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Carne v. Long, 2 D. F. & J. 75; Cocks v. Munners, 12 Eq. 574; Chaudière Mining Company v. Desbarats, L. R. 5 P. C. 277.

2. By the statute 33 Vict. c. 14, real and personal pro- 2. Aliens. perty of every description may be taken, acquired, held, or disposed of, by an alien in the same manner in all respects as by a natural-bom British subject.

It has been decided that the Act is not retrospective. And apparently it does not apply to a will made before the passing of the Act, though not coming into operation till afterwards. Sharp v. St. Sauveur, 7 Ch. 343.

In cases before the Act land devised to an alien remains in him till office found, when it devolves to the Crown, and this is the case whether the land is devised to trustees or not. . Barrow v. Wadkin, 21 B. 1; Sharp v. St. Sauveur,

' 7 Ch. 343.

An alien could always take the proceeds of land devised on trust for sale. Du Hourmelin v. Sheddon, 1 B. 79; 4 M. & Cr. 525.

3. Formerly personal property vested in a felon after his 3. Felons. conviction, during the period of his punishment or before his pardon, was forfeited to the Crown. Roberts v. Walker, 1 R. & M. 752.

But property not vested in a felon till after his imprisonment was not forfeited. Stokes v. Hollen, 1 Kee. 145; Barnett v. Blake, 2 Dr. & S. 117; Gough v. Davies, 2 K. & J. 623; Re Thompson's Trusts, 22 B. 506; Re Harrington's Trust, 29 B. 24.

Now, by 33 & 34 Vict. c. 23, forfeiture and escheat for treason, felony, and suicide are abolished; and by section 10 all the real and personal property, including choses in action, to which the convict was at the time of his conviction, or shall afterwards become entitled, vests in an administrator appointed under the Act.

By the Civil Procedure Acts Repeal Act, 1879 (42 & 43

nesses,

Vict. c. 59), s. 3, outlawry in consequence of any

civil

proceeding is abolished. 4. Attest.

4. By the 15th section of the Wills Act, a legacy given ing wit.

to an attesting witness, or to the husband or wife of an attesting witness, is void.

The subsequent marriage of an attesting witness to a devisee does not avoid the devise. Thorpe v. Bestwick, 6 Q. B. D. 311.

A person attesting the signature of two marksmen, witnesses to a will, is himself an attesting witness. Wigan v. Rowland, 11 Ha. 157.

But a gift by will to the attesting witness of a codicil is good. Gurney v. Gurney, 3 Dr. 208.

Where, however, a contingent gift by will is made absolute by a codicil which the legatee attests, and the legatee could only have taken under the codicil, the gift is void. Guskin v. Rogers, L. R. 2 Eq. 284.

And a gift to an attesting witness is void, though there may be a sufficient number of witnesses without him. Randfield v. Randfield, 11 W. R. 847, see 8 H. L. 225; Cozens v. Crout, 21 W. R. 781; see In bonis Sharman, 1 P. & D. 661, and see ante, p. 30.

A gift to a witness attesting the will is good, if the will is afterwards revived by a codicil referring to it. Anderson v. Anderson, 13 Eq. 381.

A gift to an attesting witness as trustee is not void. Cresswell v. Cresswell, 6 Eq. 69.

A gift to a trustee upon trusts declared by parol in favour of an attesting witness is void. In re Fleetwood; Sidgreaves v. Brewer, 49 L. J. Ch. 514; 15 Ch. D. 594.

95

CHAPTER XIV.

DESCRIPTION.—WHAT PASSES UNDER A SPECIFIC

DESCRIPTION.

With regard to the question what evidence is admissible What evi.

dence is for the purpose of discovering to what the terms of de- admissible. scription employed by the testator refer, evidence of the testator's intention must be distinguished from evidence of circumstances from which the Court may conclude what the testator's intention must have been. The former evidence is admissible only in rare cases. The latter is generally admissible. Thus : 1. “ All facts relating to the subject matter of the devise, Surround

ing circum such as that it was or was not in the possession of the stances. testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in the will." Doe d. Templeton v. Martin, 4 B. & Ad. 771, 785, per Parke, J.; Sanford v. Raikes, 1 Mer. 646.

2. Words of art, foreign words, nicknames may be ex- Terms of plained by evidence. Kell v. Charmer, 23 B. 195; Goblet v. Beechey, 3 Sim. 24; 2 R. & My. 624; Lee v. Pain, 4 Ha. 251. 3. Where a word has a meaning in common use, but has Evidence

of custom. a different meaning by local custom, evidence of the custom is admissible. Shore v. Wilson, 9 Cl. & F. 545, 566 ; Richardson v. Watson, 1 Nev. & M. 575; Clayton v. Gregson, 5 A. & E. 302; Smith v. Wilson, 3 B. & Ad. 728; Anstee v. Nelms, 1 H. & N. 223.

art.

a

name,

It has been held that, where a measure is defined by statute, evidence is not admissible to show that the word has a different meaning by custom. O'Donnell v. O'Don

nel, 1 L. R. Ir. 284. Word with 4.. Where a word has a meaning in ordinary language, natural meaning, but there is nothing to which it can apply, evidence is but

admissible to show that the testator used the word in a nothing to which it meaning peculiar to himself. This case falls within the can apply.

second head above mentioned. Word with 5. But if the word has a meaning in ordinary language, natural meaning and there is something to which it applies, evidence is not and some admissible to show that the testator used it in a different thing to which it

or wider sense, there being no general custom to that effect. applies.

Millard v. Bailey, L. R. 1 Eq. 378. Devise of 6. If lands are devised by a particular title, evidence is estate by

admissible to show what the testator habitually included under the name. Doe d. Beach v. Lord Jersey, 3 B. & C. 180; 1 B. & Ald, 550; Ricketts v. Turquand, 1 H. L. 472; Webb v. Byng, 1 K. & J. 580; Whitfield v. Langdale, 1 Ch. D. 61 (devise of Claggetts); Jennings v. Jennings,

1 L. R. Ir. 552. Devise of 7. Where a testator devises his estate of A., or at A., estate of or at A. and there is an estate answering the description, evidence

is not admissible to show in what sense the testator used the expression. Doe d. Chichester v. Oxenden, 3 Taunt.

147; 4 Dow. 65; Doe d. Browne v. Greening, 3 M. & S. 171. Patent 8. No evidence is admissible to explain a patent ambiguity may not be ambiguity; for instance, if the testator uses symbols, explained. which on the face of the will require explanation and

have no meaning to any one but himself. Clayton v. Lord Nugent, 13 M. & W. 206; see Sullivan v. Sullivan, I. R. 4 Eq. 457.

When the admissible evidence has been taken, the >

following rules apply to determine to what the words of description used by the testator refer:

there is

ini

that alone
passes.

from whom

550;

1. Non accipi debent verba in falsam demonstrationem Where quæ competunt in limitationem veram.

something Therefore, where there is property, which exactly fits all the testa

answering

tor's de. the terms of the description, the whole of it passes and no Wilbur shunday Smith Midsay <R.18.33ship to con

16 more. Soad vitaylen (1894) 7 . 316

It is immaterial whether the larger words precede or follow the restricting words, provided there is something to which the whole description applies. Thus, a devise of lands described as in the parish A., and Reference

to occuin the occupation of a particular person, will not pass lands pation. not in the occupation of that person. Doe d. Parkin v. Parkin, 5 Taunt. 321; Morrell v. Fisher, 4 Eq. 591 ; Homer v. Homer, 8 Ch. D. 758. So the general description may be restricted by a refer- Reference

to title of ence to the person from whom the testator purchased or person derived the land. Doe d. Tyrrell v. Lyford, 4 M. & S. lands de

. Doe d. Conolly v. Vernon, 5 East, 51; Doe d. Harris rived. v. Greathed, 8 East, 91; Roe d. Ryall v. Bell, 8 T. R. 579 ; Doe d. Newton v. Taylor, 7 B. & C. 384; Cooch v. Walden, 46 L. J. Ch. 639. If the lands are described as being at A. in the county Reference

to county. of B., lands not in that county will not pass.

Webber v. Stanley, 16 C. B. N. S. 698; Pedley v. Dodds, 2 Eq. 819.

Descriptiou of a farm as freehold excludes a leasehold Freehold portion of the farm. See p. 165; Stone v. Greening, 13 Sim. 390; Hall v. Fisher, 1 Coll. 47.

It seems that a devise of lands at A. is not to be limited Devise of to lands within the parish of A., but would carry immediately adjoining lands in a neighbouring parish.

This is clearly the case where the devise is of lands at or At or near near A. Homer v. Homer, 8 Ch. D. 758.

But a devise of lands at A. will not include lands some distance from A., where there are lands to which the description applies. Attwater v. Attwater, 18 B. 330; Doe v. Bower, 3 B. & Ad. 453; see Doe d. Dell v. Pigott, 1 J. B.

farm.

a

lands at A.

A.

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