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PB r^rsKFSBisr '■ r.»''».i :i Ml i( ' / In Re seaman ESTATE. Monday, May 7, 1806. This was an application nndor the Provinrial Act, 28tli Victoria (1865), cliap. 7, sec. 7, by the Executors of tho P'state of tlie late Amos Seanuui, of Minndic, to' Hie Ju v. Trujean, 6 Ves. 565, which has often been recognized as the only safe rule : — It is as follows : — "' An instrument properly attested, in order to in- corporate another instrument not attested, must describe it so as to be a manifestation of what the paper is, which is meant to be incorporated, in such a way, that the Court can be under no mistake." This Court is, when adjudicating in the matter of this enquiry, in a certain sense a Court of construction, and must, looking at the circum- stances which surrounded the testator at the execution of his will, if necessary to do so, compare with his language in these sections every document offered in evidence claiming to be the extrinsic " book" or "writing under the hand of the testator" referred to therein ; and, in order to this, the intrinsic evidence of such document must be carefully con- sidered so far, and so far only, as may be necessary to decide " whether it is identical with the document to wkkh the tvill refers" I will not en- quire, particularly whether, where ae fiere, more than one document is I / \l presented red to, th< down in , to a decif 116, whe KingsdoA to the ex Cheek, 1 uot but c A judge a case as res inteij Assume objectioi sections *ive fore evidenci cution o Leigh ii thus de (a writ docume "It bility plain i1 testate ■ ter are can be (p. 44 refeiTi on the tor, a1 cept t( ' the If but til Neith posin: I or V( Act.' red 1 povti main prad for qniri this \ Ml \i 'f p.e,o„.ea in evidence which may pos,jMy be ^-J^trl^'^L^SKit: Jed to, the Court can dec. e between Ihem. ' '"= ''"■';'^f^ ,„„ ^, jt ,,„o», down in Allen v. Maddock, U M"oro ' ; C. C. 4o4 ro^.rnn ^ ^ ^^ to a decision of Lord Lyndhnrst m ""Ij?"' »• ''^'j™,,,,,,, aecision Lord 116, where one of »•''* <'»"™f?'%XZTrca;o," a" becan.e opposed KinSMlown say, has been crmccd f"-- ''«' ^^"f^V j. in Short^ede -. to the e.pvessed -n- "-so Parke L '^';<^^ i„„an,issil,le-can. ^r bu't l^siot ^^ly'^ave donbts:as '» .he propriety of a n^^^^^^^^ ...- A judge called on to decide the pou>t ''f ™ ' '' , '^^'„, _!,„ q-n;stiou is a iasejas that before ,.»;; I sUt,K ^^^J^^ „f „„,.1„ ,.„,es " l:sr!,^wL:r:s'ri;»"aduXsi„uof..^ obJectiou-aUo tUat^the Q-- J'^ :„5' Ser. fat the c„,..,..r<.- sections 14 ami in, wer. it.„rtiiy i„,.„mpnf^ mav be determinefl by n^e force of the rival ^^^i;;' ^^^^^^^^^ ,S Lie since the e.e- evidence of declarations oj ^''' !'''''''^''\l'%\.^ pwa^t Hon. T. Pcmbcrtou cution of the will. These are the words of ^''^ jj "^^^^^ ^l.e way, he Leigh in Allen .. ^addc^k, tho^o^^^^^^^^^ , J,,, ^wSrwlli/; U^s-in iJ^^L-a single instrument; and only one documer^ is found to answer the <|«««"P^\^;\;./^ .5^^ ^.t^^een the admissi- u It is necessary also to remember ^^^^ ^''^ "^;;«^ J^^^^i^ence to ex- bility of evidence to p™v^a^esa.j^n^^^ ^ ,,, plain its meanmg, that di oct evHitn.e ^ ^j^^jiar charac- testatc h) word or in .m tr..7, and «tl^«'^ ^^f ^j;""^,,;^ „, ,,,,,, evidence ter are admissible, when the wdl is < -P^^^^^^ f^,^^^ Ue has used." cau be received iu order to explam the f P'^^^^ "^^ , ,,,a,ned,I find, ^; 440) Still, conceding for t^.e pres.^ ^ ^^ ;\^;S):ie to prJnounce refe.Tiug to the evidence, that it would he ""«!^'y ' I wliich the testa- :;; Uie identity of -tl;-.. to the /.'«./, book, that, adopting it, he had nuule vo 1 he m book-says, further, (and note this was after the execution o tlje codK-d he testator sair out ion ol the resei accordir; writing i ble. ^\' j of his d( the testf ■ indisper sion> of ted. T structio of the .1 m wimm I f,nn would l.avo to cnoo,n.tcr tlio .loclarations m favor .. the red book, S the. ' -t of its co-exiBtence (lUK-auclled) with the hhvck book. At the r«t ostator's death, when o„e ot the executors possessed and re. ie on the hhu-k book, the other exeeutor possessed and was rely.nj; on \ \ V TJ.P ..vistenee of the red book in testator's possession m lH6r .^ luite ' t^hc ^xlsl'Je of the bhvek hook, and of the writm. No V is e enrlv proved. Such is the diihenlty as regards the books ; ,^"t'\o Ta .nsV« be i,u.nrporated in section 15. It furnishes no m- vnalev enc^^ -i»^' '^' ^^th section, as U l.as no t rence to ehar.'es or ndvan.-es. It is, however, - a wntmg signed by : h'o^' and it is headed in accor.huK-e with the loth section ot the vHl U 'whhout date, but it is proved that the r.d look Ion, pr.^.rse, / McF-xrUu.e says he Prepared it in the year 1862, and after the execu- •: , !/•/, u it was ,er- or delivered to him, signed by tlie testator, to V vv^ aslt .^^' vid,the will. Red book and black book arc "^".r'a-; bl^4relby th. testator." No. 13 allots and fixes ::^ a;^on. : sod > s also eacl-if tn. bocks. Being signed after the exc^ • \^f ^ ^ ^^^^^^ . ^j course, founded on S'r^s ; ^ :^Z^:!l' nn'^r. I^ would seem to follow tluU if used tcJrdi'.' to'hv.'nr:-/.nany it c.-dd be ab.uidoned, and a subsequent •?• Ar J} '> ' i»H. testat.- - Tliat i.3 did adoptanother is mcontesta- Ur'"^^u^>t:t;:;rdc:^^i--ve ..a. he volied^n No U at the time of his death. That document is dlcnt or the subject of advances bu the esta o uis made an indication by him of a^Jvances. an essential and ndisnensable part of his plan en.bo Sh..|(I<).. ,; Sheldon, 1 Hol.n-I. 8H. snvs, " Uruh .• tiio hite Wills A<-t it i« Htill posHihlo to incoiixnutc with a duly pxucutod will or codicil miv writ- ten docnincnt then ,n exixfrnrr." Tluis tho learned Jud^ye <|nalifics the rule. And a-au. he says in the same case :— '' If the testator, in a will or codi< d duly executed, rr/vrx to an crlsfnuj >n,ott< Ht,;1 ,rill, or other l>aj>L'r, the uistrninent so re/nrcd to l)ecf)nus part of the will. Hut the rc/n-nu;- must he distinct, so as to exclude the nossi' ilitv ot mistake, and the paper /■<;/trm/ to must hr a!no,}>f vrltlm." This principle i^ rec ni/ed l,y Mr. l'end)ert«.n Lci-h (I.<»rd Kin-sdown) in Allen v. .^ladd-.ck. 1 he learned Jud;(e in that case refers to Wilkinson v. Ac'am, in which we fitid the followin^r d,.,,,. ,„„] ^]^,^.\^\y^, lan^ruaf^e used hy a "reat Jud.rt, wh.. never spdke inuidvisedly. Lord Kldon says, "The cases, as tar as thej have 2— in t codicil (tin !iot hij imp voice of eii The hingiu self a pow exetutior. <• ml':. The etfecl ot th as part of not in e'cis necessity t testator, ai porated In with the S Sheldon v. does not d ♦he paper renders v namely, ni Thvis wen the time c in legal c( the will o written ii cil, in legi will, the ^ inst rumen cil in rela The testai tember, 1 nothing with the what incc rest, one tion of th' of testate scription minute aj of the de( plied incc two witn( the entric tended th thereupoi entries. ■"«! ii II tho book roforred to aa Ihrn mmh, and which were then — 8th Mnrch, 1H62 — in tlie book, n» proved by the l-ook itself. The exe ution of the codicil (that codi(^il containiii" no express refetouco to any entries) could not hy iviidirntioii make the will then— in SepleiMber, lHr.4--Hpeak the voice of entries that did not exist at the time when the will Hrst spoke. The lRn},'nap;e of the se<-lion II shews thut the testator reserved to him- self H power to make the section speak by oiitries to he made ajter the excftitior of die null, and not ihi'ij aftmtrd, but that the law did net per- mi':. The moment aiMittempt is" made by implication from the mere elfect ot tho execution of a codicil, not expressly referrinj? to it, to get up as part of the will, these republished entries in a book, then existin;;, but not in o'dstence ut the execution of the will, there arises an indispensable necessity to have recour.->iJ \o parol todimonij to ascertain what 3ntrie;< the testator,' at the time of the execution of the codicil, intenc ' \o be incor- porated in his thus republished will. This cannot bo doi. jonsislently with the Statute of Wdls. These are the words of Dr ] ushin„'ton, in Sheldon V. Sheldon, 1 Robert. 88. *' The validity of the ujcorporation does not depend on parol evidence (which is no loncjer nermitieu) l)Ut ♦ho paper to be incorporated is protected by exactly the sume evidenc-^ as renders valid the instrument by which the incorporation is eflfected,^ namely, ^if^naturc by the testator, and the subscription of two witnesses." Thvis were protected, in tins case, the entries in the red book, existui^ at the time of the execution of the will The testator and witnesses both in le«;al contemplation subscribed these entries, because they subscribed the will of whid they were as much a part in the eye of the law, as it written in the will. So the testator and witnesses who subscribe a codi- cil, in legal contemplation, then subscribe all previous codicils and the will, the whole in the view of ihe law constituting one then subscribed instrument. But try the application of this to the execution ot this codi- cil in relation to the entries in the black book, and its failure is glaring. The testator and the two witnesses who subscribed this codicil in Sep- tember, 1864, in legal contemplation could be held to have subscribed nothing but the codicil, and the will with the entries co-existing with the will at its original execution and then a part of it. On what incorporating evidence, let me ask, did the entries iu the black book rest, one minnte befo'-r the execution of the codicil ? Not on the execii- tion of the previous will for tlie reasons stated. Not on the subscription of testator and two witnesses to the entries, for tho.si' had no such sub- scription in fact. On what incorporating evidence did they rtst one minute ajler the execution of the codicil ? Exclude McFarlane's evidence of the declaratious— parol testimony— and there is no pretence for im- plied incorporation. Suppose the testn:or had liimsclf declared to iha two witnesses, whilst prodp^'ing the black book and putting his finger on the entries, that he had made them after the execution of his mill, and in- tended them to speak as and for the entries referred to in section 14, and thereupon he and the witnesses had subscribed i\ codicil sJent about those entries. This is plainly substituting parol testimony to prove a will for 2 I \ 12 J the requirements of the Statute. When we refer, however, to the evi- deucc of McFarhine respectin;,' the bhick book, to the book itself, and to the codicil as executed— the testimony do".s not ditfor in kind or m de- -rrec from tliat which I have supposed, i-'iie two books, were, on unob- fectiouable evidence, proved to liave existed at the time of the execution of the codicil. Referri-..^,' to :''.eir entries made subsequently to the exe- cution of the will, th mere internal evidence for the one is as strong as for the other. By what means is the scale attempti^d to be t\irned ? By the testimony of witnesses orrlly delivered, in connection with one of two rival books unincorporated, and by means of that alone ! My opinion is ^ that man's estate cannot thus be disposed of after his death ! lo talk about repulAication by the codicil of the black book which ex concesso , had never been published would be a contradiction in terms. The ques- can onlv be, " Was the black book iucorporafrd in the codicil of 1864 ? After writinj; what I have just real, r.Tlmt a testator cannot, by his will, prospectively create for himself a power to o.,pose of !as property by an instrument not d.dy executed as a will or codic 1 " Mv argument as to the inefficiency of the execution of a cod.- oil to set up an extraneous paper vot referred to in ^t, of course demands 'i^ .r?^'^ U \ this principle for its support. It may not be amiss to remark tin - if it were fonnd that, at the execution of this will, there did exist an extraneous instrument that was legally incorporated, and the effect of which in connection with the will was to dispose of the testator's estj-te, another instrument not duly executed could not be substituted, that chan,jed the disposition consistently with the provi- sions of the Wills Act (see sec. 15 and 16), because it would amount to the extent of the alteration, to an unauthorized revocahon of the wi 1. If the principles above stated are sound, then No. 13, the black book, and all entries made in the red book subsequently to the 8th of March, 1862, when the testator executed his will, must be dismissed from our consideration. I am of opinion that certain entries in the red book at the time of the execution of the will, were incorporated with section 14, as bein^, in the languaj?e of thnt section, entries then made oy the testa- tor of '''advances of real or personal property, and sums and charges as Vancement to, or charj;ed against certain of his children or grand-chil- urcn therein named." I am, also, of opinion that these were then incorpo- rated in sec. 15, so far as that section speaks of deeds then executed by the testate- which are plainly referred to in that book. I am of opinion that the three deeds of 1854 are so referred to, and must take effect preeisely as if the testator had devised the estates in the body of the will, and had declared in the will, as he has declared in the book, read with the will m connection with these deeds, that the devisees, Avho are the grantees, should be subject to a deduction from their several shaves of the estat^e, of the sums charged in the book in reaijcct of the ('.states professed to be conveyed by the deeds. The testate r in the book under date of the very date of these deeds, has expressly dex-lared " that he then deeded the lands and the deeds are found at his death. I have spoken of these papers as deeds, but, of course. I have not supposed that they could operate as common law conveyances. They could not do so in point of law, and it would be inconsistent, as my view of their oper*-^ion supposes, with the intention of the grantor, (viewed as thif^ testator) so to regard them. 1 . view them as written papers, signed by the testator, referred to m his | will as " deeds executed" which, in form, they are, and in entries exist- in"- at the execution of the will, referring to them, and found in a book ~Jie hook— to which the will refers. I consider that these written pa- pers, and the language of the sections and the entries— all proved to have co-existed with the execution of the will, which in legal effect incorporated them, constitute a devise to the qvasi grantees of the different estates respectively named in the papers ; whilst the testator has, in legal effect, said, " each and every of the parties named in these papers shall be sub- iect to a deduction from his siare of the whole estate, corresponding in amount to that sum which in the entries I have written opposite to my re- ference to the particular deed, as my declared valuation of the estate named therein." All tlud he has as plainly said as if he had expressed himself in the words which I have used to shew the effect supposed by me. Had he said in the will " I devise to my son Rufus a portion of iny estate, as described, ant', on the terms stated in a written paper being lu I I 15 form a deed between mc and him •' for love and affection," but on the conditions expressed herein, and in a certain book respectmg the same, as to what he is to allow for it out of his portion of my estate, '—the effect would have been a devise, but no more a devise than is the actual mcor- poration in this will of the extraneous papers and entries that I have re- ferred to. , rr,, CI T\ AQAK The entries in the book beginning, '' Arms Thos. Seamov, Dr., 1«4,'), &c " and, ending wiih the teatator'3 signatures subscribed to the two consecutive entries which referred first, to a will of 23d September, 1861, (and secondly to tliat of March, 1862, although I deem any such reference immaterial) shew distiactly in my opinion, the charges as advancement which the executors of the last will i.uist regard as regulating the disposition and settlement of the estate. Section 14 of the will refers to " entries which the testator hcuJ made," and clearly those are they. The date, in pencil, Jmiuary 31, 1863, which is immedia ely preceded to the testator's notice of Eph. (or Ephraim), evidently refers to that no- tice alone. The entries are some in pencil, others m ink ; but this, m no respect, detrac^ts from their genuineness or authenticity. There they arc and were, at the execution of the will, uneffaced, unobliterated, un- cancelled. Section 14 does not require the entries of advances and ehar named, in 'an unquali- fied manner, they are so uncertainly and vane part of the little marsh in front, to ace(»in!nodate each, &c." Now, adverting to this vagueness, and incompleteness in some of the apportionments, I consider it quite impossible to consider tlie general entries last r;>ferred to incorporated in the Inth section. Another objection to so regarding them arises from the fact that, at an interval of eight years from the aate at the end of the last inentioned entries, the testator disturbc! the previous arrangement by entries made shewing the subse(iuent conveyances to Rufns, Gilbert and James, and by certain entries under the date which accords with that of those conveyances, shewing a variance from the previous apportionment, for instance, '' the Blenkhorn lot may go to Jane and Sarah.'' T forbear remarking on the inference of changed intention as to mode of apportionment arising from that which appears in the book to be entered after the execution of the will, feeling sure that I am bound to shut my eyes to this last, as much "as [ am to tho whole contents of the black book. BIy views of this case preclude the possibility of my contrasting the books, inasmuch as I consider the black Ititok absolutely void. The Court is alsoi-e(piired to construe the eleventh section of the will, and decid^o ''what portion of the siiore frontage as it is called, passed to Mr. McFarlane under that section.'" Tlie words of it arc as follows : — " Whereas tho immediate division of that portion of ni^^ Minudi(,' estate, '• called the Joggins, would be injurious to the profitable working of the " Quarries and Ledges of Free Stone thereon, I do therefore give and devise '' to fhe sirid Alexander McFarlane, his Executors and Administrators, all " that portion of the Shore Frontage of ,ny Miniidie Estate lyng between " Dogfish Cove, and Loioer Gove, with the lands adjoining, extending for " One Qnarter of a Mile inward from the Shore and running that breadth " along the whole of the said shore frontage, with the Beefs mid Quarries '• of Sfnuf thereon and therein, and all the Houses, Store's, Buildings and '• Apjnn'enances, and all privileges of every kind thereon or thereto belong- It. 1.' luoi I inimiiiipN mi tn^Elm^m^0ii- ,■*■ 17 " ing or enjot/ed therewith, TO HOLD to the said Alexander McFarlanc, '• his Exocutoni and Adniinihtiators, frcin the day of my death for and during " and until tlu full end and term of Fifty Years, fro.n thence to be completed " and ended tliout any manner of impeachment of waste. Upon trust, " nevertheless, and for the uses, ends, and purposes following — that is to say : " upon trust that the said Alexander McFarlane, his Executors or Adminis- " trators, shall enter into and upon and possess th*^ said described Treniises " and any part tlieieof, and shall during the said Term in and by such ways, " n:anner and means ax to him or them shall seem most advantageous or advi- *' rable, occr.py, use or wo'-k, or cause to be occupied, used and workeci. the " said Premises and the Quarries, Ledges and Reefs of Free Stone and other " materials and minerals therein or thereon, or portions of them, and the " nroduce thence - )niing and arising, sell or dispose of to the best advantage, " and also from time to time during the said term, and as often as be or they " shall deem it to be advantageous and advisable so to do, demise, lease., and " let the said Premises or portions thereof, and the said Qaarries, Reefs and " Lodges, or portir iin thereof, for such terms and periods of occupation, and "on such rents, reservations, conditions and agreements as he or they shall " think suitable and beneficial, and such demises, leases, occupations ajid " terms renew or alter or terminate and discontinue, and also other demises, " leases, occupatiops and terms make and create from time to time as occasion " may ro(juire." The testator, in sec 18, speaking of the reversion of this, uses the phrase, "the said property, called the Jof/gim, «s hereinbefore described,''' — in sec. 1(5, the language is, first, " in viy .Joggins estate before mentioned,'" secondly, " ex- cepting the said Jogtrins estate, and the revcrsxon, &c." These are all the words' in the will that can possibly aid the coostniction in (luestion.^ They ttirow no light (»n the point of in((uiry, because there is a reference in them to the preceding description, and the mind of the enquirer is brought back to the consideration of that. It is contended that an intent is manifested by the context and the surrounding circumstances that the whole extent of that which as known, and indifFerently designated in the testator's lifetime as the " Jog- ,jns," or " Joggin Quarries," or " Joggin shore," of which, indisputably, by Kir the more valuable portion, in general repute, and according to the wit- nesses, is not incluvled in, but lies tar out of, the pre.^^cribed limits, should be considered as included within these last; and, further, that such intent can, consistently with acknowledged rules of construction, override the particular language used. Supposing such intent, if manifest, could be legully eflfectuated under this devise, let us enquire whether the words, the context, and the evidence of the situation and circumstances of the testator when he made his will establish it. My impression is that all these considerations rather point to an intention in accordance with the primary meaning of the words. The testator would seem to have intended to circumscribe, and not to permit the whole of the Joggin shore, to be the subject of the pavticular disposition to which undoubtedly the recital points. Had he intended not to do this, he would not have stated any limits at all, but would have used the general de- scription which would have effectuated his intention without the risk of con- troversy. He must have had a definite purpose in his mind when ho pre- w gitis .-■•# 18 from that whicti womu . f,.,,„, ,,,^ ,i„„ry meaning is, I think, a.au»/io/6),"thathe shoulu, for reasons ^^"•^^^^'^"^1^ ""^"^^^^^^^^ J^ rri/^o/e, the obvious answer is, " «/.«« is a mere conjecture, and ^-^ T ^^^^^^^'^^f poinTof the interest of the estate, might not be in ««««^,^;^" « ^'^^^a Coun C children, or of the -g^^-rhood.'' It . t . ^^^^^^^ of construction to assume the responsibihty of an plitymg tne iimu , tiguous land to be devised along that trontage. ihe t^™'"" (^ between;' f / \ 19 / r \ which it is apparent that, a testator has used the wortls in which he has ex- pressed himself in any other than their strict and primary sense, and where nis words so interpreted ars sensible with reference to extrinsic circumstances, it is an inflexible rule of constiuetion that the words of the will shall be inter- preted in their strict and primary sense, and in no other, although they may be capable of some pojuilar or secondary interpretation, and although the most conclusive evidence of intention to use them in such pojmlar or secondai'y sense he tendered.'^ Now the words in question de,scri])tive of the limits devised in section eleven, considered with reference to the extrinsic circumstances, viz., the situation of the testator relatively to the '• Joggins" or " Joggin Quarries," viewed as a wliole, are undeniably sensible, and oreato. per se, no difficulty of interpretation. The words are not capable of any different sense from that which they primarily convey — and there is absolutely no evidence f nothing but a mere conjecture) of an intention to convey another and a different meaning, which would require the substhution of other words. Sir James Wigram thus expresses, at the end of his treatise, his conclusions from his preceding review of the authorities. He says : — " The conclusions, then, wnich the preceding pages appear to authorize, are these : — "1. That evidence of material facts is, in all cases, admissible in aid of the expo.sition of a will. " 2. That the legitimate purposes to wh'ch — in succcession — such evidence is applicable are, 'wo : nnmoiy, first, to determine whether the words of the will, with reference to the facts, admit of being construed in thtir primary sense ; and secondly, if the facts of the case exclude the primary meaning of the words, to determine whether the intention of the testator is certain in any other sense, of which the words, with reference to the facts, are capable. And " 3. That intention cannot be averred in support of a will, except in the special cases which are stated under the Seventh Proposition." Referring to that proposition we find those cases thus defined : — " Where the object of a tes'ator's bounty, or the subject of disposition is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator." Sir James concludes his deductions in these words : — " The writer of this Examination, then, whilst he admits and insists upon the rule " that the judg- ment of a Court in expounding a will should be simply declaratory of what is in the instrument," — hopes that he may, in this place, without fear of correc- tion, add that, consistently with that rule — " Every claimant under a will has a right to require that a Court of Construction in the execution of its office, shall — by means of extrinsic evidence — place itself in the situation of the testator, the meaning of whose language it is called upon to declare." The expression of the result of the authorities seems to me to go the length of shewing that the clearest possible intention, proved by extrinsic facts, on the part of this testator to devise the whole extent of the quarries, could not prevail against the plain and sensible language used. It clearly, I think, 3 ii m sanctions the view T have expressed, of a necessity for construction of tho sec- tion in question according to the primary meaning of the words of the testator. As regards the codicil of 22nd October, 1S()2, and its legal operation, assuming its due execution proved, I am of opinion that it can operate accord- ing to the expressed intent of it, without a contravention of any rule of law or of eijuity. It imposes a condition on a mere voluntary act of bounty on the part of the testator ; and tl'.e object of that bounty cannot insist on taking any tcnefit under this will tf^ Afhich the testator has attached a condition, without acceding to the obligation of that condition. The condition is in effect, the non-prosecution by those who are named in the codicil of their respective claims against the estate of the deceased. Whether those have, or have not, a support in law or e(|uity, seems to me beside the question. The attempt to assert them compulsorily by cither of the parties named, is made by the testa- tor to involve a forfeiture of the intended devise or bequest in favor of that party. The Court is asked to declare " whether llufus Seaman is trustee as respects the land devised for school purposes?" By the codicil of 13th September, l8G4r, the testator appointed his said son in terms " to be executor of his will, in conuo'ction with his son-in-law, Mr. MacFarlane, with the same power and authority as if his name had originally been inserted thereit ." These words are satisfied by holding them to constitute llufus Seaman co-executor in the strict sense of the word " executor," as contradistinguished from the office of "trustee." Adverting to the 10th section of the will which refers to the school purposes, we find MacFarlane thereby appointed a trustee in terms ; and for tho purposes of the trust twenty acres of land are .-vised to him. The devise is, indeed, to him, his heirs and assigns, but it is made, ncverthleess, under special circumstances of personal confidence as respects MacFarlane. I think, for these reasons, Rufus Seaman has no authority to act under the section in question. DesBarues, J. — This very impo-"tant case, in which the learned Judge in Equity has just delivered an elaborate opinion I have not failed carefully to consider, and I have examined the authorities which were cited at the argu- ment, and others which a research conducted together with my brother Wilkins has discovered. With him I have more constantly conferred, than the many en^ao-ements of the learned Judge in Equity have enabled me to do with him, as I could have desired. With that learned Judge my brother Wilkins and I unfortunately are unable to concur in some of the conclusions at which he has arrived, and there are some points, indeed, in which my views are not entirely coincident with those of my brother Wilkins, but in his conclusions as to the necessity of rejecting all entries in the red book made subsequent to the execution of the will, — the black book, and paper marked No. 13, — as to the construction of section eleven of the will in relation to the ouarries, — as to tho effect of the first codicil of October, 18G2, and as to the question submitted relative to the trusteeship of Rufus Seaman, I concur; and without having written an opinion, I content myself with referring to the elaborate ono prepared by my brother Wilkins, which I have read, and of which I generally approve. T^^ 21 Halifax, S. S. In Equity. In the matter of the Estate of Amos Seaman, late of Miiuulie, in the County of Cumberhind, Esquire, fleccascd. To the Honorable James W. Johnston, Judge in Equity, &c., &c., &c. The petition of Rueus Seaman, of Minudie, in the County of Cumber- land, one of the Executors, and a Trustee under and by virtue of the last will and testament of Amos Seaman, late of the same place, de- ceased, Humbly shc—eth : — That the said Amos Seaman, the father of your petitioner, <■.; irted this life in the month of September, A. D. 1861, having first mane his last will and testament with a codicil of a subsequent d'-'e, as by copies thereof hereunto annexed numbered I and 2 will appear. That the will No. 1 and codicil No. 2, being in the possession or un- der the control of the Honorable Alexander Macfarlane, a co-executor, and also a trustee were produced by him, and lu: the division of his estate among his children, and as shortly before his decease testator had frequently and repeatedly declared what his intentions in that respect were, your petitioner has reasons to believe that othar books or papers yet exist in reference to such divi- sion which embody the testator's views, and if reference should be had to deeds and books, then he prays that testimony be taken on that point. Your petitioner further desires the opiuion, advice, and direction of your Lordship as to whether he as co-executor, is by the tenth clause of the said will, a co-trustee with the Honorable Alexander McFarlane, of the twenty acres of land devised for school purposes. And also whether under the eleventh clause of such will, and the ex- *• prossion " all that portion of the shore frontage of my Minudie estate, Iving between Dogfish Cove and Lower Cove with the lauds adjoining, ex- * r ,/y ^ .-miFikWM ■ ■^wrmmy^-m.^^ tending for one (juartor of a mile inward from tlie shore, ami runniuf^ that breadtli along tlu; whole of the said sliore frontage with the reefs and (|uarrie» of Hfone thereon and therein, and all the lionse.s, stores, huildings and ap|)urtenan(!e», and all privileges of every kind thereon or thereto belonging, or enjoyed therewitii" — the coves themselves, and the landu, honscs, &('., within snch eovcs arc inclnded, or exclndcd. And if it should be hidd that the de«'d,s above referred to, or any of them, were well executed by the testator in his lifetime to convey real estate, whether the sums, &<•., therein named as the consideration n.oney sliaH be conclusive a.i to the value, and be a coni;)liauce with the provi- rtions set forth in the tenth clause, or any other clause of the said Will, so that it shall be biiuling. And whether in cases where natural love and affection is the consideration, the property conveyed shall be held to be a clear gift, and the grantee and his representatives be entitled to one- eighth of the residue. And also, in case a grantee is unwilling to accept the portion thus con- veyed, or to accept it at tlie rate conveyed, whether he has the option, under the terms of the said Will so to do, and claim au eighth of the entire estate. And also wliether the trusts set forth and described in the seventecnfh clause are one and indivisible, or whether petitiv)ncr can take upon him- self the burden of trust as regards one or more of the devisees or tht representatives of the deceased children of testator, an<' yet decline as to others. And also, how and in what manner the alleged ad\ cements referred to in clause twenty-third, to the children of An\os S. and of James Seaman, deceased, are to be ascertained ; and also as to any and all other portions of said Will and Codlells where doubts and differences of opinion exist. And he, as in duty bound, will ever pray. (Signed) Rufus Seaman. Minudie, Oct 19th, A. D. 18(j5. Halifax, SS. In Equity. In the matter of the Estate of Amos Skaman, late of Minudie, in the County of Cumberland, Esquire, doceuhcd. To TUF Honorable Jamks W. Johnston, Judge in Equity, &c. &c. &c , The Petition of Alexander MacFarlane, of Wallace, in the County of Cumberland, one of the Executors and Triistces of the late Will and Testament of the said Amos Seaniun, Hmnbly sheweth : — That the said Amos Seaman departed this life on tlie fourteenth day of September, A. D. 1804, having made his last Will and Testament on the eighth day of March, A. D. 18(52, with two codicils, one dated on the twenty- sU u flP(5oii(| (lay of October. A. D. T8f)'2, und tlio ot'ior on »ho tliirtoontli day of SeptomlKjr, A. D. 1804, copies of which will and codicilH are annexed horoU). That the will iind codicil fuHt oxccutod had lioen deposited l»y the testator with pt'titionor, lon}» previous to his death, and pititioner being solo exe- cutor of thi! Huid will, and l)einj» dosirous of having lliifuH Seaman, one of the testator's sons, connected with him tiiorein, induced the testator d'lrini; his hiMt illness to consent to the appointment of the said Ilufus ^'oainan, and he was so appointeil by the last mentioned ccKlicil, oxecutetl by the testator the day iKifore his doatli. That te-itator having informed putitionor that it was his wish that the codicil executed by him in the month of (), tober, IS(J2, snou'.d oidy be made use of in the event of any accounts or (daiiris against his f fi ••IS^SfSSs*!' iip-*- 'I W'm^-^ ' 'I^MB^P* ''' JL,^^ .nP"'"*" I 25 That top'ator liad also, prevHrnnly to the time of hiw !i8t illnoss, deposited with petitioner a wiitteii paper Higncd hv hitji. nhewing an allotment of por- tions of his real estate aiuonn; his cMldren un(i heirs, which is similar to tho entries and allotments inr.de ir. the h«»ok leterred to, Imt does not include all the parcels of land therein dt^scrilied, nor the other charges made thciein. That this Itook and paper writinn; (and the deeds hereinafter nientioned) contain all the allotinonts or disp<»siti()!is of his estate made hy the testator in connection with his Will, which have come to the possession of petitioner, or (»f which he has any knowledj^o ; with tho exception of hook alleged hy petitioner's co-exe(!iU((r as having hcen given to him l»y the testator, which petitioner has not seen, nor was it even spoken of hy the testator to him. That three deeds signed hy the testator, dated in Maroh, 1854, and made in favor of his sons (lilhort, llufns. (and James, now deceased), convoying certain portions of his real estate to them, were, >i..:-» time previous to the death of tho testator, deposited hy him with petitioner, cith instru<;tions that ihey were to he delivered to the said parties after his death attd although the consideration men''onod in such deeds is natural h»ve and afFecfion, testator in- formed petitioner that the amount they were to he charged therefor was men- tioned in the honk so kept hy him, which honk does contain entries placing a vu'iio on the lands descrihed in the said deeds. '"hat some months previous to the time of his death, tho testator directed petitioner to prepare further doeds for conveying certain other portions of his marsh lands to /lis children and grandchildren, an ' these deeds, so written, were afterwards shewn to petitioner hy the testator, .-signed hy him, and petitioner was informed hy testator that they wee executed hy him as escrows, to he delivered and take effect '-fter his death. Such deeds, six in numher, hear date the fourteenth day of January, IStU ; one a joint deed to his two sons Gilhert and Ilufus, and his daughter Jane ; one to the children of his dcceasod son J.unes ; one to the (diildren of his deceased son \mos Tliomas, and one to each of his three daughters, Ann, Mary and Sarah ; which uoeds during his h.st illness, the testator informed petitioner, were then in the kee))- ing of his niece, Emni.i Seaman, from whom petitioner was directed hy him to receive them, for the henefit of the partiet to whom they professed to he exoeuted. That such deeds were so received, r.nd with the first mentioned deeds- to testator's sons, have heen placed on record hy petitioner. Your petitioner is desirous to suhmit these facts in connection with such Will, as affecting the administration and distrihution of the assets of the testa- tor's estate, by way of petition to your Lordship, and asks your Lord.ship*8 opinion, advice, and direction as to the proper course of procedure thereunde>-, and especially on the following points .• — 1st. As to the ralidity and operation of the codicil to the testator's Will, executed on the twenty-second day of October, A D. 1862, witnessed by G, W. Cutter and Chas. C. Seaman. 2nd. Whether the book referred to is legal and valid and to what extent, and in what manner the charges and entries therein made will ooerate in the distribution and settlement of tho testator's estate 3rd. Whether or no the deeds above mentioned, or "ither of them, are so executed as to convey the real estate therein des; rihed, and if so executed, i *rc 26 whether the consideration moneys therein mentioned are the values to he placed thereupon ; or where such consideration is aominal, if the value put thereon in the said hook is the sum to he charged therefor. 4th. If the allotmenis made in the hook kept hy testator, and the properties descrihed as conveyed hy the said deeds, are held to entitle the several par- ties to whom the same are so given to retain them at the value pui thereon by the testator; how the residue of the real estate is to be divided, and in what manner tho value of the same is to be ascertained. w^ ,• -, i And also as to any and all other parts of tho said Will and Codicils wherein doubts and differences of opinion may exist. And as in duty bound petitioner will ever pray. Albxr MacF.\ki-ane. November, 1805. I \mos Seaman, of Minudie, in the County of Cumberland, Esiiuire, do hereby make and publi.sh the following to my last m\\ and Testament, executed on the eiglith day of March last past, as a Codicil. Wm-REAS my sons Gilbert and llufus, and George Hibbard, husband ot my daughter Jane, have expressed their intention of making charges against my estate, for doing which they or either of them can have no just right or equitable claim, it being my intention and desire that the interest and p..iare they r