Crook v. Whitley, 7 De Gex, M. & G. 490; s. c. 26 Law J. Rep. (N.S.) Chanc. 350 (1). Stewart v. Jones, 3 De Gex & J. 532. [JAMES, V.C.-That case has no bearing on the question.] Ive v. King, 16 Beav. 46 (see p. 53, Butter v. Ommaney, 4 Russ. 70; s. c. 6 Gray v. Garman, 2 Hare, 268; s. c. 12 Law J. Rep. (N.s.) Chanc. 259. Mr. T. Hughes, for other persons in the same interest, referred to Gowling v. Thompson, 16 W. Rep. 1131, in which Christopherson v. Naylor was treated as a case of undoubted authority, though there a contrary intention was inferred from extrinsic evidence. Mr. Eddis, contra. -This is not, properly speaking, a substitutionary clause. There is first a gift to a class, viz., first cousins, who are to be ascertained at the death of the testator; then follows, not a proviso, but another substantive gift, to "the children of all my first cousins who may so die in my lifetime." It is admitted that the words 'may so die" do not necessarily import futurity; neither does the word "share" necessarily import substitution. The Court always leans to inclusion rather than exclusion; and, as was pointed out in Loring v. Thomas, 1 Dr. & Sm. 511, the solution of the question must depend on the particular language used in each case; and the language may be so wide and general as to embrace every class of issue. Butter v. Ommaney and Gray v. Garman were cases of pure substitution, and Christopherson v. Naylor could only be supported on the same ground; but the latter case was disapproved of by Stuart, V.C. in and Parsons v. Gulliford, 10 Jur. N.S. 221, Phillips v. Phillips, 13 W. Rep. 170, not to mention the recent decision of Malins, V.C. in In re Potter's Trust. Then (1) The passage in the judgment which deals with this question, and lays stress on the expression "present" nieces, is only to be found in the Law Journal Reports. NEW SERIES, 38.-CHANO. again, such expressions as "them," "the said," "such children," which have sometimes been considered as limiting the class described in the second clause to those who could have taken under the first clause, are all absent here; it is an independent gift, as in Bebb v. Beckwith, 2 Beav. 308. s. c. 5 Law J. Rep. (N.S.) Chanc. 15. Mr. Haddan, Mr. Jackson, Mr. Russell and Mr. Swan, for other claimants. Mr. R. R. A. Hawkins, for the executor. JAMES, V.C. said that, if the words of the will had been the same as in In re Potter's Trusts, he should have followed that decision without giving any opinion as to its correctness, at the same time expressing a wish that the matter might be brought before the Lord Chancellor, since nothing could be more unseemly than to have conflicting principles laid down in co-ordinate branches of the Court. But, in fact, there was a substantial, and not a merely verbal distinction between the two cases. In re Potter's Trusts might have been decided on the ground that the gift was to a class which, according to a fair construction, might be held to consist of two distinct classes: first, the nephews and nieces then living; secondly, the issue of all nephews and nieces, whether living or not at the date of the will. But here the class was clearly described, and limited to first cousins living at the date of the will; and, to read the second clause as equivalent to "I give the share or shares of any cousin who would have taken if living at my death," would be introducing words of contingency which were not in the will at all. His Honour added, that his construction would have been the same if it had been an instrument inter vivos. Solicitors Mr. J. J. Merriman, for petitioner ; Messrs. Pownall, Son, Cross & Knott; Messrs. Pattison & Wigg; Messrs. Miller & Miller; Messrs. Paddison, and Mr. J. H. Kays, for other parties interested. 4 M Will Codicil Revocation Re-acquired Property—Republication. A testator (before the Wills Act) devised two freehold messuages to his wife, who predeceased him, for life, and after her death to E, in fee, to whom he also gave certain legacies. Afterwards, by settlement on the marriage of E, he conveyed the same two messuages to the use of E.'s husband for life, remainder to E. for life, remainder to certain uses which did not take effect, with ultimate remainder to his own right heirs. Afterwards, by codicil (also before the Wills Act), reciting the provision made for E, by the settlement, he revoked the legacies, and in other respects, except as therein mentioned, confirmed his will. By the death of E. and her husband (after the testator), leaving no issue, the ultimate remainder to the testator's right heirs took effect in possession:-Held, following Jackson v. Hurlock, 2 Eden, 263, that the specific devise in the will was revived by the codicil, and passed the re-acquired fee. SPECIAL CASE. The material facts were as follows. David Morgan, late of the parish of St. Mary, Haverfordwest, Esq., made his will, dated the 20th of August, 1821, duly executed and attested as by law then required for passing freehold estates of inheritance by devise, and thereby he devised all his real estates unto his wife, Martha Morgan (who predeceased him), and after her decease he gave and devised two messuages or dwellinghouses therein described unto his niece, Elizabeth Lloyd, her heirs and assigns for ever. The will contained a residuary devise to certain persons, to the uses and upon the trusts to be thereinafter declared, but no uses or trusts, except as to certain parts of the property, ever were declared; and it also contained divers bequests of and concerning his personal estate, including a legacy of 1,000l. to his said niece, Elizabeth Lloyd. The testator made a codicil on the 9th of November, 1832, not affecting the devise or bequest to Elizabeth Lloyd. By an indenture of settlement, dated the 5th of April, 1823, the testator, in consideration of the marriage then intended and shortly afterwards solemnized between James William James and the said Elizabeth Lloyd, and in consideration of his natural love for his niece, the said Elizabeth Lloyd, and for increasing her portion, granted the two messuages therein described, situated in Dew Street, in the said parish of St. Mary, Haverfordwest (being the same two messuages as the testator had by his said will devised to his said niece Elizabeth Lloyd as aforesaid), unto Thomas Lloyd, his heirs and assigns, to the use (after the solemnization of the said intended marriage) of him the said David Morgan and his assigns for his life, with remainder to the use of the said James William James for his life, with remainder to the use of the said Elizabeth Lloyd, if she should survive the said James William James, for her life, with remainder to the use of the issue of the said intended marriage as therein expressed, with remainder to the use of the right heirs of the said David Morgan for ever. The said testator, David Morgan, afterwards made a second codicil to his said will, dated the 6th of May, 1826, which, after making certain alterations in his said will, proceeded as follows: "And whereas I have by my said will directed the sum of 1,000l., other part of the residue of my personal estate, to be paid unto my niece Elizabeth Lloyd, now Elizabeth James, the wife of, &c., to whom I gave and bequeathed the same, now since [upon the marriage of my said niece Elizabeth James I have already settled certain real and personal estates to certain uses expressed in the settlement made upon the said marriage, I hereby revoke and make void the lastmentioned direction and bequest;" and, after varying certain other of the legacies given by his said will, the said codicil concluded as follows: "And lastly, I do hereby ratify and confirm my said will, and all devises and bequests, matters and things therein mentioned and contained, excepting so far as the same is or are by my said former codicil revoked, altered or varied, and also my said former codicil and all devises and bequests, matters or things therein mentioned or contained, so far as my said will and former codicil respectively are not hereby or herein revoked, altered or varied." The testator died on the 11th of May, 1826, and his said will and codicils were duly proved in 1832. There was issue of the marriage of the said James William James and Elizabeth, his wife, one child only, a daughter, who died in her parent's lifetime, an infant and unmarried. Elizabeth died on the 23rd of March, 1865, and her husband on the 7th of December in the same year. The ultimate remainder or reversion in the two messuages in Dew Street, to which the testator was entitled under the settlement of 1823, having thus taken effect in possession, the question now to be decided was, whether it passed to the testator's right heirs as in case of intestacy, or to the right heirs of Elizabeth James under the will as revived by the codicil. Will-Construction-Gift to a Legatee "absolutely," trusting she would carry out Testator's Wishes verbally communicated to her—Beneficial Gift. A testator, by his will, gave his real and personal estate to trustees, upon trust to sell the same, and after payment of his debts, &c., to pay the same, and he thereby gave and bequeathed the same, to D. I. (to whom he was engaged to be married), "absolutely, trusting she would carry out his wishes with regard to the same, with which she was fully acquainted." Shortly before the date of his will the testator had verbally expressed to D. I. his wish that she should make certain gifts out of the property to be bequeathed to her, and she had afterwards written down his wishes for her own use, but not in the testator's presence :-Held, that D. I. took the property beneficially, but subject in part to the wishes which the testator had expressed to her, and as to which she had bound herself. This was the further consideration of a suit for the execution of the trusts of the will of General de Pontes, and for the administration of his estate and effects. The testator, by his will, dated the 21st of February, 1865, devised and bequeathed all his estates and effects, real and personal, to E. C. Sullivan, the wife of MajorGeneral Sullivan, D. Macloughlin, and F. T. Robins, their heirs, executors, administrators and assigns, "upon trust,” as soon as conveniently might be after his decease, to sell and convert into money all such parts thereof as should not consist of money, in such manner and subject to such conditions as they should think proper; and he declared that the receipts of the trustees of that his will should be sufficient discharges for the purchase and all other moneys payable to them. And the said testator proceeded as follows: "I direct that the moneys arising from the said sale, and otherwise forming or representing my estate and effects, after payment of my just debts and funeral and testamentary expenses, and the expenses of carrying out the trusts of this my will, shall be paid by my said trustees, and I hereby give and bequeath the same to Emblyn D'Arcy Irvine, of Ryde, in the Isle of Wight, widow absolutely trusting that she will carry out my wishes with regard to the same, with which she is fully acquainted;" and the said testator appointed the said Mrs. Sullivan, D. Macloughlin and T. F. Robins, executors of his said will. The testator died on the 30th of March, 1865, and his said will was duly proved by his executors. Shortly before the date of his will the testator had expressed to the plaintiff Mrs. Emblyn D'Arcy Irvine, to whom he had for upwards of four years been engaged to be married, his wish that she would out of the property which he would leave to her make certain gifts of sums of money, pictures, plate and jewellery to certain friends, relatives and dependents, including 1,000l. to each of his three executors. A few days after the date of the said will, the testator, at Mrs. D'Arcy Irvine's request, repeated to her his wishes, and she then, at her own instance, and for her own use only, wrote them down on paper, but not in the testator's presence, nor was the memorandum shewn to him. The testator was a native of France, and a general in the French service, but he had obtained a certificate of naturalization as an English subject, and at the time of his death was the owner of an estate at Eyford, in Gloucestershire, and other lands and immovable property, as also of certain movable property in England and of movable and immovable property in France. But at the time of his death the domicil of the testator was in France, and previously to this suit proceedings had been taken in the French Courts by the testator's nextof-kin for the purpose of having the testator's will to the plaintiff declared void according to the law of France. The result of these proceedings had been a decree in the plaintiff's favour, and accordingly the Chief Clerk, by his certificate in this suit, certified that Mrs. Irvine was absolutely entitled to the testator's personal property. Hence the question now to be determined related solely to the testator's real estate in England. The plaintiff contended that under the gift in the will she was beneficially entitled to the testator's residuary estate. On the other hand, the co-heirs of the testator claimed the property by virtue of a resulting trust in their favour, Mr. Willcock, Mr. Amphlett and Mr. Law, for the plaintiff.—No valid trust was created, and the plaintiff is absolutely and beneficially entitled to the whole estate Heptinstall v. Gott, 2 Jo. & H. 449; s. c. 31 Law J. Rep. (N.S.) Chanc. 776. Meredith v. Heneage, 1 Sim. 542: and on appeal to the House of Lords, Ibid. 561. Sale v. Moore, Ibid. 534, 540. s. c. 5 Law J. Rep. (N.S.) Chanc. 266. McCormick v. Grogan, Law Rep. 4 Ir. Ap. 82. Bardswell v. Bardswell, 9 Sim. 319; s. c. 7 Law J. Rep. (N.S.) Chanc. 268. s. c. 21 Law J. Rep. (N.s.) Chanc. Bernard v. Minshull, Johns. 276, 292; Fenton v. Hankins, 9 W. Rep. 300. Webb v. Wools, 2 Sim. N.S. 267; s. c. 21 Law J. Rep. (N.S.) Chanc. 625. If there is a presumption in favour of the heirs-at-law, evidence is admissible to disprove it Mallabar v. Mallabar, Ca. temp. Talb. p. 79. Hall v. Hill, 1 Dru. & War. 94. The question of the admittance of parol evidence in a case like the present has never arisen and been argued. The testator has spoken of his trustees in another part of his will, and evidently meant to distinguish between those who were named by him as trustees to carry into execution the purposes of his will, and the plaintiff whom he intended to benefit. They also referred to Dobson v. Bowness, 37 Law J. Rep. (N.S.) Chanc. 309; s. c. Law Rep. 5 Eq. 404. Mr. Mackeson and Mr. T. Stephens, for the defendant Robins. You cannot import into the will words which are not part of it— Baker v. Mosley, 12 Jur. 740. "Absolutely" may perhaps be read together with "trusting," in the sense of " implicitly trusting." Mr. Little and Mr. Caldecott, for Dr. Macloughlin.-There was an understanding in the nature of a contract between the testator and Mrs. Irvine, and she is bound by the obligation of that contract. We say this is the case of Wood v. Cox, ubi supra. Mr. Roupell, for General and Mrs. Sullivan, said they had confidence in the honour of the plaintiff, and declined to argue the question against her. Mr. Kay, Mr. Fry and Mr. Busk, for the testator's heirs-at-law, argued that the will of the testator shewed that he intended the whole of his property given to the plaintiff to be affected by some trust, but that trust had not been sufficiently declared, and failed on that account. That fact, however, could not entitle the plaintiff to retain the property beneficially, but she was bound in conscience to take it upon some trust, which if not declared by the testator would be a resulting trust for the heirs-atlaw, who not being bound in conscience by any expressed trust could hold it for their own benefit. They distinguished from this case the authorities cited on behalf of the plaintiff, and also cited the following Stubbs v. Sargon, 2 Kay, 255, and 3 Myl. & Cr. 507; s. c. 6 Law J. Rep. (N.S.) Chanc. 254: and 7 Ibid. 95. The Corporation of Gloucester v. Wood, 3 Hare, 131. Barrs v. Fewkes, 2 Hem. & M. 60; s. c. 32 Law J. Rep. (N.S.) Chanc. 52. Saltmarsh v. Barrett, 3 De Gex, F. & J. 30; s.c. 30 Law J. Rep. (N.s.) Chanc. 853. Mr. Willcock having, in reply to a question by the Vice Chancellor, intimated that the plaintiff intended to carry out the testator's wishes as stated in the paper she had written, and that he had no wish to address in reply any argument to the Court against the persons entitled under that paper: JAMES, V.C. (without calling for a reply) said, I do not think that I should derive any aid if I took further time to consider this case, which I feel to be a case just balanced between the principles laid down in two of the cases which have been cited; but on the best consideration I am able to give to the matter, I have come to the conclusion that this is not governed by Briggs v. Penny, but that it is governed by those two cases of Bernard v. Minshull and Wood v. Cox, which seem to me to mark the distinction on the one side and the other. If the words here amounted on a fair construction to what was said in Briggs v. Penny,-if it was a gift to Emblyn D'Arcy Irvine, of Ryde, in the Isle of Wight, widow, "upon trust to carry out my wishes with regard to the same, with which she is fully acquainted,"-if that had been the true construction, I should hold it would be utterly impossible that she could take anything beneficially; and then the wishes not being manifested in such a way as that this Court can take notice of them, the trust would have failed, for the benefit of the heir-at-law. The question is, whether that is the true meaning of this will. There is an observation of Vice Chancellor Wood, in Bernard v. Minshull, which I think it may be as well to repeat: "In other words, these canons of construction are valuable as affording a general rule by which the Court is to be guided in the absence of particular expressions in the will; but in the construction of every will the whole instrument must be carefully weighed and considered." In truth, in that case of Briggs v. Penny, the whole instrument was carefully weighed and considered, and it is impossible not to see that whatever may be the words in which part of that judgment is couched, the Court was more influenced by the fact that Miss Penny's beneficial interest was marked by the two legacies. The two legacies there given to her, one of 2,000l. in her character of legatee, and 3,000l. in her character of executrix, were considered as marking the extent of her beneficial interest. The Court seemed to me very readily to come to the conclusion that she was a trustee, and nothing but a trustee, but a trustee for the purpose of giving effect to those wishes, that was to say, that it was the purpose of the gift to her. |