the time when the will was executed. But that is perfectly immaterial. Whether he was so or not is not within the province of this Court to determine, but will remain to be ascertained by the issue devisavit vel non, which must of necessity be directed. That has been the course which, ever since the case of Kerrich v. Bransby (7 Bro. P. C., 437, Toml. ed. See also Bates v. Graves, 2 Ves., jun., 287; Webb v. Claverden, 2 Atk., 424), in the House of Lords, this Court has uniformly followed in dealing with questions respecting the legality of wills disposing of real estate. Nor does a Court of Equity in any case take upon itself to cancel rights created by a will executed with all the solemnities required by the statute, without first giving to the parties claiming under it an opportunity of establishing its validity before a jury.

The sentence of the Ecclesiastical Court not only is not conclusive, but has really no application. That Court has decided that the will is ineffectual as a testamentary disposition of personalty, but it has no jurisdiction to pronounce upon its validity as to real estate; and it is by [106] no means impossible that in this, as in other instances, (1) a jury, which is the only competent tribunal, may, when the evidence is thoroughly sifted on a virá roce cross-examination, come to a conclusion directly contrary to that of a Judge, who founds his opinion upon written depositions. In the meantime, this will, which is admitted to have been duly executed according to the statute, gives the Plaintiffs a prima facie title; and while the question of right is depending they are entitled to have the property secured to abide the result of the trial.

The Solicitor-General [Sugden] and Mr. Garratt, for the Defendants Mr. and Mrs. Dew. Mr. and Mrs. Dew filed a bill some time ago in this Court against the Plaintiffs in the present suit, to com-[107]-pel them to account for the property which they had improperly possessed under the instrument now for the second time attempted to be set up; and by an order pronounced in that cause, the Clarks were directed to make a transfer of certain sums of stock standing in their names in the bank. They have refused to obey the order, and one of them has since gone abroad. The other, the party moving, is a prisoner in the Fleet under an attachment for contempt. Under these circumstances, the Plaintiff has no right to be heard upon the present motion. The contempt, it will be said, was not committed in this suit; but it was in a suit between the same parties, having reference to the same property, embracing_precisely the same questions, and all depending on one and the same instrument. Here two parties, under different titles, assert a claim to real and personal estates, which a person professes to dispose of by a will. As to the former, the right, it is admitted, can be bound only by the finding of a jury; but as to the latter, the proper tribunal has already decided against the validity of the only instrument upon which the Plaintiff's claim depends. Following up that decision, this Court has made an order on the Plaintiff to deliver up the property, and has sent him to the Fleet on his refusing to comply. His disobedience is a gross and wilful contempt, amounting to a denial of the Court's authority, and disqualifying him, so long as he persists in his obstinacy, from claiming its assistance either on the present or any other occasion.

THE LORD CHANCELLOR [Lyndhurst] said that the practice was the same, he apprehended, in equity as at law, that a party could not move till he had cleared his contempt; but that the rule must be confined to proceedings in the same cause: otherwise the consequence would be, that a party, who was utterly unable to comply with an order [108] of the Court, might be prevented from afterwards prosecuting any claims, however just, against the person who had succeeded in obtaining that order. Here the suit was between the same parties, but it had reference to distinct properties.

For the Defendants,-The Plaintiffs have no right to rely on the answer of the Defendants, the trustees. It cannot be read as an affidavit; for affidavits are not to be read on a motion for a receiver; and it cannot now, as it could not, at the hearing, be admitted as evidence against their Co-defendants, Mr. and Mrs. Dew, who have an opposite interest.

This Court never interferes by appointing a receiver, unless it entertains a clear opinion, that, when the cause is brought to a hearing, a decree must be made in the Plaintiffs' favour. But in this case the will has been already determined, by two consecutive judgments of the proper tribunals, to be inoperative by reason of the testator's incapacity; and it is in the highest degree unlikely that an appeal to a jury upon that point will be attended with a different result. The Defendants, the Dews, are now in possession of the property, and as far as the litigation has hitherto proC. XIX.-2*

ceeded, the Plaintiffs have shewn no probable title to dispossess them. On that ground alone, a similar application for a receiver was refused in the case of Cholmondeley v. Clinton. Were their prospects, however, far more encouraging than they are, the laches of the Plaintiffs, who have suffered many years to elapse since their uncle's death, without asserting any right to this property, would be a sufficient answer to the motion. Had they been really anxious to try the validity of the will in a Court of law, they might have come forward to defend the action for rent brought against the devisees in trust. Instead of [109] that they have allowed Mr. and Mrs. Dew to recover a judgment by default, and subsequently to levy a fine, upon which five years have run, so that their claim, if they ever had any, is now effectually barred.

The object of the motion is merely to harass the Defendants, and, if possible, to drive them to a compromise. At the very moment when they come forward to make it they retain in their hands, in defiance of the order of the Court, £5000 of stock to which Mrs. Dew is rightfully entitled; and yet they now seek to deprive her of the possession of a small strip of ground, which, even if they had any title to it, would afford her a poor compensation for the large sums of hers which they have spent and can never repay, and for the property they unjustly withhold from her.

Sir C. Wetherell, in reply.

THE LORD CHANCELLOR [Lyndhurst]. This is an application to the discretion of the Court, which is called upon by the motion to appoint a receiver, and dispossess the heir at law. Now it is clear from what appears in the answer, and from what is already known to the Court, that the will, under which the Plaintiff claims, is disputed and the only question to be tried, in order to decide that point, is the sanity of the testator. That question, however, has been already fully investigated, as far as regards the personal estate; and though the result is not conclusive as to the property now claimed by the Plaintiff, the contest lay between the same parties, and the result of those proceedings was such as to furnish no reasonable ground for believing that the Plaintiff will succeed, when he brings the will before the proper tribunal on an issue at law. I would ask, besides, if the property is exposed to any danger in the meantime, while it re-[110]-mains in the possession of the Defendants? The Plaintiff is already bound to pay over a considerable sum to the Defendants, under an order of this Court; and so long at least as he retains that sum in his hands, he has a sufficient security for the rents and profits, should it ultimately appear that he is justly entitled. On both those grounds the motion must be refused, but with

out costs.

(1) "I know but one case where this variation of judgment has happened, and that was the case of Maxwell v. Lord Montague; there a testator was determined to be compos mentis, upon a suit in the Ecclesiastical Court, and that sentence was affirmed in the Court of Delegates: afterwards, on a trial at law in relation to the real estate devised by the will, the testator was found non compos, and then an application was made to the House of Lords, by petition, to reverse the sentence in the Court of Delegates, in order to make the determinations uniform; but the House of Lords dismissed the petition, because the sentence of the delegates is decisive, and no appeal lies from it." Per Lord Hardwicke C., 3 Atk., 546. In arguing the case of Hurst v. Dodgson, which was an application made to the Lord Chancellor in December 1829 for a commission of review, Dr. Lushington mentioned that a similar diversity of result had occurred in Ayrey v. Hill (reported in the Ecclesiastical Court in 2 Add., 206), where a will, impeached on the ground of the testator's insanity, was established as a valid testamentary disposition by the judgment of Sir J. Nicholl, and was, on the same ground, determined to be inoperative as a devise of real estate, by the verdict of a jury. Dr. Lushington added that he recollected no case in which the converse had taken place-in which a will, set aside by the spiritual Court, had been held effectual on a trial at law.

SIDDEN v. LEDIARD. Nov. 23, [1829].

In order to get rid of the effect of a disclaimer, a distinct application, supported by affidavits establishing a special case, is necessary.

On the death of Thomas Lediard, who had been declared a trustee and accounting party under the original decree, the suit was revived against Ann Lediard, his widow

and personal representative: and she, by her answer and disclaimer, after denying assets of her testator, disclaimed all right, title, and interest in the trust property and effects in question in the cause. Afterwards, however, a supplemental bill was filed by the same Plaintiffs against Ann Lediard and others, praying further declarations and relief with respect to the same trust; and by her answer to that bill, she insisted that she was entitled to receive and be paid what might be found due to her husband's estate, on taking the account of the said trust; and that she ought not to be bound by her former disclaimer, inasmuch as, at the time of filing the same, she was ignorant of the existence of many vouchers for payments made by her husband, as well as of other documents explanatory of the accounts given in by him relating to the trust property, which vouchers and documents had, as she alleged, been dis-[111]-covered at a subsequent period. The Master, by his report, among other things, stated, that as Ann Lediard had disclaimed all interest, and the Plaintiffs had waived any account against her as the representative of T. Lediard, he had not thought proper to allow any charge against the said T. Lediard, or to proceed upon the discharge which his executrix had carried into the office.

When the cause came on for further directions, Mr. Whitmarsh, on behalf of Ann Lediard, applied for liberty to go in and prove her claims against the trust estate, notwithstanding the disclaimer she had filed. When that disclaimer was put in, she had no means of knowing how the account stood between her late husband and the Plaintiffs: but they were well aware that a large balance was due to Mr. Lediard for expenses incurred in the execution of the trust. They had therefore availed themselves of her disclaimer, and artfully abandoned their charge in the hope of escaping from the payment of that balance. The subsequent discovery of a box of papers had first led the Defendant to a knowledge of the truth. There was no affidavit in support of the application, but Mr. Whitmarsh relied on the statement in Mrs. Lediard's answer to the supplemental bill, and on the facts found by the Master's report, and he referred to a case of Branch v. Spursell (1) at the Rolls, where it was held that the Defendant might insist upon a claim, notwithstanding he had put in a disclaimer.

THE LORD CHANCELLOR [Lyndhurst] said that, in order to get rid of the effect of a disclaimer, it was necessary to shew [112] some specific ground. Here the statements in the answer were too loose and general for the Court to act upon. Mrs. Lediard ought to have made a distinct application on the subject, supported by special affidavits setting forth the facts in detail on which she founded her claim to such an indulgence.

(1) 1 Newl. Harr., 235; but in Seton v. Slade, 7 Ves., 265, Lord Eldon held, that a defendant could not get rid of a disclaimer upon the record without a strong case upon affidavit. As to a disclaimer by an accounting party, see 2 Russell, 462.

Ex parte FARROW, in re ADAMS. Dec. 8, [1829].

A committee of the person and estate of a lunatic appointed, without a reference, where the property was small.

A petition was presented by the sister of a lunatic and her husband, praying that she might be appointed committee of the lunatic's person and estate. It appeared by affidavit that the lunatic's fortune consisted of a messuage of the yearly value of £25, of £350 stock in the 3 per cents., and of household furniture and other effects, and debts due to him to the amount of about £90 more.

Mr. Chandless, who appeared in support of the petition, requested that, to save expense, as the property was so small, the appointment might be made by the Court in the first instance without a reference to the Master. That had been the course followed in Ex parte Pickard (3 Ves. & B., 127), and in Er parte Lacy (1 Coll., 196). THE LORD CHANCELLOR [Lyndhurst] granted the application on the authority of the cases cited.

[113] ANON. Dec. 15, [1829].

A committee should have the previous sanction of the Court for not passing his accounts annually.

On an application made by Mr. Tinney, that the committee of a lunatic might have liberty to pass his accounts, which, in consequence, as was alleged, of the smallness of the property, had not been passed since the year 1823.

THE LORD CHANCELLOR [Lyndhurst] granted leave in this case, but said, that whenever from any cause it is found inexpedient to pass the accounts of a lunatic's estate regularly, an application ought to be made, in the first instance, for liberty to dispense with the general rule, and the Court would then exercise its discretion on the subject. (See Ex parte Pickard, 3 V. & B., 127.)

BURKETT v. SPRAY. Nov. 27, 28, [1829].

Where a cestui que trust, having a life interest only, is declared entitled to his costs out of the trust property, the Court will not give him a mere lien on it, to be enforced by subsequent proceedings, but will direct an immediate sale for the purpose of defraying them.

Decree varied on appeal in respect of costs only.

This was a suit to carry into effect the trusts of a marriage settlement; and one principal question related to the proper construction of a clause, which had been held by the Court below to empower the trustees, during the life of the tenant for life, to sell the furniture [114] and other effects comprised in the settlement, and to invest the produce in stock upon the same trusts.

The cause now came on by way of appeal against so much of that decree as decided that the trustees had a power of immediate sale, and that the tenant for life should not have his costs paid at once out of the fund by the trustees, but should have a lien for them on the property to be sold.

Mr. Horne and Mr. Tennant, for the Appellant, the tenant for life.
Mr. Pemberton and Mr. Girdlestone, jun., for the trustees.

THE LORD CHANCELLOR [Lyndhurst], having expressed a clear opinion that the decree was right upon the first point, it was then argued on the question of costs.

On the one hand, it was contended that the decree was erroneous, inasmuch as it decided that the Appellant was entitled to his costs, but did not, as it should have done, provide for their payment by directing a portion of the property to be sold for that purpose. It declared his right to be reimbursed, and gave him a lien for the costs on the trust effects as against the remaindermen, till the trustees should make a sale; but it left him to recover them afterwards as he best could, possibly by an action at law. Such a direction was quite unprecedented, and was contrary to the principles of a Court of Equity, which always endeavoured to administer complete and final justice between the parties. Admitting that the rest of the decree must stand, this was not a mere appeal on the propriety of giving costs, for it related to the peculiar and inequitable mode in which they were directed to be charged and paid, so that it formed a substantive [115] and not a consequential part of the decree against which relief was prayed, and it was therefore properly brought under review.

On the other side it was answered, that, assuming the decree to be right in other respects, this was substantially an appeal for costs, which, it was conceded, could never be entertained. Whether these costs were properly allowed or not, and whether they were duly provided for or not, it was impossible to pronounce without opening up the whole of the decree, which embraced a great variety of points, and against which there was no general petition of rehearing.

THE LORD CHANCELLOR [Lyndhurst] said that an appeal would lie in respect of costs, if any principle were involved, and they were not merely given as consequential on the decree.(1) The objection taken to the manner in which they were charged appeared to him to be sound. The trustees and the Appellant, the tenant for life,

were entitled to have their costs paid immediately out of the corpus of the estate, without waiting to have them raised at a future period. The decree, therefore, ought to be varied to the extent of directing that the deficiency should be made good by an immediate sale.

(1) So Jenour v. Jenour, 10 Ves., 572; Taylour v. Popham, 15 Ves., 78. Most of the cases on the subject of appeals relative to costs are brought together in a note to Mr. Blunt's edition of Ambler's Reports, 521. To these may be added, Eyre v. Parnell, 29th Feb. 1727; Crosby v. Shadworth, 4th April 1728, D. P. Harc., MSS.; Gould v. Granger, Mos., 395.; Huband v. Huband, 7 Bro. P. C., 433, Toml. edit.; Tol v. Tol, 1 Bligh, 638, N. S.; and see 1 Dow, 261.

[116] HODGES v. HORSFALL AND OTHERS. Dec. 8, 9, 16, [1829].

[See Squire v. Campbell, 1836; 1 My. & Cr., 480; Baumann v. James, 1868, L. R. 3 Ch. 512.]

Where an agreement expressly refers to a plan as an existing document, forming a term in the contract, parol evidence is admissible for the purpose of identifying the plan. But unless the evidence of identity is clear and satisfactory, specific performance of such an agreement will be refused.

In the year 1821 Samuel Hodges entered into a negotiation with William Horsfall, for the purpose of procuring a reversionary lease of a parcel of land with the buildings erected thereupon, of which Horsfall was the owner in fee. The premises were at that time subject to a lease, which was not to expire till Midsummer 1824. After some treaty the parties respectively signed a written agreement, which was prepared by Horsfall's attorney, and which, as far as is material to the present question, was in the following words :-" Memorandum of agreement made the 18th day of August 1821, between William Horsfall of, &c., of the one part, and Samuel Hodges of, &c., of the other part. William Horsfall does hereby agree for himself, his heirs, executors, administrators, and assigns, to grant a lease unto Samuel Hodges, his executors, administrators, or assigns, of all those premises at Battle Bridge, now in the occupation of Younge, known by the sign of the Maidenhead public house, with the additions intended to be made thereto by Samuel Hodges as per plan agreed upon, for a term of thirty-one years from Midsummer 1824. The said Samuel Hodges agrees to pay to William Horsfall a premium of £1500 sterling money for the grant of such lease, at £80 per annum, the said rent to commence from the 25th day of June, which will be in the year of our Lord 1824; the rent to be paid quarterly on the usual days for payment of rent, the first payment to be made on the 29th day of September 1824." The agreement also contained provisos for the insertion of the usual covenants in the lease, and a [117] clause requiring that the additions should be made within twelve months after the lessee was let into possession; and it further stipulated that the whole premium of £1500 should be paid by Michaelmas 1821.

Prior to this contract with Hodges two other proposals had been made to Horsfall for a lease of the same premises, on behalf of persons of the names of Testar and Younge. The negotiations, which ensued upon the subject between them and Horsfall, were afterwards successfully broken off; but, in the course of them, certain plans were produced and shewn by the latter, particularly specifying the additions and improvements, which he, as landlord, would expect an incoming tenant to execute. By all of these plans, special provision was made for bringing forward the front of the Maidenhead public house, so as to be in a line with three other houses which Horsfall had recently erected on the immediately adjoining plot of ground; but two of them differed considerably in their details. According to the first, denominated Testar's plan, from having been the one shewn to Mr. Testar, it was intended that the whole of the old buildings, together with the required additions, should compose a single tenement only. According to the other two, of which one was rather more ornamental than the other, but which were substantially the same, and were treated throughout the argument as forming one plan, and