 not require bonds of this character to be 
 "joint and several," in legal intendment they 
 must be joint in form, and all the obligors, 
 therefore, should be regarded as principals. 
 It is undoubtedly true, as words of several- 
 ty are not employed, that a joint bond is a 
 compliance with the law, but it by no means 
 follows that a joint and several obligation 
 is not an equal compliance with its terms. 
 It is certainly not forbidden, and as the 
 statute is silent on the subject the fair in- 
 tendment is that either was authorized, and 
 that the court had the right to direct which 
 shoxild be given. If this be so, then it can- 
 not properly be said that the party enjoined 
 had no voice in the nature or sufficienc;? 
 of the security to be taken, for the discre- 
 tion of the chancellor was, necessarily, to 
 be exercised in relation to both these mat- 
 ters, if his attention wa.s directed to them, 
 after both sides were heard. It is quite 
 apparent, if this discretion had been in- 
 voked, that the instrument of security might 
 580 
 
 have been different; and equally apparent 
 that Lafarge, in case this had been done, 
 might have been unwilling to assume the 
 additional risks which a separate liability 
 imposed on him. We must suppose, in the 
 absence of any evidence on the subject, that 
 he knew the legal differences between the 
 different kinds of obligations, and became 
 bound in the way he did because a joint 
 liability was more advantageous to him. If 
 this wns his intention, it would be manifest- 
 ly unjust for a court of equity, after the 
 legal status was fixed by his death, to change 
 the nature of the obligation which he ex- 
 ecuted in order to charge his estate. In 
 the cases In which equity has treated the 
 obligation as joint and several, although in 
 form joint, the siu-ety participated in the 
 consideration. In this case Lafarge had no 
 pecuniary interest in the litigation which 
 was enjoined, and deri.ved no personal bene- 
 fit from the instrument of writing which he 
 signed, and, therefore, no good reason can 
 be furnished why his standing In a com-t 
 of equity is not as favorable as if he were 
 surety, without advantage to himself, in the 
 borrowing of money. In neither case is 
 there any obligation to pay independent of 
 the covenant. In the one there is a liabiUty 
 for a debt; in the other, for a result in an 
 action at law. Both are cases of contract, 
 for, indeed, suretyship can exist in no other 
 way; and we know of no principle of equity 
 by which a contract of indemnity is to be 
 construed so as to charge an estate, and an 
 engagement to pay money to receive a con- 
 trary construction. The equities in both are 
 clearly equal, and as the estate of Lafarge 
 Is not liable at law, It will not be held liable 
 in equity. 
 
 The demurrer to the bill was, therefore, 
 properly sustained, and the decree Is ac- 
 cordingly affirmed. 
 
g 155) 
 
 EX PARTE GARLAND. 
 
 Case No. 216 
 
 Ex parte GARLAXD. 
 
 (10 Yes. 110.) 
 
 High Court of Chancery. 1803. 
 
 jrienry Ballman, by his will, dated the 17th 
 of February, 1798, after directing his debts, 
 &c. to be paid, bequeathed all his leasehold 
 and personal estates to his wife Margaret 
 Ballman, and three other persons, tlieir re- 
 spective executors, &c. upon trust to permit 
 Margaret Ballman to receive the rents, inter- 
 est, &c. for her life, or until she should mar- 
 ry again, for her own use, and the support, 
 maintenance and education, of his five chil- 
 dren, imtil they should respectively attain 
 the age of 21, subject to certain payments 
 to his children, as after mentioned; and from 
 and after the death and second marriage of 
 his wife, in tmst for all and every, or such 
 one or more of his said children or their is- 
 sue, and in such shares, manner, and form, 
 as she should appoint by any deed or instru- 
 ment in writing, or by her will; and for 
 want of such appointment, and as to such 
 parts, of which no such appointment should 
 be made, in trust for all his children, their 
 respective executors, &c. equally to be as- 
 signed, paid, and ti'ansfen-ed, at their re- 
 spective ages of 21, with survivorship in case 
 of the death of any under that age; and in 
 case of the deaths of all under that age 
 without leaving issue, then to pay, &e. his 
 said personal estate to Margaret Ballman, 
 her executors, &c. 
 
 The testator then directed his ti-ustees to 
 pay to his children respectively, as they 
 should attain 21, £400 a-piece out of his per- 
 sonal estate; and he further directed, that 
 his ti-ade of a miller, and the farming busi- 
 ness, then carried on by him, should be car- 
 ried on by Margaret Ballman, until his trus- 
 tees should think proper to establish his 
 sons or either of them therein; and he di- 
 rected his trustees upon so settling his sons, 
 or either of them, in the business, to permit 
 them to take off the stock, crop, and other 
 effects in the said business at a fair valua- 
 tion, and to take a bond or note from them 
 for the amount, payable by such instalments 
 as his trustees should think reasonable, with 
 interest in the mean time at 4 per cent. 
 He also directed, that, as long as the busi- 
 nesses should be carried on by his wife, the 
 profits thereof should be applied for her own 
 use, and for the maintenance and education 
 of his children; and that an inventory and 
 valuation of his stock, crop, and effects, in 
 his said businesses, should be taken within six 
 weeks after his decease; and that any sum 
 or sums, not exceeding £300 which by a 
 codicU he increased to £600 should be paid 
 by his trustees to Margaret Ballman, out of 
 his personal estate, for the purpose of enab- 
 ling her to carry on the said businesses; and 
 that she should give notes of hand to the 
 other trustees for the sums so advanced to 
 her, and the amount of the valuation. He 
 
 appointed his widow and the other trustees 
 his executors. 
 
 After the deatli of the testator Margaret 
 Ballman carried on the trades till December, 
 1801; when she became a bankrupt. The 
 otlier trustees had according to the directions 
 of the vsall advanced her the sum of £600; 
 and the stock and effects were valued at 
 £135. 5s.; for which she gave two notes to 
 the other ti-ustees. At the time of her bank- 
 ruptcy she was indebted to the trustees in 
 respect of those two notes, and also in £708. 
 12s. 4d. of the testator's assets, received by 
 her. The surviving trustee proved under the 
 commission the three sums of £1351. 5s., 
 £600, and £768. 12s. 4d. 
 
 The petition was presented by the assignees 
 under the commission; praying, that tlie 
 proof may be expunged; and the dividends 
 refunded; and that it may be declared, that 
 the whole of the personal estate of the tes- 
 tator is liable to all the debts contracted by 
 the bankmpt in carrying on the trades of 
 a miller and farmer under the directions of 
 the will. 
 
 When the petition was first heard, two 
 points were made for the assignees; 1st, that 
 the sm"viving trustee, as a creditor on the 
 notes, ought to be postponed to all the other 
 creditors of the bankrupt: 2dly, that the gen- 
 eral assets of the testator were subject to 
 the bankruptcy. 
 
 On the first point, THE LORD CHANCEL- 
 LOR immediately expressed a clear opinion 
 in favour of the assignees. The second his 
 Jordship considered a point of great impor- 
 tance; and directed a further argument 
 
 Mr. Alexander and Mr. Daniel, in support 
 of the petition. 
 
 There is no doubt, that a trader, entitled 
 to a share of profits, is liable to all the debts. 
 If an executor is directed to carry on the 
 trade, and does so, he must make himself 
 personally liable to the whole of the debts, 
 contracted in that trade: Hankey v. Ham- 
 mond.^ He must have the right of resorting 
 for his indemnity to the whole personal es- 
 tate, given to him with a direction to carry 
 on the trade. It follows, that the creditors 
 must have it, at least by circuity, to the 
 same extent Upon tliat ground in bank- 
 ruptcy arrangements have been made be- 
 tween different classes of creditors; viz. be- 
 tween joint and separate creditors; for they 
 have no lien, except by the effect of an 
 action and execution. Those aiTangements 
 are founded entirely upon the equities of the 
 partners between each other. But, if the 
 estate is not liable, the consequence is, the 
 executor is liable, but as having made the 
 contract. The very profits of the trade may 
 escape from the creditors; and yet those 
 profits constitute part of the testator's es- 
 tate. What is the distinction between those 
 profits and any other part of the estate? 
 
 >1 Cooke, Bankr. Law, 67. 
 
 581 
 
Case Xo. 216 
 
 EX PARTE GAULAXD. 
 
 (§ 155 
 
 There is certainly difllculty in many cases, 
 in the genera,! administration of assets, where 
 the testator directs the trade to be carried 
 on for the benefit of his estate. But that 
 is the necessary consequence of what the 
 testator has thought tit to do; and cannot 
 be a reason for exonerating his estate from 
 that liability, which the law would impose 
 upon him. The difficultj- is introduced by 
 liimself; and it is not inconvenient in prac- 
 tice. If no part, except what is by his di- 
 rection employed in the ti'ade would be lia- 
 ble, the executor must undertake all the 
 personal liability, that follows from carrying 
 on the trade, without an opportunity of re- 
 sorting to the other assets; which vipon that 
 supposition may be safely administered. 
 Perhaps executors may shrink from that re- 
 sponsibility if they have no indenmity; and 
 that would be the inconvenience of a de- 
 termination in that way. But, suppose the 
 proposition determined the other way: the 
 executor may, if he thinks fit, administer the 
 .assets; and pay the legacies; taking the per- 
 sonal responsibility upon himself; as any 
 other executor may, and the inconvenience 
 would uot be greater. 
 
 A species of partnership, known upon the 
 continent, and in writers upon the French 
 law, by the term "En Commandite," viz. a 
 party bringing in a share, and entitled, and 
 liable only in respect of that share, certainly 
 does not prevail here. The general opinion, 
 that by the law of England there cannot be 
 a partial liability in respect of a particular 
 fund, is strong against the rule, upon which 
 the opposition to tliis petition must rest. No 
 authority is to be found, except that before 
 Lord Kenyon. The effect of this will is a 
 general bequest of all the personal estate 
 to trustees; not a specific legacy to the wid- 
 ow only; with a direction to carry on the 
 ti'ade. The purposes, for which the ti-ade is 
 to be carried on, are general purposes, of the 
 same nature as those, to which all the per- 
 sonal estate is destined by the former part 
 of the will: viz. the maintenance of the wid- 
 ow and children, &c.: consequently there is 
 no separation of this trade for any one par- 
 ticular piu'pose or person. 
 
 Mr. Richards, and Mr. Toller, for the sur- 
 viving trustee under the will. 
 
 Under the circumstances of this case, the 
 testator's general assets are not involved in 
 this bankruptcy. Admitting, that no case, 
 precisely analogous, is to be found, upon 
 principle the assignees cannot substantiate 
 a claim to the general mass of the testator's 
 property. Some propositions are perfectly 
 clear: on the one hand, that if an executor, 
 under the authority of the A\-ill, carries on 
 trade with the testator's general assets, not 
 only such general assets, but even his own 
 private property, will be subject to his bank- 
 mptcy. It is impossible therefore for a man 
 to carry On trade under more disadvanta- 
 geous terms, than an executor in the case sup- 
 o82 
 
 posed. If the trade be beneficial, the profits 
 are applicable to the purposes of the will; 
 and the executor derives no personal benefit 
 from the success of the trade. If, on the 
 contrary, the trade prove a losing concern, 
 the executor, on the failure of the assets, will 
 be personally liable for the loss. 
 
 On the other hand, if an executor, with- 
 out any authority under the will, takes upon 
 himself to ti'ade with the assets, the testa- 
 tor's estate would not be liable in case of his 
 bankruptcy. The parties beneficially entitled 
 under the will would have a right to prove 
 demands for such of the assets as had been 
 wasted by the executor in the trade, so car- 
 ried on, in proportion to their respective in- 
 terests; and with respect to such of the as- 
 sets as could be specifically distinguished to 
 be part of the testator's estate, they would 
 not pass by the assignment of the commis- 
 sioners: the executor holding then? alieno 
 jure, they would clearly not be liable to his 
 bankruptcy. 
 
 Prom both these cases the principle may be 
 extracted, on which this case may be de- 
 cided; that the executor's right to trade with 
 the assets, and their consequent liability to 
 the effect of the bankruptcy, depend alto- 
 gether upon the nature and extent of the au- 
 thority conferred upon him by the will. If 
 he has unlimited power to carry on the trade 
 with the testator's property, the whole of it 
 must be involved in the consequences of his 
 bankruptcy. As it would be benefited by 
 the success of the trade, it must be liable 
 to all losses that happen in the course of it 
 On the other hand, if the executor, not au- 
 thorized by the will to trade at all in such 
 his representative character, do trade with 
 the assets, he is guilty of a breach of trust; 
 and the creditors and legatees shall come in 
 under his commission; and such ot his assets 
 as remain, shall be protected for their bene- 
 fit. 
 
 In order, therefore, to determine, whether 
 the general assets in this case ought to be 
 subject to Mrs. Ballman's bankruptcy, it will 
 be necessary to see the extent of the author- 
 ity, given to her by the will to trade with 
 the assets; for a testator certainly may qual- 
 ify the power of his executor to carry on 
 trade; and may limit it to a specific part of 
 his property; which he may sever from the 
 general mass for that purpose. 
 
 If a testator disposes of the whole of his 
 property by his will, except, for example, the 
 sum of £5000 and directs the executor to 
 carry on the ti-ade for the benefit of J. S. 
 there would be no pretence, that the assets 
 could in any degree be in danger beyond that 
 extent, by the executor's so carrying on the 
 trade, and in the event of his bankruptcy the 
 rest of his property would not be affected by 
 the commission: otherwise nothing could be 
 more inconvenient than the consequences of 
 such a doctrine. Suppose the bankruptcy 
 of the executor to occur, after the fund has 
 been distributed, and all the legacies paid: 
 
§ 155) 
 
 EX I'AUTE GARLAND. 
 
 Case No. 316 
 
 are the legacies to be refuuded? Is the 
 whole property to be called back? Are the 
 legatees to be harassed with suits, when, 
 perhaps, all their legacies have been long 
 ago spent? Or in case of sucli a will is 
 payment of the legacies to be suspended, and 
 the distribution of the property to be de- 
 ferred; and if so, for what period; and what 
 is to be the limitation? Such are the diffi- 
 culties, which must arise from holding, that 
 where the testator has separated part of his 
 estate from the general mass of his property 
 for the purpose of his executor's trading with 
 it, the whole of his property shall be consid- 
 ered as embarlied in the event of the trade. 
 It therefore seems a safer and more con- 
 venient rule, as well as more equitable, that 
 the criterion should be, how far the author- 
 ity, given by the will to carry on the trade, 
 extends; and to what part of the assets his 
 power is referrible. So far, and no further, 
 shall the assets be held liable to the hazard 
 of such trading. This principle cannot be 
 considered as any infringement of the rights 
 of creditors, or as unduly narrowing their 
 security. If persons trading with the exec- 
 utor know him to be an executor, and acting 
 in a representative capacity, they ought to 
 look at the will, to see, how far his rights 
 extend; and what is the nature of the au- 
 thority conferred upon him by the testator. 
 If they trade with him without knowing him 
 to be an executor, and conceive themselves 
 to be concerned with him in his own right, 
 they have no reason to complain; his private 
 property being subject to their claims. 
 Therefore it is reasonable, that the liability 
 of the testator's assets to the consequences 
 of the executor's trading shaU be regulated 
 by the nature of the authority created by 
 the will. If that extends over all the assets, 
 aU the assets shall be subject: If over part 
 of the assets, then only such part. 
 
 Upon the consti-uction of this will and 
 codicil the testator intended to separate £600 
 from the rest of his property, with the view, 
 that the trade should be carried on by the 
 widow, and that sum only was to be hazard- 
 ed. The general mass of the property would 
 not have been in any degree benefited if the 
 trade had been successful. Mrs. Ballman 
 had a right to apply the profits at her dis- 
 cretion; provided she took care of the main- 
 tenance and education of the children. 
 
 Mr. Alexander, in reply. 
 
 Suppose a trade, directed to be carried on 
 by the executor, until one of the youngest 
 sons of the testator shall attain 21. and then 
 to be delivered up to that son; and that 
 £50,000 is given by the will to that son; can 
 it be contended, that upon the principle now 
 urged the trade is to be carried on, and yet 
 the executor, incurring all that risk, is not 
 to have recourse to that fund, part of the 
 assets in his hands, and accumulating for 
 the benefit of that legatee: the executor act- 
 ing in that character by the direction of the 
 
 testator, not with the consent of the infant? 
 If a specific contract was directed to be car- 
 ried into execution, and a liability was there- 
 by incurred, could not the executor have re- 
 course to the assets for an indemnity? The 
 only distinction is, that a trade consists of a 
 variety of contracts, instead of a specific one. 
 
 THE LORD CHANCELLOR. In the case 
 before Lord Kenyon the important difficul- 
 ties, that have been urged upon this occasion, 
 were not submitted to the court. Certainly 
 Lord Kenyon developed the reasons, upon 
 which he drew the conclusion in that case, 
 in a very limited degree, if at all. The ques- 
 tion really goes to this; whether this court 
 is to hold, that, where a testator directs a 
 trade to be can'ied on, and without limita- 
 tion, all the other purposes of his will are to 
 stand still, or all the administration under it 
 to be so checked, that every person taking 
 is in effect to become a security in propor- 
 tion to the property he takes, and to the ex- 
 tent of aU time, for the trade, which the tes- 
 tator has directed to be carried on. The in- 
 convenience would be intolerable; amount- 
 ing to this; that every legatee is to hold his 
 legacy upon terms, connected with transac- 
 tions, by which he cannot benefit, which he 
 cannot control, and which may cut down all 
 his hopes; as far as they are founded upon 
 his receipt of that bounty. On the other 
 hand, the case of the executor is very hard. 
 He becomes liable, as personally responsible, 
 to the extent of all his own property; also. 
 in his person; and, as he may be proceeded 
 against, as a banlcrupt, though he is but 
 a trustee. But he places himself in that sit- 
 uation by his own choice; judging for him- 
 self, whether it is fit and safe to enter into 
 that situation, and contract that sort of re- 
 sponsibility. The creditors of the testator 
 must be either those, whose debts were con- 
 tracted before liis death, or persons, who 
 have become creditors of the trade after his 
 death. If they are creditors of the former 
 description, they have the power and the 
 means of calling forth after the testator's 
 death the whole of his property, in discharge 
 of their demands; and, if they do not put 
 an end to that relation, but permit the rep- 
 resentative to act, they have perhaps no more 
 reason to complain of a decision, more lim- 
 ited than that of Lord Kenyon, than they 
 would have, if by their own conduct they 
 permitted part of the assets to get to the 
 hands of persons, from whom they could not 
 draw them; and relied upon his liability. 
 
 As to creditors, subsequent to the death of 
 the testator, in the first place, they may 
 determine, whether they will be creditors. 
 Next, it is admitted, they have the whole 
 fund, that is embarked in the trade; and in 
 addition they have the personal responsibil- 
 ity of the individual, with whom they deal; 
 the only security in ordinary transactions of 
 debtor and creditor. They have something 
 very like a lien upon the estate embarked in 
 
 5&3 
 
Case No. 216 
 
 EX PABTE GARLAND. 
 
 (§ 155 
 
 the trade. They have not a lien upon any 
 thing else: nor have creditors in other cases 
 a lien upon the effects of the person, with 
 whom they deal; though, through the equity 
 as to the application of the joint and sep- 
 arate estates to the joint and sepa.rate debts 
 respectively, they worli out that lien. If it 
 is to be determined upon the convenience, it 
 Is not so inconvenient to say, those, who 
 deal with the executor, must take notice, 
 that the testator's responsibility is limited 
 by the authority given to the executor, as to 
 say, on the other hand, that, the executor 
 being authorized to carry on that trade, mak- 
 ing from day to day a great variety of en- 
 gagements, or, as it has been put, entering 
 into one great and important engagement, 
 but also authorized by the will to do many 
 other acts, which he must equally do in a 
 due administration under the will, wherever 
 for the benefit of one child the trade is di- 
 rected to be carried on, all the other objects 
 of the will must at any distance of time be 
 considered, to the extent of the property 
 they talie, security for the creditors on the 
 trade. 
 
 Such a decision was never made previously 
 to Hankey v. Hammond, 3 Madd. 148, note, 
 I am not aware, that such a decision has 
 ever been made since that case. We may rec- 
 ollect cases not consistent with the supposi- 
 tion, that the law is according to that deci- 
 sion. It is necessary to look into other 
 cases, from which it may appear, that it was 
 not present to the mind of the court, that 
 there was such a rule. The difficulty also, 
 that must exist In a variety of instances, is 
 to be considered: the case, that has been put, 
 where a tradesman directs the trade to be 
 carried on for the benefit of a son, giving him 
 a legacy of £50,000. It is difficult to say, 
 that legacy must not be liable; and yet it is 
 very difficult to say, it shall be liable, con- 
 sistently with saying, legacies to others shall 
 not; unless upon this, that the legacy is 
 given by the same wUl, for the benefit of the 
 same person, who is to have the benefit of 
 the trade; and yet I do not know, that is a 
 principle of distinction, by which I can 
 584 
 
 abide. But, in the ordinary case, the eldest 
 son, made residuary legatee and executor, 
 and ordered to carry on the trade for the 
 benfit of another child, cannot possibly with- 
 draw his residuary legacy from the liability 
 the trade carried on would impose upon him 
 personally; for he makes himself personally li- 
 able; and therefore with reference to the prop- 
 erty, taken from his father, though not liable 
 as legatee, he becomes liable, as a person 
 carrying on the trade; his legacy assisting 
 the means of his responsibility in carrying 
 on the trade. That person, therefore, both 
 legatee and executor, must answer for his 
 acts as to the trade. Then why should not 
 another legatee? The answer is, that per- 
 son is liable, not as legatee; but upon the 
 ground, that the property is part of his gen- 
 eral substance, and he may spend it, not- 
 withstanding his liability as executor. So 
 may another legatee: but the power of 
 spending his general substance shows there 
 is no great convenience in this doctrine. 
 
 In this case, I fear, I shall be under the 
 necessity of contradicting the authority of a 
 judge I most highly respect; feeling a strong 
 opinion, that only the property, declared to 
 be embarked in the trade, shall be answera- 
 ble to the creditors of the trade. If I am 
 not bound by decision, the convenience of 
 mankind requires me to hold, that the cred- 
 itors of the trade, as such, have not a claim 
 against the distributed assets, in the hands 
 of third persons under the direction of the 
 same will, which has authorized the trade to 
 be carried on for the benefit of other persons. 
 
 THE LORD CHANCELLOR. My opin- 
 ion upon this case is, that it is impossible to 
 hold, that the trade is to be carried on, per- 
 haps for a century; and at the end of that 
 time the creditors, dealing with that trade, 
 are, merely because it is directed by the will 
 to be carried on, to pursue the general as- 
 sets, distributed perhaps to 50 families. 
 
 The order was, that the proof should stand 
 in respect of the sum £768. 12s. 4d.; without 
 prejudice to filing a bill. 
 
 No bill was filed. 
 
§ 155) 
 
 HAMERSLEY v. LAMBERT. 
 
 Case No. 217 
 
 HAMERSLEY v. LAMBERT et al. 
 
 (2 Johns. Ch. 508.) 
 
 New York Chancery Court. 
 
 John Bedient and Walter Hubbell were 
 partners in ti-ade, prior to 1803. The part- 
 nership was dissolved, by the death of Hub- 
 bell, in September, 1803. At his death, the 
 firm was indebted to Thomas Holmes, of 
 Bristol, in England, who died in 1808; and 
 on his estate, letters of administration were 
 granted, in this state, to the plaintiff. Mon- 
 eys were paid to Holmes, on account, in 
 1806, by Bedient, the sm-viving partner; and 
 on the 1st of January, 1807, a balance of 
 3,393 dollars 32 cents was admitted, by 
 Bedient, to be due. In October, 1807, Be- 
 dient was discharged under the insolvent 
 act of this state. The biU was filed in May, 
 1814, against the assignees of Bedient, the 
 insolvent, and against the heirs and admin- 
 istrators of Hubbell. In 1809, the guardian 
 of the two infant heirs of Hvibbell paid into 
 coui-t 8,041 dollars 88 cents, belonging to 
 the infants, which was invested in public 
 stock. The balance due to the estate of 
 Holmes was admitted by the administrators 
 of Hubbell in their answer; and the insol- 
 vency of Bedient was proved by his discharge, 
 produced as an exhibit, as well as admitted 
 by his assignees in their answer. 
 
 G. BrinckerhofC, for the plaintiffs. Mr. 
 Burr, contra. 
 
 THE CHANCELLOR. All the objections 
 must be overruled. The plaintiff is entitled 
 to receive the debt out of the assets of the 
 deceased partner. The demand was suffi- 
 ciently admitted; and interest was to be 
 cast on the balance liquidated and acknowl- 
 edged on the 1st of January, 1807. It is 
 well settled, that relief may be had in equity 
 against the representatives of a deceased 
 partner leaving assets, if the surviving part- 
 ner be insolvent. This was the principle 
 declared by Lord Hardwicke, in the case of 
 Simpson v. Vaughan, 2 Atk. 31, cited in 2 
 Ves. Sr. 101; and the point was established 
 in the court of errors, in this state, in Jenk- 
 ins V. De Groot, 1 Caines, Cas. 122, and ad- 
 mitted as a rule of equity in the circuit court 
 of the United States. Van Reimsdyk v. 
 Kane, 1 Gall. 371, Eed. Cas. No. 16,871; Id., 
 1 Gall. 630, Fed. Cas. No. 16,872. The de- 
 fendants cannot set up a want of due dili- 
 gence in not prosecuting Bedient before his 
 insolvency; for the demand was equally the 
 debt of both partners; and the considera- 
 tion from which it arose is to be presumed 
 to have equally assisted both of them. The 
 doctrine of due diligence, and of prompt no- 
 tice, as arising upon claims against drawer 
 and endorser, is not applicable. For this I 
 may generally refer to the adjudged cases in 
 which the subject has been discussed. Lane 
 V. Williams. 2 Vern. 292; Heath v. Percival, 
 1 P. Wms. 682; Bishop v. Church, 2 Ves. 
 
 Sr. 100, 371; Daniel v. Cross, 3 Ves. 277; 
 Stephenson v. Chiswell, Id. 560; Gray v. 
 Chiswell, 9 Ves. 118; Ex parte Kendall, 
 17 Ves. 514; Orr v. Chase, 1 Mer. 729, Ap- 
 pend. But I would specially notice the re- 
 cent decision of Devaynes v. Noble, 1 Mer. 
 539, 572, in which the question was fully 
 and ably considered, how far a creditor loses 
 his right in equity, to resort to the assets 
 of a deceased partner, by delay in calling 
 for his debt, from the survivor. It was 
 ruled by Sir Wm. Grant, the master of the 
 rolls, after a full examination of the cases, 
 that the creditor who continued, for a con- 
 siderable time after the death of one pai-t- 
 ner to deal with the survivor, and to receive 
 partial payments from him, had, notwith- 
 standing, a valid right to resort to the as- 
 sets of the deceased partner, though the sur- 
 vivor, in the mean time, had become bank- 
 rupt, and the creditor had signed his cer- 
 tificate as a banki'upt. There was no period 
 fixed, as he observed; nor did convenience 
 require any fixed period within which a 
 creditor, by not making his demand upon 
 the surviving partner, should be held to 
 have waived his equity against the estate 
 of the deceased partner. If creditors, in 
 order to preserve their recourse against the 
 estate of the deceased partner, were bound 
 to use all possible diligence to compel an 
 immediate payment by the sm'vivor, there 
 are very few mercantile houses which could 
 stand such a sudden and concurrent demand 
 as that would necessarily bring upon them. 
 If the estate of the deceased partner be, in 
 any case, released, (as Lord Bldon, in the 
 case Ex parte Kendal, supposes might hap- 
 pen,) it would require a course of dealing, 
 founded on peculiar circumstances, not ex- 
 actly defined, between the creditor and the 
 sm'vivor, to rebut the equity of the claim 
 against the estate of the deceased; to shift 
 the obligation to pay from that estate, and 
 fix it exclusively on the survivor. It was so 
 far held in this very case of Devaynes v. 
 Noble, pages 585, Oil, that where the cred- 
 itor continued to deal with the sui'vivors, 
 being a banking-house, by drawing out and 
 paying, the balance varying, from time to 
 time, but being, upon the whole, increased 
 by such subsequent dealings, the subsequent 
 payments, by the surviving partners, were 
 to be taken, in reduction of the balance due 
 at the death of the one partner, and his 
 estate held discharged pro tanto. But this 
 case fuUy established the doctrine, that nei- 
 ther delay, nor lapse of time, nor dealing 
 with the sm-vivor, nor calling for, and re- 
 ceiving part of, the debt from the survivor, 
 amounts to a waiver, or bar, of the claim 
 upon the assets of the deceased. It is, in 
 equity, a joint and several debt; and, as 
 Lord Parker observed in one of the cases, 
 the assets of the deceased must lie at stake, 
 until the bond be paid. 
 
 Such is the amount of the decision in the 
 case of Devaynes v. Noble, and which is of 
 
 585 
 
Case No 217 
 
 HAMEKSLEY v. LAMBERT. 
 
 (§ 155 
 
 great weight, from the full and accui'ate con- 
 sideration which the whole subject received. 
 I confidently conclude, as well from the re- 
 spect which that decision deserves, as from 
 my own examination of the cases referred 
 to, that the opinion of the master of the 
 rolls was a correct exposition of the law on 
 the point. 
 
 But to return to the other objections on 
 the part of the defendants. The discharge 
 ■of Bedient under the insolvent act was with- 
 in four years of the death of Hubbell; and 
 tuat discharge is a good plea in bar in our 
 ^80 
 
 own com'ts to any suit, by any creditor. 
 This was so ruled in Penniman v. Meigs, 9 
 Johns. 325. There is a.s little force in the 
 objection, that the plaintiffs brought the 
 suit as trustee for an alien enemy. This 
 suit not being abated during the late war, 
 cannot now be abated on the ground of a 
 temporary disability which has long since 
 ceased. 
 
 I shall, accordingly, direct a reference to 
 ascertain the amount due, and decree the 
 payment thereof out of the assets in court. 
 
 Decree accordingly. 
 
-§ 1^5) 
 
 STA^■WO0l) c. OWEN. 
 
 Case No. 218 
 
 STANWOOD V. OWEN. 
 
 SUYDAM V. SAME. 
 
 (14 Gray, 195.) 
 
 Supreme Judicial Court of Massachusetts. Nov 
 Sess., 1S59. 
 
 Appeals from decisions disallowing claims 
 against the insolvent estate of William O. 
 Moody, deceased. Moody died on the 19th 
 of April, 1855, having his domicile and be- 
 ing in business at Boston, and being also 
 partner in the Arm of Harrod & Moody, of 
 Xew Orleans. After his decease, Harrod 
 continued to carry on the business of that 
 firm, imder the following agreement: "New 
 Orleans, November 1, 184<j. The subscrib- 
 ers, late partners of the firm of Hai-rod, 
 Crabti-ee & Moody, doing business in the 
 city of New Orleans, do agree to continue 
 the business of the late firm under the name 
 •of Harrod & Moody, on the same terms and 
 conditions as governed the late firm, and 
 expressed in annexed document. And, in 
 case of the decease of either party, the busi- 
 ness may be carried on by the sm-vivor for 
 one year (for the mutual benefit of both 
 partners) from the day of said decease. 
 Charles Harrod. W. O. Moody." The firm 
 ■of Harrod & Moody proved insolvent, and 
 several of the unpaid partnership debts ex- 
 isting at Moody's death were allowed against 
 his estate. Stanwood's claim is upon a note 
 given by Harrod, in the name of the firm of 
 Harrod & Moody, for money and merchan- 
 dise furnished to him after the death of 
 Moody was known to both parties. Suy- 
 dam's claim is upon an account against Har- 
 rod & Moody, the first two items of which 
 were contracted before, and the remainder 
 after, the death of Moody, as Suydam knew, 
 and on which HaiTod, since Moody's death, 
 has paid a sum more than sufficient to dis- 
 charge the first two items. 
 
 C. B. Goodrich and N. St. J. Green, for ap- 
 pellant. J. I/. EngUsh, for appellee. 
 
 DEWEY, J. 1. The objections to the al- 
 lowance of these claims as debts entitled 
 to a pro rata distribution of the assets of 
 the estate of William A. Moody, represented 
 as insolvent, and admitted to be actually so 
 if these claims are allowed, are, as it seems 
 to us, Quite insuperable. 
 
 It would operate greatly to embarrass the 
 ■obvious purpose of our legislation, having 
 in view the speedy settlement of the estates 
 of persons deceased, and the proper distribu- 
 tion of the assets among the various exist- 
 ing creditors. 
 
 Upon the decease of an individual, his as- 
 sets, as then existing, are to be taken into 
 the custody of the proper legal representa- 
 tive for administration. New adventures in 
 business are not authorized, nor can any 
 new liabilities be created, chargeable upon 
 the assets. Contingent liabilities arising 
 
 out of former transactions may exist, for 
 which provision should be made, and these 
 are recognized and provided for by our stat- 
 utes. But beyond these the policy of our 
 law is that everything is to be adjusted up- 
 on the status of the property and habilities 
 then existing. The whole assets then ap- 
 plicable to the payment of debts are to be 
 strictly applied to existing liabilities, abso- 
 lute or contingent. The creditors of the de- 
 ceased are not to have the payment of their 
 debts postponed to await the result of future 
 adventvu-es by a surviving partner, over 
 whom they have no control. 
 
 Whatever may be the efCect of a stipula- 
 tion of this character upon the claims of 
 heirs at law for their distributive shares, or 
 of legatees under a will of a testator who 
 has made such a contract, the court are 
 clearly of opinion that the claims of the cred- 
 itors of the deceased partner, existing at the 
 time of his death, are paramount to the 
 claims of new creditors whose debts have 
 accrued by reason of contracts made by the 
 surviving partner, acting under such a stipu- 
 lation for the continuance of the copartner- 
 ship, and after full knowledge by such new 
 creditors pf the death of such former mem- 
 ber of the firm. Such new creditors know 
 full well with whom they trade, and to 
 whom they give credit. They may resort to 
 the surviving partner, and perhaps to the 
 assets in his hands as surviving partner, but 
 not to the private estate of the deceased 
 partner in competition with creditors exist- 
 ing as such at the time of his death. 
 
 This precise question Is a novel one in 
 Massachusetts, and has not, so far as we 
 know, been the subject of a judicial opinion. 
 In the early history of the law in other coun- 
 tries, there will be found conflicting views 
 as to the validity and effect of such con- 
 tracts. It has been so on the mere question 
 of the authority of the deceased partner to 
 enter into a stipulation in favor of his heir, 
 that he should be admitted into the part- 
 nership upon the death of the ancestor. The 
 law, as held formerly on this subject, may 
 be found fully stated in 3 Kent, Comm. (6th 
 Ed.) 56. We can readily perceive a distinc- 
 tion between the case where the heir asserts 
 a right against a sm'viving partner to be 
 admitted into the copartnership, and the 
 casL' of a person who is seeking to enforce 
 a claim against the deceased partner by rea- 
 son of his contract with the surviving part- 
 ner to continue the copartnership, and mak- 
 ing such contract the basis of a claim to 
 share pro rata with his creditors who were 
 such at the time of the decease of such part- 
 ner. 
 
 Cases have arisen upon provisions for such 
 coutinuance of the copartnership contained 
 solely in the testament of a deceased part- 
 ner. To some extent, certainly, effect has 
 been given to such provision, as in the case 
 of Hankey v. Hammock, Buck, 210, and 1 
 Cooke, Bankr. Law, 67. That case was sup- 
 
 587 
 
Case No. 218 
 
 STANWOOD V. OWEN. 
 
 (§ 155 
 
 posed to be much qualified, if not overruled, 
 by the case of Ex parte Garland, 10 Ves. 
 110, in which the evils of giving effect to 
 such provisions are strongly stated by Lord 
 Eldon, and a decided opinion expressed 
 against allovying debts thus arising to be 
 made a charge upon the genera:i assets. See, 
 also, McNelUie v. Aoton, 4 De Gex,- M. & G. 
 752. 
 
 A similar opinion to that stated in Ex 
 parte Garland was held by the supreme 
 court of Connecticut in the case of Pitkin v. 
 Pitkin, 7 Conn. 307, in which it was held, 
 that the general assets of a deceased part- 
 ner were not liable for debts of a creditor 
 who became such after the death of the part- 
 ner, although under the provisions of a will 
 authorizing a continuance of the partner- 
 ship after the decease of the testator. Ed- 
 gar V. Cook, 4 Ala. 588, is to the like effect. 
 
 It is, however, often stated in books of 
 authority, and held in adjudicated cases, 
 that by virtue of an express agreement made 
 between the parties, a partnership may be 
 continued after the death of one of the par- 
 ties. Gratz V. Bayard, 11 Serg. & R.* 41; 
 Scholefield v. Eichelberger, 7 Pet. 586; Bur- 
 well V. Mandeville, 2 How. 560; Stoi'y, Partn. 
 § 201. But there seems to be a strong dis- 
 position in the courts, in the cases cited, to 
 
 588 
 
 confine the effects of such agreement to a 
 lien upon the partnership assets. 
 
 Without going beyond this principle, or 
 expressing any opinion further than upon 
 the question arising upon the facts existing 
 in the present case, the com't are of the 
 opinion that the debts contracted after the 
 death of Moody, and now sought to be al- 
 lowed as debts to share pro rata in the es- 
 tate of Moody with the debts existing 
 against him at the time of his death, were 
 properly rejected by the commissioners. 
 
 In the second ease the appellant seeks 
 also to have allowed, as claims against the 
 estate of Moody, the first two items of his 
 bill or account, which were contracted in 
 the life time of Moody. As to these the ad- 
 ministrator of Moody replies that they have 
 been fully paid and discharged by moneys 
 received and credited to the firm on account 
 of payments by Harrod, the survivor. The 
 question is merely one of application of the 
 payments. The coiu't are of opinion that 
 they must be taken to be moneys I'ealized 
 by Harrod from the assets of the late firm 
 in his hands, and generally on the account 
 of Harrod & Moody, and must be applied to 
 the oldest debts. Thus applied, the pay- 
 ments will exceed the two items. 
 
 Decisions affirmed. 
 
§ 155) 
 
 MASON 0. TIFFAXY. 
 
 Case Xo. 210 
 
 MASON T. TIFFANY. 
 
 (45 111. 392.) 
 
 Supreme Court of Illinois. Sept. Term, 1S07. 
 
 Appeal from circuit court, Lake county; 
 George Manlerre, Judge. 
 
 Messrs. AiTlngton & Dent, for appellant. 
 Mr. U. P. Smith and Messrs. Blodgett, Upton 
 & Williams, for appelle'^s. 
 
 BRBESE, C. J. This was a proceeding in 
 chancery, in the Lake circuit court, by Nel- 
 son Mason, assignee of Mason, McArthur & 
 Co., against Catharine E. Tiffany, adminis- 
 ti-ati-ix, and William C. Tiffany and Edward 
 S. L. Bachelder, administrators of George B. 
 Tiffany, deceased, and Hiram Morgan and 
 others, sm-viving partners of the late firm 
 of George B. Tiffany & Co., to enforce the 
 payment by the estate of George B. Tiffany, 
 on account of the insolvency of the surviving 
 partners, of a claim held by the complainant 
 against that fli'm. 
 
 The claim gi-ew out of a contract made by 
 the firm of Tiffany & Co., through Tiffany, 
 with Mason, McAi-thur & Co., that they 
 should manufactm-e for the firm a certain 
 number of boilers. Before the boilers were 
 delivered, George B. Tiffany died. The boil- 
 ers were sent to the survivors of the firm 
 who continued the business in the old name, 
 and they executed notes for the price in the 
 firm name, four of which were made payable 
 fom- months after date, and were dated May 
 S, 1857. On the 5th of November, 1857, the 
 surviving partners of Tiffany & Co., having 
 purchased Tiffany's interest in the concern, 
 made a general assignment for the benefit 
 of their creditors. At the February Term, 
 1858, of the Lake circuit court, various judg- 
 ments were recovered against the surviving 
 partners, on which executions were issued 
 and returned unsatisfied, and the judgments 
 yet remain unsatisfied. 
 
 Letters of administi-ation were granted to 
 Catharine E. Tiffany and the others named, 
 on the 3d of March, 1857. 
 
 It would seem from the answer of the de- 
 fendants,' that they resisted the payment of 
 complainant's claim on several, grounds: 
 First, that the boilers were not delivered 
 until after the death of Tiffany, and not 
 under the conti-act made by him while he 
 was a member of the fixm, but under a 
 contract made by the surviving partners, 
 who executed their notes for the purchase 
 price in the name of George B. Tiffany & 
 Co., they continuing the business under tliat 
 name; second, that the firm of Tiffany & 
 Co. is not insolvent, and that the assets, not- 
 withstanding the assignment, were liable to 
 the creditors of the firm, by judgment and 
 execution, and that, if judiciously applied, 
 would be ample to pay the debts, and this 
 for a time long after the maturity of the 
 notes, and that the complainant's claim could 
 have been collected of the smrvivors at any 
 
 time prior to November 5, 1857, the date of 
 their assignment, by the exercise of ordinary 
 diligence; third, that, though application was 
 made to them, as administrators, to pay this 
 claim, they rightfully refused to pay it be- 
 cause the estate was not hable, the contract 
 having been made after the death of their 
 intestate, and because the claim had not 
 been allowed by, or been established by, any 
 court as a charge or debt against the estate; 
 and, fom'th, because the complainant had 
 failed to present the claim against the estate 
 within two years from the time of gi-anting 
 the letters of administration, and that in 
 consequence thereof, the claim was barred. 
 
 The court, on the hearing, dismissed the 
 bill for want of equity. 
 
 To reverse this decree, the complainant ap- 
 peals to this court, and makes these points: 
 That complainant, as assignee of Mason, 
 McAi'thm- & Co., having a right to collect 
 the notes which they took from the firm of 
 George B. Tiffany & Co., was entitled to 
 proceed in equity against Tiffany's estate; 
 second, that there is no statute of limitations 
 which can be set up as a bar to this pro- 
 ceeding. 
 
 A preliminary objection is made by the 
 appellees, growing out of the reinstatement 
 of the cause, at a subsequent term, after it 
 had been dismissed. It is a sufficient answer 
 to this, that, by the terms of the dismissal, 
 the complainant had leave to reinstate the 
 cause upon making a written application to 
 the judge within thirty days after the term, 
 and it nowhere appears such application was 
 not made. On the contrary, it must be pre- 
 sumed, from the fact that appellees, at the 
 term at which the cause was reinstated, 
 agreed the cause should be referred to the 
 master, and at the next term they took leave 
 to amend their answer, and at all times 
 during the progress of the cause they recog- 
 nized it 'as a cause in court, that they had 
 waived all objections to its being reinstated, 
 and admitted that the requisite application 
 therefor had been made. 
 
 The solution of the questions made by com- 
 plainant will dispose of the whole case, as 
 in their discussion all the points made by 
 appellees are involved. 
 
 Every partnership debt being joint and 
 several, it follows, necessarily, that resort 
 may be had in the first instance, for the 
 debt, to the surviving partners, or to the as- 
 sets of the deceased partner. Ladd v. Gris- 
 wold, 4 Oilman, 25. 
 
 That these boilers were ordered by the 
 fii-m of Tiffany & Co., and the construction 
 superintended in some degree by Tiffany 
 himself, is fully proved, and that they were 
 delivered to, and accepted by, the surviving 
 partners, and the notes in question executed 
 therefor in the firm name, is equally ap- 
 parent, and so made, delivered and accepted, 
 substantially under the contract made with 
 Tiffany for the firm, and went to the benefit 
 of the firm, and were in part the interest of 
 
 589 
 
Case Ko. 219 
 
 MASON V. TIFFANY. 
 
 (§ 155- 
 
 Tiffany in the concern which appellees, his 
 administrators, sold td the surviving partners. 
 There can be no doubt this vcas an indebted- 
 ness subsisting against the firm of George 
 B. TifCany & Company in his life-time, and 
 contracted before the firm was dissolved by 
 the death of Tiffany. The notes executed 
 by the survivors were mere evidence of the 
 amount of debt and time of payment, the 
 debt itself existed independent of the notes, 
 and was a debt for which the separate estate 
 of Tiffany was responsible. 
 
 Upon the second point, if it was a fact 
 that the surviving partners remained solvent 
 for a long time before the assignment, and 
 the assigned assets were sufliclent to pay 
 this claim, still those facts did not require 
 the complainant to press his claim against 
 them, the estate of the deceased partner 
 being equally a fund on which he had a 
 right to rely. Complainant was not in the 
 condition of a holder of indorsed i^aper, 
 bound to diligence, but could make his elec- 
 tion to which fund he would resort, and at 
 what time, so that he kept within the statute 
 of limitations. 
 
 This brings us to the consideration of the 
 fourth objection made )).v appellees in their 
 answer, the third beiug substantially in- 
 volved in the first and second, which we 
 have above discussed. 
 
 Appellees insist the claim was not present- 
 ed for allowance within two years after the 
 grant of letters of administration. 
 
 It is true, it was not presented to any 
 oom-t for allowance, but it was presented to, 
 590 
 
 and payment demanded of, one of the ad- 
 ministrators, within the two years, and on 
 his refusal to pay it, these proceedings were 
 instituted. This court has held, in the case 
 of Wells v. Miller, 45 HI. 33, that presenting- 
 a claim to an administrator within the two 
 years, for payment, takes it out of the bar- 
 of the statute. Considering section 115 of 
 the statute of wiUs, to which appellees refer 
 in connection with section 116, it would seem 
 that presenting a claim to an administrator- 
 within the two years was sufiicient to prevent 
 the bar of the statute. 
 
 But it is insisted by appellees, that the claim 
 of complainant is not of an equitable char- 
 acter, and resort can only be had in equity 
 when the assets of the fii'm are exhausted. 
 We think there is evidence in the record 
 sufficient to show, that, as to them, the pros- 
 pect of making the amount of the claim out 
 of their proceeds was perfectly hopeless. So 
 early as 1858, judgments were recovered 
 against the sm-vivors as partners, which the 
 assets have not satisfied, and the presump- 
 tion is, from the proofs on that point, that 
 they were not sufficient to pay the debt.s. 
 The estate is able to pay this debt, aud, on 
 acknowledged principles, is liable to pay it;: 
 and as it is not barred by the statute of lim- 
 itations, a decree for its payment out of the 
 assets of the estate should have passed in- 
 stead of a decree dismissing the bill for want 
 of equity. 
 
 The decree is reversed and the cause re- 
 manded. 
 
 Decree reversed. 
 
§ 156) 
 
 HAMBLY V. TKOTT. 
 
 Case No. 220 
 
 HAMBLY et al. v. TROTT, 
 
 (Oowp. 371.) 
 
 King's Bench. 1776. 
 
 In trover against an administrator cum 
 testamento annexo, the declaration laid the 
 conversion of the testator in his lifetime. 
 Plea that the testator was not guilty. Ver- 
 dict for the Dlaintife. 
 
 Mr. Kerby had moved in arrest of judg- 
 ment. Mr. BuUer last term shevred cause. 
 
 LORD MANSFIELD. If this case itr- 
 pends upon the rule "actio personalis moritur 
 cum persona," at present only a dictum has 
 been cited in support of the argument. Tro- 
 ver is in form a tort, but in substance an 
 action to try property. * • * 
 
 The fundamental point to be considered in 
 this case is, whether if a man gets the prop- 
 erty of another into his hands it may be re- 
 covered against his executors in the form of 
 an action of trover, where there is an action 
 against the executors in another form. It 
 is merely a distinction whether the relief 
 shall be in this form or that. Suppose the 
 testator had sold the sheep, &c., in question: 
 In that case, an action for money had and 
 received would lie. Suppose the testator 
 had left them in specie to the executors, the 
 conversion must have been laid against the 
 executors. There is no difficulty as to the 
 administration of the assets, because they 
 are not the testator's own property. Sup- 
 pose the testator had consumed them, and 
 had eaten the sheep; what action would 
 have lain then? Is the executor to get off 
 altogether? I shall be very sorry to decide 
 that ti-over wiU not lie, if there is no other 
 remedy for the right. 
 
 ASTON, J. Suppose the executor had had 
 a counter demand against the plaintiff, he 
 could not have set it off in trover: but in 
 an action for money liad and received, he 
 might. If these things had been left by the 
 testator in specie, the conversion must have 
 been laid to be by the executor. There seems 
 to be but little difference between actions of 
 trover, and actions for money had and re- 
 ceived. As at present advised, I incline to 
 think trover maintainable in this case. 
 
 ASHHUKST, J. The maxim does not hold 
 as an universal proposition; because assump- 
 sit lies. As to the case of Collins v. Fenner- 
 ell, all the court considered it as unargued, 
 and given up rather prematurely by Mr. 
 Henley. 
 
 LORD MANSFIELD. The criterion I go 
 upon is this: Can justice possibly be done 
 in any other form of action? Trover is mere- 
 ly a substitute of the old action of detinue. 
 2 Keb. 502; Vent. 30; T. Baym. 95. The 
 court ordered it to stand over. * * * 
 
 Many difficulties arise worth consideration. 
 An action of trover is not now an action ex 
 maleflcio, though it is so in form; but it is 
 founded in property. If the goods of one 
 
 person come to another, the person who con- 
 verts them is answerable. In substance, 
 trover is an action of property. If a man 
 receives the property of another, his fortune- 
 ought to answer it. Suppose he dies, are the- 
 assets to be in no respect liable? It will re- 
 quire a good deal of consideration before we- 
 decide that there is no remedy. 
 
 ASTON, .J. The rule is, "quod oritur ex 
 delicto, non ex contractu," shall not charge 
 an executor. 2 Bac. Abr. -i44, -44.5, tit. "Ex- 
 ecutors and Administrators;" 5 Bac. Abr. 
 280, tit. "Trover." Where goods come to the 
 hands of the executor in specie, trover will 
 lie; where in value, an action for money 
 had and received. But the difficulty with 
 me is, that here it does not appear whether 
 the goods came to the liands of the defendanr 
 in specie or in value. 
 
 Our. advisare vult. 
 
 Afterwards, on Monday, February 12th, in- 
 this term. Lord MANSFIELD delivered the- 
 unanimous opinion of the court as follows: 
 
 This was an action of trover against an 
 administrator, with the will annexed. The 
 trover and conversion were both charged to 
 have been commiaed by the testator in his 
 life-time: The plea pleaded was, that the 
 testator was not guilty. A verdict was found 
 for the plaintiffs, and a motion has been 
 made in arrest of judgment, because this is 
 a tort, for which an executor or administra- 
 tor is not liable to answer. 
 
 The maxim, "actio personalis moritur cunj 
 persona," upon which the objection is found- 
 ed, not being generally true, and much less 
 universally so, leaves the law undefined as 
 to the kind of personal actions which die 
 with the person, or survive against the ex- 
 ecutor. 
 
 An action of trover being in form a fiction, 
 and in substance founded on property, for 
 the equitable purpose of recovering the vaV 
 of the plaintiff's specific property, used and 
 enjoyed by the defendant; if no other action 
 could be brought against the executor, it 
 seems unjust and inconvenient, that the tes- 
 tator's assets should not be liable for the 
 value of what belonged to another man. 
 which the testator had reaped the benefit of. 
 
 We therefore thought the matter well de- 
 served consideration: We have carefully 
 looked into all the cases upon the subject. 
 To state and go through them all would be 
 tedious, and tend rather to confound than 
 elucidate. Upon the whole, I think these 
 conclusions may be drawn from them. 
 
 First, as to actions wlfich survive against 
 an executor, or die with the person, on 
 account of the cause of action. Secondly, 
 as to actions which survive against an ex- 
 ecutor, or die with the person, on account 
 of the form of action. 
 
 As to the first; where the cause of action 
 is money due, or a contract to be performed, 
 gain or acquisition of the testator, by the 
 work and labor, or property of another, 
 
 591 
 
Case No 220 
 
 HAMBLY V. TKOTT. 
 
 (g lob 
 
 or a promise of the testator express or im- 
 plied; where these are the causes of action 
 the action survives asainst the executor. 
 But where the cause of action is a tort, 
 or arises ex delicto as is said in Hole v. 
 Blandford, T. Raym. 57, supposed to be 
 \)y force and against the king's peace, there 
 tlie action dies; as battery, false imprison- 
 ment, trespass, words, nuisance, obstructing 
 lights, diverting a water course, escape 
 against the sheriff and many other cases of 
 tlie like kind. 
 
 Secondly, as to those which sui'vive or die, 
 in respect of the form of action. In some 
 actions the defendant could have waged his 
 law; and therefore, no action in that form 
 lies against an executor. But now, other 
 actions are substituted in their room upon 
 the very same cause, which do survive and 
 lie against the executor. — No action where 
 In form the declaration must be quare vi et 
 armis, et contra pacem, or where the plea 
 must be, as in this case, that the testator 
 was not guilty, can lie against the executor. 
 Upon the face of the record, the cause of 
 action arises ex delicto; and all private 
 criminal injuries or wrongs, as well as all 
 public crimes, are buried with the offender. 
 
 But In most, if not in all the cases, where 
 trover lies against the testator, another ac- 
 tion might be brought against the executor, 
 which would answer the piirpose. An ac- 
 tion on the custom of the realm against a 
 common carrier, is for a tort and supposed 
 crime: The plea is not guilty; therefore, 
 it will not lie against an executor. But as- 
 sumpsit, which is another action for the 
 same cause, will lie. So if a man take a 
 horse from another, and bring him back 
 again; an action of trespass will not lie 
 against his executor, though it would against 
 him; but an action for the use and hire of 
 the horse will lie against the executor. 
 
 There is a case in T. Ilaym. 71, which sets 
 this matter in a clear light: There, in an 
 action upon the case, the plaintiff declared, 
 "that he was possessed of a cow, which he 
 delivered to the testator, Richard Bailey, in 
 his life-time, to keep the same for the use of 
 him the plaintiff; which cow the said Rich- 
 ard afterwards sold, and did convert and 
 dispose of the money to his own use; and 
 that neither the said Richard, in his life, 
 nor the defendant after his death, ever paid 
 the said money." Upon this state of the 
 case, no one can doubt but the executor 
 was liable for the value. But the special 
 injury charged obliged him to plead, that 
 the testator was no* guilty. The jury found 
 him guilty. It was moved in arrest of judg- 
 ment, because this is a tort for which the 
 executor is not liable to answer, but moritur 
 cum persona. For the plaintiff it Avas in- 
 sistf^d, that though an executor is not char- 
 geable for a mls-feasance, yet for a non- 
 .592 
 
 feasance he is: as for non-payment of mon- 
 ey levied upon a fieri facias, and cited Cro. 
 Car. 539, 9 Coke, 50b, where this very differ- 
 ence was agreed; for non-feasance shall nev- 
 er be vi et armis, nor contra pacem: But not- 
 withstanding this, the court held "it was a 
 tort, and that the executor ought not to be 
 chargeable." Sir Thomas Raymond adds: 
 "Vide Saville, 40, a difference taken." That 
 was the case of Sir Henry Sherrington, 
 who had cut down trees upon the queen's 
 land, and converted them to his own use 
 in his life-time. Upon an information 
 against his widow, after his decease, Man- 
 wood, J., said: "In every case where any 
 price or value is set upon the thing in which 
 the offence is committed, if the defendant 
 dies, his executor shall be chargeable; but 
 where the action is for damages only, in 
 satisfaction of the Injury done, there his 
 executor shall not be liable." These are 
 the words Sir Thomas Raymond refers to. 
 
 Here therefore Is a fundamental distinc- 
 tion. If it Is a sort of Injury by which the 
 offender acquires no gain to himself at the 
 expense of the sufferer, as beating or im- 
 prisoning a man, &c. there, the person in 
 jured has only a reparation for the delictum 
 in damages to be assessed by a jury. But 
 where, besides the crime, property is ac- 
 quired which benefits the testator, there 
 an action for the value of the property shall 
 survive against the executor. As for in- 
 stance, the executor shall not be chargeable 
 for the injm-y done by his testator in cutting 
 down another man's trees, but for the bene- 
 fit arising to his testator for the value or 
 sale of the trees he shall. 
 
 So far as the tort itself goes, an executor, 
 shall not be liable; and therefore it is, that 
 all public and all private crimes die with 
 the offender, and the executor is not charge- 
 able; but so far as the act of the offender 
 is beneficial, his assets ought to be answer- 
 able; and his executor therefore shall be 
 chiirged. 
 
 There are express authorities, that trover 
 and conversion does not lie against the ex- 
 ecutor: I mean, where the conversion Is by 
 the testator. W. Jones, 173, 174; Palmer, 
 330. There is no saying that it does. 
 
 The form of the plea is decisive, viz. that 
 the testator was not guilty; and the issue 
 is to try the guilt of the testator. And no 
 mischief is done; for so far as the cause of 
 action does not arise ex delicto, or ex male- 
 ficio of the testator, but is founded in a 
 duty, wnich the testator owes the plaintiff; 
 upon principles of civil obligation, another 
 form of action may be brought, as an action 
 for money had and received. Therefore, 
 we are all of opinion that the judgment 
 must be arrested. 
 
 PER CURIAM. Judgment arrested. 
 
156) 
 
 riNLAY V. CIIILiNEY. 
 
 Case No. 221 
 
 FINLAY V. OHIRNEY et al. 
 
 (20 Q. B. DiT. 494.) 
 
 Court of Appeal. Feb. 15, 1888. 
 
 Appeal of defendants from the judgment 
 of the queen's bench division (Field and 
 Wills, JJ.) ordering a new trial. 
 
 The defendants were the executors of one 
 G. B. Chirney, and were sued in respect of a 
 breach of promise of marriage committed 
 by their testator diu-ing his life. The plain- 
 tiflf, a widow, was houseiieeper to the testa- 
 tor, and was seduced by him under a prom- 
 ise of marriage, a child being born in Au- 
 gust, 1884; in April, 1886, Chirney died. At 
 the ti-ial at Newcastle-upon-Tyne before 
 Cave, J., the plaintiff was nonsuited upon 
 the ground that there was no corroboration 
 of the promise, no other point being then 
 taken by the defendants. The plaintiff 
 moved before the divisional court to set 
 aside the nonsuit, when the' objection was 
 taken on behalf of the defendants that an 
 action for breach of promise of marriage 
 would not lie against the executors of a de- 
 ceased promisor; but no judgment was given 
 upon this point, the court being of opinion 
 that the proper course was to send the case 
 down for a new trial. The defendants ap- 
 pealed. 
 
 The pleadings contained no allegation that 
 the plaintifE had suffered any special dam- 
 age by reason of the breach of promise, but 
 the divisional court gave leave to the plain- 
 tiff to amend the statement Of claim in that 
 respect, and to deliver particulars of the 
 special damage to the defendants. By spe- 
 cial leave of the court of appeal these par- 
 ticulars, verified by an affidavit of the plain- 
 tifE, were used during the argument before 
 their lordships. It is unnecessary to set out 
 the particulars at length in this report; they 
 fell under the following heads: (1) Amount 
 expended by plaintiff in preparation for mar- 
 riage in the purchase of underclothing and of 
 ■other material for clothing; (2) maintenance 
 of the plaintiff from the date of the promise 
 to the death of the testator; (3) costs occa- 
 sioned by the birthof the child, including costs 
 of its maintenance until the testator's death; 
 (4) loss of a parish allowance for each of 
 her three legitimate sons until they attained 
 the age of sixteen, withdrawn before they 
 attained that age in consequence of the 
 l)u-th of the illegitimate child- (5) loss, ow- 
 ing to the birth of the child, of a legacy of 
 £100, which woitld otherwise have been left 
 to her by her mother in common with her 
 l)rothers and sisters. 
 
 Waddy, Q. C, H. F. Boyd, and Ernest 
 PoUoek, for appellants. Digby Seymom-, Q. 
 ■C., and J. Lawson Walton, for respondent. 
 
 LORD ESHKR, M. R. This was an ac- 
 tion brought against the executors of a de- 
 ■ceased man in respect of a breach of prom- 
 ise of marriage; it was tried before Cave, 
 ABB.WILX.S — 38 
 
 J., and evidence as to the facts was gone 
 into, and the only objection raised by the 
 defendants at the trial was, not that such 
 an action would not lie, but that there was 
 no corroboration of the alleged promise. 
 The plaintiff was nonsuited, and she then 
 went to the divisional court; there, besides 
 the contention as to want of corroboration, 
 the further point was taken by the defend- 
 ants that the action would not lie; this was 
 decided in favor of the defendants, and upon 
 the case as it was presented to them the di- 
 visional court might have entered judgment 
 for the defendants, but upon the suggestion 
 that special damage might be laid and 
 proved they granted a new trial, giving leave 
 to the plaintiff to amend by adding allega- 
 tions of special damage. An appeal is now 
 brought to us, and three questions present 
 themselves for our consideration: first, 
 whether the action will lie without special 
 damage; secondly, whether it will lie with 
 special damage; and thirdly, whether, if 
 special damage be proved, the action will lie 
 only for the amount of such special dam- 
 age, or whether it will lie for all the dam- 
 ages ordinarily given in actions for breach 
 of promise of marriage; all these three 
 formulas are of great importance. 
 
 Upon the first question I entertain no 
 doubt whatever; the authority of English 
 law is overwhelming to the effect that no 
 action for breach of promise of marriage 
 can be brought by executors or will lie 
 against them. The authority for this propo- 
 sition consists in the fact that in the case of 
 Chamberlain v. Williamson, 2 Maule & S. 
 408, it was decided that such an action 
 would not lie, at least at the suit of an ad- 
 ministrator, and in the additional fact that 
 there is no case to be found in the books 
 where such an action has been maintained 
 either by executors as plaintiffs or against 
 them as defendants, and this in spite of the 
 fact that circumstances must frequently have 
 arisen which would invite a decision of tlie 
 question. And besides authority there is 
 the principle expressed in the maxim, "Actio 
 personalis moritur cum persona." Is an ac- 
 tion for breach of promise of marriage a 
 personal action, in the sense that the cause 
 of action or complaint or injury is one af- 
 fecting solely the person both of the prom- 
 isor and promisee? It is clear that it is nor 
 a complaint of anything affecting property, 
 whether personal or real; it is an injury; 
 that is, it is a cause of action purely personal 
 on both sides, personal both to the person 
 to whom and the person by whom the prom- 
 ise is made. It is true that in the old days 
 an action for breach of promise of marriage 
 was in form an action founded on contract, 
 and that even now it is still treated as an 
 action for breach of contract. Formerly an 
 action of tort was almost inevitably a per- 
 sonal action; but it did not follow necessari- 
 ly that an action was not personal because 
 it was founded on a breach of contract. 
 
 593 
 
Case No. 221 
 
 PINLAY c. CHIBNEY. 
 
 (§ 156- 
 
 The complaint in an action for breach of 
 promise of marriage is indeed a complaint 
 of a breach of contract, but the injiu-y is 
 treated as entirely personal, and not only 
 are damages always given in respect of the 
 personal injm-y to the plaintiff, but also dam- 
 ages arising from and occasioned by the per- 
 sonal conduct of the defendant; and evi- 
 dence of the conduct of both parties is al- 
 lowed to be given in mitigation or aggi'ava- 
 tion. The ages of the respective parties 
 may be taken Into account, as well as their 
 whole behavior; and the damages may be 
 much enlarged if the conduct of the defend- 
 ant has been an aggravation of the breach 
 of his promise. A consideration of these 
 facts goes to show that an action for breach 
 of promise of marriage is strictly personal, 
 and that, although in form it is an action 
 for breach of contract, it is really an action 
 for a breach arising from the personal con- 
 duct of the defendant and affecting the per- 
 sonality of the plaintiff. 
 
 Of course it is said, and said justly, that 
 the damages recovered in the action affect 
 the property of the respective parties; but 
 that is not the proper test to apply; the true 
 test is whether the cause of action itself is 
 one which affects property. The question is 
 therefore concluded both upon principle and 
 by authority. The same has been held to 
 be the law in America, and all the American 
 cases to which I have been able to obtain 
 access are clear upon the point. I am there- 
 fore of opinion that the action as brought, 
 there being no allegation of special damage, 
 was wrongly brought, and that judgment 
 was properly given, though upon a wrong 
 ground, for the defendants at the trial. 
 
 But in the only English case on the sub- 
 ject, that of Chamberlain v. Williamson, 
 there is an exception suggested to this rule 
 which is expressed in the words, "except 
 there be special damage," and on looking at 
 the American eases I find that they say the 
 same thing. I know, however, of no case 
 in which special damage has been laid and 
 the action has been maintained, and there 
 is no authority to enable us to decide how 
 such a case should be dealt with. Indeed 
 I have gi-ave doubts whether it would not 
 be the wisest com-se to say that even with 
 special damage the action will not lie, but 
 I am not prepared upon the authorities to go 
 that length. I can hardly conceive of a 
 case where such special damage could arise 
 as would support the action; but, assuming 
 there were such damage, Is its existence to 
 open the whole case against the executors 
 and make them liable, not only for the 
 special damage resulting from the breach by 
 their testator, but for all the damages which 
 could be recovered in such an action against 
 a living person? Does the action against 
 the executors become an action for breach 
 of promise of marriage, with all the ordi- 
 nary consequences of sucli an action, because 
 of the existence of special damage to the 
 504 
 
 plaintiff, or does it lie only for the amount 
 of the special damage? If we were to say 
 that in such a case the whole^matter was 
 open for consideration, we should in effect 
 be doing away with the principle that a 
 personal action dies with the person affect- 
 ed by it, and that by reason of the personal 
 natm'e of the cause of action the executors 
 are not liable; we should have to say that 
 they would be liable in an action for per- 
 sonal injm'y, which is nothing but a personal 
 action, and this would break both the rule- 
 and the principle. I entertain no doubt what- 
 ever that, even if the action will lie upon 
 proof of special damage, it must be confined 
 to a claim for the special damage only, and 
 that a claim for general damages, which 
 would be recoverable from the defendant in 
 his lifetime, must be struck out. Therefore- 
 the damage to be considered must be a dam- 
 age affecting the property of the plaintiff,, 
 and for that only can the action be brought. 
 
 What is the kind of special damage that 
 can exist under such circumstances? I think 
 it can only exist in cases where the plaintiff 
 can show that, besides the promise to marry,, 
 there was at the time of the making of the 
 contract another promise affecting the per- 
 sonal property of the one party or the othfir. 
 Such a promise, if made and proved, would, 
 be one of the considerations, or part of the 
 consideration, for the promise of the other 
 party, and there would be one promise mov- 
 ing upon two considerations or upon one 
 complicated consideration. If such an ex- 
 press promise could be proved, it might be- 
 sued iipon as part of the consideration for 
 the plaintiff's promise; and even though 
 there were no such express promise, yet if 
 circumstances were proved to exist sjiowing- 
 that both the parties contemplated that a 
 breach must affect the property of one nr 
 the other, an action niiglit be brought; that 
 is to say, if the case were within the rule- 
 laid down in Hadley v. Baxendnle, 9 Exch. 
 341, an action would lie in respect of a dam- 
 age to property or a loss of money through 
 the br'each. 
 
 I think, therefore, that this action will not 
 lie without special damage, and that if spe- 
 cial damage be proved it will not lie for 
 anything that Is not special damage. If there 
 bo special damage, an action will lie for it, 
 and the cause of action will still be for 
 breach of promise of marriage, but the ac- 
 tion will lie only for that special damage, 
 whether the damage arises by reason of an 
 express promise which was part of the con- 
 tract to marry, or whether circumstances- 
 existed at the time of the contract whicli 
 show that such special damage was then 
 within the contemplation of the parties; and" 
 it seems that the American cases point to a 
 like state of the law in that country. 
 
 The plaintiff therefore was rightly nonsuit- 
 ed at the trial, although upon a wrong 
 ground; she had then upon the pleadings^ 
 no cause of action, but the divisional court 
 
§ 156) 
 
 riNLAT V. CHiKXEY. 
 
 Case No. 221 
 
 granted her the indulgence of a new trial, 
 and gave her leave to amend her statement 
 of claim by inserting an allegation of spe- 
 cial damage. In mercy to both the suitors 
 ■we have thought it right to look carefully 
 into that question, and we gave leave to the 
 plaintiff to say what was the special dam- 
 age alleged, and particulars have been de- 
 livered to us. In my opinion they disclose 
 nothing that can be called special damage 
 within the meaning of tlie rule that I have 
 enunciated. It is suggested that the plain- 
 tiff had bought her ti-ousseau, but it cannot 
 be said that in all cases of a contract of 
 marriage the lady is justified in at once pro- 
 viding herself with clothes in anticipation 
 of the fulfillment of the conti-act; in the 
 present case, the plaintiff being in the posi- 
 tion of a housekeeper to a farmer, it scarcely 
 seems a reasonable thing to have done. 
 Even in higher ranks of life tlie same re- 
 mai-k would apply: the man who is going to 
 be married has nothing to do with the bride's 
 trousseau, which is provided by her father; if 
 a breach of the promise is committed, the lady 
 still has the clothes, and I cannot think this 
 a good specimen of special damage; besides, 
 such a fact has always been allowed to be 
 given in evidence as an aggravating circum- 
 stance, and it is in my opinion not special 
 damage. Then it is also said by the plain- 
 tiff that she had given up a better place, 
 and if at the time of the contract to marry, 
 the plaintiff had agreed to give it up at 
 once or before the wedding-day, it might be 
 special damage, as being part of the consid- 
 eration for the promise to marry; but it 
 must be brought to the knowledge of the oth- 
 er party at the time of the contract in order 
 to bring it within the principle in Hadley v. 
 Baxendale; if the agreement to give up the 
 place were made after the contract to marry, 
 it would be no part of the promise. 
 
 There is one other point which remains to 
 be noticed. It is said that the promise to marry 
 was made as part of an invitation to seduc- 
 tion, and that a child was subsequently born. 
 That would, indeed, be a matter existing at 
 the time of the contract and forming part of 
 the negotiations between the parties, but it 
 would not be special damage, for such a con- 
 tract would be contrary to public policy, 
 morality and decency, and such a claim 
 could never be allowed. The special dam- 
 age recoverable in such an action as this 
 must, as I have said, be something affect- 
 ing the money value of the contract to the 
 plaintiff, and there is no such class of spe- 
 cial damage in the particulars. If the whole 
 of these particulars were inserted in the 
 statement of claim, the same result ought 
 to follow; there would be no case for the 
 plaintiff, and the defendants ought to have 
 judgment I think, therefore, that we ought 
 to go beyond the divisional court, and say 
 that there shall be no new trial, and that 
 judgment shall be entered for the defend- 
 ants. The defendants should have the costs 
 
 of the trial, and there should be no costs to 
 either side in the divisional court or before 
 us. 
 
 BOWEN, L. J. The judgment which I am 
 about to read is that of my Brother FRY and 
 myself. 
 
 That 'there was in this case some evidence 
 which, if the jury believed it, would be in 
 corroboration of the plaintiff's own story, 
 we do not doubt, for the reasons indicated 
 diu'ing the course of the argument. But a 
 more serious question has been raised as to 
 the liability of an executor in respect of an 
 alleged breach of promise of marriage by the 
 testator whose estate he represents. 
 
 The liability of an executor in respect of 
 the acts and defaults of his testator has been 
 in the English law a matter of slow growth. 
 The maxim, "actio personalis moritur cum 
 persona," is one of some antiquity, but its 
 origin is obscure and post-classical. Unless, 
 indeed, some very restricted sense is affixed 
 to the word "personalis," it is by no means 
 true at the present day that a personal action 
 always dies with the person. Upon the 
 other hand, if the meaning of the maxim is 
 to be limited, it is difficult to reconcile its 
 phraseology with the ordinary classifications 
 of ancient English law. Judges and text- 
 writers since the reign of Queen Elizabetli 
 have been in the habit of explaining upon fit 
 occasions that only actions ex delicto were 
 within the operation of the principle. "The 
 rule," says the learned editor of AVilliams' 
 Saunders (1 Saund. 240), "was never ex- 
 tended to such personal actions as were 
 founded upon any obligation, contract, debt, 
 covenant, or any other duty to be perform- 
 ed." This remark is true, if confined to the 
 law of recent times, but it is inexact if it be 
 taken as applying to the older English law 
 under which actions based upon an obliga- 
 tion as a rule died with the person. As ap- 
 plied, however, to modern times, the proposi- 
 tion is supported by abundance of authority. 
 "Actio personalis," says Willes, C. J., in Sel- 
 lers V. Lawrence, Willes, 413, at page 421. 
 "is always understood of a tort," and similar 
 expressions occur elsewhere in plenty. But 
 though this gloss or limitation has been 
 forced upon the Latin maxim in later times 
 by the exigencies of a growing society, we 
 are left still in the dark as to the maxim's 
 exact meaning or source. The truth is, 
 that in the earliest times of English law, sur- 
 vival of causes of action was the rare excep- 
 tion, non-survival was the rule. Moreover, 
 the clear line which we are accustomed at 
 this day to draw between contract and tort 
 in the classification of personal actions does 
 not correspond with the early English law, 
 nor with the history of old English writs and 
 causes of action. Actions of trespass were 
 formerly actions of a quasi-penal character, 
 and based upon the supposition of personal 
 wrong. It was not unnatiu-al that such 
 actions should die upon the death of the tres- 
 
 595 
 
Case No. 221 
 
 riNLAY V. CHIRNEY. 
 
 (§ 156 
 
 passer. "All private criminal Injurios or 
 wrongs, as well as all public crimes, are 
 buried," says Lord Mansfield, in Ilambly v. 
 Trott, 1 Cowp. 375, "with the offender." 
 But survival was also denied to other actions 
 which did not fall within this category. In 
 Bracton's time the general law was, that an 
 obligation was got rid of by the death of 
 either of the conti-acting parties, Bracton, 
 fol. 101: "Item tollitm' morte alterius con- 
 trahentlum, vel utriusque, maxima si fuerit 
 poenalis, vel simplex— si autem duplex, scili- 
 cet poenalls et rei persecutoria, in hoc quod 
 poenalis est toUitur, et non extenditur contra 
 haeredes, nee datur haeredibus, quia poena 
 tenet suos auctores, et extinguitur cum per- 
 sona." In debt the executor could riot be 
 sued where the testator could have waged 
 his law, see Pinchon's Case, 9 Coke, 88a; a 
 condition of things which continued even 
 down to 1805: Barry v. Robinson, 1 Bos. & 
 P. (N. R.) 293. And when we consider that 
 all actions on the case (as is said by Black- 
 stone, J., in Mast v. Goodson, 2 W. Bl. 848, 
 at page 850, decided in 13 Geo. III.), were 
 originally for torts, and that it was only in 
 the time of Queen Elizabeth that the famil- 
 iar action of assumpsit was after a contro- 
 versy introduced, it becomes plain that it is 
 within the last three centuries that the con- 
 tractural liabilities of an executor have ex- 
 panded to their present limits. 
 
 Modem jurisprudence has, however, since 
 the reign of Queen Elizabeth adopted a 
 rough but convenient interpretation of the 
 maxim, which is set forth in the passage 
 above cited from Williams' Saunders. On the 
 one side of the line of demarcation lie actions 
 of tort. Remedies for wrongful acts, ac- 
 cording to the present law, can only be pur- 
 sued against the estate of a deceased person 
 when property or the proceeds or value of 
 property belonging to another have been ap- 
 propriated by the deceased person and added 
 to his own estate or moneys: Phillips v. 
 Homfray, 24 Ch. Div. 439, at page 454. On 
 the other side of the line lie actions founded 
 on any contract express or Implied "or any 
 other duty to be performed." Early in the 
 reign of James an action was allowed against 
 executors for payment of a debt, if clothed 
 in the form of an action on the case in as- 
 sumpsit: Pinchon's Case, 9 Coke, 89b; and 
 this remedial view of the law has been 
 adopted and followed ever since. 
 
 The question we have to decide to-day re- 
 lates to a class of action which, though in 
 its form and substance contractual, differs 
 from other forms of actions ex contractu in 
 permitting damages to be given as for a 
 wrong. This double aspect of an action for 
 breach of promise creates the perplexity in 
 the present instance. On which side of the 
 line is to fall an action which is based on 
 tlie hypothesis of a broken conti-act, yet is 
 attended with some of the special conse- 
 quences of a personal wrong, and in which 
 damages may be given of a vindictive and 
 696 
 
 uncertain kind, not merely to repay the 
 plaintiff for temporal loss, but to punish the 
 defendant in an exemplary manner? How 
 far is such an action within, how far with- 
 out, the maxim "Actio personalis moritur 
 cum persona?" The problem is one which 
 in the nature of things is of later date than 
 the Year-Books. Before the Reformation no 
 action for breach of promise could be main- 
 tained, for marriage was a matter of spir- 
 itual jurisdiction. It was not till the mid- 
 dle of the seventeenth century that marriage 
 was recognized by our law as a temporal 
 benefit, and a breach of promise of marriage 
 as cognizable by the temporal com'ts: 
 Baker v. Smith, Style, 295. See, also, Rolle, 
 Abr. tit. "Action on the Case," fol. 22, par. 
 20; Hebden v. Rutter, Sid. 180; and Harrison 
 V. Cage, Carth. 467, a case supposed errone- 
 ously by Willes, J., in Smith v. Woodfine, 1 
 C. B. (N. S.) 667, to be the earliest recorded 
 case of an action for breach of promise of 
 marriage. No authorities of a very early 
 date can accordingly be expected to throw 
 light upon the question, and it must be solv- 
 ed mainly upon principle. 
 
 It is a striking and not an immaterial fact 
 that no action for breach of promise of mar- 
 riage against the executors of a deceased per- 
 son is to be found in the books. We have, 
 moreover, a case decided by Lord EUenbor- 
 ough and the court of king's bench towards 
 the beginning of the century which affords 
 us some guidance in the matter. In Cham- 
 berlain V. Williamson, the converse of the 
 present case occurred in an action brought 
 by the representative of a deceased against 
 a living person for breach of promise. It 
 was held that an action of the sort, in which 
 no special damage was alleged, would not 
 lie, on the ground that, except when such 
 special damage had been occasioned, the ac- 
 tion was in reality an action arising out of 
 a personal injm-y. "The general rule of 
 law," says Lord EUenborough, 2 Maule & 
 S., at page 415, "is, 'Actio personalis moritur 
 cum persona,' under which rule are included 
 all actions for injuries merely personal. Ex- 
 ecutors and administrators are the represen- 
 tatives of the temporal property, that is, the 
 debts and goods of the deceased, but not of 
 their wrongs, except where those wrongs 
 operate to the temporal injury of their per- 
 sonal estate." This judgment has been 
 adopted as a guiding one by the American 
 covu-ts in the cases of Stebbins v. Palmer, 1 
 Pick. 71; Lattimore v. Simmons, 13 Serg. 
 & R. 183; Smith v. Sherman, 4 Cush. 408, at 
 page 413; and Hovey v. Page, 55 Me. 142. It 
 does not, indeed, follow that the same rea- 
 soning applies in toto to actions brought 
 against the executors of a deceased person: 
 see per Bramwell, L. J., in Twycross v. 
 Grant, 4 C. P. Div. 40. 
 
 But the decision in Chamberlain v. Wil- 
 liamson shows, at all events, that the courts 
 of this country will, even although an ac- 
 tion for breach of promise be an action aris- 
 
§ 1E6) 
 
 FJNLAY V. CHIHNEY. 
 
 Case No. 221 
 
 ,ing out of contract, apply the general prin- 
 ciples of tlie maxim "actio personalis" to so 
 mucli of the damages as are a remedy for 
 mei-e personal wrong, and will allow so 
 much of the remedy to survive as seems to 
 belong to the ordinary category of actions ex 
 contractu. In order accurately to draw the 
 dividing line, it becomes necessary to an- 
 alyse the damages which ai-e recoverable 
 In cases of breach of promise, and their 
 measure and character have nowhere been 
 better explained than in 1 Sedg. Dam. p. 
 146; in a passage cited with approval by 
 Willes, J., in Smith v. Woodflne, 1 C. B. (N. 
 S.) 600, at page 667. "This action," says the 
 learned author, "is given as an indemnity to 
 the Injiu-ed party for the loss she has sus- 
 tained, and has been always held to em- 
 brace the injury to the feelings, affections, 
 and wounded pride, as well as the loss of 
 marriage. From the natm-e of the case it 
 has been found impossible to fix the amount 
 of compensation by any precise rule, and, 
 as in tort, the measure of damages is a ques- 
 tion for the sound discretion of the jury in 
 each particular instance, subject, of coui'se, 
 to the general restriction that a verdict in- 
 fluenced by prejudice, passion, or corruption 
 will not be allowed to stand. Beyond this the 
 power of the court is limited, as in cases of 
 tort, almost exclusively to questions arising 
 on the admissibility of evidence, when ofEer- 
 ed by way of enhancing or mitigating dam- 
 ages." It is, as it seems to us, by way of 
 enhancing damages, and not as a special 
 head of damage flowing naturally from the 
 breach, that evidence of the means of the 
 defendant is usually given at the trial. If 
 it were otherwise, such head of damage 
 would require special averment on the rec- 
 ord. But it is treated as part of the history 
 of the circumstances of the case, and as en- 
 abling the jm'y to estimate properly the con- 
 duct of the defendant. "The value of the 
 defendant's property," says Cresswell, J., in 
 Smith V. Woodflne, 1 C. B. (N. S.), at page 
 066, "is invariably gone into in cases of this 
 sort." But where there is no special aver- 
 ment on the record of pecuniary loss aris- 
 ing out of the breach, the general allegation 
 of the breach of promise imports, according 
 to Lord Ellenborough, only a personal in- 
 jury: Chamberlain v. Williamson; though 
 the jury may consider such personal injury 
 with reference to all the circumstances of 
 the case. 
 
 There may, of course, be an actual loss to 
 the temporal estate of the promisee, arising 
 out of the breach of contract. If such loss 
 is to be relied on as independent and spe- 
 cial damage in an action against executors, 
 it ought to be specially pleaded, and in or- 
 der to see If such damage is in fact recover- 
 able the ordinary line as to remoteness of 
 damages will have to be drawn according to 
 the well-known doctrine of Hadley v. Bax- 
 endale. 
 
 If the above is a correct account of the 
 
 damages recoverable in an action for breach 
 of promise, it would seem to follow that with 
 the death of the promisor all claim to dam- 
 ages of an exemplary or sentimental kind 
 ought to cease, and that such damages only 
 ought to be left as represent compensation 
 for a temporal and measurable loss, flowing 
 directly from the breach or within the con- 
 templation of both parties at the date of 
 the promise, and that in an action against 
 executors such a temporal loss, if it is al- 
 leged, must be tested according to the ordi- 
 nary rules as to remoteness as applied to 
 the special facts of the case. In the present 
 action there is no special averment of tem- 
 poral loss, and we ought not to allow the 
 pleadings at this late stage to be amended, 
 and to send down the case to trial again, un- 
 less we are satisfied that there is a substan- 
 tial claim under this head fit for the con- 
 sideration of the jm-y. By special leave of 
 the court, the plaintiff has now filed an affi- 
 davit as to particulars of special damage. 
 The only items which are entitled even to 
 plausible consideration are two: first, the 
 expense to which the plaintiff was put in 
 maintaining herself as a feme sole subse- 
 quently to the breach; and, secondly, the 
 amount expended by the plaintiff in the 
 purchase of underclothing, &c., in prepara- 
 tion for her marriage. The plaintiff's ex- 
 pense in maintaining herself after she was 
 forsaken clearly cannot be recovered. It 
 cannot be a consequence natm-ally arising 
 out of a breach of promise of marriage that 
 the woman is to be entitled during the re- 
 mainder of her life to charge the expenses 
 of her living and maintenance to her faith- 
 less lover. With respect to the claim for 
 underclothing, &c., it is sufficient to say that 
 the materials furnished by the plaintiff's 
 affidavit do not show that such purchase 
 was made under circumstances which would 
 bring the expenditure within the head of 
 damages flowing directly from the alleged 
 breach of contract, or within the contempla- 
 tion of the parties at the time. We do not 
 desire to intimate any opinion that expendi- 
 ture in respect of a marriage trousseau or 
 other marriage preparation must necessarily 
 be too remote to be recovered against exec- 
 utors in an action for breach of promise of 
 marriage— the matter must in each case de- 
 pend upon the circumstances of the case- 
 but though" invited to do so, the plaintiff has 
 not given us the means of seeing that this 
 particular head of damage can be sustained 
 by evidence, or what case she has for asking 
 for an amendment to be made in the state- 
 ment of claim which would include it. The 
 action, therefore, must be dismissed, with, 
 costs; but as the only point taken by the de- 
 fendants at the trial was one as to corrobo- 
 ration, and as that point was a bad one, we 
 think that there ought to be no costs of the 
 hearing of the divisional court or of this ap- 
 peal. 
 Judgment for the defendants. 
 
 597 
 
Case 2s^o. 222 
 
 CHADBOURK «. CHADI30URN. 
 
 (§ 157 
 
 CriADBOURN T. OHADBOURN. 
 
 (9 Allen, 173.) 
 
 Supreme Judicial Court of Massachusetts. 
 Oct., 1864. 
 
 Submission between Sophia A. Chadbourn, 
 as administratrix upon the estate of John 
 Ohadbourn, deceased, and Lucinda Chad- 
 bom-n in her own right and as administratrix 
 of the estate of Seth Ohadbourn, deceased. 
 The submission was signed by the latter 
 simply with her own name. The case re- 
 served for the whole court. 
 
 I. Story, for plaintiff. G. Morrill, for de- 
 fendant. 
 
 BIGELOW, 0. J. Neither of the errors as- 
 signed is well supported, or affords any 
 any gi-ouud for reversing the judgment com- 
 plained of. 
 
 1. By the well settled rule of the common 
 law, administrators have full authority to 
 submit any disputed matter relating to the 
 estate of a deceased person in their hands to 
 arbitration. Ooffln v. Cottle, 4 Pick. 454;) 
 Bean v. Farnam, 6 Pick. 269. This au- 
 thority is not repealed or in any way im- 
 paired by the provision in Gen. St. c. 101, 
 § 10. which empowers courts of probate to 
 authorize executors and administrators to 
 adjust by arbitration "any demands in favor 
 of or against- the estates by them represented." 
 Repeals are not to be favored by implication, 
 and courts of law are scrupulously careful 
 not to sanction such repeals, unless the in- 
 tention of the legislature to abrogate the 
 previously existing law is clearly manifest. 
 Whenever it is apparent that a different 
 purpose may be attained without essentially 
 impairing the effect of the operative words 
 
 598 
 
 of a statute, that construction is to be adopt- 
 ed which will leave the common law or an 
 earlier enactment in force. In reference to 
 the statute above cited, we can seS no good 
 reason for supposing that any alteration in 
 the rule of the common law was intended. 
 By conferring on courts of probate jurisdic- 
 tion to authorize executors or administrators 
 to submit demands in favor of or against 
 estates in their hands to arbitration, or to 
 compromise them, the legislature intended 
 only to give security and protection to these 
 officers in the exercise of that authority with 
 which they are clothed by the common law, 
 and to relieve them from liability to have 
 their acts in agreeing to a submission called 
 in question, or the finding of arbitrators re- 
 vised or set aside to their Injury, by those 
 who were Interested in the effects of the 
 testator or intestate. Such a liability exists 
 at common law. But the adjudication of a 
 competent tribunal would bind all parties 
 interested, and thus relieve executors and 
 administi-ators from the necessity of incur- 
 ring the risk of acting solely on their own 
 responsibility. This interpretation gives full 
 effect to the language of the statute, and 
 leaves no room for the suggestion that it 
 was Intended as a repeal of the rule of the 
 common law. 
 
 2. The other gi'ound assigned for error is 
 wholly untenable. The capacity In which 
 the defendant in error signed the submission 
 is fully set out in the body of the instru- 
 ment. By affixing her signature to it, she 
 adopted the description and statement there- 
 'in contained. A repetition of the word "ad- 
 mlnistrati'ix," appended to her signature, 
 would have been mere sm-plusage. 
 
 Judgment affirmed. 
 
S 158) 
 
 LITTLETON v. HIBBINS. 
 
 Case Ko. 22S 
 
 LITTLETON v. HIBBINS. 
 (Cro. Bliz. 793.) 
 Common Pleas. 1600. 
 Scire facias against executors, upon a judg- 
 ment against their testator In debt. Tliey 
 pleaded, that before they had any conu- 
 •<ance of this judgment, they had fully ad- 
 ministered all their testator's goods in pay- 
 ing of debts upon obligations. And it was 
 thereupon demin-red: and, after argument at 
 the bar, adjudged for the plaintiff, that it 
 was not any plea; for they at their peril 
 
 ought to take conusance of debts upon rec- 
 ord, and ought first of all (unless for debts 
 due to the queen, wherein she hath a preroe- 
 ative) to satisfy them; and although the 
 recovery was in another county than where 
 the testator and executors inhabited, it is 
 not material. But if an action be brought 
 against them in another county than where 
 they inhabit, and before their knowing there- 
 of they pay debts upon specialties, that is al- 
 lowable. Wherefore it was adjudged ac- 
 cordingly. Vide 4 Hen. VI. pi. 8; 21 Edw. 
 IV. pi. 21. 
 
 5o;) 
 
Case No. 224 
 
 MANNING V. 8P00NER. 
 
 <§ 158 
 
 MAXXIXG V. SPOONER. 
 
 (3 Ves. 114.) 
 
 High Court of Chancery. 1796. 
 
 Charles Spooner, by his will, dated the 
 14th of January, 1785, after some specific 
 and pecuniary legacies, gave all the residue 
 of his personal estate to trustees. In trust to 
 convert the same into money, and thereout, 
 in the first place, to pay all his debts and 
 funeral expenses, and also the legacies there- 
 in mentioned; and if there should be any 
 surplus of the monies to arise from his said 
 personal estate, he directed that it should 
 be laid out in the purchase of 3 per cent, 
 consolidated banli annuities, upon the trTists 
 after declared. He gave all his messuages, 
 plantations, lands, tenements, and heredita- 
 ments, and all his real estates whatsoever, 
 whether in possession, reversion oi- remain- 
 der, situate in the islands of Antigua, St. 
 Christopher's, and Tortola, together with all 
 the buildings, slaves, horses, mules, cattle, 
 and plantation utensils and implements, and 
 chattels of all sorts, therein or thereto be- 
 longing, to the use of the said trustees, their 
 heirs, executors, administrators, and assigns, 
 upon trust that they should, during the life 
 of his wife, and until the sum of £8000, 3 
 per cent, consolidated bank annuities should 
 be raised, as after directed, and also till 
 such further sum should be raised, as after 
 mentioned, cultivate and manage, and re- 
 ceive the rents, issues, and profits of the 
 said plantations and estates, and apply the 
 same, after paying and secm'ing some an- 
 nuities therein mentioned, in payment of 
 such of his debts and legacies as the residue 
 of his personal estate should prove deficient 
 in paying; and should lay out and invest 
 the residue and surplus of the annual rents 
 and profits of the said estates and premises 
 from time to time in the purchase of 3 per 
 cent, consolidated bank annuities. In the 
 names of his said trustees, until the said 
 bank annuities, together with the bank an- 
 nuities, (if any,) which should be purchased 
 with the surplus of his personal estate, 
 should amount to the sum of £8000 3 per 
 cent, consolidated bank annuities; and sub- 
 ject thereto, and after the death of his wife, 
 he directed that his trustees should convey 
 the said plantations, estates, and premises, 
 in the islands of St. Christopher's and Tor- 
 tola, to the use of his nephew Hungerford 
 Spooner and his issue male, in strict settle- 
 ment, with divers remainders over;' and he 
 directed them to convey his said plantations, 
 estates, and premises in Antigua, to the use 
 of his nephew Peter and his issue male, in 
 the same manner, with divers remainders 
 over; and he declared that all the negi'oes, 
 cattle, stock, plantation utensils, and imple- 
 ments on and belonging to the said several 
 estates, should go along with the freehold 
 and inheritance of the said estates respec- 
 tively. He gave £1000, part of the said 
 £8000 3 per cent, annuities, to his niece Mary 
 600 
 
 Shaw, and the remainder of the said £8000 
 stock to several other nephews and nieces; 
 and he appointed his trustees executors with 
 his wife. 
 
 The testator, at the date of his will, was 
 not seised of any real estates except those 
 he had devised. Afterwards, in August, 
 1787, he purchased in fee-simple an estate 
 at Landford in Wilts. He died upon the 
 12th of May, 1790, leaving his niece Isabella 
 Spooner his heir; who, the wiU not having 
 been republished, entered upon the estate at 
 Landford, and sold it for £4200. 
 
 The widow and one of the trustees being 
 dead, the will was established, and the usual 
 accounts directed upon the bill of the sur- 
 viving trustee. A supplemental bill was aft- 
 erwards filed by the sm-viving trustee, 
 the devisees and legatees, praying an ac- 
 count of the rents and profits of the Land- 
 ford estate received by the defendant Isa- 
 bella Spooner and of the pm'chase-money; 
 and that in case the specialty creditors 
 should have exhausted any part of the per- 
 sonal estate, the legatees might stand in 
 their place upon the real estate descended. 
 The purchase-money of the Landford estate 
 was paid into court. It was decreed, that 
 the accounts should be carried on in the 
 original cause. The master reported, that 
 £5047 had been received from the personal 
 estate, and applied in discharge of debts 
 and legacies; and that £9739 remained due 
 to the specialty creditors for principal and 
 interest. The cause coming on for further 
 directions, the question was, whether the 
 descended estate was liable to the debts be- 
 fore the application of the fund to arise 
 from the devised estates under the ti-ust in 
 the will? 
 
 Mr. Piggott and Mr. Thomson, for the de- 
 visees. Mr. Lloyd, Mr. Grant, and Mr. Al- 
 cock, for the heir. 
 
 MASTER OF THE ROLLS. The ques- 
 tion, . whether the descended estate is liable 
 before those devised, depends entirely upon 
 this point, whether there is a specific gift 
 of any part of the estate for the purpose 
 of paying the debts; or whether it is only 
 a general charge for that purpose; for upon 
 the doctrine that is very fully laid down by 
 Lord Thurlow in Donne v. Lewis, 2 Brown, 
 Ch. 251, there is no doubt of the manner in 
 which the estate of the testator is to be ap- 
 plied in discharging his debts. That case 
 had a very full consideration and discussion; 
 and it was determined upon principles that 
 have been constantly acted upon since; and 
 which must govern all such cases. From 
 that I collect, that there are four classes of 
 estates to be applied to the debts: 1st, the 
 general personal estate, unless exempted ex- 
 pressly or by plain implication: 2dly, any 
 estate particularly devised for the pm'pose, 
 and only for the ptu-pose of paying debts: 
 3dly, estates descended: 4thly, estates spe- 
 cifically devised. The question therefore is 
 
158) 
 
 MANNING V. SPOONER. 
 
 Case No. 224 
 
 in every case, where the contest is between 
 an estate descended and an estate alleged 
 to be provided for the debts, whether it is a, 
 general charge, or any part of the estate is 
 selected for the express purpose of paying 
 the debts. If part is selected for that pur- 
 pose, that part shall be applied before the 
 descended estate; whether the testator had 
 that estate before he made his will, or not. 
 Lord Thurlow, in considering Galton v. Han- 
 cock, 2 Atk. 424, Wride v. Clark, 2 Brown, 
 Ch. 461, note, and Davies v. Topp, 1 Brown, 
 Oh. r)24, is clearly of opinion, that the ques- 
 tion is, whether the testator has selected 
 any part of his estates, which it was his 
 wiU should be first applied; or whether the 
 charge is only to subject his estates to the 
 payment of his debts: which otherwise per- 
 haps could not be applicable to them. That 
 will not malce the devised estates applicable 
 in the distribution before those descended. 
 Then taking this case for my guide, I am 
 only to consider which is the case here: 
 whether it is a general charge, or part is 
 selected and appropriated to the debts; and 
 the words are so emphatical as fully to con- 
 vey the principles that will guide the de- 
 cision; especially when we consider the na- 
 tm-e of this property, which is situated in 
 the West Indies; and is hable to all his 
 debts. Independently of any will of his. But 
 even if it was an English estate, which is 
 not liable to all debts, even in that case I 
 should have thought, that a provision of 
 
 this sort, appropriating the rents and profits 
 first to the payment of his debts, is a specific 
 ■gift, which must be first applied. I cannot 
 considered this as being a general charge 
 for the purpose only of preventing any oi 
 •his debts remaining unpaid; for the law of 
 the country where they lie had sufliciently 
 provided for that; therefore if it is to have 
 any effect, it must be to appropriate this 
 fund, and for no other pm'pose. If so, tlie 
 question is, whether, according to the prin- 
 ciples laid down in Donne v. Lewis, the- 
 plaintiffs have a right to call upon the 
 heir to whom the estate purchased, after 
 the date of the will, nas* descended, to ap- 
 ply that estate first to the debts; and 1 
 am of opinion, the heir cannot be called up- 
 on to contribute, till that fund, so appropri- 
 ated, not merely to take care that all the 
 debts shall be paid, but for the particular 
 purpose of the appropriation, has been ex- 
 hausted. The heir cannot avail herself of 
 this, except by being reimbm-sed out of the 
 rents and profits of this trust fund. She 
 cannot postpone the creditors. That was the 
 case of Lingard v. Earl of Derby, 1 Brown, 
 Ch. 311. The testator may arrange between 
 his heir and devisee; but not so as to take 
 away from the creditor a fund he has a right 
 to come upon. But if creditors are not con- 
 cerned, the plaintiffs have no right to call 
 upon the heir; and the money must be paid 
 to her; and the supplemental bill must be 
 dismissed. 
 
 601 
 
Case No. 225 
 
 TUKNEK V. COX. 
 
 (§ 158 
 
 TUli^'ER et al. v. COX et al. 
 
 (8 Moore, P. C. 288.) 
 
 Privy Council. April 13 and 14, 1853. 
 
 Appeal from court of chancery of the 
 island of Barbadoes. 
 
 The appellants, in this case, were the as- 
 signees of the estate and effects of Higgin- 
 son and Deane, merchants and copartnei-s 
 trading in Liverpool, imder the firm of 
 Messrs. Barton, Irlam and Higginsou, and 
 in Barbadoes, under the firm of Messrs. 
 Higginson, Deane and Stott. The appeal 
 was brought from an order »of the court, 
 dated the 20th of November, 1851, made in 
 a creditor's suit, instituted in Barbadoes, 
 by the appellants as such assignees, on be- 
 half of themselves and the other creditors 
 ■of William Sharp, late of that island, 
 Against the respondents, Cox and others; by 
 vs^hich order certain exceptions taken by the 
 appellants to the master's report upon the 
 priority of Sharp's debts were overruled. 
 
 The suit was brought under these cir- 
 cumstances: Sharp in his lifetime executed 
 a bond to John Tapin, late of the island, 
 ■deceased, dated the 29th of March, 1825, for 
 securing the sum of £1,500 currency, which 
 bond remained due at the death of Tapin, 
 who died in the lifetime of Sharp, having 
 by his will bequeathed his residuary estate 
 to certain persons, and appointed Sharp ex- 
 ecutor, who proved the will, and acted as 
 such executor. ShaiiJ being indebted to 
 Higginson & Deane, for money lent by them 
 to him, to secure the payment of part of his 
 debt, and interest thereon; on the 28th of 
 December, 1843, confessed a judgment to 
 them on a declaration filed in the court of 
 common pleas for Barbadoes, for the sum 
 of £5,000 sterling, with interest at £5 per 
 ■cent, from the 18th of December, 1843, 
 on which execution issued on the 28th of 
 December, 184.3. Being fm'ther indebted to 
 Higginson & Deane, Sharp, on the 4th of 
 May, 1844, confessed a subsequent judgment 
 to them on a declaration filed in the same 
 court, for a fm-ther sum of £5,000, with 
 Interest at the rate of £5 per cent., from the 
 4th of May, 1844, on which judgment exe- 
 cution issued on the 4th of May, 1844. He 
 was also largely indebted to them for money 
 lent, and for goods sold by them to him 
 for the supplies of his estate, and for money 
 paid by them on his account. Sharp was 
 also indebted to the West India Bank upon 
 a bond, dated the 14th of November, 1845, 
 whereby the respondent, together with Cox 
 and George Sharp, became bound to the 
 bank in the penal sum of 26,000 dollars for 
 securing the several sums of money therein 
 mentioned. 
 
 Sharp died on the 9th of May, 1846, seised 
 of certain plantations in the island, called 
 
 •Olaybury" and "Brewsters," with the 
 appurtenances and the stock and effects 
 thereon, and entitled to personal estate, 
 having made his will, dated the 23rd of 
 602 
 
 October, 1845, by which, after bequeathing 
 certain legacies and annuities, he devised 
 his house at Claybm-y, with its oflaces, gar- 
 dens and pleasm-e grounds, and his sugar- 
 work, plantation and lands adjoining, in 
 the island of Barbadoes, with the appm-te- 
 nances and the live and dead stock thereon, 
 and in general, every article, matter and 
 thing, including all the produce of the plan- 
 tation at the time of his decease, and the 
 several chattels in his will described, and 
 every removable article, except silver and 
 plated articles, monies and securities for 
 money about his mansion-house at the liipe 
 of his decease, unto and to the use of his 
 son, George Sharp, and his son-in-law, Cox, 
 their heirs, executors, administrators and as- 
 signs, subject to the payment of such of 
 his debts and legacies as should not be paid 
 and hquidated by the means and in the man- 
 ner thereinafter mentioned, upon trust, so 
 long as one of his four single daiighters, 
 Sarah Sharp, Henrietta Sharp, Elizabeth 
 Clarke Sharp and Wilhelmina Sharp, should 
 live and be unmarried, to permit and suffer 
 such of them as should so remain unmarried, 
 to reside in and occupy the mansion-house, 
 etc., free of rent, and to have the use of 
 his chattels therein mentioned; and he 
 thereby empowered his trustees, as long as 
 any of his daughters should be unmarried, 
 to cultivate and manage his plantation; and 
 to apply the annual produce of the estate; 
 first, in payment of the costs incurred in the 
 trusts as therein mentioned; secondly, in 
 keeping down the interest, and gradually 
 liquidating such of his debts and legacies as 
 should not be paid off and discharged by 
 the means thereinafter provided for the pay- 
 ment thereof; and afterwards, upon certain 
 trusts therein mentioned, with powers of sale 
 and investment, for the benefit of fhe testa- 
 tor's foTU- daughters. And he further author- 
 ized the trustee or trustees, for the time be- 
 ing, of his will, if any of his debts or legacies 
 left unpaid by the means thereinafter pro- 
 vided for payment thereof, should be called 
 for at a time when they should be unable 
 to rdeet the payment thereof, to borrow so 
 much money as would enable them to pay 
 off and satisfy the same, and to charge 
 his plantation called "Claybury," and the 
 lands, buildings and appurtenances thereto 
 belonging, with the payment thereof; and 
 he directed, authorised and empowered his 
 executors and executrixes thereinafter nam- 
 ed, or any or either of them who should 
 qualify to that his will, as soon as conven- 
 ient after his death, to sell and dispose of 
 his plantation called "Brewsters," in the 
 island, with the lands, buildings and appur- 
 tenances thereto; and also a piece or parcel 
 of land situate in the parish of Christ 
 Church, and to execute conveyances there- 
 of and give receipts for the purchase-money 
 thereof as therein mentioned; and such pur- 
 chase-money when received, together with 
 all debts which might be due to him at the 
 
.§ 158) 
 
 TUliKER V. COX. 
 
 Case No. 225 
 
 time of his deatli, save and except tlie debt 
 due to him from Cox, which he bequeathed 
 upon certain trusts, and all other property 
 ■of which he might die possessed, not there- 
 inbefore mentioned, he directed to be paid 
 and applied by his said executors and exec- 
 utrixes, qualified as aforesaid, in paymwit 
 ■of the debts due from him at the time of his 
 death, and the legacies thereinbefore be- 
 queathed; and all such debts and legacies as 
 shoiild not be paid by the sale of his plan- 
 tation "Brewsters," the piece or parcel of 
 land and other effects and ijroperty as afore- 
 said, he thereby charged on his plantation 
 called "Claybury," with the lauds, buildings 
 and appm'tenances thereto belonging. And 
 when the plantation called "Claybury" 
 should be sold, under the proyisions contain- 
 ed in his will, he directed the chattels there- 
 in mentioned to be sold, and the proceeds 
 thereof to be equally divided amongst his 
 daughters, Sarah, Henrietta, Elizabeth i 
 'Clarke and Wilhelmina, or such and so many 1 
 of them as should be living. And he direct- i 
 ■ed that the crops of the plantations "Brew- 
 sters" and "Claybury," until the same should 
 be sold, should be shipped and consigned 
 to the house of Messrs. Barton, Irlam & 
 Higginson, of Liverpool, until the debt due 
 from him to them should be paid off and dis- 
 charged. And the rest, residue and remain- 
 ■der of his estate and property, real, personal 
 and mixed, there and elsewhere, whether in 
 possession, reversion, remainder or expect- 
 ancy, he gave, devised and bequeathed un- 
 to his sou George, his heii-s, executoi-s, ad- 
 ministrators and assigns. And he appointed 
 his sou George, his son-in-law, Cox, and his 
 fom- daughters, executors and executrixes of 
 his will, thereby declaring that the appoint- 
 ment of them as such executors and execu- 
 trixes should not discharge or exonerate 
 them from any debts or debt which should 
 t)e due to him from them or any or either 
 of them. 
 
 The testator died on the 9th of Hay, 1846, 
 leaving George Sharp, his son and heir, him 
 surviving. 
 
 George Sharp and Cox proved the will in 
 the island, and entered into possession of 
 the estates, and received the rents thereof. 
 
 On the 13th of November, 1847, a fiat in 
 bankruptcy was issued against Higginson & 
 Deane, and the appellant, Turner, was ap- 
 pointed official assignee, and the other ap- 
 pellants, Shand, Imrie, and the Bookers, 
 were chosen creditors' assignees of their 
 estate and effects. 
 
 The appellants, as such assignees, brought 
 an action in the island against Cox as ex- 
 ecutor (Sharp being then absent from the 
 island), for the recovery of the debt due to 
 the firm from William Sharp; and Cox con- 
 fessed judgment thereon, for the sum of 
 £10,075. 14s. 8d., with interest, from the 29th 
 of May, 1846, on which judgment a writ of 
 execution issued on the 21st of August, 1849. 
 On the same day, Cox, as such executor, con- 
 
 fessed judgment to the West India Bank, 
 in an action brought by them on the bond 
 for the sum of £2,708. 6s. 8d., interest and 
 costs, and execution issued on the same day. 
 The "Claybvu'y" and "Brewsters" planta- 
 tions were not sold by the executors. 
 
 On the 15th of January, 1850, the appellants, 
 Tm-ner, and the other assignees of Higgin- 
 son & Co., filed a a-editors' suit in the com't 
 of chancery of Barbadoes against Cox and 
 others, praying that an account might be 
 taken of the monies due to them as such as- 
 signees, for principal and interest, from the 
 estate of William Sharp, on the several 
 judgments, and also an open account of the 
 other debts owing by Sharp at the time of 
 his death; and also an account of his per- 
 sonal estate and effects received by his ex- 
 ecutors. Sharp and Cox; and also an ac- 
 count of the rents aud profits of the real 
 estate whereof he died seised, and which 
 had come to the hands of his executors; and 
 should it appear by the answer of Sharp 
 and Cox, that the personal estate of Sharp 
 would be insufficient to pay his debts, and 
 that it would be necessary to sell all the 
 real estate whereof he died seised, that the 
 plantations called "Brewsters" and "Clay- 
 bury," with the lands, buildings, stocks and 
 appurtenances thereof and thereto respective- 
 ly belonging, and the pieces or parcels of 
 land, in the parish of Christ Church, di- 
 rected by his will, might be sold, and all 
 other his real estate might be ordered and 
 adjudged and decreed to be sold by one of 
 the masters of that coiu-t, according to the 
 com-se and practice of the covirt, and that the 
 monies arising by such sale, aud all the per- 
 sonal estate of Sharp, might be applied in 
 a due course of administration, and thereout 
 that the plaintiffs might be paid what the 
 master should report to he due to them on 
 account of the several judgments and other 
 claims to the plaintiffs, as such assignees; 
 and that all proper parties might be directed 
 to join in the sales of the plantations and 
 real estates and premises. 
 
 The defendants by their answer, set forth 
 that the personal estate was insufficient. 
 The cause came on to be heard on the 14tli 
 of November, 1850, when It was, by con- 
 sent, ordered and decreed, that the master 
 should take the usual accounts and put up 
 for sale the two plantations "Claybury" and 
 "Brewsters." 
 
 On the 19th of December, 1850, the master 
 made his report, whereby he reported, that 
 in pm-suance of the decree he had caused 
 an inventory to be taken of each of the 
 sugar plantations called "Claybury" and 
 "Brewsters," with the lands, buildings, cat- 
 tle, quick and dead stock, plantation imple- 
 ments and utensils thereon, and thereto re- 
 spectively belonging, aud on the 28th of No- 
 vember, 1850, by the estimation on oath of 
 seven substantial and indifferent freehold- 
 ers of the Island, that he had valued "Clay- 
 bury" plantation, stock and premises, at 
 
 603 
 
Case No. 225 
 
 TUKXEK V. COX. 
 
 (§ 1-W 
 
 f] 8,928. 15s. 2(1. sterling, and that on the 
 24th of November, 1830, by the estimation 
 on oath of six substantial and indifferent 
 freeholders of the island, he had valued 
 "Brewsters" plantation, stock and premises, 
 at £9,837. 19s. lOMsd. sterling. That in the 
 course of the time limited for the sale of the 
 above-mentioned plantations called "Clay- 
 bury" and "Brewsters," Charles F. Lyall, 
 Esq., offered and bid the sum of £22,750 
 currency of the United Kingdom of Great 
 Britain and Ireland for "Claybm-y," and that 
 he had sold .to Lyall, the "Claybury" planta- 
 tion, stock and premises for £22,750 ster- 
 ling, and delivered possession thereof, and 
 that he had sold "Brewsters" plantation to 
 Nathaniel Riston, Esq., for £13,654 sterling, 
 and delivered possession thereof to him. 
 
 By the master's further report, dated the 
 25th of December, 1851, he reported, that in 
 obedience to the decree, he called before 
 him by public advertisement the proprietors 
 of the several demands and incumbrances 
 which were liens on and affected the planta- 
 tions, with their papers, vouchers, docu- 
 ments and witnesses, touching and concern- 
 ing the same; and having duly examined 
 the same, he proceeded to rank and class 
 the demands in their due coui-se of priority, 
 according to the nature thereof respectively, 
 which several debts, liens, and incumbrances 
 were set forth and shown in a schedule an- 
 nexed to his general report, and which he 
 prayed might be taken and considered as 
 part thereof. 
 
 Tlie schedule thus annexed set forth the 
 various debts and incumbrances according 
 to their legal and equitable priority, which 
 were general Hens affecting these two plan- 
 tations, and ranked and classed the debts 
 due from the estate; and, among others, the 
 master found that three sums were general 
 liens against the two plantations "Claybury" 
 and "Brewsters;" and due in manner and 
 order following:— First, to the residuary 
 legatees under the will of the late John 
 Tapin, a sum of £1,500 currency and in- 
 terest, or £1,938. 18s. lOd. sterling, due on 
 the bond, dated 29th March, 1825, granted 
 by the testator William Sharp to John 
 Tapin; Secondly, to the West India Bank, 
 a sum of £3,168. 15s. 4d. for principal and 
 interest, on a judgment and execution, dated 
 21st August, 1849, confessed by Cox, the 
 executor of the testator, upon a joint and 
 several bond of the testator and others, 
 dated 14th November, 1845, given to the 
 West India Bank to secure such principal 
 and interest; Thirdly, to the plaintiffs, as 
 assignees of Messrs. Higginson & Deane, a 
 sum of £11,075. lis. lOd. principal, interest 
 and costs, confessed by Cox as such execu- 
 tor, on the 21st of August, 1849, and on 
 which judgment execution had issued. 
 
 The appellants took two exceptions to this 
 report: First, that the master had ranked 
 the sum of £1,938. 18s. lOd. sterling, reported 
 by him to be due to the residuary legatees 
 604 
 
 of John Tapin, deceased, by virtue of the 
 bond dated the 29th of March, 1825, made 
 by Sharp, whereby Sharp bound himself, his. 
 heirs, executors, administrators and assigns, 
 to pay Tapin, his heirs, executors, adminis- 
 trators and assigns, the sum of £1,500 late 
 current money of the island, with legal in- 
 terest thereon from the day of the date of 
 the bond, imtil the whole and every part 
 thereof should be paid and satisfied as pay- 
 able out of the purchase-money arising from 
 the sale of the sugar-work plantations 
 "Claybury" and "Brewsters," prior and pre- 
 ferable to the sum of £11,075. lis. lOd. re- 
 ported to be due to the complainants under 
 the judgment confessed by Cox, executor of 
 Sharp, on the 21st of August, 1849, to the as- 
 signees of Higginson & Deane, bankrupts, on 
 which judgment execution issued on the 21st 
 of August, 1849; whereas the master ought to 
 have reported the sum of £11,075. lis. lOd., 
 due by virtue of the judgment and execution, 
 prior and preferable to the sum of £1,938. 
 ISs. lOd. stated in the master's report to be 
 due on the bond, if the purchase-money aris- 
 ing by the sale of the plantations be legal as- 
 sets, but if such purchase-money should be 
 deemed equitable assets, then the master 
 should have ranked the same equally with 
 the sum of £1,938. 18s. lOd.; and, as a fur- 
 ther exception, they alleged, that the bond 
 became released and extinguished, by reason 
 of Tapin having, by his will, appointed 
 Sharp an executor thereof, who, after the 
 decease of Tapin, qualified himself to act as 
 such executor. Secondly, that the master 
 had by his report ranked the sum of £3,168. 
 15s. 4d., reported to be due to the West India 
 Bank, under a judgment and execution, 
 dated the 21st of August, 1849, confessed by 
 Cox, as executor of Sharp, and stated in the 
 report to have been confessed upon the bond 
 dated the 14th of November, 1845, whereby 
 William Sharp, together with Cox, and one 
 George Sharp, became jointly and severally 
 bound to the West India Bank in the penal 
 sum of 26,000 dollars, for securing the prin- 
 cipal sums of money, interest and stocks,, 
 amounting to the sum of £3,168. 15s. 4d., be- 
 fore the sum of £11,075. lis. lOd., and under 
 the judgment confessed by Cox as executor 
 of Sharp to the complainants; whereas the 
 master ought to have reported the sum of 
 £11,075. lis. lOd. due under the judgment 
 and execution to the complainants, to rank 
 equally with the judgment and execution of 
 the West India Banl;;, the same bearing even 
 date with each other. 
 
 These exceptions came on for argument 
 before the com't of chancery in Barbadoes, 
 on the 20th of November, 1851, and after 
 hearing the arguments, the court reserved 
 its judgment. 
 
 Previously to giving judgment. It was re- 
 ferred to the master to ascertain whether 
 the executors of the testator appeared to 
 have known of the bond debt of Tapin. The 
 master reported that the amount of the bond 
 
158) 
 
 TURXEU V. COX. 
 
 Case No. 225 
 
 debt was entered up in the testator's books 
 as against himself, both principal and in- 
 terest; and moreover that the master had 
 the bond in his possession. 
 
 The court overruled both exceptions. 
 
 The material part of the judgment of the 
 court, overruling the exceptions, was in these 
 terms :^ 
 
 "The questions which are raised and have 
 been argued on these exceptions, are- 
 Fii-st, whether the purchase-money arising 
 from the sale of the estates is to be consid- 
 ered and administered by this court as legal 
 or equitable assets; and, secondly, whether 
 a specialty debt, a debt on bond against the 
 testator, his heirs and assigns, is, according 
 to the law of this colony, and the course of 
 administration of assets in the payment of 
 debts by this court, to be ranked below a 
 debt on simple contract against the testator 
 at the time of his death, because his execu- 
 tor has confessed to such simple contract 
 ci-editor a judgment for its amount. 
 
 "It Is admitted, that this is the first time 
 this question has been raised in this coiu't, 
 iind the question must be considered on gen- 
 eral principles and the law of the colony, as 
 wpU as it is afCectt-d by the terms of the de- 
 cree in the cause. 
 
 "It appears that the whole assets of tlie 
 testator consist, with the exception of some 
 plate, of the pm-chase-money for these es- 
 tates, and that having all come into the 
 hands of the master, the com-t is called on 
 to administer them instead of the executor, 
 to use the language of the bill, 'in a due 
 course of administration.' The decree, which 
 is by consent, directs the muster 'to take an 
 account of all the debts, demands, and in- 
 cumbrances which are hens on and affect 
 these plantations, and to rank and class them 
 in a due course of preference, according to 
 the legal priorities and natm-e thereof re- 
 spectively,' to ascertain which it authorizes 
 the master 'to examine, if necessary, the 
 parties and their witnesses, on oath, and 
 their vouchers and documents touching the 
 same.' This is the usual decree that has 
 been passed by this court for a series of 
 years m such cases; the practice under it 
 therefore, is well established. What then is 
 that due course of administration? It can- 
 not be denied that, in administering the .'is- 
 sets of a testator, this court has invariably 
 followed the rules of law, that it has al- 
 ways applied such assets exactly as the exe- 
 cutor by law is bound to do in liquidation of 
 a testator's debts; and that, in the master's 
 office, in ranking the debts of a deceased iira'- 
 ty, that officer has uniformly followed in 
 his reports the rules of priority, which, ac- 
 cording to their several degrees, the law has 
 established respecting the payment of debts. 
 Is there anything in the nature of this prop- 
 erty, which the court is called on to ad- 
 minister instead of the executor, whi<!h 
 ought to induce it to vary from these rules 
 of legal priority, which are not only in ac- 
 
 cordance with the law of the colony and the 
 estabU.shed practice of the coiu't, but in strict 
 obedience to the terms of the decree in the 
 cause? 
 
 "One of the grounds of exception talten to 
 the master's report has raised the question, 
 whether the purchase-money of these estates 
 is to be considered in the hands of the mas- 
 ter as legal or equitable assets; and as this 
 is the first time this doctrine has been mooted 
 in this com't. It is proper to inquire into its 
 origin and application to this colony. 
 
 "By the common law of England, it is true 
 that specialty creditors had no lien on the 
 lands of the debtors before judgment, and 
 simple contract creditors had no rights 
 against real estate; and before the statute of 
 fraudulent devises (3 & 4 W. & M. c. 14) 
 testators could by will disappoint their cred- 
 itors of all resort to their freehold estate, by 
 devising it away from them; and it was 
 from the exercise of this power that a neces- 
 sity for the Introduction of the doctrine of 
 equitable assets arose In the com-ts of the 
 mother counti-y. It has been well remarked 
 by a . recent commentator on English law, 
 that 'few defects in English jurisprudence 
 are more surprising, because more repugnant 
 to the natm-al sense of justice, than this ex- 
 emption of landed property from debts.' The 
 redress, however, though late, and effected 
 by slow degrees, is now complete under the 
 provisions of the imperial act of 3 & 4 Wm 
 ly. c. 104. 
 
 "But this was a principle of the common 
 law, which, if it ever had any operation in 
 this colony (and I can find no trace of it), 
 was soon set aside as wholly unsuited to its 
 condition and circumstances, and real es- 
 tate made liable for simple contract debts, 
 and this without at all interfering with the 
 rights of specialty creditors to enforce their 
 claims according to their legal priorities. 
 This is evident from the preamble of the 
 act of the colony. No. 189 (Hall's Laws Bar- 
 badoes, p. 340), in which it is stated, that 'all 
 lands have ever been looked upon as chattels 
 for the payment of debts, though what re- 
 mains afterwards do descend to the heir-at- 
 law, or go to the devisee, and on that prin- 
 ciple, or perhaps by virtue of some express 
 law not now to be found, it has been custom- 
 ary for marshals to extend estates both of 
 land and negroes, and to execute bills of sale 
 for the same in fee or otherwise, according 
 to the interests debtors had therein, although 
 executions did in truth issue on judgments 
 obtained only against executors or adminis- 
 trators; and whereas, proceedings of the like 
 nature have also, from time to time, been 
 had with regard to decrees obtained in the 
 court of chancery, as well as on the equity 
 side of the court of exchequer, and writs of 
 execution issuing thereon, all which have ap- 
 peared not very regular to such as are unac- 
 quainted with the laws, constitution, and 
 practice of this place. To the end that the law 
 may be explicit and certain for the future in 
 
 605 
 
Case Xo. 225 
 
 TUliNEK V. COX. 
 
 (§ 15& 
 
 these respects,' it enacts, 'that such proceed- 
 ings shall be deemed, and they are hereby 
 declared to be good, valid, and eflrectual, to 
 all intents and purposes whatsoever.' This 
 act was passed in 1745, and shows that the 
 land in this colony has ever been liable by 
 law for simple contract debts, as well as 
 specialty, being ever looked upon as chattels 
 for their payment, and this whether in courts 
 of equity or courts of law. The like neces- 
 sity, therefore, for the introduction of the 
 doctrine of equitable assets never existed in 
 this colony, for, by the practice of this 
 court, and by means of such suits as the 
 present, the claims of every class of credit- 
 ors have always been effectually secured ac- 
 cording to their legal rights and priorities 
 out of the purchase-money obtained by the 
 sale of real estate under its decrees. It is 
 not unimportant to remark, that this was 
 the law of the colony, irrespective of the 
 imperial act, 5 Geo. II. c. 7, § 4, which made 
 real estate in the colonies assets for the sat- 
 isfaction of debts, in like manner as estates 
 are by law in England liable to the satisfac- 
 tion of debts due by bond or other specialty. 
 The act of Geo. II. was passed in 1732, and 
 the law 189 (Hall's Laws Barbadoes, p. 340) 
 in 1745. Yet it not only does not refer to 
 the act of parliament, but it declares that 
 land has ever been looked on as chattels 
 for the payment of debts in this colony. 
 This principle is to be traced in all our local 
 laws and in the records of this court. In 
 an act passed in 1835, to regulate the sale of 
 lands attached under executions issuing out 
 of tlie several courts of common pleas, or the 
 court of exchequer, or the court of chancery, 
 'the provost-marshal is directed to execute 
 a conveyance of the property so sold, and 
 such conveyance shall be good and effectual 
 in the law for the purpose of conveying all 
 the estate, right, title and interest of the 
 debtor in and to the property so conveyed, 
 and that such property shall not be subject 
 to be redeemed by the debtor, or his heirs, 
 any law, usage or custom to the contrary 
 notwithstanding.' An equity of redemption, 
 or any other equitable or legal interest in 
 land, may be taken in execution under a writ 
 of execution. In fact, there never has ex- 
 isted in this colony any different rule for the 
 payment of debts in this court, and, in the 
 courts of common law, all are paid according 
 to legal priority, as ascertained in each court 
 respectively; and whenever parties, in order 
 to secure a priority for their debts, have in 
 the lifetime of the testator had the precau- 
 tion to place them on a basis of stronger ob- 
 ligation, it has been a rule in the administra- 
 tion of assets by this court, that all creditors 
 by specialty, in which the heir is bound (as 
 in this case), shall be paid the full amount 
 of their debts before any payment is made 
 to creditors by simple conti-act. This is now 
 the state of the English law, under the pro- 
 visions of 3 & 4 Wm. IV. c. 104; but all ac- 
 quainted with the practice of tliis court 
 600 
 
 know that it has always been the law of the- 
 coui't, its decrees and reports abundantly 
 prove it, and the same point as that now un- 
 der discussion was recently settled in the 
 cause of 'Hardy v. Holllnside,' and in which 
 a bond of the testator is ranked prior to a 
 debt secured by the judgment of the exec- 
 utor; and, on looking to the record, I find 
 the bin signed by the same counsel, and 
 endorsed with the names of the same solic- 
 itors as in the present suit, and in that case, 
 as in this, the assets in the hands of the mas- 
 ter were the purchase-money arising by the- 
 sale of a landed estate, under a decree of the 
 court, couched in the same terms as the de- 
 cree in this cause. It is also to be remarked 
 that assets are not made equitable in the 
 courts of the mother country by being recov- 
 erable in a court of equity, for that is the 
 case with trust estates, neither are they by 
 being capable of administration in such 
 courts alone; for instance, as in the case of 
 traders in satisfaction of their simple con- 
 tract creditors: but they must consist of 
 mere equitable property, such as is liable 
 only to the payment of debts by the help of 
 a com-t of equity; there is no property of a 
 debtor, equitable or legal, in this colony, 
 which may not be taken under our writs of 
 execution at common law, stUl less can it be 
 said that the property in the hands of the 
 master in this cause coiUd only be reached by 
 the aid of this court, the whole of it being 
 expressly liable at law, under the writ of 
 execution on the judgment confessed by the 
 executor to the assignees. Lastly, it is onlj 
 necessary to add, that such being the rights 
 of creditors by the law of the colony, it is 
 incompetent to any testator, by any disposi- 
 tion in his will, to deprive his creditors of 
 the right to resort to his real estate for pay- 
 ment of their debts strictly, according to- 
 their legal priorities, where his assets are 
 insufficient for the complete satisfaction of 
 all his debts. I cannot, therefore, consider 
 the purchase-money of these properties, in 
 the hands of the master, as equitable assets, 
 and say that they ought to be administered 
 as such by the court, contrary to the law 
 of the colony, the practice of the court, and 
 the terms of the decree assented to by the- 
 parties to the suit. 
 
 "The next question is, the priority to be 
 given in this court between a bond debt of 
 the testator, in which his heirs, executors, 
 administrators and assigns are bound by 
 himself, in his lifetime, and a judgment 
 confessed by his executor, on a simple con- 
 tract debt of the testator. It has been al- 
 ready stated that the court, in this suit, is 
 to administer the assets of the testator in 
 precisely the same way as the executor is 
 bound to do, that the debts respecting which 
 the questions of priority arise on the excep- 
 tions must be paid, if at all, or in part, out 
 of the purchase-money of the estates; that 
 that purchase-money is applicable to their- 
 payment 'in a due course of administration,'' 
 
§ 158) 
 
 TcriiNER V. COX. 
 
 Case No. 225 
 
 which the bill prays for, and it is admitted 
 that the executor had due notice of these 
 debts. The only point, therefore, is one of 
 legal priority. Now, the duty of the exec- 
 utor in this matter is quite clear; he is bound 
 to observe. In paying the debts of the tes- 
 tator, those rules of law as to priority, ac- 
 cording to the several degrees or nature of 
 the debts which have been established at 
 law, although he has a right among several 
 creditors of equal degree, to prefer and pay 
 any one before another, even though there 
 should remain nothing to satisfy that other. 
 Yet here his authority ends, he has no right 
 to pay the debts out of their legal rank; nay, 
 when sued for a debt of inferior degree he 
 is bound to resist its payment if there be 
 not property enough to satisfy the debt of 
 higher degree; and that if, having notice of 
 such debt of higher degree, he does not re- 
 sist, but pays it, he is personally liable for 
 the amount so paid to the injury of the prior 
 creditor. This is the principle which must 
 guide the court in this question. 
 
 "The executor, no doubt, has a right to 
 confess judgments for the debts of his tes- 
 tator, and they will bind the lands of the 
 testator, which are assets, as chattels in his 
 hands, for the payment of debts; these 
 judgments are, in truth, an admission of as- 
 sets by Cox, though it appears by his an- 
 swer that he knew the estate to be insolvent 
 when he confessed them; but the executor, 
 by giving judgments, cannot alter the rela- 
 tive positions in which the testator, at his 
 death, left the diffex-ent classes of his cred- 
 itors; his power of preference is limited to 
 creditors of the same class, and debts of 
 equal rank; he cannot, by thus acting, give 
 priority to junior creditors over those whose 
 debts are of higher degree, and whom he 
 was bound to pay before those to whom he 
 has confessed these judgments, because by 
 so doing he transgresses a rule of law, and 
 fails in his duty; and, therefore, it is, that 
 the judgments of an executor are held to be 
 of a different nature to those against a tes- 
 tator. All the old authorities concur in this, 
 and the point is well laid down in Williams 
 on Executors, who writes, that a judgment 
 against the executor himself is not to be 
 considered within the same class as those 
 which are recovered against the deceased, 
 it stands altogether on a different footing; 
 and, with respect to other creditors of the 
 deceased, a creditor who has obtained a 
 judgment against an executor has no prior- 
 ity, except with regard to debts of equal de- 
 gree with that upon which he has obtained 
 judgment, such being the order in which the 
 executor was bound to pay these debts; 
 such being the nature of the judgments con- 
 fessed by the executor, being, of ti'uth, of 
 little value, save as an admission of as- 
 sets as against himself, the land being pre- 
 viously liable, the court, in administering 
 these assets, can only permit these judg- 
 ments to have the effect which the executor 
 
 was legally authorized to give them; they 
 will rank above the debts of all those cred- 
 itors who, at the death of the testator, were- 
 creditors by simple contract, and to whom, 
 the executor has not confessed judgments. 
 To give them operation beyond this, would 
 be to invest the executor with an authority 
 which the law denies him, to the injury of 
 those creditors whose legal rights would be 
 thus taken from them. 
 
 •'But, assuming that such was the effect 
 of these judgments, wrongfully given by the- 
 executor, but on which no payment had been 
 made, and, as in this case, the whole of the 
 assets of the testator are brought into thi.T 
 com-t for administration, it cannot be sup- 
 posed that this court, in performing this- 
 duty, if it is discovered that the executor 
 had given a security which, whether inten- 
 tional or not, would, if sustained, deprive a 
 creditor of his just and legal priority, and if 
 paid, defraud him of his debt, would hold 
 itself bound by the wrongful or mistaken 
 act of the executor. Having a complete rem- 
 edy in its power, by being possessed of all 
 the assets of the testator, it would not 
 hesitate to apply it so as to do injustice to 
 no one, and wholly regardless of any in- 
 choate wrong of the executor, it would take 
 care that a due course of administration wa.s 
 carried out by the master. 
 
 "But, if this question were not so com- 
 pletely settled, as it appears to me, by known 
 principles and rules of law, as well as the 
 practice of the courts, I think the master 
 must, from the terms of the decree by con- 
 sent, have ranked the bond creditors before 
 those simple contract creditors of the testa- 
 tor who has executorial judgments for their 
 debts. Creditors take rank according to. 
 their respective classes as against the tes- 
 tator's assets, when administered in this 
 court, according as they stood at the time 
 of the death of the testator; the executor 
 has his course of duty laid down for him in 
 paying them, and this court has always en- 
 forced it in that order: but the master has 
 not been left, in this instance, to the general 
 rule of law; the decree expressly enjoins 
 him to i-ank and class these debts, liens, and 
 incumbrances, and to pay them out of the 
 purchase-money, 'according to their legal 
 priorities and nature thereof respectively,' 
 arming him with large power to discover 
 their nature and right of preference. It is 
 admitted that he has rightly described these 
 debts in his report, and, I am of opinion that 
 he has rightly classed and ranked the bond 
 debts of the testator above the simple con- 
 tract debts of the testator, although the ex- 
 ecutor has given judgments for those debts. 
 Nor do I think the fact of the executor hav- 
 ing given a judgment to the West India 
 Bank, for their bond debt, deprives them of 
 the priority they had at the time of the tes- 
 tator's death; for the court is bound to take 
 notice of, and the master enjoined by the 
 decree to inquire into, the nature of each 
 
 60T 
 
Case No. 225 
 
 TURNER D. COX. 
 
 (§ 158 
 
 debt, and to rank it accordingly, that is, ac- 
 ■cording to its priority at tlie time of tlie tes- 
 tator's deatli against his assets: it, there- 
 fore, is to be viewed as the bond debt of 
 the testator, and is properly ranked by the 
 master as stich. 
 
 "With respect to the bond debt of Tapin's 
 residuary legatees, which the exceptions 
 claim to be considered as released, by rea- 
 son of Sharp having been the qualified exec- 
 utor of Tapin, it is admitted that Sharp, in 
 his lifetime, always considered this a valid 
 debt against himself, and it appears to have 
 "been duly entered as such in his books, and 
 the interest annually debited against him, 
 which books the executor gave to the mas- 
 ter. It is quite true that, at law, the nom- 
 ination of a debtor as an executor, by his 
 ■creditor, is not merely a suspension of his 
 right at law to recover his debt, since he 
 <?annot sue himself, and that where a person- 
 ill action is once suspended by the volun- 
 tary act of the party entitled to it, the right 
 IS discharged, and thus the debt itself re- 
 leased. Yet, in this court, that rule is held 
 to operate only as between a testator and 
 his debtor; for, as between the debtor-exec- 
 utor and the creditors of the testator, it Is 
 an established rule in equity that the execu- 
 tor shall be accoimtable for the amount of 
 his debt as assets, and this not merely for 
 the payment of the testator's debts, but also 
 for his legatees, general or residuary, and 
 for his next of kin. This debt having been 
 silways dealt with by Sharp as existing 
 11 gainst himself, the exception, founded on 
 the rule of law, cannot prevail." 
 
 From this decision Turner and others, the 
 assignees of Higginson & Deane, appealed 
 to the queen in council. The respondents, 
 the residuary legatees of Tapin, and the 
 West India Bank, lodged separate cases. 
 
 Present: Lord Justice KNIGHT BRUCE, 
 Lord Justice TURNER, Right Hon. DR. 
 LUSHINGTON, Right Hon. SIR EDWARD 
 RYAN, and the Right Hon. SIR JOHN 
 PATTESON. 
 
 Mr. Rolt, Q. C, and Mr. Pryor, for appel- 
 lants. BIr. Lloyd, Q. 0., and Mr. Hislop 
 Glarke, for respondents. 
 
 DR. LUSHINGTON. Their lordships are 
 ■of opinion, that the respondents' counsel 
 need only confine themselves to the consti'uc- 
 tion of the statute 5 Geo. II. e. 7, § 4, as to 
 how far it was competent for a testator 
 seised of real estates in the West Indies, 
 by a disposition in his will, to make them 
 equitable assets. 
 
 The Lord Justice KNIGHT BRUCE. Three 
 points have been made in support of this 
 appeal, as to two of which their lordsJiips 
 did not think it necessary to hear the re- 
 spondents' counsel. Of those two, one was 
 the question to the effect of the will of an 
 obligee in a bond making the obligor his 
 executor; and it was contended that the ef- 
 608 
 
 feet, though not to destroy the debt, was to 
 take away priority fi'om it, as a specialty 
 debt. We are dealing with this question only 
 as an equitable question; the law of the 
 case, therefore, is, on the present occasion, 
 immaterial; and their lordships are of opin- 
 ion, that in equity, and, therefore, in sub- 
 stance, the debt remained exactly as it was, 
 exactly as it would have done, if a stranger 
 had been the executor. 
 
 The second point on which their lordships 
 did not think it necessary to hear the re- 
 spondents' counsel was, as to the lien said 
 to have been given to the house of Higgin- 
 son, Irlam & Co. for their debt, by the direc- 
 tion in the will, for the consignment of the 
 produce of an estate of the testator to them, 
 until their debt should be discharged. 
 
 Their lordships, who are of opinion that 
 this is a point open to reasonable argument, 
 do not give any judgment upon It. They 
 think it not necessary to say how they would 
 have dealt with it, if the question had been 
 properly before them, for they are of opinion 
 that it is not so. There is not the least trace 
 of the point having been taken before the 
 master, or before the court, and it would be 
 too much to say that, when the case is be- 
 fore the ultimate court of appeal, upon ex- 
 ceptions merelj', such a question, raised as 
 I have said, neitlier before the master nor 
 before the court, should be capable of being 
 brought into controversy. There is, there- 
 fore, no ground of appeal so far. 
 
 The remaining ground, that upon which 
 -the respondents' counsel were heard, was 
 the question of equitable assets, a question 
 dividing itself into two branches; one, 
 whether the effect of the statute of 5 Geo. 
 II. c. 7, was to render the real estate neces- 
 sarily applicable to the payment of all the 
 creditors equally; and, if not, whether it was 
 competent to a testator seised of such prop- 
 erty to direct an equal distribution among 
 his creditors, which, in etfect, the testator 
 has done in the present case, if he could. 
 
 Their lordships have considered this ques- 
 tion with all the attention due to it upon its 
 own account, and by reason of the manner 
 in which it seems to have struck a distin- 
 guished judge, now deceased, before whom 
 the point was brought, and who appears, ac- 
 cording to a printed report, to have given an 
 opinion upon it. I allude to the case of 
 Charlton v. Wright, 12 Sim. 274, with ref- 
 erence to which, however, I may say, that, 
 unless my memory misleads me, the argu- 
 ment there was not adversely conducted be- 
 fore that learned judge, who, probably, had 
 not the benefit of such a discussion as would 
 have taken place if the instructions, under 
 which the counsel proceeded, had been of an 
 adverse nature. 
 
 Their lordships are of opinion, that, ac- 
 cording to the true construction of the stat- 
 ute of Geo. II (taking both branches of the 
 fourth section togther), the legal priority of 
 debts was not intended to be interfered with; 
 
158) 
 
 TUKXEU V. COX. 
 
 Case No. 225 
 
 they think that making, declaratoi-ily or 
 otherwise, real estate in the West Indies 
 applicable to the payment of debts generally, 
 the legislature meant to do so in such a 
 way as to give or secure the same priority 
 to specialty creditors against real estate that 
 they always have had against personal es- 
 tate. 
 
 Much attention is, they consider, also due 
 to the fact (as their lordships believe his- 
 torically true), that no time has ever existed 
 in which, in the island of Barbadoes, real 
 estate was not assets applicable to the pay- 
 ment of simple contract debts. There can 
 be no doubt, that treating land there as mer- 
 cantile property, or as merely subsidiary to 
 trade, or in some other way which it is 
 unnecessary to investigate closely, those who 
 administered the law in that island from the 
 time when it became an English depend- 
 ency have uniformly so dealt with real es- 
 tate there. 
 
 Upon these grounds, whether taken to- 
 gether or separately, their lordships come to 
 the conclusion, that the real estate in this 
 case was by law applicable, as well as the 
 personal estate, to the payment of specialty 
 debts, in the first instance, and, therefore, 
 in preference to simple contract debts, and 
 ihat it was not competent to the testator to 
 disappoint the rule of law in that respect. 
 If it had been competent to a testator so to 
 disappoint the rule of law, this testator has 
 done so; but we are of opinion, I repeat, 
 
 ABB. WILLS — 39 
 
 that it was beyond his power to do so; that 
 it was as much beyond his power with re- 
 gard to the real estate, as, according to uni- 
 versal confession, it was with respect to his 
 personal estate. In that sense, his real es- 
 tate and his personal estate stood on the 
 same footing. 
 
 Their lordships are of opinion, therefore, 
 that the appeal is groundless, and must be 
 dismissed with costs. 
 
 The circumstance that there are separate 
 cases on the part of the respondents seemed, 
 in the first instance, to give rise to some 
 ground for remark; an explanation upon this 
 subject has been given at the bar, which 
 seems satisfactory, nor has the point been 
 pressed against the respondents on the part 
 of the appellants. Their lordships,- though 
 not relying on the latter reason, do not think 
 It right to recommend to her majesty to di- 
 rect any difference to be made with regard 
 to the costs on that ground. 
 
 Their lordships cannot, however, whoUy 
 part with the case without observing that, 
 as it seems to them, the petition of appeal 
 is open to a remark of the same description, 
 as to which there does not seem, at present, 
 to be any sufficient explanation. Had their 
 lordships not been of opinion that the appeal 
 must be dismissed with costs, it would prob- 
 ably have been necessary to make some re- 
 mark, and some provision, indeed, with re- 
 spect to that circumstance. 
 
 Appeal dismissed, with costs. 
 
 609 
 
Case Xo. 226 
 
 HINTOX V. PIXKE. 
 
 (§ 16a 
 
 HINTON V. PINKB. 
 
 (P. Wms. 539.) 
 
 Trinity Term, 1719. 
 
 Mrs. Jane Pinke by her will bequeathed 
 several pecuniary legacies, and (int. al.) gave 
 £1500 to her eldest son, in trust to lay it out 
 in a purchase of lands in fee, and to grant a 
 rent-charge of £50 per annum thereout to his 
 daughter the plaintiff Mary, the wife of the 
 plaintiff Hinton for her separate use. But 
 that if her said eldest son should refuse, or 
 neglect to lay out £1500 in a piurchase and 
 grant this rent-charge, then he to have but 
 £500 of the money, and the remaining £1000 
 to be laid out in the piu-chase of an annuity, 
 as far as it would go, for the separate use of 
 the daughter. 
 
 There being in this case a deficiency of as- 
 sets, the question was, whether the £1500 
 legacy, or at least the £50 a year annuity, 
 should abate in proportion? 
 
 Objected it should not; because it was 
 ordered to be laid out in land, and so conse- 
 quently to be taken as a devise of land, by 
 which means it was become a specific devise, 
 as had been decreed by Lord Cowper in the 
 case of Burridge v. Bradyl, 1 P. Wms. 127, 
 as it was land, it was of a different nature, 
 for it would descend to the heir, &c. 
 
 Mr. Vernon, contra. 
 
 LORD CHAXCKLLOR. I agree this £1500 
 legacy shall be taken as land, but what the 
 legacy is, or how much Is to be laid out in 
 land, is the question. 
 
 The legatee of the £1500 cannot say he has 
 
 010 
 
 a right to the £1500 in specie; Indeed if the 
 money in such a hand were devised, this 
 would be a specific legacy: A specific legacy 
 is, where by the assent of the executor the 
 property of the legacy would vest. 
 
 As there Is a benefit one way to a specific 
 legatee, I mean that he shall not contribute; 
 so there is a hazard the other way; foi- in- 
 stance, if siich specific legacy (being a lease) 
 be evicted, or (being goods) be lost or burnt, 
 or (being a debt) be lost by the insolvency of 
 the debtor, In all these cases such specific 
 legatee shall have no contribution from the 
 other legatees, and therefore shall pay no 
 contribution towards them. 
 
 Is it possible, supposing there were in the 
 present case £1500 of the testator's money 
 laid upon the table, that the plaintiff the lega- 
 tee should say, I have a right to this very 
 money in specie? If not, then it is no spe- 
 cific legacy. 
 
 But the will saying that in case of the son's 
 refusing or neglecting to make this purchase, 
 then he is to have but £500 of the £1500 leg- 
 acy, and the daughter to have the remain- 
 ing £1000 therefore I take the daughter to be 
 a legatee for £1000 which is to abate in pro- 
 portion, and as far as it will go, to be laid 
 out in an annuity for the plaintiff the daugh- 
 ter for her life and for her separate use. 
 
 And LORD CHANCELLOR said, that 
 though he could not come into the resolution 
 of Lord Cowper in the case of Burridge v. 
 Bradyl, yet if it were insisted on, he had 
 such a regard for the precedent as cited, 
 that he would see the decretal order, but 
 this not being insisted upon by the client, it 
 was decreed ut supra. 
 
§ 160) 
 
 ASHBURNER v. MACGUIRE. 
 
 Case No. 2:7 
 
 ASHBUENER v. MACGUIRE. 
 
 (2 Brown, Ch. 108.) 
 
 High Court of Chancery, Lincoln's-Inn-Hall. 
 July 18, 1786. 
 
 William Macguire, by his will, dated 27th 
 September, 1778, bequeathed (inter alia) as 
 follows: "Item. I bequeath to my sister 
 Jane Ashburner the interest arising from her 
 husband William Ashbm-ner's bond to me for 
 principal £3500 sterling, during her life, in- 
 dependent of her present, or any future hus- 
 band, amounting to £175 sterling, per an- 
 num. Item. I bequeath the principal of the 
 said bond, on the decease of my said sister 
 Jane Ashburner, to her four daughters, Eliz- 
 D.beth, Anne, Sarah, and Sophia, to be equal- 
 ly divided among them, or the survivors of 
 them. Item. I bequeath to Mr. William 
 Beawes, now at school with the Reverend 
 Ml'. Everett, at Felstead, In Essex, my cap- 
 ital stocls of £1000 in the India Company's 
 stock, with the dividend thereon arising, 
 which dividend is to pay for his education 
 and maintenance, till he Is qualified for holy 
 orders, and then the capital to be laid out in 
 the pvu'chase of a living for him in the 
 church. This stocii is to be continued or dis- 
 posed of at the discretion of my executors." 
 
 William Ashbmmer the debtor became a 
 bankrupt in February, 1780. In March the 
 testator proved this debt under the commis- 
 sion, and IGth May, 1781, received a divi- 
 dend thereon of 4s. 3d. in the pound. 
 
 The testator died 12th .July, 1781. Since 
 his death another dividend of 2s. 9d. has 
 been made to the bankrupt's creditors. 
 
 The testator, at the time of making his 
 will, was possessed of £1000 East-India 
 stock, and no more; but sold out the whole 
 of it before his death. Beawes, the legatee 
 of this stock, was a natural child of the tes- 
 tator. 
 
 The bill was brought by Mva. Ashburner, 
 her four daughters and Beawes, to have the 
 whole sum of £3500 secured for Mrs. Ash- 
 burner and her daughters, and to have such 
 part of it as is due out of the estate of Ash- 
 burner, the bankmpt, paid by his assignee, 
 and the residue paid by the personal estate 
 of the testator out of his general effects; 
 and that the personal representative of the 
 testator might also purchase, with the testa- 
 tor's personal estate, £1000 East-India stock, 
 and transfer the same for the use of the 
 plaintiff Beawes, as directed by the will. 
 The defendants, the administratrix, and re- 
 siduary legatees, insisted that the plaintiffs 
 the Ashbm-ners were entitled only to what 
 remained due to the testator at the time of 
 his death out of the estate of the bankrupt; 
 and that the legacy of East-India stock to 
 Beawes was adeemed, by testator's dispos- 
 ing of it in his life-time. 
 
 The cause was heard before THE LORD 
 OHAXCELLOR in 1784, and on 18th July, 
 17SG, he gave judgment. 
 
 After stating the case, he said the claim of 
 Mrs. Ashburner and her daugliters dependocl 
 on two questions. 
 
 1. Whether the bond was given as a spe^ 
 cific legacy; which depends on this, whether 
 the manner in which tlie sum is mentioned 
 turns it to a pecuniary legacy, or, as the 
 civilians call it, a demonstrative legacy; that 
 is, ii legacy in its nature a general legacy, 
 but where a particular fund is pointed out 
 to satisfy it; or whether it be what they call 
 a "legatum nominis," or "legatum debiti." 
 
 The '2d question is, whether the legacy, 
 supposing it to be specific, is adeemed, so far- 
 as the testator has received dividends in re- 
 spect of the debt (or, as the bankrupt's es- 
 tate may be insufficient to pay the residue). 
 I will take the 2d point first; for this is clear- 
 ly a specific legacy, accordiug to all the defi- 
 nitions. Wherever a debt, or a part of it 
 debt, is the subject bequeathed, it is Icgatuii* 
 nominis, or legatum debiti. I shall not stand 
 long upon that point. 
 
 With respect to the second point, as to the- 
 ademption, one maxim has gained so muck 
 ground as to have been a governing rule, and 
 has been recognized by Lord Talbot andl 
 Lord Hardwicke. It is, that where a debt 
 is bequeathed, and is afterwards extinguished 
 by the act, or concurrence, of the testator, 
 as, by demand or suit, the legacy is adeemed: 
 but, if paid in without suit or demand, there^ 
 is no intention to adeem; and there are in- 
 numerable authorities, that a legacy of a 
 debt is not adeemed by a voluntary payment- 
 Lord Camden, in Attorney General v. Par- 
 kin,^ expressly exploded this distinction; so* 
 did Lord Macclesfield. I am inclined to^ 
 adopt their opinions; because I can find no 
 ground for the distinction, but a. passage in 
 Swinb. Wills, § 20, p. 7 (6th Ed. p. 548). But 
 I doubt if the authors cited by him support 
 him. GrOdol. Leg. (4th Ed.) 434, referring tO' 
 the same books, states the rule differently;: 
 and so have other writers. By the civil lawv 
 it was competent for a man, after he ha(J 
 changed the subject-matter of a specific leg- 
 acy, to declare, by his conduct, that such a 
 change was no ademption. The case put is= 
 of a gold chain, which the testator, after 
 having bequeathed it by his will, converts; 
 into a cup; the legacy is not adeemed, bo- 
 cause the cup might be restored to its former 
 shape. 
 
 This has not been adopted by our law. 
 There is no ground to say, that, after a lega- 
 cy is extinguished, a man, by his conduct, 
 may revive it. It is contrary to common 
 sense; as appears by the instance put. The 
 gold chain may have been given as a legacy, 
 because it had been long in the testatoi's: 
 family. If it be afterwards converted into a 
 gold cup, the reason for giving It ceased. 
 
 There is an exception or limitation to thrs; 
 rule, where the testator alters the form, so 
 as to alter the specification of the subject; 
 
 ^2 Amb, 566. 
 
 611 
 
Case No. 227 
 
 ASHBURNER v. MACGUIRE. 
 
 (§ 160 
 
 as by making wool into clotla, or a piece of 
 cloth into a garment; there the legacy is 
 adeemed, because the subject-matter cannot 
 be restored to its former state. 
 
 This distinction is intelligible, in an action 
 where the thing sued for cannot be recovered 
 in specie; but it is not intelligible, when ap- 
 plied to a legacy, and, what is more material, 
 never was adopted by our law. As to lega- 
 cies of debts, according to the civil law 
 where the testator had sued for, but had not 
 recovered, or had got judgment, but not ex- 
 ecution, or had actually recovered the debt, 
 but had set the money apart for the legatee, 
 or, by words, declared he did not intend to 
 revolse the legacy in none of these cases was 
 the legacy adeemed. But there is no au- 
 thority in the civil law, for the distinction 
 between a debt being paid without demand, 
 and in consequence of a demand; besides, 
 although it can be ascertained where a suit 
 was commenced for a debt, it may be ex- 
 tremely difficult to ascertain whether any de- 
 mand has been made; if the testator receive 
 payment of the debt, the legacy is gone, im- 
 less it appears, from the manner of his dis- 
 posing of the money afterwards, that he 
 means to preserve it for the legatee. Lord 
 Camden, in Attorney General v. Parkin, 2 
 Amb. 566; held there was no distinction 
 between volimtary payment, and payment 
 on a demand, and thnt in both cases, the leg- 
 acy was extinguished; he added that where 
 the sum is specified in the bequest, it is a 
 general legacy, as I shall mention on the oth- 
 er point. But the distinction between, "1 
 bequeath the £500 due on bond from A. B.," 
 and "I bequeath the bond from A. B.," is 
 very slender; and so admitted to be by his 
 lordship. In the civil law, there is a distinc- 
 tion taken between a demonstrative legacy, 
 where the testator gives a general legacy, 
 but points out the fund to satisfy it, and a 
 taxative legacy, where he bequeaths a par- 
 ticular thing. 
 
 On the first point, I am clear this is a spe- 
 cific legacy. If the fortune of the testator 
 had failed, so as not to satisfy all the pe- 
 cuniary legacies, and the question had been 
 whether this legacy should have been con- 
 tributive to the pecuniary legacies, I believe 
 no man in the profession would have doubt- 
 ed. 
 
 AVhen the testator made his wiU, £3500 
 was due to him from William Ashburner, by 
 bond; he meant to relinquish that bond for 
 tlie benefit of tlie family; not by way of re- 
 lease to the husband, but by way of settle- 
 ment: and that this debt, whether it turned 
 out well or ill, should go to the family; the 
 interest to his sister for her life, the princi- 
 pal among her daughters. In this case, the 
 bequest must be considered as specific, al- 
 though the sum be mentioned: for I cannot 
 agree to Lord Camden's distinction. 
 
 A.S to the legacy of East-India stock to the 
 plaintiff Beawes, there is no case to coun- 
 tenance his claim. The testator says, "I give 
 
 612 
 
 my capital stock to," etc., the pronoun my 
 has been relied on, in many cases, in decid- 
 ing the legacy to be specific. 
 
 The testator, after making this will, sold 
 his stock, which made it as if it had never 
 existed; the legacy is adeemed, according 
 to all the cases. 
 
 In questions upon legacies of debts, the 
 cases have crept beyond the original princi- 
 ple, which was the distinction between dem- 
 onstrative and taxative legacies, and recourse 
 had been had to the animus adimendi, which 
 has nothing in common with the other prin- 
 ciple. 
 
 In Pettiward v. Pettiward, Finch, 152, the 
 court was of opinion, from aU the circum- 
 stances, that the testator intended to give a 
 legacy of £2000, although the debts, pointed 
 out for the payment of it, amounted only to 
 £1700, and therefore decreed the deficiency to 
 be made good out of the general assets. In 
 Pawlet's Case, T. Raym. 335, the legacy was 
 held to be a pm-e legacy, or a legacy in nu- 
 meratis, and not legatum nominis; and al- 
 though the debt was paid to the testator, the 
 legacy was decreed. In Lord Oastleton v. 
 Lord Fanshaw, 1 Eq. Gas. Abr. 298, a leg- 
 acy of a debt was held to be specific, al- 
 though the sum was named. 
 
 In Orme v. Smith, 1 Eq. Gas. Abr. 302, 
 Gilb. 82, and Vem. 681, the payment was 
 volimtary, and, from thence, was inferred 
 an argument, that there was no animus ad- 
 imendi. 
 
 In Earl of Thomond v. Earl of Suffolk, 1 
 P. Wms. 461, Lord Macclesfield disapproved 
 of the distinction between a debt recovered 
 by suit, or paid in voluntarily. A definition 
 of a specific legacy is given by Lord Maccles- 
 field in Hinton v. Pinke, 1 P. Wms. 539, and 
 the advantages and disadvantages as between 
 a specific and pecuniary legacy, are mention- 
 ed; and among other instances, that the 
 legatee of a debt, which is lost by the in- 
 solvency of the debtor, shall have no con- 
 tribution from the other legatees. 
 
 In Crockat v. Crockat, 2 P. Wms. 164, the 
 testator bequeathed the sum of £550 which 
 was then in Mr. Ellis's hands; the testator, 
 before making his will, had placed that sum 
 in the hands of Mr. Ellis, and had got his 
 note for it. He had also, before making his 
 will, drawn several bills on Ellis, which had 
 reduced the sum to £430. It was held, by 
 the master of the rolls, that, as the drafts 
 were all made before the will, and as the 
 note for the full sum was still standing out, 
 the testator should be considered as renoun- 
 cing the payments, and that he meant to give 
 the whole £550 as a legacy. I take it to be 
 clear, if a testator gives a cup which is in 
 pawn, it is a full gift, and the executor must 
 redeem. In Ford v. Fleming, 2 P. Wms. 
 469, and 1 Eq. Cas. Abr. 302, Lord King held, 
 that calling in the debt was no ademption, 
 supposing himself bound by the passage in 
 Swinburne and Pawlet's Case. How he 
 could be bound by those cases I cannot con- 
 
§ 160) 
 
 ASHBUKNER v. MACGUIKE. 
 
 Case No. 227 
 
 ceive. This case determines nothing. Law- 
 son V. Stitch, 1 AtJi. 507, was also cited: the 
 question arose on a deficiency. The case at 
 the rolls, cited 1 Atk. 508, is nonsense and 
 has often been denied. The question upon 
 the legacy of the stock has been determined 
 uniformly. Ashton v. Ashtoa, Cas. t. Talb. 1.52, 
 and 3 P. Wms. 384; Partridge v. Partridge, 
 Cas. t. Talb. 226; Pm-se v. Snaplin,lAtk. 414, 
 does not tell at all to the purpose. Avelyn 
 V. Ward, 1 Ves. Sr. 420, is contrary to many 
 cases determined before, and to one by Lord 
 Hardwicke himself, viz. Purse v. Snaplin, 
 supra. 
 
 Lord Camden, in Attorney General v. 
 Parkin, 2 Amb. 566, decided one point, and 
 left the other open. 
 Parkin, in his wiU, recites that he had 
 
 certain mortgages, to the amount of £ , 
 
 and bonds to the amount of £ . He 
 
 gives aU these, by such enumeration, to Pem- 
 broke College, Cambridge. To .his sisters, 
 who were next of kin, he gave annuities, 
 and declared they should have nothing more 
 under his wiU. Several sums were after- 
 wards called in, or paid before testator's 
 death. 
 
 Lord Camden determined, that the sisters 
 were not disappointed by the declaration 
 that they should have nothing but the annui- 
 ties: he held the legacy to the college was 
 
 not adeemed as to the sums paid In; upon 
 the ground that the sum was named, whicli 
 he at the same time admitted to be slight. 
 
 The testator certainly meant to give every- 
 thing to the college except the annuities; 
 but the bequest is in the strictest form of 
 a specific legacy. In Cartwright v. Cart- 
 wright, 18th July, 1775, before Lord Batli- 
 m'st. The bequest was, "I give £1400 for 
 which I have sold my estate this day, etc." 
 The testator afterwards received the whole 
 money, paid it to his banlier, and drew out 
 of his hands £1100 of that money. Lord 
 Bathurst held this to be a legacy of quantity, 
 and that the receiving was no ademption, on 
 the authority of Attorney General v. Parkin: 
 but it is questionable whether that case sup- 
 ports that determination. 
 
 In the case before me, the testator plainly 
 intended that his sister, Sarah Ashburner, 
 and her children, should have the debt owing 
 to him by her husband, secured as a pro- 
 vision for them. 
 
 My decree will be, that the bond be deliv- 
 ered up to the wife and children, that they 
 may receive the dividend not received by the 
 testator, and whatsoever may hereafter be 
 payable out of the bankrupt's estate in re- 
 spect of that debt. 
 
 The legacy to Beawes is gone, and the bill 
 must be wholly dismissed as to that claim. 
 
 613 
 
Case Ko. 218 
 
 PATTISON V. PATTISON. 
 
 (§ 160 
 
 rATTIS()N V. PATTISOX. 
 
 (1 Myhie & K. 12.) 
 
 Chauceiy Court. 1832. 
 
 James Pattison, by his will, dated in April, 
 1829, gave to Margaret Forbes, among other 
 bequests, the sum of £50 long annuities, 
 Mliich he described as purchased with £1000, 
 left him by the will of James Tillard, Esq. 
 
 The testator subsequently intermarried 
 with Margaret Forbes; and by a codicil to 
 !)is will, he confirmed to her, in addition to 
 what she was entitled to under the settle- 
 ment made upon her marriage, all and every 
 sum and sums of money, propertj', estate, 
 and effects given and bequeathed to her, un- 
 der the name of Margaret Forbes, by his 
 will. 
 
 At the time of making his will, the testa- 
 tor had, besides the £50 long annuities spe- 
 cifically bequeathed, other annuities of the 
 same description; and he afterwards ex- 
 clianged all his long annuities for new an- 
 
 nuitios; by which exchange he made a profit 
 by way of bonus, amounting to £100. The 
 term for which the new annuities were grant- 
 ed, was shorter than the term of the long 
 annuities by a quarter of a year. 
 
 Subsequently to this transaction, the tes- 
 tator made another codicil, by which he con- 
 firmed his will and former codicil. The 
 question in the cause was, whether the 
 widow was entitled to the £50 new annuities 
 purchased with the produce of the £50 long 
 annuities given to her by the will. 
 
 Mr. Bickersteth and Mr. Lloyd, for the 
 widow. Mr. Pemberton and Mr. Wigram, 
 contra. 
 
 THE MASTER OF THE ROLLS. The 
 
 law is settled that a legacy is adeemed if 
 the specific thing do not exist at the testa- 
 tor's death. The testator truly described the 
 specific gift when he made his will, and 
 there can be no relief upon the ground of 
 mistaken description. 
 
§ 160) 
 
 BUKNHAM V. CO.MFOUT. 
 
 Case No. 229 
 
 BURNHAM V. COMFORT. 
 (15 N. E. 710, lOS X. Y, 535.) 
 Court of Appeals of New York. Feb. 28, 1888. 
 Appeal from general term, supreme court, 
 fourth department. 
 
 Ejectment by Harriet Buruham against 
 Oliver T. Comfort. Judgment for plaintiff, 
 and defendant appeals. 
 
 Gabriel L. Smith, for appellant. J. A. 
 Reynolds, for respondent. 
 
 GRAY, J. The appellant contends tliat a 
 ■devise of real nronertv to the respondent was 
 satisfied by the payment to her in the tes- 
 tator's (her father's) life-time of a sum of 
 money, and for which she gave a writing in 
 the following form: ' liuceived of Oliver 
 Comfort five hundred dollars, which monev I 
 receive as my part of mv father's estate 
 up to this tim e^and all such other property 
 as he may accummate up to his dec ease. 
 In witness whereof I have hereunto sub- 
 sci-ibed my name. Dated Southport, May 
 14, 1864," and signed "Harriet Burnham, 
 in presence of Lawrence Lain." By testa- 
 tor's will made prior to that date, he had de- 
 vised to his brother certain lands for life, 
 and after his death to this daughter. His 
 residuary estate testator gave to his son 
 Oliver, this appellant. Testator died some 
 15 years after the receipt was taken from 
 his daughter, and there is no evidence of any 
 revocation or alteration of his will, or of any 
 part thereof, having been made by other 
 will, or codicil or instrument executed with 
 the formalities of a will. It was found as a. 
 fact below, and it is conceded here, that 
 this paym ent by testa tor to h is daugh ter 
 was intended to be in Ueu of the devisi ~to 
 her in the will, and that it was so accepte d 
 bg_ her at the time . Th e^ question is thu s 
 sq uarely presented whether a satisfaction of 
 thedgxiaain^ the will to the daughter was ef- 
 fected* If we should hold that such was the 
 efCect of the ti-ansaction between the father 
 and daughter, we must hold that it operated 
 as a revocation of the will to the extent of 
 the provisions affecting the daughter's es- 
 tate thereunder. 
 
 We think such a proposition to contravene 
 the spirit, if not the letter, of the provisions 
 of the Revised Statutes of this state ap- 
 plicable to wills, and that it lacks support 
 in principle as it does in authority. _Therule 
 of adem pli on is predicable " f ipfrapies of 
 personal estate, and is not applicable to d ez. 
 Vise s of rej lt^. Story, Eq. Jur. § 1111; 2 
 tVniia5M7^?rs, (5th Am. Ed.) 1202; 1 Rop. 
 Leg. 365; Davys v. Boucher, 3 Young & C. 
 397; Langdon v. Astor's Ex'rs, 16 N. Y. 34. 
 Ademption is the extinction or satisfaction 
 of a legacy by some act of a testator, which 
 is equivalent to a revocation of the bequest, 
 or indicates the intention to revoke; and 
 the rule is applied where the testator is a 
 parent of the legatee, or stands in loco par- 
 ontis. The question of its application is 
 
 made to depend upon the declared or pre- 
 sumed intention of the donor. Langdon v. 
 Af3tor's Ex'rs, supra. The danger of cre- 
 ating an intention from the facts is ordi- 
 narily great enough to require in each case 
 that the mind of the court should be wholly 
 satisfied as to the meaning of the testator's 
 act. In the present case, had the' testa: 
 mentary gift been a legacy of personal prop^ 
 erty, we should say that no dnnht mniri ov- 
 ist as to what was intended by testatOT_at 
 the time of the transaction." "We see "no rea- 
 son, however, for the application of any such 
 rule to devises of real property. During a 
 testator's life-time his will is of course in- 
 operative and ineffectual, and only upon his 
 death does it have any legal operation. Xhe- 
 wi-iting whjph tPstj^.tpT- tnnk -frriTn ^ jg daugh - 
 ter was not an agreement in an^ gp^iao i^inri- 
 ing upon him, nor was it one which enured 
 to appellant's benefit Appellant was no 
 party to it, and no consideration moved from 
 him from its execution. The question is not 
 such as would arise by reason of a ti-ansac- 
 tion between the respondent as the legatee 
 and appellant as the residuary legatee, by 
 which she had transferred or released to 
 him, her interest under her father's will in 
 due form. After the writing had been de- 
 livered, the daughter may have been pre- 
 cluded from asserting her right to recogni- 
 tion in her father's will, but the father was 
 at liberty either to give legal eflleet to tlie 
 transaction by changing his will, and re- 
 voking the provisions in his daughter's fa- 
 vor, or to reconsider any previously exist- 
 ing intention of altering his provision for 
 her. Although he survived the transaction 
 15 yeai-s, he did not change his will, and 
 the presumption of a subsequent change of 
 intention on his part from any motive may 
 be entertained without doing any violence 
 to our ideas of strict justice. 
 
 But a deeper principle underlies the con- 
 sideration of this question in the effect to 
 be given to our statutes governing the mak- 
 ing of wills. A specific devise of real prop- 
 erty may be revoked by alteration or aliena- 
 tion of the estate during testator's life, (Liv- 
 ingston V. Livingston, 3 Johns. Ch. 154; ilc- 
 Naughton v. McNaughton, 34 N. Y. 201;^ 
 but we fail to see any other mode of effect - 
 ii ig such _ revocation without running cou n- 
 ter ^ to those provisions of th p Rtn^'"^^"' -whielj 
 declare what acts shall re voke or alter a 
 will in wi-iting , (3 Rev. St. Banks' 7th Ed. 
 pp. 2286-2288.) Those provisions do not con- 
 template a revocation or alteration of any 
 part of a will or of any previous devise, ex- 
 cept by some other will in writing, or some 
 writing of the testator declaring such revo- 
 cation or alteration, and executed with the 
 same formalities with which a will is re- 
 quired to be executed. Section 42. And 
 they do contemplate .a revocation of a devise 
 of property previously devised by testator to 
 be operated, where the testator's interest in 
 such property has been altered, but not whol- 
 
 61-3 
 
Case No. 229 
 
 BURNHAM V. COMFORT. 
 
 (§ 160 
 
 ly divested, by some conveyance, settlement, 
 deed, or other act of the testator, only when 
 the Instrument by which the alteration of 
 testator's interest is made declares the inten- 
 tion that it shall operate as a revocation of 
 such previous devise, or its provisions are 
 wholly inconsistent with the terms and na- 
 ture Of such previous devise. Sections 47, 
 48. Thus the statute explicitly declares that 
 where a will is not wholly or in part re- 
 voked or altered by some other will or writ- 
 ing executed with like formalities , a previ- 
 ous devise of property is only to be deemed 
 revoked by some alteration of testator's in- 
 terest in the property devised, evidenced by 
 some conveyance or instrument either d e- 
 claring the alteration to be a revocation, or 
 wholly "inconsistent with the nature of the 
 previous devise. In these provisions I think 
 I see ample reason for refusing our sanc- 
 tion to the introduction of a doctrine which, 
 while if applicable at this day to legacies of 
 personal property, can work no especial prej- 
 udice to rights of property in such applica- 
 tion, yet in its application to devises of real 
 property might work . great mischief, and 
 tend to endanger the safety of titles which 
 depend for their security upon the conduit 
 of a testamentaiy devise. The reason for 
 refusing to extend the application of the 
 principle of satisfaction to devises of real 
 estate, which was assigned in the case of 
 Davys v. Boucher, 3 Young & C. 397, was 
 that to so extend it would repeal that pro- 
 
 616 
 
 vision of the statute of frauds which ap- 
 plies to the revocation of wills of real es- 
 tate. The sixth section of the English stat- 
 ute of frauds (29 Car. II. c. 3) provided that 
 devises in writing of lands, etc., should be 
 revocable by some other will, or codicil, or 
 writing declaring the same, or by destruc- 
 tion by testator's act; and that all such de- 
 vises should remain in force unless so de- 
 stroyed, or unless altered as mentioned by 
 will, codicil, or writing, witnessed in form. 
 The subsequent passage of chapter 26, 2 
 Vict., placed the revocation of wills of per- 
 sonalty upon the same footing as wills of 
 realty. 1 Williams, Ex'rs, 106, 107, 130, 131. 
 There is a sufficient likeness in the English 
 statute to ours to make the reasoning ap- 
 plicable here. A rule of law which has 
 heretofore been sanctioned and relied upon, 
 which is in unison with the spirit and with 
 the sense of our statute, and which offers 
 a safe rule of property, is rather to be fol- 
 lowed than to be departed from for rea- 
 sons moving from the circumstances of a 
 particular case. Reference to adjudged 
 cases in the courts of other states only 
 serves to confirm us in the views we have 
 expressed. Clark v. Jetton, 5 Sneed, 229; 
 Allen V. Allen, 13 S. C. 512; Weston v. John- 
 son, 48 Ind. 1. 
 
 The judgment should be affirmed. 
 
 All concur, except EARL and PECKHAM, . 
 JJ., dissenting. 
 
 Judgment affirmed. 
 
160) 
 
 TOMLINSON V. BURY. 
 
 Case No. 230' 
 
 TOMLINSON et al. v. BURY et al. 
 
 (14 N. E. 137, 145 Mass. 346.) 
 
 Supreme Judicial Court of Massachusetts. 
 Bristol. Nov. 23, 1887. 
 
 Bill in equity by Ann Tomlinson and her 
 children, Alice Abbott and William Shaws, 
 against Sai-ah Bui-y and others, (all the par- 
 ties being beneficiaries under the will of John 
 Tomlinson,) for contribution towards certain 
 legacies in said wiU of which the plaintiffs 
 claimed to have been deprived. Hearing in 
 the supreme judicial court, which ordered a 
 decree for the plaintiffs, and the defendants 
 appealed. The facts are stated in the opin- 
 ion. 
 
 J. M. Morton and A. J. Jennings, for plain- 
 tiffs. M. Reed, for defendants. 
 
 DEVENS, J. The parties litigant have 
 agreed, if the plaintiffs, whose legacy has 
 been appropriated to the claims of the 
 widow, are entitled to contribution from 
 other legatees, as to the amount to which 
 contribution shall be made, and also as to 
 the proportions in which it shall be distrib- 
 uted. This leaves open as the only question 
 for discussion, whether they are thus en- 
 titled. This depends apparently upon the in- 
 quiry whether the legacy to them is to be 
 held specific or general. The rule is well 
 settled that if a legacy is specific, and is ap- 
 propriated to the payment of debts, the leg- 
 atee (if the general or residuary legacies are 
 not sufficient) is entitled to contribution from 
 the holders of other specific legacies. Far- 
 num V. Bascom, 122 Mass, 282. Nor is there 
 any distinction between such a case and one 
 where a specific legacy is appropriated to 
 satisfy the lawful claims of the widow of 
 the testator, who has waived the provisions 
 of the wiU made in her favor. To the extent 
 to which a specific legacy has been taken by 
 the widow, the legatee would be entitled to 
 contribution, as much as if it had been taken 
 for the payment of debts. It is equally well 
 settled that if the claim for contribution of 
 the plaintiffs rested upon the fact that they 
 were residuary legatees, it could not be main- 
 tained. Nothing is given by a residuary 
 clause, except upon the condition that some- 
 thing remains after all paramount claims 
 uiwn the testator's estate are satisfied. Rich- 
 ardson V. Hall, 124 Mass. 233. 
 
 The gift to the plaintiffs by the fourth 
 clause of the testator's will was "all the mill 
 stock and bank stock remaining in my name 
 after the decease of my said wife." The 
 plaintiffs were also residuary legatees and 
 devisees under the sixth clause of the will, but 
 they make and could make no claim on that 
 account to any contribution. The words "bank 
 stock" are to be construed as describing the 
 testator's deposits in various savings banks. 
 
 He had no shares of the capital stock of any 
 bank, nor any other property in banking as- 
 sociations; and while the expression Is not 
 accurate, it must be held, under tliese cir- 
 cumstances, to describe these deposits. The- 
 question is not of importance in the case at 
 bar, as, if there is a specific legacy of the 
 "mill stock" which has been taken, the 
 plaintiff would be entitled to contribution 
 from the other legatees, and the amount has. 
 been agi-eed upon. Specific legacies are held 
 to contribute proportionally to the charges 
 on the estate, unless from the expressions of 
 the will, or from the position of the legatee, 
 as where he receives a legacy in lieu of a 
 debt or claim against the estate, it is seen 
 that such legacy is entitled to a preference, 
 Earnum v. Bascom, ubi supra. There Is a 
 presumption of intended equality between 
 general legatees as a class, and between 
 specific legatees as a class. A specific legacy- 
 is one which separates and distinguishes the 
 property bequeathed from the other property^ 
 of the testator, so that It can be identified. 
 It can only be satisfied by the thing be- 
 queathed; if that has no existence when the 
 bequest would otherwise become operative,, 
 the legacy has no effect. If the testator 
 subsequently parts with the property, even 
 if he exchanges it for other property, or pur- 
 chases other property with the proceeds, the 
 legatee has no claim on the estate for the 
 value of his legacy. The legacy is adeemed 
 by the act of the testator. Tried by these 
 tests, the legacy of the testator's "miU stock 
 and bank stock" must be held specific. It 
 could only be satisfied by this mill and bank 
 stock, and If the testator had disposed of 
 them, or of any part of them, to that extent 
 the legacy would have been adeemed. 
 
 Nor, in considering whether the legacy is- 
 specific. Is It Important that It was of such 
 of these stocks as remained after the de- 
 cease of his wife. He had bequeathed to her 
 "the use. Improvement, and income" of all 
 his estate, real and personal. He may have 
 anticipated that it might suffer some diminu- 
 tion during her lifej but whether he did so- 
 anticipate or not, the subject of the gift was 
 distinctly defined. 
 
 The defendants contend that this case- 
 comes within a class of cases where it has 
 been held that a gift of all a testator's per- 
 sonal estate, enumerating the various classes, 
 has been held to be general and not specific. 
 Hays V. Jackson, 6 Mass. 150; Howe v. Dart- 
 mouth, 7 Ves. 137; Brummel v. Prothero, 3 
 Ves. 114; Walker's Estate, 3 Rawle, 243r 
 Woodward's Estate, 31 Oal. 395. But the 
 reason why it has been thus held, Is that In 
 those cases no intent was shown to give a 
 distinct part of the estate, nor to separate 
 a portion thereof from the residue, but rather 
 an intent to give the whole. A bequest is- 
 not the less specific because It includes nu- 
 merous articles. A bequest of all the horses 
 
 61T 
 
Case No. 230 
 
 TOMLINSON V. BURY. 
 
 (§ 160 
 
 which the testator may own, of all liis plate, 
 of all the books in his library, or of all the 
 horses, cattle, and farming tools, on a par- 
 ticular farm or farms, is specific. Stephen- 
 son V. Dowson, 3 Beav. 342; Borden v. 
 
 4)18 
 
 Jenks, 140 Mass. 562, 5 N. E. G23. In the 
 case at bar the mill and bank stock were 
 by the bequest separated and distinguished 
 from the testator's other personal property. 
 Decree affirmed. 
 
§ 161) DUXCAN V. INIIABITAXTS OF TOWNSHIP OF FRAXKLIN. Case I^o. 231 
 
 DUNCAN V. INHABITANTS OF TOWN- 
 SHIP OF FRANKLIN. 
 
 (10 Atl. 540, 43 N. J. Bq. 143.) 
 
 Prerogative Court of New Jersey. May Term, 
 1887. 
 
 On appeal from order of orphans' court, 
 Kssex county; Kirkpatrick, Johnson, and 
 I.i>edwith, Judges. 
 
 James M. C. Mon-ow, for appellant. John 
 A. Miller, for appellees. 
 
 McGILL, Ordinary. Jane D. Poineer, by 
 ier will dated September 27, 1S75, and duly 
 proved by the executors named in it, before 
 the siu'rogate of Essex county, on April 6, 
 1882, after providing for the payment of her 
 debts and funeral expenses, appointed the 
 Appellant, Henry B. Duncan, and one Hi- 
 ram Van 'Winkle, executors of the will, and 
 bequeathed several legacies, and among 
 them one to the said Hemy B. Duncan, in 
 the following language: "Eighth. I give and 
 liequeath to Henry Benson Duncan, for his 
 services, (in assisting me at different times,) 
 the Slim of two thousand dollars." It ap- 
 peared by the executors' account, filed with 
 the surrogate on July 20, 1SS6, that tlie es- 
 tate was insufficient to pay all the legacies 
 in full, and also that the executors asked 
 allowance for the payment of the legacy to 
 Henry Benson Duncan by an item of dis- 
 charge, as follows: "Paid Henry B. Dun- 
 can legacy under the will, for services ren- 
 dered deceased in her life-time, as stated in 
 the will, ?2,000." To this item an exception 
 was filed. The executors did not ofCer proof 
 that services had been in fact rendered by 
 Mr. Duncan to the testatrix, for which an 
 obligation to pay existed at her death, but 
 relied entirely upon the will to justify their 
 payment. The exception was sustained by 
 the order of the orphans' court, and from 
 that order this appeal is taken. 
 
 The established rule is that where general 
 legatees are volunteers, taking of the tes- 
 tator's bounty, and there is nothing lu the 
 will to indicate that one shall be paid be- 
 fore another, their legacies must abate pro- 
 portionately. In case of a deficiency of as- 
 sets; but where a general legacy is sus- 
 
 tained by a \!iluabU' consideration, such as 
 the relinquishment of a debt or of a claim 
 of dower, and the right to the claim, con- 
 stituting the consideration, subsists at the 
 testator's death, tlio legatee is entitled to the 
 full iDayment of his legacy in preference to 
 otlier general legatees, who take merely of 
 the testator's bounty. Williams, Ex'rs, 136.5; 
 
 1 Rop. Leg. 432; Shouler, Ex'rs, § 490, note; 
 
 2 Redf. Wills, 452. 
 
 The burden of proving that a general leg- 
 acy is entitled to priority is upon him who 
 asserts it, and the proof must be clear, con- 
 clusive, and uneqiiivocal. Titus v. Titus, 26 
 N. J. Eq. 117; Shepherd v. Guernsey, 9 
 Paige, 357. 
 
 There is nothing in this bequest to Mr. 
 Duncan, or in the will, to indicate that the 
 testatrix intended that this bequest should 
 be paid before the other legacies. The ex- 
 pression, "for his services, (in assisting me 
 at different times,)" does not, standing alone, 
 import an indebtedness from her to the lega- 
 tee for which payment may be exacted by 
 process of law. For aught that a])pears to 
 the contrary, the services may have been 
 rendered gratuitously, and the legacy may 
 have been given in grateful recognition of 
 them. That the legacy was given because 
 of a sense of moral obligation, or as com- 
 pensation for services or other favors ren- 
 dered as a mere voluntary courtesy, will 
 not, if no legal obligation to pay exist at 
 the death of the testatrix, constitute such a 
 valuable consideration as to entitle the leg- 
 acy to priority in payment. Coppin v. Cop- 
 pin, 2 P. Wms. 291; Turner v. Martin, 7 Do 
 Gex, M. & G. 429; Towle v. Swasey, lOG 
 Mass. 100. 
 
 More than six years elapsed between the 
 making of the will and the death of the tes- 
 tatrix, yet no evidence was offered to show 
 that, if a legal indebtedness to Mr. Duncan 
 existed at the making of the will, its pay- 
 ment was enforceable when the testatrix 
 died. The burden of proof, which was up- 
 on the executors, was not discharged by the 
 simple production of the will. As the case 
 is presented, no error in the order is shown. 
 
 The order will therefore be affirmed, with 
 costs. 
 
 619 
 
Case No. 282 
 
 rOLLAHD V. POLLARB. 
 
 (§ 161 
 
 POLLARD V. rOLLARD. 
 
 (1 Allen, 490.) 
 
 (Supreme Judicial Court of Massachusetts. 
 Jan. Term, 1861. 
 
 Contract by Betsey Pollard against Luther 
 F. Pollard, executor of the will of Jacob Pol- 
 lard, to recover a legacy. The following 
 facts were agreed in the superior coiirt. 
 
 The win of the late Jacob Pollard was ad- 
 mitted to probate on the 30th of June, 1857, in 
 which he appointed the defendant as exec- 
 utor thereof, and directed him to convert 
 all his real estate and personal property into 
 money; and bequeathed to the plaintiff, 
 who was his widow, the sum of $3,800 in 
 lieu of dower, or any distributive share 
 in his estate, and on the express condition 
 that she should release aU her right and title 
 thereto; and made various other speciiic 
 bequests. The provisions of the will were 
 accepted by the plaintiff, but the estate prov- 
 ed insufficient to pay all the specific legacies 
 in full. Judgment was ordered for the full 
 amount of the legacy, and the defendant ap- 
 pealed. 
 
 N. St. J. Green, for plaintiff. H. A. John- 
 son, for defendant. 
 
 BIGELOW, C. J. The bequest in this case 
 to the widow of the testator is made in ex- 
 press terms in lieu of dower, and on condi- 
 tion that she relinquishes all her right and 
 title thereto. 
 
 A wife cannot be deprived of her dower 
 except by her own consent. Therefore, when 
 she accepts a provision in her husband's will 
 as a substitute for this existing legal right, the 
 
 620 
 
 law regards her as standing in the light of 
 a purchaser for a valuable consideration, 
 and entitled to receive the whole of the sum 
 given by the will, for which she has relin- 
 quished her life estate in one-third of the 
 testator's real estate, }n prefer op^*^ ^^" other 
 legatees, who, being only ob . iects of t he boun- 
 ty of the testator, and not having any lega l 
 clnlm ( jn his estate, are regarded as volun - 
 tgeis, and are not allowed to taKe untu the 
 widow has received the frill amount of the 
 bequest to her . If. therefore, the whole es - 
 tat^^ jg manffifiPTit to meet all the legacies in 
 the will, the widow is to be paid in full, and 
 the other les-agies must be abated proportion- 
 ably . Hubbard v. Hubbard, 6 Mete. (Mass.) 
 50; Williams, Ex'rs, 839. 
 
 We think the plaintiff is entitled to inter- 
 est on the sum given to her by the will from 
 the death of the testator . The case falls 
 within the principle of an exception to the 
 general rule that interest is not to be paid 
 on legacies until after the expiration of one 
 year from the ^eath of the testator. That 
 exception is that, where money is given by 
 will for the maintenance and support of a 
 minor child of the testator who has no other 
 means of support, interest is allowed from 
 the death of the testator; because in such 
 case the presumption is that the testator 
 intended that such support and maintenance 
 should commence immediately after his de- 
 cease. The same presumption exists whej i 
 a legacy is given to a widow in lien of dower, 
 and no other means of support, during th e 
 first year after the death of the testator . 
 are nrovided bv the will . Williamson y. Wil- 
 liamson, 6 Paige, 298, 3D5. 
 
 Judgment for the plaintiff, 
 
162) 
 
 WRIGHT V. HORNE. 
 
 Case No. 233 
 
 WRIGHT T. HORNE. 
 
 (8 Mod. 222.) 
 
 Court of Common Pleas. Hilary Term, 10 
 Geo. 1. 
 
 Ejectment. A testator devised "all that 
 my messuage in Edmonton to Francis Car- 
 ter and his heirs;" and "all the rent and 
 residue of my messuages, lands, tenements 
 and hereditaments in Edmonton, Enfleld, 
 and elsewhere, to John Lammas, his heirs 
 and assigns forever." 
 
 After the making of this will, Francis Car- 
 ter, the devisee, died in the life-time of the 
 testator, so that this became a lapsed legacy 
 by his death. 
 
 The sole question was. whether this latter 
 clause of the will would carry over the 
 lapsed legacy to John Lammas, the residu- 
 ary legatee, or whether it should descend to 
 the heir at law of the testator? 
 
 It was admitted that sueli a residuary 
 clause would carry over a lapsed legacy to 
 a residuary legatee from an executor; but 
 the doubt was, whether it would carry it 
 from the heir at law. 
 
 THE COURT were of different opinions, 
 there being no case in all the books which 
 comes near it, except that in Leonard's Re- 
 ports,^ which ought to be well considered. 
 
 The chief justice (KING) was of opinion 
 for the heir at law against the residuary 
 legatee; because these words, "all the rest 
 and residue of my lands to John Lammas," 
 were exclusive of the lands devised to Car- 
 ter; so that by his death in the life- time of 
 the testator, the legacy to him being lapsed, 
 those lands must descend to the heir at law. 
 
 Another judge was of a contrary opinion, 
 viz. that it seemed very clear to him, that 
 the testator intended to disinherit the heir. 
 
 The chief justice likewise agreed in this 
 opinion, as to the lands devised to Carter; 
 but that it does not follow that because he 
 had disinherited him of the lands in relation 
 to Carter, therefore he intended to disin- 
 herit him of those lands which he had de- 
 vised to Lammas; so that this matter is fit 
 to be considered. 
 
 And so it was adjom'ued. 
 
 '1 Leon. 251. 
 
 621 
 
Case No. 234 
 
 BAGWELL V. DRY. 
 
 (§§ 162, 166 
 
 rArnVETX V. DRY. 
 
 (1 P. AVms. 700.) 
 
 Trinity Term, 1721. 
 
 J. S. inter al' bequeathed the surplus of 
 his personal estate unto foiu- persons equal- 
 ly to be divided between them share and 
 sh.are alike, and made A. B. his executor 
 in trust. One of the four residuary lega- 
 tees died in the life of the testator, after 
 which the testator died; and the question 
 being, to whom the fourth part devised to 
 the residuary legatee (who died in the life 
 of the testator) should belong. 
 
 THE LORD CHANCELLOR, after time 
 tjiken to consider of it, did this day deliver- 
 •his opinion, that the testator having de- 
 vised his residuum in fourths, and one of 
 the residuary legatees dying in his life time, 
 the devise of that fourth pai-t became void, 
 and was as so much of the testator's es- 
 
 622 
 
 tate imdisposed of by the will; that it could 
 not go to the surviving residuary legatees, 
 because each of them had but a fourth de- 
 vised to them In common, and the death of 
 the fourth residuary legatee could not avail 
 them, as it would have done, had they been 
 all joint legatees, for then the share of the 
 legatee dying in the life of the testator, 
 would have gone to the stirivors. But here 
 the residuum being devised in common, it 
 was the same as if a fourth part had been 
 devised to each of the four, which could not 
 be increased by the death of any of them. 
 His lordship farther declared, that this 
 share could not go to the executor, he being 
 but a bare executor in trust, and consequent- 
 ly, that it must belong to the testator's next 
 of kin, according to the statute of distribu- 
 tion, as so much of the personals estate re- 
 maining undisposed of by the will, and that 
 as to this, the executor was a trustee for 
 such next of kin. 
 
§ 162) 
 
 IN RE LOXLEY'S ESTATE. 
 
 Case No. 235 
 
 In re LOXLEY'S ESTATE. 
 
 Appeal of MASSBY. 
 
 (88 Pa. St. 470.) 
 
 Supreme Coxirt of Pennsylvania. March 24, 
 1879. 
 
 Appeal from orphans' court, Philadelphia 
 county. 
 
 Before SHARS^YOOD, C. X, and MER- 
 GUR, GORDON, PAXSOX, WOODWARD, 
 TRUNKEY, and STERRETT, JJ. 
 
 Petition by the personal representatives 
 of two of the next of kin of Mary P. Lox- 
 ley, deceased, to review the auditor's report, 
 and the decree whereby a lapsed legacy was 
 awarded to the residuary legatees under the 
 will of said Loxley, and praying for its 
 award to Jhe next of kin. The following is 
 the opinion of Judge Pem-ose, of the coui-t 
 below: 
 
 "It is doubtless true that the prevalent 
 opinion among the legal profession in this 
 city was, that a legacy lapsing by reason of 
 the legatee's death in the lifetime of the tes- 
 tator, in the cases not othrrwise provided 
 for by statute, passed to the residuary lega- 
 tees. This was stated by Sir "\^'illiam 
 Grant, in Cambridge v. Rouse, 8 Veff: 25, as 
 having 'been long settled.' As to a lapsed 
 devise, the rule was supposed to bo difCer- 
 (^nt, the reason given being, that a will as to 
 realty spoke only from the time of making 
 it, and the residuary devisee could only take 
 what at that time was intended for him: 
 .Tones v. ilitchell, 1 Sim. & S. 294. 
 
 "This reason for the distinction was taken 
 away when the act of 1833, providing that 
 the real estate of a testator acquired after 
 making his will shall pass by a general de- 
 vise, in the absence of words indicating a 
 contrary intention, was enacted. 
 
 "There was another reason sometimes 
 given, namely: that the 'heir could not be 
 disinherited without an express devise or 
 necessary implication;' but as the right of 
 succession to personal property of an intes- 
 tate was conferred by the same act of as- 
 sembly, and in terms quite as absolute as 
 the right of inheritance to real estate, this 
 I'cason cannot be regarded as a very satis- 
 factory one, and accordingly in Patterson v. 
 Swallow, 44 Pa. St. 490, .Judge '\A'oodward 
 declares that the old distinction between 
 lapsed legacies and lapsed devises no longer 
 exists in Pennsylvania. 
 
 "That a devise to John Yard, Jr., which 
 lapsed by reason of his death, in the life- 
 time of the present testator, did not, under 
 the language of the residuary clause, pass 
 to the residuary devisees, was the very 
 point decided by the supreme court in the 
 recent case of Yard v. Murray, 86 Pa. St. 
 113. Why should there, in view of what 
 was declared In Patterson v. Swallow, su- 
 pra, be a different rule with regard to the 
 lapsed legacy? In both cases the right of 
 
 the parties claiming the residue rests upon 
 the same clause in the wIU. If insufficient 
 for one, why should it avail the other? 
 That it does not, is clearly within the rea- 
 soning of Chief Justice Agnew, In deliver- 
 ing the opinion of the court In Yard v. Mur- 
 ray. It is evident that the language of the 
 court was not used inadvertently or In tor- 
 getfulness of the distinction that had been 
 supposed to exist, because when the opinion 
 was prepared, the appeal in the case now 
 before us, which involved a question affect- 
 ing the right to the lapsed legacy, was also 
 under consideration, having been argued 
 during the same week, and the opinion hav- 
 ing been delivered on the same day. The 
 very point, therefore, could not fail to pre- 
 sent Itself to the mind of the com-t, although 
 the question argued before it had been, not 
 the distinction of the lapsed legacy, but 
 whether there had been a lapse at all. The 
 auditor, ho\\'ever, had discussi^d the ques- 
 tion of distinction, and after an elaborate 
 consideration of the authorities had made 
 distribution among the residuary legatees. 
 Xo one had excepted to his action in this^ 
 respect, and this com't had decreed distribu- 
 tion accordingly. The auditor's reasoning, 
 apd the authorities vsere therefore before the 
 supreme court. That they have failed to 
 convince, and that there was a very decided 
 opinion that the distribution, if made in con- 
 formity with the decree as It there stood, 
 would not be a proper one, appears from 
 the very significant manner in which atten- 
 tion is called to the point in the opinion af- 
 firming the decree. 'It Is proper before clos- 
 ing to say that we give no opinion whether 
 the lapsed legacy to John Yard, Jr., fell into 
 the residue. The parties representing that 
 question are not before us.' This Is what 
 was said in Yard's Appeal, 86 Pa. St. 129. 
 With the vast accumulation of business in 
 the supreme court, it is impossible to sup- 
 pose that this invitation: to further litigation 
 in an estate, which otherwise would have 
 been closed at once, would have been given, 
 had it not been the deliberate opinion of the 
 com't that injustice would otherwise be done. 
 The case will not rest upon our decision of it; 
 we prefer, therefore, to follow what we are 
 convinced was the view of the com-t of last 
 resort; if we are mistaken, our error will be 
 there con-ected. We now decide that the 
 legacy, which lapsed by reason of John 
 Yard's death, did not pass to the residuary 
 legatees, but that the parties entitled are the 
 next of kin of the testatrix, Mary P, Loxley. 
 
 "So much of the report of the auditor and 
 of the decree thereon as awards any portion 
 of the legacy, which lapsed by reason of the 
 death of John Yard, Jr., to the residuary leg- 
 atees, must, therefore, be revised and sel 
 aside, and the report recommitted to the ati 
 ditor for correction." 
 
 From this decree the residuary legatees ai> 
 peal. 
 
 62:i 
 
Case No. 235 
 
 m HE LOXLEY'S ESTATE. 
 
 (§ 162 
 
 Loiiis C. Massey, John A. Clark, Joseph B 
 Townsend, and George W. Biddle, for appel- 
 lants. E. L. Perkins, John G. Johnson, XJselma 
 -C. Smith, and E.Spencer Miller, for appellees. 
 
 Mr. Justice WOODWARD delivered the 
 opinion of the court. 
 
 In Pennsylvania, throughout its history as 
 a province and a state, the rules of the com- 
 mon law regarding the devolution of prop- 
 erty described in lapsed devises and bequests 
 liave been accepted as in full force. They 
 have been constantly applied and acted on 
 "by the courts and by members of the bar. 
 While there have been indications of a be- 
 lief in the minds of individual judges in some 
 recent cases that the act of the 8th of April, 
 1S33, has modified them, they have never 
 lieen departed from in any precedent of con- 
 trolling authority. Under these rules, real 
 ^■state, the devise of which had lapsed, has 
 been always held to descend to heirs-at-law, 
 and to form no part of a residuary estate cre- 
 ated by a testator's will, except where a spe- 
 cial intent to the contrary has been appar- 
 ent. This principle was taken for granted 
 in Allison v. Kurtz, 2 Watts, 185. It Is ti-ue 
 that the lapse in that case was of part of the 
 residue, but Judge Sergeant, in the opiniop. 
 did not advert to that distinction. On the 
 other hand, personal property, where a lega- 
 cy had lapsed, has with equal uniformity 
 Tjeen given to residuary legatees: Woolmer's 
 Estate, 3 Whart. 477; Nyce's Estate, ."5 Watts 
 «& S. 254. In Woolmer's Estate, Judge Ken- 
 nedy quoted the remark of Sir William 
 Grant, in Leake v. Robinson, 2 Mer. 392, that 
 "it must be a very special case, indeed, in 
 which there can be at once a residuary 
 clause and a partial intestacy." 
 
 Neither the integrity nor the authority of 
 these rules has been impaired by the excep- 
 tional cases that from time to time have 
 been decided. la Patterson v. Swallow, 44 
 Pa. St. 490, where residuary devisees were 
 held entitled to take land, the names of the 
 persons designed to be made particular devi- 
 sees had been omitted in the draft of the 
 will of the testatrix. Blanks left for the in- 
 sertion of the names had not been filled. It 
 was purely a void, and not a lapsed devise. 
 And in NefC's Appeal, 52 Pa. St. 326, where 
 both personal property and land were de- 
 cided to belong to the next of kin, the lapsed 
 devise and legacy had been of parts of the 
 residuary estate, and thus came within the 
 exception stated in Leake v. Robinson, of 
 "some part of the residue itself ill-given." 
 
 From some expressions in the opinion in 
 I'atterson v. Swallow, it is manifest that the 
 judge who delivered it believed that the act 
 of 1833 had destroyed the distinction be- 
 tween real and personal property, and that 
 land embraced in a lapsed devise should go 
 to residuary devisees. And from some ex- 
 pressions in the opinion in Yard v. Mui-ray, 
 Si! Pa. St. 113, it might be inferred that it 
 024 
 
 was the design of the court to declare not 
 only that the distinction was obliterated, but 
 that the result of the obliteration had been 
 to cast the real and personal estate alike up. 
 on the heirs-at-law. But in each of those 
 cases, the language employed in entering the 
 judgment was aside from any point involved 
 or ruled. 
 
 In the consideration of Yard v. Murray, 
 after the argument— and it was carefully and, 
 deliberately considered— there was hesitation 
 on the part of some members of the court to 
 affirm the judgment of the common pleas. 
 In the first place, it was thought that the 
 language of the residuary clause in Miss Lox- 
 ley's will was exceptionally comprehensive. 
 The gift was of "all the rest, residue and re- 
 mainder" of her "estate, real, personal and 
 mixed," of which she should "die geised, pos- 
 sessed or entitled to." The opinion of the 
 court upon the effect of the statute of wills 
 had been expressed emphatically and with- 
 out qualification in Patterson v. Swallow, 
 and there was an inclination to accept and 
 adopt that opinion, especially as no case of 
 binding force recognizing the contrary doc- 
 trine had been decided subsequently to the 
 enactment of the statute. And it was urged 
 that in-this state, where under almost all cir- 
 cumstances the same principles govern the 
 distribution of real and personal estates, sym- 
 metry would be given to the legal system by 
 establishing the rule that land, like personal 
 property, should go, in the event of lapse, 
 into the residuary estate. 
 
 There were, however, considerations whicli 
 were in the end controlling, to be taken into 
 account on the other side. The principles of 
 the common law had been rules of property 
 for generations before 1833, and during a pe- 
 riod of almost fifty years after the statute of 
 wills was passed, estates had been settled, 
 titles had been acquired and conveyed, and 
 counsel had advised and instructed clients 
 on the theory that they remained mles of 
 property still. The very paucity of prece- 
 dents was enough to prove the settled and 
 pervading professional opinion that the old 
 rules had been left unchanged. An act of as- 
 sembly would have only prospective opera- 
 tion, and would do no wrong. A departure 
 from the accepted theory of the law by a ju- 
 dicial decision would be fruitful of wide- 
 spread mischief. Besides, in order to reach 
 such a decision, the statutory words would 
 have to be strained. The tenth section of 
 the act of 1833 declared simply that real 
 estate acquired by a testator after making 
 his will should pass by a general devise. 
 Equivalent words had been so construed in 
 Massachusetts and Maine, as to work out 
 the result contended for in Patterson v. Swal- 
 low, while precisely the conti-ary view ol 
 the effect of such words had been taken by 
 the courts of New York. The English stat- 
 ute of wills had left nothing for construction. 
 By the third and twenty-fom-th sections, the 
 
§ 162) 
 
 m RE LOXLEY'S ESTATE. 
 
 Ciise ISTo. 235 
 
 svibstance of the tenth section of our act of 
 1833 was enacted, and the twenty-sixth sec- 
 tion declared in terms that a residuary clause 
 should include land described in lapsed and 
 void devises. Upon like grounds an aflarm- 
 ance of the judgment was finally agreed to 
 without dissent. 
 
 No issue is involved in this appeal except 
 that relating to the personal estate of the tes- 
 tatrix. The opinion of the orphans' com*t 
 stated the law with entire accuracy, and 
 their decree might safely be reversed for the 
 reasons contained in that opinion. But it 
 has been thought right that the unanimous 
 judgment of the members of this court on 
 this branch of the law of the commonwealth 
 
 ABB. "WILLS — 40 
 
 should be pronounced. It may be that it 
 would be wise to introduce the principle of 
 the twenty-sixth section of the English stat- 
 ute into our system. But in deciding Yard 
 v. Murray, it was felt that it could only be 
 introduced with safety by the action of the 
 legislature. 
 
 The decree of the orphans' court is re- 
 versed, and it is now adjudged and decreed 
 that the decree of that court, made on the 
 4th of November, 1876, be reinstated and re- 
 stored, with all the force and effect the sami,- 
 would have if no part of it had been at any 
 time annulled, subject, however, to the ex- 
 ception that the costs of this appeal be paid 
 out of the fund for distribution. 
 
 625 
 
Case Xo. 236 
 
 ROGERS V. HAND, 
 
 (§ 163 
 
 ROGERS et al. v. HAND et al. 
 (39 N. J. Eq. 270.) 
 Trerogative Court. Oct. Term, 1884. 
 Appeal from the decree of Cape May or- 
 phans' court. 
 
 Mr. D. J. Pancoast, for appellants. Mr. 
 W. E. Potter and Mr. P. L. Voorhees, for re- 
 spondents. 
 
 The Ordinary, (RUNYON.) The contro- 
 versy between the parties to this appeal is 
 as to the allowance to the respondents, ex- 
 ecutors of the late Edmond L. B. Wales, de- 
 ceased, in their account, of the amount of 
 $3,000, paid by them in compromise of a 
 claim made by Mrs. Eliza Adams against the 
 estate for services rendered by her as house- 
 keeper for the deceased for six years next 
 preceding his death; and also as to the 
 amount of commissions which should be al- 
 lowed to the respondents for settling the es- 
 tate. The testator died August 19th, 1882, 
 and the wiU was proved on the 30th of the 
 same month. The appellants insist that the 
 payment to Mrs. Adams ought not to have 
 been allowed, and that the allowance of 
 commissions is excessive, and they appeal 
 accordingly. 
 
 The claim of Mrs. Adams was put in on 
 oath before the expiration of the time lim- 
 ited by the order to limit creditors. It was 
 for $500 a year for six years immediately pre- 
 ceding the testator's death, and interest 
 thereon. Mrs. Adams had been the testa- 
 tor's housekeeper for from twenty to twen- 
 ty-five years before his death. He was a 
 widower for about the last forty-five years 
 of his life. The appellants insist that the 
 provision made for her by his will should 
 be held to be a satisfaction of all claim on 
 her part against his estate for services. By 
 the will, which was made in February, 1881, 
 he gives to her $1,000 absolutely, and the in- 
 terest of .$8,000 for life. By a previous pro- 
 vision therein, he directs that all his just 
 debts and funeral expenses be duly paid 
 and satisfied by his executors as soon after 
 his decease as it can be done conveniently. 
 There is no statement, nor any indication 
 whatever of any intention that the gift to 
 her shall be a satisfaction of any claim on 
 her part against the estate. The legacies 
 cannot be regarded as a satisfaction of the 
 claim in question. The following considera- 
 tions are apposite: The testator provides for 
 the payment of his just debts before giv- 
 ing the legacies. The amotint of the first- 
 mentioned legacy ($1,000) is less than the 
 amount of the debt; and as to the other, a 
 lesacy of interest cannot be regarded as a 
 satisfaction of a sum of money due absolute- 
 ly from the testator to the legatee. Part of 
 the debt was contracted after the will was 
 made. The will was made a year and a 
 half before the testator died. Mrs. Adams 
 occupied the position of a servant to him. 
 There is, In the will, no reference whatever 
 
 620 
 
 to her service; she is not even spoken of as 
 his housekeeper. The rule of equity that 
 where a debtor bequeaths to his creditor a 
 legacy simpliciter, equal to or exceeding the 
 amount of his debt, and of the same nature, 
 it is presumed, in the absence of any intima- 
 tion of a contrary intention, that the legacy 
 was meant as a satisfaction of the debt, is 
 not a satisfactory one. It would be far 
 more in accordance with the principles of 
 sound construction to hold that the legacy 
 was intended as a bounty, and not as a satis- 
 faction of Indebtedness, unless there appears 
 to be an intimation that it was intended as 
 payment, and not as a gift. But under the 
 rule, very slight circumstances are sufficient 
 to repel the presumption, and there are many 
 strong ones here. There is no substance in 
 the claim that the demand of Mrs. Adams 
 was satisfied by the gifts to her in the will. 
 
 The appellants further object to the allow- 
 ance of the claim on the ground that they, 
 being interested in the estate (they are resid- 
 uary legatees), notified the executors that 
 they were opposed to tlie payment of the 
 claim, and they insist that the executors hav- 
 ing settled it after such notification, without 
 its having been previously established by 
 suit, cannot lawfully obtain allowance for 
 it. It appears by the record that the appel- 
 lants did so object, and that one of the ex- 
 ecutors informed them that the executors did 
 not intend to pay the claim "unless all the 
 heirs agreed to it," and also that they had 
 notified Mrs. Adams that she must bring 
 suit. They did so notify her, but before the 
 time expired within which by law she was 
 required under the notice to bring suit, and 
 as she was about to commence an action, 
 they, by the advice of counsel (and on their 
 own judgment also), compromised the claim 
 by agreeing to pay $3,000, without interest. 
 There is no reason to doubt that they acted 
 in good faitli, and under the conviction that 
 the claim would be established if it were per- 
 mitted to go to suit. Nor is there anything 
 in the case to show that they erred in judg- 
 ment. There is no evidence that the claim 
 was not an entirely just one. Opportunity 
 was afforded in the proceedings under the 
 exceptions, to produce evidence that the 
 claim could not have been established, or 
 ought not to have been paid or compromised 
 (Vreeland v. Schoonmaker, 16 N. J. Eq. 512), 
 but no evidence on that head was adduced. 
 The appellants appear to have relied wholly 
 on the fact that thoy objected to the pay- 
 ment, and that one of them, in two of his let- 
 ters to one of the executors, spoke (as they 
 allege) of evidence which could be produced 
 in opposition to the claim. But all that is 
 said on that score, in one of the letters, is 
 the expression of a belief that the testator 
 had fully compensated Mrs. Adams for her 
 services, and a threat of the production of 
 evidence if suit were brought, which would 
 cause scandal; nothing is said in reference 
 to any evidence to support a legitimate de- 
 
163) 
 
 BOGEUS V. HAND. 
 
 Case >fo. 236 
 
 fence, or impeach the validity of. the demand. 
 What was said in the other was, that they 
 (the appellants) were in possession of evi- 
 dence which they would produce at the prop- 
 er time, if necessary, which they were satis- 
 fied would have a "damaging effect" on the 
 ■claim. In all this there was nothing be- 
 yond a threat of scandal, intended to operate 
 not as a defence to the claim, but in ter- 
 Torem, as a deterrent to prevent suit. While 
 executors should in such cases act circum- 
 spectly, and not disi-egard the protest of per- 
 sons interested in the estate against the pay- 
 ment of disputed claims, they are not bound 
 under such a protest to refuse to pay and 
 submit to suit, if they are satisfied that re- 
 sistance will be unavailing, ^^"here they act 
 in good faith, those who would impeach 
 their conduct must show fraud or mistake, 
 or that they have acted without authority, 
 or contrary to law. They may compromise 
 •a lawsuit, may buy the peace of the estate, 
 and extinguish even doubtful claims against 
 it, provided they act discreetly and in good 
 faith. Meeker v. Vanderveer, 1.5 N. J. Law, 
 392. Mr. Shoemaker, one of the executors, 
 in his testimony, says that they found no 
 •evidence of any payments to Mrs. Adams, 
 nor anything which referred to any pay- 
 ments ^vhatever to her; that the executor 
 made inquiries as to whether she could sus- 
 tain her claim before they settled it, and that 
 after those inquiries they came to the con- 
 clusion that if they paid the claim under the 
 ■compromise it would cost the estate less than 
 to stand a lawsuit. Mr. Hand, the other ex- 
 ecutor, says that after he had given the no- 
 tice to Mrs. Adams to bring suit, he made 
 fuller inquiry into the claim, and the rela- 
 tions between her and the testator. He also 
 •says that he found no evidi>nce of any pay- 
 ment to her for her services as houselveeper 
 for any part of the long period of time that 
 she had lived with him, and that he had 
 heard she had a claim before it was present- 
 ed to the executors. He further says that 
 Tie was "under the impression tliat the ex- 
 ecutors had a right, in their discretion, to 
 pay a Just claim whether the heirs said so 
 or not, and hence he did not particularly in- 
 quire of them about the claim or the other 
 claims." The case of Ritter's Appeal, 23 Pa. 
 St. 95, was much relied upon by the appel- 
 lants' counsel as holding that an executor 
 who pays a claim against the estate, after 
 notice from any person interested in the es- 
 tate that such person desires that it be de- 
 fended, and be not paid until after judgment. 
 
 will not be allowed the claim in his account 
 if he pays it without judgment. Of course 
 that case is not authority here. It will be 
 found, however, tliat it does not declare the 
 doctrine imputed. It merely holds that 
 where an executor or administrator pays a 
 claim against an estate to which there may 
 be a valid defence, and those interested, ad- 
 versely, have stood by and permitted him to 
 do so without notice to him of their wish 
 that he should defend it, they cannot be 
 heard to object to the allowance of the claim 
 in his account. There the defence, which 
 the appellants insisted that the administrator 
 should have made, was the bar of the stat- 
 ute of limitations. As already remarked, 
 there is no evidence that the claim in con- 
 troversy here was not a just debt. On the 
 contrary, the reasonable conclusion would 
 be, from the admitted fact of the rendition 
 of the services by the claimant and the want 
 of any evidence of payment, that the claim 
 was just and ought to have been paid. 
 
 Now, as to the commissions. The ac- 
 count, although it purports by its express 
 terms not to be final, is nevertheless final as 
 to all the matters contained therein. The 
 receipts amounted to $289,621.2iy2, and the 
 disbursements, including commissions, to 
 $224,695.67, leaving a balance of $64,925.54 
 to be disposed of according to the will. Of 
 the receipts, about $61,000 were from gov- 
 ernment bonds and interest thereon, about 
 $75,000 cash inventoried, and about $30,000 
 from good stocks and dividends thereon, and 
 railroad bonds and interest— in all, about 
 $169,000. The whole amount of receipts was, 
 as above stated, $289,621.21%. The balance 
 over the $166,581.05 was from bonds and 
 mortgages, promissory notes, sales of per- 
 sonal property, sales of land, etc., etc. The 
 whole time occupied in the transaction of the 
 business was about one year. About $20,- 
 000 in mortgages were transferred to resid- 
 uary legatees on account of their legacies. 
 The allowance of three and a half per cent, 
 does not appear to me to be excessive. The 
 executors have had charge of a large amount 
 of money; have been compelled to bring and 
 conduct suits; have been compelled to make 
 investigations so as to ascertain what land, 
 exactly, the testator owned, and have had to 
 sell land under the power given to them by 
 the will, etc., etc. For their pains, trouble 
 and risk in the matter, I think the allowance 
 made by the orphans' court reasonable and 
 
 proper. 
 The decree will be affirmed, with costs. 
 
 627 
 
Case No. 237 
 
 SILK V. PRIME. 
 
 (§ 164 
 
 SILK et al. v. PRIME et al. 
 
 (1 Brown, Ch. 138, note.) 
 
 1782. 
 
 Christopher Thompson by his will, dated 
 27th December, 1759, gave specific parts of 
 his personal estate to his wife and two 
 daughters; and, after reciting that he had, 
 previously to his intermarriage with, his 
 wife, settled the reversion of his farm-house, 
 and lands, and premises in Outnewton, in 
 the county of York, after the decease of his 
 mother, to the use of his wife for life, in 
 case she should survive him, with remain- 
 ders over, and that the mother was then liv- 
 ing; therefore he gave to his said wife, in 
 case of his death in the lifetime of his moth- 
 er, an annuity of £60 during the mother's 
 life, to be paid by his executors, and he 
 charged his messuages and premises where- 
 in he, dwelt, and his messuage, staith, and 
 premises in the High street in Kingston up- 
 on Hull, and all his estate there, with the 
 payment thereof; and declared that, on the 
 death of his mother, the annuity should 
 cease. And he devised all his lands and 
 premises purchased by him in Outnewton to 
 his mother, her heirs, and assigns; and he 
 ordered and directed that all his just debts 
 should be paid; and in case his personal es- 
 tate should, on account of any losses, be 
 rendered not sufficient to pay all his just 
 debts, he charged all his messuages and 
 premises and real estate whatever (except 
 the lands in Outnewton, settled on his mar- 
 riage and the lands devised to his mother) 
 with the payment of all his just debts. And 
 in case his personal estate (save what he 
 had thereby given to his wife and daugh- 
 ters) should fall short in payment of all 
 his just debts, he directed that the defend- 
 ants Prime and Moxon, or the survivor of 
 them or his heirs, should sell all his mes- 
 suages and estate in Kingston upon Hull, 
 charged as aforesaid, with his messuages 
 in Wincomely, and his close in Beverley, and 
 all other his real estate (except as aforesaid), 
 or such other part or parts thereof as should, 
 with his personal estate, be sufficient to pay 
 all his just debts, and to apply the money 
 arising therefrom, together with the money 
 arising from his personal estate, for the pay- 
 ment of all his just debts. He gave all the 
 surplus money, arising as well from the sale 
 of all or any part of his real estate, as also 
 from his personal estate, to his wife and two 
 daughters, and devised to them all his es- 
 tate which should not be sold for payment 
 of his debts, and appointed Prime and Mox- 
 on executors. 
 
 This cause was first heard at the rolls, 16 
 & 17 June, 1766, when the late Sir Thomas 
 Sewell determined that the assets arising 
 from the sale of the estate were to be con- 
 sidered as equitable assets, upon the ground, 
 that the devise was to the executors and 
 their heirs, observing, at the same time, that 
 
 62S 
 
 it would be otherwise if the devise had been 
 merely to the executors. He said, by this 
 devise, the descent was broken at law, and 
 the only special circumstance was, that of 
 the trustees and their heirs taking the real 
 together with the personal estate. From 
 this decree there was an appeal to the lord 
 chancellor, who on the 8tb of March, 17GS, 
 affirmed the same, and delivered a very 
 elaborate argument, to the following pur- 
 port, of which the reporter has been so for- 
 tunate as to obtain a very accurate note. 
 
 Lord Chancellor CAMDEN. When this 
 appeal was argued, I thought the question 
 depended so much upon the general doc- 
 trine of legal and equitable assets, that I de- 
 sired time to look into the cases, to see what 
 general rules had been established upon that 
 subject; for all doubtful points are decided 
 by an application of general principles to the 
 particular case. 
 
 Where trustees for the payment of debts 
 are made executors, the printed cases had 
 ruled the assets to be legal. This caused 
 me to doubt, because I had always under- 
 stood the doctrine of this court was the re- 
 verse, and, therefore, I thought it necessary 
 to look back to the origin of this business, 
 and to fix the principle. 
 
 Where an estate is devised to trustees for 
 the payment of debts generally, it has long 
 been the constant practice of the com-t to 
 pay all the debts pari passu. This is de- 
 clared in the case of Wolestoncroft v. Long, 
 1 Ch. Cas. 32. And the same is again laid 
 down in 2 Ch. Cas. 54, (Anon.) 
 
 As the money, in these cases, never reaches 
 the hands of the executors, no action layr 
 and the creditor was obliged to come into 
 this court for satisfaction. 
 
 Whereupon, equity not being tied down 
 to the rule of law, introduced a new metliod 
 of administration. And seeing the testator 
 had made no distinction between the differ- 
 ence of securities given for the payment of 
 debts, the court conceived that the testator 
 meant to do equal justice to all his creditors. 
 
 Nor did the court, in this respect, do any 
 injury to specialty creditors. For, though 
 real estates are assets, at law, to pay such 
 debts, yet the creditor might be defeated 
 by the debtor's will, or the heir's alienation. 
 So that where the will had set aside the 
 law, equity would have forgot its own prin- 
 ciple of equality, by giving a priority, which 
 the testator had not done;— all debts being 
 equal in conscience. 
 
 Upon this ground, the statute of fraudu- 
 lent devises allowed devises for the payment 
 of debts to be good, though the act annulled 
 every other devise to the prejudice of spe- 
 cialty creditors. 
 
 This I consider as a parliamentary appro- 
 bation of equitable assets, which, standing 
 as it does, upon such ground of justice, the 
 testator's intention, the rule of equality, and 
 the sanction of the legislature, ought al- 
 
§ 164) 
 
 SILK V. PKIME. 
 
 Case No. 237 
 
 ■ways to preponderate, in a doubtful case, 
 and Sir Josepli Jekyl's opinion in Cox's Case. 
 3 P. Wms. 344, should be always remem- 
 bered, who said, he would always do his ut- 
 most to extend the rule. 
 
 Where the trustee is not executor, the case 
 is clear. 
 
 Where the land is charged with the debts, 
 it is clear likewise. 
 
 But, where the testator put the trust into 
 the executor's hands, there was a considera- 
 ble doubt, how to distinguish the capacities 
 of the two characters; as executor, the as- 
 sets were legal; as trustee, they were equi- 
 table. 
 
 The law had determined, that where land 
 was devised to be sold by executors, or de- 
 vised to executors to be sold, in both cases 
 the assets were legal. In this respect, the 
 law made no difference between the inter- 
 est and the power, and that is evident. Any 
 person who will peruse Co. Lift. 112b, 113a, 
 with any attention, will be of that opinion, 
 and all the cases in Ro. Abr. under that head 
 speak the same language. 
 
 These kind of devises had been so fre- 
 quently at law, and the determination so uni- 
 form, that they seemed, for a time, to have 
 overpowered the courts of equity; for I find 
 that almost all the printed cases followed 
 this rule, and made the assets legal. 
 
 So is Girling v. Lee, 1 Vern. 63; Anon. 2 
 Vern. 133; Greaves v. Powell, 2 Vern. 249. 
 Two strong cases in Finch, Prec. (Cutterback 
 V. Smith, 127; Bickham v. Freeman, 136;) 
 Lord Masham v. Harding, Bunb. 339. 
 
 Lord King, in the case of Walker v. Meager, 
 2 P. Wms. 550, Mos. 204, which I don't well 
 understand, avoided the point 
 
 These authorities did perplex me exceed- 
 ingly; for I had aU my time taken it for 
 granted that the rule here was otherwise. 
 
 At last I find this note in Mr. Tracy's book, 
 Lewin v. Okeley, 2 Atk. 50: 
 
 July 26th, 1740. "Devise to trustees for 
 payment of debts and the same persons are 
 made executors. — The assets, said the court, 
 shall notwithstanding, be equitable and not 
 legal. There are cases in Vernon, where it 
 is held, that debts in such cases shall be 
 paid in a course of administration, but the 
 modern resolutions have been otherwise." 
 
 I sent to the register's book^ and find, that 
 was the very point of the cause; and, upon 
 the master's report. Lord Hardwicke deter- 
 mined that the simple contract, and the spe- 
 cialty debts should be paid pari passu. 
 
 The words of the will were: Testator de- 
 vised his estate to A. and B. and their heirs, 
 in trust to sell the same, and, thereout, in 
 the first place, to pay his debts, and appoint- 
 ed them executors. 
 
 And now, I think the old rule is over- 
 thrown, and that wherever the land Itself is 
 devised to the same persons who are ex- 
 ecutors, the assets will be equitable. 1 Story, 
 Eq. Jut. c. 9, § 552, and cases cited; 2 Wil- 
 
 liams, Ex'rs, pt. 4, bk. 1, c. 1, pp. 1035, 1036. 
 Executors and trustees stand alike in such 
 cases as to equitable assets. Bogert v. Her- 
 tell, 4 Hill, 501, 502. 
 
 And I hold the ease to be the same when- 
 ever the land is devised to them, or to them, 
 and their heirs, for in both cases they are 
 equitable trustees. The descent is broke, 
 and the specialty creditors have lost their 
 fund. 
 
 And I can hardly now suggest a case where 
 the assets would be legal, but where the ex- 
 ecutor has a naked power to sell qua ex- 
 ecutor. 
 
 What have I said shows that this court has 
 justly a partiality and predilection to equi- 
 table assets, which ought to turn the scale, 
 in all cases where the matter hangs in equal 
 balance. 
 
 This disquisition is, therefore, not proper, 
 though it must be admitted, that, in the pres- 
 ent case the trustees and executors have no 
 more than a naked power; for nothing is 
 devised to them, and, therefore, the doctrine 
 I have laid down is not directly applicable 
 to this case; but two rules are obtained. 
 
 1. It is a good rule of expounding wills, to 
 make them speak in favor of equitable assets, 
 if it may be done. 
 
 2. That if you can lodge the assets in the 
 hands of the trustees, the court will never 
 put them in the hands of the executors; and 
 when one person is invested with both char- 
 acters, the trustee shall be preferred. 
 
 To come to the case. 
 
 1. The testator's will does most emphatic- 
 ally direct the payment of all his just debts. 
 
 I can never think, that a man who does, re- 
 peatedly, and so anxiously provide for the 
 payment of all, could ever mean, by legal 
 preference, to pay some, and leave the rest 
 unpaid. 
 
 2. The power is lodged not in executors 
 solely, but in them or their heirs; and it is 
 clear that the monies could never be assets 
 in the hands of the executor's heir, nor could 
 the creditor ever maintain his action against 
 such heir. 
 
 Nor is it any answer to this objection, to 
 say, that the word heir is inserted by mis- 
 take, or to be resembled to those cases where 
 personal estate is given to a man and his 
 heirs, or real estate to a man and his ex- 
 ecutors. 
 
 In those cases, the subject matter of the 
 devise points out the p'roper succession, and 
 the literal will is nonsense. 
 
 But here, the word heirs has a useful and 
 proper meaning, for it converts the executor 
 into a trustee, and makes the assets equi- 
 table, which is a favorite point in this court. 
 
 But it has been said, that the testator has, 
 here, united both funds together in the hands 
 of his trustees and executors, and therefore 
 both must be one consolidated fund, to fol- 
 low the same course of administration. 
 
 For the words are, that they shall apply 
 
 629 
 
Case jSTo. 237 
 
 SILK «. PRIME. 
 
 (§ 164 
 
 money arising from the real estate, together 
 with the monies arising from his personal 
 estate, to pay, &c. 
 
 The answer is, tliat in all cases, where the 
 trustees and executor are one person, the 
 funds are consolidated in the same manner— 
 for, out of both, he is to pay all his debts. 
 
 But the course of administration is differ- 
 ent, and by that very method, it is, that the 
 covirt is enabled to pay all the debts without 
 distinction, as far as the assets will go, and, 
 by marshalling both kinds of assets, makes 
 them amicably combine to answer the fuU 
 intention of the testator. 
 
 3. This is the case of a charge upon the 
 lands. 
 
 They are devised to the testator's wife and 
 daughters subject to this charge. 
 
 In this respect it is a trust, and no more 
 
 630 
 
 to be sold than what is necessary for this. 
 purpose. 
 
 The power, then, to sell is merely conse- 
 QLuentlal, the testator having named the ex- 
 ecutor for this pm-pose. The court would 
 have compelled the devisees. Whoever sells^ 
 to satisfy a charge must be a trustee, be- 
 cause a charge is a trust. 
 
 To make this still clearer. 
 
 The rents and profits in the hands of the 
 devisees are assets before the sale. Legal 
 assets they cannot be, for the executors have 
 no' right to receive them. They must there- 
 fore be equitable assets. 
 
 And, if it be once admitted that any one 
 part of the land is equitable assets, the whole 
 must be the same, for the trust is one and 
 the same trust throughout. 
 
 Decree affirmed. 
 
§ 164) 
 
 CLIFTON V. BURT. 
 
 Case 1^0. 238 
 
 CLIFTON V. BURT. 
 
 (1 P. Wms. 679.) 
 
 Michaelmas Term, 1720. 
 
 A. seised in fee of freehold lands, and like- 
 wise of some eopyliold lands whicli he had 
 not surrendered to the use of his will, and 
 Indebted by bond In which his heirs were 
 bound, in 1706 made his will, whereby he 
 devised his freehold lands to B. in fee, with- 
 out charging them with any of his debts and 
 legacies, and gives his copyhold lands to C. 
 in fee, in trust to sell to pay his debts and 
 legacies, and having given a legacy of £500 
 to D. died leaving E. his executor; D. the 
 legatee of the £500 brought his bill for his 
 legacy; upon whicn Lord Harcourt decreed, 
 that as to so much of the personal estate 
 as was exhausted by the bond debt, the lega- 
 tee of the £500 should stand in the place of 
 the bond-creditor against the land, and that 
 the freehold estate should be liable, in de- 
 fault of personal assets to pay the legacy. 
 
 From this decree the devisee of the free- 
 hold lands now appealed to the Lord Parker, 
 insisting that the £500 legacy being by the 
 will charged on the copyhold estate, and 
 that fvmd failing for want of a surrender, 
 the freehold estate which was expressly de- 
 vised to another person ought not to be lia- 
 ble, and that the land being specifically de- 
 vised, was not chargeable with a general 
 pecuniary legacy. 
 
 LORD PARKER, having taken time to 
 consider of it, reversed that part of the de- 
 cree whereby the freehold estate was subject- 
 ed to (1) the legacy; observing, 1st, that tho' 
 equity will marshal assets in favour of a 
 legatee, as well as of a simple contract cred- 
 itor, yet every devisee of land is as a specific 
 legatee, and shall not be broken in upon, or 
 made to contribute towards a pecuniary leg- 
 acy. 
 
 2dly, that it was a rule, if one gives a spe- 
 cific legacy of a horse, or a diamond, and 
 also a pecuniary legacy of £500 to B. and 
 there are not assets to pay both, still the 
 
 specific legatee shall be preferred and have 
 his whole legacy; for were the executor to 
 make him contribute towards the pecuniary 
 legacy, this would be, pro tanto, to make 
 such specific legatee buy hife legacy, against 
 the manifest intention of the testator. 
 
 3dly, that if a specific personal legatee 
 shall not contribute towards a pecuniary leg- 
 acy, much less shall a specific devisee of 
 land. 
 
 4thly, that if in the principal case the tes- 
 tator had devised the £500 to A. and a term 
 of 500 years to B. without leaving assets to 
 pay the £500 still the specific legatee of the 
 lease ought to prevail, without contributing 
 towards the pecuniary legacy; and if such 
 pecuniary legatee shall not break in upon a 
 specific legatee of a term, a fortiori shall he 
 not disappoint the will as to a devise in fee, 
 which is more to be favoured than a devise 
 of a term, in regard it is with more difficul- 
 ty that a court of equity, in any case, breaks 
 in upon, or charges, a real estate. 
 
 5thly, that this case was still stronger, 
 where the testator had appointed a fund for 
 the payment of the legacies, viz. the copy- 
 hold; and Iho' that had failed for want of a 
 surrender, the consequence would be, that 
 the fund failing, the legacy must fail also. 
 Indeed the bond creditor might elect to have 
 his debt out of the assets in the hands of the 
 heir, or of the devisee, but in such case the 
 heir or devisee should have this relief, viz. 
 to stand in the place of the bond creditor, 
 and reimburse himself out of the personal 
 estate. 
 
 ethly, but tho' equity would thus marshal 
 the application of assets, yet would it not 
 do this to disappoint the will of the testator, 
 by breaking in upon the devise of the free- 
 hold which the testator did not intend to 
 charge, but on the contrary shewed his de- 
 sign to charge the copyhold estate therewith. 
 
 And note, that the decretal order in the 
 case of Heme v. Myrick, 1 P. Wms. 201, 
 was produced, whereby it appeared, that 
 Lord Harcourt did not then determine this 
 point, but reserved it for farther considera- 
 tion. 
 
 631 
 
Case No. 239 
 
 HAYS v. JACICSON. 
 
 {§§ 147. 1G4 
 
 HAYS et al. v. JACKSON et al. 
 
 (6 Mass. 149.) 
 
 Supreme Judicial Court of Massachusetts. 
 Nov. Term, 1809. 
 
 The petitioners alleged, and proved by the 
 requisite documents from the probate of- 
 fice, that the personal estate of the testator 
 was insufficient, by the sum of 66,000 dol- 
 lars, for the payment of his just debts and 
 legacies, and thereupon prayed that they 
 might be licensed to convey so much of the 
 real estate, of which he died seized, as 
 should be sufficient to pay those debts and 
 legacies, with the charges of sale. 
 
 Upon notice ordered, the heirs at law ap- 
 peared, and sundry questions arose, all of 
 which are discussed In the following opin- 
 ion of the court. 
 
 Otis and Sullivan, for petitioners. Pres- 
 cott and Jackson, for respondents. 
 
 PARSONS, C. J. Henry Jackson made 
 his last will on the 13th of January, 1805, 
 in which he makes the following disposition 
 of his estate. 
 
 First. After all his just debts and funeral 
 charges are paid, he gives to such . of his 
 nephews and nieces as may survive him, 
 fifty dollars each. Also, he gives to his 
 sister Susanna Gray in fee, certain specifick 
 real estate, on condition that she does not 
 demand against his estate her portion of her 
 father's estate remaining in his hands; and 
 his executors are to hold the real estate, 
 thus devised her, upon the same trusts as he 
 held her said portion. 
 
 Also, he gives to Mrs. Hepzibah C. Swan 
 in fee, all the remaining part of his estate, 
 real and personal, of which he might die 
 seized, or which might afterwards descend 
 to him by gift, grant, as heir at law, or oth- 
 erwise,- to be held in trust by his executors, 
 for her sole use and disposal. 
 
 And he appoints Judah Hays and Elisha 
 Sigourney his executors. 
 
 Mrs. Swan, the residuary legatee, and also 
 the heirs at law are before us. 
 
 The testator was seized of other real es- 
 tate, than that specifically devised to Mrs. 
 Gray, when he made his will; and he aft- 
 erwards acquired other real estate, which on 
 his death, without a republication of his 
 will, descended to his heirs. 
 
 It appears that the personal estate, left by 
 the deceased, is insufficient to pay all his 
 debts. The heirs contend that the lands, 
 which would pass by the residuary devise to 
 Mrs. Swan, shall first be applied to the pay- 
 ment of the debts, before the descended 
 lands can be called for. On the other side, 
 Mrs. Swan and the executors, who are her 
 trustees, insist that the descended lands are 
 first to be appropriated to the payment of 
 the debts. 
 
 Whether we are authorized, on this peti- 
 tion, to marshal the assets; and If we are, 
 
 632 
 
 in what manner they are to be marshalled, 
 are the questions before the court. 
 
 The case may first be considered as at 
 common law, and according to the equitable 
 rules established for marshalling assets, 
 where there is a will. 
 
 At common law, the lands of a testator 
 are not assets in the hands of the heirs, for 
 the payment of any but specialty debts, 
 where the heir is bound expressly by the 
 contract. And his lands are not bound for 
 the payment of any of his debts in the 
 hands of a devisee, unless charged by the 
 testator, either generally or specially. In his 
 will. To prevent the injustice of the testa- 
 tor, in devising his lands without charging 
 them with the payment of his debts, the 
 statute of 3 & 4 W. & M. c. 14, was passed, 
 by which the lands In the hands of a devisee 
 are made assets for the payment of debts 
 due on specialties. Since that statute all 
 the lands of the testator, whether they de- 
 scend or are devised, are charged by law 
 with the payment of the creditors by spe- 
 cialty; who may also resort to the personal 
 estate. But creditors by simple contract 
 can avail themselves only of the personal 
 estate, and of such of the lands as are 
 charged in the will with the payment of 
 debts; unless when they take the place of 
 creditors, who have been paid out of the 
 personal estate. These rights of the credit- 
 ors remain uncontrouled by any provisions, 
 which a testator can malvC. 
 
 But as between legatees and devisees who 
 claim under the will, and the heirs who can 
 take only what the testator has not given 
 away, he may regulate the funds, out of 
 which his debts shall be paid; by which 
 regulations they will be bound. 
 
 And the general rule in equity for mar- 
 shalling assets is thus settled. 1. The per- 
 sonal estate excepting specific bequests, or 
 such of it as is exempted from the payment 
 of debts. 2. The real estate which is ap- 
 propriated in the will as a fund for the pay- 
 ment. 3. The descended estate, whether 
 the testator was seized of it when the will 
 was made, or it was afterwards acquired. 
 4. The rents and profits of it, received by 
 the heir after the testator'^ death. And 5. 
 The lands specifically devised, although 
 they may be generally charged with the 
 payment of the debts, but not specially ap- 
 propriated for that purpose. And this rule 
 is executed by a decree in chancery, accord- 
 ing to the rights of the parties respectively 
 interested. 
 
 The laws of this commonwealth, ap- 
 plicable to this subject, may next be con- 
 sidered. And here all the personal estate 
 of the testator, and all the real estate, of 
 which he died seized, whether devised or 
 not, are assets for the payment of all his 
 debts, whether due by simple contract, or 
 by specialty. Also by the statute of 1783, 
 c. 24, § 10, all estate real or personal, imde- 
 vised in any will, shall be distributed as if 
 
§§ 147, 164) 
 
 HAYS '0. JACKSOJf. 
 
 Case No. 239 
 
 it were intestate, and the executor sliall ad- 
 minister upon it as such. 
 
 A question has been made, whether the 
 executor must take out administi-ation on 
 such undevised estate, or whether he shall 
 administer it ex officio as executor. The 
 usage has been to administer it without a 
 letter of administration: and we are satis- 
 fied that this usage is correct. There can 
 be no benefit to any person, from having 
 two accounts opened by the executor in the 
 probate office; and the natural construction 
 of this section supports the usage. For the 
 executor, by the probate of the will, has the 
 administration of the testate estate, ac- 
 cording to the will, and on imdevised estate 
 he is also directed to administer agreeably 
 to the provisions respecting intestate es- 
 tate. 
 
 According to the sti-ict rules of law, there 
 can be no undevised personal estate in a 
 wiU, where an executor is appointed: for he 
 has all the personal estate, whether ac- 
 quired before or after the will, in trust,— 
 first to pay the debts and then the legacies; 
 and if any remained, it was his own, un- 
 less the testator by his provision for the 
 executor, had excluded him from it; in 
 which case he was trustee of the remainder 
 for the next of kin. 
 
 As questions frequently arose, whether 
 the executor was excluded from the residue 
 or not, the section of the statute above' cited 
 removed all doubt: and the executor is now 
 in aU cases trustee of the undisposed resi- 
 due for the next of kin. 
 
 As to the distribution of undevised lands, 
 this section is merely affirmative of the com- 
 mon law, which gives to the heir all unde- 
 vised estate. But by the obligation imposed 
 on the executor to administer it as intestate 
 estate, it becomes assets in his hands for the 
 payment of the testator's debts; and it may 
 be sold by the executor, on license for that 
 purpose, or a creditor may take it in execu- 
 tion. 
 
 There is another provision, applicable to 
 this subject, in the 18th section of this stat- 
 ute; where It is enacted, that whenever a 
 testator in his will shall give any chattels 
 or real estate to any person or persons, and 
 the same shall be applied to satisfy the debts 
 of the testator, all the other legatees, de- 
 visees or heirs, shall refund their propor- 
 tionable part of such loss, and contribution 
 may be compelled by suit. 
 
 From this view of our statute provisions, It 
 is manifest that a testator cannot, by any 
 dispositions In his will, affect the rights of 
 creditors, who may, if their debts are not 
 discharged, enforce satisfaction by the levy 
 of their executions on any estate, which 
 was the testator's at his decease; the whole 
 of it being assets in the hands of the exec- 
 utor. But It is also manifest that the testa- 
 tor may bind, by his dispositions, his leg- 
 atees, devisees and heirs. 
 
 Hence results the right and duty of the 
 
 court, in the due exercise of its jm-isdiction, 
 so to marshal the assets, that as little in- 
 terruption be given to the interests of the 
 claimants under the will, and of the heirs, 
 as may consist with the more perfect rights 
 of creditors. This can be done only by a des- 
 ignation in the license of the estate, which 
 the executor may sell for the payment of 
 debts. And when the testator, or the law 
 has appropriated an adequate fund for the 
 payment of the debts, it would be unreason- 
 able for the court to permit that fund to lie 
 by, and to license an executor to sell a spe- 
 cifick devise, and thus drive the specifick 
 devisee to his action at law, for relief out of 
 the appropriate fund. 
 
 In what manner the assets are in this case 
 to be marshalled, is the next question. And 
 in our opinion, the rule established in equity, 
 in cases where all the debts are due by spe- 
 cialty, is applicable in this case, except as 
 It relates to the rents and profits of the de- 
 scended estate, received after the testator's 
 death, which we cannot come at. For in 
 those cases, the whole estate personal and 
 real, as well the devised as the descended 
 lands, are assets for the payment of all the 
 debts. So here the whole estate of Jackson, 
 the testator. Including the descended real 
 estate, is assets for the payment of all his 
 debts, in the hands of his executors. And in 
 both cases the charge on the estate is by 
 operation of law. '' 
 
 In this will there is no specifick bequest of 
 any chattel, and no exemption of any part of 
 the personal estate, from the payment of 
 debts. Therefore the whole of the personal 
 estate, after the payment of the expenses of 
 the last sickness, funeral charges, and of the 
 debts due to the government, (if any,) is first 
 to be applied to discharge the debts. It is 
 also very clear, that the devise of lands to 
 Susanna Gray is a specifick devise, not lia- 
 ble, by the terms of it, to any deduction. The 
 descended estate must then be applied to the 
 payment of the debts, before the specifick 
 devise can be resorted to. And the same rule 
 must apply to the lands, which Mrs. Swan 
 can claim as residuary legatee, if the devise 
 of those lands can be considered as specifick 
 within the intention of the rule. 
 
 Jackson first provides that his debts and 
 funeral charges be paid: He next bequeaths 
 legacies to his nephews and nieces, and 
 makes a specifick devise to his sister Susan- 
 na Gray. Then he gives to Mrs. Swan in 
 fee all the remaining part of his estate real 
 and personal. The just construction of which 
 Is, "when my debts and funeral charges, and 
 the legacies are paid, and the specifick devise 
 to my sister is deducted, then what remains, 
 whether real or personal, I devise in fee to 
 Mrs. Swan." If nothing should remain, then 
 nothing is devised to her. 
 
 We cannot therefore consider this devise 
 of the remainder as specifick. It is rather 
 creating a fund for the payment of the debts 
 and legacies, with a devise of what remains, 
 
 633 
 
Case ]Sro. 239 
 
 HAYS V. JACKSON. 
 
 (§3 147, 164 
 
 if any, to tlie residuary devisee. If after the 
 personal estate was exhausted by tbe debts, 
 the unsatisfied creditors should levy their 
 executions on all the devised lands, except- 
 ins those specifically devised to Mrs. Gray, 
 Mrs. Swan could not compel contribution by 
 Mrs. Gray and the heirs, under the statute; 
 because a general residuary legatee cannot 
 have contribution, if nothing remains. For 
 in that case nothing is given to him, but on 
 a contingency that some estate may remain; 
 and if no estate shall remain, then nothing 
 devised to him is fallen from him, to satisfy 
 a creditor of the testator. The debts and 
 legacies, being first to be paid, are to be con- 
 sidered as a deduction from the property 
 contemplated to be given: and if after the 
 deduction, there is no remainder, the con- 
 templated bounty has wholly failed, there 
 being in fact, no object, on which it could 
 operate. 
 
 Thus when the testator, after mortgaging 
 lands, devised them, with a clause, that the 
 devisee pay off the mortgage, he can resort 
 to no other part of the estate for relief: but 
 the money secured is considered as a deduc- 
 tion from the property devised. But the case 
 of King V. King, 3 P. Wms. 358, is in point. 
 There the testator being seized of freehold 
 lands, and of a copyhold, which last he had 
 mortgaged, devised and copyhold to his 
 nephew; and after all his debts were paid, 
 he devised tHe rest of his estate real and per- 
 sonal to his son, who was his heir. And it 
 was holden that the import of this devise: 
 was, that until all the debts were paid, noth- 
 ing was devised to the son ; or that when the 
 debts should be paid, then and then only, he- 
 should be entitled to the residue. We can- 
 not therefore consider this residuary devise 
 to Mrs. Swan as specifick, within the rule 
 of marshalling assets, so that the descended 
 lands shall first be sold. 
 
 It has been argued by the counsel for the 
 petitioners, admitting the rule to be general- 
 ly correct, yet that in this case it ought not 
 to apply, because in the residuary devise the 
 testator gives, not only all his real and per- 
 sonal estate, of which he was then seized 
 and possessed; but all of which he might 
 afterwards die seized; and therefore that he 
 634 
 
 contemplated after acquired estate; which 
 although it could not pass by his will, yet 
 was evidently intended to pass: and that 
 this intent ought to be so far executed, as to 
 cause it to be sold for the payment of debts,, 
 before the residuary devise should be ap- 
 plied for that purpose. 
 
 This argument, however ingenious, is not 
 solid. For the testator cannot, in his will 
 charge with the payment of his debts after- 
 purchased lands, any more than he can de- 
 vise them. And if in this case he intended 
 it, the intent was void. And an intent 
 against law cannot affect this rule or prin- 
 ciple of law. Otherwise the rights of the 
 heirs would be implicated by a testamentary 
 disposition, made before the lands were ac- 
 quired by the testator. If this case should 
 be allowed as an exception, it would involve 
 most residuary devises: for it is common for 
 the scrivener to include expressly aU the resi- 
 due of the estate, of which the testator may 
 die seized or possessed. We think therefore 
 that the rule should be applied in this case^ 
 without admitting the exception. 
 
 The order of the court was entered as fol- 
 lows. 
 
 Ordered that the said executors be, and 
 they hereby are empowered and licenced to 
 raise the sum of by sale at publick auc- 
 tion of the houses, lands, or tenements, of 
 which the said Henry Jackson died seized 
 in fee, being devised by him by his last will 
 and testament: excepting such part thereof 
 as is therein devised in trust for his sister 
 Susanna Gray, and such as may have been 
 held by said Jackson to the use of, or in trust 
 for any other person or persons; the said 
 sum when raised, to be applied to the pay- 
 ment of the debts aforesaid, with the inci- 
 dental charges of sale: and if the said sum 
 cannot be raised by such sale, it is further 
 ordered, that the said executors may raise 
 by sale at publick auction of so much of the 
 real estate of which the said Jackson died 
 seized, not having devised the same in and 
 by his last will and testament, such further 
 sum of money, as with the money raised by 
 the sale first above ordered, will amount in 
 the whole to the said sum of to be ap- 
 plied as aforesaid, giving bond, &c. 
 
§ 164) 
 
 LIVINGSTON V. LIVINGSTON. 
 
 Case No. 240 
 
 LIVINGSTON T. LIVINGSTON et al. 
 
 (3 Johns. Oh. 148.) 
 
 Court of Chancery of New York. Dec. 6, 1817. 
 
 Tbe bill, filed in January, 1803, stated, that 
 Philip Philip Livingston, father of the plain- 
 tiff, being seized of real and personal estate, 
 in the island of Jamaica, and in this state, 
 in April, 1784, made his will, by which, aft- 
 er giving his wife, in lieu of dower, 1000 
 poimds, his plate, furniture, &c. and an an- 
 nuity, or rent charge of 600 pounds sterling, 
 payable out of all his estate In Jamaica, 
 and elsewhere, during her life, in half-year- 
 ly installments, bequeathed to his seven chil- 
 dren, and to such others as might after- 
 wards be born, each 4000 pounds sterling, 
 to be paid to them respectively, when they 
 came of age, &c. all which legacies were to 
 be paid, and made payable out of, and 
 chargeable on his real and personal estate 
 in Jamaica, exclusively, and not on any oth- 
 er estate. The will directed, that his chil- 
 dren should be brought up and educated at 
 the charge of his estate, until their legacies 
 were due and payable; and authorized his 
 executors, appointed for the island of Ja- 
 maica; "to ^sc^U -all tftsT^al -estate and slaves, 
 out of the parish of St. Marys; to complete 
 a loan of 8,500 pounds of H. A. & Co. of 
 London, by a mortgage on his estate, or to 
 borrow elsewhere, a sum not exceeding 10,- 
 000 pounds sterling, and to mortgage his es- 
 -tate in St. Marys, for the repayment All 
 the residue of his estate in Jamaica, real 
 and personal, he gave to the plaintiff in fee, 
 with remainder over, in case he died imder 
 age, and without issue. And all his estate 
 elsewhere, out of the island of Jamaica, he 
 devised to his seven children, and such as 
 should be afterwards born, as tenants in 
 common, the plaintiff, being his eldest son, 
 to have three shares, and the other children 
 one share each. Five persons were nom- 
 inated and appointed his executors, for the 
 island of Jamaica, and to be guardians of 
 his children, &c. there; and four executors 
 were nominated executors in New-York, for 
 his estate out of Jamaica, and to be guard- 
 ians of his children, and their estates out 
 of that Island; and each of his sons, on ar- 
 riving at full age, was to become an executor 
 generally. 
 
 After making his will, the testator re- 
 moved to New- York, where he resided, until 
 his death, in 1787. At the time of making 
 his will, he was considerably indebted, and 
 afterwards, before his death, contracted oth- 
 er considerable debts. At the time of his 
 death, the testator was entitled by the will 
 of his father, P. L. of New-York, and by 
 descent, to some parts of his father's estate. 
 The testator, and three other devisees of his 
 father's estate, in 1784, conveyed their 
 shares and proportions of the estate of P. 
 L. deceased, to some person in fee, to the 
 rise of Isaac Roosevelt, Robert 0. Living- 
 
 ston, and the testator, in trust, to pay the 
 debts of the said P. L. deceased, and then 
 "in trust for his devisees, and their repre- 
 sentatives." 
 
 On account of the infancy of Henry A. L. 
 son of Abraham L. a deceased son, and dev- 
 isee of P. L. an act of the legislature was 
 passed, vesting the estate of P. L. deceased, 
 in Alexander Hamilton, Brockholst L. John 
 H. L. and Thomas Jones, as trustees, in fee. 
 The bill charged that after the payment of 
 the debts, the said trustees became seised, 
 as to one undivided part of the residue of 
 the real estate of P. L. "in trust for the tes- 
 tator, (P. P. L.) or his legal representa- 
 tives;" but whether the will of the testator 
 was revoked as to such part of P. L.'s es- 
 tate, the plaintiff submitted to the court. 
 
 The will was proved in Jamaica, and in 
 New- York, and the plaintiff is the sole act- 
 ing executor there and here. The bill fur- 
 ther stated, that the plaintiff had applied all 
 the real and personal estate, excepting the 
 St. Marys, towards payment of the testa- 
 tor's debts; and had executed a mortgage 
 on the St. Marys estate, for 10,000 pounds 
 sterling, borro-wed. That the funds proving 
 insufficient, he applied, in the year 1794, un- 
 der the statute of this state, to the court of 
 probates, and obtained an order to sell the 
 testator's real estate in N. Y. for the pay- 
 ment of the debts. That under this order, 
 he had sold all the real estate of the tes- 
 tator in this state, and which had been pur- 
 chased since the ■ making of the will, and 
 that the proceeds were still Insufficient to 
 pay the debts. That the debts of P. L. hav- 
 ing been discharged, and the trust, above 
 mentioned, sm-vived to John H. L. and B. 
 L. defendants, they were now seised of the 
 real estate of P. L. in trust, as to one un- 
 divided part, for the legal representatives 
 of the testator. (P. P. L.) That the plain- 
 tiff has paid to his brothers and sisters their 
 several legacies of 4000 pounds sterling, 
 each; and has paid the legacy of 1000 
 pounds to the widow, and the annuity of 
 600 pounds, for 14 years during her life, she 
 being now deceased. That wishing to dis- 
 charge all the debts of the testator, the 
 plaintiff had applied to the said trustees, to 
 convey to him the proportion of the estate 
 of P. L. deceased, held by them in trust for 
 the testator, or his legal representatives, 
 which they refused to do, alleging, that the 
 estate of P. L. ought not to be applied to 
 pay the debts of the testator, or the an- 
 nuity to his widow, but that the same ought 
 to be paid. out of the testator's estate in the 
 parish of St. Marys, devised to the plaintiff. 
 
 The bill prayed for an account of all the 
 debts owing by the testator, at his death, 
 and of his real and personal estate, and of 
 the application thereof by the plaintiff; and 
 that the remaining assets of the testator may 
 be applied in payment of his debts; and 
 particularly, that the proportion of the es- 
 
 635 
 
Case No. 240 
 
 LIVINGSTON V. LIVINGSTON. 
 
 (15 164 
 
 tate of P. L. deceased, might be declared 
 liable to the debts of the testator, before the 
 estate in Jamaica, devised to the plaintiff; 
 and that the trustees might be decreed to 
 convey the part so held by them in trust 
 for the testator; and that part of the annui- 
 ty payable to the widow might be charged 
 on the real estate in New York; and the 
 plaintiff be indemnified, &c. 
 
 The defendants, John H. L. and B. L. by 
 their answer, filed August 29, 1803, admitted, 
 that the testator, at the time he made his 
 will, was entitled, under the will of his 
 father P. L. to five twenty-fourth parts of 
 the real and personal estate; that the debts, 
 except a claim of G. L. had been discharged, 
 and that they stood seised of five twenty- 
 foiu'th parts of the residue of that estate, to 
 the use of the legal representatives of the 
 testator, &c. 
 
 The other defendants answered, in 1806, 
 admitting most of the facts charged in the 
 bill; but denying that the plaintifC had paid 
 the legacies to his brothers and sisters, and 
 insisting that the estate of P. L. was not 
 liable for the testator's debts, exclusively of 
 the estate devised to the plaintifC; and they 
 submitted, whether the trust estate was lia- 
 ble, at all, to the payment of the debts, or to 
 ■contribute to the annuity to the widow. 
 
 Replications were filed, but no witnesses 
 were examined on either side. 
 
 The cause was brought to a hearing on 
 the pleadings, on the 14th of October, 1817. 
 
 Harison and B. Robinson, for plaintlfC. 
 Riggs and Wells, for defendants. 
 
 THE CHANCELLOR. The great object of 
 the bill is to convert the real estate held by 
 two of the defendants, in trust, for the legal 
 representatives of Philip P. Livingston de- 
 ceased, and of whom the plaintifC Is executor. 
 Into assets, for the payment of the debts 
 still outstanding against that testator's es- 
 tate. 
 
 The bill does not state the amount of the 
 outstanding debts, nor who the creditors 
 are. It only avers that the assets already 
 applied for the purpose, have proved "ut- 
 terly insufficient for the payment and dis- 
 charge of the testator's debts." Here ap- 
 pears to be scarely sufficient ground upon 
 which the court ought to be called upon to 
 act. The plaintiff, however, wishes to malse 
 the trust estate chargeable with the debts, 
 (whatever they may be,) to the exemption 
 of the real estate in the island of Jamaica, 
 which was devised exclusively to himself. 
 It is contended, that the trust estate de- 
 scended undevised to the heirs at law, and 
 Is, therefore, to be first chargeable; and 
 also, that it is included in the order of the 
 court of probates, directing the testator's real 
 estate to be sold for the payment of debts. 
 
 I shall waive, for the present, any diffi- 
 culty as to the want of explicitness and pre- 
 636 
 
 cislon in the biU, and proceed to consider 
 the question whether the plaintifC has any 
 equity to entitle him to charge the trust es- 
 tate in exclusion of his own. 
 
 1. The general doctrine of the court in mar- 
 shalling assets, is admitted to be, that the 
 estate descended to the heir is to be charged 
 with the debts before the estate devised; 
 (unless it be devised specially for the payment 
 of debts;) for if the devisee was to be made 
 liable, in the first instance, it would defeat 
 the gift, and, consequently, the intention of 
 the testator. This rule was declared by 
 Lord Talbot, in Pitt v. Raymond, cited in 2 
 Atii. 484, and acted upon by Lord Hard- 
 wicke, in Galton v. Hancock, 2 Atk. 430, and 
 by the court, in numerous cases since. Da- 
 vies V. Topp, 1 Brown, Ch. 455; Wrlde v. 
 Clark, Id. 261, note; Donne v. Lewis, 2 
 Brown, Ch. 257. The order in which assets 
 were to be applied is distinctly stated by 
 Lord Thurlow in Donne v. Lewis. Equity 
 will even marshal the real assets descended 
 to the heir, in favour of, or for the relief 
 of specific legatees, but it will not, for such 
 a purpose, interfere with the lands devised, 
 unless they were devised subject to the pay- 
 ment of debts. Hanby v. Roberts, 1 Amb. 
 128; Clifton v. Burt, 1 P. Wms. 678; 5th 
 resolution in Haslewood v. Pope, 3 P. Wms. 
 322; Lord Hardwlcke in Forrester v. Leigh, 
 1 Amb. 172. I apprehend, however, that 
 none of this doctrine on which the counsel 
 for the plaintiff seemed to rely, has any 
 application to the case. The trust estate 
 in question did not descend undevised to the 
 heirs at law, but it passed under the testa- 
 tor's will, as part of his residuary estate out 
 of the island of Jamaica. 
 
 The testator owned the property in ques- 
 tion when he made his will, and devised a 
 certain residuary estate (of which this form- 
 ed a part) to his seven children, in unequal 
 proportions. He, afterwards, with other dev- 
 isees of the testator's father, conveyed this 
 property to certain persons, in trust to pay 
 the debts of his father, from whom he de- 
 rived the estate, and then in trust for his 
 father's devisees and their representatives. 
 In other words, he conveys his interest in 
 his father's estate, in trust, to pay his fa- 
 ther's debts, and when that purpose is effect- 
 ed, the remainder to be held in trust for 
 himself. An act of the legislature was, aft- 
 erwards, passed, to carry this trust more 
 completely into execution, and the preamble 
 to that bill states the prayer of the petition 
 of the testator and others to have been, that 
 the surplus. If any, should be conveyed by 
 the trustees, to the several persons inter- 
 ested therein, according to their respective 
 proportions. The idea is uniformly kept up 
 that the remainder of the property so con- 
 veyed in trust, was to return, and to be held 
 and enjoyed as before. The act itself de- 
 clares, that the residue was to go to the per- 
 sons, and in the manner and proportions 
 
§ 164) 
 
 LIVINGSTON ». LIVINGSTON. 
 
 Case No. 240 
 
 specified and expressed In the deed, in trust. 
 i-he bill Itself states, and the answers ad- 
 mit, that the trustees held the residuum of 
 the estate belonging to the testator, in trust, 
 for^ the testator or his legal representatives. 
 This conveyance in trust was no revoca- 
 tion of the will, beyond the mere purpose of 
 paying the debts, because there was no al- 
 teration of the "estate beyond that purpose. 
 
 It was the clear and manifest intention of 
 the conveyance and other acts in trust, to 
 appropriate the property in payment of 
 debts, and to have the surplus restored to 
 its former state and condition, without other 
 or further alteration. The rules respecting 
 these partial revocations, are deducible from 
 a series of determinations of great judges in 
 equity. The question of revocation has been 
 much agitated, and laboriously discussed, 
 but there is no one who has spoken with 
 more clearness, or treated the subject with 
 more ability, than the master of the rolls, 
 in Harmood v. Oglander, -6 Ves. 199. He 
 has reviewed all the cases, and given us the 
 collected result of his uncommon diligence 
 and learning. 
 
 It is a settled principle in equity, that if 
 a conveyance is only for a partial purpose of 
 introducing a charge, and does not affect the 
 interest of the testator, beyond that purpose, 
 it is only a partial revocation of the will, 
 and equity will hold the party a trustee, not 
 for the heir, but for the devisees. A devise 
 is not revoked in equity, by a mortgage in 
 fee, or a conveyance in fee, for the payment 
 of debts. The mortgagee is a trustee for the 
 devisee, and the devisor continues owner as 
 before, subject to the mortgage. So, after 
 a devise, if a conveyance be made in fee, in 
 trust to sell and pay debts, and the surplus 
 of the personal estate to the testator and his 
 executors, and the surplus of the lands to 
 him and his heirs, this is no revocation in 
 equity, and so it has been determined. If 
 after the debts are paid, the trustee conveys 
 to the testator and his heirs, that is no revo- 
 cation, and if the estate should descend to 
 the heir, he would be only a trustee for the 
 devisee. This has been so held by Lord 
 Hardwicke and Lord Thiu-low; and the prin- 
 ciple is settled. So, if the testator dies with- 
 out taking back the legal estate, equity has 
 only to decide to whom the beneficial inter- 
 est belongs, and it holds the party a trustee 
 for the devisee, and not for the heir, and di- 
 rects a conveyance. When the testator, after 
 making his will, conveys his estate in trust 
 for the payment of debts, the estate is still, 
 in contemplation of equity, in him substan- 
 tially, and though the mode amounts to a 
 revocation at law, (for a court of law has 
 nothing to do with the purpose,) yet, sub- 
 ject to the debts, he remains, in equity, 
 master of the estate, and the will continues 
 to operate upon his interest. If he calls for 
 a conveyance of the legal estate, his heir is 
 a trustee for the devisee; and if he does not, 
 
 but dies in the mean time, his trustee holds 
 for the devisee, for his equitable interest 
 still continued. 6 Ves. 218-223. 
 
 The doctrine thus laid down by Lord Al- 
 vanley, may also be collected from a series. 
 of other decisions. HaU v. Dench, 1 Vern. 
 329; Vernon v. Jones, 2 Vern. 241; Ogle v. 
 Cook, 3 Atk. 746; 2 Brown, Ch. 592; Jackson 
 V. Parker, 2 Amb, 687; and the general ob- 
 servations of Lord Hardwicke, in Parsons v. 
 Freeman, 3 Atli. 748, and in Sparrow v. 
 Hardcastle, 3 Atk. 805; Lord Rosslyn, in 
 Brydges v. Duchess of Chandos, 2 Ves. Jr. 
 428, 429. In the prior case of Williams v- 
 Owens, 2 Ves. Jr. 599, 600, Lord Alvanley 
 had explained, in the same way, the prin- 
 ciple, which he shows was evidently estab- 
 lished by Lord Hardwicke, in Parsons v. 
 Freeman, "that wherever the estate is modi- 
 fied in a manner different from that in 
 which it stood at the time of making the will, 
 it is a revocation, but wherever the testator 
 remains, after a conveyance for a mere par- 
 ticular purpose, as the payment of debts, 
 seized of the same estate, and disposable by 
 the same means, without any fresh modifi- 
 cation, there is no revocation." 
 
 2. As I have considered that the estate in 
 question was property devised, not descend- 
 ed, one main ground of the biU has failed, 
 unless the estate can be considei-ed as bound 
 by the order of the court of probates, and 
 that it is proper for this court to lend its aid' 
 in carrying that order into effect 
 
 The order of the court of probates was- 
 made on the 28th of April, 1795, and that 
 court was authorized, on the application of 
 executors or administrators, to examine the- 
 account of the personal estate and debts of 
 the testator or intestate, and if it should 
 find the personal estate insufficient, and 
 that the same had been applied toward pay- 
 ment of the debts, the court was directed to 
 order "the real estate, whereof such testator 
 or intestate died seized," to be sold, &c. Act 
 of April 4, 1786, c. 27, § 6. 
 
 This was a special and newly-created pow- 
 er over the real estate of the debtor, and I 
 think the obvious and reasonable construc- 
 tion is, that it was to be confined to the legal 
 estate. The seisin here meant, is a legal 
 seisin, and it could not have been the policjr 
 or intention of the statute, to have given 
 such a summary power over trusts, which 
 cannot be reduced to possession, without the 
 aid of a court of equity. Such an interest 
 resting, in equity only, and cha,rged with 
 complicated, and, perhaps, uncertain and un- 
 ascertained burdens, is not the fit subject 
 of a public sale. The value of the interest 
 may not be susceptible of a ready and ac- 
 curate estimation. It would lead to sales 
 on mere speculation, and to a sacrifice of the 
 subject. The case of an equity of redemp- 
 tion is by no means analogous. That case 
 rests on grounds peculiar to a mortgage; for- 
 the mortgagor, while in possession, and be- 
 
 637 
 
€ase No. 240 
 
 LIVINGSTON V. LIVINGSTON. 
 
 (§ 164 
 
 tore foreclosure (and the decisions have gone 
 no further,) is regarded, at law, as well as In 
 •equity, as the real owner of the land. In 
 this very case, how could a purchaser know 
 what to bid upon the equitable interest re- 
 maining in the testator, after the debts for 
 which the trust had been created, were dis- 
 charged? He had no means of knowing 
 whether there would be any, and if any, 
 ■what residuum of interest resulting to the 
 testator, after the trust had fulfilled its ob- 
 ject. It is perfectly clear, that a mere equi- 
 table interest, like the one In this case, was 
 not within the purview of the statute, or the 
 Jurisdiction of the court of probates. 
 
 The gi-eat object of the bill has, then, 
 failed. This trust estate is no more liable, 
 in equity, to the outstanding debts, than the 
 estate in Jamaica. The devisees in the one 
 ■case, (who are all the children,) have as much 
 equity as the plaintiff, who is the devisee in 
 the other. 
 
 3. There is another prayer in the bill, 
 which is for indemnity, and that part of the 
 annuity payable to the testator's widow may 
 Tje charged upon the trust estate. 
 
 The widow's annuity, though not her 
 legacy, was made chargeable upon all the 
 testator's estate in Jamaica, and elsewhere; 
 and it is admitted that the plaintiff has paid 
 the annuity as charged in the bill. 
 
 The heir is not entitled to contribution from 
 the devisee towards satisfaction of creditors. 
 'This was so declared by Lord Hai'dwicke, in 
 Palmer v. Mason, 1 Atk. 505, and in the case, 
 already cited, of Galton v. Hancock. Nor 
 -will the court interfere and help a pecuniary 
 legatee, to throw the debt against the per- 
 sonal estate, upon the devisee of land, for 
 their equities are equal. 5th resolution in 
 Haslewood v. Pope. But here is a case aris- 
 ing between different devisees, in respect to 
 a charge, to which their lands were equally 
 Isound by the will, and it is just, that the 
 whole real estate should contribute in due 
 and rateable proportions. Thus, in Carter v. 
 Barn^diston, 1 P. Wms. 505, 509, 521, two 
 manors were devised, the one to A. and the 
 •other to B., and all the real estate was 
 charged by the will, with the payment of the 
 debts. There was a mortgage debt upon one 
 •of the manors, and Lord Ch. Cowper held, 
 that the devisee of the other, was bound to 
 contribute proportionably, to the payment of 
 that mortgage, because the right of contribu- 
 tion was given by the will. The same rule 
 was declared in Long v. Short, 1 P. Wms. 
 403, in the case of two specific devisees of 
 land. The lord chancellor said, it would 
 equally disappoint the intention of the tes- 
 tator, to defeat either devise, by subjecting 
 it to the testator's debts, and therefore he 
 held, that on a deficiency of assets, both es- 
 
 638 
 
 tates must contribute, in proportion to the 
 value of their respective premises. 
 
 The will, in the present case, is silent as to 
 the debts, and It appears to be very equi- 
 table, that the debts remaining after the 
 personal estate, and after the undevised real 
 estate is exhausted, (and which is alleged 
 to be the fact in this case,) should be borne 
 in rateable proportions, by ail the devisees, 
 according to the quantum and value of their 
 respective interests. This case comes with- 
 in the principle of those decisions. The law 
 charges the debts upon the real estate. 
 
 I shall, accordingly, declare, that the trust 
 estate is not, in equity, chargeable with the 
 outstanding debts, any more than the Ja- 
 maica estate, and that it is not bound by the 
 order of the court of probates mentioned in 
 the bill; that the trust estate, however, ought 
 to contribute rateably with the estate in the 
 island of Jamaica, belonging to the plaintiffs, 
 to the discharge of their debts, and to the 
 payment of the' annuity to the testator's 
 widow. There must, accordingly, be a refer- 
 ence to a master, to taie and state an ac- 
 count of the debts owing by the testator at 
 his death, and of his real and personal es- 
 tate, and of the application thereof, and the 
 payments which have been made, and of the 
 debts which still remain unpaid, their na- 
 ture and amount, and how secured; and that 
 the master take and state an account of the 
 amount of the annuity of 600 pounds a year 
 mentioned in the wiU, paid by the plaintiff, 
 and the times when, and the interest thereon 
 from each respective payment, and also the 
 amount of the legacies due to the respective 
 defendants, and of the interest thereon, from 
 the time that the legatees respectively came 
 of age; and that the master certify the 
 amount and proportion that each devisee, as 
 well the plaintiff as the defendants, is to 
 contribute towards the payment of the said 
 annuity and of the said outsanding debts, 
 having due regard to the respective values 
 of the estate in the island of Jamaica, be- 
 longing to the plaintiff, and of said trust es- 
 tate, and to the proportion of .nterest which 
 each of the devisees have in said trust es- 
 tate; that the defendants John H. and B. It. 
 account before the master for the rents, is- 
 sues, and profits of the trust estate, in the 
 proportion that 5 bears to 24, and that the 
 master make them all just allowances prop- 
 erly chargeable, in such proportion, together 
 with their reasonable expenses, (if any) in 
 the defence of this suit, exclusive of the 
 taxable costs, and that the question of costs, 
 and the question relative to the release of 
 the said trust estate by the said trustees, and 
 all other questions, be reserved until the 
 coming in of the report. 
 
 Order accordingly. 
 
I 164) 
 
 LIVIXGiTON «. NEWKIRK. 
 
 Case No. 241 
 
 LIVIxXGSTON V, XEWKIRK et ux. 
 
 (3 Johns. Ch. 312.) 
 
 Court of Chancery, 1818. 
 
 The blU, filed the 26th of November, 1812, 
 stated, that letters patent were granted the 
 8th of July, 1790, to John Earnest Pier, for 
 lot No. 6, In the township of Marcellus. In 
 1791, Pier sold the lot to Peter Schuj'ler, for 
 thirty pounds, and by writing under his 
 hand and seal, sold and conveyed, or cove- 
 nanted to sell or convey, the said lot, for 
 the consideration aforesaid, to P. S. in fee, 
 and delivered the deed to him. P. S., on 
 the 24th of November, 1786, made his will, 
 and devised the residue of his real and per- 
 sonal estate, after payment of his debts, to 
 his wife, Gerti-ude, in fee. P. S. died with- 
 out issue, on the 4th of January, 1792, with- 
 out altering or republishing his will. His 
 wife, as sole executrix, proved the will, and 
 tooli possession of all the estate, and his 
 books and papers, among which was the 
 deed, or covenant, as the plaintiffs alleged, 
 for the said lot. The plaintiff, C. L., is the 
 only sister of P. S., the testator, and J. C. 
 and W. C, his only brothers, and heirs at 
 law. The plaintiffs alleged, that G. S. the 
 widow, and executrix, for the fraudulent 
 pm-pose of defeating the plaintiffs, as dev- 
 isees, obtained a release from Pier to her, 
 for the said lot, and afterwards destroyed 
 or suppressed the said deed or covenant to 
 the testator; that she, in 1794, married the 
 defendant, N., who fraudulently advised or 
 approved the measure. The bill prayed for 
 general relief, &e. 
 
 The defendants, in their answer, admitted 
 the letters patent, and that an instrument 
 in writing, of some kind, was executed be- 
 tween Pier and P. Schuyler, relative to the 
 lot, but they did not recollect, and had no 
 means of ascertaining the precise date, or 
 the nature and terms of the iiistrument; 
 and they believed that the instrument was 
 lost or destroyed, but they were ignorant 
 when or how it was destroyed, or what had 
 become of it The defendant G. (Jlrs. N.) 
 said, that soon after the death of P. S. she 
 found the said instrument among his pa- 
 pers, and showed it to 0. J. Y., and request- 
 ed his opinion on it, and he informed her, 
 that it was of no effect; that she, thereup- 
 on, at the solicitation of Pier, on the 31st of 
 August, 1792, agreed with him for the pur- 
 chase of the lot, and took from him a con- 
 veyance in fee, for the consideration of thir- 
 ty pounds, which she paid to him. That 
 when she married P. S. she was seised of a 
 large real estate, which he sold, during the 
 coverture, and applied the proceeds to his 
 own use; and that the land so sold exceed- 
 ed in value the estate of which P. S. died 
 seised, after payment of his debts. That P. 
 S., who died the 4th of January, 1792, hav- 
 ing duly made his will, dated November 4, 
 1786, on his death bed, directed the defend- 
 
 ant N. to transcribe his will, in order to a 
 republication of it, and the defendant 
 brought the will to P. S., and told him that 
 it was as fair as he could write it; that at 
 the request of P. S. he read it in the pres- 
 ence of three credible witnesses, and P. S. 
 declared it to be all right; that he meant 
 that his wife should have all his estate; 
 and directed N. to put the will under cover, 
 and preserve it. On her examination, taken 
 under the act to perpetuate testimony, on 
 the 19th of March, 1812, she said, that she 
 did not know whether the writing from 
 Pier was a covenant or a deed, but after 
 her husband's death she took it to C. J. Y. 
 who told her that she had better not pay 
 P., unless he would execute a deed. That 
 she offered P. the writing, when he executed 
 the deed to her, and he left it with her. 
 That she paid P. thirty pounds, in flour, 
 wheat, and money, and that he executed the 
 deed- to her, in pursuance of the original 
 agreement, which was in 1791. 
 
 The defendants, in their answer, stated, 
 that they had paid debts of the testator P. 
 S. to the amount of 8,951 dollars, 4 cents, 
 of which a schedule was annexed, and had 
 borrowed money, on their credit, for that 
 purpose, for want of assets; and they be- 
 lieved that there were other debts remain- 
 ing unpaid, and unascertained. That the 
 whole real and personal estate of P. S. waa 
 not equal to the debts so paid. That on the 
 29th of September, 1808, they sold the said 
 lot in parcels, to six different persons, for 
 2,900 dollars, and had given deeds, and 
 taken bonds and mortgages for the purchase 
 money, about half of which had been paid; 
 and that this was done with the knowledge 
 of James Cochran, one of the plaintiffs, be- 
 fore whom, being then a master in chan- 
 cery, the mortgages were acknowledged. 
 
 Several witnesses were examined on the 
 part of the defendants. Pier testified, that 
 he sold the lot to P. S. for 30 pounds, a 
 small part of which was paid in cash, and 
 the residue in grain, from time to time, and 
 that he executed a writing under seal to P. 
 S. which he understood to be a deed for the 
 lot. That after the death of P. S., being 
 told that the writing he had given was not 
 good, he called on the defendant G. N. and 
 offered to execute a good deed; and another 
 deed was drawn, which he executed. That 
 neither of tlie defendants paid him any 
 thing for this deed, nor has he received any 
 consideration for the lot, other than what 
 was paid to him by P. S.; that he has nev- 
 er seen the deed by him to P. S. since it was 
 executed; that he executed the second deed 
 because he was told the first was not good. 
 
 A. G. a witness, testified, that the real es- 
 tate of P. S. at his decease, was worth about 
 4,000 dollars, and his personal estate 823 dol- 
 lars; that the real estate consisted of a farm 
 of 200 acres in Palatine, in the county of 
 Montgomery. By the will of P. S. his debts 
 were charged on his real estate, and his 
 
 639 
 
Case No. 241 
 
 LIVINGSTON V. KEWKIRK. 
 
 (§ 164 
 
 widow, who was sole devisee and executrix, 
 was authorized to sell it. 
 
 J. V. Henry, for plaintiffs. Van Vechten, 
 contra. 
 
 THE CHANCELLOR. 1. The first ques- 
 tion upon this case is, whether the plaintiffs 
 were not, upon the death of Peter Schuyler, 
 entitled, as his heirs at law, to lot No. 6, in 
 Marcellus. 
 
 The wiU of the testator was made on the 
 24th of November, 1786, and it was not after- 
 wards altered or repulslished with the solem- 
 nities required by law. The will, therefore, 
 did not, and could not, afCect lands subse- 
 quently acquired. 
 
 It appears from the pleadings and proofs, 
 that the testator, after making his will, pur- 
 chased, or contracted to purchase, the lot in 
 question, and that he received from John 
 Earnest Pier, the original patentee of the 
 lot, either a conveyance in fee, or a covenant 
 on the part of Pier to convey the lot, for a 
 valuable consideration. According to the 
 testimony of Pier, a formal deed in fee was 
 executed and delivered by him to Schuyler, 
 and the consideration of £30 paid. The de- 
 fendants admit, that an instrument in writ- 
 ing of some kind was executed and deliv- 
 ered, but they cannot recollect the nature or 
 terms of it. The defendant, Mrs. Newkirk, 
 who was the widow of the testator, and his 
 sole executrix, admits, that she found such an 
 instrument among the papers of the testator, 
 after his death, and that she took it to coun- 
 sel to obtain an opinion thereon. She far- 
 ther admits, that the instrument is lost or 
 destroyed, though she cannot tell when or 
 how, and that she took a deed in fee to her- 
 self from the patentee, and paid him the orig- 
 inal price. The patentee says, that he re- 
 executed such a deed to her, because he was 
 told the first writing was not sufficieht; but 
 he denies that he ever received any farther 
 consideration, or any payment from her. In 
 an examination of Mrs. Newkirk, taken de 
 bene esse, under the act of the 19th of 
 March, 1812, to perpetuate testimony, she ad- 
 mits, that when Pier executed the deed to 
 her, she offered him the original writing, but 
 that he left it with her. 
 
 Whether the writing in question was a con- 
 veyance of the lot, or only an agreement to 
 convey, does not appear to me to be mate- 
 rial. An equitable interest founded upon ar- 
 ticles for a purchase, and which a court of 
 eqiuity will specifically enforce, is real estate 
 which will pass by a devise made subse- 
 quently; and if there be no such devise, will 
 descend to the heir, and the executor must 
 pay the purchase money for the benefit of 
 the heir. Greenhill v. Greenhill, Finch, Prec. 
 320; Langford v. Pitt, 2 P. Wms. 629. But in 
 this case I have a right to conclude that an 
 absolute conveyance in fee was executed by 
 Pier to the testator. Here was a writing 
 640 
 
 which came to the possession of the defend- 
 ants, and upon which the executrix took ad- 
 vice, and which writing stood in the way or 
 her interest under the wiU, and which she 
 does not now produce. She does not ac- 
 count for its loss. I will, therefore, give the 
 most favourable intendment as to its con- 
 tents for the benefit of the heir. This is the 
 settled doctrine in the books; and it is found- 
 ed on the maxim of law, that "omnia pre- 
 sumuntm- in odium spoliatoris." Rex v. 
 Arundel, Hob. 109; 2 P. Wms. 748; S. C. 
 Dalston v. Coatsworth, 1 P. Wms. 731. Lord 
 Hardwicke, in 1 Ves. Sr. 235. The existence 
 of the instrument, and which Sir Joseph 
 Jelcyll said, in 2 P. Wms. 748, 750, was funda- 
 mental to a decree on the point, is admitted. 
 We have also the direct and positive testi- 
 mony of the grantor that the instrument was 
 not merely an agreement to convey, but an 
 actual conveyance of the lot. My conclu- 
 sion, accordingly, is, that lot No. 6, in Mar- 
 cellus, descended, on the death of Peter Schuy- 
 ler, to the plaintiffs, as his heirs at law, and 
 that they became seized in fee. 
 
 2. The next point in the case is, upon what 
 principles, and to what extent, the defend- 
 ants are to account to the plaintiffs for the 
 value of the lot. 
 
 By the wiU of the testator, he directed that 
 his debts should be paid out of his personal 
 estate, and if that should prove deficient, 
 that the deficiency should be supplied out of 
 his real estate; and the executrix was au- 
 thorized to sell so much of it as should be 
 requisite for that purpose. He then gave all 
 the residue of his estate, real and jjersonal, 
 to bis wife, in fee, and made her sole execu- 
 trix. 
 
 The defendants state, in their answer, that 
 the debts against the estate, and paid by 
 them, amounted to 8,951 dollars and 4 cents, 
 of which they have annexed a list; and that 
 they have expended large sums of their own 
 money foB that purpose. They state further, 
 that the wliole real and personal estate of 
 the testator was not equal to the debts which 
 they have paid; and they have furnished 
 proof that the personal estate of the testator 
 did not exceed 823 dollars, and that the real 
 estate, exclusive of the lot in question, did 
 not exceed 4,000 dollars, in value. They 
 state further, in their answer, that upon es- 
 tabUshing the title of the executrix under 
 the patentee, by a trial at law, they sold the 
 lot in parcels for 2,900 dollars; and they 
 have given proof of such sales, and of the 
 amount of the consideration given for one of 
 the parcels. 
 
 If a reference is to be had to ascertain 
 these facts, with more precision, it is pre- 
 viously necessary to determine to what ex- 
 tent the executrix is to be held responsible. 
 
 The rule is well established, that if an ex- 
 ecutor or administrator pays, out of his own 
 moneys, debts to the value of the assets in 
 hand, he may apply the assets to his own 
 
§ 164) 
 
 LIVINGSTON V. NEWKIRK. 
 
 Case No. 241 
 
 use, towards satisfaction of the moneys he 
 has expended. Plowd. 186a; Dyer, 2a, ISTb; 
 Shep. Touch. 454, -104; 1 Saund. 307; Went. 
 Oft". Ex'rs, pp. 89, 90. The assets, by such 
 election, become absolutely his own property. 
 This rule has always been applied to the per- 
 sonal assets; and it is said (Dyer, 2a,) that 
 If the executor be directed to sell the lands, 
 he cannot retain it in hand, as he may per- 
 sonal assets, because the direction of the will 
 is that it be sold. This case seems to put 
 the distinction altogether upon the testator's 
 intention; and If the personal assets prove 
 deficient, and the executor pays out of his 
 own moneys, to the value of the land, there 
 does not appear to be any solid ground for 
 the distinction. If this court was to direct 
 the lands to be sold in such a case, it would 
 certainly allow the executor to retain for his 
 indemnity. The object of the will, and the 
 ends of justice, are equally attained, if the 
 value of the real, as well as of personal as- 
 sets, be faithfully applied in discharge of 
 the debts. But in this case, the lot in Mar- 
 cellus was sold, as soon as it was cleared of 
 adverse claims; and the plaintiffs have no 
 further interest in the question than to see to 
 the due application of the proceeds of that 
 sale. 
 
 If the executrix was bound to apply, in the 
 first place, the lands devised to the discharge 
 of the debts, or if the lands devised, and the 
 lands descended were to bear, equally and 
 rateably, the charge of the debts, then the In- 
 quiry before a master wiU be necessary, to 
 ascertain, with certainty, the amount of the 
 debts, the payments which have been made, 
 and the value of the lands devised. If the al- 
 legations in the answer should turn out to be 
 supported by proof, as to points where fur- 
 ther proof is necessary, then there will be 
 nothing coming to the plalntifCs, and the ob- 
 ject of their bUl wlU fail. It cannot, for a 
 moment, be maintained, that the plaintiffs 
 are entitled to hold the land descended, or 
 the proceeds of that land, free of the charge 
 of paying the debts. 
 
 I am of opinion, that the land descended 
 to the plaintiffs Is to be applied to the dis- 
 charge of the debts, on failure of the per- 
 sonal estate, before the lands devised to the 
 widow; and that the latter are to be ap- 
 plied, only so far as may he requisite to 
 make up the deficiency. The order of mar- 
 shalling assets towards payment of debts, is 
 to apply: 1. The personal estate. 2. Lands 
 descended. 3. Lands devised. This Is the 
 general course, and every departure from it 
 may be considered as an exception to a gen- 
 eral rule. 
 
 This order of marshalling assets was de- 
 clared by Lord Talbot, in Pitt v. Raymond, 
 cited in 2 Atk. 434; and again in Chaplin v. 
 Chaplin, 3 P. Wms. 364. In the latter case, 
 h'e held, that where the testator was indebt- 
 ed by bond, and devised part of his real es- 
 tate to his three daughters, and suffered an- 
 ABB. WILLS — 41 
 
 other part to descend undevised to his son 
 and heir at law, that the lands descended 
 must be liable for the bond debt, before the 
 land devised, for by applying the land de- 
 vised to pay the debt, the will would be dis- 
 appointed. It is too well settled to be ques- 
 tioned, that the personal estate is to be first 
 applied to the payment of debts and legacies, 
 and that a mere charge on the land will not 
 exonerate the personal estate, nor any thing 
 short of express words, or a plain intent in 
 the will of the testator. Ancaster v. Mayer, 
 1 Brown, Ch. 454; Watson v. Brickwood, 9 
 Ves. 447. 
 
 The doctrine I have stated is not only thus 
 well supported by authority, but it has been 
 appUed to cases precisely like the present. 
 
 In Galton v. Hancock, 2 Atk. 424, 427, 430, 
 Ridg. 301, the testator, seized In fee of an 
 estate, borrowed money upon mortgage, and 
 then made his will, and "after all his just 
 debts were satisfied," he devised the estate 
 mortgaged, and also an estate for lives, to 
 his wife, and made her sole executrix. He, 
 after making his wlU, purchased the reversion 
 in fee of the life estate, and died. The bill 
 was filed -by the heir at law, against the 
 widow, insisting that the estate descended 
 was not liable to pay the mortgage debt. 
 But Lord Hardwlcke decreed otherwise. He 
 decided, after much consideration, and on a 
 rehearing, that the widow was entitled to 
 have the mortgage upon the estate devised 
 to her, exonerated out of the real estate de- 
 scended to the heir. Every devisee was said 
 to he in the natm"e of a purchaser, and the 
 heir was not entitled to contribution against 
 a purchaser. He thought the case not so 
 hard upon the heir, because the testator 
 clearly intended to give away the whole es- 
 tate from the heir, and because it was an 
 accident merely, which threw a part of it 
 upon him, viz. the ignorance of the testator 
 that it was necessary, after purchasing in 
 fee of the estate pourauter vie, to republish 
 the wiU, to make it to pass to the widow. 
 
 This case is. In many respects, strikingly 
 analogous to the one now under discussion. 
 The difference is, that in Galton v. Hancock, 
 the real estate was not expressly made 
 chargeable with the debts on failure of the 
 personal: nor was the executrix authorized 
 to sell It. But the devise there was after all 
 his just debts were satisfied, and part of 
 the estate devised was charged with a mort- 
 gage debt; yet the burden of discharging 
 that very debt was thrown upon the land 
 descended, in exoneration of the land de- 
 vised. 
 
 The case of Wrlde v. Clark, decided by Sir 
 Thomas Sewell, in 1765, (Dickens, 382; 2 
 Brown, Ch. 261, note,) approaches still nearer, 
 in all its circumstances, to the one before me. 
 The testator. In that case, charged all his 
 real and personal estate with the payment of 
 his debts, and subject thereto, he devised his 
 real estate to his wife, in fee, and appointed 
 
 641 
 
Case No. 241 
 
 LIVINGSTON 0. NEWKIRK. 
 
 (§ 164 
 
 her sole executrix. He afterwards purchased 
 other lands, which descended undevised to 
 the heir at law. The debts exceeded the 
 persoual estate, and the roaster of the rolls 
 decided that the descended estate should be 
 applied previous to the devised estate. So, 
 in Davies v. Topp, Id. 259, note, the same 
 rule received the sanction not only of the 
 same master of the rolls, but of Lord Thur- 
 low. In that case, the testator, seized of real 
 estates in fee, subject to a mortgage, by his 
 will made all his real and personal estate 
 chargeable with the payment of his debts and 
 legacies, and, subject thereto, devised his 
 real estates to L., and made him executor. 
 After making the will, the testator purchased 
 other real estate, and died, leaving two sis- 
 ters, to whom the real estate purchased after 
 the will, descended. The master of the rolls 
 directed that the personal estate not specif- 
 ically bequeathed, be first appUed in pay- 
 ment of the debts and legacies, and that the 
 deficiency due to the mortgagee and other 
 specialty creditors, should be raised out of 
 the real estate descended; and if that was 
 insuflicient, then the deficiency to be made 
 good out of the real estates devised and 
 charged with the payment of debts. This 
 decree, on appeal, was affirmed by the lord 
 chancellor. 
 
 It would be in vain to search for cases 
 more completely applicable; and it is im- 
 possible to distinguish the present case, in 
 any material degree, from those which have 
 been cited, and which must be regarded as 
 the established law of the court. 
 
 In Donne v. Lewis, Id. 257, which was sub- 
 sequent to the above cases, an exception was 
 made by Lord Thurlow to the operation of 
 the general rule, under special circumstances, 
 forming that exception, and which circum- 
 stances have no existence in the present case. 
 
 The testator devised lands in trust, to sell 
 and pay debts, and in case the trust estate 
 should not be sufficient, that the deficiency 
 should be charged on the five several estates 
 specifically, and very particularly, devised 
 to his five children, each estate to bear one 
 fifth part of such deficiency. The testator 
 purchased another estate after making his 
 vrill, and died. 
 
 The question was, whether the testator was 
 to be considered as giving an absolute di- 
 rection out of what fund the payment should 
 come, or merely as arranging the property 
 he had at the time of making the will, with- 
 out any view of exempting or favouring any 
 property he acquired afterwards. Lord Thur- 
 low went at large into the consideration of 
 the subject, and reviewed the preceding 
 cases. He said his idea of the order of af- 
 fecting assets, was: 1. The general personal 
 estate. 2. Ordinarily speaking, estates de- 
 vised for the payment of debts. 3. Estates 
 descended. 4. Estates specifically devised, 
 even though they are generally charged with 
 the payment of debts. 
 
 642 
 
 The chancellor brought the case then be- 
 fore him under the second head; and it is evi- 
 dent that he meant to be understood, by es- 
 tates under that head, estates specially de- 
 vised, for the express and particular pur- 
 pose of paying debts, and not merely estates 
 generally charged with the payment of 
 debts; for those estates fell under his fourth 
 division. He declared, in the case, that the 
 rule was settled, that a bare charge of the 
 debts upon the land would not do; and he 
 said, the only question that could reconcile 
 all the cases was, were the terms of the will 
 only a general indication, that the testator 
 meant to subject his property to his debts, 
 or did he mean more, and to make a partic- 
 ular provision for the purpose? In the case 
 before him, the will went further than in 
 Davies v. Topp. The testator meant to 
 charge an estate specifically, and that inten- 
 tion could not be executed, without exempt- 
 ing the estate descended; and, therefore, his 
 lordship, after admitting the authority of 
 Wride v. Clark, and Davies v. Topp, decreed, 
 that the debts must be paid out of the trust 
 estate, and then out of the devised estates 
 expressly and particularly pointed out in aid 
 of the trust fund. 
 
 The question in the case was truly be- 
 tween the descended estate and the trust 
 fund, specially bequeathed for payment of 
 debts; for the testator had declared, that 
 the deficiency of that fund should be sup- 
 plied by the contribution of the five children; 
 and, therefore, as to the point of the case, 
 they were to be taken as one fund. 
 
 This decision was no more than what Lord 
 Hardwicke had declared in Powis v. Corbet, 
 3 Atk. 556, that where a testator created a 
 particular trust out of particular lands, and, 
 subject to that trust, devised them over, the 
 devisee could take no benefit but of the re- 
 mainder; and in such a case the heir at law 
 stood in a better situation than the devisee. 
 
 Since the time of Lord Thm-low, the ques- 
 tion was brought before Lord Alvanley, as 
 master of the rolls, in Manning v. Spooner, 
 3 Ves. 114, and all the authorities on the 
 point of marshalling assets, as between the 
 heir and devisee, were reviewed and dis- 
 cussed. 
 
 In that case, the testator devised his real 
 estate to trustees, to be applied "in pay- 
 ment of such of his debts and legacies as the 
 residue of his personal estate should prove 
 deficient in paying." After making the will, 
 he purchased other lands, and died. The 
 question raised was, whether the descended 
 estate became liable for the debts before the 
 application of the fund to arise from the de- 
 vised estate under the trust in the will? 
 The master of the rolls, in delivering his 
 opinion, observed, that the question depend- 
 ed entirely upon the point, whether there 
 was a specific gift of any part of the estate 
 for the pm-pose of paying the debts, or wheth- 
 er it was only a general charge for the pm'- 
 
§ 164) 
 
 LIVINGSTON V. NEWKIRK. 
 
 Case No. 241 
 
 pose. That the case of Donne v. Iiewis, 
 was determined upon principles that had 
 been constantly acted upon since, and which 
 must govern all such cases. That the order 
 of application to debts was: 1. The general 
 personal estate, unless exempted expressly, 
 or by plain implication. 2. Any estate par- 
 ticularly devised for the purpose, and only 
 for the pm:pose, of paying debts. 3. Estates 
 descended. 4. Estates specifically devised. 
 That the question, in every case, where the 
 contest is between an estate descended and 
 an estate alleged to be provided for the 
 debts, is, whether it be a general charge, or 
 any part of the estate be selected, for the 
 «xpress purpose of paying the debts. That if 
 part be selected for that purpose, that part 
 is to be applied before the descended estate, 
 whether the testator had the descended es- 
 tate before he made his will or not. That 
 Lord Thurlow, in considering the prior cases, 
 was clearly of opinion, that the question 
 was, whether the testator had selected any 
 part of his estate, which it was his will 
 should be first applied, or whether the 
 charge was only to subject his estates to 
 the payment of his debts. Taking this rule 
 for his guide, Lord Alvanley held, in that 
 case, that the real estate devised was spe- 
 cially appropriated as a fund to pay the 
 debts, and for no other pm-pose, and that the 
 heir was not to be called upon in that case, 
 until the appropriated fund had become ex- 
 hausted. 
 
 This construction of the rule is in perfect 
 conformity with the doctrine in all the pre- 
 ceding cases; and the rule is stated with 
 such accurate deduction, and with such clear 
 precision, as to remove all doubt on the sub- 
 ject. There is no contradiction among the 
 cases. Lord Thurlow seemed to admit that 
 they were aU consistent with each other, and 
 rested on one simple principle. 
 
 The law on this point was, afterwards, 
 brought into repeated discussion before Lord 
 Eldon, and though he appeared to subject 
 the cases to criticism, and to suggest doubts 
 and diflOlculties, and though some of his re- 
 marks are wanting in the requisite precision, 
 he undoubtedly left the i-ule where it was 
 settled by the former decisions. 
 
 In Harmood v. Oglander, 6 Ves. 199, 8 
 Ves. 106, the testator charged all his estates 
 with the payment of his debts; and subject 
 thereto, lie devised all his real estates to his 
 wife for life, with remainders over in feej 
 and he directed, that as soon after his death 
 as conveniently might be, part of his real 
 estate, with the exception of another part 
 called Canefield, should be sold for the pay- 
 ment, of his debts, and that the devisees 
 thereof should join in the sale. The prin- 
 cipal question in the case was, whether the 
 Will was not subsequently revoked, as to a 
 part of the real estate called the fee-farm 
 rents, and if so, then another question was, 
 whether these fee-farm rents, descending to 
 
 the heir at law, would not be primarily ap- 
 plicable to the debts, as descended estates, 
 before estates devised; the chancellor was 
 of opinion, that the will was partly revoked, 
 and that the fee-farm rents descended to the 
 heir, and were not to be first applied to the 
 discharge of the debts. He understood Lord 
 Thurlow's doctrine, in Donne v. Lewis, to 
 be, that if there was any thing in the will 
 that went beyond a mere charge, and point- 
 ed out a particular mode or means, it would 
 save the descended estate. That Lord Alvan- 
 ley, in Manning v. Spooner, did not express 
 the opinion of Lord Thurlow, and that, as he 
 understood Lord Thurlow, and the law ever 
 since, the first fund applicable was the per- 
 sonal estate not specifically bequeathed; 2. 
 land devised for the payment of debts, not 
 merely charged, but devised or ordered to 
 be sold; 3. descended estates; 4. lands char- 
 ged with the payment of debts. That the 
 distinction was between charging all the real 
 estate with the debts, and proceeding so 
 much farther as to propose the mode in 
 which the debts were to be paid. In that 
 case, he observed, the will charged the debts, 
 first in general words, then in special words, 
 and directed a sale, and expressly stated the 
 parties who were to join in the sale. It was 
 a devise, therefore, to persons, coupled with 
 a devise to them for sale for payment of 
 debts. He admitted the distinction was thin, 
 and seemed to doubt of its soundness; but 
 being settled, he thought it better to abide 
 by it. 
 
 Some of Lord Eldon's expressions in this 
 case appear to be too much at large; and 
 they would seem, on the first impression, to 
 control the opinion of Lord Alvanley, and 
 to limit the doctrine in the former cases; 
 but when we come to attend closely to the 
 facts upon which his lordship decided, it will 
 be found, that there is no variation in the 
 rule. The will, here contained a special di- 
 rection to apply a designated portion of the 
 devised lands to the payment of the debts. 
 The appropriation was of a specific part, to 
 the exclusion of another part. It was in 
 exclusion also of the personal estate; for 
 the direction was to sell the part assigned 
 for the debts, "as soon as conveniently 
 might be after the testator's decease," and 
 the parties in interest, as devisees, were di- 
 rected to join in the sale. No doubt could 
 well exist of the testator's intention, under 
 such a special provision, and marked with 
 this strong circumstance, that other real 
 property which he had at the time was ex- 
 empted from the application. Here was a 
 creation and designation of a particular fund 
 for the debts, and the devisees of that fund 
 were made trustees for that purpose. Here 
 was a devise of lands for the purpose of sale 
 to pay debts, and the case, therefore, fell 
 within the range of the exception to the gen- 
 eral order of marshalling assets, and which 
 exception was admitted, as we have seen in 
 
 643 
 
Case STo. 241 
 
 LIVINGSTON V. NEWKIRK. 
 
 {§ 16i 
 
 Powis y. Corbet, Donne v. Lewis, and Man- 
 ning V. Spooner. 
 
 In Milnes v. Slater, 8 Ves. 295, Lord El- 
 don gave a stiU more mature opinion on the 
 subject. 
 
 The testator, in that case, directed that 
 his debts and legacies should be paid out 
 of his personal estate; but if the same 
 should prove deficient, he then directed that 
 the deficiency should be supplied according 
 to a particular provision for the purpose, 
 in which, after giving some legacies and a 
 devise of a life estate in part of his lands 
 to his wife, he devised all the residue of his 
 real and personal estate to trustees, to raise, 
 by mortgage thereon, a sufiicient sum to pay 
 the residue of the debts and legacies, and 
 then to settle the same estate to certain de- 
 clared uses. The testator purchased other 
 real estate: after making his will, and died. 
 
 One question was, whether the estates de- 
 scended were applicable in ease of the es- 
 tates devised. 
 
 Lord Eldon said, that the true question, 
 according to Lord Thurlow, was, whether 
 the testator meant only to behave honestly, 
 which is all a general charge imports, or 
 whether, beyond that honest conduct in cre- 
 ating a general charge for the security of 
 his creditors, he meant also to create a par- 
 ticular fund for payment of his debts. In 
 Powis v. Corbet, a particular term was 
 raised for the discharge of the debts, whicli 
 was held sufficient to warrant the applica- 
 tion of the lands comprised in it, .before the 
 descended estates. His lordship admitted, 
 that the circumstance of the devisor having 
 other estates which he does not touch, goes 
 a great way to show, that by ordering the 
 debts to be paid out of the devised estates, 
 he does not intend the application of those 
 which descended; but he said the case was 
 very different where he had no land at the 
 time of the devise, except the land devised, 
 and afterwards, by descent or purchase, 
 acquired other lands. He considered that, 
 upon the authority of all the preceding 
 cases, the rule must now be considered set- 
 tled, that whatever may be the ordinary 
 appUcatlon, if there be a real fund created 
 for the discharge of debts, that will be ap- 
 plied first, when the question arises between 
 the heir and devisee, either as to estates 
 which the devisor had at the time, or which 
 he acquired afterwards. He meant by a 
 real fund created, the same as one selected, 
 according to Lord Alvanley's expression; 
 and that it was "the creation of a particular 
 fund" that entitled the heir to say the de- 
 scended estate was exempt. He declared 
 repeatedly that It was the creation or rais- 
 ing of a particular fund or interest for the 
 debts, that required that fund to be applied, 
 in exoneration of the descended estate, and 
 that such a particular fund was created by 
 the will in that case. 
 
 If we test the present case by aU these 
 6M 
 
 examples, it will evidently appear, that there 
 is no creation of any particular fund set 
 apart for the debts, so as to form an excep- 
 tion to the general rule of this court in mar- 
 shalling assets. The will here went no fur- 
 ther than to make a general charge of the 
 debts upon the whole estate, real and per- 
 sonal, and to show that the testator meant 
 to be honest, by charging the real estate 
 with the debts, in default of the personal, 
 and to clothe the executrix with the ordi- 
 nary powers for that purpose. The direc- 
 tion was general, that If the personal estate 
 should not be sufficient, the deficiency was 
 to be supplied "out of the real estate;" and 
 the executrix was authorized "to sell the 
 same, or so much thereof as should be nec- 
 essary to make up the deficiency." The di- 
 rection was to her as executrix, and not a 
 charge upon her as devisee. In her latter 
 character, he gave her the residue of the 
 estate, after the debts were paid, which was 
 the same thing, in substance, as the devise 
 in Galton v. Hancock, where the devise of 
 the land was after all the just debts were 
 satisfied, or the devise in Wride v. Clark,, 
 and in Davies v. Topp, which charged alii 
 the estate with the payment of the debts^ 
 and then, subject thereto, devised it. The 
 general authority to sell in this case does 
 not fall within the meaning of any expres- 
 sions rather indefinitely used by Lord Eldon; 
 Jor they were to be applied to the cases be- 
 fore him, where a special fimd was mark- 
 ed out for the debts, and a duty thrown on 
 the devisee, qua devisee, or trustee, to apply 
 that particular fund. To allow this case to 
 break in upon the general rule, which was. 
 established as early as the time of Lord Tal- 
 bot, would be to unsettle and destroy that 
 rule altogether. It would be to allow the- 
 heir (certainly in this case, contrary to the 
 testator's meaning, for the ineffectual at- 
 tempts to republish the will, show clearly 
 that he never meant to die intestate, or to- 
 withhold any part of his estate from his. 
 wife,) to impair or defeat the object of the 
 testator's bounty. 
 
 It results, then, from the rule which I 
 have thus deduced from the cases, that the 
 debts of Peter Schuyler are to be charged,. 
 1. upon his personal estate; 2. upon the lot 
 No. 6. in Marcellus, which descended to the 
 plaintiffs, and was afterwards sold by the 
 executrix; 3. upon the estate devised to her. 
 
 If any credit is to be given to the answer, 
 and to the testimony of two of the witnesses, 
 (Gray and Beardsley,) the debts not only ex- 
 hausted the personal estate, but, also, the 
 proceeds of the lot; and a reference to a 
 master for further inquiries on the subject 
 would be useless to the plaintiffs. If it 
 should appear, by the master's report, that 
 the debts paid are equal to, or exceed, the- 
 value of the personal estate, and the amount 
 of the proceeds of the lot, the bill will be dis- 
 missed. The plaintiffs may have a refer- 
 
§ 164) 
 
 LIVINGSTON V. NEWKIRK. 
 
 Case No 241 
 
 ence, however, if they wish, to pursue the 
 inquiry, under the principles which I have 
 laid down; but it will be at the peril of 
 costs. 
 
 I shall, accordingly, declare, that the lot 
 in Marcellus, mentioned in the pleadings, 
 descended, as undevised real estate, to the 
 plaintiffs, as heirs at law; and that the de- 
 fendants must account for the price for 
 which they sold the lot, in 1808. That iip.yn 
 such accounting, they are to be charged with 
 the value of the personal estate of the tes- 
 tator, which came to the possession of them, 
 or either of them, and to be credited with 
 debts of the testator, which they have paid; 
 and if the debts paid are found to be ectual 
 to, or exceed the value of the personal es- 
 tate, and the proceeds of the said lot, the 
 
 defendants are to be no further charged; 
 but the master is to report accordingly, to 
 the end that the bill may be dismissed. But 
 If the debts paid do not exhaust the personal 
 estate, or if having exhausted it, they do 
 not exhaust the proceeds of the sales of the 
 said lot, then the master is to report the 
 amount of such sales, or of the balance of 
 such sales, as the case may be, remaining 
 unexhausted, together with interest thereoii, 
 from the time of such sales, up to the date 
 of the report. And unless the plaintiffs 
 shall, within 40 days from the date of this 
 decree, signify their election, by notice to the 
 solicitor of the defendants, to proceed with 
 the reference, the bill shall then stand dis- 
 missed without costs. 
 I Decree accordingly. 
 
 6i5 
 
Case No. 242 
 
 PETIT 0. SMITH. 
 
 (§ 165 
 
 PETIT V. SMITH. 
 
 (1 P. Wms. 7.) 
 King's Bench. 1695. 
 
 A man having a daughter and two brothers 
 made his will, and thereby gave £5 a-piece 
 to his brothers, appointing tliem executors, 
 but made no disposition of the sm-plus. 
 
 On the death of the testator, the daughter, 
 as next of kin, libelled in the spiritual court 
 against the executors, to have the residue of 
 the personal estate; it appearing (as was 
 suggested) by the express legacies given to 
 the executors, that they were to have noth- 
 ing farther; and in the spiritual court the 
 daughter recovered a sentence for the resi- 
 due of the personal estate; from which the 
 executors appealed to the delegates, and now 
 moved in B. R. for a prohibition to the same 
 delegates. 
 
 Sir Bartholomew Shower, for the execu- 
 tors. 
 
 HOLT, 0. J. The daughter, not being re- 
 siduary legatee, can have no pretence of su- 
 ing for tliis surplus in the spiritual court: on 
 the contrary, the testator's having appointed 
 his brothers executors is a gift to them of 
 the residue, after debts and legacies paid. 
 At common law, before the statute ordered 
 administration to be granted, the ordinary 
 appointed committees of the personal estate, 
 and in those times it was the practice to 
 compel such committees to distribute: but 
 afterwards, when the ordinary by virtue of 
 the act of parliament granted administra- 
 tion, this administrator had all the power of 
 an executor, and being in nature of an exec- 
 utor, it was adjudged, that he was not com- 
 pellable to make distribution; which being 
 thought hard as to those of kin to the intes- 
 tate in equal degree, the statute of distribu- 
 tion was made. So that what is said in 2 
 Inst. 33, "that an executor or administrator 
 having paid all debts, legacies, and funeral 
 expences, is compellable to divide arnong the 
 next of kin," seems not to have been thor- 
 oughly considered. 
 
 But that the point might be the more sol- 
 646 
 
 emnly settled, the executors were ordered to 
 declare upon a prohibition; and aftervrards 
 on debate a prohibition was granted. 
 
 Upon this, the daughter, as next of kin, 
 brought a bill in chancery against the exec- 
 utors for an account of the surplus; and 
 though there were proofs that the testator 
 intended his executors should have the sur- 
 plus; in regard that the daughter had in- 
 curred her father's displeasure by having 
 married against his consent, yet these being 
 somewhat doubtful, it was decreed first by 
 Sir John Trevor, master of the rolls, and aft- 
 erwards by Lord Somers upon an appeal, 
 that the executors should be but trustees as 
 to the sin-plus, after their legacies paid; and 
 that such siuplus should go according to the 
 statute of distributions. And it was said by 
 Lord Somers, that equity did delight in 
 equality, and that the distribution according 
 to the statute was most agreeable to natural 
 justice. 
 
 That it was dangerous to admit of parol 
 proof where there was a will in writing; 
 however, in relation to a personal estate, the 
 court would allow of proofs and averments; 
 but then such proofs ought to be plain and 
 indisputable, to intitle an executor to the 
 benefit of the surplus; and for this purpose 
 the court cited Lady Gainsborough's Case, 
 where the late Lord Gainsborough owed 
 debts by mortgage, and made the countess 
 executrix, against whom the heir brought 
 his bill, to subject the personal estate In the 
 first place to pay off the mortgage; and it 
 being proved to have been the intention of 
 the testator, that his executrix should have 
 his personal estate, exempt from debts, and 
 that the lawyer who drew the wiU, having 
 been instructed to insert in the will a be- 
 quest of the personal estate to the wife, had 
 replied, there would be no occasion for that, 
 she being to have the personal estate of 
 com'se as executrix. It was decreed, that 
 the wife should retain the personal estate, 
 and that the heir should not, in that case, 
 have aid thereof, towards paying off the 
 mortgage, notwithstanding that by the rules 
 of the court the same was liable to be so ap- 
 plied. 
 
§ 165) 
 
 IN HE NATT. 
 
 Case No. 243 
 
 In re NATT. 
 
 WALKER V. GAMMAGE. 
 
 (37 Ch. Div. 517.) 
 
 Chancery Division. Jan. 17 and 18, 1888. 
 
 Originating summons by the trustees and 
 executors of Sai-ah Natt (widow), who died 
 on the 25th of March, 1879, raising some 
 questions with regard to one sixth share of 
 her residuai-y estate, devised and bequeath- 
 ed by her will dated the 1st of December, 
 1875. The first question was, whether the 
 one sixth share of the residue had lapsed, 
 and the court held that it had. The other 
 questions were, whether the share, so far 
 as it consisted of real estate or the pro- 
 ceeds of the sale thereof, devolved on the 
 heir-at-law of the testatrix; whether the 
 share, so far as it consisted of personal es- 
 tate, devolved on her next of kin; and, 
 whether such next of kin took per stirpes or 
 per capita. 
 
 The testatrix was twice married. The 
 name of her first husband was John Bas- 
 sett. She had no children by her second 
 husband. By her first husband she had only 
 two children— viz., Henry John Bassett and 
 Sarah Underbill, who became the wife of 
 George Collin. They both died' before the 
 testatrix. 
 
 Henry John Bassett had five children, 
 three only of whom siu-vived the testatrix 
 —viz., Mrs. Head, Harry Bassett, and James 
 Bassett. Harry Bassett was the heir-at- 
 law of the testatrix. Mrs. Collin had two 
 children, one only of whom, G. N. Collin, 
 survived the testatrix. 
 
 G. N. Collin died on the 20th of April, 18S6, 
 a bachelor. 
 
 Marcy, for plaintiffs. R. F. Norton, for 
 the children of Henry John Bassett. P. L. 
 Wright, for the representative of G. N. Col- 
 lin. Bimting, for the heir-at-law of the tes- 
 tatrix. 
 
 NORTH, J. I observe that Lord Hard- 
 wicke, in Lockyer v. Vade, Barnard. Ch. 
 444, said that upon the opening of the cause 
 "he Inclined to be of a conti-ary opinion" 
 from that which he expressed at the close 
 of the hearing, viz., that, there being grand- 
 children living at the death of an intestate, 
 but no children, the gi-andchildren should 
 take per stirpes. I must confess that when 
 this case was first opened I also was in- 
 clined to think that the rule was as it is 
 stated in Williams on Executors. But on 
 further consideration I have come to the 
 conclusion that it is not so, and I think that 
 In re Ross's Trusts, L. R. 13 Eq. 286, is 
 really an authority to the contrary. I think 
 that "section 3 of the Act points out distinct- 
 ly a difference between the "wife and chil- 
 dren, or children's children, if any such be," 
 of the dead man, and his "next of kindred." 
 I read the words "children's children" as 
 meaning "issue of children," and I think 
 
 that section distinguishes clearly between 
 children and descendants of children, on the 
 one hand, and "next of kindred," on the 
 other hand. Then section 5 provides that 
 the distribution is to be as follows, one third 
 to the wife of the intestate, and the residue 
 equally amongst the children and "such per- 
 sons as legally represent such children, in 
 case any of the said children be then dead." 
 It was decided long ago that the persons 
 who "legally represent" the children are 
 their descendants in any degi'ee. I think 
 the words "in case any of the said children 
 be then dead" apply to the case of an only 
 child being dead. The effect, therefore, of 
 section 5, putting it shortly, is to give one 
 third of the surplus of the estate to the wife 
 of the intestate, and the other two thirds 
 equally among his children, and such per- 
 sons as legally represent the children, in case 
 any of them be then dead. TTien section 6 
 provides for the case of an Intestate leav- 
 ing a wife, but "no children, nor any legal 
 representatives of them," that is, no chil- 
 dren living in themselves or in their de- 
 scendants. In that case half of the surplus 
 is allotted to the wife, and the other half 
 is "to be distributed equally to every of the 
 next of kindred of the intestate who are in 
 equal degree, and those who legally repre- 
 sent them." Then comes section 7, which 
 (omitting the first proviso) provides that, 
 "in case there be no wife," all the estate is 
 "to be distributed equally to and amongst 
 the children: and, in case there be no child, 
 then to the next of kindred in equal degree 
 of or unto the intestate, and their legal rep- 
 resentatives as aforesaid." The proviso at 
 the beginning of section 7 is, "provided that 
 there be no representations admitted among 
 collaterals after brother's and sister's chil- 
 dren." I think that proviso is really an ap- 
 pendix to both section 6 and section 7, and 
 that the two sections would read more clear- 
 ly if the proviso were placed at the end of 
 section 7, and the two sections were then 
 read as one. Section 6 provides for the 
 case of an intestate leaving a wife, but 
 leaving no children, either living themselves 
 or represented by their descendants, and in 
 that case half the estate is to go to the 
 wife, and the other half is to be divided 
 equally among "the next of kindred who are 
 in equal degree, and those who legally rep- 
 resent them." But there are other possible 
 cases for which the Statute proceeds to pro- 
 vide. There might be no wife living at the 
 death of the intestate, but there might be 
 children living; or there might be no child 
 living; and section 7 provides for both those 
 cases. Mr. Norton construes section 7 as 
 if it had said that the estate is "to be dis- 
 tributed equally to and amongst the chil- 
 dren; and, in case tbere be no child, then 
 to the next of kindred in equal degree of the 
 intestate, including the descendants of de- 
 ceased children, and their legal representa- 
 tives as aforesaid." I think it would make 
 
 647 
 
Case Ko. 243 
 
 IN BE NATT. 
 
 (§ 165 
 
 no difference whether the word "representa- 
 tives" is read as applying to "children," or 
 not. But T think the true construction is. 
 that the words "next of kindred" mean next 
 of kindred exclusive of issue of the intes- 
 tate. If there is no wife of the intestate, 
 living, the entirety of the estate is to go to 
 his children, in the same way as two thirds 
 go to them under section 5 if there is a 
 wife to share with them. The words "to 
 find amongst the children" are not intend- 
 ed to define exactly how the estate is to go 
 to them; they are merely words of refer- 
 ence to what has gone before, implying that 
 the distribution of the whole is to be as al- 
 ready directed in the case of the two thirds. 
 The last clause of section 7 provides for the 
 case of there being no child of the intes- 
 tate. It does not say "in case there be no 
 child or representative of any child," but I 
 think it means "no child living either in 
 person or in its descendants." The provi- 
 sion for "next of kindred" Is addressed mere- 
 ly to the case of children, i. e., children liv- 
 ing either in themselves or in their descend- 
 ants, being out of the way. I admit that 
 this view of the meaning of the statute is 
 contrary to that taken in Williams on Execu- 
 tors, following the older work Toller on Ex- 
 ecutors, and which has been adopted by 
 some other text-writers. But the cases 
 which are cited as authorities in support of 
 the proposition applied to a different state 
 of circumstances. They were all cases re- 
 lating to collaterals, not to children of the 
 intestate in the statutory meaning of the 
 word "children." 
 
 The second rule stated in 2 Williams, Ex'rs 
 (8th Ed. p. 1503), Is as follows: "Where 
 the intestate's children are all dead, all of 
 them having left children. If a father have 
 three children, John, Mary, and Henry, and 
 they all die before the father, John leav- 
 ing, for instance, two children, Mary three, 
 and Henry fom', and afterwards the father 
 die intestate, in that case all his grand- 
 childen shall have an equal share: for as 
 his children are all dead, their children shall 
 take as next of kin. Such also would be 
 the case with respect to the great-grandchil- 
 dren of the intestate, if both his children 
 and grandchildren had all died before him. 
 In these instances, the parties are said to 
 take per capita, or, in other words, equal 
 shares in their own right" 
 
 That view is, however, at variance with 
 the view taken in Burton's Oompendimn 
 (7th Ed. p. 438, pi. 1403, note). There it Is 
 said: "It has been thought, however, that 
 where the claimants are all in the same de- 
 gree of lineal descent from the intestate (as 
 grandchildren after the death of all his chil- 
 dren), the distribution is not to be made on 
 the principle of representation, but by the 
 more simple rule of personal equality; or, 
 as it is commonly expressed, per capita, and 
 not per stirpes. See Toll. Ex'rs, p. 375. 
 But it may be doubted whether this was the 
 
 648 
 
 Intention of the statute; and the authorities 
 (as Davers v. Dewes, 3 P. Wms. 40; Lloyd 
 V. Tench, 2 Ves. Sr. 213, etc.) which estab- 
 lish that mode of distribution in the case of 
 collaterals, under section 6, are grounded 
 upon a reason which does not apply to the 
 issue of the intestate (viz., that where all 
 take as equally next of kin, the words of the 
 statute afford no room for the introduction 
 of representative claims). For there is no 
 mention of the next of kin in any part of 
 the statute which precedes the supposition 
 of a failure of the intestate's issue." 
 
 A passage similar to that which I have 
 read from Williams on Executors is to be 
 found in the text of Watkins on Descents 
 (4th Ed. p. 259). But in the 4th edition 
 there is this note by Mr. Joshua Williams: 
 "The authorities here referred to do not sup- 
 port the position taken in the text. They 
 are all cases of the children of deceased 
 brothers of the intestate taldng per capita, 
 there being no mother, brother, or sister of 
 the intestate living at his death. But in 
 these cases the children of the brothers take 
 as next of kindred, and not by representa- 
 tion, whereas the descendants of the chil- 
 dren of an intestate take under the descrip- 
 tion of 'such persons as legally represent 
 such children.' It would seem, therefore, 
 that the grandchildren ought to be entitled 
 per stirpes." 
 
 I have looked at the passage in Mr. Har- 
 grave's Jm-isconsult Exercitations (volume 
 1, p. 271,) which was referred to by Vice- 
 Chanoellor Wickens in his judgment in Ee 
 Ross's Ti-usts, L. R. 13 Eq. 294, and I find 
 that that learned writer takes a view at 
 variance with that taken by Williams and 
 Toller. Mr. Hargrave says: "A very dis- 
 tinguished civilian (Dr. Harris) of the pres- 
 ent times (to whom his country already 
 stands highly indebted for his elegant and 
 masterly edition of Justinian's Institutions, 
 and to whom it may owe far more if he 
 should prosecute his design of a more en- 
 larged commentary) seems to have been al- 
 m6st aware of this difficulty; and, as if he 
 thought consistency required it, he openly 
 contends on our statute of distribution for 
 excluding the distribution per stirpes, even 
 as amongst grandchildren, when they are 
 the only claimants: though he candidly con- 
 fesses, that by Justinian's law it was clear- 
 ly otherwise, and that he did not meet with 
 any judicial determination to prove the doc- 
 trine in respect to our own law. But it may 
 be doubted whether our courts of equity 
 would be easily induced thus to extend this 
 restrictive construction of the distribution 
 per stirpes to descendants. It was once in- 
 deed attempted before Lord Chancellor 
 Hardwicke. But, after hearing the point 
 discussed, he discouraged the idea of a dis- 
 tribution per capita, and gave an opinion 
 against it, though not a final one." It is 
 clear, therefore, that the opinion of Lord 
 Hardwicke, after hearing the point fully ar- 
 
§ 165) 
 
 IN HE NATT. 
 
 Case No. 243 
 
 gued in Lockyer v. Vade, Barnard, Ch. 444; 
 was in favor of a distribution per stirpes 
 among grandcliildren, and lie arrived at his 
 •ultimate conclusion after having begun with 
 tailing the contrary view. There is, there- 
 fore, not merely a conflict of opinion among 
 the text-writers, but there is what I must 
 consider the decision of Lord Hardwiclie 
 that the division should be per stirpes. 
 There is, moreover, the case of In re Ross's 
 Trusts, L. R. 13 Eg. 286, before Vice-Ohan- 
 cellor Wicliens. If I am right in my con- 
 struction of the statute, that it gives noth- 
 ing in terms to the granchildren of the in- 
 testate, but that the provision for "children" 
 covers all the descendants of children, the 
 ■decision in Re Ross's Trusts is directly in 
 point. If Mr. Norton's argument is cor- 
 
 rect, the fund in that case should have been 
 divided into sevenths, instead of into moie- 
 ties, and the distinction which he has at- 
 tempted to draw does not seem to me to 
 alter the effect of the decision. In re Ross's 
 Trusts confirms my view of the construc- 
 tion of the statute, and it adopts that of 
 Lord Hardwicke. 
 
 Under these circumstances, I hold that the 
 one sixth share of residue which is undis- 
 posed of in the present case must, so far as 
 it consists of personal estate, be divided into 
 nloieties. One of the moieties will be equal- 
 ly divided among the three children of Hen- 
 ry John Bassett, the other will go to the 
 representative of G. N. Collin. The lapsed 
 share, so far as it consists of realty, will go 
 to the heir-at-law of the testatrix. 
 
 649 
 
Case No. 244 
 
 WETTER V. WALKER. 
 
 (§ 165 
 
 WETTER V. WALKER. 
 
 (62 Ga. 142.) 
 
 Supreme Court of Georgia. Aug. Term, 1878. 
 
 Error from city court of Savannah. 
 
 Action by one Wallier against one Wetter, 
 as trustee for his children, for labor and ma- 
 terial furnished on the trust property. It 
 appeared that the property came to Mrs. 
 Wetter under the following item of her 
 grandmother's will: "I devise and bequeath 
 to the husband of my granddaughter [nam- 
 ing both] all my property, both real and per- 
 sonal, which may remain after the payment 
 of my just debts, to hold said property in 
 trust for the sole and separate use of my 
 said granddaughter, free from the debts, lia- 
 bilities, and contracts of her present or any 
 future husband, during her natural life; and 
 In further trust to convey the same during 
 her natural life, from time to time, to such 
 persons, in such proportions, and on such con- 
 siderations as she may in writing request; 
 in further trust, upon her decease, to mate 
 such disposition of said property as she may 
 by any writing of a testamentary character 
 direct; in further trust, should she die in- 
 testate, to hold said property for the benefit 
 of such persons as may, at the time of her 
 decease, corne under tlie designation of her 
 next of kin by the statute of distributions at 
 the time in force in the state of Georgia." 
 Mrs. Wetter made no disposition of the prop- 
 erty during her life, and died intestate. The 
 defendant, Wetter, claimed the property as 
 his own. The following is the holding of 
 the court: "(1) The words 'next of liin,' as 
 used in this wiU, mean nearest blood rela- 
 tions. (2) The reference to the statute of 
 distributions is for the purpose of pointing 
 out the rule to be followed in ascertaining 
 who were the nearest blood relations. (3) 
 Upon the death of Mrs. Wetter, the property 
 devised by the second item of Mrs. Telfair's 
 wlU, and not disposed of by Mrs. Wetter 
 during her life, passed to Wetter in trust 
 for her children. Judgment for the plain- 
 tiff." To this ruling the defendant ex- 
 cepted. 
 
 T. M. Norwood and N. C. Collier, for 
 
 plaintiff in error. R. E. Lester, R. D. 
 
 Walker, Jr., and W. W. MackaU, Jr., for 
 defendant in error. 
 
 BLECKLEY, J. 1. "A devise of an es- 
 tate generally, or indefinitely, with a power 
 of disposition over it, carries a fee. But 
 where the estate is given for life only, the 
 devisee takes only an estate for life, though 
 a power of disposition, or to appoint the fee 
 by deed or will, be annexed, unless there 
 shotild be some manifest general intent of 
 the testator which would be defeated by 
 adhering to this particular intent. Words 
 of implication do not merge or destroy an 
 
 650 
 
 express estate for life, unless it becomes ab- 
 solutely necessary to uphold some manifest 
 general intent." 4 Kent, Oomm. 319. "So, 
 if an estate be given to a person generally, 
 or indefinitely, with a power of disposition, 
 it carries a fee, unless the testator gives to 
 the first taker an estate for life only, and 
 annexes to it a power of disposition of the 
 reversion. In that case, the express limita- 
 tion for life will control the operation of 
 the power, and prevent it from enlarging 
 the estate to a fee." Id. 536; Cook v. 
 Walker, 15 Ga. 457; Edmondson v. Dyson, 
 2 Ga. 307; Pulliam v. Byrd, 2 Strob. Eq> 
 134. 
 
 2. "A man's 'kindred,' in the proper sig- 
 nification of the word, means such persons 
 as are related to him by blood: and, accord- 
 ingly, relations by marriage are generally 
 incapable of bringing themselves within the 
 description of 'next of kin' in a wiU; and 
 (as in the case just mentioned, of 'relations') 
 neither husband nor wife can be entitled un- 
 der a bequest to the 'next of kin,' of either 
 of them." 2 Williams, Ex'rs, 815; Murdock 
 V. Ward, 67 N. Y. 387; Luce v. Dunham, 6» 
 N. Y. 36; Keteltas v. Keteltas, 72 N. Y. 312. 
 Though, by the statute of distributions in 
 force in 1865, the husband was sole heir to- 
 the wife, children stood in the first degree. 
 Code, § 2484. 
 
 3. Applying the foregoing rules to the will 
 now under consideration, it follows that the 
 granddaughter of the testatrix took an equi- 
 table estate in the property for her life, and 
 no more; and that her children, not her hus- 
 band, were her next of kin, and, on her 
 death intestate, became entitled to the re- 
 mainder. Even any apparent inconsistency 
 between the power and the express life es- 
 tate disappears by construing the terms, 
 "and in further trust to convey the same, 
 during her natural life, from time to time, 
 to such persons, in such proportions, and on 
 such conditions as she may in writing re- 
 quest," as restricting the duration of the es- 
 tate so authorized to be conveyed, to the pe- 
 riod of her life; and this, in all probability, 
 is the true intent and meaning of the clause, 
 for it is immediately added: "In fiu*ther 
 trust, upon her decease, to make such dis- 
 position of said property as she may by any 
 writing of a testamentary character directr 
 in further trust, should she die intes- 
 tate, to hold said said property," etc. 
 The purpose seems to have been to keep 
 the trust on foot as to the inheritance in 
 the whole of the property; and to do that, 
 any conveyance made during the life of the 
 granddaughter at her request would have to 
 be limited in its operations to the period of 
 her life, or to a more brief duration. See 
 Broach v. Kitchens, 23 Ga. 515. We infer 
 from the record that the children were mi- 
 nors when the account sued upon arose, and 
 even when the action was brought, but 
 
§ 165) 
 
 WETTER V. WALKER, 
 
 Case No. 244 
 
 whether they were or not is of no conse- 
 quence. We were requested in the argument 
 to construe the will to the extent which we 
 have gone, and this is all we have attempted. 
 It was not contended that if Mrs. Wetter 
 took a life estate only, with no enlargement 
 
 of it by her power of disposition, and if the 
 children came in for the remainder, the trust 
 became executed at her death by reason of 
 there being nothing for the trustee to do 
 after that event happened. 
 Judgment affirmed. 
 
 651 
 
Case No. 245 
 
 FARGO v. MILLER. 
 
 (§ 165 
 
 FARGO V. MILLER et al. 
 
 (22 N. B. 1003, 150 Mass. 225.) 
 
 Supreme Judicial Court of Massachusetts. 
 Hampshire. Nov. 29, 1889. 
 
 Case reserved from supreme judicial court, 
 Hampshire county. 
 
 Action by A. J. Fargo, as executor of the 
 last will and testament of Sarah B. Wells, 
 against Alvah Miller and numerous other 
 defendants, for a construction of the will 
 of the testator. Case was reserved for the 
 determination of the full coui-t. 
 
 A. J. Fargo, pro se. E. P. Kendrlck, for 
 the testatrix's brother and sister, and her 
 husband's nephew and nieces. 0. H. Van 
 Alstine, for Nathaniel W. Miller. J. 0. Ham- 
 mond, for the husband's grandnejjhews and 
 grandnieces. P. Fuller, for Frederic A. Mil- 
 ler. 
 
 FIELD, J. The will of Mrs. Wells was 
 written by herself, and is dated June 2, 
 
 1886. Sh« died, without issue, on April 4, 
 
 1887. Her father, Alvah Miller, Sr., two 
 brothers, Augustus and Alvah, one sister, 
 Martha G. Reanier, and one nephew, Fred- 
 eric A. Miller, son of a deceased brother, 
 survived her. She was a widow, her hus- 
 band having died on February 8, 1872. 
 There is no mention of her mother, but it 
 is evident that she had died before the will 
 was made. The age of the testatrix does 
 not appear from the papers, but there is no 
 doubt that she did not contemplate the pos- 
 sibility of marrying again, and of having 
 children. The nearest blood relations of 
 her husband, living at the time of her death, 
 were one nephew and seven nieces, and the 
 children of a niece who had died. The will 
 puts all her property in trust for her father, 
 If he should survive her, with directions to 
 the trustees to give him the use of it, "or 
 as much of it as he shall need for his com- 
 fortable support," during his life, "provided 
 he remains unmarried and shall himself pay 
 towards the support" of himself one thou- 
 sand dollars annually. The will also pro- 
 vides that "in case the income from my es- 
 tate, added to the one thousand dollars 
 which shall be paid by my father, said Al- 
 vah, should, by losses, changes, or any loss, 
 be insufficient for his comfortable main- 
 tenance, I will and direct the whole estate, 
 both real and personal, shall be freely, but 
 judiciously, used for his ease, benefit, and 
 comfort." The will also directs the trus- 
 tees to pay to her father, "for his sole and 
 separate use, as long as he shall live, an an- 
 nuity of one hundred dollars, payable quar- 
 terly." With reference to the future mar- 
 riage of her father, the provision is as fol- 
 lows: "Shall [should] such a thing occur as 
 his marriage at his advanced age, which, 
 though possible, is still very improbable, I 
 
 652 
 
 direct my trustees at once to proceed with 
 the distribution of my estate in the same 
 manner as if my father were deceased." 
 The will further provides that "at the de- 
 cease or marriage of my father, said Alvah, 
 Senior, I direct my said trustees to pay" to 
 various persons named various sums of 
 money, in all amounting to about $14,000, 
 and "to set apart and create" five separate 
 trust funds, in all amounting to 310,000. 
 The persons to whom legacies in money are 
 thus given include the children of the de- 
 ceased niece of her husband, and her 
 nephew, the son of her deceased brother; 
 and the persons to whom the income of 
 these trust funds is given for life include 
 her brother, Alvah Miller, Jr., and her sis- 
 ter. The income of the trust fund for her 
 sister is to be "judiciously applied for her 
 comfort in her invalid condition, so long as 
 she shall live, * * * and upon her de- 
 cease the trust so created shall cease, and 
 the said fund shall be paid over and trans- 
 ferred to my next of kin, for their own bene- 
 fit, and subject to their own control, share 
 and share alike." The remaining trusts for 
 persons are in effect that the net annual in- 
 come shall in each case be paid and ap- 
 plied "to the use and benefit of the bene- 
 ficiary, so long as he or she shall live, and 
 upon his or her decease the trusts so created 
 shall cease, and the said fund shall be paid 
 over and form part of my estate, to be here- 
 inafter disposed of." The residuary clause 
 was as follows: "Subject to the provisions 
 hereinbefore made by way of legacies, and 
 to the creation of the trusts hereinbefore 
 specified, all of which are to be ratably di- 
 minished in case, by any unforeseen occur- 
 rence, my estate should be so diminished as 
 not to amount to the aggregate hereinbe- 
 fore disposed of, I give, devise, and be- 
 queath all the rest, residue, and remainder 
 of my entire estate, both real and personal, 
 unto the next of kin of my dear husband, the 
 late John H. Wells, and to my next of kin, 
 in the proportion of two-thirds of the 
 amount to my next of kin, and one-third to 
 the next of kin of my late husband, the said 
 John H., the larger part to my next of kin, 
 as from my family and kin my estate has 
 been in this proportion enlarged." The 
 father of the testatrix, Alvah Miller, Sr., 
 died on March 24, 1888, never having mar- 
 ried again, leaving a will, in which he gave 
 all the residue of his estate to his two sons, 
 Augustus Miller and Alvah Miller, Jr. Au- 
 gustus Miller died on December 28, 1888, 
 leaving a son, Nathaniel W. Miller, one of 
 the defendants. The executors of Mrs. 
 Wells have paid all debts and legacies, have 
 set apart the amotmts directed for the trust 
 funds, and have settled their accounts in 
 the probate court; and there remains in 
 their hands for distribution a balance of $4,- 
 000. There is also valuable real estate. 
 The principal question is whether the next 
 
§ 165) 
 
 FARGO V. MILLER. 
 
 Case No. 245 
 
 of kin of the testatrix, and of her deceased 
 husband, who take under the residuary 
 clause, are those persons who were living 
 and next of kin at the time of her death, or 
 those who were such, at the time of the 
 death of her father. If her next of kin are 
 determined as of the time of her death, her 
 father would be her sole next of kin; and 
 he would have been the sole disti-ibutee and 
 sole heir of her estate, if she had died in- 
 testate. It is manifest, we think, that the 
 testatrix never Intended that he should re- 
 ceive absolutely any of her property, be- 
 yond that given to him for his life, and that 
 she intended that, if he married, he should 
 cease thereafter to receive any benefit from 
 her estate. The legacies were to be paid, 
 and the five trust funds were to be created 
 and set apart, at the decease or marriage of 
 the father. The first trust so to be created 
 was to continue during the life of the sister 
 of the testatrix; and upon her decease the 
 fimd was to be paid over to the next of kin 
 of the testatrix, share and share alike. This 
 contemplates that there might be more than 
 one next of kin, and that they should take 
 equal shares. 
 
 It is possible that the testatrix did not 
 know the provisions of our statutes concern- 
 ing the descent of real, or the distribution 
 of personal, property; but it cannot be pre- 
 sumed that she did not know who her near- 
 est kindred were. It is also possible that 
 she did not know the distinction between 
 vested and contingent remainders, or be- 
 tween rights of property and rights of pos- 
 session and enjoyment, and that, having 
 written down all the specific provisions she 
 wished to make, she used general phrases in 
 the residuary clause, without considering 
 what they meant, or might mean in the va- 
 rious contingencies which might happen. 
 The primary rule is that a will is to be con- 
 strued according to the intention of the tes- 
 tator, as expressed in it, if that intention 
 can be ascertained with reasonable certain- 
 ty. Whatever force may be given to arti- 
 ficial rules of construction, it is certainly an 
 objection of some weight against any par- 
 ticular construction that it leads to a result 
 which the testator could not have intended. 
 In Abbott V. Bradstreet, 3 Allen, 587, 589, it 
 is said in the opinion that "the rule is well 
 settled, as a general rule of construction, 
 that a bequest or devise to 'heirs' or 'heirs 
 at law' of a testator will be construed as 
 referring to those who are such at the time 
 of the testator's decease, unless a different 
 Intent is plainly manifested by the will;" 
 that "where such an intent is plainly mani- 
 fested, it will, of course, prevail;" and that 
 "this rule is a consequence of the prefer- 
 ence which the law gives to vested over con- 
 tingent remainders." The rule is undoubt- 
 edly the same when the devise or bequest 
 is to the next of kin of the testator as when 
 it is to the heirs of the testator. The cases 
 
 on this subject are collected in the opinion 
 in Abbott v. Bradstreet; and subsequent de- 
 cisions have emphasized the rule there stat- 
 ed. Minot V. Tappan, 122 Mass. 536; Dove 
 V. Torr, 128 Mass. 38; Minot v. Harris. 132- 
 Mass. 528; Whall v. Converse, 146 Mass. 
 345, 15 N. E. 660. In Abbott v. Bradstreet 
 it is also said that "it has been held in some 
 cases that if there is a gift to a pei-son for 
 life, with, remainder to the testator's next 
 of kin, and the person taking the life-estate- 
 is the sole next of kin at the death of the 
 testator, the remainder will be considered 
 as given to the persons answering the de- 
 scription at the termination of the estate for 
 life," and that this class of cases, as well as 
 another In which the first legatee is only one 
 of the next of kin, "are generally recognized 
 as exceptional, and the consti-uction adopted 
 is usually strengthened by some special cir- 
 cumstances indicative of intention." In 
 Minot V. Tappan it is said that the fact that 
 the life-tenant is one of the heirs at law of 
 the testator at the time of his decease "does, 
 not take the case out of the general rule." 
 See Bullock v. Downes, 9 H. L. Cas. Ir 
 Mortimore v. Mortimore, L. R. 4 App. Cas.. 
 448; Blmsley v. Young, 2 Mylne & K. 82, 
 88. Whether, if the life-tenant were tlie 
 sole next of kin or heir of the testator when 
 the will was made, and would continue to 
 be such if he sm-vive the testator, and this 
 were known to the testator, this fact alone- 
 would be sufficient to show that the testator 
 did not intend to include him in a gift of the 
 remainder to the heirs or next of kin of the 
 testator, cannot be considered as free from 
 doubt. See Lees v. Massey, 3 De Gex, F. 
 & J. 113; 2 Jarm. Wills, (oth Ed.) 132, 141;; 
 Ousack V. Rood, 24 Wkly. Rep. 391. 
 
 In the present case the distribution of the 
 whole estate was, by the terms of the will, 
 to be postponed till the death or marriage of 
 the father. There is no reference in the will 
 to the statutes of distribution. Such a refer- 
 ence has sometimes been regarded as a cir- 
 cumstance indicating that the testator in- 
 tended that his next of kin should take as of 
 the time of his death, because the persons 
 who are distributees under the statute take 
 from that time. The legacy to the father 
 would, of course, be of no effect, if he died 
 before the testatrix; but, if he survived her, 
 she intended that he should not marry and 
 retain any benefit from her will. She con- 
 templated the possibility that the whole of 
 her estate might be consumed in taking care 
 of her father, and that the legacies to others , 
 might never be paid, or the special trust 
 funds set apart. The reason which she 
 gives for dividing the residue of her estate 
 between the next of kin of her husband and 
 those of herself in the proportion of two- 
 thirds and one-third is that "from my fam- 
 ily and kin my estate has been in this pro- 
 portion enlarged.' This does not show that 
 she contemplated that, if her father sur- 
 
 65a 
 
•Case No. 245 
 
 FARGO V. MILLER. 
 
 {§ 165 
 
 •vived her, he, or only those claiming under 
 iim, should take the one-third. We think 
 that there are significant Indications in the 
 will that the testatrix did not intend that 
 her father should take any part of the resi- 
 due as her next of kin, and that she did in- 
 tend that the residue should be distributed 
 as of the time of his death or marriage, and 
 that the next of kin should be ascertained 
 as of that time, besides the fact that the use 
 of the whole estate, and, if necessary, por- 
 tions of the principal, had been given to him 
 for his life, or until he married; and, in our 
 opinion, the will should receive this con- 
 struction. See Knowlton v. Sanderson, 141 
 Mass. 323, 6 N. E. 228. As the next of kin 
 v654 
 
 of the testatrix must be ascertained as of 
 the death of her father, the next of kin of 
 her husband must be ascertained as of the 
 same time. In determining the meaning of 
 the words "next of kin," we see nothing in 
 the will by which this case can be distin- 
 guished from Swasey v. Jaques, 144 Mass. 
 135, 10 N. E. 758. Those persons who were 
 living, and were the nearest blood relations 
 of her husband and of herself, at the time of 
 the death of her father, or their legal repre- 
 sentatives, if they have since deceased, are 
 entitled to the residue in the proportions de- 
 clared in the will. The details of the de- 
 cree must be settled by a single justice. So 
 ordered. 
 
§ 166) 
 
 ATTORNEY GENERAL v. HOOKER. 
 
 Case No. 246 
 
 ATTORNEY GENERAL v. HOOKER. 
 
 SOMNER V. HOOKER. 
 
 (2 P. Wms. 338.) 
 
 Hilary Term, 1725. 
 
 The case was: One having a sister, who 
 was next of kin, and having several sums of 
 money in the South-sea and Bank, made his 
 will, whta-eby he devised £100 per annum to 
 his sister for life, and the residue of his bank- 
 stock to his executor, and devised per 
 
 annum out of his South-sea stock to 
 
 remainder of his said stocks to he de- 
 vised the furniture of his house to his exec- 
 utor and the heirs of his body, giving an ex- 
 press legacy of a sum of money to his sister, 
 and making one who did not appear to be 
 any relation to him executor; but there was 
 no disposition of the surplus of his personal 
 estate. On the death of the testator, the 
 question was, how the residue of the per- 
 sonal estate should go? 
 
 Mr. Lutwyche and Mr. Talbot, for execu- 
 tor Solicitor General, contra. 
 
 LORD CHANCELLOR. I could wish an 
 act of parliament was made to reduce this 
 point to a certainty, for if it were once set- 
 
 tled either way, it would be well enough; 
 but in the present case, if the express leg- 
 acy to the executor be allowed to exclude 
 him from taking tlie surplus, by the same 
 reason the express legacy to the next of kin 
 will bar her likewise; and then, here being 
 exclusion against exclusion, the law must 
 take place, and the executor have the sur- 
 plus as executor. 
 
 As to what has been urged, that if an exec- 
 utor dies intestate, all the personal estate, 
 the property whereof is not altered, shall go 
 to the administrator de bonis non, &c., and 
 not to the next of kin of the executor; this 
 is true, because from the time the executor 
 dies intestate, the first testator dies intestate 
 also, and it was the executor's own fault 
 that he did not, as he might, alter the prop- 
 erty. 
 
 But the law says, and the general notion 
 of mankind is, that the making a man ex- 
 ecutor, is giving him all, which is the less to 
 be wondered at, when it is considered that 
 personal estates were not near so large for- 
 merly as they are at present. 
 
 Accordingly it was decreed in the principal 
 case, that the executor should take the sur- 
 plus as executor; though Mr. Lutwyche said 
 this would shake many precedents. 
 
 655 
 
Case No. 247 
 
 HALL V. GROVIEK. 
 
 (§ 167 
 
 HALL V. GROVIER. 
 
 (25 Mich. 428.) 
 
 Supreme Court of Michigan. October Term, 
 1872. 
 
 Error to Macomb circuit. 
 
 Newberry, Pond & Brown, for plaintiff in 
 error. R. P. & J. B. Eldredge and Henry 
 M. Oheever, for defendant in error. 
 
 GRAVES, J. This was an appeal by the 
 defendant in error, from an order of the 
 probate com-t for the coimty of Macomb, up- 
 on an accounting of the plaintiff In error. 
 In the circuit com't the matter was heard 
 before a jury, who returned a special ver- 
 dict, upon which a final order in the nature 
 of a judgment was entered. A bill of ex- 
 ceptions was settled, and the case is now 
 before us upon writ of error, brought by 
 the administrator. The com'se of the in- 
 quiry in the circuit court was regulated by 
 a stipulation that the issue to be tried, 
 "shall be the same as was tried in the said 
 probate court, to wit: should the adminis- 
 trator, as such, account for the following 
 items, to wit: the sum of one thousand dol- 
 lars, delivered to said B. Wright Hall, on 
 or about the sixth day of June, A. D. 1852, 
 by Mrs. Olivia Grovier? 
 
 "2. Should he account for the sum of 
 two hundred dollars, delivered to him by 
 the said Olivia Grovier, on or about the fif- 
 teenth day of July, A. D. 1851? 
 
 "3. Should he account for the sum of two 
 hundred dollars, delivered to him by the 
 said Olivia Grovier, on or about the four- 
 teenth day of October, A. D. 1856? 
 
 "4. Should he account for certain bank 
 stock, being the same mentioned in the no- 
 tice of appeal? 
 
 "5. Should he account for, or allow, inter- 
 est on the above-mentioned sums; if so, 
 how much, and from what time?" 
 
 During their consultations, the jury ap- 
 peared in court, and reported that they had 
 not at that time been able to agree upon a 
 finding in relation to the bank stock, and 
 defendant in error then stated that, if they 
 were xmable to agree upon that subject, he 
 would assent to their rejection of the claim 
 relating to it. The jury then delivered a 
 verdict in the following terms: 
 
 "We, the jury empanelled and sworn in 
 this cause, find as follows: 
 
 "First. That the sum of one thousand dol- 
 lars, delivered to the administrator on or 
 about the fifth day of June, A. D. 1852, was 
 moneys belonging to the estate of Isaac J. 
 Grovier, deceased, and that E. Wright Hall, 
 the administrator, should account for the 
 same in his final account with the estate. 
 
 "Second. The said administrator should 
 account for the sum of two hundred dol- 
 lars, delivered to him by Mrs. Olivia Gro- 
 
 656 
 
 vier, widow of the deceased, on or about the 
 fifteenth day of October, A. D. 1851. 
 
 "Third. The said administrator of said es- 
 tate should not account for the sum of two 
 hundred dollars, delivered to him by Olivia 
 Grovier, widow of the deceased, on or 
 about the fourteenth day of October, A. D. 
 1856. 
 
 "Fourth. The said E. Wright Hall, as ad- 
 ministrator of the estate of Isaac J. Grovier, 
 deceased, should not account for the bank 
 stock mentioned in the notice of appeal. 
 
 "Fifth. The said E. Wright Hall, admin- 
 istrator of the estate of Isaac J. Gro- 
 vier, deceased, should account for, and be 
 charged, interest upon the several accounts 
 that ought to have been enforced in the said 
 final account, as follows: 
 
 "1. Upon the fla-st claim, of one thousand 
 dollars, he should pay, and account for, in- 
 terest from the fifth day of June, A. D. 
 1852, up to the time of final settlement, 
 amounting at this time to the sum of thir- 
 teen hundred and forty-nine and five one- 
 hundredths dollars. 
 
 "2. Upon the second claim, for the sum of 
 two hundred dollars, interest should be al- 
 lowed and charged against the said admin- 
 istrator, in his final account, from the fif- 
 teenth day of July, A. D. 1851, such interest 
 amounting at this time to the sum of two 
 hundred and eighty-two and thirty-three 
 one-hundredths dollars. 
 
 "3. Upon the third claim, for the sum of 
 two hundred dollars, delivered to said ad- 
 ministrator, Interest should not be allowed 
 and charged against the said administrator, 
 in his account with said estate from the 
 fomrteenth day of October, 1856, amounting 
 at this time to the sum of two hundred and 
 eighty and eighty-three one-hundredths dol- 
 lars. 
 
 "4. Upon the foturth claim, for bank stock, 
 interest should not be charged and allowed, 
 in the said account with the said estate, 
 and that the said bank stock and interest is 
 rejected for the sake of agreement, and by 
 consent of the plaintiff's counsel." 
 
 Upon this verdict the court adjudged, that 
 the order of the court of probate, allowing 
 the final administration account of said ad- 
 ministrator, should be reversed; that the 
 / administrator should account for, and pay 
 to, the estate two thousand eight hundred 
 and thirty-one dollars and thirty-eight cents, 
 with interest at seven per cent, per annum, 
 from September thirteenth, 1871, the date 
 of the verdict; that he should settle his ac- 
 count, as administrator, before the probate 
 court, and pay over to the persons entitled 
 thereto, the said sum of two thousand eight 
 hundred and thirty-one dollars and thirty- 
 eight cents, within ninety days; that Ar- 
 thur N. Grovier, the then appellant, should 
 recover his costs from the said "E. Wright 
 Hall, administrator aforesaid," and have 
 execution therefor, and that the cause 
 
167) 
 
 HALL V. GROVIER. 
 
 Case Ko. 247 
 
 should be remitted to the prohate court, for 
 (urthvsr proceedings in pursuance of such 
 judgment 
 
 Nine errors are assigned, but only the sec- 
 ond, eighth, and ninth are insisted on. 
 
 On the part of defendant in error, evi- 
 dence was given tending to show, among 
 other things, that Isaac J. Grovier died on 
 the 26th day of July, 1850; that HaU was 
 appointed administrator thereafter in the 
 same year; that Mrs. Grovier, the widow, 
 delivered to him, on the 15th of July, 1854, 
 two hundred dollars, which had been some 
 time before paid to her on demands belong- 
 ing to the estate, and tools from him his in- 
 dividual note, running to herself, therefor; 
 that, shortly after the death of Mr. Grovier, 
 his widow found, and took from a trunk of 
 the deceased, one thousand dollars, which, 
 on the 5th of June, 1852, she delivered to 
 HaU, and received from him therefor his 
 mortgage on real estate, as for so much 
 money loaned by her to him in his individ- 
 ual character; that Hall was the brother of 
 Mrs. Grovier, the widow of Isaac J. Gro- 
 vier, and was well acquainted with the fi- 
 nancial ability of the deceased ; and that Mrs. 
 Grovier had no property when she married, 
 and acquired no separate property after- 
 wards; that, after the death of Mr. Gro- 
 vier, Hall acted as the business agent of his 
 sister, the widow, she having no business 
 experience, and that she depended entirely 
 upon him, and allowed him to control every- 
 thing relating to the estate; that, in giving 
 his account as administrator, he did not in- 
 clude the foregoing items, but knew all the 
 time, that the moneys belonged to the es- 
 tate. 
 
 On the part of the administrator, evidence 
 was likewise given, tending to show, among 
 other matters, that he had no knowledge, or 
 reason to believe, that the moneys received 
 by him from his sister, the widow, belonged 
 to the estate, until a short time before he ren- 
 dered his final account, and supposed they 
 belonged individuaUy to her, and that he 
 dealt with her in respect to such moneys, 
 according to that opinion, and in the faith 
 of it; that he borrowed the money from her, 
 and paid her interest upon it. 
 
 In view of this evidence, the second assign- 
 ment of error complains of the following 
 passage in the charge to the jury: 
 
 "If Hall was informed, by persons who 
 had knowledge of the matter, and he had 
 reason to believe, or know, that these 
 moneys belonged to the estate, at any time 
 before he rendered his "final administration 
 account, and he had taken up and satisfied 
 the security he had given, before he was so 
 informed, that he should account for the 
 same with interest, and the prior treatment 
 of the moneys as the money of Mrs. Grovier, 
 or prior want of knowledge as to their 
 source, is no defense to the claim of the ap- 
 pellant." 
 
 ABB. WILLS — 42 
 
 It is argued for the administrator, in sup- 
 port of the exception to this instruction, that, 
 if the facts were such as the evidence for 
 Hall tended to prove, then he never had pos^ 
 session of the money in question as admin- 
 istrator, and ought not to be charged with it, 
 and certainly not with interest upon it. 
 
 This position is not assented to. If the 
 money, when HaU received it, belonged to the 
 estate, and if, before he rendered his ac- 
 count, he ascertained or had reason to be- 
 lieve that it was the property of the estate, 
 it was certainly right that he should be 
 charged with it in his account. 
 
 In contemplation of law it was still in his 
 hands. His Ignorance of the ti-ue title, if he 
 was ignorant of it, when he received the 
 money, had not led to its applicatiorf under 
 the trust in some way foreign to the legal 
 destination, and no fact was shown or sug- 
 gested, of a nature to excuse him as an ad- 
 ministrator, from being debited with the 
 amount. 
 
 It is manifest that, before he rendered his 
 account, he knew, or had reason to believe, 
 that the money belonged to the estate he 
 represented, and still he refused to charge 
 himself with it, or acknowledge, by his ac- 
 count, that it had been received. This was 
 such a misbehavior in his trust as the com-t 
 ought to notice in an accounting. 
 
 The decedent died in July, 1850, and the 
 administrator was appointed shortly after. 
 He received two hundred dollars in October, 
 1851, and one thousand dollars in June, 1852. 
 During the long period which has intervened, 
 the administrator has retained the money 
 and failed to close up his trust, and in order 
 to efEect a settlement of the estate at last, it 
 has been found necessary to coerce him by 
 legal proceedings. Under these circum- 
 stances, it seems to me quite proper that 
 he should be charged with interest. The es- 
 tate will thereby receive no more than jus- 
 tice, and the trustee, in view of the facts 
 disclosed by this record, wiU have no just 
 ground for complaint. 
 
 The eighth and ninth assignments of error, 
 relate to the form of the judgment. It is 
 said that the judgment is erroneous because 
 it orders the administrator to pay to the es- 
 tate the sum fixed by the jury, with interest 
 from the date of the verdict, and in another 
 paragraph requu:es him to settle his account 
 before the probate court, and pay over the 
 sum found by the jury, within ninety days, 
 to the persons entitled. 
 
 Before considering the construction of the 
 judgment, it seems proper to attend to the 
 reasoning of counsel for plaintiff in error, on 
 this subject He contends, in his brief, that 
 the judgment should have been simply that 
 the administrator charge himself in his ac- 
 count with the several sums belonging to 
 the estate, found by the jury to have been 
 received by him, and that the circuit court 
 
 657 
 
Case No. 247 
 
 HALL V. GROVIER. 
 
 (§167 
 
 should then have remitted the case to the 
 probate court to complete the accounting; 
 and, as serving to show that such was the 
 judgment which the case required, and that 
 no other was adapted to it, he states that 
 the only issue was, "whether Hall should 
 account for— that is, charge himself in his 
 account with — certain sums of money;" that 
 "it having been determined, by the verdict 
 of the jury, that he ought to charge him- 
 self, he had a right to discharge himself by 
 accounting for the disposition made of such 
 money;" that, as evidence had been given 
 tending to show that Mrs. Grovier was a 
 creditor in a larger sum than that in ques- 
 tion, and had received the benefit of the 
 money, it was still open to the administrator, 
 in completing his account in the probate 
 court, to show in his discharge that the 
 money had gone into the hands of a creditor 
 of the estate. 
 
 I have been thus particular in repeating 
 the argument in the brief, because I think it 
 pi-oceeds upon a misapprehension of the na- 
 ture of the proceeding before us, and one, 
 too, involving serious consequences. It cer- 
 tainly mistakes the proceeding, unless the 
 record is misleading, and unless the course 
 which seems to have been pursued, has been 
 incongi'uous and inapprot)riate. 
 
 Although our statutes which relate to the 
 matter of accounting by executors and ad- 
 ministrators, are not very minute, precise, 
 or instructive, there are still some points 
 which are pretty clear. 
 
 Two things are contemplated which are 
 wholly distinct. They are: the rendering of 
 an account, and the settlement of an account. 
 The rendering of an account and the settle- 
 ment of it after it has been rendered, are 
 not one and the same proceeding, though the 
 lattt is often directly connected with the 
 former. The rendering must precede the set- 
 tlement. 
 
 It is the design of our laws that our pro- 
 bate records shall furnish all requisite . in- 
 formation relating to tlie estates of deceased 
 persons, in order that heirs, creditors, and all 
 others interested may resort to them with 
 confidence, for the purpose of ascei'taining 
 their respective rights, and the course of ad- 
 ministration. In keeping with this desisn, 
 the law requires "every executor or admin- 
 istrator to render his account of his admin- 
 istration within one year from the time of 
 his receiving letters testamentary, or of ad- 
 ministration," unless, for the reason stated 
 in the statute, the court gives further time 
 and he may be required to render further ac- 
 counts from time to time, until the estate is 
 wholly settled, and may be examined on 
 oath upon any matter relating to an account. 
 Gomp. Laws, § 2985. 
 
 Here the duty enjoined upon the repre- 
 sentative, and the authority given to the 
 court, are intended to secure upon the rec- 
 ords a full and complete exhibition of the 
 
 658 
 
 condition of the estate from time to time, 
 and of the course of the trustee in the per- 
 formance of his trust. The representative 
 having rendered his account, the matter is 
 open to such corrections as the truth requires. 
 Settlements may be had from time to time, 
 of particular accounts or items as is thought 
 best, and a final settlement should take place, 
 preparatory to the closing up of the trust, 
 In case of settlement, whether intermediate 
 or final, notice must be given of the time 
 and place to all persons interested (Gomp. 
 Laws, § 2990); and this requirement faUs in 
 with the nature of the proceeding. The ob- 
 ject of a settlement is not merely to ascer- 
 tain what items ought to be placed on the 
 debit side of the administrator's account, sub- 
 ject to evidence on a future proceeding, that 
 he ought not to have been charged therewith 
 as between himself and the estate. Its scope 
 is more comprehensive and complete. 
 
 The end to be accomplished is to judicions- 
 ly liquidate and settle the affairs of his trust, 
 and determine the rights of the estate as 
 against him, and his rights as against the es- 
 tate, and the proceeding involves an adjudi- 
 cation upon each item. Parties interested 
 may surcharge, or falsify the account, and 
 the administrator may proceed by discharge, 
 and defense. The dispute, if any, may turn 
 upon the introduction and allowance of new 
 items, or the allowance of old ones. Evi- 
 dence may be produced on each side, so far 
 as necessary, and, when the hearing is closed, 
 the court must adjudgo what to allow and 
 what to disallow, and settle the particular 
 account. When the determination is made, 
 the account adjudicated upon is settled on 
 both sides. The result is not partial niiil 
 measurably inconsequent, as it would be if it 
 only effectuated a correction of the debit 
 side of the account as rendered by the ad- 
 ministrator, and left it open to him there- 
 after, in effect, to strike out inserted items, 
 by proof that he had applied them for the 
 benefit of the estate, before the settlement. 
 
 The tenor of the record strongly implies 
 that the case was one upon settling the ad- 
 ministrator's account, and that defendant in 
 error insisted on surcharging the account with 
 certain items which was resisted by the ad- 
 ministrator, on the ground that such items 
 were not then chargeable against him, in 
 favor of the estate, and that the jury found 
 in his favor as to part of such items, and 
 against him, as to the residue. If this were 
 the case, then the determination disposed of 
 whatever defense the administrator had, 
 based on the particular appUcation he had 
 before made of the money, and he could not 
 go into the probate court thereafter, and, in 
 effect overturn that adjudication, by obtain- 
 ing a decision there, that when the judgment 
 of the circuit court was given, the demand 
 was not allowable against him. 
 
 If upon the whole case the opinion was ad- 
 missible, that nothing more was done than 
 
§ 167) 
 
 HALL V. GROVJER. 
 
 Case No. 247 
 
 to ascertain whether the spedflc items were 
 proper ones for the debit side of the account, 
 and that the decision upon svicU iuquify, that 
 they were so, was still subject to be prac- 
 tically overridden by a regular decision of 
 the probate court, upon the grounds suggest- 
 ed, then there would be room for contending 
 that the action of the circuit court lacked 
 that final character reiuired to authorize a 
 writ of error. Holbrook v. Cook, 5 Mich. 
 225. The administrator has, however, brought 
 the case here, and by suing out tlie writ of 
 «rror, he substantially asserted that the case 
 was, according to his understanding, a proper 
 one to be reviewed on writ of error. 
 
 In taking this view, the court think he was 
 correct, and it cannot accede to the argu- 
 ment in the brief, that the object of the trial 
 was to ascertain, in effect, no more than 
 whether certain items should have been orig- 
 inally placed in the inventory. Having con-, 
 sidered the reasons urged by the plaintiff in 
 error for reversal, based on the form of the 
 judgment, and deeming them insufiicient, it 
 remains to add a few words upon the general 
 objection to the judgment entry. It is un- 
 doubtedly true that this entry has some form- 
 al inaccuracies. The court below was re- 
 quired to settle the account in controversy, 
 and to award costs, according to law, but 
 leaving it to the probate court to go on. Upon 
 
 the footing of the settlement adjudicated in 
 the appellate court. The circuit court ought, 
 therefore, to have made an order upon the 
 finding, deciding in favor of the allowed 
 items, and against those disallowed, and cer- 
 tifying the determination to the probate court 
 
 The time of payment by the administrator 
 was not a legal consequence of the verdict, 
 and the court had no power to make any or- 
 der concerning it. When the issues, and the 
 question of costs, were disposed of, the rest 
 was for the primary jurisdiction, ■ the probate 
 coiu-t. The objectionable passage in the or- 
 der was an excess of jurisdiction, was not 
 binding on the probate court, and never had 
 any force. No process was awarded to en- 
 force it, and, by itself, it was quite harmless. 
 
 Disregarding the passage in question as 
 nugatory, and as incapable of producing any 
 prejudice to the plaintiff in error, I think the 
 residue of the entry substantially correct. 
 The form, perhaps, might be improved, but I 
 discover no essential irregularity. Whatever 
 is open to criticism In the judgment entry, 
 is cured by the statute of amendments. Eev. 
 St. 1846, c. 104; Emery v. Whitwell, 6 Mich. 
 474. 
 
 This disposes of all the points not aban- 
 doned by the plaintiff in error, and leads to 
 an affirmance of the judgment, with costs. 
 
 The other justices concurred. 
 
 65'J 
 
Case No. 248 
 
 BROOKS 0. JACKSON. 
 
 (§ 167 
 
 BROOKS V. JACKSON et al. 
 
 (125 Mass. 307.) 
 
 Supreme Judicial Court of Massachusetts. 
 Middlesex. Jan. 21, Aug. 31, 1878. 
 
 Action of contract on a bond by George M. 
 Brooks, judge of probate, against Abram 
 Jackson and others. The bond was condi- 
 tioned that Jackson, as executor, should ad- 
 minister the estate of Joanna Latham ac- 
 cording to lav/. In April, 1875, Jackson was 
 removed for not rendering an account, and 
 an administrator de bonis non was appoint- 
 ed. Jackson had collected, before his re- 
 moval, rents of the estate, and a small sum 
 after his removal. While Jackson was ex- 
 ecutor, he was endeavoring to effect a sale 
 of the real estate under a power of sale given 
 him under the wiU. Jackson was neither an 
 heir nor devisee under the will. The court 
 disallowed the claim of Jackson for compen- 
 sation, and decided that defendants were 
 not liable for the rents collected by him, 
 and reported the case to the fuU court. 
 
 W. A. Herrick, for plaintiff. J. Cutler, for 
 defendants. 
 
 GRAY, C. J. In the absence of special de- 
 vise or contract, the rents and profits of the 
 real estate of a deceased person belong to his 
 heirs or devisees, and not to his administra- 
 tor or executor, even if the estate is insol- 
 vent, unless and until the real estate is sold 
 for the payment of debts, under a power ex- 
 pressed in the will or by license of court; 
 and if the executor or administrator receives 
 such rents, the heirs or devisees may recover 
 them from him in an action at law. Gibson 
 V. Farley, 16 Mass. 280. 
 
 It has been provided by statute, that if the 
 executor or administrator uses or occupies 
 any part of the real estate, he shall account 
 for the income thereof as ordered by the 
 probate court, with his assent and the as- 
 sent of such other parties interested as are 
 present at the rendering of the account; and 
 that, if the parties do not agree, the sum to 
 be allowed shall be determined by commis- 
 sioners appointed by that court. Gen. St c. 
 98, § 8; Rev. St. c. 67, § 6; St. 1789, c. 11, § 2. 
 
 This provision has always been construed 
 as applying as well to rents received by the 
 executor or administrator as to the use of 
 real estate occupied by him in person; and 
 we can have no doubt that it extends to his 
 occupation or receipt of rents from the time 
 
 fioO 
 
 of the death, to which his appointment re- 
 lates. It requires him to account for rents 
 and profits received or enjoyed by him to 
 none but those to whom they belong; and if 
 he is himself the heir or devisee, he is not 
 obliged to account for them at all. When 
 he is not himself heir or devisee, he is re- 
 quired by the statute to account for them in 
 the probate court, but to the heirs or devisees 
 only, unless they, either expressly, or by im- 
 plication from assenting to his accounts in 
 which he has charged himself with rents as 
 part of the general assets, have agreed that 
 they shall be applied to the payment of 
 debts, legacies and expenses of administra- 
 tion, in which case he is chargeable accord- 
 ingly. Stearns v. Stearns, 1 Pick. 157; New- 
 comb V. Stebbins, 9 Mete. (Mass.) 540, 544; 
 Palmer v. Palmer, 13 Gray, 326, 328; Alden 
 V. Stebbins. 99 Mass. 616; Almy v. Crapo, 
 100 Mass. 218; Towle v. Swasey, 106 Mass. 
 100; Choate v. Arrington, 116 Mass. 552. 
 
 The provision in the will, by which the tes- 
 tatrix charged and bound her real estate, 
 and authorized her executor to sell it, had no 
 other force than to create a lien upon the es- 
 tate, and a power to sell it to satisfy that 
 lien. It did not affect the right of heirs or 
 devisees in the rents until the power was 
 executed by a sale. Newcomb v. Stebbins, 
 above cited; Lobdell v. Hayes, 12 Gray, 236. 
 
 The rents received by Jackson in this case, 
 from the time of the death of the testatrix 
 to the time of his own removal from the of- 
 fice of executor, and which he was required 
 by the statute to account for in the probate 
 court, either to the heirs or devisees, or as 
 part of the general assets, were goods not 
 administered, which the administrator, with 
 the will annexed, was entitled to receive 
 from him; and the executor's failure to ac- 
 count for and pay over the same was a 
 breach of his bond, for which he and his 
 sureties are liable. But the rents collected 
 by him since his removal were not received 
 by him as executor, or in any sense to be 
 accounted for as such, and for them he can- 
 not be charged in this action. 
 
 There is nothing in the case to show that 
 the judge before whom the hearing was had 
 erred in disallowing compensation to Jackson 
 for his services as executor. 
 
 Pursuant to the terms of the report, the 
 case is to be referred to a master to compute, 
 according to the rules stated in this opinion, 
 the amount for which 
 
 Execution shall issue. 
 
§ 168) 
 
 HARGTHORPE v. MILFORTH. 
 
 Case No. 249 
 
 HARGTHORPE v. MH,FORTH et al. 
 
 (Cro. Eliz. 318.) 
 
 Queen's Bench. Easter Term, 36 Eliz. 
 
 Debt against the defendants as executors. 
 They pleaded "fully administered," and so 
 nothing in their hands. Upon issue the jury 
 found, that they two, and one Agnes Mil- 
 forth their mother, were made executors; 
 and that Agnes had administered, and wast- 
 ed goods to the value of six hundred pounds, 
 and that the defendants had not of the 
 goods of the testator but to the value of six- 
 teen pounds; and that Agnes was dead: 
 and, if they should be charged by this dev- 
 astavit of their co-executor, or only charged 
 for the sixteen pounds? was the question. 
 The coiu:t held clearly, that one executor 
 shall not be charged by the devastavit made 
 by his companion; for the act of one exec- 
 utor shall charge the other no further than 
 the goods of the testator in his hands amount 
 unto, but not to charge him of his own 
 goods; for it was the folly of the testator to 
 put such trust in one that would do such 
 acts to his disadvantage; but the acts of 
 one shall not hurt the other, for their own 
 Koods: as if one executor will confess an ac- 
 tion, this shaU bind the other: so if he will 
 
 release an action, or give away all the goods 
 of the testator, this shall bind his compan- 
 ion. Vide 3 & 4 Eliz., 2 Dyer, 210; 21 Hen. 
 VI. pi. 4(1 Where they shall be charged of 
 the goods of the testator, the non-suit, re- 
 lease, or other act of one shall bind the oth- 
 er; but not If they shall be charged of their 
 own goods. 11 Hen. IV. 69. Where both do 
 waste the goods, execution shall be against 
 both of their proper goods. 
 
 It was then moved, if judgment shall be 
 against them of the whole debt, or of so 
 much as is found in their hands? And the 
 court held clearly, that judgment shall be of 
 the whole debt, but that execution shall be 
 only for the sixteen pounds which is found 
 to be in their hands; for otherwise the plain- 
 tiff shall be barred of the residue, which is 
 inconvenient. Vide 46 Bdw. III. pi. 9; 7 
 Edw. IV. pi. 9; 33 Hen. VI. pi. 24; 34 Hen. 
 VI. pi. 24. 
 
 And afterwards, at the end of the term, 
 all the prothonotarles of the common pleas 
 certified that their course was not to enter 
 judgment of the whole debt, but only that 
 he shall recover so much as was found in 
 their hands; and thereupon the justices 
 would advise of their judgment in that point: 
 btit for the first point they were aU resolved 
 ut supra. 
 
 661 
 
Case No. 250 
 
 POWELL V. EVANS. 
 
 (§ 165 
 
 POWELL v. EVANS et al. 
 
 (5 Ves. 839.) 
 
 High Court of Chancery. 1801. 
 
 The testator, after giving some legacies, 
 bequeathed the residue of his estate to the 
 plaintiff Mrs. Powell, then an infant, in case 
 she should attain the age of twenty-one; 
 with a limitation over upon her death under 
 that age; and appointed the defendants 
 Evans and James his executors. The testa- 
 tor died in 1792. At the time of his death 
 part of his personal estate was out upon per- 
 sonal secm-ity; and one sum of £300 upon 
 the bond of Charles Price as principal, and 
 
 Roberts, as surety. The executors did 
 
 not call in the money; but permitted the 
 securities to remain, as they found them. 
 There was no necessity for calling them in: 
 the legacies, except to a trifling amount, be- 
 ing contingent. The interest upon the bond 
 for f300 was regularly paid by Price to the 
 5th of August, 1795. In April, 1796, he be- 
 came bankrupt. Until that event no appli- 
 cation was made by the plaintiffs, who were 
 married in 1794, to the executors to call in 
 the money out upon security: but after- 
 wards upon an application they proceeded to 
 get in the remainder. Nothing was ever re- 
 ceived upon the bond of Price; no dividend 
 being made imder the bankruptcy; and the 
 surety having absconded. Notwithstanding 
 this, Evans signed the bankrupt's certificate. 
 
 Mrs. Powell having attained twenty-one, 
 the bill was filed for an account; and under 
 these circumstances the master had charged 
 the executors with the principal sura of £300 
 and a year's interest due upon the bond. 
 The defendant James took an exception to 
 the report. 
 
 It appeared by the examination of Price, 
 that he had been failing for some time be- 
 fore his bankruptcy; that during that time 
 he paid several debts; for which he was 
 called upon; and he represented, that this 
 debt, if called for, might have been paid. 
 He also stated, that at the execution of the 
 bond the surety was considered a respon- 
 sible person. 
 
 The answer, which was not replied to, 
 stated, that the defendants in conversation 
 with the testator making some objection to 
 undertake the office of executors, he told 
 them, they would have nothing to do but to 
 receive the interest of his money out upon 
 securities. The defendant Evans consulted 
 Mr. Powell as to signing the bankrupt's cer- 
 tificate; who told him, he might do what he 
 thought proper about it Evans then wrote 
 to his son, who was in the profession of the 
 law; and upon his advice signed it without 
 any communication with his co-executor. 
 
 Mr. Eomilly and Mr. Hall, in support of 
 the exception. Mr. Lloyd and Mr. Hubbers- 
 ly, for plaintiffs. 
 
 662 
 
 THE MASTER OF THE ROLLS. I shall 
 be under the necessity of looking into this 
 case and Lowson v. Oopeland, 2 Brown, Ch. 
 156. Certainly there is a great distinction 
 between executors putting out the mopey 
 themselves, and permitting it to remain upon 
 the security the testator has chosen. 
 
 THE MASTER OF THE ROLLS. The 
 single question upon this exception is, 
 whether the executors have by their conduct 
 and neglect made themselves liable to make 
 good to the estate this sum of money, as be- 
 ing lost through their default. It is a ques- 
 tion of great importance; to which the coui-t 
 is bound to attend with great rigour; on the 
 one hand, to protect persons not capable of 
 supporting their own interests, which was 
 the case of this plaintiff, having been an in- 
 fant at the time; and also with great tender- 
 ness to executors, who are called upon to ex- 
 ecute often onerous and difficult trusts; and 
 are entitled to great indulgence; unless neg- 
 lect is fully proved. No man who ever sat 
 in this court has been more averse than I am 
 to charge executors, who intended fairly to- 
 discharge their duty, and more cautious not 
 to hold them liable upon slight grounds; 
 thereby deterring others from taking upon 
 them such an office. With a due attention 
 to these circumstances I have considered 
 this case; and with all the allowance I am 
 desirous of making to the present defendants 
 as executors, I think, I should not do justice 
 to the plaintiffs or the public, if I did not 
 hold them guilty in this instance of very 
 gross neglect; which upon the principles, on 
 which these cases have been determined, 
 must make them liable to repay to the plain- 
 tiffs the loss incurred. 
 
 It appears from the account of the exec- 
 utors, that at the death of the testator this 
 sum of £300 was due only upon the bond of 
 Price and of Roberts; who is gone no one 
 knows where. At the time he entered into 
 this security. Price in his examination says, 
 he was a responsible freeholder's son. Down 
 to the year 1795, not a single application 
 was made, either to inquire into the situa- 
 tion and circumstances of Price, or to call 
 upon him to pay in the money; which cer- 
 tainly was their duty. I desire to be under- 
 stood, that debts due upon personal secm-ity 
 are what executors without great reason 
 ought not to permit to remain longer than is 
 absolutely necessary. However I make al- 
 lovrajice for ignorant people. Their defence 
 is, that as the testator lent the money upon 
 that security himself, they might well repose 
 upon it. Therefore they admit, they made 
 no attempt to have it paid in, or even in- 
 quired into the circumstances of the debtor; 
 but permitted it to remain. He paid his in- 
 terest regxilarly; and tiat satisfied them. 
 But upon his own examination it appears, 
 that all this time he was a falling man. He 
 
168) 
 
 POWELL c. EVANS. 
 
 Case No. 250 ' 
 
 paid several debts, for which he was called 
 upon: and he represents, that he would have 
 paid this, if he had been called upon. It 
 ended in total insolvency, and at length in 
 bankruptcy. 
 
 If the case stood here, only upon leaving 
 the bond without inquiring into the circum- 
 stances of either the principal or surety, I 
 should have tliought, upon the authority of 
 Lowson V. Copeland, and other cases of that 
 sort, the executors would have been liable: 
 for where infants are concerned, they are 
 not to permit money to remain upon per- 
 sonal seciu-ity. But a circumstance occurred 
 in this case after the banljruptcy. One of 
 these persons signed the certificate. A more 
 rash thing never was heard of. What right 
 had he, without consulting the cestuy que 
 
 trust, to absolve the bankrupt from any fur- 
 ther demand? That stamps a colour upon 
 this case, that would not otherwise belong 
 to it. The reasons he gives are perfectly 
 ridiculous. He says, the certificate was 
 brought to him; and he asked the husband 
 of the plaintiff, whether he should sign it; 
 who desired him to do as he pleased; and 
 then he wrote to his son, who was in the 
 law; who told liim, he had better sign it; 
 and so he did. But I do not put it upon that. 
 I am bound to hold, that these executors 
 were guilty of neglect; which neglect, it ap- 
 pears, has lost this money; for Price says, 
 in his examination, he would have paid it if 
 called upon. 
 
 Over-rule the exception; and the plaintiffs 
 must have the deposit. 
 
 663 
 
Case No. 251 
 
 CHAMBEKS v. MINCHIN. 
 
 (§ 168 
 
 CHAMBERS v. MINCHIN. 
 
 (7 Ves. 186.) 
 
 High Court of Chancery. 1802. 
 
 Lucy Russell, by her will, gave and be- 
 queathed to William Minchin, and William 
 Green, the "sum of £2400 in the 5 per cent. 
 consoUdated bank annuities;" in trust in 
 the first place to pay the interest and pro- 
 ceeds of one moiety imto and between her 
 cousins Jane Snook and Elizabeth Clarke in 
 equal proportions during their joint lives; 
 and upon the death of either of them then 
 to pay the whole interest of the said moiety 
 to the survivor during her life; and to pay the 
 interest, and proceed of the other moiety 
 "of the said sum of £2400" unto John Cham- 
 bers, until such time as his daughters Ann' 
 Jane, Elizabeth, and Lucy Chambers, re- 
 spectively attain their ages of twenty-one 
 years; and from and after the decease of 
 the survivor of them, the said Jane Snook 
 and Elizabeth Clarke, the testatrix gave and 
 bequeathed the interest of the said other 
 moiety in like manner unto John Chambers, 
 until his said daughters shall respectively 
 attain their ages of twenty-one; and when 
 as each of them shall attain such age, di- 
 rected, that a proportionate part of the said 
 "moiety of £2400" shaU be transferred into 
 the name of each of them on attaining such 
 age respectively; and upon the death of the 
 survivor of them, the said Jane Snook and 
 Elizabeth Clarke, (provided they shall have 
 attained such age as aforesaid,) then a pro- 
 portionate part also of the other moiety to 
 be in like manner transferred to each of 
 them respectively on their attaining such 
 age, as aforesaid; and in case of the death 
 of either of the daughters of John Chambers 
 Ibefore the age of twenty-one the testatrix di- 
 raeted, that the share of her or them so 
 dying shall go to and be equally divided 
 amongst the survivors on attaining their re- 
 spective ages of twenty-one years, as afore- 
 said. 
 
 The testatrix then gave to John Chambers 
 the sum of £50 for moiurning for himself 
 and children and several specific and pecun- 
 iary legacies; and gave all the rest and 
 residue of her goods, chattels, personal es- 
 tate and effects, after payment of her debts, 
 funeral and testamentary charges and ex- 
 penses, to Mary Midford, Ann RothweU, and 
 Jane Snook and Elizabeth Clarke, and the 
 survivors of them, in equal proportions, to 
 1)6 paid them separate and apart from their 
 respective husbands. The testatrix then ap- 
 pointed Minchin and Green executors and 
 trustees of her will; directing that they 
 should be indemnified from all costs and 
 charges in and about the execution of the 
 said will; and gave them the sum of £50 
 each over and above the sum of £300 before 
 given to Minchin. 
 
 The testatrix died In February, 1797. The 
 bill was filed on the I2th of February, 
 1798, by John Chambers and his infant 
 6G4 
 
 daughters; praying, that the trusts of the 
 will may be performed, so far as it con- 
 cerns the plaintiffs in respect of the legacy 
 of £2400 in 5 per cent, bank annuities; that 
 it may be declared, whether the testatrix 
 meant, the sum of £2400 in money should be 
 laid out in the purchase of such 5 per cent, 
 annuities; or, that so much money should 
 be laid out as would purchase the sum of 
 £2400 stock in the 5 per cent, annuities; that 
 directions may be given accordingly; and 
 that the fund may be secured for the benefit 
 of the infant plaintiffs. 
 
 The testatrix at the date of her will and 
 at her decease was not entitled to any stock 
 except £156 a-year bank long annuities. The 
 executors by their answer, filed the 5th of 
 May, 1798, stated the negotiation, that took 
 place previously to the filing of the bill, 
 with reference to the question upon the leg- 
 acy to the plaintiffs. They admitted, that 
 they had possessed of the personal estate 
 more than sufficient for the debts and leg- 
 acies: and submitted, whether the legacy to 
 the plaintiffs is specific; and whether they 
 have any right to any part of the personal 
 estate; but believe, the testatrix intended 
 to give the sum of £120 a-year, part of the 
 sum of £156 a-year bank long annuities, in 
 trust for the pm-poses mentioned in the will; 
 and not, that the sum of £2400 should be laid 
 out in 5 per cent, bank annuities, or that so 
 much money should be laid out in such fund 
 as would purchase the capital stock of £2400. 
 Green stated, that he prepared the will; and 
 that from the instructions of the testatrix 
 he understood, she intended the interest only 
 of so much of her money as was then invest- 
 ed in any of the public funds bearing interest 
 at 5 per cent, but for want of proper instruc- 
 tions he erroneously called the same 5 per 
 cent, consolidated bank annuities, instead of 
 bank long annuities; wherein her money 
 was then invested; and he also understood, 
 the testatrix did not intend, that any part 
 of the stock should be sold for the purpose 
 of investing the produce in any other public 
 stock; but that so much as would pay the 
 sum of £120 a-year should remain in the 
 names of the defendants until the respective 
 deceases of Jane Snook and Elizabeth 
 Clarke, and after the decease of the survivor 
 should be transferred to the plaintiffs upon 
 attaining twenty-one. 
 
 The defendants further stated, that they 
 believe, that. In case a sufficient part of the 
 . personal estate shall be laid out in the pur- 
 chase of £2400 in the 5 per cent, navy an- 
 nuities, the personal estate will be very lit- 
 tle more than sufficient for the debts, leg- 
 acies, and funeral expenses. 
 
 By the decree, made on the 7th of June, 
 1799, the accounts were directed against 
 each of the executors; and it was declared, 
 that the bequest of £2400 expressed in the 
 will to be 5 per cent, consolidated bank an- 
 nuities was intended to be a legacy of £2400 
 5 per cent, bank annuities; and, in case there 
 
§ 168) 
 
 CHAMBERS v. MINCHIN. 
 
 Case No. 251 
 
 should be sufficient to pay the debts, fu- 
 neral expenses, and legacies, and the costs 
 ■of this suit, it was ordered, that the defend- 
 ants Minchin and Green should purchase 
 out of the testatrix's estate £2400 5 per cent, 
 bank annuities, and directions were given 
 for transferring the fund, when purchased, 
 to the accountant-general upon the trusts de- 
 clared by the will. 
 
 The master's report stated the accounts; 
 upon which some debts and legacies were 
 stiU unpaid; and that the aefendants Min- 
 <;hin and Green had not purchased £2400 
 "banli annuities, as directed by the decree. 
 The cause coming on for further directions, 
 it appeared, that the long annuities had been 
 sold out; and that Minchin had absconded 
 insolvent; upon which an inquiry was di- 
 rected, under what circumstances Green ex- 
 ecuted the power of attorney to Minchin for 
 sale of the long annuities. Upon that refer- 
 ence the master stated the affidavit of Green, 
 who was an attorney at Basingstoke, and 
 acted in the affairs of the testatrix there, 
 not to a great extent, that Minchin, who re- 
 sided in London, had the sole management 
 and conduct of all the affairs of the testatrix, 
 transacted in London; that in April, 1799, 
 Minchin sent to him a power of attorney to 
 sell out the long annuities; that Green be- 
 ing fully impressed with the truth of a let- 
 ter from Minchin, dated the 9th of February, 
 1798, and that it was necessary for him to 
 execute the power of attorney for the pur- 
 poses of the will immediately signed it; and 
 that he had no motive whatever for signing 
 it than for the purpose of enabling Minchin 
 to carry into execution the trusts of the will. 
 The master also stated, that the only part 
 of the letter relating to the execution of the 
 power of attorney was these words: "I am 
 ■conclusively of opinion, that it will be bet- 
 ter for aU parties to purchase into the 5 
 per cents, on the score of policy and pru- 
 dence; and, when we meet, wiU assign my 
 reasons for it." 
 
 This letter also stated, that Minchm had 
 written to Chambers, that he should be ap- 
 prized of their determination in ten days; 
 that the 10th day expired that morning; and 
 he, (Minchin,) had just received the label 
 of a subpoena; and supposed one had reach- 
 •ed Green. 
 Mr. Piggott and Mr. Trower, for plaintiffs. 
 Mr Bichards, Mr. Cox, and Mr. Thomson, 
 for defendant Green, cited Hovey v. Blake- 
 man, 4 Ves. 596. 
 
 LORD CHANCELLOR. That case is very 
 rightly decided. It is the business of the 
 execuLr to pay the debts, and to find out the 
 creditors: for they need not demand but by 
 an action. He could not go personally about 
 the country. If he sends a trusty person, 
 that is all that can be expected; and there he 
 made the best choice possible, the person 
 trusted by the testator in his life and at his 
 
 death, and for a purpose, in which he was 
 answerable as executor. The fact in this in- 
 stance is, that the fund was in the hand of 
 the court: no act necessary but to join in a 
 transfer to the accountant-general. If the 
 purpose was to change the fund, as the court 
 would order it to be changed, as from long 
 annuities to 3 per cents, and the executor 
 in the country executes a power of attorney 
 to the executor in town for that purpose, I 
 admit, that is justifiable; being for a pur- 
 pose belonging to the administration of as- 
 sets; but not to change it to bank stock. 
 It is one thing for an executor upon a com- 
 munication by the other to accede to a pur- 
 pose directly connected with the will: and 
 another, wheie it arises out of the acts of 
 parties out of the will. In Balchen v. Scott, 
 2 Ves. Jr. 678, the executor determined not to 
 act. What could he do then but hand it 
 over to the other? 
 
 LORD CHANCELLOR. I shaU look through 
 the cases, not from any doubt how I ought to 
 decide this; but being unwilling to risk any 
 ground, that might militate against that, 
 which is taken to be the present rule. In 
 Sadler v. Hobbs, 2 Brown, Ch. 114, Lord 
 Thurlow took a great while to consider; and 
 decided It, as his habit was, not upod cir- 
 cumstances, but upon a principle that he 
 hoped would stand; and not only upon the 
 principles of this court, but of law. His 
 lordship expressed a decided opinion against 
 Westley v. Clarke, 1 Eden. 357; and not in 
 that instance only; for he abided by Sadler 
 V. Hobbs always afterwards both in bank- 
 ruptcy and upon other occasions. I am now 
 called on to decide between that case and the 
 opinion expressed by Lord Alvanley in Ho- 
 vey V. Blakeman, 4 Ves. 596, setting up Lord 
 Northington's rule again. 
 
 LORD CHANCELLOR. I am not able to 
 satisfy myself that the opinion I have formed 
 upon this case is wrong. With regard to this 
 legacy these executors are made trustees. 
 It appears from the answer, to which and 
 the report I shall confine myself, that pre- 
 viously to the filing of the bill the plaintiff 
 had been claiming, that this sum should be 
 laid out in 5 per cent, navy annuities; that 
 the executors resisted that claim; that the 
 residuary legatees were thought to be inter- 
 ested in that resistance; that it was sug- 
 gested, as convenient to all, and not much 
 expense to those interested in the residue, 
 that the 5 per cent, navy annuities should be 
 bought; that a proposition for that purpose 
 was about to be adopted; and while that 
 was in agitation, the bill was filed. That 
 fact is very material, with reference to the 
 date of the letter, referred to in the report, 
 three days only previous to the filing of the 
 bill Upon the admission in the answer, 
 charging themselves with the joint posses- 
 sion of assets sufficient to pay all the debts 
 and legacies, a decree somewhat different 
 
 6Go 
 
Case No 251 
 
 CHAMBERS V. MINCHIN. 
 
 .(§ 16S 
 
 might have been made; and it might have 
 been argued with considerable colour, that 
 the moment the construction was given to 
 this bequest, both the defendants should 
 have been forthwith ordered to pay this leg- 
 acy among others; and it was upon them 
 to show by strong and pregnant evidence, 
 either, that It was an improvident admission, 
 or, that some circumstances had occurred 
 since the answer, entitling them not to be 
 considered as having possessed sufficient for 
 all the legacies as well as the debts. In 
 most of the affairs of the testatrix, connect- 
 ed as to local administration with this place, 
 Mlnchin principally acted. Green acted In 
 some of her affairs at Basingstoke, though 
 not to a very great extent; and he very rash- 
 ly and most improvidently placed an unlim- 
 ited confidence in Minchin as to the affairs 
 here. Minchin was, not only his co-trustee, 
 but also his town-attorney and agent in this 
 cause; and it Is very clear, that, if a trustee 
 trusts an attorney, he must abide by the 
 effect of that confidence. There is no evi- 
 dence as to the circumstances attending the 
 transmission of the power of attorney, but 
 the simple fact, that It was sent and re- 
 turned. Whether any thing of the pm-pose, 
 for which It was sent, was communicated, is 
 not disclosed. There is no manner of evi- 
 dence, upon which It can be collected, that If 
 their judgment, as stated In their answer, 
 was wrong, any circumstances had occurred, 
 leading to a bona fide correction of it; or 
 any transaction among those claiming under 
 the will between the time of putting in the 
 answer and the sale of the stock, upon which 
 they could have conceived that a due admin- 
 istration of the trusts, as far as related to 
 this property. Neither is there any evidence, 
 that Green ever made any inquiry what use 
 was made by Minchin of the power of attor- 
 ney; what became of the annuities sold; 
 and whether they were applied in any man- 
 ner to the trusts of the will. •! consider 
 Green as attending the court by Minchin, not 
 as his co-trustee only, but as his solicitor. 
 The decree was made without any communi- 
 cation to the court that the fund had been 
 sold: the defendants according to the effect 
 of their answer inducing the court to believe, 
 that it remained in the state in which it was 
 when the answer was put in; and contending 
 upon the point stated in the answer as to the 
 intention. The decree takes up the consider- 
 ation, whether there would be enough for 
 the other legacies; not however upon the 
 effect of the answer charging them jointly 
 with any thing; but directing an Inquiry, 
 what each had possessed; and making a dec- 
 laration, negativing altogether the proposi- 
 tion, made, before the bill was filed, that 5 
 per cent, navy annuities were to be bought, 
 and the idea, that Green had 'attributed as 
 the intention. I cannot infer from the listter 
 in February, 1798, that Green took the propo- 
 sition contained in it to be a due execution 
 of the purposes of the will, in opposition to 
 666 
 
 his answer in May, representing it, not only 
 as an undue execution of the will, but con- 
 trary to the intention. Inconsistent with his. 
 duty to the tenants for life and the residuary 
 legatees, and an extravagant claim, without a 
 single ground for inferring, upon any ra- 
 tional principle, that he had altered that 
 solid opinion, expressed upon his oath. 
 
 It comes then to the naked case of co-ex- 
 ecutors, by an express bequest however at- 
 taching upon this property, co-trustees also; 
 as Indeed they would have been, even with- 
 out such express bequest, in a certain sense; 
 the joining of both being necessary to a 
 transfer; and therefore. If they were mere 
 executors, they would be to be considered 
 with reference to the principles of trustees. 
 I have looked into all the cases. Executors 
 were by the old law contradistinguished 
 from trustees thus far. It was laid down 
 as a general rule, that, where executors 
 joined in a receipt, both having the whole 
 power over the fund, both were chargeable: 
 where trustees joined, each not having the 
 whole power, jnd the joining being neces- 
 sary, only the person receiving the money 
 was by the genei'al rule chargeable. It is 
 impossible to deny, that the rule as to execu- 
 tors has been pared down in some degree by 
 some of the late authorities; and I will add, 
 in a much greater degree by those authori- 
 ties than by the pr-ecedents, to which they 
 refer; for with regard to some of those cases, 
 where executors were not charged for join- 
 ing, it might be maintained, that if a sole 
 executor had under the same circumstances 
 put the money into the hands of the banker, 
 or of a stranger, the sole executor would not 
 have been chargeable; and then, if one exec- 
 utor puts the property Into the hands of the 
 other, who happens to be the banker, or In 
 such a situation, that the act is not improvi- 
 dent, those authorities iipon such circumstan- 
 ces cannot afford any fair distinction. 
 
 Lord Northington in Westley v. Clarke 
 seems to entertain a doubt, whether that gen- 
 eral rule could be fortified by precedents. I 
 am -much mistaken if there are not many. 
 It seems a strong act to dispute the existence 
 of the general rule, when no man can look at 
 the reports of Lord Hardwicke's time with- 
 out seeing, that he considered that rule as 
 well established as any; distinguishing be- 
 tween acting upon legal and moral necessity. 
 The later cases seem to suppose it has a tend- 
 ency to discourage executors from acting; 
 therefore depriving persons of the providence 
 arising from the readiness with which exec- 
 utors will take upon them the duty, if the 
 rule is more relaxed. This case does not call 
 on me to discuss whether that is well found- 
 ed: but in my opinion it is very ill founded; 
 for a plain, general rule, which once laid 
 down is easily understood, and may be gen- 
 erally known, is much more Inviting to exec- 
 utors than a rule referring every thing to the 
 particular circumstances. A simpler rule 
 never existed, than that, if the executor acts 
 
§ 168) 
 
 CHAMBERS v. MINCHIN. 
 
 Case No. 251 
 
 without necessity, he takes the power over the 
 fund; and shall not say, he has not the power 
 over it. It is a rule in favour of executors; 
 enabling them to refuse to act, because it is 
 not necessary; and therefore they will not 
 Involve themselves in the consequences. Take 
 it the other way. Will executors be safe un- 
 der the rule requiring the particular ch-cum- 
 stances to be inquired into? Let them read 
 all the determinations by Lords Hardwicke, 
 Northington, Thurlow, Kenyon, and Alvan- 
 ley, and say, before which of those judges 
 they should wish their causes to be decided; 
 for the executor would come under this peril; 
 that he is to decide for himself, not upon a 
 general rule, that he understands, but upon 
 the effect of particular circumstances; upon 
 the effect of which no two of those judges in 
 the particular cases before them agree. 
 
 I intimate this; being of opinion, that it is 
 never wise to shake a general rule, if it can 
 possibly be avoided. But it is not necessary 
 to go into the doctrine upon the general case; 
 for I consider Green as a trustee; and it is 
 fit to look at him in that character. In many 
 cases there has been a legal necessity for 
 their concrn'rence. But it Is not enough to 
 say, it is legally necessary: but their purpose 
 must be made out to be connected with the 
 due execution of the trust. Examine this 
 case by that rule. Can it possibly be said 
 under the circumstances stated by the re- 
 
 port, that Green did more than leave it to 
 Minchln to do what he pleased with the 
 property? He must then stand or fall by the 
 pm-pose, with reference to which Minchln 
 acts upon it; which is, to deprive these in- 
 fants of it. Did Green take common precau- 
 tion? Did he endeavour to learn what the 
 purpose was? The purpose proposed in 1798- 
 could only be effected by arrangement. It 
 was not understood to be according to the 
 intention. He swore in his answer, it would 
 be contrary to the intention. No account is; 
 given, by what means he was persuaded to 
 change the opinion he had formed; or, under 
 what circumstances he was persuaded mere- 
 ly by a letter, requiring him to give absolute 
 discretion to Minchln, to concur in that act, 
 so as to think it consistent with any prin- 
 ciple that he acted with bona fides; enabling 
 his co-trustee to execute a purpose connected 
 with the due execution of the trust. But 
 taking into the account that he must be con- 
 nected with Minchin, as attorney, as this is a 
 civil demand, I must fix him with it. 
 
 Upon the whole, taking the most favoura- 
 ble case for the protection of executors and 
 trustees, it does not throw a shield over a 
 person acting as improvidently as this de- 
 fendant has acted ; and If I cannot find such, 
 a principle, however I may lament lae con- 
 sequences In this case, I cannot give that 
 protection. 
 
 661 
 
Case No. 252 
 
 LANGFOBD V. GASCOYNE. 
 
 (§ 168 
 
 LANGFOED v. GASCOYNB et al. 
 
 (11 Ves. 333.) 
 
 High Court of Chancery. July 25, 1805. 
 
 The bill was filed by a widow, entitled for 
 life, if she should continue a widow, to the 
 freehold and personal estates of her hus- 
 band under his will, and by his general re- 
 siduary devisees and legatees, against his ex- 
 ■ecutors Gascoyne, Spurrell, and Lambert, for 
 the usual accounts; which were directed by 
 the decree. 
 
 The master, by his report, charged all the 
 defendants with the receipt of £761 5s. un- 
 der these circumstances, proved by the affi- 
 davit of a witness; stating, that on the 22d 
 of February, 1792, the day after the testa- 
 tor's funeral, the three executors met at the 
 house of the testator at Barldng in Essex; and 
 the plaintift Mrs. Langford, the widow, who 
 was present, left the room to fetch a bag of 
 money; and upon her return with it asked 
 the deponent, to which of the defendants she 
 should deliver it; and the deponent, not then 
 having a good opinion of Gascoyne's circum- 
 stances, advised her to deliver it to Spurrell; 
 upon which she passed by Gascoyne and 
 Lambert, who were sitting near the door, 
 and delivered the bag into the hands of 
 Spurrell; who counted the money over; and 
 then delivered it Into the hands of Gascoyne. 
 The witness further stated, that at that time 
 ■Gascoyne was not reputed to be in good cir- 
 cumstances. 
 
 The defendants Spurrell and Lambert took 
 ■exceptions to the report The answer of the 
 defendant Spurrell stated, that he did not 
 know, that he took and counted out the mon- 
 €y: but it was laid upon the table, and 
 ■counted out; and afterwards Gascoyne took 
 it up, and carried it away. 
 
 Mr. RomiUy and Mr. Roupell, in support 
 of the exceptions. Mr. Richards and Mr. 
 Leach, for the report 
 
 THE MASTER OF THE ROLLS. The 
 ■question is, whether the money is to be con- 
 sidered as so far in the possession of this 
 executor, that he is to be answerable for 
 what afterwards becomes of it. It is true, 
 this is not a payment to him by any debtor 
 to the estate. It is no more than if, exam- 
 ining the repositories of the testator, they had 
 found this property, and this executor had 
 taken It, and afterwards delivered it to Gas- 
 coyne. That is the way, in which this case 
 is to be considered. But In, fact it is in his 
 possession; and according to the evidence 
 It is put in his possession, by selection of 
 him, as the proper person to be intrusted 
 with it in preference to Gascoyne. The doubt 
 intimated by the witness as to Gascoyne, was 
 not known to Spurrell; but it weighed with 
 the widow in delivering the money. The rule 
 in all the cases is, that, if an executor does 
 
 C68 
 
 any act by which money gets into the pos- 
 session of another executor, the former is 
 equally answerable with the other: not, 
 where an executor is merely passive, by not 
 obstructing the other in receiving it But If 
 the one contributes in any way to enable the 
 other to obtain possession, he is answerable; 
 unless he can assign a sufficient excuse; as 
 there was in Bacon v. Bacon, 5 Ves. 331, a 
 justifiable object. 
 
 In this case Spurrell chooses to part with 
 this money, of which he had the possession: 
 probably from an innocent motive; thinking 
 Gascoyne more fit to be trusted with It than 
 himself, or the other executor. But in most 
 of these cases, where executors were charged, 
 the motive was innocent; only the result 
 was unfortimate. I feel very great reluc- 
 tance to charge an executor in such a case: 
 but it is impossible, without breaking through 
 the nile, not to say, he has exercised an act 
 of judgment and discretion: an act of selec- 
 tion by putting the money into the hands of 
 Gascoyne, rather than the other executor, or 
 keeping it himself; depriving himself and 
 the other executor of any control over it. 
 He did that act; and this loss is the conse- 
 quence. This is a very hard case: but so 
 are all these cases. 
 
 As to the other executor, Lambert, it is 
 impossible to charge him. He has neither 
 done, nor said, any thing, that in any de- 
 gree contributed to the loss of the money, 
 or to its getting Into the hands of Gascoyne. 
 It is not incumbent upon one executor by 
 force to prevent its getting into the hands 
 of another. In that respect, therefore, the 
 report is wrong: but as to Spurrell the ex- 
 ception must be overruled. 
 
 For the defendants, It was then urged, 
 that In the late case of Brice v. Stokes, 11 
 Ves. 319, the tenant for life was boimd; 
 though not those in remainder; upon the 
 circumstance, that the tenant for life knew, 
 the fund was in the hands of the particular 
 executor: the lord chancellor holding, that 
 acquiescence would bind the cestuy que trust. 
 
 THE MASTER OF THE ROLLS said, the 
 fact was not distinctly before the court, or 
 he should be very much disposed to let the 
 widow bear the loss; approving the rule, as 
 laid down by the lord chancellor in Brice v. 
 Stokes. It was then urged, that the execu- 
 tor, who had not had the money, could not 
 be charged with interest; and on the other 
 hand, that Gascoyne must necessarily be 
 charged with interest; this was a breach of 
 trust; and there was no difference between 
 receiving it himself and paying it over 
 wrongfully. 
 
 THE MASTER OF THE ROLLS. Has it 
 been pressed to that strict legal consequence? 
 That certainly is the strict legal consequence. 
 
168) 
 
 LANGFORD v. GASCOYNE. 
 
 Case No. 252, 
 
 If this had been an admitted joint receipt, 
 it would have been of course to charge inter- 
 est. The question is, whether this is not the 
 same thing? 
 
 The order was pronounced, charging Spur- 
 rell with interest Afterwards the cause 
 
 was sent bacli to the master, to review his; 
 report; as charging aU the three executors;; 
 though upon the evidence Lambert had noi 
 concern in the transaction; except that he 
 was present: the consequence of which was, 
 that SpurreU could not have the benefit of 
 his testimony. 
 
 669 
 
Case No. 263 
 
 MURRAY V. BLATCHFORD. 
 
 (§ 168 
 
 MURRAY et al. v. BLATCHFORD et al. 
 
 (1 Wend. 583.) 
 
 New York Court of Error. 1828. 
 
 Appeal from the court of chancery. John 
 B. Murray and John P. Mumford were part- 
 ners in business, as merchants, in the city of 
 New- York, under the firm of Murray & 
 Mumford, which partnership terminated in 
 1806. In 1818, Mumford filed a bill in the 
 ■coui't of chancery against Muiray, claiming 
 a large balance as due to him, and praying' 
 an account. Mun-ay put in his answer to 
 the bill, a replication was filed, but before 
 publication passed, the complainant, in 1820, 
 died intestate, leaving a widow and six chil- 
 dren, viz. John I. Mumford, Charles F. Mum- 
 ford, Harriet, the wife of John D. Keese, 
 Julia Ann, the wife of Richard M. Blatch- 
 ford, Maria A., wife of James C. Bliss, and 
 Caroline M., the wife of Daniel B. Duns- 
 comb. Administration upon the estate of 
 the intestate was granted to his widow, Ma- 
 ry I. Mumford, his son, John I. Mumford, 
 and his son-in-law, Daniel E. Dunscomb, 
 who exhibited their bill of revivor and sup- 
 plement against John B. Murray, who an- 
 swered to the same, and the cause was put 
 at issue, and proofs taken. In Januai-y, 1822, 
 a decretal order was made, requiring the de- 
 fendant to account. The defendant appeal- 
 ed to this court, which appeal was dismissed 
 for want of prosecution, in September, 1822. 
 In December, 1822, the defendant obtained a 
 re-hearing in the court of chancery, and the 
 decretal order of the preceding January was 
 confirmed. The defendant again appealed, 
 and in September, 1823, the second appeal 
 was also dismissed, for the want of prosecu- 
 tion. An account was then taken before a 
 master, who, in September, 1824, reported in 
 favor of the complainants, to the amount of 
 about $90,000, which report was confirmed 
 by an order entered on the 26th January, 
 1825. 
 
 Previous to the entry of the order for con- 
 firmation, to wit, on the 15th January, 1825, 
 Daniel B. Dtmscomb, one of the administra- 
 tors, gave notice of an intended application 
 to the chancellor on the 24th January, for the 
 appointment of a receiver, and a suspension 
 of the powers of the administrators, on the 
 alleged grounds, that John I. Mumford, one 
 of the administrators, had stopped payment 
 and become insolvent; that Mary I. Mum- 
 ford was far advanced in age, and of infirm 
 health; and that there were differences ex- 
 isting between her and him, the said Daniel 
 E. Dunscomb, which prevented all inter- 
 course between them, and rendered it impos- 
 sible for them to concur in the duties and of- 
 fices of the administration. These facts 
 were set forth in a petition, verified by the 
 afiidavit of Dunscomb, and copies of the pe- 
 tition and notice were sci-ved on John B. 
 Mun'ay, Mary I. Mumford, and John I. Mum-- 
 ford. On the 20th day of January, Duns- 
 
 670 
 
 comb, on the request of the two other admin- 
 istrators, agreed to postpone the application 
 until the 31st of the same month; and, on 
 the same day, viz. the 20th January, Mary I. 
 Mumford and John I. Mumford, without the 
 assent of Dunscomb, made a compromise of 
 the suit with the defendant, John B. Murray, 
 accepted from him $30,000, and by an instru- 
 ment under their hands and seals, released 
 him from the decrees made in the cause, and 
 from all claims, causes of action, matters 
 and things mentioned or intended in the de- 
 crees, or which were or could be claimed in 
 the cause prosecuted against him. The late 
 Chancellor Kent advised Mrs. Mumford to 
 make the compromise, and was a witness to 
 the execution of the release. 
 
 To set aside this release, a bill was filed 
 by Richard M. Blatchford and Julia Ann, his 
 wife, and James O. Bliss and Maria A., his 
 wife, in July, 1825, against John B. Murray, 
 Mary I. Mumford, John I. Mumford, Charles 
 F. Mumford, John D. Keese and Harriet E., 
 his wife, and D. E. Dunscomb and Caroline 
 Matilda, his wife, chai'glng the release to 
 have been obtained by fraud, and by taking 
 advantage of the necessitous circumstances 
 of Mary I. Mumford and John I. Mumford. 
 The defendants, in their separate answers, 
 admit the facts stated as to the prior suit, 
 and the compromise made between Mary I. 
 Mumford and John I. Mumford and John B. 
 Murray, but aver that the same was fairly 
 made, and deny all fraud. It is deemed tm- 
 necessary to state the facts and circumstan- 
 ces of the case relied on by the complainants 
 in support of the charge of fraud, as they 
 are adverted to in the opinion of the chief 
 .I'ustice, pronoimced on the decision of the 
 cause. The cause in chancery was brought 
 to a hearing in December, 1827, before the 
 Hon. James Emott, one of the circuit judges, 
 sitting for the chancellor, who, on the 1st 
 February, 1828, decreed the release to be in- 
 operative so far as regarded the rights and 
 interests of the complainants; but, as be- 
 tween the parties and privies thereto, he de- 
 clared the same to be valid and binding, and 
 ordered two sixth parts of $20,000, the pro- 
 portions or shares which the complainants 
 would have been entitled to, had they con- 
 sented to the settlement, to be paid back to 
 John B. Murray, (the same having been paid 
 into court,) and that the complainants have 
 leave to prosecute the original suit to a final 
 decree, to ascertain the amount, if any, due 
 from John B. Murray to the estate of John 
 P. Mumford, to the end that the complain- 
 ants' interest might be liquidated, and gave 
 further directions as to costs, &c. The defend- 
 ant, Murray, appealed from all that part of 
 the decree adjudging the release inoperative 
 as it regarded the rights and interests of the 
 complainants, giving them the right to pros- 
 ecute the original suit, and directing that on- 
 ly two sixths of $20,000 should be paid back 
 to the defendant; insisting, that if the re- 
 lease was in any respect adjudged inopera- 
 
§ 168) 
 
 MURRAY V. BLATCHFORD. 
 
 Case No. 253 
 
 tlve, he ought to have been allowed to re- 
 ceive back the whole sum of $30,000; and 
 the complainants filed a cross-appeal from 
 that part of the decree which directs the two 
 sixths of $20,000 to be paid back to the de- 
 fendant. The cause, on the appeal of the 
 defendant, was first moved for argument. 
 
 The reasons for the decree in the court of 
 cliancery, appear in the following opinion, 
 pronounced by Judge Emott on the decision 
 of the cause, which, not being published in 
 the chancery reports, necessarily is present- 
 ed here: 
 
 The points in this cause, which I am called 
 upon to decide, will present themselves with 
 more clearness when a few facts, with dates, 
 are stated. 
 
 It appears, that John P. Mumford died in 
 November, 1820, leaving the defendant, Mary 
 I. Mumford, his widow, and the defendants, 
 John I. Mumford, Charles F. Mumford, Har- 
 riet Keese and Caroline Dunscomb, and the 
 plaintiffs, Julia Blatchford and Maria Bliss, 
 his children. Mumford having died without 
 a will, administration of his estate was 
 granted to the widow, Mary Mumford, the 
 son, John Mumford, and the son-in-law, Dan- 
 iel E. Dunscomb. His estate, after the pay- 
 ment of debts, goes in the regular course of 
 distribution: one third to the widow, and a 
 sixth of the remaining two thirds to each of 
 the children. 
 
 In November, 1818, John P. Mumford filed 
 Us bill in this court against John B. Murray, 
 who had been his former partner, in order 
 to make him account for a large sum of mon- 
 ey, in his capacity of partner, which he had 
 either received or made himself liable for. 
 An answer was put in, but it was excepted 
 to, and the bill was also amended. The ex- 
 ceptions and amendments were answered, 
 and on farther exceptions, were again an- 
 swered. Mumford died in November, 1820, 
 and in March following, his administrators 
 filed a supplemental bill, and bill of revivor, 
 which being answered, proofs were taken In 
 the cause, and Chancellor Kent, in January, 
 1822, made a decree, by which he directed 
 an accounting, on principles declared in the 
 decree. An appeal was entered to this de- 
 cree, by Murray, but it was dismissed for 
 want of prosecution, in September, 1822. 
 
 In November, 1822, Murray presented a 
 petition for a rehearing, and for liberty to 
 tile a cross bill. The bill was filed and an- 
 swered, and on the rehearing, Chancellor 
 Kent, on the 21st December, 1S21-. after giv- 
 ing an elaborate and detailed opinion, con- 
 firmed his former decree, in all respects. 
 In January, 1823, Miwray again appealed, 
 and the last appeal was also dismissed for 
 want of prosecution, in September follow- 
 
 The cause was then carried to a master 
 who, in September, 1824, concluded a report 
 in fkvor of the plaintiffs, for upwards of 
 <fi80 000 on the principles and according to 
 ihe' instructions of the order of reference. 
 
 The report of the master is dated the 1st of 
 September, but was not formally completed 
 until sometime in January, thereafter. The 
 amount, however, was known to the parties 
 in September, and taking the decretal order 
 of January, 1822, as establishing their rights, 
 the sum reported is within the calculation, 
 which could readily be made. 
 
 In the autumn of 1823, John I. Mumford, 
 one of the administrators, failed, having in 
 his hands something like $7,000 of moneys 
 belonging to the estate; and for this, and 
 other alleged causes, a petition in the cause 
 was drawn, in the name of Dunscomb, the 
 co-administrator, praying for the appoint- 
 ment of a receiver, and that the administra- 
 tors might be restrained from any further 
 exercise of their powers. The petition was 
 prepared on the 11th of January, and, with 
 a notice of an application to the chan- 
 cellor for the 24th of January, was served on 
 the defendants, John I. Mumford, Mary I. 
 Mumford, and John B. Murray. On the 
 20th of January, John I. Mumford and Mary 
 I. Mumford applied to Dunscomb to post- 
 pone his application for a week, and he, 
 consenting to such delay, gave a new notice 
 for the 31st of January, which was served "^ 
 upon his co-administrators, and upon Mtir- 
 ray. On the 20th of January, John I. Mum- 
 ford and Mary I. Mumford, without the con- 
 currence, and against the known wishes of 
 Dunscomb, took upon themselves to settle 
 with Murray. They compounded with him 
 for $30,000, and on receiving that sum, gave 
 him a release. 
 
 The object of the bill, in this cause, is to 
 have the release set aside; and upon the 
 ai-gument, several grounds were taken, 
 which I shall now proceed to consider. 
 
 The first point is, that the release was 
 bad, as being executed by two administra- 
 tors, without the other. 
 
 It is certainly true that Lord Bacon, in 
 his tract entitled, "The Use of the Law," 
 (title "Property by Letters of Administra- 
 tion,") says, any one executor may convey 
 the goods or release. debts, without his com- 
 panion; and any one, by himself, may do as 
 much as aU together; but it is not so with 
 administrators, for they have but one au- 
 thority given to them by the bishop, over 
 the goods, which authority being given to 
 many, is to be executed by all of them 
 Joined together. 
 
 And in Hudson v. Hudson, 1 Atk. 460, de- 
 cided in 1737, Lord Hardwicko said, he was 
 of opinion, that one administrator could not 
 release a debt or convey an interest so as 
 to bind the other, and that the case of an 
 administrator differed from that of an exec- 
 utor He places his opinion on the ground, 
 that the administi-ation is the nature of an 
 office and draws the consequence that the 
 administrators must join in the execution of 
 the acts of the office; and on this kind of 
 reasoning, he said, the case depended He 
 remarked, that no case had been cited, but. 
 
 671 
 
Case Ko. 253 
 
 MURRAY V. BLATCHFORD. 
 
 (§ 16* 
 
 he had the opinion of a very great man, 
 Lord Bacon, which seemed to correspond 
 with his, as to the nature of the different 
 rights of executors and administrators. All 
 this, however, was a mere speculation on 
 the part of his lordship, as the cause did not 
 turn on this point, and the release, in that 
 particular case, was held good at law, but 
 was set aside in chancery, as having been 
 unfairly obtained. 
 
 On the other hand, we have the Touch- 
 stone, which in page 462, after saying that 
 aU the executors are, in the eye of the law, 
 but as one man, and that most acts done by 
 or to any one of them, are esteemed as acts 
 done by or to all of them, adds, but how 
 the law is of administrators, quere; for 
 some think, that one of them may sell goods 
 and release debts without the other. And 
 Comyn, in his Digest, says, that if there 
 are several executors or administrators, they 
 have a joint and entire interest in all the 
 goods of the testator, which cannot be di- 
 vided; and that, therefore, a release of a 
 debt by one, is good for all. 1 Com. Dig. 
 342. It is true, that Comyn refers to the 
 -marginal notes in Dyer, which, as having 
 been made by Lord Chief Justice Treby, are 
 considered of great weight and authority, 
 and which speak only of executors; but 
 the Digest is equally strong to show, that in 
 the opinion of Chief Baron Comyn, the case 
 of an administrator does not differ from 
 that of an executor. 
 
 In 1751, we have the case of Jacomb v. 
 Harwood, 2 Ves. Sr. 265, in the very court 
 in which Lord Hardwicke continued to pre- 
 side, where we find Sir John Sti-ange, the 
 master of the rolls, saying, I never knew It 
 questioned, in case of executors, that each 
 executor has the entire control of the per- 
 sonal estate of the testator, may release or 
 pay a debt, or transfer any part of the tes- 
 tator's property, without the concurrence of 
 the other executor. It has, indeed, been 
 questioned in case of administrators, wheth- 
 er one administrator had such a power equal 
 to that of an executor, and the attempt has 
 been made to distinguish that from the case 
 of executors; and though, in Hudson v. 
 Hudson, it was said that the lord chancellor 
 had been of opinion that one administrator 
 could not release so as to bind the other, 
 yet when that case was more narrowly 
 looked into, it appeared clearly, that it was 
 applicable to the particular circumstances 
 of the case. But after that, was Willand 
 V. Fenn, 2 Selw. N. P. 783, where it was 
 held in B. R. after three arguments, that 
 one administrator stood on the same ground 
 or foundation with one executor. Toll. Ex'rs, 
 408, after citing the cases of Hudson v. 
 Hudson, and Willand v. Fenn, supra, says, 
 it seems to be now settled, that a joint ad- 
 ministrator stands on the same footing, and 
 is invested with the same powers, as a co- 
 executor. And Chief Justice Kent, in de- 
 livering the opinion of the court in Douglass 
 672 
 
 V. Satterlee, 11 Johns. 22, declares that It is 
 well settled, that each executor has the con- 
 trol of the estate, and may release, pay, or 
 transfer, without the agency of the other; 
 and that executors and administrators stand 
 on the same ground, and their powers and 
 responsibilities in respect to each other, are- 
 the same. 
 
 Resting on authority, there is no difficulty 
 in arriving at the conclusion that the re- 
 lease by the two administrators is good in 
 law. If the cases left any room to doubt, 
 on this subject, the reason of the thing, as 
 well as the necessity of the case at this day, 
 would lead to the same result. Lord Ba- 
 con's notion, that tlie administrators had a 
 mere authority which was to be jointly ex- 
 ercised, was probably taken from the doc- 
 trines and practice of the ecclesiastical 
 coiu"ts, at a time when the administrator 
 was the creature of the ordinary, acting by 
 his will and substantially for his benefit. 
 The letter of administration was then con- 
 sidered as a power of attorney, giving no 
 interest, and to be strictly pursued. But 
 since the statutes designating the persons 
 entitled to administration, and directing dis- 
 tribution to the next of kin, letters of ad- 
 ministration have changed their character. 
 They come now, growing out of and regu- 
 lated as they are by statute, in the place of 
 a will. They are, in truth, the last will of 
 the deceased, as made by law, and adopted 
 by him. Now, when administration may 
 be granted to all the next of kin, or to 
 several persons having claims on the es- 
 tate, and may therefore include many indi- 
 viduals residing at different and distant 
 places, to require them all to join in the actsi 
 of the administration, would produce great 
 inconvenience, delay, and expense, without 
 any fair object to be obtained. Adminis- 
 trators, now, as well as executors, are mere 
 agents to settle the estate; their charges- 
 and duties are the same; and for the benefit 
 of the estate and of their trust, their powers 
 should be the same. 
 
 It has been ua-ged, however, that admit- 
 ting the release of one administrator to be 
 good, when there is the mere want of assent 
 of the other, yet the actual and known dis- 
 sent of the co-administrator will render it 
 inoperative. For this distinction no author- 
 ity was cited, and I am not aware of any 
 case that gives countenance to it, nor has 
 it any foundation in the reason of the thing. 
 The power of each administrator, in law, is 
 full and entire, and though he acts at his 
 peril, and subject to an accounting, yet what 
 he does, stands good in law, unless fraud is 
 shown, which will invalidate every transac- 
 tion. 
 
 The next point made was, that the two 
 administrators who signed the release, act- 
 ed in their own wrong, and breach of trust; 
 and Murray, knowing this, was a party to 
 the wrong, and ought not to be allowed to 
 set it up for his own advantage. 
 
§ 168) 
 
 MURRAY B. BLATCHFORD. 
 
 Case Xo. 253 
 
 It is alleged that the settlement amounts 
 to a devastavit, inasmuch as it was the tak- 
 ing of a sum, not only much below what had 
 always been claimed as due by the parties 
 releasing, but scarcely a third of the sum 
 reported by the master. It can scarcely be 
 contended that every transaction, which in 
 law could create a devastavit, by the admin- 
 istrator would go to charge the person deal- 
 ing with him. The sale of property below its 
 value, would be a devastavit, and yet if the 
 sale was without fraud, the title would cer- 
 tainly be good. It is said, too, that if he 
 arbitrates, and an award is given for less 
 than is due, this also creates a devastavit, 
 for the difference; but the award must, not- 
 withstanding, be good, to limit the claim and 
 discharge the debt. If, as the lord chancel- 
 lor says. In Crane v. Drake, 2 Vern. 616, the 
 defendant was a party, and consenting to, 
 and contriving a devastavit, it would be re- 
 Ueved against in equity. Thus, in Noel v. 
 Robinson, 1 Vern. 4.55, the chancellor said, 
 if an executor should release a debt of £100 
 for Is. that would not bind a creditor. But 
 in all these cases, the court will have to de- 
 cide under all the circumstances, not only, 
 that there has been a plain devastavit on the 
 part of the executor, but that the debtor 
 consented to, and was a party in contriving 
 the devastavit; then indeed, a case of fraud 
 is made out, which the long arm of the 
 court will reach. In a case where the exec- 
 utor acts In good faith, but under a wrong 
 impression as to the amount of the demand, 
 or the circumstances of the debtor, a mis- 
 take may possibly, according to the old au- 
 thorities, make him liable for a devastavit, 
 which would have been known to the debtor, 
 as best acquainted with the sum due, and 
 his situation to respond to it; but if he act- 
 ed fairly, making merely the best bargain 
 he could, without resorting to deception or 
 malpractice, the settlement, as to him, would 
 be vaUd, unless there was very great and 
 apparent inequality. 
 
 In this case, I am not prepared to pro- 
 nounce on the devastavit It is true, I have 
 before me the master's report, and cannot 
 but see that it accords with the decisions of 
 the chancellor. All this, however, does not 
 establish the demand. The amount may be 
 varied in this com-t; and, as the whole cause 
 is one of controversy, the order here may be 
 annulled in the com-t of appeals. I might 
 form an opinion by reading the pleadings 
 and proofs; but this I hardly dare do, as it 
 would, without argument, be an attempt to 
 revise the judgment of the chancellor, given 
 after much discfussion and consideration. I 
 would rather act on the opinion which he 
 gave the parties on the settlement. He ad- 
 vised it, certainly not to create a devastavit, 
 or to countenance fraud. 
 
 If a devastavit can be made out, I am not 
 prepared to say, that Murray contrived it, 
 or that he came into the settlement with a 
 belief that he was doing wrong to the estate. 
 
 ART!. WILLS — 43 
 
 In his answer, he states, that the sum he 
 gave was much more than what he consid- 
 ered as due, and that he gave it to purchase 
 peace, and to rid himself of a long, expensive^ 
 and vexatious controversy; and he express- 
 ly avers, that he was advised by counsel, 
 there was error in the decree, and that he 
 intended to carry the cause to the court of 
 errors. I cannot, therefore, say, that there 
 has been waste in the administration, or if 
 there was, that Murray was a party to it. 
 
 The next point In the cause, is, that the 
 service of the petition for a receiver oper- 
 ated as a lis pendens upon the settlement, 
 so as to make the release invalid, as against 
 non-concurring parties. Something is said 
 in the bill, and was much urged on the argu- 
 ment, as to the attempt to evade the opinion 
 and directions of the court. The court will 
 certainly take care, that its process, orders 
 and decrees are duly respected; but I do not 
 feel that it ought to be so sensitive as to 
 consider a settlement, made after a mere 
 notice of an application, as a contempt, or 
 as deserving much reprehension. If the par- 
 ties were willing and desirous of making a 
 fair and honest settlement, and believed that 
 they would be embarrassed by waiting un- 
 til an order was made on the petition, the 
 court ought not to consider itself offended 
 by the settlement. 
 
 The doctrine of lis pendens is as well ex- 
 plained and qualified by Lord Bacon's 12th 
 rule, as In any of the decisions. This de- 
 clares, that no decree bindeth any that com- 
 cth in bona fide, by conveyance from the 
 defendant, before the bill is exhibited, and 
 is made no party by bill or order. But when 
 he comes in pendente lite, and while the 
 suit is in full prosecution, and without any 
 color of allowance or privity of the court, 
 there regularly the decree bindeth. But if 
 there were any intermissions of suit, or the 
 court made acquainted with Ihe conveyance, 
 the court is to give order upon the special 
 matter, according to justice. 
 
 In Metcalfe v. Pulvertoft, 2 Ves. & B. 204, 
 Sir Thomas Plummer, vice-chancellor, speak- 
 ing of the lis pendens, says, it is presump- 
 tive, if not actual notice; and the pm-chaser 
 is In the same situation in which the vendor 
 stood, upon this same principle, that the 
 suit is to be decided according to the state 
 of things when it was instituted, and the 
 rights, however they may be varied by death, 
 bankruptcy, &c. cannot be affected by the 
 voluntary act of either party. This is the 
 principle running through all the cases, both 
 at law and in equity. In a real action, not- 
 withstanding a conveyance pending the suit, 
 the defendant is treated, with reference to 
 the execution, as if he remained a party. 
 So upon a writ of mesne, the judgment in 
 the real action will overreach an alienation 
 pending the suit. The authorities establish 
 this proposition: that alienation of the de- 
 fendant, for the purpose of that cause, has 
 no effect as against the plaintiff, who is en- 
 
 673 
 
Case No. 253 
 
 MUKBAY V. BLATCHFOKD. 
 
 (§ 168 
 
 titled to proceed as If no sucli title existed. 
 We have thus the rule and its reason. It 
 is intended to keep the subject matter of 
 the suit clear of any embarrassment, by the 
 voluntary act of the parties, vs'hile the suit 
 is In progress; and when applied with cau- 
 tion, and a due regard to the rights of inno- 
 cent and unoffending persons, it is a most 
 necessary and salutary rule. Without such 
 rule, the parties, by creating new interests, 
 would conti-ol the justice of the cause, and 
 render litigation interminable and most op- 
 pressive. But this rule, in terms, applies 
 only to strangers to the cause, warning them, 
 at their peril, to keep out of Its vortex. The 
 parties are not forbid by it to act as between 
 themselves; and if fears are entertained by 
 co-plaintiffs or co-defendants, that their 
 rights or their interests are about to be in- 
 fringed or invaded by their associates, they 
 may obtain the protection of the court, on a 
 proper case, made by order or injunction, 
 but most certainly not by any attempt, like 
 the present, to create a lis pendens. 
 
 The remaining point, on the part of the 
 plaintiffs, is, that the settlement and release, 
 being collusive and fraudulent, were utterly 
 void. If fraud is made out, the court will 
 certainly lay its hands on the release; but 
 then it must be fraud on the part of Murray. 
 If the other parties to the settlement and 
 release have acted unwisely or unfairly, it 
 may subject them to a charge for a devas- 
 tavit; but unless Murray joined in the fraud,^ 
 he will, as for this cause, be entitled to hold 
 the release. A short recurrence to the plead- 
 ings and proofs will now be necessary, to 
 see how far actual fraud has been brought 
 home to Murray. 
 
 The bill, in its details of the proceedings 
 in the former suit, and of the appeals there- 
 in, means to give to the defence the char- 
 acter of unfairness and oppression. The 
 part of the defence which required explana- 
 tion most, I think has received it, both in the 
 answer of Murray and in the argument — I 
 mean the appeals taken, and their dismissal 
 for want of prosecution. Murray says, that 
 both appeals were entered in good faith, and 
 not for the purpose of delay. He alleges, 
 that It was his intention that the first appeal 
 should have been argued when called, and 
 he emiDloyed counsel for that purpose. His 
 counsel, he says, suffered the appeal to be 
 dismissed in consequence of their coming to 
 the conclusion that certain evidence in the 
 possession of the plaintiff should be pro- 
 duced, ■ and that it was advisable that a re- 
 hearing should be applied for, in order to 
 enable him to compel the production of such 
 evidence. Murray also says, it was his in- 
 tention to have brought the second appeal to 
 a hearing, but that his counsel, shortly be- 
 fore the appeal was called on, advised him, 
 for the first time, to suffer it to be dismissed, 
 because the error which they said existed in 
 the decrees, would be made more apparent 
 after the taking of the accounts, and that 
 674 
 
 the accounts would serve greatly to eluci- 
 date the real merits of the controversy. 
 This, in the absence of all proof of the con- 
 trary, accounts satisfactorily for the man- 
 ner in which these appeals were disposed 
 of, as far forth as Murray had any agency 
 in them. He had to act by counsel, and is 
 certainly to be justified for allowing them 
 to conduct the appeals according to their 
 judgment. 
 
 In order to establish the fraud in the set- 
 tlement, the plaintiffs, after stating that 
 John I. Mumford had recently failed, and 
 that Mary I. Mumford was old, infirm and 
 unfit to attend to business, and that the 
 arrangement was made with bad faith, and 
 in violation of the duty of the administra- 
 tors, and was intended to defeat the petition 
 for a receiver, alleges that Murray had long 
 contemplated a secret compromise with the 
 two administrators, which he intended to 
 carry into effect, when circumstances should 
 put it in. his power. The bill also avers, 
 that the sum received was very far short 
 of the sum due, and was so known to be by 
 Murray; and it contains other statements 
 and allegations, which make every part of 
 the answers of all the defendants fairly re- 
 sponsive to the bill. 
 
 Murray, in his answer, says, that he was 
 always desirous of making a final settlement 
 of the matter in dispute, but he never 
 watched for an opportunity to draw the 
 Mumf ords into any secret arrangement, and 
 that he never made any endeavors to in- 
 duce them to come to any settlement or com- ^ 
 promise with him, prior to the time of the 
 final negotiation; and that, at- such time. 
 he used no unfair, unlawful or improper 
 endeavors to effect or induce them to come 
 into the arrangement; and that the negotia- 
 tion and settlement were, in all respects, 
 fair and bona fide, and without any imfair 
 or imlawful design or intent of any sort, 
 on his part, or, as he believes, on the part 
 of the Mumfords. He says, that he made 
 an offer of $30,000 in September, 1823, but 
 it was not accepted; and that the negotia- 
 tion for a compromise which had been 
 broken off for a gi'eat length of time was 
 renewed by the Blumfords, or one of their 
 friends, shortly before the final settlement. 
 On the 20th of January, 1825, the settle- 
 ment was negotiated and concluded, and he 
 gave $30,000, which was a much larger sum 
 than was in justice and equity due, and 
 much more than Mumford ever pretended 
 to claim, although he was fully acquainted 
 With all his rights in the cause. He says, 
 no privacy was practiced fcn his part, in 
 negotiating the compromise, and avers that 
 he was advised by his counsel, and believes, 
 that the decrees would have been reversed, 
 and it was well understood, by all con- 
 cerned, that he intended to appeal after the 
 taking of the account. 
 
 These answers are direct and explicit, and 
 leaye no room for cavil or reasonable criti- 
 
§ 168) 
 
 MURRAY V. BLATCHFORD. 
 
 Case No. 253 
 
 €ism; and, unless they are contradicted by 
 the testimony, or shaken by the circumstan- 
 ces appearing in the case, they must put at 
 rest the charge of actual fraud, as to Mm-- 
 ray. I am not aware that any witness has 
 been examined who ever saw or communi- 
 cated with Murray, or that any one act of 
 his in relation to the settlement appears, 
 but from his answer. He introduced no 
 witness to prove his motives or his conduct 
 in the transaction, nor was it necessary that 
 he should. He had a right to stand on his 
 answer, until it was attempted to be dis- 
 proved; nor can I feel the force of the argu- 
 ment that endeavored to discredit the an- 
 swer, because Murray did not support it 
 by the testimony of his agent, who con- 
 ducted the settlement, in order that he might 
 be cross-examined. If the testimony of 
 James B. Murray was deemed of importance 
 by the plaintiffs, they might have called for 
 him, and It is not pretended that he would 
 not have been forthcoming. 
 
 The circumstances which have been dwelt 
 upon, as showing actual fraud in Mm-ray, 
 notwithstanding its denial in the answer, 
 are, the inadequacy of the sum paid, and 
 the preparation of the release by the solici- 
 tor of Murray, and its terms— a word or 
 two as to each. The sum paid was cer- 
 tainly very far short of that reported, but it 
 no where appears that Mm-ray ever recog- 
 nized a liability equal even to the sum in 
 the compromise; and on the contrary, we 
 have his oath, that such amount was great- 
 ly beyond what was due in equity or justice. 
 Even were it less, Murray had the right of 
 every man in a controversy, to malse the 
 best terms for himself he cotdd, so that he 
 acted fairly. Inadequacy of price may 
 mark a transaction as fraudulent, but then 
 it ought to be gross and plain. This is not 
 such a case. 
 
 As to the preparation and terms of the 
 release, they do not seem to press very hard. 
 Murray had been for a long time defend- 
 ing himself against a claim which put at 
 hazard 'his whole property, and finally con- 
 cluded to adjust it, by paying a very large 
 sum. It was proper that he should take 
 gi-eat care to close the controversy effectu- 
 ally, and it was quite natural that he should 
 select his own counsel to settle the terms of 
 the release. It is objected to the release, 
 that it recites, "that it was for the interest 
 of the estate, and that Murray had threat- 
 ened a further appeal." Now this, after all, 
 was the foundation of the settlement. If 
 no appeal were apprehended, then the tak- 
 ing of $30,000 for $90,000, could not have 
 been justified; and if the administi-ators had 
 not deemed the settlement for the interest 
 of the estate, then they ought not, and this 
 com-t may say, could not, have gone into 
 it But it is said, the release is over-cau- 
 tious in having a covenant on the part of 
 the administrators, that there should be an 
 order in the cause, dismissing the bill. To 
 
 my mind, however, such covenant was fair 
 and proper. The great object of the settle 
 ment was the ending of the protracted a.ni\ 
 expensive controversy, and It would hav-9 
 been idle for Murray to have parted with 
 his money, without a security against the 
 claim and the suit. 
 
 Without dwelling longer on this part of 
 the case, I may say that I am satisfied that 
 actual fraud has not been made out against 
 Mm-ray. It is not, perhaps, necessary that 
 we should examine into the fraud charged 
 upon the Mumfords, and not brought home 
 to Murray; but as great stress has been 
 laid upon this fraud, it- may be well to ex- 
 amine whether it has been established. 
 Now, although it is easily understood, that 
 an aged female and an insolvent son might 
 have been enti-apped by a wealthy and saga- 
 cious and watchful opponent, yet the mo- 
 tives which could lead the Mumfords to 
 commit a fraud, in order to injure the plain- 
 tiffs, their near relatives, who had been con- 
 nected with them in carrying on the suit, 
 but which was to fall most heavily on them- 
 selves, is not easily discerned; for after all, 
 the two administrators, acting for them- 
 selves, and with the consent and for Charles 
 Mumford and Mrs. Keese, had an interest 
 to the amount of two-thirds of the whole 
 claim. To establish actual fraud against 
 persons thus circumstanced, the proof must 
 be plain and positive. 
 
 First, then, as to Mrs. Mumford. In her, 
 answer, she states, that a few days before 
 the release was executed, she was informed 
 by John I. Mumford, that if a majority of 
 the administrators would assent to it, $30,- 
 000 might be received of Mm-ray. She ex- 
 pressed her assent to the settlement, as did 
 Mr. and Mrs. Keese and Charles, upon 
 being consulted. Her assent was given in 
 good faith, and from a full belief that the 
 true interest of those concerned in the estate, 
 required that such settlement should take 
 place, in preference to pursuing a protract- 
 ed litigation; taking into consideration, al- 
 so, the difficulty of obtaining from Murray 
 the amount of a heavy decree, in case he 
 was disposed to conceal his property. She 
 aver?, that no secret application was made 
 to her by Murray, nor were any arguments 
 or inducements addressed to her by him to 
 compromise, and that the settlement was 
 made in good faith, and with a view to pro- 
 mote the true interest of the estate, and not 
 secretly or fraudulently; and she alleges, 
 that she did not consider it as her duty to 
 communicate the intended settlement to the 
 plaintiffs or to Dunscomb, as it was con- 
 sidered advantageous to the estate, and they 
 were known to be opposed to the same, and 
 it was moreover supposed that they might 
 attempt to prevent the settlement, and cre- 
 ate difficulty or delay in carrying the same 
 into effect. 
 
 The answer certainly shows great anxiety 
 on the part of Mrs. Mumford to close with 
 
 'f: 675 
 
Case No; 253 
 
 MURRAY V. BLATCHFOHD. 
 
 (§ 16ti 
 
 the proposition made' to her by her son and 
 co-administrator, but it sliows nothing more. 
 It meets and negatives the charge of fraud, 
 and I mistake the testimony in the cause 
 very much indeed, if it does not establish, 
 that she acted in the utmost good faith, and 
 with a firm persuasion that she was doing 
 what was best for her family. That she 
 should be anxious to close the controversy, 
 by receiving a large sum, is easily conceived. 
 She is called in the biU, an aged female, 
 and is said to be dependent on her family 
 for support, and looking to this claim as 
 the only thing left her by her husband. Her 
 son-in-law, Dunscomb, was hostile to her, 
 and without meaning to lift the veil which 
 conceals the disagreements of this family, I 
 think, he gathered, from what appears in 
 this cause, that she was not on friendly 
 terms with the plaintiffs. Of her sons, one 
 had failed, and the other was engaged in 
 fitting himself for business. The suit had 
 lasted for nearly seven years, and she had 
 probably heard of bills and answers, and 
 exceptions, and references, and reports, and 
 appeals, until she was satisfied, that if she 
 was to wait for aid from this source, her 
 eyes would close on the litigation unfinished, 
 and which was to be to her only productive 
 of care and contentions in her own family. 
 The settlement made a provision for her for 
 life, and perhaps she might say to herself, 
 that the difference between $30,000, the sum 
 • she received, and $40,000, which, it seems, 
 Tyould not have been objected to by the 
 plaintiffs, differed her upwards of $3,000, 
 while it only affected the plaintiffs to the 
 amount of about $1,000 each. 
 
 No witness was produced by Mrs. Mum- 
 ford; and of the witnesses introduced by the 
 complainants, the only one who testified to 
 any thing material, was the late Chancellor 
 Kent Mr. Clizbe details some conversations 
 he had with her; but they are without point, 
 and lead to no results. 
 
 It would seem, as well from the bill as 
 from the argument, that the plaintiffs be- 
 lieve that fraud is to be inferred from the 
 fact, that the Mumfords applied to Chancel- 
 lor Kent for his friendly advice in relation 
 to the settlement and release; and his opin- 
 ion and his name, it is said, were to be pro- 
 cured, to prevent any opposition to the set- 
 tlement. But who were to be influenced by 
 such opinion? Not surely the plaintiffs; they 
 had their counsel, and knew their rights, and 
 were not to be driven from their course by 
 the legal opinion of any man. On the court? 
 This will not be pretended, as we are to pass 
 on the facts as they appear in the cause; 
 and yet, if the chancellor's name is not to 
 control the one or the other, it is difficult 
 to conjectiu-e how fraud is to be connected 
 with it. In truth, an undue importance has 
 been given by the plaintiffs to the part taken 
 in the settlement by the chancellor. There 
 was, and there could be, nothing wrong in 
 the application to him. The controversy had 
 676 
 
 its birth in this court, and grew to maturity 
 during the time he presided here; and the 
 claim, if enforfced to the extent contended 
 for by the plaintiffs, must rest on his de- 
 crees, and the investigation he has so fre-; 
 quently and so ably given to the facts and 
 the law of the case. Who, then, could be 
 better fitted to advise with? And ought 
 fraud to be inferred from the fact that Mrs. 
 Mumford, in the divisions of her family, 
 sought the counsel and direction of a person 
 so pre-eminently qualified to guide her? 
 Chancellor Kent says, that he understood, 
 at the time Mrs. Mumford and John I. Mum= 
 ford wished to be guided by his advice, that 
 he told Mrs. Mumford, if she was his moth- 
 er, he would advise her to execute the re- 
 lease; and he might have added, if it was 
 his own case, he would do the same himself. 
 The reasons he gives for his advice are, that 
 he believed Mm-ray would carry the cause to 
 the court of errors; and from his experience 
 in that com-t, he had reason to apprehend 
 some uncertainty as to the cause in the court 
 of errors, inasmuch as he had found himself 
 grievously mistaken in the cause of Riggs 
 and Mm-ray; that he considered Mrs. Mum- 
 ford as a feeble woman, and unable to en- 
 dure a protracted and expensive litigation; 
 and he had some apprehension that Murray 
 might not be able to pay the decree as it 
 stood. 
 
 But it is said, that there was fraud in the 
 application to Chancellor' Kent, inasmuch as 
 the Mumfords did not communicate to him 
 that they were acting in the settlement with- 
 out the consent and against the wishes of 
 Dunscomb, their co-administrator, and that 
 the standing counsel in the cause had not 
 been consulted. As the counsel did not ap- 
 pear in the settlement, and the release was 
 drawn by the adverse counsel, and passed 
 upon by the chancellor, he must have in- 
 ferred at the time, although it has now es- 
 caped his recollection, that the counsel in the 
 cause took no part in the settlement. That 
 Dunscomb took no part in the settlement, 
 appeared from the paper itself. He is 
 named in the title of the cause, as one of the 
 administrators; but in the release which suc- 
 ceeds it, his name is omitted, while those of 
 the Mumfords are inserted, as agreeing to 
 the compromise, receiving the money, and 
 giving the discharge. As Dunscomb resided 
 in New- York, the paper itself contained suf- 
 ficient notice that Dunscomb not only did 
 not joint in the settlement, but was hostile 
 to it. Be this as it may, this information 
 was not necessary for the opinion which 
 was asked, as the advice sought for, was 
 merely whether the sum offered by Mur- 
 ray ought, under all circumstances, to be 
 accepted by the estate; and the silence of 
 the Mumfords on these topics was neither 
 fraudulent nor material. 
 
 As to John I. Mumford, he denies that the 
 settlement was negotiated or concluded se- 
 cretly or fraudulently, and alleges, that so 
 
§ 168) 
 
 MURRAY V. BLATCHFORD. 
 
 Case No. 253 
 
 far as he was concerned, and, according to 
 his belief, so far as the other parties thereto 
 were concerned, the same was done in good 
 faith, and without any fraud, collusion, or 
 improper views whatever, but for the pur- 
 pose of promoting the true interests of the 
 estate, and of the parties interested therein. 
 He admits the compromise was made with- 
 out the consent or knowledge of the plain- 
 tiffs or of Dunscomb, and conti-ary to their 
 judgment or desire, as to the amount to be 
 received; but he alleges they were willing 
 to compromise on receiving a larger sum. 
 He is not, however, apprised of the amount 
 they required. 
 
 John D. Keese, In his answer, says, that 
 the first intimation he received of tlie com- 
 promise was about two days before the re- 
 lease was signed, when the Jlumfords stated 
 to him that the preliminaries of a compro- 
 mise had been agreed upon, and that it only 
 waited for the assent of himself and his 
 wife; he assented In good faith, and from a 
 full conviction that the true interests of the 
 estate and of the parties interested therein, 
 required that such settlement should talie 
 place, in preference to continuing an ex- 
 pensive litigation. In agi-eeing to the set- 
 tlement, the parties assenting thereto, in con- 
 versing on the subject, took into considera- 
 tion the diflBculty of obtaining from Murray 
 the amount of the final decxee, in case he 
 was disposed to cover his property. He de- 
 nies that the settlement was negotiated and 
 concluded secretly and fraudulently, but 
 , , , says that the same was done in good faith, 
 and with a view to promote the ti-ue interest 
 of the estate. 
 
 Charles Mumford, in his answer, says, that 
 two or three days before the release was exe- 
 cuted, being in Philadelphia, he received a 
 letter from his brother, stating that endeav- 
 ors were making to effect a compromise with 
 Murray, and requesting his consent thereto. 
 He gave for answer, by the return mail, that 
 he would agree to any compromise which 
 the administrators, or a majority of them, 
 might make; and this is the only communi- 
 cation he had on the subject of the settle- 
 ment. 
 
 The only witness in the cause besides those 
 whose testimony has already been adverted 
 to, was George Griswold, who was intro- 
 duced by the plaintiffs, with intent to Im- 
 peach the answer and conduct of John I. 
 Mumford. This witness, however, says, 
 that Mumford, when he informed him of 
 the settlement, declared that he had not re- 
 ceived any of the money himself, for he had 
 told his mother, beforehand, that he would 
 not receive any of it, but that she and the 
 rest might take care of it. The impression 
 of the witness was, that the compromise and 
 settlement were made in preference to con- 
 tending in conti-oversy to the end of the law. 
 This testimony certainly does not look to 
 fraud, and it leaves the answers as it found 
 them.' Without going farther into the cause, 
 
 I feel warranted in saying, that the plaintiffs 
 have failed in making out their charge of 
 actual fraud against any of the defendants. 
 Then comes the grave question, whether the 
 plaintiffs, under all. the circumstances of the 
 case, are to be held boimd in this court by a 
 settlement and release which was made and 
 given without their concurrence, and against 
 their known wishes. 
 
 That there are cases in which the persons 
 entitled to the personal estate may be re- 
 lieved against the acts of the executor, and 
 a debtor or creditor, will be seen by a recur- 
 rence to a few authorities. Thus, In New- 
 land V. Champion, 1 Ves. Sr. 106, Lord Hard- 
 wicke says, if there are any persons who 
 have possessed the estate, or any debtors of 
 the deceased, and any collusion between 
 them and the representative, they may here, 
 though not at law, follow the assets and 
 make them parties, and demand an account 
 against them; but this is not to be done un- 
 til there is some proof of collusion. 
 
 In Scott V. Tyler, 2 Dickens, 712, certain 
 bonds were pledged by .the executor, to se- 
 cure not only a private debt of hie own, 
 but also future advances to him in his pri- 
 vate trade. The bill was by the legatee 
 against the pawnee. The bonds were spe- 
 cifically bequeathed, and there was ample 
 funds to pay debts, so that the executor was 
 bound to assent to the legacy. Three years 
 after the death of the testator, the defend- 
 ants, who were bankers, took the bonds 
 without any reference to the affairs of the 
 testator. No actual fraud was pretended, 
 and the bankers swore that they knew noth- 
 ing of the bonds until they were deposited 
 as a general security, and they had no knowl- 
 edge of the contents of the will. 2 Brown, 
 Ch. 476, 479. Lord Thurlow said, this must 
 proceed on the ground of imputing fraud to 
 the pawnee, in concerting with the executor 
 a devastavit and misapplication of the tes- 
 tator's effects, to disappoint the specific 
 legatee. He rem.-i.rked, that fraud and covin 
 wiU vitiate any transaction, and turn it to 
 a mere color. If one concerts with an ex- 
 ecutor or legatee, by obtaining the testator's 
 effects at a nominal price, or at a fraudulent 
 undervalue, or by applying the real value 
 to the purchase of other subjects for his own 
 behoof, or in extinguishing the private debt 
 of the executor, or in any other manner con- 
 trary to the duty of the office of executor, such 
 concert will involve the seeming purchaser, 
 or his pawnee, and make him liable for the 
 full value. He decreed that the bonds 
 should be delivered up. The words "or in 
 any other manner," Lord Eldon, who had 
 been counsel in the catise, says, in McLeod 
 V. Dnimmond, 17 Ves. 167, were very ma- 
 terial. 
 
 In Doran v. Simpson, 4 Ves. 664, Lord 
 Eldon says, that in the case' of a creditor, 
 or of next of kin, if they can state a case 
 that the representative is colluding with the 
 debtors to the estate, and diminishing the 
 
 677 
 
Case No 253 
 
 MURRAY V. BLATCHFORD. 
 
 (§ 168 
 
 fund, they have a right, on the ground of 
 collusion, to malie the debtor a party to ob- 
 tain a discovery, and upon that discovery, 
 to attach upon the money, and to prevent 
 the payment of the money, or a settlement 
 of the account, by collusion between the rep- 
 resentative and the debtor. And referring* 
 to the case of Newland v. Champion, he says 
 the authority of Lord Hardwidie in that 
 case, had been supported by a vast number 
 of cases where it has been necessary for a 
 party interested, either as creditor, or as 
 being entitled to a distributive share of the 
 personal estate, not to permit the adminis- 
 tration to go on abusively or coUusively be- 
 tween the representative and a person who 
 is indebted to the estate. 
 
 In Alsager v. Johnson, 4 Ves. 217, 6 Ves. 
 748, it appeared that an action at law was 
 commenced against executors by an attor- 
 ney for the testator; the residuary legatees 
 applied to the executors to be permitted to 
 defend, which was refused; a verdict was 
 had, and under it the prothonotary awarded 
 a large sum as due. The legatees filed their 
 bill against the plaintilf in the action, and 
 the executors impeaching the demand and 
 charging collusion, the legatees were reliev- 
 ed, althoush there does not appear to have 
 been proof of a fraudulent collusion. Lord 
 Eldon, in deciding the case, says, with re- 
 spect to collusion, it is very difficult to de- 
 fine what it is; it must depend on all the 
 circumstances; and where a creditor seelis 
 to appropriate to himself the advantage aris- 
 ing from the too great facilities the exec- 
 utors may have given him to substantiate 
 his demand, or too great readiness in admit- 
 ting it, the case, as against a creditor, before 
 it can be said there is not collusion, must be 
 examined with very nice and critical atten- 
 tion; and he adds, there is sufficiently grave 
 evidence in this case to malje the court hes- 
 itate long before it would say, there Is not 
 that which this court would not deem collu- 
 sion between these parties. His lordship 
 said, he inclined to thinli a decree might be 
 made against the creditor, on the ground 
 that, whether there was a debt due, and to 
 what extent, had never been tried with that 
 searching attention which the legatees had 
 a right to expect from the executors. 
 
 These cases go to show that the personal 
 representatives are not, in all cases, bound 
 by settlements made with debtors by the 
 executor, although there was uot actual 
 fraud. I thinli that if a settlement plainly 
 appears to have been for the benefit of the 
 estate, it will be held binding on the per- 
 sonal representative, although it was made 
 without his concurrence, or even against his 
 consent; nor perhaps would a settlement be 
 opened where the amount in controversy was 
 small, and the renewed litigation would lead 
 to great trouble and expense. But without 
 speculating about cases where the courts 
 might or might not Interfere, it is sufficient 
 for the present, and for this cause, to-sny, 
 678 
 
 that the coui-t, without fixing on any general 
 rule or principle, will determine every case 
 according to its particular circumstances. 
 
 As it is not pretended that Mumford left 
 debts to any amount, this claim has been 
 prosecuted for the benefit of the personal 
 representatives; and the administrators are 
 therefore emphatically their trustees and 
 agents. The cause is carried on until the 
 result in this court is no longer a matter of 
 doubt, and then, at a moment when the ad- 
 ministrators find that their agency and power 
 are about to be transferred to other hands, 
 ihey go hastily into a compromise without 
 consulting the representatives now before 
 the com-t as plaintiffs in this cause, and 
 avowedly because it was understood by all 
 the parties that such representatives would 
 not consent to the terms offered. The sum 
 reported is very large; and that taken, is 
 about a third of the amount. The settle- 
 ment was made on the grounds of the uncer- 
 tainty of the result of a threatened appeal to 
 the com't of errors, and the fear that Murray 
 might cover his property. These are consid- 
 erations which I cannot judicially weigh, 
 nor can I say that the settlement was bene- 
 ficial to the estate; and I am therefore con- 
 strained to say, but without imputing actual 
 fraud, or believing that the parties were 
 actuated by improper motives, that the set- 
 tlement and release do not, in this court, 
 bind the plaintiffs in this cause, and they 
 are therefore to be at liberty to prosecute 
 the claim and the former suit, so far as their 
 rights are concerned. With respect to the 
 other parties, as well the representatives of 
 Mumford as Mm-ray, I shall hold them 
 bound by the release. The representatives 
 of Mumford, it is understood, do not object 
 to this; and as Mm-ray acted in this business 
 with a full knowledge of the rights and 
 wishes of all the family, he assumed, of 
 course, all the risk which attended the set- 
 tlement. It shall therefore bind him as far 
 forth as he had the assent of the family, 
 and where such assent fails him, he shall 
 be placed in the state in which the settle- 
 ment found him. 
 
 A few words on the subject of costs. It is 
 urged, on the part of John D. Keese and his 
 wife, and Charles F. Mumford, that they 
 were improperly made defendants, and that 
 therefore they ought to have costs allowed 
 to them. As the nature and extent of the 
 interest of these defendants appeared on the 
 face of the bill, the short and cheap way of 
 bringing the question before the court would 
 have been by demurrer, (7 Ves. 287;) and al- 
 though it is not too late at the hearing npon 
 the answers and testimony to have it passed 
 on, the court will not, without urgent cause, 
 then dismiss the bill with costs. But I think 
 if these defendants were not strictly neces- 
 sary parties, and of this I do not feel that I 
 am called upon to give an opinion, still that 
 there was nothing improper in putting them 
 in the cause. The general rule is, that all 
 
§ 168) 
 
 MURRAY V. BLATCilFORD. 
 
 Case No. 25S 
 
 persons who are either legally or beneficially 
 interested In the subject matter and result 
 of the suit, ought to be parties, so that a 
 complete decree may be made. Now it is 
 evident that the defendants had an interest 
 in the original claim, as well as in the sum 
 in court, and had therefore a right to be 
 heard, either for or against the settlement. 
 Indeed, the decree made must necessarily 
 reach and conclude them, and the court 
 could not well pass upon their interest with- 
 out having them before it as parties. 
 
 As to the general costs, it is material that 
 the settlement was not brought about, or 
 the release obtained, by fraud on the part of 
 Mm-ray. He certainly was aware that the 
 plaintiffs were not acting in, or consenting 
 to, the compromise; but there is no evidence 
 that he took advantage of the old age of 
 the mother, or the necessities of the sou, to 
 obtain imdue terms. On the contrary, it ap- 
 pears that the Mumfords, without any 
 agency on the part of Murray, first moved 
 in the settlement; and I am satisfied that 
 Murray thought he was buying his peace, 
 by paying the full extent of what he be- 
 lieved was due to the estate of Mumford. 
 I shall not, therefore, order him to pay 
 costs. 
 
 R. Sedgwick and S. A. Talcott, Atty. Gen., 
 for appellant. H. W. "Warner and D. B. 
 Ogden, for respondents. 
 
 SAVAGE, Chief Justice of the Supreme 
 Court The complainants contended, in the 
 court of chancery, that the release should be 
 set aside, on several grounds: 1. Because it 
 was executed by only two of the administra- 
 tors. 2. Because there was a lis pendens in 
 consequence of the notice of the application 
 for the appointment of a receiver. 3. And 
 principally because the transaction was fraud- 
 ulent. Judge Emott, who sat for the chan- 
 cellor, decided all these points in favor of 
 the defendants, but held that this was a 
 case in which the complainants ought not 
 to be bound by the acts of the administra- 
 tors; and therefore decreed, that the release 
 be set aside, so far as relates to the inter- 
 ests of the complainants who represent one 
 third part of the estate of John P. Mumford, 
 deceased. From this decision, John B. Mur- 
 ray has appealed to this court; and the ques- 
 tions to be decided, are the same as in the 
 court of chancery. 
 
 1 Was it competent for two administi-a- 
 tors, against the will of the third, to execute 
 a valid release? 
 
 The law, as to the power of executors, 
 seems never to have been questioned. "If 
 a man appoints several executors, they 
 are esteemed in law but as one person, 
 representing the testator, and therefore, the 
 acts done by any one of them, which re- 
 late either to the delivery, gift, sale, pay- 
 ment, possession, or release of the testator's 
 goods, are deemed the acts of all; for they 
 
 have a joint and entire authority." 3 Bac. 
 Abr. tit. "Executors and Administrators," D. 
 The reason given for this rule by Lord Hard- 
 wicke is, that each executor is considered as 
 entirely representing the testator. Hudson 
 V. Hudson, 1 Atk. 460. Lord Hardwicke, 
 however, considered that administrators have 
 no such power; and the principal reason as- 
 signed for the difference is, that the executor 
 receives his power from the testator, and may 
 perform many acts before probate of the will; 
 but the administrator receives all his au- 
 thority from the ordinary. Lord Hardwicke 
 cites no authority but the opinion of Lord 
 Bacon, (4 Elements of the Law, p. 83.) 
 
 A similar dictum is found in 11 Vin. Abr. 
 73, citing Toth. 264, 265. The same point is 
 laid down by Blackstone, (2 Bl. Comm. 510,) 
 and he relies on the case of Hudson v. Hud- 
 son. In that case, this point was not necessary 
 to be adjudicated, as the cause was decided 
 upon another point. The opinions, however, 
 of Lord Bacon and Lord Hardwicke, are 
 entitled to great respect; and in the English 
 courts they have been so treated. The case 
 of Hudson V. Hudson, was decided in 1737. 
 In 1751, in Jacomb v. Harwood, 2 Ves. Sr. 
 267, the same question was discussed by Sir 
 John Strange, master of the rolls, when the 
 case of Hudson v. Hudson was considered. 
 Speaking of that case, he says, it was said 
 that in that case, the lord chancellor had 
 been of opinion that one administrator could 
 not release, so as to bind the other; yet 
 when that case was more narrowly looked 
 into, it appeared clearly that was applicable 
 to the particular circumstances of the case. 
 He then cites the case of Willand v. Fenn, 
 2 Selw. N. P. 783, in which there had been 
 three arguments in the king's bench, and 
 thereupon decided, that one administrator 
 stood on the same ground and foundation 
 as one executor; and such was the decision 
 of the master of the rolls. The case of 
 Jacomb v. Harwood has never been over- 
 ruled in England, but has been acquiesced 
 in, and considered as settling the point. 
 Toll. Ex'rs, 407, 408. And the same has 
 been the understanding of the courts in this 
 state. 11 Johns. 22. The difference hereto- 
 fore supposed to exist between the powers 
 of executors and administrators, in this re- 
 spect, was said to be founded in the different 
 sources from which their powers were de- 
 rived; the one being by appointment of the 
 testator, the other by the appointment of 
 law. I apprehend there never was any rea- 
 son for the supposed distinction. Their lia- 
 bilities and responsibilities were ever the 
 same, and their powers should be so. But 
 if there was gi-ound formerly for it, there 
 surely is none under our statutes, which rec- 
 ognize both as possessing the same rights, 
 and interest, and authority over the estate 
 of the deceased. 
 
 2. The doctrine of lis pendens is this: That 
 whoever purchases the subject matter of a 
 suit, pendente lite, takes his purchase subject 
 
 679 
 
Case No. 253 
 
 MUBKAY V. BLATCllEORD. 
 
 l§ 168 
 
 to the decree or judgment which may be 
 rendered in such suit, and the pendency of 
 such suit is per se notice to all the world, 
 and such pendency, when in chancery, com- 
 mences with the service of the subpoena. 
 Murray v. Ballon, 1 Johns. Ch. 576. I ap- 
 prehend this doctrine is not applicable to 
 this case. A suit is not considered to be 
 pending within this rule, until the service of 
 process. In chancery, no subpoena issues 
 Until bill filed; and the coiirt is supposed, by 
 awarding process, to have adjudged that the 
 plaintiff had shewn a prima facie case for 
 relief. In this case, notice had been given 
 by one of the administrators to the other 
 two, that an application would be made for 
 the appointment of a receiver— not because 
 there had been any improper conduct in the 
 administrators, or because any thing of that 
 kind was alleged— but because one was said 
 to be old, and the other insolvent, and they 
 had given security in only $40,000. This no- 
 tice can never operate as a lis pendens. It 
 is a mere interlocutory proceeding in the 
 suit already pending; and If this notice were 
 to Incapacitate the administrators from act- 
 ing, it would be easy for a cestui que trust, 
 by giving a similar notice, to prevent ex- 
 ecutors or administrators, or trustees, from 
 ever doing any thing, and there would be no 
 safety in transacting business with them. 
 A reference to the offices of any of the 
 officers of the courts, would give no informa- 
 tion of any suph lis pendens. Not even an 
 ex parte adjudication of the matter gives 
 sanction to the claim; but simply the mere 
 assertion of a right to interfere, by the per- 
 son giving the notice. It is conceded in this 
 case, that the defendants had notice of the 
 intended motion, and they acted in reference 
 to such notice, and, it is presumed, with 
 knowledge that such notice could have no 
 possible effect upon any fair and equitable 
 arrangement which they should make. 
 
 The main question in this case, I appre- 
 hend, is the question of fraud. The bill 
 charges, that the defendants acted fraudu- 
 lently, in bad faith; and in relation to the 
 defendant Murray, several facts are charged, 
 as evidence of the fraud. Among these are, 
 1. Attempts to delay a decision in the cause, 
 by appeal to this court. He twice appealed, 
 and at each time, suffered the appeal to be 
 dismissed. This is admitted, but the defend- 
 ant Murray declares, that the appeals were 
 brought bona fide, with an intention to have 
 them argued and decided by this court, but 
 that his counsel advised to the course which 
 was adopted. This is an answer which ought 
 to be satisfactory. The counsel, after the 
 appeal brought, were of opinion, that after 
 certain other steps should have been taken 
 in the cause, the errors, which they advised 
 their client existed, would be more apparent. 
 The answer is given under oath, is respon- 
 sive to the bill, and is not contradicted. It 
 must, therefore, be taken to be true, and if 
 true, rebuts the idea of fraud. 
 
 'C80 
 
 2. That Murray procured the release for 
 much less than the report, to which he did 
 not except, and that he was able to pay the 
 whole sum reported due. This fact is con- 
 ceded to be so; but Murray avers that the 
 amount paid is much more than was really 
 due, and much more than John P. Mumford, 
 in his life time, ever claimed, though he was 
 fully apprized of his rights. 
 
 3. It is also alleged, that the same sum 
 had been previously offered, and rejected. 
 To this, it is answered, that two years previ- 
 ous the same sum was offered; that an ar- 
 rangement was partially made by the coun- 
 sel in the cause for a settlement for $35,000; 
 and that $30,000 would have been received, 
 provided the defendant Murray would have 
 paid the costs; and that at the time when 
 the arrangement was made, $40,000 would 
 have been assented to by all the parties in 
 interest. 
 
 It appears that there existed in the family 
 of Mrs. Mumford an unfortunate family dif- 
 ficulty, insomuch that it was unpleasant for 
 her and Dunscomb to transact business to- 
 gether. So Dunscomb says; but Mrs. Mum- 
 ford denies that they could not associate for 
 the transaction of necessary business. 
 
 4. It is urged as evidence of fraud, that 
 the settlement was made without consulting 
 Drmscomb or the complainants. The answer 
 is, the family quarrel already stated; but 
 that in fact the consent of Dimscomb was 
 requested by John I. Mumford, previous to 
 the execution of the release. 
 
 5. It is also charged, that MmTay had been 
 long endeavoring to circumvent Mrs. Mum- 
 ford and John I. Mumford, and to take ad- 
 vantage of their situation, both being in ne- 
 cessitous circumstances, and Mrs. M. moreov- 
 er, being old and infirm. The intention imput- 
 ed to Murray, he denies. He knew that Mrs. 
 M. was poor, and that J. I. M. was insol- 
 vent; but it is to be recollected, that the same 
 offer was made when these circumstances 
 did not exist, and he made no attempt to ob- 
 tain more favorable terms than he had be- 
 fore proposed. In answer to the charge, that 
 Mrs. M. was old and infirm, it is denied, ex- 
 cept that she was sixty years old and up- 
 wards. This Is Indeed an age which is sup- 
 posed to disqualify certain persons for the 
 performance of certain public duties; but the 
 presumption of incompetency, I believe, does 
 not extend to the transaction of private con- 
 cerns; but if so, still Mrs. M. in this respect, 
 had the vantage ground of Murray, who, 
 from facts appearing In the case, must be 
 presumed to be several years in advance oC 
 her. But the fact of age Is not urged as a 
 groimd to support the charge of fraud in 
 Mrs. Mumford. It were, indeed, a melan- 
 choly spectacle to see persons, far advanced 
 in life, active participators in fraudulent 
 practices, or even the dupes of others, when 
 the natm-al presumption should be, that as 
 we approach the end of our course, probity 
 and integrity should be predominant, that 
 
§ 168) 
 
 MURRAY B. BLATCHFORD. 
 
 Case No. 253 
 
 we may be better prepared to answer the 
 charges to be made against us in that dread- 
 ful day of awful responsibility and account 
 which we ai-e rapidly approaching. 
 
 6. It is also charged as one of the fraudu- 
 lent devices resorted to by the defendants, 
 that the late Chancellor Kent was consulted 
 in relation to the settlement, and his advice 
 in favor of it fraudulently obtained. 
 
 Of all facts adduced to support a charge of 
 fraud, this is, to my mind, one of the most 
 ■extraordinary. That the chancellor, who had 
 known the whole history of this case, who 
 liad established the principle upon which the 
 <lefendant, Murray, was to accoimt, who had 
 presided in our courts for a longer period 
 than any other citizen in the state, and who, 
 during all that time, held a most distin- 
 guished ranii, should be incapable of giving 
 ■correct and wholesome advice, without con- 
 sulting the counsel in the cause, is a paradox 
 incapable of explanation. It seems to me, 
 therefore, as it did to the learned judge who 
 decided this cause in the court below, that 
 the charges of fraud have been successfully 
 refuted. 
 
 One other circumstance appearing on the 
 part of the defendants is worthy of notice. 
 The persons entitled to the estate of John P. 
 Mumford are, the widow Mary I. Mumford 
 and six children, three of whom were in fa- 
 vor of the settlement, and three against it. 
 The widow being entitled to one third of the 
 avails of the suit, those concm-ring in the set- 
 tlement, represent two thirds of the subject 
 in controversy. If they conspired and con- 
 federated to cheat anybody, it was to cheat 
 themselves twice as much as they cheated 
 the complainants, which is a palpable ab- 
 surdity. And, in relation to this point, it 
 should be recollected, that before any exam- 
 ination before the master, Mun-ay made the 
 same ofCer; and $5000, or at most $10,000, in 
 addition then, and even when the settlement 
 was made, would have been accepted by 
 those who now seek to set a'side the release. 
 Of this additional sum, two thirds would 
 have gone into the pockets of the defend- 
 ants, and but one third to the complainants 
 —less than $1000 to each— a sum which it 
 seems to me could be no equivalent to the 
 mortification resulting from the fact of pre- 
 senting upon the records of the court a 
 charge of a fraudulent attempt by a mother 
 to defraud her own daughters. When to all 
 these considerations is added, what no doubt 
 had a controlling influence, the determina- 
 tion of Murray to appeal, and the possibility 
 that even less than the $30,000 might ulti- 
 mately be recovered after a protracted liti- 
 gation; and further, that Mrs. M. was ad- 
 vised to this course by a counsellor, than 
 whom no one could be more capable of giv- 
 ing advice, so far from seeing, in this trans- 
 action evidence of fraud, it would have been 
 extraordinary if the offer had not been ac- 
 
 *^^Thus far I have concuiTed in Xhe views of 
 
 the learned judge who made the decision in 
 the court of chancery. In the eloquent opin- 
 ion which we have before us, it is shewn 
 very satisfactorily to my mind, that the acts 
 of two administrators stand on the same 
 gi'ound as two executors; and the dissent of 
 the third administrator, forms no objection 
 to the validity of the release; that it is in 
 no way affected by the doctrine of a lis pen- 
 dens, and that fraud is not imputable to any 
 of the parties to the release. Yet, he de- 
 creed that it should be held inoperative and 
 void as to the complainants in this cause, 
 who are two of the children of John P. 
 Mumford not assenting to the settlement and 
 release. This decision is not placed upon 
 any particular principle, but upon the pir- 
 cumstances of the case: the amount of the 
 report, compared with the amount received; 
 the compromise carried into effect, when the 
 motion was about to be made to supersede 
 the powers of the administrators; the uncer- 
 tainty of the result of an appeal; the pos- 
 sibility of an entire loss of whatever might 
 ultimately be awarded to the estate; and the 
 impossibility of deciding whether the settle- 
 ment was advantageous to the estate. It is 
 certainly true, that there are cases where 
 those interested in an estate are permitted 
 to pursue it into the hands of any person 
 who colludes or conspires with the executor 
 to produce a devastavit. It becomes my du- 
 ty to examine this subject in the cause of 
 Colt V. Gilbert, Godb. 241, -decided in this 
 court one year ago, but which is not yet re- 
 ported, and to review several of the cases re- 
 ferred to in the opinion of the circuit judge. 
 In the case of Colt v. Gilbert, the facts were, 
 that Jacob Le Hoy was executor of the last 
 will and testament of Dulary;' that, as such 
 executor, he had in his hands a considerable 
 sum of money which belonged to the estate, 
 and which money was used as part of the 
 capital of the house of Jacob Le Roy and 
 son; and that Colt, one of the firm, trans- 
 ferred the money of the estate of Dulary to 
 Colt, by Le Roy's direction, as he said, in 
 payment of a debt due him by the firm. In 
 that case, we held that the house of Le Roy 
 and son, and of com-se Mr. Colt, one of that 
 firm, was responsible to the administrator, 
 with the will annexed, and to the residuary 
 legatee, for the amount of the estate thus 
 misapplied; and after referring to the lead- 
 ing cases on the subject, we came to this con- 
 clusion: "That any person receiving from 
 an executor the assets of his testator, know- 
 ing that such disposition of them is a viola- 
 tion of his duty, is to be adjudged conniving 
 with the executor; and is responsible for 
 the property thus received, either as a pur- 
 chaser or a pledgee." And the principles 
 laid down by Chancellor Kent, in Field v. 
 SchiefCelin, 7 Johns. Ch. 150, were approved: 
 that the purchaser is safe if he is not a par- 
 ty to the fraud of the executor, and has no 
 knowledge or proof that the executor intend- 
 ed to misapply the proceeds, or was, in fact, 
 
 681 
 
Case No. 253 
 
 MURRAY V. BLATCHFORD. 
 
 (§ 168 
 
 by the very transaction, applying them to 
 the extinguishment of his own private debt; 
 that in such case, he buys at his peril; but 
 that if he has no such proof or knowledge, 
 he is not bound to inquire into the state of 
 the trust, because he has no means to sup- 
 port the inquiry, and he may safely repose 
 on the general presumption, that the execu- 
 tor is in the due exercise of his trust. 
 
 This decision, and the principles estab- 
 lished in it, seem to me to bring us back 
 again to the question of fraud and collu- 
 sion. All the cases cited by the circuit 
 judge, are, I apprehend, cases of fraud or 
 collusion. Lord Eldon seemed to be at a 
 loss to determine what collusion is. We 
 have defined it to be any intermeddling with 
 the executor, or the assets of the testator, 
 by which the executor is guilty of a viola- 
 tion of his duty; so that we are broiight 
 round again to the question whether the ad- 
 ministrators were guilty of a violation of 
 duty, under all the circumstances of the 
 case, and which need not be again recapitu- 
 lated. 
 
 It is true, they released for one third of 
 the sum reported in their favor; but it is 
 also true that, according to the answer of 
 Murray, (and this answer must be consid- 
 ered true,) the sum paid was more than was 
 really due, or was ever claimed by Mr. Mum- 
 ford, in his lifetime. It must also be un- 
 derstood, that Murray did not intend to sub- 
 mit to this report, but was about to appeal; 
 and the chancellor, who knew all the facts 
 and the law of the case, advised to the ac- 
 ceptance of the terms offered. It is idle to 
 suggest, that fraud was practiced on such 
 a man. Can it be supposed, that he was in- 
 capable of giving an opinion upon a case 
 which he had adjudged, without the opin- 
 ion of counsel? I would by no means de- 
 preciate the services of counsel; but it is a 
 mistake to suppose that no one but the 
 counsel employed in a cause is capable of 
 forming a correct opinion as to its probable 
 results, or of giving suitable advice as to its 
 progress or termination. 
 
 It is also true, that the persons claiming 
 one third of the avails, were opposed to the 
 settlement, but the administrators, and those 
 interested in the residue, were in favor of 
 it. Suppose the administrators had no in- 
 terest in the avails, and those owning two 
 thirds of the fund had tu-ged such an ar- 
 rangement, but it was declined, and in the 
 end much less had been recovered; or sup- 
 pose the whole had been lost, through the 
 subsequent failure of Murray, after reject- 
 ing such an offer; would not those who had 
 urged the settlement have much more rea- 
 
 682 
 
 son to call upon the administrators and 
 charge them with a violation of duty? 
 
 In addition to these considerations, when 
 it is stated as a fact in the case, that a sum 
 in addition, but less than $1,000, to each of 
 the complainants, would have been accepted 
 by them, though less than half the sum re- 
 ported, and this known to the administra- 
 tors, I am free to express my opinion, that 
 to have refused the offer of ?30,000, would 
 have been highly indiscreet, if not a positive- 
 violation of duty; and that their termina- 
 tion of the controversy was prudent and 
 proper. 
 
 I am therefore of opinion, that the admin- 
 istrators were not guilty of any violation of 
 duty— of course, Murray could be guilty of 
 no collusion; and therefore the complain- 
 ants would have no right to pursue even as- 
 sets in the hands of a bona fide purchaser. 
 But another consideration of some weight 
 is this: that in this instance, the claim in 
 question cannot be considered assets for any 
 greater amount than the sum agreed upon. 
 
 The result of my conclusions is, that the 
 judge erred in setting aside the release as to 
 two sixths of the demand in question; and 
 that the decree should be reversed, and that 
 the bill of the complainants should be dis- 
 missed, with costs. 
 
 SUTHBRLANT). .J., expressed his concnr- 
 rence in the opinion pronounced by the 
 CHIEF JUSTICE, and BENTON, CRARY, 
 ELSWORTH, ENDS, BLAGER, LAKE. Mc- 
 MAHTIN, OLIVER. SMITH, TODD, 
 THROOP, TYSEN, WARREN, and WIL- 
 KESON, Senators, also concurred. DAY- 
 
 AN, Mccarty, mcihchael, schenck, 
 
 STBBBINS, wheeler, and WOOD- 
 WARD, Senators, were of opinion that the 
 decree ought to be affirmed. 
 
 Whereupon, a decree was entered revers- 
 ing the decree in the court of chancery; de- 
 claring the .release executed by Mary I. 
 Mumford and John I. Mumford to John B. 
 Murray, valid and binding upon the repre- 
 sentatives of John P. Mumford, deceased; 
 ordering the bill of the respondents to be 
 dismissed with costs, and directing the re- 
 spondents to pay the costs of the appellants 
 in this court; and that the cause be remitted 
 to the court of chancery, to the end that the- 
 decree of this court may be carried into ef- 
 fect. 
 
 It being suggested that the appellant had 
 died since the hearing of the appeal. It was 
 ordered, that the decree be entered with ref- 
 erence to the time of hearing on the 14th 
 day of June last, so as to take effect from 
 that day. 
 
§ 168) 
 
 McKIM V. AULBACH. 
 
 Case No. 254 
 
 McKIM, Judge of Probate, v. AULBACH 
 et al. 
 
 (130 Mass. 481.) 
 
 Supreme Judicial Court of Massachusetts. 
 Suffolk. March 4, 1881. 
 
 J. J. Abbott and B. Dean, for plalntifE. A. 
 Russ and D. A. Dorr, for defendant. 
 
 COLT, J. The defendant is sued upon a 
 probate bond, given by him as one of two ex- 
 ecutors. A judgment having been ordered 
 for the penalty of the bond, the question be- 
 fore us is how much of the penalty is due 
 In equity and good conscience, for which an 
 execution should be awarded. Several breach- 
 es of the bond are assigned. Upon two of 
 these, namely, the failure to file an invento- 
 ry, and the failure to render an account with- 
 in a year, the defendant is liable for nomi- 
 nal damages. 
 
 The principal question arises on an al- 
 leged breach by the defendant, in negligently 
 permitting his co-executor Wellbrock to ap- 
 propriate the personal estate of the testator 
 to his own use, whereby it was lost. The 
 bonds given by the two executors were sev- 
 eral and not joint, and neither Is liable for 
 losses caused exclusively by the default of 
 the other. In order to charge the defendant, 
 the burden is on the plalntifC to show that, 
 in the administration of the estate, the de- 
 fendant was negligent in the performance of 
 some duty which the law devolves upon him 
 personally. Austin v. Moore, 7 Mete. (Mass.) 
 116, 124. 
 
 A mortgage due to the testator, in the 
 state of Ohio, which by his wUl the execu- 
 tors were authorized to collect and invest as 
 they might judge to be for the interest of 
 the estate, was collected upon a joint release 
 and discharge, signed by both executors, 
 which was forwarded to the mortgagor 
 through an express company. The money 
 when returned by the express company was 
 received by the co-executor Wellbrock with- 
 out the defendant's knowledge, and deposit- 
 ed by him In a savings bank in goou stand- 
 ing, partly in his own name and partly in 
 his name as trustee. He afterwards took the 
 money from the bank without the knowl- 
 edge of the defendant, and It was lost to the 
 estate by his misappropriation of it. It is 
 sought to charge the defendant for the loss 
 of this money. 
 
 The report finds that Wellbrock had al- 
 most exclusive management of the estate; 
 that he was a neighbor and friend of the 
 testator, and had relations more intimate 
 than the defendant with parties faiterested 
 under the wiU; and that the defendant was 
 not familiar with laws and forms of busi- 
 ness, or with the English language, and 
 was content to leave the business in the 
 hands of his co-executor. It appears that 
 the defendant accounted for all the estate 
 
 which actually came into his individual pos- 
 session. In their first account, which was 
 filed, assented to by the parties in interest, 
 and allowed, after the mortgage was collect- 
 ed, the executors charged themselves with 
 the amount paid thereon; and in a few days 
 after it was allowed, the defendant resigned 
 his trust. Two other accounts were after- 
 wards filed by Wellbrock, the remaining ex- 
 ecutor, which were assented to by the par- 
 ties in interest, by which he charged himself 
 with the amount collected on the Ohio mort- 
 gage. 
 
 It was the right of each executor to re- 
 ceive and hold the funds of the estate. Ed- 
 monds V. Crenshaw, 14 Pet. 166. Neither 
 can be held responsible for the waste or mis- 
 conduct of the other, unless there be some 
 act or agreement, on the part of the one 
 sought to be charged, by which the estate 
 has gone into, or has been negligently suf- 
 fered to remain in, the exclusive possession 
 and control of the one by whose misconduct 
 the loss occurs. Thus both were held liable 
 in a case where money was delivered to oni' 
 executor, and immediately handed over to 
 the other, who appropriated It to his own 
 use. Langford v. Gascoyne, 11 Ves. 33;>. 
 But an executor is not held any farther than 
 he Is shown to have participated in the mis- 
 appropriation. "Merely permitting his co- 
 executor to possess the assets, without goins 
 farther and concurring in the application of 
 them, does not render him answerable for 
 the receipts of his co-executor. Each execu- 
 tor Is liable only for his own acts, and what 
 he receives and applies, unless he joins in 
 the direction and misapplication of the as- 
 sets." Peter v. Beverly, 10 Pet. 532, .562; 
 Brazer v. Clark, 5 Pick. 96, 104; Sterretfs 
 Appeal, 2 Pen. & W. 419. 
 
 It Is contended that the defendant Is lia- 
 ble In this case, because he must be treated 
 as having concurred in the wrong, by join- 
 ing In the release by which his co-executor 
 was enabled to obtain possession of the 
 money due on the mortgage and to mingle 
 it with his own property. The rules which 
 govern the liability of co-executors follow 
 in most respects the rules which prevail as 
 to co-trustees. But, while the latter are not 
 liable for the money which they have not 
 received, although they join In receipts given 
 for the same, it was at one time held that 
 the former were liable In such cases. The 
 reason given for this distinction was that co- 
 executors, unlike co-trustees, have each an 
 independent power over the personal prop- 
 erty of the testator, and may dispose of it. 
 receive, pay and give receipts in their own 
 names, and therefore, that, if one joins with 
 his co-executor In giving a receipt, he does 
 an unmeaning act, unless he Intends to ren- 
 der himself jointly answerable for the mon- 
 ey. But this rule, which does not seem to 
 have been maintained with entire uniformity, 
 is declared in WilUams. Ex'rs, f6th Am. Ed.) 
 1938, to have been greatly relaxed In favor 
 
 683 
 
Case No. 254 
 
 McKIM V. AULBACH. 
 
 (§ 16« 
 
 of executors; and Lord Eldon, in Shipbrook 
 V. Hinchlnbrook, 16 Ves. 478, declares it to 
 liave been brolien down. 
 
 In Joy V. Campbell, 1 Schoales & L. 328, 
 341, Lord Redesdale states the distinction 
 thus: "If a receipt be given for the mere 
 purposes of form, then the signing will not 
 charge the person not receiving." "The true 
 ■question in all those cases seems to have 
 Taeen, whether the money was under the con- 
 trol of both executors. If it was so consid- 
 ■ered by the person paying the money, then 
 the joining in the receipt by the executor 
 who did not actually receive it, amounted 
 to a direction to pay his co-executor;" "he 
 became responsible for the application of the 
 money just as if he had received it." In 
 Hovey v. Blakeman, 4 Ves. 696, 608, Lord 
 Alvanley, the master of the rolls, referring 
 to the earlier rule, declared that he would 
 not consider the fact that an executor joins 
 in the receipt as absolutely conclusive; and 
 in Scurfield v. Howes, 3 Brown, Oh. 91, he 
 stated his dissent from the rule, when an 
 •executor joins in signing a receipt, if it ap- 
 pears that he joined for conformity only. 
 In McNair's Appeal, 4 Rawle, 148, 157, the 
 •supreme court of Pennsylvania declares that 
 "there is no good reason for making execu- 
 tors or administrators liable more than trus- 
 tees for moneys which they have never 
 actually received, merely because they have 
 Joined in a receipt with the co-executor or 
 co-administrator who did receive it. The re- 
 ceipt when proved must always be consid- 
 ered prima facie evidence against each of 
 the signers that he received the money; and 
 if he wishes to avoid the consequent liabili- 
 ty, it wUl lie upon him to prove that it was 
 not received by him." The weight of mod- 
 ■ern authority, both English and American, 
 
 <i84 
 
 is that a joint receipt is only presumptive 
 evidence that the money came into the pos- 
 session or under the control of both. Monell 
 V. Monell, 5 Johns. Ch. 283. And this pre- 
 sumption may be rebutted by proof that the 
 money was in fact received by one, and that 
 the other joined only as matter of form and 
 for the sake of conformity. See also Mana- 
 han V. Gibbons, 19 Johns. 427; Ochiltree v. 
 Wright, 1 Dev. & B. Bq. 336; Perry, Trusts, 
 §§ 421-426. 
 
 It is further contended that, even if the 
 defendant cannot be charged upon the 
 ground of his having joined in the release of 
 the mortgage, and having allowed the money 
 due thereon to be collected and deposited by 
 Wellbrock alone, yet that the finding of the 
 master In favor of the plaintiff is supported 
 by the facts stated in the report, that, In 
 April 1878, within a month after Wellbrock 
 received and deposited the money, and before 
 the greater part of it had been drawn out 
 again by him, "either the defendant was 
 warned and put on his guard, as testified to 
 by one of the parties in interest, or his sus- 
 picions were aroused;" and that "since that, 
 whereas before that time receipts for rent 
 had been given In the name of WeUbrock 
 alone, he Insisted that thereafter they should 
 be signed by both of the executors." 
 
 But this statement of the master is too mea- 
 gre and ambiguous to enable us to come to 
 a satisfactory conclusion on this branch of 
 the case; and, for the purpose of a fuller 
 and clearer ascertaining and statement of the 
 facts and circumstances relied on to charge 
 the defendant by reason of negligence and 
 breach of duty on his part since the original 
 receipt and deposit of the money by WeU- 
 brock, the case must be 
 
 Recommitted to the master. 
 
§ 1^8) 
 
 BAEUY V. LAMBERT. 
 
 Case No. 255 
 
 BARRY V. LAMBERT. 
 
 (98 N. Y. 300.) 
 
 Ctourt of Appeals of New York. March 3, 1885. 
 
 Appeal from supreme court, general term, 
 second department. 
 
 Action by one Barry against one Lambert, 
 executrix of the will of Thomas Lambert, 
 deceased, to establish a trust in a certain 
 loan made by said executrix. From a 
 judgment in favor of plaintifC, defendant .4^- 
 peals. 
 
 William E. Osborn, for appellant. N. C. 
 Moak and J. S. Stearns, for respondent. 
 
 RUGER, C. J. The evidence in this case, 
 outside of the admissions of the defendant's 
 deceased co-executrix, tended strongly to 
 show that the plaintifC, immediately previ- 
 ous to January 31, 1882, delivered to Maria 
 Lambert, defendant's co-executrix, the sum 
 of $2,000 in bills of the denomination of $100 
 each, and on that day the defendant v(rith his 
 co-executrix of the estate of Thomas Lam- 
 bert, loaned $1,800 of this identical money, 
 together with $6,000 belonging to the estate, 
 and about $200 belonging to Mrs. Lambert, 
 in one aggregate sum of $8,000 to Margaret 
 Lawrence, taking back a bond and mort- 
 gage as security therefor to themselves 
 as executors. 
 
 Outside of such declarations, however, 
 the evidence was not entirely clear as to 
 the particular understanding and agreement 
 with reference to the disposition of these 
 moneys entered into, between Mrs. Lambert 
 and the plaintifC, when the money was deliv- 
 ered to her. This evidence was attempted 
 to be supplied by proof of certain declara- 
 tions, made by the deceased co-executrix, 
 Maria Lambert, soon after the loan was 
 made, in the presence of the plaintifC and 
 other parties. Mrs. Lambert was at that 
 time in feeble health, and her early death 
 was then anticipated. The declarations 
 were offered to be proved by the witnesses 
 who were present at the time they were 
 made, but their admission was objected to by 
 the defendant upon the ground that the dec- 
 larations of one executor were not admis- 
 sible as against his associate. The objec- 
 tion was overruled by the com-t, and the 
 evidence was received, to which ruling the 
 defendant excepted. This exception pre- 
 sents the only serious question in the case. 
 
 The proof showed that Mrs. Lambert then 
 made statements to the effect that she had 
 received $2,000 from the plaintiff, to make 
 up the sum of $8,000 loaned to Mrs. Law- 
 rence, and that plaintifC was to have an m- 
 terest in the mortgage taken as security 
 for the loan, and to receive her share of the 
 interest as it was paid by the mortgagor; 
 that she intended to make an acknowledg- 
 ment to that effect, either by her will, or in 
 a separate instrument, before she died. She 
 also stated that she expected to live until 
 September. She in fact died in June, soon 
 
 after this conversation. These declarations 
 were made by Mrs. Lambert in reply to s, 
 request on behalf of, and in the presence 
 of, the plaintifC, that she should liiake such 
 a declaration or acknowledgmeut, as, in the 
 event of her death, would render the interest 
 of the plaintifC in the Lawrence mortgage 
 secure to her. Mrs. Lambert then promised 
 to attend to it as soon as she got a little 
 stronger, but death intervened before she 
 was able to perform her undertaking. 
 
 Assuming, for the purpose of the argu- 
 ment, that this evidence was admissible, 
 there can be no doubt that these facts 
 raised a valid implied trust in Invitum 
 (Haddow v. Lundy, 59 N. Y. 320; Newton v. 
 Porter, 69 N. Y. 137), and that the express 
 acknowledgment made by Mrs. Lambert 
 operated as a full and perfect declaration of 
 trust, sufficient, within the authorities, to 
 charge the property then in the hands of the 
 executors with the obligations of the trust. 
 
 While there is no proof of any express 
 stipulation made between the parties, at the 
 time the money was delivered, that the se- 
 curity for the loan was to be taken in such 
 form as to disclose the plaintiff's interest 
 therein, yet an understanding to the effect 
 that the plaintifC was" the owner of one 
 fourth of the mortgage, and of the interest 
 accruing thereon, must be implied from the 
 absence of any agreement transferring the 
 title of the money advanced to the execu- 
 tors. A trust by implication arises from 
 the use of the money according to such un- 
 derstanding and agreement, and notwith- 
 standing the security was taken in the 
 name of the executors, equity will protect 
 the interest of the beneficiary, and follow 
 the property in which the money was in- 
 vested, and impose a lien thereon in favor 
 of the plaintiff to the extent of the sum 
 belonging to her thus advanced and in- 
 vested. Price V. Blakemore, 6 Beav. 507; 
 Perry, Trusts, § 842; In re Frazer, 92 N. Y. 
 240; In re European Bank, 5 Ch. App. 358,- 
 Pennell v. DefCell, 4 De Gex, M. & G. 372. 
 
 No difficulty arises from the blending of 
 the money of the estate with that of another 
 person in the same loan, for, the units 
 of which it is composed being of equal val- 
 ue, it is clearly severable and distinguish- 
 able, and suflicient data are given to 
 enable such severance to be made. Th? 
 cases above cited show numerous instances 
 in which such a separation has been de- 
 creed. Conceding for the present that The 
 admissions of Mrs. Lambert were incompe- 
 tent to establish the facts upon which a 
 trust in invitum can be decreed, it is never- 
 theless true that her statement also operat- 
 ed as a valid declaration of trust. It is 
 well settled that a trust in personal prop- 
 erty may be created by parol, and that no 
 particular form of words is necessary for 
 its creation, but the words or acts relied 
 on to effect that object should be unequivo- 
 cal, and plainly imply that the party mak- 
 
 685 
 
Case No. 255 
 
 BAKUY V. LAMBERT. 
 
 (§ 168 
 
 ing tnem intended to divest himself of his 
 interest in the property, and to hold it there- 
 after for the use and benefit of another. 
 Hill, Trustees, 130; Martin v. Funk, 75 
 N. Y. 140; Young v. Young, 80 N. Y. 438; 
 AVillis V. Smyth, 91 N. Y. 297. This is 
 all that is required to create a trust even 
 as against the owner, and although he con- 
 tinues to retain possession of the property 
 devoted to the trust. But when the legal 
 title is in one party, and the equitable 
 ownership in another, it is only necessary 
 for those facts to appear, in order to con- 
 stitute the holder a trustee for the benefit 
 of the other. Pye's Case, 18 Ves. 140. 
 
 The evidence, aside from the declarations 
 in question, tended strongly to establish 
 these facts, and a strong presumption of 
 an intended trust might fairly be implied 
 from the nature and surroundings of the 
 transaction. 
 
 By the will of Thomas Lambert, his wife, 
 Maria Lambert, was given a Ufe estate in 
 all of his property, both real and personal, 
 and his executors were directed to keep It 
 invested during her life, and pay to her the 
 income thereof as long as she should live. 
 The duties of their office required the exec- 
 utors to seek for advantageous investments, 
 and keep the moneys of the estate em- 
 ployed. It was entirely within their power, 
 if it was not their duty, in case a profitable 
 investment offered itself larger in amount 
 than the available assets of the estate, to 
 supplement them with other funds, if they 
 could be legitimately obtained from other 
 parties. These moneys were received by 
 Mrs. Lambert under such a contingency, and 
 she was engaged in the lawful and legiti- 
 mate performance of her duties as an exec- 
 utrix when she received and invested them. 
 
 There is nothing in the ofiice or obligations 
 of executors that precludes them from act- 
 ing as trustees upon other trusts, and for 
 other beneficiaries, if the transaction is not 
 inconsistent with the duties which they owe 
 as executors. Neither will that fact sub- 
 ject property, thus held by them in trust, to 
 the hazard of a loss on account of their dual 
 character, so long as such property can be 
 separated and distinguished from the fimds 
 held by them under their trust as executors. 
 
 The transaction between the plaintiu and 
 Mrs. Lambert was, so far as here appears, a 
 beneficial one for both of the funds intrusted 
 to her, and in receiving the plaintiff's money 
 she was acting in the performance of her 
 legitimate duty as an executrix. It was 
 clearly the duty of Mrs. Lambert, when she 
 used the plaintiff's money in acquiring this 
 mortgage, to have caused a recognition of 
 the plaintiff's interest to appear in the instru- 
 ment itself (Price v. Blakemore, supra), and 
 it was evidently her intention to repair this 
 omission before her death, by malting such 
 a declaration of trust as would protect the In- 
 tprest of the plaintiff, and the question in 
 this case is whether legal proof has been 
 
 686 
 
 given, frorri which a court of equity will find 
 the existence of the trust. 
 
 Co-executors, however numerous, consti- 
 tute an equity, and are regarded in law as 
 an individual person. Consequently the acts 
 of any one of them in respect to the admin- 
 istration of estates are deemed to be the acts 
 of all, for they have all a joint and entire 
 authority over the whole property. Wil- 
 liams, Ex'rs. 810; Wheeler v. Wheeler, 9 
 G9w. 34. Thus one of two executors may 
 assign a note belonging to the estate of the 
 testator (Wheeler v. Wheeler, supra), or 
 make sales and transfers of any personal 
 property of the estate (Bogert v. HerteU, 4 
 HiU, 492). He may release or pay a debt, 
 assent to a legacy, surrender a term, or 
 make an attornment without the consent or 
 sanction of the others. Williams, Ex'rs, 812; 
 Jackson v. Shaffer, 11 Johns. 513; Douglass 
 V. Satterlee, Id. 16; Murray v. Blatchford, 1 
 Wend. 583. It was said in Wheeler v. 
 Wheeler, supra, "that, if a man appoint sev- 
 eral executors, they are esteemed in law as 
 but one person representing the testator, and 
 that acts done by any one of them, which 
 relate to the delivery, gift, sale or release 
 of the testator's goods, are deemed the acts 
 of all." It would seem to follow from this 
 principle that they Lave the power of joint 
 and several agents of one principal, and that 
 any act done or performed by one, within 
 the scope and authority of his agency, is a 
 valid exercise of power, and binds his asso- 
 ciates. 
 
 It is quite true, however, that neither ex- 
 ecutors nor administrators, whether acting 
 separately or jointly, have authority to cre- 
 ate an original liability on the part of the 
 estate, or enter into an executory contract 
 binding upon or enforceable against it. Mc- 
 Laren V. McMartin, 36 N. Y. 88; Ferrln v. 
 My rick, 41 N. Y. 315; Austin v. Munro, 47 
 N. Y. 366. 
 
 It would seem to follow, as the result of 
 the authorities, that the powers of executors, 
 in the administration of estates confided to 
 them, are commensurate with those express- 
 ly granted, or necessarily implied, from the 
 nature of the duties imposed upon them, 
 and their power to bind their associates by 
 their acts is limited only by the nature of the 
 transactions they are called upon to perform. 
 Thus having no power to bind the estate by 
 a new contract, or to revive a demand which 
 has once expired, neither their contracts nor 
 admissions can have the effect of creating 
 one or reviving the other; but having the 
 original power to transfer the property of 
 the estate for the purposes of their trust, any 
 act, whether performed by one or all, which 
 has this effect, is within their authority, and 
 binds the estate. It must be assumed, how- 
 ever, that such a transfer is made for a law- 
 ful purpose, and in form sufficient to operate 
 as a transfer of property between individ- 
 uals. 
 
 We are, therefore, of the opinion that the 
 
§ 168) 
 
 BAUKY V. LAMBERT. 
 
 Case No. 255 
 
 acknowledgments of Mrs. liambert consti- 
 tuted a good declaration of trust, and that 
 the making thereof was an act done in the 
 performance of her duty as an executrix of 
 tlie estate of Thomas Lambert, which oper- 
 ated upon and was enforceable against it. 
 It would hardly be contended, under the cir- 
 cumstances of this case, that a declaration 
 made by Mrs. Lambert, at the time these 
 moneys were received by her, as to the pur- 
 pose for which they were received, would 
 have been incompetent to prove her ti-ust 
 character, even as against her co-executor; 
 and it is difficult to see why a similar decla- 
 ration made by her at a subsequent time 
 would not be equally competent. Such a 
 declaration could in no just sense be said to 
 create any liability against the estate rep- 
 resented by her, or subject It to any action 
 on account of the statement made, for such 
 an action could arise only by a wrongful re- 
 fusal on the part of the executors to recog- 
 nize the plaintiff's equitable rights of prop- 
 erty. The arrangement shown by such a 
 declaration, instead of creating a liability 
 against the estate, would simply have the 
 effect of protecting the party advancing the 
 money from an unjust claim of ownership on 
 the part of the executors, by reason of the 
 form in which the securities for the loan 
 were taken. 
 
 The establishment of this trust works no 
 injury to the estate, for the evidence, aside 
 from the declaration, shows quite conclusive- 
 
 ly that the plaintiff's moneys, to the extent 
 of the lien claimed, and to which the estate 
 had no title, went to make up the value of 
 the property now In possession of the de- 
 fendant. 
 
 Some objections were made by the appel- 
 lant to remarks that fell from the plaintifE 
 while giving her evidence, that tended to 
 show personal commimications and trans- 
 actions between herself and Mrs. Lambert. 
 The witness was admonished by the court 
 not to relate such transactions, and no rul- 
 ing was made by the court, or exception 
 taken by the appellant, on the subject of 
 such evidence on the trial. After the close 
 of the trial the appellant asked to have 
 these expressions struck out. This motion 
 was denied by the court, and we think cor- 
 rectly disposed of. 
 
 The expressions referred to were Inadvert- 
 ently used by the witness, were ruled as in- 
 competent by the court at the time they 
 were made, and were not relied upon in de- 
 ciding the case. 
 
 The conclusion arrived at on the main 
 point of the case renders it unnecessary for 
 us to consider the question as to the admissi- 
 bility of the declarations of one executor 
 against his associate, when offered as evi- 
 dence to prove the facts stated in such dec- 
 larations. 
 
 The judgment should be affirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 687 
 
Case No. 256 
 
 HODGSON V. AMiBROSl. 
 
 (:§ 17<> 
 
 JHODGSON et ux. v. AMBROSE et al. 
 
 (1 Doug. 33T.) 
 
 Court of King's Bench, 1780. 
 
 This was a case sent, under an order of the 
 present lord cliancellor, for the opinion of 
 this court. 
 
 "Susan Jolland, spinster, being seised in 
 fee, by her will duly executed, bearing date 
 the 21st of August, 1775, devised in the fol- 
 lowing words: 'I give and devise unto the 
 Reverend William Arnold, &c. and Isaac 
 Pennington, &c. and their heirs, all that my 
 manor of H. &c. and also all that my other 
 faim called D. &c. and also all other my 
 manors, messuages, lands and tenements 
 whatsoever, &c. to hold the same unto the 
 said William Arnold and Isaac Pennington 
 and their heirs, to such uses, and upon such 
 trusts, and to and for such interests and ptu-- 
 poses, and under and subject to such pro- 
 visoes and agreements as are hereinafter 
 mentioned, expressed and declared of and 
 concerning the same: that is to say, as to, 
 for, and concerning the said manor and farm 
 called H. &c. to the use and behoof of my 
 dear sister Elizabeth the wife of Mr. John 
 Belchier and her assigns, for and during the 
 term of her natm-al life; and after the de- 
 termination of that estate, to the use of the 
 said William Arnold and Isaac Pennington 
 and their heirs, dm'ing the life of the said 
 Elizabetli Belchier, upon trust to support 
 and preserve the contingent uses and es- 
 tates herein-after limited therein, from be- 
 ing defeated or destroyed, and for that pur- 
 pose to make entities and bring actions, as 
 the case shall require, but nevertheless to 
 permit and suffer the said Elizabeth and her 
 assigns, dm'ing her life, to receive and take 
 the rents, issues, and profits thereof, to her 
 and their own use and benefit, and, from 
 and after her decease, then to the use and 
 behoof of the heirs of the body of the said 
 Elizabeth lawfully issuing; and, for want of 
 such issue, then to the use and behoof of 
 my dear sister Catharine Jolland, spinster, 
 and her assigns, for and during the term of 
 her natm-al life: and from and after, &c.' 
 (the same limitations and in the same words 
 as before, to the trustees for the life of 
 Catharine Jolland, and after her death, to 
 the heirs of her body,) 'and for want of such 
 issue, then to the use and behoof of my 
 own right heirs for ever. And as, to, for, 
 and concerning, the said farm called D. &c. 
 and all the said rest and residue of my man- 
 ors, messuages, lands and tenements what- 
 soever, subject to, &c.' (the payment of cer- 
 tain annuities;) 'to the use and behoof of my 
 said dear sister Catharine Jolland and her 
 assigns, &c.' (the same limitations to Catha- 
 i-ine Jolland, and to the trustees for her life, 
 as in the devise of the former part of the 
 estate to Elizabeth,) 'and, from and after her 
 decease, &c.' (to the trustees and their ex- 
 ecutors for 1,000 years without impeach- 
 
 688 
 
 ment of waste upon "triist, &c;): 'stnd, after 
 the detefmination of that term, to the heirs 
 of the body of Catharine Jolland, and for 
 want of such issue, to the use and behoof,, 
 &c.' (the same limitations over to Elizabeth 
 Belchier; to the trustees; the issue of Eliza- 
 beth Belchier; and the testati-ix's right heirs;- 
 (as to Catharine Jolland in the former devise.)- 
 Elizabeth Belchier died on the 25th of Sep- 
 tember, 1775, (in the life-time of the testa- 
 trix), leaving one daughter, Catharine Bel^ 
 chler, one of the defendants. The testatrix 
 died on the 11th of May, 1776. After her 
 death, Catharine Jolland, being advised 
 thereto, made a demise of all the devised 
 estates for 99 years, in trust for herself. 
 She then suffered a recovery, to the use of 
 herself in fee-simple, and afterwards mar- 
 ried the defendant Hodgson, and, in July, 
 1778, she and her husband entered into writ- 
 ten articles to sell the manor of H. under 
 a good title, to Ambrose. In Michaelmas 
 term, 1778, Hodgson and his wife, filed a bill 
 against Ambrose, and also against Catha- 
 rine, tlie daughter of Elizabeth Belchier, for 
 a discovery of the said Catharine's claim and 
 title, and for a specific performance of the 
 articles. The defendant Ambrose admitted 
 the articles, and all the facts above stated, 
 but said, he declined the purchase, being ad- 
 vised, that, by the consti'uction of the will, 
 Catharine Hodgson might be deemed to have 
 taken only an estate for life, and not an 
 estate-tail, by which means a good title could 
 not be made to him. Catharine Belchier sub- 
 mitted the question, and her interest, to the 
 court. 
 
 "The questions stated for the opinion of 
 this court on the above case, were: 1 
 Whether Catharine Belchier, the daughter of 
 Elizabeth Belchier, took any, and what es- 
 tate, under the will of Susan Jolland? 2. 
 What estate Catharine Hodgson, late Jol- 
 land, took under the said will?" 
 
 The case came on to be argued this day, 
 by Lee for plaintiffs, and Wilson for the 
 defendants. 
 
 LORD MANSFIELD asked Wilson, wheth- 
 er he meant to contend, supposing the devise 
 to Elizabeth Belchier would have been an 
 estate-tail in the event of her surviving the 
 testati'ix, that, in the event which had taken 
 place, (of Elizabeth's death happening be- 
 fore that of the testatrix,) her issue could 
 take by purchase? 
 
 He answered, that he thought he could 
 not maintain that point, after the case of 
 Coodright v. Wright, 1 P. Wms. 397. 
 
 BULLER, J., mentioned Hutton v. Simp- 
 son, 2 Vern. 722, as a prior case exactly of 
 the same sort. 
 
 IX)RD MANSFIELD. The limitation to 
 Elizabeth Belchier, on the present supposi- 
 tion, was of an estate-tail. The whole of 
 that limitation was gone at the testator's 
 death, and therefore the estate to Catharine 
 Jolland tobk place immediately. The words, 
 "and for want of such issue," mean the same 
 
§ 170) 
 
 HODGSON V. AMBROSE. 
 
 Case No. 256 
 
 thing as "and after such estate-tail," and 
 this is the common case of a remainder after 
 an estate-tail, where, if the first estate never 
 takes place, the remainder vests in posses- 
 sion immediately. In Hopkins v. Hopkins, 
 1 Ves. Sr. 268, the difficulty was, how an 
 event subsequent to the will should vary the 
 construction; but Lord Talbot got over it. 
 
 Some days before, LORD MANSFIELD 
 had observed, that the question, whether the 
 devise to Elizabeth JoUand was an estate- 
 tail, was exactly the same as that deter- 
 mined in Coulson v. Coulson,^ that Lord 
 Hardwicke had told him, that he was dis- 
 satisfied with that decision; but that he 
 thought it was not now to be shaken. The 
 point therefore was not argued this day at 
 the bar; but his lordship, and BULLER, 
 J., expressed themselves upon it to the fol- 
 lowing efCect: 
 
 LOliD MANSFIELD. With regard to the 
 question, whether the interposition of trus- 
 tees to preserve contingent remainders, shall 
 vary the rule of law, (which says, that 
 where, in the same instrument, there is a 
 limitation to the ancestor for life, and one 
 to his heirs general or special, the heirs shall 
 not ta^e by purchase,) whatever our opinion 
 might be upon principle and authorities, if 
 the point were new, we all think, that, since 
 this is literally the same case with Coulson 
 V. Coulson, and that has stood as law for so 
 many years, it ought not now to be litigated 
 again. It would answer no good purpose, 
 and might produce mischief. The great ob- 
 ject, in questions of property, is certainty, 
 and if an erroneous or hasty determination 
 has got into practice, there is more benefit 
 derived from adhering to it, than if it were 
 to be overturned. Many estates may be en- 
 joyed under the authority of Coulson v. 
 Coulson, the titles to which would be shaken, 
 if the decision in that case were to be over- 
 ruled; and the case is so generally known 
 among conveyancers, that it is impossible 
 there should be many held under the con- 
 trary construction, because, if there were, 
 they would have been controverted. 
 
 BULLER, .7. It was a long time before I 
 could reconcile myself to the determination 
 in the case of Coulson v. Coulson, but now 
 I am not clear, that, even if the question 
 were quite new, I should not be of the same 
 opinion which the court then entertained. 
 If a testator make use of legal phrases, or 
 technical words only, the court are bound to 
 understand them in the legal sense. They 
 have no right nor power to say, that the 
 testator did not understand the meaning of 
 the words he has used, or to put a construc- 
 tion upon them different from what has been 
 long received, or what is affixed to them by 
 the law. But if a testator use other words, 
 which manifestly indicate what his inten- 
 tion was, and shew to a demonstration that 
 
 250. 
 
 13 Geo. II.; 2 Strange, 1125; 2 Atk. 246, 247, 
 
 ARB.WILLS— 44 
 
 he did not mean what the technical words 
 import in the sense which the law has im- 
 posed upon them, that intention must pre- 
 vail, notwithstandig he has used such tech- 
 nical words in other parts of the will. Lord 
 Hai-dwicke truly said, in Bagshaw v. Spen- 
 cer: ' "There can be no magic or particular 
 force in certain words, more than others; 
 their operation must arise from the sense 
 they carry."— And I say, that sense can only 
 be found by considering the whole will to- 
 gether. There is no rule better established 
 than that the intention of a testator express- 
 ed in his will, if consistent with the rules of 
 law, shall prevail. That is the first and 
 great rule in the exposition of all wills; and 
 it is a rule to which all others must bend. 
 It says, "if consistent with the rules of law;" 
 but it must be remembered, that those words 
 are applicable only to the nature and opera- 
 tion of the estate or interest devised, and not 
 to the construction of the words. A man 
 cannot, by will, create a perpetuity; he can- 
 not put the freehold in abeyance; he cannot 
 limit a fee upon a fee; nor make a chattel 
 descendible to heirs; nor prevent a tenant in 
 tail from suffering a recovery. But the ques- 
 tion, whether the intention be consistent 
 with the rules of law or not, can never arise, 
 till it is settled what the intention was. 
 This can only be discovered by taking the 
 whole will together. If it be apparent, I 
 know of no case that says, a strict legal con- 
 struction, or a technical sense of any words 
 whatever, shall prevail against it; unless a 
 case which made a great noise in Westmin- 
 ster Hall a few years ago, be considered as 
 such. I have no difficulty in saying, that I 
 do not look upon that case as such, nor, if 
 ever a similar case should arise, shall I 
 think myself bound by it, but shall consider 
 the question as if that case never had existed; 
 for the most that can be said of it is, that, 
 as far as it respects any rule of law, there 
 were the opinions of six judges against six. 
 I am aware, that, as to the decision of the 
 case between the parties, there were the 
 opinions of seven against five. But it will 
 be found, that the opinion of one of the 
 seven went upon the idea, that it did not ap- 
 pear that the testator meant to use the tech- 
 nical words in a different sense from what 
 the law in general imposes upon them. 
 Whether the intention did sufficiently appear 
 In that case, or not, is a question, which I 
 do not now mean to give any opinion upon. 
 —Much was there said of opinions given by 
 eminent men at the bar. Such opinions, 
 however well considered have no weight In 
 the scale of justice. One (dated in 1747) 
 has got into print, but I have the strongest 
 reason to believe, that no such opinion was 
 ever given by the then solicitor general, to 
 whom it is ascribed. An opinion which he 
 gave on the same wiU, the year before, has 
 been furnished me, by an eminent convey- 
 
 "^7^88. Sr. 142; 2 Atk. 246, 570, 577. 
 
 689 
 
Case Xo. 256 
 
 HODGSON V. AMBROSE. 
 
 (§ 170 
 
 ancer, and it is quite contrary to wliat is 
 printed; and I have also seen a copy of an- 
 otlier, given in 1748, wliich I liave tlie best 
 reason to believe to be genuine, and which 
 clearly proves, that none was given in 1747. 
 If the intention does not plainly appear, I 
 agree, that the legal sense of the words must 
 prevail, and, on that ground, I should be 
 strongly inclined to say, in the present case, 
 even if the decision in Coulson v. Coulson 
 had never taken place, that Catharine Jol- 
 land took an estate- tail; for the testatrix 
 has used nothing but legal words. The de- 
 vise is to A. for life, remainder to trustees 
 to support contingent remainders, remainder 
 to the heirs of the body of A. If there had 
 been no devise to trustees, the case would be 
 so plain, that no man could doubt about it. 
 What then is the nature of such devise to 
 support contingent remainders? It is a le- 
 gal and technical limitation, the peculiar 
 language of conveyancers. The effect of 
 this sort of limitation, in a deed, is settled. 
 There, it is not sufficient to turn words of 
 descent into words of purchase. The tes- 
 tatrix has not shewn, by any other words, 
 that she meant to use the technical expres"- 
 sions in a different sense from what the lav 
 has put upon them, and, therefore, the legal 
 sense must prevail. This distinction was 
 expressly recognized by Lord Northington, 
 in a case of Austin v. Taylor. It seems to 
 me to be false logic, to put a different sense 
 upon any words from what in general they 
 import to bear, by mere inference from the 
 words themselves, unexplained by any oth- 
 ers ; though, if other words manifest the in- 
 tent, I know of no law that says, the intent 
 shall not prevail. " But whatever might have 
 been my opinion on the subject, if neither 
 Duncomb v. Duncomb,^ nor Coulson v. Coul- 
 son had ever existed, yet, after those deci- 
 sions, and the great length of time dm'ing 
 which they have been considered as law, I 
 look upon them as laud-marks, which ought 
 never to be removed, uor shaken. 
 
 LORD MANSFIELD said, since it had 
 been mentioned, he must take notice, that it 
 was most certainly true, that he never gave 
 any such opinion as that in print, nor any 
 opinion at all, on that will in 1747. Several 
 opinions had been taken at different times, 
 
 '7Wm. IIL; 3 Lev. 437. 
 690 
 
 as events arose, by Mr. John Sharpe, the so- 
 licitor, whose brother, Mr. Joshua Sharpe, 
 had furnished the court with copies of them, 
 upon the argument of Perrin v. Blake. 
 There were three given by Sir Dudley Ry- 
 der, and three by himself. Of those given 
 by himself, the first was before 1746, the sec- 
 ond in that year, and the third in 1748. He 
 had the copies still by him, and the third 
 stated, that he had perused his two former 
 opinions, dated so and so, and concurred 
 therewith, viz. that John only took an estate 
 for life, which shewed it to be impossible that 
 he had given a contrary opinion. The au- 
 thor had been too hasty in his publication, 
 and must have been imposed upon. 
 The certificate was in the following words: 
 "If Elizabeth would have taken an estate- 
 tail, in case she had survived the testatrix, 
 we think, by her dying before the testatrix, 
 it is a lapsed devise, and Catherine, the 
 daughter of Elizabeth, can take nothing. As 
 to the question whether Elizabeth would 
 have taken an estate-tail, whatever our 
 opinions might be, if the case were new, we 
 think, as the case of Coulson v. Coulson is 
 literally the same, the precise question ought 
 not to be again litigated, and by that au- 
 thority we are bound to say, in the words of 
 the certificate in that case, that, as it ap- 
 pears that there is, after the determination 
 of the estate for life to Elizabeth Belchier, 
 a devise to William Arnold and Isaac -Pen- 
 nington, and their heirs, for and during the 
 life of Elizabeth Belchier, we are of opinion, 
 that Elizabeth Belchier, if she had survived 
 the testatrix, would have taken an estate for 
 life in the premises devised to her, not 
 merged by the devise to the heirs of her 
 body, but by that devise an estate-tail in re- 
 mainder would have vested in the said Eliz- 
 abeth. Consequently Catharine Belchier, 
 the daughter of Elizabeth, took no estate 
 under the will of Susan Jolland, but Catha- 
 rine Hodgson, late Catharine Jolland, took 
 an estate for life, in all the devised premises, 
 not merged by the devise to the heirs of her 
 body, but, by that devise, an estate-tail in 
 remainder vested in the said Catharine Jol- 
 land. 
 "24th April, 1780. MANSFIELD. 
 "E. WILLES. 
 "W. H. ASHHURST. 
 "F. BULLER." 
 
§ 170) 
 
 DENT o. PEPYS. 
 
 Case No. 257 
 
 DENT T. PEPYS. 
 
 (6 Madd. 350.) 
 
 Chancery Court. March 6, 1822. 
 
 The testator, after payment of his debts, 
 funeral and testamentary expenses, be- 
 queathed the residue of his estate to trus- 
 tees, upon trust, "as to two fifth parts there- 
 of to and for the use and benefit of the chil- 
 dren of his eldest sister Mary, deceased, 
 formerly the wife of George Dent, and aft- 
 erwards of Nathan Oansick, namely, be- 
 tween Elizabeth, George, and Nathan, or 
 their respective families, in the following 
 proportions: viz. for the family of my eldest 
 nephew, (there being four children now liv- 
 ing,) to whom I will and direct that one 
 twelfth part of the two fifth parts be first 
 apportioned equally amongst the said four 
 children of my said nephew William Dent; 
 and subject thereto I will and direct that 
 the residue of the two fifth parts be divided 
 and equally distributed amongst the four 
 families or children of my said nephew 
 WUliam." The testator then bequeathed 
 the remaining three fifth parts of the res- 
 idue of his estate among various persons, 
 but not including the children of his sister 
 Mary. 
 
 The question was, whether the name of 
 the testate's nephew William was not in- 
 serted by mistake in the bequest of the res- 
 idue of the two fifth parts after deducting 
 one twelfth part for that of the testator's 
 sister Mary. 
 
 Mr. Agar and Mr. Swanston, in support of 
 the will. Mr. Bell, contra. 
 
 The Vice-Chancellor, (LEACH.) However 
 absurd the literal expressions of a will may 
 be, a court cannot be at liberty to correct 
 them by conjecture, nor can it substitute 
 one name for another, unless it plainly ap- 
 pear from the context of the will, not only 
 that the name used was not intended by 
 the testator, but that a certain other name 
 was necessarily intended. In this case, the 
 testator begins the clause in question by de- 
 claring his purpose to divide two fifth parts 
 of his residuary estate amongst the four 
 children or famUies of his deceased sister 
 Mary, in the following proportions: he then 
 directs that in the first place, one twelfth of 
 
 the two fifth parts Is to be apportioned to 
 the family of his eldest nephew William, 
 one of the four children of his sister Mary, 
 and then that the residue of the two fifths is 
 to be distributed equally between the four 
 families or children of his said nephew Wil- 
 liam. It is manifest that the name of his 
 nephew William could not have been Intend- 
 ed to be inserted in the latter part of the 
 clause, because that would be to give the 
 whole of the two fifth parts to the family or 
 children of William, in opposition to his de- 
 clared purpose, which was to apportion the 
 two fifth parts in some manner amongst the 
 four families or children of his sister Mary; 
 and next, because it would be utterly incon- 
 sistent with his gift of one twelfth of the 
 two fifth parts, in the first instance, to the 
 family or children of William; for why 
 should he first give one twelfth of the two 
 fifth parts to the same persons, who were 
 at the same time to take the whole of the 
 two fifth parts? If it be manifest that the 
 name of the nephew William was not in- 
 tended to be inserted in this latter part of 
 the clause, it is equally manifest that the 
 name of his sister Mary was intended to be 
 inserted. The declared purpose of the 
 clause was to apportion the two fifth parts 
 amongst the four families or children of his 
 sister Mary, and for this purpose it is es- 
 sential that her name alone should be found 
 there inserted. Declare, therefore, that the 
 residue of two fifth parts, after deducting 
 the one twelfth, is divisible amongst the 
 fom- families or children of his sister Mary. 
 "This court doth declare, that the said 
 testator, by the bequest in his will of the re- 
 maining two fifths of the residue of his es- 
 tate, after deducting one twelfth, intended 
 to give the same to the four families or chil- 
 dren of his sister Mary, and not to the fam- 
 ily or children of his nephew exclusively; 
 and doth declare that the said remainder of 
 the two fifth parts ought to be divided be- 
 tween the plaintiff Elizabeth Blenkinson, 
 the daughter of the said testator's sister 
 Mary Dent, afterwards Cansick, and three 
 deceased children of the said Mary Dent, 
 that is to say, WiUiam Dent, George Dent, 
 and Nathan Cansick, living at the testator's 
 decease; and that their children are enti- 
 tled, per stirpes, to such shares as their par- 
 ents would have taken if living." 
 
 691 
 
Case No. 258 
 
 BEAUMONT v. FELL. 
 
 (§ 171 
 
 BEAUMONT v. FELL. 
 (2 P. Wms. 141.) 
 Paschal Term, 1723. 
 
 One by will devised a legacy of £500 to 
 Catharine Eamley; the person's name who 
 claimed this legacy was Gertrude Yardley; 
 and it was insisted by her, and admitted 
 that no person named Catharine Earnley 
 claimed this legacy; but by the proof it ap- 
 peared, that the testator's voice, when he 
 made his will, was very low and hardly in- 
 telligible; that the testator usually called 
 the legatee of this £500 Gatty, which the 
 scrivener, who took instructions for drawing 
 the will, might easily mistake for Katy, and 
 that the said scrivener not well understand- 
 ing who this legatee of the £500 was, or 
 what was her name, the testator directed 
 him to J. S. and his wife to inform him 
 further, who afterwards declared that Ger- 
 trude Yardley vyas the person intended. 
 
 It was moreover proved, that the testator 
 in his life time had declared, that he would 
 do well for her by his will. 
 
 Obj. The statute of frauds requires, that 
 a will of a personal estate above such a 
 value should be in writing; and a will in 
 writing giving a legacy to Catharine Earnley, 
 cannot be a writing to entitle Gertrude Yard- 
 ley to this legacy, for that both the Christian 
 and surname are entirely difEerent; and by 
 the same reason it may be maintained, that 
 a legacy given to A. B. is a good legacy to 
 C. D. 
 
 Upon this case THE MASTER OF THE 
 ROLLS took time to consider and give his 
 resolution, at the first hearing inclining that 
 the legacy was void. 
 
 But afterwards, at another day, his honour 
 gave his opinion, that the legacy was a good 
 legacy to Gertrude Yardley, though the same 
 was given by the will to Catharine Earnley. 
 
 It is true, if this had been a grant, nay, 
 had it been a devise of land, it had been 
 void, by reason of the mistake both of the 
 Christian and surname. 
 
 In 1 Inst. 3a, it appears, that special care 
 ought to be taken of the name of baptism, 
 because (as it is said there) a man cannot 
 
 692 
 
 have two names of baptism; though In tho 
 same place it is allowed, that in some cases 
 the mistake of a Christian name may be 
 helped; as if a grant or devise be to William, 
 Earl of Pembroke, or William, Bishop of 
 Salisbury, and his name be John, it is in 
 such case good, there being a suflacient cer- 
 tainty without the Christian name, for that 
 there can be but one person Earl of Pem- 
 broke or Bishop of Salisbury; wherefore the 
 mistaken Christian name shall be rejected as 
 surplusage. 
 
 And in the principal case 'tis alleged to be 
 much worse, neither the Christian or sur- 
 name being right, nor any addition of cer- 
 tainty to help it, and by the common law, 
 as well as by the statute, the devise of 
 land ought to be in writing; and there would 
 have been no writing to entitle Gertrude 
 Yardley had this been a devise of land. 
 
 However, this being a bequest of a person- 
 al thing, a chattel interest, makes it a differ- 
 ent case, and as, originally, a bequest of a 
 legacy was governed by and construed ac- 
 cording to the rules of the civil canon law, 
 so shall it be after making the statute of 
 frauds, provided there be a will in writing. 
 
 Now here is a will in writing, and the 
 claim in the present case is founded upon it; 
 in Swinb. 389, it appears, that where a man 
 intends to give a legacy to J. S. and he 
 gives the same to J. N. there neither J. S. 
 nor J. N. shall take the legacy, forasmuch as 
 J. N. is not the person intended, and J. S. 
 is not the person named; but (says the book) 
 if the testator does err in the name, and not 
 in the person, such error shall not hurt. 
 
 Now, in the principal case the name, and 
 not the person is mistaken; and it is very 
 material, that here is no such person as Cath- 
 arine Earnley claiming this legacy, which, 
 together with the proofs of the testator's 
 having a very low voice, when he made tho 
 will, and of his having usually called the 
 plaintiff Gatty, instead of Gertrude, and 
 often declared he would do well for her, is 
 sufficient to entitle the plaintiff to this leg- 
 acy. 
 
 NOTE. See Oxenden v. Chichester, 4 Dow, 
 65. 
 
§ 172) 
 
 GILL V. SHELLEY. 
 
 Case No. 259 
 
 GILL V. SHELLEY. 
 
 (2 Russ. & M. 336.) 
 
 High Court of Chancery. Jan. 28, 1831. 
 
 The testatrix, Elizabeth Merrlcks, the wife 
 of James Merrlcks, bnlng empowered by 
 her marriage settlement to dispose of her 
 estate notwithstanding her coverture, did, 
 by her will, give the whole of her estate, 
 both real and personal, to her husband for 
 his life, and after his death she gave parts 
 thereof to different i)ersons; and as to her 
 residuary estate she directed her trustees 
 and executors "to divide, share and pay 
 the same equally to, between and amongst 
 Anne Maria Hall, widow, now or lately 
 residing at Carter's Corner In the parish of 
 Hellinsly, the adopted daughter of Thomas 
 Oolbran, heretofore of Hailsham, yeoman, 
 deceased, the before-named and described 
 Sarah Kennet and Thomas Martin respec- 
 tively, notwithstanding the bequest herein- 
 before made to them, and over and above 
 the same respectively; and also to and be- 
 tween and amongst all and every the legiti- 
 mate children of my relations who (those 
 who are relatives) were, are or may be in 
 consanguinity to me of the degre of first 
 cousins, either paternally or maternally 
 (except the before-named Elizabeth Ste- 
 phens, whom I exclude from receiving any 
 part or share of the same); and In this last 
 bequest I include William Freeman, the son 
 of the late Charles Freeman of the Cliffe 
 aforesaid, grocer, Elizabeth Merricks (de- 
 ceased), the grandson of the before named 
 Henry Freeman and Mary his wife, Intend- 
 ing that he the said William Freeman shall 
 have and take such part, share and interest 
 therein, as his father the said Charles Free- 
 man deceased would have been entitled to if 
 living, under this my will in this particular 
 respect; and in case any of the parties, 
 or any of the children of my said relatives, 
 to whom I have given a distributive share 
 of the residue and remainder of my said 
 real and personal estate, or of any other de- 
 scription of estates not hereinbefore dis- 
 posed of, and amongst whom I include 
 the children of the late William Martin of 
 Hailsham aforesaid, shopkeeper and farmer, 
 deceased; also the children of the late 
 Elizabeth Hastings of Hailsham aforesaid, 
 deceased (before Elizabeth Martin); also the 
 children of the late Mary Gladman, of East 
 Dean in the said county of Sussex, deceased 
 (before Mary Blackman, and likewise the 
 children of such of them my said relatives 
 last before described, as shall happen to die 
 in my lifetime, or in the lifetime of my 
 said husband, the share of him, her or them 
 so dying, shall go and be payable, and paid 
 equally to and amongst the children of such 
 deceased person or persons.)" 
 The testatrix died in the year 1827. 
 At the time of making her will, there 
 were living two children of Mary Gladman, 
 who was then dead, and was described m 
 
 the will as the late Mary Gladman: one 
 of them, the defendant Charlotte Shelley, 
 was an illegitimate child, born before the 
 marriage of her mother with John Gladman, 
 and the other, a legitimate child, born after 
 the mother's marriage. 
 
 Mai-y Gladman was the daughter of Jo- 
 seph and Mary Blackman, which Mary 
 Blackman was a first cousin of the testatrix. 
 
 The husband of the testatrix had died: 
 and the question in the cause was whether 
 the defendant Charlotte Shelley was enti- 
 tled to share in the testatrix's residuary 
 estate as one of the children of the late Mary 
 Gladman. 
 
 It was proved in the cause, that Charlotte 
 Shelley was an illegitimate child of Mary 
 Gladman, and born in the year 1796; that 
 Mary Gladman was acquainted with the 
 testatrix before the birth of the child; that, 
 prior to her marriage, and soon after the 
 birth of the defendant Charlotte Shelley, she 
 went to live in the house of the testatrix, 
 and that the testatrix was well aware that 
 Mary Gladman had such illegitimate child; 
 that the child, when quite an infant, and 
 during the residence of the mother with the 
 testatrix, was frequently brought to the 
 house of the testatrix, and treated afCec- 
 tionately by the testatrix; that Mary Glad- 
 man being uneasy at her separation from her 
 child, the testatrix proposed that the child 
 should reside with some person near to 
 her, and offered to pay the extra expense 
 which would thereby be occasioned; that 
 the defendant Charlotte Shelley went by 
 the name of Blackman, was put out to nurse 
 for the first year after her birth, and after- 
 wards resided with the father and mother 
 of Mary Gladman until the marriage of 
 Mary Gladman, and from that time she 
 resided with John Gladman and Mary Glad- 
 man until the death of Mary Gladman; that 
 Mary Gladman, after her marriage and until 
 her death, resided wHh her husband at 
 the distance of nine or ten miles from the 
 testatrix, and continued to be in the habit 
 of going to the house of the testatrix until 
 she died; that she frequently took her two 
 children with her to visit the testatrix, and 
 that the testatrix well knew that Mary Glad- 
 man had only one child afer her marriage. 
 
 Mr. Bickersteth, for plaintiffs. Mr. Pem- 
 berton and Mr. Wigram, for Charlotte Shel- 
 ley. Mr. Bacon, for the representatives. 
 
 THE MASTER OF THE ROLLS. The 
 question in cases of this sort is a question 
 of intention. Prima facie, the term children 
 is Intended to mean legitimate children; 
 and if there are legitimate children, or if 
 it be possible that there should be legiti- 
 mate children of the person named, no ille- 
 gitimate child can take under the descrip- 
 tion of children. If, in this case, there had 
 been no legitimate child of Mary Gladman 
 at the time of making the will, and there 
 
 693 
 
Case No,. 259 
 
 GILL V. SHELLEZ. 
 
 (§ 1'2 
 
 had been two Illegitimate children, inasmuch 
 as the death of Mary G-ladman made it im- 
 possible that there should be any future 
 legitimate child, there can be no doubt that 
 evidence would have been admissible to 
 prove the fact; and the two children, who 
 had acquired the reputation of being the 
 children of Mary Gladman, would have tak- 
 en under the description, of her children by 
 force of the clear intention of the testatrix. 
 If, in this case, the gift had been "to the 
 two children" of Mary Gladman, deceased, 
 then, inasmuch as the death of Mary Glad- 
 man had made it impossible that there 
 should be two legitimate children, ought 
 not evidence to be admissible of the facts 
 from which it was demonstrated that the 
 testatrix meant to include the illegitimate 
 child who had acquired the reputation of 
 being the child of Mary Gladman? And is 
 there, as to this point, any sound and ration- 
 al distinction between the expression "the 
 children," which necessarily describes more 
 than one child, and the expression "the 
 two children?" 
 
 Considering, then, that "children" is an 
 ambiguous term, which may mean legiti- 
 mate child or illegitimate children who have 
 acquired the reputation of being children; 
 
 694 
 
 and assuming that, if there are, or by any 
 possibility may be, legitimate children to 
 satisfy the expression, no illegitimate child 
 can take together with the legitimate chil- 
 dren, although that point is denied by the 
 judges in "Wilkinson v. Adam, 1 Ves. & 
 B. 466. I think the evidence admissible in 
 this case: and the evidence, being admitted, 
 demonstrates that the testatrix did mean 
 to include the defendant, Charlotte Shelley, 
 under the expression of "the children of 
 the late Mary Gladman." 
 
 In the case of Swaine v. Kennerley, 1 Ves. 
 & B. 469, the expression is, "the child or 
 children of my late son, Thomas Swaine, 
 deceased," which implied a doubt in the 
 mind of the testator whether his late son 
 had more than one child. In Hart v. Du- 
 rand, 3 Aust. 684, the expression is, "to 
 every of the sons and daughters of my late 
 cousin, J. Durand;" and, that cousin having 
 left only one legitimate daughter, and only 
 two illegitimate children, a son and a 
 daughter, the expression in the will mani- 
 fested that the testator was ignorant of 
 the actual state of Durand's family. Neither 
 of these cases, therefore, demonstrated a 
 clear intention on the part of the testator 
 in favor of the legitimate children. 
 
§ 172) 
 
 BKADSHAW v. BHAD.illAW. 
 
 Case No. 26(X 
 
 BEADSHAW y. BRADSHAW. 
 
 (2 Younge & O. 72.) 
 Court of Exchequer, in Equity. April 22, 1836. 
 John Blagrove, Esquire, by his wUl, dated 
 the 3rd February, 1824, gave and devised all 
 his estates in the island of Jamaica, with the 
 slaves thereto belonging, unto trustees, then- 
 heirs, executors, administrators, and assigns, 
 upon trust to manage those estates for the 
 term of three years fi-om the day of his 
 death, and out of the rents, issues, and 
 profits thereof, to pay during the said term 
 certain annuities to which hi^ wife was en- 
 titled under her marriage settlement, and 
 to stand possessed of the residue of the rents 
 and profits accrued during the said term, 
 upon the trusts thereinafter mentioned. And 
 he did thereby further declare, that from and 
 after the expiration of the said term of three 
 years, his said trustees, their heirs and as- 
 signs, should stand and be seised and pos- 
 sessed of his said plantations and estates in 
 the island of Jamaica, in trust, in the first 
 place, for better securing the annuities pay- 
 able to his wife, and subject thereto upon 
 the trusts following; that is to say, as to 
 his two-third parts of the plantation and 
 estate called CardifC Hall, upon trust that 
 they the said trustees should from time to 
 time, so long as Robert Blagrove Bradshaw. 
 the second son of his dear daughter Eliza, 
 the wife of James Bradshaw, should be un- 
 der the age of twenty-one years, by and out 
 of the rents and profits of the said last-men- 
 tioned hereditaments, pay and apply the 
 yearly sum of £150 for and towards his 
 maintenance and education; and from and 
 after his said grandson, Robert Bradshaw, 
 should attain his said age of twenty-one 
 years, should, during the joint natural lives 
 of his said daughter Eliza Bradshaw, and his 
 said grandson Robert Bradshaw, out of the 
 said rents and profits, pay unto his said 
 grandson or his assigns, the yearly sum of 
 £300, for his and their own use and benefit, 
 and pay the residue of the rents and profits 
 to his daughter Eliza Bradshaw, for her sep- 
 arate use during her life; and the testator 
 declared, that, after his said daughter's de- 
 cease, the trustees should stand seised and 
 possessed of the last-mentioned heredita- 
 ments, upon trust out of the rents and profits 
 to pay the annual sum of £150 for the main- 
 tenance of his said grandson, Robert Bla- 
 grove Bradshaw, until he should attain his 
 said age of twenty-one, and after that pe- 
 riod the annual sum of £300 until he should 
 attain the age of twenty-five, the surplus 
 rents to accumulate in the interim; and he 
 directed that when and as soon as the said 
 Robert Blagrove Bradshaw should attain the 
 age of twenty-five, but not sooner, he should 
 be let into the possession of the whole of the 
 rents and profits of the last-mentioned prem- 
 ises; and, subject to the trusts aforesaid, he 
 declared that his trustees should stand pos- 
 sessed of the said last-mentioned premises, 
 
 In trust for the said Robert Blagrove Brad- 
 shaw for life, with remainder to his first and 
 other sons in tail male; with remainder, as 
 to one undivided moiety, in trust for his 
 grandson, Henry Ooore, second son of his 
 daughter Isabella Coore, widow, for his life, 
 with remainder to his first and other sons in 
 tail male; with remainder to his grandson 
 Richard Coore, third son of his daughter 
 Isabella Coore, for life; with remainder to 
 his first and other sons in tail male; with 
 remainder to the right heirs of the testator. 
 The other undivided moiety was limited in 
 the same manner, except that Richard Coore 
 took first under that series of limitations. 
 A power of jointuring was then given to 
 Robert Blagrove Bradshaw. 
 
 The testator then declared, that the trus- 
 tees should, after the expiration of the said 
 term of three years, stand seised and pos- 
 sessed of his plantation called the Orange. 
 "Valley Estate, other part of his Jamaica es- 
 tates, upon certain trusts, for the benefit of 
 his daughter Isabella Coore, and for the 
 maintenance and education of his two grand- 
 sons, Henry Coore, and Richard Coore, and, 
 subject thereto, in trust for his said grand- 
 son, Henry Coore, for life; with remainder 
 to his first and other sons in taU male; with 
 remainder to his grandson, Richard Coore, 
 for life; with remainder to his first and 
 other sons in tail male; with remainder 
 to his said grandson, Robert Blagrove Brad- 
 shaw, for life; with remainder to his first 
 and other sons in tail male; with remainder 
 to the testator's right heirs. 
 
 The testator then declared, that his trus- 
 tees should, subject to the said term of three 
 years, stand possessed of the estate called 
 Upper and Lower Magotty, upon certain 
 trusts, for the benefit of his daughters Char- 
 lotte Parkin and Ann Caroline Blagrove, and 
 his grand-daughter, Charlotte Elizabeth Par- 
 kin, and, subject thereto, in trust for Char- 
 lotte Parkin for life, with remainder to her 
 first and other sons in tail male; with re- 
 mainder to Robert Blagrove Bradshaw for 
 life; with remainder to his first and other 
 sons la tail male; with remainder to the 
 testator's right heirs. 
 
 The testator then gave and dfevised to the 
 same trustees and their heirs, his messuage 
 and lands called Great Abshott, situate at 
 Titchfield, in the county of Hants, upon 
 trust, to pay the rents and profits thereof to 
 his said daughter Eliza Bradshaw, during 
 her life, for her sole and separate use; and 
 after her 'decease, he declared that his trus- 
 tees should stand seised of the last-men- 
 tioned hereditaments, in trust for his said 
 grandson Robert Blagrove Bradshaw, and 
 his assigns, for his life, with remainder to 
 his first and other sons in tail male; with 
 remainder to the third, fourth, fifth, and 
 every other son of the said Eliza Bradshaw, 
 severally and successively in tail male; with. 
 remainder to the right heirs of the testator. 
 And the testator declared his mind and will 
 
 6d5 
 
Case No. 260 
 
 BRADSHAW v. BRADSHAW. 
 
 (§ 172 
 
 to be, that an inventory should be made and 
 taken by his executors, as soon as conven- 
 iently might be after his decease, of all and 
 singular his household goods and furniture, 
 plate, linen, books, and china, which should 
 be in, upon, or about his said messuage or 
 tenement called Great Abshott, at the time 
 of his decease. And he gave and be- 
 queathed the full use and enjoymt^nt of the 
 articles and things comprised in such In- 
 ventory to such person or persons vcho 
 should for the time being be entitled, under 
 the limitations aforesaid, to the possession 
 and enjoyment of the same messuage or 
 tenement; the said articles and things to be 
 considered as heir-looms; and to attend and 
 follovsr the said limitations as far as the 
 rules of law and equity would permit. 
 
 The testator died in 1824, leaving his 
 daughter, Eliza Bradshaw, surviving him. 
 At the time of the testator's death she had 
 three sons; Robert Blagrove Bradshaw, who 
 was her eldest, not her second son, as stated 
 in the will; Henry, who was her second 
 son, and Frank. She never had any other 
 sons. Robert Blagrove Bradshaw died in 
 1827, aged ten years, never having been 
 married. The testator also left his daugh- 
 ter Isabella Coore surviving him: she died 
 in 1831, leaving three sons; Frederick, who 
 was her eldest son; Henry John (called in 
 the will Henry), who was her second son; 
 and Richard John Lechmere (called in the 
 will Richard), who was her third son. She 
 never had any other sons. 
 
 By the decree in this cause made in July, 
 1835, it was referred to the master to in- 
 quire who was the person meant and in- 
 tended by the testator, under the name and 
 description of Robert Blagrove Bradshaw, 
 the second son of his daughter Eliza, the 
 wife of James Bradshaw, and under the de- 
 scription and name of his grandson Robert 
 Blagrove Bradshaw. 
 
 The master having examined Mr. Pen- 
 nock, the testator's solicitor, made his re- 
 port in substance as follows:— 
 
 For some years previous to his death, Mr. 
 Pennock was the solicitor of Mr. Blagrove, 
 the testator. In August, 1821, the testator 
 having con^lted Mr. Pennock respecting 
 his will, that gentleman prepared for him a 
 draft will, marked E, in which blanks were 
 left for the names of the devisees, and a 
 note written by Mr. Pennock in the mar- 
 gin, "Please to insert the Christian names." 
 This draft was sent to the testator on the 
 20th of August, and was soon afterwards 
 returned by the testator with several altera- 
 tions in pencil, and with a note in pencil in 
 the testator's handwriting, as follows: 
 "Blagrove plate to Robert Blagrove Brad- 
 shaw, eldest son of Eliza Bradshaw." The 
 testator did not fill up the blanks in this 
 draft; and on one or two occasions, being 
 asked by Mr. Pennock for the names of his 
 grandchildren, said he did not know their 
 .names, but would get them. 
 
 696 
 
 In October, 1821, the testator had several 
 more interviews with Mr. Pennock respect- 
 ing his will, when the latter recommended 
 him to have it settled by counsel. The tes- 
 tator wishing to have the matter kept se- 
 cret, it was arranged that draft E should be 
 copied with fictitious names, and the copy 
 laid before counsel. This was accordingly 
 done; the name of "Archdale" being sub- 
 stituted for that of "Bradshaw," "LindeU" 
 for that of "Blagrove," and "Jones" for that 
 of "Coore." This draft having been settled, 
 it was again copied, and real names being 
 inserted, and the last-mentioned draft 
 marked F, was signed and published by 
 the testator as his will, on the 7th of De- 
 cember, 1821. Previous to such signature and 
 publication, the testator gave to Mr. Pennock 
 the name of Robert Blagrove Bradshaw, as 
 the eldest son of his dai^hter Eliza Brad- 
 shaw, and Frederick Coore, as the eldest 
 son of his daughter Isabella Coore, and they 
 so appeared in the wlU; but many other 
 blanks remained, the testator not recollect- 
 ing the Christian names of his grandchil- 
 dren. 
 
 This will was not intended to be final, but 
 was merely executed to meet the event of a 
 sudden demise, and accordingly a fair copy 
 of it was laid before counsel, with fictitious 
 names, as before, for the purpose of a final 
 settlement, which, however, did not then 
 take place. 
 
 In October, 1822, the testator informed Mr. 
 Pennock, that, in consequence of the great 
 depreciation of West India property, he 
 should be obliged to make material alter- 
 ations in his wiU, and he directed Mr. Pen- 
 nock to make a codicil to his will of De- 
 cember, 1821, which was accordingly ex- 
 ecuted by the testator. On the 22nd of 
 November, 1823, he wrote a letter . to Mr. 
 Pennock, part of which was in the words 
 following: — "Please to make a rough draft 
 in one section to this devise alone, in the 
 mode I did devise, benefit to the eldest son 
 of Mrs. Coore; draw out such interest to 
 become the benefit of his two younger broth- 
 ers, as joint-tenants, in lieu of him, Freder- 
 ick, who, in this section, need not even be 
 named. Draw it, that, if one brother be 
 minded to sell his interest in the estate for 
 his natural life to the other brother, that 
 he shall have liberty so to do— but to no 
 other than to his brother in joint tenancy. 
 If the brother that purchases the estate 
 shall die without male issue, the estate to 
 devolve to his brother, the joint tenant, and 
 his heirs. If both these younger brothers 
 die without male issue, such interest to de- 
 volve to the possessor and heirs of Cardiff 
 Hall estate, these estates lying contiguous 
 to each other." In a letter dated the 26th 
 November, 1823, he wrote as follows: "We 
 may make progress in the rough section of 
 the devise of Cardiff Hall and Unity estates, 
 negroes, stock, etc., to James Blagi-ove Brad- 
 shaw, in failm-e of male issue, with power 
 
§ 172) 
 
 BRADSHAW o. BRADSHAW. 
 
 Case No. 260 
 
 to settle £400 to wife, and £1000 to daugh- 
 ters, to devolve to the possessor of Orange 
 Valley estate, and Orange Valley Pen, Pear 
 Tree Bottom, and Bellair properties. The 
 possessors of these estates (if I recollect cor- 
 rectly) were to pay over to James Blagrove 
 Bradshaw or his heir, £10,000 sterling, or 
 £7000 to render these devises more equal 
 in value one to the other. Now, 1 pause as 
 to this bequest, thinking this or some other 
 sum should be distributed among the joint 
 tenants' sisters, conceiving the Bradshaws 
 will be amply provided for after their grand- 
 father's decease; and more particularly that 
 now it will be settled that Abshott estate 
 shall devolve to James Blagrove Bradshaw 
 in tail male, the annuity settled upon Ab- 
 shott estate being lapse; and the devise al- 
 tered in favour of J. B. Bradshaw, as just 
 above contemplated, shall burthen this prop- 
 erty £150 per annum, liable to Mrs. Bla- 
 grove's annuity." In this letter the word 
 James was altered into Robert by Mr. Pen- 
 nocli at his next interview with the testator. 
 During the discussions which took place 
 about the time when these letters were 
 written, the testator declared to Mr. Pen- 
 nock his intention of making a provision 
 for the second son of his daughter Elizabeth 
 Bradshaw, in lieu of the provisions he had 
 made for the eldest son, assigning as a 
 reason that her eldest son would be amply 
 provided for by Captain Bradshaw, her hus- 
 band's father. The testator accordingly in- 
 structed Mr. Pennock to make the necessary 
 alterations, and Mr. Pennock took rough 
 notes or memorandums of the testator's in- 
 structions whilst he was with him. In these 
 notes Robert Blagrove Bradshaw was named 
 as the party to take the Cardiff Hall estate 
 in tail, and the remainder in tail in the 
 Orange Valley estate, subject to estates m 
 tail male in the Coores. As to the Abshott 
 estate Mr. Pennock's note without the era- 
 sures ran thus:-" Abshott Estate.-To Mrs. 
 Bradshaw, and after her decease, to her son 
 Robert, remainder to his hehrs in tail male, 
 remainder to his brother in succession m tail 
 male; he has several brothers, 2nd, 3rd, 
 
 4th." 
 
 Instructions, pursuant to these notes, were 
 afterwards laid before counsel for the pur- 
 pose of making a new will. The same fic- 
 titious names were used as before The in- 
 structions began with these words: Mrs 
 Archdale's eldest son has an ample foitune 
 from his paternal grandfather. The testator 
 consequently intends to provide for her sec^ 
 ond son, Robert Lindell Archdale, who is 
 now an infant." Throughout the instruc- 
 tions Robert was named as the party to 
 tike the Cardiff Hall estate, etc., pursuant 
 
 to the notes. 
 
 In pursuance of these instructions a new 
 draft was settled by counsel, with fictitious 
 names, as before. These names ws*e after- 
 wards replaced by what Mr. Pennock con- 
 ceived to be the real names of the devisees, 
 
 and amongst the names so changed was 
 that of "Robert Lindell Archdale" into 
 "Robert Blagrove Bradshaw." A fair copy 
 was then made from the draft so altered, 
 and that fair copy was the will, signed and 
 published by the testator in February, 1824, 
 and the subject of the present suit. 
 
 Iji addition to these facts, the master found 
 in substance as follows:— that the testator 
 never had any grandson of the name of 
 James Blagrove Bradshaw, and that the 
 person meant to be designated by that name 
 in the testator's letter, and the person whom 
 Mr. Pennock meant to describe when he 
 interlined the word Robert in the said letter, 
 and the person whom he meant to describe 
 by the name of Robert Blagrove Bradshaw 
 in his rough notes or memorandums, was 
 the second son of the said testator's daugh- 
 ter, Elizabeth Bradshaw, and not her eldest 
 son; and that the second son of Elizabeth 
 Bradshaw was intended to be the object of 
 the testator's bounty: that the reason why, 
 in the draft from which the last will was 
 taken, Robert Blagrove Bradshaw was 
 named and described as the second son of 
 the testator's daughter, Eliza Bradshaw, 
 was, that Mr. Pennock supposed that Robert 
 Blagrove was the correct name of Eliza 
 Bradshaw's second son, the said former 
 draft wiUs marked E and F, in which Rob- 
 ert Blagrove Bradshaw was mentioned as 
 the eldest son of the said testator's daugh- 
 ter, not being referred to; the said draft 
 E having been, no doubt, laid aside as soon 
 as the copy was made of it for counsel's 
 perusal, and the draft marked F having 
 been in all probabiUty put aside for safe 
 custody as soon as the same had been ex- 
 ecuted by the testator. 
 
 Upon the whole, the master certified that 
 he found that the said Henry Bradshaw was 
 the person meant and intended by the said 
 testator, under the name and description in 
 his will of Robert Blagrove Bradshaw, the 
 second son of his daughter Eliza, the wife 
 of James Bradshaw, and under the descrip- 
 tion and name of his grandson, Robert Bla- 
 grove Bradshaw. 
 
 To this report the defendants, Henry John 
 Ooore, and Richard L«chmere Coore, took an 
 exception, on the ground that the master 
 ought to have certified that Robert Blagrove 
 Bradshaw in the master's report, and in the 
 pleadings of the cause named, but now de- 
 ceased, was the person meant and intended 
 by the said testator under the above name 
 and description. 
 
 Mr Boteler and Mr. PhiUimore, for the ex- 
 ception. Mr. Simpkinson and Mr. G. Rich- 
 ards, for the report. 
 
 The Lord Chief Baron (ABINGER). If I 
 entertained any doubt about the integrity of 
 Mr Pennock, or if this instrument, which 
 was made from instnictions given to him, 
 had been prepared and executed at some 
 distance of time from the period when the 
 
 697 
 
Case Xo. 260 
 
 BRADSHAW ». BRADSHAW. 
 
 (§ 172 
 
 conversation took • place between him and 
 the testator, I should hardly venture, upon 
 the parol evidence alone, to decide this point 
 without directing an issue. But it is ad- 
 mitted that Mr. Pennock Is a man of integ- 
 rity; I must say therefore, that it is prob- 
 able. If an issue were directed, that the jury 
 would draw the same inference on the sub- 
 ject that I have done. But the parol evi- 
 dence is not the only matter deserving of 
 consideration. The will itself furnishes ob- 
 servations to show that the testator meant 
 to provide for his daughter's second son. 
 
 It is quite clear that the testator either 
 mistook the name of the second son to be 
 Robert, or if he meant Robert, he mistook 
 him to be tlie second son; that Is to say, 
 he mistook either the name or the description 
 of the individual whom he intended should 
 take. It has generally been found, where 
 mistakes have been assumed to have been 
 made either in the name or description of 
 the devisee, or the property devised, that the 
 mistake has been made in the name and not 
 in the description. In devises of real estate, 
 where a testator has mistaken the name of 
 the county where the lands lie, but yet has 
 given such a description of them that the 
 mistake can be explained, the description 
 has been held to prevail over the mistake 
 in the name. Thus, where a testator has 
 devised lands in the county of A., which he 
 purchased of a certain individual, to one 
 person, and his lands In the county of B. 
 to another person, and it turns out that the 
 lands purchased lie in the county of B. and 
 not in that of A., courts of justice have gone 
 so far as to transpose the names of the 
 counties. 
 
 If a party means to describe a particular 
 object which he has in view, he is more likely 
 to be correct in descriptions than in names. 
 
 It seems to me that the truth of that ob- 
 servation very much applies to the present 
 case. It is clear that Mr. Blagrove did not 
 know, or at least, at one time, if he ever 
 knew, had forgotten the name of the eldest 
 son of Mrs. Bradshaw. The devise is to 
 Robert Blagrove Bradshaw, as the second 
 son of Elizabeth Bradshaw. It is true, that 
 afterwards there is no repetition of the 
 words "second son," as applied to him, but 
 only the words "said grandson." In the 
 argument for the exception, the absence of 
 that repetition has been much dwelt upon; 
 but I know not how to place much weight 
 in that circumstance. If the testator had 
 repeated those words, no doubt that would 
 have been important to show his intention 
 to continue in the same plan of disposition. 
 But it is not necessary to have that evidence, 
 because it is clear that he means the grand- 
 son whom he has before described. Then 
 as to the Abshott estate, supposing in the 
 absence of all evidence the question to be, 
 who was intended to take, the second son 
 not being named— you would say, which did 
 he mistake, the name or the description? 
 
 698 
 
 Evidently the name. In the last devises he 
 mistook the name and not the description. 
 He there devised to the second son of his 
 daughter, by the name of Robert. Here, he 
 devises to the second son of his daughter in 
 the same manner; and when he comes to 
 devise the Abshott estate in failure of issue 
 of his said grandson Robert, he devises it 
 to the third, fourth, and other sons of his 
 daughter; thereby showing that he under- 
 stood he was devising in the first instance 
 to her second son, and not to her eldest. 
 
 The testator is represented to have been an 
 intelligent man, and I presume he read his 
 will. If he did, he must have known that 
 he was devising to the second son of his 
 daughter, and that, in the ultimate devise of 
 the Abshott estate, he was devising to the 
 third and fourth sons of his daughter, as he 
 had before devised to her second son. 
 
 If I must presume that he made a mistake 
 one way or the other, why should I not pre- 
 sume that he made a mistake in the name? 
 This is either a devise to the second son by a 
 wrong name, or to the eldest son by a wrong 
 description; but even if there were no evi- 
 dence, I should be strongly inclined to think 
 that the precise description of the second son 
 was less likely to be erroneous than the 
 name. Supposing the testator had used the 
 words "second son," without any thing else, 
 there would have been no doubt. Suppose, 
 again, he had used the name of Robert only 
 in the devise of the Abshott estate, you 
 would have said he took him for the second 
 son. Then does the present frame of the 
 will make any difference? 
 
 Then with respect to the evidence. The 
 whole argument of the party contending that 
 there is a mistake in the description, is 
 founded oh the construction of the written 
 memorandum made by Mr. Pennock, when, 
 as he stated, he was in communication with 
 the testator. There would be a great deal 
 in that argument if it stood alone; but to 
 come at a right conclusion, the whole of the 
 evidence must be examined. The parol evi- 
 dence clearly proves that the testator made a 
 mistake in the name of the devisee. It 
 should seem that he originally knew nothing 
 of the names of his grandchildren. He aft- 
 erwards, it appears, knew that the name of 
 the eldest son was Robert. Assuming that 
 he knew that fact in 1821, what followed? 
 In November, 1823, he wrote a letter in 
 which he either supposed the name to be 
 James, or from which it is clear that he did 
 not mean to devise to the eldest son. If he 
 meant to devise to a different person, who 
 was that different person except the person 
 described in the will? Assume that it was 
 an altered devise in favour of some person 
 not named before; who was that person but 
 the person described in the will— namely, the 
 second son? If the mistake be in the name, 
 it lets In parol evidence; and Mr. Pennock 
 declares he understood Robert to be the sec- 
 ond son. He swears he believed that to be 
 
§ 172) 
 
 BBADSHAW V. BRADSHAW. 
 
 Case No. 260 
 
 the fact. Whether, therefore, he had the 
 former draft before him or not, would leave 
 that belief unsuspected. At one of his inter- 
 views with the testator, conceiving that the 
 testator had made a mistake, and had said 
 James instead of Robert, he struck out the 
 word James and inserted that of Robert, still 
 believing Robert to be the second son. You 
 have therefore the person who made the will 
 swearing to the circumstances under which 
 the name of Robert was inserted. All you 
 have against that evidence, is the written 
 memorandum, which has been so much re- 
 lied on. But that will not outweigh the 
 strong evidence of Mr. Pennock. It appears 
 to me that there is nothing in this case to ex- 
 plain why, if the testator meant to give the 
 property to the eldest son, he should have 
 given it to the second. 
 
 Mr Pennock's evidence is of the more im- 
 portance, because it is plain that he took 
 down his memorandums at the time of re- 
 
 ceiving his instructions from the testator. 
 The memorandums are such, that no one 
 could have made them except those who 
 took them down. However obscure they 
 might be, yet if he took them down at the 
 time, and very shortly after prepared in- 
 structions from them for counsel, they 
 would well assist his memory. It appears 
 to me also that Mr. Pennock's account is not 
 contradicted but confirmed by Mr. Bla- 
 grove's letter, from which it seems clear that 
 he meant to provide for those who were like- 
 ly to be least provided for. In this letter he 
 states the Bradshaws to be rich, which is 
 an additional circumstance against constru- 
 ing the devise in favour of the eldest son. 
 
 Upon the whole, I think that a jm-y, after 
 hearing the evidence of this gentleman who 
 was the testator's solicitor, and who took 
 down his instructions in writing, would 
 come to the same conclusion as the master. 
 
 Exceptions overruled. 
 
Case No. 261 
 
 NOEMAN 0. MOBRELL. 
 
 (§173 
 
 NORMAN V. MORRELU 
 
 (4 Ves. 769.) 
 Court of Chanceiy. 1799. 
 
 Sarah Long, by her will, dated the 20th 
 of February, 1793, and attested by three wit- 
 nesses, declared, that as to her temporal 
 estate, she gave and disposed thereof as fol- 
 lows. She then gave some pecuniary and 
 specific legacies, and among them, to Mary 
 Norman, a tea-chest; and she gave to her 
 servant, Johanna Gardiner, an annuity of 
 £40 during her life: and she charged the 
 said annuity upon all her real estates, with 
 power to recover it by distress and sale of 
 the goods, chattels, or stock, upon all or any 
 part of her real estates. The testatrix then 
 disposed of her wearing apparel, and gave 
 some other pecuniary legacies; and subject 
 to the said annuity and legacies, and the 
 payment of her just debts, funeral, and tes- 
 tamentary expenses, and the debts of her 
 late brother, she gave all her real estate to 
 James Morrell, his heirs and assigns, for 
 ever: and she also gave and bequeathed to 
 him all the rest and residue of her personal 
 estate not therein before disposed of; and ap- 
 pointed him sole executor. 
 
 By a codicil, dated the 10th of September, 
 1795, the testatrix gave some other legacies, 
 specific and pecuniary, the latter in figures, 
 and among them there was one to Mary Nor- 
 man; and the bill was filed by her against 
 the executor, claiming under the codicil a 
 legacy of £800; and praying, that the usual 
 accounts may be taken; and if the personal 
 estate shall be insufllcient to answer the said 
 legacy, that it may be declared, that the 
 plaintiff is entitled to satisfaction of what 
 shall be found due to her in respect thereof 
 out of the real estate of the testatrix, and 
 the rents and profits thereof, or at least to 
 the extent of the personal estate exhausted 
 in payment of such of her debts and legacies 
 
 700 
 
 as shall appear to liave affected her real es- 
 tate. 
 
 The defendant, by his answer, insisted, 
 that the legacy given by the codicil was only 
 £300; the first figure being "3," and not "8." 
 
 With respect to the other part of the prayer 
 of the bill, the answer stated, that the 
 personal estate amounted only to £2000; 
 and the mortgages and bond debts alone 
 amounted to £4000; in payment whereof, 
 and of the funeral expenses, the defendant 
 exhausted the personal estate, except what 
 was specifically bequeathed. 
 
 Upon the first point, whether the first fig- 
 me of the sum bequeathed to the plaintiff, 
 by the codicil, was "8" or "3," both parties 
 went into evidence. Mr. Short, for the plain- 
 tiff, admitted the figiu:e originally was "3;" 
 but he contended, that It had been altered 
 to "8" by drawing the pen over it again, and 
 extending the upper and lower parts of the 
 figure towards the centre. An engraver was 
 examined upon the subject; and letters writ- 
 ten by the testatrix, who was of an ad- 
 vanced age at the date of the codicil, were 
 proved, in order to show how she made her 
 figures. There was also evidence of her 
 aversion to writing. 
 
 The evidence was not read: but the master 
 of the rolls, upon inspection of the original 
 codicil, thinking it extremely doubtful, rec- 
 ommended a compromise; for which purpose 
 it stood over: but the parties not coming to 
 an agreement, the court was proceeding to 
 direct the same reference to the master, that 
 was made in Masters v. Masters,' but ob- 
 serving that exceptions would be taken to 
 the report, and it must end in an issue, an 
 issue was directed at once, whether the leg- 
 acy given to the plaintiff by the codicil was 
 £800; and if not, with liberty to endorse any 
 other sum. 
 
 Upon the other question, the decree direct- 
 ed that the assets should be marshalled. 
 
 '■ 1 P. Wms. 421. 
 
§ 175) 
 
 CLEMENTSON v. GANDY. 
 
 Case No. 262 
 
 CLBMENTSON v. GANDY. 
 
 (1 Keen, 309.) 
 
 Court of Chancery. 1836. 
 
 Ann Elizabeth Savage, being possessed of 
 large property to which she had become en- 
 titled under the will of her first husband 
 Thomas AylifEe, executed an Indenture, dated 
 the 30th of September, 1816, and made be- 
 tween herself, of the first part, George 
 Crump, and William Robinson (both since 
 deceased,) and the plaintiffs, Thomas Edward 
 Michel! Turton, and Richard Turton, trus- 
 tees, of the second part, and the plaintiff, 
 John Clementson, who was a near relation 
 of Thomas AylifEe, of the third part, by 
 which she covenanted that her heirs, execu- 
 tors, or administrators should, at the end of 
 six months after her decease, pay to the trus- 
 tees the sum of £6,000 upon trust for the 
 plaintiff, John Clementson, his executors, ad- 
 ministrators, and assigns. 
 
 In the year 1817, a marriage being in con- 
 templation, (which afterwards took effect) 
 between the plaintiff, John Clementson, and 
 a daughter of Sir Thomas Turton, an inden- 
 ture of settlement was executed, dated the 
 27th of October in that year, and made be- 
 tween the plaintiff, John Clementson of the 
 first part, Ann Elizabeth Savage of the sec- 
 ond part. Sir Thomas Turton of the third 
 part, the intended wife, of the fourth part, 
 and Thomas E. M. Turton, and Richard 
 Boodle of the fifth part, by which, after re- 
 citing the effect of the indenture of the 30th 
 of September, 1816, and that Ann Elizabeth 
 Savage had, in consideration of the said in- 
 denture having been dehvered up to her to 
 be cancelled, and in consideration of the in- 
 tended man-iage, transferred into the names 
 of herself, Thomas E. M. Turton, and Rich- 
 ard Boodle the sum of £9,682. 6s. 3 per cent, 
 consolidated bank annuities, it was agreed 
 and declared that they, the said Ann Eliza- 
 beth Savage, Thomas E. M. Turton, and 
 Richard Boodle, should stand possessed of 
 the said sum of £9,682. 6s. stock, upon trust 
 for Ann Elizabeth Savage to receive the hi- 
 terest and dividends for her life, and after 
 her decease upon trust for the benefit of the 
 plaintiff, John Clementson and his intended 
 wife, and the children of the marriage as 
 therein mentioned. 
 
 The indenture of the 30th of September, 
 1816, was recited in the last mentioned in- 
 denture, as bearing date the 30th of Decem- 
 ber, 1816. ^ ^ , 
 
 Ann Elizabeth Savage made her will, dated 
 the 23d of October, 1832, which contained 
 the following clause: "I do hereby ratify 
 and confirm a certain indenture bearing date 
 the 30th day of December, 1816, made be- 
 tween me, Ann Elizabeth Savage of the first 
 part, and George Crump, William Robinson, 
 Thomas Edward MicheU Turton of the sec- 
 ond part, and John Clementson of the third 
 part, whereby I have covenanted with the 
 
 said George Crump, William Robinson, 
 Thomas Edward MicheU Turton, and Rich- 
 ard Turton, that my heh-s, executors or ad- 
 ministrators shaU pay unto them, and the 
 survivors or survivor of them, his heirs, ex- 
 ecutors, or assigns, at the end of twelve cal- 
 endar months from my decease, the sum of 
 £6,000 in trust for the said John Clementson, 
 his executors, administrators, and assigns. 
 And I direct my executors to pay the said 
 sum of £6,000 according to the tenor, true 
 intent and meaning of the said deed of cov- 
 enant." And the testatrix gave and devised 
 all her freehold, copyhold, and leasehold es- 
 tates to Samuel Whitelocke Gandy, Richard 
 Boodle, and John Welstead Sharpe Powell 
 (whom she also appointed her executors,) up- 
 on the trusts therein mentioned, and she be- 
 queathed the residue of her personal estate 
 to the trustees of the London Clerical Edu- 
 cation Society. 
 
 The testatrix died on the 27th of Septem- 
 ber, 1833. The biU was filed by John Clem- 
 entson, and the surviving trustees of the in- 
 denture of the 30th of November, 1816, 
 against the executors of the will, and it 
 prayed that the legacy of £6,000, with inter- 
 est from the date of one year from the death 
 of the testatrix might might be paid by the 
 defendants to the plaintiffs for the benefit 
 of the plaintiff John Clementson. 
 
 The defendants by their answer admitted 
 assets; but they insisted, for the reasons 
 stated in the answer, that the testatrix in- 
 tended to refer to the indenture of the 14th 
 of October, 1817, instead of the indenture re- 
 cited in her will; and that she made her will 
 under the belief that she had the power of 
 disposing of the sum of £9,682. 6s. comprised 
 in the indenture of October, 1817. And the 
 defendants further submitted that even if 
 the plaintiff Clementson had a claim to the 
 legacy of £6,000, he was bound to elect be- 
 tween that legacy and the interest which he 
 also claimed imder the indenture of October, 
 1817. 
 
 The defendants had entered^into evidence 
 for the purpose of showing that the testa- 
 trix, shortly before the date of her last will, 
 addressed a letter to her solicitor Mr. John 
 Coles Symes, in which she referred to some 
 prior will, expressing a doubt whether she 
 had not given more property than she pos- 
 sessed, and desired her solicitor to make an 
 estimate of her property, for which purpose 
 she transmitted to him her banker's book. 
 That in that letter the testatrix declared 
 that if she had given more than she had, 
 she must make a different disposition of her 
 property, that the "Clergy Education Socie- 
 ty" might not be a residuary legateee only in 
 name; that in her banker's book the sum of 
 £9,682. 6s. was treated as the testatrix's ab- 
 solute property, and that it was in fact so 
 considered by the testatrix at the time of 
 making her will, and of her death; that Mr. 
 Symes, on examination of the state of her 
 property, found that, with reference to the 
 
 701 
 
Case No. 262 
 
 CLEMENTSON v. GANDY. 
 
 . (§ 175 
 
 testamentary disposition which the testatrix 
 had then made, there would be a deficiency 
 of assets for the payment of legacies, and 
 that he wrote a letter to the testatrix to that 
 effect; that there was no actual deficiency 
 of assets, inasmuch as it had hepn discovered 
 that the testatrix was entitled to a rever- 
 sionary interest, of which she was ignorant 
 at the time of making her will. 
 
 The letters referred to in the evidence of 
 Mr. Symes were found after the decease of 
 the testatrix In the same box which con- 
 tained her will. The deed of the 30th of 
 September, 1816, was not produced, and it 
 did not appear whether it was in existence. 
 
 Mr. Pemberton and Mr. Stuart, for plain- 
 tiff. Mr. Kindersley and Mr. Paynter, con- 
 tra. 
 
 THE MASTER OF THE ROLLS. I am 
 of opinion that this evidence cannot be ad- 
 mitted. It is tendered for the purpose of 
 showing that the testatrix bequeathed prop- 
 erty as her own which did not belong to her, 
 and that she intended to leave a considera- 
 ble residue for charitable purposes, which, 
 by reason of that mistake, turns out to be 
 
 702 
 
 much less than. she intended; and It is ar- 
 gued that this raises a case of election. The 
 intention to dispose must in aU cases appear 
 by the will alone. In cases which require 
 it, the court may look at external circum- 
 stances, and, consequently, receive evidence 
 of such circumstances for the purpose of as- 
 certaining the meaning of the terms used by 
 the testator. But parol evidence Is not to be 
 resorted to, except for the purpose of prov- 
 ing facts which make intelligible something 
 in ttie will which, without the aid of ex- 
 trinsic evidence, cannot be understood. Here 
 the intention to dispose is clearly expressed 
 by the testatrix; there is no ambiguity in 
 the expressions she has employed; and ex- 
 trinsic evidence for the purpose of contra- 
 dicting the intention is Inadmissible. 
 
 An Inquiry as to the contents of the deed 
 referred to by the will, which was not pro- 
 duced at the hearing, was offered by the 
 court to the defendants, but declined on 
 their part; and a decree was therefore made 
 for the payment of the legacy of £6,000, and 
 interest from the period of twelve months 
 from the death of the testatrix. 
 
§ 176) 
 
 LORD CHEYNEY'S CASE. 
 
 Case No. 263 
 
 LORD CHEYNEY'S CASH. 
 
 (5 Coke, 68.) 
 
 Court of Wards. Michaelmas Term, 33 & 34 
 Eliz. 
 
 Sir Thomas Cheyuey, Knt, lord warden 
 of the Cinque Ports, 1 Eliz., made his will 
 iu writing, and thereby devised to Henry his 
 son divers manors, and to the heirs of his 
 body, the remainder to Thomas Cheyney of 
 Woodley, and to the heirs male of his body, 
 on condition "that he or they, or any of them 
 shall not alien, discontinue, etc." And it 
 was a question in the court of wards, be- 
 tween Sir Thomas Perot, heir general to the 
 lord vrarden, and divers of the purchasers 
 of Sir Thos. Cheyney, if the said Sir Thos. 
 should be received to prove by witnesses, 
 that it was the intent and meaning of the de- 
 visor to include his son and heir within these 
 words of the condition (he or they) and not 
 only to restrain Thomas Cheyney of Wood- 
 ley, and his heirs males of his body: but 
 WRAY and ANDERSON, chief justices, on 
 conference had with other justices resolved, 
 that he should not be received to such aver- 
 ment out of the will, for the will concerning 
 lands, etc. ought to be in writing, and the 
 constructions of wills ought to be collected 
 from the words of the will in writing, and 
 not by any averment out of it; for it would 
 toe full of great inconvenience, that none 
 should know by the written words of a will, 
 what construction to make, or advice to give, 
 but it should be controlled by collateral aver- 
 ments out of the will: but if a man has two 
 sons both baptized by the name of John, and 
 conceiving that the elder (who had been long 
 absent) is dead, devises his land by his will 
 in wi-iting to his son John generally, and 
 in tiTith the elder is living; in this case the 
 younger son may in pleading or in evidence 
 aUege the devise to him; and if it be denied, 
 he may produce witnesses to prove his 
 
 father's intent, that he thought the other to 
 be dead; or that he at the time of the will 
 made, named his son John the younger, and 
 the writer left out the addition of the youn- 
 ger: for in 47 Edw. HI. 16b, the case was, 
 Robert Peynel had issue two sons baptized 
 by the name of William, and levied a fine 
 to Sir John Panningbridges and othfers come 
 ceo, etc. who granted and rendered to Rob- 
 ert and William his son generally; and after 
 the death of Robert, William the younger 
 son brought a scire facias against the heu- 
 of William the elder: and the younger by 
 the rule of the court averred that the fine 
 was levied to make him heir prist, etc. and 
 upon that issue was taken. And no incon- 
 venience can rise If an averment in such 
 case be taken in case of a devise by will, 
 for he who sees such will, whereby land is 
 devised to his son John, cannot be deceived 
 by any secret invisible averment: for when 
 he sees the devise to his son John, he ought 
 at his peril to inquire which John the tes- 
 tator intended, which may easily be known 
 by him who wrote the will, and others who 
 were privy to his intent; and if no direct 
 proof can be made of his intent, then the 
 devise is void for the incertainty, as the 
 render also would be in the said case of 
 the fine, as to William, for the law will not 
 make the one or the other by construction 
 inheritable, for neither the elder son shall 
 have it by course of law, because the elder 
 need not have an addition, nor shall the 
 younger have it by construction by reason 
 the father need not have limited the land to 
 the elder, because the land after the death 
 of the father would descend to the elder. 
 But he shall have it whom the father intend- 
 ed to advance with it, and for want of proof 
 of such intent, the will or the render for the 
 incertainty (as hath been said) is void; and 
 so the doubt in 11 Hen. VI. 13, well ex- 
 plained. 
 
 703 
 
Case No. 264 
 
 DOE V. HISCOCKS. 
 
 (§ 1 
 
 DOE ex dem. HISCOCKS v. HISCOCKS. 
 
 (5 Mees. & W. 363.) 
 
 Court of Exchequer. 1839. 
 
 Ejectment for lands in the county of Devon. 
 At the trial before Bosanquet, J., at the 
 Devonshire spring assizes, 1888, it appeared 
 that the lessor of the plaintiff claimed the 
 premises in dispute under the wiU of Simon 
 Hiscocks, the grandfather of both the lessor 
 of the plaintiff and the defendant, dated 7th 
 of July, 1822, whereby the testator devised 
 the premises in question to his son John 
 Hiscocks, to hold the same unto him his 
 said son, John Hiscocks, and his assigns, for 
 and during the term of his natural life; and 
 immediately on the decease of the said John 
 Hiscocks, the testator gave and devised all 
 and singular the said last described heredita- 
 ments and premises unto his grandson John 
 Hiscocks, eldest son of the said John His- 
 cocks, and his assigns, for and dm-ing the 
 term of his natural life; and immediately 
 on his decease, the testator gave and devised 
 the same hereditaments and premises unto 
 the first son of the body of his said grand- 
 son John Hiscocks, and the heirs male of his 
 body lavsrfuUy issuing; with remainders over. 
 At the time of making the will, John His- 
 cocks, the son of the testator, had issue, by 
 a first maiTiage, Simon Hiscocks, the lessor 
 of the plaintiff; and by a second marriage, 
 John Hiscocks the defendant, and several 
 other younger children, sons and daughters. 
 It appeared also, that the estate had come 
 to the testator from the father of John 
 Hiscocks', the son's, second wife. Under 
 these circumstances, neither of the parties 
 in the cause answering fully the description 
 given in the will, (inasmuch as the lessor 
 of the plaintiff, though the eldest son of 
 John Hiscocks the elder, bore the name of 
 Simon, not John, whereas the defendant, 
 though his name was John, was only his 
 father's eldest son by a second marriage,) 
 the plaintiff's counsel proposed to give in 
 evidence the instructions given by the testa- 
 tor for his will, and also declarations made 
 by him' after its execution, to show that the 
 lessor of the plaintiff was really the person 
 in his contemplation as the object of his 
 bounty, at the time of making the will. This 
 evidence was objected to by the defendant's 
 counsel, but received by the learned judge, 
 leave being reserved to the defendant to 
 move to enter a nonsuit, if the court should 
 think it inadmissible: and evidence of this 
 nature having been adduced on both sides, 
 the jury found a verdict for the plaintiff. 
 
 In the following term, Erie obtained a rule 
 nisi for a nonsuit or a new trial, on the 
 ground that this evidence was improperly 
 received; against which, in last Michaelmas 
 term, 
 
 Crowder and Bere showed cause. Erie and 
 Butt, contra. 
 
 704 
 
 LORD ABINGER, C. B. This was an ac- 
 tion of ejectment, brought on the demise of 
 Simon Hiscocks against John Hiscocks. The 
 question turned on the words of a devise in 
 the will of Simon Hiscocks, the grandfather 
 of the lessor of the plaintiff and of the de- 
 fendant. By his will, Simon Hiscocks, after 
 devising estates to his son Simon for life, 
 and from and after his death to his grandson 
 Henry Hiscocks in tail-male, and making 
 as to certain other estates, an exactly simi- 
 lar provision in favour of his son John for 
 life; then, after his death, the testator de- 
 vises those estates to "my grandson John 
 Hiscocks, eldest son of the said John His- 
 cocks." It is on this devise that the question 
 wholly turns. 
 
 In fact, John Hiscocks the father had been 
 twice married; by his first wife he had Simon, 
 the lessor of the plaintiff, his eldest son: 
 the eldest son of the second marriage was 
 John Hiscocks the defendant. The devise, 
 therefore, does not, both by name and de- 
 scription, apply to either the lessor of the 
 plaintiff, who is the eldest son, but whoso 
 name is Simon, nor to the defendant, who, 
 though his name is John, is not the eldest 
 son. 
 
 The cause was tried before Mr. Justice 
 Bosanquet, at the spring assizes for thf 
 county of Devon, 1838, and that learned judge 
 admitted evidence of the instructions of the 
 testator for the will, and of his declarations 
 after the will was made, in order to explain 
 the ambiguity in the devise, arising from 
 this state of facts; and the verdict having 
 been found for the lessor of the plaintiff, 
 a rule has been obtained for a nonsuit or 
 new trial, on the ground that such evidence 
 of intention was not receivable in this case. 
 And after fully considering the question, 
 which was very well argued on both sides, 
 we think that there ought to be a new trial. 
 
 It must be admitted that It is not possible 
 altogether to reconcile the different cases 
 that have been decided on this subject; 
 which makes it the more expedient to in- 
 vestigate the principles upon which any evi- 
 dence to explain the will of a testator ought 
 to be received. The object in aU cases is 
 to discover the intention of the testator. The 
 first and most obvious mode of doing this is 
 to read his wiU as he has written it, and 
 coUect his intention from his words. But 
 as his words refer to facts and circumstances 
 respecting his property and his family, and 
 others whom he names or describes in his 
 will, it is evident that the meaning and 
 application of his words cannot be ascer- 
 tained, without evidence of all those facts 
 and circumstances. To understand the mean- 
 ing of any writer, we must first be apprised 
 of the persons and circumstances that are 
 the subjects of his allusions or statements; 
 and if these are not fully disclosed In. his 
 work, we must look for illusti-ation to the 
 history of the times in which he wrote, and 
 
(..177) 
 
 DOE V. HISCOCKS. 
 
 Case No. 264 
 
 to the works of contemporaneous authors. 
 All the facts and circumstances, therefore, 
 respecting persons or property, to which the 
 wiU relates, are undoubtedly legitimate, and 
 often necessary evidence, to enable us to 
 understand the meaning and application of 
 his words. 
 
 Again,— the testator may have habitually 
 called certain persons or things by peculiar 
 names, by which they were not commonly 
 known. If these names should occur in his 
 will, they could only be explained and con- 
 strued by the aid of evidence to show the 
 sense In which he used them, in like manner 
 as if his wiU were written in cipher, or in 
 a foreign language. The habits of the tes- 
 tator in these particulars must be receivable 
 as evidence to explain the meaning of his 
 will. 
 
 But there is another mode of obtaining the 
 intention of the testator, which is by evi- 
 dence of his declarations, of the instructions 
 given for his will, and other circumstances 
 of the like nature, which are not adduced 
 for explaining the words or meaning of the 
 will, but either to supply some deficiency, or 
 remove some obscm-ity, or to give some effect 
 to expressions that are unmeaning or am- 
 biguous. 
 
 Now, there is but one case in which it ap- 
 pears to us that this sort of evidence of in- 
 tention can properly be admitted, and that 
 Is, where the meaning of the testator's words 
 is neither ambiguous nor obscure, and where 
 the devise is on the face of it perfect and 
 intelligible, but, from some of the circum- 
 stances admitted in proof, an ambiguity 
 arises, as to which of the two or more 
 things, or which of the two or more persons 
 (each answering the words In the wiU,) the 
 testator Intended to express. 
 
 Thus, if a testator devise his manor of S. 
 to A. B., and has two manors of North S. 
 and South S., it being clear he means to 
 devise one only, whereas both are equally 
 denoted by the words he has used, in that 
 case there is what Lord Bacon calls "an 
 equivocation," i. e., the words equally apply 
 to either manor, and evidence of previous 
 Intention may be received to solve this latent 
 ambiguity; for the intention shows what he 
 meant to do; and when you know that, you 
 immediately perceive that he has done it by 
 the general words he has used, which. In 
 their ordinary sense, may properly bear that 
 construction. 
 
 It appears to us that. In all other cases, 
 parol evidence of what was the testator's 
 intention ought to be excluded, upon this plain 
 ground, that his will ought to be made in 
 writing; and if his intention cannot be made 
 to appear by the writing, explained by cir- 
 cumstances, there is no will. 
 
 It must be owned, however, that there are 
 decided cases which are not to be reconciled 
 with this distinction in a manner altogether 
 satisfactory. Some of them, indeed, exhibit 
 
 ABB. WILLS — 45 
 
 but an apparent inconsistency. Thus, for 
 example, in the cases of Doe v. Huthwaite. 
 3 Bam. & Aid. 032, and Bradshaw v. Brad- 
 shaw, 2 Xounge & 0. 72, the only thing de- 
 cided was, that, in a case like the present, 
 some parol evidence was admissible. There, 
 however, it was not decided that evidence 
 of the testator's intention ought to be re- 
 ceived. The decisions, when duly consid- 
 ered, amount to no more than this, that 
 where the words of the devise, in their pri- 
 mary sense, when applied to the circum- 
 stances of the family and the property, make 
 the devise insensible, collateral facts may be 
 resorted to, in order to sho.w that in some 
 secondary sense of the words— and one in 
 which the testator meant to use them— the 
 devise may have a full effect. Thus, again, 
 in Cheyney's Case, and in Coimden v. Gierke, 
 Hob. 32, "the averment is taken" In order 
 to show which of two persons, both equally 
 described within the words of the will, was 
 intended by the testator to take the estate; 
 and the late cases of Doe v. Morgan, 1 
 Cromp. & M. 235, and Doe v. Needs, 2 Mees. 
 & W. 129, both In this court, are to the same 
 effect. So, In the case of .Tones v. Newman, 
 1 W. Bl. 60, according to the view the court 
 took of the facts, the case may be referred 
 to the same principles as the former. The 
 com-t seem to have thought the proof equiva- 
 lent only to proof of there being two J. C.'s, 
 strangers to each other, and then the de- 
 cision was right. It being a mere case of what 
 Lord Bacon calls equivocation. 
 
 The cases of Price v. Page, 4 Ves. 680, 
 Still V. Hoste, 6 Madd. 192, and Careless v. 
 Careless, 19 Ves. 604, do not materially vary 
 in principle from those last cited. They dif- 
 fer, indeed, in this, that the equivocal de- 
 scription is not entirely accurate; but they 
 agree In Its being (although Inaccurate) 
 equally applicable to each claimant; and 
 they all concur in this, that the Inaccurate 
 part of the description Is either, as in Price 
 V. Page, a mere blank, or, as in the other 
 two cases, applicable to no person at all. 
 These, therefore, may fairly be classed also 
 as cases of equivocation; and, in that case, 
 evidence of the Intention of the testator 
 seems to be receivable. But there are other 
 cases not so easily explained, and which 
 seem at variance with the true principles of 
 evidence. In Selwood v. Mildmay, 3 Ves. 
 306, evidence of instructions for the will was 
 received. That case was doubted in Miller 
 V. Travers, 8 Bing. 244; but perhaps, having 
 been put by the master of the rolls as one 
 analogous to that of the devise of all a testa- 
 tor's freehold houses in a given place, where 
 the testator had only leasehold houses, it 
 may, as suggested by Lord Chief Justice 
 Tlndal in Miller v. Travers, be considered as 
 being only a wrong appUcation to the facts 
 of a correct principle of law. Again, in 
 Hampshu-e v. Peirce, 2 Ves. Sr. 216, Sir John 
 Strange admitted declarations of the inten- 
 
 705 
 
Case iio. 264 
 
 DOE V. HISCOCKS. 
 
 (§ 177 
 
 tions of the testati-ix to be given In evidence, 
 to sliovif that by the words, "the four chil- 
 dren of my niece Bamfleld," she meant the 
 four children by the second marriage. It 
 may well be doubted whether this was right, 
 but the decision on the whole case was un- 
 doubtedly correct; for the circumstances of 
 the family, and their ages, which no doubt 
 were admissible, were quite sufficient to 
 have sustained the judgment without the 
 questionable evidence. And it may be fur- 
 ther observed, that the principle with which 
 Sir J. Strange is said to have commenced 
 his judgment, is stated in terms much too 
 large, and is so far inconsistent with later 
 authorities. Beaumont v. Fell, 2 P. Wms. 
 141, though somewhat doubtful, can be rec- 
 onciled with true principles, upon this 
 ground, that there was no such person as 
 Catherine Earnley, and that tiie testator 
 was accustomed to address Gertrude Yard- 
 ley by the name of Gatty. This, and other 
 circumstances of the like nature, which were 
 clearly admissible, may perhaps be consid- 
 ered to warrant that decision; but there the 
 evidence of the testator's declarations as to 
 his intention of providing for Gertrude Yard- 
 ley was also received; and the same evi- 
 dence was received at nisi priiis in Thomas 
 V. Thomas, 6 Term R. 671, and approved on 
 a motion for a new trial, by the dicta of 
 Lord Kenyon and Mr. Justice Lavsrence. 
 But these cases seem to us at variance with 
 the decision in Miller v. Travers, which is a 
 decision entitled to great weight. If evi- 
 dence of intention could be allowed for the 
 purpose of showing that by Catherine Earn- 
 ley and Mary Thomas, the respective tes- 
 tators meant Gertrude Yardley and Elinor 
 706 
 
 Evans, It might surely equally be adduced 
 to prove that, by the county of Limerick, 
 a testator meant the county of Clare. 
 Yet this was rejected, and we think rigjit- 
 ly. We are prepared on this point (the 
 point in judgment in the case of Miller v. 
 Travers) to adhere to the authority of that 
 case. Upon the whole, then, we are of opin- 
 ion, that in this case there must be a new 
 trial. 
 
 Where the description is partly true as to 
 both claimants, and no case of equivocation 
 arises, what is to be done is to determine 
 whether the description means the lessor of 
 the plaintiff or the defendant. The descrip- 
 tion, in fact, applies partially to each, and 
 it is not easy to see how the difficulty can 
 be solved. If It were res Integra, we should 
 be much disposed to hold the devise void 
 for uncertainty; but the cases of Doe v. 
 Huthwaite, Bradshaw v. Bradshaw, and oth- 
 ers, are authorities against this conclusion. 
 If, therefore, by looking at the surrounding 
 facts to be found by the jury, the court can 
 clearly see, with the knowledge which arises 
 from those facts alone, that the testator 
 meant either the lessor of the plaintiff or the 
 defendant, it may so decide, and direct the 
 jury accordingly; but we think that, for this 
 purpose, they cannot receive declarations of 
 the testator of what he intended to do in 
 making his will. If the evidence does not 
 enable the court to give such a direction to 
 the jury, the defendant will indeed for the 
 present succeed; but the claim of the heir- 
 at-law will probably prevail ultimately, on 
 the ground that the devise is void for un- 
 certainty. 
 
 Rule absolute for a new trial. 
 
5S 58, 177) 
 
 SEWELL V. SLINGLUPF. 
 
 Case No. 265 
 
 SBWELL V. SLINGLUFF et al. 
 
 (57 Md. 537.) 
 
 Court of Appeals of Maryland. Feb. 9, 1882. 
 
 Appeal from the circuit court of Baltimore 
 city. 
 
 The facts appear in the opinion of the 
 court. 
 
 The cause was argued before BARTOL, C. 
 J., GRASON, MILLER. ROBINSON, and 
 STONE, JJ. 
 
 Edward Otis Hiukley and I. Nevett Steele, 
 tor appellant. John P. Poe and S. Teackle 
 Wallis, for appellees. 
 
 STONE, J. It appears from the record in 
 this case, that on the 28th of May, 1867, Mrs. 
 Ella Slingluff, of thi- city of Baltimore, exe- 
 cuted the following paper: "In the name of 
 God, Amen. I, EUa Slingluff, of Baltimore 
 coimty, in the state of Maryland, being of 
 sound and disposing mind, memory and un- 
 derstanding, and knowing the certainty of 
 death, and the uncertainty of the time there- 
 of, do hereby declare and publish this, my 
 last wUl and testament, in manner following, 
 that is to say; I give and bequeath to my 
 beloved mother, Caroline D. Sewell, all the 
 property that I may die possessed of, of 
 whatever kind, character or description it 
 may be, to have and to hold, to her and her 
 heirs forever. Test:— Ella Slingluff, [Seal.] 
 Done this twenty-eighth day of May, in the 
 year eighteen hundred and sixty-seven, and 
 signed in the presence of Lewis E. Bailey, 
 [Seal.] Bena Sanders, [Seal.] Jeanette 
 Roper, [Seal.]" 
 
 It is conceded that at the time of the exe- 
 cution of this paper, Mrs. Slingluff was fully 
 capable of executing a valid will. That she 
 was at that time married to Fielder C. Sling- 
 luff, one of the complainants, and that she 
 was then childless, but expected soon to be- 
 come a mother, and that in fact her first 
 child was bom in the month of July follow- 
 ing, and lived until July, 1868, when it died. 
 That Mrs. Slingluff gave birth to another 
 child, Richard S. Slingluff, in the month of 
 October, 1868, and that her child Richard is 
 stiU living, and is one of the complainants. 
 That Mrs. Slingluff died .in January, 1869, 
 and her husband Fielder C, still survives. 
 
 It also appears from the record that the 
 paper above referred to, was delivered soon 
 after its execution to Fielder O. Slingluff, 
 and was by him delivered to Lewis E. 
 Bailey, a connexion of the family of Mrs. 
 Slingluff, who kept it in his possession until 
 after the death of Mrs. Slingluff, when he de- 
 livered It to Fielder 0. Slingluff, who passed 
 it over to the appellant, who now has pos- 
 session of the same. 
 
 That about the month of January, 1875, the 
 appellant declared her intention to present 
 the vfUI for probate, and to assert her rights 
 as legatee under it. , 
 
 ThereiTOon the appellees filed their biU m 
 the circuit court of Baltimore city, alleging 
 
 and charging that the said paper was exe- 
 cuted by Mrs. Slingluff, and delivered to her 
 husband, with the request and positive un- 
 derstanding and direction that the same was 
 not to be held or taken, or to be used or pro- 
 bated as her last will and testament, in case 
 she should die leaving issue, but in the event 
 of her leaving issue, should be wholly inop- 
 erative, so that her estate should pass as if 
 it had never been executed; and also char- 
 ging that the appellant had full knowledge 
 at the time of the execution of said paper, of 
 the intention and direction so given by the 
 maker, and assented to the same. And the 
 bill prays that the appellant may be enjoined 
 from offering said paper for probate, and 
 that she be ordered to produce the same for 
 cancellation. 
 
 The appellant in her answer positively de- 
 nies that she had any knowledge of, or ever 
 assented to the alleged fact that the paper 
 in question was only to be used or probated 
 in the event of her daughter's death without 
 issue, and she also denies that such was the 
 fact. She also accounts for her delay in as- 
 serting her rights under said paper, by say- 
 ing, that Fielder C. Slingluff had assured her 
 upon the death of her daughter, that the 
 birth of a child had made the paper inoper- 
 ative in law, ahd that she did not know to 
 the contrary until a short time before the 
 complainants instituted this suit. She also 
 claims aU her rights as legatee under said 
 paper. 
 
 A commission was then duly issued, and a 
 large mass of parol testimony taken by both 
 appellant and appellees, the case set down 
 for final hearing, and the coiu-t below passed 
 a decree perpetually enjoining the appellant 
 from offering said will for probate, and di- 
 recting It to be brought into court to be can- 
 celled; and from this decree she appealed to 
 this court. 
 
 The first and most important question that 
 presents itself for our consideration, is 
 whether parol evidence is admissible in this 
 case to prove that the paper referred to, al- 
 though in form a valid will, was in fact in- 
 tended by the testatrix to be used and pro- 
 bated as her will only in the event of her dy- 
 ing without issue, and that In the contin- 
 gency of her dying leaving issue, it should 
 be wholly inoperative, and her estate should 
 pass as if it had never been executed. 
 
 The case is an interesting one and the point 
 so raised a novel one. The case has been 
 very ably argued before us by the eminent 
 counsel engaged in it, and many authorities 
 have been cited, but we have been able to 
 find no case either in England or this coun- 
 try precisely like the present, and the de- 
 termination of the case must depend more 
 upon the application of well known and well 
 settled general principles than upon the au- 
 thority of adjudicated cases. 
 
 There are three essential requisites for 
 every good and valid will; and these req- 
 uisites are, perfect testamentary capacity, 
 
 707 
 
Case Ko 265 
 
 SEWELL V. SLIKGLUrr. 
 
 (§§ 5^. 177 
 
 the Intention to dispose of property in the 
 event of death, and the formalities requir- 
 ed by the statute. One of these requisites 
 for every perfect will— the intention to dis- 
 pose of property in event of death— is what 
 the law terms the animus testandi, and is 
 thus defined in 2 Shep. Touch. 204: "The 
 second thing required to the mailing of a 
 good testament is that he that doth make 
 it, have at the time of making it animus 
 testandi, i. e. a mind to dispose, a firm and 
 advised determination to make a testament, 
 otherwise the testament will be void;" and 
 he then goes on to say, that "if a man jest- 
 ingly and not seriously writes or says that 
 such a one shall have his goods, this is no 
 will." Now when Mrs. SlinglufC on the 28th 
 of May, 1867, executed this paper, she 
 clearly had this animus testandi. The act 
 was not a jest or a sliam, but a serious and 
 well considered one. She was perfectly sane, 
 and no fraud or undue infiuence was prac- 
 ticed on her. She was perfectly competent 
 In every respect to execute a valid will. 
 When, therefore, under these circumstances, 
 she did on that day sign and seal that pa- 
 per, purporting to be her last will and tes- 
 tament, in the presence of the subscribing 
 witnesses, and declared in_ writing in the 
 instrument itself, that she did publish and 
 declare it to be her last will and testament, 
 it did then and there become her last will 
 and testament. 
 
 The law required her to do nothing more 
 than she did do, to make the will perfect, 
 and she could have done nothing more. No 
 further declaration or act was required of 
 her. ^ 
 
 She possessed undoubted testamentary ca- 
 pacity, and the animus testandi, and com- 
 plied literally with the forms required by 
 our statute, by reducing her wishes to writ- 
 ing, signing, sealing and declaring it to be 
 her last will in the presence of three wit- 
 nesses; and when all this was done, the act 
 was a complete and finished one. If under 
 these circumstances the paper in question 
 was not her last will and testament, it is 
 difficult to describe what it was. It was 
 either her last will and testament, or It was 
 a nullity, and entirely void. 
 
 But even the complainants do not claim 
 that the paper was void and worthless at 
 the time of its execution, but only became 
 so by events that happened afterwards. 
 
 The whole theory of their case rests upon 
 the assumption that it was a good will on 
 the day of its date, but was avoided after- 
 wards, and that had the testatrix died at 
 any time after its execution and before the 
 birth of her child, that her mother would 
 have taken under the will, without doubt or 
 question. To so much of that theory as rec- 
 osnizes the paper as a valid act, on the day 
 of its execution we assent, and we are of 
 the opinion that at that time it was her last 
 will and testament, and not a nullity and 
 void; and being then her last will and tes- 
 
 708 
 
 tament, the question next arises, how it could 
 be made inoperative afterwards. 
 
 Wills are more especially guarded and pro- 
 tected by the law, than any other instru- 
 ments. They are guarded in their inception 
 by the formalities required by our statute, 
 and after they are made, they are equally 
 guarded by our statute, which points out the 
 only mode by which they can be revoked or 
 annulled. 
 
 This will may be treated as intending to 
 pass real estate, and the mode of its revoca- 
 tion is pointed out in section 302 of article 
 93 of the Code, which provides that no such 
 will shall be revoked, except by some other 
 will, or by burning, cancelling, tearing or ob- 
 literating the same by the testator himself, 
 or by some other person in his presence and 
 by his direction and consent. This statute is 
 imperative in its terms, and no mere verbal 
 declarations of a testator, however strongly 
 expressed, and however earnestly he may 
 wish, or intend- so to do, can have any effect 
 upon a will after its execution. It can only 
 be revoked in the manner prescribed by the 
 statute. Wittman v. Goodhand, 26 Md. 95. 
 
 To allow the parol declarations of the tes- 
 tatrix, whether made before, after, or at the 
 time of the execution of the will to render 
 that will inoperative at some future time, 
 and in the event of some future contingency, 
 would be nothing more or less that to al- 
 low a parol revocation of it. It makes no 
 difference that we can see, whether such 
 revocation is called a revocation or by some 
 other name. To revoke or to render inoper- 
 ative are synonymous terms, and to allow the 
 evidence for the latter purpose, is to allow it 
 for the former. The practical effect is pre- 
 cisely the same. 
 
 But there is another objection to the ad- 
 missibility of this evidence. We do not un- 
 derstand the complainants to controvert the 
 well settled rule that parol evidence is not 
 admissible to add to, vary or contradict a 
 written instrument, but they seek to exclude 
 the present case from the operation of this 
 rule by insisting that the question before 
 the court is not the construction of the in- 
 strument, but whether on the happening of 
 a contingency the instrument should have 
 any effective legal existence, and that they 
 are dealing not with its construction, but 
 with its existence. 
 
 Let us see if this position is tenable. Here 
 is a paper presenting upon its face all the 
 indicia of a perfect will. In that paper the 
 testatrix asserts in the most unequivocal 
 manner, and in writing, that the paper is 
 her will. The paper itself contains no con- 
 dition whatever, but gives the whole prop- 
 erty of the testatrix to her mother uncondi- 
 tionally. Parol testimony is sought to be 
 introduced, to prove that it was given to her 
 mother only conditionally. Would not the 
 effect of this be, if admitted, to add by parol 
 a new clause to the written will? 
 
 So that the will would read substantially 
 
58, 177) 
 
 SEWELL V. SLINGLUFE. 
 
 Case No. 265 
 
 thus: "I give and bequeath to my beloved 
 mother, Caroline D. Sewell, all the property 
 that I may die possessed of, of whatever 
 kind, character or description it may be, 
 to have and to hold to her and her heirs for- 
 ever, provided that I die without leaving is- 
 sue, but if I die leaving issue, then such is- 
 sue to have all my property." 
 
 This new and interpolated parol clause 
 makes a different will from that which the 
 testatrix made for herself in writing, and 
 adds to the instrument, and the written will 
 no longer speaks for itself, but its ti-ue con- 
 sti-uction, and the intent of the maker is to 
 be gathered from parol evidence. 
 
 The learned judge who decided this case 
 below, says in his opinion: "Instances are 
 without number of instruments (other than 
 wills) formal in aU the requisites of execu- 
 tion, which have been made to be called into 
 effective existence only on the happening of 
 a condition, the condition being made appar- 
 ent by parol proof; why may not the same 
 be held of wiUs?" 
 
 There are numerous cases where instru- 
 ments (other than wills,) perfect in form 
 have been held as escrows, and only called 
 into effective existence by the happening of 
 a condition, and that condition shown by 
 parol. 
 
 There have been many such cases referred 
 to by the appellees, as of deeds, notes, etc. 
 The reason why such instruments are held 
 as escrows is that the consent of some one 
 of the parties to the instrument is with- 
 held until the happening of some condition. 
 In aU such cases, and in all insti'uments 
 that can be held as escrows, it will be found 
 that the consent of more than one party is 
 necessary to give validity to the instru- 
 ment. 
 
 Thus, in the case of a deed, the consent of 
 both the grantor and grantee is essential to 
 its validity; and in the case of a note, the 
 maker and payee. These instruments so 
 held as escrows are all in the natm-e of con- 
 tracts, by which the parties are to be bound 
 to each other upon the happening of a con- 
 tingency, but not otherwise. The courts 
 can and do interfere and compel the parties 
 to perform their agreement so made. 
 
 But no case has been cited, and we be- 
 lieve none can be found, where a will has 
 ever been held as an escrow, and the reason 
 that applies to other instruments has no ap- 
 plicability to wills. 
 
 A will is the act of the testator alone, and 
 requires the consent of no other person. It 
 is, when made according to the forms re- 
 quired by law, a completed act, and leaves 
 nothing more to be done; no delivery to 
 any one is necessary. It is in no sense a 
 contract, and no one is bound by it, and the 
 testator can revoke, alter or change it, as 
 often as he pleases, and no one has the right 
 to interfere, and no court can coerce him. 
 It is his privilege and right, which he may 
 exercise or not, at his own pleasxxre. 
 
 Possessing as he does this unrestrained 
 power over his will during his own life-time, 
 it would be a mere idle and nugatory act to 
 attempt to malce an escrow of a will during 
 his life. If the condition is to happen at or 
 after the death of the testator, the evil con- 
 sequences likely to ensue are more apparent, 
 and an unprincipled custodian, instead of 
 testator, would have it in his power to make 
 or unmake the will. The three witnesses 
 would be useless. They might indeed de- 
 pose that the testator was of sound mind, 
 and that he did publish and declare the pa- 
 per to be his last will, and they would be 
 met with the answer, that all that was true, 
 and that the wiU was formally executed, 
 but that the testator had given directions, 
 that in a certain contingency it should be 
 inoperative and the property should pass as 
 if it never had been executed. Every con- 
 dition allowed by law can be put in a will, 
 and no good reason can be shown why ev- 
 ery testator who desires a conditional will 
 does not make one. The books are full of 
 such wills. No one is left to the necessity 
 of trusting a part of his testamentary dis- 
 position to the uncertain memory of a wit- 
 ness. 
 
 In the case of deeds or other instruments 
 that can be held upon condition, the condi- 
 tion must always be a condition precedent 
 and not a condition subsequent, that is to 
 say, the condition must occur before the 
 deed is delivered to the grantee, for as 
 soon as the instrument is delivered to the 
 party entitled to it, it at once becomes a 
 completed act. 
 
 In Black v. Shreve, 13 N. J. Eq. 458, the 
 court say: "If the instrument be once de- 
 livered to the party, who on its face is en- 
 titled to it, it becomes eo instanti a deed. 
 No agreement in conflict with the plain 
 tenor of the deed is permitted to be proved — 
 to show that its operation as a deed is to 
 depend upon the performance of some con- 
 dition subsequent." 
 
 As we have said above, the will in this 
 case was a complete and finished act— as 
 much so as a deed delivered to the grantee,— 
 if it Avere admissible to prove by parol, any 
 condition whatever, (which however we do 
 not admit) it must certainly be a condition 
 precedent, and not a condition subsequent. 
 
 The case of Lister v. Smith, 3 Swab. & Tr. 
 282, and the case of Nichols v. Nichols, 2 
 Phillim. Ecc. 180, have been much relied 
 on in the argument of this case by appel- 
 lees. But both these are unlike the case at 
 bar. In them the essential element of a 
 will, the animus testandi, was totally want- 
 ing, and parol testimony was allowed to 
 show that the paper never was intended at 
 any time and under any circumstances to 
 operate as a will. 
 
 In Lister v. Smith, Smith had made a will 
 duly executed in which he had left certain 
 property to his daughter, Mrs. Mason. A 
 Mrs. Marshall, the mother-in-law of Mrs. 
 
 709 
 
Case No. 265 
 
 SEWELL V. SLmGLUEF. 
 
 (§§ 58. 177 
 
 Mason, was the occttpant of a house that 
 Smith claimed title to, but Mrs. Marshall re- 
 fused to recognize his title. 
 
 He thereupon fell upon the plan of execut- 
 ing a codicil revoking the devise to his 
 daughter, thinking that Mrs. Mason, when 
 she knew it, would use her Influence with 
 Mrs. Marshall and get her to recognize his 
 title to the house. But he gave explicit di- 
 rections that this codicil was never to be 
 used or to operate as his will in any event, 
 and had been executed only to effect that 
 collateral object. The case was tried before 
 Sir J. P. Wilde, and although he admitted 
 parol testimony to prove these facts, he said 
 the question gave him some anxiety, and 
 said, speaking of the codicil: "It was how- 
 ever, (executed In the presence of testator's 
 brother, to whom it was given by the testa- 
 tor, with express directions that he was not 
 to part with it, and that it was in no event 
 to operate, or to revoke the bequest made in 
 his wiU, but to be used only in the manner 
 above described. Similar declarations were 
 made by the testator, at the moment of its 
 execution. A codicil thus duly executed in 
 point of form and attested by two witnesses 
 has been directly Impeached by parol testi- 
 mony. It bears all the appearance on the 
 face of it, of a regular testamentary paper; 
 but on the evidence. It has been found by 
 the jury, not to have been intended as such 
 by the testator. The momentous consequen- 
 ces of permitting parol evidence thus to out- 
 weigh the sanction of a solemn act, are ob- 
 vious. It has a tendency to place all wills 
 at the mercy of- a parol story, that the testa- 
 tor did not mean what he said, on the other 
 hand; if the fact is plainly and conclusively 
 made out that the paper which appears to 
 be the record of a testamentary act, was in 
 reality the offspring of a jest, or the result 
 of a contrivance to effect some collateral ob- 
 ject, and never seriously intended as a dispo- 
 sition of property, it Is not reasonable that 
 the court should tm-n it into an effective in- 
 strument, and such no doubt Is the law. 
 There must be the animus testandi." 
 
 And further on he says: "In the present 
 case, however, the court finds the evidence 
 so cogent, that It is prepared to act on the 
 finding of the jury, that the codicil was exe- 
 cuted as a sham and a pretence, never seri- 
 ously intended as a paper of testamentary 
 operation." 
 
 We have given a lengthy extract from the 
 opinion in this case, because it was much re- 
 lied on In the argument. It will be seen, 
 that the testimony was only admitted upon 
 the ground that the codicil was only a sham, 
 never for a moment, or in any contingency 
 to operate as a testamentary disposition, and 
 that the animus testandi was entirely want- 
 ing and for no other reason. In the case be- 
 fore us the animus testandi did unquestion- 
 
 710 
 
 ably exist, and the paper was intended as a; 
 testamentary disposition of property at the 
 time of Its execution. So in the case of 
 Nichols V. Nichols, 2 PhlUim. Ecc. 180, where 
 parol evidence of a witness to a will was re- 
 ceived that the paper was not really the will 
 of the party, but only written by him as a 
 specimen of how short he could write a will. 
 Sir John NiehoU said: "If this evidence can 
 be received and Is to be credited, this is not 
 the will of the deceased, for It wants the 
 great requisite, the animus testandi; it was 
 not written with the mind and intention, to 
 make a will. A question has been made 
 whether this evidence can be received. I 
 am of opinion that it can and must be re- 
 ceived." 
 
 These cases 'go perhaps as far as any cited 
 in allowing parol evidence. But in these and 
 in all the other cases referred to, the com-ts 
 have restricted the evidence to the ascertain- 
 ment of the animus testandi, and have never 
 gone beyond that. Even If we were to ad- 
 mit that these cases were well decided, 
 (which we do not determine,) we consider the 
 parol evidence offered in this case inadmissi- 
 ble. If It were In any such case admissible, 
 we would be unwilling to reject it In this, as 
 the straightforward testimony and disinter- 
 ested conduct of the husband of the testatrix 
 presents a strong case, and one with many 
 equitable features, strongly appealing to oiu- 
 sense of justice. But we must take the law 
 as we find it; and as in all the long period 
 that has elapsed since the passage of the act 
 of 29 Car. II., no court has permitted such 
 testimony to be received, we cannot do so 
 now. 
 
 The only remaining point to be considered 
 is whether Mrs. Sewell is now estopped f roni 
 asserting her rights, imder the will of her 
 daughter. There is nothing in this record 
 that can operate as such an estoppel. There 
 is no statute of limitations in this state pre- 
 scribing a time within which a will must be 
 offered for probate. Mrs. Sewell has satis- 
 factorily accounted for her delay, by her 
 sworn allegation that she was Ignorant of 
 her rights, and there is no evidence before us, 
 that her delay caused any loss or Injury to 
 any one, except perhaps herself, and we 
 must, therefore, overrule that exception. No 
 plea to the jm-isdiction of the court has been 
 filed In this case, nor any objection to it 
 made at the hearing in the coiu't below, and 
 we have therefore decided the questions pre- 
 sented to us in the record. But we must not 
 be understood to decide the qu^estlon, wheth- 
 er a court of equity has the power to re- 
 strain by injunction any one from presenting 
 to the orphans' court a paper, which he 
 claims to be a last will and testament, or in 
 any event to order such a paper to be can- 
 celled. 
 
 Decree reversed, and bill dismissed. 
 
§ 177) 
 
 IN KE GILMOR'S ESTATE. 
 
 Case No. 265 
 
 Tn re GII.IIOR'S ESTATE. 
 
 Appeal of DORRANCE et al. 
 
 (26 Atl. 614, 154 Pa. St. 523.) 
 
 Supreme Court of Pennsylvania. May 8, 1893. 
 
 Appeal from orphans' ccjurt, Franklin 
 county; John Stewart, Jiidgp. 
 
 Proceerlinss for the distribution of the 
 estate of John Gilmor, deeeiisfd. From a 
 decree dismissing exceptions to the dis- 
 tribution recommended by the auditor, 
 and contirmiiig his report as amended, 
 Gilfiert S. Dorrance and others appeal. 
 Reversed. 
 
 Before STERKETT, C. J., GREEN, WIL- 
 LIAMS, McCOLLUM, and THOMPSON, 
 JJ. 
 
 Hastings Gehr, O. C. Bovvers, Bonbrake 
 & Zacbarins, J. M. McDowell, and Sharpe 
 & Sharpe. for appellants. VV. TJ. Brevier, 
 W. Rush Glllan, and W. S. Hoerner, f or ap- 
 pellees. 
 
 THOMPSON, J. The question raised in 
 this appeal is whether the legacies in the 
 will of John Gilmor, deceased, lapse. John 
 Gilmor, the testator, died November 30, 
 1889, unmarried, leaving surviving him an 
 unmarried sister, who died February 21, 
 1891. He made his will Augnst 18, 1883, 
 and on September 21, 188S, adding a codi- 
 cil, then republished it. By his will before 
 this republication he gave to his sisttr 
 Eliza the inc(»me of his estate during her 
 natural life, and upon her death directed 
 his expcutors to convert the estate into 
 money, and devised it to the following 
 named persons, who were each to receive 
 one share, viz. David M. Gilmor, Mary E. 
 Abl, Nannie Herr, Lydia B. Wilson, Wil- 
 liam Gilmor. Samuel Dorrance, James Dor- 
 rance, Sr., William Dorrance, Eliza Robin- 
 eon, Martha A. McClellan, Samuel P. Cum- 
 mings, and William B. Cummings. The 
 auditor appointed to make distribution 
 finds that the only codicil is dated Septem- 
 ber 21, 1S8S, and in the latter part of the 
 summer of 1889 Mr. Hastings Gehr and 
 George McDowell visited testator, who 
 produced his will, and at his request, and 
 in his presence, they witnessed the same. 
 Before this was done, testator, in their 
 presence, interlined at the bottom of the 
 first page the words "or to their heirs. 
 After making this addition, and after the 
 witnesses had subscribed their names, the 
 testator republished both the will and 
 codicil. Before this republication he add- 
 ed after "as follows" the words "or to 
 tlieir heirs," and after William Gilmor, 
 "deed.;" Samuel Dorrance, 'desed.; 
 James Dorrance, Sr., "deceased;' Eliza 
 Robinson, "deseased;" William Dorrance, 
 "deceased;" Martlia A. McClellan, dsd.; 
 Samuel P. Cummings, "desed.;' WilUdra 
 B.. Cummings, "deed." . ,-f„ „„ 
 
 This will speaks from the date of sts re- 
 publication. In Coale v. Smith, 4 Pa. bt. 
 ';>6 it was said : "The effect of a new pub- 
 lication is that all which the words em- 
 brace at the time when the new publica- 
 tion is made shall pass thereby; or, to 
 nut it more clearly, when a man repub- 
 lishes his will, the effect is that the terms 
 and words of the will should be construed 
 
 to speak with regard to the property the 
 testator is seiterl of, and the persons 
 named therein at the dateof the repul)lica- 
 tion, just the same as if he had such addi- 
 tional property, or such persons being in 
 esse at the time of making his will, the 
 conclusion from the fact being that the 
 testator so intended. And this is a con- 
 clusion of law, as we have seen, not to be 
 contradicted by any suppn.sed absence of 
 intention on the part of the teatator, un- 
 less a contrary intent be manifested by 
 something appearing in the codicil." In 
 Linnard's Appeal, 93 Pa. St. 316, Mr. Jus- 
 tice Sterrett said: "A duly-executed codi- 
 cil operates as a republication of the orig- 
 inal will, so as to make it speak as of the 
 dateof the codicil, (Coale v. Smith, 4 Pa. 
 St. 376;) and it not only operates as an 
 adoption of the prior will, to which it re- 
 fers, but also as a revocation of an inter- 
 mediate will. In Wikoff's Appeal, 15 Pa. 
 St. 281, Chief Justice Gibson, in speaking 
 of interlineations proved to be in the 
 handwriting of a testatrix, says: 'The 
 presumption is that they were made at 
 or before the time when the will was pre- 
 pared for the final act.'" The testator's 
 sister having died, his executors filed their 
 account, which was referred to the audi- 
 tor, to make distribution. Before him the 
 appellants, as heirs at law and nest of ki« 
 of legatees named in the will, claimed six; 
 twelfths of the estate, upon the ground 
 that the testator intended by the words 
 "or to their heirs" to substitute for the 
 deceased legatees their next of kin. Upon 
 the question of compensation of executors 
 parol evidence was offered for the purpose 
 of showing that the name of oneof the ex- 
 ecutors was inserted in the will, and on 
 cross-examination one of the witnesses 
 testified: "Question. You witnessed both 
 111- will and thpcodicil that dHy ? Answer. 
 Yes, sir. Q. Did he submit it to you for 
 your opinion? A. He asked about those 
 people that weredead. I told hiniitmight 
 lapse, and he added 'their heirs.' Q. At 
 that time did you read over the will? A. 
 Yes, sir; I looked at the will." The 
 same witness was recalled, and testified 
 as follows, viz.: "Q. Do you know in 
 whose handwriting this will is? A. The 
 whole will is in the handwriting of John 
 Gilmor. extent the word 'witness' and H. 
 Gehr,' and "G. D. McDowell.' Q. Do you 
 know whether this will was all written, 
 iust as it now is, at one time? A. Or to 
 their heirs 'was added. Q. In whatconnec- 
 tion, ' I give, devise, and bequeath in as fol- 
 lows, or to their heirs,' on the last line of 
 the first page, the last four words on the 
 first page.you say that they werenot in as 
 originally written? A. They were not. Q. 
 On the second page of the will, and the 
 thirteenth line, where the words deceased 
 (looks to me like 'desd,') was it in as orig- 
 inally written? A. Theword'desd.? Q. 
 Was it in originally? A. No, sir. Q. 
 Whose handwriting are the words or to 
 their heirs?' A. John Gilmor's. Q. In 
 whose handwiitingare the words desd. .' 
 A. John Gilmor's. Q. Are those the only 
 alterations that you notice in the will and 
 codicil? A. I believe so. As I said before, 
 when I saw the will, William C. Mctlel- 
 lan's name was not in as one ot tlie 
 
 711 
 
Case No. 266 
 
 IN RE GILMOR'S ESTATE. 
 
 (§ 177 
 
 executors. Q. At the time tlie will and 
 codicil were witnessed by you, were the 
 words you spenk of in the will, or were 
 they made subsequently? Was it before 
 that day or not? A. These were all in be- 
 fore that day. Q. The words ' or to their 
 heirs' were put there by Mr. Gilmor? A. 
 In our presence, at the time we witnessed 
 the codicil. Q. Were they put there before 
 or after you signed it? A. Before. We 
 did not witness it until about the latter 
 part of the summer of 1^89. Q. At that 
 date of the codicil, do you remember 
 whether these other alterations in the will 
 you have spoken of were in? A.^ All the 
 alterations were put in at the same time. 
 Q. Will you please state if you knoW|how 
 John Gilmor came to add these words ' or 
 to their heirs' and the word 'deceased.' A. 
 I told him that Martha McClellan's misht 
 lapse. 1 knew she was dead. Q. Did ho 
 know she was dead? A. Yes, sir. Q. 
 What did ho say or do in consequence of 
 that? A. He said he would alter it the 
 way he did." The auditor finds "that 
 William Gilmor, Samuel Dorrance, James 
 Dorrance, ■William Dorrance, Martha A. 
 McClellaij. Samuel P. Cummlnns, and 
 William B. Curamings, named in the will, 
 are dead, were all dead before the testator, 
 and were all dead at the tlnieof republica- 
 tion above mentioned, which fact was 
 - known to testator at that time." 
 
 The learned judge below suttnined the 
 auditor in not considering this testimony, 
 liCcause an attempt by extrinsic testi- 
 mony to prove by parol the intention of 
 the testator. The rnle is well settled that 
 extrinsic evidence cannot be adduced to 
 qualify, explain, alter, t)r contrsidict the 
 language of a will, but it must stand as 
 written, where the intention is clearly ex- 
 pressed, and the objects of the bounty are 
 <lefinitely ascertained. This rule has been 
 rigidly maintained, and doubtless, for the 
 jjrotection of estates, will continue to be 
 no by judicial decisions. While this is true 
 lur some purposes, proofs dehors the will 
 maybe admitted. It is said in Schouler 
 on Wills, (section B7»:) "But to aid the 
 context by extrinsic proof of tbecircum- 
 etances and situation of the testator 
 when it was executed is constantly per- 
 mitted at the court's discretion, and this 
 constitutes a proper — indeed, often an in- 
 dispensable—matter of inquiry when con- 
 struing a will; for, whatever a will may 
 pet forth on its face, its application is to 
 persons and tilings external, and hence is 
 admitted evidence outside the instrument 
 of facts and circumstances which have 
 any tendency to give effect and operation 
 to the terms of the will, such as the 
 names, descriptions, and desigiiations ot 
 beneficiaries named In the will, the rela- 
 tion they <iccnpy to the testator, whether 
 tp.stator was married or single, and who 
 were his family, what was the state of his 
 property when he made his will, and 
 when he died, and other like collateral cir- 
 cumstances. Such evidence, being ex- 
 planatory and incidental, is admitted, 
 not for the purpose of introducing new 
 words or a new intention into the will, 
 but so as to give an Intelligent construc- 
 tion to the words actually used, consist- 
 ent with the real state of the testator's 
 
 712 
 
 family and property; in short, so as to 
 enable the court to stand in the testator's 
 place, and read it in the light ot those sur- 
 roundings under which it was written and 
 ejeculed." In Jarman on Wills, (vol- 
 ume 1, § 394,) it was said: "Thouijh it is 
 (as we have seen) the will Itself (and not 
 the intention as elsewhere collected) 
 which constitutes the real and only sub- 
 ject to be expounded, yet in performing 
 this office a court of construction is not 
 bound to shut its eyes to the state of 
 facts upon which the will was made; on 
 the contrary, an investigation of such 
 facts often materially aids in elucidating 
 the scheme of disposition which occupied 
 the mind of the testator. To this end it 
 is obviously essential that the judicial ex- 
 positor should place himself as fully as 
 possible in the situation of the person 
 whose language he has to interpret, and, 
 guided by the light thus thrown on the 
 testamentary scheme, he may find himself 
 justified in departing from a strict con- 
 struction of the testator's language, with- 
 out allowing conjectural interpretation 
 to usurp the place of judicial interpreta- 
 tion." It is said In Wharton on Evi- 
 dence, (section 992,) in speaking ot the ex- 
 ception when extrinsic evidence may be 
 resorted to: "What is said at the time of 
 the execution and attestation is admissi- 
 ble as part of the res gestae, though not 
 to contradict the will." Again, in section 
 998: " 'In construing a will,' so is this po- 
 sition accurately expressed by Blackburn, 
 J., [Allgood V. Blake, L. R. 8 Exch. 160,] 
 'thecourt is entitled to put itself in the posi- 
 tion of the testator, and to consider all 
 the material facts and circumstances 
 known to the testator with reference to 
 which he is taken to have used the words 
 in the will, and then declare what the 
 intention evidenced by the words used 
 witli reference to these tacts and cir- 
 cumstances, which were (or ought to have 
 been) in the mind of the testator when 
 he used those words.' " 
 
 It was therefore competent, for the pur- 
 pose of ascertaining the intention of the 
 testator, to show that at the time of the 
 republication of his will the words "or to 
 their heirs" were added; that the word 
 "deceased" was added after the name of 
 each ot the legatees who were dead, and 
 the circumstances under which it was so 
 added. V/hile this evidence cannot be re- 
 sorted to either to control or modify the 
 intention of the testator, it may serve to 
 aid in ascertaining what the testator did 
 Intend. It is clear that from the fact 
 that he republished his will so modified, 
 and inserted at the time these words indi- 
 cating that the legatees in question were 
 dead, that he intended "or to their heirs" 
 as words of substitution. When the 
 originiil will was executed the legatees in 
 question were alive, and when the repub- 
 lication took place they were dead. He 
 therefore added after their names "de- 
 ceased," and thus clearly indicated that, 
 as they were dead, they were not to re- 
 ceive the legacies. Such being the case, 
 in order to indicate who were to receive 
 them, he wrote before the list of their 
 names "or to their heirs." It seems mani- 
 fest that in making this republication, 
 
§ 177) 
 
 XJS HK (JILiMOR'S ESTATE. 
 
 Case No. 266 
 
 and in writing "deceased" after tlie naniea 
 of these legatees, lie intended to desisnato 
 the persons who are to take tlie legacies 
 in lieu of tbeni. It is contended, however, 
 that the word "or" is to be rend as 
 and," reading thus: "and to their 
 heirs;" and, so leading them, thev became 
 words of limitation, and not of purchase. 
 Words have been transposed to carry out 
 the evident intention of the testator. 
 "Or" has been read as "and," and "and" 
 has been read as "or." This has been 
 done when it has been necessary to reach 
 the true meaning of a will. No word will 
 be rejected if an intelligent meaning can 
 be given to it. In Gittings v. McDermott, 
 2 Mylne & K. 75, it is said : "The force ol 
 the disjunctive word 'or' is not easily to 
 be got over. Had it been 'and,' the 
 words of limitation would, of course, as 
 applied to a chattel interest, have been 
 surplusage; but the disjunctive marlss as 
 plainly as possible that the testator, by 
 using it, intended to provide for an alter- 
 native beonest, namely, to the legatees if 
 they should survive, aud, if they should 
 not, to their heirs." In Jarman on Wills, 
 (volume 1, *486,) it is said: "But since 
 Grey v. Pearson [6 H. L. Gas. 61] the 
 cases last noticed have lost much of their 
 weight as authorities for applying to any 
 given case the rule which would change 
 'and' into 'or,' in order to prevent one 
 member of a compound sentence being 
 rendered inoperative. Tliough it be a 
 canon of construction that effect is, if 
 possible, to be given to every word used, 
 it is one which must bend to circumstan- 
 ces; and, where the result of changing 
 'and' into 'or' would be only to render 
 one member of the sentence inoperative 
 instead of the other, the change certainly 
 ought not to be made. It does not ap- 
 pear to have been made in any case since 
 Grey v. Pearson, which, indeed, was 
 treated by Sir J. Romilly as having over- 
 ruled Bell v. Phyn, [7 Vts. 459,] and May- 
 berly v. Strode, [3 Ves. 450,] as well as 
 Brownsword v. Edwards, [2 Ves. Sr. 243.] " 
 in Appleton v. Rowley, 8 L. R. Eq. Gas. 
 145, it was said: " Where the word 'or' is 
 used It is intended tn prevpm a inns . • . 
 in this case, the gift alter the life estate 
 had been to Sarah Gaywood and Alice 
 Key, 'or' their heirs or represeuia lives, 
 I should follow the decision in Re Por- 
 ter's Trust, 4 Kay & J. 188; In re New- 
 t(m's Trust, L. R. 4 Eq. Cas. 171: and 
 Salisbury v. Petty, 3 Hare, 86; and 
 should have held that the children or rep- 
 resentatives took by way of gnbstitution; 
 but hero, unfortunately, it is 'and their 
 heirs and representatives." In Morgan v. 
 Thomas, 9 Q. B. Div. 645, Sir George Jessel 
 illustrated In a somewhat ludicrous way 
 the fallacy of changing the natural mean- 
 ing ol words. He says: "You will find it 
 said in some cases that 'or' means aud, 
 but 'or' never docs meau 'and unless 
 there is a context which shows it is for 
 'and' by mistake. Suppose a testator 
 said, 'I give the black cow on which 1 
 usually ride to A. B.,' and he usually rode 
 on a black horse, ol course the horse 
 would pass; but I do not think any an- 
 notator of cases would put in the mar- 
 ginal notes that 'cow' means horse. 
 
 In Griffith v. Woodward, 1 Yeates, 318, 
 it was said: "Courts ol justice will trans- 
 pose the clauses of a will, and construe 
 'or' to bo 'and,' and 'and' to be 'or,' 
 only in sucli cases when it is absolutely 
 necessary so to do to support the evident 
 meaning ol the testator. But they can- 
 not arbitrarily expunge or alter words 
 without such apparent necessity." No 
 reason can be adduced in this case to 
 show a necessity lor the change of the 
 word "or" to "and." The republication 
 ol the will, the knowledge of the death of 
 the legatees at that time, the writing the 
 word '.'deceased" after these names, and 
 before the list of legatees "or to their 
 heirs," indicate words ol substitution, 
 and that "or" was clearly intended to be 
 used for that purpose. It is contended 
 the position of the words "or to their 
 heirs" is such they cannot have any 
 effect. The will originally read, "I give 
 and bequeath in as follows," and then 
 lollow the names ol the legatees. At the 
 republication the words "or to their 
 heirs" were added alter "as follows." 
 It is clear that the intention was that 
 these words were intended to apply to 
 the respective legatees. 
 
 The appellees substantially rest their 
 contention upon Sloan v. Hanse, 2 Rawle, 
 28, and Barnett's Appeal, 104 Pa. St. 342. 
 In the first case — decided before the act of* 
 1833 in regard to passing estates without 
 words of Inheritance— the legatee was 
 dead; and, the fact being unknown to the 
 testator, that event was notin any degree 
 contemplated by him. It is said: "Had 
 the testator meant to provide against 
 accident from the death ol either ol the 
 principal objects of his bounty, it is rea- 
 sonable to suppose he would, instead of 
 leaving his meaning to conjecture, have 
 s.iid HO in terms. He has not done so, 
 and the inference to be drawn from the 
 use of a copulative instead of a disjunc- 
 tive is too feeble to disinherit the heir." 
 But in the present case, the death of the 
 legatees having taken place before repub- 
 lication, be added after each of them the 
 word "deceased," to indicate their death, 
 and then "or to their heirs." He thus in- 
 tended to use words of substitution. In 
 other words, he intended to exclude a 
 lapse,' and to indicate those who should 
 take. In the second case— Barnett's Ap- 
 peal—the will devised to the four sisters 
 of the testator to each one fourth, "to 
 tbeui and to their heirs." Two i>f the sIm- 
 ters, at the time of the execution ol the 
 will, were dead. The decision there was 
 that the words "and to their heirs" were 
 words of limitation, and that the testator 
 did not Intend them as words of purchase. 
 It was said in that case: "There aresev- 
 eral cases where the word 'heirs' has 
 been held to mean children, but they were 
 all instances where such was the inten- 
 tion ol the testator as gathered from the 
 will itself. This will contains nothing 
 from which such an intent can be in- 
 ferred." The difference between that case 
 and the present one is marked. The 
 words there used are "to them and to 
 their heirs," while here the word "de- 
 ceased" is written after the legatees, 
 and the words used are "or to their 
 
 713 
 
Case No. 266 
 
 IN RE GILMOE'S ESTATE. 
 
 (§ 177^ 
 
 heirs." rrom the will itself the intent is 
 clear that when the testator repub- 
 lished it, and altered its language, iii- 
 sertiug the word "deceased," and add- 
 ing "<ir to tneir heirs," he intended words 
 of substitution, and not of limitation. 
 These words, being those of substitution, 
 the persons who thus are intended to 
 take can he clearly ascertained. In Mc- 
 Kee's Appeal, 104 Pa. St. .573, it is said: 
 "In a bequest of personal tj-, unless a con- 
 trary intent is indicated liy the will, the 
 word ' heirs ' signifies heirs as ascertained 
 by the statute of distribution. Baskin's 
 Appeal, 3 Pa. St. 304; Eby's Appeal, 84 Pa. 
 714 
 
 St. 241; Bender's Appeal, 3 Grant, Cas. 
 210." In Ashton's Estate. 134 Pa. St. 39.".. 
 19 Atl. Rep. 699, Mr. Justice Sterrett aays: 
 "When used in a gift of i>ersonalty, it is 
 very frequently employed to denote those 
 who are entitled to take under the stat- 
 ute of distribution, unless there is some- 
 thing to indicate a cfintrury intention." 
 We have, then, in this case, words substi- 
 tuting persons to receive as such, and 
 such persons clearly ascertainable, and 
 therefore the decree of the orphans' court 
 is reversed, and the record remitted for 
 further proceedings; the appellees to pay 
 the costs of this appeal. 
 
Part III. 
 ENGLISH STATUTES. 
 
 ABB.WILL8. (71B)* 
 
§§ 2, 17. 26, 59. 107) 
 
 ENGLISH STATUTES. 
 
 Stats. Nos. 1-4 
 
 (Statute No. 1.) 
 [See text, §§ 26, 59.] - 
 
 Leg. Reg. Hen. I. I. 
 
 Vn. Et si qviis baroiram vel homlmim me- 
 oram infirmabltur, slcut ipse dabit. vel dare 
 disponet pecunlam suam, ita datam esse con- 
 cedo. Quod si ipse preventus, vel armis vel 
 inflrmitate, pecuniam suam non dederit nee 
 dare disposuerit, uxor sua, sive liberi, aut 
 parentes, aut legitimi bomiaes ejus, earn pro 
 auima ejus dividant, sicut eis melius visum 
 fuerit 
 
 (Statute No. 2.) 
 [See text, § 107.] 
 
 Magna Carta Reg. John, Cap. 27. 
 
 (A. D. 1215.) 
 
 SI aliquis liber homo lutestatus decesserit, 
 catalla sua per manus propinquorum paren- 
 tum et amicorum suorum, per visum Eccle- 
 siae distribuantvu-; salvis unicuique debitis 
 que defunctus ei dedebat. 
 
 If any free-man shall die intestate, his chat- 
 tels shall be distributed by the hands of his 
 nearest relations and friends, by the view of 
 the Church, saving to everyone the debts 
 which the defunct owed. 
 
 (Statute No. 3.) 
 [See text, § 17.] 
 
 Magna Carta (9 Hen. HI.), Cap. 7. 
 
 (A. D. 1225.) 
 
 A Widow shall Have Her Marriage, Inher- 
 itance, and Quarantine. The King's 
 Widow, etc. 
 
 A widow, after the death of her husband, 
 incontinent, and without any difficulty, shall 
 have her marriage, and her inheritance, (2) 
 and shall give nothing for her dower, her 
 marriage, or her inheritajace, which her hus- 
 band and she held the day of the death of 
 her husband, (3) and she shall tarry in the 
 chief house of her husband by forty days aft- 
 er the death of her husband, within which 
 days her dower shall be assigned her (if it 
 were not assigned her before) or that the 
 house be a castle; (4) and if she depart from 
 the castle, then a competent house shall be 
 forthwith provided for her, in the which she 
 may honestly dwell, until her dower be to 
 her assigned, as it is aforesaid; and she shaU 
 have in the meantime her reasonable es- 
 tovers of the common; (5) and for her dower 
 shaU be assigned unto her the third part of 
 all the lands of her husband, which were 
 his during coverture, except she were en- 
 dowed of less at the Church-door. (6) No 
 
 widow shall be distrained to marry herself; 
 nevertheless she shall find surety, that she 
 shall not marry without our licence and as- 
 sent (if she hold of us) nor without the assent 
 of the Lord, if she hold of another. 
 
 Cap. 32. 
 
 Lands shall not he Aliened to the Prejudice 
 of the Lord^s Service. 
 
 Nullus liber homo det decetero amplius ali- 
 cui vel vendat de terra sua quam ut de re- 
 sidue terre sue sufficienter possit fieri domino 
 feodi servitium el debitum quod pertinet ad 
 feodum iUud. 
 
 No Freeman from henceforth shall give or 
 sell any more of his Land, but so that of the 
 residue of the Lands the Lord of the Fee 
 may have the Service due to him, which be- 
 longeth to the Fee. 
 
 Cap. 36. 
 
 jyb Land shall be Given in Mortmain. 
 
 Nee liceat decetero alicui dare terram suam 
 domui religiose ita quod illam resumat de 
 eadem domo tenendam. Nee Uceat alicui do- 
 mui religiose terram alicujus sic accipere 
 quod tradat iUam illi a quo eam recepit te- 
 nendam. Si quis autem decetero terram su- 
 am alicui domui religiose sic dederit & super 
 hoc convincatur donum suum penitus casse- 
 tur & terra ilia domino illius feodi incurratur. 
 
 It shall not be lawful from henceforth to 
 any to give his Lands to any Religious House, 
 and to take the same land again to hold of 
 the same House. Nor shall it be lawful to 
 any House of Religion to take the Lands of 
 any, and to lease the same to him of whom 
 he received it. If any from henceforth give 
 his Lands to any Religious house, and there- 
 upon be convict, the Gift shall be utterly 
 void, and the Land shall accrue to the liOrd 
 of the Fee. 
 
 (Statute No. 4.) 
 
 [See text, §§ 2, 17.] 
 
 Stat. Merton (20 Hen. III.), Cap. 2. 
 
 (A. D. 1235.) 
 
 Widows may Bequeath the Crop of Their 
 Lands. 
 
 Also from henceforth all Widows may be- 
 queath the Crop of their Ground, as well of 
 their Dowers, as of other their Lands and 
 Tenements, saving to the Lords of the Fee, 
 all such Services as be due for their Dowers 
 and other Tenements. 
 
 Cap. 9. 
 
 He is a Bastard that is Born before the 
 Marriage of his Parents. 
 
 To the King's Writ of Bastardy, Whether 
 one being bom before Matrimony may in- 
 
 717 
 
stats. Nos. 4-9. 
 
 ENGLISH STATUTES. 
 
 (§§ 107. 163, W, 151 
 
 herit in like maimer as he that is born after 
 matrimony, all the Bishops answered, That 
 they would not, nor could not, answer to it; 
 because It was directly against the common 
 Order of the Ghm-ch. (2) And all the Bishops 
 instanted the Lords, that they would consent, 
 that all such as were bom afore Matrimony 
 should be legitimate, as well as they that be 
 born within Matiimony, as to the Succession 
 of Inheritance, forsomuch as the Church ac- 
 cepteth such for legitimate. And all the 
 Earls and Barons with one voice answered, 
 that they would not change the Laws of the 
 Realm, which hitherto have been used and 
 approved. 
 
 (Statute No. 5.) 
 [See text, §§ 133, 137, 151.] 
 
 13 Edw. I. (Westm. II.) Cap. 19. 
 
 (A. D. 1285.) 
 
 The Ordinary Chargeable to Pay Debts as 
 Executors. 
 
 Whereas after the Peath of a Person dying 
 intestate, which is bounden to some other for 
 Debt, the Goods come to the Ordinary to be 
 disposed; (2) the Ordinary from henceforth 
 shall be bound to answer the Debts as far 
 forth as the Goods of the Dead will extend, 
 in such sort as the Executors of the same 
 Party should have been bounden, if he had 
 made a Testament. 
 
 Cap. 23. 
 
 Execyators may Have a Writ of Aooompt. 
 
 Executors from henceforth shall have a 
 Writ of Accompt, and the same Action and 
 Process in the same Writ as the Testator 
 might have had if he had lived. 
 
 (Statute No. 6., 
 [See text, § 137.] 
 
 4 Edw. III. Cap. 7. 
 
 (A. D. 1330.) 
 
 Executors shall Have an Action of Trespass 
 for a Wrong Done to Their Testator. 
 
 Item, Whereas In Times past Executors 
 have not nad Actions for a Trespass done to 
 their Testators, as of the Goods and Chattels 
 of the same Testators carried away in their 
 Life, and so such Trespasses have hitherto 
 remained unpunished; (2) it is enacted. That 
 the Executors in such Oases shall have an 
 Action against the Trespassers, and recover 
 their Damages in like Manner, as they, whose 
 Executors they be, should have had if they 
 were in Life. 
 718 
 
 (Statute No. 7.) 
 
 [See text, §§ 137, 151.] 
 
 25 Edw. III. Stat. 6, Cap. 5. 
 
 (A. D. 1351.) 
 
 Executors of Executors shall Have the Ben- 
 efit and Charge of the First Testator. 
 
 Item, it Is accorded and established. That 
 executors of executors shall have actions of 
 debts, accompts, and of goods carried away 
 of the first testators, (2) and execution of 
 statutes merchants and recognisances made 
 in court of record to the first testator, in 
 the same manner as the first testator should 
 have had if he were in life, as well of actions 
 of the time past, as of the time to come, in all 
 cases where judgement is not yet given be- 
 twixt such executors; (3) but that the judge- 
 ments given to the contrary to this article in 
 times past shall stand in their force; (4) and 
 that the same executors of executors shall 
 answer to other of as much as they have re- 
 covered of the goods of the first testators, 
 as the first executors should do if they were 
 in full life. 
 
 (Statute No. 8.) 
 [See text, § 107.] 
 
 31 Edw. III. Cap. 11. 
 
 (A. D. 1357.) 
 
 To Whom the Ordinary may Commit the 
 Administration of the bloods of Him that 
 Dieth Intestate. The Benefit and Charge 
 of an Administrator. 
 
 Item, it is accorded and assented, That in 
 case where a man dieth intestate the ordi- 
 naries shall depute the next and most lawful 
 friends of the dead person intestate to ad- 
 minister his goods; (2) which deputies shall 
 have an action to demand and recover as ex- 
 ecutors the debts due to the said person in- 
 testate in the King's court, for to administer 
 and dispend for the soul of the dead; (3) and 
 shall answer also in the King's com-t to other 
 to whom the said dead person was holden 
 and bound, in the same manner as executors 
 shall answer. (4) And they shall be account- 
 able to the ordinaries, as executors be in the 
 case of testament, as well of the time past 
 as the time to come. 
 
 (Statute No. 9.) 
 
 [See text, §§ 107, 137.] 
 
 21 Hen. VIII. Cap. 4. 
 
 (A. D. 1529.) 
 
 The Sale of Lands by Part of the Executors, 
 Lawful. 
 
 Where divers sundry persons before this 
 time, having other persons seized to their use 
 
§S 107, 137) 
 
 ENGLISH STATUTES. 
 
 Stat No. 9 
 
 of and in lands and other hereditaments to 
 and for the declaration of their wills, have 
 by their last wills and testaments wUled and 
 declared such their said lands, tenements, or 
 other hereditaments to be sold by their ex- 
 «cutors, as well to and for the payments of 
 their debts, performance of their legacies, 
 necessary and convenient finding of their 
 wives, virtuous bringing up and advance- 
 ment of their children to mai-riage, as also 
 for other charitable deeds to be done and ex- 
 ecuted by their executors for the health of 
 their souls. (2) And notwithstanding such 
 trust and confidence so by them put in their 
 said executors, it hath oftentimes been seen, 
 where such last wills and testaments of such 
 lands, tenements, and other hereditaments 
 bave been declared, and in the same divers 
 executors named and made, that after the 
 ■decease of such testators some of the same 
 executors, willing to accomplish the trust 
 and confidence that they were put in by the 
 said testator, have accepted and taken upon 
 them the charge of the said testament, and 
 liave been ready to fulfil and perform all 
 things contained in the same; and the residue 
 of the same executors, uncharitably contrary 
 to the trust that they were put in, have re- 
 fused to intermeddle in any wise with the 
 execution of the said will and testament, or 
 with the sale of such lands so willed to be 
 sold by the testator. (3) And forasmuch as 
 a bargain and sale of such lands, tenements, 
 or other hereditaments so willed by any per- 
 son to be sold by his executors after his de- 
 cease, after the opinion of divers persons, 
 can in no wise be good or effectual in the law, 
 unless the same bargain and sale be made 
 by the whole number of the executors 
 named to and for the same; (4) by reason 
 whereof, as weU the debts of such testators 
 have rested unpaid and unsatisfied, to the 
 great danger and peril of the souls of such 
 testators, and to the great hindrance, and 
 many times to the utter undoing of theU- cred- 
 itors- (5) as also the legacies and bequests 
 made by the testator to his wife, children, 
 and for other charitable deeds to be done for 
 the wealth of the soul of the same testator 
 that made the same testament, have been 
 also unperformed, as well to the extreme 
 misery of the wife and children of the said 
 testator, as also to the let of performance of 
 other charitable deeds for the wealth of the 
 soul of the said testator, to the displeasm-e 
 of Almighty God. (6) For remedy whereof 
 ^e it enacted, ordained, and estabhshed by 
 the authority of this present parliament. That 
 where part of the executors named in any 
 such testament of any such person so making 
 . or declaring any such will of any lands 
 tenements, or other hereditaments to be sold 
 byTs executors, after the death of any such 
 testator, do refuse to take upon him or them 
 the administi-ation and charge of the same 
 estament and last wiU wherein they be so 
 amed to be executors, and the residue of the 
 
 nar 
 same 
 
 executors do accept and take upon them 
 
 the cure and charge of the same testament and 
 lagt will; that then all bargains and sales of 
 such lands, tenements, or other hereditaments, 
 so willed to be sold by the executors of any 
 such testator, as weU heretofore made, as here- 
 after to be made by him or them only of the 
 said executors that so doth accept, or that 
 heretofore hath accepted and taken upon him 
 or them any such cure or charge of adminis- 
 tration of any such wiU or testament, shall be 
 as good and as effectual in the law, as if all 
 the residue of the same executors named in 
 the said testament, so refusing the adminis- 
 tration of the same testament, had joined 
 with him or them in the making of the bar- 
 gain and sale of such lands, tenements, or 
 other hereditaments so willed to be sold by 
 the executors of any such testator, which 
 heretofore hath made or declared, or that 
 hereafter shall make or declare any such wiU, 
 of any such lands, tenements, or other heredit- 
 aments after his decease, to be sold by his 
 executors. 
 
 II. Provided alway. That this act shall 
 not extend to give power or authority to any 
 executor or executors at any time hereafter 
 to bargain or put to sale any lands, tene- 
 ments, or hereditaments, by virtue and au- 
 thority of any will or testament heretofore 
 made, otherwise than they might do by th© 
 course of the common law afore the making 
 this act 
 
 Cap. 5. 
 
 What Fees ought to he Taken for Prolate 
 of Testaments. 
 
 III. § 6. And in case any person die intes- 
 tate, or that the executors named in any 
 such testament refuse to prove the said tes- 
 tament, then the said ordinary, or other per- 
 son or persons having authority to take pro- 
 bate of testaments, as is abovesaid, shall 
 grant the administration of the goods of the 
 testator, or person deceased, to the widow 
 of the same person deceased, or to the next 
 of his kin, or to both, as by the discretion of 
 the same ordinary shaU be thought good, 
 taking surety of him or them, to whom shall 
 be made such commission, for the true ad- 
 minisU-ation of the goods, chattels, and debts, 
 which he or they shall be so authorized to 
 minister; (7) and in case where divers per- 
 sons claim the administration as next of kin, 
 which be equal in degree of kindred to the 
 testator or person deceased, and where any 
 person only desireth the administration as 
 next of kin, where indeed divers persons be 
 in equality of kindred, as is aforesaid, that in 
 every such case the ordinary to be at his 
 election and liberty to accept any one or 
 mo making request, where divers do require 
 the administration. 
 
 IV Or where but one or more of them, ana 
 not all being in equality of degree do make 
 request, then the ordinary to admit the 
 widow, and him or them only making re- 
 quest, or any one of them at his pleasure, 
 taking nothing for the same, unless the goods 
 
 719 
 
stats. Nos. 9-10 
 
 ENGLISH STATUTES. 
 
 (§S5 17. 26 
 
 of the person so deceased amount above the 
 value or sum of C. s. (2) and In case the 
 goods of the person so deceased amount to 
 above the value of O. s. and not above the 
 value or sum of xl. 11. then the said bishop, 
 ordinary, or other person or persons so hav- 
 ing authority to take probate of testaments, 
 as is aforesaid, their ministers and officers 
 shall take only 11. s. vl. d. sterling, and not 
 above; (3) and that the executor and ex- 
 ecutors named by the testator, or person so 
 deceased, or such other person or persons to 
 whom such administration shall be commit- 
 ted where any person dleth intestate, or by 
 way of intestate, calling or taking to him or 
 them such person or persons, two at the 
 least, to whom the said person so dying was 
 Indebted, or made any legacy, and upon their 
 refusal or absence, two other honest persons, 
 being next of kin to the person so dying, and 
 in their default and absence two other honest 
 persons, and in their presence, and by their 
 discretions, shall make, or cause to be made, 
 a true and perfect inventory of all the goods, 
 chattels, wares, merchandise as well moveable 
 as not moveable whatsoever, that were of 
 the said person so deceased, (4) and the same 
 shall cause to be indented, whereof the one 
 part shall be by the said executor or execu- 
 tors, administrator or administrators, upon 
 his or their oath or oaths, to be taken be- 
 fore the said bishops, or ordinaries, their of- 
 ficials, or commissaries, or other persons hav- 
 ing power to take probate of testaments, up- 
 on the holy evangelists, to be good and true, 
 and the same one part indented shall present 
 and deliver into the keeping of the said bish- 
 op, ordinary, or ordinaries, or other person 
 having. power to take probate of testaments, 
 and the other part thereof to remain with the 
 said executor or executors, administrator or 
 administrators; (5) and that no bishop, or- 
 dinary, or other whatsoever person, having au- 
 thority to take probate of testament or testa- 
 ments, as is above said, upon the pain in this 
 estatute hereafter contained, refuse to take 
 any such inventory or Inventories to him or 
 them presented or tendered to be delivered 
 as is aforesaid. 
 
 V. § 1. Provided always. That if the per- 
 son so deceased will by his testament, or 
 last wlU, any lands, tenements or heredita- 
 ments, to be sold, that the money thereof 
 coming, nor the profits of the said lands, 
 for any time to be taken, shall not be ac- 
 counted as any of the goods or chattels, of 
 the said person so deceased. 
 
 VIII. Provided alway. That this present 
 act be not prejudicial to any ordinary, or 
 any other person, which now have, or here- 
 after shall have authority for probate of 
 testaments, but that every of them shall and 
 may convent before them all and every per- 
 son or persons made and named executor or 
 executors of any testament, to the intent to 
 prove or refuse the testament or testaments 
 of their testator or testators, and to bring in 
 inventories, and to do every other thing con- 
 
 720 
 
 cernlng the same, as they might do before 
 the making of this act; (2) so that always 
 any such ordinary, or other person or per- 
 sons having such authority, by themselves, 
 their commissaries, scribes, registers, or 
 other ministers aforesaid, shall not in any 
 wise take for the same above the fees lim- 
 ited by this act, ne in any wise attempt any 
 thing contrary to any part of the same act. 
 
 (Statute No. 10.) 
 [See text, §§ 17, 26.] 
 
 27 Hen. VIII, Cap. 10. 
 
 (A. D. 1535.) 
 
 An Act Concerning Uses and Wills. 
 
 Where by the common laws of this realm, 
 lands, tenements and hereditaments be not 
 devisable by testament, (2) nor ought to be 
 transferred from one to another, but by 
 solemn livery and seisin, matter of record, 
 writing sufficient made bona fide, without 
 covin or fraud; (3) yet nevertheless divers 
 and sundry imaginations, subtle inventions 
 and practices have been used, whereby the 
 hereditaments of this realm have been con- 
 veyed from one to another by fraudulent 
 feoffments, fines, recoveries and other assur- 
 ances craftily made to secret uses, intents 
 and trusts; (4) and also by wills and testa- 
 ments, sometime made by nude parolx and 
 words, sometime by signs and tokens, and 
 sometime by writing, and for the most part 
 made by such persons as be visited with sick- 
 ness, in their extreme agonies and. pains, or 
 at such time as they have" scantly had any 
 good memory or remembrance; (5) at which 
 times they being provoked by greedy and 
 covetous persons lying in wait about them, 
 do many times dispose indiscreetly and 
 unadvisedly their lands and Inheritances; (6) 
 by reason whereof, and by occasion of which 
 fraudulent feoffments, fines, recoveries and 
 other like assmances to uses, confidences 
 and trusts, divers and many heirs have been 
 unjustly at sundry times disherited, the lords 
 have lost their wards, marriages, reliefs, har- 
 riots, escheats, aids pur fair fits cMvalier, & 
 pur file marier, (7) and scantly any person 
 can be certainly assured of any lands by 
 them purchased, nor know surely against 
 whom they shall use their actions or execu- 
 tions for their rights, titles and duties; (8) 
 also men married have lost their tenancies 
 by the curtesy, (9) women their dowers, (10) 
 manifest perjuries by trial of such secret 
 wills and uses have been committed; (11) 
 the King's highness hath lost the profits and 
 advantages of the lands of persons attainted, 
 (12) and of the lands craftily put in feoff- 
 ments to the uses of aliens born, (13) and 
 also the profits of waste for a year and a day 
 of lands of felons attainted, (14) and the lords 
 their escheats thereof; (15) and many other, 
 
17, 26) 
 
 ENGLISH STATUTES. 
 
 Stat. No. 10 
 
 Inconveniences have happened, and daily do 
 increase amoag the King's subjects, to their 
 great trouble and inquietuess, and to the 
 utter subversion of the ancient common laws 
 of this realm; (10) for the extirpiug and ex- 
 tinguishment of all such subtle practised 
 feoffments, fines, recoveries, abuses and er- 
 rors heretofore used and accustomed in this 
 realm, to the subversion of the good and 
 ancient laws of the same and to the intent 
 that the King's highness, or any other his 
 subjects of this realm, shall not in any wise 
 hereafter by any means or inventions be de- 
 ceived, damaged or hurt, by reason of such 
 trusts, uses or confidences: (17) it may please 
 the King's most royal majesty. That it may 
 be enacted by his Highness, by the assent of 
 the lords spiritual and temporal, and the 
 commons, in this present parliament assem- 
 bled, and by the authority of the same, in 
 manner and form following; that is to say, 
 That where any person or persons stand or 
 be seized or at any time hereafter shall hap- 
 pen to be seized, of and^ in any honours, 
 castles, manors, lands, tenements, rents, serv- 
 ices, reversions, remainders or other heredit- 
 aments, to the use, confidence or trust of 
 any other person or persons or of any body 
 politick, by reason of any bargain, sale, feoff- 
 ment, fine, recovery, covenant, contract, agree- 
 ment, will or otherwise, by any manner means 
 whatsoever it be; that in every such case, all 
 and every such person and persons, and 
 bodies politick, that have or hereafter shall 
 have any such use, confidence or trust, in fee- 
 simple, fee-tail, for term of life or for years, 
 or otherwise, or any use, confidence or trust, 
 in remainder or reverter, shall from hence- 
 forth stand and be seized, deemed and ad- 
 judged in lawful seisin, estate and possession 
 of and in the same honours, castles, manors, 
 lands, tenements, rents, services, reversions, 
 remainders and hereditaments, with their ap- 
 purtenances, to all intents, constructions and 
 purposes in the law, of and in such like 
 estates as they had or shall have in use, 
 trust or confidence of or in the same; (10) 
 and that the estate, title, right and posses- 
 sion that was in such person or persons that 
 were, or hereafter shall be seized of any 
 lands, tenemeiits or hereditaments, to the 
 use, confidence or trust of any such person 
 or persons, or of any body politick, be from 
 henceforth clearly deemed and adjudged to 
 be in him or them that have, or hereafter 
 shall have, such use, confidence or trust, 
 after such quality, manner, form and con- 
 dition as they had before, in or to the use, 
 confidence or trust that was in them. 
 
 VI. And be it further enacted by the au- 
 thority aforesaid. That whereas divers per- 
 
 ABB. WILLS 46 
 
 sons have purchased, or have estate made 
 and conveyed of and in divers lands, tene- 
 ments and hereditaments unto them and to 
 their wives, and to the heirs of the hus- 
 band, or to the husband and to the wife, and 
 to the heirs of their two bodies begotten, or 
 to the heirs of one of their bodies begotten, 
 or to the husband and to the wife for term 
 of their lives, or for term of life of the said 
 wife; (2) or where any such estate or pur- 
 chase of any lands, tenements, or heredita- 
 ments, hath been or hereafter shall be made 
 to any husband and to his wife, in manner 
 and form expressed, or to any other person 
 or persons, and to their heirs and assigns, 
 to the use and behoof of the said husband 
 and wife, or to the use of the wife, as is be- 
 fore rehearsed, for the jointer of the wife; 
 (3) that then in evei-y such case, every wo- 
 man mari'ied, having such jointer made or 
 hereafter to be made, shall not claim, nor 
 have title to have any dower of the residue 
 of the lands, tenements or hereditaments, 
 that at any time were her said husband's by 
 whom she hath any such jointer, nor shall 
 demand nor claim her dower of and against 
 them that have the lands and inheritances 
 of her said husband; (4) but if she have no 
 such jointer, then she shall be admitted and 
 enabled to pm-sue, have and demand her 
 dower by writ of dower, after the due 
 course and order of the common laws of this 
 realm; this act, or any law or provision 
 made to the contrary thereof notwithstand- 
 
 XI. And forasmuch as gi-eat ambiguities 
 and doubts may arise of the validity and in- 
 validity of wills heretofore made of any 
 lands, tenements and hereditaments, to the 
 great trouble of the King's subjects; (2) the 
 King's most royal majesty minding the tran- 
 quility and rest of his loving subjects, of his 
 most excellent and accustomed goodness is 
 pleased and contented that it be enacted by 
 the authority of this present parliament. 
 That all manner true and just wills and tes- 
 taments heretofore made by any person or 
 persons deceased, or that shall decease be- 
 fore the first day of May, that shall be in the 
 year of our Lord God 1536, of any lands, tene- 
 ments or other hereditaments, shall be taken, 
 and accepted good and effectual in the law, 
 after such fashion, manner and form as they 
 were commonly taken and used at any time 
 within forty years next afore the making of 
 this act; any thing contained in this act, or 
 in the preamble thereof, or any opinion of 
 the common law to the contrary thereof not- 
 withstanding. 
 
 ,**♦«•• 
 
 721 
 
Stut. No. 11 
 
 ENGLISH STATUTES. 
 
 (§25 
 
 (Statute No. 11.) 
 
 [See text, § 25.] 
 
 32 Hen. VIII. Cap. 1. 
 
 (A. D. 1540.) 
 
 The Act of Wills, Wards and Primer Sei- 
 sins, Whereby a Man may Deoise Two 
 Parts of His Land. 
 
 Where the King's most royal majesty in aU 
 the time of his most gracious and noble reign 
 hath ever been a merciful, loving, benevolent 
 and most gracious sovereign lord, unto all 
 and singular his loving and obedient subjects, 
 and by many times past hath not only shewed 
 and imparted to them generally by his many, 
 often, and beneficial pardons heretofore by 
 authority of his parliament granted, but also 
 by divers other ways and means many great 
 and ample grants and benignities, in such 
 wise as all his said subjects been most bound- 
 en to the uttermost of all their powers and 
 graces by them received of God, to render 
 and give unto his Majesty their most humble 
 reverence and obedient thanks and services, 
 with their daily and continual prayer to Al- 
 mighty God, for the continual preservation of 
 his most royal estate in most kingly honour 
 and prosperity; (2) yet always his Majesty 
 being repleat and endowed by God with 
 grace, goodness and liberality, most ten- 
 derly considering, that his said obedient 
 and loving subjects cannot use or exercise 
 themselves according to their estates, de- 
 grees, faculties and qualities, or to bear 
 themselves in such wise, as that they may 
 conveniently keep and maintain their hos- 
 pitalities and families, nor the good educa- 
 tion and bringing up of their lawful gener- 
 ations, which in this realm (laud be to God) 
 is in all parts very gi-eat and abundant, but 
 that in manner of necessity, as by daily expe- 
 rience is manifested and known, they shall 
 not be able of their proper goods, chattels 
 and other movable substance, to discharge 
 their debts, and after their degrees set forth, 
 to advance their children and posterities: (3) 
 wherefore our said sovereign Lord, most vir- 
 tuously considering the mortality that is to 
 every person at God's will and pleasure most 
 common and uncertain, of his most blessed 
 disposition and liberality, being willing to re- 
 lieve and help his said subjects In their said 
 necessities and debility, is contented and 
 pleased that it be ordained and enacted by 
 authority of this present parliament, in man- 
 ner and form as hereafter followeth; that is 
 to say, (4) That all and every person and per- 
 sons, having, or which hereafter shaU have, 
 any manors, lands, tenements or heredita- 
 ments, holden in soccage, or of the nature of 
 soccage tenure, and not having any manors, 
 lands, tenements or hereditaments, holden of 
 the King our sovereign lord by knights serv- 
 ice, by soccage tenure in chief, or of the nat- 
 ure of soccage tenure in chief, nor of any 
 
 722 
 
 other person or persons by knights service, 
 from the twentieth day of July in the year of 
 our Lord God MDXL. shall have full and 
 free liberty, power and authority to give, dis- 
 pose, will and devise, as well by his last will 
 and testament in writing, or otherwise by 
 any act or acts lawfully executed in his life, 
 all his said manors, lands, tenements or here- 
 ditaments, or any of them, at his free will 
 and pleasure; any law, statute or other thing 
 heretofore had, made or used to the conti-ary 
 notwithstanding. 
 
 II. And that aU and every person and per- 
 sons, having manors, lands, tenements or 
 hereditaments, holden of the King our sover- 
 eign lord, his heirs or successors, in soccage, 
 or of the natm-e of-soccage tenure in chief, 
 and having any manors, lands, tenements or 
 hereditaments, holden of any other person or 
 persons in soccage, or of the nature of soccage 
 tenure, and not having any manors, lands, 
 tenements or hereditaments, holden of the 
 King our sovereign lord by knights service, 
 nor of any other lord or person by lIKe serv- 
 ice, from the twentieth day of July in the said 
 year of our Lord God MDXL. shall have 
 full and free liberty, power and authority to 
 give, will, dispose and devise, as well by his 
 last will or testament In writing, or other- 
 wise by any act or acts lawfully executed In 
 his life, all his said manors, lands, tenements 
 and hereditaments, or any of them, at his 
 free will and pleasure; any law, statute, cus- 
 tom or other thing heretofore had, made or 
 used to the contrary notwithstanding. 
 
 III. Saving alway and reserving to tne King 
 our sovereign lord, his heirs and successors, 
 all his right, title and interest of primer seisin 
 and reliefs, and also all other rights and du- 
 ties for tenures in soccage, or of the nature of 
 soccage tenure in chief, as heretofore hath 
 been used and accustomed, (2) the same man- 
 ors, lands, tenements or hereditaments to be 
 taken, had and sued out of and from the 
 hands of his Highness, his heirs and succes- 
 sors, by the person or persons to whom any 
 such manors, lands, tenements or heredita- 
 ments shall be disposed, willed or devised, in 
 such and like manner and form, as hath been 
 used by any heir or heirs before the making 
 of this statute; (3) and saving and reserving 
 also fines for alienations of such manors, 
 lands, tenements, or hereditaments holden of 
 the King otu- sovereign lord in soccage, or of 
 the nature of soccage tenure in chief, whereof 
 there shall be any alteration of freehold or 
 inheritance, made by will or otherwise, as is 
 aforesaid. 
 
 IV. And it is further enacted by the author- 
 ity aforesaid. That all and singular person 
 and persons having any manors, lands, tene- 
 ments, or hereditaments of estate of inher- 
 itance holden of the King's highness in chief 
 by knights service, or of the nature of knights 
 service in chief, from tlie said twentieth day 
 of July shall have full power and authority, 
 by his last will, by writing, or otherwise by 
 any act or acts lawfully executed in his life, 
 
§§ 25, 26. 38) 
 
 ENGLISH STATUTES. 
 
 Stats. Nos. 11-13 
 
 to give, dispose, will or assign two parts of 
 the same manors, lands, tenements, or here- 
 ditaments in three parts to be divided, (2) or 
 else as much of the said manors, lands, tene- 
 ments, or hereditaments, as shall extend or 
 amount to the yearly value of two parts of 
 the same, in three parts to be divided, in cer- 
 tainty and by special divisions, as it may be 
 known in severalty, (3) to and for the ad- 
 vancement of his wife, preferment of his chil- 
 dren, and payment of his debts, or otherwise 
 at his will and pleasure; any law, statute, 
 custom, or other thing to the contrary thereof 
 notwithsta nding.^ 
 
 (Statute No. 12.) 
 
 [See text, §§ 25, 26, 38.] 
 
 34 & 35 Hen. VIII. Cap. 5. 
 
 (A. D. 1542-1543.) 
 
 The Bill Concerning the Explanation of 
 Wills. 
 
 I. Where in the last parliament begun and 
 holden at Westminster the thirty-eighth day 
 of April in the thirty-first year of the King's 
 most gracious reign, and thereby divers pro- 
 rogations holden and continued unto the 
 twenty-foui-th day of July in the thirty-sec- 
 ond year of his said reign, it was by the 
 King's most gracious 8.nd liberal disposition 
 shewed toward his most humble and obe- 
 dient subjects, ordained and enacted how and 
 in what manner lands, tenements, and other 
 hereditaments might be by will or testament 
 in writing, or otherwise by any act or acts 
 lawfuUy executed in the life of every person, 
 given, disposed, willed or devised, for the ad- 
 vancement of the wife, preferment of the chil- 
 -dren, payment of debts of every such person, 
 or otherwise at his will and pleasure, as in 
 the same act more plainly is declared: (2) 
 sithen the making of which estatute, divers 
 doubts, questions and ambiguities have risen, 
 been moved, and grown, by diversity of opin- 
 ions, taken in and upon the exposition of the 
 letter of the same estatute. 
 
 II For a plain declaration and explanation 
 whereof, and to the intent and purpose that 
 the King's obedient and loving subjects shall 
 and may take the commodity and advantage 
 of the King's said gracious and liberal dispo- 
 sition, the lords spiritual and temporal, and 
 the commons, in this present parliament as- 
 sembled, most humbly beseechen the King s 
 majesty that the meaning of the letter of the 
 ^me estatute, concerning such matters here- 
 after rehearsed, may be by the authority of 
 this present parliament enacted, taken, ex- 
 pounded, judged, declared and explamed in 
 manner and form following: 
 
 "Tlhe rest of this act contains certain reserva- 
 tions in favor of the king. 
 
 III. First, Where it is contained in the same 
 former statute, within divers articles and 
 branches of the same, that all and singular 
 person and persons having any manors, lands, 
 tenements or hereditaments of the estate of 
 inheritance, should have full and free liberty, 
 power and authority to give, will, dispose or 
 assign, as well by his last will and testament 
 in writing, or otherwise by any act or acts 
 lawfully executed in his Ufe, his manors, 
 lands, tenements or hereditaments, or any of 
 them, in such manner and form as in the 
 same former act more at large it doth appear. 
 Which words of estate of inheritance, by the 
 authority of this present parliament, is and 
 shall be declared, expounded, taken and 
 judged of estates in fee-simple only. 
 
 IV. And also that all and singular person 
 and persons having a sole estate or interest 
 in fee-simple, or seised in fee-simple in co- 
 parcenary, or in common in fee-simple, of and 
 in any manors, lands, tenements, rents or 
 other hereditaments, in possession, reversion, 
 remainder, or of rents or services incident to 
 any reversion or remainder, and having no 
 manors, lands, tenements or hereditaments 
 holden of the King, his heirs or successors, or 
 of any other person or persons by knights- 
 service, shaU have full and free liberty, pow- 
 er and authority to give, dispose, will or de- 
 vise to any person or persons (except bodies 
 politick and corporate) by his last will and 
 testament in writing, or otherwise by any 
 act' or acts lawfully executed in his life, by 
 himself solely, or by himself and other joint- 
 ly, severally or particularly, or by all those 
 ways, or any of them, as much as in him of 
 right is or shall be, all his said manors, lands, 
 tenements, rents and hereditaments, or any 
 of them, or any rents, commons or other prof- 
 its or commodities out of or to be perceived 
 of the same, or out of any parcel thereof, at 
 his own free will and pleasure; any clause in 
 the said former act notwithstanding. 
 t»****** 
 
 XIV. And it is further declared and enact- 
 ed by the authority aforesaid, That wiUs or 
 testaments made of any manors, lands, tene- 
 ments, or other hereditaments, by any wo- 
 man covert, or person within the age of 
 twenty-one years, idiot, or by any person de 
 non sane memory shall not be taken to bo 
 good or effectual in the law. 
 
 (Statute No. 13.) 
 12 Car. II. Cap. 24. 
 
 (A. D. 1660.) 
 
 An Act for Taking Away the Court of 
 Wards and Liveries, and Tenures m Cap- 
 ite, and by Knights-Seroiae, and Puroey- 
 a7v:e, and for Settling a Revenue upon 
 His Majesty in Lieu Thereof. 
 Whereas it has been found by former ex- 
 perience. That the courts of wards and liv- 
 
 723 
 
Stat No. 13 
 
 ENGLISH STATUTES. 
 
 eries, and tenures by knights-sei'vice, either 
 of the King or others, or by liniglits-service 
 in capite, or socage in capite of the King, 
 and the consequents upon the same, have 
 been much more burdensome, grievous and 
 prejudicial to the liingdom, than they have 
 been beneficial to the King: (2) and where- 
 as since the intermission of the said court, 
 whicli have been from the fourth and twen- 
 tieth day of February which was in the year 
 of our Lord one thousand six hundred forty 
 and five, many persons have by will and 
 otherwise made disposal of their lands held 
 by knights-service, whereupon divers ques- 
 tions might possibly arise, unless some sea- 
 sonable remedy be taken to prevent the 
 same; (3) be it therefore enacted by the 
 King our sovereign lord, with the assent of 
 the lords and commons in parliament assem- 
 bled, and by the authority of the same, and 
 it is hereby enacted. That the court of wards 
 and liveries, and all wardshii)s, liveries, pri- 
 mer seisins, and ousterlemains, values and 
 forfeitures of marriages, by reason of any 
 tenure of the King's Majesty, or of any other 
 by knights-service, and all mean rates, and 
 all other gifts, grants, charges incident or 
 arising for or by reason of wardships, liv- 
 eries, primer-seisins, or ousterlemains be 
 taken away and discharged, and are hereby 
 enacted to be taken away and discharged, 
 from the said twenty-fourth day of February 
 one thousand six hundred forty-flve; any law, 
 statute, custom or usage to the contrary 
 hereof in any wise notwithstanding: (4) 
 And that all fines for alienations, seizures 
 and pardons for alienations, tenure by hom- 
 age, and all charges incident or arising, for 
 or by reason of wardsliip, livery, primer 
 seisin, or ousterlemain, or tenure by knights- 
 service, escuage, and also, aid pur file mar- 
 rier, and pur fair fitz chivalier, all other 
 charges Incident thereunto, be likewise tak- 
 en away and discharged, from the said 
 twenty-fourth day of February one thou- 
 sand six hundred forty and five; any law, 
 statute, custom or usage to the contrary 
 hereof in any wise notwithstanding: (5) 
 And that all tenures by knights-service of 
 the King, or of any other person, and by 
 knights-service in capite, and by socage in 
 capite of the King, and the fruits and conse- 
 quents thereof, happened or which shall or 
 may hereafter happen or arise thereupon or 
 thereby, be taken away and discharged, any 
 law, statute, custom or usage to the contrary 
 hereof in anywise notwithstanding: (6) and 
 all tenures of any honours, manors, lands, 
 tenements or hereditaments, or any estate of 
 any inheritance at the common law, held 
 either of the King, or of any other person or 
 persons, bodies politick or corporate are 
 hereby enacted to be tm-ned into free and 
 common socage, to all intents and purposes, 
 from the said twenty-fourth day of Febru- 
 ary one thousand six hundred forty-flve, ana 
 shall be so construed, adjudged and deemed 
 to be from tUfi said twenty-fourth day of 
 
 724 
 
 February one thousand six hundred forty- 
 five, and forever thereafter turned into free 
 and common socage; any law, statute, cus- 
 tom or usage to the contrary hereof in any 
 wise notwithstanding. 
 
 11. And that the same shall forever here- 
 after stand and be discharged of all tenure by 
 homage, escuage, voyages royal and charges 
 for the same, wardships Incident to tenure 
 by knights-service, and values and forfei- 
 tures of mai-riage, and all other charges inci- 
 dent to tenm'e by knights-service, and of and 
 from aide pur file marrier, and aide pur fair 
 fitz chivalier; any law, statute, usage or cus- 
 tom to the contrary in any wise notwith- 
 standing: (2) And that all conveyances and 
 devises of any manors, lands, tenements and 
 hereditaments made since the said twenty- 
 fourth day of February, shall be expoimded 
 to be of such effect, as if the same manors, 
 lands, tenements and hereditaments had been 
 then held and continued to be holden in free 
 and common socage only; any law, statute, 
 custom or usage to the contrary hereof in 
 any wise notwithstanding. 
 
 ******** 
 
 VIII. And be it further enacted by the au- 
 thority aforesaid. That where any person 
 hath or sliall have any child or children un- 
 der the age of one and twenty years, and 
 nor married at the time of his death, That 
 it shall "and may be lawful to and for the 
 father of such child or children, whether 
 born at the time of the decease of the father, 
 or at that time in ventre de sa mere, or 
 whether such father be within the age of 
 one and twenty years, or of full age, by his 
 deed executed in his life-time, or by his last 
 will and testament in writing, in the pres- 
 ence of two or more credible witnesses, in 
 such manner, and from time to time as he 
 shall respectively think fit, to dispose of the 
 custody and tuition of such chUd or children, 
 for and during such time as he or they shall 
 respectively remain under the age of one and 
 twenty years, or any lesser time, to any per- 
 son or persons in possession or remainder,, 
 other than popish recusants; (2) and that 
 such disposition of the custody of such child' 
 or children made since the twenty-fourth of 
 February one thousand six hundred forty- 
 five, or hereafter to be made, shall be good 
 and effectual against all and every person or 
 persons claiming the custody or tuition of 
 such child or children as guardian in socage 
 or otherwise: (3) And that such person or 
 persons, to whom the custody of such child 
 or children hath been or shall be so disposed 
 or devised as aforesaid, shall and may main- 
 tain an action of ravishment of ward or tres- 
 pass, against any person or persons which 
 shall wrongfully take away or detain such 
 child or children, for the recovery of such 
 child or children; (4) and shall and may re- 
 cover damages for the same in the said ac- 
 tion, for the use and benefit of such child or 
 children. 
 
 IX. And be it further enacted, That such 
 
§§ 2, 128, 165) 
 
 ENGLISH STATUTES. 
 
 Stats. Nos. 13-14 
 
 person or persons, to whom the custody of 
 such child or children hath been or sliall be 
 so disposed or devised, shall and may take 
 into his or their custody to the use of such 
 child or children, the profits of all lands, 
 tenements and hereditaments of such child 
 or children; and also the custody, tuition 
 and management of the goods, chattels and 
 personal estate of such child or children, till 
 their respective age of one and twenty years, 
 or any lesser time, according to such dispo- 
 sition aforesaid; (2) and may bring such ac- 
 tion or actions in relation thereunto, as by 
 law a guai-dian in common socage might do 
 
 (Statute No. 14.) 
 
 [See text, §§ 2, 128, 165.] 
 
 22 & 23 Car. II. Cap 10. 
 
 (A. D. 1670.) 
 
 An Act for the Better Settling of Intestates' 
 Estates. 
 
 Be it enacted by the King's most excellent 
 majesty, with the advice and consent of the 
 lords spiritual and temporal, and the com- 
 mons in this present parliament assembled, 
 and by the authority of the same, That all 
 ordinaries, as well the judges of tlie preroga- 
 tive courts of Canterbury and York for the 
 time being, as all other ordinaries and eccle- 
 siastical judges, and every of them, having 
 power to commit administration of the goods 
 of persons dying Intestate, shall and may up- 
 on their respective granting and committing 
 of administration of the goods of persons dy- 
 ing Intestate, after the first day of June one 
 thousand six hundred seventy and one, of 
 the respective person or persons to whom 
 any administration is to be committed, take 
 sufficient bonds with two or more able sure- 
 ties, respect being had to the value of the 
 estate, in the name of the ordinary, with the 
 condition in form and manner following, 
 mutatis mutandis, viz., 
 
 II. The condition of this obligation is such, 
 That if the within bovmden A. B. adminis- 
 trator of all and singular the goods, chattels 
 and credits of C. D. deceased, do make or 
 cause to be made, a true and perfect inven- 
 tory of all and singular the goods, chattels 
 and credits of the said deceased, which have 
 or shall come to the hands, possession or 
 knowledge of him the said A. B. or into the 
 hands and possession of any other person or 
 persons for him, and the salne so made do 
 exhibit or cause to be exhibited into the reg- 
 istry of court, at or before the day 
 
 of next ensuing; (2) and the same goods, 
 
 chattels and credits, and all other the goods, 
 chattels and credits of the said deceased at 
 the time of his death, which at any time aft- 
 er shall come to the hands or possession of 
 the said A. B. or into the hands and posses- 
 
 sion of any other person or persons for him, 
 do well and truly administer according to 
 law; (3) and fm-ther do make or cause to be 
 made, a true and just account of his said ad- 
 
 mmistration, at or before the day of 
 
 . And all the rest and residue of the said 
 goods, chattels and credits which sfcaU be 
 found remaining upon the said administrator's 
 account, the same being first examined and 
 allowed of by the judge or judges for the time 
 being of the sa^d court, shall deliver and pay 
 unto such person or persons respectively, as 
 the said judge or judges by his or their de- 
 cree or sentence, pursuant to the true intent 
 and meaning of this act, shall limit and ap- 
 point. (4) And if it shall hereafter appear, 
 That any last will and testament was made 
 by the said deceased, and the executor or 
 executors therein named do exhibit the same 
 into the said court, making request to have 
 it allowed and approved accordingly, if the 
 said A. B. within-bounden, being thereunto 
 requu-ed, do render and deliver the said let- 
 ters of administration (approbation of such 
 testament being first had and mude) in the 
 said court; then this obligation to be void 
 and of none effect, or else to remain in full 
 force and virtue. 
 
 III. Which bonds are hereby declared and 
 enacted to be good to all intents and purpos- 
 es, and pleadable in any courts of justice: 
 (2) and also that the said ordinaries and 
 judges respectively, shall and may, and are 
 enabled to proceed and call such administra- 
 tors to account, for and touching the goods 
 of any person dying intestate; (3) and upon 
 heai'ing and due consideration thereof, to 
 order and make just and equal distribution 
 of what remaineth clear (after all debts, 
 funerals and just expenses of every sort first 
 allowed and deducted) amongst the wife and 
 children, or children's children, if any such 
 be, or otherwise to the next of kindred to 
 the dead person in equal degree, or legally 
 representing their stocks pro suo cuique jure, 
 according to the laws in such cases, and the 
 rules and limitation hereafter set down; and 
 the same distributions to decree and settle, 
 and to compel such administrators to observe 
 and pay the same, by the due com-se of his 
 Majesty's ecclesiastical laws: (4) saving to 
 every one, supposing him or themselves 
 agrieved, their right of appeal as was al- 
 ways in such cases used. 
 
 ******** 
 
 V. Provided always, and be it enacted by 
 the authority aforesaid, That all ordinaries 
 and every other person who by this act is en- 
 abled to make distribution of the surplusage 
 of the estate of any person dying intestate, 
 shall distribute the whole sm-plusage of such 
 estate or estates in manner and form fol- 
 lowing: that is to say, (2) one third part of 
 the said surplusage to the wife of the intes- 
 tate, and all the residue by equal portions, to 
 and amongst the children of such persons dy- 
 ing intestate, and such persons as legally 
 
 723 
 
stats. Kos. 14-15 
 
 ENGLISH STATUTES. (§§ 7, 9, 2:, 26, 59, 69, 79, 85, 87, 89 
 
 represent such children, in case any of the 
 said children be then dead, other than such 
 child or children (not being heir at law) who 
 shall have any estate by the settlement of 
 the intestate, or shall be advanced by the in- 
 testate in his life-time, by portion or portions 
 equal to the share which shall by such dis- 
 tribution be allotted to the other children to 
 whom such distribution is to be made: (3) 
 and in case any child, other than the heir 
 at law, who shall have any egtate by settle- 
 ment from the said intestate, or shall be 
 advanced by the said intestate In his life- 
 time by portion not equal to the share which 
 wiU be due to the other children by such dis- 
 tribution as aforesaid; then so much of the 
 surplusage of the estate of such intestate, to 
 be distributed to such child or children as 
 shall have any land by settlement from the 
 intestate, or were advanced in the life-time 
 of the intestate, as shall make the estate of 
 all thff said children to be equal as near as 
 can be estimated: (4) but the heir at law, 
 notwithstanding any land that he shall have 
 by descent or otherwise from the intestate, is 
 to have an equal part in the distribution with 
 the rest of the children, without any consid- 
 eration of the value of the land which he 
 hath by descent, or otherwise from the intes- 
 tate. 
 
 VI. Aj|d in case there be no children, nor 
 any legal representatives of them, then one 
 moiety of the said estate to be allotted to the 
 wife of the intestate, the residue of the said 
 estate to be distiibuted equally to every of 
 the next of kindred of the intestate, who are 
 in equal degree and those who legally repre- 
 sent them. 
 
 VII. Provided, That there be no represen- 
 tations admitted among collaterals after 
 brothers and sisters children: (2) and in case 
 thej-e be no wife, then all the said estate to 
 be distributed equally to and amongst the 
 children: (3) and in case there be no child, 
 then to the next of kindred in equal degree of 
 or unto the intestate, and their legal repre- 
 sentatives as aforesaid, and in no other man- 
 I'.er whatsoever. 
 
 VIII. Provided also, and be it likewise en- 
 acted by the authority aforesaid. To the end 
 that a due regard be had to creditors, that no 
 such distribution of the goods of any person 
 dying intestate be made till after one year be 
 fully expired after the intestate's death; (2) 
 and that such and every one to whom any 
 distribution and share shall be allotted, shall 
 give bond with sufficient sureties in the said 
 courts, that if any debt or debts truly owing 
 by the intestate shall be afterwards sued for 
 and recovered, or otherwise duly made to ap- 
 pear; that then and in every such case he or 
 she shall respectively refund and pay back to 
 the administrator his or her rateable part of 
 that debt or debts; and of the costs of suit 
 and charges of the administrator by reason 
 of such debt, out of the part and share so as 
 aforesaid allotted to him or her, thereby to 
 
 726 
 
 enable the said administrator to pay and sat- 
 isfy the said debt or debts so discovered after 
 the distribution made as aforesaid. 
 
 IX. Provided always, and be it enacted by 
 the authority aforesaid. That in all cases 
 where the ordinary hath used heretofore to 
 grant administration cum testamento annexo, 
 he shall continue so to do, and the will of the 
 deceased in such testament expressed shall 
 be performed and observed in such manner 
 as it should have been if this act had never 
 been made. 
 
 (Statute No. 15.) 
 
 [See text, §§ 7, 9, 25, 26, 59, 69, 79, 85, 87, 89.] 
 
 39 Car. II. Cap. 3. 
 
 (A. D. 1676.) 
 
 An Act for Prevention of Frauds and Per- 
 juries. 
 
 For prevention of many fraudulent practi- 
 ces, which are commonly endeavom^ed to be 
 upheld by perjury and subordination of per- 
 jury; (2) be it enacted by the King's most 
 excellent Majesty, by and with the advice 
 and consent of the lords spiritual and tempo- 
 ral, and the commons, In this present parlia- 
 ment assembled, and by the authority of the 
 same. 
 
 jy_ * » * ipijat fjQjQ and after the said 
 four and twentieth day of June no action 
 shall be brought whereby to charge any ex- 
 ecutor or administrator upon any special 
 promise, to answer damages out of his own 
 estate; * ■* * (6) unless the agreement up- 
 on which such action shall be brought, or 
 some memorandum or note thereof, shall be 
 in writing, and signed by the party to be 
 charged therewith, or some other person 
 thereunto by him lawfully authorized. 
 
 V. And be it further enacted by the au- 
 thority aforesaid, That from and after the 
 said four and twentieth day of June all de- 
 vises and bequests of any lands or tenements, 
 devisable either by force of the statute of 
 wills, or by this statute, or by force of the 
 custom of Kent, or the custom of any bor- 
 ough, or any other particular custom, shall be 
 in writing, and signed by the party so devis- 
 ing the same, or by some other person in his 
 presence and by his express directions, and 
 shall be attested and subscribed in the pres- 
 ence of the said devisor by three or four cred- 
 ible witnesses, or else they shall be utterly 
 void and of none effect. 
 
 VI. And moreover, no devise in writing of 
 lands, tenements or hereditaments, nor any 
 clause thereof, shall at any time after the 
 said four and twentieth day of June be rev- 
 ocable, otherwise than by some other will or 
 codicil in writing, or other writing declaring 
 the same, or by burning, cancelling, tearing 
 
§§ 7, 9, 25. 26. 59. 69. 79, 85. 87, 89) ENGLISH STATUTES 
 
 Slat. No. 15 
 
 or obliterating the same by the testator him- 
 self, or in his presence and by his directions 
 and consent; (2) but all devises and bequests 
 or lands and tenements shall remain and con- 
 tinue in force, unUl the same be burnt, can- 
 celled, torn or obliterated by the testator or 
 h'.s directions, in manner aforesaid, or unless 
 the same be altered by some other will or 
 codicil In writing, or other writing, of the de- 
 visor, signed in the presence of tliree or four 
 witnesses, declaring the same; any former 
 law or usage to the contrary notwithstand- 
 ing. 
 
 * »•*•**♦ 
 
 IX. And be It further enacted. That all 
 grants and assignments of any trust or confi- 
 dence shall likewise be in writing, signed by 
 the party granting or assigning the same, or 
 by such last will or devise, or else shall lilie- 
 wise be utterly void and of none effect. 
 
 ******** 
 
 (3) And if any cestuy que trust hereafter 
 shall die, leaving a trust in fee-simple to de- 
 scend to his heir, there and in every such 
 case such trust shall be deemed and taken, 
 and is hereby declared to be, assets by de- 
 scent, and the heir shall be liable to and 
 chargeable with the obligation of his ances- 
 tors for and by reason of such assets, as fully 
 and amply as he might or ought to have 
 been, if the estate in law had descended to 
 him in possession in like manner as the trust 
 descended; any law, custom or usage to the 
 contrary in any wise notwithstanding. 
 
 XI. Provided always. That no heir that 
 "?hall become chargeable by reason of any es- 
 tate or trust made assets in his hands by this 
 law, shall by reason of any kind of plea or 
 confession of the action, or suffering judg- 
 ment by nient dedire, or any other matter, be 
 chargeable to pay the condemnation out of 
 his own estate; (2) but execution shall be 
 sued of the whole estate so made assets in 
 his hands by descent, in whose hands soever 
 it shall come after the writ purchased, in the 
 same manner as it is to be at and by the com- 
 mon law, where the heir at law pleading a 
 true plea, judgment is prayed against him 
 thereupon, anything in this present act con- 
 tained to the contrary notwithstanding. 
 
 XII. And for the amendment of the law in 
 the particulars following; (2) be it further 
 enacted by the authority aforesaid. That 
 from henceforth any estate pur auter vie 
 shall be devisable by a will in writing, signed 
 by the party so devising the same, or by 
 some other person in his presence and by his 
 express directions, attested and subscribed in 
 the presence of the devisor by three or more 
 witnesses; (3) and if no such devise thereof 
 be made, the same shall be chargeable in the 
 hands of the heir, if it shall come to him by 
 reason of a special occupancy as assets by 
 descent, as in case of lands in fee simple; 
 (4) and in case there be no special occupant 
 thereof, it shall go to the executors or admin- 
 istrators of the party that had the estate 
 
 ?rant, and shall be 
 
 thereof by virtue of the 
 assets in their hands. 
 
 * * * 
 
 XIX. And for prevention of fraudulent 
 practices m setting up nuncupative wills, 
 which have been the occasion of much per- 
 jury; (2) be it enacted by the authority 
 aforesaid. That from and after the aforesaid 
 four and twentieth day of June no nuncupa- 
 tive wiU shall be good, where the estate 
 thereby bequeathed shall exceed the value of 
 thirty pounds, that is not proved by the 
 oaths of three witnesses (at the least) that 
 were present at the making thereof; (3) nor 
 unless it be proved that the testator at the 
 time of pronouncing the same, did bid the 
 persons present, or some of them, bear wit- 
 ness, that such was his will, or to that effect; 
 (4) nor unless such nuncupative will were 
 made in the time of the last sickness of the 
 deceased, and in the house of his or her hab- 
 itation or dwelling, or where he or she hath 
 been resident for the space of ten days or 
 more next before the making of such will ex- 
 cept where such person was surprized or taken 
 sick, being from his own home, and died be- 
 fore he returned to the place of his or her 
 dwelling. 
 
 XX. And be it further enacted. That after 
 six months passed after the speaking of the 
 pretended testamentary words, no testimony 
 shall be received to prove any will nuncupa- 
 tive, except the said testimony, or the sub- 
 stance thereof, were committed to writing 
 within six days after the making of the said ' 
 will. 
 
 XXI. And be it further enacted. That no 
 letters testamentary or probate of any nun- 
 cupative will shall pass the seal of any court, 
 till fourteen days at the least after the de- 
 cease of the testator be fully expired; (2) nor 
 shall any nuncupative will be at any time re- 
 ceived to be proved, unless process have first 
 issued to call in the widow, or next of kin- 
 dred to the deceased, to the end they may 
 contest the same, if they please. 
 
 XXII. And be it further enacted. That no 
 will in writing concerning any goods or chat- 
 tels, or personal estate, shall be repealed, nor 
 shall any clause, devise, or bequest therein, 
 be altered or changed by any words, or will 
 by word of mouth only, except the same be 
 in the life of the testator committed to writ- 
 ing, and after the writing thereof read unto 
 the testator, and allowed by him, and proved 
 to be so done by three witnesses at the least. 
 
 XXIII. Provided always. That notwith- 
 standing this act, any soldfer being in actual 
 military service, or any mariner or seaman 
 being at sea, may dispose of his moveables, 
 wages and personal estate, as he or they 
 might have done before the making of this? 
 act. 
 
 XXIV. And it is hereby declared, Thai 
 nothing in this act shall extend to alter or 
 change the jurisdiction or right of probate of 
 wills concerning personal estates, but that 
 
 727 
 
stats. Nos.. [6-17 
 
 ENGLISH STATUTES. 
 
 (§§ 102, 167 
 
 the prerosative court of the archbishop of 
 Canterbui'y, and other ecclesiastical courts, 
 and other courts having right to the probate 
 of such wills, shall retain the same right and 
 power as they had before, in every respect; 
 subject nevertheless to the rules and direc- 
 tions of this act. 
 
 XXV. And for the explaining one act of 
 this present parliament, intituled, An act for 
 the better settling of intestates estates; (2) be 
 it declared by the authority aforesaid, That 
 neitlier the said act, nor any thing therein 
 contained, shall be construed to extend to the 
 estates of feme coverts that shall die intes- 
 tate, but that their husbands may demand 
 and have administration of their rights, cred- 
 its and other ijersonal estates, and recover 
 and enjoy the same, as they might have done 
 before the maiiing of the said act.' 
 
 (Statute No. 16.) 
 [See text, § 102.] 
 
 30 Car. II. Cap. 7. 
 
 (A. D. 1677.) 
 
 An Act to Enable Creditors to Recover Their 
 Debts of the Executors and Administra- 
 tors of Executors in Their Own Wrong. 
 
 Whereas the executors and administrators 
 of such persons who have possessed them- 
 selves of considerable personal estates of oth- 
 er dead persons, and converted the same to 
 their own use, have no remedy by the rules 
 of the common law, as it now stands, to pay 
 the debts of those persons whose estate hath 
 been so converted by their testator or intes- 
 tate, which hath been found very mischie- 
 vious, and many creditors defeated of their 
 just debts, although their debtors left behind 
 them sufficient to satisfy the same, with a 
 great overplus: 
 
 II. For remedy whereof, be it enacted by 
 the King's most excellent majesty, by and 
 with the advice and consent of the lords spir- 
 itual and temporal, and the commons, in this 
 present parliament assembled, and by the au- 
 thority thereof, That all and every the exec- 
 utors and administrators of any person or 
 persons, who as executor or executors in his 
 or their own wrong, or administrators, shall 
 from and after the first day of August next 
 ensuing waste or convert any goods, chattels, 
 estate or assets of any person deceased, to 
 their own use, shall be liable and chargeable 
 in the same manner as their testator or intes- 
 tate would have been if they had been living. 
 (2) This act to continue in force for three 
 years, and from thence to the end of the next 
 session of parliament, and no longer.'' 
 
 ' Made perpetual by 1 Jac. II. c. 17, § 5. 
 ' Made perpetual and enlarged by 4 & 5 W. 
 & M. c. 24, § 12. 
 
 728 
 
 (Statute No. 17.) 
 
 [See text, § 167.] 
 
 1 Jac. II. Cap. 17. 
 
 (A. D. 1685.) 
 
 An Act for lieviring and Continuance of 
 Seeenil Acts of Parliament Therein Men- 
 tioned. 
 
 V. And be it enacted by the authority 
 aforesaid. That one other act made in the 
 seventeenth year of his said late Majesty's 
 reign, intituled, An act for avoiding un- 
 necessary suits and delays: and also one 
 other act made In the two and twentieth and 
 three and twentieth years of his late Maj- 
 esty's reign, intituled. An act for the better 
 settling intestates estates, (which said latter 
 act is explained by a clause in one other act 
 made in the nine and twentieth year of his 
 said late Majesty's reign, intituled. An act 
 for prevention of frauds and perjuries) both 
 which said acts, with the said clause, are 
 continued by one other act made in the thir- 
 tieth year of his said late Majesty's reign, 
 intituled. An act for reviving both the said 
 former acts. All which said acts and clauses 
 shall be in force, and is hereby made per- 
 petual. 
 
 VI. Provided always, and it hereby further 
 enacted. That no administrator shall, from 
 the four and twentieth day of July next, be 
 cited to any the courts in the said last act 
 mentioned, to render an account of the per- 
 sonal estate of his intestate (otherwise than 
 by an inventory or inventories thereof) unless 
 it be at the instance or prosecution of some 
 person or persons in behalf of a minor, or 
 having a demand out of such personal estate 
 as a creditor or next of Mn, nor be com- 
 pellable to account before any of the ordina- 
 ries or judges by the said last act impowered 
 and appointed to take the same, otherwise 
 than as is aforesaid; anything in the said 
 last acts contained to the contrary notwith- 
 standing. 
 
 VII. Provided also, and it is fm'ther en- 
 acted by the authority aforesaid, That if 
 after the death of a father, any of his chil- 
 dren shall die intestate without wife or chil- 
 dren, in the life-time of the mother, every 
 brother and sister, and the representatives 
 of them, shall have an equal share with her; 
 anything in the last mentioned acts to the 
 contrary notwithstanding. 
 
 VIII. Provided, and is hereby, for the de- 
 termining some doubts arising upon the acts 
 aforementioned, for the better settling in- 
 testates' estates, enacted and declared. That 
 the clause therein, by which it is provided, 
 that that act, or anything therein contained, 
 should not any ways prejudice or hinder the 
 customs observed within the city of London, 
 and province of York, was never intended, 
 nor shall be taken or construed to extend, to 
 
§ 167) 
 
 ENGLISH STATUTE; 
 
 Stats. Nos. 17-18 
 
 such part of any intestate's estate, as any 
 administrator, by virtue only of being ad- 
 ministrator, by pretence or reason of any 
 custom, may claim to have, to exempt the 
 same from disti-ibution, but that such part 
 in the hands of such administrator shall be 
 subject to distribution as in other cases 
 within the said act. 
 
 (Statute No. 18.) 
 3 & 4 W. «& M. Cap. 14. 
 
 (A. D. 1691.) 
 
 An Act for Relief of Creditors against 
 Fraudulent Devises. 
 
 Whereas it is not reasonable or just, that 
 l)y the practice or contrivance of any debtors 
 their creditors should be defrauded of their 
 just debts; and nevertheless it hath often so 
 happened that vchere several persons having 
 by bonds or other specialties bound them- 
 selves and theii- heirs, and have afterwards 
 •died seized in fee-simple of and in manors, 
 messuages, lands, tenements, and heredita- 
 ments, or had power or authority to dispose 
 of or charge the same by their wills or testa- 
 ments, have to the defrauding of such their 
 creditors, by then- last wills or testaments 
 devised the same, or disposed thereof in such 
 manner as such creditors have lost their said 
 debts: For remedying of which, and for the 
 maintenance of just and upright dealing, 
 
 II. Be it enacted and declared by the 
 King's and Queen's most excellent majesties, 
 ■by and with the advice and consent of the 
 lords spiritual and temporal, and commons, 
 in this present parliament assembled, and by 
 authority of the same. That all wills and 
 testaments, limitations, dispositions, or ap- 
 pointments, of or concerning any manors, 
 messuages, lands, tenements, or heredita- 
 ments, or of any rent, profit, term, or charge 
 out of the same, whereof any person or per- 
 sons, 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 
 wiUs or testaments, to be made after the 
 five and twentieth day of March, in the year 
 of our Lord God one thousand six hundred 
 ninety and two, shall be deemed and taken 
 (only as against such creditor or creditors as 
 aforesaid, his, her, and their heirs, succes- 
 sors, executors, administrators, and assigns, 
 and' every of them) to be fraudulent, and 
 clearly, absolutely, and utterly void, frus- 
 trate, and of none efCect; any pretence, col- 
 our feigned or presumed consideration or 
 any other matter or thing to the contrary 
 notwithstanding. 
 
 III. And for the means that such creditors 
 may be enabled to recover their said debts, 
 t,e it further enacted by the authority afore- 
 
 said, That in the cases before mentioned, 
 every such creditor shall and may have and 
 maintain his, her, and their action and actions 
 of debt, upon his, her, and their said bonds 
 and specialties, against the heir and heirs at 
 law of such obligor or obligors, and such 
 devisee or devisees, jointly by virtue of this 
 act; and such devisee or devisees shall be 
 liable and chargeable for a false plea by him 
 or them pleaded, in the same manner as any 
 heir should have been for any false plea by 
 him pleaded, or for not confessing the lands 
 or tenements to him descended. 
 
 IV. Provided always, and be it enacted by 
 the authority aforesaid, That where there 
 hath been or shall be any limitation or ap- 
 pointment, devise or disposition, of or con- 
 cerning any manors, messuages, lands, tene- 
 ments, or hereditaments for the raising or 
 payment of any real and just debt or debts, 
 or any portion or portions, sum or sums of 
 money, for any child or children of any per- 
 son, other than the heir at law, according to, 
 or in pm'suance of, any mai-riage contract or 
 agreement in writing bona fide made before 
 siSch marriage, the same and every of them 
 shall be in full force; and the same manors, 
 messuages, lands, tenements, and heredita- 
 ments, shall and may be holden and enjoyed 
 by every such person or persons, his, her, 
 and their heirs, executors, administrators, 
 and assigns, for whom the said limitation, 
 appointment, devise, or disposition was 
 made, and by his, her, and their trustee or 
 trustees, his, lier, and their heirs, executors, 
 administi'ators, and assigns, for such estate 
 or interest as shall be so limited or appointed, 
 devised or disposed, until such debt or debts, 
 portion or portions, shall be raised, paid, and 
 satisfied; any thing in this act contained to 
 the contrary notwithstanding. 
 
 V. And whereas several persons being 
 heirs at law, to avoid the payment of such 
 just debts, as in regard of the lands, tene- 
 ments, and hereditaments descending to 
 them they have by law been liable to pay, 
 have sold, aliened, and made over such lands, 
 tenements, or hereditaments, before any pro- 
 cess was or could be issued out against them; 
 be it further enacted by the authority afore- 
 said. That in all cases where any heir at 
 law shall be liable to pay the debt of his 
 ancestor in regard of any lands, tenements 
 or hereditaments descending to him, and 
 shall sell, aliene, or make over the same, 
 before any action brought, or process sued 
 out against him, that such heir at law shall 
 be answerable for such debt or debts, in an 
 action or actions of debt, to the value of the 
 said land so by him sold, aliened, or made 
 over; in which cases all creditors shall be 
 preferred, as in actions against executors 
 and administrators, and such executions shall 
 be taken out upon any judgment or judg- 
 ments so obtained against such heir, to the 
 value of the said land, as if the same were 
 his own proper debt or debts; saving that 
 
 729 
 
stats. Nos. 18-21 
 
 ENGLISH STATUTES. 
 
 (§§ 9. 25, 70 
 
 the lands, tenements and hereditaments bona 
 fide aliened before the action brought, shall 
 not be liable to such execution. 
 
 VI. Provided always, and be it further en- 
 acted by the authority aforesaid. That where 
 any action of debt upon any specialty is 
 brought against any heir, he may plead riens 
 per descent, at the time of the original writ 
 brought, or the biU filed against him; any- 
 thing herein contained to the contrary not- 
 withstanding; and the plaintiff in such 
 action may reply, that he had lands, tene- 
 ments, or hereditaments, from his ancestor 
 before the original writ brought, or bill filed; 
 and if upon issue joined thereupon it be 
 found for the plaintiff, the jury shall enquire 
 of the value of the lands, tenements, or her- 
 editaments so descended, and thereupon judg- 
 ment shall be given, and execution shaU be 
 awarded as aforesaid; but if judgment be 
 given against such heir by confession of the 
 action, without confessing the assets de- 
 scended, or upon demm-rer, or nihil dicit, it 
 shall be for the debt and damages, without 
 any writ to enquire of the lands, tenements, 
 or hereditaments so descended. ■• 
 
 VII. Provided also, and be it further en- 
 acted. That aU and^ every devisee and devi- 
 sees, made liable by this act, shall be liable 
 and chargeable in the same manner as the 
 heir at law by force of this act, notwith- 
 standing the lands, tenements, and heredita- 
 ments, to him or them devised, shall be 
 aliened before the action brought. Provided 
 always. That this act shall be in force for 
 three years, and to the end of the next ses- 
 sion of parliament after the expiration of the 
 said three years, and no longer." 
 
 (Statute No. 19.) 
 
 [See text, § 70.] 
 
 4 Anne, Cap. 16. 
 
 (A. D. 170.5.) 
 
 XIV. And whereas by an act of parliament 
 made in the twenty ninth year of King 
 Charles the Second, intituled. An, act for pre- 
 vention of frauds and perjuries, it is enacted. 
 That no nuncupative will shall be good, where 
 the estate thereby bequeathed shall exceed 
 the value of thirty pounds, that Is not proved 
 by the oaths of three witnesses, at the least, 
 that were present at the mating thereof; it 
 is hereby declared. That all such witnesses 
 as are and ought to be allowed to be good 
 witnesses upon trials at law, by the laws and 
 customs of this realm, shall be deemed good 
 witnesses to prove any nuncupative will, or 
 any thing relating thereunto. 
 
 Jlade perpetual by 6 & 7 Wm. III. c. 14. 
 
 730 
 
 (Statute No. 20.) 
 
 [See text, § 9.] 
 
 14 Geo. II. Cap. SO. 
 
 (A. D. 1741.) 
 
 An Act to Amend the Law Concerning Com' 
 man Recoveries, and to Explain and 
 Amend An Act Made in the Twenty Ninth 
 iTear of the Reign of King Charlen the 
 Second, Intituled, An Act for Prevention 
 of Frauds and Perjuries, so Far as the 
 Same Relates to Estates pur Auter Vie. 
 
 IX. And whereas, by an act made in the twen- 
 ty ninth year of the reign of King Charles the 
 Secoiid, intituled, An act for prevention of 
 frauds and perjm-ies, amongst other things, 
 it is enacted. That estates pur auter vie, 
 whereof no devise should be made, should, in 
 case there should be no special occupant 
 thereof, go to the executors or administra- 
 tors of the party that ha;d the estate thereof 
 by virtue of the grant, and should be assets 
 in their hands: and whereas doubts have 
 arisen, where no devise has been made of 
 such estates, to whom the surplus of such es- 
 tates, after the debts of such deceased owners 
 thereof are fully satisfied, shall belong; be 
 it enacted by the authority aforesaid, That 
 such estates pur auter vie, in case there be 
 no special occupant thereof, of which no de- 
 vise shall have been made according to the 
 said act for prevention of frauds and perju- 
 ries, or so much thereof as shaU not have 
 been so devised, shall go, be applied, and dis- 
 tributed, in the same manner as the personal 
 estate of the testator or intestate. 
 
 (Statute No. 21.) 
 
 [See text, §§ 25, 70.] 
 
 25 Geo. II. Cap. 6. 
 
 (A. D. 1752.) 
 
 An Act for Avoiding and Putting an End 
 to Certain Doubts and Questions Relating 
 to the Attestation of Wills and Codicils 
 Concerning Real Estates in That Part of 
 Great Britain Called Enyland, and in 
 His Majesty's Colonies and Plantations 
 in America. 
 
 Whereas by an act made in the twenty 
 ninth year of the reign of his late majesty 
 King Charles the Second, intituled, An act 
 for prevention of frauds and i»er juries; it is 
 amongst other things enacted. That from and 
 after the twenty fourth day of June in the 
 year of our Lord one thousand six hundred 
 and seventy seven, all devises and bequests 
 of any lands or tenements deviseable, either 
 by force of the statute of wills, or by that 
 statute, or by force of the custom of Kent, or 
 
g§ ::•:, 70) 
 
 ENGLISH STATUTES. 
 
 Stilt, No. 21 
 
 the CTistom of any borough, or any other par- 
 ticular custom, shall be in writing, and signed 
 by the party so devising the same, or by some 
 other person In his presence, and by his ex- 
 press direction; and shall be attested and 
 subscribed in the presence of the said devisor, 
 by three or four credible witnesses, or else 
 they shall be titterly void and of none effect, 
 which hath been found to be a wise and good 
 provision: but whereas doubts have arisen 
 who are to be deemed legal witnesses within 
 the intent of the said act; therefore, for avoid- 
 ing the same, be it enacted by the King's most 
 excellent majesty, by and with the advice 
 and consent of the lords spiritual and tem- 
 poral and commons in this present parliament 
 assembled, and by the authority of the same, 
 That if any person shall attest the execution 
 of any will or codicil which shall be made 
 after the twenty fom-th day of June in the 
 year of our Lord one thousand seven hundred 
 and fifty two, to whom any beneficial devise, 
 legacy, estate, interest, gift or appointment of 
 or affecting any real or personal estate, other 
 than and except charges on lands, tenements 
 or hereditaments for payment of any debt or 
 debts, shall be thereby given or made, such de- 
 vise, legacy, estate, interest, gift or appoint- 
 ment, shall, so far only as concerns sucn per- 
 son attesting the execution of such will or cod- 
 icil, or any person claiming under him, be ut- 
 terly null and void; and such person shall be 
 admitted as a witness to the execution of such 
 will or codicil, within the intent of the said 
 act; notwithstanding such devise, legacy, es- 
 tate, interest, gift or appointment mentioned 
 in such will or codicil. 
 
 II. And be it fm-ther enacted by the author- 
 ity aforesaid, That in case, by any wiU or cod- 
 icil ah-eady made or hereafter to be made, 
 any lands, tenements or hereditaments are or 
 shall be charged with any debt or debts; and 
 any creditor whose debt is so charged, hath 
 attested or shaU attest the execution of such 
 will or codicil, every such creditor, notwith- 
 standing such charge, shall be admitted as a 
 witness to the execution of such will or codi- 
 cil, within the intent of the said act. 
 
 in And be it further enacted by the au- 
 thority aforesaid, That if any person hath at- 
 tested the execution of any will or codicil al- 
 ready made, or shall attest the execution of 
 any will or codicil which shall be made on or 
 before the said twenty fourth day of June m 
 the year of our Lord one thousand seven hun- 
 tod and fifty two, to whom any legacy or 
 Suest is or shall be thereby given, whether 
 charged ^Pon lands, tenements or heredita- 
 menfror not; and such person, before he 
 
 shall give his testimony concerning the exe- 
 cution of any such will or codicil, shall have 
 been paid, or have accepted or released or 
 Shan have refused to accept such legacy oi 
 hpouest upon tender made thereof; such per- 
 son shall be admitted as a witiiess to the exe- 
 cution of such will or codicil, within the in- 
 tent of the said act, notwithstanding such leg- 
 acy or bequest. 
 
 IV. Provided always, and be it fm-th:r en- 
 acted, That in case of such tender and refusal 
 as aforesaid, such person shall in no wise be 
 entitled to such legacy or bequest, but shall 
 be for ever after Avards barred therefrom; 
 and in case of such acceptanut as aforesaid, 
 such person shall retain to his own use the 
 legacy or bequest which shall have been so 
 paid, satisfied or accepted, notwithstanding 
 such will or codicil shall afterwards be ad- 
 judged or determined to be void for want of 
 due execution, or for any other cause or de- 
 fect whatsoever. 
 
 V. And be it further enacted. That in case 
 any such legatee as aforesaid, who hath at- 
 tested the execution of any will or codicil al- 
 ready made, or shall attest the execution of 
 any will or codicil which shall be made on or 
 before the said twenty fourth day of June in 
 the year of our Lord one thousand seven hun- 
 dred and fifty two, shall have died in the 
 life-time of the testator, or before he shall 
 have received or released the legacy or be- 
 quest so given to him as aforesaid, and before 
 he shall have refused to receive such legacy 
 or bequest, on tender made thereof, such leg- 
 atee shaU be deemed a legal witness to the 
 execution of such will or codicil, within the 
 intent of the said act, notwithstanding such 
 legacy or bequest. 
 
 VI. Provided always. That the credit of 
 every such witness so attesting the execution 
 of any will or codicil, in any of the cases in 
 this act before-mentioned, and all circum- 
 stances relating thereto, shall be subject to 
 the consideration and determination of the 
 court, and the jury, before whom any such 
 witness shall be examined, or his testimony 
 or attestation made use of; or of the coui-t of 
 equity, in which the testimony or attestation 
 of any such witness shall be made use of; in 
 like manner, to all intents and purposes, as 
 the credit of witnesses in all other cases ought 
 to be considered of and determined. 
 
 VII. And be it further enacted by the au- 
 thority aforesaid. That no person to whom 
 any beneficial estate, interest, gift or appoint- 
 ment shall be given or made, which is hereby 
 enacted to be null and void as aforesaid, or 
 who shaU have refused to receive any such 
 legacy or bequest, on tender made as afore- 
 said, and who shall have been examined as a 
 witness concerning the execution of such will 
 or codicil, shall, after he shaU have been so 
 examined, demand or take possession of or 
 receive any profits or benefit of or from any 
 such estate, interest, gift or appointment so 
 given or made to him, in or by any such will 
 or codicil; or demand, receive or accept from 
 any person or persons whatsoever, any such 
 legacy or bequest, or any satisfaction or com- 
 pensation for the same, in any manner or un- 
 der any colour or pretence whatsoever. 
 
 VIII Provided always, and be it enacted 
 by the authority aforesaid, That this act or 
 any thing herein contained shaU not extend 
 or be consti-ued to extend to the case of any 
 heir at law, or of any devisee in a prior will 
 
 731 
 
Stats. Nos. 21-22 
 
 ENGLISH STATUTES. 
 
 (§S 25. 70 
 
 or codicil of the same testator, executed and 
 attested according to the said recited act, or 
 any person claiming under them respectively, 
 ■who has been in quiet possession for the 
 space of two years next preceding the sixth 
 day of May in the year of our Lord one thou- 
 sand seven hundred and fifty one, as to such 
 lands, tenements and hereditaments, "wnereof 
 he has been in quiet possession as aforesaid; 
 and also that this act or any thing herein 
 contained, shall not extend or be construed to 
 extend, to any will or codicil, the validity or 
 due execution whereof hath been contested 
 in any suit in law or equity commenced by 
 the heir of such devisor, or the devisee in any 
 such prior will or codicil, for recovering the 
 lands, tenements or hereditaments mentioned 
 to be devised in any will or codicil so con- 
 tested, or any part thereof, or for obtaining 
 any other judgment or decree relative there- 
 to, on or before the said sixth day of May in 
 tbe year of our Lord one thousand seven 
 hundred and fifty one, and which has been 
 already determined in favour of such heir at 
 law, or devisee in such prior will or codicil, 
 or any person claiming under them respec- 
 tively, or which is still depending, and has 
 been prosecuted with due diligence; but the 
 validity of every such will or codicil, and the 
 competency of the witnesses thereto, shall be 
 adjudged and determined in the same man- 
 ner, to all intents and purposes, as if this act 
 had never been made; any thing herein be- 
 fore contained to the contrary thereof in any 
 wise notwithstanding. 
 
 IX. Provided always nevertheless, and it is 
 hereby declared. That no possession of any 
 heir at law, or devisee in such prior will or 
 codicil as aforesaid, or of any person claim- 
 ing under them respectively, which is con- 
 sistent with, or may be warranted by or un- 
 der any will or codicil attested according to 
 the true intent and meaning of this act, or 
 where the estate descended or might have 
 descended to such heir at law, till a future or 
 executory devise, by virtue of any wiU or 
 codicil attested according to this act, should 
 or might talie effect, shall be deemed to be a 
 possession within the intent and meaning of 
 the clause herein last before contained. 
 
 X. And whereas in some of the British col- 
 onies or plantations in America, the said act 
 of the twenty ninth year of the reign of 
 King Charles the Second, has been received 
 for law, or acts of assembly have been made, 
 whereby the attestation and subscription of 
 witnesses to devises of lands, tenements and 
 hereditaments have been required: therefore, 
 to prevent and avoid doubts which may arise 
 in the said colonies or plantations, in relation 
 to the attestation of such devises of lands, 
 tenements and hereditaments; be it enacted 
 by the authority aforesaid. That this act, and 
 every clause, matter and thing therein con- 
 tained, shall extend to such of the said colo- 
 nies and plantations, where the said act of 
 the twenty ninth year of the reign of King 
 Charles the Second, is by act of assembly 
 732 
 
 made, or by usage ijeceived as law, or where 
 by act of assembly or usage, the attestation 
 and subscription of a witness or witnesses 
 are made necessary to devises of lands, tene 
 ments or hereditaments; and shall have the 
 same force and efCect in the construction -of 
 or for the avoiding of doubts upon the said 
 acts of assembly, and laws of the said colo- 
 nies and plantations, as the same ought to 
 have in the construction of or for the avoid- 
 ing of doubts upon the said act of the twenty 
 ninth year of the reign of King Charles the 
 Second in England. 
 
 XI. Provided always. That as to cases aris- 
 ing in any of the said colonies or plantations 
 in America, no such devise, legacy or be- 
 quest as aforesaid, shall be made null and 
 void by virtue of this act, unless the will oi- 
 codicil whereby such devise, legacy or bequest 
 shall be given, shall be made after the first 
 day of March which shall be in the year of 
 our Lord one thousand seven hundred and 
 fifty three. 
 
 (Statute No. 22.) 
 40 Geo. III. Cap. 98. 
 
 (July 28, 1800.) 
 
 An Act to Restrain all Trusts and Birec- 
 tmis in Deeds or Wills, Whereby the 
 Profits or Produce of Peal or Personal 
 Estate Shall be Accumulated, and the 
 Beneficial Enjoyment Thereof Postponed 
 Beyond the Time Therein Limited. 
 
 Whereas it is expedient that all disposi- 
 tions of real or personal estates, whereby 
 the profits and produce thereof are directed 
 to be accumulated, and the beneficial enjoy- 
 ment thereof is postponed, should be made 
 subject to the restrictions herein-after con- 
 tained: may it therefore please your Maj- 
 esty that it may be enacted; and be it en- 
 acted by the King's most excellent majesty, 
 by and with the advice and consent of the 
 lords spiritual and temporal, and commons 
 in parliament assembled, and by the au- 
 thority of the same. That no person or per- 
 sons shall, after the passing of this act, by 
 any deed or deeds, surrender or surrenders, 
 will, codicil, or otherwise howsoever, settle 
 or dispose of any real or personal property, 
 so and in such manner that the rents, issues, 
 profits, or produce thereof, shall be wholly 
 or partially accumulated for any longer term 
 than the life or lives of any such grantor or 
 grantors, settler or settlers, or the term of 
 twenty-one years from the death of any such 
 grantor, settler, devisor, or testator, or dur- 
 ing 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 of 
 any person or persons who, under the uses 
 or trusts of the deed, surrender, will, or 
 
§§ 9. 26, 38, 59. 69, 70. 79, 85-87, 89, 166) ENGLISH STATUTES. 
 
 other assurances, directing such accumula- 
 tions, would, for the time being, If of full 
 age be entitled unto the rents, issues, and 
 pi-oflts, or the Interest, diTidends, or annual 
 produce, so directed to be accumulated; and 
 in every case where any accumalation 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 
 accumulated contrary to the provisions of 
 this act, go to and be received by such per- 
 son or persons as would have been entitled 
 thereto if such accumulation had not been 
 directed. 
 
 11. Provided always, and be it enacted. 
 That nothing in this act contained shall ex- 
 tend to any provision for payment of debts 
 of any grantor, settler, or devisor, or other 
 person or persons, or to any provision for 
 raising portions for any child or children of 
 any grantor, settler, or devisor, or any child 
 or children of any person talcing any Interest 
 under any such conveyance, settlement, or 
 devise, or to any direction touching the prod- 
 uce of timber or wood upon any lands or 
 tenements, but that all such provisions and 
 directions shall and may be made and given 
 as if this act had not passed. 
 
 (Statute No. 23.) 
 
 [See text, § 166.] 
 
 11 Geo. IV. & 1 Wm. IV. Cap. 40. 
 
 (July 16, 1830.) 
 
 .471 Art for Making Better Provision for the 
 Disposal of the Undisposed of Residues 
 of the Effects of Testators. 
 
 'Whereas Testators by their Wills frequent- 
 ly appoint Executors, without making any 
 express Disposition of the Residue of their 
 Personal Estate: And whereas Executors so 
 appointed become by Law entitled to the 
 whole Residue of such Personal Estate; and 
 Courts of Equity have so far followed the 
 Law as to hold such Executors to be entitled 
 to retain such Residue for their own Use, 
 unless it appears to have been their Testa- 
 tor's Intention to exclude them from the 
 beneficial Interest therein, in which Case they 
 are held to be Trustees for the Person or 
 Persons (if any) who would be entitled to 
 such Estate under the Statute of Distribu- 
 tions, if the Testator has died Intestate: And 
 whereas it is desirable that the Law should 
 be extended in that respect;' Be it therefore 
 enacted by the King's most Excellent Majes- 
 ty, by and with the Advice and Consent of 
 the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, 
 and by the Authority of the same, That when 
 any Person shall die, after the First Day of 
 September next after the passing of this 
 
 Stilts. Nos. 22-24 
 
 f;''*A^'^^!f^,^y ^'^ O'- '^er Wih, or any Codicil 
 or Codicils thereto, appointed any Person or 
 Pel sons to be his or her Executor or Execu- 
 tors, such Executor or Executors shall be 
 deemed by Com-ts of Equity to be a Trustee 
 01 Trustees for the Person or Persons (if 
 any) who would be entitled to the Estate 
 under the Statute of Distributions, in re- 
 spect of any Residue not expressly disposed 
 of, uii ess it shall appear by the Will, or any 
 Codicil thereto, the Person or Persons so ap- 
 pointed Executor or Executors was or were 
 intended to taie such Residue beneficiaUy. 
 
 II. Provided also, and be it further en- 
 acted. That nothing herein contained shall 
 aftect or prejudice any Right to which any 
 Executor, if this Act had not been passed 
 would have been entitled, in Cases where 
 there is not any Person who would be en- 
 titled to the Testator's Estate under the 
 Statute of Distl-ibutions, in respect of any 
 Residue not expressly disposed of. 
 
 III. Provided always, and be it further en- 
 acted. That nothing herein contained shall 
 extend to that Part of the United Kingdom 
 called Scotland. 
 
 (Statute No. 24.) 
 [See text, §§ 9, 26, 38, 59, 69, 70, 79, 85-87, 89.1 
 
 7 Wm. IV. & 1 Vict. Cap. 26. 
 
 (July 3, 1837.) 
 
 An Act for the Amendment of the Laws: 
 with Respect to Wilis. 
 
 Be it enacted by the Queen's most Excel- 
 lent Majesty, by and with the Advice and 
 Consent of the Lord's Spiritual and Tem- 
 poral, and Commons, in this present Parlia- 
 ment assembled, and by the Authority of 
 the same, That the Words and Expressions 
 herein-after mentioned, which in their ordi- 
 nary Signification have a more confined or 
 a different Meaning, shall in this Act, ex- 
 cept where the Nature of the Provision or 
 the Context of the Act shall exclude such 
 ConstiTiction, be interpreted as follows ; (that 
 is to say,) the Word "Will" shall extend to a 
 Testament, and to a Codicil, and to an Ap- 
 pointment by Will or by Writing in the 
 Natm-e of a Will in exercise of a Power, and 
 also to a Disposition by Will and Testament 
 or Devise of the Custody and Tuition of any 
 Child, by virtue of an Act passed in the 
 Twelfth Year of the Reign of King Charles 
 the Second, intituled An Act for taliing away 
 the Court of Wards and Liveries, and Ten- 
 ures in capite and by Knights Service, and 
 Purveyance, and for settling a Revenue upon 
 His Majesty in lieu thereof, or by virtue of 
 an Act passed in the Parliament of Ireland 
 in the Fom-teenth and Fifteenth Years of 
 the Reign of King Charles the Second, inti- 
 tuled An Act for taking away the Court of 
 Wards and Liveries, and Tenm-es in capite 
 
 733 
 
Stat. No. 24 
 
 ENGLISH STATUTES. (§§ 9, 26, 38, 59, 69, 70, 79, 85-87, 89 
 
 and by Knights Service, and to any other 
 Testamentary Disposition; and the Words 
 "Real Estate" shall extend to Manors, Ad- 
 vowsons. Messuages, Lands, Tithes, Rents, 
 and Hereditaments, whether Freehold, Cus- 
 tomary Freehold, Tenant Right, Customary 
 or Copyhold, or of any other Tenure, and 
 whether corporeal, Incorporeal, or personal, 
 and to any undivided Share thereof, and to 
 any Estate, Right, or Interest (other than a 
 Chattel Interest) therein; and the Words 
 "Personal Estate" shall extend to Leasehold 
 Estates and other Chattels Real, and also to 
 Monies, Shares of Government and other 
 Funds, Securities for Money (not being Real 
 Estates), Debts, Choses in Action, Rights, 
 Credits, Goods, and all other Property what- 
 soever which by Law devolves upon the Ex- 
 ecutor or Administrator, and to any Share 
 or Interest therein; and every Word import- 
 ing the Singular Number only shall extend 
 and be applied to several Persons or Things 
 as well as One Person or Thing; and every 
 Word importing the Masculine Gender only 
 shall extend and be applied to a Female as 
 well as a Male. 
 
 11. And be it further enacted, That an Act 
 passed in the Thirty-second Year of the 
 Reign of King Henry the Eighth, Intituled 
 The Act of WiUs, Wards, and Primer Seisins, 
 whereby a Man may devise Two Parts of 
 His Land; and also an Act passed In the 
 Thirty-fourth and Thirty-fifth Years of the 
 Reign of the said King Henry the Eighth, 
 Intituled The BUI concerning the Explanation 
 of WiUs; and also an Act passed In the 
 Parliament of Ireland, in the Tenth Year 
 of the Reign of King Charles the First, inti- 
 tuled An Act how Lands, Tenements, etc. 
 may be disposed by Will or otherwise, and 
 concerning Wards and Primer Seisins; and 
 also so much of an Act passed in the Twenty- 
 ninth Year of the Reign of King Charles 
 the. Second, intituled An Act for Prevention 
 of Frauds and Perjm-ies, and of an Act 
 passed in the Parliament of Ireland in the 
 Seventh Year of the Reign of King William 
 the Third, intituled An Act for Prevention 
 of Frauds and Perjuries, as relates to Devises 
 or Bequests of Lands or Tenements, or to 
 the Revocation or Alteration of any Devise 
 in Writing of any Lands, Tenements, or 
 Hereditaments, or any Clause thereof, or to 
 the Devise of any Estate pur autre vie, or 
 to any such Estate being Assets, or to Nun- 
 cupative Wills, or to the repeal, altering, or 
 changing of any Will In Writing concerning 
 any Goods or Chattels or Personal Estate, 
 or any Clause, Devise, or Bequest therein; 
 and also so much of an Act passed in the 
 Fom-th and Fifth Years of the Reign of 
 ■Queen Anne, intituled An Act for the Amend- 
 ment of the Law and the better Advance- 
 ment of Justice, and of an Act passed In 
 the Parliament of Ireland in the Sixth Year 
 of the Reign of Queen Anne, Intituled An 
 Act for the Amendment of the Law and the 
 better Advancement of Justice, as relates to 
 
 734 
 
 Witnesses to Nuncupative Wills; and also 
 so much of an Act passed in the Fourteenth 
 Year of the Reign of King George the Sec- 
 ond, intituled An Act to amend the Law 
 concerning Common Recoveries, and to ex- 
 plain and amend an Act made in the Twenty- 
 ninth Year of the Reign of King Charles 
 the Second, Intituled 'An Act for Prevention 
 of Frauds and Perjuries,' as relates to Es- 
 tates pur autre vie; and also an Act passed 
 in the Twenty-fifth Year of the Reign of 
 King George the Second, intituled An Act 
 for avoiding and putting an end to certain 
 Doubts and Questions relating to the At- 
 testation of Wills and Codicils concerning 
 Real Estates in that Part of Great Britain 
 called England, and in His Majesty's Col- 
 onies and Plantations in America, except 
 so far as relates to His Majesty's Colonies 
 and Plantations In America; and also an 
 Act passed in the Parliament of Ireland in 
 the same Twenty-fifth Year of the Reign of 
 King George the Second, intituled An Act for 
 the avoiding and putting an end to certain 
 Doubts and Questions relating to the At- 
 testations of Wills and Codicils concerning 
 Real Estates; and also an Act passed in the 
 Fifty-fifth Year of the Reign of King George 
 the Third, intituled An Act to remove cer- 
 tain Difficulties In the Disposition of Copy- 
 hold Estates by Will, shall be and the same 
 are hereby repealed, except so far as the 
 same Acts or any of them respectively relate 
 to any Wills or Estates pur autre vie to 
 which this Act does not extend. 
 
 III. And be It f m'ther enacted. That it shall 
 be lawful for every Person to devise, be- 
 queath, or dispose of, by his Will executed 
 in manner herein-after required, aU Real 
 Estate and all Personal Estate which he 
 shall be entitled to, either at Law or in 
 Equity, at the Time of his Death, and which 
 if not so devised, bequeathed, or disposed of 
 would devolve upon the Heir at Law, or 
 Customary Heir of him, or, if he became 
 entitled by Descent, of his Ancestor, or upon 
 his Executor or Administrator; and that the 
 Power hereby given shall extend to all Real 
 Estate of the Nature of Customary Freehold 
 or Tenant Right, or Customary or Copyhold, 
 notwithstanding that the Testator may not 
 have surrendered the same to the Use of 
 his Will, or notwithstanding that, being en- 
 titled as Heir, Devisee, or otherwise to be 
 admitted thereto, he shall not have been ad- 
 mitted thereto, or notwithstanding that the 
 same, in consequence of the Want of a Cus- 
 tom to devise or surrender to the Use of a 
 Will or otherwise, could not at Law have 
 been disposed of by Will if this Act had not 
 been made, 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 this Act, if this Act 
 had not been made; and also to Estates piu- 
 
§§ 9. 26, 38, 59,69, 70, 79, 85-87, b9) ENGLISH STATUTES. 
 
 Stat. No. 24 
 
 autre vie, whether there shall or shall not be 
 any special Occupant thereof, and whether 
 the same shall be Freehold, Customary Free- 
 hold, Tenant Right, Customary or Copyhold, 
 or of any other Tenvire, 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 Tes- 
 tator may or may not be ascertained as the 
 Person or one of the Persons in whom the 
 same respectively may become vested, and 
 whether he may be entitled thereto vinder the 
 Insti'ument by which the same respectively 
 were created or under any Disposition 
 thereof by Deed or Will; and also to all 
 Rights of Entry for Conditions brolien, and 
 other Rights of Entry; and also to such of 
 the same Estates, Interests, and Rights re- 
 spectively, and other Real and Personal Es- 
 tate, as the Testator may be entitled to at the 
 Time of his Death, notwithstanding that he 
 may become entitled to the same subse- 
 quently to the Execution of his Will. 
 ******** 
 
 VI. And be it fiu-ther enacted. That if no 
 Disposition by WiU shall be made of any 
 Estate pur autre vie of a Freehold Nature, 
 the same shall be chargeable in the Hands 
 of the Heir, if it shall come to him by reason 
 of special Occupancy, as Assets by Descent, 
 as in the Case of Freehold Land in Fee 
 Simple; and in case there shall be no special 
 Ocetipant of any Estate pur autre vie, 
 whether Freehold or Customary Freehold, 
 Tenant Right, Customary or Copyhold, or of 
 any other Tenure, and whether a corporeal 
 or incorporeal Hereditament, it shall go to 
 the Executor or Administrator of the Party 
 that had the Estate thereof by virtue of the 
 Grant; and if the same shaU come to 
 the Executor or Administi-ator either by 
 reason of a special Occupancy or by virtue 
 of this Act, it shall be Assets in his Hands, 
 and shall go and be applied and distributed 
 m the same Manner as the Personal Estate 
 of the Testator or Intestate. 
 
 VII. And be it further enacted. That no 
 Will made by any Person under the Age of 
 Twenty-one Years shall be valid. 
 
 VIII Provided also, and be it fm-ther en- 
 acted, That no Will made by any Married 
 Woman shall be valid, except such a Will as 
 might have been made by a Married Woman 
 before the passing of this Act. 
 
 IX. And be it further enacted. That no 
 WUl shall be valid unless it shall be m Writ- 
 ing and executed in manner herein-aftei 
 mentioned; (that is to say.) it shall be signed 
 Tt The Foot or End thereof by the Testator 
 or by some other Person in his Presence and 
 by his Direction; and such Signature shall 
 be made or acknowledged by the Testator m 
 the Presence of Two or more Witnesses pres- 
 ent at the same Time, and .f ^h ™esses 
 shall attest and shall subscribe the Will in 
 the Presence of the Testator, taut no Form of 
 Attestation shall be necessary. 
 
 X. And be it further enacted. That no Ap- 
 pointment made by Will, in exercise of any 
 Power, shall be valid, unless the same be 
 executed in manner herein-before required; 
 and every Will executed in manner herein- 
 before recLuh'ed shall, so far as respects the 
 Execution and Attestation thereof, be a valid 
 Execution of a Power of Appointment by 
 Will, notwithstanding it shall have been ex- 
 pressly required that a Will made in exercise 
 of such Power should be executed with some 
 additional or other Form of Execution or 
 Solemnity. 
 
 XI. Provided always, and be it further en- 
 acted, That any Soldier being in actual Mil- 
 itary Service, or any Mariner or Seaman 
 being at Sea, may dispose of his Personal 
 Estate as he might have done before the 
 malting of this Act. 
 
 ******** 
 
 XIII. And be it further enacted, That 
 every Will executed in manner herein-before 
 required shall be valid without any other 
 Publication thereof. 
 
 XIV. And be it fm-ther enacted. That if 
 any Person who shall attest the Execution 
 of a Will shall at the Time of the Execution 
 thereof or at any Time afterwards be incom- 
 petent to be admitted a Witness to prove 
 the Execution thereof, such Will shall not on 
 that Account be invalid. 
 
 XV. And be it further enacted, That if any 
 Person shall attest the Execution of any Will 
 to whom or to whose Wife or Husband any 
 beneficial Devise, Legacy, Estate, Interest, 
 Gift, or Appointment, of or affecting any 
 Real or Personal Estate (other than and ex- 
 cept Charges and Directions for the Pay- 
 ment of any Debt or Debts), shall be thereby 
 given or made, such Devise, Legacy, Estate, 
 Interest, Gift, or Appointment shall, so far 
 only as concerns such Person attesting the 
 Execution of such Will, or the Wife or Hus- 
 band of such Person, or any Person claiming 
 under such Person or Wife or Husband, be 
 utterly null and void, and such Person so at- 
 testing shall be admitted as a Witness to 
 prove the Execution of such WiU, or to prove 
 the Validity or Invalidity thereof, notwith- 
 standing such Devise, Legacy, Estate, Inter- 
 est, Gift, or Appointment mentioned in such 
 
 Will. 
 
 XVI And be it fm'ther enacted, That in 
 case by any WUl any Real or Personal Es- 
 tate shall be charged with any Debt or 
 Debts, and any Creditor, or the Wife or Hus- 
 band of any Creditor, whose Debt is so 
 charged, shall attest the Execution of such 
 WiU such Creditor notwithstanding such 
 Charge shaU be admitted a Witness to prove 
 the Execution of such WiU, or to prove the 
 Validity or Invalidity thereof. „ , „„ 
 
 XVII And be it further enacted. That no 
 Person shall, on account of his being an Ex- 
 ecutor of a Will, be incompetent to be ad- 
 mitted a Witness to prove the Execution of 
 such WiU, or a Witness to prove the Valid- 
 ity or Invalidity thereof. 
 
 735 
 
St 
 
 ?fos. 24-25 
 
 ENGLISH STATUTES. 
 
 (§ 137 
 
 XVIII. And be it further enacted, That 
 every Will made by a Man or Woman shall 
 be revoked by his or her Marriage (except a 
 Will made in exercise of a Power of Appoint- 
 ment, when the Real or Personal Estate 
 thereby appointed would not in default of 
 such Appointment pass to his or her Heir, 
 Customary Heir, Executor, or Administrator, 
 or the Person entitled as his or her next of 
 Kin, under the Statute of Distributions). 
 
 XIX. And be it further enacted, That no 
 Will shall be revoked by any Presumption 
 of an Intention on the Ground of an Altera- 
 tion in Circumstances. 
 
 XX. And be it further enacted. That no 
 Will or Codicil, or any Part thereof, shall be 
 revoked otherwise than as aforesaid, or by 
 another Will or Codicil executed iu manner 
 herein-before required, or by some Writing 
 declaring an Intention to revoke the same, 
 and executed in the ilanner in which a Will 
 is herein-before required to be executed, or 
 by the burning, tearing, or otherwise desti'oy- 
 ing the same by the Testator, or by some 
 Person in his Presence and by his Direction, 
 with the Intention of revoking the same. 
 
 XXI. And be it further enacted, That no 
 Obliteration, Interhneation, or other Altera- 
 tion made in any Will after the Execution 
 thereof shall be valid or have any Effect, 
 except so far as the Words or Effect of the 
 Will before such Alteration shall not be ap- 
 parent, imless such Alteration shall be exe- 
 cuted in like Manner as herein-before is re- 
 quired for the Execution of the Will; but 
 the Will, with such Alteration as Part there- 
 of, shall be deemed to be duly executed if 
 the Signature of the Testator and the Sub- 
 scription of the Witnesses be made in the 
 Margin or on some other Part of the Will 
 opposite or near to such Alteration, or at 
 the Foot or End of or opposite to a Memoran- 
 dum referring to such Alteration, and writ- 
 ten at the End or some other Part of the 
 Will. 
 
 XXII. And be it further enacted, That no 
 Will or Codicil, on any Part thereof, which 
 shall be in any Manner revoked, shall be 
 revived otherwise than by the Re-execution 
 tliereof, or by a Codicil executed in manner 
 herein-before required, and showing an In- 
 tention to revive the same; and when any 
 Will or Codicil which shall be iDartly revok- 
 ed, and afterwards wholly revoked, shall be 
 revived, such Revival shall not extend to 
 so much thereof as shall have been revoked 
 before the Revocation of the whole thereof, 
 unless an Intention to the contrary shall be 
 shown. 
 
 XXIII. And be iffurther enacted. That no 
 Conveyance or other Act made or done sub- 
 sequently to the Execution of a Will of or 
 relating to any Real or Personal Estate there- 
 in comprised, except an Act by which such 
 Will shall be revoked as aforesaid, shall pre- 
 vent the Operation of the Will with respect 
 to such Estate or Interest in such Real or 
 Personal Estate as the Testator shaE have 
 
 736 
 
 Power to dispose of by Will at the Time of 
 his Death. 
 
 XXIV. And be it further enacted. That 
 every Will shall be construed, with refer- 
 ence to the Real Estate and Personal Estate 
 comprised in it, to speak and take effect as 
 if it had been executed immediately before 
 the Death of the Testator, unless a contrary 
 Intention shall appear by the Will. 
 
 XXVIII. And be it further enacted, That 
 where any Real Estate shall be devised to 
 any Person without any Words of Limita- 
 tion, 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, un- 
 less a contrary Intention shall appear by the 
 
 Will. 
 
 ******** 
 
 (Statute No. 25.) 
 
 [See text, § 187.] 
 
 9 & 10 Vict. Cap. 93, 
 
 (August 26, 1846.) 
 
 An Ant for Compenaating the Families of 
 Persons Killed by Accidents. 
 
 'Whereas no Action at Law is now main- 
 tainable against a Person who by his wrong- 
 ful Act, Neglect, or Default may have caused 
 the Death of another Person, and it is often- 
 times right and expedient that the Wrongdo- 
 er in such Case should be answerable in 
 Damages for the Injm-y so caused by him:' 
 Be it therefore enacted by the Queen's most 
 Excellent Majesty, by and with the Advice 
 and Consent of the Lords Spiritual and Tem- 
 poral, and Commons, in this present Parlia- 
 ment assembled, and by the Authority of the 
 same. That whensoever the Death of a Per- 
 son shall be caused by wrongful Act, Neglect, 
 or Default, and the Act, Neglect, or Default 
 is such as would (if Death had not ensued) 
 have entitled the Party injm-ed to maintain 
 an Action and recover Damages in respect 
 thereof, then and in every such Case the Per- 
 son who would have been liable of Death had 
 not ensued shall be liable to an Action for 
 Damages, notwithstanding the Death of the 
 Person injured, and although the Death shall 
 have been caused under such Circumstances 
 as amount in Law to Felony. 
 
 II. And be it enacted. That every such Ac- 
 tion shall be for the Benefit of the Wife, Hus- 
 band, Parent, and Child of the Person whose 
 Death shall have been so caused, and shall 
 be brought by and in the Name of the Execu- 
 tor or Administrator of the Person deceased; 
 and in evei-y such Action the Jury may give 
 such Damages as they may think propor- 
 tioned to the Injury resulting from such 
 Death to the Parties respectively for whom 
 and for whose Benefit such Action shall be 
 
§ 137) 
 
 ENGLISH S TATUTES. 
 
 Slats. Nos. 25-26 
 
 brought; and the Amount so recovered, after 
 deducting the Costs not recovered from the 
 Defendant, shall be divided amongst the be- 
 fore-mentioned Parties in such Shares as the 
 Jury by their "Verdict shall find and direct 
 
 III. Provided always, and be it enacted, 
 That not more than One Action shall He for 
 and in respect of the same Subject Matter of 
 Complaint; and that every such Action shall 
 be commenced within Twelve Calendar 
 Months after the Death of such deceased 
 Person. 
 
 (Statute No. 26.) 
 15 & 16 Vict; Cap, 24. 
 
 (June 17, 1852.) 
 
 An Act for the Amendment of an Act Passed 
 in the First Tear of the Reign of Her 
 Majesty Queen Victoria, Intituled An Act 
 for the Amendment of the Laws with Re- 
 spect to Wills. 
 
 ■Whereas the Laws with respect to the Ex- 
 ecution of Wills require further Amendment:' 
 Be it therefore enacted by the Queen's most 
 Excellent Majesty, by and with the Advice 
 and Consent of the Lords Spiritual and Tem- 
 poral, and Commons, in this present Parlia- 
 ment assembled, and by the Authority of the 
 same (as follows) : , 
 
 I. Where by an Act passed in the First 
 Year of the Reign of Her Majesty Queen Vic- 
 toria, intituled An Act for the Amendment of 
 the laws with respect to Wills, it is enacted, 
 liiat no Will shall be valid unless it shall be 
 signed at the Foot or End thereof by the Tes- 
 tator, or by some other Person in his Pres- 
 ence, and by his Direction : Every Will shall, 
 so far only as regards the Position of the Sig- 
 nature of the Testator, or of the Person sign- 
 ing for him as aforesaid, be deemed to be 
 valid within the said Enactnient, as explain- 
 ed by this Act, if the Signature shall be so 
 placed at or after, or following, or under, or 
 beside, or opposite to the End of the Will, 
 that it shall be apparent on the Face of the 
 Will that the Testator intended to give Effect 
 by such his Signature to the Writing signed 
 as his Will, and that no such Will shall be 
 affected by the Circumstance that the Signa- 
 ture shall not follow or be immediately after 
 the Foot or End of the Will, or by the Cir- 
 
 ABB. WILLS — 47 
 
 cumstance that a blanlj Space shall intervene 
 between the concluding Word of the Will and 
 the Signature, or by the Circumstance that 
 the Signature shall be placed among the 
 Words of the Testimonium Clause or of the 
 Clause of Attestation, or shall follow or be 
 after or under the Clause of Attestation, ei- 
 ther with or without a blanli; Space interven- 
 ing, or shall follow or be after, or under, or 
 beside the Names or One of the Names of 'the 
 subscribing Witnesses, or by the Circum- 
 stance that the Signature shall be on a Side' 
 or Page or other Portion of the Paper or Pa- 
 pers containing the Will whereon no Clause 
 or Paragraph or disposing Part of the Will 
 shall be written above the Signature, or by 
 the Circumstance that there shall appear to 
 be sufficient Space on or at the Bottom of the 
 preceding Side or Page or other Portion of 
 the same Paper on which the Will is written 
 to contain the Signature; and the Enumera- 
 tion of the above Circumstances shall not re- 
 strict the Generality of the above Enactment; 
 but no Signature imder 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. 
 
 II. The Provisions of this Act shall extend 
 and be applied to every WiU already made, 
 where Administration or Probate has not al- 
 ready been granted or ordered by a Court of 
 competent Jmisdiction in consequence of the 
 defective Execution of such Will, or where 
 the Property, not being within the Jurisdic- 
 tion of the Ecclesiastical Courts, has not been 
 possessed or enjoyed by some Person or Per- 
 sons claiming to be entitled thereto in conse- 
 quence of the defective Execution of such 
 Will, or the Right thereto shall not have been 
 decided to be in some other Person or Per- 
 sons than the Persons claiming under the 
 Will, by a Court of competent Jurisdiction, in 
 consequence of the defective Execution of 
 such Will. 
 
 III. The Word "Will" shall in the Construc- 
 tion of this Act be interpreted in like Manner 
 as the same is directed to be interpreted un- 
 der the Provisions in this Behalf contained in 
 the said Act of the First Year of the Reign of 
 Her Majesty Queen Victoria. 
 
 IV. This Act may be cited as "The Wills 
 Act Amendment Act, 1852." 
 
 737 
 
INDEX. 
 
 ADB.WILLS. (7S9)« 
 
INDEX. 
 
 [the numbers refer to the pages.] 
 
 A. 
 Accounting, 101, 656, 660. 
 
 Acknowledging Will, 48, 290, 297. 
 
 Actio Personalis Moritur cum Persona, 91, 591, 593. 
 
 Ademption, 
 
 see "Legacy." 
 
 Adopted Child as Heir, 8, 123. 
 
 Adoption, 
 
 its relation to early theories of will making, 18, 19. 
 
 Advancements, 10, 138. 
 of. "Ademption," 615. 
 
 Administration, 
 
 early history of, 377, 379. 
 
 domiciliary and foreign, 378, 391, 397. 
 
 donationes causa mortis not subject to, 12, 175. 
 
 law by which estates are administered, 60, 395-405, 425. 
 
 title by, 59. 
 
 who entitled to, 68-74. 
 
 see "Administrator;" "Executor." 
 
 Administrator, 
 
 authority of, limited to jurisdiction of court appointing, 391. 
 
 duties of, see "Duties of Personal Representative." 
 
 effect of appointment on acts before appointment, 421. 
 
 estate of, see "Estate of Personal Representative." 
 
 foreign administrator, 391. 
 
 liability of, for his own acts, 102-104, 418, 419, 500, 577, 662, 685. 
 
 for acts of co-administrator, 102-104, 501, 661, 664, 668, 670, 683. 
 renunciation of office by, 74, 444. 
 who entitled to be, 59, 68-74, 111, 377, 381, 427-438. 
 
 corporations, 423. 
 
 husband or wife, 41, 42, 74. 
 
 infants, 68. 
 
 rules as to by Blackstone, 71. 
 Chancellor Kent, 72. 
 Mr. Williams, 73, 427-438. 
 
 when the court has discretion, 74, 439. 
 
 when the statute prescribes, 74, 439. 
 
 ABB. WILLS. i"^^^ 
 
742 INDEX. 
 
 [The numbers refer to pages.] 
 
 After- Acquired Lands, 
 
 devise of, 34, 38. 
 
 effect of republication of will on, 373. 
 
 Ambiguous Writings, 
 
 whether wills or not, 39, 185, 187. 
 
 Animus Testandi, 46, 270. 
 
 in nuncupative wills, 46, 274. 
 
 Apportionment, 85, 539. 
 
 Arbitration, 
 
 submission to, by personal representative, 92, 598. 
 of. "Legacy" (compromising). 
 
 Assets, 
 
 as affecting jurisdiction, 60, 382. 
 . equitable, 97, 628. 
 locality of, 60, 68, 391, 393. 
 marshalling, 97, 631, 635.. 
 
 Attestation of Will, 
 
 see "Witnessing Will." 
 
 B. 
 
 Bona Notabilia, 68. 
 
 Bond of Personal Representative, 80, 413, 498, 500, 501. 
 
 C. 
 
 Capacity, Testamentary, 
 
 aged persons, 40, 44, 240. 
 
 aliens, 41, 44. 
 
 blind, 41, 44, 331. 
 
 criminals, 41, 42, 44. 
 
 deaf and dumb, 41, 44, 245. 
 
 declarations of testator as evidence of capacity, 473. 
 
 drunkards, 40, 44, 236. 
 
 infants, 40, 42. 
 
 insane, 40, 41, 44. 
 
 delusions, 40, 209, 211, 221. 
 
 lucid intervals, 40, 44, 236. 
 
 partial insanity, 44, 207, 211. 
 
 relation of insanity to the will, 44, 207, 209, 219. 
 
 test of mental incapacity, 44, 221, 227, 228. 
 
 Claims against Estate of Deceased Person, 
 
 presentation of, by creditors, 91. 
 priority of payment of, 92. 
 
 Codicil, 
 
 defined, 35. 
 
 conditional delivery of a will, 707. 
 
 Conditional Will, 39, 189. 
 
INDEX. 743 
 
 [The numbers refer to pages.] 
 
 Construction of Wills, 34, 47, 105-108, 177, 178. 
 ancient and modern theory of, 16. 
 Chancellor Kent's rules for, 106, 107. 
 Mr. Wigram's propositions for, 108. 
 proposition 1, 688, 691. 
 
 2, 692. 
 
 3, 693, 695. 
 
 4, 700. 
 
 5, 258, 704. 
 
 6, 701. 
 
 7, 703. 
 
 parol evidence in, 108, 704, 707, 711. 
 
 Contracts to make Wills, 39, 197. 
 Conversion, 10, 90, 142, 258, 639. 
 
 Courts, 
 
 see "Jurisdiction." 
 
 probate, jurisdiction of, 59, 60. 
 
 relation of equity to informal testamentary gifts, 163. 
 
 Covenants, 
 
 running with the land, descent of, 8, 131-135. 
 
 Creditors, 
 
 notice to, of death of debtor, 80, 503. 
 presentation of claims by, 91, 572. 
 
 Curtesy, 
 
 estate by, 10, 159. 
 
 D. 
 Declarations, 
 
 of beneficiary in will, admissibilty in evidence, 476. 
 of testator, to construe or defeat will, 232, 297, 473. 
 to revoke will, 483. 
 
 Deeds, 
 
 whether wills or not, 39, 185, 187. 
 
 Delusions, 
 
 affecting testamentary capacity, 40, 209, 211, 221. 
 
 Descent, 
 
 adopted child, to or from, 8, 123. 
 advancements, etiect of, 10, 138. 
 breaking descent, 10, 140. 
 canons of, HI, 114-118. 
 
 Blackstone's, 4-6. 
 
 Chancellor Kent's, 6, 7. 
 
 Glanvill's, 4, 5. 
 
 U. S. federal court, 116. ,.^ , , , , , -ha 
 
 prevail in the United States, excepting where modified by statute, 114. 
 
 prevail until devisee establishes his rights, 143, 450. 
 
 conversion, effect of, 639. 
 
 curtesy, 10. 159. ^ a iqi loc 
 
 covenants runnmg with the land, a, icii-liSO. 
 
 disclaiming, 159. 
 
 dower, 10, 148. 
 
744 INUKX. 
 
 [The numbers refer to pases.] 
 
 Descent— Continued, 
 escheat, 10. 
 
 estate by the entirety, 8, 124. 
 estate per autre vie, 9, 136. 
 heir, right of, when devisee, 7, 121-123. 
 homestead, 10, 160. 
 partnership property, 8, 12-5. 
 posthumous heir, rights of, 7, 119. 
 trust estates, 8, 128. 
 
 Devise, 
 
 defined, 36. 
 lapsed, 96. 
 
 Devisee, 
 
 heir also, 7, 121-123. 
 
 Disclaimer by Heir, 159. 
 
 Distribution, 98, 646-654. 
 by what law governed, 405. 
 of residue, 622, 655. 
 
 Domicile, 
 
 as determining place of administration, 60, 390. 
 
 Donatio Causa Mortis, 11, 12, 162. 
 
 administration, not subject to, 12, 175. 
 apprehension of death, 11, 167. 
 
 cf. "Nuncupative Wills." 
 creditors, rights not affected by, 11, 173. 
 delivery necessary to, 11, 164, 169. 
 husband and wife, right to make, 11, 164, 173, 175. 
 incidents of, 164. 
 presumptions as to, 170. 
 real estate not subject of, 163. 
 revocation of, 170. 
 
 Dower, 10, 148. 
 
 introduction of the right of, 26. 
 
 widow's election between, and rights under husband's will, 155, 620. 
 
 Duties of the Personal Representative, 
 
 before appointment, 75, 411. 
 
 to probate will, 75, 445. 
 
 giving bond, 80, 413, 425. 
 
 notice of appointment, 80, 503. , 
 
 making inventory, 80, 81, 505, 606. 
 
 collecting effects of deceased, 81, 509-514. 
 
 paying debts of deceased, 91, 570. 
 
 presentation of claims against estate, 91, 572. 
 performing contracts of the deceased, 91, 574, 577. 
 
 joint obligations not of partnership, 91, 579. 
 
 partnership obligations, 91, 581-590. 
 submission to arbitration, 92, 598. 
 priority of payment of claims, 92, 699-609. 
 distribution, 98, 646-654. 
 
 by what law governed, 405. 
 
 distribution of residue, 622, 655. 
 
INDEX. 745 
 
 [The numliera ref(H' to pages.] 
 
 Duties of the Personal Representative— Continued, 
 payment of legacies, 94, 610. 
 
 abatement and ademption, 96, 614-620. 
 
 compromising legacies, 97, 626. 
 
 disposition of residue, 100, 622, 655. 
 accounting, 101, 656, 660. 
 
 see, also, "Liability of Personal Representative." 
 
 E. 
 Emblements, 
 
 interest of the personal representative in, 88, 550. 
 Equitable Assets, 97, 628. 
 Equity, 
 
 jurisdiction of, in case of imperfect testamentary gifts, 163. 
 testing validity of will, 241. 
 see, also, "Jurisdiction." 
 
 Escrow, 
 
 delivery of will in, 707. 
 
 Estate of the Personal Representative, 82-90, 378. 
 time when it vests, 87, 413, 415. • 
 quality of the estate, 87, 519, 520. 
 interest in the estate, 87, 131-133. 
 choses in action, 
 
 those which deceased might have put in action, 
 contract, 88, 627. 
 tort, 88, 528-538. 
 apportionment, 88, 539-542. 
 partnership interests, 88, 543-545. 
 
 those where the cause of action accrues after the death of the dece- 
 dent, 88, 516, 646. 
 rights of action for trespass, 88, 547. 
 chattel interests in real property, 88, 547. 
 emblements, 88, 560. 
 fixtures, 88, 552-664. 
 real estate, 88, 556-561, 632, 660. 
 under power in will, 89, 562. 
 property cpnveyed in fraud of creditors, 90, 563. 
 conversion, 90, 664, 667. 
 
 Estate by Entirety, 
 
 descent of, 8, 124. 
 
 Estate per Autre Vie, 
 
 descent of, 9, 136. 
 
 Execution of Will, 
 
 see "Signing Will." 
 
 acknowledging and publication, 48, 297, 300. 
 
 attestation of, see "Witnesses." 
 
 by what law governed, 266-269, 402. 
 
 presumptions as to, 479. 
 
746 INDEX. 
 
 [The numbers refer to pages.] 
 
 Executor, 63-68. 
 
 executor of an executor, 67. 
 
 de son tort, 64-66, 408, 409. 
 
 officiating before or without appointment, 66, 408, 409, 413. 
 
 who may be, 68, 422, 423. 
 
 corporation, 423. 
 
 infant, 68. 
 
 insolvent or incapable person, 422, 425. 
 nomination of, 281, 427. 
 
 naming alone makes a testament, 180. 
 appointment of, 66, 68, 425, 427, 439. 
 renunciation of office by, 74, 180, 376, 425, 443. 
 duties, see "Duties of the Personal Representative." 
 estate of, see "Estate of the Personal Representative." 
 liability of, see "Liability of the Personal Representative." 
 
 F. 
 
 Fixtures, 
 
 interest of the personal representative in, 88, 552, 554. 
 
 Fraud, 
 
 in relation to a will, 44, 45, 229, 258, 261, 263. 
 in relation to revocation of a will, 51, 341. 
 
 G. 
 
 Gifts, 
 
 see "Donatio Causa Mortis." 
 
 H. 
 Heir, 
 
 rights of, 111-113. 
 
 adopted child as heir, 8, 123. 
 
 bastard, 4. 
 
 devisee also heir, 7, 35, 120-122. 
 
 entitled to all not devised, 143, 450. 
 
 primogeniture, 27-29. 
 
 restraint by, on alienation by ancestor, 17, 20, 27. 
 
 Holographic Will, 39, 184. 
 
 Homestead, 
 
 descent of, 10, 160. 
 
 Husband and Wife, 
 
 donationes causa mortis by, 12, 164, 173, 175. 
 estate of, by the entirety, 8, 124. 
 husband's consent to wife's will, 41, 42, 44. 
 see, also, "Capacity;" "Revocation." 
 
 I. 
 Incorporation, 
 
 by reference, 39, 50, 191, 371-373. 
 revival of will by, 57, 371-373. 
 
INDEX. 747 
 
 [The numbers refei- to pages.] 
 
 Insanity, 
 
 testamentary incapacity from, 40-44, 205. 
 
 see, also, "Capacity." 
 burden of proof as to, 78. 
 who may testify as to, 455-466. 
 
 Intention of Testator, 
 
 see "Construction." 
 
 Intestacy, 
 
 title by, 59. 
 
 repugnant to ancients, 26. 
 
 Inventory, 80, 81, 504-507. 
 form of, 508. 
 
 J. 
 
 Joint and Mutual Wills, 39, 193-196. 
 
 Jurisdiction, 
 
 of courts of equity in case of fraud as to wills, 260, 492. 
 
 in interpreting wills and declaring trusts, 842. 
 of courts of "law in matters of wills, 242, 379, 433. 
 of courts foreign to domicile of decedent, 391, 398. 
 of courts of probate, 59, 60, 384, 492. 
 facts necessary to give, 59, 60, 386. 
 death of alleged decedent, 390. 
 location of assets, 391, 393-395. 
 location of real estate, 395. 
 of courts spiritual and of the ordinary, 377, 379, 425, 432. 
 bona notabilia, 68. 
 
 K. 
 
 Knowledge of the Will, 
 
 testator presumed to have, 297, 300. 
 
 li. 
 
 Legacy, 
 
 defined, 36. 
 
 abatement of, 96, 619, 620. 
 
 ademption of, 96, 614, 615, 617. " 
 
 compromising, 97, 626. 
 
 general and specific, 96, 610, 611. " 
 
 payment of, 94-96. 
 
 Liability of Personal Representative, 
 
 for his own acts, 102-104, 418, 419, 500, 577. 
 
 for acts of his co-representative, 102-104, 501, 661-670, 683. 
 
 Life Estate, 
 
 per autre vie, descent of, 9, 136. 
 
 Lucid Interval, 
 
 will made in, 40, 44, 255. 
 
 burden of proof in establishing a will made in, 235, note. 
 
748 INDEX. 
 
 [The uumbers refer to pages.] 
 
 M. 
 Marriage, 
 
 revocation of will by, 55, 362, 364. 
 
 Married Woman, 
 
 will of, see "Capacity." 
 
 under power, 42, 486. 
 
 of separate property, 43, 201. 
 
 ■with consent of husband, 44, 203. 
 
 revocation of, 55, 362, 364. 
 
 Marshalling, 97, 631, 632, 635. 
 
 Mistake, 
 
 in execution of will, 45, 47. 
 in signing one will in place of another, 264. 
 in inserting or omitting provisions, 265. 
 see cases on "Construction," 691, 696. 
 
 Mutual Wills, 39, 193, 196. 
 
 N. 
 Notice, 
 
 of appointment of personal representative, 80, 503. 
 of claims of creditors, 91, 672. 
 
 Nuncupative Wills, 
 
 defined and described, 35, 38, 277. 
 compared with donationes causa mortis, 278. 
 of soldiers and mariners, 46, 272, 278. 
 of those not soldiers and mariners, 46, 275. 
 the time of making, 46, 278. 
 formalities in making, 46, 274. 
 
 the animus testandi, 288. 
 
 the rogatio testium, 288. 
 
 the reduction to writing, 289. 
 revocation of written by a nuncupative will, 345. 
 
 P. . 
 
 Partnership Property, 
 
 descent of, 8. 125. 
 
 interest of personal representative in, 88, 543-545. 
 
 carrying on partnership by personal representative, 91, 581-590. 
 
 Poiv^r, 
 
 wills under, 42, 48. 
 
 Primogeniture, 27, 29. 
 
 Probate of Wills, 76, 79. 
 
 within what time will may be offered for probate, 78, 447. 
 questions which arise at probate, 78, 296. 
 lost wills, 78, 479. 
 will signed by mistake, 264. 
 foreign wills, 396, 400. 
 
 competency and credibility of witnesses, 78, 229. 
 contradictory attesting witnesses, 78, 227, 449. 
 
INDEX. 749 
 
 [The numbers refer to pages.] 
 
 Probate of Wills— Continued, 
 
 burden of proof, as to insanity, 78, 235, 450. 
 
 evidence by experts and non-experts, 229, 455. 
 
 declarations of the testator, 473. 
 
 of undue influence, 78, 250, 468, 473. 
 
 where beneficiary prepares the will, 467. 
 
 where fiduciary relations exist between testator and beneficiary, 468. 
 presumptions as to execution of will, 479. 
 
 from failure to find will after death of testator, 483. 
 partial probate, 78, 265. 
 
 nature and effect of probate, 78, 400, 486, 489, 492. 
 revocation of probate, 78, 492. 
 
 Publishing Will, 48, 300. 
 
 R. 
 Real Estate, 
 
 interest of personal representative in, 88, 556-563, 632, 660. 
 when conveyed in fraud of creditors, 90, 563. 
 
 "Reasonable Part," 
 
 of wife and children, 31. 
 
 Rents and Profits, 
 
 of real estate, right of personal representative to, 660. 
 
 Renunciation of OfiB.ce, 
 
 by personal representative, 74, 180, 376, 425. 
 
 Republication of Wills, 
 
 see "Revival of Wills," 57, 372, 373, 375. 
 
 by subsequent testamentary writing, 372, 373. 
 
 by express act, 375. 
 
 Residue, 
 
 disposition of, 100, 142, 622, 655. 
 
 Revival of Wills, 
 
 of prior will by revocation of later will, 57, 371. 
 
 effect of valid testamentary writing on previous defective one, 50. 
 
 by incorporation, 57, 372, 373. 
 
 Revocation of Wills, 50-57. 
 capacity to revoke, 51, 335. 
 intent to revoke, 51, 336, 348, 370. 
 
 intent imperfectly carried out, 348. 
 dependent relative revocation, 57, 367, 368, 370. 
 mistake in revoking will, 337, 368. 
 fraud in effecting or preventing revocation, 51, 337, 341. 
 undue influence in revoking will, 51, 337. 
 methods of revoking wills, 
 
 written, 52, 347, 351. 
 
 by later will, 352. 
 
 oral revocation, 343, 344, 473. 
 by nuncupatory will, 345. 
 
 by destruction of will, 53, 354-357. 
 
 by sale of property devised, 54, 358, 359, 366. 
 
 by marriage, 54, 362, 364, 365. l,^ 
 
 by change in testator's circumstances, 53, 361, 365. 
 presumption of revocation from iailure to find will, 483. 
 
750 INDEX. 
 
 [The numbers refer to pages.] 
 
 s. 
 
 Signing Will, 48, 292, 295. 
 by the testator, 48. 
 
 by another for the testator, 48, 182, 233, 298. 
 place of signature, 292. 
 knowledge of the testator of contents of will, 48, 290, 300. 
 
 presumption of knowledge, 297 . 
 form of signature — seal, mark, 37, 296. 
 mistake in signing, 264. 
 interference with signing, 177, 181. 
 acknowledging signature, 300. 
 
 see, also, "Acknowledging," "Publishing," and "Execution of Will." 
 
 Statutes, 
 
 Leg. Reg. (Hen. I.), I. (.Stat. No. 1), 717. 
 Magna Carta Reg. (John), c. 27 (Stat. No. 2), 717. 
 Magna Carta (9 Hen. III.), cc. 7, 32, 36 (Stat. No. 3), 717. 
 Stat. Merton (20 Hen. III.), cc. 2, 9 (Stat. No. 4), 717. 
 
 13 Edw. I. (Westm. II.), cc. 19, 23 (Stat. No. 5), 718. 
 4 Edw. III., c. 7 (Stat. No. 6), 718. 
 
 25 Edw. III., Stat. 5, c. 5 (Stat. No. 7), 718. 
 
 31 Edw. III., c. 11 (Stat. No. 8),. 718. 
 
 21 Hen. VIII., cc. 4, 5 (Stat. No. 9), 718. 
 27 Hen, VIII., c. 10 (Stat. No. 10), 720. 
 
 32 Hen. VIII., c. 1 (Stat. No. 11), 722. 
 
 34 & 35 Hen. VIII., c. 5 (Stat. No. 12), 723. 
 12 Car. II., c. 24 (Stat. No. 13), 723. 
 
 22 & 23 Car. II., c. 10 (Stat. No. 14), 725. 
 
 29 Car. II., c. 3 (Stat. No. 15), 726. 
 
 30 Car. II., c. 7 (Stat. No. 16), 728. 
 
 I Jac. II., c. 17 (Stat. No. 17), 728. 
 
 3 & 4 W. & M., c. 14 (Stat. No. 18), 729. 
 
 4 Anne, c. 16 (Stat. No. 19), 730. 
 
 14 Geo. II., c. 20 (Stat. No. 20), 730. 
 25 Geo. II., c. 6 (Stat. No. 21), 730. 
 40 Geo. III., c. 98 (Stat. No. 22), 732. 
 
 II Geo. IV. & 1 Wm. IV., c. 40 (Stat. No. 23), 733. 
 7 Wm. IV. & 1 Vict., c. 26 (Stat. No. 24), 733. 
 
 9 & 10 Vict., c. 93 (Stat. No. 25), 736. 
 
 15 & 16 Vict., c. 24 (Stat. No. 26), 737. 
 
 Succession, 
 
 testamentary less ancient than intestate, 19. 
 universal, 15, 17. 
 
 Survival of Actions, 
 
 on behalf of estate, see "Estate of Personal Representative." 
 against estate of decedent, 91, 591, 593. 
 
 Testament, 
 
 defined, 35. 
 
 Undue Influence, 44, 45, 61, 247, 337. 
 burden of proof of, 250, 338. 
 in revocation of will, 51, 337. 
 relation of, to the will, 251. 
 
INDEX. 751 
 
 [Thp a\imbers refer to pages.] 
 
 Universal Succession, 15, 17. 
 TJniversitas Juris, 14, 15. 
 TJse, 
 
 will formerly a method of raising a use, 33. 
 Uses, 
 
 statute of, operates on wills, 34. 
 
 W. 
 Wills, 
 
 early history of, by Sir Henry Maine, 13-31. 
 
 its value as illustrating the historical study of law, 13. 
 
 influence of the church on, 13. 
 
 distinction between Roman and English will, 13, 18, 21-24. 
 
 will making not a natural right, 14, 19. 
 
 the "universitas juris," 14, 15. 
 
 the "universal succession," 15, 17, 33. 
 
 the family a corporation, 17. 
 
 the sacra in relation to will making, 18. 
 
 adoption and will making, 18, 19. 
 
 testamentary less ancient than intestate succession, 19. 
 
 restraint of heir on ancestor's power to will, 19, 20, 27. 
 
 early wills of the nature of private acts of legislature, 20. 
 
 the mancipatory will, a conveyance, 20-22, 33, 38. 
 
 the testament with bronze and scales, 23. 
 
 ancient and modern ideas respecting wills and succession, 24-31. 
 
 disinherison of children, 24. 
 
 rights of heirs and co-heirs, 27-31. 
 
 primogeniture, 27. 
 early history of, by Blackstone, 31. 
 
 early history of will making in England by Mr. Digby, 31-35. 
 contracts to make wills, 39, 197. 
 wills defined and described, 14, 18, 35, 38, 47. 
 form 6f will, 32, 36-39. 
 
 oral wills, before Stat, of Frauds, 29 Car. II., 277, 280, 281. 
 after Stat, of Frauds, 29 Car. II., 273. 
 
 written wills — personal prooerty, 179-181. 
 
 real properly, after Stat, of Wills, 32 Hen. VIII., 181, 182. 
 Stat, of Frauds, 183. 
 
 holographic wills, 37, 184. 
 
 joint and mutual wills, 39, 193, 196. 
 
 conditional will, 39, 189. 
 
 cf. Sewell v. SlinglufT, 707. 
 
 ambiguous writings, 185, 187, 295, 
 material of will, 37. 
 capacity to make, see "Capacity." 
 execution of will, 32, 48, 181-183. 
 
 see, also, "Signing;" "Acknowledging;" "Publishing;" "Witnessing." 
 when the will takes effect, 36, 179. 
 
 see, also, cases under head "Ambiguous Writings." 
 probate of, see "Probate of Wills," 76-79. 
 
 Witnessing Wills, 48-50. 
 formalities of, 313, 316. 
 number of witnesses, 311. 
 the animus testificandi, 312, 322. 
 
752 INDEX. 
 
 [The numbers refer to pages.] 
 
 Witnessing Wills — Continued, 
 
 signing in the presence of the testator, 326-332. 
 
 simultaneous presence of witnesses, 333. 
 
 signing before the testator, 299. 
 
 position of the signatures, 812. 
 
 what amounts to signing by a witness, 322. 
 
 signing for a witness, 298, 324. 
 
 Witnesses to a Will, 
 
 number of witnesses, 311. 
 
 competency and credibility of witnesses, 32, 49, 78, 227, 302. 
 
 when competency is to exist, 302. 
 
 infamous witness, 304. 
 
 interested witness, 32, 305. 
 
 executor also witness, 308. 
 
 husband and wife as witnesses, 309. 
 expert and non-eXpert witnesses, 229, 455. 
 contradictory attesting witnesses, 227, 449. 
 
 WEST PUBLISHING CO.. PRINTEBS AND 8TBKEOTYPER ■. ST. PAUL. MINM.