he came to name the Queen, and then of went that to. When he had spoken before both of and to God with it on his head.

"Yf God's words will not move us, neither will his works-if dixit will not persuade, neither can fecit induce us.

"A royall is not a righteous crowne-puts on the visard of hypocrisie.

"Omne bonum a Deo bono, as all springs from their offspring

the sire.

66

Judge the whole by part, as merchants sell their wares; the whole butt by a taste of a pint.

"Job's patience compared to God's not so much as a drop to the sea, or a mote to the whole earth.

"Sinfull man approaching God's presence is not consumed as the stuble with the fyre, because man is God's worke, and God's mercy is over all his workes.

"What will you make me like unto, or what will you make like unto me, saith God.

"Scriptura discentem no docentem respicit-and therefore penned in a plaine and easie manner essentia operis est potentia creatoris. "Here he stumbled into an invective against contempt of ministers and impoverishing the clergy-Pharoes dreame is revived, the leane kine eate up the fatt and were never the fatter, laymens best living were the Church living, yet the gentry came to beggery.

"Magnum solatium est magnum supplicium a magno impositum —but intolerable when the basest make it their chiefe grace to disgrace the ministers.

"Christ calls them the light of the world, and they are the children of darknes that would blowe it out.

"Pride is a greate cause of unthankefulnes.

"When he shall thinke omne datum esse tuum officium et suum meritum.

"Bishop Bonner made benefices of all the bones of saints and martyres in Queene Maries days.

"Praysed our happy government for peace and relligion and soe ended."

ART. VI.-A TREATISE ON WILLS.

A Treatise on Wills. By Thomas Jarman, Esq. of the Middle Temple, Barrister at Law: Vols. 1 and 2. London, 1844.

THIS is a work of great labour and of considerable merit; it seeks to give the spirit, and, in many instances, the substance of the very numerous decisions which have been made on questions arising under wills, an undertaking we need not say of extreme difficulty. There are no doubt certain general rules which may be relied upon in construing wills, but still these leave so wide a space uninclosed that much depends upon the discretion and acumen of the court. The law of England, it has been said by a living judge, allows a man to put what nonsense he pleases into his will, and the construction of the nonsense of one man is no guide to that of another, nonsense makers seldom adopting the same modes of expression. Our law, too, does not bind a man by the use of any technical expressions; thus a devise may be made to a person, his heirs and assigns, but if the testator afterwards shows that he intended the party to take only for his life, the first devise shall be so limited. These observations tend to show the difficulties with which our author has had to contend, and the nicety and skill required to extract and separate what may be of general use from that which can only serve if the same words and collocation of sentences should be found together.

Having given our opinion generally that the author has produced a useful work, we cannot, as in the case of any volume of literature or amusement, proceed to cite passages of great interest and merit, and we can only have recourse to the ungracious task of pointing out what we may find to be mistaken or erroneous.

Sect. 33 of the new Wills Act enacts, that in case a child or other issue of the testator should die in his lifetime leaving issue who shall survive the testator, any devise or bequest made to the child or issue so dying shall not lapse but shall take effect as if he or she had survived the testator. Mr. Jarman expresses a pretty confident opinion, vol. 1, p. 313,

that if there be a general devise to children in equal shares as tenants in common and one should die, as mentioned above, his share would not be saved by this enactment, on the ground that it was only inserted to prevent a lapse, and that according to the decisions of the Courts there could not have been any lapse in such a case. But' we must caution our readers against placing implicit reliance on this opinion, for it is not clear that it should be deemed to be the whole object and use of the section before us to prevent a lapse; we should rather say that it would be a more correct exposition of the section to hold that it was intended to vest in a child leaving issue what may be deemed his portion of the paternal property, notwithstanding he may die in the lifetime of his father.

1

itself

The definition given by Mr. Jarman of a "WILL" is, "an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." This is correct, but not sufficiently exact and comprehensive so as to comprise the cases which have been decided. Sir John Nicholls said, "if there is any proof either in the paper or from clear evidence dehors, first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it, if considered as a will; and secondly, that death was the event that was to give effect to it, then, whatever be its form, it may be admitted to probate as testamentary." If, then, an instrument or writing contains sufficient words of gift, and if it can be proved either from the instrument itself or aliunde that it was the intention of the donor that his gift should not be enjoyed till his decease, and if the instrument does not give or pass any present right, title, or interest whatsoever to the donee, the same may be proved as a will. We think Mr. Jarman has misapprehended Lord Hardwicke's judgment in Peacock v. Monk. The deed in that case was not deemed by Lord Hardwicke to be a will or a mere testamentary act. It was held, and properly held, to be voluntary, and consequently void as against creditors, and in that respect Lord Hardwicke said it was a testamentary act, but he immediately added, "though not strictly so,

13 Hagg. 221.

21 Ves. sen. 127.

because not revocable." And the decree was that the plaintiffs (parties to whom sums of money were secured by the deed) were entitled to the same as against the executor of the settlor, and also against his legatee, and any other persons not claiming under him for valuable consideration, but that the plaintiffs ought to be postponed as to all creditors for valuable consideration. The same observation applies to Mr. Jarman's notice of Tomkyns v. Ladbroke. The deed in that case was not held to be a will, but "an act in fraud of the custom of London," and therefore void; and not merely void against the husband of the daughter who opposed it, but wholly void and of no effect whatever it was not allowed to stand as part of the last will of the settlor. Mr. Jarman's notice of the case of Shingler v. Pemberton3 is calculated to mislead. The probate was expressly granted on the consent of the parties entitled under an intestacy, and the Court did not express any strong opinion as to the testamentary nature of the instrument.

4

We agree in the observations made by Mr. Jarman on the case of Attorney-General v. Jones and as to the importance of the decision in Tompson v. Browne, but several very important cases, which fully support the doctrine of the last mentioned case, and even carry it further, are not noticed. In Ramsden v. Jackson, S. R., without any consideration, had entered into a bond for the payment of a considerable sum of money at her death, in the nature, it is stated in the report, "of a legatory disposition," and Lord Hardwicke held the sum secured to be a valid debt after payment of debts for valuable consideration. Upon the authority of this case and upon principle we conclude that if A. B. without any consideration were to covenant with C. D., that the executors of A. B. would pay him C. D. 1000l. if he survived A. B., and with a proviso that A. B. might revoke the deed, this would constitute a valid debt except as against creditors, and might be enforced accordingly. Such a deed could not be held to be a will, because it would give C. D. a present interest, and one that might be assigned; and further, such an instrument

1 See S. C. in Belt's Supplement, 82.

2 2 Ves. sen. 591.

34 Hagg. 356.

4 1 Atk. 292.

could not be in its nature revocable, and clearly, indeed, could not be revoked without an express power. As to any reasoning that such an instrument if allowed to operate as a deed would be a fraud upon the stamp acts, Mr. Baron Wood's judgment in Attorney-General v. Jones contains a sufficient answer to such an argument. The cases cited in the note may be referred to for instances of deeds of testamentary tendency being supported.1

We cannot altogether assent to our author's opening observations in his chapter on the admissibility of parol evidence. He says such evidence cannot be used to "explain" a will; that we think is too general. Scarcely any will brought into Court could be understood by the judge without parol evidence to explain it. A testator devises all his houses which he bought of A. to B. Extrinsic evidence must be resorted to show what houses B. takes. Of course our author does not deny this; but we think it important that general rules should be cautiously stated. He says, too, that the rule against the admission of improper evidence has been steadily and cordially acted upon. We regret to say that a review of the cases rather leads us to a contrary opinion. We think the author in citing in this chapter the cases which prove that though a devise be to a person absolutely, yet that it may be proved by extrinsic evidence that he made and was subject to a secret declaration of trust, should have carefully shown that such cases have scarcely any connexion with the question in hand. The object in such cases is not to alter or add to the will, but to prove a contract between the testator and devisee; to show the inducement under which the testator made his will: and a similar remark applies to the cases also cited in this place by Mr. Jarman, that parol evidence is admissible to show that a writing executed by a party as his will was either as to all or some of its provisions executed by him through fraud or under a mistake. It is most important in law treatises to distinguish cases which are founded on different principles. Mr. Jarman does not give the ground of

1 Fairebeard v. Bowers, 2 Vern. 202; Annandale v. Harris, 2 P. W. 432; Lady Cox's case, 3 P. W. 338; Knye v. Moore, 2 Sim. & St. 260; Tufnell v. Constable, 7 Adol. & Ell. 798; see Ward v. Audland, 8 Sim. 571.