in equity against the heir, it was a defective title; that none of the witnesses that had been examined for the will could be read against the heir, who in this case was probably adversary, and offended by the will; or else it might be reasonably presumed that he would, though beyond sea, have been prevailed on to put in his answer to the bill; but that the heir might watch for an opportunity till the witnesses to the will should be dead, when he would contest the will," and take steps to have it set aside. Then the Lord Chancellor King says: "It is very proper that a will, disposing of lands, should be proved in equity, especially in the case of a modern will; but I cannot say this is absolutely necessary to make out the title, any more than it would be to prove a deed in equity, by which the estate is settled from the heir at law after the ancestor's death. The will prevents and breaks the descent to the heir as much as a deed, and the hands of the witnesses to the will may be as well proved as those to a deed." Then he says: "Now, as it would be no objection to a title if a modern deed on which the title depended was not proved in equity, why should it be so in the case of a will, where the same appears to be duly attested by three witnesses, whose names are mentioned to have been subscribed in the presence of the testator?" and then, on some particular grounds in that case, leaving the general point, whether a purchaser might make such an objection, not entirely decided, he came to the conclusion that there the purchaser could not make the objection. Now it is very remarkable here that, if the heir had been [92] a party to the original suit for carrying the trusts of the will into execution, the will would have been established against him. Yet throughout the report the question is treated as one of "proving the will in equity," which is the expression usually applied to a bill for perpetuating testimony; and therefore no light, it appears to me, is thrown, in either of these cases, upon the principle on which the Court assumes the power of establishing the will as against the heir, as distinguished from the mere case of perpetuating testimony.

It is extremely difficult, as a matter of principle, to see what equity arises against an heir, from the circumstance of the will being a devise in trust, instead of being a mere simple devise. First of all, in no other case of a trust does any such question arise as the Lord Chancellor observed in Colton v. Wilson (3 P. Wms. 190). No deed is ever required to be proved on account of the heir taking, if the deed be invalid. Take the common case of an heir taking in default of appointment, with an ultimate limitation to the right heirs. Nobody supposes that the heir can be brought here to litigate the question whether or not the appointment be a valid appointment. Upon what ground, therefore, is it that, instead of simply perpetuating testimony, this Court establishes the will against the heir whenever there is a devise of this description? The devisee, although he be a devisee in trust, is quite capable of bringing an ejectment if he be out of possession. He is capable of filing a bill to perpetuate testimony if he be in possession. The circumstance of there being a trust or no trust makes no difference in his position with reference to the heir. Can I safely say that this Court assumes jurisdiction against the heir in cases in which it has not the jurisdiction on ordinary principles, from the fact of the devise, only because, that devise being a trust, this Court is called upon to exercise it? I apprehend that the mere fact of this Court being [93] called upon to execute a trust could not give any jurisdiction against the heir, as to whom the whole question of trust is a matter of perfect indifference. All that he has to try is devise or no devise. The question of what is to be done under that devise by the devisee with the estate which he so takes, cannot be a question which in any way, as it appears to me, can possibly raise -looking at it on principle alone-an equity against the heir. But I can very well understand, if every devisee have an equity against the heir, not only to have the witnesses examined, but to have a declaration of the Court, if he thinks fit, that the bill be established against the heir, why a Court of Equity will say: "If you come into this Court to carry into effect the trusts of the will, and require this Court to aid you for that purpose by sales or otherwise, we will insist upon your doing that which, as devisee, you are entitled to do, in order to establish the will against the heir, and conclude the matter at once as between all parties in the litigation." The case does not always arise upon a sale. It may arise on any other trusts that may be carried into effect; and the Court may in like manner say that, if a devisee have a right to file a bill to establish a will against the heir, the Court will take care that whenever

the devisee comes to carry into effect the trust, he shall make the trust effective and complete by taking to himself all those rights which a devisee is entitled to exercise; and that the Court will insist, therefore, on his bringing the heir here in order that there may be a complete and final decree, quieting the whole question between the heir and the devisee under the will. Again, it seems to me impossible to assume that the origin of this equity is from the Court experiencing a difficulty in executing the trusts, because, if that be right, in every case in which the Court feels a difficulty, and it frequently does in other cases, as in the one I have put of an appointment and the heir taking in default of an appointment, then in that and all other such cases there [94] ought to be the same equity. If, again, the ground of equity be, as might be suggested, and as it seems to be thrown out faintly in some of the authorities, that the trustee has a right to the protection of the Court in executing his trusts, then I cannot at all account for another and a totally separate class of cases, in which the will may be established against the heir, namely, where there is an outstanding legal estate, and no trust to be executed by the Court, but simply an obstacle to be removed in the way of the devisee in respect of establishing his title. Unless there be an original inherent equity in the devisee to have his right tried against the heir, the proper course, where the only difficulty is an outstanding legal estate, would be to remove the obstacle of the outstanding legal estate, and to leave the devisee to bring his ejectment, and not to establish the will as against the heir.

I have now been considering the question simply on principle; and I confess, as far as principle is concerned, that I cannot see any possible reason for Courts of Equity granting this particular variety of relief against an heir, either on the ground of the parties wishing the trusts to be executed, or on the ground of the difficulty that may be occasioned to the Court. I may observe, in addition, that the two things are entirely separate. The heir has nothing whatever to do with any of the trusts. After an issue is found against the heir I apprehend that the parties may either stay all proceedings against the cestuis que trust, if they are not further minded to carry into effect the will, or dismiss the cestuis que trust from the proceeding, still retaining the decree which establishes the will against the heir. I do not see what is to prevent their so doing. Again, suppose the case of a devisee in fee, subject only to a trust to raise a given sum of money, and to apply it for a certain purpose-say to raise the money immediately and to invest it in the funds, and a declaration [95] that the money so invested in the funds should remain until A. B. attained twenty-one, and then that A. B. should be entitled to the charge, such charge to be immediately raised, but being in one sense contingent-and suppose that, the heir disputing the will, an issue is directed, and it comes back to this Court, and at the hearing it appears that the party entitled to the charge has died under twenty-one, I apprehend that in such a case as that it would be very strong to say that such a bill must be dismissed, and that you cannot proceed further, because the trust that remained to be executed is gone, and the party is left with the legal estate; and I do not see any ground or reason for it. The heir has nothing to do with the trust. The moment that the will is established against him he ceases to have any interest in the case; and there are, on the one hand, frequent instances, even before the late rules, of this Court carrying into effect the trusts against the heir, where he is abroad, or where the Court thought the will not sufficiently proved. And, on the other hand, there are, as I shall presently state, cases where the will was established against the heir, and no trusts directed to be carried into execution.

I have been trying this question on principle hitherto. I quite agree with Mr. Russell that one must not allow oneself to reason on principle against the decided stream of authorities. Mr. Russell stated that there was not to be found an instance of any decree in this Court establishing a will, which did not proceed also to direct a trust to be carried into execution. Now it is a remarkable circumstance that one of the most recent cases has been a case exactly of that description, and one which seems to have been considerably discussed at the hearing, not certainly on this ground, because this ground was not raised; but considering who were the learned Judges before whom that case went, I cannot conceive that it could have escaped their

attention.

[96] I am now considering the question of whether or not there has been such a V.-C. XIV.-2*

constant course of practice by this Court that it must be considered to have been established on principle that you can never have a decree of the Court for establishing the will without at the same time directing the trusts to be carried into execution.

Now, the case of Grove v. Young (5 De G. & S. 38) arose out of Grove v. Bastard, before Lord Cottenham (2 Ph. 619), Lord Cottenham having expressed his opinion, to which I shall have occasion to refer presently, that the purchaser could not be compelled to take the title, without the will being established against the heir of the testator. The bill was then filed in Grove v. Young to establish the will against the heir. In that case there was a devise to trustees to sell, and the original bill brought the parties interested under the trusts of the will before the Court, and the bill originally prayed in this manner, as appears from the original papers, which Mr. Rasch has been good enough to send me: "That the said will of the said C. M. Young may be established by a decree of this honourable Court, and that (if necessary or proper) the trusts of the said will of the said C. M. Young, so far as such trusts still continue unperformed, may be carried into execution by and under the direction and decree of this honourable Court; and if the said Defendant shall not admit the said will of the said C. M. Young to be a valid will, then that an issue may, if necessary, be directed, or an action or such other proceedings as this honourable Court may think fit may be ordered to be brought or taken, for the purpose of trying the validity of the said will of the said C. M. Young, and that all proper and necessary directions may be given for effectuating the several purposes aforesaid." That of course would be a bill in the common form. But, however, before the hearing the bill was amended. The trustees alone were made parties. There still remained on the bill a state-[97]-ment that they were devisees in trust to sell, and there still remained a statement that they were embarrassed in the execution of the trusts, in consequence of the party not choosing to complete his purchase unless the will were established. But then it only prayed that the will of Young might be established by the decree of this honourable Court, striking out every word about carrying the trusts into execution; and then by amendment it was put: "And if the said Defendant shall not admit the said will of the said C. M. Young to be a valid will, then that an issue may, if necessary, be directed, or an action or such other proceeding as this honourable Court may think fit, may be ordered to be brought or taken for the purpose of trying the validity of the said will of the said C. M. Young." That case, in that general form, praying to have the will only established, originally came before the then Vice-Chancellor Knight Bruce. The trustees were in possession, and the heir, who does not appear to have been a very willing party to the litigation, had brought an action in which he had failed. The case is reported before Vice-Chancellor Parker in 5 De G. & S. 38. The report states: "This case came on for hearing before His Honour the Vice-Chancellor Knight Bruce, in December 1850, when the Court directed an issue at law to try the question raised by the Defendant." That was the original decree upon a bill not asking to have any trusts executed. This decree, therefore, cannot rest on any supposed equity of the Court, requiring for its own guidance an action to be brought. It can only rest on the general right of every devisee to file such a bill, or on the supposed equity of the trustee, he being a trustee, to have the assistance of the Court in carrying into effect the trusts of the will, which, for the reasons I have already stated, I do not think can be maintained.

But "on the 17th of December 1850 the heir asked [98] that the question might be tried at law in an action of ejectment; when the Court directed an action of ejectment to be brought by the devisees against the heir at law." And I have accordingly the note on Mr. Rasch's brief, which is entirely to that effect. The note is: "V.-C. K. Bruce, 17th December 1850. Decree to contain statements that the heir, electing between issue and action, elects action of ejectment; action of ejectment to be brought; declaration to be delivered on or before 1st of January next. In the action Plaintiff to admit testator's seisin and heirship of Defendant, and to call or tender George William Grove and Henrietta Martha Young, as the Plaintiff's witnesses." Therefore this was a case before Vice-Chancellor Knight Bruce in which no trusts whatever were required to be carried into execution, and, nevertheless, the issue was directed.

Then it came on again before Vice-Chancellor Parker (5 De G. & S. 38). The

question on that occasion was a question of costs, and the Vice-Chancellor says, “I am not prepared to go the length as to the costs asked by the Plaintiff. There is no doubt as to the general rule as to the costs of establishing a will against the heir at law. When a devisee comes to this Court, for his own benefit, to have a will established against an heir at law by a decree binding him, the heir at law is entitled to put the devisee to the proof of his title; and in an ordinary proceeding the heir at law has his costs." He refers in no way whatever to the circumstance of its being a trust, or that there were any trusts existing. The Court certainly did not direct execution of any trust; and there stands the decree in that shape, the case having passed through complete investigation before both those learned Judges.

Therefore it is quite plain that Mr. Russell's proposition, that there is no instance of a decree for establishing [99] a will without directing the trusts to be carried into execution, cannot be maintained.

With

As regards the question whether an equity of this sort exists, namely, an equity on the part of the trustee, being a trustee, to be protected in the execution of the trusts, and a peculiar sort of jurisdiction arising from that, and therefore a right to bring the heir at law here for the establishment of the will; I apprehend that the mere circumstance of the Court directing issues at the instance of devisees, where the sole difficulty is an outstanding legal estate, shews that there is not any equity on the part of a trustee calling on the Court to assist him; for an action would be always directed where the only difficulty is that of an outstanding legal estate. reference to that, there is the case of Berney v. Eyre (3 Atk. 387), which has been referred to in the course of the argument in this case, and in which it does not appear strictly on the face of the bill, though I think I must assume from the decree that the Court, for some reason, imagined there might be those outstanding legal difficulties. The record has been searched, and it does not appear that there was any allegation of an outstanding legal estate; but the bill prayed that an issue might be directed, and that outstanding terms might not be set up. An issue was directed in that case, and certainly that cannot have been at all with a view to the rights of a trustee for his protection, nor simply on the ground of the difficulty occasioned by those outstanding terms. The decree did direct an issue, and also that no outstanding terms should be set up-a singular direction in an issue, and which, perhaps, throws some degree of obscurity on that case as an authority.

But there is another case before Lord Manners, who, I apprehend, was extremely well-informed on subjects of [100] this description as to the jurisdiction and the general course of the practice of this Court that was a case of Blake v. Foster (2 B. & B. 387), which is a very complicated case in its facts, but the result may be thus stated: A remainder-man, under the will of the testator, who had mortgaged his estates (the legal estate was outstanding), after a vast amount of litigation with reference to the mortgage of the estates, and a foreclosure of the mortgage against improper parties, as he alleged improperly obtained, and after a long interval of time, became entitled in possession as a remainder-man, and filed his bill, first of all, to have redemption against the mortgagees, and then to have a declaration in his favour as against the heir at law of the testator. The Plaintiff contended that, under the circumstances of the case, the will ought to be taken as at once established.

It is unnecessary to go through the long detail of the case, but the contest about the will arose from the question whether or not the testator was a relapsed Papist. There had been a great many proceedings; and the bill having been filed after a long contest, the case coming on to be heard in 1813 upon a bill only recently filed, and the matter having been in litigation from the year 1750, of course great objections were made as to the time. The Lord Chancellor first disposed of the objection as to time on the part of the mortgagees who had got into possession, and had foreclosed against parties who, the Lord Chancellor held, could not bind the right of the Plaintiff; and then he comes to the case of the heir, and he says, "The next question is, can I now put this will in a course of inquiry in order to establish its validity? Each side has contended that, after such a lapse of time, no issue on the will ought to be directed; but they draw very opposite conclusions. The Plaintiff insists that the will ought to be [101] established; the Defendant, that it ought to be set aside. I cannot agree with either. I think the circumstances counterbalance each other,

so as to leave the question very much in doubt. I think that the heir at law has a right to say that, according to the course of the Court, the will cannot be established against him by a decree, without an issue or an ejectment, if he require it; and I think the Plaintiff, independently of the question of redemption," which is remarkable," has a right, under the limitations of this will, to have its validity ascertained." Now the will was peculiar. It contained a devise to trustees in trust to pay debts which, upon recent authorities, has, and I believe had then, been decided (Cordall's case, Cro. El. 316), was only a chattel interest till the debts were paid; and then all the limitations were to uses, and the Plaintiff would claim under the uses; and the Lord Chancellor says, independently of the question of redemption in a will so framed, the debts having been then paid, I think the devisee has a right to an issue against the heir at law; and accordingly the Lord Chancellor ends by directing an issue against the heir at law.

Therefore, on the one hand, there is the case of Grove v. Bastard (2 Ph. 619), deciding that this Court does for its own purposes require the will to be established when there is nothing that this Court has to carry into effect; and in Grove v. Young it did not direct the trust to be carried into execution; and, on the other hand, Lord Manners, in the case I have just referred to, is reported as saying that it is a question which the party, independently of the right to redemption, would be entitled to have tried as against the heir at law.

Therefore, if I cannot on principle find any ground on which the mere fact of the trust should create an equity [102] against the heir at law, I do not think that I am bound by a series of authorities, as Mr. Russell contended, to hold that in every case where the Court attempts to establish a will it is also carrying the trusts into execution; and I find, further, that relief was given in a simple case where there was an outstanding legal estate, and where, unless there was some special equity to establish the will, clearly the proper course would have been to remove the outstanding term, and direct an action to be brought by the devisee. I say, when I find authorities of that description, independently of the various dicta, to which I am about to refer, of several learned Judges on this subject, I must come to the conclusion that there must be an inherent equity on the part of the devisee to have the will established, if he think fit, against the heir at law.

I must now notice another objection of Mr. Russell's, which is this: He says there is a twofold current of authority against this proposition: first, the current of authority which I have disposed of; and, secondly, he says there has been a course of practice current, namely, that bills were common to perpetuate testimony; and therefore this in an indication that that, and not a bill to establish the will, was the right course. No doubt there were many bills to perpetuate testimony. I can easily conceive why a party, who is not bound to establish the will against the heir at law, might well prefer a bill to perpetuate testimony, because what he does is this: he is confident in his own witnesses, and he examines them, and they cannot be crossexamined on a bill to perpetuate testimony. They all speak, perfectly well knowing that no proceeding can be taken against them for perjury, for the evidence cannot be published usually until they are dead, and the party has every possible advantage in perpetuating testimony in that mode against the heir, if he be so minded, instead of bringing the matter to open conflict. The question which [103] I have to try is whether he is at liberty to litigate it; and I apprehend he is at liberty, although by no means bound to do so; and in those bills for perpetuating testimony at the instance of purchasers, where necessarily the vendor would do the least he could to disturb the title, and the utmost point contended for by the purchaser was that he had a right to have the will proved, as it is called, in Chancery, I can understand why the bill should be limited to perpetuating the testimony, and why the parties should not be minded to carry it into further and more open litigation. But I think that a great deal of light is thrown upon the subject by the observations of Lord Hardwicke in Berney v. Eyre (3 Atk. 387). He seems to say there that there is a twofold mode, a mode of either perpetuating testimony, or bringing the matter to an issue. Lord Hardwicke in that case there lays down the following general rules:-"That if a devisee brings a bill merely in perpetuam rei memoriam, and the heir at law does nothing more than cross-examine the witnesses