Denyssen v. Mostert. J.C. 1872 licet sit revocabilis ex parte testantis, tamen ex parte consentientis transit in contractum et sit irrevocabilis.' It is to be observed that the authorities which Peckius cites in support of this proposition are not by his own statement of them directly in point, inasmuch as they do not refer to wills of husband and wife, and further that it is not easy to conceive a testamentary contract by which one party is bound while the other is left free. This doctrine, however, of Peckius is controverted by Huber in his "Prælectiones," lib. xxviii., til. 3, s. 4, who contends with much force, that it is opposed to the law which prohibits contracts between husband and wife for prescribing the manner and extent to which the common property shall be enjoyed by the survivor, and observes: "Verius tamen videtur, non obstante tali pacto, testamentum posterius factum valere; quà contractus et ultimæ voluntates sunt res ita separatæ, ut hæc per illos impediri non debeant, neque possint, adeo ut ne quidem pactis dotalibus de futurâ successione, testamenti factio cuiquam adimatur." A passage from Coren's obs.: 12, p. 54, cited by the Chief Justice in his judgment, confirms the view of Huber. After stating a case of a mutual will and adiation by the surviving wife, Coren *proceeds: "She had given her consent to the hus- [259 band's disposing as he did, and then by adiating her husband's inheritance, she bound herself by a quasi contract to the observance of his will." The quasi contract arose not upon her consent being given to the making of the will (as the Chief Justice appears to read the passage), but on her election to accept the benefit of it after her husband's death. It is to be observed, however, that Van Leeuwen in the extract before quoted from his Censura Forensis, in which he lays down "adiation" as one of the conditions necessary to deprive a surviving spouse of the power of revocation, refers to the above cited passage in Peckius as an authority for his position, from which it would seem probable that reading the passage in connection with the context, he understood this condition to be implied. It is further to be observed that Groenewegen would appear to take this view, for in his note to the passage of Grotius above quoted, he also cites the same passage in Peckius as supporting the doctrine laid down in the text. If the passage is to be read with this qualification, it is consistent with all the authorities. Their Lordships have not found any other passage than the above in Peckius, in which a gift over of the joint property to children is suggested to be less revocable than such a gift to other relations, or indeed to strangers. A passage from Voet, de pactis dotalibus (lib. 28, til. 4, s. 63) has been read, in which he does not mention "adiation" as necessary 1872 Denyssen v. Mostert. J.C. to deprive a surviving spouse of the power of revocation; but inasmuch as he cites the extract above given from the Censura Forensis, it cannot be assumed that he intends to controvert its authority. A celebrated cause to which the will of Philip, Duke of Arshot, and Johanna Van Halewyn his consort gave rise, wherein it was decided that the mutual will was irrevocable by the survivor, was cited on behalf of the respondent from Decker (Dissert. Jur., lib. I., c. 1), who reports his own argument at great length, but the decision somewhat shortly. Whether or not the survivor in that case had adiated does not appear very clearly from Decker's report, but adiation may be inferred from the reference to the case in Van Leeuwen's Roman-Dutch law (B. 3, c. 3, s. 8), 260] which is as follows: "When two married persons have reciprocally benefitted each other, and directed how the goods of the common estate should devolve after the death of the survivor of them, such survivor, having enjoyed the benefit, cannot dispose of his or her share by such rule; and so it was adjudged in the causes upon a will between Philip, Duke of Arshot, and Mrs. Johanna Van Halewyn, his consort, by the high court of Mechlin." On the whole, their Lordships are of opinion, that the great preponderance of authority (to say the least of it) supports the doctrine laid down by Grotius, and reaffirmed but a few years since by two successive Chief Justices of the colony, whereby adiation or reception of benefits is treated as one of the conditions without which a surviving spouse is not deprived of the power of revocation. It remains to apply the law to the facts of the present case. It has been argued that the joint disposition of the property after the death of the survivor in the present case applies only to part of it, that some provisions of the will indicate an intention that the dispositions of the respective testators should apply only to their own shares, and that in this case even adiation would not deprive the widow of the power of revoking the instrument so far as it applies to her share of the property. Their Lordships, however, are of opinion, that the will so deals with the joint estate, that the widow would not have had the power to revoke any part of it, if she had adiated in the sense before explained. On the 18th of September, 1863, she wrote a letter expressly repudiating any benefit under the will, and declaring her elec tion to take her share of the inheritance to which she would have been entitled if no will had been made. Their Lordships are unable to concur with the Chief Justice, that before this she had declared her election to adopt the will. They do not infer J.C. Denyssen v. Mostert. 1872 this election from her letter of the 21st of January, 1863, in which she renounces the pre legacy of the farm, at the same time expressing to her co-executors her desire with respect to the administration of portions of the property; nor from her acceptance of commission, even if that commission were more than she might be strictly entitled to as executrix of her husband's will; nor from the form of the accounts made out by the association which were *certainly intended to be prepared [261 on the footing of the letter of the 18th of September, whereby she renounced the will. Their Lordships, therefore, find upon the evidence, concurring herein with Mr. Justice Denyssen, that the widow Mostert did not adiate or adopt the will in the sense of electing to receive the benefits to which she would have been entitled under it; and that being so, they are of opinion, that she had by law the right to revoke it as far as it affected her property, and to claim her half of the inheritance. The Chief Justice expresses his opinion that "it is much more consistent with justice and fair dealing, and much more conducive to confidence and good feeling between spouses to hold that the survivor has made his or her election in the lifetime of the predeceaser, than that the survivor, having given the predeceaser every reason to believe that the arrangement between them would be operative after his or her death, may after the death of the predeceaser altogether upset it by resorting to his or her rights. This reasoning applies with equal force to the power of revocation during the life of a co-testator without communication with him, a power which appears to be placed beyond doubt by the authorities. If the question were to be discussed upon principle independently of authority, it should be borne in mind that, while the power of revocation may be in some cases open to the objections urged by the Chief Justice, yet that to limit it as his judgment would do, might enable husbands disposed unduly to exercise their marital authority and influence, to coerce their wives into renouncing irrevocably those rights of inheritance, which it appears the especial policy of the law of the colony to protect. But these considerations are for the Legislature. Bynkershoek, indeed, speaks with strong disapprobation of abuses of the law, not infrequent in his time, whereby one cotestator, whose testamentary dispositions had been the consideration of those of the other, revoked his part of the will without communicating with the cotestator; but Bynkershoek treats the right to do this by law as clear, nor can it be doubted that that great judge and jurist would have deemed himself bound to give effect to the law as he had laid it down, whatever may have been his opinion of its policy. Their Lordships have but oue 1872 Maclaren v. Murphy. Connolly v. Maclaren J.C. 262] duty to declare what they deem to be the law; and for the reasons they have given will humbly advise Her Majesty to reverse the judgment of the Supreme Court of the colony, and to order that judgment be entered for the plaintiff for one moiety of the bond with interest, credit being given for any payments in account which have been made. The appellant will have the costs of this appeal. Solicitors for the Appellant: Messrs. Cole, Cole, & Jackson. Solicitors for the Respondent: Messrs. Venning, Robin, & Ven ring. Mutual wills if not revoked are valid. 1 Redf. on Wills, 182-3; Matter of Day, 1 Bradf. Surr. Rep., 476. Where two persons executed a paper purporting to be a will whereby, in consideration of mutual friendship, they agree that in case of the death of either the survivor shall pay the expense of sickness and burial of the other and have his estate it is not an agreement but a will and revocable by either and is revoked by a separate will of either. Schumaker v. Schmidt, 4 Am. Rep., 135, 44 Ala., 454. An oral agreement by two persons to make mutual wills in favor of each other is void under the statute of frauds. Gould v. Mansfield, 103 Mass., 408. Where husband and wife each had a will drawn in favor of the other but each, by mistake, signed the will intended for the other it was held that they were ineffectual for any purpose. Alter's Appeal, 5 Am. Rep., 433,67 Penn. St. R, 341; 10 Am. Law Reg. N.S., 242 ; see also Calkins v. Falk, 39 Barb., 620 affirmed, 38 How., 62, 41 N. Y., 619; Goce v. Worster, Lalor's Sup., 30; 1 Sto. Eq. Jur. §7362. And that an act of the legislature authorizing the Courts to reform the will was unconstitutional and void, as illegally divesting the estate of the heirs. Alter's Appeal 5 Am. Rep., 433, 67 Penn. St., R., 341, 10 Am. Law Reg. N.S., 242. J.C. June 4. 5, 1872. JAMES MACCLAREN and JOHN MACCLAREN, Appellants; AND ARTHUR II. MURPHY and JEREMIAH C. MURPHY, Respondents. JAMES CONNOLLY, Appellant; AND JAMES MACCLAREN AND JOHN MACCLAREN, Respondents. [Law Reports, 4 Privy Council Cases, 262.] ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR THE PROVINCE OF QUEBEC, CANADA (APPEAL SIDE). Contract for sale of timber in possession of guardian or garnishce — Construction and effect of Action for damages for non-performance of a contract for the sale of certain spars and timber, "to be delivered free of charge to-morrow, or as soon as they can be got out of the hands of the guardian; but the purchasers not bound to take them if not delivered in one week unless they like.' No delivery having been made within the time specified, by reason of the guardian in possession of the spars insisting on retaining them in consequence of a writ of saisie-arret issued in an action instituted against the ostensible owner of the spars and tim. *Present:-SIR JAMES WILLIAM COLVILLE, SIR MONTAGUE Edward SMITH and SIR ROBERT PORRETT COLLIER. J.C. Maclaren v. Murphy. Connolly v. Maclaren, 1872 ber, whose mark they bore, having been served on him, notwithstanding that he was released by subsequent proceedings, and might have legally given them up: Held, that not having done so, the parties contracting for the sale of the spars and timber were relieved from the damages awarded by the Court below for the non delivery thereof, on the ground that the reasonable construction of the words getting "out of the hands of *the guardian,” was the actual, and [263 not constructive or legal title to the possession' which could alone insure the delivery: Held, also, that an action en garrantie, founded on the former right of action, against the guardian as garant, by the original contractors for damages for wrongful detention of the spars and timber, could not, under the circumstances, be sustained; and the judgment made in such an action, awarding damages, reversed. These appeals were brought from judgments of the court of Queen's Bench in Lower Canada, reversing the judgments of the Superior Court in favor of the appellants, and condemning the appellants in the sum of 4,210 piastres, with interest and costs. In the first appeal the action was brought by the respondents, the Murphys, against the appellants, the Maclarens, to recover damages from them for breach of a contract to deliver certain spars and timber. The declaration stated, in effect, that the plaintiffs and the defendants, on the 1st of July, 1864, entered into an agreement in writing for the sale by the defendants to the plaintiffs of certain spars and timber, to be delivered the following day, or as soon as they could be relieved from a seizure under mesne process, in virtue of which they had been attached, and were in the hands of a guardian. That the defendants subsequently informed the plaintiff's that the spars and timber were released from the seizure. That the plaintiffs, relying on the defendants' statement, went to large expense in preparing to remove the spars and timber, and made contracts for their resale, from which the plaintiff's would have derived large profits, but that the defendants had not delivered to the plaintiffs the spars or timber. The defendants pleaded the general issue, and an exception péremptoire en droit, alleging that they made every effort to deliver the spars and timber, but that the appellant, Connolly, claimed them as garnishee, and the defendants were unable to obtain main levée, and that this amounted to a force majeure, for which the defendants were not responsible. The plaintiff's joined issue on the defendants' plea. In the meantime the defendants brought an action en garantic against Connolly, which was the subject of the second appeal. Evidence was taken in both actions at enquête, and the whole was included in the same record, and the appeals were heard together. *The facts, of which there was no dispute, were as follows:[264 In June, 1864, a quantity of spars and timber arrived at Quebee which were supposed to belong to one Meech, the spars being |