their executors and administrators, or the executors or administrators of the survivors of them, shall and may receive and take the rents, issues, and profits of the above-mentioned estates, and pay the same to my said son, James Jones, for and during the term of his natural life; and, from and immediately after the decease of my said son, James Jones, then I give and devise the same premises, and every part thereof, to the heirs of the body of my said son, James Jones, lawfully to be begotten; and, in default of such issue, then I give and devise the same premises, and every part thereof, to my daughter, Catherine Jones, and the heirs of her body lawfully begotten; and, in default of such heirs, then I give and devise the same" to another son, John Jones, in fee.

The devisor died in 1826; and afterwards, in the same year, Archdeacon Davies, the trustee, executed a deed of renunciation. A suit in Chancery was afterwards instituted to change trustees and the estates devised to the trustees were duly conveyed, in 1833, to the lessors of the plaintiff, by Walter Lewis. The learned Judge, being of opinion that the will gave a legal estate to the trustees, directed a verdict for the plaintiff, reserving leave to the defendant to move for a nonsuit. In Michaelmas Term, 1835, Evans obtained a rule accordingly.

Chilton and E. V. Williams now showed cause (1) :

It is clear that some legal estate is given to the trustees; and that is sufficient to entitle the plaintiff to a verdict. The rule is that, where land is given to a trustee, in trust to permit the cestui que trust to take the rents, that is a legal use executed in the cestui que trust; but that, if the land be given to the trustee, in trust to receive the rents and pay them over to the cestui que trust, the trustee has the legal estate, because otherwise he cannot perform the trust. This distinction appears from Doe d. Leicester v. Biggs (2). There the will directed the trustee

to pay to, or permit the cestui que trust to take, the rents and *it was held that the legal estate passed to the cestui que trust,

(1) Before Lord Denman, Ch. J., and Williams, J. Littledale and Coleridge, JJ. were absent on account of

indisposition.

(2) 11 R. R. 533 (2 Taunt. 109).

DOE d. GRATREX

v.

HOMFRAY.

[ *207 ]

[ *208 ]

because the word "permit" came after the word "pay," and must therefore, in a will, prevail. If the order had been inverted, the trustee, as appears by the judgment, would have had the legal estate. The rule was taken for granted in Garth v. Baldwin (1). The same principle was admitted in Robinson v. Grey (2), where Jones v. Lord Say and Sele (3) was cited. The cases are collected in note (17) to Jeffreson v. Morton (4). If the intention be collected from other parts of the devise, this construction is strengthened; for, in the commencement, a different property is given to the first cestui que trust.

Evans, contrà :

The distinction is as suggested on the other side; but it does not apply to the present case, because here is no devise to the trustees at all. And, further, there is no estate in the trustees to preserve contingent remainders. Immediately on the death of James Jones, the estate goes over to the heirs of his body; so that no purpose of the will is effected by giving to the trustees a legal estate. The defendant does not deny that the trustees must take such an estate as will enable them to effect the purposes of the will.

Cur, ade, rult.

LORD DENMAN, Ch. J., on a subsequent day of this Term (January 23rd), delivered the judgment of the COURT:

It is enough to say that, on the argument of this case before my brother WILLIAMS and myself, we thought that it fell within the numerous class where it has been *held that a devise to trustees to pay over the rents vests the estate in such trustees.

That the devise is not directly to the trustees, but "to the use and intent that they may receive" &c., appears to us to make no difference; nor the absence of a devise to trustees to preserve contingent remainders.

It was observed that the will required nothing to be done by the trustees; and it is true that nothing is to be done beyond

(1) 2 Ves. Sen. 646.

(2) 9 East, 1.

(3) 8 Vin. Abr. 262, Devise (C. b),

pl. 19.

(4) 2 Wms. Saund. 11 b.

paying: but this has been held sufficient, and must be taken to be the present law; Doe d. Leicester v. Biggs (1). My brother PATTESON was of this opinion on the trial, and, on consideration, retains it. The rule for a nonsuit must, therefore, be discharged. Rule discharged.

DOE D. REED v. ALICE HARRIS (2).

(6 Adol. & Ellis, 209–218; S. C. 1 N. & P. 405; 6 L. J. (N. S.) K. B. 84.)

Under the Statute of Frauds, 29 Car. II. c. 3, s. 6 (see now the Wills Act, 1837, 1 Vict. c. 26, sect. 20), a will of freehold is not legally revoked, if the testator, intending to destroy it, throws it on the fire, and another person snatches it off, a corner of the envelope only being burnt; and such person afterwards, being urged by the testator to give up the will, promises to burn it, and pretends to have done so.

The cancellation of a will, under s. 6 of the Statute of Frauds, may be proved in any manner consistent with the general law of evidence, the statute not introducing any new rule of proof. The defacing of it, therefore, may be shown by proving the declaration of any person whose assertion would be evidence against the party setting up the will; and it is not necessary that the will, if produced, should bear visible marks of having been defaced.

EJECTMENT for messuages and other premises. On the trial before Patteson, J., at the Glamorganshire Summer Assizes, 1835, it appeared that the lessor of the plaintiff claimed as son and heir-at-law, the defendant as devisee, of John Reed. The will was duly executed in August, 1832. The testator died December 31st, 1834. *He was an old and infirm man: the defendant was his niece, and lived with him as his housekeeper. She exercised great influence over him; but it appeared that they had violent quarrels, and that he sometimes spoke of her to other persons in very abusive terms, and said that he feared. danger to his life from her. A witness named Esther Treharne, who had been the testator's servant, stated that, about a month before he died, she was shaking up the cushion of his easy-chair, and observed, under the cushion, a folded paper. It was brown or cartridge paper, and the corner of it was burnt. Shortly after, on the same day, Alice Harris went out; and, while she

(1) 11 R. R. 533 (2 Taunt. 109). (2) See on parallel question, In re Harris, Cheese v. Lovejoy (1877) 2

P. D. 251, 253, 46 L. J. P. D & A.
66.-R. C.

DOE d. GREATREX

v.

HOMFRAY.

1837. Jan. 20.

[209]

[ *210 ]

DOE d.
REED

ተ.

HARRIS.

[ *211 ]

was away, the testator inquired for the paper: the witness told him where she had seen it, upon which he exclaimed that Alice had gone away with the will; and, on his then removing the cushion, the will appeared no longer. He then told the witness that he had sent Alice Harris to fetch the will to him, that he had looked into it, and that, when he had seen it, he had thrown it on the fire; and that Alice had "scramped" it off the fire. This appeared to have taken place the evening before. After the above conversation, Alice Harris returned; and, when she and the testator retired at night (both sleeping in the same room), the witness heard a quarrel, and blows; and, upon her going into the room, the testator said that Alice Harris would not give him his will. Alice went down stairs with the witness, and the latter urged her to give up the will; but she said she would not; that she had given it him last night, and he threw it on the fire; and that she would rather have the pleasure of burning it herself, and would do so the next morning. After this conversation she returned to the testator, on the witness's persuasion, begged his pardon, and promised to burn the will the following morning. The *next morning, the witness, going into the kitchen where Alice and the testator were, heard Alice say, "There, every thing is finished;" and the testator then told. the witness that Alice had thrown the will upon the fire. The witness doubting it, he said, "She threw something with writing upon it on the fire; but I did not have it in my hand to look at t." The witness answered, "I do not think she has thrown it;" and the testator said, "I do not care; I will go to Lantwit, if I am alive and well, and make another will;" adding that Alice Harris should not have his property, and that he had a son nearer to him than her. He also said (as he did on many other occasions) that the will was one made by Alice and Mr. R. (the attorney who prepared it), and that R. was a thief, and wanted, with Alice, to get every thing he had. Alice Harris, in an affidavit exhibited in the Prerogative Court, stated that, on January 1st, 1835, she found the will in a trunk used by the testator for holding his deeds and papers, and kept in his dressing-room. The will produced on the trial had no mark of fire. It did not appear that any envelope had been found upon

it. The plaintiff's counsel contended, first, that the testator had been prevailed upon to execute the will by importunities of such a nature as to deprive him of his free agency; and, secondly, that, assuming the will to have been properly executed, the evidence showed a cancellation within the Statute of Frauds, 29 Car. II. c. 3, s. 6. The learned Judge stated to the jury, on the latter point, that, if they believed the evidence of Esther Treharne, and were satisfied that the testator threw the will on the fire intending to burn it, that Alice Harris took it off against his will, that he afterwards insisted on its being thrown on the fire again, with intent that it should be burnt, and *that she then promised to burn it, there was a sufficient cancellation within the statute. The jury found for the plaintiff, not stating the grounds of their verdict. In the ensuing Term a rule nisi was obtained for a new trial, on account of mis-direction on the two points above stated. It was also objected that the evidence of cancellation was not of a proper kind; the fact being proved only by declarations, and not by the testimony of eyewitnesses, or by marks of cancellation on the will itself; and Willis v. Newham (1) was referred to as an analogous case.

Chilton and James now showed cause:

(The COURT desired them to direct their attention to the point of cancellation, since it could not be assumed that the jury had left that part of the case out of consideration in giving their verdict; and, if the verdict was not sustainable upon that, there must be a new trial.)

The revocation of this will was complete. The facts proved are as conclusive as those in Bibb d. Mole v. Thomas (2), where the will was held to be effectually cancelled. No reference appears to have been made there to the mode of proof; nor does the statute, among the alterations which it introduces, make any in this respect. It is true that, in Willis v. Newham (1), the Court of Exchequer held that a verbal acknowledgment of having paid interest was not an answer to the Statute of Limitations within Lord Tenterden's Act, 9 Geo. IV. c. 14. But the judgment (1) 3 Y. & J. 518. [Overruled, L. J. Ex. 238.] Cleave v. Jones (1851) 6 Ex. 573, 20 (2) 2 W. Bl. 1043.

DOE d.
REED

v.

HARRIS.

[ *212 ]