crivaS-inr.

#### Abigail Webley, Edward Webley and *John*W. Webley *vs.*Benjamin Langstaff, Executor of John Beale.

*■&*pei-son had Biadte provi-áion by a ¿feed for a woman who @ved with Sam, as his Bouse-kecper jsid her two sons. Oh his death bed, when making-Ivis will, he was asked if he would gii a any thing to tiie two boys — lie said no; they were provided for alrca-dV: But the *505woman said n?>. -the Pr°good for no-upoiíhe ¡St be* queath them much, (wIllcil was 1 tlie ,same as in the deed.) Orchis death both P1TM*5d^im ed. The irielthecase admitted pa-rol evidence of the con-^tich°n led the be • quest in the will; and de-of election-might take TMder the deed or Will* but not both, woman in the cided to be being made eiw^ Is no tlons as to uniVTTm-Sfv a*r“ed ippeals-

*504[.Tried before Chancellor Guillare!, Charléston,

*Nov.*1812.]

THE bill states-that John Beale being possessed of *á*largo real aiid personal estate,- executed a deed on the' 24th March, 1808,-in the presence of two witnesses, by' which he gave *td*Francis Bremar' and Florian Charles Mesy¿ in trust for the complainants, the sum of 15001,- and he assigned unto them all the rents arising from the hire of a certain wharf called Beale’s wharf, (then under lease of seven years at the rent of 800Í.- per annum,-to-' Benjamin Langstaff and Thomas Frink,) in- trust to' secure the payment of the Said 1500k to wit, *5001.*to'the absolute use and benefit of Abigail Webley, and lOOoL. to the use and benefit of the complainants-, subject to the limitations contained in.the said deed. The bill further states that the said deed was made an account of the *505faithful services of the said Abigail Webley as housekeeper to the said John Beale, as a provision for her and her two sons, the complainants, Edward Webley and John W. Webley, an infant, under the age of 21. The bill further states that the said Benjamin Langstaff and Thomas Frink knew of the said assignment, and were bound to pay the sum of 1500k to the said trustees as soon as it should become due, from the rents of the said 'wharf, but the said Benjamin Langstaff and Thomas Frink paid to the said John BeaLe himself in his life time, such sums as accrued during that period; and ° his death the said Benjamin Langstaff has retained said rents as executor of the last will of the said John Beale, deceased, 1 And the said trustees have neither . . „ „ , ,, them received one penny of the said sum oi 1500Í, or the interest thereon, to which your oratrix and orators are entitled. The bill further states that the said John Beale duly executed his last will, bearing date 23d October, 3 807, and soon after departed this life, leaving the same in full force. Among other things he willed as follows, viz. *“*Heave to Edward Eherley and John W. Eberley 10001. to each of them, to he paid on their respectively ^ . v taming the age of *8.1*years.” The testator appomted several executors to this will, of whom only Benjamin Langstaff has qualified. The hill states that your ora-* tors Edward Webley and John W. Webley are the persons alluded to in the will, as their Christian names will . •shew, and that the error in the name is only a clerical inadvertence. That therefore your orator Edward, who is of full age, is entitled to receive the full amount of his legacy, with interest from the death of the testator, he having no other competent maintenance *;*that your orator John W. Webley is entitled to have the interest which has accrued and which may .accrue, until he may become of age, appropriated to his maintenance, and principal placed under the direction of this honorable court, that he may receive it at his arrival at the age of 21 years. The bill further states that the estate of tin1 testator is very large, and has come into the hands of *506Benj. Langstaff, the only qualified executor, who *is*weft enakled to pay the aforesaid several sums and interest $ although demands had been made upon him for the payment of the Same, yet he hath upon several prefen-ces wholly refused. The bill then concludes with a pray¿ eI’.that the said Benjamin Langstaff render an account of the sums due or paid on account of the wharf, that he pay to your oratrix the sum due her under the said deed, and to your orator Edward Wobley, the money due him — prays Writ of subpoena, and Concludes in the usual manner.

The answer admits that John Beale *died possessed*of considerable real estate, but denies that he died possessed of large personal estate ; the whole or greater part thereof having been given to complainant by deed of gift, or otherwise in his life time. The defendant saith that the only knowledge he has of the deed filed with the bilk was derived from a conversation with the testator in his last illness. But the defendant denies that ho was notified of the execution of that paper,- or that it was done With his knowledge j and he avers that from the time of the conversation above mentioned till after the death of the said John Beale, neither of the trustees or the complainant over called upon him for the rents of the said wharf. The defendant avers* that from the month of March, J803, aforesaid, to the day of the death of the said John Beale, the said Langstaff and Frink were constantly in advance to the said John Beale for repairs to the wharf, groceries, fuel, cash for domestic expenses, &c. by anticipations on the rent of the wharf, which was done with the privity and assent of *complainant;*she and liev family reaping the benefit of the supplies. And at the time of the death of the said John Beale, there had accumulated a balance in favor of the said Langstaff and Frink of upwards of 600L The defendant says that during that period the testator had no incomo but that derived from tho wharf, and 80Z. per annum from W» Keating, and two years rent from J. Condy.

The defendant in his answer further states,, that lie was-*507jn the testator’s chamber on the 23d October, 1807, when - ■William Loughton Smith took his instructions for drawing his will, and avers that the following occurrences took place. The testator told Mr. Smith that lie left .all his property to his daughters in England, and their children. When Mr. S. had concluded the devises, he enquired of testator “if ho did not mean to leave something to the boys in the next room (meaning the complainant’s sons), the testator answered “ no, for they were already provided for.” The complainant (Abigail Webley) immediately said “ no, Mr,. Beale you know it is good for nothing,” and appealed to this defendant. (who supposing the complainant to allude to some appro -, priation of rents of the wharf which he. knew were absorbed by the demands, of Langstaif and Frink) readily confirmed the assertion,; whereupon, the testator said hg would leave them 1000L each, to be paid, upon their com-v ing of age. Mr., Smith asked whether they were to re-,, ceive interest on their legacies *i*he said “no.’’ Sometime after in an adjoining room., the complainant pro-, duced to Mr. Smith and to defendant, a paper saying- “ this is what Mr. Beale meant by his provision for the boys, but it is of no account,, as Mr. B. has taken up the rents for his expenses.” She again appealed to defendant, and he confirmed the statement as before. Soon after, Mr. Smith advised defendant, as the will was meant to be a substitution for the provision of the deed, that be should apply for the same. Defendant accordingly-applied for the same, hut complainant answered, that might be of no account,, but she would take advice. The defendant further says that the testator gave (he believes as va substitute for the 500L mentioned in the deed) on the 10th November, 1805, to Abigail Webley, a house on Sullivan’s Island., together with all his negroes,, fur, niture, &c, by a deed of gift, as a recompense for her faithful services. And the defendant insists that the last deed and the will, destroyed the first deed, or that the will was obtained by misrepresentation, and is void.— The defendant admits that the complainants, Edward *508Webley and John W. Webley, are the persons alluded to in the will, but denies that they are entitled to any interest on their legacies, except from the time they shall become due. The defendant denies that either of the said legatees are of age. The defendant couceives that the goods received by the said Abigail, are sufficient for the maintenance of her sons.

The cause came to a hearing before Chancellor Gail-Hard, in November, 1812. On the trial it was moved by the counsel for defendant, that Mr. W. L, Smith, who had taken the instructions and drawn the will of the testator, John Beale, in his last illness, should be examined as a witness to prove what had been said on that occasion.

After argument on the question of the admissibility of parol evidence, the Judge desired to have the evidence stated, that he might form an opinion of its admissibility. Mr. W. L. Smith then stated that whilst he was drawing the will of the late Mr. John Beale, it was suggested to him that it might be his wish to provide for the two boys, the Webleys, the sons of his house-keeper. To this he answered that they were already provided for 5 upon which Mrs. Webley said *“*no, Mr. Beale, that provision is good for nothing,” and appealed to Mr. Langstaff, who assented to what she said. On this Mr. Beale then *said,se*I then give them 1000Í.” Being asked whether he meant 1000k between the two, he said *“*no, 10001. to each.” And to another question whether he intended interest to be paid on the legacies, he said “ no.” And accordingly a clause was inserted in his will, by which he bequeathed to Edward EbeMey and John W. Eberley (sons of Mrs. Abigail Webley,) ICQOi. to each, to be paid on their respectively attaining twenty-one years of age. The Judge haying heard Mr. Smith’s statement, received it as evidence.'

The cause then having been argued, Chancello? Gaiilard delivered the following decree ;

*509The intention of the testator must be the rule of de-cisión. Mr. Beale by a deifed dated in March, 1803, had assigned the rents and income of his wharf to trustees to pay to Mrs. Webley 500L and 5001. m,ore to each of her two sons. He sent for Mr. Smith to make his will, and directed him to give his estate to his daughters. On being told that it might be his wish to provide for the boys, the two Webleys, he replied, « they are provided for already.” This drew from Mrs. Webley this expression : “ No, Mr. Beale, that is good for nothing and appealed to Mr. Langstaff, who assented to what she said. On this Mr. Beale said *“*then I give them one thousand pounds.” Being asked whether he meant one' thousand pounds to the two, he answered *“*1000k to each.” And to another question, whether he intended interest to be paid on the legacies ? He said « no.*’ This evidence is admissible ; it does not contradict the will; it only relates to declarations of the testator at the time of making his will, and to a fact on which he made it. These declarations too are consistent with the will. The testator intended to give to each of the Webleys one thousand pounds, and has done so. He intended that the legacies should not draw interest before they should become payable *;*they draw interest only from that time. The only question as to the two Web. leys is, whether they are entitled to the legacies, and to -the thousand pounds, in the deed of March, 1803. It is very evident he did not intend that they should take both. His expression on being told that the deed of March, 1803, was good for nothing, «then I give them one thousand pounds,” is conclusive. This raises then a case of election. The Webleys cannot take under the deed and will too. They may take under either. The next question relates to Mrs. Webley. It is said that Mr. Beale intended the deed of November, 1803, in lieu and substitution of the deed of March, 1803. There is nothing in this deed from which this inference can be drawn. Mr. Langstalf thinks that Mr. Bcaloso intend-

*510Mrs. Webley’s conduct in saying to Mr., Be^Ie that-the deed of November was good for nothing, is free fr°m any imputation of fraud or intention to deceive Mr. Beale, Immediately after the will was executed', she shewed the deed to Mr. Smith, and said this is the PaPer ^r* Beale spoke of, She and Mr. Langstaff were probably both led into the mistake that the deed was good for nothing from the circumstance that no money had been received under it, in consequence of Mr. Lang-staff’s having a lease of the wharf, and being always in advance for Mr. Beale, and what is material arid has great weight with me is that Mr, Beale, *until*immediately before *he*executed his will, was under aii impression that the deed of November wás good. If lift had left any thing in his will to Abigail Webley, she would be put to her election also. But she is not named in the will. It must be referred to the master to ascertain what is due to Mrs, Webley under the deed, and she must be allowed interest from the time she was entitled to receive the 50Ok that is as soon as. from the rents and income of the wharf that smn would have been due, after paying the subsisting charges on it. It is also referred to the master to report the sums due on the legacies, with interest from the time they are directed to he paid. It- is ordered and decreed that the executors of Mr. Beale do pay to the said Abigail Webley, whatever sum may be due to her under the deed of March, 180S, and the legacies to the two Wobleys with interest from the time of tlieir respectively becoming due, should the said complainants elect to take under the will of the testator> John Beale. The costs to be paid ,out of the estate*

THEODORE GAILLARD.

h'rom this decree an appeal was made, on the ground that the Court erred :

1. In admitting parol evidence of the declarations of the defendant’s testator at the time of making his will.

In putting the sons of Mrs, Webley to their dec-*511fciofl, either to take under the will and renounce their Claims under the deed, or to take under the deed and re-Bounce their legacies under the will. Under this head it will he contended, as it was at the trial, that the parol evidence, even if it wore admissible, a case of election. does not make out

Mr. K. L. SimoNs, for the appellant's.

Mr. W. L. Smith, for respondent.

Mr. Simons for appl’ts stated the evidence.

The deed, tvas dated 24th March, 1803, recorded 14th Nov. 1803, Mr. Beale to Francis Bremar and Florian Charles Mey, in trust. Deed, 10th November, 1803, from Mr. Beale to Abigail Webley, (providing'for her.)

Deed, 22d October, 1807", relating to two negroes, annexed to the foregoing. Deeds recorded. Mr. Beale’© will in October, 1807", giving 10001. a piece to Mrs., Webley’s sons.

He insisted that this is not a case of satisfaction or performance, nor election, nor ademption. Roberts on. frauds, p. 46, Note No. 15. Blandy and Were, 1P. Wms. Wilcox and Wilcox, to shew that this will is not a performance of the provisions of the deed of 24th of March, 1803.

The question of performance applies only to executo-ry contracts.

Barret v. Beckford, 1. Yes. 521, to shew this is not a case of satisfaction. Saville v. Saville, 2 Atk. 461 ; Allen v. Allen, 2 Yes. 37, 2 Fonbl. 327 $ 1st Ves. Jun. 298, Forsyth v. Grant, 2 Ves. Jun. 464, Richardson v0 Elphin *;*1 Bro. 130,- v. - ; 3 Atk. 183, Room v. Room *;*1 Bro. 555, Holmes v. Holmes ,• 1 Bro-425, Grave v. *Salisbury;*2 Bro. 521, - v. Man j Powel v. Cleaver, 2 Bro. 518 *;*Baugh v.-, 1 Yes. ser. 257 *;*Broughten v.-, 7 Ero. P. C. 112 : East. •wood v. Pinko, 2 P, Wins. 618.

The appeal was heard by the Court, consisting of Chancellors James, Thgmpoojs, Desaussuiíe, Gaie-3DAKD. and Waties.

*512Satisfaction must be something of the same kind, m certainty, quantity and quality.

The legacies in this case could not be in satisfaétion, 0£ the provision of the deed.

The will was ambulatory and might not have taken for m ajW ? eara*

Under the deed there was a provision for survivor-ship *;*not so in the will.

The legacy might have become a lapsed legacy.

Nor is this a case of election. For that is a case where a man takes under a will, and is not permitted to claim against the will. No such case arises in *this*cause *;*for the claim under the deed and the Will, are not in opposition to each other.

This is not a case of ademption. A will may adeem in another willbut a will cannot adeem what is given under a deed. If a will provides for a son, and af-terwards the father 'gives him an equal amount, this may be ademption. Lord Talbot’s cases, 240. — - Brownes. Selwyn. Chancery cases, 240. 2 Aik. ST'S. YYcscy, jun. Stanyarn x\s. Stahyarn, 591. Peakee 116, 2 Pothior, 205. The result of these cases is, that where writing is necessary by the statute of frauds, there parol evidence is inadmissible, except in cases where it is necessary to explain j 1» circumstances of the family *;*2. condition of property, as parcel or no parcel ; or unless there be a patent ambiguity. Where writing is not necessary to give effect, there parol evidence is admissible in. Cases of patent ambiguities.

Mr. Smith for defendant.

It is laid down in all the cases, that parol testimony is admissible in cases of election. 1 Bro. 296. Evidence may not be used to explain what testator meant by the words lie used ; but it may as to facts on which the testator made his will. 1 Yesey, 323. Mascall v. Mascaíl; 3 Atk. 77; 3 Yes. Hinchcliff v. Hinchcliffe. Papers found in the hand writing of the testator, explaining his affairs, were received as parol evidence. 8 Term, 147. Doé on Dem. of Small *vs\*Allen. Parol evidence was admitted.

*513See p. 66, 7, in Roberts, to shew that Lord Taibot had been wrong in refusing parol evidence in Brown v. Sel-wyn.

It is of importance that the declarations of the testator should be at the time of making the will, 2 Fonbh 477". Parol evidence not admissible to add to or alter a will unless fraud or mistake is alleged. Trimmer v. Bayne, 7th Ves. 508 ; Robinson V; Whitley, 9th Ves¿ 577 ; 14th Yes* 322 ; 2d Washington’s rep. p. 55. i

The entire exclusion of parol evidence would exclude it even in cases of fraud, which cannot be contended for. 1 Binney, 610, 612 *¡*2 Hen. Bla. 213. Parol evidence admitted to prove that one legacy was intended* Cuth-bert Vi Peacock, 2 Verm 593.

The Court of Appeals unanimously affirmed the decree of the Circuit Court, for the reasons given therein.*

*

 The doctriné of election is well laid down in the 2d vol. of Schoales and Lefroy, 440; in the case of Birmingham and Kirwan. Lord chancel, lor Redesdale thére says, that the foundation of the rule of election is, that a person cannot accept and reject the same instrument — and this rule is equally applicable to any species of instrument, whether deed or will; and is a rulé of law as well as of equity. But the court of equity by its mode of proceeding, can give the rule more effect and application to various cases ; and it applies to dower as well as to other cases. But the intent to exclude dower, must be demonstrated by express words, or by clear and manifest intention. See Villa real *vs.*Galway. - Ambler, 682. VVhat amounts to satisfaction of one provision by another, is a question of intention. See Richardson *vs.*Morgan, 1 Bro. C. C. 63. 2 Bro. C. C. 394. 3 Vesey, 516, 530. Seethe cases collected in Bellasis *vs.*Uthwatt. 1 Atk. 427, in a note of Sanders’ edition.

Parol evidence to rebut the presumption, that a portion given' in the life time was intended to be in lieu or satisfaction of a legacy, is admis* sible, without regard to the nature of the parol evidence. Lord Thur-lew, lord Kenyon, and other judges, admitted parol evidence; but judge Butler (sitting as chancellor) said, that if he sat long in- court, he would drive out parol testimony on these questions ; but lord Eldon said the rule for the admission of it was too firmly established to be shaken. These cases are never sent to a jurv.