Tenants in common may join in an action of waste. Greenly v. Hall's Ex'r., 3 Harr. 9. WILL. (Construction of—Legacies when pecuniary.) H. S. B. executed his will on the 4th May, 1835, and devised as follows: "Should I die without leaving issue, I give and bequeath to my beloved wife, the said A. E. B. all the property, personal and real, that I received, or may receive hereafter, from her father's estate, or from any of her relations, and sources owing to my marriage with her, independent of my own property, to do with and dispose of as she pleases." Testator died in June, 1838, leaving his wife surviving, but leaving no issue. Both the testator and his wife were minors at the time of their marriage. The father of Mrs. B. having died previously to their union, one T. B. became their guardian, and on the 29th Oct. 1829, shortly after Mr. B. attained his majority, accounted with him, and paid over to him the funds which had come to his hands. Subsequently, Mr. B. received large sums of money from the estate of his father-in-law and mother-in-law, part of which was paid him before and part after the date of his will. Between October, 1827, and July, 1829, the guardian received in cash, from the administrator of Mrs. B's father, the sum of $45,608 70; and on the date last mentioned, had received in further payment from the administrator, a mortgage, then amounting, principal and interest, to $4500. Retaining the mortgage, the guardian invested of the cash received by him, the sum of $10,885 13 in shares in the United States Bank, and deposited the residue in the Massachusetts Hospital, Life Insurance and Trust Company. On the 29th Oct. 1829, (as before stated), he delivered to him the mortgage, paying him the interest and dividends on the bank shares and deposites, then assigned. On 31st Oct. 1830, Mr. B. collected the money due on the mortOn the 5th November, 1829, gage, principal and interest. a few days after the deposites were assigned to him, he drew them out, and re-deposited them, with a small addition in his own name, making the sum of $35,000. Of this latter sum, on the 20th of April, 1832, (before the date of his will,) he drew out $10,000; and on the 20th May, 1835, after the will, drew out the residue, investing it in various stocks, changing them from time to time by sale and the purchase of others, and receiving the dividends as they accrued, until his death.

Testator kept a book, in which under the head, “ memorandums of bank stocks and their value, when purchased," are many entries of stocks, all purchased after the date of his will. These stocks, when disposed of, were marked sold; and notice is taken of the manner in which they were reinvested. The investments were always in stocks, except $1250 paid for furniture, and other stocks invested in a house. On every page was a remark to this effect, subscribed by the testator. "The stocks enumerated in this page belong to my wife, though they stand in my name." The last entry of this description was: "The stocks enumerated in this page belong to the property of my wife, A. E. B. though standing in my name; H. S. B." At the end is added :"also, the house in Newport, cost $8,000." These entries were made from time to time as the stocks were purchased, sold and replaced. There were certain stocks which remained unsold at the testator's death.

It was held, that the memorandum book kept by the testator was inadmissible in evidence, to show that the stocks remaining undisposed of, constituted the property to which the testator intended to refer in his will, inasmuch as it did not ascertain a subject for the operation of the will, suiting to what the will described.

Extrinsic parol evidence cannot be received to show an intention on the part of a testator, which his written will does not express; and the same is as true on principle of extrinsic written evidence.

Held, that evidence to show the nature and extent of the property received by the testator, in consequence of his marriage, was inadmissible.

If the will be not of a specific thing, but of something to be ascertained by some test contained in the instrument, it can only be determined by evidence, whether the subject-matter conforms to that test.

Property is a general term to designate the right of ownership, and includes every subject, of whatever nature, upon which such a right can legally attach. It is not necessary that the subject of it should be either lands, goods or chattels, for it extends to money and securities. Vide 6 Binney 98; Cowper 299; 11 East 370; Public Laws 147.

The words real and personal, used by the testator, lay no just ground for supposing that he thereby intended to restrict-as the words themselves, in their legal import, do not restrict the property to things tangible.

Also held, that the legacy to Mrs. B. was pecuniary, for the amount received, and to be estimated by excluding from the computation all the income and interest which accrued after the receipt by the guardian or by the testator.

Whether a legacy is specific or not, must necessarily depend upon the nature of the thing referred to and described in the will. If the thing be capable of individuality, as a ring or a picture; or if it be an assemblage of things, as a library or a cabinet; or something capable of being separated by sensible distinctions, as the property on a particular estate; in all such cases, the descriptions in the will set forth with distinctness the subject of bequest, and make it specific. But this is only because specific things alone can answer to the description given.

Whether a bequest couched in general terms is specific, or otherwise, depends on this; if the things falling within the terms, when enumerated, (or if they had been enumerated by the testator), are in their nature specific, then the legacy is specific; otherwise, it is not.

The words "property, personal and real," may in a secondary sense, extend to money, conceding that in their primary meaning they include only lands, goods und chattels.

Where a testator has used the words in which he has expressed himself in their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any secondary sense, of which, with reference to these circumstances, they are capable. Pell et ux. v. Ball et al., 1 Speers' Eq. Rep.

48.

2. (Construction-Extent of provision for reasonable and competent support.) Testator provided in his will, that his estate, both real and personal, should be kept together until his just debts were paid, and until the decease of his wife; and further, that his wife, together with his daughter and grandson, should have "a reason

ble and competent support," out of the proceeds of his estate, until his just debts were paid, and during the natural life of his wife.

The reasonable and competent support provided for, held not to mean merely the food and clothing necessary to sustain life, nor any other fixed quantity or allowance, but must depend on circumstances and exigencies.

Where a provision of this kind is made for different persons, the inquiry would be, what is reasonable and competent in the situation of each.

There seems to be no other practicable method of construing a bequest for support or maintenance than to mean, that support shall not be wanting. If the legatee's private means are unable to supply it, the deficiency shall be made up out of the testator's bounty.

A different intention, gathered from the terms of a particular will, might lead to a different construction.

The daughter having a sufficient property for the support of herself and child, the bequest could not take effect.

The argument that the grandson had no property of his own, and therefore, came within the scope of testator's bounty, not sustained.

There seems to be no instance of a mother of ability to maintain her children, though having no property themselves, who has been reimbursed for doing so. Ellerbe v. Ellerbe, ib. 329. WITNESS. (Competency of co-defendant.) A person is a competent witness though included in the writ as a defendant, if he be not taken, nor declared against. Clark v. Maloney, 3 Harr. 68. 2. (Competency of infant party.) Though a co-plaintiff may testify voluntarily against his own interest, an infant party will not be permitted to do so even with the consent of a next friend by whom he sues. The infant can consent to nothing; and the court will not allow him to do an act to his prejudice. Rickards et al. v. Laws et al., ib. 393.

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CRITICAL NOTICES.

1.—A Treatise on the Law of Contracts not under Seal. By WILLIAM W. STORY, Counsellor at Law. Boston: Charles C. Little and James Brown. 1844.

THIS is a very well written little book by a son of judge Story, who has given in it strong evidence that he has inherited some of his father's industry and love of legal science. It forms a comprehensive introduction to the very extensive branch of which it treats, and with here and there a fault, has been executed with good taste and judgment.

It is divided into three parts. The first treats of contracts in general of the different kinds of contracts-of the legal requisites to constitute a good contract-of the construction of contracts—and of the admissibility of parol evidence to affect written agreements. The second relates to particular contracts, as Agency, Partnership, Bailments, Sale of Personal Property, Guaranty, Landlord and Tenant. The third part is confined to the subject of Defences and Damages, including Interest.

We would advise the author in any future edition of this work, to turn his attention to the enlargement and improvement of the first and third parts, omitting the second entirely. The second part cannot be treated so as to be useful within his limits. He has besides been compelled to omit one of the most important particular contracts, that of Insurance. With the improvement we suggest, an excellent manual may be made for the use of students.