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sist of declarations previous to(a), contemporaneous with(b), or [*]subsequent to, the execution of the will(c). But in cases of conflicting testimony, declarations at the time of preparing or executing a will are deemed of more consequence than declarations either before or afterwards, and declarations subsequent than those which are antecedent(d); for the statements of a man as to what he has already done are more likely to show the real nature of bis intentions at the time of performance than statements of what he merely designs to do, and, still more, statements made at the time of a transaction than statements either before or after it.

Concerning the nature and substance of declarations relied on as available in this respect, it has been held, that not only explicit avowals of intent to give the executor a beneficial interest(e), but intimations to such effect, if clear, will serve to prevent the usual construction. Declarations by a testator, that legacies

(a) Thornton v. Tracey, 2 Ves. Clennel v. Lewthwaite, 2 Ves. jun. jun. 465, 469 ; Gladding v. Yapp, 465 ; Walton v. Walton, 14 Ves. 5 Madd. 56. See also Littlebury 318. See also Littlebury v. Buckv. Buckley, 2 Vern. 677, cited ; 3 ley; Lady Granvill v. Duchess Bro. P. C. by Toml. 43; Lady of Beaufort ; Brasbridge v. WoodGranvill v. Duchess of Beaufort, 2 roffe; Nourse v. Finch, ubi suVern. 648 ; Brasbridge v. Wood- pra; and Langhorne v. Sandford, roffe, 2 Atk. 69 ; Nourse v. Finch, 17 Ves. 435; 19 Ves. 641; 2 1 Ves. jun. 344; and 19 Ves. 649; Mer. 6, S. C. 2 Mer. 23.

(d) 7 Ves. 518; 17 Ves. 453-4 ; (6) Earl of Gainsborough v. 19 Ves, 649, 650; 2 Mer. 23. Lady Gainsborough, 2 Vern. 252; (e) Rawlins. v. Powell, 1 P. Batchellor v. Searle, 2 Vern. 736 ; Wms. 297; Walton v. Walton, 14 Duke of Rutland v. Duchess of Ves. 318 ; Gladding v. Yapp, 5 Rutland, 2 P. Wms. 210.

Madd. 56. (c) Lake v. Lake, Amb. 126 ;

bequeathed to his next of kin formed the whole he intended they should take(a),—that legacies to the executors were given purposely that they might be sure of something in case of a deficiency, but that if [*]there should be a surplus, such surplus would be theirs (6),—that he had left or should leave to his executors handsome fortunes (c),—or, in reference to particular chattels, that after his death they would belong to the executors (d),-have, accordingly, been adjudged sufficient to re-annex to the office its legal properties. But it is an invariable rule, in order to parol declarations being effectual to re-instate the executor, that they must be not merely such as render the applicability of the general construction doubtful (e), but such as plainly and indisputably prove the intention to have been to give the residue abso. lutely. Declarations therefore of equivocal signification (f ), much more declarations met by counter declarations (g), will leave the question to be decided on the ordinary principle.

The admission of parol evidence, it must be likewise observed, is confined to cases strictly of presumption. Where the executor is expressly styled a trustee in the will, evidence of intention to give him the surplus beneficially is not allowed; for that

(a) Batchellor V. Searle, 2 (d) Williams v. Jones, ibid. Vern. 736 ; Brasbridge v. Wood (e) Petit v. Smith, 1 P. Wms. 7. roffe, 2 Atk. 69. See also Little (f) Langham v. Sanford, 17 bury v. Buckley, 2 Vern. 677, Ves. 435; 19 Ves. 641 ; 2 Mer. cited ; 2 Ves. jun. 473.

6, S. C. (6) Lake v. Lake, Amb. 126. (g) Nourse or Hornsby v.

(c) Williams v. Jones, 10 Ves. Finch, 4 Bro. C. C. 239; 1 Ves, 77.

jun. 344 ; 2. Ves. jun. 78, S. C.

would break in upon the principle, that extrinsic evidence cannot be received to contradict a written instrument (a). On the same ground, it has been decided, that a legacy expressed to be given for the care and trouble incident to the executorship precludes all parol testimony to [*]show that the parties were meant to have more; since a bequest of this kind is equivalent to a declaration, that they should hold the residue merely as trustees (6).

But where a specific legacy is given to the executor, with the exception of a particular part of it,—as a bequest of testator's household goods, excepting plate,--and the part excepted not being afterwards disposed of falls into the residuary estate, this is not considered a case so distinctly and indisputably proving the testator's intention to give the residue away from the executor, as excludes the reception of parol evidence; although it has been argued, that as the part excepted constitutes an integral portion of the residue, and must be taken and go along with it, the circumstance of such part being expressly withdrawn from the gift to the executor, shows to demonstration the testator's meaning, that the executor should not take the surplus beneficially : for to this it was replied, that the gift with the exception amounts to no more than a gift of the several particulars of the actual bequest, taking no notice of the article excepted(c)'; and further, that the executor takes the prin

(a) 14 Ves. 322 ; 5 Madd. 58, Ves. 443; 19 ib. 644 ; 5 Madd. 59 ; 19 Ves. 643-4.

58.9. (6) Ratchfield v. Careless, 2 P. (c) Langham v. Sanford, 17 Wms. 158 ; May v. Lewin, ib., Ves. 435, 449 ; 19 Ves. 644-5. cited, 159 ; 2 Ves. jun. 473; 17

cipal bequest and the exception, under different qualifications, the former being liable to contribute only to the payment of debts, the latter also to the payment of pecuniary legacies(a). The reason for admitting parol evidence is obviously [*]stronger in the case of a legacy to the executor, which is merely, though in pointed terms, ordered to be paid out of the personal estate(b).

Parol testimony may, in like manner, be adduced by the next of kin, to oppose similar evidence on the part of the executors, and to fortify the presumption that the latter were not intended to take a beneficial interest (c). But such testimony is not admissible, in the first place, to show the testator's intention to impose a bare office of trust. To allow its admission would violate the principle before noticed, that external evidence shall not be received to contradict a written instrument (d) (1).

(a) 19 Ves. 645.

(a) Osborne v. Villiers, 2 Bac. (6) 19 Ves. 642.

Abr. 426 ; 2 Eq. Abr. 416, S. C.; (c) Bishop of Cloyne v. Young, White v. Williams, 3 Ves. and Be. 2 Ves. 91; Rachfield v. Careless, 72; Coop. C. C. 58, S. C. ; 19 1 P. Wms. 158.

Ves. 643-4.

(1) Mann v. Executors of Mann, 1 John. Ch. 231. Breckenridge v. Duncan, 2 Marsh. 51. Shelton v. Shelton, 1 Wash. 53. Rino's exrs. v. Davis, 4 H. & M. 283. 25

[*185]

[*]CHAPTER XI.

PRESUMPTIONS OF FACT.

On the Presumption of Instruments of Assurance.

Our attention has hitherto been confined to presumptions of law. We now proceed to treat of presumptions of fact; which are so called because the facts presumed are exclusively deduced from the particular circumstances of individual cases, such circumstances containing them implicité, and yielding a kind of indirect or presumptive evidence of their exist

ence.

In reference to the subjects which come within the scope of the present treatise, it will be invariably found, that as length of peaceable possession is for the most part the consequence only of rightful ownership, lapse of time since the first commencement of titles which depend for their validity on the doctrine of presumption, is in all cases an essential, and in some the only inducement to the presumption requisite for their support (1),

(1) Sullivant v. Alston, 2 Hay. N. C. R. 128.

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