*[67]

absolute and ultimate interest in the first grantee or devisee, will not suffer itself to be opposed by parol evidence. Accordingly in Stratton v. Payne,(r) where the testator devised his personal as well as real estate to A P, and the heirs of her body, with a limitation over in default of issue of A P, the limitation over was adjudged void both by the court of chancery and the lords, who concurred in rejecting parol evidence (though it was the evidence of the person who drew the will) to show an intention in the testator opposed to this construction. Again, it is a rule of construction in courts, both of law and equity, that a devise to a man and his heirs and assigns, or a bequest to one and his executors, administrators, and assigns, conveys no original interest to the representatives, but by transmission only, and that consequently the devise or legacy fails if the devisee or legatee die before the testator; and this construction, though it operates to destroy pro tanto the will, cannot be opposed by parol evidence of the testator's contrary intention as to the devisee, which point was decided so long ago as in the case of Brett v. Rigden, in Plowden's Commentaries, (28) upon the statutes 32 and 34 *H. 8, of wills which, like that of the 29 Car. 2, require a will to be in writing, and the evidence offered of the testator's declaration of his bountiful intention towards the heir of the deceased devisee was rejected, as being in derogation of those statutes of H. 8; and the same point in respect to a legatee under similar circumstances, may be seen in the recent case of Maybank v. Brooks. (8)

How far these principles apply in vindication of the decision of Brown v. Selwyn, by Lord Talbot,(t) may be considered as doubtful. It seems singular, however, that Lord Hardwicke, after saying, in Taylor v. Taylor,(u) that parol evidence cannot be admitted against the legal operation of a will or implied trust,' should, in Robinson v. Gee,(x) have declared himself to differ with Lord Talbot, as considering him to have gone to too great length in

(r) 3 Bro. P. C. 257. (»)1 Bro. C. R. 84. (t) Cas. Temp. Talb. 240. (a) 1 Atk. 386. (x) 1 Vez. 253.

(28) 345, 3d point, and see the case of Doe. dem. Turner v. Kett, 4 T. R. 601. A devised to B, and the heirs of her body. B died in the life-time of A. A, by a codicil, confirmed his will, held that the heir of B took nothing, although it appeared that A knew of the death of B, and of the birth of her son before he made his codicil.

Brown v. Selwyn, in his refusal of parol evidence. If a debtee makes his debtor executor, the debt is released at law; but if equity says the debt is not released, how can it give effect to this construction but through the medium of an implied trust, as the office of executor cannot be exerted against himself. Lord Talbot must, therefore, as it seems, have regarded the circumstances of Brown v. Selwyn, as making it the case of an implied trust, but not of a presumptive trust. And if we consider the relief in that case as grounded on the obvious justice of saving property from accidental loss by the technical extinction of the le gal remedy for recovering it, rather than on any creation of title by presumption, we shall think that Lord Talbot's firm opinion in Brown v. Selwyn, not chargeable with opposition to the doctrine of receiving parol evidence to rebut presumptions of equity.

*PART V.

Of the presumptive Trust in the Executor for the next of Kin of the Testator, as to the Surplus undisposed of by the Will. THE expansion of the doctrine of admitting parol and extrinsic testimony, to rebut presumptions in equity, has subdued the rigour of the rule, that an executor, to whom a legacy is given, is deprived, in equity, by the presumption raised by that circumstance, of the benefit of his legal title; and becomes a trustee of the surplus undisposed of by the will, for the nearest of kin to the testator which is a presumptive construction, supplied out of the matter of the instrument itself, and resting on an implied exclusion from the whole, by a specific gift of part.

It should be observed, that this question, as to the admissibility of parol evidence, will only properly arise where the legacy to the executor is accompanied by no particular words, denoting in a special manner the intention of the testator; for there may be cases, as Rachfield v. Careless,(29) wherein *the language where

(29) 2 P. Wms. 157, in which case a legacy of 51. was given to the executor for his care in fulfilling the will. Vide May v. Lewin, 2 P, Wms. 158, n. 1, and the remark by the court, in Clennell v. Lewthwaite, 2 Vez. jun. 473; also White. Evans, 4 Vez. jun. 21; and see the nu

H

[68]

When the question as to the admisrol evidence sibility of pa to repel this presumption properly ari

ses.

* [ 69 ]

When a le

gacy takes a way an executor's right to the sur

plus.

Of the distinction between admitting evi

dence to

by the legacy is given may carry the presumption so high, as to place it upon a level with an explicit declaration, and above all parol proofs to the contrary. Mr. J. Powis, who sat for the Chancellor, in the last mentioned case, declared his general repugnance to admit parol evidence in opposition to this equity for the next of kin, and stated it to have been a vexata questio, on which there had been the greatest variety of opinion in all the tribunals in which it had been agitated.

It seems that in the earlier cases, the hesitation in admitting parol evidence to repel this trust for the next of kin, arose, in a great degree, from the doctrine that in courts of equity an executor was not to be considered as any thing more than a trustee.(30)

merous distinctions on this subject in Mr. Coxe's note to Farrington v Knightly, 1 P. Wms. 549, and the cases in the note at the end of Nisbett v. Murray, 5 Vez. j. 158; see also Abbott v. Abbott, 6 Vez. j. 343, and Urquhart v. King, 9 Vez. j. 225, and the cases therein cited. The distinctions above referred to, conspire to the conclusion, that a legacy will not take away an executor's right to the surplus, unless such legacy is inconsistent with the supposition that he was meant to take the whole. It is to be observed, that in this case of Rachfield v. Careless, evidence seems to have been admitted in favour of the next of kin, upon which Mr. Coxe remarks, that it appears to be the only case in which parol evidence has been admitted in favour of the next of kin. No.hing, indeed, is more obvious than the distinction between raising and rebutting a presumption or an equity, for the latter of which objects, parol and extrinsic evidence can never, without great violation of the principles raise and to of law, be admitted, but the equity ought first to be raised by the prerebut an equisumptive construction of the instrument, to which equity parol evidence may be opposed, and then I conceive it follows upon sound maxims, both of law and equity, that parol evidence may likewise be adduced in opposition to this rebutting evidence, and in support of the original presumptive equity. And this, I apprehend, has always been the rule of proceeding; so that the observation of the learned editor just alluded to, must be understood as adverting only to the inadmissibility of parol evidence, in the first instance, and for the purpose of raising the equity. for the nearest of kin, against the legal title. Indeed, the parol evidence, in the case last mentioned, for the next of kin, seems to have been su perfluous, since the presumption against the executor, from the particular language of the bequest to him, was so strong as to amount to a declaration by the will itself.

ty.

(30) Vide the case of the duke of Rutland v. the Dutchess of Rutland, 2 P. Wms. 212, and the observation of Powis, J. in Ratchfield v. Careless, 1 P. Wms. 548. That an executor and administrator having paid

But since the case of Foster v. *Mount,(31) an executor has been uniformly regarded as entitled to the whole undisposed residue, unless there is a violent presumption to the contrary, which a legacy given to him by the testator, without any disposition of the surplus, was by that case considered as affording. There would be no end of enumerating the cases upon this subject, (32) but it may be useful to consider a little the important case of Nourse v. Finch,(y) which came before Mr. J. Buller, sitting for the Chancellor, in 1791. The judge made three points of the case: 1st. Whether parol evidence should be admitted at all; 2dly. If admissible at all, to what extent it could be admitted; 3dly. If all the evidence offered in the case was admissible, whether the evidence which was read was sufficient to rebut the equity of the next of kin, under the circumstances of that case. It was the decided opinion of the judge, that the evidence tended to a conclusion directly opposed to that for which it was brought forward, but he discovered a sentiment equally strong against admitting parol evidence at all in such cases, avowing his transitory situation in that court as his reason for declining an opposition to the series of authorities in the same court the other way. It appear ed also to be the clear opinion of the judge, that even under the shade of these authorities, at most only such part of the evidence could be admitted, which referred to the time of the making of the will, and that he probably would have rejected the evidence offered on that ground, if, under his third view of the case, it had not been clear against the executrix; and the force of Mr. J. Buller's objections have been feelingly acknowledged by great authorities since the decision abovementioned.

*The decree of the judge was afterwards confirmed by Lord

(y) 1 Vez. jun. 344.

all debts, legacies, and funeral expenses, was compellable to divide among the next of kin, is a position in 2 Inst. 33, which appears to have been inadvertently laid down.

(31) 1 Vern. 473, more particularly stated in 1 P. Wms, 8th edit. Coxe.

(32) In Clennell v. Lewthwaite, 4 Vez. jun. 471, which was decided ten years ago, it was observed by the Master of the Rolls, that the cases on the question were so numerous, that it was a disgrace to the court.

[71]

ral admissi

bility of parol evidence to repelthe presumption against the

executor.

Of the gene- Ch. Loughborough, on the insufficiency of the evidence offered, with an oblique concession to the authorities in favour of the ge neral admissibility of parol evidence to repel these presumptions; and since the case of Clennel v. Lewthwaite abovementioned, in which the reasoning of the judge in Nourse v. Finch was much under review, and ably observed upon, it seems to have been regarded as settled, that parol evidence of all kinds is admissible to rebut the resulting equity for the next of kin, arising from any circumstances in a will by implication excluding the executor from the benefit of his legal title; and it seems to be of no importance as to the mere question of admissibility, whether the matters in proof were contemporaneous with, or subsequent to the will, although there is admitted to be a great difference in the weight of the different kinds of testimony.

*[72]

Of technical

maxims re

All the cases anterior to that last abovementioned were then set forth in the order of time in which they were decided, and profoundly commented upon by the late Lord Alvanley, who yielded to the irresistible pressure of authorities for admitting the extrinsic evidence in these cases, except where the expressions of the will carried so prevailing an import against the executor, as to amount to a declaration of the trust for the next of kin, which, according to the effect given to it, in Rachfield v. Careless,(z) will shut out all access to argument from external circumstances. Finally, in Trimmer v. Bayne,(a) the doctrine received its full expansion and confirmation from the present Chancellor, who declared the sum and sense of all the authorities to be, that all parol declarations, whether made before, or at, or after the making of the will, were admissible to rebut presumptions, though they are not all alike weighty and efficacious. Whether they consist of conversations with people who have nothing to do with the question, of declarations provoked by impertinent inquiries, or in whatever form they arise, they are all evidence, though entitled to very different credit and weight, according to times and circumstances.

The equity for the nearest of kin of the testator, which has and forensic just been treated of, takes the shape of a resulting trust, and is, gulating the as has been seen, founded merely upon a presumption of intention. But there are some equities arising upon written instru

construction of instru

ments.

(3) 2 P. Wms. 158.

(a) 17 Vez. jun. 518.