Will of William Menchinton
from Newfoundland will books volume 3 pages 14-15 probate year 1866

In re
     William Menchinton      deceased.

In the name of God Amen I William Menchinton of Saint John's Newfoundland Planter and Tracer being weak in body but of sound and disposing mind and being desirous of arranging my worldly affairs do make this my last will and testament and by which (at my demise) To my wife Grace Menchinton I will and bequeath out of monies lodged in the Union Bank of St. John's Sixteen hundred pound cy- my dwelling house land and premises on the Military Road adjoining the Government Lime Kiln Ground with the household furniture Plate Linnen China Pictures and all other articles therein- To my daughter Mary Winsor wife of Captain James Winsor of Saint John's I will and bequeath out of monies in the hands of Messrs. Baine Johnston & Company Five hundred pounds- five shares in the Union Bank and my room and premises at the Exploits Burnt Island- To my daughter Louisa Winsor wife of Thomas Winsor of Saint John's Cooper I will and bequeath out of the monies in the hands of Messrs- Baine Johnston and Company Five hundred pounds- five shares in the Union Bank- my houses and property in Water Street West of the Market House and also Moses Pierceys mortgage amounting at the present time to seventy four pounds with the interest arising thereon. To my daughter Amelia Ann Power wife of John Power of Saint Johns Cooper out of the monies in the hands of Messrs. Baine Johnston and Company I will and bequeath one hundred pounds and the interest arising on four hundred pounds to be received of them by my executors and put in trust to the best advantage and the interest on five shares in the Union Bank during her natural life and at her demise the said sum of four hundred pounds and the proceeds of the said five Bank shares shall be equally divided between her surviving children as they respectively become of age the interest in the meantime going towards their support But in the event of her leaving no child or children at her demise then the said amounts shall be equally divided between the two sisters Margaret Louisa or their nearest of kin. To my nephew William Menchinton Winsor son of Thomas Winsor out of monies in the Savings Bank two hundred pounds I will and bequeath with interest thereon.     To my son-in-law Captain James Winsor before named I will and bequeath the balance that may be standing against him in my books at my demise-     To my son-in-law Thomas Winsor before named I will and bequeath the balance that may be standing against him in my books at my demise-     To William Fever a trusty servant who I brought out from England with me I will and bequeath fifty pounds cy The residue arising on the estate after all necessary expenses are paid to be equally divided between my three daughters or the surviving ones or their nearest of kin, and for the due performance in carrying out the intentions of this my last will and testament I have and do appoint as my lawful and trusty executors Frederick Rowden Page Land Surveyor and Auctioneer and George James Accountant both of Saint John's aforesaid.
In witness whereof I have hereunto put my hand and affixed my seal at St. John's aforesaid this twenty eighth day of April A.D. one thousand eight hundred and sixty six.
William his X mark Menchinton (LS)
Signed sealed and delivered in presence of (first being read over explained and fully understood) interlined over 26^th line "I will bequeath" page 1 and over 21^st line "my" page 2. Robt. J. Parsons, Jno. R. Jeans.

Certified correct,
D. M. Browning
Registrar

Part 2 contributed by Linda Elkins-Schmitt

In Re WILLIAM MENCHINTON
1866, January, Hon. Mr. Justice Robinson

Will Execution of-Testator a marksman-Newfoundland Wills Act, 27 Vie, cap 13

On an application by the executors of the alleged will of testator to admit the same to Probate after proof in solemn form, it appeared the testator had executed his will by affixing his mark in the presence of the two attesting witnesses, one only of whom had been present when the will was read over to the testator. There was a third person present, the executor, when the will was read over, but he did not sign the will, believing the executor was incompetent to witness. The testator was an intelligent man, and in the conduct of his business had kept his own accounts and carried on his own correspondence, but shortly before the date of executing his will, had become quite blind and incapable of writing. The admission of the will to probate was resisted by some of the next-of-kin, on the grounds that being executed by a marksman, it was not read over to or by him in the presence of the two witnesses who attested its execution.

Held- The will was not valid for want of due execution, and could not be admitted to probate, not having been read over to or by the testator in the presence of the attesting witnesses.
This matter comes before me on the application of Frederick R. Page, and J. G. Jeans, executors of the alleged will of the late William Menchinton, to admit the said will to probate, after proof thereof in solemn form.

The application is resisted by Mr John Power, who is married to one of the daughters of deceased.

The facts are few and simple, and are uncontradicted ; but the case is very important as exhibiting the operation of the new Wills Act, and the necessity of making its provisions generally known.

The testator died in June last, in St. John's. He had been an intelligent planter, and by his industry and acuteness had accumulated assets to the amount of about £5,000. He kept his own books of accounts, though in a homely fashion, and wrote his own letters. But a few months before his death he became quite blind and incapable of reading or writing.

While in that state he requested his friend, Mr. Page, to write for him his will, and to act as his executor, and gave Page the necessary instructions. Page accordingly prepared a draft, which he submitted, and read to deceased, who approved of it. The will was then engrossed. On the 28^th April, 1866, Page took it to deceased, who was sitting on a sofa in his parlor. Page was accompanied by Mr. Jeans, whom he had requested to go with him to witness the execution of the will. Page and Jeans expressed to deceased their opinions, that, an executor could not be a witness to a will, and suggested to deceased that some person should be had in addition to Jeans as a witness, when deceased desired that Robert John Parsons, Esq., who was his next neighbour, should be sent for, which was done. Before Mr. Parsons came in, Page read to Menchinton, in the presence of Jeans, the whole will, paragraph by paragraph; and, after each paragraph, deceased signified his assent and approval. In about ten minutes after the will had been so read, Parsons came into the deceased's room, when deceased suggested that his will should be again read to Parsons; but the latter gentleman said he was in a hurry to go to the House of Assembly, and that he pretty well knew its contents. The will was not therefore read over, to or by deceased in the presence of Parsons. Menchinton was then led to the table, the pen was put into his hand, and he made his mark to his will in the usual manner that a marksman acts - putting also his finger on the seal and declaring the document to be his last will and testament, and his act and deed. All this he did in the presence of Page, Jeans and Parsons, and the two latter, in the presence of Page, signed the will as attesting witnesses. It was then put into an envelope by Page and handed to Menchinton who placed it in his iron safe. Some days after this transaction, Page seems to have doubted respecting the due execution of the will for want of it having been read in the presence of Parsons ; and he - accompanied by Mr. H. Wood, the clerk in Mr. Walbank's office - went to Menchinton's house, where he saw deceased and his wife. Page then mentioned his doubts to Menchinton. Mrs. Menchinton took out of the safe the will in the same envelope, and handed it to Mr. Wood who read it in the presence of deceased, and made comments on it, when Menchinton again repeated that it was his last will, and made in accordance with his wishes. Mr. Wood observed that as Mr. Parsons was not then in St. John's, nothing more could be done. Nothing more was done, and the will was returned to the envelope and given back to the deceased. In the following June. Menchinton died, and after his funeral the will was taken from the same envelope, and read by Page in the presence of the family. The will divides his property amongst his wife and daughters, after giving a legacy to a faithful servant, and seems a righteous and reasonable distribution of his estate. The legacy to Amelia, his daughter who is married to Power, with the exception of £100, is absolutely bequeathed to her and settled upon her for her use during her life; and, on her death, upon her children if she leave any. At present she has no child, and if she should die without a child, her legacy reverts to testator's other children and is kept in his own family. There is not even an imputation raised by evidence or by counsel that the deceased did not thoroughly understand his will, and there is no room to doubt that all was in strict accordance with his wishes, and conducted with good faith and propriety. But Mr. Power resists the admission of the will to probate, and contends that it is null and void - because, being made by a marksman, it was not read over to or by him in the presence of the two witnesses who attested its execution, and he relies upon the first section of the 27 Vic, cap. 13, passed by the Colonial Legislature in 1864 - which section is as follows : -

"No will shall be valid unless it be made in writing, and unless it be either in the handwriting of the testator and signed by him, or if not so written and signed by him in the presence of at least two witnesses who shall, in the presence of the testator, sign the same as witnesses; and in case such will shall be made by a marksman, unless the same shall have been first read over to or by the testator in the presence of the said witnesses."

It is true that the will was read over in the presence of two witnesses. Page and Jeans, who might have tested it, and were competent witnesses to have attested its execution, for it is altogether a mistake to suppose an executor is incompetent to be a witness, and it is equally true that deceased thorougly understood its contents, and repeatedly acknowledged it as his will, and approved it ; but it is stoutly contended that the letter of this law has not been fulfilled, although the substance may have been fully observed, and that the paper, although it contains the well considered disposition by the deceased of the earnings of his life, must be set aside, because Mr. Page mistakenly but honestly omitted to testify by his signature the fact which it is not denied had really been performed, or because it was not read again before Mr. Parsons, after it had just previously been read before two other witnesses. Mr. Whiteway and Mr. Pinsent, on behalf of the executors, urgently press upon me that this is a new Act, and unsuitable to the condition of the country, and I should so construe the Act as to give effect to this will, whilst Mr. Little, for the opposing next of kin, candidly admits that the statute, as regards the provision under consideration, is ill advised, and in many instances, impracticable; but he, nevertheless, claims for his client, as he is justified in doing, the benefit of its enactment. I may agree with both learned counsel that the provision in question in this Act is unnecessary and introductive of a cumbrous machinery for the performance of one of the necessary affairs of life, and that the application of these new technicalities may, in many instances, and even in the present one, occasion injustice ; but all such considerations must be disregarded by the judge, whose province it is to declare, not to make, still less to break - law. For the consequences of that enactment he is irresponsible because he is powerless to avert them, however much he might desire to do so.

It was ingeniously argued by the counsel supporting the will, that the deceased was not what the Act contemplated by the term "marksman," being not an illiterate man, but one who once could write, and was only incapacitated by recent blindness from writing his name to his will ; that his name should therefore be considered as having been signed through the agency of Page, whom he desired to write his name, and the will well executed under the earlier words of the section. But I cannot accept that reading, which would have carried great force if the section had stopped there. The broad fact is patent that the will was "made by a marksman," and was not first read over to or by him in the presence of two witnesses who attested it as such witnesses. The Act makes no exception in the case of a blind man, and it were strange if it did, for of all marksmen he is the most helpless and most needing protection.

I have considered the doctrine in Ellis v. Smith, 1 Ves., J.H., in Smith v. Candron, in Wright v, the Trustees of the British Museum, and in other cases determined upon wills made pursuant to the 5^th sec. of the statute of frauds, in which the courts allowed certain things which were equivalent to those prescribed by the statute to satisfy the statute, such as an acknowledgment of his signature by a testator in the presence of three witnesses, to be equivalent to making his signature in their presence, and I own that I meditated upon that doctrine with a hope that it would justify me in upholding the will in this case ; but the language of the statute of frauds is not clearly so unequivocal as that of the statute now under my consideration. In those cases there was no such violence done to the language of the Act as would be done if I applied the doctrine of equivalents to this, and I bow to the doctrine of Lord Hardwicke "where things are expressly required by statute, courts should not say that other things are equivalent." My judgment compels me to say that the stringency of this enactment leaves me no alternative, and I decide that the paper writing propounded in this case as the will of William Menchinton is not valid for want of due execution, and I order that it be not admitted to probate. The decision I have now given is the first that has occurred under this clause of the now Wills Act.

The amount involved is large - the merits and justice are all in favor of those who support the will, and against whom I have reluctantly given judgment ; and I am comforted by knowing that if they think they have reasonable grounds to expect any benefit from the Supreme Court the law affords them the opportunity of appealing to that tribunal.

I make no order at the present time on this subject of administration, because Mr. Pinsent openly stated that he held a will of William Menchinton executed with all the formalities then required before that which has been the subject of this litigation.

Any such must be propounded for probate promptly, as I shall not allow the estate to remain unrepresented much longer. I reserve the question of costs for further consideration. The leaning of my mind at present is to allow the executors named in this informal will all their costs, and to refuse any costs out of this estate to the oppugnants; but I don't see that at present there is any legal representative on whom I could make such order, and therefore I reserve the whole question of costs.

Mr. Whiteway, Q. C, and Mr. Pinsent, Q, C, for executors. Mr. J. I. Little for next of kin.

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POWER ET AL vs MENCHINTON, Admx.

1869, July, Hoyles, C. J. ; Robinson: J. ; Hayward, J.

Will Construction of Words: "The remainder to be divided between the parties" - Inoperative will as evidence of a collateral fact.

Where the testaor's will, after naming several legatees for certain specified legacies, concluded with the following residuary clause: "The remainder to be divided between the parties."

Held (Hoyles, C. J., differing) -The words do not mean the next of kin, but the parties named just before in the will. The article "the" has a restrictive operation.

An inoperative will is evidence as an admission under the hand ot the testator to confirm or contradict testimony of an independent transaction of his.

This suit was heard in the February term of this Court, upon bill, answer and evidence.

The bill set forth - that William Menchinton, late of Saint John's, trader, died in St. John's on the tenth of June, A. D. 1866, leaving him surviving his wife, Grace, the defendant above named, three daughters, namely, Amelia Anne, above named; Mary, the wife of the defendant James Winser, and Louisa, wife of Thomas Winser, and a grand-child, Wm. J. M. Gibbons, son of Jane, a deceased daughter of said William Menchinton. That said deceased was at his death possessed of considerable property, and that in January, 1860, he made the following will, which was duly proved in this Court : -

"This is my last will and testament made in the year of Our Lord 1860. I hereby will and bequeath to my beloved wife, after my death, the sum of £1000, which is now deposited in the Union Bank, with five shares at £50 per share (£250) with the house we occupy on Military road; To my son, John Menchinton, £300, with my place and property at Exploits, Burnt Island, Green Bay, with all outstanding debts that are due me at this present date; To my daughter Mary Winser, the sum of £800, which is now in the house of Baine, Johnston & Co.; To my daughter Louisa Winser, the sum of £500, which is now in the house of Baine, Johnston and Co., with house and back ground in Water street occupied by Stares and Blundon; To my daughter Amelia Ann, the sum of £500 - the remainder to be divided between the parties."

That John Menchinton mentioned in the said will died in the year 1866, intestate, leaving no children - that complainants had received the sum of £500 mentioned in the will, but no part of the residue which was considerable, and prayed an account and distribution.

The defendants by their answer admitted the facts stated in the bill, and averred their readiness to account and distribute, but submitted that the property mentioned in the will as situate in Exploits, Burnt Island, and which complainants insisted was part of the residue, was in Equity the property of the defendant James Winser, and that the share of complainant Amelia Ann in the residue ought to be settled to her separate use ; and they further prayed the direction of the Court, as to whether the testator's grandson William J. M. Gibbons, was entitled to a share of the residue as one of the "parties" to whom it was bequeathed.

At the hearing, on which Messrs. Little and Kent appeared for the complainants, and Mr. Whiteway, Q. C, for the defendants, - the questions raised for the consideration of the Court were those submitted by the defendant's answer, and these we have now to determine.
To take the second question first - It is a rule of the Court of Chancery, well settled and of very frequent operation, that where a husband seeks the assistance of the Court to recover and reduce into possession his wife's chose in action, the Court will, as a condition of the required aid, insist upon a competent settlement upon her and her children being made from the subject of the suit, Lewin 481, 1 Maddock's 480, Story, Sec.145, unless the wife in open Court or upon examination apart before a judge or a commissioner disclaim that benefit, 1 Daniel 94.

In the present case there has been no such disclaimer, and upon this point therefore our decree must be in the usual terms. The question of the amount of such settlement (generally one- half the subject matter) may be reserved until the coming in of the master's report, but as the complainant, John, has already received the whole of his wife's legacy of £500, I think the whole of her share of the residue should be so settled unless it should amount to more than that sum.

The first question, as to the right of the defendant Winser to the property in Exploits, is one of more difficulty.

This claim seems to be grounded upon the well-known principle of Equity jurisprudence, that where the owner of land, seeing another under the belief that the land is his, expending money upon it in buildings and improvements, permits such expenditure without giving the occupier notice of his own better title, he shall not be permitted to reclaim the land, at least without compensation for the improvements -1 Mad. 263, Story Secs. 388, 781, 786. In the present case Winser was certainly aware when he built, that the land was not his, but then (as he alleges) he had the assurance of the testator that the land would be given to his daughter, Winser's wife, and that his (Winser's) improvements would thus be for his own benefit; and if this were so I can see no difference in Equity between fraudulent acquiescence in another's mistake for one's own benefit, and the wilfully misleading him with a like object or with a like effect. The latter case is indeed the stronger of the two; clearly in such circumstances Menchinton could not himself, without making compensation, reclaim the land, and if not, neither could his estate after his death. Story, S. 788, and the present claim would therefore come under the rule if brought by the evidence within its operation, and this would seem to be the whole question on this branch of the case Winser relied in support of his claim upon a conversation had upon the premises between himself and the testator in 1863, after the death of John Menchinton, at a time when Winser, who had purchased the testator's business, was apparently in possession and about making improvements, to the eflect, that he, the testator, would not be responsible for the cost of such improvements, as they would be for Winser's own benefit inasmuch as he, the testator, intended to give the premises to Winser's wife; upon his continuing in possession to the time of the testator's death in 1866, without rent being paid or demanded; upon the improvements made at his own expense, part of which testator was certainly aware of, and of the whole of which, he must, having regard to the relations subsisting between him and his son-in-law, have known; upon the declarations made by the testator to his own wife, the defendant Grace, to the effect that he had given the premises to Mary Winser; and upon the testator's informal will of 1866, devising the premises in accordance with this declaration.

The complainants, on the other hand, relied upon the fact, that in 1863, after John Menchinton's death and before Winser went into possession, the testator had proposed to the complainant Power, to establish him in business on the premises, and opened an ineffectual negotiation for the purchase of machinery with that object, circumstances apparently inconsistent with the design of bestowing them on Winser; and they contended that the improvements which the latter had undoubtedly made, were effected, not in reliance upon the testator's promise but for the better conduct of his own business; that the proof of the conversation on the premises to which Winser had deposed, was defective, for want of the testimony of Douton and Tilley, two residents of Green Bay, alleged by Winser to have been present on the occasion; and that the writing of 1866 having been pronounced against as a will, was inadmissible for the purposes for which it had been adduced.

We are all of opinion, however, that although the invalid will would be inoperative to establish a trust -Lewin, p. 4.6; or generally speaking, to control the construction of the true will, - Jarmin 387, it would be good evidence of a collateral fact, such as the payment of a debt to the testator did it contain an admission to that effect, or in cofirmation of the statement that the conversation referred to actually took place, Smith and Atterson, 1 Russell 276, and after duly weighing the evidence on both sides with reference to the authorities bearing upon the subject, we think that although it might have been desirable to have had the testimony of Douton and Tilley, either for the defendants to sustain Winser's statement, or for the complainants to disprove it, the preponderance is plainly in favor of the defendants, and sufficient to sustain Winser's claim, and that he is consequently entitled to retain the premises unless the estate will reimburse him for his expenditure.

Upon the question -"Who were meant by the term "parties" in the testator's will, I have the misfortune to differ from my brother judges, they regarding it as applicable only to the legatees previously named, while I am of opinion that it includes all who, had the testator made no will would have shared his estate, namely, his wife and all his children, the children of deceased children representing, as they legally and naturally would, their deceased parents.

The term is in itself vague and indefinite, and there is nothing in the context to indicate its meaning with any certainty; to determine, then, what the testator intended we must put ourselves in his position at the time of making the will and consider the circumstances by which he was surrounded, -1 Jarmin, 393; and, unless from these, taken in connection with the will itself, we can solve this difficulty we can only declare the bequest to be void for uncertainty. This alternative, however, we ought not to adopt until after we had wholly failed in all attempts to discover the testator's meaning, - Jarmin, 330; and we are not I think reduced to this position. The word must mean either the legatees previously named or those who naturally and in law would have claims upon the estate, the deceased's next of kin. To give it either construction words must be supplied; in the former case, the words "aforesaid," "before mentioned," or the like; in the latter, such expressions as "entitled in the ordinary or natural course," or "as my next of kin" To ascertain to which of the two classes the testator referred, let us apply the rule laid down in Jarmin and above referred to.

When about to make his will the testator would call to mind first, his property, the subject of his bequests; and secondly, the objects upon whom it was to be bestowed, naturally his wife and children, and proceed to complete his purpose. He has made a complete disposition as far as the subject of his will is concerned, why should he not have made a complete disposition as regards the objects of his intended bounty by providing for all his family instead of leaving part wholly unprovided for? He could not have forgotten his grandchild, even if then absent from the colony (a point on which there is no evidence), as his intellect does not seem to have been impaired, if we may judge from the fact of his carrying on business for more than three years and of his surviving for more than six years after making his will. If he had not forgotten him, would he designedly exclude him from all share of his estate? To do this would be unnatural and unjust, and we have nothing to lead us to suppose that the testator intended to be either one or the other. By the Roman law a will might be set aside as inefficious, as not consonant with natural affection or moral duty if it totally passed by, without assigning a true and sufficient reason, any of the children of the testator; and, although this rule has no place in the law of England, yet even with us a will of that character would be held to much stricter proof than one not open to this objection, - 1 Will, Exors, 32, What if the testator had given specific legacies to two only of his children, omitting all mention of his wife and his other children, would it not be a harsh and unreasonable construction to say that "parties" meant only those of his family who had previously been expressly named, and yet the difference between such a case and the present is only in degree not in kind, and why should such construction prevail in one and not in the other?

In my judgment, the mind of the testator at the time of making his will was to give a special benefit to his wife and those of his children who had remained in this country, from whom from time to time he probably received acts of kindness and attention, and between whom and himself warmer feelings of affection would naturally subsist; and having thus gratified a reasonable and obvious preference to allow the rest of his property to pass to all who had legitimate claims upon him and it. This he will have done if the word "parties" receive the interpretation for which I contend, but if its application be restricted to those previously named, he will, without any apparent reason, have altogether ignored the interests of one whose natural claims upon him were by no means so inferior to the claims of those for whom he has amply provided as to justify their being entirely disregarded.

Our opinions on this question, however, can only be regarded as obiter dicta, expressed at the desire of the parties to the suit, in the hope of producing an amicable adjustment of the grandson's claims (if any) out of court; as he, being no party to these proceedings, cannot, of course, be noticed in the decree we make, which is as follows :

Let it be referred to the master to take an account of the estate and to report thereon, with liberty to all parties to except as they may be advised. In taking the accounts let the master exclude from his consideration the property situate at Exploits Burnt Island, unless those interested in the estate will reimburse the defendant (Winser) for improvements made thereon by him after the date of the conversation before referred to, and in that case let the master inquire into and report the cost of these improvements; should the legatees decline to take the property on this condition, let it be conveyed by the administratrix to the separate use of Mary Winser and her children; let the master also report as to what will be a sufficient settlement to be made from their shares of the residue upon the testator's married daughters and their children, and let the question of costs and all further directions be reserved until after confirmation of the master's report.

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Hon. Mr. Justice Robinson:

The complainants are the son-in-law and daughter of the late William Menchinton, and by their bill they demand from the defendants (Grace Menchinton, widow and administratrix of William), an account of the estate of the said William in her hands, or under her control, and a distribution of the residue pursuant to the will, the material parts of which are as follows : -

"This is my last will and testament made in the year of our Lord 1860. I hereby will and bequeath to my beloved wife, after my death, the sum of one thousand pounds, &c., &c.; to my son, John Menchinton, three hundred pounds, and my place and property at Exploits Burnt Island, in Green Bay, &c., &c. ; to my daughter, Mary Winser, the sum of eight hundred pounds, &c.; to my daughter, Louisa Winser, the sum of five hundred pounds, &c., &c.; to my daughter, Amelia Anne, the sum of five hundred pounds; the remainder to be divided between the parties."

Grace Menchinton, by her answer, states that the said Amelia Anne Power had received the said legacy of £500 bequeathed to her, that John died during the lifetime of the testator, that she as administratrix hath certain monies belonging to William Menchinton's estate undistributed, and that there are certain debts due to the estate, but that she hath no chattels of the said testator except a few articles of household furniture of small value; that she hath always been ready and willing to render an account of the said estate and to give full information concerning the same, and also to make distribution according to law of any residue, but that complainants insisted that certain land and property at Exploits Burnt Island was the property of the said testator at the time of his decease, and that complainants should have a share of the same or the proceeds thereof, whereas the property was in possession of the said James Winser and Mary, his wife, at the time of the testator's decease, and the said James Winser hath laid out large sums of money thereon and claims the same as his property, and that, therefore, defendant could not give complainants a share thereof. She also, in her answer, states that the testator left a grandson named Gibbons, the son of a daughter who had died before testator, and prays the direction of the court whether such grandson is not entitled by virtue of the said will to participate in the said residue of the said estate.

And she also prays the direction of the court whether a settlement should not be decreed of the share of the said Amelia Anne, in the said residue, to her sole and separate use. A general replication was filed putting in issue defendants' answer and evidence taken.

On the hearing, James Winser, with the consent and at the desire of the complainants, of the defendant administratrix, and of himself, was made defendant to the suit in conjunction with the said administratrix.

The questions which the court has to determine are -

First -Is the landed property at Exploits Burnt Island assets of the deceased and distributable?
Second - Is the grandson, Gibbons, entitled to a share of the residue by virtue of the words of the will, "the remainder to be divided between the parties"?
Third - Ought the court to decree a settlement to be made on the daughters of testator for their sole and separate use?

A good deal of evidence has been taken, which I have carefully read; I have considered the comments of the learned counsel upon the same, and an examination of the whole testimony on both sides leads my mind to the conclusion upon the -

First point, that the lands at Exploits, Burnt Island, are the property of James Winser, or his wife, and are not assets of Mr. Menchinton's estate. This property was first bequeated to John, but he having died several years before the testator the legacy lapsed; it is in evidence, on the oath of the widow and administratrix Grace, and on the oath of James Winser, that after John's death the testator put James into possession of that property, stating that it was to belong to his daughter Mary, wife of said James Winser - that on the faith of that statement and possession James Winser expended large sums of money out of his own funds in repairing and improving the premises, with the knowledge of the said testator and with the declaration by him that James Winser was making such expenditure for his own use and benefit.

The administratrix corroborates that testimony in all particulars, and it is powerfully confirmed by the contents of a paper writing under the hand of the testator himself, bearing date 28^th April, 1866, which he intended to be his last will, but which failed to operate as a will owing to the fact that although executed by William Menchinton in the presence of two witnesses after having been carefully read over to and approved by him, those two witnesses were not the two in whose presence the will had been read over to him, and the requirements of the Wills Act not having in this respect been complied with, the said paper writing could not be admitted to probate as a will - but although it is not a will it is evidence, as an admission under the hand of William Menchinton, to confirm or contradict testimony of an independent transaction of his; in this paper I find it expressly declared by Wm. Menchinton, that the property at Exploits, Burnt Island, was bequeathed to Mary Winser.

With such evidence under the hand of the testator I cannot distrust the testimony of James Winser and Grace Menchinton. I am therefore of opinion, that if William Menchinton had been alive specific performance would have been decreed, and he would have been required to execute a legal conveyance to James Winser of these premises at Exploits, Burnt Island, or reimburse him for the money he had so expended - and that Menchinton's widow, as his representative, must now execute such conveyance to him or make such reimbursement.

With respect to the second point, it is observable that there is not any evidence before us that the grandson. Gibbons, is alive, or ever was seen by, or known to the testator, or indeed that such a person ever existed; the fact is denied by the replication and so far as the evidence is concerned he may be a myth, however both parties at the hearing, seemed to assume that there was such an individual, and one of the learned counsel stated that he lived in Australia; whether he be alive or not, it is certain that he is not before the Court as a party to these proceedings, and will not be concluded by our opinion, which at present is a mere obiter dictum, for against him we are not in a position to make a decree, but if we were, I should be of the same opinion as I am at present. We are asked to read the words "the parties," as "my next of kin"; now I find no autbority in law or rule in grammar to warrant use in taking that liberty with language; it seems to me a strained and unnatural construction, and in my opinion it would be exactly contrary to the intentions of the testator so far as I can gather them; as the wife is not of kin to her husbind it would have the effect of excluding the widow who was in his mind and affections and by his side, from any share of the residue, and of including a relative whom he does not recognize, or appear ever to have seen or known, or who if in the world, was at the other side of it. The language of all such documents must be read and understood secundum subjectum materiam, and as Lord Ellenborough said in R and Stevens, 5 East, 260, "shall be understood in the sense the words bear in ordinary acceptation, and where the sense is ambiguous the meaning may be ascertained by the context"; the second word in the sentence under consideration affords an apt illustration of this rule, "remainder," remainder of what ? no corpus had been previously mentioned, out of which parts where carved, yet both sides with one consent admit that the subject matter under consideration sufficiently indicated that it was the remainder of his general estate to which the testator referred, and out of which he had made special bequests; so with regard to the "parties" who were to have this remainder, the subject matter points out who were meant, he had just named his widow and every one of his living children (and them alone) as objects of particular legacies, and having given each something specifically, he immediately adds that "the remainder shall be divided amongst the parties," meaning, in my opinion, the parties named just before; such is the grammatical effect of using the definite article ''the" which has a restrictive operation, and confines the subject to the particular thing or person previously mentioned.

As regards the third point, I was at first disposed to think that the property at Exploits should be conveyed to trustees for the sole and separate use of Mary Winser, and the share of the residue of the estate coming to Amelia Anne Power and Louisa should in like manner be settled upon them, unless the husbands should agree to make sufficient settlements upon their respective wives, or the wives should expressly declare that they did not desire any such settlements; but on further consideration and after looking into the authorities I doubted whether the present is a case which calls for the special intervention of a Court of Equity in derogation of the common law rights of the husband.

It is to be remembered that a husband is under the legal obligation to support his wife and children, and on that account as well as in consideration of their identity of interests, the law vests in him the personality of the wife ; moreover, it is not always conducive to the happiness of married life that the wife should be independent of her husband, and to warrant a Court of Equity in depriving him of his legal privileges it is laid down that "the intention to deprive the husband of any benefit from the property bequeathed to the wife must be clear." - 1 Babb, 738.

The wife possesses, however, a ready means of disclaiming a settlement, but when she does not do so a Court of Equity usually interferes (where a suit is pending before it, and its aid is required) to secure a settlement upon the wife and children. In this case I observe that it is to his daughters by name that Menchinton bequeathed the legacies, and not to their husbands; and therefore I shall be willing to concur in an order of reference to the master to report upon a sufficient settlement on each of the daughters, unless they shall respectively disclaim in open court or before one of the judges a desire for such settlement, in which event I should not be disposed to interfere between husband and wife.

As respects the general costs of the cause, I think I may as well mention now what the leaning of my opinion is. Although the complainants are entitled to the account they ask, the administratrix does not appear ever to have refused such account; the complainants are also entitled to a division of the residue, but that division appears to have been mainly prevented by the unsuccessful claim of the complainant to a share of the Burnt Island property, and for these reasons, I think they ought not to get their costs either from the estate or from the defendants.

The administratrix, on the other hand, appears to have retained in her own use the household furniture far beyond the time she was justified, and also some portion of the residue that might have been distributed ere this, and therefore, with the information that I at present possess, I do not think she ought to be allowed her costs, unless the master shall report that the amount in her hands is small, and not more than might reasonably be required to cover her necessary expenses in managing and winding up the estate, and in the absence of such report I should think that each party should bear their own costs at any rate up to the present stage. Looking at the uncertainty of the grandson's existence, at the expense of serving him with process if he be alive, and according to my judgment, at the prima facie absence of any well founded claim by him upon the administmtrix, it would be unreasonable to tie up the residue on his account; still as one of the judges thinks he has rights under the will, it seems proper and fair for the husbands of the several legatees to give their joint and several bond to the administratrix before the residue shall be divided, to indemnify her against the claims of the grandson.

There should be a reference to the master to take account of estate, of disbursements made by James Winser on Burnt Island property, and of the interest and profits the residue has been earning in the hands of administratrix or under her control, and the bill should be retained for further directions on master's report, and on question of costs.

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Hon. Mr. Justice Hayward :

This bill sets out a will made in 1860, by the testator, whereby he bequeathed specific legacies, principally of monies, to his wife and children, and amongst the rest, to his son, John, a money legacy, and also his property at Exploits Burnt Island, and by his will the testator directed "the remainder to be divided between the parties." John, the son, died intestate, before the testator, leaving no children, by which his legacy became lapsed. The complainant, Amelia Ann, received her specific legacy under the will and prays for distribution of the residue.

Defendant sets forth in her answer, that she has certain moneys of the testator for distribution, but as regards the property at Exploits, it was at the time of testator's death in possession of James Winser and Mary his wife, (the daughter of testator) and that the said James Winser laid out large sums of money thereon, and claimed the property as his own; also, that testator left him surviving a grandson, William Gibbons, (not named in the will) and defendant prays the direction of the Court, whether the said grandson is not entitled under the will to participate in the residue.

James Winser was not made a defendant by the bill, but in order that all matters regarding the estate should be finally disposed of, his name was included by consent .
The two principal questions to be decided are -

1^st. Are James Winser and wife entitled to the property at Exploits under the evidence which we have before us, and
2ndly. Do the words in the will ''the remainder to be divided between the parties" entitle the grandson, William Gibbons, who is not named in the will, to share in the distribution of the revenue, or do ''the parties" embrace only the parties named in the will.

Upon the first point we have the evidence of James Winser, that when John Menchinton died in 1863, the testator told him (Winser) that he intended to leave the Exploits property to his (Winser's) wife, and in another conversation that "I have given the place to your wife, and whatever improvements you make are at your own expense, as it is for your own benefit". Winser was then in possession of the property, and upon faith of these conversations, according to his evidence, substantially improved it by building a sunken wharf, two stores, three new flakes, with many other improvements at a cost of about £220. Mrs. Menchinton, the wife of testator, proves that in a conversation with him he (testator) said that he gave Mary Winser the place.

Had the evidence regarding Winser's right to this property rested here, it would be strong in his favor, but yet not altogether satisfactory as to the intention of the testator. Any doubt, however, in my mind, regarding his original intention is removed by a document which is in evidence signed by him before his death in 1866, whereby he bequeathed this same property to Mary Winser, the wife of James Winser. This document was intended by him as his last will, but in consequence of the requisites of the law regarding wills not having been complied with it was not admitted to probate, yet although it could not be recognised as a will it is an evidence of the testator's intentions for all the purposes of this suit upon this point at issue.

Upon the second point, as to the rights of the grandson; William Gibbons, to share in the remainder of the estate, I cannot conclude that the testator intended that he should be a residuary legatee. He gives specific legacies by his will and does not include his grandson by giving him any portion of his estate, and then directs "the remainder to be divided between the parties." Under these circumstances I am of opinion -

1^st. That Mary Winser, the wife of James Winser, is entitled to the property at Exploits, and that it should form no part of the remaining estate of William Menchinton.
2ndly. That the words "the parties" only Apply to the persons named in the will, and therefore that William Gibbons was not intended to be a residuary legatee, and
3rdly. That the complainants should be decreed their residuary share of the said estate to be settled upon the said Amelia Ann Power and her children.

Mr. Little and Mr. Kent for complainants.
Mr. Whiteway, Q, C , for defendants.

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Source: The Reports 1864-1874 Decisions of the Supreme Court of Newfoundland
J. W. Withers, Queen's Printer 1899

For further information refer to the will of William Menchinton's wife, Grace:

http://ngb.chebucto.org/Wills/menchinton-grace-4-182.shtml