pleaded that the paper was not duly executed in accordance with the stat. 1 Vict. c. 26. In the first instance she gave notice that she only intended to crossexamine the witnesses produced by the plaintiff, but before the hearing such notice was withdrawn.

William Edmonds the plaintiff, gave evidence that he cohabited with the deceased in Copenhagen-street: that the will was written out in accordance with her instructions: that she made her mark to it, but that one of the attesting witnesses, Charles Tubbs, did not add his mark until some hours afterwards: that subsequently the plaintiff shipped himself as seaman on board her Majesty's ship Miranda; and that in April, 1854, whilst the ship was lying at Sheerness, Mrs. Edwards visited him, and having ascertained that the first execution of her will was invalid, she produced it, and acknowleged her mark in the presence of two seamen of The Miranda, who thereupon added their marks as they appear on the will: that he, plaintiff, kept the will, and The Miranda having been ordered to the Black Sea, he accompanied it, and carried the will about with him through the Crimean war: that both the attesting witnesses died during the war: that when with his ship at Malta, on his way home, he first saw the advertisement about a will, and first learnt of Mrs. Edwards's death.

!' ,'

Mr. Hampton gave the following account of what took place at Sheerness: He stated that in the year 1854, he was the master-at-arms on board The Miranda: that in April of that year it was lying in dock at Sheerness, and William Edmonds was a carpenter

on board of her that the men at this time dined on

shore in a large loft in one of the buildings of the dockyard: that it was his (Hampton's) duty to attend at the dockyard-gate at the dinner hour, and pass in the wives and visitors of the seamen that he could pass in anybody he liked; sometimes there would be ten or twelve visitors, and sometimes not more than five. He recollects a female one day in that month asking if Edmonds was in the ship, and if she could see him. He passed her in on that occasion, and frequently afterwards. It was his duty to write down the names of the visitors, and she gave the name of Edwards. One day she had a paper in her hand. He went with her into the loft. Edmonds was there and the two men whose names appear on the paper as witnesses. He remembered the circumstance, because he had to get leave for the men to remain in the loft after the usual hour.

Twiss, Q. C., and Clarkson appeared for the plaintiff. t Tristram, for the defendant.

Sir J.P. WILDE.-I am not bound to give an opinion

whether or no in this case a fraud has been committed.

According to the laws of England, the property of a deceased devolves at his death on his nearest relations, and those who claim to interfere with this devolution must prove that there is a will, duly executed by the deceased. The question, then, is, whether or not the evidence warrants my saying that there is produced a will duly executed by Mrs. Edwards. Now, every word of the paper propounded, from the first to the last, is in the handwriting of the person who takes almost the entire property. Moreover, he carries it about with him for years, even after the death of the deceased (Mrs. Edwards having died in 1855), and it is now only offered for proof. The person signing the will and all the attesting witnesses are marksmen; and, as I said before, there is not a scrap of writing on it, except by the person most materially benefited. There was a rule in the Prerogative Court, which, like most of the rules there laid down, was founded on good sense, that the custody of a testamentary paper

papor

is a material ingredient in the proof. If the paper were not found in the proper custody, the Court wa most unwilling to grant probate of it as a will, unles the signature was proved to be in the handwriting of the deceased by a competent person; and even if the handwriting were proved, but the paper came or of a wrong custody, and other suspicious circumstats occurred, it would refuse probate. In this case the paper comes out of the pocket of the person whos chiefly interested under it. Again: when the fa first asked for probate, he made an affidavit, it he swore that Charles Tubbs was present who de ceased put her mark to the document, and that it vs then duly executed. This was a positive oath, z made in a hurry, for the affidavit was not sworn te some years after the death of Mrs. Edwards. In b evidence the plaintiff admitted that Charles Tucs was not present, and did not put his mark to the until some hours after the deceased had done so. 1: is true, as has been pointed out, that in a second añdavit he admitted that the execution was insufficient. but nevertheless, in the first instance, he swore whit was not true. There were also other facts stated tý him, in which he was contradicted by Hampton. As to the evidence of execution, it is not now contended that the first execution was valid. As to that at Sheerness, if I could be satisfied that the person who went into the loft was the Mrs, Edwards, the deceased in this cause. I should be willing to accept the timony of Hampton as to the execution. But on the point the evidence entirely fails. If the will be a forgery, nothing could have been easier than to b forward some woman to personate Mrs. Edwards, and to get two messmates to put their marks to the paper I am bound to see that the woman who professed execute the paper was in fact the testatrix, but I ba no evidence to that effect, except from one who be on two points been directly contradicted. The dence fails, and I must pronounce against the

paper

Nov. 21.-A rule nisi having been granted on t application of Twiss, Q. C., for a rehearing of th cause, it was to day opposed by

Tristram, for the defendant; and supported by
Twiss, Q. C., for the plaintiff.

hearing, on the ground that additional evidence Sir J. P. WILDE.This is an application for a forthcoming. Now, additional evidence can only admitted after a cause has been heard and disposed..... when it is shewn that the party at the trial was in se way taken by surprise. That is the only proper g for such an application. The plaintiff alleges that was not aware he would have to prove the identity the person executing the will, and no other ground surprise is suggested. I think he should have beɛ been given why the witnesses, whose evidence is aware that such proof was requisite. No reason tendered, were not found earlier, and it is a rule the where fresh evidence is offered after trial, the Co before it admits it, shall be satisfied that it could have been reasonably expected that such eve would be wanted at the hearing, or that it could n have been obtained at that time. Neither of thes grounds is made out in this case, and I therefore refix to order a rehearing b

二

COURT OF CHANCERY.

JONES v. LOCK.-Nov. 20 and 21. Imperfect gift-Trust-Parol declaration— Volunteer. A father placed a cheque in the hands of his infant son, and said, "I give this to him for himself, I am going to put it away for him, and will give him more. then locked up the cheque, and a few days afterwards died-Held, under the circumstances, that there was neither a complete gift to, nor a binding declaration of trust in favour of, the infant.

He

A parol declaration of trust may, in the absence of fraud be perfectly good, and when it amounts to a trust executed, it will be enforced in equity, although in favour of a volunteer; but an imperfect gift will receive no aid from the Court.

The dictum attributed to Lord Cranworth in Scales v. Maude (6 De G., Mac., & G. 51), that a mere declaration of trust in favour of a volunteer is invalid, corrected by his Lordship.

This was an appeal from a decision of Sir J. Stuart, V. C., allowing a claim made in the course of an administration suit on behalf of the infant son of the testator, under the following circumstances:-Robert Jones, the testator, was an ironmonger and general dealer, residing at Pembroke with his wife and an only son, an infant of nine months' old. In the autumn of 1863 he went to Birmingham on business, and returned home on the 12th or 13th September. Immediately after his return, as appeared from affidavits made by his widow and the nurse of the infant, he was in the kitchen with his wife and infant and its nurse, when the latter said, "You have come back from Birmingham, and have not brought baby anything." Whereupon the testator replied, "Oh, I gave him a pair of boots, and now I will give him a handsome present." He then went up stairs, and brought down a piece of paper, and said to the nurse, in the presence of his wife," Look you here, I give this to baby. It is for himself, and I am going to put it away for him; and will give him a great deal more than this along with it." This piece of paper was a cheque for 9001. The testator then placed the cheque in the baby's hand; whereupon his wife said, "Don't let him tear it;" but the testator replied, "Never mind if he does tear it, it is his own, and he may do what he likes with it." Having, however, taken the cheqne back, he said to the nurse, "Now, Lizzie, I am going to put this away for my own son ;" and he then took it up stairs and locked it in an iron safe, where it was found after his death, which took place suddenly, a few days after, on the 21st September.

It appeared, from the affidavit of Mr. Lock, the testator's solicitor, who was also the executor of his will, that the testator received the cheque in question in the same month of September, on the payment off of a mortgage to him, and that he expressed his intention of adding 1007. to the 9007., and investing it for the benefit of his infant son; and that on the 19th September the testator said to Mr. Lock-"I shall come to your office on Monday to alter my will that I may take care of my son." On that very day the testator died, and Mr. Lock subsequently found the cheque in the testator's iron safe, and procured payment thereof as executor.

It did not appear whether the cheque was made payable to "bearer," or to " order."

The will of the testator contained no provision for his infant son, and the bill was filed by his widow, who took an annuity under it, for administration of his estate. Under these circumstances a claim was made on behalf of the infant son by his mother, on the No. 569, VOL. XI., NEW SERIES.

ground that the testator was indebted to him in the sum of 9001.

His Honor the Vice-Chancellor was of opinion that what had taken place amounted to a conclusive declaration of trust by the testator in favour of his infant son, and from that decision the beneficiaries under the will other than the mother now appealed.

Bacon, Q. C., and Waller, for the appellant.-The testator has neither effectually given the 9001. in question to his infant son, nor constituted himself a trustee thereof for his benefit. Upon the authorities, it is not enough that the intention of the donor should be clear; the gift itself must be unambiguous; and when a claim is made by a volunteer, the Court will require either a perfect and complete gift, or else such a declaration as would consti

tute the donor a trustee for the donee from the moment he made it. (Antrobus v. Smith, 12 Ves. 39; Edwards v. Jones, 1 My. & C. 226; Dillon v. Coppin, 4 My. & C. 647; Dipple v. Corles, 11 Hare, 183; Hughes v. Stubbs, 1 Hare, 476; Smith v. Warde, 15 Sim. 56; Paterson v. Murphy, 11 Hare, 88, 91). The observations of Lord Justice Turner in Milroy v. Lord (8 Jur., N. S., 806, 809) are much in point:-"I take the law of this Court to be well settled, that in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon him. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol." A dictum inconsistent with the law as here laid down is attributed to your Lordship in Scales v. Maude (6 De G., Mac., & G. 51; 1 Jur., N. S, 1147), where your Lordship is reported to have said that a mere declaration of trust in favour of a volunteer would be inoperative; but a doubt is thrown on the genuineness of this dictum in the note to Ellison v. Ellison (1 Wh. & Tud. L. C. 215). [Lord Cranworth, L. C.-The dictum attributed to me in Scales v. Maude probably had reference to the special circumstances of that case, and is clearly wrong as a general statement of the law. I have no reason to doubt that the case is correctly reported, and I think the decision itself is perfectly right; but I am glad to have this opportunity of repudiating the dictum in question, for there is no doubt that there may be a valid declaration of trust in favour of a volunteer.] The present case rested upon the account given by the mother and nurse of a certain conversation; such must always be imperfect testimony, for so much depends upon a correct report of the words. Even, however, upon the evidence as it is, the testator could not have intended to deprive himself of all control over the 9007. in question.

Malins, Q. C., and Bird, for the infant, supported the decision of the Court below.-The testator had married a second time, and when the transaction took place, he had made no provision for his only son. His object was to make a provision for him, and he could do so either by a gift or a declaration of trust. The cases cited mostly proceed upon the principle that property requiring particular formalities for its transfer cannot be passed without such formalities. It is settled that a parol declaration of trust is perfectly valid, even though made in favour of a volunteer. (Macphadden v. Jenkyns, 1 Ph. 153; S.C.,

uu

that in the winter months the morning sun shone over the wall into the plaintiff's garden, and that its rays struck the window about eleven o'clock, and continued to illumine the back room until about half-past

Оце Р.М.

In the month of September, the defendant began to erect in his garden photographing rooms of wood and glass, with a covered way thereto. These buildings were situate at a distance of 3ft. from, and were parallel to, the garden wall, and were ultimately carried to heights varying from 4ft. 6in. to 11ft. above the garden wall. Soon after the commencement of the works, Mr. Keddell, being apprehensive that these erections would affect the access of light and air to No. 28, after fruitlessly applying to the defendant, requested the plaintiff to protect him in the enjoyment of his light, and threatened to quit the premises unless the obstructions were removed. The plaintiff then filed the present bill, and moved for an injunction, before Vice-Chancellor Kindersley, as vacation judge. This motion was subsequently turned into a motion for decree, and coming on to be heard before Vice-Chancellor Wood, his Honor, on the 7th July, made the order now appealed from, granting an injunction to restrain the defendant from erecting, or allowing to remain on his land, any building, so as to prevent the free access of light to the plaintiff's house, in the same manner as such light had been enjoyed by the occupiers thereof before the erection of such buildings.

The defendant appealed from the whole decree. The evidence upon which his Lordship founded his judgment will sufficiently appear therein.

Giffard, Q. C., and Everitt, for the plaintiffs, contended that the buildings of the defendant obstructed the access of light to the plaintiff's ancient window, affected the comfort of the inmates of the house, and lessened the value of the plaintiff's property. [They cited The Attorney-General v. Nichol (16 Ves. 338, 342); Wilson v. Townend (1 Drew. & S. 324; S. C., 6 Jur., N. S., 1109); Johnson v. Wyatt (2 De G., J., & S. 18; S. C., 9 Jur., N. S., 1333); and Jackson v. Newcastle (10 Jur., N. S., 688).]

Amphlett, Q. C., and T. H. Terrell, for the defendant, maintained that the erection of the defendant's buildings could not materially affect the comfort of the occupiers of the plaintiff's house, but at the most would merely render the back room less cheerful. The only case in which an injunction was ever granted, on the ground of mere interception of sunshine, was one before Vice-Chancellor Stuart, where the plaintiff was a working jeweller, and required direct sunshine for the purposes of his trade. [They referred to Isenberg v. The East India Company (10 Jur., N. S., 221); Lawrence V. Austin (ante, p. 576); Durrell v. Pritchard (Ib.); and The Curriers Company v. Corbett (Id. 719).]

Giffard, in reply, referred to a dictum of Lord Justice Knight Bruce, when Vice-Chancellor, in Walter v. Selfe (15 Jur. 419), cited in Soltau v. De Held (2 Sim., N. S., 159), where the Vice-Chancellor said the real question was, 66 Ought the inconvenience complained of to be considered in fact as more than principal, or as one of mere delicacy or fastidiousness; as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to the elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among the English people;" and contended that this case came within that test.

Cur, adv. vult.

Nov. 25.-Lord CRAN WORTH, L. C.-The question is, whether there has been such an interference with the light and air reaching the plaintiff's house as to cause material annoyance to those who occupy it. Questions

on this subject are generally questions of degree, and are therefore very difficult to deal with. All which can be done is to attend to the special facts in every case as it arises, and then to form an opinion as to whether the obstruction complained of is such as to deprive the complaining party of such a supply of light and air as he might reasonably calculate on enjoying. It is impossible to treat these as mere abstract questions; much must turn on the nature and locality of the windows, the supply of light to which has been interfered with. Persons who live in towns, and especially in large cities, cannot expect to enjoy continually the same unobstructed volumes of light and air which fall to the lot of those who live in the country. The steady spread of buildings in and round large towns gradually but surely obstructs some of the light and air which the houses in the interior of the place formerly enjoyed. And in estimating the damage, if any, occasioned to the plaintiff, we must not omit this consideration, that the place in which he complains of obstruction to light and air is in a large and populous city. With these observations, let us see what the evidence is. [His Lordship then described the situation of the windows in question, and continued:]-The effect of the defendant's buildings is to prevent the direct rays of the sun from falling on the window until they have ascended high enough to shine over the new buildings. It is not suggested that in the light months of the year this occasions any material obstruction of light, but the complaint is of what happens in the winter, when the height which the sun reaches is so much below what it attains in

summer.

The nature and extent of the annoyance is fully described by the inmates of the house.

The buildings having been erected in September, 1864, Mr. and Mrs. Keddell, their daughter, and a maid servant, all made affidavits in October, and they all deposed that there was a considerable diminution of light occasioned by the defendant's buildings; and Mr. Keddell stated that he expected to lose the sun during most of the winter days, and to be deprived of much light on cloudy days, and he added, that in the winter he would be unable to read and write as he had been used to do.

This was the evidence given very soon after the bill was filed, with a view to a motion for an injunction..

In the month of February, 1865, Mrs. Keddell and her daughter made a further affidavit, which is of great importance. They had then the means of forming an opinion, by experience, of what the effect of the buildings was during the three dark months of the year, i. e. the months of November, December, and January. What they say is this:-That during these three months, on days when the sun shone, a very small ray of sunshine came into a corner of the parlour at about eleven o'clock for about twenty minutes, and that no further sunlight came into the room until about one o'clock, when a slightly larger ray of sunlight came into the room for a further period of about twenty minutes.

This was the state of things since the erection of the buildings, whereas during the months of November, December, and January in former years, the sun used, they say, to shine into and illumine the whole of the parlour from soon after eleven o'clock until about half-past one P. M. They add, that the room has been very considerably darker than it formerly was on days when the sun shone as well as on those days when it did not shine.

Mr. Keddell, though he made an affidavit in the month of April, said nothing as to what, according to his observation, had been the effect of the buildings on the light in the room during the past winter.