DATES: 1880 April 7, May 3

COUNSEL: Kekewich, Q.C., and Northmore Lawrence, for the Plaintiffs, who were the executors of the testatrix.
Crossley, Q.C., for the Defendants Eliza Brewer and her husband. 
W. Pearson, Q.C., and Giffard, for the Defendants Margaret Sidgreaves and Thomas Sidgreaves, her husband, the Defendant Thomas Clitheroe and the Defendants the Rev. T. Kiernan and the Misses Head.
Hastings, Q.C., and Tweedy, for the next of kin of the testatrix.

SOLICITORS: Gregory, Rowcliffes, & Rawle; Clarkes, Rawlins, & Clarke; Hunt & Son, agents for Gibbs & Llewellyn, Newport, Monmouthshire.

JUDGE: Hall, V.C.

Will of Personal Estate – Bequest to B. by Codicil of “all my personalty, such as cash, furniture, &c., to be applied as I have requested him” – Implied Revocation – Trust implied for Next of Kin – Parol Evidence – Attestation by one of Next of Kin.

A testatrix who had by will and three codicils made a complete disposition of her real and personal estate, afterwards executed a fourth codicil in the following words: “I hereby bequeath to B. (to whom I have willed my landed property) also all my personalty, such as cash, furniture, &c., to be applied as I have requested him to do.” B. gave evidence that before executing this codicil the testatrix had stated to him the alterations she desired to make in her will, and that he had made a pencil memorandum of her various fresh bequests, repeating each item to her, and that, except so far as to give effect to the new wishes so stated to him, the testatrix did not intend to alter her previous dispositions.

The memorandum was not signed by the testatrix.

H., one of two joint beneficiaries of furniture mentioned in the memorandum, attested the execution of the fourth codicil:–

Held, first, that the words “such as cash, furniture, &c.,” did not cut down the words “all my personalty,” and that the fourth codicil comprised and gave to B. as trustee the entire personal estate.

Secondly, that the nature of the trust was sufficiently established by the evidence of B., and being so established the Court would give effect to it.

Thirdly, that B. held the personal estate in trust to carry out the dispositions of the will and first, second, and third codicils, with the alterations effected by the new dispositions specified in his evidence.

Fourthly, that if the Court could not have given effect to the intended trusts, then, as the fourth codicil contained no express revocation of the will and three first codicils, but was executed in order to create new interests which had failed, the original dispositions in the prior instruments would have remained in operation.

Fifthly, that as H. had attested the fourth codicil her beneficial interest under the parol trust failed, just as it would have done had the trust been declared in the codicil, and that the whole beneficial interest in the furniture belonged to the other joint beneficiary.

ADMINISTRATION ACTION.

Elizabeth Fleetwood, by her will, dated in 1866, amongst other things, bequeathed a legacy of £400 and her gold watch to the Defendant Magaret Sidgreaves, and a legacy of £500 to Peter [*595]

Fleetwood, of Kirby; and as to the residue of her personal estate, after payment thereout of her funeral and testamentary expenses and debts, the testatrix bequeathed one moiety thereof to her cousin Margaret Heyes, if she should survive her, but if she should die before her, then to such of her children as should survive the testatrix in equal shares, and the testatrix bequeathed the other moiety to Mrs. Glover if she should survive the testatrix, but if she should die before her, then to the Defendant Thomas Clitheroe;and the testatrix appointed John Ashton, Thomas Sidgreaves, and J. Tatlock executors of her will.

By a codicil to her will, dated in 1872, the testatrix bequeathed her silver plate to the Defendant Eliza Brewer, and appointed the Plaintiff John Sidgreaves an executor of her will in the place of Thomas Sidgreaves.

By a second codicil, dated in 1874, the testatrix bequeathed the sum of £800 to her trustees in trust (in the event, which happened, of the death of Mrs. Glover in the lifetime of testatrix) for the Defendant Thomas Clitheroe absolutely, and she thereby revoked the bequest of a moiety of her residuary personal estate to Mrs. Glover, and bequeathed the same moiety to the Defendant Eliza Brewer.

By a third codicil, dated in 1875, the testatrix appointed the Plaintiff E. W. Woods an executor of her will and codicils in the place of John Ashton, who was then dead.

The testatrix made a fourth codicil to her will, dated the 27th of September, 1877, and in the following terms:-

“I Elizabeth Fleetwood do hereby bequeath and leave to James Beaumont of (to whom I have willed my landed property) also all my personalty, such as cash, furniture, &c., to be applied as I have requested him to do.”

The testatrix died on the 28th of September, 1877. Margaret Heyes died in the lifetime of the testatrix, leaving four children, who were Defendants to this action.

Peter Fleetwood was the sole next of kin of the testatrix.

According to an affidavit made by James Beaumont, who was a Defendant to the action, the circumstances attending the execution of the fourth codicil were shortly as follows:– [*596]

On the 26th of September, 1877, Beaumont (who was at Trouville, in France) received a communication from the testatrix, in consequence of which he left Trouville and reached the residence of the testatrix at Rainhill, in the county of Chester, about 6 P.M. on the following day. He went to her room, and directly he got to her bedside she began to tell him of certain alterations which she wished to make in her will, and desired him to send for her solicitor, the Plaintiff E. W. Woods, “to make the needful alterations.” He accordingly at once wrote for Mr. Woods, who lived at Warrington, but having no certain knowledge of the contents of her will, and thinking that something ought to be done which would enable effect to be given to her wishes in the event of her solicitor arriving too late to draw up a codicil, Beaumont proposed to the testatrix to give him “a written power to carry out the various wishes you have just expressed.” The testatrix assented, and he took an old letter from her dressing-table and jotted down on it in pencil a memorandum of her bequests, repeating each item to her before writing it down. The memorandum was as follows:–

“To pay out of cash in hand:
Mrs. Sidgreaves    .    .    .    . £400
Robert Fleetwood, Kirby      .    .  500
Kiernan       .    .    .    .    .   10
Fisher        .    .    .    .    .   10
Masses Inst   .    .    .    .    .   10
Miss Tat. Chest., brooch, best ring, pearls.
Funeral, &c.
Furniture, Misses Head.”

Beaumont then went downstairs and wrote the fourth codicil, brought it up and read it over distinctly to the testatrix in the presence and hearing of the Defendant Mary Head and a Miss Ashton, whom he had asked to attend as witnesses to the execution of the codicil. He then asked the testatrix whether she had heard what he had read, and whether it correctly recorded her wishes. She said “yes,” and then executed the codicil, her execution being attested by Mary Head and Miss Ashton. Beaumont shortly after asked her whether the silver went with the furniture, to which she replied, “No, that goes to your sister Eliza” (meaning [*597] Eliza Brewer); “she is residuary legatee.” Soon after this the testatrix went to sleep; a change for the worse took place in the night, and when her solicitor arrived on the morning of the 28th she was unable to attend to business, and in the afternoon she died. The memorandum was not signed by the testatrix; and Beaumont by his affidavit stated that “Mrs. Sidgreaves” in the memorandum was the Defendant Margaret Sidgreaves; that “Robert Fleetwood, Kirby,” was the Peter Fleetwood, of Kirby, who was mentioned in the will, but who had since died, and whose executors were the Defendants Joseph Shepherd, and Peter Fleetwood; that “Kiernan” and “Fisher” were the Defendants Thomas Kiernan and George Fisher, who were Roman Catholic priests; that “Masses” meant that the testatrix desired to have £10 expended in saying masses for her soul; that “Inst.” was a Roman Catholic institution, in the prayers of whose members the testatrix desired to be remembered, but to whom she did not desire to leave any pecuniary benefit; that “Miss Tat. Chest.” referred to one Ann Tatlock, of Chester; and that the “Misses Head” were the Defendants Mary Head and Sarah Head.

Beaumont also stated in his affidavit that he did not put down in the memorandum the legacy of £800 to Thomas Clitheroe, because he was sure it was included in the testatrix’s will; and that he did put down the various legacies specified in the pencil memorandum because he did not know whether or not they were included in the will, which will he said he knew the testatrix had no intention to revoke.

George Fisher and Ann Tatlock disclaimed their legacies.

The object of the action was to have the rights of all parties ascertained and declared, and the principal questions argued were, first, whether, if a trust in Beaumont was sufficiently shewn, such trust could be carried into effect; and, secondly, if it could not be carried into effect – then (a) whether the fourth codicil entirely revoked as to personal estate the will and three previous codicils, so that Beaumont was trustee of the personalty for the next of kin; or (b) whether the will and three codicils continued in operation, so that Beaumont was trustee for the persons and objects therein named. There was also a question whether the fourth codicil comprised the entire personal estate of the testatrix. [*598]

The memorandum was not signed by the testatrix, nor does it appear that it was even shewn to her, and it is not referred to in the fourth codicil. A will may, no doubt, so refer to a separate document as to incorporate it; but it is essential, as was said by Lord Cairns, L.C., in Singleton v. Tomlinson (1), that the document must, first, “be clearly identified by the description of it given in the will, and secondly, that it must be shewn to have been existent at the time when the will was made": Watson’s Comp. of Equity(2); In the Goods of Pearse(3). This memorandum cannot therefore be looked at; nor can the parol evidence of Mr. Beaumont be admitted. Moreover, the fourth codicil contains no revocation of the will and prior codicils, nor any residuary bequest, but merely purports to give or appropriate out of the personalty certain specific properties, which properties, as the attempted gift or appropriation fails, fall into the residue again, and pass under the residuary gift in the prior testamentary instruments.

Kekewich, Q.C., and Northmore Lawrence, for the Plaintiffs, who were the executors of the testatrix.

Crossley, Q.C., for the Defendants Eliza Brewer and her husband, who were interested under the first and second codicils: 

[He also referred to Briggs v. Penny (4) (which he distinguished), and to Irvine v. Sullivan (5).]

W. Pearson, Q.C., and Giffard, for the Defendants Margaret Sidgreaves and Thomas Sidgreaves, her husband (who were interested both under the will and first codicil, and under the fourth codicil and memorandum), and for the Defendant Thomas Clitheroe (who was interested under the will and second codicil), and for the Defendants the Rev. T. Kiernan and the Misses Head(who were interested under the fourth codicil and memorandum only):-

On behalf of Mr. and Mrs. Sidgreaves we contend in the alternative that the fourth codicil does not revoke the prior testamentary

(1) 3 App. Cas. 404, 414.

(2) Page 1172.

(3) Law Rep. 1 P. & D. 382.

(4) 3 Mac. & G. 546.

(5) Law Rep. 8 Eq. 673. [*599]

gifts, or else that an effectual trust has been created in Beaumont. The only gift in the fourth codicil is of such personalty as is properly described by and included in the words “cash, furniture, &c.,” and such a gift does not comprise, and cannot pass, the whole of the personal estate: Beales v. Crisford (1)and King v. George (2). But if, upon the true construction of the fourth codicil, the whole personal estate of the testatrix is comprised in it, then that codicil does not effectually revoke the clear beneficial gifts comprised in the prior testamentary instruments, because it contains no express revocation of them, but only at the most such a revocation as can be inferred from a subsequent inconsistent disposition; and that inconsistent disposition having failed, there is no revocation at all: Briggs v. Penny (3); Irvine v. Sullivan (4); Jarman on Wills(5); Barclay v. Maskelyne (6); Alexander v. Kirkpatrick (7). But if it should be held that the fourth codicil does revoke the previous testamentary instruments, then, the effect of the fourth codicil having clearly been to create a trust of some kind in Beaumont, parol evidence is admissible to shew the nature and objects of the trust so created: Crook v. Brooking (8); Pring v. Pring (9); Smith v. Attersoll (10); Podmore v. Gunning (11); Irvine v. Sullivan. In this case the trustee has shewn the nature of the trust by his own evidence, and by the memorandum, which is in fact a contemporaneous written declaration of trust.

As to Mary Head, she is entitled to her share of the furniture under the parol trust, notwithstanding that she was an attesting witness to the codicil.

Ingle Joyce, for the Defendants the children of Margaret Heyes who were interested under the will, adopted the same arguments so far as they were applicable, and contended that the fourth codicil did not revoke the previous testamentary dispositions, and

(1) 13 Sim. 592.

(2) 4 Ch. D. 435; 5 Ch. D. 627.

(3) 3 Mac. & G. 546.

(4) Law Rep. 8 Eq. 673.

(5) Vol. i. pp. 158, 162.

(6) Joh. 124.

(7) Law Rep. 2 H. L., Sc. 397, 402, 404.

(8) 2 Vern. 50, 106.

(9) Ibid. 99.

(10) 1 Russ. 266.

(11) 7 Sim. 644.[*600] vthat in the result Beaumont was created a trustee, but was a trustee for the beneficiaries under the will and three first codicils. He referred to Morice v. Bishop of Durham (1) and Russell v. Jackson (2).

Hastings, Q.C., and Tweedy, for the next of kin of the testatrix: 

The fourth codicil is a good revocation of the previous testamentary instruments, and a valid gift of the entire personal estate of the testator to Beaumont. Beaumont, however, is to hold it only as trustee, and as the persons for whom he was constituted a trustee cannot be ascertained without parol evidence, which is inadmissible for the purpose, the trust is incomplete and indefinite, and fails, and, the will and three codicils being revoked, Beaumont can only hold the personalty for the next of kin of the testator, who must consequently take. King v. George

(3) is an authority that words such as those used in the fourth codicil are sufficient to pass the whole personal estate. The Wills Act requires all wills to be in writing, and the Statute of Frauds requires all declarations of trusts to be in writing, and where a testator does not shew upon the face of his will who is to take, the omission cannot be supplied by parol without violating those statutes, unless fraud, for which those statutes are not to be used as instruments, is an ingredient in the case; and accordingly where parol evidence has been admitted, it has been in cases where the trustee against conscience endeavoured to retain the property for his own benefit: Lewin on Trusts(4); Habergham v. Vincent (5); Podmore v. Gunning (6); Irvine v. Sullivan (7); McCormick v. Grogan (8); Aston v. Wood (9); Kronheim v. Johnson (10); Johnson v. Ball (11). The old case of Crook v. Brooking (12), which was decided in 1689, is no authority for the admission of parol evidence in such a case as the present; and in Pring v. Pring (13), which was decided in the

(1) 9 Ves. 399; 10 Ves. 522.

(2) 10 Hare, 204.

(3) 4 Ch. D. 435; 5 Ch. D. 627.

(4) 7th Ed. pp. 54, 66.

(5) 2 Ves. 204; 4 Bro. C. C. 353.

(6) 7 Sim. 644.

(7) Law Rep. 8 Eq. 673.

(8) Ibid. 4 H. L. 82.

(9) Ibid. 6 Eq. 419.

(10) 7 Ch. D. 60.

(11) 5 De G. & Sm. 85.

(12) 2 Vern. 50, 106.

(13) 2 Vern. 99. [*601]

same year, and Smith v. Attersoll (1), decided in 1826, the trustee claimed to hold the property himself. Moreover, as to the latter case, Lord Gifford, M.R., by whom it was decided, misconceived the state of the law, for he founded his judgment on three cases – first upon Crook v. Brooking (2), where the question was not argued; secondly, on Lord Inchiquin v. French, which he misconceived, because he referred to the wrong report in Cox (3) instead of to the right one in Ambler (4); and thirdly, on Metham v. Duke of Devon (5), which was a case of a deed which might have been admitted to probate, and therefore no authority. We, therefore, claim the entire personal estate for the next of kin.

W. D. Rawlins, for Mr. Beaumont.

W. Pearson having referred to the additional case of Attorney-General v. Dillon (6),

The VICE-CHANCELLOR said that he should take time to consider his judgment.

May 3. HALL, V.C.:–

The fourth codicil of the testatrix gives to James Beaumont all her personalty, and I am of opinion that those words are not cut down by the words “such as cash, furniture, &c.,” to some particular portions of the testatrix’s personal estate. The words “all my personalty” are too clear to ba cut down by such, to say the least, doubtful words as “such as cash, furniture, &c.” The construction which I put upon the gift is, if authority be wanting, warranted by the case of King v. George (7).

I hold that the words of the fourth codicil express that James Beaumont was to hold all the personalty upon trust to apply it as she had requested him to do; that is, I hold that according to the words of the codicil Beaumont was to be a trustee of the whole, the case not being similar in that respect to Irvine v. Sullivan (8)

(1) 1 Russ. 266.

(2) 2 Vern. 50, 106.

(3) Vol. i. p. 1.

(4) Page 33.

(5) 1 P. Wms. 529.

(6) 13 Ir. Ch. Rep. 127.

(7) 5 Ch. D. 627.

(8) Law Rep. 8 Eq. 673. [*602]

and the cases followed in the judgment in that case, but similar to Briggs v. Penny (1).

The testatrix having, as I hold, by the codicil expressly given all her personalty to Beaumont in effect upon trust, and left the trusts undisclosed in the codicil, the next of kin say it follows that he took upon trust for them. They say that the cases in which the Court has, as it has in many cases, supported trusts where the testamentary instrument does not refer in any way to the devisee or legatee taking upon trust, are inapplicable; there arising (as they say) immediately upon the testatrix’s death, when trusteeship appears on the instrument, a trust for the next of kin, theWills Act in such a case excluding effect being given to a trust to be ascertained by parol evidence. The present case arises upon a codicil, but I think it will be convenient at present to treat it as if it were a will. As against the next of kin it is contended that the trusts, although not actually shewn in the will, will, if sufficiently proved, have effect given to them; i.e., the alleged difference between the case of a trust mentioned on the face of the will and a trust the existence of which is undisclosed is denied. I proceed to examine the authorities.

In Crook v. Brooking (A.D. 1688) (2) the testator gave £1500 to Simon and Joseph Snow to be by them disposed of on such secret trust as he had privately revealed to Simon, and directed that the execution of the trust should be left wholly to them, so that in case they should break their trust, yet that they should not be questioned for the same either in Law or Equity. Simon wrote a letter to Joseph stating what the trusts were. On the hearing it was agreed that the trust was “well and sufficiently declared by the letter.” A question arose on the construction of the letter. By the decree of the Lord Chancellor Jeffreys, that question was determined: the direction containing a declaration that the trust was well declared by the letter; whether or not any trust was well declared was not argued, but the declaration I have mentioned was made. Upon appeal, the Lords Commissioners (A.D. 1689)(3)also gave effect to the trust, but varied the decree of the Lord Chancellor as to the construction of the letter.

(1) 3 Mac. & G. 546.

(2) 2 Vern. 50.

(3) 2 Vern. 108. [*603]

In Pring v. Pring (A.D. 1689) (1) the testator appointed A., B., and C., executors in trust, and it was held that the executors being only in trust, and it not being said for whom, the person might be averred, and two of the executors having by their answer confessed the trust, that it was the intent of the testator, and that he declared it a trust for the plaintiff (the wife), the Court decreed a trust for the plaintiff.

In Smith v. Attersoll (A.D. 1826) (2) the Master of the Rolls, Lord Gifford, before whom the case was twice argued, gave effect to an instrument signed by the testator’s two sons contemporaneously with his will, declaring trusts of a legacy given to the sons in trust for certain purposes – which he declared had been fully explained to them. It was contended before me that the Master of the Rolls cited in his judgment the case of Earl of Inchiquin v. French, referring to it as reported in Cox (3), and that the report of that case in Cox is incorrect, as appears from the report of the same case in Ambler (4), according to which report the question as to whether there was a trust was not decided by reason of the absence of the alleged cestui que trust. It would seem that this is so although the decree as set out in Cox declared the trust. The case of Smith v. Attersoll has been referred to in subsequent cases.

In Podmore v. Gunning (5) the testator gave his estate to his wife absolutely, “having a perfect confidence she will act up to those views which I have communicated to her on the ultimate disposal of my property after her decease.” The plaintiffs claimed, alleging that they were the persons whom the testator had intended to be beneficiaries. The case was elaborately argued. The Vice-Chancellor held that if the plaintiff’s allegation had been proved the Court would have given effect to it as a trust, but he held it not to be proved.

In Johnson v. Ball (6) a testator gave a policy of assurance to two trustees “to hold” the same “upon the uses appointed by letter signed by them and myself.” No such letter existed, but the testator had previously asked the trustees, who had consented

(1) 2 Vern. 99.

(2) 1 Russ. 266.

(3) Vol. i. p. 1.

(4) Page 33.

(5) 7 Sim. 644.

(6) 5 De G. & Sm. 85. [*604]

to accept the bequest for the benefit of persons and objects then named by the testator. Long after the date of his will the testator wrote a letter, addressed to his executors, stating that he had, by his will, left the policy to the two trustees, to be delivered up to them for the purposes they had agreed to carry out. At the same time the testator signed an unattested memorandum declaring the trusts on which the trustees were to hold the policy given to them by his will. The trustees retained the letter and the memorandum until after the testator’s death. Upon a claim by one of the persons beneficially interested under the memorandum against the executors and trustees, it was held that the testator could not prospectively create for himself a power to dispose of property by an instrument not duly executed as a will, and that the letter would not operate as a gift inter vivos; and that the trustees held the proceeds of the policy in trust for the residuary legatees under the testator’s will. The decision in that case seems to me not open to question. The instrument referred to was one signed, or to be signed, by the testator and by the trustees, there not being any such instrument existing before the date of the will forthcoming, and no such instrument being afterwards signed. Parol communications with the trustees before the date of the will were excluded by the testator requiring an instrument signed as he mentioned, and the testator’s signing an instrument himself after the will was ah attempt to regulate the trusts by an instrument not duly attested as required by the statute. The Vice-Chancellor said in the course of his judgment(1), “Cases in which there is no trust appearing on the will, and where the Court establishes a trust on the confession of the legatee, have no application to the present; nor, as it appears to me, have those cases cited in the argument, in which the will refers to a trust created by the testator by communication with the legatee antecedently to or contemporaneously with the will."

The Vice-Chancellor here distinguishes the case before him from, and does not call in question, but seems to recognise, the cases cited in the argument, in which a trust created by the testator by communication with the legatee had been established. Among the cases cited to the Vice-Chancellor were Pring v. Pring (2),

(1) 5 De G. & Sm. 91.

(2) 2 Vern. 99. [*605]

Crook v. Brooking (1), and Smith v. Attersoll (2). Subsequently to Johnson v. Ball (3), Vice-Chancellor Wood held, in Moss v. Cooper (4), that a trust by communication with the legatee might be created by such a communication subsequently to the date of the will.

In Irvine v. Sullivan (5) a testator, after a devise of all his real and personal estate to A., B., and C. (whom he afterwards appointed as his executors) upon trust to sell, directing that the “moneys arising from the said sale, and otherwise forming or representing my estate and effects after payment of my just debts and funeral and testamentary expenses and the expenses of carrying out the trusts of this my will, shall be paid by my said trustees, and I hereby give and bequeath the same to D. absolutely, trusting that she will carry out my wishes with regard to the same, with which she is fully acquainted.” The testator had, shortly before the date of his will, expressed to D., to whom he had been for some time engaged to be married, his wish that she would, out of the property which he should leave her, make gifts to certain persons. D. wrote down, after leaving the testator, his wishes, but the paper was not submitted to or signed by him. It was held by Vice-Chancellor James that D. took the residue of the testator’s estate beneficially, subject only to the performance of the testator’s wishes communicated to her, which were treated as legacies carrying interest at 4 per cent. from the expiration of one year from testator’s death.

The decision was that the words used did not create a trust, and there was not any evidence of trust except that the plaintiff in her bill admitted intended gifts of legacies amounting to £9000. Evidence that the testator intended a beneficial gift to the plaintiff was rejected. No opinion was expressed as to how the case would have stood as regards the estate other than the legacies had there been evidence of intended trust of it by communications with the general devisee, but effect was given to the intended beneficial disposition as far as it was admitted by the Plaintiff. The question in the present case did not arise. The Vice-Chancellor in his judgment said(6): “If the words here amounted on a fair construction to what was said in Briggs v. Penny, if it was a gift to

(1) 2 Vern. 50.

(2) 1 Russ. 266. (3) 5 De G. & Sm. 85.

(4) 1 J. & H. 352, 367.

(5) Law Rep. 8 Eq. 673.

(6) Ibid. 678. [*606]

Mrs. Irvine ‘ upon trust to carry out my wishes with regard to the same, with which she is fully acquainted,’ I should hold it would be utterly impossible that she could take anything beneficially, and then the wishes not being manifested in such a way as that this Court can take notice of them, the trust would have failed for the benefit of the heir-at-law.” As I read that passage the Vice-Chancellor thought that there might have been evidence which would have supported a trust. But in fact there was not any such evidence.

In Riordan v. Banon (1) a will directed a pecuniary legacy to be disposed of by the legatee in a manner of which he alone should be cognizant, and as contained in a memorandum which the testator should leave with him. It was proved by parol evidence that before the execution of the will the testator had verbally informed the legatee that he intended to bequeath the legacy in trust for a person whom he then named, and that the legatee had consented to accept the legacy for this purpose, and had promised the testator to carry out his wishes respecting it. The residuary legatees of the testator having claimed the benefit of the legacy, it was held by the Vice-Chancellor that a valid trust for the person named by the testator had attached to the bequest. The Vice-Chancellor held that parol evidence was admissible to prove that a legacy had been bequeathed upon a trust entirely or partially undisclosed upon the face of the will when at or before the execution of the will the trust had been communicated by the testator to the legatee, and had been accepted by the latter. The Vice-Chancellor referred to the cases I have mentioned, and he said, “The result of the cases appears to me to be that a testator cannot by his will reserve to himself the right of disposing subsequently of property by an instrument not executed as required by the statute, or by parol; but that when at the time of making his will, he has formed the intention that a legacy thereby given shall be disposed of by the legatee in a particular manner, not thereby disclosed, but communicated to the legatee and assented to by him at or before the making of the will, or probably, according to Moss v. Cooper (2), subsequently to the making of it, the Court will allow such trust to be proved by

(1) 10 Ir. Eq. Rep. 649.

(2) 1 J. & H. 367. [*607]

admission of the legatee, or other parol evidence, and will, if it be legal, give effect to it. The same principle which led this Court, whether wisely or not, to hold that the Statute of Frauds and theStatute of Wills were not to be used as instruments of fraud, appears to me to apply to cases where the will shews some trust was intended, as well as to those where this does not appear upon it The testator, at least when his purpose is communicated to and accepted by the proposed legatee, makes the disposition to him on the faith of his carrying out his promise, and it would be a fraud in him to refuse to perform that promise. No doubt the fraud would be of a different kind if he could by means of it retain the benefit of the legacy for himself; but it appears that it would also be a fraud though the result would be to defeat the expressed intention for the benefit of the heir, next of kin, or residuary donees.”

In the argument before me Attorney-General v. Dillon (1) was referred to. In that case, however, it was held in effect that there was not a trust created by the codicil. Trusts were, however, established by parol evidence. Some observations of the Lord Chancellor seem to refer to the question in the present case, but he does not appear to me to have given any definite opinion upon that question; only one of the cases above mentioned was cited, and no one of them was mentioned in either of the judgments. The Lord Justice of Appeal did not in his judgment refer to the question in the present case.

In the argument before me it was said that the jurisdiction of the Court was altogether founded on personal fraud, the Court only depriving the legatee of what he would otherwise retain beneficially, and in particular the judgment of Lord Westbury in McCormick v. Grogan (2) was referred to. That was a case in which there was not any reference to trust on the face of the will, and it was considered that the parol evidence relied on as creating a trust binding on the devisee and legatee did not make out a trust. The question therefore did not arise, although, no doubt, there are observations basing the doctrine on the ground of fraud, from which counsel have contended before me that where a trust appears on the will and the legatee can in no case take for himself, there can be no fraud, and therefore the doctrine does not

(1) 13 Ir. Ch. Rep. 127, 133.

(2) Law Rep. 4 H. L. 82. [*608]

apply. Not one of the cases which I have referred to was mentioned either in the arguments or judgments in that case. I cannot treat either or both of those two cases of the Attorney-General v. Dillon (1) and McCormick v. Grogan (2) as establishing, contrary to the other authorities I have mentioned, that where trust is referred to on the face of the will, the Court will not give effect to the intended trust, although there is conclusive evidence upon which the Court would have given effect to the intended trust had the will been altogether silent as to trust.

In Moss v. Cooper (3) Vice-Chancellor Wood said: “If on the faith of a promise by A. a gift is made in favour of A. and B., the promise is fastened on to the gift to both, for B. cannot profit by A.’s fraud.” B. in that case takes, but is not allowed to hold although personally he has not been party to any fraud. In other words, relief is given against him, although not on the ground of his personal fraud; and Russell v. Jackson (4) and Carter v. Green (5) are also deserving of consideration on this point. In the present case the promise was the inducement to and created the gift. Can the Court allow a trust to arise for the next of kin under a gift obtained under such circumstances as existed in this case, the creation of the trust and the intended gift being contemporaneous, and thus there not being any interval allowing of any resulting trust for the next of kin? The declaration of trust was incorporated with the intended creation of the trust. This question of personal fraud was urged in some of the cases I have above mentioned, which are authorities for sustaining the validity of the trusts. In Riordan v. Banon (6) the Vice-Chancellor specifically examined and dealt with the question of personal fraud.

My conclusion on this part of the case is that the Court should and will execute the trusts intended to be reposed in the trustee Beaumont by the testatrix, if the trusts be established in evidence. I am of opinion that they are. I think that Mr. Beaumont’ s evidence establishes that the testatrix’s property became vested in him on trust to carry out the dispositions in the will, and first, second, and third codicils, with the alterations communicated to Beaumont by the testatrix, such alterations being the new dispositions

(1) 13 Ir. Ch. Rep. 127.

(2) Law Rep. 4 H. L. 82.

(3) 1 J. & H. 367.

(4) 10 Hare, 204.

(5) 3 K. & J. 591.

(6) 10 Ir. Eq. Rep. 649. a609]

Mr. Beaumont specifies in his affidavit. I think that, as all the testatrix’s property was given to him, and the evidence shews the testatrix did not intend to alter her previous dispositions, except to give effect to her wishes as stated to Mr. Beaumont, it is made out that he was a trustee to give effect to the testatrix’s dispositions.

Assuming that I am wrong in holding that the Court can and will give effect to the intended trusts, the effect of the failing of the trusts intended to be reposed in Beaumont is, I think, that the original dispositions in the will and first, second, and third codicils remain in operation. There is not in the fourth codicil any express revocation of the will and first, second, and third codicils; and the fourth codicil being executed in order to create new interests, which fail, the original instruments of disposition remain unaffected, on the principle of Onions v. Tyrer

(1), and other cases(2). The case of Alexander v. Kirkpatrick (3) was referred to on this head. The case itself is not like the present, but there are passages in the judgment supporting the opinion I have expressed. As regards the intended gift of £10 for masses, it seems to be void on the authority of West v. Shuttleworth (4); Heath v. Chapman (5); In re Michel’s Trusts (6); In re Blundell’s Trusts (7). Miss Mary Head, one of the attesting witnesses to the fourth codicil, being intended to be a beneficiary under the parol trust declared of the furniture, I think that the trust far her and her sister fails as to her beneficial interest, as it would have done had the trust been declared in the codicil, and that she and her sister being joint tenants of the beneficial interests of the furniture, the whole belongs to the sister.

There should be declarations in the judgment to give effect to what I have stated above.

(1) 1 P. Wms. 343; Prec. Ch. 459.

(2) Jarman on Wills, vol. i. pp. 127, 137.

(3) Law Rep. 2 H. L., Sc. 397.

(4) 2 My. & K. 684.

(5) 2 Drew. 417.

(6) 28 Beav. 39.

(7) 30 Beav. 360.