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and in this case, it must be remembered that the indictment is for a common law offense, there being no statute in Maryland, as there is in many of the States, upon the subject of bawdy-houses. At common law a 'bawdy-house' or a 'house of illfame,' in the popular sense of the terms, is a species of disorderly house, and is indictable as a nuisance. 3 Greenl. Ev., § 184; 2 Whart. Cr. Law, § 2392. Hence this indictment charges that the acts and conduct specified and set out therein, are 'to the great damage and common nuisance of all the liege inhabitants of said State there inhabiting, residing and passing.' The offense does not consist in keeping a house reputed to be a brothel or bawdy-house, but in keeping one that is actually such. In the States which have statutes upon the subject the decisions turn in a great measure upon the construction and particular language of these statutes, and of course to that extent, can have little or no application to the question as it is presented in this case. In others a distinction is drawn between the terms 'bawdy-house' and 'house of ill-fame,' and they hold that where the latter terms are employed, they are to be taken in their strict etymological sense, and that they put directly in issue the fame or reputation of the house itself, and hence that it is both permissible and necessary to prove that reputation in the only way in which it can be proved. Others again ignore this distinction, and hold the terms to be synonymous. In speaking of all these authorities, Mr. Bishop, after stating the proposition in which they all agree (and to which we assent), that it is competent in all such cases to prove by general reputation the character for lewdness of the inmates of the house and of those who frequent and visit it, though such evidence pertains in a certain sense to hearsay, says: 'Some carry this doctrine a step further and accept the reputation of the house for bawdy, as competent evidence prima facie that it is a bawdy-house. Others, and probably the majority, reject the evidence, in accordance with the humane principle that a man shall not be condemned for what his neighbors say of him.' 2 Bish. Crim. Proc., §§ 112, 113. And in our opinion a majority of the best considered decisions so hold, and upon correct principles, that such evidence is inadmissible in cases like this at common law." Citing Cadwell v. State, 17 Coun. 467; State v. Boardman, 64 Me. 523; Toney v. State, 60 Ala. 97; State v. Lyon, 39 Iowa, 379; United States v. Jourdine, 4 Cranch C. C. 338, overruling United States v. Gray, 2 id. 675; State v. Foley, 45 N. H. 466; People v. Mauch, 24 How. Pr. 276; Commonwealth v. Stewart, 1 Serg. & Rawle, 342. "These decisions all rest, as it appears to us, upon the elementary rule of evidence which excludes hearsay testimony. The common law is studiously careful to exclude such testimony, and does not allow its introduction in order to convict parties on trial for common law offenses. We take it to be clear that a man's general bad character or reputation cannot
be brought up against him when he is on trial for a specific crime, unless he first opens the way by an attempt to prove his good character. And we hold it to be equally clear that the fact that a crime has been committed cannot be proved by common rumor or general repute. The decisions which hold this evidence admissible (where they are not founded on the language or interpretation of a statute) seem to rest its admissibility mainly upon the ground of necesssity, or rather the difficulty of obtaining direct evidence, because the operations of such houses are necessarily shrouded in secrecy. But when it is open to the prosecution to prove the general bad character for chastity of the female inmates of the house, that it is frequented by reputed strumpets, and that men are seen to visit it at all hours of the night as well as the day, we do not think there can be any very great difficulty in obtaining such direct evidence as will warrant a jury in convicting. If however such difficulty or necessity does in fact exist, a remedy can be easily and speedily provided by legislation changing the rules of evidence for such
In Adams v. Cost, 62 Md. 264, where a person placed his mare at livery, and instructed a servant of the proprietors of the stable to take her out for exercise, such however being no part of the contract of livery, and while the servant had her out for such purpose she died, in consequence of the immoderate riding and carelessness of the servant, held, that the proprietors are not liable. Two opinions were delivered, three judges agreeing in one, four in the other, but both arriving at the same conclusion. In the former the court said: “If a bailee employs others to transact the business intrusted to him, it has been held that his liability only extends to the injury resulting from the negligence of such persons while acting within the scope of their designated duties. If the injury complained of has been occasioned by the misconduct of the agents or servants of the bailee, while not engaged in the performance of the service specially assigned to them by the bailee, the latter is not responsible in damages for any loss resulting to the bailor from such misconduct. White v. Commonwealth Nat. Bank, 4 Brewst. 234; Pelham v. Pace, Hempstead, 223." In the latter the court said: "In Jones on Bailment, page 91, the learned author, in discussing the doctrine of Bailment Locatio Custodia, says: 'If a horse be delivered either to an agisting farmer for the purpose of depasturing in his meadows, or to an hostler to be dressed and fed in his stable, the bailees are answerable for the loss of the horse, if it be occasioned by the ordinary neglect of themselves or their servants. It has indeed been adjudged that if the horse of a guest be sent to pasture by the owner's desire, the innholder is not, as such, responsible for the loss of him by theft or accident;' and the author cites Calye's case, 8 Co. 32a, where it was
held that if the horse of a guest at an inn be stolen, the innkeeper is not liable if the horse were put to pasture at the guest's request; but otherwise if the innkeeper had put the horse to grass of his own head. And while the liability an innkeeper is very different from that of an agister or liverystable keeper, yet the rights and liabilities of the parties in this case are well illustrated by what was decided in Calye's case. The obligation of the defendants was to take reasonable and proper care of the horse while intrusted to their care as liverymen. Smith v. Cook, L. R., 1 Q. B. Div. 79; Sargent v. Slack, 47 Vt. 674. But though such was their obligation, if the plaintiff himself interposed and gave special directions to the servant as to the manner of treating the horse, conferring authority to ride and exercise it, a service that the defendants had not assumed, and it was while acting under such special authority that the accident occurred, the defendants as liverymen clearly would not be responsible. In such case the servant in charge of the horse would not be the servant of the defendants, but that of the plaintiff, pro hac vice. But on the other hand, if the horse was taken out and ridden upon the occasion of its death, by the authority, express or implied, of the defendants, or if its being taken out and ridden was by reason of the want of ordinary care and diligence in the keep of the horse by the defendants or their servants, then the defendants would be liable for the loss of the horse. And these propositions, we think, were fully submitted to the jury in the instructions that were granted by the court below."
THE ENGLISH SOLICITOR.
E have heard the English solicitor described
as this description hits the great mass of London solicitors and a large number of the country practitioners, there is still to be found in the "lower branch of the profession" a proportion of sound and stable advisors, well versed not only in the practice but the theory of the law. These men mostly congregate in the country towns and cities of the second class, and have a family practice composed entirely of conveyancing, varied with an occasional heavy suit. Removed from easy access to counsel, they have formed habits of independent thought and study, and are undoubtedly the most learned, though the least obtrusive section of their guild.
The London solicitor or his brother of the large provincial cities is quite another species. Compelled by dire necessity, as an articled clerk, to "" cram some few law books prior to his "final," he dates his emancipation from the day when he received his certificate, and has since thrown books, like physic, to the dogs. He is purely and wholly a man of business, and pays his counsel for law exactly as he pays his clerks for copying. If ever, by chance, he finds himself cornered and compelled
to give a legal opinion offhand, he remembers that good sense is generally good law, and following this rule he seldom errs. But though his legal resources may not be great, his knowledge of the commercial world and its ways is surprising. The promoter and the stockbroker understand the stock exchange, the merchant knows the secrets of trade, the banker feels the pulse of capital, but the solicitor, like Lord Bacon, takes all knowledge for his province, and will give you points on any subject you like, from mines to horse-racing.
Another distinct and fast increasing type of solicitor is the advocate. In London he has little scope, and with a few brilliant exceptions, the metropolitan advocates are no credit to their confraternity, but in the country there is a large class of business open to him. The local county courts and police courts are the fields where he wins his spurs, and many a man has thus formed the nucleus of a first-rate business. The solicitor who goes in for advocacy must of course keep up a little reading, but as a rule, a perusal of the weekly notes and of the few professional journals answers every purpose. Gradually his name gets known, clients flock to him, and bring not only county court cases but Supreme Court actions and conveyances. The old stagers who at first regarded him as an interloper are compelled to get off their high stilts and accept him as their equal. Next he adds to his practice the emoluments of some local office a town clerkship, registrarship, or what not. Getting older and staider he hands over the advocacy to his junior or quietly drops it. Long before his death he has become one of the institutions of the town, knowing and known by every body, and when at last he joins the majority the corporation will walk behind the hearse, and folk will say, "another landmark gone!" The practice he built
for a generation, and the mere stick who forty or fifty years hence will be laid by his father's side will have figured for a lifetime as a lawyer in good practice upon the merits of his father's name. Such are the slow but sure rewards of professional success in a country where the relations of client and attorney often merge into those of lifelong friendship and esteem.
No sketch, however hasty, of the English solicitor would be complete without some notice of his relations with counsel. The three necessary thorns in his life are clients, clerks and counsel, and the greatest of these is counsel. The half yearly fee lists of his standing junior cut huge cantles out of his profits, but these are well earned and cheerfully paid. It is against the big men, the haughty silken Q. C.'s, that he sometimes feels bitter. He has been too often left in the lurch by these dignified frauds to join in those magniloquent eulogiums of the purity, the disinterestedness, the devotion to clients, and in short, the general moral grandeur of the English bar, which are so frequently He repronounced by the members thereof. members poor Smith's case, which he feels cer
tain was lost because the leader was absent, and the junior was sulky at his double burden, and he has suffered so often in this way that he knows the old excuse "detained in another court" cannot always be true, but is, like charity, made to cover a multitude of sins. Be it remembered that for all these shortcomings he is the vicarious sufferer; he has to face the wrath and hear the complaints of the justly indignant suitor, and we cannot wonder that his appreciation of the "higher branch of the profession" is somewhat modified by these facts. Our readers may rest assured that it is as true of the English bar as of most other institutions, that "distance lends enchantment to the view."
A. B. M.
JURISDICTION OF COURTS OF EQUITY OVER WILLS.
IE early exercise of jurisdiction by courts of equity
shaling of assets in the course of administration grew out of the defects in the process and powers of the ecclesiastical courts. Com. Dig., “Chancery,” 2 A. 1; 3 Bl. Com. 98.
Although at common law an executor might be compelled to account before the ordinary or ecclesiastical judge, yet there was no power to compel him to prove the items of it, or to swear to its truth. 2 Bl. Com. 494; Bac. Abr., "Legacies," M. 2; Foubl. Eq. P. 4, ch. 1, § 1, and notes; Marriot v. Marriot, Str. 666. And it was held that the statute 21 Henry VIII, compelling an inventory of decedent's effects to be made to the ordinary, could only be invoked by a legatee, and not by a creditor. Hinton v. Parker, 8 Mod. 168; Catchside v. Ovington, 3 Burr. 1922. Even after the statute of distributions (22, 23 Car. 2, ch. 10) there was no power in a creditor to falsify an executor's accounts, but he was left to his remedy at the common law. Before this statute it had been uniformly held that an executor was entitled to the personal estate of the testator not disposed of by his will. 2 Bl. Com. 514; Toker Exec. B. 3, ch. 6, p. 369; see note to Jarman on Will, *571 Z., and cases cited. But at common law "none could be charged in account but as guardian in socage, bailiff or receiver, except in favor of merchants, and for advancement of trade, where by the law of merchants one raming himself merchant might have an account against another naming him merchant and charge him as receiver. 1 Inst. 372, A. 11, Co. 89 Eq. Cas. Abg'd, 1, p. 5.
And in Pettit v. Smith, 1P. Wms. 7, decided in 1695, Holt, C. J., said: “Where an executor has an express legacy the Court of Chancery looks upon him as trustee with regard to the surplus, and will make him account, although the spiritual court has no such power."
We may therefore regard the origin of this jurisdiction as being ancillary, intended merely to aid the court of original jurisdiction by a more efficient procedure. This will appear the more evident when we observe, that as the Court of Chancery had no original jurisdiction in testamentary matters, it felt itself bound to adopt in questions of legacy and the like the rules of the ecclesiastical court, which were derived from the civil law. Thus equity will relieve against a mistake in the case of a bequest of a chattel interest where a grant of laud, or even a devise, would have been void. Per Lord Macclesfield in Beaumont v. Fell, 2 P. Wms. 142; see Pettit v. Smith, ut supra; also Lady
Gainsborough's case, 2 Vern. 252. It would of course have been extremely inconvenient to have had two distinct sets of rules applicable to the same subject in two courts having concurrent jurisdiction. It thus results, that while with respect to legacies charged on laud, courts of equity follow the rules of the common law as to their interpretation and validity, yet with respect to purely personal legacies, as excepted from the seventh section of the statute of frauds, courts of
equity came to implicitly follow the civil law, as acted on in the spiritual courts. Story Eq., § 602, notes 3, 4, 5, § 1067, notes a & b; 2 Foubl. Eq. B. 4, pt. 1, § 4, and notes; Fearne Conting. Rem. 471, 472; Crooke v. De Vandes, 9 Ves. 197: Lyon v. Mitchell, 1 Mad. 486; Ex parte Wynch, 5 de G. M. & G. 188, where all the cases
are collected. Thus a different construction has been given to the same words as applied to real and personal estates in the same will. Forth v. Chapman, 1 P. Wms. 667; 1 Jarman Wills, 165-167, 755; Perry Trusts, § 359; 1 Roper Leg. 478; Story Eq., §§ 179, 646.
So it was held that in the construction of the statute of distributions the civil law is to be the rule. Mentney v. Petty, Preced. in Ch. 593; Carter v. Crowley, Lord Raym.; Milner v. Milner, 1 Ves. Sr. 106; Hurst v. Beach, 5 Mad. 360; Campbell v. French, 3 Ves. Jr. 332; see 1 Spence, "The Equitable Jurisdiction of the Court of Chaucery," 539, note f. And in Twaites v. Smith, 1 P. Wms. 10, it was doubted whether a female was a competent witness to a will of personal estate since she was not so by the civil law. The importance, even at the present day, of this consideration of the history of early equity jurisdiction over wills is obvious from a consideration of the case of Hogan v. Curtin, 88 N. Y. 173, where will be found contrasted the effect of legacies upon conditions in restraint of marriage without consent, when charged upon land, as compared with such legacies charged upon the personalty, a question depending for solution entirely upon ecclesiastical law and polity as opposed to that of the common law. See also Story Eq., § 288.
Since in general, both in England courts of probate (by the wills act, 1 Vict., ch. 26; 20 & 21 id., ch. 77), and in the United States surrogates' or orphans' courts, whose jurisdiction is essentially derived from that of the ecclesiastical courts (see 1 Dayton Surr. 24, 188; also the very learned opinion of Daly, C. J., in the Matter of Brick's Estate, 15 Abb. N. C. 12) are at the present day given ample powers in all matters of administration (2 Rev. Stat. 102, § 14; Code Civ. Proc., § 2481, 2717, etc.), few occasions arise for the interposition of courts of equity in these respects, though undoubtedly the jurisdiction still exists (Lewin Trusts, 526, 694, 697; Sugd. Pow. [8th ed.], 50; 2 Story Eq., § 1061; People v. Norton, 9 N. Y. 176; De Peyster v. Clendinning, 8 Paige, 310; Manice v. Manice, 43 N. Y. 365), but the interposition of the court rests in discretion, and it should not interfere with the Surrogate's Court unless there is shown some good cause for doing 80. VanMater v.Sickler,1 Stockt. 485; Clarke v.Johnson, 2 id. 287; Tichborne v. Tichborne, L. R., 2 P. & D. 41; Chipman v. Montgomery, 63 N. Y. 230. In a few early cases courts of equity assumed to set aside wills procured by fraud (Maundy v. Maundy, 1 Ch. Rep. 66; temp. Ch. 1, 3; Welby v. Thornagh, Pr.Ch.123; Goss v. Tracey, 1 P. Wms. 287; 2 Vern. 700; Herbert v. Lowns, 1 Ch. Rep. 665; Ch. 1, 14), but it is now well settled that they will not interfere, but that courts of common law have exclusive jurisdiction, nor will a court of equity interfere to set aside the judgment or probate of a will procured by fraud. The leading case is Bransby v. Kerridge, 3 Brown Parl. Cas. decided in 1728; the subject is also discussed very fully in the Duchess of Kingston's case, 20 How. St. Tr. 398. See also Webb v. Claverden, 2 Atk. 424; Allen v. Mac Pherson, 1 Phil. R. 133. See the remarks of McLean, J., in
Gaines v. Chew, 2 How. 619, cited in the case of
In the latter case Bradley, J., remarked that the deoree of a Probate Court admitting a will was in the nature of a judgment in rem, and would be conclusive in all courts, between all parties, on all occasions, and to all intents and purposes. The Duchess of Kingston's | case, ut supra, 411, 514; S. C., 1 Sm. Lead. Cas. 446, 448. That the probate of a will of personal estate by the surrogate is conclusive unless reversed on appeal or revoked by himself, and cannot be attacked collaterally for irregularities, see Wetmore v. Parker, 52 N. Y. 456; 2 Seld. 190; Redf. Wills, p. 47, pt. 5.
title to the land comes into controversy, and all ques
The distinction between the effect of probate of wills of real estate and of personalty is well considered in the Kellum will case, 50 N. Y. 298. Equity will however interfere if a will has been prevented from being made by fraud, or a fraud has been practiced upon a legatee, e. g., if a name is inserted fraudulently in a will, or its revocation is procured by fraud or a gift is made to executors in such a way as to raise an implied trust for relations, or where a legatee promises the testator that he will hand over the legacy to a third person (Kennett v. Abbott, 4 Ves. 802; Marriott, Marriott, Str. 666, cited and approved by Lord Cottenham in Allen v. Mac Pherson, 1 Phil. R. 144, and also in Gil. Uses, 203, 209; Traver v. Traver, 9 Pet. 180; 7 Sim. 644; 1 Watts, 163; Williams v. Fitch, 18 N. Y. 546; Hayden v. Denstow, 27 Conn. 335), and perhaps also in the case of a mutual will. See Lord Walpole v. Lord Orford, 3 Ves. 402; Ex parte Day, 1 Bradf. Surr. R. 476; Dayton Sur. 53, note Z and cases there cited. It has been held in some States that a will cannot be acted upon in a court of equity, though lost, destroyed or suppressed until it is first proved in a Probate Court. Morningstar v. Selby, 15 Ohio, 345; Mears v. Mears, 15 Ohio St. 90. Compare Gaines v. Chew, 2 How. 345; Gaines V. Hennen, 24 id. 553, and Mead v. Langdon, cited by Redfield, J., in Adams v. Adams, 22 Vt. 50; Brown v. Idley, 6 Paige, 46; see 2 Rev. Stat. 67, § 63. The divergent views taken by the various States depend upon the language of their statutes; thus in Vermont (22 Vt. 50), Ohio (15 Ohio, 345), California (20 Cal. 233), it is held that the jurisdiction of probate courts is exclusive over the settlement of estates, while the New York cases (Seymour v. Sey-charge upon land no trust in favor of creditors was mour, 4 Johns. Ch. 409; Curtiss v. Stillwell, 32 Barb. 354; Sipperly v. Baucus, 24 N. Y. 48; Tucker v. Tucker, 4 Keyes, 136; Stillwell v. Carpenter, 59 N. Y. 425; Bevan Cooper, 72 id. 327; Boughton v. Flint, 74 id. 477; Carman v. Coules, 2 Redf. 419; Bailey V. Stewart, id. 224) limit their jurisdiction to that confe red by statute, deny em any general equity powers, and hold that where au executor refuses payment of a legacy upon the residuary estate in his hands, the surrogate's jurisdiction ceases, or has not attached, and that he has no power to pass upon or determine a disputed claim (see Hurlbut v. Durant, 88 N. Y. 216), but it seems a surrogate has jurisdiction to pass upon the construction of a will where the right to a legacy depends upon a question of construction, which must be determined before a decree of distribution can be made. Riggs v. Cragg 89 N. Y. 492. In New Jersey (1 Stockt. 485; 2 id. 287) the Court of Chaucery inclines to the view that jurisdiction is concurrent, but discretionary. In England however when a matter of administration of an estate once comes into the courts of equity, it draws the whole administration into that court, and the final settlement is made there.
thus imposed on the executors, authorizing them to bring an action for construction, but the land in the hands of the heirs was chargeable in equity with the trust in favor of the creditors. In such a case even the surrogate has no power to order a sale until the creditor has exhausted his remedy under the charge. In re Fox, 52 N. Y. 530; 2 Rev. Stat. 102, § 14; Code Civ. Pro., § 2749.
The validity of wills of real estate can be tried in the courts of common law, either in an action of ejectment, or on an issue of devisavit vel non, or in Code States in the corresponding actions, so often as the
We may now consider the language from which a valid express trust in favor of legatees may be inferred. In Hill v. Bishop of London, 1 Atk. 618, Lord Hardwicke said that a trust might be created without that word if such an intention can be collected from the whole will (Lewin Trusts, 5 Eng. ed. 120), and a trust has been held not to be created, though such a word was used, on a consideration of the entire instrument. Hughes v. Evans, 18 Sim. 496. Williams v. Roberts, 4 Jur. N. Y. 18, 27; L. J., ch. 177; Dillayev. Greenough, 45 N. Y. 438; Wetmore v. Parker, id. 459; note to 1 Jarman Wills, *565.
Three "certainties" (Co. Litt. 380 a, & 5 Co. 121) must concur in the creation of a trust. First. The words must be employed in an imperative sense, thought they need not be words of command. The use of precatory or recommendatory words in this cou. nection is of great antiquity, and originally grew up in Rome through attempts to evade the Voconian law (enacted A. U. C. 584), which abolished female succes
sion and limited the inheritance of a woman to one hundred thousand sesterces. Originally the testator could only entreat, but after the establishment of the Praetor fidei commissarius (by Augustus) he could impose by positive words a trust in favor of the cestui que trust. But the use of words of entreaty still continued, and in the time of Justinian the forms of expression were "peto," "rogo,' 'volo, ," "mando," or "fidei tuae committo," as to which Justiniau says, quae perinde singula firma sunt atque si omnia in unum congesta sunt." 2 Inst. 24, 8. Justinian ordained that where the intention of the testator was clear they should all be equally effectual. Milman's Gibbon v. ch. xliv, 308, 310; Montesquieu Esprit des Lois 1. xxxii; Gaius Inst. 1. ii, title ii—viii, pp. 91-144. Justinian, 1. ii, title x-xxv; Theophilus, pp. 328-514. See vols. 28-39 Pandects. Sheldon Amos' "Systematic view of the Science of Jurisprudence," 320.
These expressions are constantly referred to in chancery courts to this day as guides to similar questions. See Knight v. Knight, 3 Beav. 161, where it was held that "confiding in the approved honour and integrity of my family," and "I trust to the liberality of my successors to reward," were not sufficiently clear to make the words of trust imperative. Compare Cary v. Cary, 2 Sch. & Lef. 189; Eade v. Eade, 5 Mad. 118; Harding v. Glyn, 1 Atk. 489; Foley v. Parry, 5 Sim. 138; Hinxman v. Poynder, id. 546. In these last cases the following words were held sufficient: "Request," "desire," " my particular wish and request,' my last wish," "6 recommend;" but see Van Duyne v. Van Duyne, 1 McCart. 397; 15 N. J. Eq., where it is said that the present disposition of the courts it rather to limit than to extend the doctrine, and a distinction is taken between such words used toward executors where they would be imperative, and toward devisees or legatees where they would not be. See also Manice v. Manice, 43 N. Y. 388; Warner v. Bates, 98 Mass. 274. The cases are collected in note to Harding v. Glyn, vol. 2, pt. 2, Lead. Cas. in Eq. (Am. ed.) p. 1859.
Second. The subject of the recommendation or wish must be certain; it must be manifested and proved in writing, and its terms and conditions must sufficiently appear so that the court may not be called upon to execute the trust in a manuer different from that inteuded. Steere v. Steere, 5 J. C. R. 1; Abeel v. Rad. cliffe, 13 J. R. 297; Dillayev. Greenough, 45 N. Y. 445; Manice v. Manice, 43 id. 370; Knox v. Jones, 47 id. 389; Beekman v. Bonsor, 23 id. 298.
Third. The objects or persons intended to have the benefit of the recommendation or wish must be certain.
A cestui que trust need not be descri by name; auy designation by which he may be identified is enough (id certum est quod certum reddi potest"), as e. g., a person who shall officiate as minister of a certain church who might be a different individual every year. The legatee need not be ascertained at the testator's death; it will be enough if he can be determined when his right to receive it accrues. Stubbs v. Sargon, 2 Keen. 255, affirmed 3 M. & C. 507; Holmes v. Mead, 52 N. Y. 343, and cases cited. Since it is an invariable rule that a court of equity will never attempt the exercise of discretion for a party, it follows that though the defective execution of a power may be aided, its non-execution will not be (unless in the case of a power in trust since the R. S.), but in the former case the "three certainties" must here likewise conSee Beekman v. Bonsor, ut sup. Though as we have seen a court of equity in general has no jurisdiction over a will unless it contains a trust express or implied, yet a will might, while not creating a trust, still be proof in writing of one already created, and existing at the time of the execution of a will. But if
the validity of such a trust depended on the effect of the will in transferring the title to the property, the will could not be used in evidence unless it were valid as a will and executed according to the statute. Alter's Appeal, 67 Penn. St. 344; Anding v. Davis, 38 Miss. 574; 1 Perry on Trusts, § 90. See the remarks of Lord Loughborough in Habergham v. Vincent, 2 Ves. Jr. 209; Dewin on Trusts, 66 (2 Am. ed.); Addington v. Cann, 3 Atk. 151; see also In the Goods of the Countess of Durham, 3 Curteis, 57.
The doctrine of equitable conversion ("equity regards that as done which ought to be done") as applicable to testamentary dispositions will be found well illustrated in 23 N. Y. 69; 43 id. 424; 52 id. 47. In such cases where the bequests are in money, the property sufficient to pay them is to be deemed converted into personalty, and questions respecting devises of real estate do not occur. The cy-pres doctrine of the English chancery courts is now considered to be no part of the equity powers of American courts, the view being taken that it was exercised in England by the chancellor by virtue of the royal prerogative, under the sign manual merely as representing the sovereign as parens patrice. Although evidence dehors the will is not admissible to vary or control its terms, yet it is permitted to be introduced to explain a latent ambiguity, since as the intention in a will prevails over the words, a court of equity has jurisdiction to correct them when they either are evident on the face of the will or appear on a proper construction of the terms employed.
But such a mistake must be clear, or in the case of an omission be clearly deducible from an examination of the structure and scope of the will considered as au entirety. So mistakes in computing legacies have been rectified in equity, and errors in naming or describing legatees, or clear errors in descriptions of property intended to be bequeathed.
Mistakes of fact will be corrected; as if a testator revokes a legacy to A., stating as a reason that he is dead when in fact he is living. But a mistake of law in general will not be; as where a woman gave a legacy to a man describing him as her husband, and as a question of law the marriage was void, he having a former wife still living. In such a case the bequest has been declared void.
However cases may arise where a similar question may be regarded as one of fact, as where it depended on an honest belief by both parties that the busband of the woman was dead, based upon reasonable inquiry though he was in fact living. Pitts will case, 5 Jur. (N. S.) 235.
But the American courts of equity have never gone to the same extent as those of England in correcting these alleged mistakes, and undoubtedly many of the celebrated cases of this kind reported in the books would not be followed in American courts. On this subject Mr. Justice Story well remarks that "the extent to which English equity courts have sometimes carried this branch of their remedial powers has more the appearance of making men's wills as they probably would do if now alive, than carrying them into effect as they were in fact made." Story Eq., § 180. The jurisdiction of courts of equity over legacies grow8 out of their general jurisdiction over trusts. The limits of our space will not allow of any extended consideration of this branch of our subject. Much that has been said in respect to trusts is of course equally applicable here. An executor quoad legatees is a trustee, and a court of equity can therefore enforce the payment of a legacy, if there are sufficient assets, without regard to the assent of the executor. Code Civ. Pro., § 1819; see Bevan v. Cooper, 7 Hun, 117; S. C., 72 N. Y. 317, overruling Am. Bib. Soc. v. Hebard, 51 Barb.