gage of the estate sold, and when there was no separate contract, although the vendor was clearly constituted a mortgagee. The case of Beete v. Bidgood did not arise on the Stamp Act. Altogether it appears to me that these questions are of too much nicety for a purchaser to be advised to dispense with the stamps.

A. B. Lincoln's Inn, Nov. 1, 1841.

We cannot concur in the argument in the opinion last stated, and we think the view adopted by the Attorney General undoubtedly correct. Mr. A. B. contends that a conveyance stamp is required, because Thomas Cant was not merely a trustee for the vendor but also a trustee for the purchaser. Admitting this to be so for the sake of argument, which however is contrary to the fact, as we shall presently show, a conveyance stamp would notwithstanding be unnecessary, for that stamp is only required by the act upon the deed whereby the property sold, is conveyed to or vested in the purchaser or some other person by his direction. Now these words, it is clear, would not be satisfied, assuming the property had been conveyed to Thomas Cant, partly in trust for the vendor and partly for the purchaser; but the fact is that the deed expressly describes Thomas Cant to be "a trustee named by and on behalf of the said John Foot," which appears to have been overlooked by Mr. A. B., unless, indeed, he insists upon the omission of the word "alone," which, however, would be criticism too minute to be regarded, and quite contrary to the spirit of the decisions on the Stamp Acts; and the assertion of the deed that Thomas Cant was named by and on behalf of John Foot, is fully borne out by the facts; for John Foot not only intrusts him with the legal estate, but also gives him power to receive the whole of the purchase money, a sum exceeding 6,000l., and further empowers him to convey building sites upon payment of such sums as he should deem reasonable, and till the whole of the purchase money is paid Thomas Cant holds the property for John Foot, and for him alone.

How it is possible in the face of these facts to contend that the deed constitutes Thomas Cant a trustee in any sense, and

for

in any degree, for the purchasers, we really cannot comprehend; and it is the provisions of the deed and not any equities that may ultimately arise out of those provisions through the subsequent acts of the purchasers, that must determine the question as to the stamp. Mr. A. B. urges, that, if after payment of the whole of the purchase money Thomas Cant refused to convey, the purchasers' remedy would be, not a suit for a specific performance, but a suit for a conveyance of the legal estate; there is not much difference between these remedies, but we doubt whether a Court of Law, the proper tribunal for the decision of such a question, would listen to such an argument, and we must say that we also doubt whether it has any weight; suppose that an owner seised in fee were to contract to sell for a certain price, payable at a future day, and that it was declared in the contract that the title was accepted, as in the present case, and that nothing remained to be done but the payment of the money and the conveying of the property, and that then the purchaser paid the money but the owner refused to convey, the remedy of the purchaser, we apprehend, would be simply a suit to compel a conveyance of the legal estate, and yet no one could say that therefore the contract required to be stamped as a conveyance. If the conveyance to Thomas Cant had been in a separate instrument, the case would have been similar to that of Wilmot v. Wilkinson, and we cannot think that there is any difference between the two cases in point of principle. The deed merely puts Thomas Cant in the place of the vendor, as observed by the Attorney General, and that certainly is not a conveyance to the purchaser, or to a person by his direction, as expressed in the Stamp Act. Secondly, as to the mortgage stamp :

Mr. A. B. seems to think it may be inferred that there was a contract binding on the purchasers previous to the execution of the deed in question. We cannot think it important whether there was or not; for the parties were competent to rescind any former contract and begin afresh; and it is undoubtedly clear that a Court will infer nothing in favour of the stamp duties, it can only decide upon what it finds within the four corners of the instrument. A deed may be full of falsehood and fraud, but that cannot affect the question as to the stamp

duty. The parties may have rendered themselves liable to penalties, but that is another matter. We believe, however, there never was a deed drawn more free from the imputation of duplicity or bad faith than the one before us. It states exactly and simply, without any " ingenuity," the actual intention and object of the parties, and it endeavours to carry the same into effect directly and without any circuitous manœuvres; probably some conveyancers with the same facts before them might have recommended, first, a conveyance to the purchasers, and then a mortgage by them for securing the unpaid purchase money; but such a proceeding however authorized by the practice of some, would not have been exactly consistent with the facts and truth. The deed in question, then, stating a present contract, it could not be contended that it showed a previous debt. As to the words of reference "hereinbefore recited agreement," they are perfectly correct, for the word "recited" does not mean merely that which is ushered in by the word "whereas" but any thing mentioned or stated previously. We confess we are astonished at the attempt made to make the expression “forborne to be paid, being payable," applicable to a future debt. How a debt payable in futuro can in any sense be said to be "forborne to be paid," we cannot imagine; the expression "forborne to be paid, being payable," refers to a sum of money which the debtor has neglected or omitted to pay, though payable presently. A Court is never astute in bringing the transactions of parties within the words of the Stamp Act, and certainly never perverts those words for such purpose. If Mr. A. B.'s opinion is correct, every contract in writing upon the sale and purchase of an estate, whether under seal or not, which provides that the vendor shall have the power of reselling the property in case of non-payment of the purchase money at the time stipulated, requires a mortgage stamp. His opinion expressly goes to that extent, and indeed the present case, as to this point, is exactly such an agreement and nothing more.

We admit that according to our construction of the Stamp

1 See Lord Tenterden's judgment in Doe v. Lewis, 10 Barn. & Cr. 674. 2 See the case of Barker v. Smark, 7 Mee. & Wels. 590.

Act it is not necessary to have a mortgage stamp upon an instrument, whether under seal and a deed or not, made on a sale and purchase, which merely reserves either expressly or by implication the legal dominion over the property sold to the vendor, until the whole of the purchase money is paid according to the original contract; such an instrument, indeed, is not made for securing any sum of money, and therefore is not a mortgage within the words of the act; its object is to secure the property to the purchaser on payment of the whole of the price; the law gives the vendor a lien or charge for the price or portion of it remaining unpaid, and a mere declaration that the vendor may resell in case of non-payment, cannot change the lien that the law gives into a mortgage debt; but conveyancers in general render a mortgage stamp necessary by their mode of dealing with the property and the contract of the parties. The case of Beete v. Bidgood was not upon the Stamp Act, but it contains the opinion of the Court, upon the identical words used in that act, in another act of a similar nature, also like the Stamp Act imposing penalties.

It should be observed that if the opinion of Mr. A. B. is correct, many marriage settlements would be liable to mortgage stamp duty. For a father may covenant to pay a sum of money at a future time and charge real estate with the payment, and that it seems might be held to be a "sum forborne to be paid, being payable."

W. C. W.

ART. V.--ADMISSIBILITY OF EXTRINSIC EVIDENCE FOR THE CONSTRUING OF WILLS.

SEVERAL cases have been decided within a recent period with respect to the true rule as to the admission of parol evidence in the construction of wills, and it is clear the Courts are desirous of contracting the limits which have hitherto been admitted as to the admission of such evidence. We think if reference be made to first principles, there need not be much difficulty in determining in any case, when and how parol averments may be used.

pro

A will is a written instrument by which an owner of perty directs how his estate shall be disposed of after his death, and which he does not intend shall have any operation whatever until that period. The law prescribes no particular form for such a disposition, and still less is a testator required to express his intentions in any technical language. A testator may use what terms or expressions he thinks proper, to describe either his property or the objects of his bounty, and however enigmatical, or paraphrastical, or nonsensical he may be, it is the duty of the law and its expounders to discover, if possible, the intention, and to direct the devolution of the property accordingly. A last will and testament, then, may be no more than a familiar epistle. Now, if a father were to write to two of his children absent from home, respecting his affairs, family or connections, and they, unable to understand some of his statements, were to lay the letter before a stranger for his opinion, would he not probably be unable to assist them unless much information was afforded to him respecting family circumstances? Yet such is nearly the case of every contested will. It is a private document treating of private matters, and brought before a perfect stranger for his exposition and judgment. In such a case, then, it is plainly the duty of the parties to give the Court every information in their power respecting the property, relations and friends of the testator; to produce plans and rent rolls of his estates, a pedigree of his family, and a diary of his daily intercourse. The parties may show any peculiar habits the testator might have respecting his property or the persons with whom he associated. They may show that he used to call certain lands his Ashton Estate, though part of them were without the manor