plaintiffs. (It seems that there were numerous other heirs besides the parties to the action.)

In Hall v. Hall (Md.) supra, the court set aside for fraud an agreement made by the widow of an intestate with his descendants for the division of his estate on the ground that his sons had secretly agreed with their niece to make her share larger than that provided for in the agreement.

In Fuller v. Melchers (Ohio) supra, the court overruled a demurrer to the complaint of a widow seeking to vacate and set aside an agreement between her and the heirs of her late husband, where she alleged that she had no knowledge of her own of the value of the real estate, or of the value of her dower estate, and no knowledge as to how the same should be set off or paid to her, and that she relied on information from the heirs and administrator. The court said: "My judgment is that by reason of the natural confidential relations existing between flesh and blood, between the heirs who are defendants to this action and the plaintiff, the duty was imposed upon the latter, in dealing with the widow in respect to her rights, of being eminently fair and just, and that they should not only have ascertained the facts and the law, if they did not already know them, but that they should have fully explained to her all of her rights, which depended not upon the law, but upon the actual facts relating to the condition and value of the property."

Where the son of an intestate, having bought out the interest of two of his sisters, made an agreement of partition with the other sister which could not be understood by the reading, although the land could be laid out from it by a surveyor, and there was testimony that the division was unfair, the court set the agreement aside. gess v. Burgess (S. C.) supra.

Bur

In Hand v. Errington (Tex.) supra, where the court declined to recognize as binding on a daughter an agreement between her and her father touching her share in community property, it was held that the failure of the father "to reveal the true status of

the community property amounted in law to concealment, and concealment is fraud. The fact that he was laboring under a mistaken belief as to her rights under the law cannot purge his silence of its legal fraud." (There were several other children.)

In Diamond v. Connolly (1921) 276 Fed. 87, writ of certiorari denied in (1921) 257 U. S. 656, 66 L. ed. 420, 42 Sup. Ct. Rep. 169, it was held that the court will not sustain the sale by the person entitled to the whole of an intestate's estate, where such sale is induced by fraud.

On the other hand, in Block v. Hirch (1919) 145 La. 427, 82 So. 394, the court declined to set aside an agreement between father and son, made a great many years before in relation to the mother's estate, the son, after the death of the father, seeking to set it aside on the ground of deception.

In Baker v. Miller (1923) 190 Cal. 263, 212 Pac. 11, the court decreed specific performance of a contract between the widow and the mother of an intestate, who were his sole heirs at law, finding against the defendant, who claimed that she was induced to enter into the contract through the false and fraudulent misrepresentations of the plaintiff, and that by reason of the insolvency of the deceased the contract was without consideration. The trial court found that the estate was not insolvent.

In Pickens v. Merriam (1921) 274 Fed. 1, writ of certiorari denied in (1921) 257 U. S. 656, 66 L. ed. 419, 42 Sup. Ct. Rep. 168, where certain of the heirs brought an action to set aside agreements made with the widow of an intestate, on the ground that they had been misled and overreached by the widow and the administrator, the court found against the plaintiffs.

II. Construction of agreement. (Supplementing annotation in 6 A.L.R. 565.)

Where a family made an act of partition of land, and at the same time another act of partition of slaves, and in the partition of slaves stated that what was coming from one to the other

each of my domestic servants who shall be in my service at the time of my decease and who shall have been in my service for ten years or upwards the amount of four years' wages and to each of my domestic servants who shall be in my service at the time of my decease and who shall have been in my service for three years or upwards but less than ten years the amount of two years' wages."

An originating summons was taken out by the executors for the determination of the following question, and for the following relief:

1. Whether the respondents William Broughton (the testator's coachman), Arthur Murch (his chauffeur), and Thomas Steele (his gardener) were respectively entitled to any, and what, legacies under the will.

2. That the respondent Lilian Ellen Hamilton might be appointed to represent for the purposes of the action all persons who were or might thereafter become beneficially interested in the residuary estate of the testator.

3. That if and so far as might be necessary the real and personal estate of the testator might be administered by the court.

The respondents Broughton, Murch, and Steele were all of them in the service of the testator at the time of his death, and had been in his service for the respective periods of twenty, sixteen, and six years. During his life the testator had been extensively engaged in business and a large employer of labor therein. He owned a house in London and another in the country, which he occupied alternately from time to time. The coachman and chauffeur accompanied him when he moved from one residence to the other, and occupied rooms over the stables and garage respectively. The gardener lived in a cottage provided for him at the country residence.

On the hearing of the summons Eve, J., held with regret, following Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, and other au

thorities by which he thought he was bound, that the three servants in question, being outdoor servants, were not entitled to share in the testator's bounty.

The claimants appealed.

Mr. Wilfrid Hunt, for the appellants:

These persons come under the description of "domestic servants." They are servants employed by him in relation to his house, and form part of his domestic establishment.

Macdonell on Master & Servant, 2d ed. 138.

The fact of living in the master's house is not conclusive. The older cases are against my contention. It is said that Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, is an authority, binding on the court, that the term "domestic servants" excludes all outdoor servants. That case, however, does not lay down any binding principle to that effect. It has no doubt been followed in many cases, such as Vaughan v. Booth, 16 Jur. 808, Re Drax, 57 L. T. N. S. 475, and Re Ogilby [1903] 1 Ir. R. 525.

The meaning of the term "domestic service" has been discussed in cases under the Unemployment Insurance Act 1920.

Re Junior Carlton Club [1922] 1 K. B. 166; Re David [1922] 1 K. B. 172; Re Vellacott [1922] 1 K. B. 446.

These cases, however, are not of much assistance in construing wills. They show, however, that the term "domestic servant" should now have a wider interpretation put upon it than it would have received seventy years ago. It is submitted that the appellants come well within the expres

sion.

Mr. D. D. Robertson, for persons beneficially interested in the residuary estate:

No doubt the appellants are servants, but the question is whether they are domestic servants. The authorities show that there is a distinction between indoor and outdoor servants. "Domestic servants" must be living in the testator's house. The testator has used words which have obtained a stereotyped meaning.

Vaughan v. Booth, 16 Jur. 808.

All the textbooks have adopted the principle of Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, that

outdoor servants are not servants.

Theobald, Wills, 7th ed. 273; 2 Jarman, Wills, 6th ed. 1120. Bischoff for the executors. Lord Sterndale, M. R.:

In this case Eve, J., seems to have decided contrary to his own inclination, thinking himself bound by Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, and other cases cited in legal textbooks, as to the meaning attached to the words used in those decisions. He seems to have thought that the draftsman of this will must necessarily have attached the same meaning to them. Now this was the will of a large contractor. It is to be noticed that he bequeaths to his wife his "carriages, motors, wines, jewelry," and other articles "in or about my dwelling house," house," the word "about" being noticeable. He gives bequests to business employees, in contradistinction to domestic employees. [His lordship' read the bequest in dispute and continued:] The question is whether these three persons are domestic servants. Apart from the authorities,-in particular, Ogle v. Morgan, supra, and Re Ogilby [1903] 1 Ir. R. 525,-at any rate, with regard to the chauffeur and the coachman,-I should myself have had no doubt that they were, in the ordinary use of language, "domestic servants," living in what was really a part of the testator's house and fulfilling the ordinary functions of domestic servants. With regard to the gardener, there might, perhaps, be more room for doubt; but, after all, a man who cultivates vegetables for the household, and looks after the amenities of the garden, can, I think, be called a "domestic servant," in the sense that he is employed to minister to the testator's home comfort and enjoyment, even though he does not actually live in the testator's house.

But it is said that there is wellestablished and binding authority, always followed in these cases, which prevents the court from taking that view. It seems to me that

that argument is based upon Lord Truro's decision in Ogle v. Morgan, supra, which is said to have laid down as a fixed principle that an outdoor servant cannot be a "domestic servant." In my opinion, it does not lay down any such principle, but, if it does, I think it is only a dictum. If it really extends to this, that in any will, under any circumstances, a "domestic servant" can never mean an outdoor servant, it must be regarded as a dictum only, by which, with the greatest respect, we are not bound, and which I am not myself inclined to follow. But I think it does not really go so far as that. In certain circumstances, the words "domestic servants" may include persons such as the appellants here, and we must also remember that, during the seventy years which have passed since that decision was pronounced, there has been much discussion as to the meaning of the words "domestic servants;" for example, in cases which have arisen under the Unemployment Insurance Act. I wish it to be clearly understood that I do not for one moment suggest that the wide definition of the words "domestic servant" adopted under that act is also to be adopted by the court in every case of the construction of a will, but I think the discussions which have taken place show that seventy years have, perhaps, somewhat changed the popular meaning of the words "domestic servant;" that the same prima facie meaning is not necessarily to be attached to them now as was formerly the case. We must look at the intention of the testator, examining all the circumstances of the case, and, in particular, the fact that in this case he was an employer of other kinds of labor. I think we are entitled to conclude that these three per

Wills-construc

sons are domestic tion-gifts to servants for the "domestic serv

ants"-chauffeur

coachman-
oor servants.

gardener-out

purposes of this will, and that it was the intention of the testator that they should benefit under it. The appeal must be allowed,

and the question asked by the summons answered in the affirmative.

Warrington, L. J., stated the facts, and continued:

In the absence of authority, I should, without the slightest hesitation, have said that the testator intended to include the appellants under the title of "domestic servants." I think that when a man in the position of this testator talks of domestic servants, he intends to include all those who minister to the wants and comforts of himself and his family or the inmates of his household, whether in his town house or his country house; and, dealing more particularly with the gardener, I think he is a man who ministers to the wants and comfort of persons living in a country house, just as, in a different sphere, a cook does.

But we are told that we cannot give effect to these views because, in 1852, Lord Truro, on the construction of another will, made in totally different circumstances, gave a de cision to an apparently opposite ef fect. That was the will of a person who presumably did not employ labor except in regard to his private affairs, such as the maintenance of his private residences, or in looking after his estates; whereas, in the present case, the testator was very largely and very actively engaged in industrial pursuits. Speaking for myself, I rather protest against the doctrine that we must give the same construction to a will as that which has been given to a previous will. I think the court must say in each case what is the meaning of the particular will before it. There may be certain well-defined rules of construction, but, speaking generally, I think that the decision of a judge upon the construction of one will is not binding upon the construction of another. But the question I ask myself is, Did Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, lay down any rule of law binding the court in determining the construction of other wills? It

It is

seem to me that it did not. said in the textbooks that it laid down the rule that an outdoor servant is not to be included in the term "domestic servant." But the expression used in that case was not "domestic servant" at all; it was "servant in my domestic establishment." It is true that Lord Truro refers to the difference between outdoor and indoor servants, but I think we must take each judgment as referring to the particular words which the court has there to conTruro says (1 De G. M. & G. 361): strue. Later in his judgment Lord "In my opinion the word [domestic] was introduced for the purpose of drawing a distinction between servants who were in the house not re

ceiving board wages, and servants not boarding in the house and receiving proportionately higher wages; otherwise, by including an outdoor servant on board wages you would be giving him a vast deal more than those servants who were unquestionably within the scope and operation of the testator's bounty."

That seems to me to have been the dominant factor in Lord Truro's decision-the risk of giving a larger legacy than the testator intended; but, in the first place, I think that the board wages spoken of there ought not to be considered wages at all; they are really a fixed allowance, in lieu of food; they are not, strictly speaking, remuneration; whereas, wages paid to a gardener, etc., are "wages," in the proper sense of the term.

I think, therefore, that Ogle v. Morgan, supra, does not lay down. as a fixed principle that an outdoor servant, not living under the master's roof, is excluded from coming under the expression "domestic servant." I think that we must consider the construction of this will, having regard to the actual circumstances, and that each of these persons is entitled to share in the bounty of the testator.

Younger, L. J., [after stating the facts]: