of the structure shadowed forth in the vaticinations of the

Attorney-general.

Of the five cases in the Number of the Reports before us, one (Bird v. Hustler) turns upon the construction of the thirteenth of Lord Lyndhurst's orders. In the course of his judgment Lord Brougham took occasion to observe, that he had conferred with the Vice Chancellor, one of the framers of the order in question, and that his Honour entirely concurred with him in the construction which he put upon it. Shewen v. Vanderhost is an appeal from a decision of the Master of the Rolls, whereby his Honour over-ruled an exception to the Master's report. A creditor had applied, under the common decree in an administration suit, to prove a debt which was barred by the Statute of Limitations. The executors refused to interfere, but the plaintiff in the suit, a residuary legatee, insisted on setting up the objection of the statute, and the Master having allowed the objection, the exception was taken to that part of the report in which the creditor's claim was thus rejected. The Chancellor affirmed in this case the judgment of the Master of the Rolls. Churchman v. Ireland is an appeal from the Vice Chancellor's decision which is affirmed; and the two other cases are appeals from decrees of the Master of the Rolls, in both of which his Honour's decisions are reversed. Since the present Chancellor has been raised to the woolsack, not less, we believe, than onethird of the decrees made at the Rolls has been reversed upon appeal; a striking result, when compared with the very few instances in which the decisions of the present Master of the Rolls were disturbed by Lord Brougham's predecessor.

9

Pritchard v. Draper does not involve any point of law, so far at least as the ground of the reversal is concerned, which turns chiefly upon a difference of opinion between his Lordship and the Master of the Rolls as to the effect of certain evidence taken in the cause. Churchman v. Ireland and Jones v. Scott both involve points of very considerable importance, and have both given rise to much comment at the Bar, and among the profession generally. We shall proceed, therefore, to notice each of these cases with as much detail as our limits will permit.

Churchman v. Ireland involves a question of election under a

will whereby the testator gave, devised, and bequeathed "all and singular my estate and effects whatsoever and wheresoever, and of what nature or kind soever, both real and personal, which I shall die possessed of, interested in, or entitled unto," to trustees, their heirs, executors, administrators and assigns, upon trust, to apply a portion of the rents and dividends to the support of the testator's son, John; and, subject to the payment of certain other sums, upon trust, to invest the residue of such rents, &c. and after the death of his said son, to sell and dispose of all his (the testator's) then real and personal estate, and apply the produce of such sale in manner therein mentioned. Some time after the date of his will the testator purchased some land adjoining to his other estate, and the question in the cause was, whether John, to whom, as the testator's heir at law, this land descended, ought to be put to his election. The Vice Chancellor decided that the heir was bound to elect, and from that decision the appeal was brought.

The cases in which a question of election has been raised with reference to an heir at law taking by descent after-purchased lands which his ancestor may have attempted to devise to others, and also claiming personal benefits under his ancestor's will, are not numerous; and the ground of the decision in the only case where an heir at law so circumstanced was put to his election,1 Thellusson v. Woodford, in which case the language of the will was very peculiar, was laid down with sufficient distinctness. The general rule has been stated to be, that where a testator gives benefits by his will to A B, and also gives the property of A B, whether by mistake or otherwise, to another person; A B is put to his election, because he cannot take benefits under the will and at the same time retain property in contradiction to the provisions on the face of the instrument. But if A B be the heir at law, and the property attempted to be devised by the testator be land purchased subsequently to the date of the will, which the heir takes by descent, it was doubtful, before the case of Thellusson v. Woodford, whether the rule would apply to him for two reasons: first, because the doctrine of election is founded upon an implied condition, and the heir's title by descent cannot be affected by implication; and, secondly, because the Court was supposed to be incapable of collecting

13 Ves. 209; 1 Dow, 249.

A

3

the testator's intention from an attempted devise of real estate made in contravention of1 the statute of wills. The latter reason was founded upon the analogy of a very strong authority, that of Hearle v. Greenbank, in which case Lord Hardwicke decided that the Court could not look at an instrument containing a devise of land for the purpose of getting at the intention and raising a case of election, where the devise was attempted to be made by an infant, whom the statute of wills declares incapable of devising real estate. Now, it has been settled ever since the case of Bruncker v. Cooke, that a testator is as incapable of devising lands of which he is not seised at the date of his will, as an infant is to devise lands at all, and for the same reason, because such a disposition of real estate is contrary to the statute of wills. These objections, however, to the application of the principle of election to an heir at law were over-ruled in Thellusson v. Woodford; and as the clause of the will in that case was so specially penned as to leave no doubt whatever of the testator's intention, it was decided by Lord Erskine, though not without reluctance, that the heir was bound to elect; and the decision established the point, that, where a testator directs his lands, which he may afterwards purchase, to be conveyed to the uses of his will, and makes a provision for his heir at law, and afterwards purchases lands which descend on such heir, the language of such a clause in a will being clear and unequivocal, the heir will be put to his election.

In Back v. Kett, where a testator directed his executors to sell whatever real estate he might die possessed of, and invest the produce for the benefit of his children, the Master of the Rolls (Sir T. Plumer) held that the heir was not bound to elect between after-purchased estates, to which he was entitled by descent, and benefits given him by the will. Thellusson v. Woodford, he observed, had gone quite far enough; but there the words were unequivocal, and it was impossible to construe the will without admitting that it applied to the matter in question. He should have entertained doubts without such high authority in that case; but, if it were to be carried further, the consequence would be, that wherever expressions like those in the case before the Court (which were very com1 Stat. 34 & 35 Hen. 8. c. 5. 2 1 Ves. 298, & 3 Atk. 695. 3 11 Mod. 123.

mon) were used, the heir would be bound to elect; whereas the principle was, that a will is not to be construed as operating on any real property but what the testator had at the time of making it.

In the Attorney-General v. Lord Lonsdale,1 the present Vice-Chancellor held that a party cannot be put to his election under a will, unless in the will there be a gift of the particular property which is to raise the question of election; an opinion coinciding with what Lord Eldon said in Druce v. Denison, that, to raise a case of election, a testator must describe the subjects of which he means to dispose, but not very obviously reconcilable with his Honor's decision in Churchman v. Ireland.

3Johnson v. Telford is a recent case decided by the present Master of the Rolls, and is reported in juxta-position, and by way of contrast, as it should seem, with Churchman v. Ireland.

In Johnson v. Telford the testator gave, devised, and bequeathed, limited, and appointed, all and every his real and personal estate, whatsoever and wheresoever, which he, or any person in trust for him, were, or was, or should be, seised or possessed of, or entitled to, in possession, reversion, remainder, or expectancy, and all his estate and interest therein, to trustees upon the several trusts mentioned in his will. Under these general words it was held that the testator could not be intended to have meant to include after-purchased Scotch estates for the purpose of putting the co-heiresses (who took those estates by the law of Scotland, and were also entitled to benefits under the will) to their election. The Master of the Rolls said that, "where a testator uses only general words, it is to be intended he means these general words to be applied to such property as will in its nature pass by his will." The 'doctrine of election, it should be observed, has been held to be as applicable to Scotch estates as to after-purchased real estates in England, the latter being as incapable of passing by the will as the former. To this will there was a codicil, whereby the testator directed that, if any hereditaments purchased by him at any time or times should happen to be conveyed after the date and publishing thereof, his heir at law should upon his (the testator's) decease convey the same to his 1 1 Sim. 107.' 2 6 Ves. 399. 31 Russ. & Mylne, 244. 4 2 V. & B. 127.

trustees upon the trusts of his will.

The Master of the Rolls

held that, as the language used in the codicil did not refer to estates purchased after the codicil, but to estates which should happen to be conveyed after the codicil, it was not sufficiently clear to exclude the co-heirs from descended estates which were purchased after the codicil."

From this view of the cases it appears that in no instance has an heir at law been deprived of the uncontrolled enjoyment of his right by descent to after-purchased estates, where it has been possible to put such a construction on the words of his ancestor's will as would consist with the supposition that he did not intend to make such a disposition of his property as the law does not permit him to make. Previously to Thellusson v. Woodford, it was even doubtful whether an instrument making an illegal disposition of real estate could be looked at by the courts with a view to collect the intention; but Thellusson v. Woodford has decided, that where the intention to dispose of real estate to be afterwards purchased is unequivocal, though it be an intention, whether from ignorance or otherwise, to do an act contrary to law, it shall nevertheless prevail so far as to put the heir to his election. Thellusson v. Woodford is not inconsistent with the subsequent cases, because in the latter the intention to make such a disposition of property as the law prohibits was not unequivocal, nor would it, perhaps, be inconsistent with any case in which such an intention was not as unequivocal as it was under the special circumstances of the case upon which Lord Erskine decided. In Churchman v. Ireland, the words of the will all my estate, both real and personal, which I shall die possessed of,' certainly admit of a construction which would consist with the testator's intention to make a lawful disposition of his property; and such a construction, even if not the most probable, ought surely both upon principle and upon the authority of the cases to prevail against another construction, which fixes upon the testator the intention to make an unlawful disposition of his property, and which involves another consequence which the law discourages, namely, an interference with the rights of the heir. The words may mean, ' all the estates which I now have, and which I shall continue to have at my decease; and that