of lands to be purchased in pursuance of the will, at the usual fees allowed to agents, he having acted for the testator since he became possessed of the estate fully to his satisfaction. The testator also bequeathed to his friend and agent Mr. Lawless £150 to purchase a monumental tablet. Soon after the testator's decease, Shaw, the devisee for life, dismissed Lawless from his office as land agent, but without impeaching his character or capacity. Lawless filed a bill against Shaw, claiming to be re-instated, which was dismissed by Lord Plunket; whose decree, however, was upon a re-hearing reversed by his successor. After reading the clause of the will applicable to Lawless, Sir E. Sugden inquired, "Is that a simple recommendation to continue him in an office removable at pleasure, and which the devisee may put an end to the next hour? or, is it a direction to continue him against the will of the devisee, subject of course to the conditions implied, that he conduct himself honestly and faithfully in the discharge of his duty, and continue competent both in mind and body? Does it mean that the agency should be of the same character, and that he was to be continued in the same manner as he was employed by the testator himself, that is, removable at pleasure?" His lordship then proceeded to show at some length that it was clearly imperative on the trustees to employ Lawless during Shaw's minority. "Now if it was," he continued, "imperative on the trustees to employ him during the minority, can I draw a distinction and say, that a different right was given by the same words to Shaw from that given to the trustees, particularly in a will where, as I have pointed out, the testator knew how to distinguish the powers which he gave, according to the persons by whom and the period at which they were to be exercised? If imperative on the trustees, it was equally so on Shaw, when he succeeded to the estate. If you look at the language of the clause there can be no doubt as to the intention. It is in substance this: I have found him a faithful agent to myself, and it is my particular desire that you retain him in the management of the estate, and I will leave no doubt as to the fees he is to receive. The word 'continue' is used in the first part of the clause, and in the second the words ' retain and employ.' These are strong words importing a continuance and endurance as long as he conducts himself properly. In the preceding clause there is an absolute gift of £150 for charity, and a direction that it should be paid to Lawless, to be by him distributed. Can any one doubt that this is imperative? though merely a direction it is nevertheless just as binding as the gift itself of the money to the poor. This is followed by the clause in question, and it is also my particular desire,' &c.; these words, in connection with the gift in the preceding clause, import a gift also to Lawless himself: then it is said Shaw is made tenant for life, and can you cut down his life estate? To this I answer, I leave him as I find him. The testator employed this gentleman to receive his rents, and desired his devisee to continue him; this is in the nature of a condition imposed on the tenant for life, and therefore the person who takes the estate must perform the condition. It is said that this was intended for Shaw's benefit. It may be so, but not exclusively; I have no means of forming a judgment whether it was or was not. I cannot say whether the testator may not have intended a benefit to the estate itself; he certainly did, so far as he made it imperative upon the trustees to employ Lawless during the minority. A very young man was about to step into possession of an estate; the testator, therefore, might wisely say, 'I will take care to have a faithful agent employed for the benefit of the estate itself; I will at the same time make the office a reward to a tried agent for his past exertions.' Then it is said, Suppose the testator recommended the devisee to employ a particular baker or tailor; well, suppose the testator did make such a condition in clear express terms, for it would not be implied; a man may devise an estate under any condition he pleases, provided it is not an illegal one." Shaw v. Lawless in D. P. sion below. [The decision of Sir E. Sugden was, however, reversed, and that of Lord Plunket established in D. P., (c) on the ground reversing deci- that a gift of an estate to one person is inconsistent with a direction that another should have the management of it. Lord Cottenham said, "If Lawless' title is what it has been argued to be, he has an equitable charge on the legal estate of Shaw; and as he is to have the usual fees of £5 per cent., the result would be that Lawless would not only be an equitable encumbrancer to that amount, but would have a right to manage and direct the estate, and would have full power over the conduct of the property. If so, the testator must have intended that Shaw, to whom he gave the estate for life, should not have the direction of his own estate; for the two powers of direction and management are inconsistent with each other. He must be taken on this view of the case to have intended that the legal devisee for life should not have the management, but that the equit [(c) Shaw v. Lawless, 5 Cl. & Fin. 129. See also Finden v. Stephens, 2 Phil. 142. able encumbrancer on the real estate should have the control and management of the property. But the trustees of the will are, during a considerable part of the time, to have not only the management of the estate which the testator devised, but are authorized and directed to lay out part of the personalty, the residue, in the purchase of other lands. If Lawless is the equitable encumbrancer to the amount of one-twentieth part of the income of the estate, he has a clear interest in the residue, for he might take one-twentieth part of the residue. He might file a bill in chancery, in order to control the application of the residue, and claim to be absolutely interested in what he is entitled to receive, namely, this one-twentieth part." The observation as to Lawless being entitled to one-twentieth share of the residue seems scarcely applicable, for he had in fact, at the utmost, only a percentage on the rents as a salary for performing a duty, and that only so long as he performed it properly and obeyed his employer. (d) The due yearly performance of that duty was, therefore, a condition precedent to his right to receive his yearly precentage, and such a right to a percentage of the receipts could scarcely be converted into a right to a like percentage of the capital.] (d) Bee 1 Ll. & G. 172. *CHAPTER XIII. PAROL EVIDENCE, HOW FAR ADMISSIBLE. As the law requires wills both of real and personal estate (with an inconsiderable exception) to be in writing, it cannot, coninadmissible to sistently with this doctrine, permit parol evidence to control will. be adduced, either to contradict, add to, or explain the Parol evidence 1. It has seemed to the editors desirable to confine the notes in this chapter to cases where the question raised and settled has been upon a will, omitting many cases of contract involving the same or a like principle. It has also been their endeavor to consider here only such questions as relate to the construction of wills by parol evidence, leaving for consideration elsewhere all questions relating to the execution and validity of wills-such as questions of testamentary capacity, undue influence, fraud, &c. It is well established that "there is no material difference of principle in the rules of interpretation between wills and contracts, except what naturally arises from the different circumstances of the parties." 1 Greenl. Ev., 287. To this Mr. Greenleaf adds (289): "In regard to wills much greater latitude was formerly allowed, in the admission of evidence of intention, than is warranted by the later cases. The modern doctrine on this subject is nearly or quite identical with that which governs in the interpretation of other instruments; and is best stated in the language of Lord Abinger's own lucid exposition, in a case in the exchequer. [Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363, 367.] "The object,' he remarked, 'in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read his will as he has written it, and collect his intention from his words. But as his words refer to facts and circumstances, respecting his property and his family, and others whom he names or describes in his will, it is evident that the meaning and application of his words cannot be ascertained, without evidence of all those facts and circumstances. To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the objects of his allusions or statements; and if these are not fully disclosed in his work, we must look for illustration to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or property, to which the will relates, are undoubtedly legitimate, and often necessary evidence, to enable us to understand the meaning and application of his words. Again, the testator may have habitually called certain persons or things by peculiar names by which they were not commonly known. If these names should occur in his will, they could only be explained and construed by the aid of evidence, to show the sense in which he used them, in like manner as if his will were written in cipher, or in a foreign language. The habits of the testator, in these particulars, must be receivable as evidence, to explain the meaning of his contents of such will; (a) and the principle of this rule evidently demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator's intended disposition; for it would have been of little avail to require that a will ab origine should will. But there is another mode of obtaining the intention of the testator, which is by evidence of his declarations, of the instructions given for his will, and other cireumstances of the like nature, which are not adduced for explaining the words or meaning of the will, but either to supply some deficiency, or remove some obscurity, or to give some effect to expressions that are unmeaning or ambiguous. Now there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it, perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in the will), the testator in tended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted by the words he has used, in that case there is what Lord Bacon calls "an equivocation," that is the words equally apply to either manor; and evidence of previous intention may be received to solve this latent ambiguity, for the intention shows what he meant to do; and when you know that, you immediately perceive that he has done it, by the general words he has used, which in their ordinary sense, may properly bear that construction. It appears to us that in all other cases, parol evidence of what was the testator's intention ought to be excluded, upon this plain ground, that his will ought to be made in writing; and if his intention cannot be made to appear by the writing, explained by circumstances, there is no will.'" The reader's attention is also called to the oft-quoted seven propositions of Vice Chancellor Wigram, which form the framework of his treatise on extrinsic evidence in aid of the interpretation of wills. They are here inserted in full for convenient reference. Wigram Extr. Ev., p. 55 (Am. ed., 1872): I. "A testator is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless from the context of the will it appears that he has used them in a different sense; in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. II. Where there is nothing in the context of a will, from which it is apparent, that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. III. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted, [(a) Goss v. Lord Nugent, 5 B. & Ad. 64, 65; Wigram on Wills 5; Lowfield v. Stoneham, 2 Stra. 1261.] |