lity of parol

these cases.

admissibi- Mr. J. Buller, sitting for the Chancellor, in the case of evidence in Nourse v. Finch", discovered a sentiment very strong against admitting parol evidence at all in such cases, avowing the short period of his authority in that court as his reason for declining an opposition to the series of authorities in the same court, the other way. It appeared also to be the clear opinion of the Judge, that even under these authorities, at most, only that part of the evidence could be admitted, which referred to the time of the making of the will: and he probably would have rejected the evidence offered, on that ground, if, under his third view of the case, it had not been clear against the executrix. The force of Mr. J. Buller's objections have been acknowledged by great authorities, since the decision above-mentioned.

Of the ge

neral ad

of parol

The decree of the Judge was afterwards confirmed missibility by Lord Chancellor Loughborough, on the insuffievidence to ciency of the evidence offered. But since the case of presump- Clennel v. Lewthwaite in which the reasoning of tionagainst the execu- the Judge in Nourse v. Finch, was much under re

repel the

tor.

view and ably observed upon, it seems to have been regarded as settled, that parol evidence of all kinds is admissible to rebut the resulting equity for the next of kin arising from any circumstances in a will by implication excluding the executor from the benefit of his legal title and it seems to be of no importance, as to the mere question of admissibility, whether the mat

decided above thirteen years ago, it was observed by the Master of the Rolls, that the cases on the question were so numerous, that it was a disgrace to the court.

ters in proof were contemporary with, or subsequent to, the will, although there is admitted to be a great difference in the weight of this testimony, as it refers to a contemporary or subsequent period.

All the cases were then set forth in the order of time in which they were decided, and profoundly commented upon by the late Lord Alvanley, who yielded to the pressure of authorities for admitting the extrinsic evidence in these cases, except where the expressions of the will carried so prevailing an import against the executor, as to amount to a declaration of the trust for the next of kin ; which, according to the effect given to it in Rachfield v. Careless, will shut out all access to argument from external circumstances. Finally, in Trimmer v. Bayne, the doctrine received its full confirmation from the present Chancellor, who declared the sum and sense of all the authorities to be, that all parol declarations, whether made before, or at, or after the making of the will, were admissible to rebut presumptions, though they are not all alike weighty and efficacious. Whether they consist of conversations with people who have nothing to do with the question, of declarations provoked by impertinent enquiries, or in whatever form they arise, they are all evidence, though intitled to very different credit and weight, according to times and circumstances; as will be further explained in the succeeding Section.

rary decla

most to be

to.

SECTION VII.

Testator's Declarations, how far evidence.

IN the case of Druce v. Dennison, Lord Eldon observed, that formerly the courts were very jealous of admitting evidence of declarations by the testator, except such as were made by him about the time of Contempo- making the will; and towards the conclusion of his rations are decree in that case, he remarked, that in receiving attended parol evidence, it gave him great satisfaction to find, that it was contemporary with the will. So in Nourse v. Finch, Buller J. expressed a stronger opinion against admitting declarations which did not take place at the time of making the will. And the further we go back in tracing this disposition to reject parol evidence of declarations made before or after the will, the more strongly we find it expressed. Thus, Lord Hardwicke observed, that the time of making the declarations was very material, and no regard ought to be paid to declarations not made at the time of making the will. Thus, again, in the case of the Duke of Rutland v. the Duchess of Rutland, it was said by Lord Macclesfield, that allowing parol evidence was exceedingly dangerous, and not to be done in the case of discourses made at a different time from that of making the will. And, again, by Tracy J. it was said, that no regard ought to be paid to expressions before or after the making

of the will, which possibly might be used by the testator, on purpose to disguise what he was doing, or to keep the family quiet, or for other secret motives or inducements.

The positions of the present Chancellor in Trimmer v. Bayne are to be read with discrimination; what he there observes as to the general admissibility of parol declarations, is applicable, and was applied only, to the question, whether an executor being also a legatee in a will is a trustee for the next of kin, or beneficially entitled to the residue undisposed of; which is a question of rebutting an equitable presumption; as has been explained in another place. His Lordship then lays down the affirmative with respect to the general admissibility of parol declarations to repel this presumption of equity in favour of the next of kin, with the following important distinctions, viz. that in the degrees of such evidence, contemporary declarations are clearly of the greatest weight-next to such contemporary declarations, Declarathose which are made after the making of the will after are are the most efficacious, for, a declaration after the regarded will as to what the testator had done, is entitled to more credit than one before the will as to what intended to do, for that intention may very well be will. altered; but he knows what he has done, and is much more likely to speak correctly as to that, than as to what he proposes to do.

he

tions made

more to be

than such

as were

made be

fore the

different

But with these, and perhaps other distinctions, But with such parol declarations by a testator are all alike degrees of admissible—they are to be decided upon by their these deweight-but by their nature they are all admissi- are admis

17 Vez. Jun. 517.

weight all

clarations

sible.

ble. The caution, however, with which all declarations by a testator should be admitted, is well pointed out in the same judgment, in Trimmer v. Bayne, viz. that these declarations may be made with a view to delude, as being thought a necessary artifice to keep the peace of families: and in the same case it was one of the grounds of the judgment, that the declarations there stated to have been made, and offered as evidence, had an evident purpose of deceiving the person making the inquiry.

Vide Trimmer. Bayne, 7 Vez. Jun. 519.