Page:The English Reports v1 1900.pdf/1215

Vernon should hold and enjoy the house at Hanbury, and the lands held therewith, according to the testator's will; and that the trustees should pay her the annuity of £1000 half yearly, free from deductions, except parliamentary taxes; and proper directions were thereby given for the safe keeping of the title deeds relating to the testator's real estate, at his house at Hanbury, and also touching the charities given by his will and codicil. And as to the manuscript cases and reports collected by the testator, all parties submitting and desiring that the same might be inspected, printed and published, as the court should think best, for the reputation and honour of the testator, and for the benefit of the profession of the law, his Lordship reserved the further consideration thereof; and it was further ordered, that all parties should have their costs in that cause, to be taxed and paid out of the testator's personal estate, except the appellants; if they should think fit to execute such effectual release, or relinquish what was to them or either of them given by the will; as before directed; then they were likewise to have their costs of that suit, to be taxed and paid out of the said personal estate.

The appellants apprehending this decree to be erroneous, and contrary to the fixed and established principles of law and equity, appealed from it; and in support of the appeal it was argued (C. Wearg, L. Stueley), that the testator, by his codicil, had ratified and confirmed his will, except in the alterations in his codicil mentioned; the most material of which alterations, so excepted, was the devise of that real estate to Mr. Keck and Mr. Nicoll only, which he had before by his will devised to other trustees named in the will; and therefore this excepted devise was an absolute revocation of that part of his former will. That this real estate being only devised by the codicil to Mr. Keck and Mr. Nicoll, and they being thereby expressly declared to be trustees for the testator, by the words ["my trustees"], and no other declaration of trust being made of this devise for any other person; the trust thereof, on the death of the testator, must, by the principles and rules of law, descend to his heir, the appellant Elizabeth, whom the law had appointed to succeed: or if it were doubtful for whom they were trustees, yet even in that case, [93] by the fixed and established rules of law, the trust must result to the heir of the testator; for the right of the heir to succeed, being a certain right, can never be defeated, unless by the right of some other person equally certain, but which in the present case could not be pretended. That the statute of frauds and perjuries requires, that all declarations or creations of trusts of lands (except trusts arising and resulting by implication of law) shall be manifested and proved by some writing signed by the party, or by his last will in writing; or else they shall be utterly void and of none effect; but as the testator had not expressly declared, or limited over the trust of the devise to Mr. Keck and Mr. Nicoll, to any other person than himself; that trust therefore, as well by the rule of law, as the rule instituted by this statute, could not possibly arise to the respondent, but was by law cast upon the appellant Elizabeth, as heir. That there were no words in the codicil, which devised or passed the fee-farm rents, or assart rents, purchased after the will; the devising clause being of the lands only. That the codicil was made by a separate writing; and the writing containing the old will not having been re-executed and attested by three witnesses, the codicil, although it had three witnesses, could not be a republication of the will, so as to pass the fee-farm rents by the will. That the testator had no power to devise the lands which were only contracted for, because neither he or his trustee had any estate therein, in possession, reversion, or remainder; but only a contract, that they should be conveyed at a time which did not happen in the life-time of the testator; and even if it had been in his power, yet there were not any words in the codicil sufficient to pass these lands. Lastly, that the appellants were decreed to pay costs, unless they consented to part with what right they claimed to the premises in question, which ought not to have been done; and therefore it was hoped, that the decree, so far as concerned the fee-farm rents and assart rents, purchased after the will; the lands contracted to be purchased and not conveyed; the trusts of the excepted devise to Mr. Keck and Mr. Nicoll, whereof no trusts were declared, or limited over; and also, as to the costs, would be reversed; and that those particular estates, together with the benefit of the contract, would be decreed to the appellants, and that they should have their costs in the original cause; and the rather, for that afterwards there would be left of the testator's estate to the respondents, who were but remote relations, to the value of £100,000 or upwards.

To this it was answered (T. Lutwyche, C. Talbot) on the other side, that it was manifest the testator intended by his will and codicil to make a settlement of his whole