Evidence as to Election to take Land as Money-Colpoys v. Colpoys. *573

*It seems that where a person is absolutely entitled to property, which he may consider as money or land at his option, parol evidence may be given to show that he had elected to take it as the one or as the other (a).

This may be sufficient to give the student a general notion of the rules applicable to the construction of deeds and wills, and to show how anxiously the judges have endeavored to prevent the contents of a written instrument being varied, added to, or subtracted from, by verbal evidence. I must, however, in addition, refer the student to the very clear, and if I may assume to use the expression, accurate summary of the rules for the construction of wills, in the second volume of Mr. Jarman's Treatise. We now proceed to conclude the general subject of Trusts.

(a) See Lewin, p. 692.

ADDITIONAL NOTE (1) TO SECTION II. p. 564.

In the case of Colpoys v. Colpoys, Sir Thomas Plumer observed, "As a general rule indeed, in the case of a patent ambiguity, a reference to matter dehors the instrument is forbidden, it must if possible be removed by construction, and not by averment; but in many cases this is impracticable where the words carry on the face of them no certain or explicit meaning, and the instrument itself affords no materials by which the ambiguity may be cleared up. If in such cases extrinsic evidence were rejected, the instrument would become inoperative; as a minor evil, the courts, both of law and of equity, in such cases call in the light of extrinsic evidence. When the person or the thing is designated on the face of the instrument by terms imperfect and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered as an objection, that the ambiguity was patent, that is, manifested on the face of the instrument." Sir Thomas Plumer put as an illustration a gift to one by the surname, without adding the christian name (1); also, a gift of jewels, which, if by a nobleman would pass all, by a jeweler would not pass those in his shop: he concluded by referring to Mr. Justice Bayley's opinion in the case of Doe dem. Jersey v. Smith, in the House of Lords (2), before referred to, who thus states the principle on which extrinsic evidence in that case was introduced: "The evidence here is not to produce a construction against the direct and natural meaning of the words, not to control a provision which is distinct and accurately described; but because there is an ambiguity on the face of the instrument, because an indefinite expression is used, capable of being satisfied in more ways than one; and I look to the state of the property at the time, to the estate and interest the settlor had, *and the situation in which he stood [*574] with regard to the property he was settling, to see whether that estate or interest or situation would assist us in judging what was his meaning by that indefinite expression (3).

ADDITIONAL NOTE (2) TO CHAPTER VIII. sup. p. 567, 8, 9.

This subject was very carefully considered by Sir John Leach in the case of Hurst v. Beach. The question was, whether evidence should be received to show that 5001. given by a codicil was intended in lieu of 300l. given by the will. "I think," said that learned judge, "that the true result of the decisions, as they apply to the present

(1) Price v. Page, 4 Ves. 680.

(2) 2 Brod. and Bing. 583.

VOL. I.-35

(3) Jacob. R., 463. See also 4 Russ. 540, and 1 Sugd. V. & P. 257.

574

Hurst v. Beach, before Sir J. Leach- Weall v. Rice.

point, is to be stated thus,-where a testator leaves two testamentary instruments, and in both has given a legacy simpliciter to the same person, the court considering that he who has twice given must primâ facie (1) be intended to mean two gifts, awards to the legatee both legacies; and it is indifferent whether the second legacy is of the same amount, or less or larger than the first. But if in such two instruments the legacies are not given simpliciter, but the motive of the gift is expressed, and in both instruments the same motive is expressed, and the same sum is given, the court considers these two coincidences as raising a presumption that the testator did not by the second instrument mean a second gift, but meant only a repetition of the former gift; the court will not raise the presumption if in either instrument there be no motive, or a different motive expressed, although the sums be the same; nor will it raise it if the same motive be expressed in both instruments and the sums be different. This reasoning has no application to cases where the second instrument affords intrinsic evidence that it was intended by the testator in substitution of the first instrument" (2). "Upon the question whether evidence is admissible to prove that the testator did not mean that the defendant should take both sums, there are no decisions in Courts of Equity; there are obiter dicta for the admission of such testimony; but in the Duke of Leeds v. Osborne, the point was fully argued, and Lord Alvanley appears to have inclined against receiving it; it did not, however, become necessary then to decide the question. It is to be collected from the Digest that it was admitted by the Civil Law (3). No decision has taken place in the Ecclesiastical Court upon the question, and no settled opinion is formed upon it; it remains then to be considered upon the principles of evidence which are received in our own law. Our primary principle is, that evidence is not to be received to contradict a written instrument. In some cases, *Courts of Equity raise a presumption against the apparent intent of [*575] the instrument, and then they will receive evidence to repel that presumption, for the effect of such testimony is not to show that the testator did not mean what he has said, but on the contrary to prove that he did mean what he has expressed. Thus where the court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in both instruments, it will receive evidence that the testator actually intended the double gift that he has expressed. In like manner evidence is received to repel the presumption raised against an executor's title to the residue, from the circumstance of a residue given to him, and to repel the presumption that a portion is satisfied by a legacy. In all these cases the evidence is received in support of the apparent effect of the instrument against it." And the learned judge concluded his judgment by refusing in that case to receive the evidence as it was tendered against the effect of the written instrument (4).

The case of Weall v. Rice, decided by the same judge, and which is referred to in the text, was a case where there was first a portion provided for a child by a settlement, and then a legacy given by will; the rule as to the admissibility of parol evidence in cases of a provision made by a parent for a child by will and by settlement is there stated thus: If a father makes a provision for a child by settlement on her marriage, and afterwards makes a provision for the same child by his will, it is primâ facie to be presumed that he does not mean a double provision (5); but this presumption may be repelled or fortified by intrinsic evidence derived from the nature of the two provisions, or by extrinsic evidence: where the two provisions are of the same nature, or there are but slight differences, the two instruments afford intrinsic evidence against a double provision; where the two provisions are of a different nature,

(1) V. Barclay v. Wainwright, 3 Ves. J. 465. Lord Thurlow says "generally," Coote v. Boyd, 2 Bro. 528.

(2) As in Duke of St. Alban's v. Beauclerk; Coote v. Boyd, 2 Bro. 521; AttorneyGeneral v. Harley, 4 Mad. 263.

(3) Celsus, Digest, xxii. 3. 12, thus states the rule and the principle, which I presume is one of the passages referred to:-"Quingenta testamento tibi legata sunt, item scriptum est in codicillis postea scriptis ; Refert duplicare legatum voluerit ceu repetere, et oblitus se in testamento legasse id fuerit: Ab utro ergo probatio ejus rei pro

banda est? Prima fronte æquius videtur ut petitor probet quod intendit; sed nimirum probationes quædam a reo exiguntur. Nam si creditum petam ille respondeat, solutam esse pecuniam, ipse hoc probare cogendus est; et hic igitur cum petitor duas scripturas ostendit, hæres posteriorem inanem esse, ipse hæres id adprobari judici debet." Other authorities are referred to in Gothofred's Notes.

(4) Hurst v. Beach, 5 Mad. 358; 2 Roper, 12, et v. 6 Simons, 548.

(5) 1 Roper, 337, et seq. 1 Jarman, 357.

Trusts Cognizable at Law.

575

the two instruments afford intrinsic evidence in favor of a double provision. "But in either case evidence is admissible of the real intention of the testator" (1).

Lord Chancellor Sugden, as noticed in the text, expresses his disapprobation of the doctrine as to admitting parol evidence to affect presumptions as laid down in that case, though recognized by Lord Langdale in Lord Glengall v. Barnard (1 Keen, 769). "In the general unrestricted sense in which I understand the expressions," says his lordship, "it is a new rule, and is not the rule of the court, or supported by authority" (2). Lord C. Sugden, in the case referred to, has taken an enlarged view of the subject. Perhaps the report of the judgment by Messrs. Connor and Lawson is, in this instance, the best: I would strongly recommend it to the perusal of the student. The leading cases are examined. Coote v. Boyd, before Lord Thurlow, 2 Bro. C. C. 521; Monk v. Monk, before Lord Manners, 1 Ball. & B. 298; Wallace v. Pomfret, before Lord Eldon, 11 Ves. 542; and Weall v. Rice, and Lloyd v. Harvey, 2 Russ. & My. 310, are particularly noticed by the learned judge, and he comes to the conclusion that those cases would authorize the admission of parol evidence to an extent that cannot be reconciled with sound principle or authority.

(1) Weall v. Rice, 2 R. & M. 267.

(2) 1 Drury & W. 130, et v. 121.

*CHAPTER IX.

[*576]

ATTEMPTS MADE TO INDUCE THE COURTS OF COMMON LAW TO INTERFERE AS TO TRUSTS OVER WHICH THE COURT OF CHANCERY HAD ASSUMED JURISDICTION-MATTERS OF TRUST WHICH ARE

COGNIZABLE AT LAW.

WHEN the action of trespass on the case came into use as a means of enforcing equitable demands, an attempt was made to induce the Courts of law to entertain an action on the case for damages against trustees of real and personal estate who neglected and refused to perform their trusts (a). Lord Chief Justice Hobart appears to have considered that such an action might be maintained (b), but as the jurisdiction of the Court of Chancery for enforcing the actual performance of trusts, which was the true and effectual relief required in such cases, and which a Court of Law could not give, was established, it was considered fit that the Courts of Law should not interfere in such cases, but leave them to the Courts of Equity (c). Lord Chief Justice North, in an argument in the Exchequer Chamber (d), expressly laid down that no action on the case would lie for a breach of trust of the description we have been considering; the reason which he gave was that the principal thing, viz. the trust, did not belong to the Common Law, but to the Court of Chancery.

But there are cases in which the Courts of Law, particularly in the action of assumpsit, hold jurisdiction to enforce conscientious obligations in the nature of trusts. Cases of Bailments afford one important example. A depositum or bailment is defined to be that which is com

(a) 1 Rol. Abr. 108, I. 35, 45.

1 Eq. Abr. 384, D. note (a); 1 Vern. 343, note (3), 418; and see the other cases cited, Lewin on Trusts, p. 21. The same course was adopted as to Legacies, v. infra,

next Chapter.

(c) 1 Com. Dig. 172, B. 8.

(d) Barnardiston v. Soame, 7 State Trials, 443; Raithby's note, 1 Vernon, 344.

576

Early Jurisdiction over Executors and Administrators.

mitted to the credit and faithfulness of a man to keep safely to the use of him that delivereth it, to the end that it may be restored when he shall call for it, and in the one is the property and in the other the trust (a). A nice and curious system of equitable rules as to Bailments has been. constructed, principally on the basis of the Roman doctrines in regard to depositum, introduced or brought into notice by *Bracton (b). [*577] So the master of a ship is held as strictly, at law, to the performance of the charge or trust committed to him, as he would in the Court of Chancery, and the same equitable rules are applied and enforced in such cases by the Courts of Common Law so far as the powers of those courts are adequate to the purpose (c).

An executor also comes before the Courts of Law in some respects as a trustee, and the doctrines of the Court of Chancery that an executor cannot take the benefit of a bargain made by him with a creditor of the estate, as being inconsistent with his trust, has long been recognized (d). Many other instances might be cited, but these will suffice.

I now proceed to the subject of the ADMINISTRATION OF THE EFFECTS OF TESTATORS AND INTESTATES under the directions of the Court of Chancery.

JURISDICTION OF THE COURT OF CHANCERY IN THE ADMINISTRATION OF THE ESTATES OF TESTATORS AND INTESTATES.

SECTION J.-Grounds of the Jurisdiction as regards Personal Estate.

SECTION II.-Suits in Chancery by Creditors.

SECTION III-Suits by Legatees and Next of Kin.

SECTION IV.-Peculiar Doctrines of the Court of Chancery in the Administration of the Effects of Testators and Intestates-Equitable Assets.

SECTION V. As to securing the Trust Fund.

SECTION I.-Grounds of the Jurisdiction as regards Personal Estate.

THE Court of Chancery has from an early period exercised jurisdiction over executors and administrators, to compel the due administration of the personal estate of deceased persons, in favor of creditors, legatees, and other persons who had a beneficial interest in the estate (e).

executor against his co-executors (see The Calendars, ii. 23, temp. Hen. VI. &c.). What passed at the hearing of one of these suits (temp. Hen. VII.) in which C. J. Fineux, then a Serjeant, no friend of the court, was counsel, though there was no decision, was thought worthy of finding a place in the Year Books (4 Henry VII. fol. 5); not, however, as may be guessed, with a view to setting up the Chancellor or his court in the estimation of the common lawyers of that day, or of future ages. In

Remedies against Executors, &c., in Spiritual Court.

578

In modern times it appears to have been considered that the ground of this jurisdiction was the execution of a trust (a); but it would *rather appear to have gradually grown up, from its being found that there was no other tribunal capable of doing effectual justice to all parties interested (b).

[*579]

Executors and administrators were bound by the statute of Edward III. to account before the ordinary, but he was to take the account as given in; he could not compel them to vouch or verify the items, neither could a creditor falsify such account in the spiritual court (c.) A legatee might falsify the account as may next of kin, since the Statute of Distributions (22 & 23 Car. II. c. 10) (d). By the stat. 21 Hen. VIII, c. 5, § 4, in which reign, as we have seen, there was a strong disposition to supersede the jurisdiction of the Court of Chancery,-executors and administrators were rendered liable to deliver to the ordinary an inventory of the effects of the deceased, upon oath if required, but it was doubtful whether this inventory could be controverted there (e).

The spiritual court endeavored to compel a due distribution of the residue of the effects of intestates to the relations, or to pious uses, by taking bonds from the administrators for that purpose. But these bonds were held to be void; for that the administrator had a legal right to the residue (ƒ); besides, by the grant of the administration, the ecclesiastical authority was gone (g). Thus the administrator was enabled to retain and enjoy the residue of the testator's effects, after payment of the debts and funeral expenses. This occasioned the legislature to interfere; and by the stat. 22 & 23 Car. II. c. 10, explained by 29 Car. II. c. 30, it

substance it was this-One of two executors, in collusion with a debtor to the estate, released him, so that there were not sufficient assets of the testator to answer the purposes of the will. The co-executor, having no remedy at law, filed a bill against him and the debtor, for relief. The Chancellor, Archbishop Morton, intimated his opinion, that this was a proper case for relief. "Nullus," said he, "recedat a Curiâ Cancellariæ sine remedio." On which Fineux, as counsel for the defendants, insisted there was no remedy-that one executor had complete power over the estate; one could do what all could do, therefore the release was a complete bar. If all things were remediable here, there would be no need of a confessor. Some things were to be left to the confessor, and this was one. On which the Chancellor said, "Sir, I know that the law is, or ought to be, according to the law of God (see Lord K. Egerton, Cary, p. 11); and the law of God is, that an executor who is evilly disposed, shall not expend all the goods; and this I know, that if he do so, and do not make amends if he can, he will be damned in hell," &c. He added, that to give a remedy here, in such cases, was, as he conceived, agreeable to conscience; the testator in his will appoints such and such persons to be his executors, that they shall dispose, &c., so that the power is joint, and not se

veral, and if one does an act without his companion, he does it without authority, the only authority being that which is conferred by the will; and it is against reason that one executor shall have all the goods, and alone give a release; but the chancellor gave leave to have the question argued again. The archbishop's notion, that, as a security for the due administration of the assets, no act should be held good in which all did not join, was not followed, as regards executors (v. int. al. Toth. 151,39 Eliz. Ed. 1671); as regards trustees, it was. The spiritual part of this judgment has, as before mentioned, also attracted Lord Campbell's particular attention, v. sup. p. 367.

(a) Lord Redesdale, 1 Scho. & Lef. 262; Lord Hardw. 1 Atk. 491; legacies were, as we have seen, put on the same footing as trusts, by the Roman law.

(b) V. int. al. Cal. ii. 33, temp. Hen. VI. and ib. i. p. 110, temp. Edw. IV; and see Mitford on Pleading, 125, 6, 137.

(c) See Brown v. Atkins, Sir Geo. Lee's Cases, by Phillimore, ii. p. 1. (d) 1 Salk. 315.

(e) See 2 Fonbl. 418, and 3 Burr. 1922; Swinburne, p. 6, § 20.

(f) See Petit v. Smith, 1 P. Wms. p. 8, Holt, C. J.

(g) 2 Bla. Comm. 515; Williams' Ex.

1169.