
    Tucker &c. vs. Tucker’s Exors.
    
      In Canc.
    
    Barradall Fr the Pit.
    I apprehend it to be pretty clear from the Words of this Clause that the Tes’tor intended Mr. Walker’s Children should stand in the place of one person from the manner of his expression for why should not he have named them particularly as he does the Cookes & Tuckers if he designed each of them the same Share
    But when the whole scope of the Will is considered The Answer [95] of Boush one of the Defts. who wrote the Will & other Circumstances attending this Case I hope the Tes’tors Intention will appear very clear to give no more than a fifth part to them
    It will be agreed I presume that in Devises concerning Chattels or personal Estate parol proof 8c collateral Circumstances may be admitted to explain a Tes’tors intention that appears doubtful from the words of the Will
   The question was upon these Words in the Testator Tucker’s Will “ I give all my ready money and outstanding debts to be “ equally divided between Robert Tuckor, John Tucker, John “ Cooke, Robert Cooke 8c Mr. Jacob Walker’s Children And in “ Case any of Mr. Walker's Children die before they come of “ Age that their parts go to the Survivor of them “ Children.”

Whether Walkers Children who are four in number shall have each of them an equal Share with the Cooks 8c Tuckers or only one Share among them

The Cases to this Purpose are numerous 2. Vern. 99. Pring & Pring . . . 252. Countess of Gainsborough ag’st E. of G. . 506. Oldham ag’t Lichford 517. Pendleton ag’t Grant.. 593. Cuthbert ag’t Peacock. 648 Lady Granvil & al vs D — ss of Beaufort. 673. Wingfield ag’t Atkinson. 675. Ball ag’t Smith & Littlebury & Buckley there cited. Mod. Ca. L. & Eg. g. Rachfield & Careless. Doyrell &Molesworth Ch. Ca. Abr. 231. 3.

These Cases proove that parol Proof & collateral Circumstances are admitted not only to explain but sometimes to controul the meaning of words in a Will.

a. Parol evict, never admitted to contradict express words Talb. 242.

Now the Proof & Circumstances in this Case are 1. that the Writer of the Will Boush one of the Defts. apprehended the Tes’tors meaning to be to give only ^ to Walker’s Children & he gives such reasons for it as I think must convince everybody else viz. that the Mother of these Children who was dead at the time was but in equal degree with the other Legatees She was the Sister of the Pits. And because if they were to have half they would have more than A of the whole Estate And because Tes’tor did not think of making Mr. Walker his Ex’or till put in mind

I must dwell a little upon each of these reasons

1. That the Mother was but in equal degree with us. It is a natural & reasonable Presumption that a Man has the greatest Affection & regard for his nearest Relations Upon this ground it is that an heir shall not be disinherited without express & plain words which is a known rule of Law And upon the same ground I conceive it is just to suppose In the disposition of Personal Estate a man would have an equal regard to his Relations' in the same degree unless there appeared to have been some cause of disgust where his intention is very plain. In this Case the Legatees the Cookes & Tuckers were the Tes’tor’s Nephews Mr. Walker’s Children his Niece’s Children & their Mother dead From this Circumstance no man would conclude the Tes’tor had a greater regard for his niece’s Children than his Nephews who are nearer in Relation [96] Especially as in this Case there was so far from being any quarrel or dislike towards the Nephews that from the whole scope of the Will it will appear he had it principally in his intention to prefer them & one of them the Pit. actually lived with him And I think I may venture to say the words are far from plain to give each of Walker’s Children an equal Share but rather the contrary

2. Reason assigned by Boush is that if Walkers Children have half the ready Money &c. they will have more than an equal Share of the whole Estate Whether it is reasonable to suppose from the Scope of this Will that the Tes’tor could intend to advance these Children so much more than his Nephews I must beg leave to observe a little upon the Will The Tes’tor never once takes notice of Walkers Children Except in the Devise now before us Whereas he speaks of his Nephews in several places gives them several Legacies & makes them Residuary Legatees Which I think is a plain Proof that he had it more in his intention to advance them than Walker’s Children whom he only once names

3. Reason is that he never thought of making Walker Ex’or till put in mind which is a further Argument that he had not his Children so much in view or the advancement of them as of his Nephews Some of whom are of his Name

If it be objected that what Mr. Boush Swears is only his Opinion I answer it is something more he was the Writer of the Will And one who takes Words from the Mouth of another to commit to writing may from the way & manner of the party’s expressing himself be a better judge of what he means & intends than any person can possibly be who reads the words afterw’ds And Boush says when he wrote the Will he did believe the Tes’tor intended no more than -Jth for Walkers Children So that this is certainly something more than a bare Opinion & I dare say will be considered as a strong circumstance at least to prove the Tes’tor's intention That the Writer of the Will at the time he wrote it apprehended the Tes’tors intention to be so

Thus we have not only the Evidence of the Writer of the Will but the other strong circumstances viz. The intention of the Tes’tor from the whole Scope of the Will The true rule for construing all Wills The inequality this will occasion contrary to the presumed rules of Affection

And on the other hand I dont know one Circumstance that can be offered on the other side to fav’r the construction they contend for There could be no inducement from the Circumstances of the Children’s father to provide so largely for them Mr. Walker is very well able to provide for his own Children The Children’s Mother was dead & we [97] may rather suppose his Affection was lessened from that Circumstance There is no proof of extraordinary Affection to these Children And the truth is he conversed but little with Mr. Walker whereas the Pit. lived with him So that I apprehend they have nothing to rely upon but the Words And I conceive the words may very well receive the Construction I contend for. The Word Equally may very well import Equal according to the Relation of the sev’l Legatees Especially as he has not mentioned the Children’s names but seems by the manner of the Expression to consider them as one P — son as the Representatives of their Mother

But if there is any doubt upon the words themselves The Testimony of the Writer The Scope of the Will & the other Circumstances which have been observed sufficientiy & I conceive incontestably shew the Tes’tor’s meaning.

P. the Deft.

It was insisted that the word Equally could not be satisfied unless the Children had each of them a Share That it was the genuin construction & the Tes'tor could not have expressed himself in any other manner to give it them

That there was no difference between naming the Children & not That there were no Cases where parol proof or Circumstances were admitted to influence Construction of a Will but to make certain a person or thing Cole & Rawlinson 1. Salk. 325. Cary & Bertie 2. Yern. 337. Rachfield & Careless Mo. Ca. L. & Eg. g. were cited

That there were Circumstances in their fav’r Tes’tor might intend a provision for his Nieces Children In case Walker married again The Tuckers had good fortunes from their father Uncertain what Walker might do for his Children

There were also cited these Cases Weld & Bradbury 2. Vern. 705 Devise to the Children of I. S. & T. N. who had neither of them any living at time of Devise or Tes’tor’s death Adjudged Children born afterwards should take & that per Capita not per Stirpes.

Walsh & WalshCh. Ca. Abr. 249. Ahad three Brothers all died before him leaving several Children Adj’d Children should take per Capita not per Stirpes Because do not take by way of Representation but all as next of kin

And a Case out of Swinburn where a Father & his Children were made Ex’ors & Residuary Legatees And held that each of the Children should have a Share

Et Vide Pres, chan: Warner v. Hone & Talbot, 251, Thomas v. Hole.

To which it was Answered

Admitting the word Equally ex vi termini imports that each shall have the same Part Yet here we are in the Case of a Will where the Intention is to govern without regard to the precise & strict Signification of the words And the q’n here is Whether the Tes’tor did not consider [98] Mr. Walkers Children collectively as representing their Mother In that view the word Equally may very well be satisfied by giving them a a 5th The Matter depends upon the meaning & intention of the Tes’tor

See Skinner 182.

The Children not being particularly named is certainly an Argum’t that the Testor considered them collectively tho’ if they had been named it would have made but little in fav’r of their Argum’t

It is strange it sh’d be say’d there are no Cases where parol proof is admitted but to make certain a person or thing After so many have been mentioned which prove the contrary viz. that it is admitted to explain a Tes’tor’s meaning But admitting it to be so we are within the Distinction we are here endeavouring to ascertain the person in some sort Cole & Rawlinson & Cary & Bertie are upon a Devise of Lands where I agree parol proof is not admitted The reason of which is the Statute And in Rachfield & Careless it is only say’d no Evidence shall be admitted where the Will explains itself which admits that Evidence may be where the Will wants explanation And tho’ such proof is not allowed to a Jury It is always allowed to the Court in Equity Ch. Ca. Abr. 230. in Notis.

The Circumstances relied on in their fav’r are forced & meerly conjectural & no great complim’t to Mr. Walker as to Tuckers having good Fortunes That is not the Case of the Cookes but probably he intended to keep up his Name & family

Weld & Bradbury was cited I suppose because there happens to be the words Stirpes & Capita in it for it is nothing like this Case

The p’son to whose Children the Devise was had none living at the time of the Devise and therefore it was held an Executory Devise to such Children as they should afterwards have And the Children to take per Capita. There was nothing in the Case to shew he intended otherwise & without doubt in a general Devise to a Mans Children they shall take equally which is all the Case cited out of Swinburn prooves

Walsh v. Walsh is still less to the purpose The Quest, there was upon the Stat. of Dist. A man had three Brothers who all died before him & all left Children And it was held the Children sh’d take per Capita being all in equal degree of Relation There they did not take by Representation all their fathers being dead but if one had been living it had been otherwise

In the Case of Godwin v. Kinchens Ex’ors heard in this Court in April 1738 the Devise was thus “ All the rest of my Estate I give to my Brother W’m Kinchen & my three sisters Eliza. Martha & Patience & James Godwin’s 3 Children James Martha & Matthew. And it was held and so Decreed that Godwin’s Children took collectively and had but a 5th.

Vide. 2. Will. 383. Bladder v. Webb seems contrary to this Case.

[99] And so in this Case after two Argum’ts it was decreed for the Pits, that Walker’s Children took collectively & were intitled only to ■§• among them

But note this Decree was reversed upon an Appeal And chiefly as I have been informed by reason of the Word (Parts) in the Lim over to the Surv’r of Walker’s Children  