[336]

The testator died soon after, and left Richard Hill, his son and heir at law, Betty Nuttall Hill, his grand-daughter, and all the trustees, surviving. The grand-daughter married, but no conveyance of these estates was ever made. At her marriage several of the trustees were living. She died soon after her marriage, and then two of the trustees were living. Her father, Richard Hill, lived eight years after her, and at his death only one trustec, George Stansfield, was living. The trustee proved the second instrument in the ecclesiastical court as testamentary, and the general question arose between the surviving trustee and the heir at law of the testator.

I shall call the reader's attention to the several points distinctly and successively, as they arose in the case. And first, we are to observe that, considering the second instrument as void and out of the way, the trustee claimed the whole for himself, on the ground that the legal estate, under the will, independently of the deed poll, was vested in him, and remained in him, after all the limitations failed for want of objects; and that, therefore, there was no resulting trust for the heir at law. As to which point, Mr. Justice Wilson made the following observations: "That the estate was given to five persons in trust, first for payment of debts; that was in trust for a purpose which might last for ever; and that the cases were innumerable to prove that such a trust affects the whole estate. If so, the consequence was, that by the first devise of all his real estate to these five persons, *the testator gave only the mere legal estate, and that the trust was entirely undisposed of, except as to those express dispositions by the will for payment of debts and legacies, to complete a purchase, &c. As far as that trust estate was disposed of by the will, so far it was disposed of; as far as it was not, so far it was undisposed of; and the trustee could not say that the words giving all to him, would pass both the legal and equitable interest; and that it rested with the heir to show, that the equitable interest was taken out of the trustee by an express disposition. It was enough for the heir to say, that it was not given to any one else; and that it rested with the trustee to show, from the other parts of the will, that the equitable interest, or part of it, was given to him. He claimed under the will, and could only claim under the will, and must therefore show, that it was given to him by the will. That this way of considering the point, removed

the only argument used in support of the claim of the trustee, namely, that part of the equitable interest was expressly given to the heir, 50%. a-year till the debts were paid, and 1501. a-year afterwards; from which it had been concluded, that part of the equitable interest being expressly given to him, nothing more was meant to go to him. But that what the intention was in that respect was immaterial, if it was not actually given to some other person; for that there was no way to exclude an heir, but by giving the estate to somebody else. And that, therefore, if from the circumstance of part being so given, an inference could be raised, that the testator meant the heir should have no more, yet even against the intention the heir should take.

Since, therefore, under the will, the trustee could not support his personal title in opposition to the resulting trust for the heir at law of the testator, his next reliance was on the ultimate disposition by the subsequent instrument in favour of his own heir at law. And to decide this question, it was necessary to determine the quality and effect of that instrument. If it was a deed, and incapable of being considered in any other light, as two instruments of a different *nature and genus could not unite, the limitations by the deed, if as a deed it could operate, would be too remote, being not to take place in a connected and continued series upon the precedent estates created by the will, but to have their commencement upon the termination of them; or, in other words, as being to spring up as executory trusts after an indefinite failure of the issue of the grand-daughter, they would be too long postponed to be within the allowance of the law; and as the Court of King's Bench, when the case came to them from the Court of Chancery, considered the second instrument as a deed, they returned an opinion to that effect. If the deed poll could operate as a testamentary instrument, and was in that view of it capable of uniting with the will, then the limitations created by it might flow in a connected series after the estates given by the will, and might consequently be regarded as contingent remainders; and if the limitation to the heirs of the surviving trustee was a contingent remainder, then a consideration would arise in respect to the freeholds, (which did arise in respect to the copyholds) viz. whether such remainder failed by the expiration of the preceding vested estates in the life-time of the trustee; which would have started the questions, whether, as it was a devise to

*[ 337 ]

[338]

till the death

of the party

trustees upon trust to convey, and not a direct disposition to uses, the Court ought not to make the same conveyance then, as it would have made immediately after the death of the testator; when, if it had been then called upon, it would have interposed trustees to support contingent remainders, according to the intention of the testator; or whether the legal estate in the trustee would not, of itself, have been sufficient to support the remainders.

But the Lord Chancellor, assisted by the judges, determined this case upon principles which superseded these questions of relief, by concluding against the second instrument, under the consideration of it as a testamentary paper (in which light they unanimously allowed it might be regarded, notwithstanding its form of a deed) for want of a proper execution and attestation, under the statute of frauds and perjuries.

It was clearly recognised and established for law in this case, If an instru- that an instrument, whatever is its form, whether it be a deed ment is not intended to poll or indenture, is testamentary in its operation and quality, if have effect it be intended not to operate till the death of the party who made it.(h) The circumstance, and not the form, must decide the it is testa- character of the instrument. Thus, therefore, this deed could mentary in have no other operation than as a testamentary paper; and preand quality, sented itself, under this general character, in three distinct lights whatevermay -as a codicil—as an exercise of the power reserved by the will— or as an integral and original part of the will itself, by incorporation into its substance.

its operation

be its form.

Now a codicil has a distinct commencement, and though it is said to be a part of the will, yet it becomes so by first acting upon the will, and in a manner drawing it down to the date of its own publication; and can have no operation upon freehold estate, either as part of the will, or by its own efficiency, unless it be attested as the statute directs.(122)

(h) Moor, 177. 2 Leon, part 4, 159, 166. Audley's case, Dyer, 166 a. Greene v. Proude, 1 Mod. 177.

(122) If a testamentary paper, or writing, referred to by the will, is in being at the time of the will, it may be considered as if inserted in the will, and need not be attested.

tion.

* [ 339 ]

As an exercise of a power of appointment, it is met by the Difference between a rule, that a testator cannot, by his will, reserve a right to devise conveyance freehold estate by a future testamentary instrument, not attested to uses and a will, in reaccording to the statute of frauds, however practicable this may spect to the be under the uses of a conveyance. Where there is a convey- legality of reserving a ance, and a power is reserved under the uses thereof, the estate power of fuis parted with, the land is gone, and the power, which is in truth ture disposionly an executory use, is collateral to the land, and may be limited to be executed' by any instrument whatever; by a deed or writing, or, perhaps, by a will, with or without witnesses for its specific operation is not in question, where the terms of the conveyance in reserving the power have defined the mode of its execution; though, as we have seen, if it be reserved to be executed by a will in general terms, the party will be understood to have intended a proper will, according to the statute. But by his will, a man parts with nothing before his death, till which time his will is ambulatory, incomplete, and revocable; he has the same absolute dominion he had before; and if by any subsequent act he parts with any portion of his estate, whether it be part of that already devised, or a part affected to be specially reserved for his future appointment, he parts with it as owner, and not instrumentally, and by virtue of an original, and not a derivative power.

fers, if it comprise a disposition of real pro perty, to be effectual as a

testamentary paper,

But the truth seems to be, that every paper to which a will re- Every paper fers must be incorporated originally with the will itself, if real to which a will, duly atproperty is to be affected by it, or it can avail nothing, unless it tested, reis itself executed according to the statute of frauds. And further, the rule is, that an instrument properly attested, to incorporate into itself another instrument, not attested, must describe it so as to manifest distinctly what the paper is that is meant to be incorporated in such way that the court can be under no mistake.(†) Therefore, it did not appear to the court, in Habergham v. Vincent, that the second instrument, although testamentary in its nature, could be incorporated into the will; which referred to nothing actually in existence, but to an intention merely; and has been sufficiently shown, that the will could create no power with a special mode of execution. In that case, Mr. Justice Wil son said, that he believed it to be true, and he had found no case to the contrary, that if a testator in his will refers expressly to

† Sed quære et vide supra. 332.

(i) Smart v. Prujean, 6 Vez. jun. 565.

it

must either be incorpora ted originally into the will, or be executed according to the statute; and such paper, to be so incorporated must be disred to and tinctly refer

described by any paper already written, and has so described it that there can such will. be no doubt of the identity, and the will is executed in the preDifference between a sence of three witnesses, such paper makes part of the will, whereference to ther executed or not; and by such reference he *does the same as a paper actually in exist if he had actually incorporated it. Because words of relation have ence at the a stronger operation than any other. But the difference between time, and one intended that case, and the relation to a future intention, is striking: in the to be writ- former, said the judge, there is a precise intention at the time of making the will; for the paper makes out the intention at the time; but when a man declares he will, in some future paper, do something, he says, he will make a will as far as his intention is then known to himself, but he will take time to consider what he will do in future.

ten.

*[340]

With respect, however, to the copyhold estate,(123) mentioned *[ 341] to have been the subject of the dispositions in the case above

An exposition of the grounds of construction

as to the ef

fect of the limitations in Habergham

Vincent.

(123) As the second instrument was allowed to have an operation in respect to the copyholds, as a codicil to the will, it became necessary to consider of the proper construction of the limitations, and of the consequence arising from the expiration of the preceding estates before the limitation to the heirs of the surviving trustee could take effect. It may spare the student some trouble in exploring his way through the intricate passages, and amidst the multiplied objects presented to his view, in the very complex, yet, if well understood, most instructive case of Habergham v. Vincent, if I add in this note some exposition of the grounds on which the court determined in favour of the heir of the surviving trustee, in respect to the copyhold part of the testator's property. For this purpose, I shall recal his attention to the terms of the particu lar dipositions contained in the will of 1759, and the succeeding instrument, or the testamentary paper, which may, to our present purpose, (being now concerned only with the copyholds) be considered as a codicil sufficiently executed. The testator devised copyhold estates to five persons, by name, and the survivors and survivor of them, and the heirs of the survivor upon trust, upon the marriage or majority of his grand-daughter, to convey to her an estate for life, remainders to trustees to preserve contingent remainders, remainder to her first and other sons in tail-male, remainders to her daughters in tail-general, remainder to such person or persons, for such estate and estates, and subject and liable to such charges, provisoes, and conditions, as he should by any deed or instrument, in writing, to be executed by him, and to be attested by two or more credible witnesses, direct, limit, and appoint, and to no other purpose. The will was duly executed and attested. By a codicil, dated the following day, the testator directed that his trustees

D