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Kidder (a), had only expressed the inclination of his opinion, saying, that the relation "would, perhaps, prevail also in favour of a wife," had, apparently, no doubt at all in Wilde v. Wilde (b), where his Lordship said, that if a husband purchased stock in the joint names of himself and his wife, it was primâ facie a gift to her in the event of her surviving, unless evidence of contemporaneous acts, shewing a contrary intention, were produced. Lord Hardwicke, too, in Stileman v. Ashdown (c), though he expresses an opinion that the doctrine in favour of advancement of children had gone quite far enough, refers to the case of Christ's Hospital v. Budgin (d), for another purpose, indeed, but with the full view of the favour therein shewn to the wife as against volunteers or the heir-at-law, and without any disapproval of Lord Harcourt's decision, a part of which he makes the groundwork of his own. It is almost unnecessary to add, that where, as is the case here with respect to the bulk of the stock, the whole standing in the joint names at the date of the will, the transfer into the joint names is a transfer of sums previously standing in the owner's own name, the presumption of intention to give is considerably stronger. Indeed, in George v. Howard and the Bank of England (e), Chief Baron Richards expressed an opinion, that such a circumstance would be sufficient in the case of a stranger.

It was further contended, that the circumstance of the testator's power over this chose in action continuing after the transfer and up to his death differs this from the

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But there is a great The testator's power

case of advancement to a child.
fallacy here, as it seems to me.
may have continued, but in what capacity? As husband,
and in the exercise of his marital right. Then, suppose
it to be admitted that he might have reduced the stock
(a chose in action) into possession by having had it
re-transferred into his own name during his lifetime,
still the argument is not at all advanced, for it is not
pretended that any thing was done after the first
transfer, the stock standing in the joint names at the
date of the will, and at the death of the testator. The
husband makes the will, which is said, indeed, not to
relate to the stock. But suppose, with a view to this
part of the argument, we were to admit that it did; the
wife's right would survive nevertheless. I have no
doubt whatever, therefore, that the stock survived to the
wife; and then the second question arises, with respect
to her election.

There is nothing more undoubted in the law than that to make a case of election the intention must appear certainly and clearly, both as to the property assumed to be disposed of, and as to the implied condition to be fulfilled. A person is not, without strong indications of such an intent, to be understood as dealing with what does not belong to him. As for his supposing himself to have rights which he had not, unless that appears plainly upon the face of the will, it would be most dangerous to be guided by any conjecture that may be raised to this effect, or to let in extrinsic evidence in proof of it. "If I was to receive evidence of the testator's fancy, it would introduce a very desperate rule of property in this Court." These were the words of Lord Thurlow in a case (a) where, nevertheless,

(a) Stratton v. Best, 1 Ves. jun. 285.

he

he stated that he had no doubt of the answer which the testator would have given, if the question had been put to him as to his intention. I do not, however, feel that I am here called upon to determine whether or not evidence dehors the will is admissible in explanation of the testator's meaning, for the purpose of raising a case of election. There is some discrepancy among the cases, one or two of them not being reconcilable with the others, or, I may add, with the established principles of the law. But referring to those others, and to the observations of Lord Kenyon in Andrews v. Emmot (a), and of Lord Eldon in Druce v. Denison (b), Pole v. Lord Somers (c) in this Court, and in Doe v. Chichester (d)` in the House of Lords, I entertain the strongest opinion that the rules of law are against its admissibility. Its admission here, however, would not decide the question.

Has the Court any right to say, upon this will, that the testator has given the stock, which, it has been proved, was not his own to dispose of? The general gift to trustees, after specifying the leaseholds, is of all the interest" of all my funded property or estate, of whatsoever kind, or wheresoever the same or any part thereof may be found." This of itself is sufficiently general, and extends to every thing else as well as to funded property. But that this generality was clearly in his intention is equally plain from the whole scope and character of the instrument, as from the particular language of the gift to the trustees. The will begins by bequeathing the several leasehold houses therein described, and then come the general words about funded and other property, with which the bequest concludes. The stock legacies are all general; "the

(a) 2 Bro. C. C. 297. (b) 6 Ves, 385.

(c) 6 Ves. 309.
(d) 4 Dow. 65.

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sum of so much," and "such a stock." Thus the one in question is, "I give the sum of 500l. 4 per cents. to my great-nephew;" and if he die single, or without issue, the said sum of 500l. is to go over to his brothers and sister.

There is nothing here to make it clear that the testator was dealing with the stock already purchased, or which should thereafter be purchased. On the contrary, the legacy is plainly, by all the rules on the subject, a general one. But it is contended, that in deciding upon the character of the ulterior legacies, the Court must refer to the preceding general gift to the trustees, and to the life interest given to the widow, after whose decease those legacies are to take effect. This only brings it back to a clause of a nature as general,-" all my funded and other property." There is nothing to justify the Court in holding that the testator thereby intended to give what was not his own; namely, the stock in which his wife had the interest by survivorship, not to be defeated by his will. Very possibly the Court may surmise, as Lord Eldon did in Judd v. Pratt (a), that, had he been asked the question, he would have said that the stock was his, and that he intended to deal with it as such. But he has not made that intention clear where it ought to be shewn,—in his will.

The bearing upon this question of the cases relative to the execution of powers appears to be all one way, if regard be had to the well-established distinction between personal and real estate. Where a testator has no real estate save the one comprised in the power, a general devise will operate as an execution, on the ground that there is no other way of satisfying the words

(a) 13 Ves. 168.

words of the devise except by supposing the devisor to have had the power in his contemplation; and upon that principle Standen v. Standen (a) and other cases were decided. But a will of personal estate looks forward to the testator's death, and acts upon what he may then have as well as on what he has at the date of the will; and, therefore, general words, though large enough to cover the personalty subject to the power, are held not to be an execution of the power; for there is no necessity, as in the case of realty, to suppose that the testator intended to execute of the power merely because he had no other personalty at the time: he must be taken to have looked forward, and to have bequeathed all that his will can affect. These points are so well established, that one is only apprehensive of seeming to consider them as unsettled by referring to the cases, all of which are perfectly clear and consistent, from Andrews v. Emmot (b) downwards, to Jones v. Tucker (c), in which Sir William Grant admitted that there could be no reasonable doubt of the intention to execute the power, but yet held himself bound by the rules of law, and precluded from looking out of the will to the state of the personal property at its date.

In this instance the testator may have intended to dispose of personal funds to be afterwards acquired; and, therefore, the Court is not driven to assume that he was speaking of such stock as stood in the joint names of himself and his wife at the time when the will was made.

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