« ForrigeFortsett »
and in this case, it must be remembered that the be brought up against him when he is on trial for a indictment is for a common law offense, there be specific crime, unless he first opens the way by an ing no statute in Maryland, as there is in many of attempt to prove his good character.
And we the States, upon the subject of bawdy-houses. At hold it to be equally clear that the fact that a common law a 'bawdy-house' or a “house of ill-crime has been committed cannot be proved by fame,' in the popular sense of the terms, is a spe common rumor or general repute. The decisions cies of disorderly house, and is indictable as a which hold this evidence admissible (where they nuisance. 3 Greenl. Ev., § 184; 2 Whart. Cr. Law, are not founded on the language or interpretation § 2392. Hence this indictment charges that the of a statute) seem to rest its admissibility mainly acts and conduct specified and set out therein, are upon the ground of necesssity, or rather the diffi'to the great damage and common nuisance of all culty of obtaining direct evidence, because the opthe liege inhabitants of said State there inhabiting, erations of such houses are necessarily shrouded in residing and passing.' The offense does not con secrecy. But when it is open to the prosecution sist in keeping a house reputed to be a brothel or to prove the general bad character for chastity of bawdy-house, but in keeping one that is actually the female inmates of the house, that it is fresuch. In the States which have statutes upon the quented by reputed strumpets, and that men subject the decisions turn in a great measure upon seen to visit it at all hours of the night as well as the construction and particular language of these the day, we do not think there can be any very statutes, and of course to that extent, can have lit- great difficulty in obtaining such direct evidence tle or no application to the question as it is pre- as will warrant a jury in convicting. If however sented in this case. In others a distinction is such difficulty or necessity does in fact exist, a drawn between the terms bawdy-house' and remedy can be easily and speedily provided by leg'house of ill-fame,' and they hold that where the islation changing the rules of evidence for such latter terms are employed, they are to be taken in
cases." their strict etymological sense, and that they put directly in issue the fame or reputation of the In Adams v. Cost, 62 Md. 264, where a person house itself, and bence that it is both permissible placed his mare at livery, and instructed a servant and necessary to prove that reputation in the only of the proprietors of the stable to take her out for way in which it can be proved. Others again ig- exercise, such however being no part of the connore this distinction, and hold the terms to be syn-tract of livery, and while the servant had her out onymous. In speaking of all these authorities, for such purpose she died, in consequence of the Mr. Bishop, after stating the proposition in which immoderate riding and carelessness of the servant, they all agree (and to which we assent), that it is held, that the proprietors are not liable. Two opincompetent in all such cases to prove by general ions were delivered, three judges agreeing in one, reputation the character for lewdness of the in- four in the other, but both arriving at the same mates of the house and of those who frequent and conclusion. In the former the court said: “If a visit it, though such evidence pertains in a certain bailee employs others to transact the business insense to hearsay, says: 'Some carry this doctrine a trusted to him, it has been held that his liability step further and accept the reputation of the house only extends to the injury resulting from the neglifor bawdy, as coinpetent evidence prima facie that gence of such persons while acting within the it is a bawdy-house. Others, and probably the scope of their designated duties. If the injury majority, reject the evidence, in accordance with complained of has been occasioned by the misconthe humane principle that a man shall not be con duct of the agents or servants of the bailee, while demned for what liis neighbors say of him.' 2 not engaged in the performance of the service Bish. Crim. Proc., SS 112, 113. And in our opin- specially assigned to them by the bailee, the latter ion a majority of the best considered decisions so is not responsible in damages for any loss resulting hold, and upon correct principles, that such evi to the bailor from such misconduct. White v. dence is inadmissible in cases like this at common Commonicealth Nat. Bank, 4 Brewst. 234; Pelham law.” Citing Cadrell v. State, 17 Conn. 467; State v. v. Pace, Hempstead, 223." In the latter the court Boardman, 64 Me. 523; Toney v. State, 60 Ala. 97; said: “In Jones on Bailment, page 91, the learned State v. Lyon, 39 Iowa, 379; United States v. Jour-author, in discussing the doctrine of Bailment dine, 4 Cranch C. C. 338, overruling United States Locatio Custodire, says: 'If a horse be delivered v. Gray, 2 id. 675; State v. Foley, 45 N. H. 166; | either to an agisting farmer for the purpose of dePeople v. Mauch, 24 How. Pr. 276; Commonwealth pasturing in his meadows, or to an hostler to be v. Stewart, 1 Serg. & Rawle, 342. “These decis-dressed and fed in his stable, the bailees are answerions all rest, as it appears to us, upon the element- able for the loss of the horse, if it be occasioned ary rule of evidence which excludes hearsay testi- by the ordinary neglect of themselves or their sermony. The common law is studiously careful to vants. It has indeed been adjudged that if the exclude such testimony, and does not allow its in- horse of a guest be sent to pasture by the owner's troduction in order to convict parties on trial for desire, the innholder is not, as such, responsible common law offenses. We take it to be clear that for the loss of him by theft or accident;' and the a man's general bad character or reputation cannot author cites Calye's case, 8 Co. 32a, where it was
held that if the horse of a guest at an inn be stolen, to give a legal opinion offhand, he remembers that the innkeeper is not liable if the horse were put to good sense is generally good law, and following pasture at the guest's request; but otherwise if this rule he seldom errs. But though his legal the innkeeper had put the horse to grass of his resources may not be great, his knowledge of the own head. And while the liability of an innkeeper commercial world and its ways is surprising. The is very different from that of an agister or livery- promoter and the stockbroker understand the stock stable keeper, yet the rights and liabilities of the exchange, the merchant knows the secrets of trade, parties in this case are well illustrated by what was the banker feels the pulse of capital, but the solicidecided in Calye's case. The obligation of the de-tor, like Lord Bacon, takes all knowledge for his fendants was to take reasonable and proper care of province, and will give you points on any subject the horse while intrusted to their care as livery- you like, from mines to horse-racing. men.
Smith v. Cook, L. R., 1 Q. B. Div. 79; Sar Another distinct and fast increasing type of gent v. Slack, 47 Vt. 674. But though such was solicitor is the advocate. In London he has little their obligation, if the plaintiff himself interposed scope, and with a few brilliant exceptions, the and gave special directions to the servant as to the metropolitan advocates are no credit to their conmanner of treating the horse, conferring authority | fraternity, but in the country there is a large class to ride and exercise it, a service that the defend of business open to him. The local county courts ants had not assumed, and it was while acting and police courts are the fields where he wins bis under such special authority that the accident occur spurs, and many a man has thus formed the nured, the defendants as liverymen clearly would not be cleus of a first-rate business. The solicitor who responsible. In such case the servant in charge of goes in for advocacy must of course keep up a litthe horse would not be the servant of the defend tle reading, but as a rule, a perusal of the weekly ants, but that of the plaintiff, pro hac vice. But on notes and of the few professional journals answers the other hand, if the horse was taken out and rid every purpose. Gradually his name gets known, den upon the occasion of its death, by the author clients flock to him, and bring not only county ity, express or implied, of the defendants, or if court cases but Supreme Court actions and conveyits being taken out and ridden was by reason of
The old stagers who at first regarded him the want of ordinary care and diligence in the keep as an interloper are compelled to get off their high of the horse by the defendants or their servants, stilts and accept him as their equal. Next he adds then the defendants would be liable for the loss of to his practice the emoluments of some local office the horse. And these propositions, we think, were a town clerkship, registrarship, or what not. fully submitted to the jury in the instructions that Getting older and staider he hands over the advowere granted by the court below."
cacy to his junior or quietly drops it. Long before his death he has become one of the institutions of
ng and known by every body, and THE ENGLISII SOLICITOR.
when at last he joins the majority the corporation
will walk behind the hearse, and folk will say, E have heard the English solicitor described “another landmark gone!” The practice he built
as a “lawyer without law,” but accurately up will support the incompetence of his successor as this description hits the great mass of London for a generation, and the mere stick who forty or solicitors and a large number of the country prac- fifty years hence will be laid by his father's side titioners, there is still to be found in the “lower will have figured for a lifetime as a lawyer in good branch of the profession” a proportion of sound practice upon the merits of his father's name. Such and stable advisors, well versed not only in the are the slow but sure rewards of professional sucpractice but the theory of the law. These men cess in a country where the relations of client and mostly congregate in the country towns and cities attorney often merge into those of lifelong friendof the second class, and have a family practice ship and estcem. composed entirely of conveyancing, varied with an No sketch, however hasty, of the English solicioccasional heavy suit. Removed from easy access tor would be complete without some notice of his to counsel, they have formed habits of independent relations with counsel. The three necessary thorns thought and study, and are undoubtedly the most in his life are clients, clerks and counsel, and the learned, though the least obtrusive section of their greatest of these is counsel. The half yearly fee guild.
lists of his standing junior cut huge cantles out of The London solicitor or his brother of the large his profits, but these are well carned and cheerfully provincial cities is quite another species. Com- | paid. It is against the big men, the haughty pelled by dire necessity, as an articled clerk, to silken Q. C.'s, that he sometimes feels bitter. He
cram some few law books prior to his “final,” has been too often left in the lurch by these dignihe dates his emancipation from the day when he fied frauds to join in those magniloquent eulogiums received his certificate, and has since thrown books, of the purity, the disinterestedness, the devotion like physic, to the dogs. He is purely and wholly to clients, and in short, the general moral granda man of business, and pays his counsel for law eur of the English bar, which are so frequently exactly as he pays his clerks for copying. If ever, pronounced by the members thereof. He reby chance, he finds himself cornered and compelled members poor Smith's case, which he feels cer
TE early exercise of jurisdiction by courts of equity
tain was lost because the leader was absent, and Gainsborough's case, 2 Vern. 252. It would of course the junior was sulky at his double burden, and he have been extremely inconvenient to have had two dishas suffered so often in this way that he knows the
tinct sets of rules applicable to the same subject in old excuse 6 detained in another court” cannot
two courts having concurrent jurisdiction. It thus re
sults, that while with respect to legacies charged on always be true, but is, like charity, made to cover a laud, courts of equity follow the rules of the common multitude of sins. Be it remembered that for all law as to their interpretation and validity, yet with these shortcomings he is the vicarious sufferer; he respect to purely personal legacies, as excepted from has to face the wrath and hear the complaints of the seventh section of the statute of frauds, courts of the justly indignant suitor, and we cannot wonder equity came to implicitly follow the civil law, as acted
on in the spiritual courts. Story Eq., $ 602, notes 3, 4, that his appreciation of the “higher branch of the 5, § 1067, notes a & b; 2 Foubl. Eq. B. 4, pt. 1, $ 4, and profession” is somewhat modified by these facts. notes; Fearne ('onting. Rem. 471, 472; Crooke v. De Our readers may rest assured that it is as true of
Vandes, 9 Ves. 197; Lyon v. Mitchell, 1 Mad. 486; Ex the English bar as of most other institutions, that parte Wynch, 5 de G. M. & G. 188, where all the cases
are collected. Thus a different construction has been “ distance lends enchantment to the view."
given to the same words as applied to real and personal A. B. M.
estates in the same will. Forth v. Chapman, 1 P. Wms. 667; 1 Jarman Wills, 165-167, 755; Perry Trusts, $ 359; 1 Roper Leg. 478; Story Eq., SS 179, 646.
So it was held that in the construction of the statute JURISDICTION OF COURTS OF EQUITY OVER WILLS.
of distributions the civil law is to be the rule. Nientney v. Petty, Preced. in ('h. 593; Carter v. Crowley, Lord Raym.; Milner v. Milner, 1 Ves. Sr. 106; Hurst
v. Berich, 5 Mad. 360; Campbell v. French, 3 Ves. wills with
Jr. 332; see 1 Spence,“ The Equitable Jurisdiction of shaling of assets in the course of administration grew the Court of Chancery,” 5:39, noto s. And in Twaites out of the defects in the process and powers of the ec v. Smith, 1 P. Wms. 10, it was doubted whether a feclesiastical courts. Com. Dig., “ Chancery," 2 A. 1; 3 male was a competent witness to a will of personal esBI. Com. 98.
tate since she was not so by the civil law. The imporAlthough at common law an executor might be com tance, even at the present day, of this consideration pelled to account before the ordinary or ecclesiastical of the history of early equity jurisdiction over wills is judge, yet there was no power to compel him to prore obvious from a consideration of the case of Hogan v. the items of it, or to swear to its truth. 2 Bl. Curtin, 88 N. Y. 173, where will be found contrasted Com. 494; Bao. Abr., Legacies,” M. 2; Foubl. Eq.
the effect of legacies upon conditions in restraint of P. 4, ch. 1, § 1, and notes; Marriot v. Murriot, Str. | marriage without consent, when charged upon land, as 666. And it was held that the statute 21 flenry VIII, compared with such legacies charged upon the personcompelling an inventory of decedent's effects to be alty, a question dopending for solution entirely upon made to the ordinary, could only be invoked by a lega- ecclesiastical law and polity as opposed to that of the tee, and not by a creditor. Hinton v. Purker, 8 Mod. common law. See also Story Eq., $288. 168; Catchside v. Ovington, 3 Burr. 1922. Even after Since in general, both in England courts of probate the statute of distributions (22, 23 Car. 2, ch. 10) there (by the wills act, 1 Vict., ch. 26; 20 & 2 id., ch. 77), and was 10 power in a creditor to falsify an executor's ac in the United States surrogates' or orphans' courts, counts, but he was left to his remedy at the common whose jurisdiction is essentially derived from that of law. Before this statute it had bcon uniformly held the ecclesiastical courts (see 1 Dayton Surr. 24, 188; that an executor was entitled to the personal estate of also the very learued opinion of Daly, C. J., in the the testator not disposed of by his will. 2 BI. Matter of Brick's Estate, 15 Abb. N. C. 12) are at the Com. 514; Toker Exec. B. 3, ch. 6, p. 369; see note present day given ample powers in all matters of ad. to Jarman ou Will, *571 Z., aud cases cited. But at ministration (22 Rev. Stat. 102, $ 14; (ode Civ. Proc., § common law none could be charged in account but 281, 2717, etc.), few occasions arise for the interposias guardiau in socage, bailiff or receiver, except in fa tion of courts of equity in these respects, though unvor of merchants, and for advancement of trade, where doubtedly the jurisdiction still exists (Lewin Trusts, by the law of merchants one raming bimself merchant 526, 694, 697 ; Sugd. Pow. [8th ed.], 50; 2 Story Eq., § might have an account against another naming him 1061; People v. Norton, 9 N. Y. 176; De Peyster v. merchant and charge him as receiver. 1 Inst. 372, A.
Clendinning, 8 Paige, 310; Janice v. Janice, 43 N. Y. 11, Co. 89 Eq. Cas. Abg'd, 1, p. 5.
365), but the interposition of the court rests in discreAnd in Pettit v. Smith, 1 P. Wms. 7, decided in 1695, tion, and it should not interfere with the Surrogate's Holt, C. J., said: “Where an executor has an express Court unless there is shown some good cause for doing legacy the Court of Chancery looks upon him as trus so. l’an later v.Sickler,1 Stockt. 485; Clarke v.Johnson, tee with regard to the surplus, and will make him 2 id. 287; T'ichborne v. Tichborne, L. R., 2 P. & D. 41; Account, although the spiritual court has no such Chipman v. Montgomery, 63 N. Y. 230. In a few early power.”
cases courts of equity assumed to set aside wills proWe may therefore regard the origin of this jurisdic-cured by fraud (Maundy v. Maundy, 1 (h. Rep. 66; tion as being ancillary, intended merely to aid the temp. ('h. 1, 3; Il’elby v.Thornagh, Pr.Ch.123; Goss v. court of original jurisdiction by a more efficient pro- | Tracey, 1 P. Wms. 287; 2 V'ern. 700; Herbert v. Louns, cedure. This will appear the more cvident when we 1 Ch. Rep. 665; Ch. 1, 14), but it is now well settled observe, that as the ('ourt of Chancery had no original | that tbey will not interfere, but that courts of comjurisdiction in testamentary matters, it felt itself mon law hare exclusive jurisdiction, nor will a court bouud to adopt in questions of legacy and the like the of equity interfere to set aside the judgment or prorules of the ecclesiastical court, which were derived bate of a will procured by fraud. The leading case is from the civil law. Thus equity will relieve against a Bransby v. Kerridge, 3 Brown Parl. Cas, decided in mistake in the case of a bequest of a chattel interest | 17:28; the subject is also discussed rery fully in the where a grant of laud, or even a devise, would bare Duchess of Kingston's case, 20 How. St. Tr. 398. See been void. Per Lord Macclesfield in Beaumont v. Fell, also Webb v. Claverden, 2 Atk. 424; Allen v. llac Pher9 P. Wms. 142; see Pettit v. Smith, ut supra; also Lady son, 1 Phil. R. 133. See the remarks of McLean, J., in
Guines v. Chew, 2 How. 619, cited in the case of title to the land comes into controversy, and all quesBroderick's Will, 21 Wall. 504.
tions as to factum of the will are thus put in issue. In the latter case Bradley, J., remarked that the de but if there were shown to be an obstruction to the cree of a Probate Court admitting a will was in the na legal remedy as to any part of the real estate involved, ture of a judgment in rem, and would be conclusive in or if parties submit themselves to the jurisdiction of all courts, between all parties, on all occasions, and to the court without objection, a court of equity can adall intents and purposes. The Duchess of Kingston's judicate upon the question of the validity of a will of case, ut supra, 411, 514; S. C., 1 Sm. Lead. Cas. 446, 448. real estate, and in a proper case would grant an inThat the probate of a will of personal estate by the sur junction restraining an action at law as to any of the rogate is conclusive unless reversed on appeal or re real estate embraced in the will, and this both upon voked by himself, and caunot be attacked collaterally general principles as well as to prevent a multiplicity for irregularities, see Wetmore v. Parker, 52 N. Y. of suits Brady v. UcCosker, 1 Comst. 214; Clarke v. 456; 2 Seld. 190; Redf. Wills, p. 47, pt. 5.
Sawyer, 2 id. 498; Pemberton v. Pemberton, 13 Ves. ; The distinction between the effect of probate of 3 Merivale, 172; 1 Wheat. 197. But it is well settled wills of real estate aud of personalty is well consid that equity jurisdiction does not extend to a mere juered in the Kellum will case, 50 N. Y. 298. Equity dicial construction of a will (Onderdonk v. Mott, 34 will however interfere if a will has been prevented Barb. 106; Bowers v. Smith, 10 Paige, 193); and where from being made by fraud, or a fraud has been prac one takes under a will a purely legal estate discouticed upon a legatee, e. g., if a name is inserted fraud nected with any trust, the decision of all legal quesulently in a will, or its revocation is procured by fraud tions in regard to it belong exclusively to courts of or a gift is made to executors in such a way as to raise law, Walrath v. Handy, 24 How. Pr. 356. Heirs-atan implied trust for relations, or where a legatee prom law, merely as such, hare no right to institute a suit ises the testator that he will hand over the legacy to a in equity for construction. Bowers v. Smith, ut supra'; third person (Kennett v. Abbott, 4 Ves. 802; Marriott, Post v. Horcr, 33 N. Y. 602. Nor will equity entertain Jurriott, Str. 666, cited and approved by Lord Cotten an action to establish a will against an beir at law at the bam in allen v. Huc Pherson, 1 Phil. R. 144, and also suit of a mere legal devisee not charged with any duty in Gil. C'ses, 203, 209; Trarer v. Traver, Pet. 180; he or trust under the will. Colcleugh v. Boyse, 6 H. L Sim. 644; 1 Watts, 163; Williams v. Fitch, 18 N. Y. (as. 1, affirming 2 de G. MacN. & G. 817; 2 Story Eq. 546; Hayden v. Denstow, 27 Conn. 335), and perhaps Jur., $1417; Jackson v. Rumsay, 3 J. Cas. 234; Morris also in the case of a mutual will. See Lord Walpole v. v. Keyes, 1 Ilill, 542; Vanderpoel v. Van Volkenby, 6 Lord Orforil, 3 Ves. 402; Ex parte Day, 1 Bradf. Surr. N. Y. 199. The jurisdiction of courts of equity over R. 476; Dayton Sur. 53, note Z and cases thero cited. wills may thus be said to be incidental to their inherent It has been held in some States that a will cannot be and exclusive jurisdiction over trusts. There'must either acted upon in a court of equity, though lost, destroyed be an inadequate remedy at law, or an actual litigation or suppressed until it is first proved in a Probate with respects to matters which are peculiarly cognizaCourt. Jorningstar v. Selby, 15 Ohio, 315; leurs v. blo in equity. Chipman v. Montgomery, 63 N. Y. 230; Hears, 15 Ohio St. 90. Compare Guines v. Chew', 2 Bailey v. Briggs, 56 id. 407; Honarque v. Monarque, 80 Ilow. 315; Gaines v. Hennen, 24 id. 553, and id. 326. Though creditors merely as such cannot inAlead v. Langdon, cited by Redfield, J., in Adams v. voke equity to compel executors to pay their debts ou Adams, 22 V 1. 50; Brown v. Idley, 6 Paige, 46; see 2 the theory that these are equitable liens ou the estate, Rev. Stat. 67, § 63. Tho divergent views taken by the they can do so if necessary for au account and discovvarious States depend upon the language of their stat ery of assets on the theory of a trust in the executor utes; thus in Vermont (22 Vt. 50), (hio (15 Ohio, 315), to pay debts (lcKay v. Green, 3 J. Ch. 58; Ball v. California (20 Cal. 233), it is beld that the jurisdiction Harris, 4 Myl. & Cr. 267) but it was held in Dill v. of probate courts is exclusive over the settlement of Wisner, 88 N. Y. 153, that where debts were made a estates, while the New York cases (Seymour v. Sey-charge upon land no trust in favor of creditors was mour, 4 Johng. Ch. 409; Curtiss v. Stillwell, 32 Barb. thus imposed on the executors, authorizing them to 354; Sipperly v. Baucus, 24 N. Y. 48; Tucker v. Tucker, bring an action for construction, but the land in the 4 Keyes, 136; Stillwell v. Carpenter, 59 N. Y. 425; Bevan hands of the heirs was chargeable in equity with the v. Cooper, 72 id. 327; Boughton v. Flint, 74 id. 477; trust in favor of the creditors. In such a case even Curman v. Coules, 2 Redf. 419; Bailey v. Stew the surrogate has no power to order a sale until the airt, id. 224) limit their jurisdiction to that creditor has exhausted his remedy under the charge. conferred by statute, deuy them any general In re Fox, 52 N. Y. 530; 2 Rev. Stat. 102, § 14; Code equity powers, and hold that where
exec Civ. Pro., $ 2749. utor refuses payment of a legacy upon the resid We may now consider the language from which a uary estate in his hands, the surrogate's jurisdiction valid express trust in favor of legatees may be iuferred. ceases, or has not attached, and that he bas no power In Hill v. Bishop of London, 1 Atk. 618, Lord Hardto pass upon or determino a disputed claim (see llurl wioke said that a trust might be created without that but v. Durant, 88 N. Y. 216), but it seems a surrogate word if such an intention can be collected from tbe has jurisdiction to pass upon the construction of a will whole will (Lewin Trusts, 5 Eng. ed. 120), and a trust where the right to a legacy depends upon a question has been beld not to be created, though such a word of construction, which must be determined before a was used, on a consideration of the entire instrument. decree of distribution can be made. Riggs v. Crugg. Hughes v. Evans, 13 Sim. 496. Williams ). Roberts, 4 89 N. Y. 492. In Now Jersey (1 Stockt. 485; 2 id. 287) Jur. N. Y. 18, 27; L. J., ch. 177; Lillayev. Greenough, the Court of Chancery inclines to the view that juris Y. 438; Wetmore v. Parker, 459; note to diction is concurrent, but discretionary. In England 1 Jarman Wills, *565. however when a matter of administration of an estate Three “ certainties” (Co. Litt. 380 a, & 5 Co. 121) once comes into the courts of equity, it draws the must concur in the creation of a trust. First. The whole administration into that court, and the final words must be employed in an imperative sense, settlement is made there.
thought they need not be words of command. The The validity of wills of real estate can be tried in the use of precatory or recommendatory words in this concourts of common law, either in an action of eject- | nection is of great antiquity, and originally grew up ment, or on an issue of devisavit vel non, or in Code in Rome through attempts to evade the Voconian law States in the corresponding actions, so often as the (enacted A. U. C. 584), which abolished female succes
sion and limited the inheritance of a woman to one the validity of such a trust depended ou the effect of hundred thousand sesterces. Originally the testator the will in transferring the title to the property, the could only entreat, but after the establishment of the will could not be used in evidence wless it were valid Praetor fidei commissarius (by Augustus) he could im as a will and executed according to the statute. Alter's pose by positive words a trust in favor of the cestui Appeal, 67 Penn. St. 344; Anding v. Davis, 38 Miss. 574; que trust. But the uso of words of entreaty still con 1 Perry on Trusts, § 90. See the remarks of Lord tinued, and in the time of Justinian the forms of ex Loughborough in llaberghum v. 1'incent, 2 Ves. Jr. pression were “peto,
'volo,” “mando,” or 209; Dewin on Trusts, 66 (2 Ani. ed.); Addington v. “fidei tuae committo," as to which Justinian says, Cann, 3 Atk. 151; see also in the Goods of the Countess “quae perinde singula firma sunt atque si omnia in of Durham, 3 Curteis, 57. unum congesta sunt.” 2 Inst. 24, 8. Justinian or The doctrine of equitable conversion (“equity redained tbat where the intention of the testator was gards that as done which ought to be done'') as apclear they should all be equally effectual. Milman's plicable to testamentary dispositions will be found Gibbon v. ch. xliv, 308, 310; Montesquieu Esprit des well illustrated in 23 N. Y. 69; 43 id. 424; 52 id. 47. In Lois 1. xxxii; Gaius Inst. 1. ii, title ii-viii, pp. 91-14.1. such cases where the bequests are in money, the propJustinian, l. ji, title x-xxV; Theophilus, pp. 328-514. erty sufficient to pay them is to be deemed converted See vols. 28-39 Pandects. Sheldon Amos' “System into personalty, and questions respecting devises of atic view of the Science of Jurisprudence,” 320.
real estate do not occur. The cy-pres doctrine of the These expressions are constantly referred to in chan English chancery courts is now considered to be no cery courts to this day as guides to similar questions. part of the equity powers of American courts, the See Knight v. Knight, 3 Beav. 161, where it was held view being taken that it was exercised in England by that “confiding in the approved honour and integrity the chancellor by virtue of the royal prerogative, unof my family,” and “ I trust to the liberality of my der the sign manual merely as representing the sovsuccessors to reward," were not sufficiently clear to ereign as parens patrice. Although evidence dehor's the make the words of trust imperative. Comparo Cury v. will is not admissible to vary or control its terms, yet Cary, 2 Sch. & Lef. 189; Eade v. Eude, 5 Mail. 118; it is permitted to be introduced to explain a latent Harding v. Glyn, 1 Atk. 189; Foley v. Parry, 5 Sim. ambiguity, since as the intention in a will prerails 138; Hinxman v. Poynder, id. 546. In these last cases over the words, a court of equity has jurisdiction to the following words were held sufficient: “ * Request,' correct them when they either ara evident on the face “desire," "my particular wish and request,” “my of the will or appear on a proper construction of the last wish,” “recommend;” but see Van Duyne v. terms employed. Van Duyne, 1 McCart. 397; 15 N. J. Eq., where it is But such a mistake must be clear, or in the case of an said that the present disposition of the courts it rather omission be clearly deducible from an examination of to linit tban to extend the doctrine, and a distinction the structure and scope of the will considered as an is taken between such words used toward executors entirety. So mistakes in computing legacies have been where they would be imperative, and toward devisees rectified in equity, and errors in naming or describing or legatees where they would not be. See also Janice legatees, or clear errors in descriptions of property inV. Junice, 43 N. Y. 388; Il’arner v. Bates, 98 Mass. 274. tended to be bequeathed. The cases are collected in note to Ilarding v. Glyn, Mistakes of fact will be corrected; as if a testator vol. 2, pt. 2, Lead. Cas. in Eq. (Am. ed.) p. 1859.
revokes a legacy to A., stating as a reason that he is Second. The subject of the recommendation or wish dead when in fact he is living. But a mistake of law must be certain; it must be manifested and proved in in general will not be; as where a woman care a legacy writing, and its terins and conditions must sufficiently to a man describing him as her husband, and as a appear so that the court may not be called upon to ex question of law the marriage was void, he having a ecute the trust in a manner different from that in fornier wife still living. In such a case the bequest bas tended. Steere v. Sleere, 5 J. (. R. 1; Abeel v. Rud. been declared roid. cliffe, 13 J. R. 297; Dillaye v. Greenough, 45 N. Y. 415; However cases may arise where a similar question Janice v. Yunice, 13 id. 370: Knox v. Jones, 47 id. 389; may be regarded as one of fact, as where it depended Beekman v. Bonsor, 23 id. 298.
on an honest belief by both parties that the husband Third. The objects or persons intended to have the of the woman was dead, based upon reasonable inquiry benefit of the recommendation or wish must be cer though he was in fact living. Pitts will case, 5 tain.
Jur. (N. S.) 235. A cestui que trust need not be described by name; But the American courts of equity hare nerer gone any designation by which he may be identified is to the same extent as those of England in correcting enough (“id certum est quod certum reddi potest"), as these alleged mistakes, and undoubtedly many of the e. g., a person who shall officiate as minister of a cer celebrated cases of this kind reported in the bor ks tain church who might be a different individual every would not be followed in American courts. On this year. The legatee need not be ascertained at the tes subject Mr. Justice Story well remarks that “the extator's death; it will be enough if he can be deter tent to which English equity courts have sometimes wined when his right to receive it accrues. Stubbs v. carried this branch of their remedial powers has more Sargon, 2 Keen. 255, affirmed 3 M. & ('. 507; Holmes v. the appearance of making men's wills as they probably lead, 52 N. Y. 313, and cases cited. Since it is an in: would do if now alive, tban carrying tbein into effect variable rule that a court of equity will never attempt as tbey were in fact made." Story Eq., & 180. The the exercise of discretion for a part.y, it follows that jurisdiction of courts of equity over legacies grows though the defective execution of a power may be out of their general jurisdiction orer trusts. The aided, its non-execution will not be (unless in the case limits of our space will not allow of any extended conof a power in trust since the R. S.), but in the former sideration of this branch of our subject. Much that case the "three certainties' must here likewise con has been said in respect to trusts is of course equally cur. See Beekman v. Bonsor, ut sup. Though as we applicable here. An executor quoad legatees is a irushave seen a court of equity in general has no jurisdic tee, and a court of equity can therefore enforce the tion orer a will unless it contains a trust express or payment of a legacy, is there are sufficient assets, withimplied, yet a will night, while not creating a trust, out regard to the assent of the executor. ('ode Cis. still be proof in writing of one already created, and ex Pro., $ 1819; see Bevan v. Cooper, 7 Hun, 117; S. C., 52 isting at the time of the execution of a will. But if N. Y. 317, overruling Am. Bib. Soc. r. Heburu, 51 Barb.