perty, 26th November, 1792, when I made my will," in which paper the testator enumerated his freehold, copyhold, and leasehold estates, including those of his wife, and his bonds, mortgages, and other securities. In the last clause, he noticed a mortgage belonging to his wife before marriage, thus, "Harley-street mortgage, annual interest 30%. principal 600/." That mortgage, together with other securities, was classed under this description, "general personal estate, applicable to the payment of debts and legacies."

This evidence was received, and the chancellor determined, that it did put the widow to her election, but as the exact grounds of that judgment are very material to the point we are considering, and deserve to be critically understood, and cannot be well understood by perusing the report, involving, as it does, so much complication of circumstances, without a patient and laborious attention, I shall endeavour to place them before the diligent reader in a distinct order.

A short time before Druce v. Dennison came before the present chancellor, his lordship had to consider the case of Pole v. Lord Somers,(b) (concerning which, more will be said presently) a case very similar in its points; in deciding which, he seemed to feel a satisfaction in being enabled by the internal evidence of the will itself, to avoid a direct acquiescence in the decision of Pulteney v. Lord Darlington,(c) in respect to the admission of the evidence proposed: in which last-mentioned case evidence extrinsic to the will had been received, to show that a testator who had a sum of money in his hands, under a trust to be laid out in lands for his own entire benefit, and who was therefore competent by the rules of a court of equity to dispose of such interest, either as land or money, had elected to pass this disposeable interest as personal estate, and in the shape of money; and in which said case of Pulteney v. Lord Darlington, the evidence offered *and admitted,(13) was a statement of his property, drawn up for *[ 38 ]

(b) 6 Vez. jun. 309.

(c) Reg. Lib. a. 1773, fo. 710. 1 Bro. C. R. 177.

(13) The case of Pulteney v. Lord Darlington, seems to have been decided on the doctrine laid down by Lord Chancellor Somers, in Chichester. Bickerstaff, 2 Vern. 295, that while the money to be laid out

Of the ad

tions of a tes

the testator by his steward, in pursuance of his directions, at a distance of some years(14) from the making of the will, describing the property in dispute as personal property.

in lands remains money, it shall be part of the personal estate of the person who might have aliened the land; or, as Lord Thurlow explained it, where a sum of money is in the hands of a person without any other use but for himself, it will be money, and the heir cannot claim. (Vide the cases in 2 P. Wms. 174, note by the editor.) If Lord Thurlow had rested his decision entirely on that doctrine, independently of the evidence produced to show an act of election in the testator, Lord Eldon would not, in the cases of Pole. Lord Somers, and Druce v. Dennison, have found himself embarrassed by the authority of that case; but the extrinsic evidence was admitted and acceded to, though the professed ground of the judgment seemed not to require it.

(14) In the above mentioned case of Druce v. Dennison, Lord Eldon missibility of observed, that formerly the courts were very jealous of admitting evithe declara- dence of declarations by the testator, except such as were made by tator made him about the time of making the will; and towards the conclusion of before, after, his decree in that case he remarked, that in receiving parol evidence, or at the time it gave him great satisfaction to find, that it was contemporary with the of the making of the will. In Nourse v. Finch, 1 Vez. jun. 359, Buller, J. expressed a will. stronger opinion against admitting declarations which did not take place at the time of making the will. The further we go back in tracing this disposition to reject parol evidence of declarations made before or after the will, the more emphatically we find it expressed. Thus in 1 Vez. 324, Lord Hardwicke observed, that the time of making the declarations was very material, and no regard ought to be paid to declarations made not at the time of making the will. Thus, again, in the case of the Duke of Rutland v. the Dutchess of Rutland, 2 P. Wms. 215, it was said by Lord Macclesfield, that allowing parol evidence was exceedingly dangerous, and not to be done in the case of discourses made at a different time from that of making the will. And again, by Tracy, J.* it was said, that no regard ought to be paid to expressions before or after the making of the will, which possibly might be used by the testator, on purpose to disguise what he was doing, or to keep the family quiet, or for other secret motives or inducements. But to close this view of opinions upon the subject, the reader must be cautioned against understanding the positions of the present Chancellor, in 7 Vez. jun. page 518, with too much latitude; what he there observes as to the general admissibility of parol declarations, is applicable and was applied only to the question, whether an executor being also a legatee in a will is a trustee for the next of kin, or beneficially entitled himself to the residue

* 2 Vern. 625.

3

a suf

*In Pole v. Lord Somers, the Chancellor was glad to find ficient ground in the contents of the will itself to rest this judgment upon, without the necessity of positively recognising or disclaiming the doctrine as to the evidence imposed on him by Pulteney v. Lord Darlington. But the pressure of that case, so studiously avoided by him in Pole v. Lord Somers, recurred in the subsequent case of Druce v. Dennison. The paper exhibited in the last mentioned case, and which has been above stated, was similar to that which occurred in the case of Pulteney v. Lord Darlington, except that it was more pregnant with testimony of intention, as having been found in the same box with his will, and containing an express reference to it whereas, the paper in Pulteney v. Darlington, was long anterior to the will, and did not seem to be prepared with any immediate view to it, neither was it a statement made by the testator himself. The simple question as to the propriety of admitting parol evidence for the purpose for which it was offered, seemed to his lordship so ripe and

:

as undisposed of; which is a question of rebutting an equitable presumption, as will be explained in another place. His lordship then lays down the affirmative with respect to the general admissibility of parol declarations to repel this presumption of equity in favour of the next of kin, with the following important distinctions, viz. that in the degrees of such evidence, contemporary declarations are clearly of the greatest weight-next to such contemporary declarations, when it is the case of a will, those which are made after the making of the will, are the most efficacious, for, a declaration after the will as to what the testator had done, is entitled to more credit than one before the will as to what he intended to do, for that intention may very well be altered; but he knows what he has done, and is much more likely to speak correctly as to that than as to what he proposes to do. But with these, and perhaps, other distinctions, such parol declarations by a testator are all alike admissible-they are to be decided upon by their weight-but by their nature they are all admissible. The caution, however, with which all declarations by a testator should be admitted, is well pointed out in the same judgment in Trimmer v. Bayne, viz. that these declarations may be made with a view to delude, as being a necessary artifice to keep the peace of families. In Trimmer v. Bayne, it was one of the grounds of the judgment, that the declarations there stated to have been made, and offered as evidence, had an evident purpose of deceiving and baffling the curiosity of the party inquiring.

* Vide Trimmer v. Bayne, 7 Vez. jun. 519.

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urgent for decision, that although there appeared, in his opinion, to be much in the will itself, which, if fairly and critically reasoned, might of itself go far towards establishing the construction he was prepared to give to it, and the rejection of the paper as testimony did not involve the extinction of its operation, since there was good ground for thinking that it might be proved as a testamentary paper in the commons: yet, he chose to ground his opinion as to the admissibility of the paper in question, upon the authority of the decision in Pulteney v. Lord Darlington; which being a case in which the will itself presented no ambiguity, and in which there was property to an immense amount to answer the words of the will, afforded an unmixed precedent for the reception of this collateral testimony in manifestation of a testator's intention, as to the import and extent of a particular *descriptive phrase, in a case where the application of the description to the property in question would affect the quality of the estate, and determine the rights and obligations of parties claiming under the testator. We have to thank his lordship for the breadth of this decision, and the certainty it will impart to this delicate question for although there certainly are some visible differences between the cases of Pulteney v. Lord Darlington, and Druce v. Dennison, yet the steady administration of justice requires, that the minuteness of subdivision should terminate within tangible limits, and before it ceases to be readily intelligible and applicable.

To the student, however, it may afford an useful exercise to proceed somewhat further in the consideration of these distinctions. In which investigation he will not fail to observe, that the subject of the devise in Pulteney v. Lord Darlington, was already the testator's property, and that the point of inquiry in the case was only as to the view the testator himself took of it. He will also observe, that the words of the will were applicable to it in their strict sense; that it was in law personal estate, and the testator's own, to every beneficial intent; but having been once impressed in equity with the character of land, by virtue of the trusts to which it had been made subject, the question was, whether the testator designed to treat it as land or money by his will, it being clearly competent to him to make it in equitable consideration either the one or the other.

The Chancellor seemed to think, that no act of election was necessary to make it personal estate, the sum being already at home, and the particular purpose no longer requiring it to be laid out in land; but that if it were to wait for an act of election, such act of election was an ambiguity in fact, which arose upon look ing beyond the will into the state and arrangements of the property, and that collateral evidence was proper to resolve that sort of ambiguity.

*In Druce v. Dennison, the question was not how the testator had elected to treat a property already his, in order to determine whether the subject passed under a description verbally competent to embrace it as such, but whether a property, not strictly the testator's, was to be embraced by words not strictly applicable to it, so as to affect the original title, and not, as in Pulteney v. Lord Darlington, a title derived under it. Druce v. Dennison, and Pulteney v. Lord Darlington, were both cases of construction purely ; but the evidence in the latter case, through the medium of imputed intention, went to give to the words used an application agreeable to their real import; whereas, by the evidence offered in Druce v. Dennison, it was proposed to stretch the application of the words, by inference from intention, to a subject of which they were not properly descriptive, in order to raise a case of election, as against the person who claimed by title in opposition to such construction. The evidence, therefore, in Druce v. Dennison, went, not merely to ascertain the quality of the subject, in order to decide to what description of claimants or representatives it properly belonged, but to set up a meaning beyond the literal expression. It is therefore a case of great importance and strength -it was the reluctant decision of a cautious mind, pronounced after long deliberation, and suggested by a solemn impression of the benefit of uniformity and certainty in the administration of public justice. Though there was much in the context of the will itself, by the help of which, the chancellor might have supported his decree, yet he chose, for the sake of legal repose, to rest his decision exclusively on the doctrine, that evidence dehors the will might be received to explain the intention of the testator, so as to raise a case of election, and to link the authority of his respected name to that of Lord Thurlow, of C. J. De Grey, of Baron Eyre, and of Lord Alvanley.

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