Staniland v. Willott. recover from his illness, I think that the result of this evidence proves that the gift was made under the impression, and in contemplation on the part of the donor, that he was about to die. I also think that the undisputed fact that the plaintiff was a frugal, if not a penurious, man, much interested in his property, is not to be disregarded in estimating his motives and intentions at the time of the gift. The evidence, however, does not rest here. The facts which took place after the recovery I deem to be very important in support of the inference which seems to me to result from the facts which occurred at the time of the gift. The defendant returned the watch, and professes not only to have been willing, but to have voluntarily proposed to retransfer the shares. Whether he returned the mourning rings, or whether the plaintiff from that time used his purse without those accompaniments, does not appear; I infer that the rings had been used as slides for the purse. It seems to me that if the defendant's inference from what had passed at the time of the gift had been that the plaintiff intended an absolute gift inter vivos, that was no reason for his actually returning the watch and proposing to retransfer the shares. I can draw no inference from the facts, but that the defendant received the gift upon the distinct understanding that it was to be absolute only in the event of death. The reason which the defendant states that the plaintiff gave why the shares should not be retransferred, appears to be also consistent with this view, and shows that the plaintiff intended to reserve the beneficial interest during his life. The reason the defendant states to have been given was not that the plaintiff intended the gift to be absolute, but that the plaintiff might be attacked by another fit, which might prevent him from again giving the shares to the defendant; which seems to me to have imported that the shares were suffered to remain in the defendant's name for the same reason for which they had been originally transferred, that is, to secure them to the defendant in the event of the plaintiff's death. It does not escape me that the plaintiff might have accepted a retransfer of the shares, and secured them to the defendant at his death by altering his will; but that would have occasioned some expense, and would have subjected the defendant to the legacy duty on the shares, circumstances which, from the character ascribed to the plaintiff, I think may be reasonably presumed to have operated with him in not taking the retransfer; but, from this fact it is quite clear that the plaintiff did not intend that the defendant should derive, nor did the defendant expect to derive, any profit from the shares during the plaintiff's life, as will also appear from the circumstances to which I shall advert in considering the second question. I, therefore, feel bound to declare that the original transaction constituted a donatio mortis causa, and that the shares, after the plaintiff's recovery from the illness during which the gift was made, were held by the defendant as a trustee for the plaintiff. The next question is, whether the nature and character of the plaintiff's interest and title in and to the shares was altered by any contract between the plaintiff and the defendant after the plaintiff's recovery. Rumolas Staniland v. Willott. The defendant's case seems to consist of two distinct and not very consistent parts; first, that the testator made a perfect and absolute gift of the shares in November, and, secondly, that at all events the shares became the absolute property of the defendant, in consideration of a contract to pay to the plaintiff an annuity of 6801., which was the amount of the annual dividends which had been paid upon the shares. The alleged agreement on the part of the plaintiff to accept this annuity as a consideration for the shares, and the fact that the payments afterwards made by the defendant had any relation to such annuity, rest wholly on the bare allegation of the defendant himself. The payments that were made might have been made on account of such annuity; but there is no proof whatever that they were made on that account. There is no proof whatever that they were not made on account of the dividends. Indeed, as the alleged annuity is admitted not to have been secured in any way, or evidenced even by any memorandum, it is only reasonable to refer the payments to the dividends on the shares considered as vested in the defendant as a trustee for the plaintiff after his recovery, rather than to an annuity which is not only unsecured, but was not evidenced in writing at all, or even capable of being proved by testimony. It is contrary to experience that a man will part with a very large. proportion, and indeed with half of his fortune as this appears to have been, in consideration of an annuity, when he not only had no security for the annuity, but was even without the means, in the event of the grantor's death, insolvency, or bankruptcy, or insanity, or denial of the contract, of proving that any agreement was ever entered into for the payment of it. But be this as it may, it is sufficient to say, that there is no evidence whatever of the alleged agreement or understanding to relinquish the shares in consideration of an annuity, or that the payments made were so made on account of such annuity, and not on account of the dividends on the shares. Neither is there any evidence whatever of any confirmation of the gift, so as to convert it into, or give it the effect of, an absolute irrevocable gift inter vivos. One witness states that the plaintiff, soon after his recovery, stated that he was going to receive his dividends on the shares, from which it would appear that he still regarded them as his own, and the defendant merely as trustee for him; but I do not consider her statement to be receivable in evidence, and, therefore, in no respect act upon it. The possibility of a misapprehension, in the effect of expressions which were likely to have occurred upon the occasion referred to, is very obvious. A consent on the part of the plaintiff that the defendant should retain the shares in his name but pay over the amount of the dividends received upon them, or an annual sum equal to that amount, very much resembles the payment of an annuity, and a very slight alteration in the form of expression would make a material difference in the effect; but, taking the whole of the defendant's statement into consideration in connection with the other facts of the case, I do not think there is any ground for holding that the trust under which the defendant held the shares after the plaintiff's recovery has been at all affected or varied by any subsequent contract. Blundell v. Gladstone. The result consequently in my judgment is, that the defendant continued to hold the shares as trustee for the plaintiff up to the time of filing the bill, and, as such, that he must be decreed to retransfer such shares, and to account upon the footing of his having held them as such trustee. The decree of the Vice-Chancellor must therefore be reversed, and the defendant must be ordered to account. Mr. Rolt submitted that, inasmuch as the bill contained charges of fraud, which were not substantiated, the plaintiff ought not to have the costs. The Lord Chancellor however said that he did not see that the costs had been increased by such charges, and no evidence having been adduced either by the plaintiff to support them, or by the defendant to repel them, he did not think that the costs of the suit ought to be affected thereby. BLUNDELL V. GLADSTONE.1 February 21, 22, 26, 27, 1851. February 26, 1852. Will-Ambiguity-Evidence to Explain. A testator devised all his real estates (except the hereditaments thereinafter particularly devised), including all estates vested in him upon trust or by way of mortgage, to trustees upon certain trusts: in a subsequent part of his will he devised his farm in A. in the possession of T. H. to T. R. He had two farms in A., called respectively S. and M., both of which were in the possession of T. H., but at different rents. On a question being raised, which of these two farms the testator intended to give to T. R.: · Held, that the devise must be taken to have been made to T. R. for his personal advantage, and not upon trust; and if, therefore, it could be ascertained that one of the farms was subject to a trust, or that the testator supposed or treated it to be so, it must then be inferred that such farm was not the one intended to be devised, but that the other was the one referred to by the testator. In the present case, it was sufficiently established by the evidence, that during the lives of the testator and his father, the proceeds of the farm S. had been regularly paid to a Roman Catholic priest, and that the testator had uniformly dealt with it in conformity with a real or supposed trust affecting it for this purpose: Held, therefore, that he must be taken to have intended to comprise it in the general devise of trust estates, and that consequently the farm M. was the one devised to T. R. THIS was an appeal from a decision of the late Vice-Chancellor of England, by Lord Camoys and Sir Charles Robert Temple, Bart., the co-heirs of the late Charles Robert Blundell, Esq., claiming to be entitled to a certain farm called Molyneux, situate in the parish of Aughton in Lancashire. The point to be decided was, whether the farm in question had passed by a general devise contained in the testator's will to the trustees and executors therein named, or had 13 Macnaghten and Gordon, 692. Blundell v. Gladstone. been devised to the Rev. Thomas Robinson, who died in the testator's lifetime, in which latter case the appellants would be entitled. The testator's will, which was dated the 28th November 1834, contained a devise of all his manors or lordships therein named, and then a residuary devise in the following terms:-" And all and singular my real estate whatsoever and wheresoever (except the hereditaments hereinafter particularly devised) of or to which I or any person or persons in trust for me, am, is, or are seized or entitled for any estate of freehold or inheritance, in possession, reversion, remainder, or expectancy, in or of which I have any power of disposition or appointment (including all estates vested in me upon trust or by way of mortgage,) and their respective rights, members, and appurtenances, and including any copyhold estate and all rents and franchises whatsoever relating to any of the said manors, lands, and hereditaments, to hold the same manors, messuages, lands, tenements, hereditaments, real estate, and premises, unto and to the use of my said trustees and executors, their heirs and assigns forever; nevertheless, as to such trust and mortgage estates, subject to the subsisting trusts and equity or right of redemption thereof, and so that all moneys coming to me thereon may form part of my personal estate." In a subsequent part of the will, the testator made the following devise in reference to which the present question arose : "I give, devise, limit, and appoint my farm with the appurtenances in Aughton, in the possession of Thomas Haskeyne, and my farm with the appurtenances in Lydiate, called Shacklady's, in the possession of Shacklady, or all my estate or interest therein respectively, unto the Rev. Thomas Robinson, to hold the same unto and to the use of him, his heirs and assigns forever." The testator died on the 30th October, 1837; and a suit having been instituted in relation to the will, and certain proceedings had therein which it is unnecessary to mention, the cause came on for further directions before the late Vice-Chancellor of England, on the 30th March, 1841, when his Honor directed a reference to the Master to inquire what farms and land the testator had in Aughton. In pursuance of this order, the Master made a report, finding that the farms and land which the testator had in Aughton, consisted (among other things not in question) of a farm called Shepherd's, containing about thirteen acres of land, Cheshire measure, let to Thomas Haskeyne, at the yearly rent of 50l., and a farm called Molyneux, containing about thirty acres of land, Cheshire measure, let to the said Thomas Haskeyne, at the yearly rent of 1207. This report was confirmed by an order dated the 20th January, 1844. Lord Camoys and Mrs. Elizabeth Tempest (under whom the present appellant, Sir Charles Robert Tempest claimed) as co-heirs of the testator, thereupon presented a petition, praying to be let into possession of the farm called Molyneux. This petition was dismissed by the late Vice-Chancellor of England, on the 30th March, 1844, 14 Sim. 83; his Honor holding that it had not been shown with certainty which of the two farms the testator meant to except Blundell v. Gladstone. out of the general devise, and that both, therefore, passed to the trustees. Against this decision the heirs appealed to the Lord Chancellor, Lord Lyndhurst, who, by an order dated the 20th December, 1845, discharged the order confirming the Master's report, and also that of the Vice-Chancellor, and directed a reference back to the Master to inquire what farms and land the testator had in Aughton, and whether such farms and land or any and which of them were or was held by him upon any and what trust. In consequence of this order, the Master made a further report, dated the 21st March, 1849, by which he found to the effect that the farm called Shepherd's, was purchased in 1705 by Dame Margaret Anderton of Thomas and Richard Molyneux, who conveyed, and covenanted to levy a fine, to the use of Nicholas Starkie and Henry Tyrer, in fee, as trustees for Dame Margaret Anderton; that she, by her will in 1720, devised all her lands in Aughton and certain other places to the use of Nicholas Starkie, his heirs and assigns forever; and that, at the time of making her will and of her death, she was seized of the farms called Molyneux and Shepherd's and other farms and land in Aughton. The Master then stated two marriage settlements whereby all the lands in Aughton and certain other places which had belonged to Dame Margaret Anderton were put in settlement, except Shepherd's farm, which was expressly excepted in each settlement. The Master then made the following statement; "It hath been alleged before me that the messuage or tenement with its appurte nances in Aughton, excepted as aforesaid by the two last-mentioned indentures, were by some instrument or in some other manner directed by the said Dame Margaret Anderton to be held in trust to or for the benefit of the priest of the Roman Catholic Church who should for the time being officiate in Lydiate aforesaid, and that the rents and profits of the said messuage or tenement should from time to time be paid to him accordingly, and that a deed or instrument in writing was executed by the said Dame Margaret Anderton for that purpose, but which cannot be found, but such allegation hath not in any manner been proved before me, and hath not been admitted by the solicitor for the plaintiff; yet I conceive that, from the terms of the recitals in and effect of the deed next hereinafter stated, that it may be presumed that such trust was created, and in some man ner declared, although such declaration or any evidence that the same existed cannot now be found." The Master then stated that Henry Blundell (who, according to the Master's report was the son of Robert Blundell, the heir-at-law of Sir Francis Anderton, and was one of the parties to the last of the two settlements before mentioned) executed a declaration of trust, bearing date the 11th May 1793; that in such indenture it was recited, among other things, that the said Henry Blundell was then in the occupation and in the receipt of the rents and profits of a certain estate situate in Aughton in the county of Lancaster, commonly called Shepherd's tenement, consisting of a messuage or dwelling-house and out |