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5
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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<l;ie in P^quity (Judge Johnston), for
directions as to the management of the estate. The Executors filed
separate petitions, and the questions submitted were by the Judge in
Equity directed to be argued before himself and two associate Judges of
the Supreme Court, and were accordingly so argued on the 20th and 21s'.
February last before the Judge in Equity, Judges DesBarres and
Wilkins ; by Hon. J.McCuUy, Q.C., and J. W. Johnston, Jr.. Esq., on
behalf of R\ifus Seaman, Esq., one of the Ex.icutors, and of certain of
the devisees; and by Hon. J. W. Ritchie, Solicitor-General, on behalf of
Hon. Alex. Macfarlane, the other Executor.

The Court, being divided in opinion, now delivered judgment seriatiw.

The following arc the • linions of the majority of the Court.

The Judge in p]quity uelivered a dissentient opinion.

Wilkins, J. — As to the first point of inquiry, '• Whether any and what
consideration is to he <jiven to certain jJooks, Docvmenis, and verbal
declarations of Testator?" By section 11 of his Avill testator says : —

'•And inasmuch as several of my chi'dren and grandchildren have re-
" ceived and may receive from me advances in Personal or Real Estate,
'■ or in both, which it is my desire should be charged against their
" respective shares, jiortions or interest, in and out of my Estate or some
"part thereof, I do direct and order and my will is that all advances of
" Real or Peri-:onal Property and all sums and charges of what nature or
"kind soever lohlch hart been or shall' he hy me entered or set down as
" advancement to, or charged % or against any of my children or grand-
" children in a hook used or to he used hy me for that purpose, shall in the
" distribution of my Estate stand as advancement made to such children
" and grand-children respectively at the value by me declared and set
" down therein ; or otherwise, if the value be not set down and declared,
"then at a just value and be deducted fvom their several shares, portions
" and interest in my Estate, and be taken by each of such children or
" grandchildren towards his or her share of my Esto.te."

The ir)th section of the Will is in terms as follows: —

" And further, to prevent dispute and dissatisfaction in the division of
" my Property after my death, / may make some apportionment of my
" Minudie Estate or parts thereof to tcke effect as respects my children
" or grandchildren or some of them after my death, it is 7ny Will and I
" do order that all any and every portion of my Minudie Estate, whether

* For the opinion of DEsBAKBts, J., whicli should have preceded that of Wilkins, J.
see post.

"■ Marsh Land or Upland, which by Deeds executed or to he executed hy
" me, 7 /lave conveyed or shall convey, or have expressed or shall express
" to convey to any of my children or f;randchildren, or which I have allot-
" ted or shall allot and apportion to any of my children or grandchildren,
" and shall particularly describe and designate in any writing hy me
" signed, shall in the division of my Estate be inrhided in the shares of
" such children or grandchildren respectively, and be estimated in mak-
" ing up and allotting such shares at the value which I shall declare and
"seFdown in writing to be the value I attach thereto in such apportion-
'' ment, or otiierwise in the absence of such declaration of value then at a
"just value, and such and every of my children and grandchildren, to
" whom or in whose name I have made or shall make any such deed or
" allotment, shall accept the same towards tlieir shares respectively in my
" Estate at a value ascertained, or to be ascertained as beiore mentioned
" and in manner as aforesaid.'"

It is contended, on behalf of Mr. McFarlano, that the hlacJc book found
by him, after testator's death, in a locked trunk is, under the circum-
stances detailed by Mr. McFarlane, the book to which, in legal effect, the
will, — set up with the black book incorporated by the codicil (as is con-
tended it was,) refers in these two sections.

On behalf of Rufus Seaman it is contended that the red book, sent to
him by the testator, three Aveeks or a month before his death, is, under
the testimony respecting it, entitled, on at least as s^rcg grounds as
those on which its rival rests for its support, to be considered the book so

niferrcd to.

I did nol, at the argument, understand the writing. No. 13, to be
much, if at all, insisted on ; but I shall, nevertheless, consider its claims
to be regarded as incorporated in the will.

All of these documents being unattested, according to the requirements
of the Wills Act, neither can be regarded as a part of the will, unless its
incorporation can be established by cvid' .ce that Avill bring it within the
rule enunciated by Lord Eldon, in Snu > 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 /

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

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;-.<locn^-^;- -^l^^^^^l!;^:^ lo, ex-

tor, at the momeu o his death, de^sign.d to ^ -^ .^_.^f^^^,. To adopt
cept to a very limited extent that I ^J^;^"/^^^^^^^^ . ^ ,^,,y .onjecture,
the language of Lord Mdon -, ^f^-^/^j^^^i^J ^loubt o'r diiliculty."
but the fact is not so manifest ! '^;,;;'^ ^ "^'^ '^,;,,;,,. evi,kmce, even sup-
Neither could be »-^'«n;nised withou n oly balam.n ^^^^^^^^^^

posing that evidence legal in its ^^'^''\^J-.!^^^^^^^^^^^^
^grav^doubt arises. The \^«*";.^""y « ^.f/^ ^^^i^ ;;\\^"nhMt ot the Wills
Sv Vernon is open to the -^i'^'^^^ ^ ^^^X^^ or the

Act." Can the black book, or ^« ., ;^' ^^^.J^f ^"[;,,{it ? The first is sup-

red book by Seaman or Vernon, "^^'l^^.Ti^^^^^^^^ ^^'^"^^^" ^^

porting a devise to his own wie.riie two 1^^^^^^^^^^^ ^^.^^ . ^,,^^^^ ^^^^.,

maintain a devise to himself; ^^'^^^ ZlTJs for Jmnsrif. as well as
S::;- rtd';;::rC:^ur;J^.her .. .e.i,uony, in

-J

ronnootlon Avith the ihcumcut, to which it refers, s,.l.s(a..tiatos - beyond
. ouht or .1. neuhy" the ulentity of book or writing., with the extraneo s
.h3c,nnent hat ,s mentioned in the loth section. It will be per. eived
presently that T consider the <,uestion, as to the effect of the ev^cCce to
be presented under very different circumstances, relatively tc W,' " 'h
The books and the wnt.u;? No. 1.3, alike profess to describe the allotments
men ,one.l .n section 1.^, and every one of these is "a writing, hncdly
the testator " A hook ,s not mentioned in section 1,5, in whid, the con^
prehensive tenn ^^any nrifhur i-s used. Both the bo;ks indicate adu -
ces as referred to .n section 14. On the point of n.ere intention we nav
perhaps, notice that the testator did, in fact, under the reserved pro-
spec ,ve power, at d.ffenmt times after the execution of his will, iop a
bffe en wntn... MacFarlane, who says, - After the execution of \he
hi,.t w, 1 the deceased agam shewed me this re<l book with the entries
made therem m connection with that will," and who afterwards hear.les a
or say referru>. 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 sai<l to me -that the black book-the impor a^
book-kept by him in connection with his will Avas in his red box, where
It was found." Macfarlane says further, -This (the black book) the

S V . t ' t •'^' ''''"'"' '''"^^^ '^^'^"'•'^ repeatedly shown me as t le
book kept by him in connection with his will." When last pre-iousv
he testator had so stated we are not informed, though it were^les mble
to know, since within a very ih^y weeks before testator's death, he s
proved to have spoken o the red book as the book eonneete dw t h
will Rifus Seaman tells us (and the time according to him and Vernon
could not have been more_ than a month before the testator's death) I a
at us las conversation AVMth his father, the testator, expressly refer im
to the red book said "You will see by that how 1 want my proper ?
divided. Rufus adds, "My father referred to that book se^n me y
Vernon and said, 'You will see, in the adding up, that your share is no^
equal to the rest ; but when this place fthe homestead) is added to it i
will make it more than equal." Vernon, when he carHed the red book

Zff^rr;-T f,V^1\''^^^^^^^ aovvn to the boys and tell

d^ em ins to hcthejmal chmsum of my Estate as the hook ivlflshew them "

tor told MacBarlane, long before this, that he had made tf-e red book
void, yet the testator, so far from destroying the red book. .' nt it th^
formally, a few weeks before his death, l his son, (who i x ow one of
his executors) as am for the book that vvas to sh^w how theTestTtor'
property was to be disposed of. As such, that son and execMttwho
retained it, produced it after his father's death. In the interval betwTen
the declaration made by testator to Vernon and Rufu respec «'^^the
adoption of the red book, and that las. made to MacPVlS reS i^
his recognition of the black book, we have no evidence r sretin. eklie?
book. If the circumstance of the bla<;k book b.ing found in the trunk
can have any weight in raising a prest|mption in its" favor, tll^sump.

tion woulc

and the fa

moment o

lied on tin

the red be

1861, aivl

No. 13, ii

but No. 1

ternal evi

reference

tlie test at

will. It

it. McV

tlo : nffli

be 'aid a

each a ISC

valuatl(>r

out ion ol

the resei

accordir;

writing i

ble. ^\'

j of his d(

the testf

■ indisper

sion> of

ted. T

structio

of the .1

wimm

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<lied in the two sections. H^c provi-
ri^f sec L 1 15 must iece.sarily fail if those of U cannot be. effbctua-
ted The converse does not follow, for 14 can stand w.thou In. A con-
smictio -rthose sections involves a necessity for cons.denng the effect
of he de..s ia evidence. Th a question presents a double aspect^, f^ist,
a r '^ards the deeds in the abstract ; secondly, as regards th^n^^^l^^";
Tex o"n with the intended disposition of the estates as referred to in the
seSs. Under the first the question simply is, ''Were the deeds com-
nlecdv executed?" There are three in one class, six in the other, lie
t^r ha" rnonied considerations expressed, the former are stated to

be for or. a.d affection. They bear date, the six on tlie Uth January,
1864 1 e three on the 25th March, 1854. The only evidence respex ing
he ex uVon of the latter is given by MacFarlane, who says, - Tiiese
were handed me bv the deceased, some three or four years ago. He
r^t'd I v*^ to retain the deeds as escrows, and deliver them to the parties
o tho^e who might represent them after his death, should he not deliver
^hem before." He adds, - They are in the handwriting of William, de-
ce'Ted who is a witness thereto. They have never been actually de-
Wed to or accepted bv the grantees, but I have registered them since
testator's death. The deeds in the second class, being dated subsequently
to rexecntion of the will and being to children -^\f^^^^'\^^^^^^^^^^
he estator. were prepared by McFarlaue in the year 1863 or 1804 from
a ^apfr written b/the testator. After they had been executed in the

mm ^1

presence of one Cliarmun — u subscribing,' witness thereto — under circuui-
slarices to be stilted — they were retained by the testator. After his death
they were received by MacFarhme, at the liands of Knuna Seaniap, the
testator having.', a short time before liis death, acUlressed to MacFarhvno
tliese words " Those deeds you wrote of the new diked marsh you will
jcct from Kmnui Seauum ; those I wish you to take for delivery to the
j)artics when 1 am jrone." Churman says, '^ I was called on by the tes-
tator to witness some deeds, between Decetnber, 180.'} and January, 1864.
Mr. S(!aman, at his house, said he had some dee<ls to witness,. He, the
testator, si;?ned them, one after another, and desired me to set down aiy
name as. u witness, wiiich I did. He said, ''Perhaps you may he called
on some time to prove these deeds, and perhufis not.' Ho retained the deeda
and T came away." MacFarhme jrives this further testimony concern-
in;; them. " Some short lime after I prepared the deeds, the testator at
Mimidie, shewed them to me executed, and subscribed by Charmau.
Testator said he had executed them, an<l that they were as escrows to
take effect after his death, unless he himself delivered them before to the
pjirties." This was, as has been shewn, anterior to the last declaration
ma<le by the testator respectin<( these deeds. Tiie deeds of 18G4 are
materially distinguished as to their opei-a?ion from those of 1854, m this
respect, that iUl former, for reasons which will be explained, are uncon-
nected with the AVill, whilst the latter are essentially a part of it. The
following appear to be the legal principles which govern the question as
respects the former. The authorities shew that a deed may be, in the
absence or without the knowledge or consent of the grantee, absolutely
executed, so as to convey the estate to him ; and the grantor may, with-
out affecting the validity of the execution, retain the document. The
grantee thus invested with a title without his concurrence (;an, of eourse,
however, disclaim it, if he pleases, by deed under seal. But the autho-
rities also shew that to make the deed operate, either absolutely or as an
escrow, on the performance of a condition impo-sed, there must be a com-
plete execution by the grantor. The grantor may completely execute a
deed, and deliver it to a third person, with directions not to hand it to
the grantee until after the grantor's death. In one of the cases stated
below^ it will be seen, however, that Coleridge J. expres.sed himself
:loubtftd if the deed had been delivered on condition that the ijrantee should
)tof have it till the grantor's death, whether it could operate as an escrow.
Doe e. d. anions v. Knight, 5. li. & Cr., 071 : Doe d. Lloyd v.
liennett, 8. Car. & P. 124; Graham v. Graham, 1 Ves. 275; Cecil v.
Butcher, 2 Jac. & W. 565. The power of a Court of Equity to relieve,
in cases of execution of deeds, according to good conscience and the real
intentions of the parties, snfliciently appears from tiie cases noticed by
the Master of tiie Rolls in the above case of Cecil v. Butcher.

Now, applying these principles, I consider the words of the grantor
addressed to Charmau, at the time of his subscription, namely, " per-
haps you may he called on to prove these deeds and perhaps not" deci-
sive in connexion with grantor's retention of the deeds, to shew that the

cxecutior

Holntcly (

These w(

his death

MacFarl

<'learly o

these det

because '

through

with the

tion of tl

pccting I

documei

any act

fion of h

effectual

means o

therein.

tion of t

13th Se]

or any

" conve;

scribed

the broji

exist end

the codi

Iment, tl
operatio
and als(
cuted, fi
I sions.
incorpo
found a
such a
the goo
p.l95(
text wi
It is it
but wii
ence m
paper,
For tl!
I shall
El. 42
execut
"Arc
istencc

i')

, " fer-
" deci-

execution by tl.o grnntor was not then complete, nn<l that he had not ab-
Holutclv divested himself of his title to the estate mentioned m the deeds.
,1 These were retained by the grantor, and continued in his possession until
■I his death The direct'ions respcctinfr them which the testator gave to
' MacFarlane on the evening before the day of his dca»h, appear to me
i dearly of a testamentary nature in refc^rence to tlie intended operation ol
/ tliese deeds ; but they cannot, in my opinion, have a testamentary effect,
' ' because they are unconnected with the will, either by direct reference or
throu-li the medium of any extraneous document in eff-ect incorporated
with tiie will. My reasons for this opinion, and my view of the opera-
tion of the deeds of 1H54, will appea; from the result of my reasonings res-
pecting a principle which, in my o,,inion, prevents cither of the extrinsic
documents in evidence being received as incorporated m the will, a, rcqH'.ds
avuad done, or wrifimj mp,c<J hrj the legator, snh.vguently to the excev.
tion of }m will. It will be seen that I regard section 14 as made to speak
eff-ectuallv In rcnanl to achnuo-s or rhnr^je, in peri^onol or real estate, by
means of' the red book, so far as such advances or charges are expressed
therein My mind has reached a clear conviction that neither the opera-
tion of the evccution of the will, nor of the execution ofthe codi<Ml o the
13th September, 1H64, incorporated with the ir)th section the red book
or any other .locument in evidence, as regards any " apportionment
"conveyance" or "designation of estate," expressed, executed or de-
scribed by the testator after the actual execution of his will ; and this on
the broad ground ihat a will cannot incorporate an extrinsic paper «o< in
existence aithe exerulion of the will. If, at the time of the execution of
' the codicil, the will had not effectually incorporated an extrinsic docu-
ment, the execution of the former could not have that effect /rom its m^re
operation. It would set up the will of whi.h it professed to be a codic. ,
and also previous codicils executed, or, perhaps, since the statute, umxe-
cuted, from tlie force of the term - codicil," an 1 by virtue of express deci-
sions. But it could not incorporate any paper which the wi I had not
incorporated, without express reference thereto in the codicil. 1 have
fourid a notice of but one case which could, at all, even seem to sanction
such a violation of principle. It is the case cited at the argu"ieTd of In
the -oods of Hunt," reported in 2 Robert. 622, and mentioned by Williams,
n 195 ( Wms. on Ex'ors) . I can attach no importance to it, as stated in the
iext writer, without inspection of the report to which we have not access.
It is inconsistent with not only Croker v. Hertford, of which hereafter,
but with another passage in Williams, p. 85, in these terms 'The rejer-
encc must be distinct, so as to exclude the possibility of mistake, and ^/.e
paper, (not incorporated Ind) uefehhep to, must he ^lrkady writtkn.
fT this Williams cites Wilkinson r. Adam, 1 Ves & B. 445 (to which
I shall presently refer,) and Utterton et. al. rs. Robins et. al., 1 Ad &
El 42.3 These are the words of Sir William Grant on the effect of the
execution of a codicil. He says, in Pigott r. Waller, 7 Ves 118,
" A reference to the will proves only that the devisor recognizes the ex-
istence of the will, which the act of making a codicil necessarily implies,

■—not that he mcHri.s to j?ive U any new oiwralion . or to do more h,, speahng
({f It tlinn ho hml ijnu'm,,sl,, ffour h,, execufituf if." Dr. )jiHhii.-l(.n, ii>
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 <rone, have raised douhls, even as to a paper antece.lentlv ex-
ist ni":, hut (dearly and undcniahly referred to in a will." ('riiese, ]\ ap-
pears from Allen v. Maddock, have heen since removed. His Lordship
continues;) "But I take it to he d.ci.led, an.l there is no .h)uht, (lu.t a
paper »/mr^ «/Vt'r(/a/'(/s, could never be part of tlu^ \\ ill ; for the three
witnesses re-piired hy the statute, are witnesses to the sauifv of the testa-
tor, and to ail that is necessary to constitute u good will.' TJie conse-
quence IS that t!ic suhsecpien* j)aper has not the ceremonies necessary to
constitute a devise of land." The reasons, conclusive in the particular
case, would not, of course, apjdy to the ease of a defectively executed
wdl, referrinfr to an extraneous document as desijrned to be ineornorated,
henvr followed by a codicil rr/Vrrhuj to that document, and itself lej.rallv
executed. Such reference would incorporate .he document in the codicil.
In my view of the law aixJ of the evidence the execution of the codicil in
September, 1864, has no practical operation in this case. It must be
borne in mind that the reference ni section 14 is, not to a book, but to
" eutrioi made, or t(» be made in a book." It will be perceived, alreadv,
as a consequence of ihe opinion I entertain of the law -roveriiing the
facts, that the black book must be rejected In tolo, and tlu^red book held
to be incorporated, but not as iv'-ards any entries made therein after the
execution <;[ the will. The red book, proved to have existed at the exe-
cution of the win. contains entries shewn, per sc, to be made, some be-
fore others since, the «th March, 18G2. All the entries in the black
book are proved to have been made a/fe^- that time. Both (dasses accord
with the description of entries referred to in the will. Those that at the
execution of the will existed were, an<l are, a part of the will ; and, as
siich, needed, and could derive, no aid from the execution of the codicil.
The entries 'nade (and they include all those in the black book) after
the execution of the will were, at the moment of t!ie execution of the
codicil, void. That a(tt republished the will, and made it repeat the voice
that It uttered at the day of its execution. It could do no more. What
It had then uttered was the language oi' section 14, (it is sufficient now
to refer to that alone,) as made completely intelligible bv the entries in

the book r<

1H(>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.

■"«!

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

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 rea<l, 1 found, with great satisfaction, the
f(dlo\vin<' express confirmation, by the highest authority, of the opmion
entert lined by me, that " since the Wills Ad an attested paper, even a codi-
cil, cannot incorporate an unattested paper, without expresshj rfjerrmg to^rt.
Dr. Lushiugton, in Croker v. the Marquis of Ilerttbnl, 4 Moore s I • C. O.

365 says: '"Before the passing of the recent Statute it was common tore- |

publish a will or a (codicil for the purpose of rendering them operative from
the date of publication, because otherwise lands acquired subse(iuently
would not pass. Ordinarily, there had been a previous legal evecution ot
the codicil sought to be republished ; as, indeed, the term itself imports ;
but there was another mode admitted to be legjii, namely, a regularly
executed codicil, to refer expresshj to a paper not pnviously dull/ executed;
this was not, properly speakii.g, a republication, b.it an incorporation, by ^
reference, of an unexecuted paper. . . l

^'^ We will next consider," he continues, "upon what principle it is,^
that incorporation by reference has stood, and may be justified.

By the Statute of Frau<ls, devises of lands Avere to be in writing, signed
and attested ; tliis was the security which that law provided for the au- .
thenticity of such instruments. Any attempt to devise lands with less se- ^
curity, would be,2//-o tanto, a defeasance of the statute ; therefore, it was
held that a man could not, by his will, reserve to himself the power of
devisiuT land by an unattested codicil— for such codicil would carry with
it less proof of authenticity; but it was permitted to a testator to render
operative as part of his will duly attested, a written paper alreaay in
existence ; and for this reason— because the paper being clearly iden-
tified, and the will duly attested, the security intended by the
Statute would not be diminished. It is, however, evident that certainty
and idonlification is the very cr^sence of such incorporation. If any
doubt can ^xist as to the instrument to be incorporated, then the princi-
ple of incorporation by relation would fail. Consequently, so far as we
can discover in all the cases of incorporation under the Statute of Frauds,
there has been an express reference to a paper in writing described with
certainty." Then, after reviewing authorities, the learned Judge thus
continues :— " Having then examined the doctrine applied to incorpora-

«-»

xJSk.

^'^.

tion, in eases bearing reference to the Statnte of Frauds, the ne^xt step i.
to determine whether it docs not eqnally apply to the present Statu e of
Wills: there is not any ground for distmct.ou, or the o.dy difference as
3lates to This case, is attestation by two instead of three witnesses ; a
bequest of personal estate beiri^r „ow -overned by the same rules as ap-
pi; to devices of real property. This brin,^. us at once to the queshou
whether the .Alilan script, bein, a separate paper, < istinct f'-'" - -» ;
cil of the 2()lh April, IS;51), and not executed accr-ding to the Statu, is
il: pi ated as pU of the co.licil of April, IS^Jl^ ; Jbr '' republished" m
the proper sense of the term the Milan codicil (that is the separate paper)
.aniH.t be. for it never was legally published or duly executed. Bearinj,
i,. mind that certainty, and preven'ion of mistake are requisite, let us
examine the words of the codicil of April, 1H31). Th.re is no express
re'-erence to the Milan script, by date, by contents, or by any other speci-
fic description which could i.h.ntify. The words to be relied on are I
affirm mv said will and codicils." If such words are sufncient for in-
corporation, then general des.-riptiou will incorporate, without ex-
press reference or identification." and then the learned J/^^^'? '^■'l^;; /^
Uneral description, certainty, without chance of mistake i The want of
specific identification would, of necessity, repeal to a cer am extent the
S^tatute ; for if j,^eneral reference will do, why should not a testato.
write as many codicils as he pleases, after the incorporating^ codicil and
by omitting to date them, or by ante.lating, defcvat the prov.sions of the
Statute ? The Statute savs property shall not be thus bequeathed un e»s
he paper to be incorporated is as clearly identified, as ,f it was actually a
part of' the executed AviU or codicil." Dr. Lushington concludes warn-
in.^ly to us. thus :-- If we defeat the possible intentions we may lamen
it? but we sit here, not to try wlu- the testator may have intended, but
to ascertain, on legal principles, what testamentary instruments he has
made and we mu^t not be induced by any consideration of mtention or
hardship, to relax the provisions of a Statute (perhaps the most import-
ant of modern times) for the distribution of property. In the case o
- In the goods of Smith, deceased," 2 Curt. 796, where the words relied
on to incorporate were, " I make and publish ^^v^ ^ secovd ^^^^^
last will and testament "-heUl that a previous codicil «;frned by deceased
not attested was incorporated. Sir K. Jenner says. - The la ter cod.cd
being duly execute.',, and rcfcrrlvu to the Jonmr, ,s an execution of tfit,

former codicil also." , , ...

Under the present Statute of wills it is a fixed law regulating incorpo-
ration. ^'That an attested testamentary paper cannot incorporate an un-
Httested paper without express reference to it." , , . , ,

' l' h 1 , nierefbre, reganl the point as settled ainl c^mcbide in the Ian-
<nia.^e of the Vice-Chancellor, in Johnson .•. Ball, 5 DeG. & Sma1el>l,
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

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<res to be siqned hif the testator— M that it requires is that they shall
appear in a book kept" by the testator for that purpose. Ot the fact that
this at the testator's execution of the xoill was " the hook so kept there
is the clearest evidence within, and without the covers of the book— in-
deed it is not denied ! , , , u

r have already expressed my opinion that the red book cannot be re-
.mrded as incorporated in section lo, for the purpose of describing and
desi'mating in - a writing signed by the testator" an apportionment ot
the Miuudie estate, or parts thereof, except as regards the deeds shewn
by that book to have been previously executed in furtherance of that pur-
pose That section, therefore, being, as shewn, without support from
any other "writing" is, in my view, as regards apportionment, as inopera-
tive as if struck out of the will.

My reasons for forming that opinion are these:— 1 he book, among
other entries, contains one in these terms :—'^ This book is kept by me,
and the entries and charges therein by me made are in accordance with
tl.p clause inserted in my will, executed on the cujldh day of March, 18bJ.

Amos Seaman.

The testator thus declares that on that particular day he executed his
will; but all the entries that follow purporting to apportion his estate
among his descendants, and to declare the values of the portions thereof,
are expressly stated to be made suhsennently to the execution of the will.—
They must all, therefore, share tlie fa of the black book, and be reject-
ed, as, in legal effect, unattested, and not incorporated in the will.

I turn back, tlieu, to the preceding pages of the red book to see whether
they contain entries of an apportionment made by the testator, at, or previous
to. the execution of the will. K such be found they must be regarded as

incorporated therein. I find oiitries, indeed, evidently made in order to
appoiilonment Tliey are inserted between the dates of Septr. 27th, 1844.
and January 24, 1840: — hut tney, in my opinion, are not incorporated, he-
uause they are nianife-^tly incomplete and detective. Whilst they profess to
api)ortion, and do apportion to some of the descendan(:> named, in 'an unquali-
fied manner, they are so uncertainly and va<!;uely exjiressed as regards oflu-rs,
that it cannot be said in reference to these. What the fesiator intendcii to o;ive
them: — For instance, wliilst Ann's poilion is thus descrihrd. '• Ann to Iw^ve
that part of thf; manor-tarm where the Doncasters now live t(» the Lake
Koad, at same value, for tlie marsh, 80 acres ^If), and improved upland at
£10— woodland, say at -£2 per acre,"— the apportionment to lUifus and
Willia-n is as follows : '• Kufus and William to have the upland rise from the;
old cliapel to Clarke's Pomt, with the pasture marsh to the noith of the road
opposite, at same rate— upland i:lO, and marsh 4:15, per acre, to be equally
divided as they may agree ; but if Rnfus sticks by me, and hvliares well, it is my
desire for him tohtve that part with the baildiniis f now occupy, and William
to take from BlenUiorns line to the point, value both £1)4;"). Jf Ihifus takes
the homestead, he. omjht to allow William sometiiino y«r buildinxj extra."
Again, in the apportionment for Mary and Jane, he writes : " They should
h ive so>ne 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

tn^Elm^m^0ii-

,■*■

" 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-

gitis

.-■•#

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;'

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,

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^^

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<ving been proved pro-
bate thereof was duly granted to him and your petitioner as executors.

That an inventory of the r(;al and personal estate of the testator has
been duly filed in the office of the Registrar of Probate in said county.

That in the month of May last your petitioner applied in the usual
way by petition to the Judge of Probate for the County of Cumberland
for an order to appoint appraisers to divide the real estate and lay off the
shares of the several devisees, and an order was made accordingly, and
three respectable freeholders namely, Robert Donkin, Nicholas Keiver,
and George Moffat, were appointed accordingly.

That shortly after and on the twenty-ninth day of May, the Honorable
Alexander MacFarlane, co-executor and trustee and a devisee under said
will, filed a caveat in the office of the Registrar of Probate for said county
and no further proceedings have, therefore, been had in reference to
such division, and the real estate valued at thirty one thousand seven
hundred and fifty seven pounds tevi shillings still remains undivided, and
as it was at the testator's death. That this has been productive of great
inconvenience and mischief, as none of the devisees can safely proceed to
make improvements or to let the property, nor can your petitioner, ap-
pointed a trustee, or as a devisee, take upon himself to act as he other-
wise would.

Your petitioner is informed and believes that the testator kept one or
more books or written papers made sul)sequently to the date of his will,
but none of which have been produced for probate, nor are they capable
of being proved as testau^^antary documents, as your petitioner is in-
formed and believes. One such book or document was deposited by tes-

tntor with your petitioner, and he hath the same ready to be produced if
re(juired, or ordered so to do ; anotiier such Itook or document your pe-
titioner believert is in the possession of the Honorable Alexander Mac-
Farhin(^ co-executor, and a copy hath been luniislied by him to your
petitioner.

Your petitioner having submitted the copy of the teslator's will and
codicil, and copies ot these several documents to counsfd, hath been advised
to submit the facts by way of petition to your Lordsliip, and ask the opi-
nion, advice and directions of your Lordship respcctinjr the management
and administration of tlie trust property, and the assets of the testator as
to the proper coin-se of procedure, and especially as to whether the books
or documents so referred to arc legal and valid instruments, and to what
extent, and whether the verbal declarations of testator about or shortly
before the time of his decease are admissable to explain the contents of
said books, jMid if anything written or spoken by testator in reference to
his will, and the devises therein contained, should contro'. or aflf'cct the dis-
positions contained therein, whether the fret-holders already named should
proceed to divide and lay ofT to the respective devisees according to the
form of the Statute in such cases provided, their respective shares, or
whether they should not or how otherwise.

Your peationer also respectfully submits that upon a recent inspec-
tion of the public records in the office of Registrar of Deeds at Amherst,
he finds that nine deeds purporting to be made Ity testator, and to convey
piirta and portions of the testator's real estate ( inventoried as such by the
executors. In the month of May previous) to certain of his children, csome
for natural love and affection, and others for small and inconsiderable
considerations, were on the seventh and ninth days of July, A. D. 18G5,
proved and recorded, but whether these deeds were ever delivered or
executed to convey real estate, your petitioner is unable to pronounce,
but believes some of them were not, and as the clauses in the books, and
the considerations in the deeds are not in consistency with each other, he
prays advice and direction on the subject in connection therewith. If
permitted so to do, your petitioner is prepared to show that neither the
deeds recorded, nor the books referred to, carry out the intentions of the
testator as regard>: 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-

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 <!statc as therein njontioned,
being made ; petititioner previous to taking probate of the testator's Will,
consulted the said liufus Seaman as to whether or no the said codicil should
then be proved, and undorstandir)g from him that there was no intention of
making any accounts against the estate;, as in such codicil referred to, it was
not then proved or included in the said probate. But subsequently the said
Hufus Seaman having informed petitioner tiiat sucli claims would be made
against his father's estate, and petitioner being aware that these demands were
disputed by the testator in his lifetime, then informed tlie said Kufus Seaman
that in such case the said codicil si .Id be proved, and filed in the office of the
Kegistrir of Probate at Amherst, which has aecrordingly been done.

That an inventory of the real and p trsonal estate of the testator has been
filed in the office of the said Registrac of Probate, and although petitioner was
desirous of having such real estate fti.ided among the several children and
heirs of the testator with the least possible delay, he found that in conse-
quence of the peculiar natuie of the trusts and bequests in the testator's Will,
and from the fact that parts of such real estate were mentioned by him as
having been allotted to certain of his children and grandehililren, and value
put thereon, in a book kept by the testator in connection with his Will, and
also that other portions of his lands had been conveyed by deeds to his several
chiliiien ; in soi.ie of which deeds the consideration was nominal; that such
division could not bo safely or properly n)ade witliout having the disputed and
doubtful matters in reference to the distribution of the assets of the estate first
settled, to guide and direct the parties in making such livjsinn.

That testator on several occasions previous to his deatu, slievtcd petitioner a
Itook kept by him, with entries therein of charges mad'^ • ;;ii'.ist b' several cijiid-
ren and grandchildren, and also describing the allotmenis of certain porticms
of his real estate to such children and heirs ; and during his last illness con-
versed with petitioner respecting this book as expressing his intentions respcct-
intr the distribution of his estate, informed him where the same was kept, and
it was found by the petitioner after the testator's death in a small locked
box in whv'M lie kept his money. Tliat the entries in such book arc wholly
in the handwriting of the testator, and it is the sair.c book so shewn to peti-
tioner, and doscribeil to him by the testator as the book kept by him in con-
nection ^Irh his Will. That suc i book \f in petitioner's possession, ready to
be produced as directed, and a copy thereof marked is hereto annexed.

> f

••IS^SfSSs*!'

iip-*-

W'm^-^ ' 'I^MB^P* ''' JL,^^ .nP"'"*"

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,

*rc

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<ay severally inherit and take under the provisions of my said VV ill, shall
be the full amount that they or either of them are to receive from my estate.

It is therefore my will, and I hereby authorize and direct my executor and
executors, to retain and deduct from the respective shares or sums which my
paid sons Gilbert and Kufus, and my daughter Jane, may severally become
entitled to receive, either from my personal estate or from the rents arising
from my Quarries or Joggins landv, bequeathed in trust to my executor, the
full amount of any claim, demand, or account which my said sons Gilbert and
Riifu^ or tlie said George Hibbard, may render or make against my estate,
toTother with all costs, charges, or expenses, which my executor or my estate
may be put tc or be subjected to in consequence of the rendering of any such

^ ''nerel)y ratifying and confirming my said last Will and Testament, I declare
the foregoing to be a Codicil thereto.

In winies^ whereof I have hereto set my hand and seal, this twenty-second day
(.f October, in the year of our Lord one thousand eight hundred and sixty-two.

Si.nied, sealed, published and declared, by the said Amos Seaman, as and
for a^Codicil to his last Will, in the presence of us, who, at his request, ami
in the presence of each other, have hereto set ^-ur names as witnesses.

(Signed) Amos Seaman, [l.s.]

(Signed)

Geo. W. Cutter.
Cii.\s. C. Seam.\n.

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